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AMENDED AND RESTATED
TRUST AGREEMENT
OF
PECO ENERGY CAPITAL TRUST III
PECO ENERGY CAPITAL, L.P.,
as Grantor
and
FIRST UNION TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
Dated as of _____________, 1998
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
ARTICLE II
CONTINUATION OF TRUST
SECTION 2.01. Continuation 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 Capital Securities. . . . . . . . 5
ARTICLE III
FORM OF CAPITAL SECURITIES, EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF CAPITAL SECURITIES
SECTION 3.01. Form and Transferability of Capital Securities . . . . . . 6
SECTION 3.02. Issuance of Capital Securities . . . . . . . . . . . . . . 7
SECTION 3.03. Registration, Transfer and Exchange of Capital
Securities . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 3.04. Lost or Stolen Capital Securities, Etc.. . . . . . . . . . 8
SECTION 3.05. Cancellation and Destruction of Surrendered
Capital Securities . . . . . . . . . . . . . . . . . . . . 8
SECTION 3.06. Surrender of Capital Securities and Withdrawal of
Preferred Securities . . . . . . . . . . . . . . . . . . . 9
SECTION 3.07. Redeposit of Preferred Securities. . . . . . . . . . . . . 10
SECTION 3.08. Filing Proofs, Certificates and Other Information. . . . . 10
ARTICLE IV
DISTRIBUTIONS AND OTHER RIGHTS OF HOLDERS OF CAPITAL SECURITIES
SECTION 4.01. Distributions of Semiannual Distributions on
Preferred Securities . . . . . . . . . . . . . . . . . . . 11
SECTION 4.02. Redemptions of Preferred Securities. . . . . . . . . . . . 11
SECTION 4.03. Distributions in Liquidation of Grantor. . . . . . . . . . 12
SECTION 4.04. Fixing of Record Date for Holders of Capital
Securities . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 4.05. Payment of Distributions . . . . . . . . . . . . . . . . . 13
SECTION 4.06. Special Representative and Voting Rights . . . . . . . . . 13
SECTION 4.07. Changes Affecting Preferred Securities and
Reclassifications, Recapitalizations, Etc. . . . . . . . . 14
ARTICLE V
THE GUARANTEE
SECTION 5.01. The Guarantee. . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE VI
THE TRUSTEE
SECTION 6.01. Eligibility. . . . . . . . . . . . . . . . . . . . . . . . 15
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SECTION 6.02. Obligations of the Trustee . . . . . . . . . . . . . . . . 15
SECTION 6.03. Resignation and Removal of the Trustee;
Appointment of Successor Trustee . . . . . . . . . . . . . 17
SECTION 6.04. Corporate Notices and Reports. . . . . . . . . . . . . . . 18
SECTION 6.05. Status of Trust. . . . . . . . . . . . . . . . . . . . . . 18
SECTION 6.06. Appointment of Grantor to File on Behalf of
Trust. . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 6.07. Indemnification by the General Partner . . . . . . . . . . 19
SECTION 6.08. Fees, Charges and Expenses . . . . . . . . . . . . . . . . 19
SECTION 6.09. Appointment of Co-Trustee or Separate Trustee. . . . . . . 20
ARTICLE VII
AMENDMENT AND TERMINATION
SECTION 7.01. Supplemental Trust Agreement . . . . . . . . . . . . . . . 21
SECTION 7.02. Termination. . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE VIII
MERGER, CONSOLIDATION, ETC. OF GRANTOR
SECTION 8.01. Limitation on Permitted Merger Consolidation, Etc.
of Grantor . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Counterparts . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 9.02. Exclusive Benefits of Parties. . . . . . . . . . . . . . . 23
SECTION 9.03. Invalidity of Provisions . . . . . . . . . . . . . . . . . 23
SECTION 9.04. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 9.05. Trustee's Agents . . . . . . . . . . . . . . . . . . . . . 24
SECTION 9.06. Holders of Capital Securities Are Parties. . . . . . . . . 24
SECTION 9.07. Governing Law. . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 9.08. Headings . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 9.09. Capital Securities Non-Assessable and
Fully Paid . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 9.10. No Preemptive Rights . . . . . . . . . . . . . . . . . . . 25
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AMENDED AND RESTATED
TRUST AGREEMENT
AMENDED AND RESTATED TRUST AGREEMENT, dated as of
_______________, 1998 (as amended from time to time, this "Trust
Agreement") is among PECO ENERGY CAPITAL, L.P., a Delaware
limited partnership, as grantor (the "Grantor"), FIRST UNION
TRUST COMPANY, NATIONAL ASSOCIATION, 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 (the "General Partner").
W I T N E S S E T H:
WHEREAS, the Trustee and the Grantor established the
Trust (as defined below) under the Delaware Business Trust Act
(12 Del. C. Section 3801, et seq.) (as amended from time to time, the
"Business Trust Act"), pursuant to a Trust Agreement, dated as of
______________, 1998 (the "Original Trust Agreement"), and a
Certificate of Trust filed with the Secretary of State of the
State of Delaware on _____________, 1998; and
WHEREAS, the Trustee and the Grantor hereby desire to
continue the Trust and to amend and restate in its entirety the
Original Trust Agreement; and
WHEREAS, the Trust proposes to issue Capital Securities
each representing a __% Cumulative Preferred Security, Series D,
representing a limited partner interest of the Grantor (the
"Preferred Securities"); and
WHEREAS, interests in the Trust are to be evidenced by
Capital Security certificates executed by the Trustee in
accordance with this Trust Agreement, which are to be delivered
to the Holders;
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 to amend and restate in
its entirety the Original Trust Agreement as follows:
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 Capital Securities:
"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 are closed for business.
