Exhibit 1.1
EXECUTION VERSION
E
XELON
C
ORPORATION
$550,000,000 1.550% Notes due 2017
$900,000,000 2.850% Notes due 2020
$1,250,000,000 3.950% Notes due 2025
$500,000,000 4.950% Notes due 2035
$1,000,000,000 5.100% Notes due 2045
U
NDERWRITING
A
GREEMENT
June 8, 2015
Barclays Capital Inc.
Goldman, Sachs & Co.
As Representatives of the
several Underwriters listed
in
Schedule 1 hereto
c/o
Barclays Capital Inc.
745 7
th
Avenue
New York, New York 10019
Goldman, Sachs & Co.
200 West Street
New York, New York 10282-2198
Ladies and Gentlemen:
Exelon Corporation, a
Pennsylvania corporation (the “Company”), proposes to sell to the several Underwriters listed in Schedule 1 hereto (the “Underwriters”), for whom you are acting as representatives (the “Representatives”), $550,000,000
principal amount of its 1.550% Notes due 2017 (the “2017 Notes”), $900,000,000 principal amount of its 2.850% Notes due 2020 (the “2020 Notes”), $1,250,000,000 principal amount of its 3.950% Notes due 2025 (the “2025
Notes”), $500,000,000 principal amount of its 4.950% Notes due 2035 (the “2035 Notes”) and $1,000,000,000 principal amount of its 5.100% Notes due 2045 (the “2045 Notes” and, together with the 2017 Notes, the 2020 Notes, the
2025 Notes and the 2035 Notes, the “Securities”). The Securities are to be issued under a base indenture, to be dated as of June 11, 2015 (the “Base Indenture”) between the Company and The Bank of New York Mellon Trust
Company, N.A., as trustee (the “Trustee”), as amended and supplemented by the first supplemental indenture, to be dated as of June 11, 2015 (the “Supplemental Indenture” and, together with the Base Indenture, the
“Indenture”).
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 20 hereof.
The Company hereby confirms its agreement with the several Underwriters concerning the purchase
and sale of the Securities, as follows:
1.
Registration Statement
. As of the date of this Agreement, the Applicable Time of Sale
and the Closing Date (as defined herein), the Company represents and warrants to, and agrees with, each Underwriter as set forth below in this Section 1.
(a) The Company meets the requirements for use of Form S-3 under the Act and has prepared and filed with the Commission an automatic
shelf registration statement, as defined in Rule 405 on Form S-3 (Registration No. 333-196220), including a related base prospectus, for registration under the Act of the offering and sale of the Securities. Such Registration Statement,
including any amendments thereto filed prior to the Execution Time, became effective upon filing under Rule 462(e). 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 4(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, any Preliminary
Prospectus and Schedule 1 hereto) as the Company has advised you, prior to the Execution Time, will be included or made therein. The Registration Statement, at the Execution Time, meets the requirements set forth in Rule 415(a)(1)(x).
(b) (i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of
complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Sections 13 or 15(d) of the Exchange Act or form of prospectus) and (iii) at the time the Company or
any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer relating to the Securities in reliance on the exemption in Rule 163, the Company was or is (as the case may be) a “well-known seasoned
issuer” as defined in Rule 405. The Company agrees to pay the fees required by the Commission relating to the Securities within the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules
456(b) and 457(r).
(c) On the Effective Date, the Registration Statement did, and when the Final Prospectus is first filed in accordance
with Rule 424(b) and on the Closing Date, the Final Prospectus (and any supplement thereto) will, comply in all material respects with the applicable requirements of the Act and the Exchange Act and the respective rules thereunder; on the
Effective Date and at the Execution Time and as of the “new effective date” with respect to the Securities pursuant to, and within the meaning of, Rule 430B(f)(2), 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; 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 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 6(b) hereof.
(d) The Disclosure Package did not, as of the time and date designated as the “Applicable Time of Sale,” include an untrue statement
of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions
from the Disclosure Package based upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information
furnished by or on behalf of any Underwriter consists of the information described as such in Section 6(b) hereof.
(e) The Company
has not made and will not make (other than the final term sheet prepared and filed pursuant to Section 4(b) hereof) any offer relating to the Securities that would constitute a “free writing prospectus”
2
(as defined in Rule 405), without the prior written consent of the Representatives; the Company will comply with the requirements of Rule 433 with respect to any such free writing prospectus; any
such free writing prospectus (including the final term sheet prepared and filed pursuant to Section 4(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 Preliminary Prospectus 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, include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading. For the purpose of clarity, nothing in this Section 1(e) shall restrict the Company from making any filings required in order to comply with its reporting obligations under the
Exchange Act or the rules and regulations of the Commission promulgated thereunder.
(f) At the earliest time after the filing of the
Registration Statement that the Company or another offering participant (x) made a bona fide offer of the Securities (within the meaning of Rule 164(h)(2)) 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.
2.
Purchase of the Securities by the Underwriters
.
(a) On the basis of the representations and warranties herein contained, but subject to the terms and conditions set forth herein, the Company
agrees to sell to each of the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company, at the purchase prices set forth on Schedule 2 hereto, the principal amount of the Securities set forth opposite such
Underwriter’s name in Schedule 1 hereto. The Underwriters agree to make a public offering of their respective Securities specified in Schedule 1 hereto at the prices to public specified in Schedule 2 hereto. It is understood that after such
initial offering, the several Underwriters reserve the right to vary the offering price and further reserve the right to withdraw, cancel or modify any subsequent offering without notice. The Company shall not be obligated to deliver any of the
Securities, except upon payment for all of the Securities to be purchased on the Closing Date.
(b) Delivery of the Securities and payment
therefor by the Representatives for the accounts of the several Underwriters shall be made at the offices of Kirkland & Ellis LLP at 10:00 A.M., New York City time, on June 11, 2015, or at such other time or place on the same or such
other date, not later than the fifth Business Day thereafter, as the Representatives and the Company may agree upon in writing. Such time and date for delivery of the Securities is herein called the “Closing Date.” On the Closing Date, the
Company, through the facilities of The Depository Trust Company (“DTC”), shall deliver or cause to be delivered a securities entitlement with respect to the Securities to the Representatives for the accounts of each Underwriter against
payment of the purchase price by wire transfer of same day funds to a bank account designated by the Company. Time shall be of the essence, and delivery at the time and place specified pursuant to this Agreement is a further condition of the
obligation of each Underwriter hereunder. Upon delivery, the Securities shall be registered in the name of Cede & Co., as nominee for DTC.
3.
Representations and Warranties of the Company
. The Company represents and warrants to and agrees with each Underwriter that:
(a)
Agreement
. This Agreement has been duly authorized, executed and delivered by the Company.
(b)
The Securities
. The Securities have been duly authorized and, when executed and authenticated by the Trustee in accordance with the
provisions of the Indenture and delivered to and paid for in accordance with the provisions of the Indenture, will have been duly executed and delivered by the Company and will constitute the legal, valid and binding obligations of the Company
enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally or
by equitable principles relating to enforceability (collectively, the “Enforceability Exceptions”). The Securities will conform in all material respects to the description thereof contained in the Disclosure Package and the Final
Prospectus.
3
(c)
Indenture
. The Indenture has been duly authorized and, when executed and
delivered by the Company, will constitute a legal, valid, binding instrument enforceable against the Company in accordance with its terms, subject to the Enforceability Exceptions. The Indenture will conform in all material respects to the
descriptions thereof contained in the Disclosure Package and the Final Prospectus.
(d)
Investment Company Act.
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.
(e)
No Market Manipulation.
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.
(f)
Organization; Authority
. 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 corporate power and authority under its charter 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 such qualification.
(g)
Capitalization; Subsidiaries.
The Company has an authorized capitalization as set forth in the Disclosure Package
and the Final Prospectus and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable and conform to the description thereof contained in the Disclosure Package
and Final Prospectus; and all of the issued shares of capital stock of each Significant Subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and (except for directors’ qualifying shares
and except as otherwise set forth in the Disclosure Package and the Final Prospectus) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(h)
No Conflicts.
Neither the execution and delivery of this Agreement, the Indenture or the Securities (the “Transaction
Agreements”), nor the consummation of any of the transactions contemplated herein, or the fulfillment of the terms hereof, including the issuance of the Securities, will result in a breach or violation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its Significant Subsidiaries pursuant to (i) the charter or bylaws of the Company or the organizational documents of any of its Significant Subsidiaries; (ii) the terms of
any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or any of its Significant Subsidiaries is a party or bound or to which its
or their property is subject; or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or any of its Significant Subsidiaries of any court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or any of its Significant Subsidiaries or any of its or their properties, except (x) in the case of clauses (ii) and (iii) above, for any such conflict, breach,
violation or default that would not, individually or in the aggregate, (A) reasonably be expected to have a material adverse effect on the performance of the Transaction Agreements, or the consummation of any of the transactions contemplated
herein; or (B) 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 (collectively (A) and (B), a “Material Adverse Effect”) and (y) in the case of clause (iii) above, for any such violation that may arise (A) under applicable state securities laws or rules and regulations of
the Financial Industry Regulatory Authority (“FINRA”) or any foreign laws or statutes in connection with the purchase and distribution of the Securities by the Underwriters or (B) as a result of the legal or regulatory status of any
person (other than the Company) or because of any other facts specifically pertaining to such person.
(i)
No Consents Required
. No
consent, approval, authorization, filing with or order of any court or state or federal governmental agency or body, including the Commission and any applicable state utility commission
4
or other regulatory authority, is required in connection with the transactions contemplated herein, except such as will be obtained under the Act, and 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.
(j)
Use of Proceeds
. The Company will apply the net proceeds from the issuance and sale of the Securities, as set forth under
“Use of Proceeds” in the Disclosure Package and the Final Prospectus.
(k)
Margin Rules
. The application of
the proceeds received by the Company from the issuance, sale and delivery of the Securities, as described in the Disclosure Package and the Final Prospectus will not violate Regulation T, U or X of the Board of Governors of the Federal Reserve
System or any other regulation of such Board of Governors.
(l)
Properties
. The Company and its subsidiaries own or
lease all such properties as are necessary for the conduct of the Company’s operations as presently conducted.
(m)
Financial Statements
. 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.
(n)
Independent Auditor
. PricewaterhouseCoopers LLP is an
independent registered public accounting firm with respect to the Company as required by the Act and the rules and regulations of the Commission and the Public Company Accounting Oversight Board thereunder.
(o)
Internal Controls.
The Company maintains systems of internal accounting controls sufficient to provide reasonable assurance
that transactions are executed in accordance with management’s general or specific authorizations, transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles
and to maintain asset accountability, access to assets is permitted only in accordance with management’s general or specific authorizations, and the recorded accountability for assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences.
(p)
Disclosure Controls.
The Company maintains
disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange Act, such disclosure controls and procedures have been designed to ensure that material
information relating to the Company is made known to the Company’s principal executive officer and principal financial officer by others within those entities, and such disclosure controls and procedures are effective.
(q)
No Proceedings
. 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 knowledge of the Company, threatened that could reasonably be expected to have a Material Adverse Effect, except as set forth in or
contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(r)
No Violations or Defaults
. Neither the Company nor any Significant Subsidiary is (i) in violation of its operating agreement or its charter, bylaws or other organizational instrument or document; (ii) in default in the performance
or observance of any material obligation, agreement, covenant or condition contained in any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to
which it is a party or bound or to which its property is subject; or (iii) materially in violation of any law, rule, regulation, judgment, order or decree applicable to the Company or any of its Significant Subsidiaries or any court, regulatory
body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or such subsidiary or any of its properties, as applicable.
5
(s)
Licenses and Permits
. The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by the appropriate federal, state or foreign regulatory authorities necessary to conduct their respective businesses, and neither the Company nor any such subsidiary has received any notice of
proceedings relating to the revocation or modification of any such license, certificate, permit or authorization which, singly or in the aggregate, if the failure to possess or the subject of an unfavorable decision, ruling or finding, would have a
Material Adverse Effect, except as set forth in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(t)
No Unlawful Payments; FCPA
. Neither the Company nor any of its subsidiaries, nor, to the knowledge of the Company, any
director, officer, agent, employee or other person associated with or acting on behalf of the Company or any of its subsidiaries, has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense
relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii) violated or is in violation of any provision of the U.S. Foreign
Corrupt Practices Act of 1977; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment.
(u)
Anti-Money Laundering Laws
. The operations of the Company and its subsidiaries are and have been conducted at all times in
compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and
any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company or its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(v)
OFAC
. Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, agent,
employee or affiliate of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not directly or
indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently
subject to any U.S. sanctions administered by OFAC.
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.
4.
Further Agreements
. The Company covenants and agrees with each Underwriter that:
(a)
Registration Statement; Final Prospectus
. 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 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;
provided
that nothing in this Section 4(a) 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. 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 reasonably 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), (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 for any supplement to the Final Prospectus or for any additional information, (4) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order
or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
6
(b)
Final Term Sheet
. The Company shall prepare a final term sheet, containing
solely a description of the Securities, substantially in the form of
Annex I
hereto, a copy of which shall be furnished to the Representatives for their review prior to filing. The Company will not file such term sheet without the approval of
the Representatives, which approval shall not be unreasonably withheld, conditioned or delayed. Upon receipt of such approval of the Representatives, the Company shall file such term sheet pursuant to Rule 433(d) 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).
(c)
No Free Writing Prospectus
. 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), other than the final term sheet prepared and
filed pursuant to Section 4(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 4(b)).
(d)
Amendments and
Supplements
. If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including circumstances when such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the
Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or
if it shall be necessary to amend the Registration Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company promptly will (1) notify the Representatives of such
event, (2) prepare and file with the Commission, subject to the first sentence of paragraph (a) of this Section 4, 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)
Earnings Releases
. 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.
(f)
Copies; Printing
. 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)
Blue Sky; FINRA
. The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of
such jurisdictions as the Representatives may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of FINRA in connection with its review of the offering; provided
that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering
or sale of the Securities, in any jurisdiction where it is not now so subject.
7
(h)
Company Lock-Up Period
. The Company will not, without the prior written consent of the
Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Company, directly or indirectly, or announce the offering of, any long-term debt securities issued or guaranteed by the Company or preferred stock (other than the Securities), prior to the
Closing Date.
(i)
No Market Manipulation
. 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.
5.
Conditions of the Obligations of the Underwriters
. The obligation of each Underwriter to purchase the Securities on the
Closing Date is subject to the performance by the Company of its covenants and other obligations hereunder and to the following additional conditions:
(a)
Filings; No Stop Order
. 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 4(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d), 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)
Company Counsel Opinion
. Kirkland & Ellis LLP, special counsel for
the Company, shall have furnished to the Representatives its opinion and negative assurance letter, dated the Closing Date in substantially the form set forth in Schedule 3. In rendering such opinion, Kirkland & Ellis LLP may rely, as to
matters governed by the laws of the Commonwealth of Pennsylvania, upon the opinion of counsel for the Company referred to in Section 5(c).
(c)
Legal Counsel Opinion
. Ballard Spahr LLP, Pennsylvania counsel for the Company, shall have furnished to the Representatives
its opinion, dated the Closing Date and addressed to the Representatives in substantially the form set forth in Schedule 4.
(d)
Underwriter Counsel Opinion
. The Representatives shall have received from Winston & Strawn LLP, counsel for the
Underwriters, such opinion or opinions, including a negative assurance statement, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, 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. In rendering such opinion, Winston & Strawn LLP may rely, as to matters governed by the laws of the Commonwealth of Pennsylvania, upon the opinion of counsel for the Company referred to in Section 5(c).
(e)
Officers’ Certificate
. The Company shall have furnished to the Representatives a certificate of the Company, signed by
two officers, who shall be any of the chief executive officer, the principal financial officer, the principal accounting officer, the chief strategy officer or the treasurer 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 on and as of the Closing Date,
with the same effect as if made on the Closing Date and the Company has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
8
(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 Company’s 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 change in the financial condition, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f)
Comfort Letters
. 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.
(g)
No Changes
. 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 (f) of this Section 4 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).
(h)
No Ratings Downgrade
. During the period from the Execution Time to and including the Closing Date, (i) there shall not have
occurred a downgrading in the rating assigned to any of the Company’s debt securities or commercial paper by any “nationally recognized statistical rating agency,” as that term is defined by the Commission in Section 3(a)(62) of
the Exchange Act, and (ii) no such securities rating agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities.
(i)
Other Deliveries
. Prior to the Closing Date, the Company shall have furnished to the Representatives such further
information, certificates and documents as the Representatives may reasonably request.
If any of the conditions specified in this
Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice
of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
6.
Indemnification
and Contribution
.
(a)
Indemnification of the Underwriters
. The Company agrees to indemnify and hold harmless each Underwriter,
each of their respective affiliates, directors and officers and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, from and 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
9
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) or any electronic roadshow or other written communication
that constitutes an offer to sell or solicitation of an offer to buy the Shares provided to investors by, or with the approval of, the Company, 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)
Indemnification of the
Company
. 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 Section 15 of the Act or
Section 20 of 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, as applicable, furnished to the Company by or on
behalf of such Underwriter through the Representatives specifically for inclusion in the documents referred to in Section 6(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) the fifth, sixth, seventh, eighth, eleventh and twelfth paragraphs under the heading “Underwriting” 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)
Indemnification Procedures
. Promptly after receipt by an indemnified party under this Section 6
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 6, notify the indemnifying party in writing of the commencement thereof; but
the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by
the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or
(b) above. The indemnifying party shall be entitled to appoint counsel of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought (in
which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party or parties except as set forth below);
provided
,
however
, that such counsel shall
be reasonably satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there
may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, (iii) the indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the
indemnifying party. An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and does not include a statement as to, or admission of, fault, culpability or failure to act on behalf of any indemnified
party. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which consent will not be unreasonably withheld.
10
(d)
Contribution
. In the event that the indemnity provided in paragraph (a) or
(b) of this Section 6 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 6, although applicable in accordance
with its terms (including the requirements of Section 6(c) above), the Company and each Underwriter severally agrees 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 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 Underwriter’s obligation to contribute to Losses hereunder shall be several and not joint. If the allocation provided by
the immediately preceding sentence is unavailable for any reason, the 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 (i) the Company shall be deemed to be
equal to the total net proceeds from the offering (before deducting expenses) received by it and (ii) 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 6, 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).
7. [Reserved]
8.
Termination
. This Agreement may be terminated in the absolute discretion of the Representatives by notice to the Company, if after
the execution and delivery of this Agreement and prior to the Closing Date (A) at any time prior to such time (i) trading in the common stock of the Company 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 exchanges, (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, (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, (v) downgrading shall have occurred in the rating accorded the Company’s debt securities by any “nationally recognized statistical rating organization,”
as that term is defined by the Commission for purposes of Section 3(a)(62) of the Exchange Act or (vi) such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its
rating of any of the Company’s debt securities 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
9.
Defaulting Underwriter
.
(a) 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 the Securities set forth opposite their names in Schedule 1 hereto bears to the aggregate principal amount of the 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 the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate principal amount of the Securities set forth in Schedule 1 hereto, the remaining Underwriters shall have the right to purchase all, but shall not be under any obligation to purchase any, of the
Securities the defaulting Underwriter failed to purchase.
(b) If the non-defaulting Underwriters are not obligated to and do not purchase
all the Securities the defaulting Underwriter failed to purchase, the Company shall be entitled to a period of 36 hours within which to procure other persons reasonably satisfactory to the non-defaulting Underwriters to purchase such Shares and if
arrangements for the purchase of such Shares by other persons selected by the Company and reasonably satisfactory to the Representative are not made within 36 hours after such default, this Agreement will terminate without liability to any
non-defaulting Underwriter or the Company unless the Company elects to reduce the principal amount of the Securities to be offered by the amount of the Securities that the defaulting Underwriter failed to purchase, in which event the non-defaulting
Underwriters will have the right to purchase all, but shall not be under any obligation to purchase any, of such reduced principal amount of the Securities. In the event the non-defaulting Underwriters decline to purchase all of such reduced
principal amount of the Securities, this Agreement will terminate without any liability on the part of the non-defaulting Underwriters or the Company.
(c) 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 non-defaulting Underwriter for damages occasioned by its default hereunder.
10.
Payment of Expenses
.
(a) Whether or not the transactions contemplated by the Transaction Agreements are consummated or this Agreement is terminated, the Company
will pay or cause to be paid all costs and expenses incident to the performance of its obligations under the Transaction Agreements, including without limitation, (i) the costs incident to the authorization, issuance, sale, preparation and
delivery of the Securities and any taxes payable in that connection; (ii) the costs incident to the preparation, printing and filing under the Act of the Registration Statement, the Preliminary Prospectus, any Issuer Free Writing Prospectus,
the Disclosure Package and the Final Prospectus (including all exhibits, amendments and supplements thereto) and the distribution thereof; (iii) the costs of reproducing and distributing each of the Transaction Agreements and all other
agreements or documents printed and delivered in connection with the offering of the Securities; (iv) the fees and expenses incurred in connection with the registration or qualification of the Securities under the state or foreign securities or
blue sky laws of such jurisdictions as the Representatives may designate and the preparation, printing and distribution of a Blue Sky Memorandum (including the related reasonable fees and expenses of counsel for the Underwriters); (v) all
expenses and application fees incurred in connection with any filing with, and clearance of the offering by, FINRA (including reasonable fees and expenses of counsel to the Underwriters); (vi) all expenses incurred by the Company or the
Underwriters in connection with any “road show” presentation to potential investors; (vii) the fees and expenses of any rating agencies rating the Securities; and (x) any fees and expenses of the Trustee. Notwithstanding the
foregoing, it is understood and agreed that, except as expressly provided in Sections 6 and 10(b), the Underwriters will pay all of their own costs and expenses, including, without limitation, fees and disbursements of their counsel (other than for
blue sky and FINRA matters provided above in this Section 10(a)), and transfer taxes on the resale by them of any of the Securities.
(b) If (i) this Agreement is terminated pursuant to Section 8, (ii) the Company for any reason fails to tender the Securities,
if any, for delivery to the Underwriters or (iii) the Underwriters decline to purchase the Securities for any reason permitted under this Agreement, the Company agrees to reimburse the Underwriters for all out-of-pocket costs and expenses
(including the fees and expenses of their counsel) reasonably incurred by the Underwriters in connection with the Transaction Agreements and the transactions contemplated thereby, and the Company shall not in any event be liable to any of the
Underwriters for any other amount, including, without limitation, damages on account of loss of anticipated profits from the sale of the Securities.
12
11.
Representations and Warranties 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 6 hereof, and will survive delivery of and payment for the Securities. The provisions of Sections 6 and 10 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 (i) the Representatives, will be mailed, delivered or telefaxed to Barclays Capital Inc., 745 Seventh Avenue, New York, New York 10019, Attention: Syndicate Registration, and Goldman, Sachs &
Co., Prospectus Department, 200 West Street, New York, New York 10282 (telephone: (866) 471-2526; fax: (212) 902-9316; email: prospectus-ny@ny.email.gs.com), and (ii) 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: Senior Vice President and Treasurer (fax no.:
(312) 394-4082) and
confirmed to the General
Counsel (fax no.:
(312) 394-5443).
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 6 hereof, and no other person will have any right or obligation
hereunder.
14.
Research Analyst Independence
. The Company and the Underwriters acknowledge that the Underwriters’ research
analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies, and that such Underwriters’ research analysts may hold views and
make statements or investment recommendations and/or publish research reports with respect to the Company and/or the offering of the Securities that differ from the views of their respective investment banking divisions. The Company hereby waives
and releases, to the fullest extent permitted by law, any claims that the Company may have against the Underwriters with respect to any conflict of interest that may arise from the fact that the views expressed by their independent research analysts
and research departments may be different from or inconsistent with the views or advice communicated to the Company by such Underwriters’ investment banking divisions. The Company acknowledges that each of the Underwriters is a full service
securities firm and as such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt securities of the Company.
15.
Patriot Act Acknowledgment
. The parties hereto acknowledge that in accordance with the requirements of the USA Patriot Act (Title
III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and
address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.
16.
No Fiduciary Duty
. The Company hereby acknowledges that (a) the purchase and sale of the Securities pursuant to this Agreement
is an arm’s-length commercial transaction between the Company, on the one hand, and the Underwriters and any affiliate thereof through which it may be acting, on the other, (b) the Underwriters are acting as principals and not as agents or
fiduciaries of the Company and (c) the Company’s 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.
13
17.
Applicable Law
. This Agreement will be governed by and construed in accordance with
the laws of the State of New York applicable to contracts made and to be performed within the State of New York.
18.
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.
19.
Headings
. The section headings used herein are for convenience only and shall not affect the construction hereof.
20.
Certain Defined Terms
. 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.
“Applicable Time of Sale” shall mean 6:00 P.M. Eastern Daylight Time on June 8, 2015.
“Base Prospectus” shall mean the base prospectus referred to in paragraph 1(a) above contained in the Registration
Statement at the Effective Time.
“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 4(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 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.
“FINRA” shall mean The Financial Industry Regulatory Authority.
14
“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.
“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 becomes effective prior to the Closing Date, shall also mean such registration statement as so amended, as the case may be.
“Rule 158,” “Rule 163,” “Rule 164,” “Rule 172,” “Rule 405,”
“Rule 415,” “Rule 424,” “Rule 430B,” “Rule 433,” “Rule 456,” “Rule 457,” “Rule 462” and any subsections thereof, refer to such rules and any subsections
thereof 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.
“Significant Subsidiary” shall have the meaning ascribed to such term in Regulation S-X under the Act.
[signature page follows]
15
|
|
|
|
|
Very truly yours,
|
|
|
|
EXELON CORPORATION
|
|
|
|
|
By:
|
|
/s/ Kevin Garrido
|
|
|
|
Name: Kevin Garrido
|
|
|
|
Title: Assistant Treasurer
|
|
|
|
|
|
Accepted: June 8, 2015
|
|
|
|
BARCLAYS CAPITAL INC.
|
|
GOLDMAN, SACHS & CO.
|
|
|
|
Acting on behalf of itself and the several Underwriters listed in Schedule 1 hereto.
|
|
|
|
BARCLAYS CAPITAL INC.
|
|
|
|
|
By:
|
|
/s/ Robert A. Stowe
|
|
Name:
|
|
Robert A. Stowe
|
|
Title:
|
|
Managing Director
|
|
|
|
GOLDMAN, SACHS & CO.
|
|
|
|
|
By:
|
|
/s/ Adam Greene
|
|
Name:
|
|
Adam Greene
|
|
Title:
|
|
Vice President
|
Schedule 1
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Underwriter
|
|
Principal
Amount of 2017
Notes to be
Purchased
|
|
|
Principal
Amount of 2020
Notes to be
Purchased
|
|
|
Principal
Amount of 2025
Notes to be
Purchased
|
|
|
Principal
Amount of 2035
Notes to be
Purchased
|
|
|
Principal
Amount of 2045
Notes to be
Purchased
|
|
|
Barclays Capital Inc.
|
|
$
|
110,000,000
|
|
|
$
|
180,000,000
|
|
|
$
|
250,000,000
|
|
|
$
|
100,000,000
|
|
|
$
|
200,000,000
|
|
|
Goldman, Sachs & Co.
|
|
|
110,000,000
|
|
|
|
180,000,000
|
|
|
|
250,000,000
|
|
|
|
100,000,000
|
|
|
|
200,000,000
|
|
|
Mizuho Securities USA Inc.
|
|
|
50,050,000
|
|
|
|
81,900,000
|
|
|
|
113,750,000
|
|
|
|
45,500,000
|
|
|
|
91,000,000
|
|
|
BNP Paribas Securities Corp.
|
|
|
34,650,000
|
|
|
|
56,700,000
|
|
|
|
78,750,000
|
|
|
|
31,500,000
|
|
|
|
63,000,000
|
|
|
Mitsubishi UFJ Securities (USA), Inc.
|
|
|
34,650,000
|
|
|
|
56,700,000
|
|
|
|
78,750,000
|
|
|
|
31,500,000
|
|
|
|
63,000,000
|
|
|
Scotia Capital (USA) Inc.
|
|
|
34,650,000
|
|
|
|
56,700,000
|
|
|
|
78,750,000
|
|
|
|
31,500,000
|
|
|
|
63,000,000
|
|
|
Citigroup Global Markets Inc.
|
|
|
16,005,000
|
|
|
|
26,190,000
|
|
|
|
36,375,000
|
|
|
|
14,550,000
|
|
|
|
29,100,000
|
|
|
Credit Suisse Securities (USA) LLC
|
|
|
16,005,000
|
|
|
|
26,190,000
|
|
|
|
36,375,000
|
|
|
|
14,550,000
|
|
|
|
29,100,000
|
|
|
J.P. Morgan Securities LLC
|
|
|
16,005,000
|
|
|
|
26,190,000
|
|
|
|
36,375,000
|
|
|
|
14,550,000
|
|
|
|
29,100,000
|
|
|
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
|
|
|
16,005,000
|
|
|
|
26,190,000
|
|
|
|
36,375,000
|
|
|
|
14,550,000
|
|
|
|
29,100,000
|
|
|
Wells Fargo Securities, LLC
|
|
|
16,005,000
|
|
|
|
26,190,000
|
|
|
|
36,375,000
|
|
|
|
14,550,000
|
|
|
|
29,100,000
|
|
|
RBC Capital Markets, LLC
|
|
|
15,400,000
|
|
|
|
25,200,000
|
|
|
|
35,000,000
|
|
|
|
14,000,000
|
|
|
|
28,000,000
|
|
|
U.S. Bancorp Investments, Inc.
|
|
|
15,400,000
|
|
|
|
25,200,000
|
|
|
|
35,000,000
|
|
|
|
14,000,000
|
|
|
|
28,000,000
|
|
|
BNY Mellon Capital Markets, LLC
|
|
|
6,600,000
|
|
|
|
10,800,000
|
|
|
|
15,000,000
|
|
|
|
6,000,000
|
|
|
|
12,000,000
|
|
|
CIBC World Markets Corp.
|
|
|
6,600,000
|
|
|
|
10,800,000
|
|
|
|
15,000,000
|
|
|
|
6,000,000
|
|
|
|
12,000,000
|
|
|
Credit Agricole Securities (USA) Inc.
|
|
|
6,600,000
|
|
|
|
10,800,000
|
|
|
|
15,000,000
|
|
|
|
6,000,000
|
|
|
|
12,000,000
|
|
|
KeyBanc Capital Markets Inc.
