ACTION BY THE GENERAL PARTNER OF PECO ENERGY CAPITAL, L.P.
CREATING THE __% CUMULATIVE MONTHLY INCOME
PREFERRED PARTNER INTERESTS, SERIES A
Pursuant to Section 13.01 of the Amended and Restated
Limited Partnership Agreement of PECO Energy Capital, L.P. dated
____________, 1994 (as amended from time to time, the
"Partnership Agreement"), PECO Energy Capital Corp. as general
partner (the "General Partner") of PECO Energy Capital, L.P. (the
"Partnership"), desiring to state the designations, rights,
privileges, restrictions, preferences, [voting rights] and other
terms and conditions of a new series of Preferred Partner
Interests, hereby authorizes and establishes such new series of
Preferred Partner Interests according to the following terms and
conditions (each capitalized terms used but not defined herein
shall have the meaning set forth in the Partnership Agreement):
(a) Designation. ____________ interests with an
aggregate liquidation preference of $ ______ of the Preferred
Partner Interests of the Partnership, liquidation preference $25
per Preferred Partner Interest, are hereby designated as "__%
Cumulative Monthly Income Preferred Partner Interests, Series A"
(hereinafter the "Series A Preferred Partner Interests.")
(b) Distributions.
(i) The Preferred Partners who hold the Series A
Preferred Partner Interests shall be entitled to
receive, when, as and if declared by the General
Partner out of funds on hand held by the
Partnership and legally available therefor,
cumulative cash distributions at a rate per annum
of ___% of the stated liquidation preference of
$25 per Series A Preferred Partner Interest per
annum, commencing _____, 1994. Distributions on
the Series A Preferred Partner Interests which
accrue from the date of original issue to ____,
1994 shall be payable on ____, 1994.
(ii) Distributions on the Series A Preferred
Partner Interests must be declared by the General
Partner in any calendar year or portion thereof to
the extent that the General Partner reasonably
anticipates that at the time of payment the
Partnership will have, and must be paid by the
Partnership to the extent that at the time of
proposed payment it has, funds on hand legally
available therefor sufficient to permit such
payments. Distributions on the Series A Preferred
Partner Interests will be deferred if and for so
long as PECO Energy Company ("PECO Energy") defers
payments to the Partnership on the Series A
Debentures (as defined below). Accrued and unpaid
distributions on the Series A Preferred Partner
Interests will accrue additional distributions
("Additional Distributions") in respect thereof,
to the extent permitted by law, at the
distribution rate per annum for the Series A
Preferred Interests. Such Additional
Distributions shall be payable at the time the
related deferred distribution is paid, but in any
event by the end of such deferral period.
Distributions declared on the Series A Preferred
Partner Interests will be payable to the Series A
Preferred Partners as they appear on the books and
records of the Partnership on the relevant record
dates, which will be one Business Day prior to the
relevant payment dates.
(c) Redemption.
(i) The Series A Preferred Partner Interests are
subject to redemption at the option of the General
Partner, in whole or in part, from time to time,
on or after _________, 1999, at the Redemption
Price (as defined below).
(ii) Upon redemption or payment at maturity of
the ____% Subordinated Debentures due 2043, Series
A (the "Series A Debentures") issued by PECO
Energy pursuant to an Indenture dated as of
_______, 1994 between PECO Energy and Meridian
Trust Company, as Trustee (the "Indenture"), which
Series A Debentures were purchased by the
Partnership from PECO Energy with the proceeds
from the issuance and sale of the Series A
Preferred Partner Interests and the related
capital contribution of the General Partner, the
proceeds from such redemption or payment of the
Series A Debentures shall be applied to redeem the
Series A Preferred Partner Interests at the
redemption price of $25 per Preferred Partner
Interest plus accumulated and unpaid distributions
(whether or not declared) and Additional Amounts
(as defined below) to the date fixed for
redemption, together with any accrued Additional
Distributions thereon (the "Redemption Price").
