AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 4, 1999
REGISTRATION NO. 333-58055
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 3 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PECO ENERGY TRANSITION TRUST
(Exact name as specified in registrant's Certificate of Trust)
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Delaware c/o First Union Trust Company National Association 51-0382130
(State or other jurisdiction of One Rodney Square, 920 King Street (I.R.S. Employer
incorporation or organization) Wilmington, Delaware 19801 Identification Number)
(302) 888-7532
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
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Diana Moy Kelly
Beneficiary Trustee
P.O. Box 8699, 2301 Market Street, Philadelphia, PA 19101
(215) 841-4000
(Name, address including zip code, and telephone number
including area code, of agent for service)
Copies to:
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ROBERT C. GERLACH, ESQ. JAMES W. DURHAM, ESQ. GREGORY M. SHAW, ESQ.
Ballard Spahr Andrews & Ingersoll, LLP Senior Vice President and General Cravath, Swaine & Moore
1735 Market St., 51st Floor Counsel Worldwide Plaza
Philadelphia, PA 19103-7599 P.O. Box 8699 825 Eighth Ave.
2301 Market Street New York, NY 10019
Philadelphia, PA 19101
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Approximate date of commencement of proposed sale to the public:
From time to time after this Registration Statement becomes effective
as determined by market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box.|_|
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box.|X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering.|_|
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering.|_|
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box.|_|
CALCULATION OF REGISTRATION FEE
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Title of securities Amount to be Proposed maximum Proposed maximum Amount of
being registered registered aggregate offering aggregate registration fee**
price per unit* offering price*
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Transition Bonds $4,000,000,000 100% $4,000,000,000 $1,112,017
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* Estimated solely for the purpose of calculating the registration fee.
** Of this amount, $295 was paid on June 29, 1998, and the balance of
$1,111,722 was paid on February 22, 1999.
The registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, as amended, or until the Registration Statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
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EXPLANATORY NOTE
This Pre-Effective Amendment No. 3 to Form S-3 Registration Statement
(file no. 333-58055) (the "Registration Statement") is being filed solely for
the purpose of refiling Exhibit 5.2, which has been revised to provide the
correct headings in the prospectus included in the Registration Statement under
which the firm's name appears for purposes of the firm's consent, and providing
the equity value of the offering to which the Registration Statement relates,
which information was not included in Amendment No. 2 to the Registration
Statement filed with the Securities and Exchange Commission on February 22,
1999. Accordingly, the cover page of this Amendment No. 3 contains a Calculation
of Registration Fee table which indicates, among other things, the title and
amount of securities to be registered hereunder.
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PART II
Item 14. Other Expenses of Issuance and Distribution
The following is an itemized list of the estimated expenses to be
incurred in connection with the offering of the securities being offered
hereunder other than underwriting discounts and commissions.
Registration Fee................................................. $1,112,000
Printing and Engraving Expenses.................................. 75,000
Trustees' Fees and Expenses...................................... 26,500
Legal Fees and Expenses.......................................... 2,100,000
Blue Sky Fees and Expenses....................................... 10,000
Accountants' Fees and Expenses................................... 76,000
Rating Agency Fees............................................... 800,000
Miscellaneous Fees and Expenses.................................. 75,000
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Total................................................... $ 4,274,500
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Item 15. Indemnification of Directors and Officers.
Section 3817 of the Delaware Business Trust Act (the "Delaware Trust
Act") provides that subject to such standards and restrictions, if any, as are
set forth in the governing instrument of a business trust, a business trust
shall have the power to indemnify and hold harmless any trustee or beneficial
owner or other person from and against any and all claims and demands
whatsoever. The Delaware Trust Act also provides that the absence of a provision
for indemnity in the governing instrument of a business trust shall not be
construed to deprive any trustee or beneficial owner or other person of any
right to indemnify which is otherwise available to such person under the laws of
the State of Delaware.
The Amended and Restated Trust Agreement (the "Trust Agreement") of
PECO Energy Transition Trust (the "Trust") provides that, to the fullest extent
permitted by law, the Trust shall indemnify its trustees against any liability
incurred in connection with any proceeding in which the trustees may be involved
as a party or otherwise by reason of the fact that such trustee is or was
serving in its capacity as a trustee, unless such liability is based on or
arises in connection with the trustee's own willful misconduct or gross
negligence, the failure to perform the obligations set forth in the Trust
Agreement, or taxes, fees or other charges on, based on or measured by any fees,
commissions or compensation received by the trustees in connection with any of
the transactions contemplated by the Trust Agreement and related agreements.
