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EXHIBIT 4-9
TRUST AGREEMENT
This TRUST AGREEMENT of PECO Energy Capital Trust I (the "Trust"),
dated as of October 20, 1995, between PECO Energy Capital, L.P., a Delaware
limited partnership (the "Depositor"), PNC Bank, Delaware, a Delaware bank, not
in its individual capacity but solely in its capacity as trustee of the Trust
(the "Trustee"). The Depositor and the Trustee hereby agree as follows:
1. The trust created hereby shall be known as "PECO
Energy Capital Trust I," for which the Trustee, or the Depositor to
the extent provided herein, may conduct the business of the Trust,
make and execute contracts, and xxx and be sued.
2. The Depositor hereby assigns, transfers, conveys and
sets over to the Trustee the sum of $10. The Trustee hereby
acknowledges receipt of such amount in trust from the Depositor, which
amount shall constitute the initial trust estate. The Trustee hereby
declares that it will hold the trust estate in trust for the
Depositor. It is the intention of the parties hereto that the Trust
created hereby constitutes a business trust under Chapter 38 of Title
12 of the Delaware Code, 12 Del. C. Section 3801 et seq. (the
"Business Trust Act"), and that this document constitutes the
governing instrument of the Trust. The Trustee is hereby authorized
and directed to execute and file a certificate of trust with the
Delaware Secretary of State in accordance with the provisions of the
Business Trust Act.
3. The Depositor and the Trustee will enter into an
amended and restated Trust Agreement, in form and substance
satisfactory to each such party and substantially in the form included
as Exhibit 4.9 to the 1933 Act Registration Statement referred to
below, to provide for, among other things, the issuance of the Trust
Receipts of the Trust referred to therein. Prior to the execution and
delivery of such amended and restated Trust Agreement, the Trustee
shall not have duty or obligation hereunder or with respect to the
trust estate, except as otherwise required by applicable law or as may
be necessary to obtain prior to such execution and delivery of any
licenses, consents or approval as required by applicable law or
otherwise.
4. The Depositor is hereby authorized and directed, as
the sponsor of the Trust, (i) to file with the Securities and Exchange
Commission (the "Commission") and execute, in
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each case on behalf of the Trust, (a) the Registration Statement on
Form S-4 (the "1933 Act Registration Statement"), including any
pre-effective or post-effective amendments to such 1933 Act
Registration Statement (including the offering circular/prospectus and
the exhibits contained therein), relating to the registration under
the Securities Act of 1933, as amended, or the Trust Receipts of the
Trust and certain other securities and (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 Trust Receipts of the Trust under Section 12(b) of
the Securities Exchange Act of 1934, as amended; (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 Trust Receipts of the Trust to be listed on any of the
Exchanges; (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 Trust
Receipts under the securities or "Blue Sky" laws of such jurisdictions
as the Depositor, on behalf of the Trust, may deem necessary or
desirable and (iv) to execute on behalf of the Trust that certain
Dealer Manager Agreement relating to the Trust Receipts, among the
Trust, the Depositor and the several Dealer Managers named therein,
substantially in the form included as Exhibit 1 to the 1933 Act
Registration Statement. In the event that any filing referred to in
clauses (i), (ii) and (iii) above is required by the rules and
regulations of the Commission, the Exchange or state securities or
"Blue Sky" laws, to be executed on behalf of the Trust by the Trustee,
then the Trustee, not in its individual capacity, but solely in its
capacity as trustee of the Trust, is hereby authorized and directed to
join in any such filing and to execute on behalf of the Trust any and
all of the foregoing. In connection with all of the foregoing, the
Depositor hereby constitutes and appoints J. Xxxxx Xxxxxxxx as its
true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the Depositor or in the
Depositor's name, place and stead, in any and all capacities, to sign
any and all amendments (including post-effective amendments) to the
1933 Act Registration Statement and the 1934 Act Registration
Statement and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Commission, granting unto
said attorney-in-fact and agent full power and authority to do and
perform each and every
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act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as the Depositor might
or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his respective substitute or
substitutes, shall do or cause to be done by virtue hereof.
5. This Trust Agreement may be executed in one or more
counterparts.
6. The number of trustees of the Trust initially shall
be one (1) and thereafter the number of trustees of the Trust shall be
such number as shall be fixed from time to time by a written
instrument signed by the Depositor which may increase or decrease the
number of trustees; provided, however, that to the extent required by
the Business Trust Act, one trustee shall either be a natural person
who is a resident of the State of Delaware or, if not a natural
person, an entity which has its principal place of business in the
State of Delaware and otherwise meets the requirements of applicable
Delaware law; and provided, further, that the addition of any
co-trustee shall be approved by the Trustee, which approval shall not
be unreasonably withheld. Subject to the foregoing, the Depositor is
entitled to appoint or remove without cause the Trustee or any
co-trustee at any time. The Trustee may resign upon thirty days prior
notice to the Depositor.
7. This Trust Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware
(without regard to conflict of laws of principles).
8. To the fullest extent permitted by law, PECO Energy
Capital Corp., the general partner of the Depositor (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 the Trustee acting as Trustee or
the registrar or paying agent, respectively, under this Trust
Agreement and the Receipts, except for any liability arising out of
negligence, bad faith or willful misconduct on the part of any such
Person or Persons.
9. 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 Depositor by written notice requesting
instructions. The Trustee shall take and be protected in taking such
action as
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has been directed by the Depositor provided that if the Trustee does
not receive instructions within 10 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.
The Trustee shall not be liable for any action or
any failure to act by it in reliance upon the advice of or information
from legal counsel, accountants 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 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above written.
PECO ENERGY CAPITAL, L.P.
By: PECO Energy Capital Corp.,
its general partner
By: /s/ X. X. XXXXXXXX
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Name: X. X. Xxxxxxxx
Title: President
PNC BANK, Delaware, not in its
individual capacity, but solely
in its capacity as Trustee
By: /s/ XXXXXXX X. XXXXXXXX
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Name: Xxxxxxx X. XxXxxxxx
Title: Vice President
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The General Partner joins in this Trust Agreement solely for
the purposes of obligating itself under Section 8 of this Trust Agreement and
not as grantor, trustee or beneficiary.
PECO ENERGY CAPITAL CORP.
By: /s/ X.X. XXXXXXXX
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Authorized Officer
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