Exhibit (4)-6
ComEd Financing II
Form S-4 File No. 333-
DECLARATION OF TRUST
of
ComEd Financing II
THIS DECLARATION OF TRUST (this "Declaration"), dated and effective as
of November 19, 1996, by the undersigned trustees (together with all other
Persons from time to time duly appointed and serving as trustees in accordance
with the provisions of this Declaration, the "Trustees"), Commonwealth Edison
Company, an Illinois corporation, as trust sponsor (the "Sponsor"), and by the
holders, from time to time, of undivided beneficial interests in the Trust to be
issued pursuant to this Declaration;
W I T N E S S E T H:
WHEREAS, the Trustees and the Sponsor desire to establish a trust (the
"Trust") pursuant to the Delaware Business Trust Act for the sole purpose of
issuing and selling certain securities representing undivided beneficial
interests in the assets of the Trust and investing the proceeds thereof in
certain Debt Securities (as hereinafter defined) of the Debt Issuer (as
hereinafter defined);
NOW, THEREFORE, it being the intention of the parties hereto that the
Trust constitute a business trust under the Delaware Business Trust Act and that
this Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. Definitions. Capitalized terms used in this Declaration
but not defined in the preamble above have the respective meanings assigned to
them in this Section 1.1. A term defined anywhere in this Declaration has the
same meaning throughout.
"Affiliate" has the same meaning as given to that term in Rule 405 of
the Securities Act or any successor rule thereunder.
"Business Day" means any day other than a day on which banking
institutions in New York, New York are authorized or required by law to
close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. (S)(S)3801 et seq.
"Certificate" means a Common Security Certificate or a Preferred
Security Certificate.
"Common Security" means a security representing an undivided
beneficial interest in the assets of the Trust with such terms as may be
set out in any amendment to this Declaration.
"Common Security Certificate" means a certificate representing a
Common Security.
"Covered Person" means any officer, director, shareholder, partner,
member, representative, employee or agent of the Trust or its Affiliates.
"Debt Issuer" means Commonwealth Edison Company, an Illinois
corporation, in its capacity as the issuer of the Debt Securities.
"Debt Securities" means the series of Debt Securities to be issued by
the Debt Issuer.
"Delaware Trustee" has the meaning set forth in Section 3.1.
"Exchange Act" means the Securities and Exchange Act of 1934.
"Holder" means the Person in whose name a Certificate representing a
Security is registered.
"Indemnified Person" means any Trustee, any Affiliate of any Trustee,
or any officers, directors, shareholders, members, partners, employees,
representatives or agents of any Trustee, or any employee or agent of the
Trust or its Affiliates.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company,
limited liability company, trust, unincorporated association, or government
or any agency or political subdivision thereof, or any other entity of
whatever nature.
"Preferred Security" means a security representing an undivided
beneficial interest in the assets of the Trust with such terms as may be
set out in any amendment to this Declaration.
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"Preferred Security Certificate" means a certificate representing a
Preferred Security.
"Regular Trustee" means any Trustee other than the Delaware Trustee,
acting in its capacity as Delaware Trustee.
"Securities" mean the Common Securities and the Preferred Securities.
"Securities Act" means the Securities Act of 1933.
"Sponsor" means Commonwealth Edison Company, an Illinois corporation,
in its capacity as sponsor of the Trust.
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office
in accordance with the terms hereof, and all other Persons who may from
time to time be duly appointed, qualified and serving as Trustees in
accordance with the provisions hereof, and references herein to a Trustee
or the Trustees shall refer to such Person or Persons solely in their
capacity as trustees hereunder.
SECTION 1.2. Interpretation. Each definition in this Declaration
includes the singular and the plural, and references to the neuter gender
include the masculine and feminine where appropriate. Terms which relate to
accounting matters shall be interpreted in accordance with generally accepted
accounting principles in effect from time to time. References to any statute
mean such statute as amended at the time and include any successor legislation.
The word "or" is not exclusive, and the words "herein," "hereof" and "hereunder"
refer to this Declaration as a whole. The headings to the Articles and Sections
are for convenience of reference and shall not affect the meaning or
interpretation of this Declaration. References to Articles, Sections and
Exhibits mean the Articles, Sections and Exhibits of this Declaration. The
Exhibits are hereby incorporated by reference into, and shall be deemed a part
of, this Declaration.
