As filed with the Securities and Exchange Commission on August 5, 1994
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PECO ENERGY COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Pennsylvania 23-0970240
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER IDENTIFICATION NO.)
OF INCORPORATION)
P.O. Box 8699
2301 Market Street, Philadelphia, PA 19101
(215) 841-4000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA
CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
M. W. RIMERMAN
Vice President and Treasurer
P.O. Box 8699
2301 Market Street, Philadelphia, PA 19101
(215) 841-4000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF AGENT FOR SERVICE)
with copies to:
JAMES W. DURHAM, ESQ.
Senior Vice President and General Counsel
P.O. Box 8699
2301 Market Street, Philadelphia, PA 19101
ROBERT C. GERLACH, ESQ. ROBERT M. JONES, JR., ESQ.
Ballard Spahr Andrews & Ingersoll Drinker Biddle & Reath
1735 Market Street 1100 Philadelphia National Bank Building
Philadelphia, PA 19103-7599 Philadelphia, PA 19107
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From
time to time after the Registration Statement becomes effective, as
determined by market conditions and other factors.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. / /
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, please check the following
box. / X /
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
TITLE OF EACH MAXIMUM MAXIMUM AMOUNT OF
CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED PER UNIT OFFERING PRICE FEE
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Collateralized
Medium-Term Notes,
Series B ......... $250,000,000 100%* $250,000,000* $86,207
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*Estimated solely for the purpose of calculating the filing fee.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE
REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT
THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE
WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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SUBJECT TO COMPLETION, PRELIMINARY PROSPECTUS DATED AUGUST 5, 1994
$250,000,000
PECO ENERGY COMPANY
COLLATERALIZED MEDIUM-TERM NOTES, SERIES B
DUE FROM 9 MONTHS TO 30 YEARS FROM DATE OF ISSUE
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PECO Energy Company (Company) may from time to time offer its
Collateralized Medium-Term Notes, Series B (Series B Notes), in an
aggregate principal amount of up to $250,000,000. The Series B Notes will
be offered at maturities, which may vary from 9 months to 30 years from
their dates of issuance, and may be subject to redemption at the option of
the Company. Each Series B Note will bear interest at a fixed rate as set
forth in the pricing supplement (Pricing Supplement) to this Prospectus
applicable to such Series B Note. See "DESCRIPTION OF SERIES B NOTES AND
NOTE INDENTURE." The Series B Notes will be secured by a series of the
Company's First and Refunding Mortgage Bonds to be issued and pledged to
First Fidelity Bank, National Association (successor to Fidelity Bank,
National Association), acting as trustee under the Collateralized Note
Indenture. See "DESCRIPTION OF SERIES B FIRST MORTGAGE BONDS AND
MORTGAGE."
The issue price, interest rate, maturity date, and optional redemption
provisions of each Series B Note will be established at the time of
issuance of such Note and set forth in the Pricing Supplement. The Series
B Notes will be issued in book-entry form or, in certain circumstances,
fully registered certificated form. Beneficial interests in Series B Notes
in book-entry form will be shown on, and transfers thereof will be effected
only through, records maintained by The Depository Trust Company, as
Depositary, and its participants. See "DESCRIPTION OF SERIES B NOTES AND
NOTE INDENTURE--BOOK-ENTRY NOTES."
The authorized denominations of Series B Notes will be $1,000 and any
integral multiple of thereof.
Interest on each Series B Note will accrue at a fixed rate from its
date of issuance and will be payable semiannually on each January 1 and
July 1 and at maturity or upon earlier redemption.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS OR ANY PRICING
SUPPLEMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
PRICE TO AGENTS' PROCEEDS TO THE
PUBLIC (1) COMMISSIONS (2) COMPANY (2) (3)
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Per Note ....... 100%
Total ..........$250,000,000 $ $
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(1) The Series B Notes will be sold at 100% of their principal amount
except as may be provided in a Pricing Supplement hereto.
(2) The Company will pay a commission to
each as an Agent
(collectively, the Agents), in the form of a discount, ranging from . %
to . %, depending upon the maturity of the Series B Note sold through
such Agent (or sold to such Agent as principal at negotiated discounts, for
resale to investors and other purchasers). The Company has agreed to
indemnify each Agent against certain civil liabilities, including
liabilities under the Securities Act of 1933, as amended.
(3) Before deducting other expenses payable by the Company, estimated
to be $376,000, including reimbursement of certain of the Agents' expenses.
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Offers to purchase the Series B Notes are being solicited, on a
reasonable efforts basis, from time to time by the Agents on behalf of the
Company. The Series B Notes may be sold to the Agents on their own behalf
at negotiated discounts. The Company reserves the right to sell the Series
B Notes directly on its own behalf. The Company also reserves the right to
withdraw, cancel or modify the offering contemplated hereby without notice.
No termination date for the offering of the Series B Notes has been
established. The Company or the Agents may reject any order as a whole or
in part. See "PLAN OF DISTRIBUTION."
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The date of this Prospectus is , 1994
Information contained herein is subject to completion or amendment. A
Registration Statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor
may offers to buy be accepted prior to the time the Registration Statement
becomes effective. This Prospectus shall not constitute an offer to sell
or the solicitation of an offer to buy nor shall there be any sale of these
securities in any State in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws
of any such State.
<PAGE>
IN CONNECTION WITH THE DISTRIBUTION OF THE SERIES B NOTES, THE AGENTS
MAY OVER-ALLOT OR EFFECT TRANSACTIONS IN THE SERIES B NOTES WITH A VIEW TO
STABILIZING OR MAINTAINING THE MARKET PRICE OF THE SERIES B NOTES AT LEVELS
OTHER THAN THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH
TRANSACTIONS MAY BE EFFECTED IN ANY OVER-THE-COUNTER MARKET OR OTHERWISE
AND, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
STATEMENT OF AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934 (Exchange Act) and, in accordance
therewith, files reports, proxy and information statements and other
information with the Securities and Exchange Commission (SEC). Such
reports, proxy and other information filed by the Company may be inspected
and copied at the public reference facilities maintained by the SEC at 450
Fifth Street, N.W., Washington, DC 20549, and at certain of its regional
offices at 500 West Madison Street, Chicago, IL 60661-2511 and 7 World
Trade Center, New York, NY 10048. Copies of such material may also be
obtained from the Public Reference Section of the SEC at 450 Fifth Street,
N.W., Washington, DC 20549 at prescribed rates. Securities of the Company
are listed on the New York and Philadelphia Stock Exchanges, where reports,
proxy material and other information concerning the Company may be
inspected.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed (File No. 1-1401) with the SEC pursuant
to Section 13 of the Exchange Act by the Company are incorporated herein by
reference:
1. the Company's Annual Report on Form 10-K for the year ended December
31, 1993;
2. the Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1994; and
3. the Company's Current Reports on Form 8-K dated March 18, 1994,
April 14, 1994, May 25,1994, June 16, 1994 and July 27, 1994.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of
the offering of the securities offered hereby shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of
filing of such documents. Any statement contained herein or in a document
all or a portion of which is incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes
of this Prospectus to the extent that a statement contained herein or in
any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as
so modified or superseded, to constitute a part of this Prospectus.
THE COMPANY UNDERTAKES TO PROVIDE WITHOUT CHARGE TO EACH PERSON,
INCLUDING ANY BENEFICIAL OWNER, TO WHOM A PROSPECTUS IS DELIVERED, UPON
WRITTEN OR ORAL REQUEST OF SUCH PERSON, A COPY OF ANY OR ALL THE DOCUMENTS
DESCRIBED ABOVE UNDER "INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE,"
OTHER THAN EXHIBITS TO SUCH DOCUMENTS. SUCH REQUESTS SHOULD BE DIRECTED TO
PECO ENERGY COMPANY, FINANCIAL DIVISION, S21-1, P.O. BOX 8699,
PHILADELPHIA, PA 19101, (215) 841-5741.
THE COMPANY
The Company was incorporated in Pennsylvania in 1929 and is an
operating utility which provides electric and gas service to the public in
southeastern Pennsylvania. The total area served by the Company and its
subsidiaries covers 2,475 square miles. Electric service is supplied in an
area of 2,340 square miles with a population of about 3,700,000, including
1,600,000 in the City of Philadelphia. Approximately 95% of the electric
service area and 64% of retail kilowatthour sales are in the suburbs around
Philadelphia and in northeastern Maryland, and 5% of the service area and
36% of such sales are in the City of Philadelphia. In 1993, approximately
60% of the Company's electric output was generated from nuclear sources.
The Company esti-
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mates for 1994 that 59% of its electric output will be generated from
nuclear sources. Natural gas service is supplied in a 1,475-square-mile
area of southeastern Pennsylvania adjacent to Philadelphia with a
population of 1,900,000. The Company and its subsidiaries hold franchises
to the extent necessary to operate in the areas served.
The principal executive offices of the Company are located at 2301
Market Street, Philadelphia, Pennsylvania. Its mailing address is P.O.
Box 8699, Philadelphia, PA 19101, and its telephone number is (215)
841-4000.
USE OF PROCEEDS
The net proceeds from sales of the Series B Notes will be used for the
reduction of the outstanding amount of certain series of the Company's
previously issued, long-term debt or preferred stock and/or for general
corporate purposes.
DESCRIPTION OF SERIES B NOTES AND NOTE INDENTURE
The Series B Notes will be issued under a Collateralized Note Indenture
dated as of October 1, 1989, as previously amended, and as
supplemented by a Second Supplemental Indenture dated as of July 1, 1994
(Note Indenture), between the Company and First Fidelity Bank, National
Association, as trustee (in such capacity, the Note Trustee). Copies of
the Note Indenture and the form of Second Supplemental Indenture are on
file with the SEC as exhibits to the Registration Statement covering the
Series B Notes or as exhibits to other documents. The statements under
this caption are brief summaries of certain provisions of the Note
Indenture and are qualified in their entirety by reference to the
provisions of the Note Indenture. Each section reference under this
caption refers to the corresponding provision in the Note Indenture.
GENERAL
The Series B Notes may be sold from time to time in an aggregate
principal amount not to exceed $250,000,000. Each Series B Note will bear
interest at a fixed rate (not to exceed 10%) to maturity specified in the
applicable Pricing Supplement. The Series B Notes will mature on any
Business Day from 9 months to 30 years from the date of issue, but not
later than July 1, 2025, as selected by the purchaser and agreed to by the
Company. Prior to maturity, Series B Notes may be subject to optional
redemption by the Company at the price or prices set forth in the
applicable Pricing Supplement. The Series B Notes will not be subject to
any sinking fund or mandatory redemption.
The applicable Pricing Supplement relating to each sale of Series B
Notes will describe the following terms of such Series B Notes: (1) the
price (expressed as a percentage of the aggregate principal amount thereof)
at which the Series B Notes will be sold; (2) the date on which the Series
B Notes will mature; (3) the rate at which the Series B Notes will bear
interest and the date from which any such interest will accrue; and (4) the
date, if any, after which, and the price at which, the Series B Notes may
be redeemed, in whole or in part, at the option of the Company.
The Series B Notes will be authenticated and delivered upon receipt by
the Note Trustee from the Company of a request for authentication, an
officers' certificate stating that no Event of Default under the Note
Indenture has occurred and is continuing and that conditions precedent for
issuance have been met, an opinion of counsel and the Series B First
Mortgage Bonds, as defined below.
The Company presently anticipates that the Series B Notes will be
issued in book-entry form (Book-Entry Notes) through The Depository Trust
Company (DTC) or other depositary selected by the Company (Depositary), see
"Book-Entry Notes" below. However, the Company reserves the right to issue
the Series B Notes in fully registered certificated form. If the Series B
Notes are issued in fully registered certificated form or in book-entry
form through a Depositary other than DTC, the applicable Pricing Supplement
will contain information with respect thereto.
