PECO ENERGY COMPANY
AND
First Union National Bank, as Trustee
THIRD SUPPLEMENTAL
INDENTURE
Dated as of ___________, 1998
to
INDENTURE
Dated as of July 1, 1994
Providing for the Issuance of
__% Subordinated Deferrable Interest Debentures, Series D
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE . . . . . . . . 2
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 2 THE SERIES D SUBORDINATED DEBT SECURITIES. . . . . . . . . 3
SECTION 2.01. Form of the Series D Subordinated Debt
Securities; Denominations . . . . . . . . . . . . . . 3
ARTICLE 3 REDEMPTION . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 3.01. Redemption; Notice to Trustee . . . . . . . . . . . . 4
SECTION 3.02. Compliance with Terms of Indenture. . . . . . . . . . 4
ARTICLE 4 EXTENSION PERIOD. . . . . . . . . . . . . . . . . . . . . 5
SECTION 4.01. Limitation on Right of Company to Extend
Interest Payment Period . . . . . . . . . . . . . . . 5
ARTICLE 5 CONCERNING THE TRUSTEE . . . . . . . . . . . . . . . . . . 5
SECTION 5.01. Not Responsible for Recitals. . . . . . . . . . . . . 6
SECTION 5.02. Qualification Under Trust Indenture Act of
1939. . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE 6 MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 6.01. Trust Indenture Act Controls. . . . . . . . . . . . . 6
SECTION 6.02. Severability Clause . . . . . . . . . . . . . . . . . 6
SECTION 6.03. Governing Law . . . . . . . . . . . . . . . . . . . . 6
SECTION 6.04. No Recourse Against Others. . . . . . . . . . . . . . 7
SECTION 6.05. Use of Term "Trustee" . . . . . . . . . . . . . . . . 7
SECTION 6.06. Confirmation of Original Indenture. . . . . . . . . . 7
SECTION 6.07. Successors. . . . . . . . . . . . . . . . . . . . . . 7
SECTION 6.08. Multiple Original Copies of this Indenture. . . . . . 7
SECTION 6.09. Table of Contents; Headings, Etc. . . . . . . . . . . 7
SECTION 6.10. Benefits of the Indenture . . . . . . . . . . . . . . 8
SECTION 6.11. Date of Indenture . . . . . . . . . . . . . . . . . . 8
SECTION 11.02. Notices . . . . . . . . . . . . . . . . . . . . . . . 8
(i)
THIRD SUPPLEMENTAL INDENTURE, dated as of __________,
1998, by and between PECO Energy Company, a Pennsylvania
corporation (the "Company"), and First Union National Bank, a
national association, as successor Trustee, to an Indenture,
dated as of July 1, 1994 (the "Original Indenture"), by and
between the Company and Meridian Trust Company, the original
Trustee, which was supplemented by a First Supplemental Indenture
(the "First Supplemental Indenture") dated as of December 1, 1995
and a Second Supplemental Indenture (the "Second Supplemental
Indenture") dated as of June 1, 1997 (the Original Indenture, as
supplemented, the "Indenture").
WHEREAS, the Company has formed a wholly owned
subsidiary, PECO Energy Capital Corp., which is the general
partner of PECO Energy Capital, L.P., a Delaware limited
partnership ("PECO Energy Capital"), to issue in series from time
to time its limited partner interests ("Preferred Securities")
and to loan the proceeds thereof, together with the investment by
PECO Energy Capital Corp. in PECO Energy Capital, to the Company
and to effect other similar arrangements.
WHEREAS, the Company has duly executed and delivered to
the Trustee the Original Indenture to provide for the issuance of
one or more series of deferrable interest subordinated debentures
(herein sometimes called the "Debentures"), issuable as in the
Indenture provided, and authorized and issued the initial series
of Debentures which were designated therein as the 9% Deferrable
Interest Subordinated Debentures, Series A.
WHEREAS, the Company has duly executed and delivered to
the Trustee the First Supplemental Indenture authorizing and
providing for the issuance of the second series of Debentures
which were designated the 8.72% Deferrable Interest Subordinated
Debentures, Series B.
WHEREAS, the Company has duly executed and delivered to
the Trustee the Second Supplemental Indenture authorizing and
providing for the issuance of the third series of Debentures
which were designated the 8% Deferrable Interest Subordinated
Debentures, Series C.
