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EXHIBIT 4-2
AMENDMENT NO. 1 TO THE
AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT
OF PECO ENERGY CAPITAL, L.P.
This Amendment No. 1 to the Amended and Restated Limited Partnership
Agreement of Peco Energy Capital, L.P., a Delaware limited partnership (the
"Partnership"), dated as of October 20, 1995 (this "Amendment"), is made by
and among Peco Energy Capital Corp., as general partner of the Partnership, and
the Persons who are limited partners of the Partnership.
WHEREAS, Peco Energy Capital Corp. and Peco Energy Company have
heretofore formed a limited partnership pursuant to the Delaware Act, by filing
a Certificate of Limited Partnership of the Partnership with the Secretary of
State of the State of Delaware on May 23, 1994, and entering into a Limited
Partnership Agreement of the Partnership, dated as of May 23, 1994 (the
"Original Agreement");
WHEREAS, the Original Agreement was amended and restated in its
entirety by the Amended and Restated Limited Partnership Agreement of the
Partnership, dated as of July 25, 1994 (the "Partnership Agreement");
WHEREAS, upon the admission of one Preferred Partner as a limited
partner of the Partnership, the Class A Limited Partner withdrew from the
Partnership as a limited partner of the Partnership and has no further interest
in the Partnership;
WHEREAS, the parties hereto desire to amend the Partnership Agreement
as described herein; and
WHEREAS, this Amendment does not adversely affect the powers,
preferences or special rights of any series of Preferred Partner Interests.
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, agree to amend the Partnership Agreement as follows:
ARTICLE I - AMENDMENTS
1.1. Article I of the Partnership Agreement is hereby amended to
add a new definition of "Global Certificate" in its proper alphabetical order
to read as follows:
"GLOBAL CERTIFICATE" shall mean a Certificate issued
in the form of a typewritten Certificate or Certificates
representing the Book Entry Interests to be delivered to a
Clearing Agency in accordance with Section 14.04.
1.2. Section 2.03 of the Partnership Agreement is hereby amended by
inserting "(a)" immediately before the first sentence thereof and by adding a
new subsection to said section to be designated as subsection "(b)" to read as
follows:
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(b) In furtherance of the purposes set forth in
Section 2.03(a) and without limiting the generality thereof,
the Partnership may issue Preferred Partner Interests for
consideration other than cash, including Subordinated
Debentures, which consideration shall constitute payment for
the Preferred Partner Interests so issued.
1.3. The last sentence of Section 3.01 of the Partnership Agreement
is hereby deleted in its entirety and replaced with the following:
Each Preferred Partner, or its predecessor in interest, will
be deemed to have contributed to the capital of the
Partnership the amount of the Purchase Price for the Preferred
Partner Interests held by it.
1.4. Section 8.04 of the Partnership Agreement is hereby amended by
(i) redesignating paragraph (h) thereof as paragraph (i), (ii) deleting the
word "and" at the end of paragraph (g), and (iii) adding a new paragraph (h) to
read as follows:
(h) Enter into and perform one or more trust agreements or other
organizational documents relating to the creation of one or more
Preferred Partners that will own Preferred Partner Interests,
including by entering into and performing agreements or documents
referred to in such trust agreements or other organizational
documents, in each case on behalf of the Partnership; and
1.5. Section 14.04(d) of the Partnership Agreement is hereby
amended by deleting the word "To" contained therein and substituting therefor
the words "Subject in all respects to Section 14.07, to".
1.6. The Partnership Agreement is hereby amended by adding a new
Section 14.07 in its proper numerical order to read as follows:
SECTION 14.07. DEFINITIVE CERTIFICATES ON ORIGINAL
ISSUANCE. Notwithstanding anything in this Agreement to the
contrary, including, without limitation, Sections 14.04, 14.05
and 14.06, on original issuance, Certificates may but need not
be issued to The Depository Trust Company in the form of a
Global Certificate or Global Certificates in accordance with
Section 14.04, and may but need not be issued to any Person in
the form of a Definitive Certificate or Definitive
Certificates in accordance with this Section 14.07. Without
limiting the generality of the foregoing, in connection with
the original issuance of Certificates as Definitive
Certificates in accordance with this Section 14.07, (i) a
Clearing Agency or a nominee of the Clearing Agency that is a
limited partner of the Partnership in accordance with Sections
14.03 and 14.04 with respect to one or more series of
Preferred Partner Interests shall continue to be a limited
partner of the Partnership notwithstanding the fact that
another Person holding a Definitive Certificate issued in
accordance with this Section 14.07 has been admitted to the
Partnership as a limited partner of the Partnership with
respect to one or more series of Preferred Partner Interests,
and (ii) Sections 14.04, 14.05 and 14.06 shall be inapplicable
to a Person holding a Definitive Certificate issued in
accordance with this Section 14.07. The General Partner will
appoint a registrar, transfer agent and paying agent for the
Preferred Partner Interests. The Definitive Certificates
shall be printed,
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lithographed or engraved or may be produced in any other
manner as is reasonably acceptable to the General Partner, as
is evidenced by its execution thereof. Registration of
transfers of Preferred Partner Interests will be effected
without charge by or on behalf of the Partnership, but upon
payment of any tax or other governmental charges which may be
imposed in relation to it. The Partnership will not be
required to register or cause to be registered the transfer of
Preferred Partner Interests after such Preferred Partner
Interests have been called for redemption. Any Person
receiving a Definitive Certificate in accordance with this
Section 14.07 shall be admitted to the Partnership as a
Preferred Partner pursuant to Section 2.06.
1.7. Exhibit A to the Partnership Agreement is hereby amended (a)
by deleting the reference to "Cede & Co." contained therein and substituting
for such reference a "__________________," (b) by deleting the reference to
"1994" contained in the 31st line of the first paragraph thereof and
substituting for such reference "199_," and (c) by deleting the reference to
"1994" contained in the last paragraph thereof and substituting for such
reference "199_."
ARTICLE II - MISCELLANEOUS
2.1. Capitalized Terms. Capitalized terms used herein and not
otherwise defined are used as defined in the Partnership Agreement.
2.2. Full Force and Effect. Except to the extent modified hereby,
the Partnership Agreement shall remain in full force and effect.
2.3. Successors and Assigns. This Amendment shall be binding upon,
and shall enure to the benefit of, the parties hereto and their respective
successors and assigns.
2.4. Counterparts. This Amendment may be executed in counterparts,
all of which together shall constitute one agreement binding on all parties
hereto, notwithstanding that all such parties are not signatories to the
original or same counterpart.
2.5. Governing Law. This Amendment shall be interpreted in
accordance with the laws of the State of Delaware (without regard to conflict
of laws principles), all rights and remedies being governed by such laws.
GENERAL PARTNER:
PECO ENERGY CAPITAL CORP.
By: /s/ J. Xxxxx Xxxxxxxx
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Name: J. Xxxxx Xxxxxxxx
Title: President
PREFERRED PARTNERS:
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All Preferred Partners now and
hereafter admitted as limited
partners of the Partnership pursuant
to Powers of Attorney now or
hereafter executed in favor of, and
delivered to, the General Partner.
By: PECO ENERGY CAPITAL CORP.
By: /s/ J. Xxxxx Xxxxxxxx
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Name: J. Xxxxx Xxxxxxxx
Title: President
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