The authorized denominations of the Series B Notes will be $1,000 and
any integral multiple thereof. The Series B Notes will be exchangeable for
other Series B Notes of like tenor and aggregate principal amount,
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<PAGE>
without payment of any charge other than a sum sufficient to reimburse
the Company for any tax or other governmental charge incident to the
exchange. Transfers and exchanges of Series B Notes in certificated form
may be made at the principal corporate trust offices of First Fidelity
Bank, National Association, Philadelphia, Pennsylvania. The Company will
not be required to: (i) register the transfer of or exchange such Series B
Notes during a period beginning at the opening of business 15 days before
any selection of Series B Notes to be redeemed and ending at the close of
business on the day of mailing of the relevant notice of redemption; or
(ii) register the transfer of or exchange any Series B Note, or portion
thereof, called for redemption, except the unredeemed portion of any Series
B Note being redeemed in part (Section 2.07 of Article II).
Additional Notes, unlimited as to principal amount, may be issued from
time to time in one or more series under the Note Indenture (Section 2.03
of Article II). Such additional Notes may not be issued unless the Note
Trustee receives mortgage bonds of the Company equal to the aggregate
principal amount of the additional Notes to be issued and meeting the debt
service requirements of such additional Notes (Section 3.01 of Article
III). All Notes from time to time outstanding under the Note Indenture,
including the Series B Notes, will be equally secured thereunder and are
hereinafter referred to as Notes.
In order to secure its obligations under the Note Indenture, the
Company is required to deliver to the Note Trustee the Company's First and
Refunding Mortgage Bonds corresponding to the Notes then being issued.
Concurrently with each issuance of Series B Notes, the Company will deliver
to the Note Trustee a like principal amount of its First and Refunding
Mortgage Bonds, Medium-Term Note Series B (Series B First Mortgage Bonds).
The Series B First Mortgage Bonds will contain provisions for the payment
of principal or redemption price and interest corresponding to the
principal or redemption price and interest payments on the Series B Notes.
For a description of the security for the Series B Notes, see "Security:
Pledge of First Mortgage Bonds" below and "DESCRIPTION OF SERIES B FIRST
MORTGAGE BONDS AND MORTGAGE."
PAYMENT OF PRINCIPAL AND INTEREST
Each Series B Note will bear interest from its date of issue at the
rate per annum stated on the face thereof until the principal amount
thereof is paid or made available for payment. Interest on each Series B
Note will be payable semiannually on each January 1 and July 1 (each, an
Interest Payment Date) and at maturity or upon earlier redemption;
provided, however, that the first payment of interest on any Series B Note
with a date of issue between a record date and an Interest Payment Date
will be made on the next succeeding Interest Payment Date. The record date
with respect to any Interest Payment Date will be the fifteenth day of the
calendar month preceding such Interest Payment Date. Each payment of
interest in respect of an Interest Payment Date will include interest
accrued to but excluding such Interest Payment Date. Interest will be
computed on the basis of a 360-day year of twelve 30-day months (Section
2.02 of Article II).
Interest payable and punctually paid or duly provided for on any
Interest Payment Date will be paid to the person in whose name a Series B
Note is registered at the close of business on the record date for such
Interest Payment Date; provided, however, that interest payable at maturity
or upon earlier redemption will be payable to the person to whom principal
shall be payable (Sections 2.09 and 2.10 of Article II).
Any payment required to be made in respect of a Series B Note on a date
that is not a business day need not be made on such date, but may be made
on the next succeeding business day with the same force and effect as if
made on such date, and no additional interest shall accrue as a result of
such delayed payment.
Both principal and interest payable at maturity or on redemption of the
Series B Notes will be payable at the principal corporate trust office of
First Fidelity Bank, National Association, Philadelphia, Pennsylvania.
Interest payable on any Interest Payment Date will be paid by check mailed
to the registered holders of the Series B Notes at their registered
addresses (Section 2.09 of Article II). Holders of greater than $10
million of Series B Notes will be entitled to interest payments by wire
transfer.
BOOK-ENTRY NOTES
Series B Notes may be issued in whole or in part in book-entry form
only through DTC or such other Depositary as is specified in the Pricing
Supplement. In order to facilitate the issuance of Book-Entry Notes, a
single certificated Series B Note (Global Note) registered in the name of
the Depositary or its nominee and
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representing Book-Entry Notes having the same date of issue, maturity
date, redemption provisions and interest rate will be deposited with or on
behalf of the Depositary (Section 2.12 of Article II). Upon the deposit
of a Global Note with or on behalf of the Depositary, the Depositary will
credit the accounts of persons held with it with the respective principal
amounts of the Book-Entry Notes represented by such Global Note. Such
amounts shall be designated by the Agents with respect to such Book-Entry
Notes.
Ownership of beneficial interests in a Global Note will be limited to
persons who have accounts with the Depositary for such Global Note or its
nominee (participants) or persons that may hold interests through
participants. Ownership of beneficial interests in such Global Note by
participants will be shown on, and the transfer of that ownership will be
effected only through, records maintained by the Depositary or its nominee
(with respect to interests of participants) for such Global Note and on the
records of participants (with respect to interests of persons other than
participants).
Payment of principal of and any premium and interest on Book-Entry
Notes will be made to the Depositary or its nominee, as the case may be, as
the registered owner of the Global Note representing the Book-Entry Notes.
None of the Company, the Note Trustee or any agent of the Company or the
Mortgage Trustee will have any responsibility or liability for any aspect
of the Depositary's records relating to or payments made on account of
beneficial ownership interests in a Global Note representing any Book-Entry
Notes or for maintaining, supervising or reviewing any of the Depositary's
records relating to such beneficial ownership interests.
The Company has been advised by DTC that upon receipt of any payment of
principal of or any premium or interest on any Global Note, DTC will
immediately credit, on its book-entry registration and transfer system, the
accounts of participants with payments in amounts proportionate to their
respective beneficial interests in the principal amount of such Global Note
as shown on the records of DTC. Payments by participants to owners of
beneficial interests in a Global Note held through such participants will
be governed by standing instructions and customary practices, as is now the
case with securities held for customer accounts registered in "street
name," and will be the sole responsibility of such participants.
A Global Note representing Book-Entry Notes is exchangeable for
definitive Series B Notes in registered form, bearing interest at the same
rate, having the same date of issuance, maturity date and redemption
provisions, if any, and of differing denominations aggregating a like
amount, only if (i) the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for such Global Note or if at
any time the Depositary ceases to be a clearing agency registered or in
good standing under the Exchange Act or (ii) the Company in its sole
discretion determines that such Global Notes shall be exchangeable for
definitive Series B Notes in registered form. Upon such exchange, the
definitive Series B Notes will be registered in the names of the owners of
the beneficial interests in such Global Note as provided by the
Depositary's relevant participants (as identified by the Depositary holding
such Global Note).
Except as provided above, owners of beneficial interests in a Global
Note will not be entitled to receive physical delivery of Series B Notes in
definitive form and will not be considered the holders thereof for any
purpose under the Note Indenture. Accordingly, each person owning a
beneficial interest in a Global Note must rely on the procedures of the
Depositary and, if such person is not a participant, on the procedures of
the participant through which such person owns its interest, to exercise
any rights of a Series B Noteholder under the Note Indenture. The laws of
some jurisdictions require that certain purchasers of securities take
physical delivery of such securities in definitive form. Such limits and
such laws may impair the ability to transfer beneficial interests in a
Global Note.
The Note Indenture provides that the Depositary may grant proxies and
otherwise authorize participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action which a
Series B Noteholder is entitled to give or take under the Note Indenture.
The Company understands that under existing industry practices, in the
event that the Company requests any action of Series B Noteholders or that
an owner of a beneficial interest in such a Global Note desires to give or
take any action which a Series B Noteholder is entitled to give or take
under the Note Indenture, the Depositary would authorize the participants
holding the relevant beneficial interests to give or take such action, and
such participants would authorize beneficial owners owning through such
participants to give or take such action or would otherwise act upon the
instructions of beneficial owners owning through them.
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DTC has advised the Company and the Agents as follows: DTC is a
limited-purpose trust company organized under the laws of the State of New
York, a member of the Federal Reserve System, a "clearing corporation"
within the meaning of the New York Uniform Commercial Code, and a "clearing
agency" registered pursuant to the provisions of Section 17A of the
Exchange Act. DTC was created to hold securities of its participants and
to facilitate the clearance and settlement of securities transactions among
its participants in such securities through electronic book-entry changes
in accounts of the participants, thereby eliminating the need for physical
movement of securities certificates. DTC's participants include securities
brokers and dealers (including the Agents), banks, trust companies,
clearing corporations, and certain other organizations, some of whom
(and/or their representatives) own DTC. Access to DTC's book-entry system
is also available to others, such as banks, brokers, dealers and trust
companies that clear through or maintain a custodial relationship with a
participant, either directly or indirectly.
REDEMPTION, REPURCHASE AND REFUND
The Pricing Supplement relating to each sale of Series B Notes will
indicate whether such Series B Notes will be redeemable by the Company
prior to maturity and, if redeemable, the redemption periods and the
redemption prices applicable thereto and any limitations relating to
redemptions with proceeds from borrowed funds having a lower cost of money
than such Series B Notes. The Series B Notes will not be subject to any
sinking fund or mandatory redemption. The Company may redeem any of the
Series B Notes which are redeemable, either in whole or from time to time
in part, upon not less than 30 nor more than 45 days' notice by first class
mail to the registered holders of the Series B Notes to be redeemed at
their registered addresses (Section 4.05 of Article IV).
The Company may at any time purchase Series B Notes at any price in the
open market or otherwise. The Series B Notes so purchased by the Company
will be surrendered to the Note Trustee for cancellation.
SECURITY: PLEDGE OF MORTGAGE BONDS
Concurrently with each issuance of Series B Notes, the Company will
deliver to the Note Trustee a like principal amount of its Series B First
Mortgage Bonds. The Series B First Mortgage Bonds will be issued under the
Company's First and Refunding Mortgage dated May 1, 1923, as amended and
supplemented, including the Ninety-sixth Supplemental Indenture dated as of
July 1, 1994 relating to the Series B First Mortgage Bonds (herein
sometimes referred to as the Mortgage). First Fidelity Bank, National
Association, is Trustee under the Mortgage (in such capacity, the Mortgage
Trustee). The Series B First Mortgage Bonds will bear interest at times
and in amounts sufficient to provide for the payment of interest on the
Series B Notes and will be redeemed at times and in amounts that correspond
to the required payments of principal of the Series B Notes. The Company
will deposit in trust with the Note Trustee amounts sufficient to provide
for the payment of any premium on any optional redemption of the Series B
Notes by the Company. Payments on the Series B Notes will satisfy payment
obligations on the Series B First Mortgage Bonds relating thereto (Section
6.04 of Article VI). The Series B First Mortgage Bonds will be secured by
a first mortgage lien on certain property owned by the Company and will
rank on a parity with all other mortgage bonds of the Company. At July 1,
1994, the Company had outstanding $4,236,705,000 aggregate principal amount
of mortgage bonds. See "DESCRIPTION OF SERIES B FIRST MORTGAGE BONDS AND
MORTGAGE."
The Company covenants and agrees under the Note Indenture that upon the
required payment of principal becoming due and payable with respect to any
Series B Notes, it will redeem Series B First Mortgage Bonds in an
aggregate principal amount of such Series B Notes becoming due and payable
(Section 5.04 of Article V).
Until satisfied in accordance with their terms or released pursuant to
the Note Indenture, the Note Trustee will hold all mortgage bonds delivered
to it in trust for the holders of the Notes. Subject to certain minor
exceptions, the Note Trustee shall not sell, assign or transfer such
mortgage bonds, and the Note Trustee shall at all times maintain physical
possession of each of such mortgage bonds until paid or otherwise satisfied
and discharged in accordance with the terms of the Indenture (Section 5.01
of Article V).
