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Exhibit 4-9
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TRUST AGREEMENT
OF
PECO ENERGY CAPITAL TRUST I
PECO ENERGY CAPITAL, L.P.,
as Grantor
and
PNC BANK, DELAWARE
as Trustee
Dated as of ___________, 1995
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
ARTICLE II
CREATION OF TRUST
SECTION 2.01. Creation of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.02. Trust Account. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.03. Title to Trust Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.04. Situs of Trust. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.05. Powers of Trustee Limited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.06. Liability of Holders of Receipts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE III
FORM OF RECEIPTS, EXECUTION AND
DELIVERY, TRANSFER, AND SURRENDER OF RECEIPTS
SECTION 3.01. Form and Transferability of Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 3.02. Issuance of Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 3.03. Registration, Transfer and Exchange of Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 3.04. Lost or Stolen Receipts, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 3.05. Cancellation and Destruction of Surrendered Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE IV
DISTRIBUTIONS AND OTHER RIGHTS OF HOLDERS OF RECEIPTS
SECTION 4.01. Distributions of Monthly Distributions on Preferred Securities . . . . . . . . . . . . . . . . . . . . . 8
SECTION 4.02. Redemptions of Preferred Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 4.03. Distributions in Liquidation of Grantor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 4.04. Fixing of Record Date for Holders of Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 4.05. Payment of Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 4.06. Special Representative and Voting Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 4.07. Changes Affecting Preferred Securities and Reclassifications, Recapitalizations, Etc. . . . . . . . . . . 11
ARTICLE V
THE GUARANTEE
SECTION 5.01. The Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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ARTICLE VI
THE TRUSTEE
SECTION 6.01. Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 6.02. Obligations of the Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 6.03. Resignation and Removal of the Trustee, Appointment of Successor Trustee . . . . . . . . . . . . . . . . 14
SECTION 6.04. Corporate Notices and Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 6.05. Status of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 6.06. Indemnification by the General Partner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 6.07. Fees, Charges and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 6.08. Appointment of Co-Trustee or Separate Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE VII
AMENDMENT AND TERMINATION
SECTION 7.01. Supplemental Trust Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 7.02. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE VIII
MERGER, CONSOLIDATION, ETC. OF GRANTOR
SECTION 8.01. Limitation on Permitted Merger Consolidation, Etc. of Grantor . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 9.02. Exclusive Benefits of Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 9.03. Invalidity of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 9.04. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 9.05. Trustee's Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 9.06. Holders of Receipts Are Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 9.07. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 9.08. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 9.09. Receipts Non-Assessable and Fully Paid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 9.10. No Preemptive Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
TESTIMONIUM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
EXHIBIT A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
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TRUST AGREEMENT
TRUST AGREEMENT, dated as of __________, 1995 (as amended from
time to time, the "Trust Agreement") among PECO ENERGY CAPITAL, L.P., a
Delaware limited partnership, as grantor, PNC BANK, DELAWARE, a
___________________________, as trustee (the "Trustee"), and joined in by PECO
ENERGY CAPITAL CORP., a Delaware corporation and the general partner of the
Grantor, not as a grantor, trustee or beneficiary but solely for the purposes
stated herein.
W I T N E S S E T H:
WHEREAS, the Trustee and the Grantor hereby establish the
trust under the Delaware Business Trust Act (12 Del. C. Section 3801, et seq.)
(as amended from time to time, the "Business Trust Act") and a Certificate of
Trust filed with the Secretary of State of the State of Delaware on
_______________________, 1995.
WHEREAS, the Company proposes to effect the exchange (the
"Exchange") of Receipts each representing a ___% Cumulative Monthly Income
Preferred Security, Series B, representing a limited partner interest of the
Grantor (the "Preferred Securities"), for Depositary Shares (as hereinafter
defined),each representing a one-fourth interest in $7.96 Cumulative Preferred
Stock of PECO Energy (as hereinafter defined); and
WHEREAS, to facilitate the Exchange, PECO Energy requests the
Grantor to issue ______ Preferred Securities, to deposit them in trust for the
benefit of the holders of the Depositary Shares tendering shares which have
been accepted in the Exchange; and
WHEREAS, interests in the Trust are to be evidenced by
Receipts issued by the Trustee in accordance with this Trust Agreement, which
are to be delivered to the Exchange Agent (as hereinafter defined), for
distribution to the holders of the Depositary Shares tendering shares which
have been accepted in the Exchange;
NOW, THEREFORE, in consideration of the premises contained
herein and intending to be legally bound hereby, it is agreed by and among the
parties hereto as follows:
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ARTICLE I
DEFINITIONS
The following definitions shall apply to the respective terms
(in the singular and plural forms of such terms) used in this Trust Agreement
and the Receipts:
"Affiliate" of any specified Person means any other Person
controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect
to any specified Person means the power to direct the management and policies
of such Person, directly or indirectly whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Business Day" means any day other than a day on which banking
institutions in the City of New York or the State of Delaware.
"Business Trust Act" shall have the meaning set forth in the
recitals to this Trust Agreement.
"Corporate Office" means the office of the Trustee at which at
any particular time its business in respect of matters governed by this Trust
Agreement shall be administered, which at the date of this Trust Agreement is
located at _______________________________________________.
"Depositary Shares" mean receipts issued pursuant to a Deposit
Agreement dated as of _______, 1992 among Philadelphia Electric Company (now
PECO Energy), First Chicago Trust Company of New York, as Depositary, and the
holders of such receipts, evidencing a one-fourth interest in $7.96 Cumulative
Preferred Stock of PECO Energy.
"Exchange" shall have the meaning set forth in the recitals to
this Trust Agreement.
"Exchange Agent" means First Chicago Trust Company of New York
in its capacity as the Exchange Agent under an Exchange Agreement dated as of
_____________, 1995 between PECO Energy and the Exchange Agent to effect the
exchange of Depository Shares for Receipts.
"General Partner" means PECO Energy Capital Corp., a Delaware
corporation, as general partner of the Grantor, and any successor thereto
pursuant to the terms of the Partnership Agreement.
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"Grantor" means PECO Energy Capital, L.P., a Delaware limited
partnership, and its successors.
"Guarantee" means the Payment and Guarantee Agreement dated as
of __________, 1995, as amended from time to time with respect to the Preferred
Securities delivered by PECO Energy to the Grantor.
"Holder" as applied to a Receipt shall mean the Person in
whose name a Receipt is registered on the Register maintained by the Registrar
for such purposes.
"Partnership Agreement" means the Amended and Restated Limited
Partnership Agreement of the Grantor dated as of July 25, 1994, as amended from
time to time, together with any Action (as defined in the Partnership
Agreement) established by the General Partner.
"Paying Agent" means the Person from time to time acting as
Paying Agent as provided in Section 4.05.
"PECO Energy" means PECO Energy Company, a Pennsylvania
corporation.
"Person" means any individual, general partnership, limited
partnership, corporation, limited liability company, joint venture, trust,
business trust, cooperative or association and the heirs, executors,
administrators, legal representatives, successors and assigns of such Person
where the context so admits.
"Preferred Securities" means the ___% Cumulative Monthly
Income Preferred Securities, Series B, representing limited partner interests
of the Grantor, or any Successor Securities issued to the Trust and held by the
Trustee from time to time under this Trust Agreement for the benefit of the
Holders.
