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As filed with the Securities and Exchange Commission on November 2, 2000
File No.1.070-09693
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________________________
AMENDMENT NO. 2
TO
FORM U-1 APPLICATION-DECLARATION
UNDER
THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
_________________________________
Exelon Corporation
(and Subsidiaries identified on Signature Page)
10 South Dearborn Street
37/th/ Floor
Chicago, IL 60603
(Name of company filing this statement and address of principal executive
offices)
________________________________________________________________________________
John W. Rowe Corbin A. McNeill, Jr.
Co-Chief Executive Officer Co-Chief Executive Officer
Exelon Corporation Exelon Corporation
10 South Dearborn Street 2301 Market Street
37/th/ Floor P.O. Box 8699
Chicago, IL 60603 Philadelphia, PA 19101
_________________________________
The Commission is requested to send copies of all notices, orders and
communications in connection with this Application-Declaration to:
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James W. Durham
Senior Vice President and Acting
General Counsel
Exelon Corporation
2301 Market Street
P.O. Box 8699
Philadelphia, PA 19101
William J. Harmon Kevin P. Gallen
Jones, Day, Reavis & Pogue Morgan, Lewis & Bockius LLP
77 West Wacker 1800 M Street, N.W.
Suite 3500 Washington, DC 20036-5869
Chicago, IL 60601
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Table of Contents
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Item 1. Description of the Proposed Transaction....................................................... 1
A. Introduction and General Request.............................................................. 1
1. Introduction............................................................................. 1
2. General Request.......................................................................... 1
B. Description of the Parties to the Transaction................................................. 2
C. Overview of the Financing Request............................................................. 3
D. Parameters for Financing Authorization........................................................ 5
1. Effective Cost of Money.................................................................. 5
2. Maturity of Debt and Final Redemption on Preferred Securities............................ 5
3. Issuance Expenses........................................................................ 6
4. Use of Proceeds.......................................................................... 6
5. Financial Condition...................................................................... 6
E. Description of Specific Types of Financing.................................................... 8
1. Exelon External Financing................................................................ 8
(a) Common Stock................................................................... 8
i. General................................................................... 8
ii. Acquisitions.............................................................. 9
(b) Preferred Securities........................................................... 10
(c) Long-Term Debt................................................................. 10
(d) Short-Term Debt................................................................ 12
(e) Total Financing Sought......................................................... 13
(f) Financing Risk Management Devices.............................................. 13
i. Interest Rate Risk........................................................ 13
ii. Anticipatory Hedges....................................................... 14
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iii. Accounting Standards............................................................. 14
2. Financing Subsidiaries................................................................................ 14
3. Utility Subsidiary Financing.......................................................................... 16
(a) Short-Term Debt........................................................................ 17
(b) Genco Financing and Assumption of Indebtedness......................................... 17
(c) Financing Risk Management Devices...................................................... 19
4. Non-Utility Subsidiary Financings..................................................................... 20
5. Guarantees, Intra-system Advances and Intra-System Money Pool......................................... 21
(a) Guarantee and Intra-system Advances.................................................... 21
(b) Non-Utility Subsidiary Guarantees...................................................... 23
(c) Authorization and Operation of the Money Pools......................................... 23
i. Utility Money Pool................................................................ 24
ii. Non-Utility Money Pool............................................................ 26
iii. Other Contributions to Money Pool................................................. 26
iv. Operation of the Money Pools and Administrative Matters........................... 26
v. Use of Proceeds................................................................... 27
(d) Intra-System Financing................................................................. 27
6. Changes in Capital Stock of Majority Owned Subsidiaries............................................... 28
7. Conduit Financing of Genco and Enterprises through Ventures and Exelon Energy Delivery................ 28
F. Payment of Dividends out of Capital or Unearned Surplus by ComEd, PECO or Exelon........................... 28
1. Request for Authority to Pay Dividends................................................................ 28
2. Reasons for Reductions in Retained Earnings........................................................... 30
3. Standards for Approval of Request..................................................................... 32
G. Rule 53 and Rule 54 Analysis............................................................................... 35
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1. Rule 53 Requirements................................................................... 35
2. Exelon's Compliance with Rule 53 Requirements.......................................... 36
3. Exelon Rule 53 Undertakings............................................................ 50
4. Rule 54 Analysis....................................................................... 50
H. Dividend Reinvestment Plan.................................................................. 50
I. Employee Stock-Based Plans.................................................................. 51
J. Payment Of Dividends by Non-Utility Subsidiaries Out Of Capital And Unearned Surplus........ 55
K. Filing of Certificates of Notification...................................................... 55
Item 2. Fees, Commissions and Expenses.............................................................. 56
Item 3. Applicable Statutory Provisions............................................................. 57
Item 4. Regulatory Approvals........................................................................ 57
Item 5. Procedure................................................................................... 57
Item 6. Exhibits and Financial Statements........................................................... 57
A. Exhibits.................................................................................... 57
B. Financial Statements........................................................................ 61
Item 7. Information as to Environmental Effects..................................................... 61
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Item 1. Description of the Proposed Transaction
A. Introduction and General Request
1. Introduction
Exelon Corporation, a Pennsylvania Corporation ("Exelon"), filed
an Application-Declaration on Form U-1 (File No.70-09645) on March 16, 2000 (as
amended, the "Merger U-1") with the Securities and Exchange Commission (the
"Commission") under Section 9(a)(2) and Section 10 of the Public Utility Holding
Company Act of 1935, as amended (the "Act"), seeking approvals relating to the
proposed acquisition by Exelon of all the common stock of Commonwealth Edison
Company ("ComEd"), an electric utility company, and currently a subsidiary of
Unicom Corporation ("Unicom"); of PECO Energy Company ("PECO"), an electric and
gas utility company; of Exelon Generation Company, LLC ("Genco"), to which the
generating assets of ComEd and PECO will be transferred, each of which will be
an electric utility company; and, indirectly of the public utility subsidiaries
of ComEd and PECO. The Merger (as defined in the Merger U-1) was completed
October 20, 2000. Exelon filed its notice of intent to register as a holding
company under the Act on October 20, 2000, subsequent to the Commission issuing
its order approving the Merger on October 19, 2000 (HCAR No. 35-27256; 70-
9645). The transaction contemplated in the Merger U-1 are referred to therein
as the Merger and the Restructurings and those terms are used herein with the
same meanings.
Each of the entities that will be directly or indirectly owned
subsidiaries of Exelon upon consummation of the acquisition described in the
Merger U-1 is referred to herein individually as a "Subsidiary" and collectively
as "Subsidiaries." For purposes hereof, "Subsidiary" and "Subsidiaries" shall
also include other direct or indirect subsidiaries that Exelon may form after
the Merger with the approval of the Commission, pursuant to the Rule 58
exemption or pursuant to Sections 32, 33 or 34 of the Act. Exelon and the
Subsidiaries are sometimes hereinafter collectively referred to as the "Exelon
System" or as the "Applicants." For purposes of section 1.E.5., "Money Pool,"
the term "Subsidiary" or "Subsidiaries" shall include only the companies
specifically referred to on the cover and named on the signature page of this
Application/Declaration. The Commission is asked to reserve jurisdiction over
the participation in the relevant money pool of future companies formed by
Exelon until a specific post-effective amendment is filed, naming the subsidiary
to be added as a participant in the relevant money pool.
2. General Request
This Application/Declaration seeks the authorization and approval
of the Commission with respect to the ongoing financing activities, the
provision of intra-system services and guarantees, and other matters pertaining
to Exelon and its Subsidiaries after giving effect to the Merger and
registration of Exelon as a holding company./1/ Specifically, this Application-
Declaration seeks the following authorizations and approvals of the Commission:
____________________
1 Exelon has filed a separate Application-Declaration on Form U-1 in Docket
70-9691 (the "Investment U-1") seeking authorization to make certain
acquisitions in non-utility subsidiaries and related matters.
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. In order to ensure that the Exelon System is able to meet
its capital requirements immediately following registration
and plan its future financing, Exelon and its Subsidiaries
hereby request authorization for financing transactions for
the period beginning with the effective date of an order
issued pursuant to this filing and continuing to and
including March 31, 2004 (the "Authorization Period").
. Exelon also requests that the Commission approve the
issuance of 21 million shares of common stock under dividend
reinvestment and stock-based management incentive and
employee benefit plans pursuant to Sections 6(a) and 7 of
the Act, all as more specifically described below.
. Exelon also requests the Commission approve the aggregate
financing request in the amount of $8 billion/2/ outstanding
at any time, representing financing authorizations relating
to equity securities, preferred securities and debt, plus an
aggregate $2.7 billion outstanding at any time in short-term
financing capacity for the Utility Subsidiaries as more
fully described in this Application-Declaration for Exelon
and its Subsidiaries.
. Exelon also requests the Commission approve the issuance by
Exelon and certain Subsidiaries of guarantees in an
aggregate amount not to exceed $4.5 billion outstanding at
any time in exposure as more fully described below.
. Exelon also requests the authorization and approval of the
Commission under other sections of the Act and applicable
rules and regulations of the Commission promulgated
thereunder with respect to intra-system guarantees, the
formation and operation of a Utility Money Pool and a Non-
Utility Money Pool and the payment of dividends out of
capital or unearned surplus by Exelon and certain
Subsidiaries as more fully described in this Application-
Declaration.
B. Description of the Parties to the Transaction
Following the consummation of the Merger and Restructurings,
Exelon will have three principal operating public utility company subsidiaries
(the "Utility Subsidiaries")/3/:
. PECO, a public utility company engaged (i) in the transmission,
distribution and sale of electricity and (ii) in the purchase and
sale of natural gas in Pennsylvania;
________________________
/2/ Exelon seeks approval for additional financing in the amount of $4 billion
at the present time and requests the Commission to reserve jurisdiction with
respect to the balance of $4 billion until such time as the record is complete.
As noted below, Exelon will initially be subject to an additional limitation
that short-term indebtedness issued under the authorization sought herein not
exceed $3 billion at any time outstanding. Exelon requests the Commission
reserve jurisdiction on a request that this additional limitation be eliminated
as described below.
/3/ For purposes of this filing, "Utility Subsidiaries" also includes
Commonwealth Edison Company of Indiana, PECO Energy Power Company, Susquehanna
Power Company and Susquehanna Electric Company.
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. ComEd, a public utility company engaged in the transmission,
distribution and sale of electricity in Illinois;
. Genco, a public utility company engaged in the generation
and sale of electricity in Pennsylvania, Illinois and
elsewhere./4/
In addition, Exelon will have the following other principal
Subsidiaries./5/
. Exelon Business Services Company ("Exelon Services"), the
service company for the Exelon System;
. Exelon Energy Delivery Company ("Exelon Energy Delivery")
which will serve as a holding company for ComEd and PECO;
. Exelon Ventures Company ("Ventures"), a non-utility company
and a first tier Subsidiary of Exelon which will have as
wholly-owned subsidiaries, Genco and Exelon Enterprises
Company, LLC ("Enterprises").; and
. Enterprises, the principal Subsidiary through which Exelon
will conduct its non-utility businesses. Enterprises will
have as subsidiaries the existing non-utility subsidiaries
of Unicom and PECO, other than PECO's interest in AmerGen.
A list of Exelon's other Subsidiaries is set forth in the Merger U-1
and the exhibits thereto. All of Exelon's direct and indirect Subsidiaries,
other than the Utility Subsidiaries, are herein called the "Non-Utility
Subsidiaries."
C. Overview of the Financing Request
The Applicants hereby request authorization to engage in the
financing transactions set forth herein during the Authorization Period. The
approval by the Commission of this Application/Declaration will give the
Applicants the flexibility that will allow them to respond quickly and
efficiently to their financing needs and to changes in market conditions,
allowing them to efficiently and effectively carry on competitive business
activities designed to provide benefits to customers and shareholders. Approval
of this Application/Declaration is
4 See the Merger U-1 regarding the corporate structure of Genco.
5 In the Merger U-1, Exelon seeks authority to create Exelon Energy Delivery
Company which would own the common stock of ComEd and PECO currently held by
Exelon.
6 As described in the Merger U-1, Ventures is necessary to achieve the
desired corporate reorganization of the Unicom non-utility Subsidiaries and the
PECO non-utility Subsidiaries without incurring substantial income tax
liability.
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consistent with existing Commission precedent, both for newly registered holding
company systems/7/ and holding company systems that have been registered for a
longer period of time./8/
The financing authorizations requested herein relate to:
(1) (a) external issuances by Exelon of common stock, preferred
stock and preferred stock equivalent securities
(collectively "preferred securities"), long-term debt,
short-term debt, and other securities, (b) guarantees of
obligations of affiliated or unaffiliated persons in favor
of other unaffiliated persons, and (c) the entering into by
Exelon of transactions to manage interest rate risk
("hedging transactions");/9/
(2) issuances of securities, guarantees and the entering into of
hedging transactions by the Utility Subsidiaries to the
extent not exempt pursuant to Rule 52;
(3) issuances by Non-Utility Subsidiaries of securities and
authority to enter into hedging transactions which are not
exempt pursuant to Rule 52;
(4) the establishment of a utility money pool (the "Utility
Money Pool") and a non-utility money pool (the "Non-Utility
Money Pool") and the issuance of intra-system guarantees by
Exelon and the Non-Utility Subsidiaries on behalf of the
Subsidiaries;
(5) the continuation of existing intra-system debt and
guarantees;
(6) the ability of 50% or more owned Subsidiaries to alter their
capital stock in order to engage in financing transactions
with their parent company;
(7) the ability of Exelon and its Subsidiaries to pay dividends
out of capital or unearned surplus;
__________________
7 See e.g., New Century Energies, Inc., Holding Co. Act Release No. 35-26750
(Aug. 1, 1997); Ameren Corporation, Holding Co. Act Release No. 35-26809 (Dec.
30, 1997); Conectiv, Inc., Holding Co. Act Release No. 35-26833 (Feb. 26, 1998);
Dominion Resources, Inc., Holding Co. Act Release No. 35-27112 (Dec. 15, 1999);
and SCANA Corporation, Holding Co. Act Release No. 35-27135 (Feb. 14, 2000).
8 See e.g., The Columbia Gas System, Inc., Holding Co. Act Release No.
35-26634 (Dec. 23, 1996); Gulf States Utilities Company, Holding Co. Act Release
No. 35-26451 (Jan. 16, 1996).
9 "Hedging Transactions" include only those transactions related to financing
activities. Engaging in futures and other commodity related risk management by
Exelon and its subsidiaries constitute part of their normal business activities
and as such do not require Commission approval. See Southern Energy, Inc.,
Holding Co. Act Release No. 35-27020 (May 13, 1999); Entergy Corp., Holding Co.
Act Release No. 35-26812 (Jan. 6, 1998); New Century Energies, Holding Co. Act
Release No. 35-26748 (Aug. 1, 1997); National Fuel Gas Co., Holding Co. Act
Release No. 35-2666 (Feb. 12, 1997).
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(8) the formation of financing entities and the issuance by such
entities of securities otherwise authorized to be issued and
sold pursuant to this Application/Declaration or pursuant to
applicable exemptions under the Act, including intra-system
guarantees of such securities and the retention of existing
financing entities; and
(9) issuance of debt or equity securities by Exelon Energy
Delivery and Ventures for the purpose of acting as a conduit
for additional financing to Genco and Enterprises.
D. Parameters for Financing Authorization
Authorization is requested herein to engage in certain financing
transactions during the Authorization Period for which the specific terms and
conditions are not at this time known, and which may not be covered by Rule 52,
without further prior approval by the Commission. The following general terms
will be applicable where appropriate to the financing transactions requested to
be authorized hereby:
1. Effective Cost of Money.
The effective cost of money on long-term debt borrowings
occurring pursuant to the authorizations granted under this
Application/Declaration will not exceed the greater of (a) 350 basis points over
the comparable term U.S. Treasury securities or (b) a gross spread over U.S.
Treasuries that is consistent with similar securities of comparable credit
quality and maturities issued by other companies. The effective cost of money on
short-term debt borrowings pursuant to authorizations granted under this
Application/Declaration will not exceed the greater of (a) 350 basis points over
the comparable term London Interbank Offered Rate ("LIBOR") or (b) a gross
spread over LIBOR that is consistent with similar securities of comparable
credit quality and maturities issued by other companies./10/ The dividend rate
on any series of preferred securities will not exceed the greater of (a) 500
basis points over the yield to maturity of a U.S. Treasury security having a
remaining term equal to the term of such series of preferred securities or (b) a
rate that is consistent with similar securities of comparable credit quality and
maturities issued by other companies.
2. Maturity of Debt and Final Redemption on Preferred
Securities.
The maturity of indebtedness will not exceed 50 years. All preferred
securities will be redeemed no later than 50 years after the issuance thereof.
_______________
10 See The Southern Company, Holding Company Act Release No. 35-27134 (Feb. 9,
2000).
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3. Issuance Expenses.
The underwriting fees, commissions or other similar remuneration
paid in connection with the non-competitive issue, sale or distribution of a
security pursuant to this Application/Declaration (not including any original
issue discount) will not exceed 5% of the principal or total amount of the
security being issued.
4. Use of Proceeds.
The proceeds from the sale of securities in external financing
transactions will be used for general corporate purposes including:
. the financing, in part, of the capital expenditures of the Exelon
System;
. financing the cash portion of the consideration paid in the
Merger;
. the financing of working capital requirements of the Exelon
System;
. the acquisition, retirement or redemption pursuant to Rule 42 of
securities previously issued by Exelon or its Subsidiaries
without the need for prior Commission approval; and
. other lawful purposes, including direct or indirect investment in
companies authorized under the Merger U-1 and under the
Investment U-1, including Rule 58 companies, other subsidiaries
approved by the Commission, Exempt Wholesale Generators ("EWGs"),
Foreign Utility Companies ("FUCOs") and Exempt Telecommunications
Companies ("ETCs")./11/ The Applicants represent that no such
financing proceeds will be used to acquire or form a new
subsidiary unless such financing is consummated in accordance
with an order of the Commission or an available exemption under
the Act.
5. Financial Condition
Exelon's principal utility operating subsidiaries -- ComEd and PECO are
financially sound and each have investment grade ratings from major national
rating agencies. Exelon will also be a financially sound company./12/
Furthermore, Exelon has an investment grade rating (a corporate rating of A-from
S & P and an issuer rating of Baa3 from Moody's and a senior unsecured rating of
BBB from Fitch). The anticipated consolidated common equity of Exelon when it is
formed in the Merger,
_____________________
/11/ Exelon will make additional investments in EWGs and FUCOs during the
Authorization Period. Accordingly, Rules 53 and 54 apply to this Application-
Declaration. Compliance with these rules is addressed below.
/12/ As a newly formed company, Genco may not have a rating from nationally
recognized rating agencies immediately when it commences operations. As noted
herein, the absence of an investment grade rating will likely increase the
necessity for Genco to receive financial support from Exelon.
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including securitization indebtedness of the Utility Subsidiaries,/13/ the $510
million borrowing necessary to pay the cash portion of the merger consideration,
short-term debt and current maturities of long-term debt is 29.7% of total
Consolidated Capitalization (common equity, preferred stock and long-term and
short-term debt, including current maturities of long-term debt)./14/ Exelon
commits that it will achieve Consolidated Capitalization, including
securitization debt, of at least 30% by December 31, 2002 and, at all times
thereafter during the Authorization Period, its common equity (as reflected on
the balance sheets contained in its most recent 10-K or 10-Q filed with the
Commission pursuant to the 1934 Act) will be at least 30% of its Consolidated
Capitalization and it will maintain from and after December 31, 2002 at least an
investment grade corporate or senior unsecured debt rating by at least one
nationally recognised rating agency./15/ Further, ComEd commits that it will
maintain common equity of at least 30% of its capitalization (calculated in the
same manner as described above) and at least an investment grade senior secured
debt rating by at least one nationally recognized rating agency and PECO commits
that it will maintain common equity of at least 30% of its capitalization
(calculated in the same manner provided, however, that PECO may exclude
securitization debt from the calculation of indebtedness and total
capitalization) and at least an investment grade rating by one nationally
recognized rating agency. The consequences of failing to maintain an investment
grade rating or common equity of at least 30% of Consolidated Capitalization
when required is that Exelon and its Subsidiaries (or if such failure were only
by ComEd or PECO, such company) would not be authorized to issue securities in a
transaction subject to Commission approval except for securities which would
result in an increase in such common equity percentage or restoration of such
rating. /16/ Exelon represents that it also will be in compliance with its
Modified Rule 53 Test as described in
__________________
/13/ All of the outstanding securitization bonds of ComEd and PECO are currently
rated "AAA." The structure of these financings, the orders of the respective
State commissions and the statutory provisions of each State ensure that there
will be sufficient cash flow from a dedicated portion of payments made by
utility customers to at all times provide for principal and interest on the
securitization bonds. The rates paid by customers are subject to adjustment in
accordance with procedures of the respective states to ensure that amount
collected are sufficient to meet debt service and other requirements under the
securitization financings. See Utility Stranded Costs: Rating the Securitization
of Transition Tariffs, Special Report, FitchIBCA (September 24, 1998) (available
at www.FitchIBCA.com).