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SECURITY: VOTING OF MORTGAGE BONDS
The Note Trustee, as the holder of mortgage bonds, may attend meetings
of the holders of the mortgage bonds outstanding under the Mortgage and
either at such meeting or otherwise vote the mortgage bonds held by it in
connection with any proposed amendment, change, modification, waiver or
consent (hereinafter collectively referred to as an "amendment") to or in
respect of the Mortgage or the mortgage bonds held by it. The Note Trustee
may agree to any such amendment, without the consent of the Noteholders,
where such amendment does not adversely affect the Noteholders. In the
case of proposed amendments which would adversely affect the Noteholders,
the Note Trustee shall not consent without notice to the Noteholders and
approval by the Noteholders as follows:
(a) If the proposed amendment affects no mortgage bonds
outstanding under the Mortgage other than the mortgage bonds held by
the Note Trustee under the Note Indenture, the Note Trustee may consent
thereto only with the approval of the holders of at least 66-2/3% in
principal amount of the outstanding Notes which would be affected by
the proposed action.
(b) If the proposed amendment affects mortgage bonds outstanding
under the Mortgage other than or in addition to the mortgage bonds held
by the Note Trustee under the Note Indenture, the Note Trustee shall
establish a procedure for the Noteholders to direct how they wish the
Note Trustee to vote on the proposed action. If the holders of at
least 33-1/3% in principal amount of the outstanding Notes respond in
accordance with such procedure, the Note Trustee shall vote all of such
mortgage bonds proportionately in accordance with the directions
received from the responding Noteholders; provided that if the holders
of at least 66-2/3% in principal amount of the outstanding Notes
respond with the same direction, the Note Trustee shall vote all of
such mortgage bonds in accordance with such direction. If the holders
of less than 33-1/3% in principal amount of the outstanding Notes
respond in accordance with such procedure, the Note Trustee shall vote
an equivalent portion (in principal amount) of the mortgage bonds held
by the Note Trustee under the Note Indenture in accordance with the
directions so received and shall not vote the remaining such mortgage
bonds.
Notwithstanding the foregoing, the Note Trustee shall not, without the
unanimous consent of the outstanding Noteholders, consent to any such
amendment which would (i) decrease the amounts payable on the mortgage
bonds held by the Note Trustee under the Note Indenture, (ii) change the
principal or interest payment dates on or the redemption provisions of such
mortgage bonds, or (iii) require unanimous consent of the holders of the
mortgage bonds outstanding under the Mortgage (Section 5.06 of Article V).
EVENTS OF DEFAULT
Any one of the following events will constitute an Event of Default
under the Note Indenture: (a) failure to pay any interest on any Note when
due, continued for 60 days; (b) failure to pay principal of (or premium, if
any, on) any Note when due; or (c) if outstanding mortgage bonds shall have
been declared due and payable prior to their stated maturities (Section
7.01 of Article VII). See "DESCRIPTION OF SERIES B FIRST MORTGAGE BONDS
AND MORTGAGE--RIGHTS OF BONDHOLDERS UPON DEFAULT."
If an Event of Default other than an Event of Default described under
(c) above occurs and is continuing, the Note Trustee or the holders of 25%
in principal amount of all Notes then outstanding may, declare the
principal of all Notes to be immediately due and payable. If an Event of
Default described under (c) above occurs, the principal of all Notes then
outstanding shall become due and payable immediately; provided, however,
that a waiver of default and rescission of the declaration of acceleration
of the mortgage bonds pursuant to the provisions of the Mortgage shall also
constitute a waiver of the Event of Default described under (c) above and
its consequences (Section 7.02 of Article VII).
Upon the issuance of additional Notes, the Company is required to file
with the Note Trustee documents and reports with respect to absence of
default.
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MODIFICATION OF NOTE INDENTURE
The Note Indenture may be amended or supplemented from time to time for
various purposes, including the issuance of additional series of Notes, to
provide for the acceptance of a successor trustee or co-trustee and to
modify, eliminate or add provisions to the extent necessary or helpful to
qualify the Note Indenture under the Trust Indenture Act of 1939 without
the consent of Noteholders (Section 11.01 of Article XI). With the consent
of the holders of not less than a majority in principal amount of the
outstanding Notes affected, the Company and the Note Trustee are empowered
to change the Note Indenture in any way; provided, however, that no such
supplemental indenture shall, without the consent of the holder of each
outstanding Note affected thereby, (a) reduce the amount or extend the due
dates of or the principal of or interest on the Notes, (b) reduce the
percentage of Noteholders required to effect changes in the Note Indenture,
(c) change any obligation of the Company to maintain an office or agency
for the payment of the Notes or (d) modify or waive certain provisions of
the Note Indenture, except to increase the percentage of Noteholders
necessary for such action (Section 11.02 of Article XI).
SATISFACTION AND DISCHARGE OF NOTE INDENTURE
The Note Indenture shall cease to be of further effect (except as to
any surviving rights of registration of transfer or exchange of Notes
expressly provided for), and the Note Trustee shall execute instruments
acknowledging satisfaction and discharge of the Note Indenture, and shall
deliver to the Company all mortgage bonds then held by the Note Trustee
upon satisfaction of the following conditions: (1) when either (A) all
Notes authenticated and delivered have been delivered to the Note Registrar
for cancellation; or (B) all such Notes not delivered to the Note Registrar
for cancellation (i) have become due and payable, or (ii) will become due
and payable at their stated maturity within one year, or (iii) are to be
called for redemption within one year under arrangements satisfactory to
the Note Trustee, and the Company, in the case of (i), (ii) or (iii) above,
has deposited or caused to be deposited with the Note Trustee in trust an
amount sufficient to pay and discharge the entire indebtedness on such
Notes not delivered to the Note Registrar for cancellation; (2) when the
Company has paid or caused to be paid all other sums payable under the Note
Indenture; and (3) when the Company has delivered to the Note Trustee an
officers' certificate and an opinion of counsel, each stating that all
conditions precedent relating to the satisfaction and discharge of the Note
Indenture have been complied with (Section 12.01 of Article XII).
NOTE TRUSTEE
First Fidelity Bank, National Association, is the Note Trustee under
the Note Indenture. First Fidelity Bank, National Association, also serves
as Mortgage Trustee under the Mortgage. See "DESCRIPTION OF SERIES B FIRST
MORTGAGE BONDS AND MORTGAGE--Mortgage Trustee."
DESCRIPTION OF SERIES B FIRST MORTGAGE BONDS AND MORTGAGE
The Series B First Mortgage Bonds will be issued under the Company's
Mortgage dated May 1, 1923, as amended and supplemented, including the
Ninety-sixth Supplemental Indenture dated as of July 1, 1994 relating to
the Series B First Mortgage Bonds. The Series B First Mortgage Bonds will
be delivered to the Note Trustee on each date that Series B Notes are
issued in an amount equal to such Series B Notes. Copies of the First and
Refunding Mortgage, the supplemental indentures thereto that amend the
Mortgage or that relate to mortgage bonds which are currently outstanding,
including the Ninety-sixth Supplemental Indenture dated as of July 1, 1994,
are on file with the SEC as exhibits to the Registration Statement covering
the Series B Notes or as exhibits to other documents.
The following description of the Series B First Mortgage Bonds and
brief summaries of certain Mortgage provisions are qualified in their
entirety by the provisions of the Mortgage. Each section reference under
this caption refers to the corresponding provision in the Mortgage.
The Series B First Mortgage Bonds will have a stated interest rate of
10% per annum, with interest payable on the Interest Payment Dates for the
Series B Notes; will mature on July 1, 2025, the maximum maturity of the
Series B Notes; and will be redeemed by the Company in amounts and at times
corresponding to the maturities of the Series B Notes. The Company will be
entitled to a credit against the Series B First Mortgage
8
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Bonds to the extent it makes payments directly on the Series B Notes
and to the extent that interest due on the Series B First Mortgage Bonds
exceeds interest due on the Series B Notes. At the time any Series B Notes
cease to be outstanding under the Note Indenture, the Note Trustee will
surrender to the Mortgage Trustee an equal aggregate principal amount of
Series B First Mortgage Bonds.
SECURITY
The Series B First Mortgage Bonds will be secured equally with all
other mortgage bonds outstanding or hereafter issued under the Mortgage by
the lien of the Mortgage which, subject to minor exceptions and certain
excepted encumbrances as defined in the Mortgage and to the Mortgage
Trustee's prior lien for compensation and expenses, constitutes a first
lien on all the Company's properties (including its undivided fractional
interests in certain properties), consisting principally of electric
generating stations, electric transmission and distribution lines and
substations, gas production plants, gas distribution facilities and general
office and service buildings, other than property which has been released
from the lien of the Mortgage in accordance with the terms thereof.
Under the Atomic Energy Act, neither the Mortgage Trustee nor any other
transferee of the Company's property may operate a nuclear generating
station without authorization from the NRC.
The Company has pledged with the Mortgage Trustee, as additional
security for the Series B First Mortgage Bonds and all other mortgage bonds
now outstanding or hereafter issued under the Mortgage, all of the common
stock of PECO Energy Power Company (a subsidiary of the Company). The
Company reserves broad rights with respect thereto and also the right to
sell or dispose of said common stock so long as the Company shall not be in
default under the terms of the Mortgage.
No securities may be issued by the Company which will rank ahead of the
mortgage bonds as to security. The Company may acquire property subject to
prior liens, but, if such property is made the basis for the issuance of
additional bonds under the Mortgage, all additional mortgage bonds issued
under the prior lien after acquisition of the property by the Company must
be pledged under the Mortgage (Sections 5, 6 and 7 of Article V).
AUTHENTICATION AND DELIVERY OF ADDITIONAL BONDS
The Mortgage permits the issuance from time to time of additional
mortgage bonds thereunder without limit as to aggregate amount, upon the
terms and conditions provided in Article II thereof, which are summarized
briefly below:
Such additional mortgage bonds may be in principal amount equal to:
(1) the principal amount of underlying mortgage bonds secured by
prior lien upon property acquired by the Company after March 1, 1937
and deposited with the Mortgage Trustee under the Mortgage (paragraph
(a) of Section 3 of Article II);
(2) the principal amount of any such underlying mortgage bonds,
redeemed or retired, or for the payment, redemption or retirement of
which funds have been deposited in trust (paragraph (b) of Section 3 of
Article II);
(3) the principal amount of mortgage bonds authenticated under the
Mortgage on or after March 1, 1937 which have been delivered to the
Mortgage Trustee (paragraph (c) of Section 3 of Article II);
(4) the principal amount of mortgage bonds issued under the
Mortgage on or after March 1, 1937, which are being refunded or
redeemed, if funds for said refunding or redemption have been deposited
with the Mortgage Trustee (paragraph (d) of Section 3 of Article II);
(5) an amount not exceeding 60% of the actual cost or the fair
value, whichever is less, of the net amount of permanent additions to
the property subject to the lien of the Mortgage, made or acquired
after November 30, 1941, and of additional plants or property acquired
by the Company after November 30, 1941, and to be used in connection
with its electric or gas business as part of one connected system and
located in Pennsylvania or within 150 miles of Philadelphia (paragraph
(e) of Section 3 of Article II; Sections 15 and 16 of Article II); and
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<PAGE>
(6) the amount of cash deposited with the Mortgage Trustee, which
cash shall not at any time exceed $3,000,000 or 10% of the aggregate
principal amount of bonds then outstanding under the Mortgage,
whichever is greater, and which cash may subsequently be withdrawn to
the extent of 60% of capital expenditures, as described in Item 5 above
(paragraph (f) of Section 3 of Article II).