"Receipt" shall mean a trust receipt issued hereunder
representing that interest in the Trust equal to and represented by a Preferred
Security.
"Register" shall have the meaning set forth in Section 3.03 of
this Trust Agreement.
"Registrar" shall mean any bank or trust company appointed to
register Receipts and to register transfers thereof as herein provided.
"Special Representative" shall have the meaning set forth in
Section 13.02(d) of the Partnership Agreement.
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"Successor Securities" shall have the meaning set forth in
Section 13.02(e) of the Partnership Agreement.
"Tendering Holders" means the holders of the Depositary Shares
which have been validly tendered to the Exchange Agent and accepted by the
Company for exchange.
"Trust" means the trust created and governed by this Trust
Agreement.
"Trust Agreement" shall mean this Trust Agreement, as the same
may be amended, modified, or supplemented from time to time.
"Trust Estate" means all right, title and interest of the
Trust in and to the Preferred Securities, and all distributions and payments
with respect thereto, including payments by PECO Energy under the Guarantee.
"Trust Estate" shall not include any amounts paid or payable to the Trustee
pursuant to this Trust Agreement, including, without limitation, fees, expenses
and indemnities.
"Trustee" shall mean PNC Bank, Delaware, a _____________, and
any successor as trustee hereunder.
ARTICLE II
CREATION OF TRUST
SECTION 2.01. Creation of Trust.
(a) The Trust created hereby shall be known as
"PECO Energy Capital Trust I." The Grantor hereby delivers to the Trustee for
deposit in the Trust a certificate representing _____ Preferred Securities for
the benefit of the Holders. Each Holder is intended by the Grantor to be the
beneficial owner of the number of Preferred Securities represented by the
Receipt held by such Holder, not to hold an undivided interest in all of the
Preferred Securities. To the fullest extent permitted by law, without the need
for any other action of any Person, including the Trustee and any other Holder,
each Holder shall be entitled to enforce in the name of the Trust the Trust's
rights under the Preferred Securities represented by its Receipts. Subject to
Section 7.02, this Trust shall be irrevocable.
(b) The Trustee hereby acknowledges receipt of
the Preferred Securities, registered in the name of the Trust, and its
acceptance on behalf of the Trust of the Preferred Securities, and declares
that it shall hold the Preferred
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Securities (or any Successor Securities) in the Trust for the benefit of the
Holders.
SECTION 2.02. Trust Account. The Trustee shall open an
account entitled "PECO Energy Capital Trust I - Trust Account." All funds
received by the Trustee on behalf of the Trust from the Preferred Securities or
pursuant to Article V will be deposited in such account by the Trustee until
distributed as provided in Article IV.
SECTION 2.03. Title to Trust Property. Legal title to all
of the Trust Estate shall be vested at all times in the Trustee. The Holders
shall have no right to withdraw Preferred Securities from the Trust.
SECTION 2.04. Situs of Trust. The situs of the Trust shall
be in Wilmington, Delaware. The Trust's bank account shall be maintained with
a bank in the State of Delaware. The Trustee shall cause to be maintained the
books and records of the Trust at the Corporate Office. The Trust Estate shall
be held in the State of Delaware. Notwithstanding the foregoing, the Trustee
may transfer such of the books and records of the Trust to a Co-Trustee
appointed pursuant to Section 6.08 or to such agents as it may appoint in
accordance with the Section 8.05 hereof, as shall be reasonably necessary (and
for so long as may be reasonably necessary) to enable such Co-Trustee or agents
to perform the duties and obligations for which such Co-Trustee or agents may
be so employed.
SECTION 2.05. Powers of Trustee Limited. The Trustee shall
have no power to create, assume or incur indebtedness or other liabilities in
the name of the Trust other than as contemplated in this Trust Agreement. The
Trustee shall have full power to conduct the business of the Trust of holding
the Preferred Securities for the Holders and taking the other actions provided
by this Trust Agreement.
SECTION 2.06. Liability of Holders of Receipts. Holders of
Receipts shall be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware.
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ARTICLE III
FORM OF RECEIPTS, EXECUTION AND
DELIVERY, TRANSFER, AND SURRENDER OF RECEIPTS
SECTION 3.01. Form and Transferability of Receipts.
(a) Receipts shall be engraved or printed or lithographed
with steel-engraved borders and underlying tint and shall be substantially in
the form set forth in Exhibit A annexed to this Trust Agreement, with the
appropriate insertions, modifications, and omissions, as hereinafter provided.
(b) Receipts shall be executed by the Trustee by the
manual signature of a duly authorized signatory of the Trustee, provided,
however, that such signature may be a facsimile if a Registrar (other than the
Trustee) shall have countersigned the Receipts by manual signature of a duly
authorized signatory of the Registrar. No Receipt shall be entitled to any
benefit under this Trust Agreement or be valid or obligatory for any purpose
unless it shall have been executed as provided in the preceding sentence. The
Registrar shall record on the Register each Receipt executed as provided above
and delivered as hereinafter provided.
(c) Receipts shall be in denominations of any whole
number of Preferred Securities. All Receipts shall be dated the date of their
execution.
(d) Receipts may be endorsed with or have incorporated in
the text thereof such legends or recitals or changes not inconsistent with the
provisions of this Trust Agreement as may be required by the Trustee or
required to comply with any applicable law or regulation or with the rules and
regulations of any securities exchange upon which the Receipts may be listed or
to conform with any usage with respect thereto.
(e) Title to any Receipt that is properly endorsed or
accompanied by a properly executed instrument of transfer or endorsement shall
be transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until the transfer of a Receipt shall be
registered on the Register as provided in Section 3.03, the Trust, the Trustee
the Registrar and the Grantor may, notwithstanding any notice to the contrary,
treat the Holder thereof at such time as the absolute owner thereof for the
purpose of determining the Person entitled to distributions or to any notice
provided for in this Trust Agreement and for all other purposes.
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SECTION 3.02. Issuance of Receipts. Upon receipt by the
Trustee on behalf of the Trust of a certificate or certificates for the
Preferred Securities, subject to the terms and conditions of this Trust
Agreement, the Trustee on behalf of the Trust shall execute and deliver the
Receipts to the Exchange Agent.
SECTION 3.03. Registration, Transfer and Exchange of
Receipts. The Trustee shall cause to be kept at the office of the Registrar a
register (the "Register") in which, subject to such reasonable regulations as
the Trustee and the Registrar may prescribe, the Trustee shall provide for the
registration of Receipts and of transfers and exchanges of Receipts as herein
provided. The Trustee hereby appoints First Chicago Trust Company of New York
as the Registrar. The Registrar shall also act as transfer agent. The Trustee
may remove the Registrar and, upon removal or resignation of the Registrar,
appoint a successor Registrar. Subject to the terms and conditions of this
Trust Agreement, the Registrar shall register the transfers on the Register
from time to time of Receipts upon any surrender thereof by the Holder in
person or by a duly authorized attorney, properly endorsed or accompanied by a
properly executed instrument of transfer or endorsement, together with evidence
of the payment of any transfer taxes as may be required by law. Upon such
surrender, the Trustee shall execute a new Receipt or Receipts representing the
same number of Preferred Securities in accordance with Section 3.01(b) and
deliver the same to or upon the order of the Person entitled thereto.