/14/ See footnote 15 below for the reasons it is appropriate to consider the
special status securitization debt for purposes of consideration of the
financial condition of Exelon and its Utility Subsidiaries. The anticipated
consolidated capitalization takes into account the adjustments resulting from
purchase accounting for the Merger and the effects of the Restructuring
transactions. Debt issuance approved hereby could result in the Consolidated
Capitalization going below the 29.7% level but as noted above, Exelon will
achieve a ratio of not less than 30% by December 31, 2002.
/15/ The Commission has recognized that it is appropriate to consider
securitization debt in the calculation of capitalization to determine compliance
with its traditional test of a minimum equity component of capitalization of
30%. See West Penn Power Co., Holding Co. Act Release No. 35-27091 (Oct. 19,
1999)(exemption from 30% equity standard granted where utility's equity ratio
was 15% because of transition bonds and other factors; excluding transition
bonds, utility would satisfy 30% test). This approach is consistent with the
rating agencies analysis of the impact of securitization on a utility's capital
structure. In its September 23, 1999 rating review of PECO, Moody's noted:
"The major advantages of securitization from a credit perspective are the lower
financing costs of higher rated securities and the greater certainty of recovery
of stranded costs. As we analyze PECO post-securitization, Moody's will treat
the securitized debt as fully non-recourse to the company. Moody's has grown
comfortable with this analytical approach despite the fact that the Securities
and Exchange Commission's guidelines require the debt to appear on the company's
balance sheet. Under this approach, we will adjust cash flow downward to
account for the setting aside of cash flows derived from collection of
reimbursable transition charges to serve the fixed charges associated with the
securitization bonds. This approach, we believe, better reflects the cash flow
streams available for protection of PECO's traditional fixed income investors."
/16/ Securities issuances not subject to Commission approval such as State
commission approved utility financing or financings for ETCs would be
unaffected.
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Item 1.G. below. A detailed discussion of the financial condition of the Exelon
System is presented below.
Notwithstanding the commitments described in the preceding paragraph
regarding investment grade ratings and the 30% common equity requirements,
Exelon, ComEd and PECO each request that the Commission authorize the continued
issuance of securities as described herein through the Authorization Period in
circumstances where the issuer is not in compliance with one or more of such
requirements but will comply with terms described in a post-effective amendment
hereto. Exelon, ComEd and PECO request that the Commission reserve jurisdiction
over the approval sought in this paragraph pending completion of the record.
E. Description of Specific Types of Financing
1. Exelon External Financing
Exelon requests authorization to obtain funds externally through sales
of common stock, preferred securities, long-term debt and short-term debt
securities. With respect to common stock, Exelon also requests authority to
issue common stock to third parties in consideration for the acquisition by
Exelon or a Non-Utility Subsidiary of equity or debt securities of a company
being acquired pursuant to Rule 58 or Sections 32, 33 or 34 of the Act. In
addition, Exelon seeks the flexibility to enter into certain hedging
transactions to manage rate risk and for other lawful purposes.
(a) Common Stock
Exelon is authorized under its restated articles of incorporation to
issue 500,000,000 shares of common stock (no par value)./17/ Exelon will issue
approximately 328,000,000 shares of common stock in connection with the
Merger./18/ The aggregate amount of financing obtained by Exelon during the
Authorization Period from issuance and sale of common stock (other than for
employee benefit plans or stock purchase and dividend reinvestment plans as
discussed below and other than shares issued in the Merger), when combined with
the long-term debt, short-term debt and preferred securities issued and then
outstanding, as described in this section, shall not exceed $8 billion for the
uses set forth in Item.1.D. above. Exelon common stock issued in any of the
circumstances described in Item 1.E.1.(a)(ii) below relating to acquisitions of
companies shall be valued, for purposes of determining compliance with the
aggregate financing limitation set out herein, at its market value as of the
date of issuance (or if appropriate at the date of a binding contract providing
for the issuance thereof).
i. General
Subject to the foregoing, Exelon may issue and sell common stock or
options, warrants or other stock purchase rights exercisable for common stock.
Exelon may also buy back shares of such stock or such options during the
Authorization Period in accordance with Rule 42.
______________
/17/ Under its Restated Articles of Incorporation, Exelon is authorized to issue
600,000,000 shares consisting of 500,000,000 shares of common stock and
100,000,000 shares of preferred stock.
/18/ This figure assumes all options and restricted stock will be exercised for
outstanding shares of PECO and Unicom, as the case may be and converted to
Exelon shares in the Merger. To the extent these options or restricted shares
do not result in the issuance of Unicom or PECO common stock prior to the
Merger, the number of shares issued in the Merger will be lower.
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Common stock financings may be effected pursuant to underwriting
agreements of a type generally standard in the industry. Public distributions
may be pursuant to private negotiation with underwriters, dealers or agents as
discussed below or effected through competitive bidding among underwriters. In
addition, sales may be made through private placements or other non-public
offerings to one or more persons. All such common stock sales will be at rates
or prices and under conditions negotiated or based upon, or otherwise determined
by, competitive capital markets.
Exelon may sell common stock covered by this Application-Declaration
in any one of the following ways: (i) through underwriters or dealers; (ii)
through agents; (iii) directly to a limited number of purchasers or a single
purchaser; or (iv) directly to employees (or to trusts established for their
benefit), shareholders and others through its employee benefit plans or stock
purchase and dividend reinvestment plans. If underwriters are used in the sale
of the securities, such securities will be acquired by the underwriters for
their own account and may be resold from time to time in one or more
transactions, including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of sale. The securities may
be offered to the public either through underwriting syndicates (which may be
represented by a managing underwriter or underwriters designated by Exelon) or
directly by one or more underwriters acting alone. The securities may be sold
directly by Exelon or through agents designated by Exelon from time to time. If
dealers are utilized in the sale of any of the securities, Exelon will sell such
securities to the dealers as principals. Any dealer may then resell such
securities to the public at varying prices to be determined by such dealer at
the time of resale. If common stock is being sold in an underwritten offering,
Exelon may grant the underwriters thereof a "green shoe" option permitting the
purchase from Exelon at the same price of additional shares then being offered
solely for the purpose of covering over-allotments.
A very small amount of ComEd common stock will not be held by Exelon.
This stock has been and will be acquired by the holders thereof upon conversion
of certain outstanding warrants or upon conversion of ComEd convertible
preferred stock. Unicom extended a standing offer to these holders of ComEd
common stock to exchange the stock for Unicom common stock. Exelon wishes to
continue this program.
ii. Acquisitions
Under Rule 58 and Sections 32, 33 and 34 of the Act, Exelon is or will
be authorized to acquire securities of companies engaged in functionally related
businesses, "energy-related businesses" as described in Rule 58, EWGs, FUCOs and
ETCs. Exelon may also issue common stock or options, warrants or other stock
purchase rights exercisable for common stock in public or privately-negotiated
transactions as consideration for the equity securities or assets of other
companies, provided that the acquisition of any such equity securities
9
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or assets has been authorized in the Investment U-1 proceeding or in a separate
proceeding or is exempt under the Act or the rules thereunder./19/
(b) Preferred Securities.
Exelon seeks to have the flexibility to issue its authorized preferred
stock or other types of preferred securities (including, without limitation,
trust preferred securities or monthly income preferred securities) directly or
indirectly through one or more special-purpose financing subsidiaries organized
by Exelon specifically for such purpose as authorized by the order to be issued
in the Investment U-1. The aggregate amount of financing obtained by Exelon
during the Authorization Period from issuance and sale of preferred securities,
when combined with the amount of common stock (other than for benefit plans or
stock purchase and dividend reinvestment plans and other than shares issued in
the Merger), short-term debt and long-term debt issued and then outstanding, as
described in this section, shall not exceed $8 billion for the uses set forth in
Item 1.D. above. The proceeds of preferred securities would provide an
important source of future financing for the operations of and investments in
non-utility businesses which are exempt under the Act or have been approved by
the Commission./20/ Preferred stock or other types of preferred securities may
be issued in one or more series with such rights, preferences, and priorities as
may be designated in the instrument creating each such series, as determined by
Exelon's board of directors. Dividends or distributions on preferred securities
will be made periodically and to the extent funds are legally available for such
purpose, but may be made subject to terms which allow the issuer to defer
dividend payments for specified periods. Preferred securities may be convertible
or exchangeable into shares of Exelon common stock or indebtedness.
Preferred securities may be sold directly through underwriters or
dealers in connection with an acquisition in a manner similar to that described
for common stock in E. 1 (a) above.
(c) Long-Term Debt
____________________
/19/ The Commission has previously approved the issuance of common stock as
consideration for the acquisition of a new business in an exempt transaction or
transaction that has been approved in a separate proceeding. See e.g., SCANA
Corp., Holding Co. Act Release No. 35-27135 (Feb. 14, 2000).
/20/ Recently, the Commission approved a similar financing application filed by
Southern Company in which Southern Company requested approval to issue preferred
securities and long-term debt, directly or indirectly through special-purpose
financing entities. See The Southern Company, Holding Co. Act Release No.
35-27134 (Feb. 9, 2000). In that case, the Commission took account of the
changing needs of registered holding companies for sources of capital other than
common equity and short-term debt brought about primarily by the elimination of
restrictions under the Act on investments in various types of non-core
businesses (e.g., EWGs, FUCOs, ETCs and businesses allowed by Rule 58). The
Commission noted that, without the ability to raise capital in external markets
that is appropriate for such investments, registered holding companies would be
at a competitive disadvantage to other energy companies that are not subject to
regulation under the Act.
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The aggregate amount of financing obtained by Exelon during the
Authorization Period from issuance and sale of long-term debt securities, when
combined with the common stock (other than for benefit plans or stock purchase
and dividend reinvestment plans and other than shares issued in the Merger),
short-term debt and preferred securities issued and then outstanding, as
described in this section, shall not exceed $8 billion/21/ for the uses set
forth in Item 1.D. above. Issuances of securities by Genco shall count against
such aggregate limitation as set forth in Item 1.E.3.b below. Such long-term
debt securities would be comprised of bonds, notes, medium-term notes or
debentures under one or more indentures (each, the "Exelon Indenture") or long-
term indebtedness under agreements with banks or other institutional lenders.
Any long-term debt security would have such designation, aggregate
principal amount, maturity, interest rate(s) or methods of determining the same,
terms of payment of interest, redemption provisions, sinking fund terms and
other terms and conditions as Exelon may determine at the time of issuance. Any
long-term debt (a) may be convertible into any other securities of Exelon, (b)
will have maturities ranging from one to 50 years, (c) may be subject to
optional and/or mandatory redemption, in whole or in part, at par or at various
premiums above the principal amount thereof, (d) may be entitled to mandatory or
optional sinking fund provisions, (e) may provide for reset of the coupon
pursuant to a remarketing arrangement, (f) may be subject to tender or the
obligation of the issuer to repurchase at the election of the holder or upon the
occurrence of a specified event, (g) may be called from existing investors by a
third party and, (h) may be entitled to the benefit of positive or negative
financial or other covenants.
The maturity dates, interest rates, redemption and sinking fund
provisions, tender or repurchase and conversion features, if any, with respect
to the long-term securities of a particular series, as well as any associated
placement, underwriting or selling agent fees, commissions and discounts, if
any, will be established by negotiation or competitive bidding.
Borrowings from the banks and other financial institutions may be
unsecured and pari passu with debt securities issued under the Exelon Indenture
and the short-term credit facilities (as described below). Long-term debt may
be secured by property of Exelon. Specific terms of any borrowings will be
determined by Exelon at the time of issuance and will comply in all regards with
the parameters on financing authorization set forth in Section D above.
The Exelon system will require up to $510 million in connection with
the closing of the Merger. This amount was borrowed just prior to the closing
of the Merger. As a pre-existing obligation, this amount will not count against
the $8 billion in overall financing authority sought herein.
_______________
/21/ See footnote 2 regarding the request for reservation of jurisdiction.
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The request for authorization for Exelon to issue long-term debt
securities is consistent with authorization that the Commission has granted to
other holding companies./22/
(d) Short-Term Debt
Exelon seeks authority to issue short-term debt to provide for the
reissuance of pre-Merger letters or lines of credit or commercial paper and to
provide financing for general corporate purposes, working capital requirements
and temporary financing of Subsidiary capital expenditures. The aggregate amount
of financing obtained by Exelon during the Authorization Period from issuance
and sale of short-term debt, when combined with common stock (other than for
employee benefit plans or stock purchase and dividend reinvestment plans as
discussed below and other than shares issued in the Merger), long-term debt, and
preferred securities issued and then outstanding, as described in this section,
shall not exceed $8 billion for the uses set forth in Item1.D. above./23/
However, Exelon will limit the amount of short-term debt issued and outstanding
at any time pursuant to the authority sought herein to $3 billion. Exelon
requests that this additional limitations cease and Exelon be authorized to
issue short-term debt up the full amount of financing authority available at any
given time (i.e., $4 billion initially or such higher amount as the Commission
approves under the reservation of jurisdiction on the total financing request of
up to $8 billion). Exelon requests that the Commission reserve jurisdiction on
the request in the preceding sentence pending completion of the records.
Any short-term debt outstanding or credit facility of Unicom existing
at the time of the Merger may be assumed by Exelon./24/ Existing financing
arrangements at PECO will not be assumed by Exelon. However, Genco is expected
to assume the outstanding pollution control loan obligations of PECO ($369
million outstanding at June 30, 2000) which financed facilities located at
generating stations that will be transferred to Genco by PECO. See item I.E.3
below. None of ComEd's financing obligations will be assumed by Genco.
Exelon may also sell commercial paper, from time to time, in
established domestic or European commercial paper markets. Such commercial
paper would be sold to dealers at the discount rate or the coupon rate per annum
prevailing at the date of issuance for commercial paper of comparable quality
and maturities sold to commercial paper dealers generally. It is expected that
the dealers acquiring commercial paper from Exelon will reoffer such paper at a
discount to corporate, institutional and, with respect to European commercial
paper, individual investors. Institutional investors are expected to include
commercial banks, insurance companies, pension funds, investment trusts,
foundations, colleges and universities and finance companies.
__________________
/22/ See Cinergy Corp., Holding Co. Act Release No. 35-27190 (June 23, 2000);
------------
National Grid Group, Holding Co. Act Release No. 35-27154 (Mar. 15, 2000); SCANA
Corporation, Holding Co. Act Release No. 35-27135 (Feb. 14, 2000); The Southern
Company, Holding Co. Act Release No. 35-27134 (Feb. 9, 2000); Dominion
Resources, Inc., Holding Co. Act Release No. 35-27112 (Dec. 15, 1999)
(authorizing the issuance of debt securities by the registered holding company,
including the refinancing of $4.5 billion of acquisition indebtedness); Cinergy
Corp., Holding Co. Act Release No. 35-26909 (Aug. 21, 1998) (authorizing the
issuance of up to $400 million of unsecured debt securities); Conectiv, Inc.,
Holding Co. Act Release No. 35-26921 (Sept. 28, 1998) (authorizing issuance of
up to $250 million of debentures).
/23/ See note 2 regarding Exelon's request that the Commission reserve
jurisdiction on $4 billion of such amount.
/24/ Unicom currently guaranties committed lines of bank credit available to a
Non-Utility Subsidiary for $400 million (from a group of 20 banks) which expire
on December 15, 2000. This facility and guarantee may remain in place at Exelon
following the Merger. The credit agreement was extinguished on August 7, 2000.
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Exelon may, without counting against the limit set forth above,
maintain back up lines of credit in connection with a commercial paper program
in an aggregate amount not to exceed the amount of authorized commercial paper.
Credit lines may be set up for use by Exelon for general corporate
purposes in addition to credit lines to support commercial paper as described in
this subsection. Exelon will borrow and repay under such lines of credit, from
time to time, as it is deemed appropriate or necessary.
(e) Total Financing Sought
The aggregate amount of new equity, preferred securities, long-term
debt and short-term debt financing to be obtained by Exelon during the
Authorization Period (excluding securities issued during the Authorization
Period to refund then outstanding securities) shall be not greater than $ 8
billion. In addition, Exelon shall have the authority to issue guarantees up to
$4.5 billion. As set forth below, Exelon's authority will be aggregated with
Genco for purposes of the $8 billion limitation on financing and the $4.5
billion limitation on guarantees. As noted, Exelon is requesting that the
Commission reserve jurisdiction in certain respects until the record is
completed. Exelon seeks immediate approval for total financing of $4 billion
plus $4.5 billion in guarantees.
(f) Financing Risk Management Devices
i. Interest Rate Risk.
Exelon requests authority to enter into, perform, purchase and sell
financial instruments intended to reduce or manage the volatility of interest
rates, including but not limited to interest rate swaps, caps, floors, collars
and forward agreements or any other similar agreements. Hedges may also include
issuance of structured notes (i.e., a debt instrument in which the principal
and/or interest payments are indirectly linked to the value of an underlying
asset or index), or transactions involving the purchase or sale, including short
sales, of U.S. Treasury or Agency (e.g., FNMA) obligations or LIBOR based swap
instruments (collectively referred to as "Hedge Instruments"). The transactions
would be for fixed periods and stated notional amounts. Exelon would employ
interest rate derivatives as a means of prudently managing the risk associated
with any of its outstanding debt issued pursuant to this authorization or an
applicable exemption by, in effect, synthetically (i) converting variable rate
debt to fixed rate debt, (ii) converting fixed rate debt to variable rate debt
and (iii) limiting the impact of changes in interest rates resulting from
variable rate debt. In no case will the notional principal amount of any
interest rate swap exceed the greater of the value of the underlying debt
instrument or the present market value of the underlying debt instrument and
related interest rate exposure. Transactions will be entered into for a fixed
or determinable period. Thus, Exelon will not engage in speculative
transactions unassociated with its financing needs and activities. Exelon will
only enter into agreements with counterparties ("Approved Counterparties") whose
senior debt ratings, as published by a national recognized rating agency are
greater than or equal to "BBB," or an equivalent rating.
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<PAGE>
ii. Anticipatory Hedges.
In addition, Exelon and the Subsidiaries request authorization to
enter into interest rate hedging transactions with respect to anticipated debt
offerings (the "Anticipatory Hedges"), subject to certain limitations and
restrictions. Such Anticipatory Hedges would only be entered into with Approved
Counterparties, and would be utilized to fix and/or limit the interest rate risk
associated with any new issuance through (i) a forward sale of exchange-traded
Hedge Instruments (a "Forward Sale"), (ii) the purchase of put options on Hedge
Instruments (a "Put Options Purchase"), (iii) a Put Options Purchase in
combination with the sale of call options Hedge Instruments (a "Zero Cost
Collar"), (iv) transactions involving the purchase or sale, including short
sales, of Hedge Instruments, or (v) some combination of a Forward Sale, Put
Options Purchase, Zero Cost Collar and/or other derivative or cash transactions,
including, but not limited to structured notes, caps and collars, appropriate
for the Anticipatory Hedges. Anticipatory Hedges may be executed on-exchange
("On-Exchange Trades") with brokers through the opening of futures and/or
options positions traded on the Chicago Board of Trade ("CBOT"), the opening of
over-the-counter positions with one or more counterparties ("Off-Exchange
Trades"), or a combination of On-Exchange Trades and Off-Exchange Trades. Exelon
or Subsidiary will determine the optimal structure of each Anticipatory Hedge
transaction at the time of execution. Exelon or a Subsidiary may decide to lock
in interest rates and/or limit its exposure to interest rate increases./25/
iii. Accounting Standards.