"Business Trust Act" shall have the meaning set forth
in the recitals to this Trust Agreement.
"Capital Security" shall mean a Capital Trust Pass-
through Security issued hereunder representing an interest in the
Trust equal to and representing a Preferred Security and
evidenced by a certificate executed by the Trustee pursuant to
Article III.
"Commission" shall have the meaning set forth in
Section 6.05 of 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 1 Rodney Square,
920 King Street, First Floor, Wilmington, Delaware 19801.
"DTC" means the Depository Trust Company or any
successor thereto.
"Exchange" shall have the meaning set forth in Section
6.06 to this Trust Agreement.
"Exchange Act" shall have the meaning set forth in
Section 6.06 to this Trust Agreement.
"Exchange Act Reports" shall have the meaning set forth
in Section 6.06 to this Trust Agreement.
"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.
"Grantor" means PECO Energy Capital, L.P., a Delaware
limited partnership, and its successors.
"Guarantee" means the Payment and Guarantee Agreement
dated as of _____________, 1998, as amended from time to time
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with respect to the Preferred Securities delivered by PECO Energy
to the Grantor.
"Holder" means the Person in whose name a certificate
representing one or more Capital Securities 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 of this Trust
Agreement.
"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
Preferred Securities, Series D, representing limited partner
interests of the Grantor, or any Successor Securities issued to
the Trust and held by the Trustee (unless withdrawn under Section
3.06) from time to time under this Trust Agreement for the
benefit of the Holders.
"Redemption Date" shall have the meaning set forth in
Section 4.02 of this Trust Agreement.
"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 Capital Security certificates 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.
"Successor Securities" shall have the meaning set forth
in Section 13.02(e) of the Partnership Agreement.
"Trust" means the trust governed by this Trust
Agreement.
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"Trust Agreement" shall mean this Amended and Restated
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 (including any
Successor 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 First Union Trust Company, National
Association, a national association, in its capacity as Trustee
and not in its individual capacity and any successor as trustee
hereunder.
"1933 Act Registration Statement" shall have the
meaning set forth in Section 6.06 to this Trust Agreement.
"1934 Act Registration Statement" shall have the
meaning set forth in Section 6.06 to this Trust Agreement.
ARTICLE II
CONTINUATION OF TRUST
SECTION 2.01. Continuation of Trust.
(a) The Trust continued hereby shall be known as
"PECO Energy Capital Trust III." The Trust exists for the sole
purpose of issuing Capital Securities representing the Preferred
Securities held by the Trust and performing functions directly
related thereto. The Grantor hereby delivers to the Trustee for
deposit in the Trust a certificate representing 78,105 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 Capital Securities
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 the Capital
Securities held by such Holder and any recovery on such an
enforcement action shall belong solely to such Holder who brought
the action, not to the Trust, Trustee or any other Holder
individually or to Holders as a group. Subject to Section 7.02,
this Trust shall be irrevocable.
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(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 the Trust shall hold the Preferred
Securities (including any Successor Securities) for the benefit
of the Holders.
SECTION 2.02. Trust Account. The Trustee shall open
an account entitled "PECO Energy Capital Trust III - 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
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 6.09 or to such agents
as it may appoint in accordance with the Section 9.05 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. 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 Capital
Securities. With respect to the Trust, Holders of Capital
Securities shall be entitled to the same limitation of personal
liability to which stockholders of private corporations for
profit organized under the General Corporation Law of the State
of Delaware are extended.
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ARTICLE III
FORM OF CAPITAL SECURITIES, EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF CAPITAL SECURITIES
SECTION 3.01. Form and Transferability of Capital
Securities.
(a) Except as otherwise required by DTC, Capital
Securities shall be evidenced by certificates engraved or printed
or lithographed with steel-engraved borders and underlying tint
in substantially the form set forth in Exhibit A annexed to this
Trust Agreement, with the appropriate insertions, modifications
and omissions, as hereinafter provided.
(b) Certificates evidencing Capital Securities 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 Capital Security by manual
signature of a duly authorized signatory of the Registrar. No
certificate evidencing one or more Capital Securities 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 Capital Security certificate executed as
provided above and delivered as hereinafter provided.
(c) Certificates evidencing Capital Securities shall
be in denominations of any whole number of Preferred Securities.
All Capital Security certificates shall be dated the date of
their execution or countersignature.
(d) Certificates evidencing Capital Securities 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 Capital Securities may be listed or to
conform with any usage with respect thereto.
(e) Title to any Capital Security certificate 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 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
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any notice provided for in this Trust Agreement and for all other
purposes.
SECTION 3.02. Issuance of Capital Securities. 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 to DTC one or more
certificates evidencing the Capital Securities in the name of
DTC's nominee, who shall thereupon be the initial Holder of
Capital Securities.