At the option of a Holder, Receipts may be exchanged for other
Receipts representing the same number of Preferred Securities. Upon surrender
of a Receipt or Receipts at the office of the Registrar or such other office as
the Trustee may designate for the purpose of effecting an exchange of Receipts,
subject to the terms and conditions of this Trust Agreement, the Trustee shall
execute and deliver a new Receipt or Receipts in representing the same number
of Preferred Securities as the Receipt or Receipts surrendered.
As a condition precedent to the registration of the transfer
or exchange of any Receipt, the Trustee, may require (i) payment to it of a sum
sufficient for the payment of any tax or other governmental charge with respect
thereto; (ii) the production of proof satisfactory to it as to the identity and
genuineness of any signature; and (iii) compliance with such regulations, if
any, as the Trustee may establish not inconsistent with the provisions of this
Trust Agreement.
No service charge shall be made to a Holder of Receipts for
any registration of transfer or exchange of Receipts, but the Trustee or the
Registrar shall require payment of a sum
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sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Receipts.
Neither the Trustee nor the Registrar shall be required (a) to
register the transfer of or exchange any Receipts for a period beginning at the
opening of business ten days next preceding any selection of Receipts to be
redeemed and ending at the close of business on the day of the mailing a notice
of redemption of Receipts or (b) to register the transfer of or exchange for
another Receipt any Receipt called or being called for redemption in whole or
in part, except as provided in Section 4.02.
SECTION 3.04. Lost or Stolen Receipts, Etc. In case any
Receipt shall be mutilated or destroyed or lost or stolen and in the absence of
notice to the Trustee that such Receipt has been acquired by a bona fide
purchaser, the Trustee shall execute and deliver a Receipt of like form and
tenor in exchange and substitution for such mutilated Receipt or in lieu of and
in substitution for such destroyed, lost or stolen Receipt, provided, however,
that the Holder thereof provides the Trustee with (i) evidence satisfactory to
the Trustee of such destruction, loss or theft of such Receipt, of the
authenticity thereof and of his ownership thereof, (ii) reasonable
indemnification satisfactory to the Trustee and (iii) payment of any expense
(including fees, charges and expenses of the Trustee) in connection with such
execution and delivery. Any duplicate Receipt issued pursuant to this Section
3.04 shall constitute complete and indefeasible evidence of ownership in the
Trust, as if originally issued, whether or not the lost, stolen or destroyed
Receipt shall be found at any time.
SECTION 3.05. Cancellation and Destruction of Surrendered
Receipts. All Receipts surrendered to the Trustee shall be cancelled by the
Trustee. Except as prohibited by applicable law or regulation, at any time
after six years from the date of issuance of any Receipt, the Trustee may
destroy such cancelled Receipts.
ARTICLE IV
DISTRIBUTIONS AND OTHER RIGHTS OF HOLDERS OF RECEIPTS
SECTION 4.01. Distributions of Monthly Distributions on
Preferred Securities. Whenever the Trust shall receive any cash distribution
representing a monthly distribution on the Preferred Securities (whether or not
distributed by the Grantor on the regular monthly distribution date therefor)
or payment under the Guarantee in respect thereof pursuant to Article V of
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this Agreement, the Trustee shall distribute to Holders of Receipts on the
record date fixed pursuant to Section 4.04, such amounts in proportion to the
respective numbers of Preferred Securities represented by the Receipts held by
such Holders.
SECTION 4.02. Redemptions of Preferred Securities. Whenever
the Grantor shall elect or is required to redeem Preferred Securities in
accordance with the Partnership Agreement, it shall (unless otherwise agreed in
writing with the Trustee) give the Trustee not less than 35 days' prior notice
thereof. The Trustee shall, as directed by the Grantor, mail, first-class
postage prepaid, notice of the redemption of Preferred Securities and the
proposed simultaneous redemption of the Receipts to be redeemed in connection
herewith, not less than 30 and not more than 60 days prior to the date fixed
for redemption (the "Redemption Date") of the Receipts. Such notice shall be
mailed to the Holders of the Receipts to be redeemed, at the addresses of such
Holders as the same appear on the records of the Trustee. No defect in the
notice of redemption or in the mailing or delivery thereof or publication of
its contents shall affect the validity of the redemption proceedings. The
Grantor shall provide the Trustee with such notice, and each such notice shall
state: the Redemption Date; the redemption price at which the Receipts and the
Preferred Securities are to be redeemed; that all outstanding Preferred
Securities are to be redeemed or, in the case of a redemption of fewer than all
outstanding Receipts in connection with a partial redemption of Preferred
Securities, the number of such Receipts held by such Holder to be so redeemed;
and the place or places where Receipts to be redeemed are to be surrendered for
redemption. In case fewer than all the outstanding Receipts are to be
redeemed, the Receipts to be redeemed shall be selected by lot or pro rata (as
nearly as may be practicable without creating fractional shares) or by any
other equitable method determined by the Trustee.
The Grantor agrees that if a partial redemption of the
Preferred Securities would result in a delisting of the Receipts from any
national exchange on which the Receipts are then listed, the Grantor will only
redeem the Preferred Securities in whole.
On the date of any such redemption of Preferred Securities,
provided that the Grantor (or PECO Energy pursuant to the Guarantee) shall then
have deposited with the Trustee the aggregate amount payable upon redemption of
the Preferred Securities to be redeemed, the Trustee shall redeem (using the
funds so deposited with it) Receipts representing the same number of Preferred
Securities redeemed by the Grantor.
Notice having been mailed by the Trustee as aforesaid, from
and after the Redemption Date (unless the Grantor shall have failed to redeem
the Preferred Securities to be redeemed by it as
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set forth in the Grantor's notice provided for in this Section 4.02 and PECO
Energy shall have failed to pay the redemption price of the Preferred
Securities under the Guarantee), the Receipts called for redemption shall be
deemed no longer to be outstanding and all rights of the Holders of Receipts
(except the right to receive cash upon surrender of Receipts) shall cease and
terminate. Upon surrender in accordance with said notice of the Receipts
endorsed or assigned for transfer, if the Trustee shall so require, the Holders
of such Receipts shall receive for each such Receipt an amount equal to the
redemption price for each Preferred Security, in addition to accrued and unpaid
distributions thereon to the date fixed for redemption.
If fewer than all of the Receipts are called for redemption,
the Trustee will deliver to the Holder of such Receipt upon its surrender to
the Trustee a new Receipt evidencing the number of Receipts not called for
redemption.
SECTION 4.03. Distributions in Liquidation of Grantor. Upon
receipt by the Trust of any distribution from the Grantor upon the liquidation
of the Grantor or any payment under the Guarantee in respect thereof pursuant
to Article V of this Trust Agreement, after satisfaction of creditors of the
Trust as required by applicable law, the Trustee shall distribute to the
Holders of Receipts on the record date fixed pursuant to Section 4.04, such
amounts in proportion to the respective number of Preferred Securities which
were represented by the Receipts held by such Holders.
