Exhibit 10-10
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AMENDED AND RESTATED
TRUST AGREEMENT
OF
PECO ENERGY CAPITAL TRUST I
PECO ENERGY CAPITAL, L.P.,
as Grantor
and
PNC BANK, DELAWARE
as Trustee
Dated as of December 19, 1995
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TABLE OF CONTENTS
Page
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 Receipts .............................6
ARTICLE III
FORM OF RECEIPTS, EXECUTION AND
DELIVERY, TRANSFER, AND SURRENDER OF RECEIPTS
SECTION 3.01. Form and Transferability of Receipts .........................6
SECTION 3.02. Issuance of Receipts .........................................7
SECTION 3.03. Registration, Transfer and Exchange of
Receipts .....................................................7
SECTION 3.04. Lost or Stolen Receipts, Etc .................................8
SECTION 3.05. Cancellation and Destruction of
Surrendered Receipts .........................................9
ARTICLE IV
DISTRIBUTIONS AND OTHER RIGHTS OF HOLDERS OF RECEIPTS
SECTION 4.01. Distributions of Monthly Distributions
on Preferred Securities .....................................12
SECTION 4.02. Redemptions of Preferred Securities .........................12
SECTION 4.03. Distributions in Liquidation of Grantor .....................13
SECTION 4.04. Fixing of Record Date for Holders of
Receipts ....................................................13
SECTION 4.05. Payment of Distributions ....................................14
SECTION 4.06. Special Representative and Voting
Rights ......................................................14
SECTION 4.07. Changes Affecting Preferred Securities
and Reclassifications, Recapitalizations, Etc ...............15
ARTICLE V
THE GUARANTEE
SECTION 5.01. The Guarantee................................................15
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Page
ARTICLE VI
THE TRUSTEE
SECTION 6.01. Eligibility .................................................16
SECTION 6.02. Obligations of the Trustee ..................................16
SECTION 6.03. Resignation and Removal of the Trustee,
Appointment of Successor Trustee ............................18
SECTION 6.04. Corporate Notices and Reports ...............................19
SECTION 6.05. Status of Trust .............................................19
SECTION 6.07. Indemnification by the General Partner ......................20
SECTION 6.08. Fees, Charges and Expenses ..................................20
SECTION 6.09. Appointment of Co-Trustee or Separate
Trustee .....................................................21
ARTICLE VII
AMENDMENT AND TERMINATION
SECTION 7.01. Supplemental Trust Agreement ................................22
SECTION 7.02. Termination .................................................23
ARTICLE VIII
MERGER, CONSOLIDATION, ETC. OF GRANTOR
SECTION 8.01. Limitation on Permitted Merger
Consolidation, Etc. of Grantor...............................23
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Counterparts ................................................24
SECTION 9.02. Exclusive Benefits of Parties ...............................24
SECTION 9.03. Invalidity of Provisions ....................................24
SECTION 9.04. Notices .....................................................24
SECTION 9.05. Trustee's Agents ............................................25
SECTION 9.06. Holders of Receipts Are Parties .............................25
SECTION 9.07. Governing Law ...............................................25
SECTION 9.08. Headings ....................................................25
SECTION 9.09. Receipts Non-Assessable and Fully Paid ......................25
SECTION 9.10. No Preemptive Rights ........................................26
TESTIMONIUM..................................................................27
SIGNATURES...................................................................27
EXHIBIT A.................................................................. A-1
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AMENDED AND RESTATED
TRUST AGREEMENT
AMENDED AND RESTATED TRUST AGREEMENT, dated as of December 19, 1995
(as amended from time to time, this "Trust Agreement") among PECO ENERGY
CAPITAL, L.P., a Delaware limited partnership, as grantor (the "Grantor"), PNC
BANK, DELAWARE, a Delaware banking corporation, 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. ss. 3801, et seq.) (as
amended from time to time, the "Business Trust Act"), pursuant to a Trust
Agreement, dated as of October 20, 1995 (the "Original Trust Agreement"), and a
Certificate of Trust filed with the Secretary of State of the State of Delaware
on October 20, 1995; 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, PECO Energy Company ("PECO Energy") proposes to effect the
exchange (the "Exchange") of Receipts each representing a 8.72% Cumulative