Exelon and its Subsidiaries will comply with Statement of Financial
Accounting Standards ("SFAS") 80 ("Accounting for Futures Contracts"), SFAS 133
("Accounting for Derivatives Instruments and Hedging Activities"), when
effective in January 2001 or such other standards relating to accounting for
derivative transactions as are adopted and implemented by the Financial
Accounting Standards Board ("FASB"). The Hedge Instruments and Anticipatory
Hedges approved hereunder will quality in Exelon's good faith judgment for
hedge accounting treatment under the current FASB standards in effect and as
determined at the date such Hedge Instruments or Anticipatory Hedges are entered
into. Exelon requests authority to enter into Hedge Instruments and Anticipatory
Hedges which do not quality for hedge accounting treatment under FASB. Exelon
requests the Commission reserve jurisdiction on this request until the record is
complete.
2. Financing Subsidiaries
Exelon and the Subsidiaries request authority to acquire, directly or
indirectly, the equity securities of one or more corporations, trusts,
partnerships or other entities created specifically for the purpose of
facilitating the financing of the authorized and exempt activities (including
exempt and authorized acquisitions) of Exelon and the Subsidiaries through the
issuance of long-term debt, preferred securities or equity securities, to third
parties and the
_________________
/25/ The proposed terms and conditions of the Interest Rate Hedges and
Anticipatory Hedges are substantially the same as the Commission has approved in
other cases. See SCANA Corporation, Holding Co. Act Release No. 35-27135 (Feb.
14, 2000); New Century Energies, Inc., et al., Holding Co. Act Release No.
35-27000 (April 7, 1999); and Ameren Corp., et al., Holding Co. Act Release No.
35-27053 (July 23, 1999). See note 9 above regarding risk management activities
of Genco.
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transfer of the proceeds of such financings to Exelon or such Subsidiaries./26/
Exelon or a Subsidiary may, if required, guarantee or enter into support or
expense agreements in respect of the obligations of any such Financing
Subsidiaries. Subsidiaries may also provide guarantees and enter into support or
expense agreements, if required, on behalf of such entities pursuant to Rules
45(b)(7) and 52, as applicable. Each of the Subsidiaries also requests
authorization to enter into an expense agreement with its respective financing
entity, pursuant to which it would agree to pay all expenses of such entity. Any
amounts issued by such financing entities to third parties pursuant to this
authorization will be included in the overall external financing limitation
authorized herein for the immediate parent of such financing entity. However,
the underlying intra-system mirror debt and parent guarantee shall not be so
included./27/
PECO has in place financing subsidiaries related to its securitization
bonds. Under the terms of PECO's settlement of its 1998 electric restructuring
proceeding and the final order of the Pennsylvania Commission approving the
settlement, issued on May 14, 1998 (the "Restructuring Settlement" described in
Item 1.C.3 of the Merger U-1) PECO is permitted to recover $5.26 billion in
stranded costs over a twelve year period that began on January 1, 1999. PECO's
stranded costs are collected through a non-bypassable transition charge which
must be paid by all of PECO's transmission and distribution customers,
regardless of whether the customers continue to purchase their electric capacity
or energy from PECO.
As permitted under the Competition Act, certain portions of the May
14, 1998, order were designated a Qualified Rate Order ("QRO") authorizing PECO
to securitize up to $4 billion of its recoverable costs through the issuance of
Transition Bonds. On March 16, 2000, the Pennsylvania Commission issued a
second QRO authorizing PECO to securitize an additional $1 billion. In order to
accomplish the approved securitization transactions, PECO created an independent
special purpose entity named PECO Energy Transition Trust ("PETT"). PETT is a
statutory business trust established under the laws of the State of Delaware,
and was formed on June 23, 1998 pursuant to a trust agreement between PECO, as
grantor, First Union Trust Company, N.A., as issuer trustee, and two
beneficiary trustees appointed by PECO. See PETT, SEC Form 10-Q (filed August
13, 1999 in File No. 333-58055). PETT was organized for the special purpose of
purchasing from PECO Intangible Transition Property ("ITP"), issuing Transition
Bonds, pledging its interest in the ITP and other collateral to the bond trustee
to secure the Transition Bonds, and performing activities that are necessary and
suitable to accomplish these purposes.
_____________________
/26/ One of the special purpose subsidiaries already in existence at PECO or
Unicom, such as PECO-Energy Transition Trust or ComEd Transitional Funding Trust
may be used for these purposes as well.
/27/ The authorization sought herein with respect to financing entities is
substantially the same as that given to New Century Energies, Inc., Holding Co.
Act Release No. 35-26750 (Aug. 1, 1997); Conectiv, Holding Co. Act Release No.
35-26833 (Feb. 26, 1998); Cinergy Corp., Holding Co. Act Release No. 35-26984
(Mar. 1, 1999); Dominion Resources, Inc., Holding Co. Act Release No. 35-27112
(Dec. 15, 1999) and SCANA Corporation, Holding Co. Act Release No. -35-27135
(Feb. 14, 2000).
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In accordance with the Restructuring Settlement and the QROs, PECO is
utilizing the proceeds of the Transition Bonds to retire higher cost debt and
buy-back equity securities. The investment of the Transition Bonds is being
accomplished through a series of intercompany loans, contributions and
distributions involving non-utility subsidiaries of PECO which will continue
quarterly until May 2010. All borrowings represented by these transactions are
by non-utility special purpose subsidiaries and are exempt under Rule 52(b)./28/
Contributions made by PECO to its subsidiary are exempt under Rule 45(b)(4). To
the extent the distributions from the Non-Utility Subsidiary to PECO are out of
capital or unearned surplus, Exelon seeks a waiver for all such payments by Non-
Utility Subsidiaries in Item 1.J. hereof.
3. Utility Subsidiary Financing
As indicated on Exhibits M-1 and M-2 hereto, certain Utility
Subsidiaries currently have financing arrangements in place. These arrangements
will remain in place following the Merger and are described in more detail in
Exhibits M-1 and M-2 hereto.
Rule 52 provides an exemption from the prior authorization
requirements of the Act for most of the issuances and sales of securities by the
Utility Subsidiaries because they must be approved by the relevant state public
utility commission, which, in the case of PECO is the Pennsylvania Public
Utility Commission (the "Pennsylvania Commission") and in the case of ComEd is
the Illinois Commerce Commission (the "Illinois Commission")./29/
However, certain external financings by the Utility Subsidiaries for
which authorization is requested herein may be outside the Rule 52 exemption. In
particular, Genco is not subject to the jurisdiction of any state commission in
respect of securities issuances. The authority herein sought excludes
financings exempt under Rule 52. Financings obtained under this authorization
will be used for general corporate purposes and working capital requirements,
including contributions to the Utility Money Pool. These financings may be made
under instruments in place at the time of the Merger or new agreements so long
as any such instrument or agreement complies with the limitations described
herein.
_________________
/28/ Rule 52(b) is not available for issuances by a "fiscal or financing agency"
of a holding company or utility company. The entities involved in the
intercompany loans referred to in this paragraph are not acting in the capacity
of a financing vehicle for PECO to raise capital from third parties, but rather
are engaged solely in intercompany transactions for the purpose of achieving tax
efficiency for the securitization transaction. Thus, while some of these
entities could be considered "financing subsidiaries" in other contexts, they
are not so acting for the described transactions and therefore are eligible to
use Rule 52(b). See Southern Co., Holding Co. Act Release No.35-27134 (Feb. 9,
2000) at notes 22 and 23. In addition, the structure does not involve any
subsidiary lending its credit to Exelon. Id.
/29/ In general, all securities issuances by ComEd must be approved by the
Illinois Commission other than indebtedness with a final maturity of less than
one year, renewable for a period of not more than two years. 220 ILCS 5/6-102.
Similarly, all securities issuances by PECO must be approved by the Pennsylvania
Commission, other than securities with a maturity of one year or less or having
no fixed maturity but payable on demand. 66 Pa.C.S.1901(b)(4)and (5).
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To the extent not exempt under Rule 52, PECO and its Subsidiaries seek
authority to refinance during the Authorization Period up to the full
outstanding principal amount of its transition bonds due March 1, 2004 and due
September 1, 2007 (outstanding at June 30, 2000, $1.132 billion, in the
aggregate) with additional transition bonds. The final maturity of any such
refunding transition bonds would not be later than March 1, 2011. The
refinancing will be pursuant to the financing order of the Pennsylvania
Commission. PECO will use the same financing structure with PECO Energy
Transition Trust (or similar entity) as the issuer. See PECO Energy Transition
Trust Form S-3 Registration Statement, File No. 333-31646.
ComEd currently has no plans to issue further securitization bonds or
to refinance any existing securitization bonds.
(a) Short-Term Debt
Authority is requested for ComEd, PECO and Genco to issue commercial
paper and establish and borrow under credit lines in the aggregate amount of
$2.7 billion to be outstanding at any one time during the Authorization Period.
ComEd currently has $1.2 billion and PECO $1.5 billion of short-term financing
authority from the Federal Energy Regulatory Commission under Section 204 of the
Federal Power Act. Because the generating activities of ComEd and PECO will be
transferred to Genco in the Restructurings and it cannot be determined at this
time what levels of short-term debt may be needed by ComEd, PECO and Genco,
Exelon requests that the aggregate short-term borrowing limitation now in place
for ComEd and PECO ($2.7 billion outstanding at any time) be the applicable
limitation on an aggregate basis for all Utility Subsidiaries.
The above-named Utility Subsidiaries request authority to sell
commercial paper, from time to time, in established domestic commercial paper
markets in a manner similar to Exelon as discussed above. Such Utility
Subsidiaries may, without counting against the limit set forth above, maintain
back up lines of credit in connection with a commercial paper program in an
aggregate amount not to exceed the amount of authorized commercial paper.
Credit lines may be set up for use by the Utility Subsidiaries for
general corporate purposes in addition to credit lines to support commercial
paper as described in this subsection. The Utility Subsidiaries will borrow and
repay under such lines of credit, from time to time, as it is deemed appropriate
or necessary. Subject to the limitations described herein, each such Utility
Subsidiary may engage in other types of short-term financings as it may deem
appropriate in light of its needs and market conditions at the time of issuance.
(b) Genco Financing and Assumption of Indebtedness
Although Genco is an "electric utility company" under the Act, it will
not be subject to the jurisdiction of any State commission in connection with
the issuance of
17
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securities./30/ Accordingly, all securities issuances for Genco will require
approval of the Commission.
The request for Genco to engage in short-term financing is included
above. The aggregate amount of common equity, preferred securities, long-term
debt and short-term debt financing to be obtained by Genco during the
Authorization Period (excluding securities issued during the Authorization
Period to refund then outstanding securities) shall be not greater than $ 5.5
billion. Exelon requests approval of Genco financing in an amount up to $4
billion immediately and requests the Commission reserve jurisdiction on the
remaining $1.5 billion pending completion of the record. Any issuance of
securities by Genco to unrelated third parties under this authorization will
reduce, dollar for dollar, the remaining financing authority available to
Exelon; provided that issuances to Genco's parent companies reflecting conduit
transactions shall not reduce the authority available to Exelon except to the
extent Exelon has issued securities to fund such transactions.
Genco is expected to assume the obligations on about $369 million of
pollution control loan obligations of PECO issued in connection with facilities
located at the generating stations to be transferred to Genco from PECO.
Further, PECO currently provides a $100 million guarantee ensuring the safety of
the nuclear stations owned by AmerGen in the event of an outage. The guarantee
is required to remain in place until the cessation of operation and removal of
the nuclear fuel from the core of the last generating facility. However, PECO
or Genco could seek approval by the NRC of a substitute financial assurance
mechanism. Genco seeks authority to assume that guarantee following the Merger
(with or without the release of PECO). These assumptions would be in addition
to the $4 billion for which immediate authority is requested above.
Preferred stock or other types of preferred securities may be issued
in one or more series with such rights, preferences, and priorities as may be
designated in the instrument creating each such series, as determined by Genco's
board of directors. Dividends or distributions on preferred securities will be
made periodically and to the extent funds are legally available for such
purpose, but may be made subject to terms which allow the issuer to defer
dividend payments for specified periods.
Preferred securities may be sold directly through underwriters or
dealers in connection with an acquisition in a manner similar to that described
for common stock in E. 1 (a) above.
Long-term debt securities would be comprised of bonds, notes, medium-
term notes or debentures under one or more indentures (each a "Genco
Indenture") or long-term indebtedness under agreements with banks or other
institutional lenders.
___________________________
/30/ By virtue of Section 318 of the Federal Power Act, Genco will not be
subject to the jurisdiction of FERC in connection with the issuance of
securities because it will be subject to the Commission's jurisdiction in that
regard.
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Any long-term debt security would have such designation, aggregate
principal amount, maturity, interest rate(s) or methods of determining the same,
terms of payment of interest, redemption provisions, sinking fund terms and
other terms and conditions as Genco may determine at the time of issuance. Any
long-term debt (a) may be convertible into any other securities of Genco, (b)
will have maturities ranging from one to 50 years, (c) may be subject to
optional and/or mandatory redemption, in whole or in part, at par or at various
premiums above the principal amount thereof, (d) may be entitled to mandatory or
optional sinking fund provisions, (e) may provide for reset of the coupon
pursuant to a remarketing arrangement, (f) may be subject to tender to the
issuer for repurchase or be subject to the obligation of the issuer to
repurchase at the election of the holder or upon the occurrence of a specified
event, (g) may be called from existing investors by a third party and (f) may be
entitled to the benefit of positive or negative financial or other covenants.
The maturity dates, interest rates, redemption and sinking fund
provisions and conversion features, if any, with respect to the long-term
securities of a particular series, as well as any associated placement,
underwriting or selling agent fees, commissions and discounts, if any, will be
established by negotiation or competitive bidding.
Borrowings from the banks and other financial institutions may be
unsecured and rank pari passu with debt securities issued under the Genco
Indenture and the short-term credit facilities (as described below). Long-term
debt may be secured by property of Genco. Specific terms of any borrowings will
be determined by Genco at the time of issuance and will comply in all regards
with the parameters on financing authorization set forth in Section D above.
Authority is requested for Genco to issue commercial paper and
establish credit lines. Genco requests authority to sell commercial paper, from
time to time, in established domestic commercial paper markets in a manner
similar to Exelon as discussed above. Genco may, without counting against the
limits set forth above, maintain back up lines of credit in connection with a
commercial paper program in an aggregate amount not to exceed the amount of
authorized commercial paper.
Credit lines may be set up for use by Genco for general corporate
purposes in addition to credit lines to support commercial paper as described in
this subsection. Genco will borrow and repay under such lines of credit, from
time to time, as it is deemed appropriate or necessary. Subject to the
limitations described herein, Genco may engage in other types of short-term
financings as it may deem appropriate in light of its needs and market
conditions at the time of issuance.
Authority is sought for Genco to enter into guarantees of the
obligations of its Subsidiaries ("Genco Guarantees") as set forth below in
Item 1.E.5.
(c) Financing Risk Management Devices. To the extent not exempt
under Rule 52, the Utility Subsidiaries requests authority to enter into,
perform, purchase and sell interest rate management devices and Anticipatory
Hedges subject to the limitations and requirements applicable to Exelon
described in Item I.E.1.(g).
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4. Non-Utility Subsidiary Financings
As noted on Exhibits M-1 and M-2 hereto, certain Non-Utility
Subsidiaries have financing arrangements in place. These arrangements are
expected to remain in place following consummation of the Merger. Certain
guarantees in favor of a direct or indirect Non-Utility Subsidiary issued by
another Subsidiary may be replaced by Exelon guarantees as described below. In
addition, the Merger U-1 contemplates, and the order permitting the Investment
U-1 to become effective will authorize, the formation or retention of other Non-
Utility Subsidiaries named therein which do not currently have outstanding debt.
It is expected that future financing by all such Non-Utility Subsidiaries will
be made pursuant to the terms of Rule 52.
The Non-Utility Subsidiaries are engaged in and expect to continue to
be active in the development and expansion of their existing energy-related or
otherwise functionally-related, non-utility businesses. They will be competing
with large, well-capitalized companies in different sectors of the energy
industry and other industries. In order to quickly and effectively invest in
such competitive arenas, it will be necessary for the Non-Utility Subsidiaries
to have the ability to engage in financing transactions which are commonly
accepted for such types of investments. These financings will include issuance
by Non-Utility Subsidiaries of common stock or other equity, preferred
securities or debt in capital raising transactions and to be used to acquire
stock or assets in then existing unaffiliated companies which will become
Affiliates or Subsidiaries so long as such acquisitions are consistent with the
Non-Utility Subsidiaries' then existing business in accordance with Rule 52(b)
and Rule 58. The majority of such financings will be exempt from prior
Commission authorization pursuant to Rule 52(b).
In order to be exempt under Rule 52(b), any loans by Exelon to a Non-
Utility Subsidiary or by one Non-Utility Subsidiary to another must have
interest rates and maturities that are designed to parallel the lending
company's effective cost of capital. However, in the limited circumstances where
the Non-Utility Subsidiary making the borrowing is not wholly owned by Exelon,
directly or indirectly, authority is requested under the Act for Exelon or a
Non-Utility Subsidiary, as the case may be, to make such loans to such
subsidiaries at interest rates and maturities designed to provide a return to
the lending company of not less than its effective cost of capital./31/ If such
loans are made to a Non-Utility Subsidiary, such company will not sell any
services to any associate Non-Utility Subsidiary unless such company falls
within one of the categories of companies to which goods and services may be
sold on a basis other than "at cost," as described in the Merger U-1.
Furthermore, in the event any such loans are made, Exelon will include in the
next certificate filed pursuant to Rule 24 in this proceeding substantially the
same information as that required on Form U-6B-2 with respect to such
transaction.
___________________
/31/ The Commission has granted similar authority to another registered holding
company. See Entergy Corporation, et al., Holding Co. Act Release No. 35-27039
(June 22, 1999).
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5. Guarantees, Intra-system Advances and Intra-System Money Pool
(a) Guarantee and Intra-system Advances
Exelon requests authorization to enter into guarantees, obtain letters
of credit, enter into support or expense agreements or otherwise provide credit
support with respect to the obligations of its Subsidiaries as may be
appropriate or necessary to enable such Subsidiaries to carry on in the ordinary
course of their respective businesses in an aggregate principal amount, and to
enter into guarantees of non-affiliated third parties/32/ obligations in the
ordinary course of Exelon's business ("Exelon Guarantees") in an amount,
together with Genco Guaranties and Non-Utility Subsidiary Guaranties (defined
below), not to exceed $4.5 billion outstanding at any one time (not taking into
account obligations exempt pursuant to Rule 45). Except as otherwise expressly
noted herein, included in this amount are guarantees and other credit support
mechanisms by Unicom and PECO Energy in favor of their respective Subsidiaries
which were previously issued. Any such guarantees shall also be subject to the
limitations of Rule 53(a)(1) or Rule 58(a)(1), as applicable. Exelon and Genco
propose to charge each Subsidiary a fee for each guarantee provided on its
behalf that is comparable to those obtainable by the beneficiary of the
guarantee from third parties.
A substantial amount of the guarantees proposed to be issued by Exelon
will be in connection with the business of Genco. At the time of the
Restructurings, Genco will be a newly formed business consisting of the
generating assets formerly held by ComEd and PECO. Genco will also conduct the
power marketing and trading operations previously conducted by ComEd and PECO.
For various business reasons, including the relative ratings of Exelon and
Genco, Exelon may wish to provide credit support in connection with Genco's
obligations to independent power producers to purchase the output of generating
units for a long-term period, in connection with the trading positions of Genco
entered into in the ordinary course of Genco's energy marketing and trading
business and for other purposes. Exelon may wish to provide guarantees to Genco
up to this amount for reasons that are not unusual in today's increasingly
competitive electricity markets./33/
As part of the proposed corporate restructuring, multiple large power
purchase contracts will be transferred to Genco from PECO and ComEd. Some of
these long-term contracts are agreements to purchase the entire output of
merchant plants being developed by independent power producers, or of the entire
output of existing plants purchased by independent power producers. The
financing for these projects is secured by the current power purchase
_________________
/32/ For example, as one of the founding members of the Midwest System Operator
("MISO"), Unicom issued guaranties to creditors on behalf of MISO to assist
MISO's start-up operations.