|
|
|
6,600,000
|
|
|
|
10,800,000
|
|
|
|
15,000,000
|
|
|
|
6,000,000
|
|
|
|
12,000,000
|
|
|
PNC Capital Markets LLC
|
|
|
6,600,000
|
|
|
|
10,800,000
|
|
|
|
15,000,000
|
|
|
|
6,000,000
|
|
|
|
12,000,000
|
|
|
SMBC Nikko Securities America, Inc.
|
|
|
6,600,000
|
|
|
|
10,800,000
|
|
|
|
15,000,000
|
|
|
|
6,000,000
|
|
|
|
12,000,000
|
|
|
TD Securities (USA) LLC
|
|
|
6,600,000
|
|
|
|
10,800,000
|
|
|
|
15,000,000
|
|
|
|
6,000,000
|
|
|
|
12,000,000
|
|
|
The Williams Capital Group, L.P.
|
|
|
6,600,000
|
|
|
|
10,800,000
|
|
|
|
15,000,000
|
|
|
|
6,000,000
|
|
|
|
12,000,000
|
|
|
Apto Partners, LLC
|
|
|
2,063,000
|
|
|
|
3,375,000
|
|
|
|
4,687,000
|
|
|
|
1,875,000
|
|
|
|
3,750,000
|
|
|
Blaylock Beal Van, LLC
|
|
|
2,063,000
|
|
|
|
3,375,000
|
|
|
|
4,687,000
|
|
|
|
1,875,000
|
|
|
|
3,750,000
|
|
|
Loop Capital Markets LLC
|
|
|
2,063,000
|
|
|
|
3,375,000
|
|
|
|
4,687,000
|
|
|
|
1,875,000
|
|
|
|
3,750,000
|
|
|
Mischler Financial Group, Inc.
|
|
|
2,062,000
|
|
|
|
3,375,000
|
|
|
|
4,688,000
|
|
|
|
1,875,000
|
|
|
|
3,750,000
|
|
|
Siebert Brandford Shank & Co., L.L.C.
|
|
|
2,062,000
|
|
|
|
3,375,000
|
|
|
|
4,688,000
|
|
|
|
1,875,000
|
|
|
|
3,750,000
|
|
|
The Huntington Investment Company
|
|
|
2,062,000
|
|
|
|
3,375,000
|
|
|
|
4,688,000
|
|
|
|
1,875,000
|
|
|
|
3,750,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
550,000,000
|
|
|
$
|
900,000,000
|
|
|
$
|
1,250,000,000
|
|
|
$
|
500,000,000
|
|
|
$
|
1,000,000,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Schedule 1-1
Schedule 2
Underwriting Agreement, dated June 8, 2015
Registration
Statement No. 333-196220-03
Representatives: Barclays Capital Inc. and Goldman, Sachs & Co.
|
A.
|
Title, Purchase Price and Description of 2017 Notes:
|
Title: 1.550% Notes Due 2017
Principal amount: $550,000,000
Price to public: 99.932% ($549,626,000)
Underwriting discount: 0.300% ($1,650,000)
Purchase price: 99.632 % ($547,976,000), plus accrued interest, if any
Sinking fund provisions: None
Redemption provisions: As set forth in the Final Prospectus
Other provisions: As set forth in the Final Prospectus
|
B.
|
Title, Purchase Price and Description of 2020 Notes:
|
Title: 2.850% Notes Due 2020
Principal amount: $900,000,000
Price to public: 99.981% ($899,829,000)
Underwriting discount: 0.600% ($5,400,000)
Purchase price: 99.381% ($894,429,000), plus accrued interest, if any
Sinking fund provisions: None
Redemption provisions: As set forth in the Final Prospectus
Other provisions: As set forth in the Final Prospectus
|
C.
|
Title, Purchase Price and Description of 2025 Notes:
|
Title: 3.950% Notes Due 2025
Principal amount: $1,250,000,000
Price to public: 99.795% ($1,247,437,500)
Underwriting discount: 0.650% ($8,125,000)
Purchase price: 99.145% ($1,239,312,500), plus accrued interest, if any
Schedule 2-1
Sinking fund provisions: None
Redemption provisions: As set forth in the Final Prospectus
Other provisions: As set forth in the Final Prospectus
|
D.
|
Title, Purchase Price and Description of 2035 Notes:
|
Title: 4.950% Notes Due 2035
Principal amount: $500,000,000
Price to public: 99.722% ($498,610,000)
Underwriting discount: 0.875% ($4,375,000)
Purchase price: 98.847% ($494,235,000), plus accrued interest, if any
Sinking fund provisions: None
Redemption provisions: As set forth in the Final Prospectus
Other provisions: As set forth in the Final Prospectus
|
E.
|
Title, Purchase Price and Description of 2045 Notes:
|
Title: 5.100% Notes Due 2045
Principal amount: $1,000,000,000
Price to public: 99.664% ($996,640,000)
Underwriting discount: 0.875% ($8,750,000)
Purchase price: 98.789% ($987,890,000), plus accrued interest, if any
Sinking fund provisions: None
Redemption provisions: As set forth in the Final Prospectus
Other provisions: As set forth in the Final Prospectus
|
F.
|
Other Provisions Relating to the Securities
|
Closing Date, Time and Location: June 11,
2015 at approximately 10:00 A.M. EDT
Kirkland & Ellis LLP
601 Lexington Avenue
New York,
New York 10022
Type of Offering: Non-delayed
Applicable Time of Sale of the Securities pursuant to Section 1(d) of the Underwriting Agreement: 6:00 P.M. EDT, June 8, 2015
Schedule 2-2
Schedule 3
FORM OF COMPANY COUNSEL OPINION
|
1.
|
To the extent execution and delivery are matters of the laws of the State of New York, the Underwriting Agreement has been duly executed and delivered by the Company.
|
|
2.
|
To the extent execution and delivery are matters of the laws of the State of New York, the Indenture has been duly executed and delivered and, assuming due authorization, execution and delivery under laws other than the
laws of the State of New York, is a valid instrument, legally binding on the Company and enforceable against the Company in accordance with its terms.
|
|
3.
|
To the extent execution and delivery are matters of the laws of the State of New York, the Securities have been duly executed and delivered by the Company and, assuming due authorization, execution and delivery by the
Company under laws other than the laws of the State of New York, and when paid for in accordance with the Indenture and executed and authenticated by the Trustee pursuant to the Indenture, will constitute valid and legally binding obligations of the
Company enforceable against the Company in accordance with their terms.
|
|
4.
|
The issuance and sale of the Securities and the execution and delivery and the performance of obligations contemplated under the Transaction Documents, do not and will not (i) result in any breach of any of the
terms and provisions of, or constitute a default (or an event which with notice or lapse of time, or both, would constitute a default) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of
the Company or any of its subsidiaries pursuant to any Specified Contracts, it being expressly understood that in each case we express no opinion as to compliance with any financial covenant or test or cross-default provision in any Specified
Contract, (ii) violate or conflict with any judgment, decree or order identified to us by the Company (we note that none were identified) of any court or any judicial, regulatory or other legal or governmental agency or body having jurisdiction
over the Company or any of its subsidiaries or any of their properties and (iii) violate any Specified Law, except in each of the cases of clauses (i) and (ii), for any such conflict, breach, violation or default which has been waived by
the party or parties with power to waive such conflict, breach, violation or default.
|
|
5.
|
No consent, approval, authorization or order of, or qualification with, any governmental body or agency under any Specified Law is required to be obtained by the Company with respect to the issuance and sale of the
Securities and the performance by the Company of its obligations under the Transaction Documents.
|
|
6.
|
The Registration Statement, as of its effective date with respect to the Securities (except for the financial statements, and any notes thereto, and supporting schedules included or incorporated by reference therein, or
excluded therefrom, or any statements made in the exhibits thereto, as to which we express no view) and together with the Time of Sale Information as of 6:00 P.M. Eastern Daylight Time on June 8, 2015 and the Prospectus, as of its date,
appeared on their face to be appropriately responsive in all material respects to the requirements as to form of the Securities Act and the applicable rules and regulations thereunder and, except to the extent expressly stated in paragraph 7
immediately below, we do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Time of Sale Information, the Registration Statement or the Prospectus.
|
|
7.
|
The statements under the captions “Description of the Notes” and “Material United States Federal Income Tax Considerations” in the Time of Sale Information and the Prospectus, insofar as such
statements constitute a summary of the legal matters or documents referred to therein, are accurate in all material respects.
|
|
8.
|
The Company is not, and immediately after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described under “Use of Proceeds” in the Time of Sale
Information and the Prospectus will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
|
Schedule 3-1
Based upon agreed upon procedures, such counsel can advise you that nothing has come to our
attention that has caused us to conclude that (a) the Registration Statement, as of June 8, 2015, 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, (b) the Time of Sale Information as of 6:00 P.M. Eastern Daylight Time on June 8, 2015, 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, or (c) the Prospectus as of the date of the Final Prospectus Supplement and the date hereof, 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.
Schedule 3-2
Schedule 4
FORM OF LOCAL COUNSEL OPINION
|
1.
|
The Company is a corporation duly incorporated and presently subsisting under the laws of the Commonwealth of Pennsylvania and duly authorized to exercise all the powers recited in its charter or certificate of
incorporation, and to transact business in the Commonwealth of Pennsylvania.
|
|
2.
|
The Company has all requisite corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Final Prospectus.
|
|
3.
|
The Agreement has been duly authorized and, to the extent execution and delivery are a matter of the laws of the Commonwealth of Pennsylvania, executed and delivered by the Company.
|
|
4.
|
The Indenture has been duly authorized and, to the extent execution and delivery are matters of the laws of the Commonwealth of Pennsylvania, duly executed and delivered by the Company.
|
|
5.
|
The Securities have been duly authorized and, to the extent execution and delivery are matters of the laws of the Commonwealth of Pennsylvania, duly executed and delivered by the Company.
|
|
6.
|
The execution and delivery of the Agreement by the Company and the performance of the Company’s obligations thereunder, and the issuance and sale of the Securities to you, do not and will not conflict with or
violate any of the terms or provisions of the Articles of Incorporation or By-Laws of the Company.
|
|
7.
|
No consent, approval, authorization, or order of, or qualification with, any state commission or regulatory authority or of any other governmental body or agency of the Commonwealth of Pennsylvania is required to be
obtained by the Company with respect to the issuance and sale of the Securities and the performance by the Company of its obligations under the Transaction Agreements.
|
|
8.
|
Our firm is not representing the Company in any pending litigation in which it is a named defendant, or in any litigation that is overtly threatened in writing against it by a potential claimant, that challenges the
validity or enforceability of, or seeks to enjoin the performance of, the transactions contemplated by the Transaction Agreements, and to our knowledge, there are no pending legal proceedings in the Commonwealth of Pennsylvania to which the Company
or any subsidiary is a party which is required to be set forth pursuant to Item 103 of Regulation S-K promulgated under the Securities Act in the documents incorporated by reference in the Disclosure Package and the Final Prospectus other than
those referred to in such documents.
|
Schedule 4-1
ANNEX I
Exelon Corporation
Pricing Term Sheet
$550,000,000 1.550% Notes Due 2017
|
|
|
|
|
Issuer:
|
|
Exelon Corporation
|
|
Expected Ratings:
|
|
—
|
|
Principal Amount:
|
|
$550,000,000
|
|
Security Type:
|
|
Notes
|
|
Trade Date:
|
|
June 8, 2015
|
|
Settlement Date:
|
|
June 11, 2015 (T+3)
|
|
Coupon:
|
|
1.550%
|
|
Maturity Date:
|
|
June 9, 2017
|
|
Interest Payment Dates:
|
|
Semi-annually on June 9 and December 9, commencing December 9, 2015
|
|
Benchmark Treasury:
|
|
0.625% due May 31, 2017
|
|
Benchmark Treasury Yield:
|
|
0.685%
|
|
Spread to Benchmark Treasury:
|
|
+90 basis points
|
|
Yield to Maturity:
|
|
1.585%
|
|
Offering Price:
|
|
99.932% of Principal Amount
|
|
Optional Redemption:
|
|
At any time, at a redemption price equal to the greater of (i) 100% of the principal amount of the notes then outstanding to be redeemed and (ii) the sum of the present values of the remaining scheduled payments of principal and
interest on the notes (exclusive of interest accrued to the redemption date) being redeemed to maturity, at a discount rate of Treasury plus 15 basis points, plus accrued and unpaid interest to the redemption date
|
|
CUSIP / ISIN:
|
|
30161N AG6 / US30161NAG60
|
|
Joint Book-Running Managers:
|
|
Barclays Capital Inc.
Goldman, Sachs &
Co.
BNP Paribas Securities Corp.
Mitsubishi UFJ Securities
(USA), Inc.
Mizuho Securities USA Inc.
Scotia Capital (USA)
Inc.
|
|
Senior Co-Managers:
|
|
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Citigroup Global Markets Inc.
Credit Suisse Securities (USA)
LLC
J.P. Morgan Securities LLC
RBC Capital Markets, LLC
U.S. Bancorp Investments, Inc.
Wells Fargo Securities,
LLC
|
|
Co-Managers:
|
|
Apto Partners, LLC
Blaylock Beal Van, LLC
BNY Mellon Capital Markets, LLC
CIBC World Markets Corp.
Credit Agricole Securities (USA) Inc.
KeyBanc Capital Markets
Inc.
Loop Capital Markets LLC
Mischler Financial Group,
Inc.
PNC Capital Markets LLC
Siebert Brandford Shank
& Co., L.L.C.
SMBC Nikko Securities America, Inc.
TD
Securities (USA) LLC
The Huntington Investment Company
The
Williams Capital Group, L.P.
|
Annex I-1
$900,000,000 2.850% Notes Due 2020
|
|
|
|
|
Issuer:
|
|
Exelon Corporation
|
|
Expected Ratings:
|
|
—
|
|
Principal Amount:
|
|
$900,000,000
|
|
Security Type:
|
|
Notes
|
|
Trade Date:
|
|
June 8, 2015
|
|
Settlement Date:
|
|
June 11, 2015 (T+3)
|
|
Coupon:
|
|
2.850%
|
|
Maturity Date:
|
|
June 15, 2020
|
|
Interest Payment Dates:
|
|
Semi-annually on June 15 and December 15, commencing December 15, 2015
|
|
Benchmark Treasury:
|
|
1.50% due May 31, 2020
|
|
Benchmark Treasury Yield:
|
|
1.704%
|
|
Spread to Benchmark Treasury:
|
|
+115 basis points
|
|
Yield to Maturity:
|
|
2.854%
|
|
Offering Price:
|
|
99.981% of Principal Amount
|
|
Optional Redemption:
|
|
At any time prior to May 15, 2020 (one month prior to the maturity date of the 2020 Notes), at a redemption price equal to the greater of (i) 100% of the principal amount of the notes then outstanding to be redeemed and (ii) the sum
of the present values of the remaining scheduled payments of principal and interest on the notes (exclusive of interest accrued to the redemption date) being redeemed to May 15, 2020, at a discount rate of Treasury plus 20 basis points, plus accrued
and unpaid interest to the redemption date; and on or after May 15, 2020 (one month prior to the maturity date of the 2020 Notes), at 100% of the principal amount, plus accrued and unpaid interest to the redemption date
|
|
CUSIP / ISIN:
|
|
30161N AH4 / US30161NAH44
|
|
Joint Book-Running Managers:
|
|
Barclays Capital Inc.
Goldman, Sachs &
Co.
BNP Paribas Securities Corp.
Mitsubishi UFJ Securities
(USA), Inc.
Mizuho Securities USA Inc.
Scotia Capital (USA)
Inc.
|
|
Senior Co-Managers:
|
|
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Citigroup Global Markets Inc.
Credit Suisse Securities (USA)
LLC
J.P. Morgan Securities LLC
RBC Capital Markets, LLC
U.S. Bancorp Investments, Inc.
Wells Fargo Securities,
LLC
|
|
Co-Managers:
|
|
Apto Partners, LLC
Blaylock Beal Van, LLC
BNY Mellon Capital Markets, LLC
CIBC World Markets Corp.
Credit Agricole Securities (USA) Inc.
KeyBanc Capital Markets
Inc.
Loop Capital Markets LLC
Mischler Financial Group,
Inc.
PNC Capital Markets LLC
Siebert Brandford Shank
& Co., L.L.C.
SMBC Nikko Securities America, Inc.
|
Annex I-3
|
|
|
|
|
|
|
TD Securities (USA) LLC
The Huntington
Investment Company
The Williams Capital Group, L.P.
|
Annex I-4
$1,250,000,000 3.950% Notes Due 2025
|
|
|
|
|
Issuer:
|
|
Exelon Corporation
|
|
Expected Ratings:
|
|
—
|
|
Principal Amount:
|
|
$1,250,000,000
|
|
Security Type:
|
|
Notes
|
|
Trade Date:
|
|
June 8, 2015
|
|
Settlement Date:
|
|
June 11, 2015 (T+3)
|
|
Coupon:
|
|
3.950%
|
|
Maturity Date:
|
|
June 15, 2025
|
|
Interest Payment Dates:
|
|
Semi-annually on June 15 and December 15, commencing December 15, 2015
|
|
Benchmark Treasury:
|
|
2.125% due May 15, 2025
|
|
Benchmark Treasury Yield:
|
|
2.375%
|
|
Spread to Benchmark Treasury:
|
|
+160 basis points
|
|
Yield to Maturity:
|
|
3.975%
|
|
Offering Price:
|
|
99.795% of Principal Amount
|
|
Special Mandatory Redemption:
|
|
Upon the first to occur of either (i) December 31, 2015, if the merger between Exelon Corporation and Pepco Holdings, Inc. (the “Merger”) is not consummated on or prior to such date, or (ii) the date on which the agreement
relating to the Merger is terminated, in whole, at a price equal to 101% of the aggregate principal amount of the notes then outstanding, plus accrued and unpaid interest to the redemption date
|
|
Optional Redemption:
|
|
If, in Exelon Corporation’s judgment, the Merger will not be consummated on or prior to December 31, 2015, in whole, at a redemption price equal to 101% of the aggregate principal amount of the notes then outstanding, plus
accrued and unpaid interest to the redemption date; and at any time prior to March 15, 2025 (three months prior to the maturity date of the 2025 Notes), at a redemption price equal to the greater of (i) 100% of the principal amount of the notes then
outstanding to be redeemed and (ii) the sum of the present values of the remaining scheduled payments of principal and interest on the notes (exclusive of interest accrued to the redemption date) being redeemed to March 15, 2025, at a discount rate
of Treasury plus 25 basis points, plus accrued and unpaid interest to the redemption date; and on or after March 15, 2025 (three months prior to the maturity date of the 2025 Notes), at 100% of the principal amount plus accrued and unpaid interest
to the redemption date
|
|
CUSIP / ISIN:
|
|
30161N AJ0 / US30161NAJ00
|
|
Joint Book-Running Managers:
|
|
Barclays Capital Inc.
Goldman, Sachs &
Co.
BNP Paribas Securities Corp.
Mitsubishi UFJ Securities
(USA), Inc.
Mizuho Securities USA Inc.
Scotia Capital (USA)
Inc.
|
|
Senior Co-Managers:
|
|
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Citigroup Global Markets Inc.
Credit Suisse Securities (USA)
LLC
J.P. Morgan Securities LLC
RBC Capital Markets, LLC
U.S. Bancorp Investments, Inc.
Wells Fargo Securities,
LLC
|
Annex I-5
|
|
|
|
|
Co-Managers:
|
|
Apto Partners, LLC
|
|
|
|
Blaylock Beal Van, LLC
BNY Mellon Capital
Markets, LLC
CIBC World Markets Corp.
Credit Agricole
Securities (USA) Inc.
KeyBanc Capital Markets Inc.
Loop
Capital Markets LLC
Mischler Financial Group, Inc.
PNC
Capital Markets LLC
Siebert Brandford Shank & Co., L.L.C.
SMBC Nikko Securities America, Inc.
TD Securities (USA) LLC
The Huntington Investment Company
The Williams Capital Group,
L.P.
|
Annex I-6
$500,000,000 4.950% Notes Due 2035
|
|
|
|
|
Issuer:
|
|
Exelon Corporation
|
|
Expected Ratings:
|
|
—
|
|
Principal Amount:
|
|
$500,000,000
|
|
Security Type:
|
|
Notes
|
|
Trade Date:
|
|
June 8, 2015
|
|
Settlement Date:
|
|
June 11, 2015 (T+3)
|
|
Coupon:
|
|
4.950%
|
|
Maturity Date:
|
|
June 15, 2035
|
|
Interest Payment Dates:
|
|
Semi-annually on June 15 and December 15, commencing December 15, 2015
|
|
Benchmark Treasury:
|
|
2.50% due February 15, 2045
|
|
Benchmark Treasury Yield:
|
|
3.122%
|
|
Spread to Benchmark Treasury:
|
|
+185 basis points
|
|
Yield to Maturity:
|
|
4.972%
|
|
Offering Price:
|
|
99.722% of Principal Amount
|
|
Special Mandatory Redemption:
|
|
Upon the first to occur of either (i) December 31, 2015, if the merger between Exelon Corporation and Pepco Holdings, Inc. (the “Merger”) is not consummated on or prior to such date, or (ii) the date on which the agreement
relating to the Merger is terminated, in whole, at a price equal to 101% of the aggregate principal amount of the notes then outstanding, plus accrued and unpaid interest to the redemption date
|
|
Optional Redemption:
|
|
If, in Exelon Corporation’s judgment, the Merger will not be consummated on or prior to December 31, 2015, in whole, at a redemption price equal to 101% of the aggregate principal amount of the notes then outstanding, plus
accrued and unpaid interest to the redemption date; at any time prior to December 15, 2034 (six months prior to the maturity date of the 2035 Notes), at a redemption price equal to the greater of (i) 100% of the principal amount of the notes then
outstanding to be redeemed and (ii) the sum of the present values of the remaining scheduled payments of principal and interest on the notes (exclusive of interest accrued to the redemption date) being redeemed to December 15, 2034, at a discount
rate of Treasury plus 30 basis points plus accrued and unpaid interest to the redemption date; and on or after December 15, 2034 (six months prior to the maturity date of the 2035 Notes), at 100% of the principal amount plus accrued and unpaid
interest to the redemption date
|
|
CUSIP / ISIN:
|
|
30161N AK7 / US30161NAK72
|
|
Joint Book-Running Managers:
|
|
Barclays Capital Inc.
Goldman, Sachs &
Co.
BNP Paribas Securities Corp.
Mitsubishi UFJ Securities
(USA), Inc.
Mizuho Securities USA Inc.
Scotia Capital (USA)
Inc.
|
|
Senior Co-Managers:
|
|
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Citigroup Global Markets Inc.
Credit Suisse Securities (USA)
LLC
J.P. Morgan Securities LLC
RBC Capital Markets, LLC
U.S. Bancorp Investments, Inc.
Wells Fargo Securities,
LLC
|
Annex I-7
|
|
|
|
|
Co-Managers:
|
|
Apto Partners, LLC
|
|
|
|
Blaylock Beal Van, LLC
BNY Mellon Capital
Markets, LLC
CIBC World Markets Corp.
Credit Agricole
Securities (USA) Inc.
KeyBanc Capital Markets Inc.
Loop
Capital Markets LLC
Mischler Financial Group, Inc.
PNC
Capital Markets LLC
Siebert Brandford Shank & Co., L.L.C.
SMBC Nikko Securities America, Inc.
TD Securities (USA) LLC
The Huntington Investment Company
The Williams Capital Group,
L.P.
|
Annex I-8
$1,000,000,000 5.100% Notes Due 2045
|
|
|
|
|
Issuer:
|
|
Exelon Corporation
|
|
Expected Ratings:
|
|
—
|
|
Principal Amount:
|
|
$1,000,000,000
|
|
Security Type:
|
|
Notes
|
|
Trade Date:
|
|
June 8, 2015
|
|
Settlement Date:
|
|
June 11, 2015 (T+3)
|
|
Coupon:
|
|
5.100%
|
|
Maturity Date:
|
|
June 15, 2045
|
|
Interest Payment Dates:
|
|
Semi-annually on June 15 and December 15, commencing December 15, 2015
|
|
Benchmark Treasury:
|
|
2.50% due February 15, 2045
|
|
Benchmark Treasury Yield:
|
|
3.122%
|
|
Spread to Benchmark Treasury:
|
|
+200 basis points
|
|
Yield to Maturity:
|
|
5.122%
|
|
Offering Price:
|
|
99.664% of Principal Amount
|
|
Special Mandatory Redemption:
|
|
Upon the first to occur of either (i) December 31, 2015, if the merger between Exelon Corporation and Pepco Holdings, Inc. (the “Merger”) is not consummated on or prior to such date, or (ii) the date on which the agreement
relating to the Merger is terminated, in whole, at a price equal to 101% of the aggregate principal amount of the notes then outstanding, plus accrued and unpaid interest to the redemption date
|
|
Optional Redemption:
|
|
If, in Exelon Corporation’s judgment, the Merger will not be consummated on or prior to December 31, 2015, in whole, at a redemption price equal to 101% of the aggregate principal amount of the notes then outstanding, plus
accrued and unpaid interest to the redemption date; at any time prior to December 15, 2044 (six months prior to the maturity date of the 2045 Notes), at a redemption price equal to the greater of (i) 100% of the principal amount of the notes then
outstanding to be redeemed and (ii) the sum of the present values of the remaining scheduled payments of principal and interest on the notes (exclusive of interest accrued to the redemption date) being redeemed to December 15, 2044, at a discount
rate of Treasury plus 30 basis points plus accrued and unpaid interest to the redemption date; and on or after December 15, 2044 (six months prior to the maturity date of the 2045 Notes), at 100% of the principal amount plus accrued and unpaid
interest to the redemption date
|
|
CUSIP / ISIN:
|
|
30161N AL5 / US30161NAL55
|
|
Joint Book-Running Managers:
|
|
Barclays Capital Inc.
Goldman, Sachs &
Co.
BNP Paribas Securities Corp.
Mitsubishi UFJ Securities
(USA), Inc.
Mizuho Securities USA Inc.
Scotia Capital (USA)
Inc.
|
|
Senior Co-Managers:
|
|
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Citigroup Global Markets Inc.
Credit Suisse Securities (USA)
LLC
J.P. Morgan Securities LLC
RBC Capital Markets, LLC
U.S. Bancorp Investments, Inc.
Wells Fargo Securities,
LLC
|
Annex I-9
|
|
|
|
|
Co-Managers:
|
|
Apto Partners, LLC
|
|
|
|
Blaylock Beal Van, LLC
BNY Mellon Capital
Markets, LLC
CIBC World Markets Corp.
Credit Agricole
Securities (USA) Inc.
KeyBanc Capital Markets Inc.
Loop
Capital Markets LLC
Mischler Financial Group, Inc.
PNC
Capital Markets LLC
Siebert Brandford Shank & Co., L.L.C.
SMBC Nikko Securities America, Inc.
TD Securities (USA) LLC
The Huntington Investment Company
The Williams Capital Group,
L.P.
|
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 Barclays Capital
Inc. toll-free at 1-888-603-5847 or Goldman, Sachs & Co. toll-free at 1-866-471-2526.
Annex I-10
Exhibit 4.1
EXECUTION VERSION
INDENTURE
by and between
EXELON CORPORATION
and
The Bank of New York Mellon Trust Company, N.A.