SECTION 4.04. Fixing of Record Date for Holders of Receipts.
Whenever any distribution (other than upon any redemption) shall become
payable, or whenever the Trustee shall receive notice of any meeting at which
holders of Preferred Securities are entitled to vote or of which holders of
Preferred Securities are entitled to notice, the Trustee shall in each such
instance fix a record date (which shall be the same date as the record date
fixed by the General Partner with respect to the Preferred Securities) for the
determination of the Holders of Receipts who shall be entitled (i) to receive
such distribution, and (ii) to receive notice of, and to give instructions for
the exercise of voting rights at, any such meeting.
SECTION 4.05. Payment of Distributions. The Trustee shall
appoint one or more Paying Agents for the purpose of paying monthly
distributions on, the redemption price of, and distributions in liquidation on
the Receipts. The Trustee hereby appoints First Chicago Trust Company of New
York to act as Paying Agent and designates the __________ office of the Paying
Agent as the place of payment of the redemption price of and to distribution in
liquidation on the Receipts. The aforesaid
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appointment and designation shall remain in effect until changed by the
Trustee. Payments of monthly distributions on the Receipts shall be payable by
check mailed to the addresses of the Holders thereof on the record date
therefor. Payments of the redemption price of Receipts and distributions in
liquidation shall be made upon surrender of such Receipts at the office of the
Paying Agent.
SECTION 4.06. Special Representative and Voting Rights.
(a) If the holders of the Preferred Partner Interests (as
defined in the Partnership Agreement), acting as a single class, are entitled
to appoint and authorize a Special Representative pursuant to Section 13.02(d)
of the Partnership Agreement, the Trustee shall notify the Holders of the
Receipts of such right, request direction of each Holder of a Receipt as to the
appointment of a Special Representative and vote the Preferred Securities
represented by such Receipt in accordance with such direction. If the General
Partner fails to convene a general meeting of the Partnership as required in
Section 13.02(d) of the Partnership Agreement, the Trustee shall notify the
Holders of the Receipts and, if so directed by the Holders of Receipts
representing Preferred Securities constituting at least 10% of the aggregated
stated liquidation preference of the outstanding Preferred Partner Interests
(as defined in the Partnership Agreement) shall convene such meeting.
(b) Upon receipt of notice of any meeting at which the
Holders of Preferred Securities are entitled to vote, the Trustee shall, as
soon as practicable thereafter, mail to the Holders of Receipts a notice, which
shall be provided by the General Partner and which shall contain (i) such
information as is contained in such notice of meeting, (ii) a statement that
the Holders of Receipts at the close of business on a specified record date
fixed pursuant to Section 4.04 will be entitled, subject to any applicable
provision of law, the Partnership Agreement, to instruct the Trustee as to the
exercise of the voting rights pertaining to the amount of Preferred Securities
represented by their respective Receipts, and (iii) a brief statement as to the
manner in which such instructions may be given. Upon the written request of a
Holder of a Receipt on such record date, the Trustee shall vote or cause to be
voted the number of Preferred Securities represented by the Receipts evidenced
by such Receipt in accordance with the instructions set forth in such request.
The Grantor hereby agrees to take all reasonable action that may be deemed
necessary by the Trustee in order to enable the Trustee to vote such Preferred
Securities or cause such Preferred Securities to be voted. In the absence of
specific instructions from the Holder of a Receipt, the Trustee will abstain
from
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voting to the extent of the Preferred Securities represented by such Receipt.
SECTION 4.07. Changes Affecting Preferred Securities and
Reclassifications, Recapitalizations, Etc. Upon any consolidation,
amalgamation, merger, replacement, or conveyance, transfer or lease by the
Partnership of its properties and assets as an entirety in accordance with
Section 13.02(e) of the Partnership Agreement, the Trustee shall, upon the
instructions of the Grantor, treat any Successor Securities or other property
(including cash) that shall be received by the Trustee in exchange for or upon
conversion of or in respect of the Preferred Securities as new deposited
property under this Trust Agreement, and Receipts then outstanding shall
thenceforth represent the proportionate interests of Holders thereof in the new
deposited property so received in exchange for or upon conversion or in respect
of such Preferred Securities.
ARTICLE V
THE GUARANTEE
SECTION 5.01. The Guarantee. In connection with the issuance
of the Preferred Securities, PECO Energy has delivered to the General Partner
the Guarantee for the benefit of the holders of the Preferred Securities. If
the General Partner or the Grantor receives any payment under the Guarantee,
the General Partner or the Grantor, as the case may be, will immediately
transfer such payment to the Trustee. All rights to enforce the Guarantee
shall remain in the Grantor or, upon the appointment of a Special
Representative under Section 13.02(d) of the Partnership Agreement, the Special
Representative.
ARTICLE VI
THE TRUSTEE
SECTION 6.01. Eligibility. This Trust Agreement shall at all
times have a Trustee which is a bank and shall have a combined capital and
surplus of at least $50,000,000. If such corporation publishes reports of
conditions at least annually, pursuant to law or to the requirements of
Federal, State, Territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section 6.01, 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 conditions so published.
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In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.01, the Trustee shall resign
immediately in the manner and with the effect specified in Section 6.03.
The Trustee shall make available for inspection by Holders of
Receipts at the Corporate Office and at such other places as it may from time
to time deem advisable during normal business hours any reports and
communications received from the Grantor, the General Partner or PECO Energy by
the Trustee as the holder of Preferred Securities.
Promptly upon request from time to time by the Grantor, the
Trustee shall furnish to it a list, at the sole expense of the General Partner,
as of a recent date, of the names, addresses and holdings of all Persons in
whose names Receipts are registered on the Register.
If the Receipts shall be listed on the New York Stock
Exchange, the Trustee may, with the approval of the Grantor, appoint a
Registrar for registry of such Receipts in accordance with the requirements of
such exchange. Such Registrar (which may be the Trustee if so permitted by the
requirements of such exchange) may be removed and a substitute registrar
appointed by the Trustee upon the request or with the approval of the Grantor.
If the Receipts are listed on one or more other stock exchanges, the Trustee
will, at the request and sole expense of the General Partner, arrange such
facilities for the delivery, transfer, surrender and exchange of such Receipts
as may be required by law or applicable stock exchange regulations.
SECTION 6.02. Obligations of the Trustee. The Trustee does
not assume any obligation nor shall it be subject to any liability under this
Trust Agreement or any Receipt to Holders of Receipts other than that it agrees
to use good faith in the performance of such duties as are specifically set
forth in this Trust Agreement.
The Trustee shall not be under any obligation to appear in,
prosecute or defend any action, suit or other proceeding with respect to
Preferred Securities or Receipts that in its opinion may involve it in expense
or liability, unless indemnity satisfactory to it against all expense and
liability be furnished as often as may be required.
The Trustee shall not be liable for any action or any failure
to act by it in reliance upon the advice of or information from legal counsel,
accountants, any Holder of a Receipt or any other Person believed by it in good
faith to be competent to give such advice or information. The Trustee may rely
and shall be protected in acting upon any written notice,
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request, direction or other document believed by it to be genuine and to have
been signed or presented by the proper party or parties.