/33/ PECO is currently the top holding company and operating utility and also
engages directly in the power trading business. Because this trading operation
is carried on at PECO there is no need for PECO to guaranty the trading
obligations of any subsidiary. Unicom has entered into substantial guarantees
on behalf of its Subsidiaries in connection with their energy trading and
related activities, but has not found it necessary or desirable to guarantee
obligations in connection with ComEd activities.
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contracts with PECO or ComEd, and the expected stream of revenues to be derived
therefrom. The terms of certain of the power purchase contracts require lender
consent before the contracts may be assigned, even among affiliated entities.
The lenders acting as the ultimate financiers of the projects will not consent
to the assignment of the contracts unless they believe they will be as
financially secure (or more financially secure) post-assignment than they were
pre-assignment. Based on discussions with the lenders, Exelon's understanding of
these arrangements, and custom and practice in the industry, Genco expects the
lenders to require the provision of substantial guarantees by Exelon. The second
reason for the requested level of guarantee authority is that many of the
counterparties with whom Genco will buy and sell power on a short-term basis may
demand that Genco provide substantial credit support, as its credit rating may
not be as strong as the present credit ratings of ComEd or PECO.
The provision of parent guarantees by holding companies to affiliates
in the generation and power marketing business is a standard industry practice.
Given the substantial volume of Genco's business, Exelon's $4.5 billion request
for authority to issue guarantees, including the guarantees relating to Genco,
is reasonable and appropriate under current industry practice. Exelon expects
Genco to grow quickly and obtain its own investment grade rating at some time
after the Restructuring. To the extent Genco has such a rating, the need for
support from Exelon will be reduced. However, in that situation, Genco will
likely be required to offer its guarantee in connection with the business
activities of its Subsidiaries through which Exelon's generation business
(additional EWGs and/or FUCOs) will be developed. Consequently, Exelon and
Genco seek an aggregate limitation for guarantees of $4.5 billion (which limit
also includes Non-Utility Subsidiary Guarantees).
Certain of the guarantees referred to above may be in support of the
obligations of Subsidiaries which are not capable of exact quantification. In
such cases, Exelon will determine the exposure under such guarantee for purposes
of measuring compliance with the $4.5 billion limitation by appropriate means
including estimation of exposure based on loss experience or projected potential
payment amounts. If appropriate, such estimates will be made in accordance with
generally accepted accounting principles. Such estimation will be reevaluated
periodically.
The existing intra-system guarantees and support provided by Unicom or
PECO, which are expected to remain in place following the Merger, are as
follows:
Unicom: At September 30, 2000, Unicom had authorized guarantees of
$205 million including guarantees relating to obligations of Unicom Energy,
Inc., Unicom Energy Ohio, Northwind Aladdin, Northwind Midway, Northwind Chicago
and the Midwest Independent System Operator. This guaranty would count against
the maximum guarantee limit described above. ComEd and Unicom Investment, Inc.
entered into an intercompany agreement relating to the sale of certain fossil
generating stations by ComEd under which Unicom Investment executed a 12 year
promissory note to ComEd for $2.5 billion, which note is guaranteed by
Unicom./34/ These guarantees will be assumed by Exelon upon completion of the
_______________
/34/ See note 4 to notes to financial statements in Unicom' Quarterly Report on
Form 10-Q for the quarter ended June 30, 2000 for further details regarding the
sale of the fossil generating stations.
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Merger. As a completely intrasystem guaranty, this guaranty will not count
against the maximum guarantee limit described above.
PECO: At June 30, 2000 PECO had $238 million in outstanding
guarantees or commitments, including a $128 million obligation in favor of the
holders of preferred securities of PECO Energy Capital LP, a $100 million
obligation in favor of AmerGen/35/ and $10 million in favor of its Exelon
Infrastructure Services subsidiaries. These guarantees would count against the
maximum guarantee limit described above.
Exelon requests that this guarantee authority include the ability to
guarantee debt. The debt guaranteed will comply with the parameters for
financing authorization set forth in Section D above. Any guarantees or other
credit support arrangements outstanding at the end of the Authorization Period
will continue until expiration or termination in accordance with their terms.
(b) Non-Utility Subsidiary Guarantees.
In addition to guarantees that may be provided by Exelon, Non-Utility
Subsidiaries request authority to provide to other Non-Utility Subsidiaries
guarantees and other forms of credit support ("Non-Utility Subsidiary
Guarantees"). The Non-Utility Subsidiary Guaranties, together with Genco
Guaranties and Exelon Guaranties will not exceed $4.5 billion outstanding at any
one time in an aggregate principal amount, exclusive of any guarantees and other
forms of credit support that are exempt pursuant to Rule 45(b) and Rule 52(b),
provided however, that the amount of Non-Utility Guarantees in respect of
obligations of any Rule 58 Subsidiaries shall remain subject to the limitations
of Rule 58(a)(1). The Non-Utility Subsidiary providing any such credit support
may charge its associate company a fee for each guarantee provided on its behalf
determined in the same manner as specified above.
(c) Authorization and Operation of the Money Pools.
Exelon and the Utility Subsidiaries hereby request authorization to
establish the Utility Money Pool, and the Utility Subsidiaries, to the extent
not exempted by Rule 52, also request authorization to make unsecured short-term
borrowings from the Utility Money Pool and to contribute surplus funds to the
Utility Money Pool and to lend and extend credit to (and acquire promissory
notes from) one another through the Utility Money Pool. In addition to the
Utility Subsidiaries, Exelon requests existing utility related financing
entities be allowed to participate in the Utility Money Pool as a result of its
financing relationship with ComEd or PECO, respectively. Thus, for purposes of
this Section E.5(b) only, the term Utility Subsidiaries shall include those
entities. In addition, Exelon and the remaining Subsidiaries, all of which are
Non-Utility Subsidiaries, hereby request authorization to establish the Non-
Utility Money Pool. The Non-Utility Money Pool activities of all of the Non-
Utility Subsidiaries are exempt from the prior approval requirements of the Act
under Rule 52. Exelon is requesting authorization to
_________________
/35/ PECO has issued letter agreements to provide funding up to a total of $100
million to be available to AmerGen as described in Item 1.E.3.b. above.
23
<PAGE>
contribute surplus funds and to lend and extend credit to: (i) the Utility
Subsidiaries through the Utility Money Pool and (ii) the Non-Utility
Subsidiaries through the Non-Utility Money Pool. While Exelon is requesting the
authorization in this part (c), it may not implement either the Utility or Non-
Utility Money Pool immediately upon effectiveness of the Merger for various
reasons including requirements for state regulatory commission approvals.
The Applicants believe that the cost of the proposed borrowings
through the two Money Pools will generally be more favorable to the borrowing
participants than the comparable cost of external short-term borrowings, and the
yield to the participants contributing available funds to the two Money Pools
will generally be higher than the typical yield on short-term investments.
i. Utility Money Pool
Under the proposed terms of the Utility Money Pool, short-term funds
would be available from the following sources for short-term loans to the
Utility Subsidiaries from time to time: (1) surplus funds in the treasuries of
Utility Money Pool participants other than Exelon, (2) surplus funds in the
treasury of Exelon, and (3) proceeds from bank borrowings by Utility Money Pool
participants or the sale of commercial paper by Exelon or the Utility
Subsidiaries for loan to the Utility Money Pool ("External Funds"). Funds would
be made available from such sources in such order as the administrator of the
Utility Money Pool (likely Exelon Services) may determine would result in a
lower cost of borrowing, consistent with the individual borrowing needs and
financial standing of the companies providing funds to the pool. The
determination of whether a Utility Money Pool participant at any time has
surplus funds to lend to the Utility Money Pool or shall lend funds to the
Utility Money Pool would be made by such participant's chief financial officer
or treasurer, or by a designee thereof, on the basis of cash flow projections
and other relevant factors, in such participant's sole discretion. See Exhibit
J-1 for a copy of the Form of Utility Money Pool Agreement.
As discussed in more detail below, a separate Non-Utility Money Pool
will be established by Exelon with certain Non-Utility Subsidiary companies of
Exelon./36/
Utility Money Pool participants that borrow would borrow pro rata from
each company that lends, in the proportion that the total amount loaned by each
such lending company bears to the total amount then loaned through the Utility
Money Pool. On any day when more than one fund source (e.g., surplus treasury
funds of Exelon and other Utility Money Pool participants ("Internal Funds") and
External Funds), with different rates of interest, is used to fund loans through
the Utility Money Pool, each borrower would borrow pro rata from each such fund
source in the Utility Money Pool in the same proportion that the amount of funds
provided by that fund source bears to the total amount of short-term funds
available to the Utility Money Pool. Amounts borrowed by the Utility
Subsidiaries from the Utility Money Pool would count against the Utility
Subsidiary short-term borrowing authority referred to in Item 1.E.3.(a) above.
__________________
/36/ Such other subsidiaries consist of each of the Non-Utility Subsidiaries
including Exelon Service.
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<PAGE>
Borrowings from the Utility Money Pool would require authorization by
the borrower's chief financial officer or treasurer, or by a designee thereof.
No party would be required to effect a borrowing through the Utility Money Pool
if it is determined that it could (and had authority to) effect a borrowing at
lower cost directly from banks or through the sale of its own commercial paper.
No loans through the Utility Money Pool would be made to, and no borrowings
through the Utility Money Pool would be made by, Exelon.
The cost of compensating balances, if any, and fees paid to banks to
maintain credit lines and accounts by Utility Money Pool participants lending
External Funds to the Utility Money Pool would initially be paid by the
participant maintaining such line. A portion of such costs -- or all of such
costs in the event a Utility Money Pool participant establishes a line of credit
solely for purposes of lending any External Funds obtained thereby into the
Utility Money Pool -- would be retroactively allocated every month to the
companies borrowing such External Funds through the Utility Money Pool in
proportion to their respective daily outstanding borrowings of such External
Funds.
If only Internal Funds make up the funds available in the Utility
Money Pool, the interest rate applicable and payable to or by Subsidiaries for
all loans of such Internal Funds will be the rates for high-grade unsecured 30-
day commercial paper sold through dealers by major corporations as quoted in The
Wall Street Journal.
If only External Funds comprise the funds available in the Utility
Money Pool, the interest rate applicable to loans of such External Funds would
be equal to the lending company's cost for such External Funds (or, if more than
one Utility Money Pool participant had made available External Funds on such
day, the applicable interest rate would be a composite rate equal to the
weighted average of the cost incurred by the respective Utility Money Pool
participants for such External Funds).
In cases where both Internal Funds and External Funds are concurrently
borrowed through the Utility Money Pool, the rate applicable to all loans
comprised of such "blended" funds would be a composite rate equal to the
weighted average of (a) the cost of all Internal Funds contributed by Utility
Money Pool participants (as determined pursuant to the second-preceding
paragraph above) and (b) the cost of all such External Funds (as determined
pursuant to the immediately preceding paragraph above). In circumstances where
Internal Funds and External Funds are available for loans through the Utility
Money Pool, loans may be made exclusively from Internal Funds or External Funds,
rather than from a "blend" of such funds, to the extent it is expected that such
loans would result in a lower cost of borrowings.
Funds not required by the Utility Money Pool to make loans (with the
exception of funds required to satisfy the Utility Money Pool's liquidity
requirements) would ordinarily be invested in one or more short-term
investments, including:(i) interest-bearing accounts with banks; (ii)
obligations issued or guaranteed by the U.S. government and/or its agencies and
instrumentalities, including obligations under repurchase agreements; (iii)
obligations issued or guaranteed by any state or political subdivision thereof,
provided that such obligations are rated not less than "A" by a nationally
recognized rating agency; (iv) commercial paper rated not less
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<PAGE>
than "A-1" or "P-1" or their equivalent by a nationally recognized rating
agency; (v) money market funds; (vi) bank certificates of deposit, (vii)
Eurodollar funds; and (viii) such other investments as are permitted by Section
9(c) of the Act and Rule 40 thereunder.
The interest income and investment income earned on loans and
investments of surplus funds would be allocated among the participants in the
Utility Money Pool in accordance with the proportion each participant's
contribution of funds bears to the total amount of funds in the Utility Money
Pool and the cost of funds provided to the Utility Money Pool by such
participant.
Each Applicant receiving a loan through the Utility Money Pool would
be required to repay the principal amount of such loan, together with all
interest accrued thereon, on demand and in any event not later than one year
after the date of such loan. All loans made through the Utility Money Pool may
be prepaid by the borrower without premium or penalty.
ii. Non-Utility Money Pool
The Non-Utility Money Pool will be operated on the same terms and
conditions as the Utility Money Pool, except that Exelon funds made available to
the Money Pools will be made available to the Utility Money Pool first and
thereafter to the Non-Utility Money Pool. No loans through the Non-Utility
Money Pool would be made to, and no borrowings through the Non-Utility Money
Pool would be made by, Exelon. See Exhibit J-2 for a copy of the form of Non-
Utility Money Pool Agreement. All contributions to, and borrowings from, the
Non-Utility Money Pool are exempt pursuant to the terms of Rule 52 under the
Act, except contributions and extensions of credit by Exelon, authorization for
which is hereby requested. The only initial participants to the Non-Utility
Money Pool will be applicants Exelon Services and Exelon Enterprises until
Exelon seeks Commission authority to add parties.
iii. Other Contributions to Money Pool
Exelon and the Utility Subsidiaries may contribute funds from the
issuance of short term debt as authorized above to the Utility Money Pool.
Exelon may contribute funds from the issuance of short term debt to the Non-
Utility Money Pool and the Non-Utility Subsidiaries may contribute funds from
the issuance of short term debt to the Non-Utility Money Pool.
iv. Operation of the Money Pools and Administrative Matters.
Operation of the Utility and Non-Utility Money Pools, including record
keeping and coordination of loans, will be handled by Exelon Service under the
authority of the appropriate officers of the participating companies. Exelon
Service will administer the Utility and Non-Utility Money Pools on an "at cost"
basis and will maintain separate records for each money pool. Surplus funds of
the Utility Money Pool and the Non-Utility Money Pool may be combined in common
short-term investments, but separate records of such funds shall be maintained
by Exelon Service as administrator of the pools, and interest thereon shall be
separately allocated, on a daily basis, to each money pool in accordance with
the proportion that
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<PAGE>
the amount of each money pool's surplus funds bears to the total amount of
surplus funds available for investment from both money pools.
v. Use of Proceeds
Proceeds of any short term borrowings by the Non-Utility Subsidiaries
may be used by each such Non-Utility Subsidiary (i) for the interim financing of
its construction and capital expenditure programs; (ii) for its working capital
needs; (iii) for the repayment, redemption or refinancing of its debt and
preferred stock; (iv) to meet unexpected contingencies, payment and timing
differences, and cash requirements; and (v) to otherwise finance its own
business and for other lawful general corporate purposes. PECO, ComEd and Genco
may borrow up to $1 billion in the aggregate at any one time outstanding from
the Utility Money Pool. The use of proceeds from the financings would be limited
to use in the operations of the respective businesses in which such Subsidiaries
are already authorized to engage./37/
(d) Intra-System Financing
Generally, Exelon or the lending Subsidiary's loans to, and purchase
of capital stock from, such borrowing Subsidiaries will be exempt under Rule 52,
and capital contributions and open account advances without interest will be
exempt under Rule 45(b). Loans by Exelon or a Non-Utility Subsidiary to a Non-
Utility Subsidiary generally will have interest rates and maturity dates that
are designed to parallel the lending company's effective cost of capital, in
accordance with Rule 52(b). To the extent that any intra-system loans or
extensions of credit are not exempt under Rule 45(b) or Rule 52, as applicable,
the company making such loan or extending such credit may charge interest at the
same effective rate of interest as the daily weighted average effective rate of
commercial paper, revolving credit and/or other short-term borrowings of such
company, including an allocated share of commitment fees and related expenses.
If no such borrowings are outstanding, then the interest rate shall be
predicated on the Federal Funds' effective rate of interest as quoted daily by
the Federal Reserve Bank of New York. In the limited circumstances where the
Non-Utility Subsidiary effecting the borrowing is not wholly-owned by Exelon,
directly or indirectly, authority is requested under the Act for Exelon or a
Non-Utility Subsidiary to make such loans to such subsidiaries at interest rates
and maturities designed to provide a return to the lending company of not less
than its effective cost of capital. If such loans are made to a Non-Utility
Subsidiary, such Non-Utility Subsidiary will not provide any services to any
associate Non-Utility Subsidiary except a company which meets one of the
conditions for rendering of services on a basis other than at cost as described
in the Merger U-1. In the event any such loans are made, Exelon will include in
the next certificate filed pursuant to Rule 24 substantially the same
information as that required on Form U-6B-2 with respect to such transaction.
See Entergy Corp., Holding Co. Act Release No. 27039 (June 22, 1999).
_____________________
/37/ The authorization sought herein is substantially the same as that given in
recent cases. See SCANA Corporation, Holding Co. Act Release No. 35-27135 (Feb.
14, 2000); New Century Energies, Inc., Holding Co. Act Release No. 35-26750
(Aug. 1, 1997) and Conectiv, Holding Co. Act Release No. 35-26833 (Feb. 26,
1998).
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Exelon will comply with the requirements of Rule 45(c) regarding tax
allocations unless it receives further approval from the Commission to alter
such requirements.
6. Changes in Capital Stock of Majority Owned Subsidiaries
The portion of an individual Subsidiary's aggregate financing to be
effected through the sale of stock to Exelon or other immediate parent company
during the Authorization Period pursuant to Rule 52 and/or pursuant to an order
issued pursuant to this file cannot be ascertained at this time. It may happen
that the proposed sale of capital securities (i.e., common stock or preferred
stock) may in some cases exceed the then authorized capital stock of such
Subsidiary. In addition, the Subsidiary may choose to use capital stock with no
par value.
As needed to accommodate such proposed transactions and to provide for
future issues, request is made for authority to change the terms of any 50% or
more owned Subsidiary's authorized capital stock capitalization or other equity
interests by an amount deemed appropriate by Exelon or other intermediate parent
company. This request for authorization is limited to Exelon's 50% or more
owned Subsidiaries and will not affect the aggregate limits or other conditions
contained herein. Exelon requests that the Commission approve such requests
only with respect to changes by its wholly-owned subsidiaries and retain
jurisdiction over such request as it relates to 50% or more owned subsidiaries
pending completion of the record. A Subsidiary would be able to change the par
value, or change between par value and no-par stock, without additional
Commission approval. Any such action by a Utility Subsidiary would be subject to
and would only be taken upon the receipt of any necessary approvals by the state
commission in the state or states where the Utility Subsidiary is incorporated
and doing business./38/ Exelon will be subject to all applicable laws regarding
the fiduciary duty of fairness of a majority shareholder to minority
shareholders in any such 50% or more owned Subsidiary and will undertake to
ensure than any change implemented under this paragraph comports with such legal
requirements.
7. Conduit Financing of Genco and Enterprises through Ventures and
Exelon Energy Delivery
Ventures and Exelon Energy Delivery seek authority to issue debt or
equity securities to Exelon for the purpose of facilitating Exelon's additional
investment in Genco or Enterprises and ComEd or PECO, respectively. These
intra-company conduit transactions shall not count against the aggregate
financing limitations applicable to Exelon or Genco.
F. Payment of Dividends out of Capital or Unearned Surplus by ComEd, PECO
or Exelon
1. Request for Authority to Pay Dividends
Section 12 of the 1935 Act, and Rule 46 thereunder, generally prohibit
the payment of dividends out of "capital or unearned surplus" except pursuant to
an order of the Commission. The legislative history explains that this
provision was intended to "prevent the milking of operating companies in the
interest of the controlling holding company groups." S. Rep. No. 621, 74th
Cong., 1st Sess. 34 (1935)./39/ In determining whether to permit a registered
holding company to pay dividends out of capital surplus, as discussed in the
1991 case involving
_____________________
/38/ See New Century Energies, Inc., Holding Co. Act Release No. 35-26750 (Aug.
1, 1997); Conectiv, Inc., Holding Co. Act Release No. 35-6833 (Feb. 26, 1998);
Dominion Resources, Inc., Holding Co. Act Release No. 35-27112 (Dec. 15, 1999);
SCANA Corporation, Holding Co. Act Release No. 35-27135 (Feb. 14, 2000).