Dated as of June 11, 2015
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
ARTICLE I DEFINITIONS
|
|
|
1
|
|
|
Section 1.1
|
|
Certain Terms Defined
|
|
|
1
|
|
|
|
|
|
ARTICLE II SECURITIES
|
|
|
5
|
|
|
Section 2.1
|
|
Forms Generally
|
|
|
5
|
|
|
Section 2.2
|
|
Form Of Trustee’s Certificate Of Authentication
|
|
|
6
|
|
|
Section 2.3
|
|
Amount Unlimited; Issuable In Series
|
|
|
6
|
|
|
Section 2.4
|
|
Authentication And Delivery Of Securities
|
|
|
8
|
|
|
Section 2.5
|
|
Execution Of Securities
|
|
|
10
|
|
|
Section 2.6
|
|
Certificate Of Authentication
|
|
|
10
|
|
|
Section 2.7
|
|
Denomination And Date Of Securities; Payment Of Interest
|
|
|
10
|
|
|
Section 2.8
|
|
Registration, Transfer And Exchange
|
|
|
11
|
|
|
Section 2.9
|
|
Mutilated, Defaced, Destroyed, Lost And Stolen Securities
|
|
|
14
|
|
|
Section 2.10
|
|
Cancellation Of Securities; Destruction Thereof
|
|
|
15
|
|
|
Section 2.11
|
|
Temporary Securities
|
|
|
15
|
|
|
|
|
|
ARTICLE III COVENANTS OF THE ISSUER
|
|
|
15
|
|
|
Section 3.1
|
|
Payment Of Principal And Interest
|
|
|
15
|
|
|
Section 3.2
|
|
Offices For Payments, Etc
|
|
|
16
|
|
|
Section 3.3
|
|
Appointment To Fill A Vacancy In Office Of Trustee
|
|
|
16
|
|
|
Section 3.4
|
|
Paying Agents
|
|
|
16
|
|
|
Section 3.5
|
|
Compliance Certificates
|
|
|
17
|
|
|
Section 3.6
|
|
Corporate Existence
|
|
|
17
|
|
|
Section 3.7
|
|
The Issuer May Not Merge
|
|
|
17
|
|
|
|
|
|
ARTICLE IV SECURITYHOLDER LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE
|
|
|
18
|
|
|
Section 4.1
|
|
Issuer To Furnish Trustee Information As To Names And Addresses Of Securityholders
|
|
|
18
|
|
|
Section 4.2
|
|
Reports By The Trustee
|
|
|
18
|
|
|
|
|
|
ARTICLE V REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
|
|
|
19
|
|
|
Section 5.1
|
|
Event Of Default Defined, Acceleration Of Maturity; Waiver Of Default
|
|
|
19
|
|
|
Section 5.2
|
|
Collection Of Indebtedness By Trustee; Trustee May Prove Debt
|
|
|
22
|
|
|
Section 5.3
|
|
Application Of Proceeds
|
|
|
24
|
|
|
Section 5.4
|
|
Suits For Enforcement
|
|
|
25
|
|
|
Section 5.5
|
|
Restoration Of Rights On Abandonment Of Proceedings
|
|
|
25
|
|
|
Section 5.6
|
|
Limitations On Suits By Securityholders
|
|
|
25
|
|
|
Section 5.7
|
|
Unconditional Right Of Securityholders To Institute Certain Suits
|
|
|
26
|
|
|
Section 5.8
|
|
Powers And Remedies Cumulative; Delay Or Omission Not Waiver Of Default
|
|
|
26
|
|
i
|
|
|
|
|
|
|
|
|
Section 5.9
|
|
Control By Holders Of Securities
|
|
|
26
|
|
|
Section 5.10
|
|
Waiver Of Past Defaults
|
|
|
27
|
|
|
Section 5.11
|
|
Trustee To Give Notice Of Default, But May Withhold In Certain Circumstances
|
|
|
27
|
|
|
Section 5.12
|
|
Waiver of Stay or Extension Laws
|
|
|
27
|
|
|
Section 5.13
|
|
Right Of Court To Require Filing Of Undertaking To Pay Costs
|
|
|
27
|
|
|
|
|
|
ARTICLE VI CONCERNING THE TRUSTEE
|
|
|
28
|
|
|
Section 6.1
|
|
Duties And Responsibilities Of The Trustee; During Default; Prior To Default
|
|
|
28
|
|
|
Section 6.2
|
|
Certain Rights Of The Trustee
|
|
|
29
|
|
|
Section 6.3
|
|
Trustee Not Responsible For Recitals, Disposition Of Securities Or Application Of Proceeds Thereof
|
|
|
30
|
|
|
Section 6.4
|
|
Trustee And Agents May Hold Securities; Collections, Etc
|
|
|
31
|
|
|
Section 6.5
|
|
Held By Trustee
|
|
|
31
|
|
|
Section 6.6
|
|
Compensation And Indemnification Of Trustee And Its Prior Claim
|
|
|
31
|
|
|
Section 6.7
|
|
Right Of Trustee To Rely On Officer’s Certificate, Etc
|
|
|
32
|
|
|
Section 6.8
|
|
Indentures Not Creating Potential Conflicting Interests For The Trustee
|
|
|
32
|
|
|
Section 6.9
|
|
Qualification Of Trustee; Conflicting Interests
|
|
|
32
|
|
|
Section 6.10
|
|
Persons Eligible For Appointment As Trustee
|
|
|
32
|
|
|
Section 6.11
|
|
Resignation And Removal; Appointment Of Successor Trustee
|
|
|
32
|
|
|
Section 6.12
|
|
Acceptance Of Appointment By Successor Trustee
|
|
|
34
|
|
|
Section 6.13
|
|
Merger, Conversion, Consolidation Or Succession To Business Of Trustee
|
|
|
35
|
|
|
Section 6.14
|
|
Preferential Collection Of Claims Against The Issuer
|
|
|
35
|
|
|
Section 6.15
|
|
Appointment Of Authenticating Agent
|
|
|
35
|
|
|
|
|
|
ARTICLE VII CONCERNING THE SECURITYHOLDERS
|
|
|
36
|
|
|
Section 7.1
|
|
Evidence Of Action Taken By Securityholders
|
|
|
36
|
|
|
Section 7.2
|
|
Proof Of Execution Of Instruments And Of Holding Of Securities
|
|
|
37
|
|
|
Section 7.3
|
|
Holders To Be Treated As Owners
|
|
|
37
|
|
|
Section 7.4
|
|
Securities Owned By Issuer Deemed Not Outstanding
|
|
|
37
|
|
|
Section 7.5
|
|
Right Of Revocation Of Action Taken
|
|
|
38
|
|
|
|
|
|
ARTICLE VIII SUPPLEMENTAL INDENTURES
|
|
|
38
|
|
|
Section 8.1
|
|
Supplemental Indentures Without Consent Of Securityholders
|
|
|
38
|
|
|
Section 8.2
|
|
Supplemental Indentures With Consent Of Securityholders
|
|
|
40
|
|
|
Section 8.3
|
|
Effect Of Supplemental Indenture
|
|
|
41
|
|
|
Section 8.4
|
|
Documents To Be Given To Trustee
|
|
|
41
|
|
|
Section 8.5
|
|
Notation On Securities In Respect Of Supplemental Indentures
|
|
|
42
|
|
|
|
|
|
ARTICLE IX SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
|
|
|
42
|
|
|
Section 9.1
|
|
Satisfaction And Discharge Of Indenture
|
|
|
42
|
|
ii
|
|
|
|
|
|
|
|
|
Section 9.2
|
|
Application By Trustee Of Funds Deposited For Payment Of Securities
|
|
|
46
|
|
|
Section 9.3
|
|
Repayment Of Moneys Held By Paying Agent
|
|
|
46
|
|
|
Section 9.4
|
|
Return Of Moneys Held By Trustee And Paying Agent Unclaimed For Two Years
|
|
|
46
|
|
|
Section 9.5
|
|
Indemnity For U.S. Government Of Obligations
|
|
|
46
|
|
|
|
|
|
ARTICLE X MISCELLANEOUS PROVISIONS
|
|
|
46
|
|
|
Section 10.1
|
|
Incorporators, Shareholders, Officers And Directors Of Issuer Exempt From Individual Liability
|
|
|
46
|
|
|
Section 10.2
|
|
Provisions Of Indenture For The Sole Benefit Of Parties And Holders Of Securities
|
|
|
47
|
|
|
Section 10.3
|
|
Successors And Assigns Of Issuer Bound By Indenture
|
|
|
47
|
|
|
Section 10.4
|
|
Notices And Demands On Issuer, Trustee And Holders Of Securities
|
|
|
47
|
|
|
Section 10.5
|
|
Officer’s Certificates And Opinions Of Counsel; Statements To Be Contained Therein
|
|
|
48
|
|
|
Section 10.6
|
|
Payments Due On Saturdays, Sundays And Holidays
|
|
|
49
|
|
|
Section 10.7
|
|
Conflict Of Any Provision Of Indenture With Trust Indenture Act
|
|
|
49
|
|
|
Section 10.8
|
|
Governing Law
|
|
|
49
|
|
|
Section 10.9
|
|
Waiver of Jury Trial
|
|
|
49
|
|
|
Section 10.10
|
|
FATCA
|
|
|
49
|
|
|
Section 10.11
|
|
Counterparts
|
|
|
49
|
|
|
Section 10.12
|
|
Effect Of Headings
|
|
|
49
|
|
|
|
|
|
ARTICLE XI REDEMPTION OF SECURITIES AND SINKING FUNDS
|
|
|
50
|
|
|
Section 11.1
|
|
Applicability Of Article
|
|
|
50
|
|
|
Section 11.2
|
|
Notice Of Redemption; Partial Redemptions
|
|
|
50
|
|
|
Section 11.3
|
|
Payment Of Securities Called For Redemption
|
|
|
51
|
|
|
Section 11.4
|
|
Exclusion Of Certain Securities From Eligibility For Selection For Redemption
|
|
|
52
|
|
|
Section 11.5
|
|
Mandatory And Optional Sinking Funds
|
|
|
52
|
|
iii
THIS INDENTURE, dated as of June 11, 2015, by and between EXELON CORPORATION, a Pennsylvania
corporation (the “Issuer”), and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association, as trustee (the “Trustee”),
W I T N E S S E T H:
WHEREAS,
the Issuer has duly authorized the issue from time to time of its unsecured debentures, notes or other evidences of indebtedness to be issued in one or more series (the “Securities”) up to such principal amount or amounts as may from time
to time be authorized in accordance with the terms of this Indenture;
WHEREAS, the Issuer has duly authorized the execution and delivery
of this Indenture to provide, among other things, for the authentication, delivery and administration of the Securities; and
WHEREAS, all
things necessary to make this Indenture a valid indenture and agreement according to its terms have been done;
NOW, THEREFORE, in
consideration of the premises and the purchases of the Securities by the holders thereof, and intending to be legally bound hereby, the Issuer and the Trustee mutually covenant and agree for the equal and proportionate benefit of the respective
holders from time to time of the Securities and of the coupons, if any, appertaining thereto as follows:
ARTICLE I
DEFINITIONS
Section 1.1
Certain Terms Defined
. Each of the following terms (except as otherwise expressly provided or unless the context
otherwise clearly requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the meanings specified in this Section. Every other term used in this Indenture that is defined in the Trust Indenture Act of 1939, as
amended (the “Trust Indenture Act”), or the definitions of which in the Securities Act of 1933, as amended (the “Securities Act”), are referred to in the Trust Indenture Act, including terms defined therein by reference to the
Securities Act (except as herein otherwise expressly provided or unless the context otherwise requires), shall have the meaning assigned to such term in the Trust Indenture Act and in the Securities Act as in effect from time to time. Each
accounting term used herein and not expressly defined shall have the meaning assigned to such term in accordance with generally accepted accounting principles, and the term “generally accepted accounting principles” means such accounting
principles as are generally accepted in the United States of America at the time of any computation unless a different time shall be specified with respect to such series of Securities as provided for in Section 2.3. The words
“herein,” “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision. The terms defined in this Article have the
meanings assigned to them in this Article and include the plural as well as the singular.
“Affiliate” has the same meaning as
given to that term in Rule 405 of the Securities Act or any successor provision.
“Authenticating Agent” shall have the meaning set forth in Section 6.15.
“Board of Directors” means either the Board of Directors of the Issuer or any committee of such Board duly authorized to act on its
behalf.
“Board Resolution” means a copy of one or more resolutions, certified by the secretary or an assistant secretary of the
Issuer to have been duly adopted or consented to by the Board of Directors and to be in full force and effect, and delivered to the Trustee.
“Business Day” means, with respect to any Security, any day that is not a Saturday, a Sunday or a day on which commercial banking
institutions in New York City or in the city in which the Corporate Trust Office of the Trustee is located are generally authorized or required by law or executive order to be closed.
“Commission” means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or if
at any time after the execution and delivery of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties on such date.
“Corporate Trust Office” means the office of the Trustee at which the corporate trust business of the Trustee shall, at any
particular time, be principally administered, which office is, as of the date of this Indenture, located at 2 North LaSalle Street, Suite 1020, Chicago, IL 60602, Attention: Global Corporate Trust.
“Covenant Defeasance” shall have the meaning set forth in Section 9.1(d).
“Depository” means, with respect to the Securities of any series issuable or issued in the form of one or more Registered Global
Securities, the Person designated as Depository by the Issuer pursuant to Section 2.3 until a successor Depository shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Depository” shall mean
or include each Person who is then a Depository hereunder, and if at any time there is more than one such Person, “Depository” as used with respect to the Securities of any such series shall mean the Depository with respect to the
Registered Global Securities of that series.
“Dollar” or “$” means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and private debts.
“Event of Default” means any
event or condition specified as such in Section 5.1.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Holder,” “Holder of Securities,” “Securityholder” or any other similar term means the Person in whose name
such Security is registered in the security register kept by the Issuer for that purpose in accordance with the terms hereof.
“Indenture” means this instrument as originally executed and delivered or, if amended or supplemented as herein provided, as so
amended or supplemented or both, and shall include the forms and terms of particular series of Securities established as contemplated hereunder.
2
“IRS” means the Internal Revenue Service of the United States Department of the
Treasury, or any successor entity.
“Issuer” means Exelon Corporation, a Pennsylvania corporation, and its successors and
assigns.
“Issuer Order” means a written statement, request or order of the Issuer signed in its name by the Chairman of the
Board of Directors, the President, any Vice President, the Treasurer, any Assistant Treasurer, the Secretary, any Assistant Secretary or any other officer or agent of the Issuer, as the case may be, duly authorized by the Board of Directors to act
in respect of matters relating to this Indenture.
“Non-U.S. Person” means any Person that is not a “U.S. person” as
such term is defined in Rule 902 of the Securities Act.
“Officer’s Certificate” means a certificate signed by the Chairman
of the Board of Directors, the President, any Vice President, the Treasurer, any Assistant Treasurer, the Secretary, any Assistant Secretary or any other officer or agent of the Issuer, as the case may be, duly authorized by the Board of Directors
to act in respect of matters relating to this Indenture. Each such certificate shall comply with Section 314 of the Trust Indenture Act and include the statements provided for in Section 10.5.
“Opinion of Counsel” means an opinion in writing signed by legal counsel who may be an employee of the Issuer or other counsel
satisfactory to the Trustee. Each such opinion shall comply with Section 314 of the Trust Indenture Act and include the statements provided for in Section 10.5.
“Original Issue Date” of any Security (or portion thereof) means the earlier of (a) the date of such Security or (b) the
date of any Security (or portion thereof) for which such Security was issued (directly or indirectly) on registration of transfer, exchange or substitution.
“Original Issue Discount Security” means any Security that provides for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration of the maturity thereof pursuant to Section 5.1.
“Outstanding” when used
with reference to Securities, means, except as otherwise provided in Section 7.4, as of any particular time, all Securities authenticated and delivered by the Trustee under this Indenture, except:
(1) Securities theretofore canceled by the Trustee or delivered to the Trustee for cancellation;
(2) Securities, or portions thereof, for the payment or redemption of which moneys or U.S. Government Obligations (as provided
for in Section 9.1) in the necessary amount shall have been deposited in trust with the Trustee or with any paying agent (other than the Issuer) or shall have been set aside, segregated and held in trust by the Issuer for the Holders of such
Securities (if the Issuer shall act as its own paying agent); PROVIDED that if such
3
Securities, or portions thereof, are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as herein provided, or provisions satisfactory to the Trustee
shall have been made for giving such notice; and
(3) Securities which shall have been paid or in substitution for which
other Securities shall have been authenticated and delivered pursuant to the terms of Section 2.9 (except with respect to any such Security as to which proof satisfactory to the Trustee is presented that such Security is held by a Person in
whose hands such Security is a legal, valid and binding obligation of the Issuer). In determining whether the Holders of the requisite principal amount of Outstanding Securities of any or all series have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the
date of such determination upon a declaration of acceleration of the maturity thereof pursuant to Section 5.1.
“Periodic
Offering” means an offering of Securities of a series from time to time, the specific terms of which Securities, including, without limitation, the rate or rates of interest, if any, thereon, the stated maturity or maturities thereof and the
redemption provisions, if any, with respect thereto, are to be determined by the Issuer or its agents upon the issuance of such Securities.
“Person” means any individual, corporation, partnership, limited liability company, joint venture, association, joint stock company,
trust, unincorporated organization or government or any agency or political subdivision thereof.
“principal” whenever used with
reference to the Securities or any Security or any portion thereof, shall be deemed to include “and premium, if any,” and as to any Original Issue Discount Security means the amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant to Section 5.1; PROVIDED that such inclusion of premium, if any, shall under no circumstances result in the double counting of such premium for the purpose of any
calculation required hereunder.
“record date” shall have the meaning set forth in Section 2.7.
“Registered Global Security” means a Security evidencing all or a part of a series of Registered Securities, issued to the
Depository for such series in accordance with Section 2.4, and bearing the legend prescribed in Section 2.4 and any other legend required by the Depository for such series.
“Registered Security” means any Security registered on the Security register of the Issuer.
“Responsible Officer” when used with respect to the Trustee means the officer at the Corporate Trust Office of the Trustee having
direct responsibility for administration of this Indenture, or any other officer to whom a matter arising under this Indenture is referred because of his or her knowledge of and familiarity with the particular subject.
4
“Security” or “Securities” (except as otherwise provided in Section 7.4)
has the meaning stated in the first recital of this Indenture.
“Securities Act” means the Securities Act of 1933, as amended.
“Subsidiary” means a corporation or other entity of which at least a majority of the outstanding voting stock or other
ownership or economic interests having ordinary voting power to elect a majority of the board of directors (or equivalent body) is held, directly or indirectly, by the Issuer or by one or more of its Subsidiaries, or by the Issuer and one or more of
its Subsidiaries. For the purposes of this definition, “voting stock” means stock or other ownership or economic interest which ordinarily has voting power for the election of directors, whether at all times or only so long as no senior
class of stock or other ownership or economic interest has such voting power by reason of any contingency.
“Trustee” means the
Person identified as “Trustee” in the first paragraph hereof and, subject to the provisions of Article VI, shall also include any successor trustee. “Trustee” shall also mean or include each Person who is then a trustee
hereunder, and, if at any time there is more than one such Person, “Trustee” as used with respect to the Securities of any series shall mean the trustee with respect to the Securities of such series.
“U.S. Government Obligations” means direct obligations of the United States of America or obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States, the timely payment of which is unconditionally guaranteed as a full faith and credit obligation of the United States, which are not callable or redeemable at the option
of the issuer thereof.
“Yield to Maturity” means the yield to maturity on a series of Securities, calculated at the time of
issuance of such series, or, if applicable, at the most recent redetermination of interest on such series, and calculated in accordance with accepted financial practice.
ARTICLE II
SECURITIES
Section 2.1
Forms Generally
. The Securities of each series shall be substantially in such form or forms thereof
established in one or more supplemental indentures hereto establishing such series or in one or more Board Resolutions establishing such series, or in one or more Officer’s Certificates pursuant to such supplemental indentures or Board
Resolutions, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture and may have imprinted or otherwise reproduced thereon such legend or legends or endorsements,
not inconsistent with the provisions of this Indenture, as may be required to comply with any law or with any rules or regulations pursuant thereto, or with any rules of any securities exchange or to conform to general usage, all as may be
determined by the officers executing such Securities, as evidenced by their execution of such Securities. The definitive Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities as evidenced by their execution of such Securities.
5
Section 2.2
Form Of Trustee’s Certificate Of Authentication
. The Trustee’s
certificate of authentication on all Securities shall be in substantially the following form:
“This is one of the Securities
referred to in the within-mentioned Indenture.
|
|
|
|
|
|
|
|
|
|
|
[Name of Trustee]
|
|
|
|
Dated:
|
|
|
|
|
|
|
|
By
|
|
|
|
|
|
|
|
|
|
|
|
Authorized Signatory”
|
|
|
|
|
|
|
If at any time there shall be an Authenticating Agent appointed with respect to any series of Securities, then
the Trustee’s Certificate of Authentication to be borne by the Securities of each such series shall be substantially as follows:
“This is one of the Securities referred to in the within-mentioned Indenture.
Dated:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
as Authenticating Agent
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By
|
|
|
|
|
|
|
|
|
|
|
|
Authorized Signatory”
|
|
|
|
|
|
|
Section 2.3
Amount Unlimited; Issuable In Series
. The aggregate principal amount of Securities
which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in or pursuant to one or more supplemental indentures hereto, Board Resolutions or Officer’s Certificates (and to the extent established pursuant to but not set forth in a Board Resolution, in a supplemental indenture
hereto or an Officer’s Certificate detailing such establishment), prior to the initial issuance of Securities of any series,
(1) the designation of the Securities of the series, which shall distinguish the Securities of the series from the Securities
of all other series, and which may be part of a series of Securities previously issued;
(2) any limit upon the aggregate
principal amount of the Securities of the series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of
the series pursuant to Section 2.8, 2.9, 2.11, 8.5 or 11.3);
(3) the date or dates on which the principal of the
Securities of the series is payable;
(4) the rate or rates at which the Securities of the series shall bear interest, if
any, the date or dates from which such interest shall accrue, on
6
which such interest shall be payable, the terms and conditions of any deferral of interest and the additional interest, if any, thereon, the right, if any, of the Issuer to extend the interest
payment periods and the duration of the extensions and (in the case of Registered Securities) the date or dates on which a record shall be taken for the determination of Holders to whom interest is payable and/or the method by which such rate or
rates or date or dates shall be determined;
(5) the place or places where and the manner in which, the principal of and
any interest on Securities of the series shall be payable;
(6) the right, if any, of the Issuer to redeem Securities, in
whole or in part, at its option and the period or periods within which, or the date or dates on which, the price or prices at which and any terms and conditions upon which Securities of the series may be so redeemed, pursuant to any sinking fund or
otherwise;
(7) the obligation, if any, of the Issuer to redeem, purchase or repay Securities of the series pursuant to any
mandatory redemption, sinking fund or analogous provisions or at the option of a Holder thereof, and the price or prices at which and the period or periods within which or the date or dates on which and any terms and conditions upon which Securities
of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;
(8) if other than
minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof;
(9) the percentage of the principal
amount at which the Securities will be issued, and, if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the maturity thereof;
(10) whether the Securities of the series will be issuable as unregistered securities (with or without coupons), any
restrictions applicable to the offer, sale or delivery of unregistered securities or the payment of interest thereon and, the terms upon which unregistered securities of any series may be exchanged for Registered Securities of such series and vice
versa;
(11) whether and under what circumstances the Issuer will pay additional amounts on the Securities of the series
held by a Person who is a Non-U.S. Person in respect of any tax, assessment or governmental charge withheld or deducted and, if so, whether the Issuer will have the option to redeem the Securities of the series rather than pay such additional
amounts;
(12) if the Securities of the series are to be issuable in definitive form (whether upon original issue or upon
exchange of a temporary Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, the form and terms of such certificates, documents or conditions;
7
(13) any trustees, depositories, authenticating or paying agents, transfer agents
or registrars or any other agents with respect to the Securities of such series;
(14) any deletion from, modification of
or addition to the Events of Default or covenants with respect to the Securities of such series; and
(15) any other terms
of the series (which terms shall not be inconsistent with the provisions of the Trust Indenture Act, but may modify, amend, supplement or delete any of the terms of this Indenture with respect to such series).
All Securities of any one series shall be substantially identical, except in the case of Registered Securities as to denomination and except
as may otherwise be provided by or pursuant to the Board Resolution or Officer’s Certificate referred to above. All Securities of any one series need not be issued at the same time and may be issued from time to time, consistent with the terms
of this Indenture, if so provided by or pursuant to such Board Resolution or such Officer’s Certificate.
Section 2.4
Authentication And Delivery Of Securities
. The Issuer may deliver Securities of any series executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section 2.4, and the
Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as
may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series shall be determined by or pursuant to such Issuer Order and procedures. If provided for
in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing.
In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and (4) below only at or
before the time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall be fully protected in relying upon, the following enumerated documents unless and until such
documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery
instructions if the Securities are not to be delivered to the Issuer; PROVIDED that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the
delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the
aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue
date or dates, interest rate or rates and any other terms of Securities of such series
8
shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral
or electronic instructions from the Issuer or its duly authorized agent or agents, which instructions, if oral, shall be promptly confirmed in writing;
(2) any supplemental indenture hereto, Board Resolution and/or Officer’s Certificate referred to in Section 2.1 and
2.3 by or pursuant to which the forms and terms of the Securities were established;
(3) an Officer’s Certificate
setting forth the form or forms and terms of the Securities stating that the form or forms and terms of the Securities have been established pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the
Trustee may reasonably request; and
(4) At the option of the Issuer, either one or more Opinions of Counsel complying with
Section 10.5, or a letter addressed to the Trustee permitting it to rely on one or more Opinions of Counsel complying with Section 10.5.
In rendering such opinions, such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee)
reasonably satisfactory to the Trustee, in which case the opinion shall state that counsel believes that counsel and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, counsel has
relied, to the extent he deems proper, upon certificates of officers of the Issuer and its Subsidiaries and certificates of public officials.
The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section 2.4 if the Trustee shall
determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities under the Securities, this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more
Registered Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Registered Global Securities that
(i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued and not yet canceled, (ii) shall be registered in the name of the Depository for such
Registered Global Security or Securities or the nominee of such Depository, (iii) shall be delivered by the Trustee to such Depository or delivered or held pursuant to such Depository’s instructions and (iv) shall bear a legend
substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depository to the nominee of the Depository
or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor Depository.”
9
Each Depository designated pursuant to Section 2.3 must, at the time of its designation and
at all times while it serves as Depository, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
Section 2.5
Execution Of Securities
. The Securities shall be signed on behalf of the Issuer by the Chairman of the Board of
Directors, the President, any Vice President, the Treasurer, any Assistant Treasurer, the Secretary, any Assistant Secretary or any other officer or agent of the Issuer, as the case may be, duly authorized by the Board of Directors to act in respect
of matters relating to this Indenture, and may, but need not, have its corporate seal affixed thereto and may, but need not, be attested. Such signatures may be the manual or facsimile signatures of the present or any future such officers. The seal
of the Issuer, if affixed thereto, may be in the form of a facsimile thereof and may be impressed, affixed, imprinted or otherwise reproduced on the Securities. Typographical and other minor errors or defects in any such reproduction of the seal or
any such signature shall not affect the validity or enforceability of any Security that has been duly authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the Securities shall cease to be such officer before the Security so signed
shall be authenticated and delivered by the Trustee or disposed of by the Issuer, such Security nevertheless may be authenticated and delivered or disposed of as though the Person who signed such Security had not ceased to be such officer of the
Issuer; and any Security may be signed on behalf of the Issuer by such Persons as, at the actual date of the execution of such Security shall be the proper officers of the Issuer, although at the date of the execution and delivery of this Indenture
any such Person was not such an officer.
Section 2.6
Certificate Of Authentication
. Only such Securities as shall bear
thereon a certificate of authentication substantially in the form hereinbefore recited, executed by the Trustee by the manual signature of one of its authorized officers, shall be entitled to the benefits of this Indenture or be valid or obligatory
for any purpose. The execution of such certificate by the Trustee upon any Security executed by the Issuer shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder and that the Holder is
entitled to the benefits of this Indenture.
Section 2.7
Denomination And Date Of Securities; Payment Of Interest
. Unless
otherwise provided in Section 2.3, the Securities of each series shall be issuable as Registered Securities in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. The Securities of each series shall be numbered,
lettered or otherwise distinguished in such manner or in accordance with such plan as the officers of the Issuer executing the same may determine with the approval of the Trustee, as evidenced by the execution and authentication thereof.
Each Registered Security shall be dated the date of its authentication. The Securities of each series shall bear interest, if any, from the
date, and such interest shall be payable on the dates, established as contemplated by Section 2.3.
The Person in whose name any
Registered Security of any series is registered at the close of business on any record date applicable to a particular series with respect to any interest payment date for such series shall be entitled to receive the interest, if any, payable on
such
10
interest payment date notwithstanding any transfer or exchange of such Registered Security subsequent to the record date and prior to such interest payment date, except if and to the extent the
Issuer shall default in the payment of the interest due on such interest payment date for such series, in which case such defaulted interest shall be paid to the Persons in whose names Outstanding Registered Securities for such series are registered
at the close of business on a subsequent record date (which shall be not less than five Business Days prior to the date of payment of such defaulted interest) established by notice given by mail by or on behalf of the Issuer to the Holders of
Registered Securities not less than 15 days preceding such subsequent record date. The term “record date” as used with respect to any interest payment date (except a date for payment of defaulted interest) for the Securities of any series
shall mean the date specified as such in the terms of the Registered Securities of such series established as contemplated by Section 2.3, or, if no such date is so established, if such interest payment date is the first day of a calendar
month, the fifteenth day of the preceding calendar month or, if such interest payment date is the fifteenth day of a calendar month, the first day of such calendar month, whether or not such record date is a Business Day. Except as the Issuer and
the Trustee may agree otherwise agree, the Issuer shall promptly file with the Trustee following the end of each calendar year a written notice specifying the amount of original issue discount accrued on the Outstanding Original Issue Discount
Securities for the previous calendar year, including daily rates and accrual periods, and such other information relating to original issue discount as may be required under the Internal Revenue Code of 1986 and applicable regulations, as amended
from time to time.
Section 2.8
Registration, Transfer And Exchange
. The Issuer will keep at each office or agency to be
maintained for the purpose as provided in Section 3.2 for each series of Securities a register or registers in which, subject to such reasonable regulations as the Issuer may prescribe, it will provide for the registration of Registered
Securities of such series and the registration of transfer of Registered Securities of such series. Such register shall be in written form in the English language or in any other form capable of being converted into such form within a reasonable
time. At all reasonable times such register or registers shall be open for inspection by the Trustee.
Upon due presentation for
registration of transfer of any Registered Security of any series at any such office or agency to be maintained for the purpose as provided in Section 3.2, the Issuer shall execute and the Trustee shall authenticate and deliver in the name of
the transferee or transferees a new Registered Security or Registered Securities of the same series, maturity date, interest rate and original issue date in authorized denominations for a like aggregate principal amount.
At the option of the Holder thereof, Registered Securities of any series (other than a Registered Global Security, except as set forth below)
may be exchanged for a Registered Security or Registered Securities of such series having authorized denominations and an equal aggregate principal amount, upon surrender of such Registered Securities to be exchanged at the agency of the Issuer that
shall be maintained for such purpose in accordance with Section 3.2 and upon payment, if the Issuer shall so require, of the charges hereinafter provided. Whenever any Securities are so surrendered for exchange, the Issuer shall execute, and
the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive. All Securities surrendered upon any exchange or transfer provided for in this Indenture shall be promptly cancelled and disposed
of by the Trustee, and the Trustee shall deliver a certificate of disposition thereof to the Issuer.
11
All Registered Securities presented for registration of transfer, exchange, redemption or payment
shall (if so required by the Issuer or the Trustee) be duly endorsed, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Issuer and the Trustee duly executed, by the Holder or his attorney duly
authorized in writing.
The Issuer may require payment of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any exchange or registration of transfer of Securities. No service charge shall be made for any such transaction.
The Issuer shall not be required to exchange or register a transfer of (a) any Securities of any series for a period of 15 days preceding
the first mailing of notice of redemption of Securities of such series to be redeemed or (b) any Securities selected, called or being called for redemption, in whole or in part, except, in the case of any Security to be redeemed in part, the
portion thereof not so to be redeemed.
Notwithstanding any other provision of this Section 2.8, unless and until it is exchanged in
whole or in part for Securities in definitive registered form, a Registered Global Security representing all or a portion of the Securities of a series may not be transferred except as a whole by the Depository for such series to a nominee of such
Depository or by a nominee of such Depository to such Depository or another nominee of such Depository or by such Depository or any such nominee to a successor Depository for such series or a nominee of such successor Depository. The Issuer and the
Trustee may treat the Depository (or its nominee) as the sole and exclusive owner of the Securities registered in its name for the purposes of payment of the principal of or interest on the Securities, giving any notice permitted or required to be
given to registered owners under this Indenture, registering the transfer of Securities, obtaining any consent or other action to be taken by registered owners and for all other purposes whatsoever; and neither the Issuer nor the Trustee shall be
affected by any notice to the contrary. Neither the Issuer nor the Trustee shall have any responsibility or obligation to any participant in the Depository, any Person claiming a beneficial ownership interest in the Bonds under or through the
Depository or any such participant, or any other Person which is not shown on the register as being a registered owner, with respect to either: (1) the Securities; (2) the accuracy of any records maintained by the Depository or any such
participant; (3) the payment by the Depository or any such participant of any amount in respect of the principal of or interest on the Securities; (4) any notice which is permitted or required to be given to registered owners under this
Indenture; (5) any consent given or other action taken by the Depository as registered owner; or (6) any selection by the Depository of any participant or other Person to receive payment of principal or interest on the Securities.
