EXHIBIT 1.4
200,000 TRUST PREFERRED SECURITIES
COMED FINANCING III
(A DELAWARE TRUST)
6.35% TRUST PREFERRED SECURITIES (LIQUIDATION AMOUNT
OF $1,000 PER TRUST PREFERRED SECURITY)
UNDERWRITING AGREEMENT
March 10, 2003
To the Representative named in
Schedule I hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
1. Introductory. ComEd Financing III (the "Trust"), a Delaware
statutory trust organized under the Statutory Trust Act (the "Delaware Act") of
the State of Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del.
Sections 3801 et seq.), and Commonwealth Edison Company, an Illinois corporation
(the "Company" and, together with the Trust, the "Offerors"), propose to issue
and sell from time to time Trust Preferred Securities. The Trust Preferred
Securities will be issued by the Trust as 6.35% Trust Preferred Securities
(liquidation amount of $1,000 per security) with the terms specified in Schedule
I hereto representing undivided beneficial interests in the assets of the Trust
(the "Preferred Securities"). The Preferred Securities will be guaranteed by the
Company (the "Guarantee" and, together with the Preferred Securities, the
"Offered Securities"), to the extent described in the Prospectus (as defined
below), with respect to distributions and payments upon liquidation, redemption
and otherwise pursuant to the Preferred Securities Guarantee Agreement (the
"Preferred Securities Guarantee") to be dated as of the Closing Date (as defined
below) between the Company and Wilmington Trust Company as Trustee (the
"Guarantee Trustee"). The Offerors propose to sell to the underwriters named in
Schedule II hereto (the "Underwriters") for whom you are acting as
Representative (the "Representative") 200,000 Offered Securities as set forth in
Schedule II hereto.
The entire proceeds from the sale of the Offered Securities will be
combined with the entire proceeds from the sale by the Trust to the Company of
its common securities (the "Common Securities"), and will be used by the Trust
to purchase $206,186,000 in aggregate principal amount of 6.35% Junior
Subordinated Deferrable Interest Notes due March 15, 2033 (the "Subordinated
Notes") issued by the Company. The Preferred Securities and the Common
Securities will be issued pursuant to the Amended and Restated Declaration of
Trust, to be dated as of the Closing Date (the "Declaration"), among the
Company, as sponsor, J. Xxxxx Xxxxxxxx, Xxxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxxx,
as administrative trustees (the "Administrative
Trustees"), Wilmington Trust Company, as property trustee (the "Property
Trustee") and as Delaware trustee (the "Delaware Trustee," and together with the
Property Trustee and the Administrative Trustees, the "Trustees"). The
Subordinated Notes will be issued pursuant to an indenture, dated as of
September 1, 1995 (as heretofore supplemented and as supplemented by a Fourth
Supplemental Indenture dated as of the date hereof (the "Supplemental
Indenture"), the "Indenture"), between the Company and Wilmington Trust Company,
as trustee (the "Debenture Trustee"). The Preferred Securities issued in
book-entry form will be issued to Cede & Co. as nominee of The Depository Trust
Company ("DTC") pursuant to a letter agreement, to be dated as of the Closing
Date (the "DTC Agreement"), among the Trust, the Property Trustee and DTC.
The Offered Securities and the Subordinated Notes are
hereinafter collectively referred to as the "Securities."
2. Representations and Warranties of the Offerors. The Offerors jointly
and severally represent and warrant to, and agree with, the Underwriters that:
(a) The Offerors have filed with the Securities and Exchange
Commission (the "Commission") a shelf registration statement on Form S-3
(Registration Nos. 333-99363 and 333-99363-01) relating to (i) debt securities,
first mortgage bonds and cumulative preference stock of the Company and (ii)
trust preferred securities of the Trust and related guarantees of the Company
(collectively, the "Registered Securities"), which include the Securities, and
the offering thereof from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "Act"), and have filed such amendments
thereto as may have been required to the date hereof. Such registration
statement, as so amended, has been declared effective by the Commission. Such
registration statement and the prospectus relating to the sale of the Registered
Securities by the Company or the Trust constituting a part thereof, including
all documents incorporated therein by reference, as from time to time amended or
supplemented pursuant to the Act or the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), are referred to herein as the "Registration
Statement," and the prospectus relating to the Registered Securities, including
all documents incorporated therein by reference, as from time to time amended or
supplemented pursuant to the Act or the Exchange Act, including by the
Prospectus Supplement (as defined below), is referred to herein as the
"Prospectus"; provided, however, that a supplement to the Prospectus relating to
an offering of any Registered Securities, other than the Securities, shall be
deemed to have supplemented the Prospectus only with respect to the offering of
the other Registered Securities to which it relates. All documents filed by the
Company with the Commission pursuant to the Exchange Act and incorporated by
reference in the Registration Statement or the Prospectus, as aforesaid, are
hereinafter referred to as the "Incorporated Documents."