Monthly Income Preferred Security, Series B, representing a limited partner
interest of the Grantor (the "Preferred Securities"), for Depositary Shares (as
hereinafter defined), each representing a one-fourth interest in a share of
$7.96 Cumulative Preferred Stock of PECO Energy; and
WHEREAS, to facilitate the Exchange, PECO Energy requests the Grantor
to issue one Preferred Security for each Depositary Share accepted in the
Exchange and to deposit the Preferred Securities in trust for the benefit of the
holders of the Depositary Shares tendering shares which have been accepted in
the Exchange; and
WHEREAS, interests in the Trust are to be evidenced by Receipt
certificates issued by the Trustee in accordance with this Trust Agreement,
which are to be delivered to the Exchange Agent (as hereinafter defined) for
distribution to the holders of the Depositary Shares which have been accepted in
the Exchange;
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
Receipts:
"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.
"Commission" shall have the meaning set forth in Section 6.06.
"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 000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
"Depositary Shares" mean receipts issued pursuant to a Deposit
Agreement dated as of October 20, 1992 among Philadelphia Electric Company (now
PECO Energy), First Chicago Trust Company of New York, as Depositary, and the
holders of such receipts, each evidencing a one-fourth interest in a share of
$7.96 Cumulative Preferred Stock of PECO Energy.
"Exchange" shall have the meaning set forth in the recitals to this
Trust Agreement.
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"Exchange Agent" means First Chicago Trust Company of New York in its
capacity as the Exchange Agent under an Exchange Agreement dated as of November
8, 1995 between PECO Energy and the Exchange Agent to effect the exchange of
Depository Shares for Receipts.
"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
December 19, 1995, as amended from time to time 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 Receipts 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.
"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 8.72% Cumulative Monthly Income
Preferred Securities, Series B, 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.
"Receipt" shall mean a trust receipt issued hereunder representing an
interest in the Trust equal to and representing a
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Preferred Security and evidenced by a certificate issued by the Trustee pursuant
to Article III.
"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
Receipt 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.
"Tendering Holders" means the holders of the Depositary Shares which
have been validly tendered to the Exchange Agent and accepted by the Company for
exchange.
"Trust" means the trust governed by this Trust Agreement.
"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 PNC Bank, Delaware, a Delaware banking
corporation, in its capacity as Trustee and not in its individual capacity and
any successor as trustee hereunder.
ARTICLE II
CONTINUATION OF TRUST
SECTION 2.01. Continuation of Trust.
(a) The Trust continued hereby shall be known as "PECO Energy
Capital Trust I." The Trust exists for the sole purpose of issuing Receipts
representing the Preferred Securities held by the Trust and performing functions
directly related
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thereto. The Grantor hereby delivers to the Trustee for deposit in the Trust a
certificate representing 3,124,183 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 Receipts 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 Receipts 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.
(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 it shall hold the
Preferred Securities (including any Successor Securities) in the Trust for the
benefit of the Holders.
SECTION 2.02. Trust Account. The Trustee shall open an account
entitled "PECO Energy Capital Trust I - 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 Trustee.
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
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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 Receipts. With respect to the
Trust, Holders of Receipts 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.
ARTICLE III
FORM OF RECEIPTS, EXECUTION AND
DELIVERY, TRANSFER, AND SURRENDER OF RECEIPTS
SECTION 3.01. Form and Transferability of Receipts.
(a) Receipts 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 Receipts 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 Receipts by manual signature of a
duly authorized signatory of the Registrar. No certificate evidencing one or
more Receipts 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 Receipt certificate executed as provided above and delivered as hereinafter
provided.