(iii) If at any time after the issuance of the
Series A Preferred Partner Interests, the
Partnership is or would be required to pay
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Additional Amounts or if PECO Energy would be
required to pay Additional Interest (as defined in
the Indenture) on the Series A Debentures then,
the Series A Preferred Partner Interests will be
subject to redemption, at the option of the
General Partner, in whole or, if such requirement
relates only to certain of the Series A Preferred
Partner Interests, the Series A Preferred Partner
Interests subject to such requirement, in each
case at any time thereafter at the Redemption
Price.
(iv) If a Tax Event shall occur and be continuing,
the Series A Preferred Partner Interests will be
subject to redemption, at the option of the
General Partner, in whole or in part at the
Redemption Price within ninety (90) days following
the occurrence of such Tax Event. If an
Investment Company Act Event shall occur and be
continuing, the Series A Preferred Partner
Interests will be subject to mandatory redemption
in whole at the Redemption Price within ninety
(90) days following the occurrence of such
Investment Company Event.
(d) Liquidation Distribution. In the event of any
voluntary or involuntary dissolution and winding up of the
Partnership, holders of the Series A Preferred Partner Interests
at the time outstanding will be entitled to receive out of the
assets of the Partnership available for distribution to holders
of Preferred Partner Interests, after satisfaction of liabilities
to creditors as required by the Delaware Act and before any
distribution of assets is made to holders of the general partner
interests, but together with holders of every other series of
Preferred Partner Interests outstanding, an amount equal to, in
the case of holders of Series A Preferred Partner Interests, the
aggregate of the stated liquidation preference of $25 per Series
A Preferred Partner Interest plus accumulated and unpaid
distributions and Additional Distributions to the date of payment
and Additional Amounts, if any (the "Liquidation Distribution").
(e) Voting Rights. The holders of the Series A
Preferred Partner Interests shall have no voting rights except as
provided in the Partnership Agreement.
(f) Additional Amounts. If, as a result of (i) the
Series A Debentures not being treated as indebtedness for United
States federal income tax purposes or (ii) the Partnership not
being treated as a partnership for United States federal income
tax purposes, the Partnership is required to withhold or deduct
from payments on the Series A Preferred Partner Interests for or
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on account of any present or future taxes imposed by the United
States which would not otherwise be required to be withheld or
deducted, the Partnership will pay such additional amounts as may
be necessary in order that the net amounts received by the
holders of the Series A Preferred Partner Interests after such
withholding or deduction will equal the amount which would have
been receivable in respect of such Series A Preferred Partner
Interests in the absence of such withholding or deduction
("Additional Amounts"), except that no such Additional Amounts
will be payable to a holder of Series A Preferred Partner
Interests (or a third party on such holder's behalf) with respect
to Series A Preferred Partner Interests if:
(a) such holder is liable for such taxes by reason of
such holder having a connection with the United
States, other than being a holder of Series A
Preferred Partner Interests; or
(b) the Partnership has notified such holder of the
obligation to withhold or deduct taxes and
requested but not received from such holder a
declaration of non-residence, a valid taxpayer
identification number or other claim for exemption
in such form or content as may be required by the
United States Internal Revenue Service, and such
withholding or deduction would not have been
required had such declaration, taxpayer
identification number or claim been received.
(g) Subordination. The holders of Series A Preferred
Partner Interests are deemed, by acceptance of such Interests, to
have (i) agreed that the Debentures issued pursuant to the
Indenture are subordinate and junior in right of payment to all
general liabilities as and to the extent provided in the
Indenture and (ii) agreed that the Guarantee relating to the
Series A Preferred Partner Interests is subordinate and junior in
right of payment to all general liabilities of PECO Energy.
IN WITNESS WHEREOF, the General Partner has executed
this Action as of the day and year first above written.
PECO Energy Capital Corp.
By: _____________________
Name:
Title:
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