Item 16. Exhibits
Exhibit No. Description
1.1 Form of Underwriting Agreement.*
4.1.1 Trust Agreement for PECO Energy Transition Trust.*
4.1.2 Form of Amended and Restated Trust Agreement for PECO Energy
Transition Trust.*
4.2 Certificate of Trust for PECO Energy Transition
Trust.*
4.3.1 Form of Indenture (supersedes Exhibit 4.3 to Amendment No. 1
to the Issuer's Registration Statement on Form S-3 filed
with the Securities and Exchange Commission on
September 18, 1998).*
4.3.2 Form of Series Supplement.*
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* Previously filed.
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4.4 Form of Transition Bonds.*
5.1 Opinion of Richards, Layton & Finger, P.A., relating to
legality of the Transition Bonds (supersedes Exhibit 5.1 to
Amendment No. 1 to the Issuer's Registration Statement on
Form S-3 filed with the Securities and Exchange Commission
on September 18, 1998).*
5.2 Opinion of Ballard Spahr Andrews & Ingersoll, LLP, relating
to legality of the Transition Bonds (supersedes Exhibit 5.2
to Amendment No. 2 to the Issuer's Registration Statement on
Form S-3 filed with the Securities and Exchange Commission
on February 22, 1999).
8.1 Opinion of Ballard Spahr Andrews & Ingersoll, LLP with
respect to material federal and state tax matters
(supersedes Exhibit 8.1 to Amendment No. 1 to the Issuer's
Registration Statement on Form S-3 filed with the Securities
and Exchange Commission on September 18, 1998).*
10.1 Form of Sale Agreement.*
10.2 Form of Master Servicing Agreement.*
10.3 Joint Petition for Full Settlement of PECO Energy Company's
Restructuring Plan and Related Appeals and Application for a
Qualified Rate Order and Application for Transfer of
Generation Assets dated April 29, 1998.*
23.1 Consent of Ballard Spahr Andrews & Ingersoll, LLP (included
in its opinions filed as Exhibit 5.2, which is an exhibit to
this Amendment No. 3 to the Issuer's Registration Statement,
and Exhibit 8.1, which was previously filed).
23.2 Consent of Richards, Layton & Finger, P.A. (included in its
opinion filed as Exhibit 5.1).*
23.3 Consent of PricewaterhouseCoopers LLP (previously known as
Coopers & Lybrand, L.L.P.).*
24.1 Power of Attorney (included on page II-4 of the original
Registration Statement).*
25.1 Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of The Bank of New York, as Bond Trustee
under the Indenture.*
27.1 Financial Data Schedule.*
99.1 Qualified Rate Order issued May 14, 1998.*
99.2 Internal Revenue Service Private Letter Ruling pertaining to
Transition Bonds.*
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* Previously filed.
Item 17. Undertakings
The undersigned Registrant on behalf of the PECO Energy Transition
Trust (the "Trust") hereby undertakes as follows:
(a) (1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement; (i) to include
any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as
amended; (ii) to reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) of the Securities Act of 1933,
as amended, if , in the aggregate, the changes in volume and price represent no
more than a twenty percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the effective
Registration Statement; and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in the Registration
Statement or any material change in such information in the Registration
Statement; provided, however, that (a)(1)(i) and (a)(1)(ii) will not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934, as amended, that are
incorporated by reference in this Registration Statement.
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(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended, each such post-effective amendment shall be
deemed to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering hereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) That, for purposes of determining any liability under the
Securities Act of 1933, as amended, each filing of the Registrant's annual
report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of
1934, as amended (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934, as amended) with respect to the Trust that is incorporated by reference in
the Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) That insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, may be permitted to directors, officers and
controlling persons of the registrant pursuant to the provisions described under
Item 15 above, or otherwise, the Registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, theretofore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer of
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
(d) That, for purposes of determining any liability under the
Securities Act of 1933, as amended, the information omitted from the form of
prospectus filed as part of this Registration Statement in reliance upon Rule
430A and contained in a form of prospectus filed by the registrant pursuant to
Rule 424(b)(i) or (4) or 497(h) under the Securities Act of 1933, as amended,
shall be deemed to be part of this Registration Statement as of the time it was
declared effective.
(e) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended, each post-effective amendment that contains
a form of prospectus shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(f) The undersigned registrant hereby undertakes to file an application
for the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act of 1939, as amended, in
accordance with the rules and regulations prescribed by the Commission under
Section 305(b)(2) of the Trust Indenture Act of 1939, as amended.