No additional bonds may be issued under the Mortgage as outlined in
Items (5) and (6) and, in certain cases, Item (3) hereinabove, unless the
net earnings of the Company (as defined in Section 4 of Article II), after
deductions for amounts set aside for renewal and replacement or
depreciation reserves and before provision for income taxes, for 12
consecutive calendar months within the 15 calendar months immediately
preceding the application for such mortgage bonds shall have been equal to
at least twice the annual interest charges on all bonds outstanding under
the Mortgage (including those then applied for) and any other mortgage
bonds secured by a lien on property of the Company. For purposes of this
test, the Company has not included in earnings Allowance for Funds Used
During Construction which is included in net income in the Company's
consolidated financial statements in accordance with the prescribed system
of accounts. The coverages under the earnings test of the Mortgage and the
ratios of earnings to fixed charges are or will be included under "Part I,
Item 1. Business--Capital Requirements and Financing Activities" of the
Company's Annual Report to the SEC on Form 10-K and under "Part I.
Financial Information, Item 7. Management's Discussion and Analysis of
Financial Condition and Results of Operations" of the Company's Quarterly
Reports to the SEC on Form 10-Q described above under "Incorporation of
Certain Documents By Reference." At December 31, 1993, the Company had at
least $918 million of available property additions (the most restrictive
issuance test of the Mortgage at December 31, 1993) against which $551
million of mortgage bonds could have been issued. In addition, at December
31, 1993, the Company was entitled to issue approximately $3.2 billion of
mortgage bonds without regard to the earnings and property additions tests
against previously retired mortgage bonds. The Series B First Mortgage
Bonds will be issued against previously retired mortgage bonds (see Item
(3) above).
RELEASE AND SUBSTITUTION OF PROPERTY
The Company, while no event of default exists, may obtain the release
from the lien of the Mortgage of property subject thereto only upon the
deposit or pledge with the Mortgage Trustee of cash or purchase money
obligations, or in certain instances upon the substitution of other
property of equivalent value (Sections 1, 2 and 3 of Article VI). The
Mortgage also contains certain requirements relating to the withdrawal or
application of proceeds of released property and other funds held by the
Mortgage Trustee (Section 4 of Article VI).
CORPORATE EXISTENCE
The Company may consolidate or merge with or into or convey, transfer
or lease all of the mortgaged property as an entirety or substantially as
an entirety to any corporation lawfully entitled to acquire or lease and
operate the property, provided that such consolidation, merger, conveyance,
transfer or lease in no respect impairs the lien of the Mortgage or any
rights or powers of the Mortgage Trustee or the holders of the outstanding
mortgage bonds and provided that such successor corporation executes and
causes to be recorded an indenture which assumes all of the terms,
covenants and conditions of the Mortgage and any supplement thereto
(Sections 1 and 2 of Article VII).
DEFAULTS
Events of default are defined in the Mortgage as (a) default for 60
days in the payment of interest on bonds or sinking fund deposits under the
Mortgage, (b) default in the payment of principal of bonds under the
Mortgage, (c) default in the performance of any other covenant in the
Mortgage continuing for a period of 60 days after written notice from the
Mortgage Trustee, and (d) certain events of bankruptcy, insolvency or
reorganization, but in the case of reorganization only so long as the
Company's First and Refunding Mortgage Bonds, 13.05% Series due 1994 are
outstanding (Section 2 of Article VIII).
Upon the authentication and delivery of additional mortgage bonds, and
the release of cash or property, the Company is required to file with the
Mortgage Trustee documents and reports with respect to the absence of
default.
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RIGHTS OF BONDHOLDERS UPON DEFAULT
The holders of a majority in principal amount of all the outstanding
mortgage bonds may, upon the occurrence of an event of default, require the
Mortgage Trustee to accelerate the maturity of the mortgage bonds (Section
2 of Article VIII) and to enforce the lien of the Mortgage (Section 5 of
Article VIII). Any such acceleration of the maturity of the mortgage bonds
may, prior to any sale under the Mortgage, and upon the remedying of all
defaults, be annulled by the holders of at least a majority of the
outstanding mortgage bonds (Section 22 of Article VIII). The Mortgage
permits the Mortgage Trustee to require indemnity before proceeding to
enforce the lien of the Mortgage (Sections 5 and 7 of Article VIII).
AMENDMENTS
The Company and the Trustee may amend the Mortgage without the consent
of the holders of mortgage bonds: (1) to subject additional property to the
lien to the Mortgage; (2) to define the covenants and provisions permitted
under or not inconsistent with the Mortgage; (3) to add to the limitations
of the authorized amount, date of maturity, method, conditions and purposes
of issue of any bonds issued under the Mortgage; (4) to evidence the
succession of another corporation to the Company and the assumption by a
successor corporation of the covenants and obligations of the Company under
the Mortgage; (5) to make such provision in regard to matters or questions
arising under the Mortgage as may be necessary or desirable and not
inconsistent with the Mortgage (Section 1 of Article XI).
In addition, when the Company's First and Refunding Mortgage Bonds of
the 6-1/8% Series due 1997 no longer remain outstanding, the Company and
the Trustee may amend the Mortgage or modify the rights of the holders of
the mortgage bonds with the written consent of the holders of at least
66-2/3% of the principal amount of the mortgage bonds then outstanding;
provided, that no such amendment shall, without the written consent of the
holder of each outstanding mortgage bond affected thereby: (1) change the
date of maturity of the principal of, or any installment of interest on,
any mortgage bond, or reduce the principal amount of any mortgage bond or
the interest thereon or any premium payable on the redemption thereof, or
change any place of payment where, or currency in which, any mortgage bond
or interest thereon is payable, or impair the right to institute suit for
the enforcement of any such payment on or after the date of maturity
thereof; (2) reduce the percentage in principal amount of the outstanding
mortgage bonds, the consent of whose holders is required for any amendment,
waiver of compliance with the provisions of the Mortgage or certain
defaults and their consequences; (3) modify any of the amendment provisions
or Section 22 of Article VIII (relating to waiver of default), except to
increase any such percentage or to provide that certain other provisions of
the Mortgage cannot be modified or waived without the consent of the holder
of each mortgage bond affected thereby (Sections 2 and 3 of Article XI).
MORTGAGE TRUSTEE
First Fidelity Bank, National Association, the Mortgage Trustee under
the Mortgage, is also registrar and disbursing agent for the Company's
mortgage bonds. First Fidelity Bank, National Association is the Note
Trustee and is also a depository of the Company, from time to time makes
loans to the Company and is the trustee under an indenture securing pollution
control revenue bonds issued for the benefit of the Company which are
secured by bonds now outstanding under the Mortgage.
EXPERTS
The consolidated financial statements and schedules of the Company
incorporated by reference in this Registration Statement have been audited
by Coopers & Lybrand, L.L.P, independent accountants, for the periods
indicated in their report thereon which is included in the Annual Report on
Form 10-K for the year ended December 31, 1993. The consolidated financial
statements and schedules audited by Coopers & Lybrand have been
incorporated herein by reference in reliance on their report given on their
authority as experts in accounting and auditing.
11
<PAGE>
LEGAL MATTERS
Certain legal matters will be passed upon for the Company by Ballard
Spahr Andrews & Ingersoll, who will rely on Cahill, Wilinski & Cahill as to
certain matters of New Jersey law. Certain legal matters will be passed
upon for the Agents by Drinker Biddle & Reath.
The statements as to matters of law and legal conclusions under
"Description of Series B First Mortgage Bonds and Mortgage" have been
reviewed by Ballard Spahr Andrews & Ingersoll as to matters of Pennsylvania
and Maryland law and Cahill, Wilinski & Cahill as to matters of New Jersey
law, and such statements are included herein upon the authority of such
counsel.
PLAN OF DISTRIBUTION
The Series B Notes will be offered on a continual basis or from time to
time by the Company through the Agents. The Company will pay an Agent a
commission of . % to . % of the principal amount of Series B Notes sold
through such Agent, depending upon the maturity of such Series B Notes.
The Company may sell Series B Notes to any of the Agents acting as
principal, at a discount to be agreed upon at the time of sale, or a
purchasing Agent may receive from the Company a commission or discount
equivalent to that set forth on the cover page hereof in the case of any
such principal transaction in which no other discount is agreed to by the
Company and such purchasing Agent. Such Series B Notes may be resold at
prevailing market prices, or at prices related thereto, at the time of such
resale, as determined by the Agents. The Company reserves the right to
sell Series B Notes directly on its own behalf. No commission will be
payable on any Series B Notes sold directly by the Company.
In addition, the Agents may offer Series B Notes they have purchased as
principal to other dealers. The Agents may sell Series B Notes to any
dealer at a discount and, unless otherwise specified in the applicable
Pricing Supplement, such discount allowed to any dealer may include all or
part of the discount to be received from the Company. After the initial
public offering of Series B Notes to be resold to investors and other
purchasers on a fixed public offering price basis, the public offering
price, concession and discount may be changed.
The Company will agree to indemnify each Agent against certain civil
liabilities, including liabilities under the Securities Act of 1933 (Act)
or to contribute to payments such Agent may be required to make in respect
thereof. Each Agent may be deemed to be an "underwriter" within the
meaning of the Act with respect to Series B Notes sold through it. The
Company will agree to reimburse the Agents for certain expenses.
Series B Notes may also be sold at the price to the public set forth in
the Pricing Supplement relating thereto to dealers who may resell to
investors. Such dealers may be deemed to be "underwriters" within the
meaning of the Act.
The Company will have the right, in its sole discretion, to accept
offers to purchase Series B Notes and may reject any proposal to purchase
Series B Notes in whole or in part. Each Agent will have the right, in its
discretion reasonably exercised, to reject any offer to purchase Series B
Notes received by it in whole or in part.
The Series B Notes are a new issue of securities and will not have an
established trading market when issued. The Series B Notes will not be
listed on any securities exchange. Each Agent may make a market in the
Series B Notes, but such Agent is not obligated to do so and may
discontinue any market-making at any time without notice. There can be no
assurance as to the existence or liquidity of a secondary market for any
Series B Notes, or that all or any of the Series B Notes will be sold.
12
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================================== ==================================
NO DEALER, SALESMAN OR ANY
OTHER PERSON HAS BEEN AUTHORIZED
TO GIVE ANY INFORMATION OR TO $250,000,000
MAKE ANY REPRESENTATIONS IN
CONNECTION WITH THIS OFFERING
OTHER THAN THOSE CONTAINED IN PECO
THIS PROSPECTUS, AND IF GIVEN OR ENERGY
MADE SUCH INFORMATION OR COMPANY
REPRESENTATIONS MUST NOT BE
RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY OR BY COLLATERALIZED
ANY PURCHASER OR UNDERWRITER. MEDIUM-TERM NOTES, SERIES B
THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY
ANY OF THE SECURITIES COVERED BY
THIS PROSPECTUS TO ANY PERSON IN PROSPECTUS
ANY JURISDICTION IN WHICH IT IS
UNLAWFUL TO MAKE SUCH AN OFFER
OR SOLICITATION. NEITHER
DELIVERY OF THIS PROSPECTUS NOR
ANY SALE MADE HEREUNDER SHALL,
UNDER ANY CIRCUMSTANCES, CREATE
AN IMPLICATION THAT THERE HAS
BEEN NO CHANGE IN THE FACTS
HEREIN SET FORTH SINCE THE DATE
HEREOF.
----------
CONTENTS
PAGE
----
Statement of Available
Information .............. 2
Incorporation of Certain
Documents by Reference.... 2
The Company ................ 2
Use of Proceeds............. 3
Description of Series B
Notes and Note Indenture.. 3
Description of Series B
First Mortgage Bonds
and Mortgage.............. 8
Experts..................... 11
Legal Matters............... 12
Plan of Distribution........ 12
================================== ==================================
<PAGE>
PART II--INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION*
Filing Fees .............................. $ 86,207
Legal Services ........................... 75,000
Accounting Services ...................... 25,000
Trustee's Charges, Including Counsel ..... 75,000
Printing and Engraving ................... 50,000
Rating Agencies Services ................. 40,000
Recording Indenture ...................... 15,000
Miscellaneous ............................ 39,793
--------
Total .................................... $376,000
========
*Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Bylaws provide that the Company is obligated to indemnify
directors and officers and other persons designated by the Board of
Directors against any liability including any damage, judgment, amount paid
in settlement, fine, penalty, cost or expense (including, without
limitation, attorneys' fees and disbursements) incurred in connection with
any proceeding. The Bylaws provide that no indemnification shall be made
where the act or failure to act giving rise to the claim for
indemnification is determined by arbitration or otherwise to have
constituted willful misconduct or recklessness or attributable to receipt
from the Company of a personal benefit to which the recipient is not
legally entitled.