The Trustee, its parent, Affiliates, or subsidiaries may own,
buy, sell, or deal in any class of securities of the Grantor, the General
Partner or PECO Energy and its Affiliates and in Receipts or become pecuniarily
interested in any transaction in which the Grantor, the General Partner or PECO
Energy or its Affiliates may be interested or contract with or lend money to or
otherwise act as fully or as freely as if it were not the Trustee hereunder.
The Trustee may also act as transfer agent or registrar of any of the
securities of the Grantor, the General Partner or PECO Energy and its
Affiliates or act in any other capacity for PECO Energy or its Affiliates.
The Trustee (or its officers, directors, employees, or agents)
makes no representation nor shall it have any responsibility as to the validity
of the registration statement pursuant to which the Receipts are registered
under the Securities Act, the Preferred Securities, the Guarantee or the
Receipts (except for its counter-signatures thereon) or any instruments
referred to therein or herein, or as to the correctness of any statement made
therein or herein; provided, however, that the Trustee is responsible for its
representations in this Trust Agreement.
The Trustee assumes no responsibility for the correctness of
the description that appears in the Receipts, which can be taken as a statement
of the Grantor summarizing certain provisions of this Trust Agreement.
Notwithstanding any other provision herein or in the Receipts, the Trustee
makes no warranties or representations as to the validity, genuineness or
sufficiency of any Preferred Securities or the Guarantee or of the Receipts, as
to the validity or sufficiency of this Trust Agreement, as to the value of the
Receipts or as to any right, title or interest of the Holders of Receipts,
except that the Trustee hereby represents and warrants as follows: (i) the
Trustee has been duly organized and is validly existing and in good standing
under the laws of the State of Delaware, with full power, authority and legal
right under such laws to execute, deliver and carry out the terms of this Trust
Agreement; (ii) this Trust Agreement has been duly authorized, executed and
delivered by the Trustee; and (iii) this Trust Agreement constitutes a valid
and binding obligation of the Trustee; enforceable against the Trustee in
accordance with its terms.
SECTION 6.03. Resignation and Removal of the Trustee,
Appointment of Successor Trustee. The Trustee may at any time resign as
Trustee hereunder by notice of its election to do so delivered to the Grantor
and the General Partner, such
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resignation to take effect upon the appointment of a successor trustee and its
acceptance of such appointment as hereinafter provided.
The Trustee may at any time be removed by the Grantor by
notice of such removal delivered to the Trustee, such removal to take effect
upon the appointment of a successor trustee and its acceptance of such
appointment as hereinafter provided.
In case at any time the Trustee acting hereunder shall resign
or be removed, the Grantor shall, within 45 days after the delivery of the
notice of resignation or removal, as the case may be, appoint a successor
trustee, which shall be a bank or trust company, or an Affiliate of a bank or
trust company, having its principal office in the United States of America and
having a combined capital and surplus of at least $50,000,000. If a successor
Trustee shall not have been appointed in 45 days, the resigning Trustee may
petition a court of competent jurisdiction to appoint a successor trustee.
Every successor trustee shall execute and deliver to its predecessor and to the
Grantor and the General Partner an instrument in writing accepting its
appointment hereunder, and thereupon such successor trustee, without any
further act or deed, shall become fully vested with all the rights, powers,
duties, and obligations of its predecessor and for all purposes shall be the
Trustee under this Trust Agreement, and such predecessor, upon payment of all
sums due it and on the written request of the Grantor, shall promptly execute
and deliver an instrument transferring to such successor all rights and powers
of such predecessor hereunder, shall duly assign, transfer and deliver all
rights, title and interest in the Preferred Securities and any moneys or
property held hereunder to such successor and shall deliver to such successor a
list of the Holders of all outstanding Receipts. Any successor depositary
shall promptly mail notice of its appointment to the Holders of Receipts.
Any Person into or with which the Trustee may be merged,
consolidated or converted, or any Person succeeding to the corporate trust
business of the Trustee, shall be the successor of such Trustee without the
execution or filing of any document or any further act, provided such Person
shall be eligible under the provisions of the immediately preceding paragraph.
SECTION 6.04. Corporate Notices and Reports. The General
Partner agrees that it will deliver to the Trustee, and the Trustee will,
promptly after receipt thereof, transmit to the Holders of Receipts, in each
case at the address recorded in the Trustee's books, copies of all notices and
reports (including financial statements) required by law, by the rules of any
national securities exchange upon which the Receipts are listed
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or by the Partnership Agreement to be furnished to holders of Preferred
Securities. Such transmission will be at the expense of the General Partner
and the General Partner will provide the Trustee with such number of copies of
such documents as the Trustee may reasonably request. In addition, the Trustee
will transmit to the Holders of Receipts at the Grantor's expense such other
documents as may be requested by the Grantor.
SECTION 6.05. Status of Trust. It is intended that the
Trust shall not be an "investment company" under the Investment Company Act of
1940, as amended, and shall not be an issuer under the federal securities laws
or applicable state securities laws, it being expressly understood and agreed
that the Trustee is acting only in a ministerial capacity hereunder.
SECTION 6.06. Indemnification by the General Partner. To the
fullest extent permitted by law, the General Partner agrees to indemnify the
Trustee, and any Registrar against, and hold each of them harmless from, any
liability, costs and expenses (including reasonable attorneys' fees) that may
arise out of or in connection with its acting as Trustee or Registrar,
respectively, under this Trust Agreement and the Receipts, except for any
liability arising out of negligence, bad faith or willful misconduct on the
part of any such Person or Persons.
SECTION 6.07. Fees, Charges and Expenses. No fees, charges,
and expenses of the Trustee or any Trustee's agent hereunder or of any
Registrar shall be payable by any Person other than the General Partner, except
for any taxes and other governmental charges and except as provided in this
Trust Agreement. If the Trustee incurs fees, charges or expenses for which it
is not otherwise liable hereunder at the election of a Holder of a Receipt or
other Person, such Holder or other Person will be liable for such fees, charges
and expenses. All other fees, charges and expenses of the Trustee and any
Trustee's agent hereunder and of any Registrar (including, in each case, fees
and expenses of counsel) incident to the performance of their respective
obligations hereunder will be paid by the Company from time to time in
accordance with the fees schedule delivered upon the date hereof, and such
additional fee upon consultation and agreement between the Trustee and the
Company as to the amount and nature of such fees, charges and expenses.
SECTION 6.08. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of this Trust
Agreement, at any time, for the purpose of meeting any legal requirements of
any jurisdiction in which any party of the Trust must at the time be located,
the Trustee shall have the power and may execute and deliver all instruments to
appoint one or more
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Persons to act as co-trustee or co-trustees, or separate trustee or separate
trustees, of all or any part of the Trust, and to vest in such Person or
Persons, in such capacity and for the benefit of the Holders, such title to the
Trust, or any part thereof, and, subject to the other provisions of this
Section 6.08, such powers, duties, obligations, rights and trusts as the
Trustee may consider necessary or desirable. No co-trustee or separate trustee
hereunder shall be required to meet the terms of eligibility as successor
trustee under Section 6.03 and no notice to the Holders of the appointment of
any co-trustee or separate trustee shall be required.
