<PAGE>
As filed with the Securities and Exchange Commission on December 15, 1998
Registration No. 333-60907
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
___________________
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________________
COMED TRANSITIONAL FUNDING TRUST
(Issuer of Securities)
COMED FUNDING, LLC
(Depositor of the Trust as described herein)
(Exact name of Registrant as Specified in Its Certificate of Formation)
DELAWARE 36-4239488
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
COMED FUNDING, LLC
TEN SOUTH DEARBORN STREET, 37TH FLOOR, CHICAGO, ILLINOIS 60603, (312) 394-7937
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
___________________
RUTH ANN M. GILLIS, MANAGER
TEN SOUTH DEARBORN STREET, 37TH FLOOR, CHICAGO, ILLINOIS 60603, (312) 394-3149
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
___________________
With copies to:
Frederick L. Feldkamp, Esq. Kevin J. Hochberg, Esq. Daniel C. Bird, Esq.
Foley & Lardner Sidley & Austin Winston & Strawn
330 North Wabash Avenue, One First National Plaza 35 W. Wacker Drive
Chicago, Illinois 60611 Chicago, Illinois 60603 Chicago, Illinois 60601
(312) 755-1900 (312) 853-2085 (312) 558-7446
Approximate date of commencement of proposed sale to the public: As soon
as practicable after the effective date of this Registration Statement.
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. / /
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(d)
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. /X/ 333-60907
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE AGGREGATE PRICE AGGREGATE OFFERING REGISTRATION FEE(2)
SECURITIES TO BE REGISTERED REGISTERED PER UNIT(1) PRICE(1)
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Transitional Funding Trust Notes $4,000,000,000 100% $4,000,000,000 $1,112,017
- ---------------------------------------------------------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee.
(2) The registration fee was previously paid in connection with filings made on
August 7, 1998 and December 3, 1998.
___________________________
</TABLE>
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF INSURANCE AND DISTRIBUTION.
<TABLE>
<CAPTION>
<S> <C>
Securities and Exchange Commission filing fee . . . . . . . $1,112,017
Blue sky fees and expenses . . . . . . . . . . . . . . . . 12,375
Printing and engraving expenses . . . . . . . . . . . . . . 500,000
Accountants' fees and expenses . . . . . . . . . . . . . . 25,000
Trustees' fees and expenses . . . . . . . . . . . . . . . . 75,000
Legal fees and expenses . . . . . . . . . . . . . . . . . . 3,000,000
Rating Agency fees . . . . . . . . . . . . . . . . . . . . 525,000
Miscellaneous fees and expenses . . . . . . . . . . . . . 600,000
----------
Total . . . . . . . . . . . . . . . . . . . $5,849,392
----------
----------
</TABLE>
- ------------------------
All of the fees, costs and expenses set forth above will be paid by the
Trust.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Title 12, Section 3817 of the Delaware Code (the "Delaware Act")
provides that subject to such standards and restrictions, if any, as are set
forth in its governing instrument, a Delaware Business Trust may and has the
power to indemnify and hold harmless any trustee or beneficial owner or other
person from and against any and all claims and demands. The Delaware 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 indemnity which is otherwise
available to such person under the laws of the State of Delaware.
Section 6.07 of the Indenture provides that the Trust shall indemnify
the Indenture Trustee and its officers, directors, employees and agents against
any loss, liability or expense incurred by it in connection with the
administration of the trust and the performance of its duties under the
Indenture, except for any loss, liability or expense incurred as a result of the
Indenture Trustee's own willful misconduct, negligence or bad faith.
Section 18-108 of the Delaware Limited Liability Company Act provides
that subject to such standards and restrictions, if any, as are set forth in its
limited liability company agreement, a limited liability company may and has the
power to indemnify and hold harmless any member or other person from and against
any and all claims and demands whatsoever. Section 10.1 of the Limited
Liability Company Agreement of the Grantee provides that the Grantee shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the Grantee) by reason of the fact that he is or was a manager,
officer, employee or agent of the Grantee, or is or was serving at the request
of the Grantee as a manager, director, officer, employee or agent of another
company, partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Grantee, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful.
Certain provisions of the Illinois Business Corporation Act of 1983
(the "BCA") provide that the sole member of the Grantee, Commonwealth Edison
Company ("ComEd"), may, and in some circumstances must, indemnify the
II-1
<PAGE>
directors and officers of ComEd and of each subsidiary company against
liabilities and expenses incurred by any such person by reason of the fact
that such person was serving in such capacity, subject to certain limitations
and conditions set forth in the statute. ComEd's By-laws provide that ComEd
will indemnify its directors and officers, and any person serving as a
director or officer of another business entity at ComEd's request, to the
extent permitted by the statute. In addition, ComEd's Restated Articles of
Incorporation provide, as permitted by the BCA, that directors shall not be
personally liable for monetary damages for breach of fiduciary duty as a
director, except (i) for breaches of their duty of loyalty to ComEd or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section
8.65 of the BCA, and (iv) for transactions from which a director derived an
improper personal benefit.