/39/ Compare Section 305(a) of the Federal Power Act.
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Eastern Utilities Associates ("EUA"), the Commission considers various factors,
including: (i) the asset value of the company in relation to its capitalization,
(ii) the company's prior earnings, (iii) the company's current earnings in
relation to the proposed dividend, and (iv) the company's projected cash
position after payment of a dividend./40/ In recent cases, the Commission has
determined that holding company systems may continue to pay dividends although
retained earnings have been reduced or eliminated because of write-offs
associated with State utility regulation restructuring legislation or because of
application of generally accepted accounting principles to a merger involving
two previously unaffiliated companies./41/
For extraordinary reasons related to the adoption of utility
restructuring legislation in Illinois and Pennsylvania, and because of the
accounting for the Merger under generally accepted accounting principles, Unicom
and PECO have, and Exelon will have on a pro forma basis, unusual reductions in
retained earnings which would make it difficult in some cases to continue to pay
dividends at historical levels without such dividends being paid from paid-in-
capital. Generally accepted accounting principles will result in an elimination
of retained earnings at ComEd. Further, such elimination will have the effect
of limiting the amount of retained earnings at Exelon available for dividends.
Accordingly, Exelon requests authority to pay dividends out of
additional paid-in-capital up to the amount of $500 million. Exelon's primary
source of income and cash flow will be the earnings and cash flow of its
subsidiary companies, including ComEd and PECO and Exelon's retained earnings
will reflect the retained earnings of its subsidiaries. In addition, Exelon
requests authority for ComEd to pay dividends out of additional paid-in capital
up to the amount of $500 million, which is less than its retained earnings as of
June 30, 2000 ($667 million) which will be eliminated in the Merger as described
below. Exelon commits that it will not pay dividends out of paid-in-capital as
contemplated in this paragraph after December 31, 2002 if at any time after that
date its common equity is less than 30% of its Total Capitalization as set forth
in Item 1.D.5 above.
___________________
/40/ See Eastern Utilities Associates, Holding Co. Act Release No. 35-25330
(June 13, 1991) ("EUA"), and cases cited therein. Further, the payment of the
dividend must be "appropriate in the public interest." Id., citing Commonwealth
& Southern Corporation, 13 S.E.C. 489, 492 (1943).
/41/ See, e.g., National Grid USA, Holding Co. Act Release No. 35-27166 (April
14, 2000) ("push down" accounting eliminates retained earnings of acquired
company); National Grid Group, Holding Co. Act Release No. 35-27154 (Mar. 15,
2000)("capitalization ratio is not the true measure of [holding company's]
financial strength"); Northeast Utilities, Holding Co. Act Release No. 35-27147
(Mar. 7, 2000) (restructuring legislation, asset divestitures and securitization
resulted in EWG investments in excess of 50% of retained earnings and necessity
to paying dividends out of capital); SCANA Corporation, Holding Co. Act Release
No. 35-27135 (Feb. 14, 2000)(application of "push down" accounting eliminated
retained earnings of acquired company); Conectiv, Holding Co. Act Release
No. 35-27126 (Jan. 28, 2000)(charges to retained earnings resulting from un-
recovered stranded costs).
29
<PAGE>
2. Reasons for Reductions in Retained Earnings
Upon the consummation of the Merger, the retained earnings of Exelon
will consist of the retained earnings of PECO as the acquiring company for
accounting purposes. PECO's retained earnings were significantly reduced in
1997 as a result of one-time, non-cash accounting write-offs upon the
discontinuance of regulatory accounting practices. This reduction in retained
earnings reduces the amount that will be available for Exelon dividends.
Further, ComEd will not have retained earnings available for dividend payments
at the time of the Merger because of the application of the purchase method of
accounting to the Merger. All of Exelon's initial retained earnings will be the
retained earnings of PECO -- the Utility Subsidiary
PECO Energy Reductions to Retained Earnings. In 1997, regulatory and
legislative actions in Pennsylvania enacted with the objective of developing
more competitive markets for generation supply led PECO to conclude that it no
longer met the criteria for application of regulatory accounting principles to
the generation portion of its businesses. As a result, PECO recorded an
extraordinary loss of $1.833 billion (after-tax) due to the write-off of
unrecoverable generation assets, including net regulatory assets. The
extraordinary loss exceeded PECO's retained earnings balance and at the end of
1997 PECO's capital accounts reflected an accumulated deficit of $781 million.
Since 1997, steady earnings growth and a low dividend payout ratio have
increased PECO's common equity accounts to eliminate the accumulated deficit and
to achieve retained earnings of $14 million as of March 31, 2000 and $89 million
as of June 30, 2000.
ComEd's Retained Earnings Balances. In the fourth quarter of 1997, as
a result of utility restructuring legislation in Illinois and the
discontinuation of regulatory accounting, Unicom recorded an after tax reduction
to net income and retained earnings of $760 million. The reduction resulted
from the write off of regulatory assets ($810 million) offset by the net effect
of other items relating to the restructuring legislation (change in method of
revenue recognition, writedown of uranium investments, obsolete materials and a
customer refund). Partially in recognition of the changing utility industry,
Unicom also recognized a loss of $522 million in the fourth quarter of 1997
relating to the early retirement of its Zion Nuclear Station. These write-offs
reduced Unicom's retained earnings from $1.278 billion at September 30, 1997 to
a deficit of $21.2 million at December 31, 1997. At June 30, 2000, Unicom's
retained earnings were $562 million.
As a result of the application of the purchase method of accounting to
the Merger, the current retained earnings of Unicom will be recharacterized as
additional paid-in-capital. In addition, the Merger will give rise to a
substantial level of goodwill, the difference between the aggregate fair values
of all identifiable tangible and intangible (non-goodwill) assets on the one
hand, and the total consideration to be paid by PECO for Unicom for accounting
purposes and the fair value of the liabilities assumed, on the other. In
accordance with the Commission's Staff Accounting Bulletin No. 54, Topic 5J
("Staff Accounting Bulletin"), the goodwill will be "pushed down" to Unicom's
subsidiaries, principally ComEd and reflected as additional paid-in-capital on
ComEd's financial statements. The effect of these accounting practices will be
to
30
<PAGE>
leave ComEd with no retained earnings, the traditional source of dividend
payment, but, nevertheless, a strong balance sheet showing a significant equity
level./42/
In purchase accounting, the total value of the acquisition,
which must be assigned to ComEd's assets, is the total consideration to be paid
for Unicom, plus the fair value of all liabilities assumed in the acquisition.
Generally, goodwill is the residual balance of the total value remaining after
fair values have been assigned to all of Unicom's identifiable assets (both
tangible and non-goodwill intangible assets). Accordingly, the excess of the
purchase consideration over the fair market value of the acquired assets of
Unicom will be assigned to goodwill for generally accepted accounting purposes.
As indicated in the Staff Accounting Bulletin, registrants
that have substantially all (generally defined as in excess of 95%) of their
common stock acquired by a third party, in a business combination accounted for
under the purchase method, should reflect the push-down of goodwill in the
registrant's post-acquisition financial statements. For any post-acquisition
reporting of the consolidated Exelon and ComEd financial statements, push down
accounting will be reflected in those statements and the full amount of goodwill
associated with the ComEd acquisition will be reflected.
As a result of the application of purchase accounting, the
common equity of ComEd will adjusted as follows:
. Common stock - will continue to reflect the par value of the
common stock issued.
. Paid-in-capital - will reflect a value consistent with the
purchase price minus the par value recorded in the common
stock line.
. Retained earnings - will be reset to zero.
The resulting common shareholders' equity will equal the total consideration
paid for the entity.
_____________________
/42/ See National Grid USA, Holding Co. Act Release No. 35-27166 (April 14,
2000)("push down" accounting eliminates retained earnings of acquired company);
SCANA Corporation, Holding Co. Act Release No. 35-27135 (Feb. 14,
2000)(application of "push down" accounting eliminated retained earnings of
acquired company).
31
<PAGE>
Based on 1999 financial information and preliminary estimates
of the purchase price allocation, the application of these accounting principles
to the Merger will result in following adjustments to ComEd's books:
<TABLE>
<CAPTION>
($ in thousands) 1999 Adjustment Adjustment Adjustment Restated
(1) (2) (3)
<S> <C> <C> <C> <C> <C>
Common stock $2,677,995 $ 2,677,995
Paid-in-capital 2,194,750 $ 440,540 2,000,000 4,635,290
Retained earnings 433,001 (433,001) -
Accumulated comprehensive 7,539 (7,539) -
income, net
Treasury stock (10,370) (2,000,000) - (2,010,370)
Total equity $5,302,915 ($2,000,000) $2,000,000 $ 5,302,915
</TABLE>
Adjustment 1 - Repurchase of common stock prior to Merger
Adjustment 2 - Retained earnings accounts are restated as
Paid-in-Capital.
Adjustment 3 - Goodwill is added to Paid-in-Capital.
The goodwill created in connection with the Merger must be
amortized in accordance with generally accepted accounting principles. This
amortization will cause non-cash deductions from income before the determination
of net income and earnings which would result in increases to retained earnings.
Because of the additional charge caused by amortization, it will be more
difficult for ComEd to sustain earnings corresponding to its historical level.
However, given the anticipated payout ratio for both ComEd and PECO (i.e., the
percentage of earnings paid as dividends) Exelon believes that ComEd and PECO
will be able to pay dividends which will allow Exelon to pay its anticipated
common stock dividend./43/
3. Standards for Approval of Request
In support of their request, Exelon asserts that each of the
standards of Section 12(c) of the 1935 Act enunciated in the EUA case are
satisfied:
. After the Merger, and giving effect to the push down of
goodwill, Exelon's pro forma common equity as a percentage
of total capitalization will be 30%, consistent with the
traditional levels of common equity capitalization that
the Commission has authorized for other registered holding
company systems.
_________________
/43/ Compare National Grid USA, Holding Co. Act Release No. 35-27166 (April 14,
2000).
32
<PAGE>
Exelon's commitment to maintain its consolidated
capitalization at or above 30% common equity (including
securitization debt as discussed in the following paragraph)
should result in a capital structure consistent with
industry norms.
. The capital structures of ComEd and PECO will include
approximately $2.6 billion and $4.8 billion, respectively of
bonds rated AAA when issued and which securitized the future
cash flows provided for by restructuring legislation in
Illinois and Pennsylvania. Although the issuance of these
bonds increased the debt ratio of both companies, credit
rating agencies view the issuance of the bonds as enhancing
the overall credit quality of the utility because of (a) the
firm statutory framework and the elimination of uncertainty
about future stranded cost recovery and (b) the use by ComEd
and PECO of the proceeds of these securitization financings
to retire higher cost debt and preferred stock and to reduce
the costly equity component of their capital structures
consistent with the goals of the State restructuring
legislation./44/
. The anticipated capital structures considering the Merger
and the Restructurings for the companies are as follows:/45/
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------
Company Common Equity--Including Common Equity--Excluding
Securitized Debt Securitized Debt
-----------------------------------------------------------------------------------------------------
<S> <C> <C>
Exelon 30% 46%
-----------------------------------------------------------------------------------------------------
ComEd 36% 47%
-----------------------------------------------------------------------------------------------------
PECO 16% 36%
-----------------------------------------------------------------------------------------------------
</TABLE>
__________________
/44/ For example, the May 1999 Standard & Poor's credit report for PECO provided
as follows: "Financial strength is derived from healthy internal cash
generation, rapid debt reduction which is accelerated by the securitization
financing, and aggressive cost controls. PECO Energy has an initial leverage
target of about 60% following application of its securitization proceeds to
shrink capitalization, but this ratio is expected to decline in the next two to
three years to about 45%. Adjusted funds from operations to interest coverage
and funds from operations to total debt are expected to strengthen rapidly
because of he company's cash-generating ability." The report also noted that
"PECO Energy's withdrawal of $3.3 billion of retired bond credits related to the
company's securitization is the primary reason for raising the secured rating."
/45/ As shown in the table, Exelon, ComEd and PECO are expected to have a common
equity ratio consistent with the Commission's generally applicable standard of
at least 30% except in the case of PECO when the effect of securitization bonds
are included in the capitalization ratio calculation. The Commission has
--------
approved disregarding securitization bonds for purposes of the capitalization
ratio calculation. West Penn Power Co., Holding Co. Act Release No. 35-27091
(Oct. 19, 1999) (equity component of capitalization was 15% including
securitization bonds and pollution control bonds). The calculations of
capitalization in this Application-Declaration include the transfer of
approximately $369 million of pollution control bonds from PECO to Genco. See
note 12 above.
33
<PAGE>
. ComEd and PECO each have a favorable history of prior earnings
and each has a long record of consistent dividend payments./46/
. Applicants anticipate that ComEd's and PECO's cash flow after the
Merger will not differ significantly from its pre-Merger cash
flow and that earnings should remain stable post-Merger (even
with the amortization of goodwill that will be necessary as a
result of the merger). Based on the anticipated dividend for
Exelon and estimated earnings for 2001, dividends paid out of
future earnings will reflect a dividend payout ratio of between
30% and 40 % of consolidated net income (calculated after the
non-cash deductions required for amortization of goodwill).
Exelon believes this payout ratio will be sufficient to pay
Exelon's expected annual dividend of $1.69 per share while
retaining significant amounts of earnings to fund future growth
in Exelon's business and provide additional equity cushion
against future unforeseen events.
. The projected cash position of Exelon, ComEd and PECO after the
Merger will be adequate to meet the obligations of each company
and all these companies expect to have adequate cash to pay
dividends in the amounts currently contemplated. The annual
dividend requirement of Exelon, assuming a dividend of $1.69 per
share and the number of shares of common stock which will be
issued in the Merger, is $533 million. Exelon is expected to have
free
___________________
46 In recent years, ComEd's net income and common dividends and preferred
dividends of subsidiary have been:
<TABLE>
<CAPTION>
Year Net Income (Loss Dividends Paid
($ millions) ($ millions)
<S> <C> <C>
1995 717 410
1996 743 407
1997 (773) 403
1998 594 398
1999 624 351
</TABLE>
In recent years, PECO's net income and common and preferred dividends have been:
<TABLE>
<CAPTION>
Year Net Income (Loss) Dividends Paid
($ millions) ($ millions)
<S> <C> <C>
1995 610 390
1996 517 412
1997 (1,497) 417
1998 513 236
1999 582 208
</TABLE>
34
<PAGE>
cash flow (cash from operations less capital expenditures and
dividends) well in excess of the dividend requirement.
. The proposed dividend payments are in the public interest. ComEd
and PECO are in sound financial condition as indicated by their
credit ratings. ComEd's senior secured bonds were rated Baa2 by
Moody's Investors Service, Inc. prior to announcement of the
Merger and, following announcement, were upgraded to Baa1. PECO's
senior secured bonds are rated Baa1 by Moody's Investors Service,
Inc. The expectations of continued strong credit ratings by ComEd
and PECO should allow them and Exelon to continue to access the
capital markets to finance operations and growth. Further, Exelon
expects to have an investment grade rating following the Merger.
In addition, the dividend payments are consistent with investor
interest. Dividends typically comprise a significant part of
shareholder total return for utility stocks and a decrease in the
rate of dividend or the elimination of dividends could have an
adverse affect on Exelon's stock price. Exelon has announced that
the anticipated dividend for Exelon following the Merger will be
$1.69 per share.
G. Rule 53 and Rule 54 Analysis
1. Rule 53 Requirements.
Rule 53 provides that, if each of the conditions of paragraph (a)
thereof is met, and none of the conditions of paragraph (b) thereof is
applicable, then the Commission may not make a finding that the issuance or sale
of a security by a registered holding company for the purposes of financing the
acquisition of an EWG or the guarantee of a security of an EWG by a registered
holding company is not reasonably adapted to the earning power of such company
or to the security structure of the companies in the holding company system, or
that the circumstances are such as to constitute the making of such guarantee an
improper risk for the company. Generally, paragraph (a) limits the aggregate
amount invested in EWGs and FUCOs to not more than 50% of the holding company's
consolidated retained earnings. Paragraph (b) relates to certain events of
bankruptcy and recent significant declines in the amount of consolidated
retained earnings.
At June 30, 2000, the pro forma consolidated amount of Exelon's
aggregate investment in EWGs and FUCOs as that term is defined in Rule 53 and
adjusted for the acquisition of the Oyster Creek station on August 8, 2000 was
$64 million./47/ At December 31,
____________________
/47/ The definition of aggregate investment in EWGs and FUCOs includes all
amounts invested, or committed to be invested, in EWGs and FUCOs for which there
is recourse, directly or indirectly, to Exelon. The only existing EWG investment
is PECO's investment in AmerGen which was recorded at $59.8 million at June 30,
2000. In addition, PECO has issued letter agreements to provide funding up to a
total of $100 million to be available to AmerGen in connection with the
operation and maintenance of all of the commercial nuclear power reactors
acquired or to be acquired by AmerGen. On August 14, 2000 PECO announced its
agreement to acquire 49.9% of Sithe Energies for $682 million.
35
<PAGE>
1999, the pro forma consolidated retained earnings of Exelon, as defined, was
negative48 while the June 30, 2000 number was $89 million. Consequently, Exelon
will not satisfy the safe harbor requirement of Rule 53(a). As outlined in this
Application-Declaration, however, Exelon is seeking authority to use the
proceeds of financings authorized herein to acquire additional investments in
EWGs and/or FUCOs up to an aggregate investment of $5.5 billion. For the reasons
outlined below, Exelon seeks authority to apply the proceeds of financings
authorized herein to the acquisition of additional investments in EWGs and FUCOs
so long as its aggregate investment in EWGs and FUCOs (as that term is defined
in Rule 53) does not exceed $5.5 billion (the "Modified Rule 53 Test").49 Exelon
requests that the Commission approve an aggregate limitation of $2 billion
immediately and reserve jurisdiction over the remaining $3.5 billion pending
completion of the record. Exelon will finance the activities of EWGs and FUCOs
on a basis that is non-recourse to Exelon to the extent that such financing
would be the most cost effective means of funding such activities and otherwise
comport with Exelon's overall corporate goals.
As of the date hereof, the only interest in EWGs of the Exelon
System is through PECO's investment in AmerGen.50 AmerGen, which is 50% owned by
PECO, is an EWG that owns the Clinton Power Station located in Clinton,
Illinois, the Three Mile Island Unit 1 Nuclear Generating Facility located near
Middletown, Pennsylvania and the Oyster Creek Nuclear Generating Station located
near Toms River, New Jersey. AmerGen is in the process of acquiring the Vermont
Yankee Nuclear Power Station. It is anticipated that AmerGen will acquire
ownership of the Vermont Yankee facility by December 31, 2000. Exelon had no
investments in FUCOs at the date of the Merger.
2. Exelon's Compliance with Rule 53 Requirements.
Giving effect to the proposals contained herein Exelon will
satisfy all of the conditions of Rule 53(a) except for clause (1) thereof, which
requires that the aggregate at risk investment of the registered holding company
in EWGs and FUCOs not exceed 50% of the holding company system's consolidated
retained earnings./51/ None of the conditions specified in Rule 53(b) is or will
be applicable./52/ Exelon will demonstrate below why complying with its
___________________
/48/ Proforma Consolidated retained earnings is the average of reported
consolidated retained earnings over the four quarters ended June 30, 2000.
/49/ For this purpose, retained earnings would be calculated in accordance with
generally accepted accounting principles and would not include amounts relating
to write-offs as discussed above in connection with the payment of dividends out
of capital.
/50/ Exelon seeks authority to finance for further investments in EWGs and FUCOs
as described herein.
/51/ The other requirements of Rule 53(a) provide (1) that the holding company
keep certain books and records relating to EWGs and FUCOs in accordance with
generally accepted accounting principles, (2) limitations on the number of
employees of a domestic public utility company in the holding company system who
may provide services for the EWGs and FUCOs and (3) for the holding company to
make certain filings. Exelon undertakes to comply with the forgoing
requirements. However, as noted in the Merger U-1, Genco, a "domestic public
utility" will seek authority to provide certain services to EWGs and FUCOs. See
"Insulation from Risk" below.
36
<PAGE>
proposed Modified Rule 53 Test will not result in any adverse consequences to
Exelon, its Utility Subsidiaries or Exelon investors.