(c) Certificates evidencing Receipts shall be in denominations of
any whole number of Preferred Securities. All Receipt certificates shall be
dated the date of their execution or countersignature.
(d) Certificates evidencing Receipts 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
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Receipts may be listed or to conform with any usage with respect thereto.
(e) Title to any Receipt 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 any notice provided for
in this Trust Agreement and for all other purposes.
SECTION 3.02. Issuance of Receipts. In connection with the Exchange,
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 the Exchange Agent certificates evidencing the Receipts for
distribution to the former holders of Depositary Shares who shall thereupon be
Holders of Receipts.
SECTION 3.03. Registration, Transfer and Exchange of Receipts. The
Trustee shall cause 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 Receipt
certificates and of transfers and exchanges of Receipt certificates as herein
provided. The Grantor hereby appoints First Chicago Trust Company of New York 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 Receipt 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 Receipt 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, Receipt certificates may be exchanged for
other Receipt certificates representing the same number of Preferred Securities.
Upon surrender of a Receipt certificate at the office of the Registrar or such
other office
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as the Trustee may designate for the purpose of effecting an exchange of Receipt
certificates, subject to the terms and conditions of this Trust Agreement, the
Trustee shall execute and deliver a new Receipt certificate representing the
same number of Preferred Securities as the Receipt certificate surrendered.
As a condition precedent to the registration of the transfer or
exchange of any Receipt 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 the
Registrar may establish not inconsistent with the provisions of this Trust
Agreement.
No service charge shall be made to a Holder of Receipts for any
registration of transfer or exchange of Receipt 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 Receipt certificates.
Neither the Trustee nor the Registrar shall be required (a) to
register the transfer of or exchange any Receipt certificate for a period
beginning at the opening of business ten days preceding any selection of
Receipts to be redeemed and ending at the close of business on the day of the
mailing a notice of redemption of Receipts or (b) to register the transfer of or
exchange of Receipts called or being called for redemption in whole or in part,
except as provided in Section 4.02.
SECTION 3.04. Lost or Stolen Receipts, Etc. In case any Receipt
certificate shall be mutilated or destroyed or lost or stolen and in the absence
of notice to the Trustee that such Receipt has been acquired by a bona fide
purchaser, the Trustee shall execute and deliver a Receipt certificate of like
form and tenor in exchange and substitution for such mutilated Receipt
certificate or in lieu of and in substitution for such destroyed, lost or stolen
Receipt 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 Receipt 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 Receipt
certificate issued pursuant to this Section 3.04 shall constitute complete and
indefeasible evidence of ownership in the Trust, as if originally issued,
whether or not the lost, stolen or destroyed Receipt certificate shall be found
at any time.
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SECTION 3.05. Cancellation and Destruction of Surrendered Receipts.
All Receipt 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 Receipt certificate, the Trustee may
destroy such cancelled Receipt certificates.
SECTION 3.06. Surrender of Receipts and Withdrawal of Preferred
Securities. Any Holder of a Receipt or Receipts may withdraw any or all of the
Preferred Securities (but only in whole numbers of Preferred Securities)
represented by such Receipt or Receipts by surrendering the certificate
evidencing such Receipt or Receipts accompanied by a written instrument of
transfer and an agreement to be bound by the terms of the Partnership Agreement
at the Corporate Office or at such other office as the Trustee may designate for
such withdrawals. After such surrender, without unreasonable delay, the Trustee
shall transfer to such Holder, or to the Person or Persons designated by such
Holder as hereinafter provided, the whole number of Preferred Securities
represented by the Receipt or Receipts so surrendered; provided, however, that
the Trustee shall not issue any fractional number of Preferred Securities. If
the Receipt or Receipts delivered by the Holder to the Trustee in connection
with such withdrawal shall evidence a number of Preferred Securities in excess
of the number of Preferred Securities to be withdrawn, the Trustee shall at the
same time, in addition to such number of Preferred Securities to be withdrawn,
execute in accordance with Section 3.01 and deliver to such Holder, a new
Receipt or Receipts evidencing such excess number of Preferred Securities. If a
Holder withdraws in accordance with this Section 3.06 all of the Preferred
Securities represented by its Receipt or Receipts, such Holder shall cease to be
a Holder under this Trust Agreement and shall cease to be a beneficial owner in
the Trust. Delivery of the Preferred Securities may be made by the delivery of
such certificates, documents of title and other instruments as the Trustee may
deem appropriate, which, if required by the Holder, shall be properly endorsed
or accompanied by proper instruments of transfer.