ARTICLE II
ORGANIZATION
SECTION 2.1. Name. The Trust created by this Declaration is named
"ComEd Financing II". The Trust's activities may be conducted under the name of
the Trust or any other name deemed advisable by the Regular Trustees.
SECTION 2.2. Office. The address of the principal office of the
Trust is c/o Commonwealth Edison Company, One First National Plaza - 37th Floor,
10 South Dearborn Street, Chicago, Illinois 60690-0767. At any time, the
Regular Trustees may designate another principal office.
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SECTION 2.3. Purpose. The exclusive purposes and functions of the
Trust are (a) to issue and sell Securities and use the proceeds from such sale
to acquire the Debt Securities and (b) except as otherwise limited herein, to
engage in only those other activities necessary, or incidental thereto. The
Trust shall not borrow money, issue debt or reinvest proceeds derived from
investments or pledge any of its assets.
SECTION 2.4. Authority. Subject to the limitations provided in this
Declaration, the Regular Trustee shall have exclusive and complete authority to
carry out the purposes of the Trust. An action taken by the Regular Trustees in
accordance with their powers shall constitute the act of, and serve to bind, the
Trust. In dealing with the Regular Trustees acting on behalf of the Trust, no
Person shall be required to inquire into the authority of the Regular Trustees
to bind the Trust. Persons dealing the Trust are entitled to rely conclusively
on the power and authority of the Regular Trustees as set forth in this
Declaration.
SECTION 2.5. Title to Property of the Trust. Legal title to all
assets of the Trust shall be vested in the Trust.
SECTION 2.6. Powers of the Regular Trustees. The Regular Trustees
shall have the exclusive power and authority to cause the Trust to engage in the
following activities:
(a) to issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however, that the
Trust may issue no more than one series of Preferred Securities and no more
than one series of Common Securities, and, provided further, there shall be
no interests in the Trust other than the Securities and the issuance of the
Securities shall be limited to a one-time, simultaneous issuance of both
Preferred Securities and Common Securities;
(b) in connection with the issue and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) execute and file with the Securities and Exchange Commission
a registration statement on Form S-3 prepared by the Sponsor in
relation to the Preferred Securities, including any amendments thereto
prepared by the Sponsor;
(ii) determine the states in which to take appropriate action to
qualify or register for sale all or part of the Preferred Securities
and to take any and all such acts as they deem necessary or advisable
to comply with the applicable laws of any of those states;
(iii) execute and file an application prepared by the Sponsor to
the New York Stock Exchange, Inc. or any other national stock exchange
or the Nasdaq Stock Market's National Market for listing upon notice
of issuance of any Preferred Securities; and
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(iv) execute and file with the Securities and Exchange
Commission a registration statement on Form 8-A prepared by the
Sponsor relating to the registration of the Preferred Securities under
Section 12(b) of the Exchange Act, including any amendments thereto;
(c) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors,
and consultants and provide for reasonable compensation for such services;
(d) to incur expenses which are necessary or incidental to carry out
any of the purposes of this Declaration; and
(e) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing.
SECTION 2.7. Filing of Certificate of Trust. On or after the date of
execution of this Declaration, the Trustees shall cause the Certificate of Trust
for the Trust in the form attached hereto as Exhibit A to be filed with the
Secretary of State of the State of Delaware.
SECTION 2.8. Duration of Trust. The Trust, absent termination
pursuant to the provisions of Section 5.2, shall have existence for forty-five
years from the date hereof.
ARTICLE III
TRUSTEES
SECTION 3.1. Trustees. The number of Trustees shall initially be
three, and thereafter the number of Trustees shall be such number as shall be
fixed from time to time by a written instrument signed by the Sponsor. The
Sponsor is entitled to appoint or remove without cause any Trustee at any time;
provided, that the number of Trustees shall in no event be less than three; and
provided further that one Trustee, in the case of a natural person, shall be a
person who is a resident of the State of Delaware or which, if not a natural
person, has its principal place of business in the State of Delaware (the
"Delaware Trustee").