As described above in Item 1.F., for extraordinary reasons
related to the adoption of utility restructuring legislation in Illinois and
Pennsylvania, and because of the accounting for the Merger under generally
accepted accounting principles, Unicom and PECO have, and Exelon will have on a
pro forma basis, unusual reductions in retained earnings. But for the
extraordinary write-offs necessitated by utility restructuring legislation in
Illinois and Pennsylvania, Unicom and PECO would have had retained earnings that
would have supported aggregate investments in EWGs and FUCOs of $8 billion --
significantly more than the amount being requested for Exelon./53/ The
Commission has considered, in determining to approve investments in EWGs in
excess of the Rule 53 limit, similar situations where previously significant
amounts of retained earnings were eliminated because of extraordinary
events./54/ Most importantly, as noted above, Exelon will be a financially sound
holding company with significant equity. The Commission has recognized in
similar circumstances that investments in EWGs and FUCOs in excess of the
limitations imposed under Rule 53 would not result in a substantial adverse
impact on the financial integrity of the registered holding company system./55/
Rule 53(c) states that, in connection with a proposal to issue
and sell securities to finance an investment in an EWG, or to guarantee the
securities of an EWG, a registered holding company that is unable to satisfy,
among other provisions, the provision that such investments may not exceed 50%
of consolidated retained earnings, must "affirmatively demonstrate" that such
proposal:
_______________________________________________________________________________
/52/ Rule 53(b) makes the safe harbor unavailable if (1) the holding company or
certain subsidiaries have been in bankruptcy, (2) the holding company's
consolidated retained earnings have declined more than 10% from the prior year
measured as provided in the rule or (3) the holding company has reported
operating losses related to its EWG or FUCO investments.
/53/ Adjusted to exclude the extraordinary losses in 1997 for restructuring
charges, PECO's retained earning balance as of June 30, 2000 would be $1.92
billion. Adjusted to exclude the extraordinary losses in 1997 for restructuring
charges, Unicom's retained earnings balance as of June 30, 2000 would be $1.45
billion. In National Grid USA, Holding Co. Act Release No. 35-27166 (April 14,
2000) the Commission approved an aggregate investment of about 250% of retained
earnings. Applying this percentage to Unicom's adjusted retained earnings would
produce an aggregate investment limit of $3.6 billion. Applying the percentage
to PECO's adjusted retained earnings would produce a limit of $4.8 billion.
While, as noted herein, the accounting for the Merger would eliminate Unicom's
retained earnings, the PECO amount alone constitutes a substantial portion of
Exelon's requested limitation.
/54/ Conectiv, Holding Co. Act Release No. 35-27111 (Dec. 14, 1999).
/55/ See, Northeast Utilities, Holding Co. Act Release No. 35-27148 (Mar. 7,
2000); Conectiv, Holding Co. Act Release No. 35-27111 (Dec. 14, 1999)
(write-offs resulting from de-regulation legislation and previous merger
eliminating acquired company's retained earnings). See also, Cinergy Corp.,
Holding Co. Act Release No. 35-27190 (June 23, 2000).
37
<PAGE>
(i) will not have a substantial adverse impact upon the
financial integrity of the registered holding company
system; and
(ii) will not have an adverse impact on any utility
subsidiary of the registered holding company, or its
customers, or on the ability of State commissions to protect
such subsidiary or customers.
The Commission has considered the "no substantial adverse
impact" in two types of circumstances: (1) where a holding company has not
satisfied the safe harbor because of extraordinary circumstances and (2) where a
holding company has sought to increase its aggregate investment beyond the 50%
of consolidated retained earnings safe harbor.
The Commission has dealt with several cases recently where a
holding company system's consolidated retained earnings were reduced because of
changes brought about by state utility law restructuring or deregulation./56/
Write-offs reducing retained earnings have been caused by stranded costs,
disposition of generating assets, the purchase accounting required in certain
mergers and other factors. The Commission has recognized that these are
extraordinary events and, while retained earnings have been reduced, the changes
causing such reduction have not adversely affected the fundamental financial
strength of the holding company system. As described in Item 1.F.2. above,
Exelon is in a similar situation because of State utility regulation
restructuring in Illinois and Pennsylvania and other factors.
The second major area where the Commission has performed an
analysis of the requirements of Rule 53(c) is with respect to
applications/declarations filed by a number of the registered holding companies
seeking authority to increase their aggregate investment in EWGs and FUCOs to
100% of consolidated retained earnings./57/ In these 100% cases, and in the
situations of reduced retained earnings caused by extraordinary situations, the
Commission has examined various factors indicating that non-compliance with the
Rule 53(a) safe harbor should not prevent Commission approval of additional
financing for EWGs and FUCOs.
As noted in the Merger U-1, there have been significant
changes to the electric utility industry in recent years. One profound change
has been the divestiture by many
___________________
/56/ Northeast Utilities, Holding Co. Act Release No. 35-27148 (Mar. 7, 2000);
Northeast Utilities, Holding Co. Act Release No. 35-27147 (Mar. 7, 2000)
(restructuring legislation, asset divestitures and securitization resulted in
EWG investments in excess of 50% of retained earnings and necessity to paying
dividends out of capital); Conectiv, Holding Co. Act Release No. 35-27126 (Jan.
28, 2000)(charges to retained earnings resulting from un-recovered stranded
costs).
/57/ See The Southern Company ("Southern"), Holding Co. Act Release No. 35-26501
(April 1, 1996); Central and South West Corporation ("CSW"), Holding Co. Act
Release No. 35-26653 (Jan. 24, 1997); GPU, Inc. ("GPU"), Holding Co. Act Release
No. 35-26779 (Nov. 17, 1997); Cinergy, Inc. ("Cinergy"), Holding Co. Act Release
No.35-26848 (March 23, 1998); American Electric Power Company, Inc. ("AEP"),
Holding Co. Act Release No. 35-26864 (April 27, 1998); and New Century Energies,
Inc. ("New Century"), Holding Co. Act Release No. 35-26982 (February 26, 1999)
(collectively, the "100% Orders").
38
<PAGE>
traditional vertically integrated utilities of their generation. Generation is
developing as a viable business which may, but need not be, associated with
transmission and distribution companies. The generation business is a key to
Exelon's business strategy. The creation of Genco will combine all the
generating resources of Exelon, including the investment in AmerGen. Exelon
wishes to have the flexibility to acquire additional generation resources in the
United States as they become available. Further, Exelon has plans to develop
additional "greenfield" generation which will add to the nation's energy supply
and enhance competition in generation markets. These factors suggest that the
Commission should not be constrained by the very conservative approach taken in
Rule 53. At the time that rule was adopted (1993), the market for electricity
generation was just beginning to develop and State deregulation activity had not
commenced (California's landmark deregulation legislation was in 1996). The
Commission should not adopt a policy that will hamper the continued development
of a competitive market for electric generation and the resulting benefits to
consumers.
In the U.S., competition and deregulation are redefining the
utility industry. The prototype "utility company" (vertically integrated,
operating entirely on a local or regional basis, deriving substantially all
earnings from regulated, monopoly sales) is, or soon will be, defunct. To
prepare for the onset of fully competitive markets, utilities are "reinventing"
themselves -- restructuring their businesses, including through asset sales
(whether voluntarily or as a result of state or other regulatory mandates),
pursuing mergers and acquisitions including "convergence" gas/electric
transactions, and diversifying into non-traditional businesses, such as
wholesale energy marketing and foreign utility acquisitions. To compete
effectively in this new environment, Exelon must have the opportunity to build
scale and scope in these non-traditional "nonutility" businesses which are now
not only commonplace, but integral and vital. One of the most significant
industry dynamics is the growing divestiture of generating assets in the U.S. by
traditional electric utilities, in many cases under legislative or regulatory
mandates. Since 1997, U.S. investor-owned electric utilities have sold
approximately 70 gigawatts ("GW") of generating assets. The combination of these
completed sales, together with pending sales transactions at December 31, 1999,
cover 24 % of the total installed generation capacity owned by U.S. investor-
owned electric utilities at December 31, 1997. If transfers or proposed
transfers to unregulated affiliates are also included, the total rises to 31.6
%./58/
The limitation of Rule 53, covering investments in both U.S.
wholesale generating facilities and foreign utility assets, would prevent Exelon
from actively participating as a buyer or bidder in even one of these markets,
much less both. The reason is the large dollar investments required to close
major transactions, as compared to the investment capacity available under Rule
53. The capability to bid on the full range of available opportunities in both
markets, including especially the larger, more significant transactions, is
vital to Exelon's growth strategies, just as it is for Exelon's competitors. To
survive in the restructured utility industry, Exelon needs to compete on an
equal footing with other participants. Some competitors are not
________________
/58/ Edison Electric Institute, "Divestiture Action & Analysis," January 2000
Issue.
39
<PAGE>
subject to the limitations of the Act; others are subject to the Act but have
authority to invest in EWGs and FUCOs in amounts in excess of the Rule 53
limitation.
Additional investments in EWGs and FUCOs and financing for
such purposes will not have a "substantial adverse impact" on the financial
integrity of the Exelon System. The lack of any "substantial adverse impact" on
Exelon's financial integrity can be demonstrated in several ways:
. Exelon will be created by the merger of two companies which
have not been subject to the Act. PECO, which has
substantially all of the investment in EWGs and FUCOs
applicable to Exelon, was recognized as a financially sound
company notwithstanding the reductions to its retained
earnings caused by the factors outlined above.
. The investment in EWGs has a history of positive impact on
PECO's operating results. The equity in the earnings of
AmerGen for the six months ended June 30, 2000 was $20
million (the first full quarters in which AmerGen was in
operation)./59/
. The generating stations operated by AmerGen, which will
constitute substantially all of Exelon's investments in
EWGs immediately after the Merger, represent unique
investment opportunities in nuclear power plants in good
physical condition with experienced nuclear operating
organizations that have the potential to operate as
baseload units at a high capacity factor producing low cost
power over an extended period of time. For example, the
Three Mile Island-1 plant is widely regarded as one of the
top performing pressurized water reactor (PWR) plants in
the country and the Clinton plant is a relatively new
boiling water reactor (BWR) plant which was shutdown for an
extended period and has over 25 years remaining on its
original NRC operating license. The coordinated operation
of multiple plants within a larger nuclear organization,
rather than as stand-alone plants, offers the potential for
greater operational efficiencies and economies of scale.
The sharing of best management, safety, maintenance, and
operating practices within such an organization, coupled
with a diversity of reactor designs and plant locations,
also reduces the risk and potential impact of prolonged
outages due to technical problems or local regulatory
concerns.
. Although pro forma retained earnings at June 30, 2000 are
only $89 million, Exelon's retained earnings are expected
to increase steadily during the Authorization Period as a
result of a conservative payout ratio. If the $667 million
of retained earnings of ComEd at June 30, 2000 (which will
be eliminated by push down accounting) were included,
Exelon's initial request for $2 billion aggregate
investment in EWGs and TUCOs would constitute 264% of that
hypothetical retained earnings of $756 million. This
percentage is consistent with the Commission precedent in
National Grid Group plc, Holding Co. Act Release No.
35-27154 (March 15, 2000). (A $4 billion investment would
be 529%). Exelon is
_____________________
/59/ AmerGen commenced operations in December 1999 with the acquisition of
Clinton and Three Mile Island stations. PECO recorded an equity loss of $486,000
in 1999 reflecting PECO's 50% share of AmerGen's start-up costs.
40
<PAGE>
seeking authorization only to increase its aggregate
investment by an amount equal to 100% of this increase in
retained earnings -- a percentage the Commission has
approved on numerous occasions./60/
. On a pro forma basis, Exelon's financial condition and
anticipated financial performance will be within the range
found acceptable by the Commission in other cases as
demonstrated below.
. PECO Energy Strategic Approval Process Summary
The Board of Directors of PECO Energy established
authorization oversight levels for investments in capital
expenditures, mergers, acquisitions, new businesses,
divestitures, and contracts. PECO Energy has a comprehensive
development, review and approval process for investments
that indicates specific review and approval delegations from
the Board of Directors through corporate officers. This
process is internally referred to as the Strategic Asset
Management Approval Process (SAMAP). The SAMAP committee
consists of Corbin McNeill, Jr. and his direct reports. Each
project is independently reviewed by the Corporate Project
evaluations staff for completeness of the analysis and
adherence to corporate valuation standards.
All acquisitions above $25 million in consideration are
reviewed through the SAMAP process and are approved by the
Board of Directors. Non-nuclear acquisitions with
consideration below $25 million are approved by the PECO
Energy senior management team. Nuclear acquisitions below
$25 million of consideration are reviewed by senior
management and approved jointly by the Finance and Nuclear
committees of the Board.
The SAMAP process begins with the development of a business
case. Each investment is reviewed several times by a cross
functional committee (FRG) who reviews the assumptions,
analysis and strategic alignment of the investments. This
committee is composed of individuals from various functional
areas including legal, tax, accounting, treasury, corporate
development and information systems. It is anticipated that
Exelon will adopt a similar process. The FRG provides a
memorandum to senior management indicating any open issues
or areas of concern regarding the investment. The FRG does
not have approval authority for investments.
SAMAP meets, reviews the investment documentation in
conjunction with the input from the FRG and Corporate
Project Evaluations, discusses the investment and renders
a decision whether the investment should be made,
abandoned or additional analysis performed.
. ComEd and PECO are expected to be able to provide for their
capital needs through the Authorization Period through
internally generated funds and other anticipated sources
including their own debt or preferred securities financing
and do not expect need to rely on Exelon for additional
funding during the Authorization Period.
_________________________
/60/ See the "100% Orders" referred to above.
41
<PAGE>
The following paragraphs provide data analyzing the impact of the
investments in EWGs and FUCOs on the Exelon System in light of the tests
developed by the staff in the course of adopting the 100% Orders. These tests
involve analysis of:
Ratios of EWG/FUCO investment to:
. Consolidated Capitalization
. Consolidated Net Utility Plant
. Total Consolidated Assets
. Market Value of Outstanding Stock
. Growth in consolidated retained earnings
Stock price to earnings ratio
Market to book ratio
Dividend payout ratio
Capitalization ratios
Capitalization Ratios. Exelon's proposed $5.5 billion
---------------------
aggregate investment in EWGs would represent a reasonable commitment of Exelon
capital for a company the size of Exelon, based on various financial ratios at
June 30, 2000.61 For example, investments of this amount would be equal to only
approximately:
24.2 % of Exelon's total consolidated capitalization ($22.7
billion),/62/
31.6 % of consolidated net utility plant ($17.4 billion),
15.2 % of total consolidated assets ($36.3 billion), and
35.7 % of the pro forma market value of Exelon's outstanding
common stock ($15.4 billion)/63/
___________________
/61/ For purposes of the analysis an aggregate investment of $5.5 billion is
used. The comparable figure for the amount immediately requested --
$2 billion--and for $4 billion is set out in the table below.
/62/ This calculation of pro forma capitalization includes securitization
debt. The figure excluding securitization debt would be about $14.9 billion and
the aggregate investment would be about 37%.
42
<PAGE>
The table below illustrates that Exelon's exposure to EWG/FUCO
investments will be comparable to the companies who received the 100% Orders. In
several categories, the percentage applicable to Exelon (which is pro forma at
June 30, 2000) is well below the highest percentage found reasonable by the
Commission in the 100% Orders.
<TABLE>
<CAPTION>
Investments in EWGs and FUCOs as a percentage of:
-------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
Company Consolidated Consolidated Net Consolidated Total Market Value of
Capitalization Utility Plant Assets Common Stock
----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Southern 16.3 15.4 11.0 20.4
----------------------------------------------------------------------------------------------------------------------
CSW 23.0 23.0 14.0 31.0
----------------------------------------------------------------------------------------------------------------------
GPU 24.9 34.2 19.4 49.8
----------------------------------------------------------------------------------------------------------------------
Cinergy 16.0 16.0 11.0 19.0
----------------------------------------------------------------------------------------------------------------------
AEP 16.0 13.8 9.8 18.5
----------------------------------------------------------------------------------------------------------------------
Entergy Corp. 18.6 17.4 11.7 43.8
----------------------------------------------------------------------------------------------------------------------
New Century 13.7 11.8 9.1 12.5
----------------------------------------------------------------------------------------------------------------------
National Grid 46.6 N/A 33.0 7.8
----------------------------------------------------------------------------------------------------------------------
Cinergy 2000/64/ 24.3 24.6 16.5 47.9
----------------------------------------------------------------------------------------------------------------------
Average 22.2 19.5 15.1 27.9
------- ---- ---- ---- ----
----------------------------------------------------------------------------------------------------------------------
Exelon Aggregate 24.2 31.6 15.2 35.7
Investment ($5.5
billion)
----------------------------------------------------------------------------------------------------------------------
Exelon Aggregate 18.9 23.3 11.1 28.2
Investment ($4
billion)/65/
----------------------------------------------------------------------------------------------------------------------
Exelon Aggregate 8.8 11.5 5.5 12.9
Investment ($2
billion)
----------------------------------------------------------------------------------------------------------------------
</TABLE>
________________________________________________________________________________
/63/ The market value of Exelon common stock is calculated using an assumed
value of $48.9375 per share times the number of shares of Exelon common stock
expected to be outstanding following the merger. The closing price of PECO on
August 15, 2000 was $48.9375. Unicom's closing price on that date was $46.25.
Data for other companies taken from public filings. Market value for National
Grid estimated based $38.125 per share at October 7, 1999 as reported from New
York Stock Exchange data.
/64/ Cinergy Corp., Holding Co. Act Release No. 27190 (June 23, 2000)
(aggregate limit in EWGs and FUCOs of $1.58 billion consisting of its current
investment of $580 million plus $1 billion additional).
/65/ At this level, the amount for which Exelon is requesting immediate
approval, Exelon would be well below the average in each category except one and
significantly below the Cinergy 2000 precedent.
43
<PAGE>
The most recent Commission order relating to investments in
EWGs and FUCOs was for Cinergy Corp. Based upon financial information derived
from Cinergy's most recent Annual Report on Form 10-K, dated March 31, 2000, an
aggregate investment in EWGs and FUCOs of $1.58 billion would represent:
. 24.3% of Cinergy's consolidated capitalization ($6.5 billion);
. 24.6% of Cinergy's consolidated net utility plant ($6.4 billion);
. 16.5% of Cinergy's consolidated as sets ($9.6 billion); and
. 47.9% of the market value of Cinergy's outstanding stock ($3.3
billion).
Applying the same percentages to Exelon's pro forma financial
amounts to calculate an equivalent aggregate investment for Exelon produces the
following:
. 24.3% of Exelon's consolidated capitalization ($22.7 billion)
equals $5.52 billion;
. 24.6% of its consolidated net utility plant ($17.4 billion)
equals $4.28 billion;
. 16.5% of its consolidated assets ($36.3 billion) equals $5.99
billion; and
. 47.9% of the market value of outstanding stock ($15.4 billion)
equals $7.38 billion.
Applying the average percentages found on the table above to
Exelon's pro forma financial amounts to calculate an equivalent aggregate
investment for Exelon produces the following:
. 20.1% of Exelon's consolidated capitalization ($22.7 billion)
equals $4.56 billion;
. 21.2% of its consolidated net utility plant ($17.4 billion)
equals $3.69 billion;
. 13.6% of its consolidated assets ($36.3 billion) equals $4.94
billion; and
. 31.1% of the market value of outstanding stock ($15.4 billion)
equals $4.79 billion.
These comparisons clearly show that Exelon's immediate request
for an aggregate limitation on EWG and FUCO investments of $2 billion is well
within existing precedent.