The Business Corporation Law of 1988 provides that indemnification
pursuant to a bylaw may be granted for any action taken or any failure to
take any action, absent a court determination of willful misconduct or
recklessness, and may be made whether or not the corporation would have the
power to indemnify the person under any other provision of law.
Pursuant to the Business Corporation Law of 1988, the Company's Bylaws
provide that directors generally will not be liable for monetary damages in
any action whether brought by shareholders directly or in the right of the
Company or by third parties unless they fail in the good faith performance
of their duties as fiduciaries (the standard of care established by the
Business Corporation Law of 1988), and such failure constitutes
self-dealing, willful misconduct or recklessness.
The Agents will also agree to indemnify the directors and officers of
the Company against certain liabilities as set forth in Section 7 of the
Distribution Agreement (see Exhibit 1).
The Company has purchased directors' and officers' liability insurance.
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ITEM 16. EXHIBITS
Pursuant to Rule 411 of the Securities Act of 1933 (Act), certain of
the following listed exhibits are annexed as exhibits to previous SEC
filings by the Company and are incorporated by reference as Exhibits to
this Registration Statement.
EXHIBIT NUMBER DESCRIPTION
- -------------- --------------------------------------------------------------
1 Form of Distribution Agreement.
3(i) Amended and Restated Articles of Incorporation of PECO
Energy Company (Filed with 1993 Form 10-K, file No.
1-1401, Exhibit 3-1).
3(ii) Bylaws of the Company, as adopted February 26, 1990 and
amended January 24, 1994 (Filed with 1993 Form 10-K,
file No. 1-1401, Exhibit 3-2).
4 Copy of First and Refunding Mortgage dated May 1, 1923
between The Counties Gas and Electric Company
(predecessor to the Company) and Fidelity Trust Company,
Trustee (First Fidelity Bank, National Association,
successor), securing First and Refunding Mortgage Bonds
(Filed with Registration No. 2-2881, effective March 10,
1937, Exhibit B-1), and indentures supplemental thereto
dated as follows:
4(b)-3 May 1, 1927 (Filed with Registration No. 2-2881,
effective March 10, 1937, Exhibit B-1(c)).
4(b)-7 March 1, 1937 (Filed with Registration No. 2-2881,
effective March 10, 1937, Exhibit B-1(g)).
4(b)-8 December 1, 1941 (Filed with Registration No.
2-4863, effective November 25, 1941, Exhibit
B-1(h)).
4(b)-9 November 1, 1944 (Filed with Registration No.
2-5472, effective October 19, 1944, Exhibit
B-1(i)).
4(b)-10 December 1, 1946 (Filed with Registration No.
2-6821, effective December 13, 1946, Exhibit
7-1(j)).
4(b)-16 September 1, 1957 (Filed with Registration No.
2-13562, effective September 10, 1957, Exhibit
2(b)-17).
4(b)-17 May 1, 1958 (Filed with Registration No. 2-14020,
effective April 23, 1958, Exhibit 2(b)-18).
4(b)-20 May 1, 1964 (Filed with Registration No. 2-25628,
effective November 16, 1966, Exhibit 4(b)-21).
4(b)-23 October 1, 1967 (Filed with Registration No.
2-28242, effective March 7, 1968, Exhibit
2(b)-23).
4(b)-24 March 1, 1968 (Filed with Registration No. 2-34051,
effective August 8, 1969, Exhibit 2(b)-24).
4(b)-29 December 15, 1970 (Filed with Registration No.
2-41081, effective July 26, 1971, Exhibit
2(b)-29).
4(b)-31 December 15, 1971 (Filed with Registration No.
2-44195, effective June 15, 1972, Exhibit
2(b)-31).
4(b)-33 January 15, 1973 (Filed with Registration No.
2-49842, effective January 10, 1974, Exhibit
2(b)-33).
4(b)-46 March 1, 1981 (Filed with Registration No. 2-72802,
effective July 7, 1981, Exhibit 4-46).
4(b)-47 March 1, 1981 (Filed with Registration No. 2-72802,
effective July 7, 1981, Exhibit 4-47).
4(b)-53 November 15, 1984 (Filed with 1984 Form 10-K, file
No. 1-1401, Exhibit 4-2(a)).
4(b)-54 December 1, 1984 (Filed with 1984 Form 10-K, file
No. 1-1401, Exhibit 4-2(b)).
4(b)-55 May 15, 1985 (Filed with 1985 Form 10-K, file No.
1-1401, Exhibit 4-2(a)).
4(b)-56 October 1, 1985 (Filed with 1985 Form 10-K, file
No. 1-1401, Exhibit 4-2(b)).
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EXHIBIT NUMBER DESCRIPTION
- -------------- --------------------------------------------------------------
4(b)-61 November 1, 1986 (Filed with 1986 Form 10-K, file
No. 1-1401, Exhibit 4-2(c)).
4(b)-63 July 15, 1987 (Filed with Form 8-K dated July 21,
1987, file No. 1-1401, Exhibit 4(c)-63).
4(b)-64 July 15, 1987 (Filed with Form 8-K dated July 21,
1987, file No. 1-1401, Exhibit 4(c)-64).
4(b)-65 August 1, 1987 (Filed with Registration No.
33-17438, effective September 28, 1987, Exhibit
4(c)-65).
4(b)-66 October 15, 1987 (Filed with Form 8-K dated October
7, 1987, file No. 1-1401, Exhibit 4(c)-66).
4(e)-67 October 15, 1987 (Filed with Form 8-K dated October
7, 1987, file No. 1-1401, Exhibit 4(c)-67).
4(b)-68 April 15, 1988 (Filed with Form 8-K dated April 11,
1988, file No. 1-1401, Exhibit 4(c)-68).
4(b)-69 April 15, 1988 (Filed with Form 8-K dated April 11,
1988, file No. 1-1401, Exhibit 4(c)-69).
4(b)-70 June 15, 1989 (Filed with Registration No.
33-31289, effective September 29, 1989, Exhibit
4(c)-70).
4(b)-71 October 1, 1989 (Filed with Form 8-K dated October
6, 1989, file No. 1-1401, Exhibit 4(b)-71).
4(b)-72 October 1, 1989 (Filed with Form 8-K dated October
6, 1989, file No. 1-1401, Exhibit 4(b)-72).
4(b)-73 October 1, 1989 (Filed with Form 8-K dated October
18, 1989, file No. 1-1401, Exhibit 4(b)-73).
4(b)-74 October 15, 1990 (Filed with 1990 Form 10-K, file
No. 1-1401, Exhibit 4(b)-74).
4(b)-75 October 15, 1990 (Filed with 1990 Form 10-K, file
No. 1-1401, Exhibit 4(b)-75).
4(b)-76 April 1, 1991 (Filed with 1991 Form 10-K, file No.
1-1401, Exhibit 4(b)-76).
4(b)-77 December 1, 1991 (Filed with 1991 Form 10-K, file
No. 1-1401, Exhibit 4(b)-77).
4(b)-78 January 15, 1992 (Filed with Form 8-K dated January
27, 1992, file No. 1-1401, Exhibit 4(b)-78).
4(b)-79 April 1, 1992 (Filed with March 31, 1992 Form 10-Q,
file No. 1-1401, Exhibit 4(b)-79).
4(b)-80 April 1, 1992 (Filed with March 31, 1992 Form 10-Q,
file No. 1-1401, Exhibit 4(b)-80).
4(b)-81 June 1, 1992 (Filed with June 30, 1992 Form 10-Q,
file No. 1-1401, Exhibit 4(b)-81).
4(b)-82 June 1, 1992 (Filed with June 30, 1992 Form 10-Q,
file No. 1-1401, Exhibit 4(b)-82).
4(b)-83 July 15, 1992 (Filed with June 30, 1992 Form 10-Q,
file No. 1-1401, Exhibit 4(b)-83).
4(b)-84 September 1, 1992 (Filed with 1992 Form 10-K, file
No. 1-1401, Exhibit 4(b)-84).
4(b)-85 September 1, 1992 (Filed with 1992 Form 10-K, file
No. 1-1401, Exhibit 4(b)-85).
4(b)-86 March 1, 1993 (Filed with 1992 Form 10-K, file No.
1-1401, Exhibit 4(b)-86).
4(b)-87 March 1, 1993 (Filed with 1992 Form 10-K, file No.
1-1401, Exhibit 4(b)-87).
4(b)-88 March 1, 1993 (Filed with March 31, 1993 Form 10-Q,
file No. 1-1401, Exhibit 4(b)-88).
4(b)-89 May 1, 1993 (Filed with March 31, 1993 Form 10-Q,
file No. 1-1401, Exhibit 4(b)-89).
4(b)-90 May 1, 1993 (Filed with March 31, 1993 Form 10-Q,
file No. 1-1401, Exhibit 4(b)-90).
4(b)-91 August 15, 1993 (Filed with Form 8-A dated August
19, 1993, Exhibit 4(b)-91).
4(b)-92 August 15, 1993 (Filed with Form 8-A dated August
19, 1993, Exhibit 4(b)-92).
4(b)-93 August 15, 1993 (Filed with Form 8-A dated August
19, 1993, Exhibit 4(b)-93).
4(b)-94 November 1, 1993 (Filed with Form 8-A dated October
27, 1993, Exhibit 4(b)-94).
4(b)-95 November 1, 1993 (Filed with Form 8-A dated October
27, 1993, Exhibit 4(b)-95).
R-3
<PAGE>
EXHIBIT NUMBER DESCRIPTION
- -------------- --------------------------------------------------------------
4(b)-96 Form of Ninety-sixth Supplemental Indenture.
4(f) Collateralized Note Indenture dated as of October 1, 1989
between Philadelphia Electric Company (now known as
PECO Energy Company) and Fidelity Bank, National
Association (First Fidelity Bank, National
Association, successor) (Filed with Form 8-K dated
October 18, 1989, file No. 1-1401, Exhibit 4(f)).
4(f)-1 First Supplemental Indenture dated as of July 1, 1994.
4(f)-2 Form of Second Supplemental Indenture dated as of July 1,
1994.
5 Opinion of Counsel.
12 Ratio of Earnings to Fixed Charges for the 12 months ended
December 31, 1993 (Filed with 1993 Form 10-K, file No.
1-1401, Exhibit 12-1).
Ratio of Earnings to Fixed Charges for the 3 months ended
March 31, 1994 (Filed with March 31, 1994 Form 10-Q,
file No. 1-1401, Exhibit 12-2).
23-1 Consent of Independent Accountants.
23-2 Consent of Cahill, Wilinski & Cahill.
23-3 Consent of Ballard Spahr Andrews & Ingersoll (included in
Exhibit 5).
24 Powers of Attorney.
25 Form T-1 Statement of Eligibility under the Trust
Indenture Act of 1939.
ITEM 17. UNDERTAKINGS
A. TO UPDATE ANNUALLY
The Company hereby undertakes:
(1) to file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of
the Act;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement;
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
Provided, however, that Paragraphs (1)(i) and (1)(ii) do not apply if
the registration statement is on Form S-3, and the information required to
be included in a post-effective amendment by those paragraphs is contained
in periodic reports filed by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 (Exchange Act) that
are incorporated by reference in the registration statement;
(2) that for the purpose of determining any liability under the Act,
each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof; and
(3) to remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
R-4
<PAGE>
B. INCORPORATION BY REFERENCE
The Company hereby undertakes that, for purposes of determining any
liability under the Act, each filing of the registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in the registration statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
C. INDEMNIFICATION
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the SEC such indemnification is against
public policy as expressed in the Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
R-5
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE
REGISTRANT, PECO ENERGY COMPANY, CERTIFIES THAT IT HAS REASONABLE
GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE REQUIREMENTS FOR FILING ON
FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION STATEMENT OR AMENDMENT TO
BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED,
IN THE CITY OF PHILADELPHIA, COMMONWEALTH OF PENNSYLVANIA ON THE 4TH DAY
OF AUGUST, 1994.