(b) The Registration Statement, the Prospectus and the
Indenture, at the time the Registration Statement became effective complied, as
of the date hereof comply and as of the Closing Date (as hereinafter defined)
will comply, in all material respects with the applicable requirements of the
Act, the Exchange Act and the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the rules and regulations of the Commission under
such Acts; the Incorporated Documents, as of their respective dates of filing
with the Commission, complied and will comply as to form in all material
respects with the requirements of the Exchange Act and the rules and regulations
of the Commission thereunder; the Registration Statement and any
2
amendment thereof (including the filing of any annual report on Form 10-K), at
the time it became effective, did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; and the Prospectus, at the time
the Registration Statement became effective did not, as of the date hereof does
not and as of the Closing Date will not, contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the representations and warranties
in this Section 1(b) shall not apply to (i) that part of the Registration
Statement which constitutes the Statements of Eligibility and Qualification
(Forms T-1 and T-2) under the Trust Indenture Act or (ii) statements in or
omissions from the Registration Statement or the Prospectus made in reliance
upon and in conformity with the Provided Statements (as defined below).
(c) PricewaterhouseCoopers LLP, the accountants who certified
certain of the financial statements included or incorporated by reference in the
Prospectus, are independent public accountants as required by the Act and the
rules and regulations of the Commission thereunder.
(d) The financial statements included or incorporated by
reference in the Prospectus present fairly in all material respects the
financial position, results of operations and cash flows of the Company at the
respective dates and for the respective periods specified and, except as
otherwise stated in the Prospectus, such financial statements have been prepared
in conformity with generally accepted accounting principles applied on a
consistent basis during the periods involved. Neither the Company nor the Trust
has any material contingent obligation which is not disclosed in the Prospectus.
(e) Except as set forth in or contemplated by the Prospectus,
no material transaction has been entered into by the Company (otherwise than in
the ordinary course of business) or the Trust and no materially adverse change
has occurred in the condition, financial or otherwise, of the Company or the
Trust, in each case since the respective dates as of which information is given
in the Prospectus.
(f) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Illinois with corporate power and authority to own its properties and conduct
its business as described in the Prospectus.
(g) Each significant subsidiary of the Company, as defined in
Rule 1-02 of Regulation S-X of the Commission (each a "Significant Subsidiary"),
has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation; all of the
issued and outstanding capital stock of each Significant Subsidiary has been
duly and validly issued and is fully paid and non-assessable; and all of the
capital stock of each Significant Subsidiary is owned by the Company free and
clear of any pledge, lien, encumbrance, claim or equity.
(h) Neither the Company nor any Significant Subsidiary is in
violation of its articles or certificate of incorporation; the Trust is not in
violation of the Declaration or its certificate of trust filed with the State of
Delaware on September 5, 2002 (the "Certificate of
3
Trust"); none of the Company, any Significant Subsidiary or the Trust is in
default in the performance or observance of any material obligation, agreement,
covenant or condition contained in any mortgage or any material contract, lease,
note or other instrument to which the Company, any Significant Subsidiary or the
Trust is a party or by which any of them may be bound, nor is any of them
materially in violation of any law, administrative regulation or administrative,
arbitration or court order to which it is subject or bound, except in each case
to such extent as may be set forth in the Prospectus; and the execution and
delivery of this Agreement, the incurrence of the obligations herein set forth
and the consummation of the transactions herein contemplated will not conflict
with or constitute a breach of, or default under, the articles of incorporation
or by-laws of the Company, the Declaration or Certificate of Trust or any
mortgage, contract, lease, note or other instrument to which the Company, any
Significant Subsidiary or the Trust is a party or by which the Company, any
Significant Subsidiary or the Trust may be bound, or any law, administrative
regulation or administrative, arbitration or court order to which it is subject
or bound.
(i) The Company has filed with the Illinois Commerce
Commission (the "ICC") a petition with respect to the issuance and sale of the
Securities, the purchase of the Common Securities from the Trust and the
Company's participation in the transactions otherwise contemplated by this
Agreement or otherwise described in the Prospectus, and the ICC has issued its
order authorizing and approving such transactions. No consent of or approval by
any other public board or body or administrative agency, federal or state, is
necessary to authorize the issuance and sale of the Securities, except as may be
required under the blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Offered Securities by the Underwriters in the
manner contemplated herein and in the Prospectus.
(j) There is no pending or threatened suit or proceeding
before any court or governmental agency, authority or body or any arbitration
involving the Company, any of its Significant Subsidiaries or the Trust required
to be disclosed in the Prospectus which is not adequately disclosed in the
Prospectus.
(k) This Agreement has been duly authorized, executed and
delivered by each of the Offerors.
(l) The Declaration has been duly authorized by the necessary
corporate action of the Offerors and, at the Closing Date, will have been duly
executed and delivered by the Company and the Trustees, and assuming due
authorization, execution and delivery of the Declaration by the Property Trustee
and the Delaware Trustee, the Declaration will, at the Closing Date, constitute
a legal, valid, binding instrument enforceable against the Company, the Trust
and the Trustees in accordance with its terms, (subject, as to the enforcement
of remedies, to applicable bankruptcy, reorganization, insolvency, fraudulent
transfer, moratorium or other laws affecting creditors' rights generally from
time to time in effect and to general principles of equity).