If at any time, the Depository for any Registered Securities of a series represented by one or more Registered Global Securities notifies the
Issuer that it is unwilling or unable to continue as Depository for such Registered Securities or, if at any time, the Depository for such Registered Securities shall no longer be eligible under Section 2.4, the Issuer shall appoint a successor
Depository eligible under Section 2.4 with respect to such Registered Securities. If a successor Depository eligible under Section 2.4 for such Registered Securities is not appointed
12
by the Issuer within 90 days after the Issuer receives such notice or becomes aware of such ineligibility, the Issuer’s election pursuant to Section 2.3 that such Registered Securities
be represented by one or more Registered Global Securities shall no longer be effective and the Issuer will execute, and the Trustee, upon receipt of an Officer’s Certificate for the authentication and delivery of definitive Securities of such
series, will authenticate and deliver, Securities of such series in definitive registered form in any authorized denominations, in an aggregate principal amount equal to the principal amount of the Registered Global Security or Securities
representing such Registered Securities in exchange for such Registered Global Security or Securities.
The Issuer may at any time and in
its sole discretion determine that the Registered Securities of any series issued in the form of one or more Registered Global Securities shall no longer be represented by a Registered Global Security or Securities. In such event, the Issuer will
execute, and the Trustee, upon receipt of any Officer’s Certificate for the authentication and delivery of definitive Securities of such series, will authenticate and deliver, Securities of such series in definitive registered form in any
authorized denominations, in an aggregate principal amount equal to the principal amount of the Registered Global Security or Securities representing such Registered Securities, in exchange for such Registered Global Security or Securities.
If specified by the Issuer pursuant to Section 2.3 with respect to Securities represented by a Registered Global Security, the Depository
for such Registered Global Security may surrender such Registered Global Security in exchange in whole or in part for Securities of the same series in definitive registered form on such terms as are acceptable to the Issuer and such Depository.
Thereupon, the Issuer shall execute, and the Trustee shall authenticate and deliver, without service charge:
(i) to the
Person specified by such Depository a new Registered Security or Securities of the same series, of any authorized denominations as requested by such Person, in an aggregate principal amount equal to and in exchange for such Person’s beneficial
interest in the Registered Global Security; and
(ii) to such Depository a new Registered Global Security in a denomination
equal to the difference, if any, between the principal amount of the surrendered Registered Global Security and the aggregate principal amount of Registered Securities authenticated and delivered pursuant to clause (i) above.
Upon the exchange of a Registered Global Security for Securities in definitive registered form in authorized denominations, such Registered
Global Security shall be cancelled by the Trustee or an agent of the Issuer or the Trustee. Securities in definitive registered form issued in exchange for a Registered Global Security pursuant to this Section 2.8 shall be registered in such
names and in such authorized denominations as the Depository for such Registered Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee or an agent of the Issuer or the Trustee.
The Trustee or such agent shall deliver such Securities to or as directed by the Persons in whose names such Securities are so registered.
13
All Securities issued upon any transfer or exchange of Securities shall be valid obligations of
the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such transfer or exchange.
Section 2.9
Mutilated, Defaced, Destroyed, Lost And Stolen Securities
. In case any temporary or definitive Security shall be
mutilated, defaced, destroyed, lost or stolen, the Issuer in its discretion may execute and, upon the written request of any of the Chairman of the Board of Directors, the President, any Vice President, the Treasurer, any Assistant Treasurer, the
Secretary, any Assistant Secretary or any other officer or agent of the Issuer, as the case may be, duly authorized by the Board of Directors to act in respect of matters relating to this Indenture, the Trustee shall authenticate and deliver, a new
Security of the same series, maturity date, interest rate and original issue date, bearing a number or other distinguishing symbol not contemporaneously outstanding, in exchange and substitution for the mutilated or defaced Security, or in lieu of
and in substitution for the Security so destroyed, lost or stolen. In every case, the applicant for a substitute Security shall furnish to the Issuer and to the Trustee and any agent of the Issuer or the Trustee such security or indemnity as may be
required by them to indemnify and defend and to save each of them harmless and, in every case of destruction, loss or theft, evidence to their satisfaction of the destruction, loss or theft of such Security and of the ownership thereof, and in the
case of mutilation or defacement shall surrender the Security to the Trustee or such agent.
Upon the issuance of any substitute Security,
the Issuer may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) or its agent connected therewith. In
case any Security which has matured or is about to mature or has been called for redemption in full shall become mutilated or defaced or be destroyed, lost or stolen, the Issuer may, instead of issuing a substitute Security, pay or authorize the
payment of the same (without surrender thereof except in the case of a mutilated or defaced Security), if the applicant for such payment shall furnish to the Issuer and to the Trustee and any agent of the Issuer or the Trustee such security or
indemnity as any of them may require to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Issuer and the Trustee and any agent of the Issuer or the Trustee evidence to their
satisfaction of the destruction, loss or theft of such Security and of the ownership thereof.
Every substitute Security of any series
issued pursuant to the provisions of this Section by virtue of the fact that any such Security is destroyed, lost or stolen shall constitute an additional contractual obligation of the Issuer, whether or not the destroyed, lost or stolen Security
shall be at any time enforceable by anyone and shall be entitled to all the benefits of (but shall be subject to all the limitations of rights set forth in) this Indenture equally and proportionately with any and all other Securities of such series
duly authenticated and delivered hereunder. All Securities shall be held and owned upon the express condition that, to the extent permitted by law, the foregoing provisions are exclusive with respect to the replacement or payment of mutilated,
defaced or destroyed, lost or stolen Securities and shall preclude any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
14
Section 2.10
Cancellation Of Securities; Destruction Thereof
. All Securities
surrendered for payment, redemption, registration of transfer or exchange, or for credit against any payment in respect of a sinking or analogous fund, if any, if surrendered to the Issuer or any agent of the Issuer or the Trustee or any agent of
the Trustee, shall be delivered to the Trustee or its agent for cancellation or, if surrendered to the Trustee, shall be canceled by it; and no Securities shall be issued in lieu thereof except as expressly permitted by any of the provisions of this
Indenture. The Trustee or its agent shall dispose of canceled Securities held by it and, upon written request therefore, shall deliver a certificate of disposition to the Issuer. If the Issuer or its agent shall acquire any of the Securities, such
acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are delivered to the Trustee or its agent for cancellation.
Section 2.11
Temporary Securities
. Pending the preparation of definitive Securities for any series, the Issuer may execute and the
Trustee shall authenticate and deliver temporary Securities for such series (printed, lithographed, typewritten or otherwise reproduced, in each case in form satisfactory to the Trustee). Temporary Securities of any series shall be issuable as
Registered Securities without coupons of any authorized denomination, and substantially in the form of the definitive Securities of such series but with such omissions, insertions and variations as may be appropriate for temporary Securities, all as
may be determined by the Issuer with the concurrence of the Trustee as evidenced by the execution and authentication thereof. Temporary Securities may contain such references to any provisions of this Indenture as may be appropriate. Every temporary
Security shall be executed by the Issuer and be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive Securities. Without unreasonable delay, the Issuer shall execute and
shall furnish definitive Securities of such series and thereupon temporary Registered Securities of such series may be surrendered in exchange therefor without charge at each office or agency to be maintained by the Issuer for that purpose pursuant
to Section 3.2 and the Trustee shall authenticate and deliver in exchange for such temporary Securities of such series an equal aggregate principal amount of definitive Securities of the same series having authorized denominations. Until so
exchanged, the temporary Securities of any series shall be entitled to the same benefits under this Indenture as definitive Securities of such series, unless otherwise established pursuant to Section 2.3.
ARTICLE III
COVENANTS
OF THE ISSUER
Section 3.1
Payment Of Principal And Interest
. The Issuer covenants and agrees for the benefit of each
series of Securities that it will duly and punctually pay or cause to be paid the principal of (and premium, if any), and interest on, each of the Securities of such series (together with any additional amounts payable pursuant to the terms of such
Securities) at the place or places, at the respective time or times and in the manner provided in such Securities in this Indenture. The interest, if any, on Registered Securities (together with any additional amounts payable pursuant to the terms
of such Securities) shall be payable only to or upon the written order of the Holders thereof and, at the option of the Issuer, may be paid by wire transfer or by mailing checks for such interest payable to or upon the written order of such Holders
at their last addresses as they appear on the Securities register of the Issuer.
15
Section 3.2
Offices For Payments, Etc
. So long as any Registered Securities (other
than Global Registered Securities) are authorized for issuance pursuant to this Indenture or are outstanding hereunder, the Issuer will maintain in New York, an office or agency where the Registered Securities of each series may be presented for
payment, where the Securities of each series may be presented for exchange as is provided in this Indenture and, if applicable, pursuant to Section 2.3 and where the Registered Securities of each series may be presented for registration of
transfer as in this Indenture provided. Notices and demands to or upon the Issuer in respect of the Securities of any series or this Indenture may be served on the Issuer at the corporate trust office of the Trustee.
The Issuer will give to the Trustee written notice of the location of each such office or agency and of any change of location thereof. In
case the Issuer shall fail to maintain any agency required by this Section to be located in New York, or shall fail to give such notice of the location or for any change in the location of any of the above agencies, presentations and demands may be
made and notices may be served at the Corporate Trust Office of the Trustee.
The Issuer may from time to time designate one or more
additional offices or agencies where the Securities of a series may be presented for payment, where the Securities of that series may be presented for exchange as provided in this Indenture and pursuant to Section 2.3 and where the Registered
Securities of that series may be presented for registration of transfer as in this Indenture provided, and the Issuer may from time to time rescind any such designation, as the Issuer may deem desirable or expedient; PROVIDED that no such
designation or rescission shall in any manner relieve the Issuer of its obligations to maintain the agencies provided for in this Section. The Issuer shall give to the Trustee prompt written notice of any such designation or rescission thereof.
Section 3.3
Appointment To Fill A Vacancy In Office Of Trustee
. The Issuer, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 6.10, a Trustee, so that there shall at all times be a Trustee with respect to each series of Securities hereunder.
Section 3.4
Paying Agents
. Whenever the Issuer shall appoint a paying agent other than the Trustee with respect to the Securities
of any series, it will cause such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section:
(a) that it will hold all sums received by it as such agent for the payment of the principal of (and premium, if any) or interest on the
Securities of such series (whether such sums have been paid to it by the Issuer or by any other obligor on the Securities of such series) in trust for the benefit of the Holders of the Securities of such series or of the Trustee;
(b) that it will give the Trustee notice of any failure by the Issuer (or by any other obligor on the Securities of such series) to make any
payment of the principal of (and premium, if any) or interest on the Securities of such series when the same shall be due and payable; and
16
(c) that it will pay any such sums so held in trust by it to the Trustee upon the Trustee’s
written request at any time during the continuance of the failure referred to in the foregoing clause (b).
The Issuer will, on or prior
to each due date of the principal of (and premium, if any) or interest on the Securities of such series, deposit with the paying agent a sum sufficient to pay such principal or interest so becoming due, and (unless such paying agent is the Trustee)
the Issuer will promptly notify the Trustee of any failure to take such action.
If the Issuer shall act as its own paying agent with
respect to the Securities of any series, it will, on or before each due date of the principal of (and premium, if any) or interest on the Securities of such series, set aside, segregate and hold in trust for the benefit of the Holders of the
Securities of such series a sum sufficient to pay such principal (and premium, if any) or interest so becoming due. The Issuer will promptly notify the Trustee of any failure to take such action.
Anything in this Section to the contrary notwithstanding, but subject to Section 9.1, the Issuer may at any time, for the purpose of
obtaining a satisfaction and discharge with respect to one or more or all series of Securities hereunder, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust for any such series by the Issuer or any paying agent
hereunder, as required by this Section, such sums to be held by the Trustee upon the trusts herein contained.
Anything in this Section to
the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section is subject to the provisions of Sections 9.3 and 9.4.
Section 3.5
Compliance Certificates
. The Issuer will furnish to the Trustee on or before January 31 in each year (beginning
with January 31, 2016 or any subsequent calendar year following the year in which Securities are first issued) a brief certificate (which need not comply with Section 10.5) from the principal executive, financial or accounting officer of
the Issuer stating that in the course of the performance by the signer of his or her duties as an officer of the Issuer he or she would normally have knowledge of any default or non-compliance by the Issuer in the performance of any covenants
or conditions contained in this Indenture, stating whether or not he or she has knowledge of any such default or non-compliance and, if so, describing each such default or
non-compliance
of which the signer
has knowledge and the nature of such default or non-compliance.
Section 3.6
Corporate Existence
. Except as provided in
Section 3.7, the Issuer will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate or other legal existence.
Section 3.7
The Issuer May Not Merge
.
(a) The Issuer shall not merge or consolidate with any other Person or sell substantially all of its assets as an entirety, unless:
(i) the Issuer is the continuing corporation or the Person into which the Issuer is merged or formed by such consolidation or
the Person which acquires by
17
sale substantially all of the Issuer’s assets as an entirety, shall be organized under the laws of the United States or a state or is organized under the laws of a foreign jurisdiction and
consents to the jurisdiction of the courts of the United States or a state and expressly assumes, by an indenture supplemental hereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, the payment of principal,
and premium, if any, and interest on the Securities and the performance and observance of all the covenants and conditions of this Indenture binding on the Issuer; and
(ii) the Issuer or the Person into which the Issuer is merged or formed by such consolidation or the Person which acquires by
sale substantially all of the Issuer’s assets as an entirety, is not immediately after the merger, consolidation or sale in default in the performance of a covenant or condition in this Indenture binding on the Issuer.
(b) Upon any merger into, or consolidation of the Issuer with, any other Person or any sale of substantially all of the assets of the Issuer
as an entirety in accordance with Section 3.7(a), the successor Person into which the Issuer is merged or formed by such consolidation or to which such sale is made shall succeed to, and be substituted for, and may exercise every right and
power of, the Issuer under this Indenture with the same effect as if such successor Person had been named as the Issuer herein, and thereafter the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the
Securities.
ARTICLE IV
SECURITYHOLDER LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE
Section 4.1
Issuer To Furnish Trustee Information As To Names And Addresses Of Securityholders
. If and so long as the Trustee
shall not be the Security registrar for the Securities of any series, the Issuer and any other obligor on the Securities will furnish or cause to be furnished to the Trustee a list in such form as the Trustee may reasonably require of the names and
addresses of the Holders of the Registered Securities of such series pursuant to Section 312 of the Trust Indenture Act:
(a)
semi-annually not more than 5 days after each record date for the payment of interest on such Registered Securities, as hereinabove specified, as of such record date and on dates to be determined pursuant to Section 2.3 for non-interest bearing
Registered Securities in each year; and
(b) at such other times as the Trustee may reasonably request in writing, within 30 days after
receipt by the Issuer of any such request as of a date not more than 15 days prior to the time such information is furnished.
Section 4.2
Reports By The Trustee
. Not later than March 31, in each year, commencing March 31, 2016, the Trustee shall
transmit to the Holders, the Commission and each securities exchange upon which any Securities are listed, a report, dated as of the next preceding January 1, with respect to any events and other matters described in Section 313(a) of the
Trust Indenture Act, in such manner and to the extent required by the Trust Indenture Act. The Trustee shall transmit to the Holders, the Commission and each securities exchange upon
18
which any Securities are listed, and the Issuer, as the case requires, shall file with the Trustee (within 30 days after filing with the Commission in the case of reports which pursuant to the
Trust Indenture Act must be filed with the Commission and furnished to the Trustee) and transmit to the Holders, such other information, reports and other documents, if any, at such times and in such manner, as shall be required by the Trust
Indenture Act. The Issuer shall notify the Trustee of the listing of any Securities on any securities exchange or of the delisting thereof.
Upon the written request and at the expense of and payable in advance by any Securityholder, the Trustee shall provide such reports,
information or documents as have been provided to it under this Section 4.2. The Trustee shall not have any obligation to review any report, information or documents provided to the Trustee by the Issuer pursuant to this Section 4.2, nor
shall the Trustee be deemed to have notice of any item contained therein or Event of Default which may be disclosed therein in any manner. The Trustee’s sole responsibility with respect to such reports shall be to act as the depository for such
report for the Securityholders and to make such reports available to the Securityholders in accordance with this Section 4.2. The Trustee shall have no duty to request copies of any such reports, information or documents which are required to
be furnished to it hereunder. Delivery of any reports, information and documents to the Trustee, including pursuant to Section 4.2, is for informational purposes only and the Trustee’s receipt of such shall not constitute actual or
constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants pursuant to Article 4 (as to which the Trustee is entitled to rely
exclusively on Officers’ Certificates).
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF
DEFAULT
Section 5.1
Event Of Default Defined, Acceleration Of Maturity; Waiver Of Default
. “Event of Default” with respect to Securities of any series, wherever used herein, means any one of the following events which shall have occurred and be
continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) default in the payment of any installment of interest upon any of the Securities of such series
as and when the same shall become due and payable, and continuance of such default for a period of 30 days; PROVIDED that a valid extension of an interest payment period by the Issuer in accordance with the terms of such Securities shall not
constitute a failure to pay interest;
(b) default in the payment of all or any part of the principal or premium (if any) on any of the
Securities of such series as and when the same shall become due and payable either at maturity, upon any redemption, by declaration or otherwise;
(c) default in the payment of any sinking fund installment as and when the same shall become due and payable by the terms of the Securities of
such series;
19
(d) failure on the part of the Issuer duly to observe or perform any other of the covenants or
agreements on the part of the Issuer in the Securities of such series or contained in this Indenture (other than a covenant or agreement included in this Indenture solely for the benefit of a series of Securities other than such series) for a period
of 90 days after the date on which written notice specifying such failure, stating that such notice is a “Notice of Default” hereunder and demanding that the Issuer remedy the same, shall have been given by registered or certified mail,
return receipt requested, to the Issuer by the Trustee, or to the Issuer and the Trustee by the holders of at least 33% in aggregate principal amount of the Outstanding Securities of the series to which such covenant or agreement relates;
(e) a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Issuer in an involuntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Issuer for any substantial part of its or their
property or ordering the winding up or liquidation of its or their affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days;
(f) the Issuer shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or
consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Issuer or
for any substantial part of its or their property, or make any general assignment for the benefit of creditors; or
(g) any other Event of
Default provided in the Board Resolution or Officer’s Certificate under which such series of Securities is issued or in the form of Security for such series.
If an Event of Default described in clause (a), (b) or (c) occurs and is continuing, then, and in each and every such case, except
for any series of Securities the principal of which shall have already become due and payable, either the Trustee or the Holders of not less than 33% in aggregate principal amount of the Securities of each such affected series then Outstanding
hereunder (each such series voting as a separate class) by notice in writing to the Issuer (and to the Trustee if given by Securityholders), may declare the entire principal (or, if the Securities of such series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the terms of such series) of all Securities of such series, and the interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration, the same
shall become immediately due and payable.
Except as otherwise provided in the terms of any series of Securities pursuant to
Section 2.3, if an Event of Default described in clause (d) or (g) above with respect to all series of the Securities then Outstanding, occurs and is continuing, then, and in each and every such case, unless the Principal of all of
the Securities shall have already become due and payable, either the Trustee or the Holders of not less than 33% in aggregate principal amount of all of the Securities then Outstanding hereunder (treated as one class) by notice in writing to the
Issuer (and to the Trustee if given by Securityholders), may declare the entire principal (or, if the Securities of any series are Original Issue Discount Securities, such portion of the principal
20
amount as may be specified in the terms of such series) of all of the Securities then Outstanding, and the interest accrued thereon, if any, to be due and payable immediately, and upon such
declaration, the same shall become immediately due and payable.
If an Event of Default described in clause (d) or (g) occurs
and is continuing, which Event of Default is with respect to less than all series of Securities then Outstanding, then, and in each and every such case, except for any series of Securities the principal of which shall have already become due and
payable, either the Trustee or the Holders of not less than 33% in aggregate principal amount of the Securities of each such affected series then Outstanding hereunder (each such series voting as a separate class) by notice in writing to the Issuer
(and to the Trustee if given by Securityholders), may declare the entire principal (or, if the Securities of such series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) of
all Securities of such series, and the interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration, the same shall become immediately due and payable.
If an Event of Default described in clause (e) or (f) above occurs and is continuing, then the principal amount of all the
Securities then Outstanding, and the interest accrued thereon, if any, shall become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.
The foregoing provisions are subject to the condition that if, at any time after the principal (or, if the Securities are Original Issue
Discount Securities, such portion of the principal as may be specified in the terms thereof) of the Securities of any series (or of all the Securities, as the case may be) shall have been so declared due and payable, and before any judgment or
decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the Issuer shall pay or shall deposit with the Trustee a sum sufficient to pay
(i) all matured installments of interest upon all the Securities of such series (or all the Securities, as the case may be);
and
(A) the principal of any and all Securities of such series (or of all the Securities, as the case may be) which shall
have become due otherwise than by acceleration; and
(B) interest upon such principal and, to the extent that payment of
such interest is enforceable under applicable law, on overdue installments of interest, at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Securities of such series (or
at the respective rates of interest or Yields to Maturity of all the Securities, as the case may be) to the date of such payment or deposit; and
(C) all amounts payable to the Trustee pursuant to Section 6.6; and
21
(ii) all Events of Default under this Indenture, other than the non-payment of
the principal of Securities which shall have become due by acceleration, shall have been cured, waived or otherwise remedied as provided herein, then and in every such case the Holders of a majority, or any applicable supermajority, in aggregate
principal amount of all the Securities of such series voting as a separate class (or all the Securities, as the case may be, voting as a single class), then Outstanding, by written notice to the Issuer and to the Trustee, may waive all defaults with
respect to such series (or with respect to all the Securities, as the case may be) and rescind and annul such declaration and its consequences, but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or
shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the principal of any Original Issue
Discount Securities shall have been accelerated and declared due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded and annulled, the principal amount of such Original
Issue Discount Securities shall be deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion of the principal thereof as shall be due and
payable as a result of such acceleration, together with interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities.
Section 5.2
Collection Of Indebtedness By Trustee; Trustee May Prove Debt
. The Issuer covenants that (a) in case default
shall be made in the payment of any installment of interest on any of the Securities of any series when such interest shall have become due and payable, and such default shall have continued for a period of 30 days, or (b) in case default shall
be made in the payment of all or any part of the principal of any of the Securities of any series when the same shall have become due and payable, whether upon maturity of the Securities of such series or upon any redemption or by declaration or
otherwise, then upon demand of the Trustee, the Issuer will pay to the Trustee for the benefit of the Holders of the Securities of such series the whole amount that then shall have become due and payable on all Securities of such series, for
principal and interest, as the case may be (with interest to the date of such payment upon the overdue principal and, to the extent that payment of such interest is enforceable under applicable law, on overdue installments of interest at the same
rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Securities of such series); and in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of
collection, and such other amount due the Trustee under Section 6.6 in respect of Securities of such series.
Until such demand is
made by the Trustee, the Issuer may pay the principal of and interest on the Securities of any series to the registered Holders, whether or not the Securities of such series be overdue.
In case the Issuer shall fail forthwith to pay such amounts upon such demand, the Trustee, in its own name as trustee of an express trust,
shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceedings to judgment or final decree, and may
22
enforce any such judgment or final decree against the Issuer or other obligor upon the Securities and collect in the manner provided by law out of the property of the Issuer or other obligor upon
the Securities, wherever situated, all the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative
to the Issuer or any other obligor upon the Securities under Title 11 of the United States Code or any other applicable federal or state bankruptcy, insolvency or other similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been appointed for or taken possession of the Issuer or its property or such other obligor, or in case of any other comparable judicial proceedings relative to the Issuer or
other obligor upon the Securities, or to the creditors or property of the Issuer or such other obligor, the Trustee, irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this Section, shall be entitled and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of principal and interest (or, if the Securities of any series are Original Issue
Discount Securities, such portion of the principal amount as may be specified in the terms of such series) owing and unpaid in respect of the Securities of any series, and to file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for amounts payable to the Trustee under Section 6.6) and of the Securityholders allowed in any judicial proceedings relative to the Issuer or other obligor upon the Securities, or to
the creditors or property of the Issuer or such other obligor; and
(b) unless prohibited by applicable law and regulations, to vote on
behalf of the holders of the Securities of any series in any election of a receiver, assignee, trustee or a standby trustee in arrangement, reorganization, liquidation or other bankruptcy or insolvency proceedings, custodian or other Person
performing similar functions in respect of any such proceedings; and
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with respect to the claims of the Securityholders and of the Trustee on their behalf; and any trustee, receiver, or liquidator, custodian or other similar official performing
similar functions in respect of any such proceedings is hereby authorized by each of the Securityholders to make payments to the Trustee, and, in the event that the Trustee shall consent to the making of payments directly to the Securityholders, to
pay to the Trustee its costs and expenses of collection and all other amounts due to it pursuant to Section 6.6.
Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to or vote for or accept or adopt on behalf of any Securityholder any plan of reorganization, arrangement, adjustment or composition affecting the Securities of any series or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Securityholder in any such proceeding, except as aforesaid in clause (b).
23
All rights of action and of asserting claims under this Indenture, or under any of the Securities
of any series may be enforced by the Trustee without the possession of any of the Securities of such series or the production thereof in any trial or other proceedings relative thereto, and any such action or proceedings instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall be awarded to the Trustee for ratable distribution to the Holders of the Securities in respect of which such action was taken, after payment of all
sums due to the Trustee under Section 6.6 in respect of such Securities.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to which the Trustee shall be a party), the Trustee shall be held to represent all the Holders of the Securities in respect to which such action was taken, and it shall not
be necessary to make any Holders of such Securities parties to any such proceedings.
Section 5.3
Application Of Proceeds
. Any
moneys collected by the Trustee pursuant to this Article in respect of any series shall be applied in the following order at the date or dates fixed by the Trustee and, in case of the distribution of such moneys on account of principal or interest,
upon presentation of the several Securities in respect of which monies have been collected and stamping (or otherwise noting) thereon the payment, or issuing Securities of such series in reduced principal amounts in exchange for the presented
Securities of like series if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses
applicable to such series of Securities in respect of which monies have been collected, including all amounts due or reasonably anticipated to become due to the Trustee and each predecessor Trustee pursuant to Section 6.6 in respect to such
series of Securities;
SECOND: In case the principal of the Securities of such series in respect of which moneys have been collected shall
not have become and be then due and payable, to the payment of interest on the Securities of such series in default in the order of the maturity of the installments on such interest, with interest (to the extent that such interest has been collected
by the Trustee and is permitted by applicable law) upon the overdue installments of interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in such Securities, such
payments to be made ratably to the Persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the
Securities of such series in respect of which moneys have been collected shall have become and shall be then due and payable, to the payment of the whole amount then owing and unpaid upon all the Securities of such series for principal and interest,
with interest upon the overdue principal, and (to the extent that such interest has been collected by the Trustee and is permitted by applicable law) upon the overdue installations of interest at the same rate as the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) specified in the Securities of such series; and in case such moneys shall be insufficient to pay in full the whole amount so due and unpaid upon the Securities of such series, then to the
payment of such principal and interest or Yield to Maturity, without preference or priority of principal over interest or Yield to Maturity, or of interest or Yield to Maturity over principal, or of any installment of interest over any other
installment of interest or of any Security of such series over any other Security of such series, ratably to the aggregate of such principal and accrued and unpaid interest or Yield to Maturity; and
24
FOURTH: To the payment of the remainder, if any, to the Issuer or any other Person lawfully
entitled thereto. The Trustee may fix a record date and payment date for any payment to Holders.
Section 5.4
Suits For
Enforcement
. In case an Event of Default has occurred, has not been waived and is continuing, the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or in equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the
exercise of any power granted in this Indenture or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.
Section 5.5
Restoration Of Rights On Abandonment Of Proceedings
. In case the Trustee or any Holder of any Security shall have
proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned for any reason, or shall have been determined adversely to the Trustee or to such Holder, then and in every such case the Issuer, the
Trustee and the Holders of Securities shall be restored severally and respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Issuer, the Trustee and the Securityholders shall continue as though no
such proceedings had been taken.
Section 5.6
Limitations On Suits By Securityholders
. No Holder of any Security of any series
shall have any right by virtue or by availing of any provision of this Indenture to institute any action or proceeding at law or in equity or in bankruptcy or otherwise upon or under or with respect to this Indenture or such Security, or for the
appointment of a trustee, receiver, liquidator, custodian or other similar official or for any other remedy hereunder or thereunder, unless (a) such Holder previously shall have given to the Trustee written notice of an Event of Default with
respect to Securities of such series and of the continuance thereof, as hereinbefore provided, (b) the Holders of not less than 33% in aggregate principal amount of the Securities of such series then Outstanding (treated as a single class)
shall have made written request upon the Trustee to institute such action or proceedings in its own name as Trustee hereunder and shall have offered to the Trustee such reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, (c) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity shall have failed to institute any such action or proceeding, and (d) no direction inconsistent
with such written request shall have been given to the Trustee pursuant to Section 5.9; it being understood and intended, and being expressly covenanted by the Holder of every Security with every other Holder and the Trustee, that no one or
more Holders of Securities of any series shall have any right in any manner whatever by virtue or by availing of any provision of this Indenture or any Security to affect, disturb or prejudice the rights of any other such Holder of Securities or to
obtain or seek to obtain priority over or preference to any other such Holder or to enforce any right under this Indenture or any Security, except in the manner herein provided and for the equal, ratable and common benefit of all Holders of
Securities of the applicable series. For the protection and enforcement of the provisions of this Section, each and every Securityholder and the Trustee shall be entitled to such relief as can be given either at law or in equity.
25
Section 5.7
Unconditional Right Of Securityholders To Institute Certain Suits
.
Notwithstanding any other provision in this Indenture and any provision of any Security, the right of any Holder of any Security to receive payment of the principal of and interest on such Security on or after the respective due dates expressed in
such Security or the applicable redemption dates provided for in such Security, or to institute suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.
Section 5.8
Powers And Remedies Cumulative; Delay Or Omission Not Waiver Of Default
. Except as provided in Section 5.6,
no right or remedy herein conferred upon or reserved to the Trustee or to the Holders of Securities is intended to be exclusive of any other right or remedy and every right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of Securities to exercise any
right or power accruing upon any Event of Default occurring and continuing as aforesaid shall impair any such right or power or shall be construed to be a waiver of any such Event of Default or an acquiescence therein. Every power and remedy given
by this Indenture, any Security or law to the Trustee or to the Holders of Securities may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or, subject to Section 5.6, by the Holders of Securities.