ComEd has purchased liability insurance policies which indemnify
ComEd's directors and officers, the directors and officers of subsidiaries of
ComEd, the trustees of the Service Annuity Funds, and officers of ComEd serving
as directors and officers on behalf of ComEd with certain other entities,
against loss arising from claims by reason of their legal liability for acts as
such directors, officers or trustees, subject to certain limitations and
conditions set forth in the policies.
ComEd indemnifies assistant officers and certain other employees
against liabilities and expenses incurred by reason of acts performed in
connection with the operations of the various employee benefit systems of ComEd
and its subsidiaries.
The indemnification provided by the Delaware Code, the Delaware
Limited Liability Company Act, the Grantee's Limited Liability Company Agreement
and the Indenture is not exclusive of any other rights to which the Delaware
Trustee, the Indenture Trustee, the members and managers of the Grantee, the
officers and directors of ComEd and any beneficial owner of the Trust may be
entitled.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
- --------- --------------------
<S> <C>
**1.1 Form of Underwriting Agreement.
**3.1 Amended and Restated Certificate of Formation of the Registrant.
**3.2 Amended and Restated Limited Liability Company Agreement of the
Registrant.
**4.1 Trust Agreement.
**4.2 Form of Transitional Funding Trust Note.
**4.3 Form of Indenture.
**4.4 Form of Amendment No. 1 to Trust Agreement (Exhibit 4.1); to be
executed.
**5.1 Opinion of Foley & Lardner relating to legality of the Transitional
Funding Trust Notes.
5.2 Opinion of Sidley & Austin relating to the legality of the
Transitional Funding Trust Notes.
**8.1 Opinion of Sidley & Austin with respect to material federal tax
matters.
**10.1 Form of Sale Agreement.
**10.2 Form of Grant Agreement.
II-2
<PAGE>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
- --------- --------------------
**10.3 Form of Servicing Agreement.
**10.4 Form of Administration Agreement.
**10.5 Form of Remediation Agreement.
**23.1 Consent of Foley & Lardner (included in Exhibit 5.1).
23.2 Consent of Sidley & Austin (included in Exhibit 5.2 and Exhibit
8.1).
**23.3 Consent of Winston & Strawn.
**23.4 Consent of Arthur Andersen, LLP with respect to the financial
statements of the Registrant.
**23.5 Consent of Arthur Andersen, LLP with respect to the financial
statements of the Trust.
**24.1 Power of Attorney with respect to the Registrant (included on page
II-5 of Amendment No. 1 to the Registration Statement).
**24.2 Power of Attorney with respect to the Trust (included on page II-5
of Amendment No. 2 to the Registration Statement).
**25 Form T-1.
**99.1 Application for Transitional Funding Order.
**99.2 Transitional Funding Order.
**99.3 Internal Revenue Service Private Letter Ruling pertaining to the
Notes.
- ---------------
**Previously filed.
</TABLE>
ITEM 17. UNDERTAKINGS.
The Registrant, on behalf of the ComEd Transitional Funding Trust (the
"Trust") hereby undertakes as follows:
(a)(1) To do, or, pursuant to the Administration Agreement, to cause
Commonwealth Edison Corporation (the "Administrator") to do the following:
(i) to file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement; (ii) to include any
prospectus required by Section 10(a)(3) of the Securities Act of 1933; (iii)
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 a
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20%
change in the maximum offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement); and (iv) to
include any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change to
such information in the Registration Statement; provided, however, that
(a)(1)(ii) and (a)(1)(iii) 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 that are incorporated by reference in this
Registration Statement.
II-3
<PAGE>
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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, or to cause Administrator 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, each filing of the Trust's annual report pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 (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), 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 to be 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 may be permitted to the Delaware Trustee, the Indenture
Trustee, the managers and members of the Grantee and the directors and officers
of the Administrator pursuant to the provisions described in Item 15 above, or
otherwise, the Registrant, the Grantee and the Administrator have been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, 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 or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such Delaware Trustee, Indenture Trustee, the
managers or members of the Grantee, or the directors or officers of the
Administrator 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 each 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, 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 hereof.
(f) The undersigned Registrant hereby undertakes to file an application
for the purpose of determining the eligibility of the Indenture 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.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant and the Trust have duly caused this Post-Effective Amendment No. 1 of
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Chicago, State of Illinois, on this
15th day of December, 1998.
COMED FUNDING, LLC
By: /s/ Ruth Ann M. Gillis
-------------------------------------
Ruth Ann M. Gillis, MANAGER
COMED TRANSITIONAL FUNDING TRUST
By: /s/ Ruth Ann M. Gillis
-------------------------------------
Ruth Ann M. Gillis, BENEFICIARY TRUSTEE
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Post-Effective Amendment No. 1 to the Registration Statement has been
signed by the following person in the capacity and on the date indicated.
<TABLE>
<CAPTION>
<S> <C> <C>
By: /s/ Ruth Ann M. Gillis
--------------------------------------
Ruth Ann M. Gillis, MANAGER Manager December 15, 1998
Pursuant to a power of
attorney previously held.
By: /s/ Ruth Ann M. Gillis
--------------------------------------
Ruth Ann M. Gillis, BENEFICIARY TRUSTEE Beneficiary December 15,1998
Pursuant to a power of Trustee
attorney previously held.