If the Preferred Securities being withdrawn are to be delivered to a
Person or Persons other than the Holder of the Receipt or Receipts being
surrendered for withdrawal of Preferred Securities, such Holder shall execute
and deliver to the Trustee a written order so directing the Trustee and the
Trustee may require that the certificate evidencing the Receipt or Receipts
surrendered by such Holder for withdrawal of such Preferred Securities be
properly endorsed in blank or accompanied by a properly executed instrument of
transfer or endorsement in blank.
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A Holder who surrenders its Receipts in accordance with this Section
3.06, or the Person or Persons designated by such Holder in the immediately
preceding paragraph, 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 Holder's or such Person's or Persons'
receipt of a certificate evidencing such Preferred Securities registered in such
Holder's or such Person's or Persons' name.
The Trustee shall deliver the Preferred Securities represented by the
Receipts surrendered to the Holder in accordance with this Section 3.06 at the
Corporate Office, except that, at the request, risk and expense of the Holder
surrendering such Receipt or Receipts and for the account of the Holder thereof,
such delivery may be made at such other place as may be designated by such
Holder.
Notwithstanding anything in this Section 3.06 to the contrary, if the
Preferred Securities represented by a Receipt or Receipts have been called for
redemption in accordance with the Partnership Agreement, no Holder of such
Receipt or Receipts may withdraw any or all of the Preferred Securities
represented by such Receipt or Receipts.
SECTION 3.07. Redeposit of Preferred Securities; Execution and
Delivery of Receipts in Response Thereof. 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 Trust, of a
certificate or certificates for the Preferred Securities to be deposited,
properly endorsed or accompanied, if required by the Trust, 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 (i) all such certifications as may be required by the Trustee in accordance
with the provisions of this Trust Agreement and (ii) a written order directing
the Trustee to execute in accordance with Section 3.01 and deliver to or upon
the written order of the Person or Persons stated in such order a certificate
evidencing a Receipt or Receipts for the number of Preferred Securities so
deposited.
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
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Securities, or in lieu thereof such agreement of indemnity or other agreement as
shall be satisfactory to the Trustee.
Upon receipt by the Trustee of a certificate or certificates for
Preferred Securities to be deposited hereunder, together with the other
documents specified above, the Trustee shall, as soon as transfer and
registration can be accomplished in accordance with the terms of the Partnership
Agreement, present such certificate or certificates to the General Partner of
the Grantor for transfer and registration in the name of the Trustee or its
nominee of the Preferred Securities being deposited. Deposited Preferred
Securities shall be held by the Trustee on behalf of the Trust for the benefit
of the Holders.
Upon receipt by the Trustee of a certificate or certificates for
Preferred Securities to be deposited hereunder, together with the other
documents specified above, the Trust, subject to the terms and conditions of
this Trust Agreement, shall execute in accordance with Section 3.01 and deliver
to or upon the order of the Person or Persons named in the written order
delivered to the Trustee referred to in the first or second paragraph of this
Section 3.07 a Receipt or Receipts for the number of Preferred Securities so
deposited by such Person or Persons. The Trustee shall execute and deliver such
Receipt or Receipts at the Corporate Office, except that, at the request, risk
and expense of any Person requesting such delivery, such delivery may be made at
such other place as may be designated by such Person. In each case, delivery
will be made only upon payment by such Person 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.