WHEREAS, the Company desires to authorize and to effect
the issuance of a fourth series of Debentures in an aggregate
principal amount of $80,520,619 and to designate such series __%
Subordinated Deferrable Interest Debentures, Series D (the
"Series D Subordinated Debt Securities") under this Third
Supplemental Indenture.
WHEREAS, all things necessary to make the Series D
Subordinated Debt Securities when duly issued and executed by the
Company and authenticated and delivered hereunder, the valid
obligations of the Company, and to make this Third Supplemental
Indenture a valid and binding agreement of the Company, in
accordance with its terms, have been done.
NOW THEREFORE:
Each of the Company and the Trustee, intending to be
legally bound hereby, agrees as follows for the benefit of the
other party and for the equal and ratable benefit of the Holders
of the Series D Subordinated Debt Securities:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"Additional Interest", with respect to the Series D
Subordinated Debt Securities, means amounts, if any, which PECO
Energy Capital would be required to pay as taxes, duties,
assessments or governmental charges of whatever nature (other
than withholding taxes) imposed by the United States, or any
other taxing authority, with respect to the Series D Subordinated
Debt Securities.
"Issue Date" means ___________, 1998.
"Series D Subordinated Debt Securities" means any of
the Company's __% Subordinated Deferrable Interest Debentures,
Series D issued under this Third Supplemental Indenture.
"Series D Subordinated Debt Securityholder" or "Series
D Holder" means a Person in whose name a Series D Subordinated
Debt Security is registered on the Registrar's books.
"Series D Preferred Securities" means the __%
Cumulative Preferred Securities, Series D, representing limited
partner interests of PECO Energy Capital.
Unless otherwise defined herein, all other capitalized
terms used herein have the meanings set forth in the Original
Indenture.
2
ARTICLE 2
THE SERIES D SUBORDINATED DEBT SECURITIES
SECTION 2.01. FORM OF THE SERIES D SUBORDINATED DEBT SECURITIES;
DENOMINATIONS.
The Series D Subordinated Debt Securities and the
Trustee's certificate of authentication shall be substantially in
the form of Exhibit A attached hereto. The terms and provisions
contained in the Series D Subordinated Debt Securities, a form of
which is annexed hereto as Exhibit A, shall constitute, and are
hereby expressly made, a part of this Third Supplemental
Indenture. The Company and the Trustee, by their execution and
delivery of this Third Supplemental Indenture, expressly agree
to such terms and provisions and to be bound thereby.
The Trustee shall authenticate and make available for
delivery the Series D Subordinated Debt Securities for original
issuance in the aggregate principal amount of $80,520,619 to
evidence the Company's obligation with respect to the loan from
PECO Energy Capital, upon receipt by the Trustee of a Board of
Directors resolution and a written order of the Company signed by
two Officers of the Company, but without any further action by
the Company. Such order shall specify the amount of the Series D
Subordinated Debt Securities to be authenticated and the date on
which the original issuance of Series D Subordinated Debt
Securities is to be authenticated and delivered to evidence the
Company's obligation with respect to the loan from PECO Energy
Capital. The aggregate principal amount of Series D Subordinated
Debt Securities outstanding at any time may not exceed
$80,520,619 except as provided in Section 2.09 of the Original
Indenture.
The Series D Subordinated Debt Securities shall be
issuable only in registered form without coupons and only in
denominations of $1,000 and any integral multiple thereof.
SECTION 2.09. REPLACEMENT DEBENTURES.
If (a) any mutilated Debenture is surrendered to the
Company or the Trustee, or (b) the Company and the Trustee
receive evidence to their satisfaction of the destruction, loss
or theft of any Debenture, and there is delivered to the Company
and the Trustee such Debenture or indemnity as may be required by
them to save each of them harmless, then, in the absence of
notice to the Company or the Trustee that such Debenture has been
acquired by a protected purchaser, the Company shall execute in
exchange for any such mutilated Debenture or in lieu of any such
destroyed, lost or stolen Debenture, a new Debenture of like
tenor and principal amount, bearing a number not
contemporaneously outstanding, and the Trustee shall authenticate
and make such new Debenture available for delivery.