PECO ENERGY COMPANY
By /s/ J. F. Paquette, Jr.
------------------------------------------
J. F. Paquette, Jr., Chairman of the Board
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT OR AMENDMENT HAS BEEN SIGNED BY THE FOLLOWING
PERSONS IN THE CAPACITIES AND ON THE DATE INDICATED.
SIGNATURE TITLE DATE
- ----------------------- ---------------------------------- -----------------
/s/ J. F. PAQUETTE, JR. Chairman of the Board and Director August 4, 1994
- ----------------------- (Principal Executive Officer)
J. F. PAQUETTE, JR.
/s/ C. A. MCNEILL, JR. President and Director (Principal August 4, 1994
- ----------------------- Operating Officer)
C. A. MCNEILL, JR.
/s/ K. G. LAWRENCE Senior Vice President (Principal August 4, 1994
- ----------------------- Financial and Accounting Officer
K. G. LAWRENCE
THIS REGISTRATION STATEMENT OR AMENDMENT HAS ALSO BEEN SIGNED BY C. A.
MCNEILL, JR., ATTORNEY-IN-FACT, ON BEHALF OF THE FOLLOWING DIRECTORS ON THE
DATE INDICATED:
Susan W. Catherwood Joseph C. Ladd
M. Walter D'Alessio Edithe J. Levit
Richard G. Gilmore Kinnaird R. McKee
Richard H. Glanton Joseph J. McLaughlin
James A. Hagen John M. Palms
Nelson G. Harris Ronald Rubin
By /s/ C. A. MCNEILL, JR. August 4, 1994
-------------------------------------
C. A. McNeill, Jr., Attorney-in-Fact
R-6
Exhibit 1
PECO ENERGY COMPANY
$250,000,000
COLLATERALIZED MEDIUM-TERM NOTES, SERIES B
DISTRIBUTION AGREEMENT
----------------------
July __, 1994
[Insert underwriters names]
Dear Sirs:
PECO Energy Company (the "Company") proposes to issue
and sell from time to time its Collateralized Medium-Term Notes,
Series B (the "Notes") in an aggregate amount up to $250,000,000
and agrees with each of you (individually, an "Agent" and
collectively, the "Agents") as set forth in this Agreement.
Subject to the terms and conditions stated herein and
to the reservation by the Company of the right to sell Notes
directly on its own behalf, the Company hereby (i) appoints each
Agent as an agent of the Company for the purpose of soliciting
and receiving offers to purchase Notes from the Company pursuant
to Section 2(a) hereof and (ii) agrees that, except as otherwise
contemplated herein, whenever it determines to sell Notes
directly to any Agent as principal, it will enter into a separate
agreement (each a "Terms Agreement"), substantially in the form
of Annex I hereto, relating to such sale in accordance with
Section 2(b) hereof.
The Notes will be issued under a Collateralized Note
Indenture dated as of October 1, 1989, as previously amended and
as further supplemented by a Second Supplemental Indenture dated
as of July 1, 1994 (the "Indenture"), between the Company and
Fidelity Bank, National Association (to which First Fidelity
Bank, National Association is successor), as trustee (the "Note
Trustee"). The Notes shall have the maturity ranges, fixed
interest rates, redemption provisions and other terms set forth
in the Prospectus referred to below as it may be amended or
supplemented from time to time. The Notes will be issued, and
the terms and rights thereof established, from time to time by
the Company in accordance with the Indenture.
1. The Company represents and warrants to, and agrees
with, each Agent that:
(a) A registration statement on Form S-3 in
respect of the Notes has been filed with the Securities and
<PAGE>
Exchange Commission (the "Commission") in the form heretofore
delivered or to be delivered to such Agent, excluding exhibits to
such registration statement but including all documents
incorporated by reference in the prospectus included therein, and
such registration statement in such form has been declared
effective by the Commission and no stop order suspending the
effectiveness of such registration statement has been issued and
no proceeding for that purpose has been initiated or threatened
by the Commission (any preliminary prospectus included in such
registration statement being hereinafter called a "Preliminary
Prospectus"; the various parts of such registration statement
(together with any other registration statement with respect to
the Notes), including all exhibits thereto but excluding Form T-1
and, if applicable, including the information contained in the
form of final prospectus filed with the Commission pursuant to
Rule 424(b) under the Securities Act of 1933, as amended (the
"Act"), in accordance with Section 4(a) hereof, each as amended
at the time such part became effective, being hereinafter
collectively called the "Registration Statement"; the prospectus
(including, if applicable, any prospectus supplement) relating to
the Notes, in the form in which it has most recently been filed
with the Commission on or prior to the date of this Agreement,
being hereinafter called the "Prospectus"; any reference herein
to any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include the documents incorporated by reference
therein pursuant to the applicable form under the Act, as of the
date of such Preliminary Prospectus or Prospectus, as the case
may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus, including any
supplement to the Prospectus that sets forth only the terms of a
particular issue of the Notes (a "Pricing Supplement"), shall be
deemed to refer to and include any documents filed after the date
of such Preliminary Prospectus or Prospectus, as the case may be,
under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated therein by reference; and any
reference to the Prospectus as amended or supplemented shall be
deemed to refer to and include the Prospectus as amended or
supplemented (including by the applicable Pricing Supplement
filed in accordance with Section 4(a) hereof) in relation to
Notes sold pursuant to this Agreement, in the form filed with the
Commission pursuant to Rule 424(b) under the Act and in
accordance with Section 4(a) hereof, including any documents
incorporated by reference therein as of the date of such filing);
(b) The documents incorporated by reference in
the Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material
respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder, and none of such documents, when they became
effective or were so filed, as the case may be, contained, in the
case of documents which became effective under the Act, an untrue
- 2 -
<PAGE>
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and, in the case of documents which were
filed under the Exchange Act with the Commission, an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading,
and any further documents so filed and incorporated by reference
in the Prospectus as amended and supplemented, when such
documents become effective or are filed with the Commission, as
the case may be, will conform in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and will
not contain, in the case of documents which become effective
under the Act, an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading, and in the case of
documents which are filed under the Exchange Act with the
Commission, an untrue statement of material fact or omit to state
a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in
writing to the Company by any Agent expressly for use in the
Prospectus as amended or supplemented;
(c) The Registration Statement and the Prospectus
conform, and any amendments or supplements thereto will conform,
in all material respects to the requirements of the Act and the
Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), and the rules and regulations of the Commission thereunder
and do not and will not, as of the applicable effective date in
the case of the Registration Statement and any amendment thereto
and as of the applicable filing date in the case of the
Prospectus and any amendment or supplement thereto, contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Agent
expressly for use in the Prospectus as amended or supplemented to
relate to a particular issuance of Notes;
(d) Since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus, there has not been any material adverse change, or
any development which the Company reasonably believes will result
in a prospective material adverse change, in the financial
condition, business or results of operations of the Company and
- 3 -
<PAGE>
its subsidiaries, considered as a whole, otherwise than as set
forth or contemplated in the Prospectus;
(e) The Company is a validly existing corporation
in good standing under the laws of the Commonwealth of
Pennsylvania. Each of the Company's subsidiaries which
constitutes a "gas utility company" or an "electric utility
company", as such terms are defined in the Public Utility Holding
Company Act of 1935, as amended, ("Utility Subsidiary"), is a
validly existing corporation under the laws of its jurisdiction
of incorporation. The Company and each Utility Subsidiary have
all requisite power and authority to own and occupy their
respective properties and carry on their respective businesses as
presently conducted and as described in the Prospectus and are
duly qualified as foreign corporations to do business and in good
standing in every jurisdiction in which the nature of the
business conducted or property owned by them make such
qualification necessary and in which the failure to so qualify
would have a materially adverse effect on the Company;
(f) At or prior to each Time of Delivery and each
Settlement Date fixed pursuant to the Administrative Procedure,
the Company will have pledged with the Note Trustee under the
Indenture for the benefit of the holders of the Notes an
aggregate principal amount of the Company's First and Refunding
Mortgage Bonds, Medium-Term Note Series B (the "Bonds") to be
issued under the First and Refunding Mortgage dated May 1, 1923,
between The Counties Gas and Electric Company (to which the
Company is successor) and Fidelity Trust Company (to which First
Fidelity Bank, National Association is successor) (the "Bond
Trustee"), as supplemented and amended by ninety-five
supplemental indentures and as to be further supplemented and
amended by that supplemental indenture to be dated July 1, 1994
between the Company and the Bond Trustee relating to the Bonds
(said First and Refunding Mortgage and supplemental indentures
being hereinafter collectively called the "Mortgage") equal to
the principal amount of Notes then being issued pursuant to the
Indenture;
(g) At each Time of Delivery and each Settlement
Date fixed pursuant to the Administrative Procedure, the title to
the Bonds then being issued and delivered to the Note Trustee
will be free and clear of any liens, charges or encumbrances
(other than the lien of the Indenture), and the Indenture will
constitute a valid and binding perfected first lien upon such
Bonds;
(h) The Notes have been duly authorized, and,
when issued and delivered pursuant to this Agreement and any
Terms Agreement and authenticated by the Note Trustee, will have
been duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Company
- 4 -
<PAGE>
entitled to the benefits provided by the Indenture, which will be
substantially in the form filed as an exhibit to the Registration
Statement; the Indenture has been duly authorized by the Company
and has been qualified under the Trust Indenture Act and
constitutes a valid and legally binding instrument, enforceable
in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles; and the Indenture conforms and the
Notes of any particular issuance of Notes will conform to the
descriptions thereof in the Prospectus as amended or supplemented
to relate to such issuance of Notes;
(i) The Bonds have been duly authorized, and,
when issued and delivered pursuant to Mortgage and authenticated
by the Mortgage Trustee, will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company entitled to the
benefits provided by the Mortgage, which will be substantially in
the form filed as an exhibit to the Registration Statement; the
Mortgage has been duly authorized by the Company and constitutes
a valid and legally binding instrument, enforceable in accordance
with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights, to
applicable state laws which may affect the remedies provided for
in the Mortgage without, however, rendering inadequate the
remedies available to the Bond Trustee for the practical
realization of the benefit of the security intended to be
afforded thereby, to the Atomic Energy Act of 1954, 42 U.S.C.