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 Receipt or
Receipts, the transfer, redemption or exchange of any Receipt or Receipts 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 RECEIPTS
SECTION 4.01. Distributions of Monthly Distributions on Preferred
Securities. Whenever the Trustee shall receive any cash distribution
representing a monthly distribution on the Preferred Securities (whether or not
distributed by the Grantor on the regular monthly 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 Receipts on the record date fixed pursuant to Section
4.04, such amounts in proportion to the respective numbers of Preferred
Securities represented by the Receipts 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 Receipts 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 Receipts. Such notice
shall be mailed to the Holders of the Receipts 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 Receipts and the
Preferred Securities are to be redeemed; that all outstanding Receipts are to be
redeemed or, in the case of a redemption of fewer than all outstanding Receipts
in connection with a partial redemption of Preferred Securities, the number of
such Receipts held by such Holder to be so redeemed; the place or places where
Receipts to be redeemed are to be surrendered for redemption; and specifying the
CUSIP number assigned to the Receipts. In case fewer than all the outstanding
Receipts are to be redeemed, the Receipts 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 Receipts
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from any national exchange on which the Receipts 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 Trustee the aggregate amount payable upon redemption of the
Preferred Securities to be redeemed, the Trustee shall redeem (using the funds
so deposited with it) Receipts 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 Receipts
called for redemption shall be deemed no longer to be outstanding and all rights
of the Holders of Receipts (except the right to receive cash upon surrender of
Receipts) shall cease and terminate. Upon surrender in accordance with said
notice of the Receipts endorsed or assigned for transfer, if the Trustee shall
so require, the Holders of such Receipts shall receive for each such Receipt 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 Receipts of any Holder are called for
redemption, the Registrar will deliver to the Holder of such Receipts upon
surrender of the certificate evidencing such Receipts a new certificate
evidencing the number of Receipts not called for redemption.
SECTION 4.03. Distributions in Liquidation of Grantor. Upon 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
Receipts 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 Receipts held by such Holders.
SECTION 4.04. Fixing of Record Date for Holders of Receipts. 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
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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 Receipts 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 monthly distributions on, the
redemption price of, and distributions in liquidation on the Receipts. The
Grantor hereby appoints First Chicago Trust Company of New York to act as Paying
Agent and designates the Jersey City, New Jersey office of the Paying Agent as
the place of payment of the redemption price of and to distribution in
liquidation on the Receipts. The aforesaid appointment and designation shall
remain in effect until changed by the Grantor. Payments of monthly distributions
on the Receipts shall be payable by check mailed to the addresses of the Holders
thereof on the record date therefor. Payments of the redemption price of
Receipts and distributions in liquidation shall be made upon surrender of such
Receipts at the office of the Paying Agent. The Trustee is hereby authorized to
direct the Grantor to pay monthly distributions on, the redemption price of, and
distributions in liquidation on, the Preferred Securities directly to the Paying
Agent for distribution 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 Receipts of
such right, request direction of each Holder of a Receipt as to the appointment
of a Special Representative and vote the Preferred Securities represented by
such Receipt 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 Receipts
and, if so directed by the Holders of Receipts representing Preferred Securities
constituting at least 10% of the aggregated stated liquidation preference of the
outstanding Preferred Partner Interests (as defined in the Partnership
Agreement) shall convene such meeting.
(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 Receipts a notice, which shall be
provided by the General Partner
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and which shall contain (i) such information as is contained in such notice of
meeting, (ii) a statement that the Holders of Receipts 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 Receipts, 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 Receipt on such record date,
the Trustee shall vote or cause to be voted the number of Preferred Securities
represented by the Receipts evidenced by such Receipt 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
Receipt, the Trustee will abstain from voting to the extent of the Preferred
Securities represented by such Receipt.