(m) The franchise granted to the Company by the City Council
of the City of Chicago under an ordinance effective January 1, 1992, is valid
and subsisting and duly authorizes the Company to engage in the electric utility
business conducted by it in such City; and the several franchises of the Company
outside the City of Chicago are valid and subsisting
4
and authorize the Company to carry on its utility business in the several
communities, capable of granting franchises, located in the territory served by
the Company outside the City of Chicago (with immaterial exceptions).
(n) The Company has good and sufficient title to all property
described or referred to in the Company's Mortgage dated July 1, 1923, as
amended and supplemented (the "Mortgage"), subject only to the lien of the
Mortgage and permitted liens as therein defined (except as to property released
from the lien of the Mortgage in connection with the sale or other disposition
thereof, and certain other exceptions which are not material in the aggregate).
(o) The Trust has been duly created and is validly existing in
good standing as a statutory trust under the Delaware Act with the power and
authority to own property and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under this Agreement,
the Offered Securities, the Common Securities and the Declaration; the Trust is
duly qualified to transact business as a foreign company and is in good standing
in any other jurisdiction in which such qualification is necessary, except to
the extent that the failure to so qualify or be in good standing would not have
a material adverse effect on the Trust; the Trust is not a party to or otherwise
bound by any agreement other than those described in the Prospectus; the Trust
is and will be classified for United States federal income tax purposes as a
grantor trust and not as an association taxable as a corporation; and the Trust
is and will be treated as a consolidated subsidiary of the Company pursuant to
generally accepted accounting principles.
(p) At the Closing Date, the Preferred Securities will have
been duly authorized for issuance and sale by the Trust and, when issued and
delivered against payment of the consideration therefor as provided herein, will
be validly issued and (subject to the terms of the Declaration) fully paid and
non-assessable undivided beneficial interests in the Trust, and will be entitled
to the benefits of the Declaration; the issuance of the Preferred Securities is
not subject to preemptive or other similar rights of any securityholder of the
Company or the Trust; and (subject to the terms of the Declaration) holders of
Preferred Securities will be entitled to the same limitation of personal
liability under Delaware law as extended to stockholders of private corporations
for profit organized under the Delaware General Corporation Law; provided, that
the holders of the Preferred Securities may be obligated, pursuant to the
Declaration, to (i) provide indemnity and/or security in connection with, and
pay taxes or governmental charges arising from, transfers or exchanges of
Preferred Securities certificates and the issuance of replacement Preferred
Securities certificates and (ii) provide security and indemnity in connection
with requests of or directions to the Property Trustee to exercise its rights
and remedies under the Declaration.
(q) The Preferred Securities Guarantee, including the
Guarantee, has been duly authorized by the Company; at the Closing Date, the
Preferred Securities Guarantee will have been duly executed and delivered by the
Company and, assuming due authorization, execution and delivery of the Preferred
Securities Guarantee by the Guarantee Trustee, will constitute a legal, valid,
binding instrument, enforceable against the Company in accordance with its terms
(subject, as to the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, fraudulent transfer, moratorium or other laws
affecting creditors' rights generally from time to time in effect and to general
principles of equity).
5
(r) The Common Securities have been duly authorized by the
Trust and, when issued and delivered by the Trust to the Company against payment
therefor as described in the Prospectus, will be validly issued and (subject to
the terms of the Declaration) fully paid and non-assessable undivided beneficial
interests in the assets of the Trust; the issuance of the Common Securities is
not subject to preemptive or other similar rights; and at the Closing Date all
of the issued and outstanding Common Securities of the Trust will be directly
owned by the Company free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity.
(s) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a legal, valid, binding instrument,
enforceable against the Company in accordance with its terms (subject, as to the
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
fraudulent transfer, moratorium or other laws affecting creditors' rights
generally from time to time in effect and to general principles of equity).
(t) The issuance and sale of the Subordinated Notes have been
duly authorized by the Company and, at the Closing Date, will have been duly
executed by the Company and, when authenticated in the manner provided for in
the Indenture and delivered against payment therefor as described in the
Prospectus, will constitute the legal, valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms
(subject, as to the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, fraudulent transfer, moratorium or other laws
affecting creditors' rights generally from time to time in effect and to general
principles of equity); and the Subordinated Notes will be in the form
contemplated by, and entitled to the benefits of, the Indenture.
(u) The Trust is not, and after giving effect to the offering
and sale of the Preferred Securities, will not be, an "investment company" or an
entity "controlled" by an investment company, as such terms are defined in the
Investment Company Act of 1940, as amended.
(v) Each of the Administrative Trustees of the Trust is an
employee of the Company or an affiliate of the Company and has been duly
authorized by the Company to execute and deliver the Declaration; the
Declaration has been duly executed and delivered by the Administrative Trustees
and is a legal, valid, binding obligation of each Administrative Trustee,
enforceable against such Administrative Trustee in accordance with its terms
(subject, as to the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, fraudulent transfer, moratorium or other laws
affecting creditors' rights generally from time to time in effect and to general
principles of equity).