Section 5.9
Control By Holders Of Securities
. The Holders of a majority in aggregate principal amount of the Securities of each
series affected (with each such series voting as a separate class) at the time Outstanding shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee with respect to the Securities of such series by this Indenture; PROVIDED that such Holders shall have offered to the Trustee such reasonable indemnity as it may require against costs, expenses and liabilities to be
incurred therein or thereby; and PROVIDED, FURTHER, that such direction shall not be otherwise than in accordance with law and the provisions of this Indenture; and PROVIDED, FURTHER, that (subject to the provisions of Section 6.1) the Trustee
shall have the right to decline to follow any such direction if (a) the Trustee, being advised by counsel, shall determine that the action or proceeding so directed may not lawfully be taken; or (b) if the Trustee shall determine in good
faith that the action or proceedings so directed would involve the Trustee in personal liability; or (c) if the Trustee in good faith shall so determine that the actions or forbearances specified in or pursuant to such direction would be unduly
prejudicial to the interests of Holders of the Securities of all affected series not joining in the giving of said direction, it being understood that (subject to Section 6.1) the Trustee shall have no duty to ascertain whether or not such
actions or forbearances are unduly prejudicial to such Holders.
26
Nothing in this Indenture shall impair the right of the Trustee in its discretion to take any
action deemed proper by the Trustee and which is not inconsistent with such direction or directions by Securityholders.
Section 5.10
Waiver Of Past Defaults
. Prior to the declaration of acceleration of the Securities of any series as provided in Section 5.1, the Holders of a majority in aggregate principal amount of the Securities of such series at the time
Outstanding (voting as a single class) may on behalf of the Holders of all such Securities waive any past default or Event of Default described in Section 5.1 and its consequences, except (i) in the payment of the principal of or premium,
if any, or interest if any, on or any additional amounts payable in respect of any security of that series or (ii) a default in respect of a covenant or provision hereof which cannot be modified or amended without the consent of the Holder of
each Security affected. In the case of any such waiver, the Issuer, the Trustee and the Holders of all such Securities shall be restored to their former positions and rights hereunder, respectively, and such default shall cease to exist and be
deemed to have been cured and not to have occurred for purposes of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 5.11
Trustee To Give Notice Of Default, But May Withhold In Certain Circumstances
. The Trustee shall, within 90 days after
the occurrence of a default with respect to the Securities of any series, give notice of all defaults with respect to that series known to the Trustee to all Holders of Securities of such series in the manner and to the extent provided in
Section 313(c) of the Trust Indenture Act, unless in each case such defaults shall have been cured before the mailing or publication of such notice (the term “default” for the purpose of this Section being hereby defined to mean any
event or condition which is, or with notice or lapse of time or both would become, an Event of Default); PROVIDED that, except in the case of default in the payment of the principal of or interest on any of the Securities of such series, or in the
payment of any sinking fund installment on such series, the Trustee shall be protected in withholding such notice if and so long as the Trustee in good faith determines that the withholding of such notice is in the interests of the Securityholders
of such series.
Section 5.12
Waiver of Stay or Extension Laws
. The Issuer covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force which may affect the covenants or the
performance of this Indenture; and the Issuer (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
Section 5.13
Right Of Court To Require Filing Of Undertaking To Pay Costs
. All parties to this Indenture agree, and each Holder
of any Security by his or her acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable
attorneys’ fees, against any party litigant in such suit,
27
having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee, to
any suit instituted by any Securityholder or group of Securityholders of any series holding in the aggregate more than 10% in aggregate principal amount of the Securities of such series, or, in the case of any suit relating to or arising under
clause (d) or (g) of Section 5.1 (if the suit relates to Securities of more than one but less than all series), 10% in aggregate principal amount of Securities then Outstanding and affected thereby, or in the case of any suit relating
to or arising under clause (d) or (g) (if the suit under clause (d) or (g) relates to all the Securities then Outstanding) or (e) or (f) of Section 5.1, 10% in aggregate principal amount of all Securities then
Outstanding, or to any suit instituted by any Securityholder for the enforcement of the payment of the principal of or interest on any Security on or after the due date expressed in such Security or any date fixed for redemption.
ARTICLE VI
CONCERNING
THE TRUSTEE
Section 6.1
Duties And Responsibilities Of The Trustee; During Default; Prior To Default
. Prior to the
occurrence of an Event of Default with respect to the Securities of a particular series and after the curing or waiving of all Events of Default which may have occurred with respect to such series, the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture with respect to such series of Securities. In case an Event of Default with respect to the Securities of a series has occurred and has not been cured or waived, the Trustee shall
exercise with respect to such series of Securities such of the rights and powers vested in it by this Indenture with respect to such series of Securities, and use the same degree of care and skill in their exercise, as a prudent Person would
exercise or use under the circumstances in the conduct of his or her own affairs.
No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(a) prior to the occurrence of an Event of Default with respect to the Securities of any series and after the curing or waiving of all such
Events of Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with
respect to the Securities of any series shall be determined solely by the express provisions of this Indenture, and the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) in the
absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of any such statements, certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements of this Indenture;
28
(b) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible
Officer or Responsible Officers of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders pursuant to Section 5.9 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or in accordance with the direction of a majority of the Outstanding Securities in
exercising any trust or power conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if there shall be reasonable ground for believing that the
repayment of such funds or indemnity satisfactory to it against such liability is not reasonably assured to it.
The provisions of this
Section 6.1 are in furtherance of and subject to Section 315 of the Trust Indenture Act.
Section 6.2
Certain Rights Of
The Trustee
. In furtherance of and subject to the Trust Indenture Act, and subject to Section 6.1:
(a) the Trustee may rely and
shall be protected in acting or refraining from acting upon any resolution, Board Resolution, Officer’s Certificate or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture, note,
coupon, security or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Issuer mentioned herein shall be sufficiently evidenced by an Officer’s Certificate
(unless other evidence in respect thereof is specifically prescribed herein or in the terms established in respect of any series); and any resolution of the Board of Directors shall be evidenced by a Board Resolution;
(c) the Trustee may consult with counsel and any written advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted to be taken by it hereunder in good faith and in reliance thereon in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee reasonable security or indemnity satisfactory to it in its sole discretion against the costs,
expenses and liabilities which might be incurred therein or thereby;
29
(e) the Trustee shall not be liable for any action taken or omitted by it in good faith and
believed by it to be authorized or within the discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the
occurrence of an Event of Default hereunder and after the curing or waiving of all Events of Default, the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, appraisal, bond, debenture, note, coupon, security or other paper or document unless (i) requested in writing so to do by the Holders of not less than a majority in aggregate principal
amount of the Securities of all series affected then Outstanding (treated as one class) or (ii) otherwise provided in the terms of any series of Securities pursuant to Section 2.3; PROVIDED that, if the payment within a reasonable time to
the Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such expenses or liabilities as a condition to proceeding; the reasonable expenses of every such investigation shall be paid by the Issuer or, if paid by the Trustee or any predecessor trustee,
shall be repaid by the Issuer upon demand;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys not regularly in its employ and the Trustee shall not be responsible for any misconduct or negligence on the part of any such agent or attorney appointed with due care by it hereunder;
(h) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder;
(i) in no event shall the Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;
(j) the Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized
at such time to take specified actions pursuant to this Indenture; and
(k) the Trustee shall not be charged with knowledge of any Event
of Default with respect to the Securities of any series for which it is acting as Trustee unless a Responsible Officer of the Trustee shall have received actual written notice of such Event of Default by the Company or any other obligor on such
Securities or by any Holder of such Securities.
Section 6.3
Trustee Not Responsible For Recitals, Disposition Of Securities Or
Application Of Proceeds Thereof
. The recitals contained herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken as the statements of the Issuer, and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no
30
representation as to the validity or sufficiency of this Indenture or of the Securities. The Trustee shall not be accountable for the use or application by the Issuer of any of the Securities or
of the proceeds thereof. The Trustee shall incur no liability for any performance failure or delay of any obligation hereunder if such failure or delay arises from or is caused by, directly or indirectly, acts of God, war, terrorism, fire, floods,
strikes, electrical outages, equipment or transmission failures, or other causes reasonably beyond its control; it being understood that the Trustee shall use commercially reasonable efforts consistent with accepted practices for corporate trustees
to resume performance as soon as reasonably practicable under the circumstances.
Section 6.4
Trustee And Agents May Hold
Securities; Collections, Etc
. The Trustee or any agent of the Issuer or of the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not the Trustee or such
agent and may otherwise deal with the Issuer and receive, collect, hold and retain collections from the Issuer with the same rights it would have if it were not the Trustee or such agent.
Section 6.5
Held By Trustee
. Subject to the provisions of Section 9.4, all moneys received by the Trustee shall, until used
or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by mandatory provisions of law. Neither the Trustee nor any agent of the Issuer
or the Trustee shall be under any liability for interest on any moneys received by it hereunder.
Section 6.6
Compensation And
Indemnification Of Trustee And Its Prior Claim
. The Issuer covenants and agrees to pay to the Trustee from time to time, and the Trustee shall be entitled to reasonable compensation (which shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust) and the Issuer covenants and agrees to pay or reimburse the Trustee and each predecessor trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by or on
behalf of it in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its counsel and of all agents and other Persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence or bad faith. The Issuer also covenants to indemnify the Trustee and each predecessor trustee (and their respective directors, officers, agents and employees) for, and to hold them
harmless against, any loss, liability, fine, penalty or expense (including out-of-pocket and incidental expenses and legal fees) incurred without negligence or bad faith on their part as determined by a court of competent jurisdiction, arising out
of or in connection with the acceptance or administration of this Indenture or the trusts hereunder and its duties hereunder, including, in each case, the costs and expenses of defending itself against or investigating any claim of liability in the
premises. The obligations of the Issuer under this Section to compensate and indemnify the Trustee and each predecessor trustee (and their respective directors, officers, agents and employees) and to pay or reimburse the Trustee and each predecessor
trustee for expenses, disbursements and advances shall constitute additional indebtedness hereunder and shall survive the satisfaction and discharge of this Indenture and the resignation or removal of the Trustee. Such additional indebtedness shall
be a senior claim to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit of the Holders of particular Securities and the Securities are hereby subordinated to such
senior claim. The Trustee shall have a lien prior to the Securities as to all property and funds held by it hereunder for any amount owing it or any predecessor Trustee pursuant to this Section 6.6, except with respect to funds held in trust
for the benefit of the Holders of particular Securities.
31
Section 6.7
Right Of Trustee To Rely On Officer’s Certificate, Etc
. Subject to
Sections 6.1 and 6.2, whenever in the administration of the trusts of this Indenture, the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering or omitting any action hereunder, such matter
(unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or wilfull misconduct on the part of the Trustee, be deemed to be conclusively proved and established by an Officer’s Certificate
delivered to the Trustee, and such certificate, in the absence of negligence or wilfull misconduct on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this
Indenture upon the faith thereof.
Section 6.8
Indentures Not Creating Potential Conflicting Interests For The Trustee
. This
Indenture is hereby specifically described for the purposes of Section 310(b)(1)(i) of the Trust Indenture Act with respect to series of Securities that are of an equal priority.
Section 6.9
Qualification Of Trustee; Conflicting Interests
. The Trustee shall comply with Section 310(b) of the Trust
Indenture Act. Subject to compliance with the Trust Indenture Act, the Trustee and its affiliates, may also engage in or be interested in any financial or other transaction with the Issuer and may act as depository, trustee or agent for any
committee of Holder or other obligations of the Issuer as freely as if it were not Trustee.
Section 6.10
Persons Eligible For
Appointment As Trustee
. The Trustee for each series of Securities hereunder shall at all times be a corporation or banking association organized and doing business under the laws of the United States of America, any State thereof or the District
of Columbia, having a combined capital and surplus of at least $50,000,000, and which is authorized under such laws to exercise corporate trust powers and is subject to supervision or examination by Federal, state or District of Columbia authority.
If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, the
Trustee shall resign immediately in the manner and with the effect specified in Section 6.11.
The provisions of this
Section 6.10 are in furtherance of and subject to Section 310(a) of the Trust Indenture Act.
Section 6.11
Resignation
And Removal; Appointment Of Successor Trustee
.
(a) The Trustee, or any trustee or trustees hereafter appointed, may at any time resign
with respect to one or more or all series of Securities by giving 30 days’ prior written notice of resignation to the Issuer and by mailing notice of such resignation to the Holders of then Outstanding Registered Securities of each series
affected at their addresses as they shall appear on the registry books. Upon receiving such notice of resignation, the Issuer shall promptly appoint a successor trustee or trustees with respect to the applicable series by written instrument
32
in duplicate, executed by authority of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee or trustees. If no
successor trustee shall have been so appointed with respect to any series and have accepted appointment within 30 days after the mailing of such notice of resignation, the resigning trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee, or any Securityholder who has been a bona fide Holder of a Security or Securities of the applicable series for at least six months may, subject to the provisions of Section 5.13, on behalf of himself and all
others similarly situated, petition any such court for the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of Section 310(b) of the Trust Indenture Act with respect to any
series of Securities after written request therefor by the Issuer or by any Securityholder who has been a bona fide Holder of a Security or Securities of such series for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with the provisions of Section 6.10 hereof and
Section 310(a) of the Trust Indenture Act and shall fail to resign after written request therefor by the Issuer or by any Securityholder; or
(iii) the Trustee shall become incapable of acting with respect to any series of Securities, or shall be adjudged bankrupt or
insolvent, or a receiver or liquidator of the Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or
liquidation;
then, in any such case, the Issuer may upon 10 days’ prior written notice to the Trustee remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series by written instrument, in duplicate, executed by order of the Board of Directors of the Issuer, one copy of which instrument shall be delivered to the Trustee so removed
and one copy to the successor trustee, or, subject to the provisions of Section 315(e) of the Trust Indenture Act, any Securityholder who has been a bona fide Holder of a Security or Securities of such series for at least six months may on
behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee with respect to such series. Such court may thereupon, after such notice, if
any, as it may deem proper and so prescribe, remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in
aggregate principal amount of the Securities of each series at the time outstanding may at any time remove the Trustee with respect to Securities of such series and appoint a successor trustee with respect to the Securities of such series by
delivering to the Trustee so removed, to the successor trustee so appointed and to the Issuer the evidence as of the action in that regard taken by the Securityholders as provided for in Section 7.1.
33
(d) Any resignation or removal of the Trustee with respect to any series and any appointment of a
successor trustee with respect to such series pursuant to any of the provisions of this Section 6.11 shall become effective upon acceptance of appointment by the successor trustee as provided in Section 6.12.
Section 6.12
Acceptance Of Appointment By Successor Trustee
. Any successor trustee appointed as provided in Section 6.11
shall execute and deliver to the Issuer and to its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all rights, powers, duties and obligations with respect to such series of its predecessor hereunder, with like effect as if originally named
as trustee for such series hereunder; but, nevertheless, on the written request of the Issuer or of the successor trustee, upon payment of its charges then unpaid, the trustee ceasing to act shall, subject to Section 9.4, pay over to the
successor trustee all moneys at the time held by it hereunder and shall execute and deliver an instrument transferring to such successor trustee all such rights, powers, duties and obligations. Upon request of any such successor trustee, the Issuer
shall execute any and all instruments in writing for more fully and certainly vesting in and confirming to such successor trustee all such rights and powers. Any trustee ceasing to act shall, nevertheless, retain a prior claim upon all property or
funds held or collected by such trustee to secure any amounts then due it pursuant to the provisions of Section 6.6.
If a successor
trustee is appointed with respect to the Securities of one or more (but not all) series, the Issuer, the predecessor trustee and each successor trustee with respect to the Securities of any applicable series shall execute and deliver an indenture
supplemental hereto which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the predecessor trustee with respect to the Securities of any series as to which the
predecessor trustee is not retiring shall continue to be vested in the predecessor trustee, and shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such trustees as co-trustees of the same trust and that each such trustee shall be trustee of a trust or trusts under
separate indentures.
No successor trustee with respect to any series of Securities shall accept appointment as provided in this
Section 6.12 unless at the time of such acceptance such successor trustee shall be qualified under Section 310(b) of the Trust Indenture Act and eligible under the provisions of Section 6.10.
Upon acceptance of appointment by any successor trustee as provided in this Section 6.12, the Issuer shall give notice thereof to the
Holders of Registered Securities of each series affected by mailing such notice to such Holders at their addresses as they shall appear on the registry books. If the acceptance of appointment is substantially contemporaneous with the resignation,
then the notice called for by the preceding sentence may be combined with the notice called for by Section 6.11. If the Issuer fails to give such notice within 10 days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be given at the expense of the Issuer.
34
Section 6.13
Merger, Conversion, Consolidation Or Succession To Business Of Trustee
.
Any corporation, association or other entity into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation, association or other entity resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation, association or other entity succeeding to the corporate trust business of the Trustee, (including by sale or transfer of all or substantially all of its corporate trust assets) shall be the successor of
the Trustee hereunder without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding; PROVIDED that such corporation, association or other entity shall be
qualified under Section 310(b) of the Trust Indenture Act and eligible under the provisions of Section 6.10.
In case at the
time such successor to the Trustee shall succeed to the trusts created by this Indenture, any of the Securities of any series shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee and deliver such Securities so authenticated; and, in case at that time any of the Securities of any series shall not have been authenticated, any such successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of the successor Trustee; and in all such cases such certificate of authentication shall have the full force which under this Indenture or the Securities of such series it is
provided that the certificate of authentication of the Trustee shall have; PROVIDED that the right to adopt the certificate of authentication of any predecessor trustee or to authenticate Securities of any series in the name of any predecessor
trustee shall apply only to its successor or successors by merger, conversion or consolidation.
Section 6.14
Preferential
Collection Of Claims Against The Issuer
. The Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding any creditor relationship as provided in Section 311(b) of the Trust Indenture Act. A Trustee who has resigned
or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent indicated therein.
Section 6.15
Appointment Of Authenticating Agent
. As long as any Securities of a series remain Outstanding, the Trustee may, by an instrument in writing, appoint with the approval of the Issuer an authenticating agent (the “Authenticating
Agent”) which shall be authorized to act on behalf of the Trustee to authenticate Securities, including Securities issued upon exchange, registration of transfer, partial redemption or pursuant to Section 2.9. Securities of each such
series authenticated by such Authenticating Agent shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee. Whenever reference is made in this Indenture to the
authentication and delivery of Securities of any series by the Trustee or to the Trustee’s Certificate of Authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent
for such series and a Certificate of Authentication executed on behalf of the Trustee by such Authenticating Agent. Such Authenticating Agent shall at all times be a corporation organized and doing business under the laws of the United States of
America or of any State, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000 (determined as provided in Section 6.10 with respect to the Trustee) and subject to
supervision or examination by federal or state authority.
35
Any corporation into which any Authenticating Agent may be merged or converted, or with which it
may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which any Authenticating Agent shall be a party, or any corporation succeeding to the corporate trust business of any Authenticating Agent, shall
continue to be the Authenticating Agent with respect to all series of Securities for which it served as Authenticating Agent without the execution or filing of any paper or any further act on the part of the Trustee or such Authenticating Agent. Any
Authenticating Agent may at any time, and if it shall cease to be eligible shall, resign by giving written notice of resignation to the Trustee and to the Issuer.
Upon receiving such a notice of resignation or upon such a termination, or in case at any time any Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 6.15 with respect to one or more series of Securities, the Trustee shall, upon receipt of an Issuer Order, appoint a successor Authenticating Agent and the Issuer shall provide notice
of such appointment to all Holders of Securities of such series in the manner and to the extent provided in Section 11.2. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all rights,
powers, duties and responsibilities of its predecessor hereunder, with like effect as if originally named as Authenticating Agent. The Issuer agrees to pay to the Authenticating Agent for such series from time to time reasonable compensation. The
Authenticating Agent for the Securities of any series shall have no responsibility or liability for any action taken by it as such at the direction of the Trustee.
Sections 6.2, 6.3, 6.4, 6.6 and 7.3 shall be applicable to any Authenticating Agent.
ARTICLE VII
CONCERNING
THE SECURITYHOLDERS
Section 7.1
Evidence Of Action Taken By Securityholders
. Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by a specified percentage in principal amount of the Securityholders of any or all series may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such specified percentage of Securityholders in Person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee. Proof of execution of any instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture, and subject to the provisions of Sections 6.1 and 6.2, conclusive in
favor of the Trustee and the Issuer, if made in the manner provided in this Article.
Notwithstanding the foregoing, with respect to any
Registered Global Security, nothing herein shall prevent the Issuer, the Trustee, or any agent of the Issuer or the Trustee, from giving effect to any request, demand, authorization, direction, notice, consent, waiver or other action provided in
this Indenture to be given or taken by a Depository or impair, as between a Depository and such holders of beneficial interest, the operation of customary practices governing the exercise of the rights of the Depository (or its nominee) as Holder of
any Security.
Without limiting the generality of this Section 7.1, unless otherwise provided in or pursuant to this Indenture, a
Holder, including a Depository that is a Holder of a Registered Global Security, may make, give or take, by a proxy or proxies duly appointed in writing, any
36
request, demand, authorization, direction, notice, consent, waiver or other action provided in or pursuant to this Indenture to be made, given or taken by Holders, and a Depository that is a
Holder of a Registered Global Security may give its proxy or proxies to the Depository’s participants or the beneficial owners of interests in any such Registered Global Security, as the case may be, through such Depository’s standing
instructions and customary practices.
The Trustee shall fix a record date for the purpose of determining the Persons who are beneficial
owners of interests in any permanent Registered Global Security held by a Depository and who are entitled under the procedures of such Depository to make, give or take, by a proxy or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in or pursuant to this Indenture to be made, given or taken by Holders. If such a record date is fixed, the Holders on such record date or their duly appointed proxy or
proxies, and only such Persons, shall be entitled to make, give or take such request, demand, authorization, direction, notice consent, waiver or other action, whether or not such Holders remain Holders after such record date. No such request,
demand, authorization, direction notice, consent, waiver or other action shall be valid or effective if made, given or taken more than 90 days after such record date.
Section 7.2
Proof Of Execution Of Instruments And Of Holding Of Securities
. The execution of any instrument by a Securityholder or
his or her agent or proxy may be proved in accordance with such reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee. The holding of Registered Securities shall be proved by
the Security register or by a certificate of the registrar thereof.
Section 7.3
Holders To Be Treated As Owners
. The Issuer,
the Trustee and any agent of the Issuer or the Trustee may deem and treat the Person in whose name any Security shall be registered upon the Security register for such series as the absolute owner of such Security (whether or not such Security shall
be overdue and notwithstanding any notation of ownership or other writing thereon) for the purpose of receiving payment of or on account of the principal of and, subject to the provisions of this Indenture, interest on such Security and for all
other purposes; and neither the Issuer nor the Trustee nor any agent of the Issuer or the Trustee shall be affected by any notice to the contrary.
No holder of any beneficial interest in any Registered Global Security held on its behalf by a Depository (or its nominee) shall have any
rights under this Indenture with respect to such Registered Global Security or any Security represented thereby, and such Depository may be treated by the Issuer, the Trustee, and any agent of the Issuer or the Trustee as the owner of such
Registered Global Security or any Security represented thereby for all purposes whatsoever. None of the Issuer, the Trustee, any Paying Agent or the Security Registrar will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests of a Registered Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
Section 7.4
Securities Owned By Issuer Deemed Not Outstanding
. In determining whether the Holders of the requisite aggregate
principal amount of Outstanding Securities of any or all series have concurred in any request, demand, authorization, direction, notice, consent, waiver or other action by Securityholders under this Indenture, Securities which are owned by
37
the Issuer or any other obligor on the Securities with respect to which such determination is being made or by any Affiliate of the Issuer or any other obligor on the Securities with respect to
which such determination is being made shall be disregarded and deemed not to be Outstanding for the purpose of any such determination, except that for the purpose of determining whether the Trustee shall be protected in relying on any such action
only Securities which the Trustee knows are so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s
right so to act with respect to such Securities and that the pledgee is not the Issuer or any other obligor upon the Securities or any Affiliate of the Issuer or any other obligor on the Securities. In case of a dispute as to such right, the advice
of counsel shall be full protection in respect of any decision made by the Trustee in accordance with such advice. Upon request of the Trustee, the Issuer shall furnish to the Trustee promptly an Officer’s Certificate listing and identifying
all Securities, if any, known by the Issuer to be owned or held by or for the account of any of the above-described Persons; and the Trustee shall be entitled to accept such Officer’s Certificate as conclusive evidence of the facts therein set
forth and of the fact that all Securities not listed therein are Outstanding for the purpose of any such determination.
Section 7.5
Right Of Revocation Of Action Taken
. At any time prior to (but not after) the evidencing to the Trustee, as provided in Section 7.1, of the taking of any action by the Holders of the percentage in aggregate principal amount of the
Securities of any or all series, as the case may be, specified in this Indenture in connection with such action, any Holder of a Security the serial number of which is shown by the evidence to be included among the serial numbers of the Securities
the Holders of which have consented to such action may, by filing written notice at the Corporate Trust Office and upon proof of holding as provided in this Article, revoke such action so far as concerns such Security. Except as aforesaid, any such
action taken by the Holder of any Security shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Security and of any Securities issued in exchange or substitution therefor or on registration of transfer
thereof, irrespective of whether or not any notation in regard thereto is made upon any such Security. Any action taken by the Holders of the percentage in aggregate principal amount of the Securities of any or all series, as the case may be,
specified in this Indenture in connection with such action shall be conclusively binding upon the Issuer, the Trustee and the Holders of all the Securities affected by such action.
ARTICLE VIII
SUPPLEMENTAL INDENTURES
Section 8.1
Supplemental Indentures Without Consent Of Securityholders
. The Issuer, when authorized by a resolution of its Board
of Directors (which resolution may provide general terms or parameters for such action and may provide that the specific terms of such action may be determined in accordance with or pursuant to an Issuer Order), and the Trustee may from time to time
and at any time enter into an indenture or indentures supplemental hereto for one or more of the following purposes:
(a) to evidence the
succession of another corporation to the Issuer, or successive successions, and the assumption by the successor corporation of the covenants, agreements and obligations of the Issuer pursuant to any applicable covenants herein and pursuant to the
terms of the Securities as set forth in Section 2.3;
38
(b) to add to the covenants of the Issuer such further covenants, restrictions, conditions or
provisions as the Issuer and the Trustee shall consider to be for the protection of the Holders of Securities and to make the occurrence, or the occurrence and continuance, of a default in any such additional covenants, restrictions, conditions or
provisions an Event of Default permitting the enforcement of all or any of the several remedies provided in this Indenture as herein set forth; PROVIDED that in respect of any such additional covenant, restriction, condition or provision such
supplemental indenture may provide for a particular period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may provide for an immediate enforcement upon such an Event of Default or
may limit the remedies available to the Trustee upon such an Event of Default or may limit the right of the Holders of a majority in aggregate principal amount of the Securities of such series to waive such an Event of Default; PROVIDED, FURTHER,
that any such addition, change or elimination (i) shall neither (A) apply to any Security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision and (ii) shall become
effective only when there is no such Security Outstanding;
(c) to cure any ambiguity or to correct or supplement any provision contained
herein or in any supplemental indenture which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture, or to conform the terms hereof, as amended and supplemented, that are applicable to the
Securities of any series thereof to the description of the terms of such Securities in the offering memorandum, prospectus supplement or other offering document applicable to such Securities at the time of initial sale thereof;
(d) to establish any other provisions as the Issuer may deem necessary or desirable; PROVIDED that no such action shall adversely affect the
interests of the Holders of the Securities in any material respect;
(e) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by
more than one trustee, pursuant to the requirements of Section 6.12;
(f) to establish the form or terms of Securities of any series
as contemplated by Sections 2.2 and 2.3;
(g) to make any changes permitted by a supplemental indenture provided such change only affects
the series of Securities to which such supplemental indenture applies; and
(h) to make any change that would provide any additional
rights or benefits to the Holders of the Securities or that does not adversely affect the legal rights under this Indenture of any Holder.
Without limiting the generality of the foregoing, if the Trust Indenture Act as in effect at the date of the execution and delivery of this
Indenture or at any time thereafter shall be amended and
39
(x) if any such amendment shall require one or more changes to any provisions hereof or the
inclusion herein of any additional provisions, or shall by operation of law be deemed to effect such changes or incorporate such provisions by reference or otherwise, this Indenture shall be deemed to have been amended so as to conform to such
amendment to the Trust Indenture Act, and the Issuer and the Trustee may, without the consent of any Holders, enter into an indenture supplemental hereto to effect or evidence such changes or additional provisions; or
(y) if any such amendment shall permit one or more changes to, or the elimination of, any provisions hereof which, at the date of the execution
and delivery hereof or at any time thereafter, are required by the Trust Indenture Act to be contained herein, this Indenture shall be deemed to have been amended to effect such changes or elimination, and the Issuer and the Trustee may, without the
consent of any Holders, enter into an indenture supplemental hereto to evidence such amendment hereof
The Trustee is hereby authorized to
join with the Issuer in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any
property thereunder, but the Trustee shall not be obligated to enter into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section may be executed without the consent of the Holders of any of the
Securities at the time outstanding, notwithstanding any of the provisions of Section 8.2.
Section 8.2
Supplemental
Indentures With Consent Of Securityholders
.
(a) Except as set forth in paragraph (b) below, with the consent (evidenced as
provided in Article VII) of the Holders of not less than a majority in aggregate principal amount of the Securities at the time Outstanding of all series of Securities affected by such supplemental indenture (voting as one class), the Issuer, when
authorized by a resolution of its Board of Directors (which resolution may provide general terms or parameters for such action and may provide that the specific terms of such action may be determined in accordance with or pursuant to an Issuer
Order), and the Trustee may, from time to time and at any time, enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as in force and effect at the date of execution thereof) for
the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the Holders of the Securities of each such series.
(b) No such supplemental indenture shall (i) extend the fixed maturity of any Security or reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon, or reduce any amount payable on redemption thereof, or make the principal thereof (including any amount in respect of original issue discount), or interest thereon payable in any
coin or currency other than that provided in the Securities or in accordance with the terms thereof, or reduce the amount of the principal of an Original Issue Discount Security that would
40
be due and payable upon an acceleration of the maturity thereof pursuant to Section 5.1 or the amount thereof provable in bankruptcy pursuant to Section 5.2, or impair or affect the
right of any Securityholder to institute suit for the payment thereof when due, in each case without the consent of the Holder of each Security so affected, or (ii) reduce the aforesaid percentage of Securities of any series, the consent of the
Holders of which is required for any such supplemental indenture, without the consent of the Holders of each Security so affected.