(b) Every separate trustee and co-trustee shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all rights, powers, duties and obligations
conferred or imposed upon and exercised or performed by the Trustee
and such separate trustee or co-trustee jointly (it being understood
that such separate trustee or co-trustee is not authorized to act
separately without Trustee joining in such act), except to the extent
that under any laws of any jurisdiction in which any particular act or
acts are to be performed, the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to the
Trust or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-trustee,
but solely at the direction of the Trustee;
(ii) no Trustee hereunder shall be personally liable
by reason of any act or omission of any other trustee hereunder; and
(iii) the Trustee may at any time accept the
resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the
Trustee shall be deemed to have been given to each of the then separate
trustees and co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to this
Trust Agreement. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Trust
Agreement, specifically including every provision of this Trust Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the
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Trustee. Every such instrument shall be filed with the Trustee and a copy
thereof given to the Grantor.
(d) Any separate trustee or co-trustee may at any time
constitute the Trustee as its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or
in respect to this Trust Agreement on its behalf and in its name. If any
separate trustee or co-trustee shall die, become incapable of acting, resign or
be removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Trustee, to the extent permitted by law,
without the appointment of a new or successor trustee.
ARTICLE VII
AMENDMENT AND TERMINATION
SECTION 7.01. Supplemental Trust Agreement. The Grantor or
the General Partner may, and the Trustee shall, at any time and from time to
time, without the consent of the Holders, enter into one or more agreements
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(a) to evidence the succession of another
partnership, corporation or other entity to the Grantor or the General Partner
and the assumption by any such successor of the covenants of the Grantor or the
General Partner herein contained; or
(b) to add to the covenants of the Grantor or the
General Partner for the benefit of the Holders, or to surrender any right or
power herein conferred upon the Grantor or the General Partner; or
(c) to correct or supplement any provision herein
which may be defective or inconsistent with any other provision herein or to
make any other provisions with respect to matters or questions arising under
this Trust Agreement, provided that any such action shall not adversely affect
the interests of the Holders; or
(d) to cure any ambiguity or correct any mistake.
SECTION 7.02. Termination. The Trust Agreement shall
terminate on the date that all outstanding Receipts have been redeemed or there
has been a final distribution in respect of the Preferred Securities in
connection with any liquidation, dissolution or winding up of the Grantor and
such distribution has been distributed to the Holders of the Receipts. Except
as
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provided in Section 6.06 and Section 6.07, upon termination of this Trust
Agreement and the Trust in accordance with the foregoing, the respective
obligations and responsibilities of the Trustee, the Grantor and the General
Partner created hereby shall terminate.
ARTICLE VIII
MERGER, CONSOLIDATION, ETC. OF GRANTOR
SECTION 8.01. Limitation on Permitted Merger Consolidation,
Etc. of Grantor. The Grantor agrees that it will not consolidate,
amalgamate, merge with or into, or be replaced by, or convey, transfer or lease
its properties and assets substantially as an entity to any corporation or
other entity without the consent of the holders of the Preferred Partner
Interests (as defined in the Partnership Agreement) as permitted by Section
13.02(e) of the Partnership Agreement unless the conditions of (iii), (iv) and
(vii) of Section 13.02(e) of the Partnership Agreement are met with respect to
the Receipts.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Counterparts. This Trust Agreement may be
executed by the Grantor, the Trustee and the General Partner in separate
counterparts, each of which counterparts, when so executed and delivered shall
be deemed an original, but all such counterparts taken together shall
constitute one and the same instrument. Delivery of an executed counterpart of
a signature page to this Trust Agreement by telecopier shall be effective as
delivery of a manually executed counterpart of this Trust Agreement. Copies of
this Trust Agreement shall be filed with the Trustee and the Trustee's agents
and shall be open to inspection during business hours at the Corporate Office
and the respective offices of the Trustee's agents, if any, by any Holder of a
Receipt.
SECTION 9.02. Exclusive Benefits of Parties. This Trust
Agreement is for the exclusive benefit of the parties hereto and the Holders of
the Receipts, and their respective successors hereunder, and shall not be
deemed to give any legal
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or equitable right, remedy or claim to any other Person whatsoever.
SECTION 9.03. Invalidity of Provisions. In case any one or
more of the provisions contained in this Trust Agreement or in the Receipts
should be or become invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein or therein shall in no way be affected, prejudiced or disturbed thereby.
SECTION 9.04. Notices. Any notices to be given to the
Grantor or the General Partner hereunder shall be in writing and shall be
deemed to have been duly given if personally delivered or sent by mail, or by
telegram or telex or telecopier confirmed by letter, addressed to the General
Partner at ____________________________________, Attention: __________, or at
any other place to which the General Partner may have transferred its principal
executive office.
Any notices to be given to the Trustee hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram or telex or telecopier
confirmed by letter, addressed to the Trustee at the Corporate Office.
Any notices given to any Holder of a Receipt hereunder or
under the Receipts shall be in writing and shall be deemed to have been duly
given if personally delivered or sent by mail, or by telegram or telex or
telecopier confirmed by letter, addressed to such Holder at the address of such
record holder as it appears on the books of the Trustee or, if such holder
shall have timely filed with the Trustee a written request that notices
intended for such holder be mailed to some other address, at the address
designated in such request.
Delivery of a notice sent by mail, or by telegram or telex or
telecopier shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a duly addressed letter confirming an earlier
notice in the case of a telegram or telex or telecopier message) is deposited,
postage prepaid, in a post office letter box. The Trustee may, however, act
upon any telegram or telex or telecopier message received by it from the other
or from any Holder of a Receipt, notwithstanding that such telegram or telex or
telecopier message shall not subsequently be confirmed by letter as aforesaid.
SECTION 9.05. Trustee's Agents. The Trustee may from time to
time appoint agents to act in any respect for the Trustee for the purposes of
this Trust Agreement. The Trustee will notify the General Partner prior to any
such action.
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SECTION 9.06. Holders of Receipts Are Parties.
Notwithstanding that Holders of Receipts have not executed and delivered this
Trust Agreement or any counterpart thereof, the Holders of Receipts from time
to time shall be bound by all of the terms and conditions hereof and of the
Receipts by acceptance of delivery of Receipts.
SECTION 9.07. Governing Law. This Trust Agreement and the
Receipts and all rights hereunder and thereunder and provisions hereof and
thereof shall be governed by, and construed in accordance with, the law of the
State of Delaware without giving effect to principles of conflict of laws.
SECTION 9.08. Headings. The headings of articles and
sections of this Trust Agreement and in the form of the Receipt set forth in
Exhibit A hereto have been inserted for convenience only and are not to be
regarded as part of this Trust Agreement or to have any bearing upon the
meaning or interpretation of any provision contained herein or in the Receipts.
SECTION 9.09. Receipts Non-Assessable and Fully Paid. The
Holders of the Receipts shall not be personally liable for obligations of the
Trust, the interests in the Trust represented by the Receipts shall be
non-assessable for any losses or expenses of the Trust or for any reason
whatsoever, and the Receipts upon delivery thereof by the Trustee pursuant to
this Trust Agreement are and shall be deemed fully paid.
