AMENDMENT NO. 3 TO THE
AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT
OF PECO ENERGY CAPITAL, L.P.
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This Amendment No. 3 to the Amended and Restated
Limited Partnership Agreement of PECO Energy Capital, L.P., a
Delaware limited partnership (the "Partnership"), dated as of
_________________, 1998 (this "Amendment"), is made by and among
PECO Energy Capital Corp., a Delaware corporation (the "General
Partner"), as general partner of the Partnership, and the Persons
who are limited partners of the Partnership.
WHEREAS, the General Partner and PECO Energy Company, a
Pennsylvania corporation, have heretofore formed a limited
partnership pursuant to the Delaware Act by filing a Certificate
of Limited Partnership of the Partnership with the Secretary of
State of the State of Delaware on May 23, 1994, and by entering
into a Limited Partnership Agreement of the Partnership dated as
of May 23, 1994 (the "Original Agreement");
WHEREAS, the Original Agreement was amended and
restated in its entirety by the Amended and Restated Limited
Partnership Agreement of the Partnership, dated as of July 25,
1994, and was further amended by Amendment No. 1, dated as of
October 20, 1995 and by Amendment No. 2, dated as of March 1,
1996 (as amended, the "Partnership Agreement");
WHEREAS, the parties hereto desire to amend the
Partnership Agreement as described herein; and
WHEREAS, this Amendment does not adversely affect the
powers, preferences or special rights of any series of Preferred
Partner Interests.
NOW, THEREFORE, the parties hereto, intending to be
legally bound hereby, agree to amend the Partnership Agreement as
follows:
ARTICLE I - AMENDMENTS
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1.1 The first sentence of Section 13.02(a)(i) of the
Partnership Agreement is hereby amended and restated as follows:
The Preferred Partners shall be entitled to receive,
when, as and if declared by the General Partner out of
funds held by the Partnership to the extent that the
Partnership has cash on hand sufficient to permit such
payments and funds legally available therefor,
cumulative cash distributions at a rate per annum
established by the General Partner, calculated on the
basis of a 360-day year consisting of twelve (12)
months of thirty (30) days each, and for any shorter
period, distributions will be computed on the basis of
the actual number of days elapsed in such period, and
payable in United States dollars, in arrears, with a
payment frequency determined by the General Partner at
the time of issuance.
1.2 The first sentence of Section 13.02(b)(ii) of the
Partnership Agreement is hereby amended by deleting the word
"monthly" contained therein.
1.3 The second sentence of the first paragraph of
Section 13.02(d) of the Partnership Agreement is hereby amended
and restated as follows:
If (i) the Partnership fails to pay distributions in
full on any series of Preferred Partner Interests for
eighteen (18) consecutive months; (ii) a default under
the Indenture occurs and is continuing; or (iii) PECO
is in default on any of its payment or other
obligations under the Guarantee, then the holders of
the Preferred Partner Interests, acting as a single
class, will be entitled, by a vote of the majority of
the aggregate stated liquidation preference of
outstanding Preferred Partner Interests, to appoint and
authorize a special representative (the "Special
Representative") to enforce the Partnership's creditor
rights under the Subordinated Debentures and the
Indenture against PECO and enforce the obligations
undertaken by PECO under the Guarantee, including,
after failure to pay distributions for sixty (60)
consecutive months, to declare and pay distributions on
such series of Preferred Partner Interests, the General
Partner agreeing to execute and deliver such documents
as may be necessary, appropriate or convenient for the
Special Representative to enforce such rights and
obligations.
1.4 The third paragraph of Section 13.02(d) of the
Partnership Agreement is hereby amended by (i) deleting the words
"monthly distribution periods" contained in the third (3rd) line
therein and substituting therefor the word "months", and (ii)
deleting the word "monthly" contained in the seventh (7th) line
therein.
ARTICLE II - MISCELLANEOUS
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2.1 Capitalized Terms. Capitalized terms used but not
otherwise defined herein shall have the meanings assigned to them
in the Partnership Agreement.
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2.2 Full Force and Effect. Except to the extent
modified hereby, the Partnership Agreement shall remain in full
force and effect.
2.3 Successors and Assigns. This Amendment shall be
binding upon, and shall enure to the benefit of, the parties
hereto and their respective successors and assigns.
2.4 Counterparts. This Amendment may be executed in
counterparts, all of which together shall constitute one
agreement binding on all parties hereto, notwithstanding that all
such parties are not signatories to the original or same
counterpart.
2.5 Governing Law. This Amendment shall be
interpreted in accordance with the laws of the State of Delaware
(without regard to conflict of law principles) with all rights
and remedies being governed by such laws.
GENERAL PARTNER:
PECO ENERGY CAPITAL CORP.
By: ______________________________
Name:
Title:
PREFERRED PARTNERS:
All Preferred Partners now and
hereafter admitted as Limited
Partners of the Partnership
pursuant to the Powers of Attorney
now or hereafter executed in favor
of, and delivered to, the General
Partner.
By: PECO ENERGY CAPITAL CORP.
By: ______________________________
Name:
Title:
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