3
In case any such mutilated, destroyed, lost or stolen
Debenture has become or is about to become due and payable, or is
about to be redeemed by the Company pursuant to Article 3 hereof,
the Company in its discretion may, instead of issuing a new
Debenture, pay or purchase such Debenture, as the case may be.
Upon the issuance of any new Debentures under this
Section 2.09, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may
be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) in connection therewith.
Every new Debenture issued pursuant to this Section
2.09 in lieu of any mutilated, destroyed, lost or stolen
Debenture shall constitute an original additional contractual
obligation of the Company whether or not the mutilated,
destroyed, lost or stolen Debenture shall be at any time
enforceable by anyone, and shall be entitled to all benefits of
this Indenture equally and ratable with any and all other
Debentures duly issued hereunder.
The provisions of this Section 2.09 are exclusive and
shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Debentures.
ARTICLE 3
REDEMPTION
SECTION 3.01. REDEMPTION; NOTICE TO TRUSTEE.
(a) The Series D Subordinated Debt Securities are
subject to redemption prior to maturity as provided in the form
thereof attached hereto as Exhibit A.
(b) If any or all of the Series D Subordinated Debt
Securities are to be redeemed pursuant to paragraph (a) above, in
addition to the notices required by the Original Indenture, the
Company shall give notice by first class mail, postage prepaid,
to the Trustee at least 40 days prior to the date of such
redemption. Any such notice of redemption shall state the date
and price of redemption.
SECTION 3.02. COMPLIANCE WITH TERMS OF INDENTURE.
In case the Company shall desire to exercise such right
to redeem all or any part of said Series D Subordinated Debt
Securities as hereinbefore provided, it shall comply with all the
terms and provisions of Article III of the Original Indenture
applicable thereto, and such redemption shall be made under and
subject to the terms and provisions of said Article III and in
the manner and with the effect therein provided, but at the time
or times and at the respective redemption rates and upon mailing
4
of notice, all as hereinbefore set forth in Section 3.01 of this
Article.
ARTICLE 4
EXTENSION PERIOD
SECTION 4.01. LIMITATION ON RIGHT OF COMPANY TO EXTEND INTEREST
PAYMENT PERIOD.
(b) Notwithstanding paragraph (a) of this Section 4.01
or any other provision herein to the contrary, the Company shall have
the right in its sole and absolute discretion at any time and from
time to time while the Debentures are outstanding, so long as an Event
of Default has not occurred and is continuing, to extend the interest
payment period for up to 60 consecutive months, provided that such
extended interest period shall not extend beyond the stated maturity
date or redemption date of any series of Debentures, and provided
further that at the end of each Extension Period, the Company shall
pay all interest then accrued and unpaid (provided that with respect
to any series of Debentures payable other than on a monthly basis, the
Company shall, at the end of each Extension Period, pay all interest
then accrued and payable) (together with interest thereon compounded
daily to the extent permitted by applicable law at the rate per annum
borne by the Debentures). Prior to the termination of an Extension
Period, the Company may shorten or may further extend the interest
payment period, provided that such Extension Period together with all
such further extensions may not exceed 60 months. The Company shall
give the Trustee notice of its selection of such extended or shortened
interest payment period at least one Business Day prior to the earlier
of (i) the date selected by the Company to make the interest payment
or (ii) the date PECO Energy Capital is required to give notice of the
record or payment date of such related distribution to any national
securities exchange on which the Preferred Securities are then listed
or other applicable self-regulatory organization, but in any event not
less than two Business Days prior to such record date fixed by the
Company for the payment of such interest. The Company shall give or
cause the Trustee to give such notice of the Company's selection of
such extended interest payment period to the Holders.
ARTICLE 5
CONCERNING THE TRUSTEE
The Trustee hereby reaffirms acceptance of the trust
herein declared and provided and agrees to perform the same upon
the terms and conditions set forth in the Indenture, as
supplemented by the First Supplemental Indenture, the Second
Supplemental Indenture and this Third Supplemental Indenture, and
upon the following terms and conditions:
5
SECTION 5.01. NOT RESPONSIBLE FOR RECITALS.
The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of
this Third Supplemental Indenture or the due execution thereof by
the Company or for or in respect of the recitals contained
herein, all of which recitals are made solely by the Company.