SECTION 9.10. No Preemptive Rights. No Holder shall be
entitled as a matter of right to subscribe for or purchase, or have any
preemptive right with respect to, any part of any new or additional interest in
the Trust, whether now or hereafter authorized and whether issued for cash or
other consideration or by way of distribution.
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IN WITNESS WHEREOF, the Grantor and the Trustee and the
General Partner have duly executed this agreement as of the day and year first
above set forth.
PECO ENERGY CAPITAL, L.P.
By: PECO ENERGY CAPITAL CORP.,
its general partner
By
----------------------------
Authorized Officer
PNC BANK, DELAWARE
By
----------------------------
Authorized Signatory
The General Partner joins in this Trust Agreement solely for the
purposes of obligating itself under Section 6.06 and Section 6.07 of the Trust
Agreement and not as grantor, trustee or beneficiary.
PECO ENERGY CAPITAL CORP.
By
----------------------------
Authorized Officer
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EXHIBIT A
TRUST RECEIPT
Representing a ___% Cumulative
Monthly Income Preferred Security, Series B of
PECO Energy Capital, L.P. (a Delaware limited partnership)
No. _________ ___________ Receipts
1. ________________________________, a ___________
__________________, as Trustee (the "Trustee"), hereby certifies that
______________ is the registered owner of __________ Receipts (the "Receipts"),
each representing a ___% Cumulative Income Preferred Security, Series B (the
"Preferred Securities") of PECO Energy Capital, L.P., a Delaware limited
partnership (the "Grantor"), deposited in trust by the Grantor with the Trustee
pursuant to a Trust Agreement of PECO Energy Capital Trust I dated as of
__________ (as amended or supplemented from time to time, the "Trust
Agreement") among the Grantor, the Trustee and PECO Energy Capital Corp., the
general partner of the Grantor (the "General Partner"). Subject to the terms
of the Trust Agreement, the Holder of this Receipt is entitled to a full
interest in the same number of Preferred Securities held by the Trustee under
the Trust Agreement, including the distribution, voting, liquidation, and other
rights of the Preferred Securities specified in the Amended and Restated
Limited Partnership Agreement of the Grantor, as amended, a copy of which is on
file at the Corporate Office.
2. The Trust Agreement. Receipts of which this Receipt
is one, are issued upon the terms and conditions set forth in the Trust
Agreement. The Trust Agreement (a copy of which is on file at the Corporate
Office of the Trustee) sets forth the rights of Holders of Receipts and the
rights and duties of the Trustee, the Grantor and the General Partner. The
statements made on the face and the reverse of this Receipt are summaries of
certain provisions of the Trust Agreement and are subject to the detailed
provisions thereof, to which reference is hereby made. In the event of any
conflict or discrepancy between the provisions of this Receipt and the
provisions of the Trust Agreement, the provisions of the Trust Agreement will
govern. Unless otherwise expressly herein provided, all defined terms used
herein shall have the meanings ascribed thereto in the Trust Agreement.
3. Distributions of Monthly Distributions on Preferred
Securities. Whenever the Trustee shall receive any cash distribution
representing a monthly distribution on the Preferred Securities (whether or not
distributed by the Grantor on the regular monthly distribution date therefor)
or payment by
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PECO Energy Company ("PECO Energy") under the Payment and Guarantee Agreement
dated as of ___________, 1995 (the "Guarantee") in respect thereof, the Trustee
shall distribute to record Holders of Receipts on the record date therefor,
such amounts in proportion to the respective numbers of Preferred Securities
represented by the Receipts held by such Holders.
4. Redemptions of Preferred Securities. Whenever the Grantor
shall elect or is required to redeem Preferred Securities in accordance with
the Partnership Agreement, it shall (unless otherwise agreed in writing with
the Trustee) give the Trustee not less than 35 days' prior notice thereof.
The Trustee shall, as directed by the Grantor, mail, first-class postage
prepaid, notice of the redemption of Preferred Securities and the proposed
simultaneous redemption of the Receipts to be redeemed, not less than 30 and
not more than 60 days prior to the date fixed for redemption (the "redemption
date") of such Preferred Securities and Receipts. Such notice shall be mailed
to the Holders of the Receipts, at the addresses of such Holders as the same
appear on the records of the Trustee. No defect in the notice of redemption or
in the mailing or delivery thereof or publication of its contents shall affect
the validity of the redemption proceedings. In case fewer than all the
outstanding Receipts are to be redeemed, the Receipts to be redeemed shall be
selected by lot or pro rata (as nearly as may be practicable without creating
fractional shares) or by any other equitable method determined by the Grantor.
On the date of any such redemption of Preferred Securities, provided that the
Grantor (or PECO Energy pursuant to the Guarantee) shall then have deposited
with the Trustee the aggregate amount payable upon redemption of the Preferred
Securities to be redeemed, the Trustee shall redeem (using the funds so
deposited with it) Receipts representing the same number of Preferred
Securities to be redeemed by the Grantor.
5. Distributions in Liquidation. Upon receipt by the
Trustee of any distribution from the Grantor upon the liquidation of the
Grantor or any payment under the Guarantee in respect thereof, after
satisfaction of creditors of the Trust required by applicable law, the Trustee
shall distribute to record Holders of receipts on the record date therefor,
such amounts in proportion to the respective number of Preferred Securities
which were represented by the Receipts held by such Holders.
6. Fixing of Record Date for Holders of Receipts.
Whenever any distribution (other than upon any redemption) shall become
payable, or whenever the Trustee shall receive notice of any meeting at which
holders of Preferred Securities are entitled to vote or of which holders of
Preferred Securities are entitled to notice, the Trustee shall in each such
instance fix a record date (which shall be the same date as the record date
fixed by the General Partner with respect to the Preferred Securities) for
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the determination of the record holders of Receipts who shall be entitled (i)
to receive such distribution or (ii) to receive notice of, and to give
instructions for the exercise of voting rights at, any such meeting.
7. Payment of Distributions. Payments of monthly
distributions on the Receipts shall be payable by check mailed to the addresses
of the Holders thereof on the record date therefor. Payments of the redemption
price of Receipts and distributions in liquidation shall be made against
surrender of such Receipts at the office of First Chicago Trust Company of New
York, as the Paying Agent.
8. Special Representative; Voting Rights. (a) If
the holders of the Preferred Partner Interests (as defined in the Partnership
Agreement), acting as a single class, are entitled to appoint and authorize a
Special Representative pursuant to Section 13.02(d) of the Partnership
Agreement, the Trustee shall notify the Holders of the Receipts of such right,
request direction of each Holder of a Receipt and vote the Preferred Securities
represented by such Receipt in accordance with such direction. If the General
Partner fails to convene a general meeting of the Partnership as required in
Section 13.02(d) of the Partnership Agreement, the Trustee shall notify the
Holders of the Receipts and, if so directed by the Holders of Receipts
representing Preferred Securities constituting at least 10% of the aggregated
stated liquidation preference of the outstanding Preferred Partner Interests
(as defined in the Partnership Agreement) shall convene such meeting.