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIAL
EXHIBIT PAGE
NUMBER EXHIBIT DESCRIPTION NUMBER
- --------- ------------------- ----------
<S> <C> <C>
**1.1 Form of Underwriting Agreement.
**3.1 Amended and Restated Certificate of Formation of the
Registrant.
**3.2 Amended and Restated Limited Liability Company Agreement
of the Registrant.
**4.1 Trust Agreement.
**4.2 Form of Transitional Funding Trust Note.
**4.3 Form of Indenture.
**4.4 Form of Amendment No. 1 to Trust Agreement (Exhibit
Number 4.1); to be executed.
**5.1 Opinion of Foley & Lardner relating to legality of the
Transitional Funding Trust Notes.
5.2 Opinion of Sidley & Austin relating to the legality of
the Transitional Funding Trust Notes.
**8.1 Opinion of Sidley & Austin with respect to material
federal tax matters.
**10.1 Form of Sale Agreement.
**10.2 Form of Grant Agreement.
**10.3 Form of Servicing Agreement.
**10.4 Form of Administration Agreement.
**10.5 Form of Remediation Agreement.
**23.1 Consent of Foley & Lardner (included in Exhibit 5.1).
23.2 Consent of Sidley & Austin (included in Exhibit 5.2 and
Exhibit 8.1).
**23.3 Consent of Winston & Strawn.
**23.4 Consent of Arthur Andersen, LLP with respect to the
financial statements of the Registrant.
**23.5 Consent of Arthur Andersen, LLP with respect to the
financial statements of the Trust.
**24.1 Power of Attorney with respect to the Registrant
(included on page II-5 of Amendment No. 1 to the
Registration Statement).
**24.2 Power of Attorney with respect to the Trust (included on
page II-5 of Amendment No. 2 to the Registration
Statement).
**25 Form T-1.
**99.1 Application for Transitional Funding Order.
**99.2 Transitional Funding Order.
II-6
<PAGE>
SEQUENTIAL
EXHIBIT PAGE
NUMBER EXHIBIT DESCRIPTION NUMBER
- --------- ------------------- ----------
**99.3 Internal Revenue Service Private Letter Ruling
pertaining to the Notes.
- ---------------
**Previously filed.
</TABLE>
II-7
<PAGE>
EXHIBIT 5.2
LEGAL OPINION
SIDLEY & AUSTIN
One First National Plaza
Chicago, Illinois 60603
December 16, 1998
ComEd Funding, LLC
ComEd Transitional Funding Trust
c/o ComEd Funding, LLC
Ten South Dearborn Street--37th Floor
Chicago, Illinois 60603
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-3 (Registration
No. 333-60907) as amended (such Registration Statement, as so amended, being
referred to herein as the "REGISTRATION STATEMENT") filed by ComEd Funding,
LLC ("FUNDING"), a Delaware limited liability company and the depositor to
ComEd Transitional Funding Trust, a Delaware business trust (the "TRUST"),
with the Securities and Exchange Commission (the "SEC") under the Securities
Act of 1933, as amended (the "SECURITIES ACT"). The Registration Statement
was declared effective by the SEC on December 4, 1998. The Registration
Statement relates to the registration of Transitional Funding Trust Notes
(the "NOTES") of the Trust to be offered from time to time as described in
the prospectus (the "PROSPECTUS") included as a part of the Registration
Statement. The Notes are being issued under the Indenture dated as of
December 16, 1998 (substantially in the form filed as an exhibit to the
Registration Statement) (the "INDENTURE") between the Trust and Harris Trust
and Savings Bank, as trustee (the "INDENTURE TRUSTEE").
We are familiar with the proceedings taken to date with respect to
the authorization, issuance and sale of the Notes and have examined the
Registration Statement (including all amendments thereto) and such records,
documents and questions of law, and satisfied ourselves as to such matters of
fact, as we have considered relevant, necessary and appropriate as a basis
for the opinion expressed below. In such examination, we have assumed the
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 Foley & Lardner filed on December 4, 1998 as Exhibit
5.1 to the Registration Statement as to all matters of Delaware law relevant
to our opinion.
<PAGE>
ComEd Funding, LLC
ComEd Transitional Funding Trust
December 16, 1998
Page 2
Based on the foregoing, upon delivery to the purchasers of the
Notes against payment of the agreed consideration therefor, the Notes will be
legally issued and binding obligations of the Trust (except to the extent
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar laws
affecting the enforcement of creditors' rights generally and by the effect of
general principles of equity, regardless of whether enforceability is
considered in a proceeding in equity or at law).
We do not find it necessary for the purposes of this opinion to
cover, and accordingly we express no opinion as to, the application of the
securities or blue sky laws of the various states to the issuance and sale of
the Notes.
We hereby consent to the filing of this opinion as an Exhibit to
the Registration Statement and to all references to our firm included in or
made a part of the Registration Statement. In giving such consent, we do not
thereby admit that we are within the category of persons whose consent is
required by Section 7 of the Securities Act or the related Rules promulgated
by the SEC.
Very truly yours,
/s/ Sidley & Austin