section 2011, et seq., and the rules and regulations thereunder and to
general equity principles; and the Mortgage conforms and the
Bonds will conform to the descriptions thereof in the Prospectus
as amended or supplemented;
(j) The issue and sale of the Notes, the issue
and pledge of the Bonds, the compliance by the Company with all
of the provisions of the Notes, the Indenture, the Bonds, the
Mortgage, this Agreement and any Terms Agreement, and the
consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach of any of the terms
or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust or other agreement or instrument to which
the Company is a party or by which the Company is bound or to
which any of the property or assets of the Company is subject, or
result in the creation of (or impose any obligation on the
Company or any Utility Subsidiary to create) any mortgage,
pledge, lien, security or encumbrance (other than the liens of
the Mortgage and the Indenture) upon any properties or assets of
the Company or any Utility Subsidiary pursuant to any such term;
nor will such action result in any violation of the provisions of
the Articles of Incorporation, as amended, or the Bylaws of the
- 5 -
<PAGE>
Company, as amended, or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its properties; and no
consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body
is required for the issue and sale of the Notes, the issue and
pledge of the Bonds or the consummation by the Company of the
other transactions contemplated by this Agreement, any Terms
Agreement, the Mortgage or the Indenture, except such as have
been, or will have been prior to the Commencement Date (as
defined in Section 3 hereof), obtained under the Act or the Trust
Indenture Act, from the Pennsylvania Public Utility Commission
authorizing the Company to issue and sell the Notes and to issue
Bonds pursuant to the Mortgage to collateralize the Notes and
such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue
Sky laws;
(k) The accountants that have certified or shall
certify the financial statements filed or to be filed with the
Commission and incorporated by reference as parts of the
Registration Statement and the Prospectus as amended or
supplemented are independent accountants as required by the Act;
and
(l) Other than as set forth or contemplated in
the Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a
party or to which any property of the Company or any of its
subsidiaries is subject, which may individually or in the
aggregate have a material adverse effect on the consolidated
financial position, stockholders' equity or results of operations
of the Company and its subsidiaries, and, to the best of the
Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
2. (a) On the basis of the representations and
warranties herein contained, and subject to the terms and
conditions herein set forth, each of the Agents hereby severally
and not jointly agrees, as agent of the Company, when so
instructed by the Company, to use its reasonable efforts to
solicit and receive offers to purchase the Notes from the Company
upon the terms and conditions set forth in the Prospectus as
amended or supplemented from time to time. Instruction by the
Company to solicit and receive offers to purchase the Notes shall
be deemed to constitute a reaffirmation as of the date of such
instruction of the Company's representations and warranties set
forth in Section 1 above as if such representations and
warranties were then made. So long as each Agent's obligation to
solicit offers to purchase the Notes has not been terminated
hereunder, the Company shall not, without the consent of such
Agent, solicit or accept offers to purchase, or sell, any debt
- 6 -
<PAGE>
securities with a maturity at the time of original issuance of 9
months to 30 years except pursuant to this Agreement, any Terms
Agreement, or except pursuant to a private placement not
constituting a public offering under the Act or except in
connection with a competitive bid or firm commitment underwriting
pursuant to an underwriting agreement that does not provide for a
continuous offering of medium-term debt securities. However, the
Company reserves the right to sell, and may solicit and accept
offers to purchase, Notes directly on its own behalf, and, in the
case of any such sale not resulting from a solicitation made by
an Agent, no commission will be payable with respect to such
sale. These provisions shall not limit Section 4(f) hereof or
any similar provision included in any Terms Agreement.
Procedural details relating to the issue and delivery
of Notes, the solicitation of offers to purchase Notes and the
payment in each case therefor shall be as set forth in the
Administrative Procedure attached hereto as Annex II as it may be
amended from time to time by written agreement between the Agents
and the Company (the "Administrative Procedure"). The provisions
of the Administrative Procedure shall apply to all transactions
contemplated hereunder other than those made pursuant to a Terms
Agreement. Each Agent and the Company agree to perform the
respective duties and obligations specifically provided to be
performed by each of them in the Administrative Procedure. The
Company will furnish to the Note Trustee a copy of the
Administrative Procedure as from time to time in effect.
The Company reserves the right, in its sole discretion,
to instruct the Agents to suspend at any time, for any period of
time or permanently, the solicitation of offers to purchase the
Notes. As soon as practicable, but in any event not later than
one business day in New York City, after receipt of notice from
the Company, the Agents will suspend solicitation of offers to
purchase Notes from the Company until such time as the Company
has advised the Agents that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, at
the time of settlement of any sale of a Note by the Company as a
result of a solicitation made by such Agent, in an amount equal
to the following applicable percentage of the principal amount of
such Note sold:
- 7 -
<PAGE>
Commission
(percentage of
aggregate
principal amount
Range of Maturities of Notes sold)
------------------- --------------
From 9 months to less than 1 year. . . .
From 1 year to less than 18 months . . .
From 18 months to less than 2 years. . .
From 2 years to less than 3 years. . . .
From 3 years to less than 4 years. . . .
From 4 years to less than 5 years. . . .
From 5 years to less than 6 years. . . .
From 6 years to less than 7 years. . . .
From 7 years to less than 10 years . . .
From 10 years to less than 15 years. . .
From 15 years to less than 20 years. . .
20 years and more. . . . . . . . . . . .
Unless otherwise agreed between the Company and each
Agent, each Agent shall communicate to the Company, orally or in
writing, each offer to purchase Notes received by it as Agent
other than those rejected by such Agent in accordance herewith.
The Company shall have the right in its sole and absolute
discretion to accept offers to purchase Notes and may reject any
proposed purchase of Notes. If the Company accepts an offer to
purchase Notes, it shall confirm such acceptance in writing.
Each Agent shall have the right, in its discretion reasonably
exercised, to reject any proposed purchase of Notes received by
it, and any such rejection by it shall not be deemed a breach of
its agreements contained herein. No Agent shall have the
authority to accept any offer to purchase Notes resulting from
such Agent's solicitation of offers. The appointment by the
Company of each Agent shall not authorize such Agent to take any
action on behalf of the Company other than as set forth in this
Agreement and the Administrative Procedure.
(b) Each sale of Notes to any Agent as principal
shall be made in accordance with the terms of this Agreement and
(unless the Company and such Agent shall otherwise agree in
writing) a Terms Agreement which will provide for the sale of
such Notes to, and the purchase thereof by, such Agent. Terms
Agreements, each of which shall be substantially in the form of
Annex I hereto, may take the form of an exchange of any standard
form of written telecommunication between any Agent and the
Company, including by telecopy or telex. The Company and any
Agent who is a party to a Terms Agreement agree to exchange
executed copies of such Terms Agreement as promptly as
practicable after they have entered into such Terms Agreement
pursuant to the foregoing exchange of written telecommunication.
- 8 -
<PAGE>
For each sale of Notes to an Agent as principal that is
not made pursuant to a Terms Agreement, the procedural details
relating to the issue and delivery of such Notes and payment
therefor shall be as set forth in the Administrative Procedure.
For each such sale of Notes to an Agent as principal that is not
made pursuant to a Terms Agreement, the Company agrees to pay
such Agent a commission (or grant an equivalent discount) as
provided in Section 2(a) hereof and in accordance with the
schedule set forth therein.
Each time and date of delivery of and payment for Notes
to be purchased by an Agent as principal, whether set forth in a
Terms Agreement or in accordance with the Administrative
Procedure, is referred to herein as a "Time of Delivery".
3. The documents required to be delivered pursuant to
Section 6 hereof on the Commencement Date (as defined below)
shall be delivered to the Agents at the offices of PECO Energy
Company, 2301 Market Street, Philadelphia, PA 19103 at 11:00
A.M., Philadelphia time, on the date of this Agreement, which
date and time of such delivery may be postponed by agreement
between the Agents and the Company but in no event shall be later
than the day prior to the date on which solicitation of offers to
purchase Notes is commenced or on which any Terms Agreement is
executed (such time and date being referred to herein as the
"Commencement Date").
4. The Company covenants and agrees with each Agent:
(a) (i) To make no amendment or supplement to
the Registration Statement or the Prospectus (A) prior to the
Commencement Date which shall be disapproved by any Agent
promptly after reasonable notice thereof or (B) after the date of
any Terms Agreement or other agreement by an Agent to purchase
Notes as principal and prior to the related Time of Delivery
which shall be disapproved by any Agent party to such Terms
Agreement or so purchasing as principal promptly after reasonable
notice thereof; provided, however, that the foregoing requirement
shall not apply to periodic filings with the Commission by the
Company of Current Reports on Form 8-K or Quarterly Reports on
Form 10-Q under the Exchange Act, copies of which filings the
Company will cause to be delivered to such Agent reasonably on or
after the date of filing with the Commission; (ii) to prepare,
with respect to any Notes to be sold through or to such Agent
pursuant to this Agreement, a Pricing Supplement with respect to
such Notes in a form previously approved by such Agent and to
file such Pricing Supplement pursuant to Rule 424(b) under the
Act within the applicable time period for such filing by the
rules and regulations under the Act; (iii) to make no amendment
or supplement to the Registration Statement or Prospectus, other
than any Pricing Supplement, at any time prior to having afforded
each Agent a reasonable opportunity to review and comment on it;
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<PAGE>
provided, however, that the foregoing requirement shall not apply
to periodic filings with the Commission by the Company of Current
Reports on Form 8-K or Quarterly Reports on Form 10-Q or under
the Exchange Act, copies of which filings the Company will cause
to be delivered to such Agent reasonably on or after the date of
filing with the Commission; (iv) to file promptly all reports and
any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the
delivery of a prospectus is required in connection with the
offering or sale of the Notes, and during such same period to
advise such Agent, promptly after the Company receives notice
thereof, of the time when any amendment to the Registration
Statement has been filed or has become effective or any
supplement to the Prospectus or any amended Prospectus (other
than any Pricing Supplement that relates to Notes not purchased
through or by such Agent) has been filed with the Commission, of
the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any prospectus relating to
the Notes, of the suspension of the qualification of the Notes
for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any
request by the Commission for the amendment or supplement of the
Registration Statement or Prospectus or for additional
information; and (v) in the event of the issuance of any such
stop order or of any such order preventing or suspending the use
of any such prospectus or suspending any such qualification, to
use promptly its reasonable efforts to obtain its withdrawal;
(b) Promptly from time to time to take such
action as such Agent reasonably may request to qualify the Notes
for offering and sale under the securities laws of such
jurisdictions as such Agent may request and to comply with such
laws so as to permit the continuance of sales and dealings
therein for as long as may be necessary to complete the
distribution or sale of the Notes; provided, however, that in
connection therewith the Company shall not be required to qualify
as a foreign corporation or to file a general consent to service
of process in any jurisdiction;
(c) To furnish such Agent with copies of the
Registration Statement and each amendment thereto, with copies of
the Prospectus as each time amended or supplemented, other than
any Pricing Supplement (except as provided in the Administrative
procedure), in the form in which it is filed with the Commission
pursuant to Rule 424 under the Act, and with copies of the
documents incorporated by reference therein, all in such
quantities as such Agent may reasonably request from time to
time; and, if the delivery of a prospectus is required at any
time in connection with the offering or sale of the Notes
(including Notes purchased from the Company by such Agent as
principal) and if at such time any event shall have occurred as a
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result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if
for any other reason it shall be necessary during such same
period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Act, the Exchange Act or
the Trust Indenture Act, to notify such Agent and request such
Agent, in its capacity as agent of the Company, to suspend
solicitation of offers to purchase Notes from the Company (and,
if so notified, such Agent shall promptly cease such
solicitations); and if the Company shall decide to amend or
supplement the Registration Statement or the Prospectus as then
amended or supplemented, to so advise such Agent promptly by
telephone (with confirmation in writing) and to prepare and cause
to be filed promptly with the Commission an amendment or
supplement to the Registration Statement or the Prospectus as
then amended or supplemented that will correct such statement or
omission or effect such compliance; provided, however, that if
during such same period such Agent continues to own Notes
purchased from the Company by such Agent as principal or such
Agent is otherwise required to deliver a prospectus in respect of
transactions in the Notes, the Company shall promptly prepare and
file with the Commission such an amendment or supplement;
(d) To make generally available to its security
holders as soon as is reasonably practicable, but in any event
not later than eighteen months after the date of acceptance by
the Company of an offer to purchase Notes covering a period of at
least twelve months beginning on the later of (i) the effective
date of the Registration Statement, (ii) the effective date of
each post-effective amendment to the Registration Statement, and
(iii) the date of each filing by the Company with the Commission