SECTION 3.03. Registration, Transfer and Exchange of
Capital Securities. The Trustee shall cause a Register (the
"Register") to be kept at the office of the Registrar in which,
subject to such reasonable regulations as the Trustee and the
Registrar may prescribe, the Trustee shall provide for the
registration of Capital Security certificates and of transfers
and exchanges of Capital Security certificates as herein
provided. The Grantor hereby appoints First Union Trust Company,
National Association as the Registrar. The Registrar shall also
act as transfer agent. The Grantor 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 Capital Security certificates 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 Capital Security certificate 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, Capital Security
certificates may be exchanged for other Capital Security
certificates representing the same number of Preferred
Securities. Upon surrender of a Capital Security certificate at
the office of the Registrar or such other office as the Trustee
may designate for the purpose of effecting an exchange of Capital
Security certificates, subject to the terms and conditions of
this Trust Agreement, the Trustee shall execute and deliver a new
Capital Security certificate representing the same number of
Preferred Securities as the Capital Security certificate
surrendered.
As a condition precedent to the registration of the
transfer or exchange of any Capital Security certificate, the
Registrar may require (i) production of proof satisfactory to it
as to the identity and genuineness of any signature; and
(ii) compliance with such regulations, if any, as the Trustee or
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the Registrar may establish not inconsistent with the provisions
of this Trust Agreement.
No service charge shall be made to a Holder of Capital
Securities for any registration of transfer or exchange of
Capital Security certificates, but the Trustee or the Registrar
shall require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any
transfer or exchange of Capital Security certificates.
Neither the Trustee nor the Registrar shall be required
(a) to register the transfer of or exchange any Capital Security
certificate for a period beginning at the opening of business ten
days preceding any selection of Capital Securities to be redeemed
and ending at the close of business on the day of the mailing a
notice of redemption of Capital Securities or (b) to register the
transfer of or exchange of Capital Securities called or being
called for redemption in whole or in part, except as provided in
Section 4.02.
SECTION 3.04. Lost or Stolen Capital Securities, Etc.
In case any Capital Security certificate shall be mutilated or
destroyed or lost or stolen and in the absence of notice to the
Trustee that such Capital Security has been acquired by a
protected purchaser (as such term is used in Section 8-405(a)(1)
of the Delaware Uniform Commercial Code), the Trustee shall
execute and deliver a Capital Security certificate of like form
and tenor in exchange and substitution for such mutilated Capital
Security certificate or in lieu of and in substitution for such
destroyed, lost or stolen Capital Security certificate, provided,
however, that the Holder thereof provides the Trustee with
(i) evidence satisfactory to the Trustee of such destruction,
loss or theft of such Capital Security certificate, 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 Capital Security certificate issued
pursuant to this Section 3.04 shall constitute complete and
indefeasible evidence of beneficial ownership in the Trust, as if
originally issued, whether or not the lost, stolen or destroyed
Capital Security certificate shall be found at any time.
SECTION 3.05. Cancellation and Destruction of
Surrendered Capital Securities. All Capital Security
certificates 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 surrender of any
Capital Security certificate, the Trustee may destroy such
cancelled Capital Security certificates.
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SECTION 3.06. Surrender of Capital Securities and
Withdrawal of Preferred Securities. Any Person who is the
beneficial owner (an "Owner") of the Capital Securities
represented by the global certificate held by DTC as reflected in
the records of the Clearing Agency or successor clearing agency
(the "Clearing Agency") or, if a participant in the Clearing
Agency is not the Owner, then as reflected in the records of a
Person maintaining an account with such Clearing Agency (directly
or indirectly), in accordance with the rules of such Clearing
Agency, may withdraw all, but not less than all, of the Preferred
Securities represented by such Capital Securities by providing a
written notice and an agreement to be bound by the terms of the
Partnership Agreement to the Trustee at the Corporate Office or
at such other office as the Trustee may designate for such
withdrawals, all in form satisfactory to the Trustee, in its sole
discretion. Within a reasonable period after such request has
been properly made, (i) the Trustee shall instruct DTC to reduce the
number of Capital Securities represented by the global
certificate held by DTC by an amount equal to the number of
Capital Securities to be so withdrawn by the Owner, (ii) the Grantor
shall issue to the Owner a certificate, in form substantially
similar to that certificate attached hereto as Exhibit A to the
Partnership Agreement, representing the number of Preferred
Securities so withdrawn and (iii) the Trustee, on behalf of the Trust,
shall reduce the number of Preferred Securities represented by
the global certificate held by the Trustee by a like amount;
provided, that the Grantor shall not issue any fractional number
of Preferred Securities. If an Owner of Capital Securities
withdraws Preferred Securities in accordance with this Section
3.06, such Owner of Capital Securities shall cease to be an
Owner. The Preferred Securities will only be issued by the
Grantor in certificated form.
An Owner who wishes to withdraw Preferred Securities in
accordance with this Section 3.06 will be required to provide the
Grantor with a completed Form W-8 or such other documents or
information as are requested by the Grantor for tax reporting
purposes and thereafter shall be admitted to the Grantor as a
preferred partner of the Grantor upon such Owner's receipt of a
certificate evidencing such Preferred Securities registered in
such Owner's name.
The Trustee shall deliver the Preferred Securities
represented by the Capital Securities surrendered to the Owner in
accordance with this Section 3.06 at the Corporate Office, except
that, at the request, risk and expense of the Owner and for the
account of the Owner thereof, such delivery may be made at such
other place as may be designated by such Owner.
