Action by the General Partner of PECO Energy Capital, L.P.
Creating the __% Cumulative
Preferred Securities, Series D
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 Partner
Interests, hereby authorizes and establishes such new series of
Preferred Partner Interests 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. Seventy eight thousand one hundred
five (78,105) interests with an aggregate liquidation preference
of $78,105,000 of the Preferred Partner Interests of the
Partnership, liquidation preference $1,000 per Preferred
Security, are hereby designated as "__% Cumulative Preferred
Securities, Series D" (hereinafter the "Series D Preferred
Securities").
(b) Distributions.
(i) Holders of the Series D 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
$1,000 per Series D Preferred Security semiannually on __________
and ____________ of each year. Distributions on the Series D
Preferred Securities shall accrue from the date of original
issuance on ___________, 1998 and shall be payable commencing on
__________, 1998.
(ii) Distributions on the Series D 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
available therefor sufficient to permit such payments.
Distributions on the Series D Preferred Securities will be
deferred if and for so long as PECO Energy Company ("PECO
Energy") defers payments to the Partnership on the Series D
Debentures (as defined below). Accrued and unpaid distributions
on the Series D 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 $1,000 per Series D 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 D Preferred Securities will be payable to the
holders of Series D Preferred Securities as they appear on the
books and records of the Partnership on the relevant record
dates, which will be __________ and ____________ of each year.
(c) Redemption.
(i) Upon redemption or payment at maturity of the
__% Subordinated Deferrable Interest Debentures due 2028,
Series D (the "Series D Subordinated Debt Securities") issued by
PECO Energy pursuant to a Third Supplemental Indenture dated as
of _________, 1998 between PECO Energy and First Union National
Bank, as trustee (the "Supplemental Indenture") to the Indenture
dated as of July 1, 1994 between PECO Energy and First Union
National Bank, as successor trustee, as supplemented by a First
Supplemental Indenture dated as of December 1, 1995 and a Second
Supplemental Indenture dated as of June 1, 1997 (as supplemented,
the "Indenture"), the proceeds from such redemption or payment of
the Series D Subordinated Debt Securities shall be applied by the
Partnership to redeem the Series D Preferred Securities at the
redemption price of $1,000 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").
(ii) If a Tax Event shall occur and be continuing,
the Series D 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 D 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.
(d) Liquidation Distribution. In the event of any
voluntary or involuntary dissolution and winding up of the
Partnership, holders of the Series D 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 Partner Interests, 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 Partner Interests outstanding, an amount equal to, in
the case of holders of Series D Preferred Securities, the
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aggregate of the stated liquidation preference of $1,000 per
Series D 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 D
Preferred Securities shall have no voting rights except as
provided in the Partnership Agreement.
(f) Subordination. The holders of Series D Preferred
Securities are deemed, by acceptance of such Securities, to have
(i) agreed that the Series D Subordinated Debt Securities issued
pursuant to the Supplemental Indenture are subordinate and junior
in right of payment to all Senior Indebtedness (as defined in the
Indenture) of PECO Energy and (ii) agreed that the Guarantee
relating to the Series D Preferred Securities is subordinate and
junior in right of payment to all general liabilities of PECO
Energy.
(g) Issuance. The Series D Preferred Securities shall
be issued by the Partnership to and initially deposited with
First Union Trust Company, National Association, as trustee of
PECO Energy Capital Trust III, 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 D Subordinated Debt Securities with an aggregate principal
amount equal to the aggregate liquidation preference of the
Series D Preferred Securities. The Partnership shall initially
be the transfer agent, registrar and paying agent for the Series
D Preferred Securities.
IN WITNESS WHEREOF, the General Partner has executed
this Action effective as of _______________, 1998.
PECO Energy Capital Corp.
By:______________________________
Name: X. Xxxxx Xxxxxxxx
Title: President
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