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 Receipts 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 Guarantee shall remain in
the General Partner, except to the extent set forth in Section 2.04 of the
Payment and Guarantee
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Agreement executed by PECO Energy Company on December 19, 1995 for the benefit
of the holders of the Preferred Securities.
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 Receipts
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 Receipts 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 Receipt to Holders of Receipts 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 Receipts that in its opinion may involve it in expense or
liability, unless indemnity
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satisfactory to it against all expense and liability be furnished as often as
may be required.
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 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 and in the interest of the Holders.
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, any Holder of a Receipt 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.
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 Receipts 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 responsibility with respect to the
Exchange or as to the validity of the registration statement pursuant to which
the Receipts are registered under the Securities Act, the Preferred Securities,
the Guarantee or the Receipts (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.
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The Trustee assumes no responsibility for the correctness of the
description that appears in the Receipts, 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 Receipts, the Trustee makes
no warranties or representations as to the validity, genuineness or sufficiency
of any Preferred Securities or the Guarantee or of the Receipts, as to the
validity or sufficiency of this Trust Agreement, as to the value of the Receipts
or as to any right, title or interest of the Holders of Receipts, 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 the laws of
the State of Delaware, 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 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 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 Trustee may petition a court of
competent jurisdiction to appoint a successor trustee. 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,
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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 Receipts. Any
successor depositary shall promptly mail notice of its appointment to the
Holders of Receipts.
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 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 Receipts, 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 Receipts
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 Receipts 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 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 Receipts.
SECTION 6.06. Appointment of Grantor to File on Behalf of Trust. The
Grantor and the Trustee hereby authorize and direct the Grantor, as the sponsor
of the Trust (i) to file with the Commission and execute, in each case on behalf
of the Trust, (a) the Registration Statement on Form S-4 (the "1933 Act
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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, of the Receipts 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 Receipts
under Section 12(b) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"); and (c) any reports or other papers on 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 Receipts 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
Receipts under the securities or "Blue Sky" laws of such jurisdictions as the
Grantor, 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 Receipts, among the Trust, the Grantor and the Dealer Managers named
therein, substantially in the form included as Exhibit 1 to the 1933 Act
Registration Statement.
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 Receipts, except
for any liability arising out of 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 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 Receipts or other Person, such Holder or other Person will be liable
for such fees, charges and expenses.
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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 party 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.
(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
21
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 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 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 (c)(ii) hereof
shall not materially adversely affect the interests of the Holders; or
22
(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 Receipts.
SECTION 7.02. Termination. The Trust Agreement shall terminate on the
date that all outstanding Receipts 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 Receipts. 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 Receipts 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 Receipts to be delisted by any national securities exchange or other
organization on which the Receipts are then listed, (ii) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does not
cause the Receipts 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 Receipts 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 the Trustee's agents and shall be open to
inspection during business hours at the Corporate Office and the respective
offices of the Trustee's agents, if any, by any Holder of a Receipt.
SECTION 9.02. Exclusive Benefits of Parties. This Trust Agreement is
for the exclusive benefit of the parties hereto and the Holders of the Receipts
and the holders of Series B 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 Receipts 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 0000 Xxxxxx
Xxxx, Xxxxx 000X, Xxxxxxxxxx, Xxxxxxxx 00000, 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 Receipts
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 Receipt hereunder or under the
Receipts shall be in writing and shall be deemed to
24
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 record holder 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 the other or
from any Holder of a Receipt, 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 Receipts Are Parties. Notwithstanding that
Holders of Receipts have not executed and delivered this Trust Agreement or any
counterpart thereof, the Holders of Receipts from time to time shall be bound by
all of the terms and conditions hereof and of the Receipts by acceptance of
delivery of Receipts.
SECTION 9.07. Governing Law. This Trust Agreement and the Receipts 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 Receipt 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 Receipts.