Notwithstanding anything in this Section 3.06 to the
contrary, if the Preferred Securities represented by Capital
Securities have been called for redemption in accordance with the
Partnership Agreement, no Owner of such Capital Securities may
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withdraw any or all of the Preferred Securities represented by
such Capital Securities.
SECTION 3.07. Redeposit of Preferred Securities.
Subject to the terms and conditions of this Trust Agreement, any
holder of Preferred Securities may redeposit withdrawn Preferred
Securities under this Trust Agreement by delivery to the Trustee
of a certificate or certificates for the Preferred Securities to
be deposited, properly endorsed or accompanied, if required by
the Trustee, by a properly executed instrument of transfer or
endorsement in form satisfactory to the Trustee and in compliance
with the terms of the Partnership Agreement, together with all
such certifications as may be required by the Trustee in its sole
discretion and in accordance with the provisions of this Trust
Agreement. Within a reasonable period after such deposit is
properly made, the Trustee shall instruct DTC to increase the
number of Capital Securities represented by the global
certificate held by DTC by an amount equal to the Preferred
Securities to be deposited. The Capital Securities will not be
issued in certificated form. The Trustee will only accept the
deposit of such Preferred Securities upon payment by such holder
of Preferred Securities to the Trustee of all taxes and other
governmental charges and any fees payable in connection with such
deposit and the transfer of the deposited Preferred Securities.
If required by the Trustee, Preferred Securities
presented for deposit at any time shall also be accompanied by an
agreement or assignment, or other instrument satisfactory to the
Trustee, that will provide for the prompt transfer to the Trustee
or its nominee of any distribution or other right that any Person
in whose name the Preferred Securities are registered may
thereafter receive upon or in respect of such deposited Preferred
Securities, or in lieu thereof such agreement of indemnity or
other agreement as shall be satisfactory to the Trustee.
SECTION 3.08. Filing Proofs, Certificates and Other
Information. Any Person presenting Preferred Securities for
redeposit in accordance with Section 3.07 may be required from
time to time to file such proof of residence or other
information, to execute such Preferred Security certificates and
to make such representations and warranties as the Trustee may
reasonably deem necessary or proper. The Trustee may withhold or
delay the delivery of any Capital Security or Capital Securities,
the transfer, redemption or exchange of any Capital Security or
Capital Securities or the making of any distribution until such
proof or other information is filed, such certificates are
executed or such representations and warranties are made.
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ARTICLE IV
DISTRIBUTIONS AND OTHER RIGHTS OF HOLDERS OF CAPITAL SECURITIES
SECTION 4.01. Distributions of Semiannual
Distributions on Preferred Securities. Whenever the Trustee
shall receive any cash distribution representing a semiannual
distribution on the Preferred Securities (whether or not
distributed by the Grantor on the regular semiannual distribution
date therefor) or payment under the Guarantee in respect thereof
pursuant to Article V of this Agreement, the Trustee acting
directly or through any Paying Agent shall distribute to Holders
of Capital Securities on the record date fixed pursuant to
Section 4.04, such amounts in proportion to the respective
numbers of Preferred Securities represented by the Capital
Securities 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 40 days' prior notice
thereof. The Trustee shall, as directed by the Grantor, mail, or
cause to be mailed, first-class postage prepaid, notice of the
redemption of Preferred Securities and the proposed simultaneous
redemption of the Capital Securities 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 Capital
Securities. Such notice shall be mailed to the Holders of the
Capital Securities to be redeemed, at the addresses of such
Holders as the same appear on the records of the Registrar. 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 Capital
Securities and the Preferred Securities are to be redeemed; that
all outstanding Capital Securities are to be redeemed or, in the
case of a redemption of fewer than all outstanding Capital
Securities in connection with a partial redemption of Preferred
Securities, the number of such Capital Securities to be so
redeemed; the place or places where Capital Securities to be
redeemed are to be surrendered for redemption; and specifying the
CUSIP number assigned to the Capital Securities. In case fewer
than all the outstanding Capital Securities are to be redeemed,
the Capital Securities 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 Capital
Securities from any national exchange on which the Capital
11
Securities 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 Trust the
aggregate amount payable upon redemption of the Preferred
Securities to be redeemed, the Trustee, on behalf of the Trust,
shall redeem (using the funds so deposited with it) Capital
Securities 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
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 Capital Securities called for redemption shall be
deemed no longer to be outstanding and all rights of the Holders
of Capital Securities (except the right to receive the redemption
price in cash upon surrender of Capital Securities) shall cease
and terminate. Upon surrender in accordance with said notice of
the Capital Securities endorsed or assigned for transfer, if the
Trustee shall so require, the Holders of such Capital Securities
shall receive for each such Capital Security 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 Capital Securities of any
Holder are called for redemption, the Registrar will deliver to
the Holder of such Capital Securities upon surrender of the
certificate evidencing such Capital Securities a new certificate
evidencing the number of Capital Securities not called for
redemption.
SECTION 4.03. Distributions in Liquidation of Grantor.
Upon and to the extent of 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 Capital Securities 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 Capital Securities held by such Holders.