(x) Except for changes contemplated by the Prospectus, the
authorized, issued and outstanding capital stock of the Company is as set forth
in the Prospectus.
(y) The descriptions in the Prospectus of this Agreement, the
Declaration, the Preferred Securities, the Preferred Securities Guarantee, the
Common Securities, the Indenture and the Subordinated Notes fairly summarize the
matters therein described.
6
Any certificate signed by any officer of the Company and
delivered to you or to counsel for the Underwriters in connection with the
offering of the Offered Securities shall be deemed a representation and warranty
by the Company to each Underwriter as to the matters covered thereby.
3. Purchase, Offering and Delivery -- Closing Date. (a) Subject to the
terms and conditions herein set forth, the Trust agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from the Trust at the purchase price set forth in Schedule I hereto, the number
of Offered Securities set forth opposite each Underwriter's name in Schedule II
hereto. It is understood that the Underwriters propose to offer the Offered
Securities for sale to the public as set forth in the Prospectus Supplement, as
hereinafter defined, relating to the Offered Securities. The time and date of
delivery and payment shall be the time and date specified in Schedule I hereto;
provided, however, that such time or date may be accelerated or extended by
agreement between the Company and the Representative or as provided in Section 9
hereof. The time and date of such delivery and payment are herein referred to as
the "Closing Date." Delivery of the Offered Securities shall be made to the
Representative for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representative of the purchase
price thereof to or upon the order of the Trust by wire transfer payable in
same-day funds to the account specified by the Trust. Delivery of the Offered
Securities shall be made through the facilities of The Depository Trust Company.
(b) As compensation to the Underwriters for their commitments hereunder
and in view of the fact that the proceeds of the sale of the Offered Securities
will be used to purchase Subordinated Notes of the Company, the Company hereby
agrees to pay at the Closing Date, or the relevant date of delivery, as the case
may be, to the Representative in immediately available funds, for the accounts
of the several Underwriters, $10.00 per Offered Security to be delivered by the
Trust hereunder at the Closing Date.
(c) In accordance with Rule 15c6-1(d) promulgated under the Exchange
Act, the Underwriters agree to the payment of funds and delivery of the Offered
Securities in accordance with this Section 3 in lieu of that required by
paragraphs (a) and (c) of Rule 15c6-1 under the Exchange Act.
4. Agreements. The Offerors agree with the several Underwriters that:
(a) Promptly following the execution of this Agreement, the
Offerors will cause the Prospectus, including as part thereof a prospectus
supplement relating to the Offered Securities (the "Prospectus Supplement"), to
be filed with the Commission pursuant to Rule 424 under the Act, and the
Offerors will promptly advise the Representative when such filing has been made.
Prior to such filing, the Offerors will cooperate with the Representative in the
preparation of the Prospectus Supplement to assure that the Representative has
no reasonable objection to the form or content thereof when filed.
(b) The Offerors will promptly advise the Representative (i)
when any amendment to the Registration Statement shall have become effective,
(ii) of any request by the Commission for any amendment of the Registration
Statement or amendment or supplement to
7
the Prospectus or for any additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that purpose
and (iv) of the receipt by either the Company or the Trust of any notification
with respect to the suspension of the qualification of the Offered Securities
for sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose. The Offerors will not file any amendment to the Registration
Statement or amendment or supplement to the Prospectus unless the Offerors have
furnished the Representative a copy for their review prior to filing and will
not file any such proposed amendment or supplement without the consent of the
Representative, which consent shall not be unreasonably withheld. The Offerors
will use their best efforts to prevent the issuance of any such stop order and,
if issued, to obtain as soon as possible the withdrawal thereof.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, or if it shall be necessary to amend or
supplement the Registration Statement or the Prospectus to comply with the Act
or the Exchange Act or the rules and regulations of the Commission under such
Acts, the Offerors promptly will prepare and file with the Commission, subject
to paragraph (b) of this Section 4, an amendment or supplement that will correct
such statement or omission or an amendment or supplement that will effect such
compliance.
(d) The Offerors shall take all reasonable action necessary to
enable Standard & Poor's Ratings Services, a division of McGraw Hill, Inc.
("S&P"), Xxxxx'x Investors Service, Inc. ("Moody's") and Fitch Ratings ("Fitch")
to provide their respective credit ratings of the Preferred Securities.
(e) The Offerors will cooperate with the Underwriters and use
their reasonable commercial efforts to permit the Preferred Securities to be
eligible for clearance and settlement through the facilities of DTC.
(f) The Trust will use the net proceeds received by it from
the sale of the Preferred Securities and the Common Securities, and the Company
will use the proceeds received by it from the sale of the Subordinated Notes, in
the manner specified in the Prospectus under "Use of Proceeds".