SECTION 5.02. QUALIFICATION UNDER TRUST INDENTURE ACT OF 1939.
The Trustee hereby acknowledges that the Company
proposes to qualify this Third Supplemental Indenture under the
Trust Indenture Act of 1939, as amended.
ARTICLE 6
MISCELLANEOUS
SECTION 6.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Third Supplemental Indenture
limits, qualifies or conflicts with the duties imposed by
operation of subsection (c) of Section 318 of the TIA, the
imposed duties shall control. The provisions of Sections 310 to
317, inclusive, of the TIA that impose duties on any Person
(including provisions automatically deemed included in an
indenture unless the indenture provides that such provisions are
excluded) as a part of and govern this Third Supplemental
Indenture, except as, and to the extent, they are expressly
excluded from this Third Supplemental Indenture, as permitted by
the TIA.
SECTION 6.02. SEVERABILITY CLAUSE.
If any provision in this Third Supplemental Indenture
or in the Series D Subordinated Debt Securities shall be invalid,
illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
SECTION 6.03. GOVERNING LAW.
This Third Supplemental Indenture and the Series D
Subordinated Debt Securities shall be governed by and construed
in accordance with the laws of the Commonwealth of Pennsylvania
as applied to contracts made and performed within the
Commonwealth of Pennsylvania, without regard to its principles of
conflicts of laws.
6
SECTION 6.04. NO RECOURSE AGAINST OTHERS.
No director, officer, employee or stockholder, as such,
of the Company shall have any liability for any obligations of
the Company under the Series D Subordinated Debt Securities or
this Third Supplemental Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation.
By accepting a Series D Subordinated Debt Security, each Series D
Subordinated Debt Securityholder shall waive and release all such
liability. The waiver and release shall be part of the
consideration for the issuance of the Series D Subordinated Debt
Securities.
SECTION 6.05. USE OF TERM "TRUSTEE".
Unless otherwise clearly required by the context, the
term, "Trustee," or any other equivalent term used in this Third
Supplemental Indenture shall be held and construed to mean the
Trustee under the Indenture for the time being whether the
original or a successor Trustee.
SECTION 6.06. CONFIRMATION OF ORIGINAL INDENTURE.
As supplemented by the First Supplemental Indenture,
the Second Supplemental Indenture and this Third Supplemental
Indenture, the Original Indenture, is in all respects ratified
and confirmed, and this Third Supplemental Indenture shall be
read, taken and construed as a part of the Indenture so that all
of the rights, remedies, terms, conditions, covenants and
agreements of the Indenture shall apply and remain in full force
and effect with respect to this Third Supplemental Indenture and
to the Series D Subordinated Debt Securities issued hereunder.
SECTION 6.07. SUCCESSORS.
All agreements of the Company in this Third
Supplemental Indenture and the Series D Subordinated Debt
Securities shall bind its successors and assigns. All agreements
of the Trustee in this Third Supplemental Indenture shall bind
its successors and assigns.
SECTION 6.08. MULTIPLE ORIGINAL COPIES OF THIS INDENTURE.
The parties may sign any number of copies of this Third
Supplemental Indenture. Each signed copy shall be an original,
but all of them together represent the same agreement. Any
signed copy shall be sufficient proof of this Third Supplemental
Indenture.
SECTION 6.09. TABLE OF CONTENTS; HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and
headings of the Articles and Sections of this Third Supplemental
7
Indenture have been inserted for convenience of reference only,
are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
SECTION 6.10. BENEFITS OF THE INDENTURE.
Except as expressly provided in Article 10 of the
Original Indenture, nothing in this Third Supplemental Indenture
or in the Series D Subordinated Debt Securities, express or
implied, shall give to any Person, other than the parties hereto
and their successors hereunder, the Series D Holders and the
Special Representative, any benefit or any legal or equitable
right, remedy or claim under this Third Supplemental Indenture.
SECTION 6.11. DATE OF INDENTURE.
This Third Supplemental Indenture is dated as of
_______, 1998, but was actually executed and delivered on
_______, 1998.
SECTION 11.02. NOTICES.