SECTION 4.04. Fixing of Record Date for Holders of
Capital Securities. 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
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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, of which the General Partner shall promptly
inform the Trustee) for the determination of the Holders of
Capital Securities 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 Grantor
shall appoint one or more Paying Agents for the purpose of paying
semiannual distributions on, the redemption price of, and
distributions in liquidation on, the Capital Securities. The
Grantor hereby appoints First Union Trust Company, National
Association to act as Paying Agent and designates the Wilmington
office of the Paying Agent as the place of payment of the
redemption price of and of distributions in liquidation on the
Capital Securities. The aforesaid appointment and designation
shall remain in effect until changed by the Grantor. Payments of
semiannual distributions on the Capital Securities shall be
payable by wire transfer into the accounts of or check mailed to
the addresses of the Holders thereof on the record date therefor.
Payments of the redemption price of Capital Securities and
distributions in liquidation shall be made upon surrender of such
Capital Securities at the office of the Paying Agent. The
Grantor shall pay semiannual distributions on, the redemption
price of, and distributions in liquidation on, the Preferred
Securities directly to the Paying Agent for distribution to the
Holders in accordance with the terms of this Trust Agreement.
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 Capital
Securities of such right, request direction of each Holder of a
Capital Security as to the appointment of a Special
Representative and vote the Preferred Securities represented by
such Capital Security 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 Capital
Securities and, if so directed by the Holders of Capital
Securities representing Preferred Securities constituting at
least 10% of the aggregate stated liquidation preference of the
outstanding Preferred Partner Interests (as defined in the
Partnership Agreement) shall convene such meeting.
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(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
Capital Securities 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 Capital Securities 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 or of 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 Capital Securities,
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 Capital Security on such record date, the Trustee shall vote
or cause to be voted the number of Preferred Securities
represented by the Capital Securities evidenced by such Capital
Security 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 Capital Security, the Trustee
will abstain from voting to the extent of the Preferred
Securities represented by such Capital Security.
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 part of the Trust Estate, and Capital Securities
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
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Guarantee shall remain in the General Partner, except to the
extent set forth in Section 2.04 of the Guarantee.
ARTICLE VI
THE TRUSTEE
SECTION 6.01. Eligibility. This Trust Agreement shall
at all times have a Trustee which is a bank that has its
principal place of business in the State of Delaware 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.
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 Capital Securities 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 cause the Registrar to 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
Capital Securities are registered on the Register.
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 Capital Security to
Holders of Capital Securities other than that it agrees to use
good faith in the performance of such duties as are specifically
assigned to the Trustee 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 Capital Securities 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.
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The Grantor may instruct the Trustee to dissolve the
Trust and distribute the Trust Estate on a pro rata basis to the
Holders if the Trust, at any time, is subject to federal income
tax with respect to interest received on its allocable share of
interest on the Deferrable Interest Subordinated Debentures,
Series D issued by PECO Energy Company received by the Grantor,
or the Trust is subject to more than a de minimis amount of other
taxes, duties or other governmental charges or if an Investment Company
Act Event shall occur and be continuing. "Investment Company Event" means
the occurrence of a change in law or regulation or a change in official
interpretation of law or regulation by any legislative body, court,
governmental agency or regulatory authority (a "Change in 1940 Act Law")
to the effect that the Trust is or will be considered an "Investment
Company" which is required to be registered under the Investment Company
Act of 1940, as amended, which Change in 1940 Act Law becomes effective
on or after the date of the issuance of the Capital Securities.
In the event that the Trustee is uncertain as to
application or interpretation of any provision of this Trust
Agreement or must choose between alternative courses of action,
the Trustee may seek the instructions of the Grantor (or the
Special Representative if one has been appointed) by written
notice requesting instructions. The Trustee shall take and be
protected in taking such action as has been directed by the
Grantor (or the Special Representative if one has been approved);
provided that, if the Trustee does not receive instructions
within ten days or such shorter time as is set forth in the
Trustee notice, the Trustee shall be under no duty to take or
refrain from taking such action not inconsistent with this Trust
Agreement as it shall deem advisable and in the interest of the
Holders.
The Trustee shall not be liable to any Holder or any
other party having an interest hereunder 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
Capital Security 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 from any and all liability in
acting upon any written notice, 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
Capital Securities 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 (and its officers, directors, employees and
agents) makes no representation nor shall it have any liability
for or responsibility with respect to the issuance of Capital
Securities or as to the validity of the registration statement
pursuant to which the Capital Securities are registered under the
Securities Act, the Preferred Securities, the Guarantee or the
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Capital Securities (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 Capital
Securities, 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 Capital
Securities, the Trustee makes no warranties or representations as
to the validity, genuineness or sufficiency of any Preferred
Securities or the Guarantee or of the Capital Securities, as to
the validity or sufficiency of this Trust Agreement, as to the
value of the Capital Securities or as to any right, title or
interest of the Holders of Capital Securities, 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 federal law, 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 Section 6.02 of the Trust Agreement constitutes a valid and
binding obligation of the Trustee enforceable against the Trustee
in accordance with its terms subject to equitable principles and
laws affecting the enforcement of creditors' rights generally.
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
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,
provided that an Event of Default has not occurred and is then
continuing under the Indenture dated as of July 1, 1994 between
PECO Energy and First Union National Bank, as successor trustee,
as supplemented from time to time, or the Guarantee, 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 State of Delaware 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
17
Trustee may petition a court of competent jurisdiction to appoint
a successor trustee, and the expenses of such proceeding shall be
borne by the General Partner. 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 Capital Securities. Any
successor Trustee shall promptly mail notice of its appointment
to the Holders of Capital Securities.