(g) The Offerors will furnish without charge to (i) the
Representative and counsel for the Underwriters a signed copy of the
Registration Statement (but without exhibits incorporated by reference), as
originally filed, all amendments thereto filed prior to the Closing Date, all
Incorporated Documents (including exhibits, other than exhibits incorporated by
reference) and the Statement on Form T-1 of the Debenture Trustee, (ii) each
other Underwriter a conformed copy of the Registration Statement (but without
exhibits), as originally filed, all amendments thereto (but without exhibits)
and all Incorporated Documents (but without exhibits other than the Company's
latest Annual Report to shareholders) and (iii) each Underwriter as many copies
of the Prospectus, the Prospectus Supplement thereto and, so long as delivery of
a prospectus or supplement thereto by an Underwriter or dealer may be required
under the Act, any
8
amendments thereof and supplements thereto (but without Incorporated Documents
or exhibits), as soon as available and in such quantities as the Representative
may reasonably request.
(h) The Offerors will arrange, if necessary, for the
qualification of the Offered Securities for sale under the laws of such
jurisdictions within the United States as the Representative may designate,
provided, that in no event shall either of the Offerors be obligated to qualify
to do business in any jurisdiction where it is not now so qualified or take any
action that would subject it to service of process in suits (other than those
arising out of the offering or sale of the Offered Securities) in any
jurisdiction where it is not now so subject. The Offerors will maintain such
qualifications in effect so long as required for the distribution of the Offered
Securities. The Offerors will promptly advise the Representative of the receipt
by the Offerors of any notification with respect to the qualification of the
Offered Securities for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose.
(i) The Company agrees to pay the costs and expenses relating
to the following matters: (i) the preparation of the Prospectus and the issuance
of the Securities; (ii) the preparation, printing or reproduction of the
Prospectus and each amendment or supplement thereto; (iii) the printing (or
reproduction) and delivery (including postage, air freight charges and charges
for counting and packaging) of such copies of the Prospectus, and all amendments
or supplements to it, as may be reasonably requested for use in connection with
the offering and sale of the Offered Securities; (iv) the preparation, printing,
authentication, issuance and delivery of certificates for the Preferred
Securities and the Subordinated Notes, including any stamp or transfer taxes in
connection with the original issuance and sale of the Preferred Securities and
the Subordinated Notes; (v) the printing (or reproduction) and delivery of this
Agreement, any blue sky memorandum and all other agreements or documents printed
(or reproduced) and delivered in connection with the offering of the Offered
Securities; (vi) any registration or qualification of the Offered Securities for
offer and sale under the securities or blue sky laws of the several states
(including filing fees and the reasonable fees and expenses of counsel for the
Underwriters relating to such registration and qualification); (vii) the
transportation and other expenses incurred by or on behalf of Company
representatives in connection with presentations to prospective purchasers of
the Offered Securities; (viii) the fees and expenses of the Company's
accountants and counsel (including local and special counsel); (ix) the fees and
expenses of any rating agencies rating the Preferred Securities and, if
applicable, the Subordinated Notes; (x) the fees and expenses of the Property
Trustee and the Guarantee Trustee; (xi) the fees and expenses of the Debenture
Trustee; and (xii) all other costs and expenses incident to the performance by
the Company or the Trust of its respective obligations hereunder.
(j) The Company will, if requested by the Representative, use
its best efforts to cause the Preferred Securities to be listed on the New York
Stock Exchange.
(k) During the period beginning from the date of this
Agreement and continuing to and including the later of (i) the termination of
trading restrictions on the Offered Securities, as notified to the Company by
the Representative, and (ii) the Closing Date, neither the Company nor the Trust
will offer, sell, contract to sell or otherwise dispose of capital securities,
or the Subordinated Notes or any debt securities substantially similar
(including provisions with respect to the deferral of interest) to the
Subordinated Notes or any equity security substantially similar to the Preferred
Securities (except for the Securities issued pursuant
9
to this Agreement) or enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or indirectly, the
economic consequence of ownership of the Preferred Securities or the
Subordinated Notes; provided, however, that the foregoing restrictions shall not
apply to any disposal of the Subordinated Notes following any liquidation of the
Trust; provided, further, that in no event shall the foregoing period extend
more than fifteen calendar days from the date of this Agreement.
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase and pay for the Offered Securities
shall be subject to the accuracy of the representations and warranties on the
part of the Offerors contained herein as of the date hereof and the Closing
Date, to the accuracy of the statements of the Offerors made in any certificates
pursuant to the provisions hereof, to the performance by the Offerors of their
obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect and no proceedings for that purpose
shall then be pending before, or threatened by, the Commission.
(b) The Offerors shall have furnished to the Representative
the opinion of Sidley Xxxxxx Xxxxx & Xxxx, counsel for the Company, dated the
Closing Date and addressed to the Representative, in form and substance
satisfactory to the Representative and its counsel.
(c) The Offerors shall have furnished to the Representative
the opinion of Xxxxxxxx, Xxxxxx & Finger, special counsel to the Offerors, dated
the Closing Date and addressed to the Representative, in form and substance
satisfactory to the Representative and its counsel.
(d) The Offerors shall have furnished to the Representative
the opinion of Xxxxxxxx, Xxxxxx & Finger, counsel to Wilmington Trust Company,
as Property Trustee under the Declaration, Debenture Trustee under the Indenture
and Guarantee Trustee under the Preferred Securities Guarantee, dated the
Closing Date and addressed to the Representative, in form and substance
satisfactory to the Representative and its counsel.