SECTION 9.09. Receipts Non-Assessable and Fully Paid. The Holders of
the Receipts shall not be personally liable for obligations of the Trust, the
interests in the Trust represented by the Receipts shall be non-assessable for
any losses or expenses of the Trust or for any reason whatsoever, and the
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Receipts upon delivery 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: /s/ J. Xxxxx Xxxxxxxx
Authorized Officer
PNC BANK, DELAWARE
By: /s/ Xxxxxxx X. XxXxxxxx
Authorized Signatory
The General Partner joins in this Trust Agreement solely for the
purposes of obligating itself under Sections 6.04, 6.07 and 6.08 of this Trust
Agreement and not as grantor, trustee or beneficiary.
PECO ENERGY CAPITAL CORP.
By: /s/ J. Xxxxx Xxxxxxxx
Authorized Officer
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EXHIBIT A
TRUST RECEIPTS
OF PECO ENERGY CAPITAL TRUST I,
a Delaware Business Trust,
each Representing an 8.72% Cumulative
Monthly Income Preferred Security, Series B of
PECO Energy Capital, L.P. (a Delaware limited partnership)
No. _________ ___________ Receipts
PNC Bank, Delaware, a Delaware banking corporation, not in its
individual capacity, but solely as Trustee (the "Trustee"), hereby certifies
that ______________ is the registered owner of __________ Receipts (the
"Receipts"), each representing an 8.72% Cumulative Monthly Income Preferred
Security, Series B (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 I dated as of December 19, 1995 (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
Receipts 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 Receipts 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 Receipts and the rights and duties of the Trustee, the Grantor and
the General Partner. The statements made on the face and the reverse hereof 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
Receipts 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. Any Holder of
a Receipt or Receipts may withdraw any or all of the Preferred Securities (but
only in whole numbers of Preferred Securities) represented by such Receipt or
Receipts by surrendering the certificate evidencing such Receipt or Receipts
accompanied by a written instrument of transfer and an agreement to be bound by
the terms of the Partnership Agreement at the Corporate Office or at such other
office as the Trustee may designate for such withdrawals; provided, however,
that the Trustee shall not issue any fractional number of Preferred Securities.
If the Receipt or Receipts delivered by the Holder to the Trust in connection
with such withdrawal shall evidence a number of Preferred Securities in excess
of the number of Preferred Securities to be withdrawn, the Trustee shall at the
same time, in addition to such number of Preferred Securities to be withdrawn,
deliver to such Holder, a new Receipt or Receipts evidencing such excess number
of Preferred Securities.
3. Distributions of Monthly Distributions on Preferred Securities.
Whenever the Trustee shall receive any cash distribution representing a monthly
distribution on the Preferred Securities (whether or not distributed by the
Grantor on the regular monthly distribution date therefor) or payment by PECO
Energy Company ("PECO Energy") under the Payment and Guarantee Agreement dated
as of December 19, 1995 (the "Guarantee") in respect thereof, the Trustee acting
directly or through any Paying Agent shall distribute to record Holders of
Receipts on the record date therefor, such amounts in proportion to the
respective numbers of Preferred Securities represented by the Receipts 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, first-class postage prepaid,
notice of the redemption of Preferred Securities and the proposed simultaneous
redemption of the Receipts to be redeemed, not less than 30 and not more than 60
days prior to the date fixed for redemption (the "redemption date") of such
Preferred Securities and Receipts. Such notice shall be mailed to the Holders of
the Receipts, 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
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proceedings. In case fewer than all the outstanding Receipts are to be redeemed,
the Receipts 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 Trustee the aggregate amount
payable upon redemption of the Preferred Securities to be redeemed, the Trustee
shall redeem (using the funds so deposited with it) Receipts 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 record Holders
of Receipts on the record date therefor, such amounts in proportion to the
respective number of Preferred Securities which were represented by the Receipts
held by such Holders.