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 give timely notice to the
Trustee and any Paying Agent of any record date, which record
date shall become the record date with respect to the Capital
Securities pursuant to Section 4.04 hereof, for the Preferred
Securities and that it will deliver to the Trustee, and the
Trustee will, promptly after receipt thereof, transmit to the
Holders of Capital Securities, in each case at the address
recorded on the Register, copies of all notices and reports
(including financial statements) required by law, by the rules of
any national securities exchange upon which the Capital
Securities are listed 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 Capital
Securities 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. While it is
expressly understood and agreed that the Trustee is acting only
in a ministerial capacity hereunder, the Securities and Exchange
18
Commission (the "Commission") has determined that as of the date
hereof, the Trust is an issuer under the Federal securities laws
and is thus required to sign any registration statement filed or
to be filed in connection with the Capital Securities.
SECTION 6.06. Appointment of Grantor to File on Behalf
of Trust. The Grantor and the Trustee hereby authorize and
direct the Grantor, if the Grantor deems it necessary,
appropriate or convenient to do, as the sponsor of the Trust (and
any of the following are hereby confirmed if such action has been
taken) (i) to file with the Commission and execute, in each case
on behalf of the Trust, (a) the Registration Statement on Form
S-3 (the "1933 Act Registration Statement"), including any
pre-effective or post-effective amendments to such 1933 Act
Registration Statement (including the prospectus and the exhibits
contained therein), relating to the registration under the
Securities Act of 1933, as amended, of the Capital Securities of
the Trust and certain other securities; (b) a Registration
Statement on Form 8- A (the "1934 Act Registration Statement"),
including all pre- effective and post-effective amendments
thereto relating to the registration of the Capital Securities
under Section 12(b) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"); and (c) any reports or other papers
or documents required to be filed by, or desirable to be filed
with, the Commission, under the Exchange Act ("Exchange Act
Reports"); (ii) to file with the New York Stock Exchange or
Philadelphia Stock Exchange (each, an "Exchange") and execute on
behalf of the Trust one or more listing applications and all
other applications, statements, certificates, agreements and
other instruments as shall be necessary or desirable to cause the
Capital Securities to be listed on any of the Exchanges; and
(iii) to file and execute on behalf of the Trust such
applications, reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and other papers
and documents as shall be necessary or desirable to register the
Capital Securities under the securities or "Blue Sky" laws of
such jurisdictions as the Grantor, on behalf of the Trust, may
deem necessary or desirable.
SECTION 6.07. Indemnification by the General Partner.
To the fullest extent permitted by law, the General Partner
agrees to indemnify and defend the Trustee, the Registrar and any
Paying Agent and their directors, officers, employees and agents
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 the Trustee
or the Registrar or Paying Agent, respectively, under this Trust
Agreement and the Capital Securities, except for any liability
arising out of gross negligence, bad faith or willful misconduct
on the part of any such Person or Persons.
SECTION 6.08. Fees, Charges and Expenses. No fees,
charges or 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; provided that, if the Trustee
19
incurs fees, charges or expenses for which it is not otherwise
liable under this Trust Agreement due to any action taken at the
election of a Holder of Capital Securities or other Person, such
Holder or other Person will be liable for such fees, charges and
expenses.
SECTION 6.09. 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 property 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 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
6.09, 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 the 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.
20
(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
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, and the Trustee may, 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) (i) to correct or supplement any provision
herein which may be defective or inconsistent with any other
provision herein or (ii) to make any other provisions with
respect to matters or questions arising under this Trust
Agreement, provided that any such action taken under subsection
21
(c)(ii) hereof shall not materially adversely affect the
interests of the Holders; or
(d) to cure any ambiguity or correct any mistake.
Any other amendment or agreement supplemental hereto
must be in writing and approved by Holders of 66-2/3% of the then
outstanding Capital Securities.
SECTION 7.02. Termination. The Trust Agreement shall
terminate on the date that all outstanding Capital Securities
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 made to the Holders of the Capital
Securities. Except as provided in Section 6.07 and Section 6.08,
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 in their entirety to any corporation or other
entity without the consent of the Holders of 66-2/3% of the
Capital Securities unless permitted by Section 13.02(e) of the
Partnership Agreement and (i) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not
cause the Capital Securities to be delisted by any national
securities exchange or other organization on which the Capital
Securities are then listed, (ii) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not
cause the Capital Securities to be downgraded by any "nationally
recognized statistical rating organization," as that term is
defined by the Commission for purposes of Rule 436(g)(2) under
the Securities Act of 1933, as amended, and (iii) prior to such
merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease, PECO Energy has received an opinion of counsel
(which may be regular counsel to PECO Energy or an Affiliate, but
not an employee thereof) experienced in such matters to the
effect that Holders of outstanding Capital Securities will not
recognize any gain or loss for Federal income tax purposes as a
result of the merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease.
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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 any Trustee's agents appointed pursuant to
Section 9.05 and shall be open to inspection during business
hours at the Corporate Office and the respective offices of such
Trustee's agents, if any, by any Holder of a Capital Security.
SECTION 9.02. Exclusive Benefits of Parties. This
Trust Agreement is for the exclusive benefit of the parties
hereto and the Holders of the Capital Securities and the
Preferred Securities, and their respective successors hereunder,
and shall not be deemed to give any legal 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 Capital Securities 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 1013 Centre Road,
Suite 350F, Wilmington, Delaware 19805, Attention: President, 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 Capital Securities 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 Capital Security
hereunder or under the Capital Securities 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 Holder
23
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 or on behalf of the other parties hereof or from any
Holder of a Capital Security, 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 shall have
no liability for the acts or omissions of agents selected by it
with due care. The Trustee will notify the General Partner prior
to any such action.
