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EXHIBIT 4-3
Action by the General Partner of PECO Energy Capital, L.P.
Creating the ___% Cumulative Monthly Income
Preferred Securities, Series B
Pursuant to Section 13.01 of the Amended and Restated Limited
Partnership Agreement of PECO Energy Capital, L.P. dated as of July 25, 1994
(as amended from time to time, the "Partnership Agreement"), PECO Energy
Capital Corp., as general partner (the "General Partner"), of PECO Energy
Capital, L.P. (the "Partnership"), desiring to state the designations, rights,
privileges, restrictions, preferences, voting rights and other terms and
conditions of a new series of Preferred Securities, hereby authorizes and
establishes such new series of Preferred Securities according to the following
terms and conditions (each capitalized term used but not defined herein shall
have the meaning set forth in the Partnership Agreement):
(a) Designation. ____________________ (_________)
interests with an aggregate liquidation preference of $______________ of the
Preferred Securities of the Partnership, liquidation preference $25 per
Preferred Security, are hereby designated as "___% Cumulative Monthly Income
Preferred Securities, Series B" (hereinafter the "Series B Preferred
Securities").
(b) Distributions.
(i) Holders of the Series B Preferred Securities
shall be entitled to receive, when, as and if declared by the General Partner
out of funds on hand held by the Partnership and legally available therefor,
cumulative cash distributions at a rate per annum of ___% of the stated
liquidation preference of $25 per Series B Preferred Security. Distributions
on the Series B Preferred Securities which accrue from the date of original
issue to __________ shall be payable commencing on _____, 1995. In addition,
holders of the Series B Preferred Securities shall be entitled to receive,
when, as and if declared by the General Partner out of funds on hand held by
the Partnership and legally available therefor a cash distribution at the rate
of 7.96% per annum of the stated liquidation preference of $25 per Series B
Preferred Security accumulating from November 1, 1995 through _____________,
1995, payable on ____________, 1995.
(ii) Distributions on the Series B Preferred
Securities must be declared by the General Partner in any calendar year or
portion thereof to the extent that the General Partner reasonably anticipates
that at the time of payment the Partnership will have, and must be paid by the
Partnership to the extent that at the time of proposed payment it has, funds
legally
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available therefor sufficient to permit such payments. Distributions on the
Series B Preferred Securities will be deferred if and for so long as PECO
Energy Company ("PECO Energy") defers payments to the Partnership on the Series
B Debentures (as defined below). Accrued and unpaid distributions on the
Series B Preferred Securities will accrue additional distributions ("Additional
Distributions") in respect thereof, to the extent permitted by law, at the rate
of ____% per annum of the stated liquidation preference of $25 per Series B
Preferred Securities. Such Additional Distributions shall be payable at the
time the related deferred distribution is paid, but in any event by the end of
such deferral period. Distributions declared on the Series B Preferred
Securities will be payable to the holders of Series B Preferred Securities as
they appear on the books and records of the Partnership on the relevant record
dates, which will be the 15th day of the month of the relevant payment.
(c) Redemption.
(i) The Series B Preferred Securities are subject
to redemption at the option of the General Partner, in whole or in part, from
time to time, on or after October 1, 1997, at the Redemption Price (as defined
below).
(ii) Upon redemption or payment at maturity of the
__% Deferrable Interest Subordinated Debentures due 2025, Series B (the "Series
B Debentures") issued by PECO Energy pursuant to a First Supplemental Indenture
dated as of _________, 1995 between PECO Energy and Meridian Trust Company, as
Trustee (the "Supplemental Indenture") to the Indenture dated as of July 1,
1994 between PECO Energy and Meridian Trust Company, as Trustee (as
supplemented, the "Indenture"), the proceeds from such redemption or payment of
the Series B Debentures shall be applied by the Partnership to redeem the
Series B Preferred Securities at the redemption price of $25 per Preferred
Security plus accumulated and unpaid distributions (whether or not declared) to
the date fixed for redemption, together with any accrued Additional
Distributions thereon (the "Redemption Price").
(iii) If a Tax Event shall occur and be continuing,
the Series B Preferred Securities will be subject to redemption, at the option
of the General Partner, in whole or in part at the Redemption Price within
ninety (90) days following the occurrence of such Tax Event. If an Investment
Company Act Event shall occur and be continuing, the Series B Preferred
Securities will be subject to mandatory redemption in whole at the Redemption
Price within ninety (90) days following the occurrence of such Investment
Company Act Event.
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(d) Liquidation Distribution. In the event of any
voluntary or involuntary dissolution and winding up of the Partnership, holders
of the Series B Preferred Securities at the time outstanding will be entitled
to receive out of the assets of the Partnership available for distribution to
holders of Preferred Securities, after satisfaction of liabilities to creditors
as required by the Delaware Act and before any distribution of assets is made
to holders of the general partner interests, but together with holders of every
other series of Preferred Securities outstanding, an amount equal to, in the
case of holders of Series B Preferred Securities, the aggregate of the stated
liquidation preference of $25 per Series B Preferred Security plus accumulated
and unpaid distributions and Additional Distributions to the date of payment
(the "Liquidation Distribution").
(e) Voting Rights. The holders of the Series B Preferred
Securities shall have no voting rights except as provided in the Partnership
Agreement.
(f) Subordination. The holders of Series B Preferred
Securities are deemed, by acceptance of such Securities, to have (i) agreed
that the Series B Debentures issued pursuant to the Supplemental Indenture are
subordinate and junior in right of payment to all general liabilities as and to
the extent provided in the Supplemental Indenture and (ii) agreed that the
Guarantee relating to the Series B Preferred Securities is subordinate and
junior in right of payment to all general liabilities of PECO Energy.
(g) Issuance. The Series B Preferred Securities shall be
issued by the Partnership to and initially deposited with PNC Bank, Delaware,
as trustee of PECO Energy Capital Trust I, a statutory business trust created
under an amended and restated trust agreement among the Trustee, the
Partnership and, in certain limited respects, the General Partner, in
consideration for the transfer to the Partnership of Series B Debentures with
an aggregate principal amount equal to the aggregate liquidation preference of
the Series B Preferred Securities. The Partnership shall initially be the
transfer agent, registrar and paying agent for the Series B Preferred
Securities.
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IN WITNESS WHEREOF, the General Partner as executed this
Action as of the day and year first above written.
PECO Energy Capital Corp.
By:
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Name: X. Xxxxx Xxxxxxxx
Title: President
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