Consolidated Retained Earnings Growth. As a result of declining
-------------------------------------
payout ratios, preferred stock redemptions and excluding the extraordinary
losses in 1997, the retained earnings balances of both Unicom and PECO had been
increasing since 1994. Adjusted to exclude the extraordinary losses in 1997 for
restructuring charges, PECO's retained earning balance as of June 30, 2000 would
be $1.92 billion, or a 137% increase since 1994. Adjusted to exclude the
extraordinary losses in 1997 for restructuring charges, Unicom's retained
earnings balance as of June 30, 2000 would be $1.45 billion, or a 158% increase
since 1994. Excluding the effects of the write-offs in 1997, Unicom and PECO had
earnings consistent with this performance and have seen strong earnings growth
in recent years:
44
<PAGE>
<TABLE>
<CAPTION>
Unicom PECO
------ ----
------------------------------------------------------------------------------------------------------------------------
1998 over 1997 1999 over 1998 1998 over 1997 1999 over 1998
------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Net income growth (%) 18.8 11.7 56.3 14.1
------------------------------------------------------------------------------------------------------------------------
Earnings per share 17.6 11.5 55.6 29.9
growth (%)
------------------------------------------------------------------------------------------------------------------------
</TABLE>
Share Price to Earnings Ratio. The financial strength
-----------------------------
anticipated for Exelon is reflected in the current Price/Earnings ratios of
Unicom and PECO, both of which exceed industry averages. Unicom's P/E ratio as
of May 16, 2000 was 13.2 and PECO's was 12.5, compared to the average for
utilities in the Standard & Poor's Electric Utility Index of 11.6.
Market to Book Ratio. Exelon's market to book ratio is
--------------------
currently 2.29 based on a pro forma book value of $ 21.36 per share as of June
30, 2000 and an assumed market price of $48.9375 per share. This ratio is above
the industry average, which was 1.76 as of August 16, 2000 according to Factset
Research Systems estimates.
Dividend Payout Ratio. Unicom's current payout ratio is 48%
---------------------
based on First Call consensus estimates for 2000. PECO's current payout ratio is
28%. Based on the anticipated dividend and estimates for 2001 earnings Exelon's
payout ratio will be approximately 30% to 40%. This range is below the industry
average of 64.2% reflecting Exelon's response to increasing competition and
other challenges facing the industry. A payout ratio at this level will enable
Exelon to build its equity cushion to support future growth.
Capitalization Ratios. The credit ratings from major
---------------------
nationally recognized rating agencies for Unicom and ComEd and PECO are set out
the in the table below. All three rating agencies that rate ComEd's securities
raised their ratings in 1999. The Exelon system's ratings as of October 20, 2000
from Standard & Poor's, Moody's and FitchIBCA are as follows:/66/
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------
Company and type of rating S&P Moody's Fitch
---------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Exelon A- Baa3 BBB
---------------------------------------------------------------------------------------------
ComEd -- -- --
---------------------------------------------------------------------------------------------
. Secured A- Baa1 A
---------------------------------------------------------------------------------------------
. Unsecured BBB+ Baa2 BBB
---------------------------------------------------------------------------------------------
</TABLE>
/66/ S&P (corporate rating); Moody's (issuer rating); Fitch (senior unsecured
implied rating).
45
<PAGE>
<TABLE>
---------------------------------------------------------------------------------------------
<S> <C> <C> <C>
. Preferred Stock BBB Baa2 BBB
---------------------------------------------------------------------------------------------
. Commercial Paper A-2 P-2 NA
---------------------------------------------------------------------------------------------
PECO -- -- --
---------------------------------------------------------------------------------------------
. Corporate A- Baa1 A-
---------------------------------------------------------------------------------------------
. Unsecured BBB+ Baa2 BBB+
---------------------------------------------------------------------------------------------
. Preferred Stock BBB baa2 BBB
---------------------------------------------------------------------------------------------
. Commercial Paper A-2 P-2 F-2
---------------------------------------------------------------------------------------------
</TABLE>
Rule 53(b) Factors. With respect to the relevant financial
------------------
benchmarks specifically contemplated by Rule 53(b), none is applicable:
. there has been no bankruptcy of Unicom or any of its
associate companies or of PECO or any of its associate
companies. (Rule 53(b)(1));
. pro forma average consolidated retained earnings for
the four most recent quarterly periods have not
decreased by more than 10% from the average for the
preceding four quarterly periods (Rule 53(b)(2));
. Exelon's aggregate investment in EWGs and FUCOs at June
30, 2000, did not exceed 2% of Exelon's pro forma
consolidated capital invested in utility operations;
and
. in the previous fiscal year, neither Unicom nor PECO
reported operating losses attributable to its direct or
indirect investments in EWGs and FUCOs that exceeded an
amount equal to 5% of their consolidated retained
earnings (Rule 53(b)(3))./67/
/67/ AmerGen commenced operations in December 1999 with the acquisition of
Clinton and Three Mile Island stations. PECO recorded an equity loss of $486,000
in 1999 reflecting PECO's 50% share of AmerGen's start-up costs.
46
<PAGE>
Exelon undertakes to notify the Commission by filing a
post-effective amendment in this proceeding in the event that any of the
circumstances described in Rule 53(b) arise during the Authorization Period.
Impact of Investments in EWGs and FUCOs on Utility
--------------------------------------------------
Subsidiaries. Exelon's request in this Application/Declaration to authorize the
------------
existing and proposed investments in EWGs and FUCOs will not have an "adverse
impact" on either ComEd or PECO, their respective customers, or on the ability
of the Illinois Commission or the Pennsylvania Commission to protect such
Utility Subsidiaries or such customers./68/
This conclusion is supported by (i) the insulation of ComEd
and PECO and their customers from potential direct adverse effects of Exelon's
investments in EWGs and FUCOs; (ii) the effects of utility regulation
restructuring in Illinois and Pennsylvania, including the retail rate caps and
rate freeze imposed on ComEd and PECO and the opening of the energy supply
business to retail customer choice, (iii) ComEd's and PECO's current financial
health and (iv) the proven effectiveness of state commission oversight over
ComEd and PECO.
Insulation from Risk. All of Exelon's investments in EWGs and
--------------------
FUCOs are, and in the future will remain, segregated from ComEd and PECO. Any
losses that may be incurred by such EWGs and FUCOs would have no effect on the
rates of ComEd or PECO -- even after the rate caps and rate freezes now in
effect expire. Exelon represents that it will not seek recovery through higher
rates from ComEd or PECO utility customers in order to compensate Exelon for any
possible losses that it or any Subsidiary may sustain on the investment in EWGs
or FUCOs or for any inadequate returns on such investments.
Moreover, to the extent that there may be indirect impacts on
ComEd or PECO from Exelon's EWG and FUCO investments through effects on Exelon's
capital costs, the Illinois Commission and the Pennsylvania Commission have
broad discretion to set the cost of capital for the utility subject to their
jurisdiction by a variety of accepted means and are free to exclude any adverse
impacts due to EWGs and FUCOs. Therefore, the state commissions have the
authority and the mechanisms to prevent any adverse effects on the cost of
capital due to investments in EWGs and FUCOs from being passed on to utility
customers.
Exelon will comply with the requirements of Rule 53(a)(3)
regarding the limitation on the use of ComEd and PECO employees in connection
with providing services to EWGs and FUCOs. The restructuring of ComEd and PECO
and the creation of Genco is not anticipated to have any major impact on
utilization of Utility Subsidiary employees, except for personnel adjustments
related to the integration of two previously independent organizations. Neither
ComEd nor PECO will increase staffing levels to support the operations of any
EWG or FUCO. AmerGen operations will be conducted by those employees currently
engaged in that business. Development of new EWG or
_______________
/68/ No other Utility Subsidiary is subject to rate regulation by a state
commission. Genco is not a public utility for state law purposes and none of the
other Utility Subsidiaries (the Indiana Company and the Conowingo Companies) has
any retail customers. References to PECO refer to its distribution and
transmission function only because its generating assets will be distributed to
Genco.
47
<PAGE>
FUCO projects will be conducted through Genco, one or more Subsidiaries of Genco
and/or Exelon Services./69/
As noted in the Merger U-1, Genco will seek authority to
render certain services to EWGs and FUCOs, especially relating to nuclear
operations. While Genco is a "domestic public utility" for purposes of Rule 53,
it is not subject to State rate regulation. Further, while it will sell power to
ComEd and PECO, the rate payers of those companies are fully protected by
existing rate freezes and caps and the ability to choose their energy supplier
directly. Thus ComEd and PECO ratepayers are not captive to the charges of
Genco. Consequently, there is no reason that ComEd and PECO ratepayers need to
be "protected" from the diversion of Genco employees time and attention to the
activities of EWGs and FUCOs. Even so, Genco believes it will be in compliance
with the limit on use of Genco employees in connection with EWGs and FUCOs.
Finally, Exelon will comply with the other conditions of Rule
53(a) providing specific protections to customers of ComEd and PECO and their
state commissions, in particular, the requirements of Rule 53(a)(2) regarding
the preparation and making available of books and records and financial reports
regarding EWGs and FUCOs, and the requirements of Rule 53(a)(4) regarding filing
of copies of applications and reports with other regulatory commissions.
Financial Health of ComEd and PECO. As indicated earlier in
----------------------------------
this Application/Declaration, the reduced retained earnings of Unicom and PECO
are mainly the result of accounting changes mandated by State restructuring
legislation and the push-down accounting for the Merger. Notwithstanding these
events, ComEd and PECO are financially strong companies with stable earnings and
cash flows. As noted above, ComEd and PECO have sound investment grade ratings
by the major nationally recognized rating agencies. These ratings have been
evaluated in light of the proposed Merger. At June 30, 2000, ComEd ratios,
including securitization debt, were common equity, 35.8%, preferred stock,
3.02%, current maturities, 3.6%, long-term debt, 54.7% and short-term debt,
2.9%. The PECO ratios, including securitization debt, were common equity, 16.3%,
preferred stock, 3.5%, current maturities, 2.4%, long-term debt, 71.1% and
short-term debt, 6.7%./70/
______________________
/69/ In the Merger U-1, Exelon is seeking authorization for Genco to provide
services to AmerGen related to, among other things, nuclear operations. One of
the primary economies and benefits of combining all generating operations in
Genco is the ability to adopt best practices and otherwise improve the
operations of nuclear stations while enhancing safety. While Genco is a
"public-utility company" under the Act, it is not a traditional rate regulated
utility and has no retail customers. All Genco's sales, including those to ComEd
and PECO are subject to FERC jurisdiction. Notwithstanding these plans, Genco
will be in compliance with the requirement of Rule 53 that would limit the
number of its employees who can render services to EWGs and FUCOs.
/70/ At June 30, 2000, ComEd's capital structure (excluding securitization
debt) was 47% common equity, 4% preferred stock and 44% long term debt, 1%
current maturities and 4% short-term debt. At that date, PECO's capital
structure (excluding securitization debt) was 36% common equity, 8% preferred
stock, 41% long term debt and 15% short-term debt.
48
<PAGE>
Exelon's current and proposed investments in EWGs and FUCOs
will not have any negative impact on ComEd's and PECO's ability to fund
operations and growth. Current projections indicate that ComEd and PECO will
continue to fund operations and construction expenditures primarily from
internal sources of cash and credit facilities. Neither ComEd nor PECO
anticipate any further major asset sales or any significant additional
securitization./71/ Moreover, there is ongoing evidence that ComEd and PECO can
access capital markets as needed, although their ability to issue debt and
preferred equity securities in the future depends upon earnings coverages and
market factors at the time such securities are issued.
Adequacy Of State Commission Oversight. Only two state
--------------------------------------
commissions have jurisdiction over the operations of the principal Utility
Subsidiaries -- ComEd and PECO -- the Illinois Commission and the Pennsylvania
Commission (collectively, "State Commissions"). The State Commissions are able
to protect utility customers within their respective states. Importantly, the
rates now paid by retail customers in Illinois and Pennsylvania may not be
increased for several years in accordance with state utility regulation
restructuring legislation and State Commission actions. Pursuant to legislation
in both states, the State Commissions are actively encouraging competition in
the industry. The State Commissions have jurisdiction over the transfer of
generating assets to Genco. The Pennsylvania Commission and the Illinois
Commission have each granted this approval./72/ The Illinois Commission has the
transfer under review. The State Commissions each have considerable authority to
regulate transactions between ComEd and PECO, respectively, and their affiliates
to ensure that customers of the utility are not harmed by such transactions. For
these reasons, the State Commissions will have adequate authority to protect
ComEd and PECO customers from any adverse effect associated with Exelon's
existing and proposed investments in EWGs and FUCOs.
The Pennsylvania Commission has issued a letter to the
Commission indicating that the Pennsylvania Commission "retains sufficient
jurisdiction under Pennsylvania's Public Utility Code to assure adequate
protection of PECO customers and ratepayers" in light of Exelon's potential
investment in EWGs and FUCOs as contemplated by this application. Likewise, the
Illinois Commission has also sent a similar letter to the Commission.
Accordingly, Exelon asks the Commission to grant it an
exception to the requirements of Rule 53(a)(1) in connection with the proposed
financing for the purpose of additional investments in EWGs and FUCOs subject to
the limitation that Exelon's aggregate
_________________
/71/ PECO anticipates that it will refinance during the Authorization Period
up to the full outstanding principal amount of its transition bonds due March 1,
2004 and due September 1, 2007 with additional transition bonds. The refinancing
will be pursuant to the financing order of the Pennsylvania Commission and thus
will be exempt under Rule 52. PECO will use the same financing structure with
PECO Energy Transition Trust (or similar entity) as the issuer. See PECO Energy
Transition Trust Form S-3 Registration Statement, File No. 333-31646.
/72/ Pa. PUC, Docket Nos. R-00973953 and P-0091265, Final Order, para. 2, p.
10; Joint Petition for Full Settlement of PECO Energy Company's Restructuring
Plan and Related Appeals and Application for a Qualified Rate Order and
Application of Transfer of Generation Assets, April 29, 1998, para. 28; Illinois
Commerce Commission, Docket Nos. 00-0369 & 00-0394 (August 17, 2000).
49
<PAGE>
investment in EWGs and FUCOs will not exceed $5.5 billion during the
Authorization Period. Exelon requests that the Commission approve $2 billion at
this time and reserve jurisdiction on the remainder pending completion of the
record.
3. Exelon Rule 53 Undertakings.
Exelon hereby undertakes to file a report with the Commission
within 60 days after the end of each calendar quarter beginning with the first
quarter ending at least 45 days following the date of the Commission's order in
this proceeding, providing:
. A computation in accordance with rule 53(a) setting forth
Exelon's "aggregate investment" in all EWGs and FUCOs, its
"consolidated retained earnings," and a calculation of the
amount;
. A breakdown showing Exelon's aggregate investment in each
individual EWG/FUCO project covered by the Modified Rule 53 Test;
. Consolidated capitalization ratio of Exelon as of the end of that
quarter, with consolidated debt to include all short-term debt
and non-recourse debt of all EWGs and FUCOs;
. The market-to-book ratio of Exelon's common stock;
. Identification of any new EWG/FUCO project covered by the
Modified Rule 53 Test in which Exelon has invested or committed
to invest during the preceding quarter;
. Analysis of the growth in consolidated retained earnings which
segregates total earnings growth of EWGs and FUCOs from that
attributable to other subsidiaries of Exelon;
. A statement of revenues and net income for each EWG and FUCO for
the twelve months ending as of the end of that quarter.
4. Rule 54 Analysis.
Rule 54 promulgated under the Act states that in determining whether
to approve the issue or sale of a security by a registered holding company for
purposes other than the acquisition of an EWG or FUCO, or other transactions by
such registered holding company or its subsidiaries other than with respect to
EWGs or FUCOs, the Commission shall not consider the effect of the
capitalization or earnings of any subsidiary which is an EWG or FUCO upon the
registered holding company system if Rules 53(a), (b) and (c) are satisfied.
Exelon does not currently own any FUCOs. As described above in detail, Exelon
will not be in compliance with all of the provisions of Rule 53 safe harbor.
Exelon believes that, for the reasons set out above, the Commission should
approve additional financing for the purpose of making additional investments in
EWGs and FUCOs up to the Modified Rule 53 Limitation. For those same reasons,
Exelon urges the Commission to make no adverse findings under Rule 54 in
connection with the financing approval sought herein for other purposes.
H. Dividend Reinvestment Plan
Exelon will establish a dividend reinvestment plan which is
expected to incorporate the existing features of the plans currently offered by
Unicom and PECO. Upon consummation of the Merger, the dividend reinvestment
plans of Unicom and PECO will be terminated (or one company's plan will be
adopted by Exelon) and participants will be eligible to become participants in
the Exelon's new or adopted plan ("Exelon DRP").
50
<PAGE>
Exelon proposes, from time to time during the Authorization
Period, to issue and/or acquire in open market transactions or by some other
method which complies with applicable law and Commission interpretations then in
effect up to 21 million shares of Exelon common stock under the Exelon DRP,
certain incentive compensation plans and certain other employee benefit plans
described below./73/
I. Employee Stock-Based Plans
Exelon proposes, from time to time during the Authorization
Period, to issue and/or acquire in open market transactions or by some other
method which complies with applicable law and Commission interpretations then in
effect up to 21 million shares of Exelon common stock under the Exelon DRP and
the employee stock-based plans described below./74/
Prior to the Merger, Unicom will (i) adjust the terms of all
outstanding Unicom Employee Stock Options to provide that, at the Merger
Effective Time (as defined in the Merger Agreement), each Unicom Employee Stock
Option outstanding immediately prior to the Merger Effective Time shall be
deemed to constitute an option to acquire, on the same terms and conditions as
were applicable under such Unicom Employee Stock Option, the same number of
shares of Exelon Common Stock as the holder of such Unicom Employee Stock Option
would have been entitled to receive pursuant to the Merger had such holder
exercised such Unicom Employee Stock Option in full immediately prior to the
Merger Effective Time, except that this adjustment will be made as if the
exchange ratio were 0.95 instead of 0.875 and the $3.00 per share cash
consideration will be disregarded, (ii) make such other changes to the Unicom
Stock Plans and the terms of any Unicom Employee Stock Options as it deems
appropriate to give effect to the Merger (subject to the approval of PECO, which
shall not be unreasonably withheld); and (iii) ensure that, after the Merger
Effective Time, no Unicom Employee Stock Options may be granted under any Unicom
Stock Plan.
Prior to the Merger, PECO will: (i) adjust the terms of all
outstanding PECO Employee Stock Options to provide that, at the Exchange
Effective Time (as defined in the Merger Agreement), each PECO Employee Stock
Option outstanding immediately prior to the Exchange Effective Time shall be
deemed to constitute an option to acquire, on the same terms and conditions as
were applicable under such PECO Employee Stock Option, the same number of shares
of Exelon Common Stock as the holder of such PECO Employee Stock Option would
have been entitled to receive pursuant to the Merger had such holder exercised
such PECO Employee Stock Option in full immediately prior to the Exchange
Effective Time; (ii) make such other changes to the PECO Stock Plans and the
terms of outstanding PECO Employee Stock Options as it deems appropriate to give
effect to the Merger (subject to the approval of Unicom,
_____________________
/73/ The open market acquisitions for purpose of this plan will be made pursuant
to Rule 42 and to the extent used in the Exelon DRP or for such benefit plans
will not count against the authorization to issue up to 21 million additional
shares.
/74/ The open market acquisitions for purpose of these plans will be made
pursuant to Rule 42. See Note 72.
51
<PAGE>
which shall not be unreasonably withheld); and (iii) ensure that, after the
Exchange Effective Time, no PECO Employee Stock Options may be granted under any
PECO Stock Plan.
Upon completion of the Merger, Exelon will assume all the
obligations of Unicom under the Unicom Stock Plans, each outstanding Unicom
Employee Stock Option and the agreements evidencing the grants thereof. Exelon
will comply with the terms of the Unicom Stock Plans and ensure, to the extent
required by, and subject to the provisions of, such Unicom Stock Plans, that the
Unicom Employee Stock Options that qualified as qualified stock options prior to
the Merger Effective Time continue to qualify as qualified stock options after
the Merger Effective Time.
Upon completion of the Merger Exelon will also assume all the
obligations of PECO under the PECO Stock Plans, each outstanding PECO Employee
Stock Option and PECO SAR and the agreements evidencing the grants thereof.
Exelon will comply with the terms of the PECO Stock Plans and ensure, to the
extent required by, and subject to the provisions of, such PECO Stock Plans,
that the PECO Employee Stock Options that qualified as qualified stock options
prior to the Exchange Effective Time continue to qualify as qualified stock
options after the Exchange Effective Time.