(c) A
supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of Holders of
Securities of such series, with respect to such covenant or provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
(d) Upon the request of the Issuer, accompanied by an Officer’s Certificate or a Board Resolution (which Board Resolution may provide
general terms or parameters for such action and may provide that the specific terms of such action may be determined in accordance with or pursuant to an Issuer Order or Officer’s Certificate) authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of the consent of the Holders of the Securities as aforesaid and other documents, if any, required by Section 7.1, the Trustee shall join with the Issuer in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
It shall not be necessary for the consent of the Securityholders under this Section to approve the particular
form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
Promptly
after the execution by the Issuer and the Trustee of any supplemental indenture pursuant to the provisions of this Section 8.2, the Trustee shall give notice thereof to the Holders of then Outstanding Registered Securities of each series
affected thereby, by mailing a notice thereof by first-class mail to such Holders at their addresses as they shall appear on the Security register, and such notice shall set forth in general terms the substance of such supplemental indenture. Any
failure of the Issuer to give such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
Section 8.3
Effect Of Supplemental Indenture
. Upon the execution of any supplemental indenture pursuant to the provisions hereof,
this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities under this Indenture of the Trustee, the Issuer and the Holders of
Securities of each series affected thereby shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental indenture shall be
and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
Section 8.4
Documents To Be
Given To Trustee
. The Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Officer’s Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant to this
Article VIII is authorized or permitted by this Indenture.
41
Section 8.5
Notation On Securities In Respect Of Supplemental Indentures
. Securities
of any series authenticated and delivered after the execution of any supplemental indenture pursuant to the provisions of this Article may bear a notation in form approved by the Trustee for such series as to any matter provided for by such
supplemental indenture or as to any action taken by Securityholders. If the Issuer or the Trustee shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Board of Directors, to any
modification of this Indenture contained in any such supplemental indenture may be prepared by the Issuer, authenticated by the Trustee and delivered in exchange for the Securities of such series then Outstanding.
ARTICLE IX
SATISFACTION
AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
Section 9.1
Satisfaction And Discharge Of Indenture
.
(a) The following provisions shall apply to the Securities of each series unless specifically otherwise provided in a Board Resolution,
Officer’s Certificate or supplemental indenture provided pursuant to Section 2.3. If at any time (i) the Issuer shall have paid or caused to be paid the principal of and interest on all the Securities of any series Outstanding
hereunder and (other than Securities of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.9) as and when the same shall have become due and payable, or (ii) the Issuer shall
have delivered to the Trustee for cancellation all Securities of any series theretofore authenticated (other than any Securities of such series which shall have been destroyed, lost or stolen and which shall have been replaced or paid as provided in
Section 2.9) or (iii) (A) all the Securities of such series not theretofore delivered to the Trustee for cancellation shall have become due and payable, or are by their terms to become due and payable within one year or are to be
called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and (B) the Issuer shall have irrevocably deposited or caused to be deposited with the Trustee funds in trust a
sufficient amount to pay at maturity or upon redemption all outstanding Securities of such series, including interest thereon to maturity or such redemption date in (1) cash (other than moneys repaid by the Trustee or any paying agent to the
Issuer in accordance with Section 9.4), (2) U.S. Government Obligations, maturing as to principal and interest at such times and in such amounts as will insure the availability of cash sufficient to pay at such maturity or upon such
redemption, as the case may be, or (3) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay
(x) the principal and interest on all Securities of such series on each date that such principal or interest is due and payable and (y) any mandatory sinking fund payments on the dates on which such payments are due and payable in
accordance with the terms of this Indenture and the Securities of such series; and if, in any such case, the Issuer shall also pay or cause to be paid all other sums payable hereunder by the Issuer, then this Indenture shall cease to be of further
effect (except as to (i) rights of registration of transfer and exchange of Securities of such series pursuant to Section 2.8 and the Issuer’s right of optional redemption, if any, (ii) substitution of mutilated, defaced,
destroyed, lost or stolen Securities (iii) rights of holders of
42
Securities pursuant to Section 2.8 to receive payments of principal thereof and interest thereon, upon the original stated due dates therefor (but not upon acceleration), and remaining
rights of the Holders to receive mandatory sinking fund payments, if any, (iv) the rights, obligations, duties and immunities of the Trustee hereunder, including those under Section 6.6, (v) the rights of the Holders of Securities of
such series as beneficiaries hereof with respect to the property so deposited with the Trustee payable to all or any of them, and (vi) the obligations of the Issuer under Section 3.2) and the Trustee, on demand of the Issuer accompanied by
an Officer’s Certificate and an Opinion of Counsel complying with Section 10.5 and at the cost and expense of the Issuer, shall execute proper instruments acknowledging such satisfaction of and discharging this Indenture; PROVIDED, that
the rights of Holders of the Securities to receive amounts in respect of principal of and interest on the Securities held by them shall not be delayed longer than required by then-applicable mandatory rules or policies of any securities exchange
upon which the Securities are listed. The Issuer agrees to reimburse the Trustee for any costs or expenses thereafter reasonably and properly incurred and to compensate the Trustee for any services thereafter reasonably and properly rendered by the
Trustee in connection with this Indenture or the Securities of such series.
(b) The following provisions shall apply to the Securities of
each series unless specifically otherwise provided in a Board Resolution, Officer’s Certificate or supplemental indenture provided pursuant to Section 2.3. In addition to discharge of this Indenture pursuant to the next preceding
paragraph, the Issuer shall be deemed to have paid and discharged the entire indebtedness on all the Securities of such a series on the date of the deposit referred to in subparagraph (i) below, and the provisions of this Indenture with respect
to the Securities of such series shall no longer be in effect (except as to (1) rights of registration of transfer and exchange of Securities of such series pursuant to Section 2.8 and the Issuer’s right of optional redemption, if
any, (2) substitution of mutilated, defaced, destroyed, lost or stolen Securities, (3) rights of Holders of Securities to receive payments of principal thereof and interest thereon, upon the original stated due dates therefor (but not upon
acceleration), and remaining rights of the Holders to receive mandatory sinking fund payments, if any, (4) the rights, obligations, duties and immunities of the Trustee hereunder, (5) the rights of the Holders of Securities of such series
as beneficiaries hereof with respect to the property so deposited with the Trustee payable to all or any of them and (6) the obligations of the Issuer under Section 3.2) and the Trustee, at the expense of the Issuer, shall at the
Issuer’s request, execute proper instruments acknowledging the same, if:
(i) with reference to this provision the
Issuer has irrevocably deposited or caused to be irrevocably deposited with the Trustee as funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Securities of such series: (A) cash in
an amount, or (B) U.S. Government Obligations, maturing as to principal and interest at such times and in such amounts as will insure the availability of cash or (C) a combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay (1) the principal and interest on all Securities of such series on each date that such principal or interest is due
and payable and (2) any mandatory sinking fund payments on the dates on which such payments are due and payable in accordance with the terms of this Indenture and the Securities of such series;
43
(ii) such deposit will not result in a breach or violation of, or constitute a
default under, any agreement or instrument to which the Issuer is a party or by which it is bound;
(iii) the Issuer has
delivered to the Trustee an Opinion of Counsel from a nationally recognized law firm based on the fact that (A) the Issuer has received from, or there has been published by, the IRS a ruling or (B) since the date hereof, there has been a
change in the applicable United States federal income tax law, in either case to the effect that, and such opinion shall confirm that, the Holders of the Securities of such series will not recognize income, gain or loss for United States federal
income tax purposes as a result of such deposit, defeasance and discharge and will be subject to United States federal income tax on the same amount and in the same manner and at the same times, as would have been the case if such deposit,
defeasance and discharge had not occurred;
(iv) the Issuer has delivered to the Trustee an Opinion of Counsel to the
effect that after the 91st day following the deposit, the trust funds will not be subject to avoidance as a preferential transfer under Section 547(b) of the United States Bankruptcy Code (except with respect to any Holder that is an
“insider” of the Issuer within the meaning of the United States Bankruptcy Code); and
(v) the Issuer has
delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to the defeasance contemplated by this provision have been complied with.
(c) If the trustee or any paying agent is unable to apply any money in accordance with this Indenture by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise prohibiting that application, then the Issuer’s obligations under this Indenture and the Securities shall be revived and reinstated as though no deposit had occurred
pursuant to this Indenture, until such time as the Trustee or paying agent is permitted to apply all money in accordance with this Indenture; PROVIDED that if the Issuer makes any payment of principal of (or premium, if any) or interest, if any, on
any Security following the reinstatement of such obligations, the Issuer will be subrogated to the rights of the Holders to receive such payment from the money held by the Trustee or paying agent.
(d) The Issuer shall be released from its obligations under Sections 3.6 and 3.7 and unless otherwise provided for in the Board Resolution
and/or Officer’s Certificate establishing such series of Securities, from all covenants and other obligations referred to in Section 2.3(14) or 2.3(15) with respect to such series of Securities, outstanding on and after the date the
conditions set forth below are satisfied (hereinafter, “Covenant Defeasance”). For this purpose, such covenant defeasance means that, with respect to the Outstanding Securities of any series, the Issuer may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in such Section, whether directly or indirectly by reason of any reference elsewhere herein to such Section or by reason of any reference in such Section to any other
provision herein or in any other document and such omission to comply shall not constitute an Event of Default under Section 5.1, but the remainder of this Indenture and such Securities shall be unaffected thereby. The following shall be the
conditions to application of this
44
subsection (d) of this Section 9.1, unless otherwise provided for in the Board Resolution and/or Officer’s Certificate establishing such series of Securities:
(i) The Issuer has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the holders of the Securities of such series, (i) cash in an amount, or (ii) U.S. Government Obligations maturing as to principal
and interest at such times and in such amounts as will insure the availability of cash or (iii) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay (A) the principal and interest on all Securities of such series and (B) any mandatory sinking fund payments on the day on which such payments are due and payable in accordance with the
terms of this Indenture and the Securities of such series;
(ii) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to the Securities shall have occurred and be continuing on the date of such deposit;
(iii) Such covenant defeasance shall not cause the Trustee to have a conflicting interest as defined in Section 6.9 or for
purposes of the Trust Indenture Act with respect to any securities of the Issuer;
(iv) Such covenant defeasance shall not
result in a breach or violation of, or constitute a default under any agreement or instrument to which the Issuer is a party or by which it is bound;
(v) Such covenant defeasance shall not cause any Securities then listed on any registered national securities exchange under
the Exchange Act to be delisted;
(vi) The Issuer shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel from a nationally recognized law firm to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for United States federal income tax purposes as a result of such covenant defeasance
and will be subject to United States federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred;
(vii) The Issuer has delivered to the Trustee an Opinion of Counsel to the effect that after the 91st day following the
deposit, the trust funds will not be subject to avoidance as a preferential transfer under Section 547(b) of the United States Bankruptcy Code (except with respect to any Holder that is an “insider” of the Issuer within the meaning of
the United States Bankruptcy Code); and
(viii) The Issuer shall have delivered to the Trustee an Officer’s
Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to the covenant defeasance contemplated by this provision have been complied with.
45
Section 9.2
Application By Trustee Of Funds Deposited For Payment Of Securities
.
Subject to Section 9.4, all moneys deposited with the Trustee (or other trustee) pursuant to Section 9.1 shall be held in trust and applied by it to the payment, either directly or through any paying agent (including the Issuer acting as
its own paying agent), to the Holders of the particular Securities of such series for the payment or redemption of which such moneys have been deposited with the Trustee, of all sums due and to become due thereon for principal and interest; but such
money need not be segregated from other funds except to the extent required by law.
Section 9.3
Repayment Of Moneys Held By
Paying Agent
. In connection with the satisfaction and discharge of this Indenture with respect to Securities of any series, all moneys then held by any paying agent under the provisions of this Indenture with respect to such series of Securities
shall, upon demand of the Issuer, be repaid to it or paid to the Trustee and thereupon such paying agent shall be released from all further liability with respect to such moneys.
Section 9.4
Return Of Moneys Held By Trustee And Paying Agent Unclaimed For Two Years
. Any moneys deposited with or paid to the
Trustee or any paying agent for the payment of the principal of or interest on any Security of any series and not applied but remaining unclaimed for two years after the date upon which such principal or interest shall have become due and payable,
shall, upon the written request of the Issuer and unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property law, be repaid to the Issuer by the Trustee for such series or such paying agent, and the
Holder of the Securities of such series shall, unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property laws, thereafter look only to the Issuer for any payment which such Holder may be entitled to
collect, and all liability of the Trustee or any paying agent with respect to such moneys shall thereupon cease; PROVIDED that the Trustee or such paying agent, before being required to make any such repayment with respect to moneys deposited with
it for any payment shall at the expense of the Issuer, mail by first-class mail to Holders of such Securities at their addresses as they shall appear on the Security register, notice that such moneys remain and that, after a date specified therein,
which shall not be less than 30 days from the date of such mailing or publication, any unclaimed balance of such money then remaining will be repaid to the Issuer.
Section 9.5
Indemnity For U.S. Government Of Obligations
. The Issuer shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 9.1 or the principal or interest received in respect of such obligations.
ARTICLE X
MISCELLANEOUS
PROVISIONS
Section 10.1
Incorporators, Shareholders, Officers And Directors Of Issuer Exempt From Individual Liability
.
No recourse under or upon any obligation, covenant or agreement contained in this Indenture, or in any Security, or because of any indebtedness evidenced thereby, shall be had against any incorporator, as such, or against any past, present or future
shareholder, officer or director, as such, of the Issuer or of any successor, either directly or
46
through the Issuer or any successor, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all
such liability being expressly waived and released by the acceptance of the Securities by the Holders thereof and as part of the consideration for the issue of the Securities.
Section 10.2
Provisions Of Indenture For The Sole Benefit Of Parties And Holders Of Securities
. Nothing in this Indenture, in the
Securities, expressed or implied, shall give or be construed to give to any Person, other than the parties thereto and their successors and the Holders of the Securities any legal or equitable right, remedy or claim under this Indenture or under any
covenant or provision herein contained, all such covenants and provisions being for the sole benefit of the parties hereto and their successors and of the Holders of the Securities.
Section 10.3
Successors And Assigns Of Issuer Bound By Indenture
. All the covenants, stipulations, promises and agreements in this
Indenture contained by or in behalf of the Issuer shall bind its successors and assigns, whether so expressed or not.
Section 10.4
Notices And Demands On Issuer, Trustee And Holders Of Securities
. Any notice or demand which by any provision of this Indenture is required or permitted to be given or served by the Trustee or by the Holders of Securities to or on the Issuer
may be given or served by being deposited postage prepaid, first-class mail (except as otherwise specifically provided herein) addressed (until another address of the Issuer is filed by the Issuer with the Trustee) to Exelon Corporation, 10 South
Dearborn Street, 49
th
Floor, Chicago, Illinois 60603-3005, Attention: Secretary. Any notice, direction, request or demand by the Issuer or any Holder of Securities to or upon the Trustee shall be
deemed to have been sufficiently given or served by being deposited postage prepaid, first-class mail (except as otherwise specifically provided herein) addressed (until another address of the Trustee is filed by the Trustee with the Issuer) to, The
Bank of New York Mellon Trust Company, N.A., 2 North LaSalle Street, Suite 1020, Chicago, IL 60602 Attention: Global Corporate Trust.
Where this Indenture provides for notice to Holders of Registered Securities, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class mail, postage prepaid, to each Holder entitled thereto, at his or her last address as it appears in the Security register.
The Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, pdf, facsimile
transmission or other similar unsecured electronic methods; PROVIDED that the Trustee shall have received an incumbency certificate listing persons designated to give such instructions or directions and containing specimen signatures of such
designated persons, which such incumbency certificate shall be amended and replaced whenever a person is to be added or deleted from the listing. If the Issuer elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar
electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising
directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The Issuer agrees to assume all risks arising
out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by third parties.
47
Section 10.5
Officer’s Certificates And Opinions Of Counsel; Statements To Be
Contained Therein
. Upon any application or demand by the Issuer to the Trustee to take any action under any of the provisions of this Indenture, the Issuer shall furnish to the Trustee an Officer’s Certificate stating that all conditions
precedent provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent have been complied with, except that in the case of
any such application or demand as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or demand, no additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture shall include (a) a statement that the Person making such certificate or opinion has read such covenant or condition, (b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such certificate or opinion are based, (c) a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him or
her to express an informed opinion as to whether or not such covenant or condition has been complied with and (d) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer may be based, insofar as it relates to legal matters, upon a certificate or
opinion of or representations by counsel, unless such officer knows that the certificate or opinion or representations with respect to the matters upon which his or her certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any certificate, statement or opinion of counsel may be based, insofar as it relates to factual matters or information in the possession of the Issuer, upon the certificate,
statement or opinion of or representations by an officer or officers of the Issuer, unless such counsel knows that the certificate, statement or opinion or representations with respect to the matters upon which his or her certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous.
Any
certificate, statement or opinion of an officer of the Issuer or of counsel may be based, insofar as it relates to accounting matters, upon a certificate or opinion of or representations by an accountant or firm of accountants in the employ of the
Issuer, unless such officer or counsel, as the case may be, knows that the certificate or opinion of or representations with respect to the accounting matters upon which his or her certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent
firm of public accountants filed with and directed to the Trustee shall contain a statement that such firm is independent.
48
Section 10.6
Payments Due On Saturdays, Sundays And Holidays
. Unless otherwise
provided in a Board Resolution or Officer’s Certificate, if the date of maturity of interest on or principal of the Securities of any series or the date fixed for redemption or repayment of any such Security shall not be a Business Day, then
payment of interest or principal need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the date of maturity or the date fixed for redemption, and no interest shall accrue for
the period after such date.
Section 10.7
Conflict Of Any Provision Of Indenture With Trust Indenture Act
. If and to the
extent that any provision of this Indenture limits, qualifies or conflicts with duties imposed by, or with another provision (an “incorporated provision”) included in this Indenture by operation of Sections 310 to 318, inclusive, of the
Trust Indenture Act, such imposed duties or incorporated provision shall control.
Section 10.8
Governing Law
. This Indenture
and the Securities shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflict of laws principles thereunder, except to the extent that the law of any other jurisdiction shall be mandatorily
applicable.
Section 10.9
Waiver of Jury Trial
. EACH OF THE ISSUER AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.
Section 10.10
FATCA
. In order to comply with applicable tax laws, rules and regulations (inclusive of directives, guidelines and
interpretations promulgated by competent authorities) in effect from time to time (“Applicable Law”) a foreign financial institution, issuer, trustee, paying agent, holder or other institution is or has agreed to be subject to related to
this Indenture, the Company agrees (i) to provide to The Bank of New York Mellon Trust Company, N.A. sufficient information about holders or other applicable parties and/or transactions (including any modification to the terms of such
transactions) so The Bank of New York Mellon Trust Company, N.A. can determine whether it has tax related obligations under Applicable Law, (ii) that The Bank of New York Mellon Trust Company, N.A. shall be entitled to make any withholding or
deduction from payments under this Indenture to the extent necessary to comply with Applicable Law for which The Bank of New York Mellon Trust Company, N.A. shall not have any liability, and (iii) to hold harmless The Bank of New York Mellon
Trust Company, N.A. for any losses it may suffer due to the actions it takes to comply with such Applicable Law. The terms of this section shall survive the termination of this Indenture.
Section 10.11
Counterparts
. This Indenture may be executed in any number of counterparts, each of which shall be an original; but
such counterparts shall together constitute but one and the same instrument.
Section 10.12
Effect Of Headings
. The Article
and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
49
ARTICLE XI
REDEMPTION OF SECURITIES AND SINKING FUNDS
Section 11.1
Applicability Of Article
. The provisions of this Article shall be applicable to the Securities of any series which
are redeemable before their maturity or to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 2.3 for Securities of such series.
Section 11.2
Notice Of Redemption; Partial Redemptions
. Notice of redemption to the Holders of Registered Securities of any series
to be redeemed as a whole or in part at the option of the Issuer shall be given by mailing notice of such redemption by first class mail, postage prepaid, at least 15 days and not more than 60 days prior to the date fixed for redemption to such
Holders of Securities of such series at their last addresses as they shall appear upon the registry books. Any notice which is mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the Holder
receives the notice. Failure to give notice by mail, or any defect in the notice to the Holder of any Security of a series designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of such
Security of such series.
The notice of redemption to each such Registered Holder shall specify the principal amount of each Security of
such series held by such Registered Holder to be redeemed, the date fixed for redemption, the redemption price, the place or places of payment, that payment will be made upon presentation and surrender of such Securities, that such redemption is
pursuant to the mandatory or optional sinking fund, or both, if such be the case, that interest accrued to the date fixed for redemption will be paid as specified in such notice and that on and after said date interest thereon or on the portions
thereof to be redeemed will cease to accrue. In case any Security of a series is to be redeemed in part only, the notice of redemption to Registered Holders of Securities of the series shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for redemption, upon surrender of such Security, a new Security or Securities of such series in principal amount equal to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at the option of the Issuer shall be given by the Issuer or, at the
Issuer’s request, by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the
notice of redemption given as provided in this Section, the Issuer will deposit with the Trustee or with one or more paying agents (or, if the Issuer is acting as its own paying agent, set aside, segregate and hold in trust as provided in
Section 3.4) an amount of money sufficient to redeem on the redemption date all the Securities of such series so called for redemption at the appropriate redemption price, together with accrued interest to the date fixed for redemption (it
being understood and agreed that the Trustee shall have no obligation to calculate or verify any redemption price). The Issuer will deliver to the Trustee at least 10 days prior to the date fixed for redemption, or such shorter period as shall be
acceptable to the Trustee, an Officer’s Certificate stating the aggregate principal amount of Securities to be redeemed. In case of a redemption at the election of the Issuer prior to the expiration of any restriction on such redemption, the
Issuer shall deliver to the Trustee, prior to the giving of any notice of redemption to Holders pursuant to this Section, an Officer’s Certificate stating that such restriction has been complied with.
50
In the event that less than all of the Securities of a series are to be redeemed at any time,
except as otherwise provided for in a Board Resolution or Officer’s Certificate, selection of Securities for redemption will be made by the Trustee in compliance with the requirements governing redemptions of the principal securities exchange,
if any, on which the Securities are listed or if such securities exchange has no requirement governing redemption or the Securities are not then listed on a securities exchange, by any method as may be required by the Depository Trust Company in
accordance with its applicable procedures. Securities may be redeemed in part in multiples equal to the minimum authorized denomination for Securities of such series or any multiple thereof. The Trustee shall promptly notify the Issuer in writing of
the Securities of such series selected for redemption and, in the case of any Securities of such series selected for partial redemption, the principal amount thereof to be redeemed. For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities of any series shall relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Security which has been or is to be
redeemed.
Section 11.3
Payment Of Securities Called For Redemption
. If notice of redemption has been given as above provided,
the Securities or portions of Securities specified in such notice shall become due and payable on the date and at the place stated in such notice at the applicable redemption price, together with interest accrued to the date fixed for redemption,
and on and after said date (unless the Issuer shall default in the payment of such Securities at the redemption price, together with interest accrued to said date) interest on the Securities or portions of Securities so called for redemption shall
cease to accrue, and, except as provided in Sections 6.5 and 9.4, such Securities shall cease from and after the date fixed for redemption to be entitled to any benefit or security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the redemption price thereof and unpaid interest to the date fixed for redemption. On presentation and surrender of such Securities at a place of payment specified in said notice, said
Securities or the specified portions thereof shall be paid and redeemed by the Issuer at the applicable redemption price, together with interest accrued thereon to the date fixed for redemption; PROVIDED that payment of interest becoming due on or
prior to the date fixed for redemption shall be payable to the Holder of such Registered Securities registered as such on the relevant record date, subject to the terms and provisions of Sections 2.3 and 2.7.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of interest or Yield to Maturity (in the case of an Original Issue Discount Security) borne by such Security.
Upon presentation of any Security redeemed in part only, the Issuer shall execute and the Trustee shall authenticate and deliver to or on the
order of the Holder thereof, at the expense of the Issuer, a new Security or Securities of such series, of authorized denominations, in principal amount equal to the unredeemed portion of the Security so presented.
51
Section 11.4
Exclusion Of Certain Securities From Eligibility For Selection For
Redemption
. Securities shall be excluded from eligibility for selection for redemption if they are identified by registration and certificate number in an Officer’s Certificate delivered to the Trustee at least 10 days prior to the last
date on which notice of redemption may be given as being owned of record and beneficially by, and not pledged or hypothecated by, either (a) the Issuer or (b) an entity specifically identified in such written statement as directly or
indirectly controlling or controlled by or under direct or indirect common control with the Issuer.
Section 11.5
Mandatory And
Optional Sinking Funds
. The minimum amount of any sinking fund payment provided for by the terms of the Securities of any series is herein referred to as a “mandatory sinking fund payment,” and any payment in excess of such minimum
amount provided for by the terms of the Securities of any series is herein referred to as an “optional sinking fund payment.” The date on which a sinking fund payment is to be made is herein referred to as the “sinking fund payment
date.”
In lieu of making all or any part of any mandatory sinking fund payment with respect to any series of Securities in cash, the
Issuer may at its option (a) deliver to the Trustee Securities of such series theretofore purchased or otherwise acquired (except upon redemption pursuant to the mandatory sinking fund) by the Issuer or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise acquired (except as aforesaid) by the Issuer and delivered to the Trustee for cancellation pursuant to Section 2.10, (b) receive credit for optional sinking fund
payments (not previously so credited) made pursuant to this Section, or (c) receive credit for Securities of such series (not previously so credited) redeemed by the Issuer through any optional redemption provision contained in the terms of
such series. Securities so delivered or credited shall be received or credited by the Trustee at the sinking fund redemption price specified in such Securities.
On or before the 60th day next preceding each sinking fund payment date for any series, the Issuer will deliver to the Trustee an
Officer’s Certificate (which need not contain the statements required by Section 10.5) (a) specifying the portion of the mandatory sinking fund payment to be satisfied by payment of cash and the portion to be satisfied by credit of
Securities of such series and the basis for such credit, (b) stating that none of the Securities of such series has theretofore been so credited, (c) stating that no defaults in the payment of interest or Events of Default with respect to
such series have occurred (which have not been waived or cured) and are continuing and (d) stating whether or not the Issuer intends to exercise its right to make an optional sinking fund payment with respect to such series and, if so,
specifying the amount of such optional sinking fund payment which the Issuer intends to pay on or before the next succeeding sinking fund payment date. Any Securities of such series to be credited and required to be delivered to the Trustee in order
for the Issuer to be entitled to credit therefor as aforesaid which have not theretofore been delivered to the Trustee shall be delivered for cancellation pursuant to Section 2.10 to the Trustee with such Officer’s Certificate (or
reasonably promptly thereafter if acceptable to the Trustee). Such Officer’s Certificate shall be irrevocable and upon its receipt by the Trustee, the Issuer shall become unconditionally obligated to make all the cash payments or payments
therein referred to, if any, on or before the next succeeding sinking fund payment date. Failure of the Issuer, on or before any such 60th day, to deliver such Officer’s Certificate and Securities specified in this paragraph, if any, shall not
constitute a default but shall constitute, on and as of such date, the irrevocable election of the Issuer (i) that the
52
mandatory sinking fund payment for such series due on the next succeeding sinking fund payment date shall be paid entirely in cash without the option to deliver or credit Securities of such
series in respect thereof and (ii) that the Issuer will make no optional sinking fund payment with respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or both) to be made in cash on the next succeeding sinking fund payment date
plus any unused balance of any preceding sinking fund payments made in cash shall exceed $50,000 or a lesser sum in Dollars if the Issuer shall so request with respect to the Securities of any particular series, such cash shall be applied on the
next succeeding sinking fund payment date to the redemption of Securities of such series at the sinking fund redemption price together with accrued interest to the date fixed for redemption. If such amount shall be $50,000 or less and the Issuer
makes no such request then it shall be carried over until a sum in excess of $50,000 is available. The Trustee shall select, in the manner provided in Section 11.2, for redemption on such sinking fund payment date a sufficient principal amount
of Securities of such series to absorb said cash, as nearly as may be, and shall (if requested in writing by the Issuer) inform the Issuer of the serial numbers of the Securities of such series (or portions thereof) so selected. Securities shall be
excluded from eligibility for redemption under this Section if they are identified by registration and certificate number in an Officer’s Certificate delivered to the Trustee at least 60 days prior to the sinking fund payment date as being
owned of record and beneficially by, and not pledged or hypothecated by, either (a) the Issuer or (b) an entity specifically identified in such Officer’s Certificate as directly or indirectly controlling or controlled by or under
direct or indirect common control with the Issuer. The Trustee, in the name and at the expense of the Issuer (or the Issuer, if it shall so request the Trustee in writing) shall cause notice of redemption of the Securities of such series to be given
in substantially the manner provided in Section 11.2 (and with the effect provided in Section 11.3) for the redemption of Securities of such series in part at the option of the Issuer. The amount of any sinking fund payments not so applied
or allocated to the redemption of Securities of such series shall be added to the next cash sinking fund payment for such series and, together with such payment, shall be applied in accordance with the provisions of this Section. Any and all sinking
fund moneys held on the stated maturity date of the Securities of any particular series (or earlier, if such maturity is accelerated), which are not held for the payment or redemption of particular Securities of such series shall be applied,
together with other moneys, if necessary, sufficient for the purpose, to the payment of the principal of, and interest on, the Securities of such series at maturity.
On or before each sinking fund payment date, the Issuer shall pay to the Trustee in cash or shall otherwise provide for the payment of all
interest accrued to the date fixed for redemption on Securities to be redeemed on the next following sinking fund payment date.
The
Trustee shall not redeem or cause to be redeemed any Securities of a series with sinking fund moneys or give any notice of redemption of Securities for such series by operation of the sinking fund during the continuance of a default in payment of
interest on such Securities or of any Event of Default except that, where the giving of notice of redemption of any Securities shall theretofore have been made, the Trustee shall redeem or cause to be redeemed such Securities; PROVIDED, that it
shall have received from the Issuer a sum sufficient for such redemption. Except as aforesaid, any moneys in the sinking fund for such series at the time when any such default or Event of Default shall occur, and any moneys thereafter paid into the
sinking
53
fund, shall, during the continuance of such default or Event of Default be deemed to have been collected under Article V and held for the payment of all such Securities. In case such Event of
Default shall have been waived as provided in Section 5.10 or the default cured on or before the 60th day preceding the sinking fund payment date in any year, such moneys shall thereafter be applied on the next succeeding sinking fund payment
date in accordance with this Section to the redemption of such Securities.