Any notice or communication shall be in writing and
delivered in person or mailed by first-class mail, postage
prepaid, addressed as follows:
if to the Company:
PECO Energy Company
2301 Market Street
P.O. Box 8699
Philadelphia, Pennsylvania 19101
Attention: Todd D. Cutler, Esq.
Facsimile No.: (215) 841-5743
if to the Trustee:
First Union National Bank
Corporate Trust Administration
123 S. Broad Street (PA-1249)
Philadelphia, Pennsylvania 19109-1199
The Company or the Trustee, by giving notice to the
other, may designate additional or different addresses for
subsequent notices or communications. The Company shall notify
the holder, if any, of Senior Indebtedness of any such additional
or different addresses of which the Company receives notice from
the Trustee.
Any notice or communication given to the
Debentureholder other than PECO Energy Capital shall be mailed to
8
the Debentureholder at the Debentureholder's address as it
appears on the Register of the Registrar and shall be
sufficiently given if mailed within the time prescribed.
Failure to mail a notice or communication to a
Debentureholder or any defect in it shall not affect its
sufficiency with respect to other Debentureholders. If a notice
or communication is mailed in the manner provided above, it is
duly given, whether or not received by the addressee.
If the Company mails a notice or communication to the
Debentureholders, it shall mail a copy to the Trustee and each
Registrar, Paying Agent or co-Registrar.
SIGNATURES
IN WITNESS WHEREOF, the undersigned, being duly
authorized, have executed this Third Supplemental Indenture on
behalf of the respective parties hereto as of the date first
above written.
PECO ENERGY COMPANY
By: ___________________________________
Name: J. Barry Mitchell
Title: Vice President - Finance
FIRST UNION NATIONAL BANK,
AS TRUSTEE
By: ___________________________________
Name: _________________________________
Title: ________________________________
PECO ENERGY CAPITAL, L.P.
By its General Partner,
PECO Energy Capital Corp.
By: ___________________________________
Name: J. Barry Mitchell
Title: President
9
EXHIBIT A
__% SUBORDINATED DEFERRABLE INTEREST DEBENTURES,
SERIES D DUE 2028
No. 1
PECO Energy Company, a Pennsylvania corporation (the
"Company"), which term includes any successor corporation under
the Indenture, as defined herein), for value received, hereby
promises to pay to PECO Energy Capital, L.P. or registered
assigns, the principal sum of Eighty Million Five Hundred Twenty
Thousand Six Hundred Nineteen Dollars ($80,520,619) on
___________, 2028, and to pay interest on said principal sum from
___________, 1998 (the "Issue Date") or from the most recent
interest payment date (each such date, an "Interest Payment
Date") to which interest has been paid or duly provided for,
semiannually in arrears on ____________ and _____________ of each
year commencing ____________, 1998 at the rate of __% per annum
plus Additional Interest, if any, until the principal hereof
shall have become due and payable, and on any overdue principal
and premium, if any, and (to the extent that payment of such
interest is enforceable under applicable law) on any overdue
installment of interest at the same rate per annum. If at any
time PECO Energy Capital, L.P. ("PECO Energy Capital") would be
required to pay any taxes, duties or other governmental charges
(other than withholding taxes) imposed by the United States or
any other taxing authority then, in any such case, the Company
also will pay as Additional Interest such amounts as shall be
required so that the net amounts received and retained by PECO
Energy Capital after paying any such taxes, duties or other
governmental charges will not be less than the amounts PECO
Energy Capital would have received had no such taxes, duties,
assessments or other governmental charges been imposed.
All capitalized terms used but not otherwise defined
herein have the meanings set forth in the Indenture (as defined
herein).