With respect to each employee or director benefit or compensation
plan, program or arrangement, other than the Unicom Stock Plans and the PECO
Stock Plans, under which Unicom Common Stock or PECO Common Stock is required to
be used for purposes of the payment of benefits, grant of awards or exercise of
options (each, a "Stock Plan"), (i) Unicom and the PECO shall take such action
as may be necessary so that, after the Merger Effective Time, such Stock Plan
shall provide for issuance or purchase in the open market only of Exelon Common
Stock rather than Unicom Common Stock or PECO Common Stock, as the case may be,
and otherwise to amend such Stock Plans to reflect the Merger, and (ii) Exelon
shall take all corporate action necessary or appropriate to obtain shareholder
approval with respect to such Stock Plan to the extent such approval is required
for purposes of the Internal Revenue Code or other applicable law. Exelon shall
take all corporate action necessary to reserve for issuance a sufficient number
of shares of Exelon Common Stock for delivery upon exercise of the Unicom
Employee Stock Options and PECO Employee Stock Options assumed as described
above or the payment of benefits, grant of awards or exercise of options under
such Stock Plans. As soon as reasonably practicable after the Merger Effective
Time, Exelon shall file one or more registration statements on Form S-8 (or any
successor or other appropriate form) with respect to the shares of Exelon Common
Stock subject to such Unicom Employee Stock Options and PECO Employee Stock
Options or to such Stock Plans and shall use its reasonable best efforts to
maintain the effectiveness of such registration statement or registration
statements (and maintain the current status of the prospectus or prospectuses
contained therein or related thereto) for so long as such Unicom Employee Stock
Options and PECO Employee Stock Options or such benefits or grants of awards
remain payable or such options remain outstanding. For purposes of the above:
. "Unicom Employee Stock Option" means any option to purchase
Unicom Common Stock granted under any Unicom Stock Plan.
52
<PAGE>
. "Unicom Stock Plans" means the Long-Term Incentive Plan of Unicom
as amended from time to time.
. "PECO Employee Stock Option" means any option to purchase PECO
Common Stock granted under any PECO Stock Plan.
. "PECO Stock Plans" means the PECO Energy Company 1989 Long-Term
Incentive Plan and the PECO Energy Company 1998 Stock Option
Plan.
. "PECO SAR" means any stock appreciation right linked to the price
of PECO Common Stock and granted under any PECO Stock Plan.
53
<PAGE>
The total number of shares awarded or issued from the plans referred
to above in 1999, and average for 1998 and 1999, was as follows:
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------------------
Company/75/ Total 1999 Average 1998-1999
-----------------------------------------------------------------------------------------------------------------
<S> <C> <C>
PECO -- --
----
-----------------------------------------------------------------------------------------------------------------
. Stock options granted 2,049,789 2,568,674 avg.
-----------------------------------------------------------------------------------------------------------------
. Shares issued on exercise 0 new shares issued 0 new shares issued
of options
568,000 options exercised 1,349,372 avg. options exercised
-----------------------------------------------------------------------------------------------------------------
. Shares issued for other 120,300 restricted shares granted 63,650 avg. restricted shares
awards granted
-----------------------------------------------------------------------------------------------------------------
Unicom -- --
------
-----------------------------------------------------------------------------------------------------------------
. Stock options granted 1,848,050 1,613,787
-----------------------------------------------------------------------------------------------------------------
. Shares issued on exercise 0 0
of options
-----------------------------------------------------------------------------------------------------------------
. Shares issued for other 451,501 472,902
awards
-----------------------------------------------------------------------------------------------------------------
</TABLE>
Exelon has adopted the PECO Energy Company 1989 Long-Term
Incentive Plan for purposes of making awards to employees of Exelon and its
Subsidiaries following the Merger. The provisions of this plan are described on
pages 60 and 61 of the Joint Proxy Statement/Prospectus of Unicom and PECO dated
May 15, 2000 filed as Exhibit C-2 hereto. Exelon may issue certain option
grants under Long-Term Incentive Plan with an effective date of the first day of
trading of Exelon common stock (i.e., October 23, 2000). Such options will not
be exercisable prior to one year from the effective date of issuance.
________________
/75/ In the case of shares issued pursuant to plans, the number excludes shares
acquired in the open market or treasury shares used to satisfy the award or
option.
54
<PAGE>
J. Payment Of Dividends by Non-Utility Subsidiaries Out Of Capital
And Unearned Surplus.
Ventures also proposes, on behalf of itself and every direct
or indirect Non-Utility Subsidiary, that such companies be permitted to pay
dividends with respect to the securities of such companies, from time to time
through the Authorization Period, out of capital and unearned surplus (including
revaluation reserve), to the extent permitted under applicable corporate law.
K. Filing of Certificates of Notification
It is proposed that, with respect to Exelon, the reporting
systems of the Securities Exchange Act of 1934, as amended (the "1934 Act") and
the 1933 Act be integrated with the reporting system under the Act. This would
eliminate duplication of filings with the Commission that cover essentially the
same subject matters, resulting in a reduction of expense for both the
Commission and Exelon. To effect such integration, the portion of the 1933 Act
and 1934 Act reports containing or reflecting disclosures of transactions
occurring pursuant to the authorizations granted in this proceeding would be
incorporated by reference into this proceeding through Rule 24 certificates of
notification. The certificates would also contain all other information required
by Rule 24, including the certification that each transaction being reported on
had been carried out in accordance with the terms and conditions of and for the
purposes represented in this Application/Declaration. Such certificates of
notification would be filed within 60 days after the end of the first three
calendar quarters and 90 days after the end of the last calendar quarter, in
which transactions occur.
A copy of relevant document (e.g., underwriting agreements,
indentures, bank agreements) for the relevant quarter will be filed with, or
incorporated by reference from 1933 Act or 1934 Act filings in such Rule 24
certificates.
The Rule 24 certificates will contain the following
information:
(a) The sales of any common stock or preferred securities by
Exelon and the purchase price per share and the market price per share at the
date of the agreement of sale;
(b) The total number of shares of Exelon common stock issued or
issuable pursuant to options granted during the quarter under employee benefit
plans and dividend reinvestment plans including any employee benefit plans or
dividend reinvestment plans hereafter adopted;
(c) If Exelon common stock has been transferred to a seller of
securities of a company being acquired, the number of shares so issued, the
value per share and whether the shares are restricted in the hands of the
acquiror;
(d) If a guarantee is issued during the quarter, the name of the
guarantor, the name of the beneficiary of the guarantee and the amount, terms
and purpose of the guarantee;
55
<PAGE>
(e) The amount and terms of any Exelon indebtedness issued
during the quarter;
(f) The amount and terms of any short-term debt issued by any
Utility Subsidiary during the quarter;
(g) The amount and terms of any financings consummated by any
Non-Utility Subsidiary that are not exempt under Rule 52;
(h) The notional amount and principal terms of any Hedge
Instruments or Anticipatory Hedges entered into during the quarter and the
identity of the other parties thereto;
(i) The name, parent company and amount invested in any
intermediate subsidiary or financing subsidiary during the quarter and the
amount and terms of any securities issued by such subsidiaries during the
quarter;
(j) A list of U-6B-2 forms filed with the Commission during the
quarter, including the name of the filing entity and the date of filing;
(k) Consolidated balance sheets as of the end of the quarter and
separate balance sheets as of the end of the quarter for each company, including
Exelon, that has engaged in jurisdictional financing transactions during the
quarter;
(l) A table showing, as of the end of the quarter, the dollar
and percentage components of the capital structure of Exelon on a consolidated
basis and each Utility Subsidiary;
(m) A retained earnings analysis of Exelon on a consolidated
basis and each Utility Subsidiary detailing gross earnings, goodwill
amortization, dividends paid out of each capital account and the resulting
capital account balances at the end of the quarter; and
(n) Future registration statements filed under the 1933 Act with
respect to securities that are subject of the Application/Declaration will be
filed or incorporated by reference as exhibits to the next certificate filed
pursuant to Rule 24.
Item 2. Fees, Commissions and Expenses
Estimated Legal Fees and Expenses/76/ $100,000
Estimated Miscellaneous Expenses 50,000
--------
Total $150,000
--------
_______________________
/76/ Fees and expenses relating to financing transactions for which approval is
sought herein cannot be estimated at this time. Fees for the placement of
securities will be limited as provided in Item 1.D.
56
<PAGE>
Item 3. Applicable Statutory Provisions
Sections 6(a), 7, 9(a), 10, 12 and 13 of the Act and Rules 42,
43, 45, 52, 53 and 54 are considered applicable to the proposed transactions.
To the extent that the proposed transactions are considered by
the Commission to required authorization, exemption or approval under any
section of the Act or the rules and regulations other than those set forth
above, request for such authorization, exemption or approval is hereby made.
Item 4. Regulatory Approvals
The Pennsylvania Commission has jurisdiction over issuances of
securities by PECO, other than securities payable within one year of the date of
issuance or upon demand of the holder. The Illinois Commission has jurisdiction
over issuances of securities by ComEd, other than securities payable within one
year of the date of issuance or the renewal of short-term obligations for a
two-year or shorter period.
Securities issued by the Utility Subsidiaries which are subject
to approval by the Commission are not subject to approval by the FERC under the
Federal Power Act because of Section 318 of the Federal Power Act.
Except as stated above, no state or federal regulatory agency
other than the Commission under the Act has jurisdiction over the proposed
transactions.
Item 5. Procedure
The Applicants hereby request that there be no hearing on this
Application-Declaration and that the Commission issue its order as soon as
practicable after the filing hereof. The Commission is requested to issue and
publish the requisite notice under Rule 23 with respect to this
Application-Declaration by August 18, 2000; such notice specifying September 18,
2000 as the date by which comments may be entered and the date on which an order
of the Commission granting and permitting the Application/Declaration to become
effective may be entered by the Commission. The Applicants hereby (i) waive a
recommended decision by a hearing officer, (ii) waive a recommended decision by
any other responsible officer or the Commission, (iii) consent that the Division
of Investment Management may assist in the preparation of the Commission's
decision and (iv) waive a 30-day waiting period between the issuance of the
Commission's order and the date on which it is to become effective.
Item 6. Exhibits and Financial Statements
57
<PAGE>
<TABLE>
<CAPTION>
A. Exhibits
-----------------------------------------------------------------------------------------------------------------------
Exhibit No. Description of Document Method of Filing
-----------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
A-1 Restated Articles of Incorporation of Exelon Incorporated by reference to S-4
Registration Statement, Exhibit C-1
-----------------------------------------------------------------------------------------------------------------------
A-2 Restated Articles of Incorporation of ComEd Incorporated by reference; File
effective February 20, 1985, including Statements No. 1-1839, Unicom Form 10-K for
of Resolution Establishing Series, relating to the year ended December 31, 1994,
the establishment of three new series of ComEd Exhibit (3)-2.
preference stock known as the "$9.00 Cumulative
Preference Stock," the "$6.875 Cumulative
Preference Stock" and the "$2.425 Cumulative
Preference Stock."
-----------------------------------------------------------------------------------------------------------------------
A-3 Restated Articles of Incorporation of PECO Incorporated by reference; File
No. 1-1401, PECO 1993 Form 10-K,
Exhibit 3-1
-----------------------------------------------------------------------------------------------------------------------
B-1 Amended and Restated Agreement and Plan of Incorporated by reference; Annex 1
Exchange and Merger (Merger Agreement) to Exhibit C-1
-----------------------------------------------------------------------------------------------------------------------
B-2 Reserved NA
-----------------------------------------------------------------------------------------------------------------------
C-1 Registration Statement of Exelon on Form S-4 Incorporated by reference;
Registration Statement No. 333-37082.
-----------------------------------------------------------------------------------------------------------------------
C-2 Joint Proxy Statement and Prospectus of Unicom Incorporated by reference;
and PECO included in Exhibit C-1
-----------------------------------------------------------------------------------------------------------------------
D-1.1 Joint Application of ComEd and PECO to FERC re Incorporated by reference to
Merger (excluding exhibits and testimony which Exhibit D-1.1 to Form U-1 in File
Applicant will supply upon request of the No. 70-9645 ("Merger U-1")
Commission)
-----------------------------------------------------------------------------------------------------------------------
D-1.2 Direct Testimony of Dr. William H. Heironymous Incorporated by reference to
(Exhibit No. APP-300 to FERC Joint Application). Exhibit D-1.2 to Merger U-1
-----------------------------------------------------------------------------------------------------------------------
D-1.3 Order of FERC approving the Merger Incorporated by reference to
Exhibit D-1.3 to Merger U-1
-----------------------------------------------------------------------------------------------------------------------
</TABLE>
58
<PAGE>
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------------------------
Exhibit No. Description of Document Method of Filing
-----------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
D-1.4 Application of ComEd to FERC for Authority to Incorporated by reference to
Transfer Jurisdictional Assets ("Restructurings Exhibit D-1.4 to Merger U-1
Filing") (excluding exhibits and testimony which
Applicant will supply upon request of the Commission)
-----------------------------------------------------------------------------------------------------------------------
D-1.5 Application of PECO to FERC for Authority to Incorporated by reference to
Transfer Jurisdictional Assets ("Restructurings Exhibit D-1.5 to Merger U-1
Filing") (excluding exhibits and testimony which
Applicant will supply upon request of the Commission)
-----------------------------------------------------------------------------------------------------------------------
D-2.1 Application of PECO before the Pennsylvania Incorporated by reference to
Commission regarding the Merger (excluding Exhibit D-2.1 to Merger U-1
exhibits and testimony which Applicant will
supply upon request of the Commission)
-----------------------------------------------------------------------------------------------------------------------
D-2.2 Order of the Pennsylvania Commission approving Incorporated by reference to
the Merger Exhibit D-2.2 to Merger U-1
-----------------------------------------------------------------------------------------------------------------------
D-2.3 Application of PECO before Pennsylvania Incorporated by reference to
Commission regarding Restructurings (excluding Exhibit D-2.3 to Merger U-1
exhibits and testimony which Applicant will
-----------------------------------------------------------------------------------------------------------------------
D-3.1 Notice of ComEd to the Illinois Commission Incorporated by reference to
regarding the Merger (excluding exhibits and Exhibit D-3.1 to Merger U-1
attachments which Applicant will supply upon
request of the Commission)
-----------------------------------------------------------------------------------------------------------------------
D-3.2 Application of ComEd to the Illinois Commission Incorporated by reference to
regarding Restructurings (excluding exhibits and Exhibit D-3.2 to Merger U-1
testimony which Applicant will supply upon
request of the Commission)
-----------------------------------------------------------------------------------------------------------------------
D-4.1 Applications of PECO, ComEd and AmerGen to the Incorporated by reference to
NRC regarding transfer of nuclear generating Exhibit D-4.1 to Merger U-1
operating licenses
-----------------------------------------------------------------------------------------------------------------------
</TABLE>
59
<PAGE>
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------------------------
Exhibit No. Description of Document Method of Filing
-----------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
D-4.2 Orders of the NRC finding that the transfer of Incorporated by reference to
certain operating licenses in connection with the Exhibit D-4.2 to Merger U-1
Merger is in compliance with The Atomic Energy Act
and consenting to such transfers
-----------------------------------------------------------------------------------------------------------------------
E-1 Maps of service area and transmission system of Filed in paper under Form SE with
ComEd Merger U-1
-----------------------------------------------------------------------------------------------------------------------
E-2 Maps electric and gas service areas and Filed in paper under Form SE with
transmission system of PECO Merger U-1
-----------------------------------------------------------------------------------------------------------------------
E-3 Unicom corporate chart Filed in paper under Form SE with
Merger U-1
-----------------------------------------------------------------------------------------------------------------------
E-4 PECO corporate chart Filed in paper under Form SE with
Merger U-1
-----------------------------------------------------------------------------------------------------------------------
E-5 Exelon Company corporate chart Filed in paper under Form SE with
Merger U-1
-----------------------------------------------------------------------------------------------------------------------
F-1 Preliminary opinion of counsel to Exelon Filed herewith
-----------------------------------------------------------------------------------------------------------------------
F-2 Past-tense opinion of counsel to Exelon Filed with certificate of
notification
-----------------------------------------------------------------------------------------------------------------------
G Intentionally left available NA
-----------------------------------------------------------------------------------------------------------------------
H-1 Annual Report of Unicom on Form 10-K for the year Incorporated by reference,
ended December 31, 1999 File No. 1-11375
-----------------------------------------------------------------------------------------------------------------------
H-2 Annual Report of PECO on Form 10-K for the year Incorporated by reference, File
ended December 31, 1999 No. 1-1401
-----------------------------------------------------------------------------------------------------------------------
H-3 Quarterly Reports of Unicom on Form 10-Q for the Incorporated by reference, File
quarters ended March 31, 2000 and June 30, 2000 No. 1-11375
-----------------------------------------------------------------------------------------------------------------------
H-4 Quarterly Reports of PECO on Form 10-Q for the Incorporated by reference, File
quarter ended March 31, 2000 and June 30, 2000 No. 1-1401
-----------------------------------------------------------------------------------------------------------------------
I-1 List and Description of Subsidiaries and Incorporated by reference to
Investments Of Unicom Corporation (Other than Exhibit I-1 to Merger U-1
"Public-Utility" Companies)
-----------------------------------------------------------------------------------------------------------------------
I-2 List and Description of Subsidiaries and Incorporated by reference to
Investments Of PECO Energy (Other than Exhibit I-2 to Merger U-1
"Public-Utility" Companies)
-----------------------------------------------------------------------------------------------------------------------
J-l Form of Utility Money Pool Agreement Filed June 12, 2000
-----------------------------------------------------------------------------------------------------------------------
</TABLE>
60
<PAGE>
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------------------------
Exhibit No. Description of Document Method of Filing
-----------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
J-2 Form of Non-Utility Money Pool Agreement Filed June 12, 2000
-----------------------------------------------------------------------------------------------------------------------
K-1 Financial Information (filed confidentially under Filed confidentially
Rule 104)
-----------------------------------------------------------------------------------------------------------------------
L-1 Form of Notice of filing Filed herewith
-----------------------------------------------------------------------------------------------------------------------
M-1 Description of Existing Financing Arrangements of Filed June 12, 2000
Unicom
-----------------------------------------------------------------------------------------------------------------------
M-2 Description of Existing Financing Arrangements of Filed September 20, 2000
PECO (amended)
-----------------------------------------------------------------------------------------------------------------------
</TABLE>
B. Financial Statements
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------------------------
Statement No. Description Method of Filing
-----------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
FS-1 Historical consolidated financial statements of Incorporated by reference to
Unicom Annual Reports on Form 10-K for
the years ended 1999,1998 and 1997
and Quarterly Reports on Form 10-Q for
the quarters ended March 31, 2000 and
June 30, 2000
-----------------------------------------------------------------------------------------------------------------------
FS-2 Historical consolidated financial statements of Incorporated by reference to
PECO Annual Reports on Form 10-K for
the years ended 1999,1998 and 1997
and Quarterly Reports on Form 10-Q for
the quarters ended March 31, 2000 and
June 30, 2000
-----------------------------------------------------------------------------------------------------------------------
FS-3 Unaudited Pro Forma Financial Statements of Incorporated by reference; S-4
Exelon, giving effect to the Merger Registration Statement, Exhibit C-1
-----------------------------------------------------------------------------------------------------------------------
</TABLE>
Item 7. Information as to Environmental Effects
The proposed transaction involves neither a "major federal
action" nor "significantly affects the quality of the human environment" as
those terms are used in Section
61
<PAGE>
102(2)(C) of the National Environmental Policy Act, 42 U.S.C. Sec. 4321 et seq.
No federal agency is preparing an environmental impact statement with respect to
this matter.
62
<PAGE>
SIGNATURE
Pursuant to the requirements of the Public Utility Holding
Company Act of 1935, the Applicants have duly caused this amendment to
Application/Declaration to be signed on their behalf by the undersigned
thereunto duly authorized.
Date: November 2, 2000
Exelon Corporation Exelon Business Services Company
Exelon Ventures Company
By /s/ Corbin A. McNeill, Jr. Exelon Enterprises Company, LLC
-------------------------------- Exelon Generation Company, LLC
Exelon Energy Delivery Company
Co-Chief Executive Officer
By Exelon Corporation
By /s/ Corbin A. McNeill, Jr.
----------------------------
Co-Chief Executive Officer
Commonwealth Edison Company PECO Energy Company
By /s/ Rebecca J. Lauer By /s/ Corbin A. McNeill, Jr.
------------------------------- ----------------------------
Vice President and General Counsel Chairman, Chief Executive
Officer and President
63
