EXHIBIT 4.1
TRUST AGREEMENT
This TRUST AGREEMENT, dated as of June 23, 1998 (this "Trust Agreement"),
among PECO Energy Company, a Pennsylvania corporation, as grantor (the
"Grantor") and First Union Trust Company, National Association, as Issuer
Trustee (the "Issuer Trustee"), Xxxxx Xxx Xxxxx and Xxxxxx Xxxxxxx, each as a
Beneficiary Trustee (jointly, the "Beneficiary Trustees") (the Beneficiary
Trustees and the Issuer Trustee being hereinafter referred to collectively as
the "Trustees"). The Grantor and the Trustees hereby agree as follows:
1. The trust created hereby shall be known as "PECO Energy Transition
Trust" (the "Trust"), in which name the Trustees, or the Grantor to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and xxx and be sued.
2. The Grantor hereby assigns, transfers, conveys and sets over to the
Trustees the sum of $5,000. The Trustees hereby acknowledge receipt of such
amount in trust from the Grantor, which amount shall constitute the initial
trust estate. The Trustees hereby declare that they will hold the trust estate
in trust for the Grantor. It is the intention of the parties hereto that the
Trust created hereby constitute a business trust under Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. ss. 3801, et seq. (the "Business Trust Act"), and
that this document constitutes the governing instrument of the Trust. The
Trustees are hereby authorized and directed to execute and file a certificate of
trust with the Delaware Secretary of State in accordance with the provisions of
the Business Trust Act.
3. The Grantor and the Trustees will enter into an amended and restated
Trust Agreement, satisfactory to each such party and substantially in the form
included as an exhibit to the 1933 Act Registration Statement (as defined
below), to provide for the contemplated operation of the Trust created hereby
and the issuance of the Transition Bonds referred to therein (the "Transition
Bonds"). Prior to the execution and delivery of such amended and restated Trust
Agreement, the Trustees shall not have any duty or obligation hereunder or with
respect to the trust estate, except as otherwise required by applicable law or
as may be necessary to obtain prior to such execution and delivery any licenses,
consents or approvals required by applicable law or otherwise.
4. The Grantor and the Trustees hereby authorize and direct the Beneficiary
Trustees (i) to file with the Securities and Exchange Commission (the
"Commission") and execute, in each
case on behalf of the Trust, the Registration Statement on either Form S-3 or
Form S-1 (the "1933 Act Registration Statement"), including any pre-effective or
post-effective amendments to such 1933 Act Registration Statement (including the
prospectus supplement, the prospectus and the exhibits contained therein),
relating to the registration under the Securities Act of 1933, as amended, of
the Transition Bonds; (ii) 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 Transition Bonds under the securities or
"Blue Sky" laws of such jurisdictions as the Trust may deem necessary or
desirable; and (iii) to do or cause to be done all such other acts or things and
to execute and deliver all such instruments and documents that any such
Beneficiary Trustee shall deem necessary or appropriate to carry out the intent
of the foregoing. In the event that any filing referred to above is required by
the rules and regulations of the Commission or state securities or "Blue Sky"
laws, to be executed on behalf of the Trust by the Issuer Trustee, then the
Issuer Trustee, not in its individual capacity, but solely in its capacity as
trustee of the Trust, is hereby authorized and directed to join in any such
filing and to execute on behalf of the Trust any and all of the foregoing. In
connection with all of the foregoing, the Trust hereby constitutes and appoints
Xxxxx Xxx Xxxxx as its true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for the Trust or in the Trust's name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to the 1933 Act Registration Statement and
any other registration statements and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Commission,
granting unto said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as the Trust might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his respective substitute or substitutes, shall
do or cause to be done by virtue hereof.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of Trustees initially shall be three (3) and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Grantor which may increase or decrease the
number of Trustees; provided, however, that to the extent required by the
Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in
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the State of Delaware and otherwise meets the requirements of applicable
Delaware law. Subject to the foregoing, the Grantor is entitled to appoint or
remove without cause any Trustee at any time. The Trustees may resign upon
thirty (30) days' prior notice to the Grantor.
7. This Trust Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware (without regard to conflict of laws or
principles).
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
PECO ENERGY COMPANY, as Grantor
By: /s/ J. Xxxxx Xxxxxxxx
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Name: J. Xxxxx Xxxxxxxx
Title: Vice President,
Finance and Treasurer
FIRST UNION TRUST COMPANY, NATIONAL
ASSOCIATION, not in its individual
capacity but solely as the Issuer
Trustee
By: /s/ Xxxxxx X. Xxxxxx, Xx.
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Name: Xxxxxx X. Xxxxxx, Xx.
Title: Assistant Vice President
XXXXX XXX XXXXX, not in her
individual capacity but solely as a
Beneficiary Trustee
By: /s/ Xxxxx Xxx Xxxxx
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Name: Xxxxx Xxx Xxxxx
XXXXXX XXXXXXX, not in his
individual capacity but solely as a
Beneficiary Trustee
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxxx Xxxxxxx
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