[Remainder of Page Intentionally Left Blank]
54
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed and
attested as of the date first written above.
|
|
|
|
|
EXELON CORPORATION
|
|
|
|
|
By:
|
|
/s/ Kevin Garrido
|
|
Name:
|
|
Kevin Garrido
|
|
Title:
|
|
Assistant Treasurer
|
|
|
|
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
|
|
|
|
|
By:
|
|
/s/ Teresa Petta
|
|
Name:
|
|
Teresa Petta
|
|
Title:
|
|
Vice President
|
Exhibit 4.2
FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of June 11, 2015 (this “Supplemental Indenture”), is between EXELON CORPORATION, a
Pennsylvania corporation (the “Company”), and The Bank of New York Mellon Trust Company, National Association, a national banking association, as trustee (the “Trustee”).
WITNESSETH
WHEREAS,
pursuant to the Indenture, dated as of June 11, 2015, between the Company and the Trustee (the “Base Indenture” and, together with and as supplemented by this Supplemental Indenture, the “Indenture”), the Company may from
time to time issue and sell Securities (as defined in the Base Indenture) in one or more series and, pursuant to Section 2.3 of the Base Indenture, the Company may establish the form or terms of Securities of any series issued thereunder
through one or more supplemental indentures pursuant to Section 2.4 of the Base Indenture;
WHEREAS, the Company desires by this
Supplemental Indenture to create and authorize five new series of Securities entitled as follows: (i) “1.550% Notes due 2017” (the “2017 Notes”), limited initially to $550,000,000 in aggregate principal amount,
(ii) “2.850% Notes due 2020” (the “2020 Notes”), limited initially to $900,000,000 in aggregate principal amount, (iii) “3.950% Notes due 2025” (the “2025 Notes”), limited initially to $1,250,000,000
in aggregate principal amount, (iv) “4.950% Notes due 2035” (the “2035 Notes”), limited initially to $500,000,000 in aggregate principal amount, and (v) “5.100% Notes due 2045” (the “2045 Notes” and,
together with the 2017 Notes, the 2020 Notes, the 2025 Notes and the 2035 Notes, the “Notes”), limited initially to $1,000,000,000 in aggregate principal amount, and to provide the terms and conditions of the Notes and upon which the Notes
are to be executed, registered, authenticated, issued and delivered, the Company has duly authorized the execution and delivery of this Supplemental Indenture;
WHEREAS, the Company has duly authorized the execution and delivery of this Supplemental Indenture to establish the 2017 Notes, the 2020
Notes, the 2025 Notes, the 2035 Notes and the 2045 Notes each as a series of Securities under the Base Indenture and to provide for, among other things, the issuance and form of each series of Notes and the terms, provisions and conditions thereof;
WHEREAS, the 2017 Notes, the 2020 Notes, the 2025 Notes, the 2035 Notes and the 2045 Notes are five series of Securities and are being
issued under the Base Indenture and are subject to the terms contained therein and herein;
WHEREAS, the 2017 Notes, the 2020 Notes, the
2025 Notes, the 2035 Notes and the 2045 Notes are to be substantially in the form attached hereto as Exhibit A-1, Exhibit A-2, Exhibit A-3, Exhibit A-4 and Exhibit A-5, respectively; and
WHEREAS, all acts and things necessary to make the Notes, when executed by the Company and authenticated and delivered by or on behalf of the
Trustee as provided in the Base Indenture and this Supplemental Indenture, the valid, binding and legal obligations of the Company, and to make this Supplemental Indenture a legal, binding and enforceable agreement, have been done and performed.
NOW, THEREFORE, in order to declare the terms and conditions upon which the Notes are executed,
registered, authenticated, issued and delivered, and in consideration of the foregoing premises and the purchase of such Notes by the Holders thereof, the Company and the Trustee mutually covenant and agree, for the equal and proportionate benefit
of the Holders from time to time of the Notes, as follows:
Section 1.
Definitions
. Terms used in this Supplemental Indenture
and not defined herein shall have the respective meanings given such terms in the Base Indenture.
Section 2.
Creation and
Authorization of Series
.
(a) There is hereby created and authorized the following five new series of Securities to be offered and
issued under the Base Indenture, to be designated as the:
|
|
(i)
|
“1.550% Notes due 2017”
|
|
|
(ii)
|
“2.850% Notes due 2020”
|
|
|
(iii)
|
“3.950% Notes due 2025”
|
|
|
(iv)
|
“4.950% Notes due 2035”
|
|
|
(v)
|
“5.100% Notes due 2045”
|
(b) The 2017 Notes shall be limited initially to
$550,000,000 in aggregate principal amount, the 2020 Notes shall be limited initially to $900,000,000 in aggregate principal amount, the 2025 Notes shall be limited initially to $1,250,000,000 in aggregate principal amount, the 2035 Notes shall be
limited initially to $500,000,000 in aggregate principal amount and the 2045 Notes shall be limited initially to $1,000,000,000 in aggregate principal amount. Notwithstanding the foregoing initial aggregate principal amounts, the Company may, from
time to time and without consent of any Holders of the Notes, re-open any series of Notes on terms identical in all respects to the outstanding Notes of such series (except for the date of issuance, the date interest begins to accrue and, in certain
circumstances, the first interest payment date), so that such additional notes shall be consolidated with, form a single series with and increase the aggregate principal amount of the Notes of such series;
provided
that the additional notes
shall have a separate CUSIP number unless: (i) the additional notes and the outstanding Notes of the original series are treated as part of the same “issue” of debt instruments for U.S. federal income tax purposes, (ii) the
additional notes are issued pursuant to a “qualified reopening” of the outstanding Notes of the original series for U.S. federal income tax purposes or (iii) the additional notes are, and the outstanding Notes of the original series
were, issued without or with less than a
de minimis
amount of original issue discount for U.S. federal income tax purposes. Such additional notes shall have the same terms as to ranking, redemption, guarantees, waivers, amendments or
otherwise, as the applicable series of Notes, and will vote together as one class on all matters with respect to such series of Notes.
(c) The form of security for the 2017 Notes is Exhibit A-1, the form of security for the 2020 Notes is Exhibit A-2, the form of security for
the 2025 Notes is Exhibit A-3, the form of security for the 2035 Notes is Exhibit A-4 and the form of security for the 2045 Notes is Exhibit A-5.
2
(d) The date on which the principal is payable on each series of the Notes, unless accelerated
pursuant to the terms of the Indenture, shall be as provided in the applicable form of security attached hereto as Exhibit A-1, Exhibit A-2, Exhibit A-3,
Exhibit A-4
or Exhibit A-5.
(e) The Notes of each series shall bear interest as provided in the applicable form of security attached hereto as
Exhibit A-1,
Exhibit A-2,
Exhibit A-3,
Exhibit A-4 or Exhibit A-5. The Interest Payment Dates, and the Regular Record
Dates for the determination of Holders of the Notes to whom such interest is payable, for each series, shall be as provided in the applicable form of security attached hereto as Exhibit A-1, Exhibit A-2, Exhibit A-3, Exhibit A-4 or Exhibit A-5.
(f) The Notes will be the Company’s direct unsecured general obligations and will rank equally with all of its existing and future
unsecured and unsubordinated debt, will be senior in right of payment to all of its existing and future subordinated debt and will be junior to any of its future secured debt to the extent of the value of the collateral securing such secured debt.
(g) The Notes of each series will be issued only in fully registered form, without coupons, in denominations provided herein and in the
applicable form of security attached hereto as Exhibit A-1, Exhibit A-2, Exhibit A-3, Exhibit A-4 or Exhibit A-5.
(h) The Notes shall be
subject to the Events of Default provided in Section 5.1 of the Base Indenture. For purposes of the Notes (but not other Securities, unless provided by the terms thereof), an “Event of Default” shall also include:
the Company’s failure to pay principal at maturity or acceleration following a default in an aggregate amount of $100 million or more with
respect to any Indebtedness (as defined below) of the Company (not including Indebtedness of the Company’s Subsidiaries), or the acceleration of any of the Company’s Indebtedness in an aggregate amount of $100 million or more, which
default is not cured, waived or postponed pursuant to an agreement with the holders of the Indebtedness within 30 days after written notice, or the acceleration is not rescinded or annulled within 30 days after written notice.
As used above, “Indebtedness” means all obligations for borrowed money.
(i) The discharge, defeasance and covenant defeasance provisions that will apply to the Notes shall be as provided in the Base Indenture.
(j) The Notes of each series shall be issued in the form of one or more Registered Global Securities substantially in the applicable form of
security attached hereto as Exhibit A-1, Exhibit A-2, Exhibit A-3, Exhibit A-4 or Exhibit A-5. The Company initially appoints The Depository Trust Company to act as Depositary with respect to the Notes of each series. Additional provisions
applicable to the Notes issued in the form of a Registered Global Security are set forth in the applicable form of security attached hereto as Exhibit A-1, Exhibit A-2, Exhibit A-3, Exhibit A-4 or Exhibit A-5.
3
(k) The Notes shall be issuable only in minimum denominations of $2,000 and any integral
multiples of $1,000 in excess thereof.
(l) The Trustee will initially act as the Paying Agent with respect to the Notes of each series.
The office of the Paying Agent will be located at 2 North LaSalle Street, Suite 1020, Chicago, Illinois 60602.
(m) Except as otherwise
set forth herein and in the Notes, the terms of the Notes shall be as set forth in the Base Indenture, including those made part of the Base Indenture by reference to the Trust Indenture Act.
Section 3.
Redemption
.
(a)
Optional Redemption
. The Company shall have the right to redeem the Notes, in whole or in part, at its option, as follows: the 2017
Notes may be redeemed at any time, the 2020 Notes may be redeemed at any time prior to May 15, 2020, the 2025 Notes may be redeemed at any time prior to March 15, 2025, the 2035 Notes may be redeemed at any time prior to December 15,
2034 and the 2045 Notes may be redeemed at any time prior to December 15, 2044, in each case upon at least 15 days’ but no more than 60 days’ notice, at a redemption price equal to the greater of:
(i) 100% of the principal amount of the Notes to be redeemed, and
(ii) the sum of the present values of the remaining scheduled payments of principal and interest on the Notes to be redeemed (exclusive of
interest accrued to the redemption date) to maturity in the case of the 2017 Notes or, in the case of the 2020 Notes, the 2025 Notes, the 2035 Notes and the 2045 Notes, to May 15, 2020, March 15, 2025, December 15, 2034 or
December 15, 2044, as applicable, discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 15 basis points in the case of the 2017 Notes,
plus 20 basis points in the case of the 2020 Notes, plus 25 basis points in the case of the 2025 Notes, plus 30 basis points in the case of the 2035 Notes and plus 30 basis points in the case of the 2045 Notes, plus, in each case, accrued and unpaid
interest on the principal amount being redeemed to but excluding the date of redemption.
“Comparable Treasury Issue” means the
United States Treasury security or securities selected by an Independent Investment Banker (as defined below) as having an actual or interpolated maturity comparable to the remaining term of the Notes being redeemed that would be utilized, at the
time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a comparable maturity to the remaining term of the notes.
“Comparable Treasury Price” means, with respect to any redemption date, the average of the Reference Treasury Dealer Quotations (as
defined below) for such redemption date.
4
“Independent Investment Banker” means one of the Reference Treasury Dealers (as defined
below) appointed by us.
“Reference Treasury Dealer” means (1) any of Barclays Capital, Inc. or Goldman, Sachs &
Co. or their respective affiliates and (2) one other primary U.S. Government securities dealer in the United States of America (each, a “Primary Treasury Dealer”) selected by the Company; provided, however, that if any of the
foregoing shall cease to be a Primary Treasury Dealer, or is unwilling or unable to serve in such role, the Company shall substitute therefor another Primary Treasury Dealer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any redemption date, the average,
as determined by the Company, 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 Company at 3:30 p.m. New York City time on the third Business Day
preceding such redemption date.
“Treasury Rate” means, with respect to any redemption date, the rate per annum equal to the
semi-annual equivalent yield to actual or interpolated maturity (on a day count basis) 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 such redemption date.
The Company shall have the right to redeem the 2020 Notes at any time on or after May 15,
2020, the 2025 Notes at any time on or after March 15, 2025, the 2035 Notes at any time on or after December 15, 2034 or the 2045 Notes at any time on or after December 15, 2044, in each case, in whole or in part, at its option, upon
at least 15 days’ and not more than 60 days’ notice, at a redemption price, as calculated by the Company, equal to 100% of the principal amount of the notes then outstanding to be redeemed plus accrued and unpaid interest on the principal
amount being redeemed to but excluding the redemption date. The Trustee shall have no obligation to calculate or verify any redemption price or premium (if any).
Any optional redemption other than the Special Optional Redemption (as defined below) may be conditioned upon the consummation of one or more
other transactions, including any debt or equity issuance by the Company or any of its parent companies or Subsidiaries.
(b)
Special
Optional Redemption
.
(i) The 2025 Notes, the 2035 Notes and the 2045 Notes may be redeemed, in whole, at the option of the Company,
at any time prior to December 31, 2015, at a redemption price equal to 101% of the aggregate principal amount of the Notes of the applicable series, plus accrued and unpaid interest from and including the date of initial issuance, or the most
recent date to which interest has been paid, whichever is later, to but not including the date of redemption, if, in the Company’s judgment, its acquisition of Pepco Holdings, Inc. (the “Merger”) will not be consummated on or prior to
December 31, 2015 (the “Special Optional Redemption”).
(ii) If the Company exercises its option in clause (b)(i) above,
it shall provide notice to each Holder of the applicable series of Notes and to the Trustee, stating, among
5
other matters, that it is exercising such option and that all of the Notes of the applicable series will be redeemed on the redemption date set forth in the notice (which redemption date shall be
no earlier than three Business Days and no later than 30 days from the date such notice is given). This Section 3(b)(ii) shall apply to the Special Optional Redemption in lieu of Section 11.2 of the Base Indenture.
(c)
Special Mandatory Redemption
.
(i) Upon the first to occur of either (x) December 31, 2015, if the Merger is not consummated on or prior to such date, or
(y) the date on which the agreement relating to the Merger is terminated (each a “Special Mandatory Redemption Trigger”), the Company shall redeem the 2025 Notes, the 2035 Notes and the 2045 Notes (the “Special Mandatory
Redemption”), in whole, at a redemption price equal to 101% of the aggregate principal amount of such series of Notes, plus accrued and unpaid interest from and including the date of initial issuance, or the most recent date to which interest
has been paid, whichever is later, to but not including the date of the Special Mandatory Redemption.
(ii) Within five Business Days
after the occurrence of a Special Mandatory Redemption Trigger, the Company shall provide notice of the Special Mandatory Redemption to each Holder of the 2025 Notes, the 2035 Notes and the 2045 Notes and to the Trustee, stating, among other
matters, that a Special Mandatory Redemption Trigger has occurred and that all such series of Notes shall be redeemed on the redemption date set forth in the notice (which shall be no earlier than three Business Days and no later than 30 days from
the date such notice is given). This Section 3(c)(ii) shall apply to the Special Mandatory Redemption in lieu of Section 11.2 of the Base Indenture.
Section 4.
Effect of Supplemental Indenture
. This Supplemental Indenture is a supplemental indenture within the meaning of the
Base Indenture. The provisions of this Supplemental Indenture are intended to supplement those of the Base Indenture as in effect immediately prior to the execution and delivery hereof. The Base Indenture shall remain in full force and effect except
to the extent that the provisions of the Base Indenture are expressly modified by the terms of this Supplemental Indenture. The Base Indenture, as supplemented and amended by this Supplemental Indenture, is in all respects ratified, confirmed and
approved and, with respect to the Notes, the Base Indenture, as supplemented and amended by this Supplemental Indenture, shall be read, taken and construed as one and the same instrument.
Notwithstanding any other provision of the Base Indenture or this Supplemental Indenture to the contrary, to the extent any provisions of this
Supplemental Indenture or any Note issued hereunder shall conflict with any provision of the Base Indenture, the provisions of this Supplemental Indenture (including the terms and conditions of each series of Notes set forth in Section 2
hereof) shall govern.
Section 5.
Governing Law
. This Supplemental Indenture shall be governed by and construed in accordance
with the laws of the State of New York, without regard to conflict of laws principles thereunder, except to the extent that the law of any other jurisdiction shall be mandatorily applicable.
6
Section 6.
Waiver of Jury Trial
. EACH OF THE COMPANY AND THE TRUSTEE HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE OR THE TRANSACTION CONTEMPLATED HEREBY.
Section 7.
Trustee’s Disclaimer
. The Trustee shall not be responsible for and makes no representation as to the validity or
adequacy of the Notes of any series, it shall not be accountable for the Company’s use of the proceeds from the Notes of any series or any money paid to the Company or upon the Company’s direction under any provision of the Indenture or
the Notes, it shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it shall not be responsible for any statement or recital herein or any statement in the Notes of any series or
any other document in connection with the sale of the Notes of any series or pursuant to this Supplemental Indenture other than its certificate of authentication.
Section 8.
Amendments and Supplements
. Except as provided below, this Supplemental Indenture and the terms of the Notes shall be
modified only as provided in Article VIII of the Base Indenture.
With respect to the 2025 Notes, the 2035 Notes and the 2045 Notes (but
not other Securities, unless provided by the terms thereof), no supplemental indenture shall modify the date or amount of payment with respect to the Special Mandatory Redemption without the consent of each Holder of such series of the Notes.
Section 9.
Trust Indenture Act Controls
. If any provision hereof limits, qualifies or conflicts with the duties imposed by the
Trust Indenture Act § 318(c), the imposed duties shall control.
Section 10.
Counterpart Originals
. The parties may sign
any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. Delivery of an executed counterpart of a signature page to this Supplemental Indenture by telecopier,
facsimile or other electronic transmission (i.e. a “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart thereof. The exchange of copies of this Supplemental Indenture and of signature pages by
facsimile or PDF transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture and signature pages for all purposes.
[The remainder of this page is left blank intentionally]
7
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed as of the day and year first above written.
|
|
|
|
|
|
|
EXELON CORPORATION
|
|
|
|
|
By:
|
|
/s/ Kevin Garrido
|
|
|
|
Name:
|
|
Kevin Garrido
|
|
|
|
Title:
|
|
Assistant Treasurer
|
[Signature page to
First Supplemental Indenture]
|
|
|
|
|
|
|
THE BANK OF NEW YORK MELON TRUST COMPANY, NATIONAL ASSOCIATION
|
|
|
|
|
By:
|
|
/s/ Teresa Petta
|
|
|
|
Name:
|
|
Teresa Petta
|
|
|
|
Title:
|
|
Vice President
|
[Signature page to
First Supplemental Indenture]
Exhibit A-1
[Face of Security]
EXELON
CORPORATION
Certificate No. [●]
[THIS SECURITY IS A REGISTERED GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY (AS
DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) OR A NOMINEE OF THE DEPOSITORY, WHICH SHALL BE TREATED BY THE COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS SECURITY FOR ALL PURPOSES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, THIS CERTIFICATE IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), AND ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL AS THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS REGISTERED GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE.]
1
1.550% NOTES DUE 2017
CUSIP
No. 30161N AG6
ISIN No. US30161NAG60
Exelon Corporation, a Pennsylvania corporation (the “Company”), for value received, hereby promises to pay to [CEDE
& CO.]
2
, as nominee for The Depositary Trust Company, or its registered assigns, the principal sum of $ Dollars ($) [or such
greater or lesser amount as is indicated on the Schedule of Adjustments attached hereto]
3
on June 9, 2017, and to pay interest thereon, as provided on the reverse hereof, until the principal
and any unpaid and accrued interest are paid or duly provided for.
|
1
|
Insert in Global Notes only.
|
|
2
|
Insert in Global Notes only.
|
|
3
|
Insert in Global Notes only.
|
Interest Payment Dates: June 9 and December 9 of each year, with the first payment to
be made on December 9, 2015.
Regular Record Dates: June 8 and December 8 (or if not a Business Day, the immediately
preceding Business Day).
The provisions on the back of this certificate are incorporated as if set forth on the face hereof.
IN WITNESS WHEREOF, EXELON CORPORATION has caused this instrument to be duly signed.
|
|
|
|
|
|
|
EXELON CORPORATION
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
Kevin Garrido
|
|
|
|
Title:
|
|
Assistant Treasurer
|
[Signature page to
2017 Note]
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
|
|
|
|
|
The Bank of New York Mellon Trust Company, National Association, as Trustee
|
|
|
|
|
By:
|
|
|
|
|
|
Authorized Signatory
|
[Signature page to
2017 Note]
[Reverse of Security]
EXELON CORPORATION
1.550% NOTES
DUE 2017
1.
Interest
. Exelon Corporation, a Pennsylvania corporation (the “Company”), promises to pay or cause to be
paid interest on the principal amount of this Security at the rate per annum shown above. The Company shall pay interest, payable semi-annually in arrears, on June 9 and December 9 of each year, or if any such day is not a Business Day, on
the next succeeding Business Day, with the first payment to be made on December 9, 2015. Interest on the Securities shall accrue from and include the date that the Securities are issued to an excluding the date of maturity or redemption.
Interest shall be computed on the basis of a 360-day year of twelve 30-day months.
2.
Maturity
. The Securities will mature on
June 9, 2017 (the “Maturity Date”).
3.
Method of Payment
. Except as provided in the Indenture (as defined below),
the Company shall pay interest on the Securities on the applicable Interest Payment Dates, as set forth on the face of this security, to the persons who are holders of record of Securities at the close of business on the immediately preceding
Regular Record Date, as set forth on the face of this Security. Holders must surrender Securities to a Paying Agent to collect the principal amount. The Company shall pay, in money of the United States that at the time of payment is legal tender for
payment of public and private debts, all amounts due in cash with respect to the Securities, which amounts shall be paid by wire transfer of immediately available funds to the account designated by the Depositary for the Securities or its nominee.
4.
Paying Agent and Registrar
. Initially, The Bank of New York Mellon Trust Company, National Association, (the
“Trustee”) shall act as Paying Agent. The Company initially appoints the Trustee as the Registrar. The Company may change any Paying Agent or Registrar without prior notice to the holders. The Company or any of its Subsidiaries may act in
any such capacity.
5.
Indenture
. The Company issued the Securities under the Indenture, dated as of June 11, 2015 (the
“Base Indenture”), among the Company and the Trustee, as supplemented by the First Supplemental Indenture, dated as of June 11, 2015 (the “First Supplemental Indenture” and, together with the Base Indenture, as supplemented,
the “Indenture”), among the Company and the Trustee. The terms of the Securities include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code §§
77aaa-77bbbb), as amended and in effect from time to time (the “Trust Indenture Act”). The Securities are subject to all such terms, and holders are referred to the Indenture and the Trust Indenture Act for a statement of such terms. To
the extent any provision of this Security conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. The Indenture does not limit the aggregate principal amount of Securities that may be
issued thereunder. Subject to the conditions set forth in the Indenture and without the consent of the holders, the Company may issue additional Securities of the same series under the Indenture. All Securities of the same series, including any such
additional Securities, shall be treated as a single class of securities under the Indenture. Terms used herein without definition and that are defined in the Indenture have the meanings assigned to them in the Indenture.
6.
Redemption
. The Securities may be redeemed at the option of the Company as set forth in
Section 3(a) of the First Supplemental Indenture.
7.
Denominations, Transfer, Exchange
. The Securities are in registered form
in minimum denominations of $2,000 and any integral multiples of $1,000 in excess thereof. The provisions of Section 2.8 of the Base Indenture (
Registration, Transfer and Exchange
) shall apply to the Securities.
8.
Persons Deemed Owners
. The registered holder of a Security shall be treated as the owner of such Security for all purposes.
9.
Amendments, Supplements and Waivers
. The Indenture and the Securities may be amended or supplemented as provided in the Indenture.
10.
Defaults and Remedies
. If an Event of Default with respect to the Securities shall occur and be continuing, the principal of
all the Securities may be declared due and payable in the manner and with the effect provided in the Indenture.
The Indenture provides
that no Holder of any Security of any series may enforce any remedy with respect to such series under the Indenture unless (a) such Holder previously shall have given to the Trustee written notice of an Event of Default, (b) the Holders of
not less than 33% in aggregate principal amount of the Securities of such series then Outstanding (treated as a single class) shall have made written request upon the Trustee to institute such action or proceedings in its own name as Trustee and
shall have offered to the Trustee such reasonable indemnity as it may require against the costs, expenses and liabilities to be incurred therein or thereby, (c) the Trustee for 60 days after its receipt of such notice, request and offer of
indemnity shall have failed to institute any such action or proceeding, and (d) no direction inconsistent with such written request shall have been given to the Trustee pursuant to Section 5.9 of the Base Indenture; provided, however, that
such provision shall not prevent the holder hereof from enforcing payment of the principal of or interest on this Security.
11.
Discharge and Defeasance
. The Indenture contains provisions for discharge and for the defeasance of the entire indebtedness of this Security and certain restrictive covenants upon compliance by the Company with certain conditions set forth
therein.
12.
Trustee Dealings with the Company
. The Trustee, in its individual or any other capacity, may make loans to, accept
deposits from, and perform services for the Company or its affiliates, and may otherwise deal with the Company or its affiliates, as if it were not the Trustee.
13.
No Recourse Against Others
. A director, officer, employee, incorporator or stockholder of the Company, as such, shall not have any
liability for any obligations of the Company under the Securities or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each holder by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for the issuance of the Securities.
14.
Authentication
. This Security shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent in accordance with the Indenture.
15.
Abbreviations
. Customary abbreviations
may be used in the name of a holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian) and U/G/M/A (=
Uniform Gifts to Minors Act).
16.
CUSIP and ISIN Numbers
. Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP and ISIN numbers to be printed on the Securities and the Trustee may use CUSIP and ISIN numbers in notices of redemption as a convenience to holders. No representation is made as to
the accuracy of such numbers either as printed on the Securities or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
17.
Governing Law
. This Security and the Indenture shall be governed by and construed in accordance with the laws of the State of New
York, without regard to conflict of laws principles thereunder, except to the extent that the law of any other jurisdiction shall be mandatorily applicable.
18.
Waiver of Jury Trial
. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SECURITY, THE INDENTURE OR THE TRANSACTION CONTEMPLATED HEREBY.
THE COMPANY SHALL FURNISH TO ANY HOLDER UPON WRITTEN REQUEST AND WITHOUT CHARGE A COPY OF THE BASE INDENTURE OR ANY RELEVANT SUPPLEMENTAL
INDENTURE. REQUESTS MAY BE MADE TO THE REGISTERED OFFICE OF THE COMPANY.
SCHEDULE A
[SCHEDULE OF ADJUSTMENTS]
4
|
|
|
|
|
|
|
|
|
|
|
Date Adjustment Made
|
|
Principal
Amount
Increase
|
|
Principal
Amount
Decrease
|
|
Principal
Amount
Following
Adjustment
|
|
Notification
Made on
Behalf of the
Trustee
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4
|
Insert in Global Notes only.
|
Exhibit A-2
[Face of Security]
EXELON
CORPORATION
Certificate No. [●]
[THIS SECURITY IS A REGISTERED GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY (AS
DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) OR A NOMINEE OF THE DEPOSITORY, WHICH SHALL BE TREATED BY THE COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS SECURITY FOR ALL PURPOSES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, THIS CERTIFICATE IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), AND ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL AS THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS REGISTERED GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE.]
5
2.850% NOTES DUE 2020
CUSIP
No. 30161N AH4
ISIN No. US30161NAH44
Exelon Corporation, a Pennsylvania corporation (the “Company”), for value received, hereby promises to pay to [CEDE
& CO.]
6
, as nominee for The Depositary Trust Company, or its registered assigns, the principal sum of $ Dollars ($) [or such
greater or lesser amount as is indicated on the Schedule of Adjustments attached hereto]
7
on June 15, 2020, and to pay interest thereon, as provided on the reverse hereof, until the principal
and any unpaid and accrued interest are paid or duly provided for.
|
5
|
Insert in Global Notes only.
|
|
6
|
Insert in Global Notes only.
|
|
7
|
Insert in Global Notes only.
|
Interest Payment Dates: June 15 and December 15 of each year, with the first payment to
be made on December 15, 2015.
Regular Record Dates: June 14 and December 14 (or if not a Business Day, the immediately
preceding Business Day).
The provisions on the back of this certificate are incorporated as if set forth on the face hereof.
IN WITNESS WHEREOF, EXELON CORPORATION has caused this instrument to be duly signed.
|
|
|
|
|
|
|
EXELON CORPORATION
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
Kevin Garrido
|
|
|
|
Title:
|
|
Assistant Treasurer
|
[Signature page to
2020 Note]
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
|
|
|
|
|
The Bank of New York Mellon Trust Company, National Association, as Trustee
|
|
|
|
|
By:
|
|
|
|
|
|
Authorized Signatory
|
[Signature page to
2020 Note]
[Reverse of Security]
EXELON CORPORATION
2.850% NOTES
DUE 2020
1.
Interest
. Exelon Corporation, a Pennsylvania corporation (the “Company”), promises to pay or cause to
be paid interest on the principal amount of this Security at the rate per annum shown above. The Company shall pay interest, payable semi-annually in arrears, on June 15 and December 15 of each year, or if any such day is not a Business
Day, on the next succeeding Business Day, with the first payment to be made on December 15, 2015. Interest on the Securities shall accrue from and include the date that the Securities are issued to an excluding the date of maturity or
redemption. Interest shall be computed on the basis of a 360-day year of twelve 30-day months.
2.
Maturity
. The Securities
will mature on June 15, 2020 (the “Maturity Date”).
3.
Method of Payment
. Except as provided in the
Indenture (as defined below), the Company shall pay interest on the Securities on the applicable Interest Payment Dates, as set forth on the face of this security, to the persons who are holders of record of Securities at the close of business on
the immediately preceding Regular Record Date, as set forth on the face of this Security. Holders must surrender Securities to a Paying Agent to collect the principal amount. The Company shall pay, in money of the United States that at the time of
payment is legal tender for payment of public and private debts, all amounts due in cash with respect to the Securities, which amounts shall be paid by wire transfer of immediately available funds to the account designated by the Depositary for the
Securities or its nominee.
4.