The amount of interest payable on any Interest Payment
Date shall be computed on the basis of a 360-day year of twelve
30-day months. In the event that any date on which interest is
payable on the Series D Subordinated Debt Securities is not a
Business Day, then payment of interest payable on such date will
be made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of any such
delay), except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same
force and effect as if made on such date. The interest
installment so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in the Indenture,
A-1
be paid to the person in whose name this Series D Subordinated
Debt Security is registered at the close of business on the
regular record date for such interest installment, which shall be
__________ and ___________ of each year. Any such interest
installment not punctually paid or duly provided for shall
forthwith cease to be payable to the registered holders on such
regular record date, and may be paid to the person in whose name
this Series D Subordinated Debt Security is registered at the
close of business on a special record date to be fixed by the
Trustee for the payment of such defaulted interest, notice
whereof shall be given to the registered holders of this series
of Debentures not less than ten days prior to such special record
date, as more fully provided in the Indenture. The principal of
(and premium, if any) and the interest on this Series D
Subordinated Debt Security shall be payable at the office or
agency of the Company maintained for that purpose in Wilmington,
Delaware in any coin or currency of the United States of America
which at the time of payment is legal tender for payment of
public and private debts; provided however, that payment of
interest may be made at the option of the Company by check mailed
to the registered holder at such address as shall appear in the
Debenture Register. Notwithstanding the foregoing, so long as
the holder of this Series D Subordinated Debt Security is PECO
Energy Capital, the payment of the principal of (and premium) and
interest (including Additional Interest, if any) on this Series D
Subordinated Debt Security will be made at such place and to such
account as may be designated by PECO Energy Capital.
The indebtedness evidenced by this Series D
Subordinated Debt Security is, to the extent provided in the
Indenture, subordinate and subject in right of payment to the
prior payment in full of all Senior Indebtedness, and this Series
D Subordinated Debt Security is issued subject to the provisions
of the Indenture with respect thereto. Each Holder of this
Series D Subordinated Debt Security, by accepting the same (a)
agrees to and shall be bound by such provisions, (b) authorizes
and directs the Trustee on its behalf to take such action as may
be necessary or appropriate to acknowledge or effectuate the
subordination so provided and (c) appoints the Trustee its
attorney-in-fact for any and all such purposes. Each Holder
hereof, by its acceptance hereof, hereby waives all notice of the
acceptance of the subordination provisions contained herein and
in the Indenture by each holder of Senior Indebtedness, whether
now outstanding or hereafter incurred, and waives reliance by
each such Holder upon said provisions.
This Series D Subordinated Debt Security is one of a
duly authorized series of Debentures of the Company (herein
sometimes referred to as the "Series D Subordinated Debt
Securities"), specified in the Indenture, limited in aggregate
principal amount as specified in the Indenture, issued under and
pursuant to an Indenture dated as of July 1, 1994, between the
Company and Meridian Trust Company, as Trustee, as supplemented
A-2
by a First Supplemental Indenture, dated as of December 1, 1995,
a Second Supplemental Indenture, dated as of June 1, 1997 and a
Third Supplemental Indenture dated as of _________________, 1998
(as supplemented, the "Indenture") executed and delivered between
the Company and First Union National Bank, as successor Trustee
to which reference is made to the Indenture for a description of
the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the holders
of the Series D Subordinated Debt Securities. By the terms of
the Indenture, Debentures are issuable in series which may vary
as to amount, date of maturity, rate of interest and in other
respects as provided in the Indenture.
The Series D Subordinated Debt Securities are subject
to mandatory redemption prior to maturity at 100% of the
principal amount thereof plus accrued interest to the redemption
date as follows:
(i) in whole upon the dissolution of PECO Energy
Capital; and
(ii) in whole or in part upon a redemption of the
Series D Preferred Securities, but if in
part, in an aggregate principal amount equal
to the aggregate stated liquidation
preference of the Series D Preferred
Securities redeemed.
In the event of redemption of this Series D
Subordinated Debt Security in part only, a new Series D
Subordinated Debt Security or Securities for the unredeemed
portion hereof will be issued in the name of the Holder hereof
upon the cancellation hereof.
In case an Event of Default shall have occurred and be
continuing, the principal of all of the Debentures may be
declared, and upon such declaration shall become, due and
payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture contains provisions for defeasance at any
time of the entire indebtedness of this Series D Subordinated
Debt Security upon compliance by the Company with certain
conditions set forth therein.
Subject to certain exceptions in the Indenture which
require the consent of every Holder, (i) the Indenture or the
Series D Subordinated Debt Securities may be amended with the
written consent of the Holders of a majority in aggregate
principal amount of the Series D Subordinated Debt Securities at
the time outstanding, and (ii) certain defaults or noncompliance
with certain provisions may be waived by the written consent of
the holders of a majority in aggregate principal amount of the
A-3
Series D Subordinated Debt Securities at the time outstanding.