SECTION 9.06. Holders of Capital Securities Are
Parties. Notwithstanding that Holders of Capital Securities have
not executed and delivered this Trust Agreement or any
counterpart thereof, the Holders of Capital Securities from time
to time shall be bound by all of the terms and conditions hereof
and of the Capital Securities by acceptance of delivery of
Capital Securities.
SECTION 9.07. Governing Law. This Trust Agreement and
the Capital Securities 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 Capital
Security 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
Capital Securities.
SECTION 9.09. Capital Securities Non-Assessable and
Fully Paid. The Holders of the Capital Securities shall not be
personally liable for obligations of the Trust, the interests in
the Trust represented by the Capital Securities shall be
non-assessable for any losses or expenses of the Trust or for any
reason whatsoever, and the Capital Securities upon delivery
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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 Trust 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: ______________________________
Name: J. Barry Mitchell
Title: President
FIRST UNION TRUST COMPANY,
NATIONAL ASSOCIATION, as
trustee
By: ______________________________
Name:
Title:
The General Partner joins in this Trust Agreement solely for
the purposes of obligating itself under Sections 4.04, 4.06,
6.01, 6.04, 6.07 and 6.08 of this Trust Agreement and not as
grantor, trustee or beneficiary.
PECO ENERGY CAPITAL CORP.
By: ______________________________
Name: J. Barry Mitchell
Title: President
26
EXHIBIT A
CAPITAL TRUST PASS-THROUGH SECURITIES
OF PECO ENERGY CAPITAL TRUST III,
a Delaware Business Trust,
each Representing a ____% Cumulative
Preferred Security, Series D of
PECO Energy Capital, L.P. (a Delaware limited partnership)
No. _________ ___________ Capital Securities
First Union Trust Company, National Association, not in
its individual capacity, but solely as Trustee (the "Trustee") on
behalf of the above-named Trust, hereby certifies that
______________ is the registered owner of ____________ Capital
Trust Pass-through Securities ("Capital Securities"), each
representing a ____% Cumulative Preferred Security, Series D (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 an Amended and Restated
Trust Agreement of PECO Energy Capital Trust III dated as of
________________, 1998 (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 registered Holder hereof is entitled to a full
interest in the same number of Preferred Securities held by the
Trustee under the Trust Agreement, as are represented by the
Capital Securities, 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.
1. The Trust Agreement. The Capital Securities 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 Capital Securities and the rights and duties of the
Trustee, the Grantor and the General Partner. The statements
made herein 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 hereof 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.
2. Enforcement of Rights; Withdrawal of Preferred
Securities. To the fullest extent permitted by law, without the
need for any other action of any Person, including the Trustee
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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 the Capital Securities held by such
Holder and any recovery on such enforcement action shall belong
solely to such Holder who brought the action, not to the Trust,
Trustee or any other Holder individually or to Holders as a
group. Any beneficial owner of Capital Securities may withdraw
all, but not less than all, of the Preferred Securities
represented by such Capital Securities by providing a written
notice and an agreement to be bound by the terms of the
Partnership Agreement to the Trustee at the Corporate Office,
with evidence of beneficial ownership in form satisfactory to the
Trustee; provided, however, that the Grantor shall not issue any
fractional number of Preferred Securities.
3. Distributions of Semiannual Distributions on
Preferred Securities. Whenever and to the extent the Trustee
shall receive any cash distribution representing a semiannual
distribution on the Preferred Securities (whether or not
distributed by the Grantor on the regular semiannual distribution
date therefor) or payment by PECO Energy Company ("PECO Energy")
under the Payment and Guarantee Agreement dated as of
_____________, 1998 (the "Guarantee") in respect thereof, the
Trustee acting directly or through any Paying Agent shall
distribute to Holders of Capital Securities on the record date
therefor, such amounts in proportion to the respective numbers of
Preferred Securities represented by the Capital Securities 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 40 days' prior notice thereof. The Trustee shall,
as directed by the Grantor, mail, with first-class postage
prepaid, notice of the redemption of Preferred Securities and the
proposed simultaneous redemption of the Capital Securities to be
redeemed, not less than 30 and not more than 60 days prior to the
date fixed for redemption of such Preferred Securities and
Capital Securities. Such notice shall be mailed to the Holders
of the Capital Securities, 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
Capital Securities are to be redeemed, the Capital Securities 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 Trust the aggregate amount payable upon
redemption of the Preferred Securities to be redeemed, the
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Trustee, on behalf of the Trust, shall redeem (using the funds so
deposited with it) Capital Securities 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 Holders of
Capital Securities on the record date therefor, such amounts in
proportion to the respective number of Preferred Securities which
were represented by the Capital Securities held by such Holders.