(e) The Representative shall have received from Winston &
Xxxxxx, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the incorporation and legal existence of the
Company; the Preferred Securities, the Declaration, the Indenture, the Preferred
Securities Guarantee, this Agreement, the Prospectus and other related matters
as the Representative may reasonably require, and the Offerors shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representative a
certificate of the Company, signed by the Treasurer or Assistant Treasurer of
the Company, and the Trust shall have furnished to the Representative a
certificate of the Trust, signed by an Administrative Trustee of the Trust, each
dated the Closing Date, to the effect that the signer of each such certificate
has carefully examined the Prospectus, any amendment or supplement to the
Prospectus and this Agreement and that:
10
(i) the representations and warranties of the Company
and the Trust, respectively, in this Agreement are true and correct in
all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date, and the Company and the Trust,
respectively, have complied with all the agreements and satisfied all
the conditions on their respective parts to be performed or satisfied
hereunder at or prior to the Closing Date;
(ii) since the date of the most recent financial
statements included in the Prospectus (exclusive of any amendment or
supplement thereto), there has been no material adverse change in the
financial condition, business or properties of the Company and its
subsidiaries, taken as a whole, or the Trust, respectively, whether or
not arising from transactions in the ordinary course of business,
except as set forth in or contemplated by the Prospectus (exclusive of
any amendment or supplement thereto); and
(iii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that
purpose have been initiated or, to his or her knowledge, threatened by
the Commission.
(g) On the date hereof and on the Closing Date, the Company
shall have requested and caused PricewaterhouseCoopers LLP to furnish to the
Representative letters, dated respectively the date hereof and the Closing Date,
in form and substance satisfactory to the Representative.
(h) Subsequent to the date of this Agreement, or if earlier,
the respective dates as of which information is given in the Registration
Statement and the Prospectus, there shall not have been (i) any change or
decrease specified in the letter referred to in paragraph (g) of this Section 5
or (ii) any change, or any development involving a prospective change, in or
affecting the financial condition, business or properties of the Trust or 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 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 Representative, so material and adverse
as to make it impractical or inadvisable to proceed with the public offering or
delivery of the Offered Securities as contemplated by the Prospectus (exclusive
of any amendment or supplement thereto).
(i) On the Closing Date, (i) the Preferred Securities shall be
rated Baa2 by Xxxxx'x, BBB by S&P and BBB by Fitch, and the Offerors shall have
delivered to the Representative evidence satisfactory to the Representative
confirming that the Preferred Securities have such ratings, and (ii) subsequent
to the date of this Agreement, there shall not have occurred a downgrading in
the rating assigned to the Preferred Securities or any of the Company's first
mortgage bonds or commercial paper by any "nationally recognized statistical
rating agency", as that term is defined by the Commission for purposes of Rule
436(g)(2) under the Act, and no such securities rating agency shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of the Preferred Securities or any of the
Company's other debt securities.
11
(j) Prior to the Closing Date, the Company shall have
furnished to the Representative such further information, certificates and
documents as the Representative may reasonably request.
If any of the conditions specified in this Section 5 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions or certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representative and its counsel, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representative. Notice of such
cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
The documents required to be delivered by this Section 5 will
be delivered at the office of counsel for the Company, at Sidley Xxxxxx Xxxxx &
Xxxx, 00 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, on the
Closing Date.
6. Conditions of Offerors' Obligation. The obligation of the
Offerors to deliver the Offered Securities upon payment therefor shall be
subject to the following conditions:
On the Closing Date, the order of the ICC referred to in
subparagraph (i) of Section 2 hereof shall be in full force and effect
substantially in the form in which originally entered; the Indenture shall be
qualified under the Trust Indenture Act as and to the extent required by such
act, and no stop order suspending the effectiveness of the Registration
Statement shall be in effect and no proceedings for that purpose shall then be
pending before, or threatened by, the Commission.
In case any of the conditions specified above in this Section
6 shall not have been fulfilled, this Agreement may be terminated by the
Offerors by delivering written notice of termination to the Representative. Any
such termination shall be without liability of any party to any other party
except to the extent provided in Sections 7 and 8 hereof.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Offered Securities provided for herein is not consummated because any condition
to the obligations of the Underwriters or the Offerors set forth in Section 5
and Section 6 hereof, respectively, is not satisfied because of any termination
pursuant to Section 10 hereof, or because of any refusal, inability or failure
on the part of the Offerors or either of them to perform any agreement herein or
comply with any provisions hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally upon
demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Offered Securities.