Paying Agent and Registrar
. Initially, The Bank of New York Mellon Trust Company,
National Association, (the “Trustee”) shall act as Paying Agent. The Company initially appoints the Trustee as the Registrar. The Company may change any Paying Agent or Registrar without prior notice to the holders. The Company or any of
its Subsidiaries may act in any such capacity.
5.
Indenture
. The Company issued the Securities under the Indenture,
dated as of June 11, 2015 (the “Base Indenture”), among the Company and the Trustee, as supplemented by the First Supplemental Indenture, dated as of June 11, 2015 (the “First Supplemental Indenture” and, together with
the Base Indenture, as supplemented, the “Indenture”), among the Company and the Trustee. The terms of the Securities include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of
1939 (15 U.S. Code §§ 77aaa-77bbbb), as amended and in effect from time to time (the “Trust Indenture Act”). The Securities are subject to all such terms, and holders are referred to the Indenture and the Trust Indenture Act for
a statement of such terms. To the extent any provision of this Security conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. The Indenture does not limit the aggregate principal
amount of Securities that may be issued thereunder. Subject to the conditions set forth in the Indenture and without the consent of the holders, the Company may issue additional Securities of the same series under the Indenture. All Securities of
the same series, including any such additional Securities, shall be treated as a single class of securities under the Indenture. Terms used herein without definition and that are defined in the Indenture have the meanings assigned to them in the
Indenture.
6.
Redemption
. The Securities may be redeemed at the option of the Company as set
forth in Section 3(a) of the First Supplemental Indenture.
7.
Denominations, Transfer, Exchange
.
The Securities are in registered form in minimum denominations of $2,000 and any integral multiples of $1,000 in excess thereof. The provisions of Section 2.8 of the Base Indenture (
Registration, Transfer and Exchange
) shall apply to the
Securities.
8.
Persons Deemed Owners
. The registered holder of a Security shall be treated as the owner of such
Security for all purposes.
9.
Amendments, Supplements and Waivers
. The Indenture and the Securities may be amended
or supplemented as provided in the Indenture.
10.
Defaults and Remedies
. If an Event of Default with respect to the
Securities shall occur and be continuing, the principal of all the Securities may be declared due and payable in the manner and with the effect provided in the Indenture.
The Indenture provides that no Holder of any Security of any series may enforce any remedy with respect to such series under the Indenture
unless (a) such Holder previously shall have given to the Trustee written notice of an Event of Default, (b) the Holders of not less than 33% in aggregate principal amount of the Securities of such series then Outstanding (treated as a
single class) shall have made written request upon the Trustee to institute such action or proceedings in its own name as Trustee and shall have offered to the Trustee such reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, (c) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity shall have failed to institute any such action or proceeding, and (d) no direction inconsistent
with such written request shall have been given to the Trustee pursuant to Section 5.9 of the Base Indenture; provided, however, that such provision shall not prevent the holder hereof from enforcing payment of the principal of or interest on
this Security.
11.
Discharge and Defeasance
. The Indenture contains provisions for discharge and for the defeasance of the
entire indebtedness of this Security and certain restrictive covenants upon compliance by the Company with certain conditions set forth therein.
12.
Trustee Dealings with the Company
. The Trustee, in its individual or any other capacity, may make loans to, accept deposits
from, and perform services for the Company or its affiliates, and may otherwise deal with the Company or its affiliates, as if it were not the Trustee.
13.
No Recourse Against Others
. A director, officer, employee, incorporator or stockholder of the Company, as such, shall not
have any liability for any obligations of the Company under the Securities or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each holder by accepting a Security waives and releases all
such liability. The waiver and release are part of the consideration for the issuance of the Securities.
14.
Authentication
. This Security shall not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent in accordance with the Indenture.
15.
Abbreviations
.
Customary abbreviations may be used in the name of a holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (=
Custodian) and U/G/M/A (= Uniform Gifts to Minors Act).
16.
CUSIP and ISIN Numbers
. Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP and ISIN numbers to be printed on the Securities and the Trustee may use CUSIP and ISIN numbers in notices of redemption as a convenience to
holders. No representation is made as to the accuracy of such numbers either as printed on the Securities or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
17.
Governing Law
. This Security and the Indenture shall be governed by and construed in accordance with the laws of the State
of New York, without regard to conflict of laws principles thereunder, except to the extent that the law of any other jurisdiction shall be mandatorily applicable.
18.
Waiver of Jury Trial
. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SECURITY, THE INDENTURE OR THE TRANSACTION CONTEMPLATED HEREBY.
THE COMPANY SHALL FURNISH TO ANY HOLDER UPON WRITTEN REQUEST AND WITHOUT CHARGE A COPY OF THE BASE INDENTURE OR ANY RELEVANT SUPPLEMENTAL
INDENTURE. REQUESTS MAY BE MADE TO THE REGISTERED OFFICE OF THE COMPANY.
SCHEDULE A
[SCHEDULE OF ADJUSTMENTS]
8
|
|
|
|
|
|
|
|
|
|
|
Date Adjustment Made
|
|
Principal
Amount
Increase
|
|
Principal
Amount
Decrease
|
|
Principal
Amount
Following
Adjustment
|
|
Notification
Made on
Behalf of the
Trustee
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8
|
Insert in Global Notes only.
|
Exhibit A-3
[Face of Security]
EXELON
CORPORATION
Certificate No. [●]
[THIS SECURITY IS A REGISTERED GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY (AS
DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) OR A NOMINEE OF THE DEPOSITORY, WHICH SHALL BE TREATED BY THE COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS SECURITY FOR ALL PURPOSES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, THIS CERTIFICATE IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), AND ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL AS THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS REGISTERED GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE.]
9
3.950% NOTES DUE 2025
CUSIP
No. 30161N AJ0
ISIN No. US30161NAJ00
Exelon Corporation, a Pennsylvania corporation (the “Company”), for value received, hereby promises to pay to [CEDE
& CO.]
10
, as nominee for The Depositary Trust Company, or its registered assigns, the principal sum of $ Dollars ($) [or such greater
or lesser amount as is indicated on the Schedule of Adjustments attached hereto]
11
on June 15, 2025, and to pay interest thereon, as provided on the reverse hereof, until the principal and
any unpaid and accrued interest are paid or duly provided for.
|
9
|
Insert in Global Notes only.
|
|
10
|
Insert in Global Notes only.
|
|
11
|
Insert in Global Notes only.
|
Interest Payment Dates: June 15 and December 15 of each year, with the first payment to
be made on December 15, 2015.
Regular Record Dates: June 14 and December 14 (or if not a Business Day, the immediately
preceding Business Day).
The provisions on the back of this certificate are incorporated as if set forth on the face hereof.
IN WITNESS WHEREOF, EXELON CORPORATION has caused this instrument to be duly signed.
|
|
|
|
|
|
|
EXELON CORPORATION
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
Kevin Garrido
|
|
|
|
Title:
|
|
Assistant Treasurer
|
[Signature page to
2025 Note]
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
|
|
|
|
|
The Bank of New York Mellon Trust Company, National Association, as Trustee
|
|
|
|
|
By:
|
|
|
|
|
|
Authorized Signatory
|
[Signature page to
2025 Note]
[Reverse of Security]
EXELON CORPORATION
3.950% NOTES
DUE 2025
1.
Interest
. Exelon Corporation, a Pennsylvania corporation (the “Company”), promises to pay or cause to
be paid interest on the principal amount of this Security at the rate per annum shown above. The Company shall pay interest, payable semi-annually in arrears, on June 15 and December 15 of each year, or if any such day is not a Business
Day, on the next succeeding Business Day, with the first payment to be made on December 15, 2015. Interest on the Securities shall accrue from and include the date that the Securities are issued to an excluding the date of maturity or
redemption. Interest shall be computed on the basis of a 360-day year of twelve 30-day months.
2.
Maturity
. The Securities
will mature on June 15, 2025 (the “Maturity Date”).
3.
Method of Payment
. Except as provided in the
Indenture (as defined below), the Company shall pay interest on the Securities on the applicable Interest Payment Dates, as set forth on the face of this security, to the persons who are holders of record of Securities at the close of business on
the immediately preceding Regular Record Date, as set forth on the face of this Security. Holders must surrender Securities to a Paying Agent to collect the principal amount. The Company shall pay, in money of the United States that at the time of
payment is legal tender for payment of public and private debts, all amounts due in cash with respect to the Securities, which amounts shall be paid by wire transfer of immediately available funds to the account designated by the Depositary for the
Securities or its nominee.
4.
Paying Agent and Registrar
. Initially, The Bank of New York Mellon Trust Company,
National Association, (the “Trustee”) shall act as Paying Agent. The Company initially appoints the Trustee as the Registrar. The Company may change any Paying Agent or Registrar without prior notice to the holders. The Company or any of
its Subsidiaries may act in any such capacity.
5.
Indenture
. The Company issued the Securities under the Indenture,
dated as of June 11, 2015 (the “Base Indenture”), among the Company and the Trustee, as supplemented by the First Supplemental Indenture, dated as of June 11, 2015 (the “First Supplemental Indenture” and, together with
the Base Indenture, as supplemented, the “Indenture”), among the Company and the Trustee. The terms of the Securities include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of
1939 (15 U.S. Code §§ 77aaa-77bbbb), as amended and in effect from time to time (the “Trust Indenture Act”). The Securities are subject to all such terms, and holders are referred to the Indenture and the Trust Indenture Act for
a statement of such terms. To the extent any provision of this Security conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. The Indenture does not limit the aggregate principal
amount of Securities that may be issued thereunder. Subject to the conditions set forth in the Indenture and without the consent of the holders, the Company may issue additional Securities of the same series under the Indenture. All Securities of
the same series, including any such additional Securities, shall be treated as a single class of securities under the Indenture. Terms used herein without definition and that are defined in the Indenture have the meanings assigned to them in the
Indenture.
6.
Redemption
. The Securities may be redeemed at the option of the Company as set
forth in Sections 3(a) and 3(b) of the First Supplemental Indenture. The Securities are subject to special mandatory redemption as set forth in Section 3(c) of the First Supplemental Indenture.
7.
Denominations, Transfer, Exchange
. The Securities are in registered form in minimum denominations of $2,000 and
any integral multiples of $1,000 in excess thereof. The provisions of Section 2.8 of the Base Indenture (
Registration, Transfer and Exchange
) shall apply to the Securities.
8.
Persons Deemed Owners
. The registered holder of a Security shall be treated as the owner of such Security for all
purposes.
9.
Amendments, Supplements and Waivers
. The Indenture and the Securities may be amended or supplemented as
provided in the Indenture.
10.
Defaults and Remedies
. If an Event of Default with respect to the Securities shall
occur and be continuing, the principal of all the Securities may be declared due and payable in the manner and with the effect provided in the Indenture.
The Indenture provides that no Holder of any Security of any series may enforce any remedy with respect to such series under the Indenture
unless (a) such Holder previously shall have given to the Trustee written notice of an Event of Default, (b) the Holders of not less than 33% in aggregate principal amount of the Securities of such series then Outstanding (treated as a
single class) shall have made written request upon the Trustee to institute such action or proceedings in its own name as Trustee and shall have offered to the Trustee such reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, (c) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity shall have failed to institute any such action or proceeding, and (d) no direction inconsistent
with such written request shall have been given to the Trustee pursuant to Section 5.9 of the Base Indenture; provided, however, that such provision shall not prevent the holder hereof from enforcing payment of the principal of or interest on
this Security.
11.
Discharge and Defeasance
. The Indenture contains provisions for discharge and for the defeasance of the
entire indebtedness of this Security and certain restrictive covenants upon compliance by the Company with certain conditions set forth therein.
12.
Trustee Dealings with the Company
. The Trustee, in its individual or any other capacity, may make loans to, accept deposits
from, and perform services for the Company or its affiliates, and may otherwise deal with the Company or its affiliates, as if it were not the Trustee.
13.
No Recourse Against Others
. A director, officer, employee, incorporator or stockholder of the Company, as such, shall not
have any liability for any obligations of the Company under the Securities or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each holder by accepting a Security waives and releases all
such liability. The waiver and release are part of the consideration for the issuance of the Securities.
14.
Authentication
. This Security shall not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent in accordance with the Indenture.
15.
Abbreviations
.
Customary abbreviations may be used in the name of a holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (=
Custodian) and U/G/M/A (= Uniform Gifts to Minors Act).
16.
CUSIP and ISIN Numbers
. Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP and ISIN numbers to be printed on the Securities and the Trustee may use CUSIP and ISIN numbers in notices of redemption as a convenience to
holders. No representation is made as to the accuracy of such numbers either as printed on the Securities or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
17.
Governing Law
. This Security and the Indenture shall be governed by and construed in accordance with the laws of the State
of New York, without regard to conflict of laws principles thereunder, except to the extent that the law of any other jurisdiction shall be mandatorily applicable.
18.
Waiver of Jury Trial
. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SECURITY, THE INDENTURE OR THE TRANSACTION CONTEMPLATED HEREBY.
THE COMPANY SHALL FURNISH TO ANY HOLDER UPON WRITTEN REQUEST AND WITHOUT CHARGE A COPY OF THE BASE INDENTURE OR ANY RELEVANT SUPPLEMENTAL
INDENTURE. REQUESTS MAY BE MADE TO THE REGISTERED OFFICE OF THE COMPANY.
SCHEDULE A
[SCHEDULE OF ADJUSTMENTS]
12
|
|
|
|
|
|
|
|
|
|
|
Date Adjustment Made
|
|
Principal
Amount
Increase
|
|
Principal
Amount
Decrease
|
|
Principal
Amount
Following
Adjustment
|
|
Notification
Made on
Behalf of the
Trustee
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
12
|
Insert in Global Notes only.
|
Exhibit A-4
[Face of Security]
EXELON
CORPORATION
Certificate No. [●]
[THIS SECURITY IS A REGISTERED GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY (AS
DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) OR A NOMINEE OF THE DEPOSITORY, WHICH SHALL BE TREATED BY THE COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS SECURITY FOR ALL PURPOSES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, THIS CERTIFICATE IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), AND ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL AS THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS REGISTERED GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE.]
13
4.950% NOTES DUE 2035
CUSIP
No. 30161N AK7
ISIN No. US30161NAK72
Exelon Corporation, a Pennsylvania corporation (the “Company”), for value received, hereby promises to pay to [CEDE
& CO.]
14
, as nominee for The Depositary Trust Company, or its registered assigns, the principal sum of $ Dollars ($) [or such greater
or lesser amount as is indicated on the Schedule of Adjustments attached hereto]
15
on June 15, 2035, and to pay interest thereon, as provided on the reverse hereof, until the principal and
any unpaid and accrued interest are paid or duly provided for.
|
13
|
Insert in Global Notes only.
|
|
14
|
Insert in Global Notes only.
|
|
15
|
Insert in Global Notes only.
|
Interest Payment Dates: June 15 and December 15 of each year, with the first payment to
be made on December 15, 2015.
Regular Record Dates: June 14 and December 14 (or if not a Business Day, the immediately
preceding Business Day).
The provisions on the back of this certificate are incorporated as if set forth on the face hereof.
IN WITNESS WHEREOF, EXELON CORPORATION has caused this instrument to be duly signed.
|
|
|
|
|
|
|
EXELON CORPORATION
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
Kevin Garrido
|
|
|
|
Title:
|
|
Assistant Treasurer
|
[Signature page to
2035 Note]
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
|
|
|
|
|
The Bank of New York Mellon Trust Company, National Association, as Trustee
|
|
|
|
|
By:
|
|
|
|
|
|
Authorized Signatory
|
[Signature page to
2035 Note]
[Reverse of Security]
EXELON CORPORATION
4.950% NOTES
DUE 2035
1.
Interest
. Exelon Corporation, a Pennsylvania corporation (the “Company”), promises to pay or cause to
be paid interest on the principal amount of this Security at the rate per annum shown above. The Company shall pay interest, payable semi-annually in arrears, on June 15 and December 15 of each year, or if any such day is not a Business
Day, on the next succeeding Business Day, with the first payment to be made on December 15, 2015. Interest on the Securities shall accrue from and include the date that the Securities are issued to an excluding the date of maturity or
redemption. Interest shall be computed on the basis of a 360-day year of twelve 30-day months.
2.
Maturity
. The Securities
will mature on June 15, 2035 (the “Maturity Date”).
3.
Method of Payment
. Except as provided in the
Indenture (as defined below), the Company shall pay interest on the Securities on the applicable Interest Payment Dates, as set forth on the face of this security, to the persons who are holders of record of Securities at the close of business on
the immediately preceding Regular Record Date, as set forth on the face of this Security. Holders must surrender Securities to a Paying Agent to collect the principal amount. The Company shall pay, in money of the United States that at the time of
payment is legal tender for payment of public and private debts, all amounts due in cash with respect to the Securities, which amounts shall be paid by wire transfer of immediately available funds to the account designated by the Depositary for the
Securities or its nominee.
4.
Paying Agent and Registrar
. Initially, The Bank of New York Mellon Trust Company,
National Association, (the “Trustee”) shall act as Paying Agent. The Company initially appoints the Trustee as the Registrar. The Company may change any Paying Agent or Registrar without prior notice to the holders. The Company or any of
its Subsidiaries may act in any such capacity.
5.
Indenture
. The Company issued the Securities under the Indenture,
dated as of June 11, 2015 (the “Base Indenture”), among the Company and the Trustee, as supplemented by the First Supplemental Indenture, dated as of June 11, 2015 (the “First Supplemental Indenture” and, together with
the Base Indenture, as supplemented, the “Indenture”), among the Company and the Trustee. The terms of the Securities include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of
1939 (15 U.S. Code §§ 77aaa-77bbbb), as amended and in effect from time to time (the “Trust Indenture Act”). The Securities are subject to all such terms, and holders are referred to the Indenture and the Trust Indenture Act for
a statement of such terms. To the extent any provision of this Security conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. The Indenture does not limit the aggregate principal
amount of Securities that may be issued thereunder. Subject to the conditions set forth in the Indenture and without the consent of the holders, the Company may issue additional Securities of the same series under the Indenture. All Securities of
the same series, including any such additional Securities, shall be treated as a single class of securities under the Indenture. Terms used herein without definition and that are defined in the Indenture have the meanings assigned to them in the
Indenture.
6.
Redemption
. The Securities may be redeemed at the option of the Company as set
forth in Sections 3(a) and 3(b) of the First Supplemental Indenture. The Securities are subject to special mandatory redemption as set forth in Section 3(c) of the First Supplemental Indenture.
7.
Denominations, Transfer, Exchange
. The Securities are in registered form in minimum denominations of $2,000 and
any integral multiples of $1,000 in excess thereof. The provisions of Section 2.8 of the Base Indenture (
Registration, Transfer and Exchange
) shall apply to the Securities.
8.
Persons Deemed Owners
. The registered holder of a Security shall be treated as the owner of such Security for all
purposes.
9.
Amendments, Supplements and Waivers
. The Indenture and the Securities may be amended or supplemented as
provided in the Indenture.
10.
Defaults and Remedies
. If an Event of Default with respect to the Securities shall
occur and be continuing, the principal of all the Securities may be declared due and payable in the manner and with the effect provided in the Indenture.
The Indenture provides that no Holder of any Security of any series may enforce any remedy with respect to such series under the Indenture
unless (a) such Holder previously shall have given to the Trustee written notice of an Event of Default, (b) the Holders of not less than 33% in aggregate principal amount of the Securities of such series then Outstanding (treated as a
single class) shall have made written request upon the Trustee to institute such action or proceedings in its own name as Trustee and shall have offered to the Trustee such reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, (c) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity shall have failed to institute any such action or proceeding, and (d) no direction inconsistent
with such written request shall have been given to the Trustee pursuant to Section 5.9 of the Base Indenture; provided, however, that such provision shall not prevent the holder hereof from enforcing payment of the principal of or interest on
this Security.
11.
Discharge and Defeasance
. The Indenture contains provisions for discharge and for the defeasance of the
entire indebtedness of this Security and certain restrictive covenants upon compliance by the Company with certain conditions set forth therein.
12.
Trustee Dealings with the Company
. The Trustee, in its individual or any other capacity, may make loans to, accept deposits
from, and perform services for the Company or its affiliates, and may otherwise deal with the Company or its affiliates, as if it were not the Trustee.
13.
No Recourse Against Others
. A director, officer, employee, incorporator or stockholder of the Company, as such, shall not
have any liability for any obligations of the Company under the Securities or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each holder by accepting a Security waives and releases all
such liability. The waiver and release are part of the consideration for the issuance of the Securities.
14.
Authentication
. This Security shall not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent in accordance with the Indenture.
15.
Abbreviations
.
Customary abbreviations may be used in the name of a holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (=
Custodian) and U/G/M/A (= Uniform Gifts to Minors Act).
16.
CUSIP and ISIN Numbers
. Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP and ISIN numbers to be printed on the Securities and the Trustee may use CUSIP and ISIN numbers in notices of redemption as a convenience to
holders. No representation is made as to the accuracy of such numbers either as printed on the Securities or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
17.
Governing Law
. This Security and the Indenture shall be governed by and construed in accordance with the laws of the State
of New York, without regard to conflict of laws principles thereunder, except to the extent that the law of any other jurisdiction shall be mandatorily applicable.
18.
Waiver of Jury Trial
. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SECURITY, THE INDENTURE OR THE TRANSACTION CONTEMPLATED HEREBY.
THE COMPANY SHALL FURNISH TO ANY HOLDER UPON WRITTEN REQUEST AND WITHOUT CHARGE A COPY OF THE BASE INDENTURE OR ANY RELEVANT SUPPLEMENTAL
INDENTURE. REQUESTS MAY BE MADE TO THE REGISTERED OFFICE OF THE COMPANY.
SCHEDULE A
[SCHEDULE OF ADJUSTMENTS]
16
|
|
|
|
|
|
|
|
|
|
|
Date Adjustment Made
|
|
Principal
Amount
Increase
|
|
Principal
Amount
Decrease
|
|
Principal
Amount
Following
Adjustment
|
|
Notification
Made on
Behalf of the
Trustee
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
16
|
Insert in Global Notes only.
|
Exhibit A-5
[Face of Security]
EXELON
CORPORATION
Certificate No. [●]
[THIS SECURITY IS A REGISTERED GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY (AS
DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) OR A NOMINEE OF THE DEPOSITORY, WHICH SHALL BE TREATED BY THE COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS SECURITY FOR ALL PURPOSES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, THIS CERTIFICATE IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), AND ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL AS THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS REGISTERED GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE.]
17
5.100% NOTES DUE 2045
CUSIP
No. 30161N AL5
ISIN No. US30161NAL55
Exelon Corporation, a Pennsylvania corporation (the “Company”), for value received, hereby promises to pay to [CEDE
& CO.]
18
, as nominee for The Depositary Trust Company, or its registered assigns, the principal sum of $ Dollars ($) [or such greater
or lesser amount as is indicated on the Schedule of Adjustments attached hereto]
19
on June 15, 2045, and to pay interest thereon, as provided on the reverse hereof, until the principal and
any unpaid and accrued interest are paid or duly provided for.
|
17
|
Insert in Global Notes only.
|
|
18
|
Insert in Global Notes only.
|
|
19
|
Insert in Global Notes only.
|
Interest Payment Dates: June 15 and December 15 of each year, with the first payment to
be made on December 15, 2015.
Regular Record Dates: June 14 and December 14 (or if not a Business Day, the immediately
preceding Business Day).
The provisions on the back of this certificate are incorporated as if set forth on the face hereof.
IN WITNESS WHEREOF, EXELON CORPORATION has caused this instrument to be duly signed.
|
|
|
|
|
|
|
EXELON CORPORATION
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
Kevin Garrido
|
|
|
|
Title:
|
|
Assistant Treasurer
|
[Signature page to
2045 Note]
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
|
|
|
|
|
The Bank of New York Mellon Trust Company, National Association, as Trustee
|
|
|
|
|
By:
|
|
|
|
|
|
Authorized Signatory
|
[Signature page to
2045 Note]
[Reverse of Security]
EXELON CORPORATION
5.100% NOTES
DUE 2045
1.
Interest
. Exelon Corporation, a Pennsylvania corporation (the “Company”), promises to pay or cause to
be paid interest on the principal amount of this Security at the rate per annum shown above. The Company shall pay interest, payable semi-annually in arrears, on June 15 and December 15 of each year, or if any such day is not a Business
Day, on the next succeeding Business Day, with the first payment to be made on December 15, 2015. Interest on the Securities shall accrue from and include the date that the Securities are issued to an excluding the date of maturity or
redemption. Interest shall be computed on the basis of a 360-day year of twelve 30-day months.
2.
Maturity
. The Securities
will mature on June 15, 2045 (the “Maturity Date”).
3.
Method of Payment
. Except as provided in the
Indenture (as defined below), the Company shall pay interest on the Securities on the applicable Interest Payment Dates, as set forth on the face of this security, to the persons who are holders of record of Securities at the close of business on
the immediately preceding Regular Record Date, as set forth on the face of this Security. Holders must surrender Securities to a Paying Agent to collect the principal amount. The Company shall pay, in money of the United States that at the time of
payment is legal tender for payment of public and private debts, all amounts due in cash with respect to the Securities, which amounts shall be paid by wire transfer of immediately available funds to the account designated by the Depositary for the
Securities or its nominee.
4.
Paying Agent and Registrar
. Initially, The Bank of New York Mellon Trust Company,
National Association, (the “Trustee”) shall act as Paying Agent. The Company initially appoints the Trustee as the Registrar. The Company may change any Paying Agent or Registrar without prior notice to the holders. The Company or any of
its Subsidiaries may act in any such capacity.
5.
Indenture
. The Company issued the Securities under the Indenture,
dated as of June 11, 2015 (the “Base Indenture”), among the Company and the Trustee, as supplemented by the First Supplemental Indenture, dated as of June 11, 2015 (the “First Supplemental Indenture” and, together with
the Base Indenture, as supplemented, the “Indenture”), among the Company and the Trustee. The terms of the Securities include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of
1939 (15 U.S. Code §§ 77aaa-77bbbb), as amended and in effect from time to time (the “Trust Indenture Act”). The Securities are subject to all such terms, and holders are referred to the Indenture and the Trust Indenture Act for
a statement of such terms. To the extent any provision of this Security conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. The Indenture does not limit the aggregate principal
amount of Securities that may be issued thereunder. Subject to the conditions set forth in the Indenture and without the consent of the holders, the Company may issue additional Securities of the same series under the Indenture. All Securities of
the same series, including any such additional Securities, shall be treated as a single class of securities under the Indenture. Terms used herein without definition and that are defined in the Indenture have the meanings assigned to them in the
Indenture.
6.
Redemption
. The Securities may be redeemed at the option of the Company as set
forth in Sections 3(a) and 3(b) of the First Supplemental Indenture. The Securities are subject to special mandatory redemption as set forth in Section 3(c) of the First Supplemental Indenture.
7.
Denominations, Transfer, Exchange
. The Securities are in registered form in minimum denominations of $2,000 and
any integral multiples of $1,000 in excess thereof. The provisions of Section 2.8 of the Base Indenture (
Registration, Transfer and Exchange
) shall apply to the Securities.
8.
Persons Deemed Owners
. The registered holder of a Security shall be treated as the owner of such Security for all
purposes.
9.
Amendments, Supplements and Waivers
. The Indenture and the Securities may be amended or supplemented as
provided in the Indenture.
10.
Defaults and Remedies
. If an Event of Default with respect to the Securities shall
occur and be continuing, the principal of all the Securities may be declared due and payable in the manner and with the effect provided in the Indenture.
The Indenture provides that no Holder of any Security of any series may enforce any remedy with respect to such series under the Indenture
unless (a) such Holder previously shall have given to the Trustee written notice of an Event of Default, (b) the Holders of not less than 33% in aggregate principal amount of the Securities of such series then Outstanding (treated as a
single class) shall have made written request upon the Trustee to institute such action or proceedings in its own name as Trustee and shall have offered to the Trustee such reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, (c) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity shall have failed to institute any such action or proceeding, and (d) no direction inconsistent
with such written request shall have been given to the Trustee pursuant to Section 5.9 of the Base Indenture; provided, however, that such provision shall not prevent the holder hereof from enforcing payment of the principal of or interest on
this Security.
11.
Discharge and Defeasance
. The Indenture contains provisions for discharge and for the defeasance of the
entire indebtedness of this Security and certain restrictive covenants upon compliance by the Company with certain conditions set forth therein.
12.
Trustee Dealings with the Company
. The Trustee, in its individual or any other capacity, may make loans to, accept deposits
from, and perform services for the Company or its affiliates, and may otherwise deal with the Company or its affiliates, as if it were not the Trustee.
13.
No Recourse Against Others
. A director, officer, employee, incorporator or stockholder of the Company, as such, shall not
have any liability for any obligations of the Company under the Securities or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each holder by accepting a Security waives and releases all
such liability. The waiver and release are part of the consideration for the issuance of the Securities.
14.
Authentication
. This Security shall not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent in accordance with the Indenture.
15.
Abbreviations
.
Customary abbreviations may be used in the name of a holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (=
Custodian) and U/G/M/A (= Uniform Gifts to Minors Act).
16.
CUSIP and ISIN Numbers
. Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP and ISIN numbers to be printed on the Securities and the Trustee may use CUSIP and ISIN numbers in notices of redemption as a convenience to
holders. No representation is made as to the accuracy of such numbers either as printed on the Securities or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
17.
Governing Law
. This Security and the Indenture shall be governed by and construed in accordance with the laws of the State
of New York, without regard to conflict of laws principles thereunder, except to the extent that the law of any other jurisdiction shall be mandatorily applicable.
18.
Waiver of Jury Trial
. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SECURITY, THE INDENTURE OR THE TRANSACTION CONTEMPLATED HEREBY.
THE COMPANY SHALL FURNISH TO ANY HOLDER UPON WRITTEN REQUEST AND WITHOUT CHARGE A COPY OF THE BASE INDENTURE OR ANY RELEVANT SUPPLEMENTAL
INDENTURE. REQUESTS MAY BE MADE TO THE REGISTERED OFFICE OF THE COMPANY.
SCHEDULE A
[SCHEDULE OF ADJUSTMENTS]
20
|
|
|
|
|
|
|
|
|
|
|
Date Adjustment Made
|
|
Principal
Amount
Increase
|
|
Principal
Amount
Decrease
|
|
Principal
Amount
Following
Adjustment
|
|
Notification
Made on
Behalf of the
Trustee
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
20
|
Insert in Global Notes only.
|