(b) Upon receipt of notice of any meeting at
which the holders of Preferred Securities are entitled to vote, the Trustee
shall, as soon as practicable thereafter, mail to the Holders of Receipts a
notice, which shall be provided by the Grantor and which shall contain (i) such
information as is contained in such notice of meeting, (ii) a statement that
the Holders of Receipts at the close of business on a specified record date
therefor will be entitled, subject to any applicable provision of law, the
Partnership Agreement, to instruct the Trustee as to the exercise of the voting
rights pertaining to the amount of Preferred Securities represented by their
respective Receipts, and (iii) a brief statement as to the manner in which such
instructions may be given. Upon the written request of a Holder of a Receipt
on such record date, the Trustee shall vote or cause to be voted the number of
Preferred Securities represented by the Receipts in accordance with the
instructions set forth in such request. In the absence of specific
instructions from the Holder of a Receipt, the Trustee will abstain from voting
to the extent of the Preferred Securities represented by such Receipt.
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9. Changes Affecting Preferred Securities and
Reclassifications, Recapitalizations, Etc. Upon any consolidation,
amalgamation, merger, replacement, or conveyance, transfer or lease by the
Partnership of its properties and assets an entirety in accordance with Section
13.02(e) of the Partnership Agreement, the Trustee shall, upon the instructions
of the Grantor, treat any Successor Securities or other property that shall be
received by the Trustee in exchange for or upon conversion of or in respect of
the Preferred Securities as new deposited property under this Trust Agreement,
and Receipts then outstanding shall thenceforth represent the proportionate
interests of Holders thereof in the new deposited property so received in
exchange for or upon conversion or in respect of such Preferred Securities.
10. Transfer and Exchange of Receipts. Subject to the
terms and conditions of the Trust Agreement, the Trustee shall register the
transfer on its books from time to time of Receipts upon any surrender thereof
by the Holder in person or by a duly authorized attorney, properly endorsed or
accompanied by a properly executed instrument of transfer or endorsement,
together with evidence of the payment of any transfer taxes as may be required
by law. Upon such surrender, the Trustee shall execute a new Receipt or
Receipts representing the same aggregate number of the Receipt or Receipts
surrendered and deliver the same to or upon the order of the Person entitled
thereto.
Upon surrender of a Receipt or Receipts at the Corporate
Office or such other office as the Trustee may designate for the purpose of
effecting an exchange of Receipts, subject to the terms and conditions of the
Trust Agreement, the Trustee shall execute and deliver a new Receipt or
Receipts in representing the same number of Preferred Securities as the Receipt
or Receipts surrendered.
As a condition precedent to the registration of transfer or
exchange of any Receipt, the Trustee, may require (i) payment to it of a sum
sufficient for the payment of any tax or other governmental charge with respect
thereto; (ii) the production of proof satisfactory to it as to the identity and
genuineness of any signature; and (iii) compliance with such regulations, if
any, as the Trustee may establish not inconsistent with the provisions of the
Trust Agreement.
The Trustee shall not be required (a) to register the transfer
of or exchange any Receipts for a period beginning at the opening of business
ten days next preceding any selection of Receipts to be redeemed and ending at
the close of business on the day of the mailing a notice of redemption of
Receipts or (b) to transfer or exchange for another Receipt any Receipt called
or being called for redemption in whole or in part.
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11. Title to Receipts. It is a condition of this
Receipt, and every successive Holder hereof by accepting or holding the same
consents and agrees, that title to this Receipt, when properly endorsed or
accompanied by a properly executed instrument of transfer or endorsement, is
transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until the transfer of this Receipt shall be
registered on the books of the Trustee, the Trustee may, notwithstanding any
notice to the contrary, treat the Holder hereof at such time as the absolute
owner hereof for the purpose of determining the Person entitled to
distributions or to any notice provided for in the Trust Agreement and for all
other purposes.
12. Reports, Inspection of Transfer Books. The Trustee
shall make available for inspection by Holders of Receipts at the Corporate
Office and at such other places as it may from time to time deem advisable
during normal business hours any reports and communications received by the
Trustee as the record holder of Preferred Securities. The Trustee shall keep
books at the Corporate Office for the registration and registration of transfer
of Receipts, which books at all reasonable times will be open for inspection by
the record Holders of Receipts as and to the extent provided by applicable law.
13. Governing Law. The Trust Agreement and this Receipt
and all rights thereunder and hereunder and provisions thereof and hereof shall
be governed by, and construed in accordance with, the law of the Delaware
without giving effect to principles of conflict of laws.
14. Receipt Non-Assessable and Fully Paid. Holders of
Receipts shall not be personally liable for obligations of the Trust, the
interest in the Trust represented by the Receipts shall be non-assessable for
any losses or expenses of the Trust or for any reason whatsoever, and the
Receipts upon delivery thereof by the Trustee pursuant to the Trust Agreement
are and shall be deemed fully paid.
15. Liability of Holders of Receipts. Holders of
Receipts shall be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware.
16. No Preemptive Rights. No Holder shall be entitled as
a matter of right to subscribe for or purchase, or have any preemptive right
with respect to, any part of any new or additional interest in the Trust,
whether now or hereafter
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authorized and whether issued for cash or other consideration or by way of
distribution.
This Receipt shall not be entitled to any benefits under the
Trust Agreement or be valid or obligatory for any purpose unless this Receipt
shall have been executed manually or, if a Registrar for the Receipts (other
than the Trustee) shall have been appointed, by facsimile signature of a duly
authorized signatory of the Trustee and, if executed by facsimile signature of
the Trustee, shall have been countersigned manually by such Registrar by the
signature of a duly authorized signatory.
THE TRUSTEE IS NOT RESPONSIBLE FOR THE VALIDITY OF ANY
PREFERRED SECURITIES. THE TRUSTEE ASSUMES NO RESPONSIBILITY FOR THE
CORRECTNESS OF THE FOREGOING DESCRIPTION WHICH CAN BE TAKEN AS A STATEMENT OF
THE GRANTOR SUMMARIZING CERTAIN PROVISIONS OF THE TRUST AGREEMENT. UNLESS
EXPRESSLY SET FORTH IN THE TRUST AGREEMENT, THE TRUSTEE MAKES NO WARRANTIES OR
REPRESENTATIONS AS TO THE VALIDITY, GENUINENESS OR SUFFICIENCY OF PREFERRED
SECURITIES OR OF THE RECEIPTS; AS TO THE VALIDITY OR SUFFICIENCY OF THE TRUST
AGREEMENT; AS TO THE VALUE OF THE RECEIPTS OR AS TO ANY RIGHT, TITLE OR
INTEREST OF THE RECORD HOLDERS OF THE TRUSTEE RECEIPTS IN AND TO THE RECEIPTS.
Dated:
PNC BANK, DELAWARE, as Trustee,
By
----------------------------
Authorized Officer
Countersigned by
First Chicago Trust Company
of New York, as Registrar
By
--------------------------------
Authorized Officer
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[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and
transfers unto ____________________ the within Receipt and all rights and
interests represented by the Receipts evidenced thereby, and hereby irrevocably
constitutes and appoints ____________________ attorney, to transfer the same on
the books of the within-named Trustee, with full power of substitution in the
premises.
Dated: Signature:
----------------- ------------------------
NOTE: The signature to this assignment
must correspond with the name as written
upon the face of the Receipt in every
particular, without alteration or
enlargement, or any change whatever.
Signature Guarantee:
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