8. Indemnification and Contribution. (a) The Offerors jointly
and severally agree to indemnify and hold harmless each Underwriter, the
directors, officers, employees and agents of each Underwriter and each person
who controls any Underwriter within the meaning of either the Act or the
Exchange Act against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the Act, the
Exchange Act or other federal or state statutory law or regulation, at common
law or otherwise, insofar as such
12
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement as originally filed or in
any amendment thereof, or in any preliminary prospectus or the Prospectus, or in
any amendment thereof or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Offerors 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 either of the Offerors by or on behalf of any Underwriter through
the Representative specifically for inclusion therein; provided, further, that
the foregoing indemnity with respect to any untrue statement contained in or
omission from any preliminary prospectus shall not inure to the benefit of any
Underwriter (or any of the directors, officers, employees and agents of such
Underwriter or any person controlling such Underwriter) from whom the person
asserting any such loss, claim, damage or liability purchased any of the Offered
Securities which are the subject thereof if such person did not receive a copy
of the Prospectus (or the Prospectus as then amended or supplemented if either
of the Offerors shall have furnished any amendments or supplements thereto),
excluding the Incorporated Documents, at or prior to the confirmation of the
sale of such Offered Securities to such person in any case where such delivery
is required by the Act and the untrue statement or omission of a material fact
contained in such preliminary prospectus was corrected in the Prospectus (or the
Prospectus as so amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), and it is finally judicially determined that
such delivery was required to be made under the Act and was not so made. This
indemnity agreement will be in addition to any liability which either of the
Offerors may otherwise have. The Company agrees to indemnify the Trust against
all loss, liability claim, damage and expense whatsoever, as due from the Trust
under Section 8(a) hereunder.
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Offerors and each of their respective directors,
officers, employees and agents, each Trustee of the Trust and each person who
controls the Offerors within the meaning of either the Act or the Exchange Act,
to the same extent as the foregoing indemnity from the Offerors to each
Underwriter, but only with reference to written information relating to such
Underwriter furnished to either of the Offerors by or on behalf of such
Underwriter through the Representative specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any Underwriter may otherwise have. The
Offerors acknowledge that the statements set forth in (i) the penultimate
paragraph of the cover page of the Prospectus Supplement regarding the delivery
of the Offered Securities, and (ii) under the heading "Underwriting" in the
Prospectus Supplement, (A) the third paragraph related to concessions and
discounts, (B) the fifth paragraph (beginning with the sentence "Prior to this
offering there has been no public market for the preferred securities") and (C)
the six, seventh and eighth paragraphs related to stabilization,
over-allotments, syndicate covering transactions and penalty bids (collectively,
the "Provided Statements"), constitute the only information furnished in writing
by or on behalf of the Underwriters for inclusion in the
13
Registration Statement, any preliminary prospectus or the Prospectus (or in any
amendment or supplement thereto).
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses;
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying 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 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 (i) includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding and (ii) does
not include a statement as to, or an admission of, fault, culpability or a
failure to act by or on behalf of an indemnified party.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable or insufficient to hold harmless an
indemnified party under section (a) or (b) above, then the Offerors and the
Underwriters agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which the
Offerors 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
Offered Securities. If the allocation provided by the
14
immediately preceding sentence is unavailable for any reason, the Offerors and
the Underwriters shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Offerors on the one hand and of the Underwriters on the other in connection with
the statements or omissions which resulted in such Losses, as well as any other
relevant equitable considerations. Benefits received by the Offerors shall be
deemed to be equal to the total net proceeds from the offering (before deducting
expenses) received by them, and benefits received by the Underwriters shall be
deemed to be equal to the total purchase discounts and commissions in each case
set forth on the cover of the Prospectus. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information provided by the Offerors on the one hand or
the Underwriters on the other, the intent of the parties and their relative
knowledge, information and opportunity to correct or prevent such untrue
statement or omission; provided, however, that in no case shall any Underwriters
(except as may be provided in any agreement among the Underwriters relating to
the offering of the Offered Securities) be responsible for any amount in excess
of the purchase discount or commission applicable to the Offered Securities
purchased by such Underwriters hereunder; provided, further, that each
Underwriter's obligation to contribute to Losses hereunder shall be several and
not joint. The Offerors and the Underwriters agree that it would not be just and
equitable if contribution were determined by pro rata allocation or any other
method of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this paragraph (d), no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 8,
each person who controls an Underwriter within the meaning of either the Act or
the Exchange Act and each director, officer, employee and agent of an
Underwriters shall have the same rights to contribution as such Underwriter, and
each person who controls the Offerors within the meaning of either the Act or
the Exchange Act and each officer, director, employee or agent of the Company
and each Trustee of the Trust shall have the same rights to contribution as the
Offerors, subject in each case to the applicable terms and conditions of this
paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Offered 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 number
of Offered Securities set forth opposite their names in Schedule II hereto bears
to the aggregate number of Offered Securities set forth opposite the names of
all the remaining Underwriters) the Offered Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase, provided, however,
that in the event that the aggregate number of Offered Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate number of the Offered Securities set forth in
Schedule II hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Offered
Securities, and if such nondefaulting Underwriters do not purchase all the
Offered Securities, this Agreement will terminate without liability to any
nondefaulting Underwriter or the Offerors. 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 Representative shall
determine in order that the required changes in the
15
Registration Statement and the Prospectus Supplement or in any other documents
or arrangements may be effected. Nothing contained in this Agreement shall
relieve any defaulting Underwriter of its liability, if any, to the Offerors or
any nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representative, by notice given to
the Offerors prior to delivery of and payment for the Offered Securities, if at
any time after the date hereof and prior to the delivery of and payment for the
Offered Securities (i) trading in Exelon Corporation's common stock shall have
been suspended by the Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on such Exchange; (ii) a
banking moratorium shall have been declared either by federal or New York State
authorities; (iii) a major disruption of settlements of securities or clearance
services in the United States shall have occurred; or (iv) there shall have
occurred any outbreak or escalation of hostilities, declaration by the United
States of a national emergency or war or other calamity or crisis the effect of
which on financial markets is such as to make it, in the sole judgment of the
Representative, impracticable or inadvisable to proceed with the offering or
delivery of the Offered Securities as contemplated by the Prospectus.