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INDEX TO EXHIBITS
5.2 Opinion of Ballard Spahr Andrews & Ingersoll, LLP, relating to
legality of the Transition Bonds (supersedes Exhibit 5.2 to
Amendment No. 2 to the Issuer's Registration Statement on Form S-3
filed with the Securities and Exchange Commission on February 22,
1999).
23.1 Consent of Ballard Spahr Andrews & Ingersoll, LLP (included in its
opinion filed as Exhibit 5.2).
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and that the security rating
requirement of Form S-3 will be met by the time of sale, and has duly caused
this Amendment No. 3 of the Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Philadelphia,
Commonwealth of Pennsylvania, on March 4, 1999.
PECO ENERGY TRANSITION TRUST
By: /s/ Diana Moy Kelly
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Diana Moy Kelly, Beneficiary Trustee
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 3 to the Registration Statement has been signed by the following
persons in the capacities and on the date indicated.
* Beneficiary Trustee March 4, 1999
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* By: /s/ Diana Moy Kelly
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Diana Moy Kelly, Beneficiary Trustee
Pursuant to a power of attorney previously held
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[Letterhead of Ballard Spahr Andrews & Ingersoll, LLP]
March 4, 1999
PECO Energy Transition Trust
c/o First Union Trust Company, National Association
One Rodney Square
920 King Street
Wilmington, Delaware 19801
Re: PECO Energy Transition Trust
Ladies and Gentlemen:
We have acted as special counsel to PECO Energy Transition Trust, a
Delaware statutory business trust (the "Trust"), in connection with the
preparation of the Registration Statement, as amended to the date hereof, filed
on Form S-3 (the "Registration Statement") with the Securities and Exchange
Commission (the "Commission") in connection with the registration under the
Securities Act of 1933, as amended, of Transition Bonds (the "Transition Bonds")
of the Trust to be offered from time to time as described in the form of the
prospectus (the "Prospectus") included as part of the Registration Statement.
Each capitalized term used in this letter and not defined has the meaning given
to such term in the Prospectus.
We are familiar with the proceedings taken and proposed to be taken by
the Trust in connection with the proposed authorization, issuance and sale of
the Transition Bonds. In this connection, we have examined and relied upon such
trust records and other documents, instruments and certificates and have made
such other investigation as we deemed appropriate as the basis for the opinion
set forth below. In our examination, we have assumed legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
documents submitted to us as certified, conformed or photostatic copies and the
authenticity of such original documents.
We have relied on the opinion of Richards, Layton & Finger, P.A. filed
contemporaneously herewith for all matters of Delaware law.
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PECO Energy Transition Trust
March 4, 1999
Page 2
The opinions expressed below are based on the following assumptions:
(a) The Registration Statement on Form S-3 filed by the Trust as
registrant with the Securities and Exchange Commission with respect to the
Transition Bonds (the "Registration Statement") will become effective;
(b) The proposed transactions are carried out on the basis set forth in
the Registration Statement;
(c) Prior to the issuance of any Series or Class of Transition Bonds:
(i) all necessary orders, approvals and authorizations for the
Trust's purchase from time to time of Intangible Transition
Property from PECO Energy Company, a Pennsylvania
corporation, in exchange for the proceeds from the issuance
of Transition Bonds will have been obtained by the Trust;
(ii) the Indenture will have been executed and delivered by the
Trust's authorized representative and The Bank of New York,
as trustee;
(iii) the Amended and Restated Trust Agreement will have been
executed and delivered by George Shicora and Diana Moy
Kelly, as Beneficiary Trustees, and The Bank of New York,
as Issuer Trustee, Delaware Trustee and Independent
Trustee;
(iv) the maturity dates, the bond rates, the redemption
provisions and the other terms of the Transition Bonds being
offered will be fixed in accordance with the terms of the
Indenture;
(v) the Sale Agreement between the Trust and PECO Energy
Company, as Seller, will have been executed and delivered;
and
(vi) the Master Servicing Agreement between the Trust and PECO
Energy Company, as Servicer, will have been executed and
delivered.
(d) The Indenture will be qualified in accordance with the provisions
of the Trust Indenture Act of 1939, as amended.
Based on the foregoing, we are of the opinion that, when properly
executed, authenticated, delivered and paid for as provided in the Indenture and
upon satisfaction of all
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PECO Energy Transition Trust
March 4, 1999
Page 3
conditions contained on the Indenture and the Underwriting Agreement (a form of
which is filed as Exhibit 1.1 to the Registration Statement), the Transition
Bonds will be legally issued, valid and binding obligations of the Trust.
We consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the references to this firm under the headings
"Legal Matters" and "Risk Factors" in the Prospectus included in the
Registration Statement.
Very truly yours,