6. Fixing of Record Date for Holders of Capital
Securities. 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
Capital Securities 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 semiannual
distributions on the Capital Securities shall be payable by wire
transfer into the accounts of or check mailed to the addresses of
the Holders thereof on the record date therefor. Payments of the
redemption price of Capital Securities and distributions in
liquidation shall be made against surrender of such Capital
Securities at the office of First Union Trust Company, National
Association, 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 Capital Securities of such right,
request direction of each Holder of a Capital Security and vote
the Preferred Securities represented by such Capital Security 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 Capital Securities and, if so directed
by the Holders of Capital Securities representing Preferred
Securities constituting at least 10% of the aggregate stated
liquidation preference of the outstanding Preferred Partner
Interests (as defined in the Partnership Agreement), shall
convene such meeting.
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(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 Capital Securities 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 Capital Securities at the close of business on a
specified record date therefor will be entitled, subject to any
applicable provision of law or of 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 Capital Securities, 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 Capital Security on such
record date, the Trustee shall vote or cause to be voted the
number of Preferred Securities represented by the Capital
Securities in accordance with the instructions set forth in such
request. In the absence of specific instructions from the Holder
of a Capital Security, the Trustee will abstain from voting to
the extent of the Preferred Securities represented by such
Capital Security.
9. Changes Affecting Preferred Securities and
Reclassifications, Recapitalizations, Etc. Upon any
consolidation, amalgamation, merger, replacement or conveyance,
transfer or lease by the Grantor of its properties and assets
substantially in their 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 part of the Trust Estate, and Capital Securities
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 Capital Securities.
Subject to the terms and conditions of the Trust Agreement, the
Trustee shall register the transfer on its books from time to
time of Capital Security certificates 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 Capital
Security representing the same aggregate number of the Capital
Securities surrendered in accordance with the Trust Agreement and
deliver the same to or upon the order of the Person entitled
thereto.
Upon surrender of a Capital Security at the Corporate
Office or such other office as the Trustee may designate for the
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purpose of effecting an exchange of Capital Security
certificates, subject to the terms and conditions of the Trust
Agreement, the Trustee shall execute and deliver a new Capital
Security certificate representing the same number of Preferred
Securities as the Capital Security certificate surrendered.
As a condition precedent to the registration of a
transfer or exchange of any Capital Security certificate, the
Registrar, may require (i) the production of proof satisfactory
to it as to the identity and genuineness of any signature; and
(ii) compliance with such regulations, if any, as the Trustee or
the Registrar may establish not inconsistent with the provisions
of the Trust Agreement.
Neither the Trustee nor the Registrar shall be required
(a) to register the transfer or exchange of any Capital Security
certificate for a period beginning at the opening of business ten
days next preceding any selection of Capital Securities to be
redeemed and ending at the close of business on the day of the
mailing of a notice of redemption of Capital Securities or (b) to
transfer or exchange Capital Securities called or being called
for redemption in whole or in part.
11. Title to Capital Securities. It is a condition of
the Capital Securities, and every successive Holder hereof by
accepting or holding the same consents and agrees, that title to
this Capital Security certificate, 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 Capital Security certificate 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 Capital
Securities 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 Registrar shall keep
books at the Corporate Office for the registration of transfer of
Capital Securities, which books at all reasonable times will be
open for inspection by the Holders of Capital Securities as and
to the extent provided by applicable law.
13. 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
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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; (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; (c)(i) to correct or
supplement any provision herein which may be defective or
inconsistent with any other provision herein or (ii) to make any
other provisions with respect to matters or questions arising
under this Trust Agreement, provided that any such action taken
under subsection (ii) hereof shall not materially adversely
affect the interests of the Holders; or (d) to cure any ambiguity
or correct any mistake. Any other amendment or agreement
supplemental hereto must be in writing and approved by Holders of
66-2/3% of the then outstanding Capital Securities.
14. Governing Law. The Trust Agreement and this
Capital Security and all rights thereunder and hereunder and
provisions thereof and hereof 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.
15. Capital Security Non-Assessable and Fully Paid.
Holders of Capital Securities shall not be personally liable for
obligations of the Trust, the interest in the Trust represented
by the Capital Securities shall be non-assessable for any losses
or expenses of the Trust or for any reason whatsoever and the
Capital Securities upon delivery thereof by the Trustee pursuant
to the Trust Agreement are and shall be deemed fully paid.
16. Liability of Holders of Capital Securities.
Holders of Capital Securities 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.
17. 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.
This Capital Security certificate shall not be entitled
to any benefits under the Trust Agreement or be valid or
obligatory for any purpose unless this Capital Security
certificate shall have been executed manually or, if a Registrar
for the Capital Securities (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
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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. THE TRUSTEE MAKES NO WARRANTIES OR
REPRESENTATIONS AS TO THE VALIDITY, GENUINENESS OR SUFFICIENCY OF
PREFERRED SECURITIES OR OF CAPITAL SECURITIES; AS TO THE VALIDITY
OR SUFFICIENCY OF THE TRUST AGREEMENT; AS TO THE VALUE OF CAPITAL
SECURITIES OR AS TO ANY RIGHT, TITLE OR INTEREST OF THE HOLDERS
OF CAPITAL SECURITIES IN AND TO CAPITAL SECURITIES.
Dated: _____________, 1998
First Union Trust Company, National
Association, not in its individual
capacity, but solely as Trustee on
behalf of the Trust,
By: ______________________________
Name:
Title:
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[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned hereby sells,
assigns, and transfers unto ____________________ the within
Capital Security Certificate and all rights and interests
represented by the Capital Securities 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 Capital
Security in every particular,
without alteration or
enlargement or any change
whatever.
Signature Guarantee:
_______________________