Except as expressly set forth in this Declaration, any power of the
Regular Trustees may be exercised by, or with the consent of, a majority of the
Regular Trustees; provided that if there is only one Regular Trustee, all powers
of the Regular Trustees shall be exercised by such one Regular Trustee.
The initial Regular Trustees shall be:
John C. Bukovski
Dennis F. O'Brien
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The initial Delaware Trustee shall be:
Wilmington Trust Company
SECTION 3.2. Delaware Trustee. Notwithstanding any other provisions
of this Declaration, the Delaware Trustee, in its capacity as Delaware Trustee,
shall not be entitled to exercise any of the powers, nor shall the Delaware
Trustee have any of the duties and responsibilities, of the Regular Trustees
described in this Declaration. The Delaware Trustee shall be a Trustee for the
sole and limited purpose of fulfilling the requirements of Section 3807 of the
Business Trust Act.
SECTION 3.3. Execution of Documents. (a) The Regular Trustees are
authorized to execute on behalf of the Trust any documents that the Regular
Trustees have the power and authority to cause the Trust to execute pursuant to
Section 2.6.
(b) The Regular Trustees may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 their
power for the purposes of signing any documents which the Regular Trustees have
power and authority to cause the Trust to execute pursuant to Section 2.6.
ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1. Exculpation. (a) No Indemnified Person shall be liable,
responsible or accountable in damages or otherwise to the Trust or any Covered
Person for any loss, damage or claim incurred by reason of any act or omission
performed or omitted by such Indemnified Person in good faith on behalf of the
Trust and in a manner such Indemnified Person reasonably believed to be within
the scope of the authority conferred on such Indemnified Person by this
Declaration or by law, except that an Indemnified Person shall be liable for any
such loss, damage or claim incurred by reason of such Indemnified Person's gross
negligence or willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Trust and upon such information, opinions, reports
or statements presented to the Trust by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Trust, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which distributions to
Holders might properly be paid.
SECTION 4.2. Fiduciary Duty. (a) To the extent that, at law or in
equity, an Indemnified Person has duties (including fiduciary duties) and
liabilities relating thereto to the Trust
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or to any other Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to any other Covered Person for
its good faith reliance on the provisions of this Declaration. The provisions
of this Declaration, to the extent that they restrict the duties and liabilities
of an Indemnified Person otherwise existing at law or in equity, are agreed by
the parties hereto to replace such other duties and liabilities of such
Indemnified Person.
(b) Unless otherwise expressly provide herein:
(i) whenever a conflict or interest exists or arises between an
Indemnified Person and Covered Persons, or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified Person
shall act in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any Holder,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is permitted
or required to make a decision:
(i) in its "discretion" or under a grant of similar authority,
the Indemnified Person shall be entitled to consider such interest and
factors as it desires, including its own interests, and shall have no
duty or obligation to give any consideration to any interest of, or
factors affecting, the Trust or any other Person; or
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and shall not
be subject to any other or different standard imposed by this
Declaration or by applicable law.
SECTION 4.3. Indemnification. (a) To the fullest extent permitted by
applicable law, the Sponsor shall indemnify and hold harmless each Indemnified
Person from and against any loss, damage or claim incurred by such Indemnified
Person by reason of any act or omission performed or omitted by such Indemnified
Person in good faith on behalf of the Trust and in a manner such Indemnified
Person reasonably believed to be within the scope of authority conferred on such
Indemnified Person by this Declaration, except that no Indemnified Person shall
be entitled to be indemnified in respect of any loss, damage or claim incurred
by such Indemnified Person by reason of gross negligence or willful misconduct
with respect to such acts or omissions.
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(b) To the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by an Indemnified Person in defending any claim,
demand, action, suit or proceeding shall, from time to time, be advanced by the
Sponsor prior to the final disposition of such claim, demand, action, suit or
proceeding upon receipt by the Sponsor of an undertaking by or on behalf of the
Indemnified Person to repay such amount if it shall be determined that the
Indemnified Person is not entitled to be indemnified as authorized in Section
4.3(a).