Subject to certain exceptions in the Indenture, without the
consent of any Debentureholder, the Company and the Trustee may
amend the Indenture or the Debentures to cure any ambiguity,
defect or inconsistency, to bind a successor to the obligations
of the Indenture, to provide for uncertificated Debentures in
addition to certificated Debentures, to comply with any
requirements of the Debentures or the Securities and Exchange
Commission in connection with the qualification of the Indenture
under the TIA, or to make any change that does not adversely
affect the rights of any Debentureholder. Amendments bind all
Holders and subsequent Holders.
No reference herein to the Indenture and no provision
of this Series D Subordinated Debt Security or of the Indenture
shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium,
if any, and interest on this Series D Subordinated Debt Security
at the time and place and at the rate and in the money herein
prescribed.
So long as an Event of Default has not occurred and is continuing,
the Company shall have the right at any time during the term of the Series
D Subordinated Debt Securities, from time to time to extend the interest
payment period of such Series D Subordinated Debt Securities to up to 60
consecutive months (the "Extended Interest Payment Period"), at the end of
which period the Company shall pay all interest then accrued and payable
(together with interest thereon at the rate specified for the Series D
Subordinated Debt Securities to the extent that payment of such interest is
enforceable under applicable law); provided that, during such Extended
Interest Payment Period the Company shall not declare or pay any dividend
on, redeem or purchase any of its capital stock. Prior to the termination
of any such Extended Interest Payment Period, the Company may further
extend such Extended Interest Payment Period, provided that such Period
together with all such further extensions thereof shall not exceed 60
consecutive months. At the termination of any such Extended Interest
Payment Period and upon the payment of all accrued and unpaid interest and
any additional amounts then due, the Company may select a new Extended
Interest Payment period.
As provided in the Indenture and subject to certain
limitations therein set forth, this Series D Subordinated Debt
Security is transferable by the registered holder hereof on the
Debenture Register of the Company, upon surrender of this Series
D Subordinated Debt Security for registration of transfer at the
office or agency of the Registrar accompanied by a written
instrument or instruments of transfer in form satisfactory to the
Company or the Trustee duly executed by the registered holder
hereof or its attorney duly authorized in writing, and thereupon
one or more new Series D Subordinated Debt Securities of
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authorized denominations and for the same aggregate principal
amount and series will be issued to the designated transferee or
transferees. No service charge will be made for any such
transfer, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in relation
thereto.
Prior to presentment for registration of transfer of
this Series D Subordinated Debt Security, the Company, the
Trustee, any paying agent and any Debenture Registrar may deem
and treat the registered holder hereof as the absolute owner
hereof (whether or not this Series D Subordinated Debt Security
shall be overdue and notwithstanding any notice of ownership or
writing hereon made by anyone other than the Debenture Registrar)
for the purpose of receiving payment of or on account of the
principal hereof and premium, if any, and interest due hereon and
for all other purposes, and neither the Company nor the Trustee
nor any payment agent nor any Debenture Registrar shall be
affected by any notice to the contrary.
No recourse shall be had for the payment of the
principal of or the interest on this Series D Subordinated Debt
Security, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or
future, as such, of the Company or of any predecessor or
successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the
issuance hereof, expressly waived and released. Series D
Subordinated Debt Securities issued are issuable only in
registered form without coupons in denominations of $1,000 and
any integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Series D
Subordinated Debt Securities are exchangeable for a like
aggregate principal amount of Series D Subordinated Debt
Securities of a different authorized denomination, as requested
by the Holder surrendering the same.
This Series D Subordinated Debt Security shall not be
valid until an authorized officer of the Trustee manually signs
the Trustee's Certificate of Authentication below.
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IN WITNESS WHEREOF, the Company has caused this Series
D Subordinated Debt Security to be signed manually or by
facsimile by its duly authorized officers and a facsimile of its
corporate seal to be affixed hereto or imprinted hereon.
PECO ENERGY COMPANY
(Seal)
By: __________________________
Name: ________________________
Title: _______________________
Attest:_______________________
Dated: _______________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE DEBENTURES REFERRED
TO IN THE WITHIN-MENTIONED INDENTURE.
FIRST UNION NATIONAL BANK, as Trustee
By: ___________________________________
Name:______________________________
Title:_____________________________
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