6. Fixing of Record Date for Holders of Receipts. 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 record
holders of Receipts 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 monthly distributions on the
Receipts shall be payable by check mailed to the addresses of the Holders
thereof on the record date therefor. Payments of the redemption price of
Receipts and distributions in liquidation shall be made against surrender of
such Receipts at the office of First Chicago Trust Company of New York, 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 Receipts of such right, request direction of each
Holder of a Receipt and vote the Preferred Securities represented by such
Receipt in accordance with such direction. If the General Partner fails to
convene a general
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meeting of the Partnership as required in Section 13.02(d) of the Partnership
Agreement, the Trustee shall notify the Holders of the Receipts and, if so
directed by the Holders of Receipts representing Preferred Securities
constituting at least 10% of the aggregated stated liquidation preference of the
outstanding Preferred Partner Interests (as defined in the Partnership
Agreement) shall convene such meeting.
(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 Receipts 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
Receipts 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
Receipts, 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 Receipt on
such record date, the Trustee shall vote or cause to be voted the number of
Preferred Securities represented by the Receipts in accordance with the
instructions set forth in such request. In the absence of specific instructions
from the Holder of a Receipt, the Trustee will abstain from voting to the extent
of the Preferred Securities represented by such Receipt.
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 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 Receipts 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 Receipts. Subject to the terms and
conditions of the Trust Agreement, the Trustee shall register the transfer on
its books from time to time of Receipt 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,
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the Trustee shall execute a new Receipt representing the same aggregate number
of the Receipts 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 Receipt at the Corporate Office or such other
office as the Trustee may designate for the purpose of effecting an exchange of
Receipt certificates, subject to the terms and conditions of the Trust
Agreement, the Trustee shall execute and deliver a new Receipt certificate
representing the same number of Preferred Securities as the Receipt certificate
surrendered.
As a condition precedent to the registration of transfer or exchange
of any Receipt 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 of or exchange any Receipt certificate for a period
beginning at the opening of business ten days next preceding any selection of
Receipts to be redeemed and ending at the close of business on the day of the
mailing a notice of redemption of Receipts or (b) to transfer or exchange of
Receipts called or being called for redemption in whole or in part.
11. Title to Receipts. It is a condition of the Receipt, and every
successive Holder hereof by accepting or holding the same consents and agrees,
that title to this Receipt 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 Receipt 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 Receipts 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 and
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registration of transfer of Receipts, which books at all reasonable times will
be open for inspection by the record Holders of Receipts 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 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
(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 Trust Receipts.
14. Governing Law. The Trust Agreement and this Receipt 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. Receipt Non-Assessable and Fully Paid. Holders of Receipts shall
not be personally liable for obligations of the Trust, the interest in the Trust
represented by the Receipts shall be non-assessable for any losses or expenses
of the Trust or for any reason whatsoever, and the Receipts upon delivery
thereof by the Trustee pursuant to the Trust Agreement are and shall be deemed
fully paid.
16. Liability of Holders of Receipts. Holders of Receipts 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
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authorized and whether issued for cash or other consideration or by way of
distribution.
This Receipt certificate shall not be entitled to any benefits under
the Trust Agreement or be valid or obligatory for any purpose unless this
Receipt certificate shall have been executed manually or, if a Registrar for the
Receipts (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 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 THE RECEIPTS; AS TO THE VALIDITY OR SUFFICIENCY OF
THE TRUST AGREEMENT; AS TO THE VALUE OF THE RECEIPTS OR AS TO ANY RIGHT, TITLE
OR INTEREST OF THE RECORD HOLDERS OF THE RECEIPTS IN AND TO THE RECEIPTS.
Dated:
PNC BANK, DELAWARE, as Trustee,
By_________________________________
Authorized Officer
Countersigned by
First Chicago Trust Company
of New York, as Transfer
Agent and Registrar
By_________________________________
Authorized Officer
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[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and
transfers unto ____________________ the within Receipt and all rights and
interests represented by the Receipts 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 Receipt in every
particular, without alteration or
enlargement, or any change whatever.
Signature Guarantee:
_________________________________
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