SECTION 4.4. Other Businesses. Any Covered Person, the Sponsor and
the Delaware Trustee may engage in or possess an interest in other business
ventures of any nature or description, independently or with others, similar or
dissimilar to the business of the Trust, and the Trust and the Holders shall
have no rights by virtue of this Declaration in and to such independent ventures
or the income or profits derived therefrom and the pursuit of any such venture,
even if competitive with the business of the Trust, shall not be deemed wrongful
or improper. No Covered Person, the Sponsor or the Delaware Trustee shall be
obligated to present any particular investment or other opportunity to the Trust
even if such opportunity is of a character that, if presented to the Trust,
could be taken by the Trust, and any Covered Person, the Sponsor and the
Delaware Trustee shall have the right to take for its own account (individually
or as a partner or fiduciary) or to recommend to others any such particular
investment or other opportunity. Any Covered Person and the Delaware Trustee
may engage or be interested in any financial or other transaction with the
Sponsor or any Affiliate of the Sponsor, or may act on any committee or body of
holders of securities or other obligations of the Sponsor or its Affiliates.
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1. Amendments. At any time before the issue of any
Securities, this Declaration may be amended by, and only by, a written
instrument executed by a majority of the Regular Trustees and the Sponsor.
SECTION 5.2. Termination of Trust. (a) The Trust shall terminate and
be of no further force or effect:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor or the revocation of the
Sponsor's charter or of the Trust's certificate of trust;
(iii) upon the entry of a decree of judicial dissolution of the
Sponsor or the Trust; or
(iv) before the issue of any Securities, with the consent of at
least a majority of the Regular Trustees and the Sponsor.
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(b) As soon as is practicable after the occurrence of an event
referred to in Section 5.2(a), the Trustees shall file a certificate of
cancellation with the Secretary of State of the State of Delaware.
SECTION 5.3. Governing Law. This Declaration and the rights of the
parties hereunder shall be governed by and interpreted in accordance with the
laws of the State of Delaware and all rights and remedies shall be governed by
such laws without regard to principles of conflict of laws.
SECTION 5.4. Successors and Assigns. Whenever in this Declaration
any of the parties hereto is named or referred to, the successors and assigns of
such party shall be deemed to be included, and all covenants and agreements in
this Declaration by the Sponsor and the Trustees shall bind and inure to the
benefit of their respective successors and assigns, whether so expressed.
SECTION 5.5. Partial Enforceability. If any provisions of this
Declaration, or the application of such provision to any Person or circumstance,
shall be held invalid, the remainder of this Declaration, or the application of
such provision to persons or circumstances other than those to which it is held
invalid, shall not be affected thereby.
SECTION 5.6. Counterparts. This Declaration may contain more than
one counterpart of the signature page and this Declaration may be executed by
the affixing of the signature of each of the Trustees to one of such counterpart
signature pages. All of such counterpart signature pages shall be read as
though one, and they shall have the same force and effect as though all of the
signers had signed a single signature page.
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IN WITNESS WHEREOF, the undrsigned has caused this Declaration of Trust of
ComEd Financing I to be executed as of the day and year first above written.
TRUSTEES:
John C. Bukovski
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John C. Bukovski, as Trustee
Dennis F. O'Brien
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Dennis F. O'Brien, as Trustee
WILMINGTON TRUST COMPANY, as
Trustee
W. Chris Sponenberg
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Name: W. Chris Sponenberg
Title: Senior Financial Services Officer
SPONSOR:
COMMONWEALTH EDISON COMPANY, as
Sponsor
John C. Bukovski
----------------------------------------
John C. Bukovski
Vice President
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EXHIBIT A
CERTIFICATE OF TRUST
The undersigned, the trustees of ComEd Financing II desiring to form a
business trust pursuant to Delaware Business Trust Act, 12 Del. C. Section 3810,
hereby certify as follows:
1. The name of the business trust being formed hereby (the "Trust")
is "ComEd Financing II".
2. The name and business address of the trustee of the Trust which
has its principal place of business in the State of Delaware is as follows:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
3. This Certificate of Trust shall be effective as of the date of
filing.
Dated: November 19, 1996
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John C. Bukovski, as Trustee
--------------------------------
Dennis F. O'Brien, as Trustee
WILMINGTON TRUST COMPANY, as
Trustee
By:
-----------------------------
Name:
Title:
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