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Offerors or their officers or Trustees and of the Underwriters set forth in or
made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of the Underwriters or the Offerors or
any of the officers, directors, trustees or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Offered
Securities. The provisions of Sections 7 and 8 hereof shall survive the
termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representative, will be
mailed, delivered or telefaxed to them at the address specified in Schedule I
hereto, or, if sent to the Trust or the Company, will be mailed, delivered or
telefaxed to Exelon Corporation, 00 Xxxxx Xxxxxxxx Xxxxxx, X.X. Xxx 000000,
Xxxxxxx, Xxxxxxxx 00000-0000, Attention: Vice President and Treasurer (fax no.:
(000) 000-0000) and confirmed to the General Counsel of Exelon Corporation (fax
no.: (000) 000-0000).
13. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and
assigns and the officers, directors, trustees and controlling persons referred
to in Section 8 hereof, and no other person will have any right or obligation
hereunder. The term "successors and assigns" as used in this Agreement shall not
include any purchaser, as such purchaser, of any of the Offered Securities from
any of the Underwriters.
14. Representation of the Underwriters. The Representative
represents and warrants to the Offerors that it is authorized to act as the
representative of the Underwriters in connection with this financing, and the
Representative's execution and delivery of this
16
Agreement and any action under this Agreement taken by such Representative will
be binding upon all Underwriters.
15. Interpretation When No Representative. In the event no
Underwriters are named in Schedule II hereto, the term "Underwriters" shall be
deemed for all purposes of this Agreement to be the Representative or
Representative named as such in Schedule I hereto, the principal amount of the
Offered Securities to be purchased by any such Underwriter shall be that set
opposite its name in Schedule I hereto and all references to the "Underwriters"
shall be deemed to be the Representative or Representative named in Schedule I
hereto.
16. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument.
17. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
[Signature page follows]
17
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this Agreement and your acceptance shall represent a binding agreement
between the Company, the Trust and each of the several Underwriters.
Very truly yours,
COMMONWEALTH EDISON COMPANY
By: /s/ J. Xxxxx Xxxxxxxx
-------------------------------------
Name: J. Xxxxx Xxxxxxxx
Title: Vice President and Treasurer
COMED FINANCING III
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Administrative Trustee
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
XXXXXXX XXXXX BARNEY INC.
By: /s/ Xxxxxx Xxxxxx
-------------------------
Name: Xxxxxx Xxxxxx
Title: Managing Director
For itself and the other several
Underwriters named in Schedule II
hereto.
18
SCHEDULE I
REPRESENTATIVE: Xxxxxxx Xxxxx Xxxxxx Inc.
NUMBER AND DESCRIPTION OF OFFERED SECURITIES:
NUMBER: 200,000
PURCHASE PRICE: $199,814,000
INTEREST RATE: 6.35%
INITIAL PUBLIC OFFERING
PRICE: $199,814,000
DEALER DISCOUNT: .600%
REALLOWANCE TO DEALERS: .250%
SINKING FUND PROVISIONS: None
OTHER PROVISIONS:
TIME AND DATE OF DELIVERY AND PAYMENT:
TIME AND DATE --- 8:00 AM CST
March 17, 2003
PLACE OF DELIVERY:
DELIVERY --- Sidley Xxxxxx Xxxxx & Xxxx
Bank One Plaza
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Schedule I
OFFICE FOR EXAMINATION OF OFFERED SECURITIES:
Office of Sidley Xxxxxx Xxxxx & Xxxx
Bank One Plaza
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
SPECIFIED DATE PURSUANT TO SECTION 3 OF UNDERWRITING AGREEMENT:
March 17, 2003
ADDRESS FOR NOTICES TO REPRESENTATIVE PURSUANT TO SECTION 12 OF UNDERWRITING
AGREEMENT:
Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000
Schedule I
SCHEDULE II
NUMBER OF
NAME OF UNDERWRITER OFFERED SECURITIES
------------------- ------------------
Xxxxxxx Xxxxx Xxxxxx Inc. 120,000
Wachovia Securities, Inc. 30,000
BNP Paribas Securities Corp. 10,000
BNY Capital Markets, Inc. 10,000
Credit Suisse First Boston LLC 10,000
Loop Capital Markets, LLC 10,000
Scotia Capital (USA) Inc. 10,000
Schedule II