of an Annual Report on Form 10-K that is incorporated by
reference in the Registration Statement, an earnings statement of
the Company and its subsidiaries (which need not be audited)
complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the
option of the Company, Rule 158);
(e) During the term of this Agreement, to furnish
to such Agent copies of all reports or other communications
(financial or other) furnished to stockholders, and deliver to
such Agent (i) as soon as they are available, copies of any
reports and financial statements furnished to or filed with the
Commission or any national securities exchange on which any class
of securities of the Company is listed; and (ii) such additional
information concerning the business and financial condition of
the Company as such Agent may from time to time reasonably
request (such financial statements to be on a consolidated basis
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to the extent the accounts of the Company and its subsidiaries
are consolidated in reports furnished to its stockholders
generally or to the Commission);
(f) That, from the date of any Terms Agreement
with such Agent or other agreement by such Agent to purchase
Notes as principal and continuing to and including the related
Time of Delivery, the Company will not, without the prior written
consent of such Agent, offer, sell, contract to sell or otherwise
dispose of any debt securities of the Company which both mature
more than 9 months after such Time of Delivery and are
substantially identical to the Notes;
(g) That each acceptance by the Company of an
offer to purchase Notes hereunder (including any purchase by such
Agent as principal not pursuant to a Terms Agreement), each
execution and delivery by the Company of a Terms Agreement with
such Agent, and each delivery of Notes by the Company on the
settlement date for the Notes relating to such acceptance or Time
of Delivery, shall be deemed to be an affirmation to such Agent
that the representations and warranties of the Company contained
in or made pursuant to this Agreement are true and correct in all
material respects as of the date of such acceptance, of such
Terms Agreement or of such delivery of Notes, as the case may be,
as though made at and as of such date (except that such
representations and warranties shall be deemed to relate to the
Registration Statement and/or the Prospectus as amended and
supplemented to such date);
(h) That upon each Settlement Date or Time of
Delivery, the Company shall furnish to counsel to the Agents such
papers and information as they may reasonably request to enable
them to furnish to such Agent the opinion or opinions referred to
in Section 6(b) hereof;
(i) That upon each Settlement Date or Time of
Delivery, the Company shall furnish or cause to be furnished to
such Agent a written opinion of counsel for the Company
satisfactory to such Agent, dated the date of such Settlement
Date or Time of Delivery relating to such sale, in form
satisfactory to such Agent, to the effect that such Agent may
rely on the opinion of such counsel referred to in Section 6(c)
hereof which was last furnished to such Agent to the same extent
as though it were dated the date of such letter authorizing
reliance (except that the statements in such last opinion shall
be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date) or, in lieu
of such opinion, an opinion of the same tenor as the opinion of
such counsel referred to in Section 6(c) hereof but modified to
relate to the Registration Statement and the Prospectus as
amended and supplemented to such date;
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<PAGE>
(j) That, if the Registration Statement or the
Prospectus shall have been amended or supplemented, or a document
shall have been filed under the Act or the Exchange Act and
incorporated by reference into the Prospectus, in either case to
set forth financial information included in or derived from the
Company's consolidated financial statements or accounting
records, and in each case if such amendment, supplement or
incorporation shall have taken place prior to any Settlement Date
or Time of Delivery and since the later of the effective date of
the Registration Statement or the date of the last such
Settlement Date or Time of Delivery on or at which such Agent
acted as agent or principal pursuant to a Terms Agreement or
otherwise, then the Company shall cause the independent certified
public accountants who have certified the financial statements of
the Company and its subsidiaries included or incorporated by
reference in the Registration Statement to furnish such Agent a
letter, dated the date of such Settlement Date or Time of
Delivery relating to such sale in form satisfactory to such
Agent, of the same tenor as the letter referred to in Section
6(d) hereof but modified to relate to the Registration Statement
and the Prospectus as amended or supplemented to the date of such
letter, with such changes as may be necessary to reflect changes
in the financial statements and other information derived from
the accounting records of the Company, to the extent such
financial statements and other information are available as of a
date not more than five business days prior to the date of such
letter; provided, however, that, with respect to any financial
information or other matter, such letter may reconfirm as true
and correct at such date as though made at and as of such date,
rather than repeat, statements with respect to such financial
information or other matter made in the letter referred to in
Section 6(d) hereof which was last furnished to such Agent;
(k) That upon each Settlement Date or Time of
Delivery, the Company shall furnish or cause to be furnished
forthwith to such Agent a certificate, dated the date of such
Settlement Date or Time of Delivery relating to such sale in such
form and executed by such officers of the Company as shall be
satisfactory to such Agent, to the effect that the statements
contained in the certificate referred to in Section 6(g) hereof
which was last furnished to such Agent are true and correct at
such date as though made at and as of such date (except that such
statements shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such
date) or, in lieu of such certificate, certificates of the same
tenor as the certificates referred to in said Section 6(g) but
modified to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date; and
(l) To offer to any person who has agreed to
purchase Notes as the result of an offer to purchase solicited by
such Agent the right to refuse to purchase and pay for such Notes
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<PAGE>
if, on the related settlement date fixed pursuant to the
Administrative Procedure, any condition set forth in Section
6(a), 6(e), 6(f), 6(h) or 6(i) hereof shall not have been
satisfied (it being understood that the judgment of such person
with respect to the impracticability or inadvisability of such
purchase of Notes shall be substituted, for purposes of this
Section 4(l), for the respective judgments of an Agent with
respect to certain matters referred to in such Sections 6(a),
6(e), 6(f), 6(h) and 6(i) on behalf of any such person).
5. The Company covenants and agrees with each Agent
that the Company will pay or cause to be paid, whether or not any
sale of Notes is consummated, the following: (i) the fees and
expenses of the Company's counsel and accountants in connection
with the registration of the Notes under the Act and all other
expenses in connection with the preparation, printing and filing
of the Registration Statement, any Preliminary Prospectus, the
Prospectus and any Pricing Supplements and all other amendments
and supplements thereto and the mailing and delivering of copies
thereof to such Agent; (ii) the fees and expenses of counsel for
the Agents in connection with the establishment of the program
contemplated hereby, any opinions to be rendered by such counsel
hereunder and the transactions contemplated hereunder; (iii) the
cost of printing, preparing by word processor or reproducing this
Agreement, any Terms Agreement, the Indenture, the Mortgage, any
Blue Sky and Legal Investment Memoranda and any other documents
in connection with the offering, purchase, sale and delivery of
the Notes or pledge of the Bonds; (iv) all expenses in connection
with the qualification of the Notes for offering and sale under
state securities laws as provided in Section 4(b) hereof,
including fees and disbursements of counsel for the Agents in
connection with such qualification and in connection with the
Blue Sky and legal investment surveys; (v) any fees charged by
securities rating services for rating the Notes; (vi) any filing
fees incident to any required review by the National Association
of Securities Dealers, Inc. of the terms of the sale of the
Notes; (vii) the cost of preparing the Notes and the Bonds;
(viii) the fees and expenses of the Note Trustee and any agent of
the Note Trustee and any transfer or paying agent of the Company
and the fees and disbursements of counsel for the Note Trustee or
such agent in connection with the Indenture and the Notes; (ix)
the fees and expenses of the Bond Trustee and any agent of the
Bond Trustee and any transfer or paying agent of the Company and
the fees and disbursements of counsel for the Bond Trustee or any
agent in connection with the Mortgage and the Bonds; (x) any
advertising expenses connected with the solicitation of offers to
purchase and the sale of Notes so long as such advertising
expenses have been approved by the Company; and (xi) all other
costs and expenses incident to the performance by the Company of
its obligations hereunder which are not otherwise specifically
provided for in this Section. Except as provided in Sections 7
and 8 hereof, each Agent shall pay all other expenses it incurs.
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<PAGE>
6. The obligation of any Agent, as agent of the
Company, at any time ("Solicitation Time") to solicit offers to
purchase the Notes, and the obligation of any Agent to purchase
Notes as principal, pursuant to any Terms Agreement or otherwise,
shall in each case be subject, in such Agent's discretion, to the
condition that all representations and warranties of the Company
herein (and, in the case of an obligation of an Agent under a
Terms Agreement, in or incorporated in such Terms Agreement by
reference) are true and correct in all material respects at and
as of the Commencement Date, the Solicitation Time, the
Settlement Date or Time of Delivery (except that such statements
shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date), and at and
as of such Settlement Date or Time of Delivery, the condition
that prior to such Settlement Date or Time of Delivery, the
Company shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional
conditions:
(a) (i) With respect to any Notes sold, at or
prior to such Settlement Date or Time of Delivery, as the case
may be, the Prospectus as amended or supplemented (including the
Pricing Supplement) with respect to such Notes shall have been
filed with the Commission pursuant to Rule 424(b) under the Act
within the applicable time period prescribed for such filing by
the rules and regulations under the Act and in accordance with
Section 4(a) hereof; (ii) no stop order suspending the
effectiveness of the Registration Statement shall have been
issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and (iii) all requests
for additional information on the part of the Commission shall
have been complied with to the reasonable satisfaction of such
Agent;
(b) Counsel to the Agents shall have furnished to
such Agent (i) such opinion or opinions, dated the Commencement
Date, with respect to the validity of the Notes, the Registration
Statement, the Prospectus as amended or supplemented and other
related matters as such Agent may reasonably request, and (ii) if
and to the extent requested by such Agent, an opinion or
opinions, dated as of the Settlement Date or Time of Delivery, as
the case may be, to the effect that such Agent may rely on the
opinion or opinions which were last furnished to such Agent
pursuant to this Section 6(b) to the same extent as though it or
they were dated the date of such letter authorizing reliance
(except that the statements in such last opinion or opinions
shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date) or, in any
case, in lieu of such an opinion or opinions, an opinion or
opinions of the same tenor as the opinion or opinions referred to
in clause (i) but modified to relate to the Registration
Statement and the Prospectus as amended and supplemented to such
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<PAGE>
date; and in each case such counsel shall have received such
papers and information as they may reasonably request to enable
them to pass upon such matters;
(c) Counsel for the Company satisfactory to such
Agent shall have furnished to such Agent their written opinion,
dated the Commencement Date and each Settlement Date or Time of
Delivery referred to in Section 4(i) hereof, as the case may be,
in form and substance satisfactory to such Agent, to the effect
that:
(i) The Company is a corporation duly
incorporated, validly existing and in good standing under the
laws of the jurisdiction of its incorporation and has all
requisite corporate power and authority to own and operate its
properties and conduct its business as then being conducted and
as then proposed to be conducted, to enter into this Agreement
and any applicable Terms Agreement, the Mortgage and the
Indenture, to issue and pledge the Bonds, to issue and sell the
Notes, and to carry out the terms of this Agreement, any
applicable Terms Agreement, the Mortgage, the Indenture, the
Bonds and the Notes;
(ii) Each of the Company's Utility Subsidiaries
is a corporation duly incorporated, validly existing and in good
standing under the laws of the jurisdiction of its incorporation
and has all requisite corporate power and authority to own and
operate its properties and conduct its business as then being
conducted and as then proposed to be conducted;
(iii) The Company and each Utility Subsidiary are
duly qualified as foreign corporations to do business and in good
standing in every jurisdiction in which the nature of the
business conducted or property owned by them makes such
qualification necessary and in which the failure to so qualify
would have a materially adverse effect on the Company;
(iv) FROM IN-HOUSE COUNSEL -- To the best of such
counsel's knowledge and other than as set forth or contemplated
in the Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a
party or to which any property of the Company or any of its
subsidiaries is subject, which may individually or in the
aggregate have a material adverse effect on the consolidated
financial position, stockholders' equity or results of operations
of the Company and its subsidiaries, taken as a whole; and to the
best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others;
(v) The execution, delivery and performance by
the Company of this Agreement and any applicable Terms Agreement,
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<PAGE>
the Indenture, the Mortgage, the Notes and the Bonds will not
result in any violation of or be in conflict with or constitute a
default under any term of the Company's Articles of Incorporation
or Bylaws, or, to the best of such counsel's knowledge after due
inquiry of officials of the Company, of any term of any mortgage,
loan agreement or indenture to which it is a party or by which it
is bound or result in the creation of (or impose any obligation
on the Company or any Utility Subsidiary to create) any mortgage,
pledge, lien, security interest, charge or encumbrance (other
than the liens of the Mortgage and the Indenture) upon any of the
properties or assets of the Company or any Utility Subsidiary
pursuant to any such term;
(vi) The Pennsylvania Public Utility Commission
has entered an appropriate order authorizing the Company to issue
and pledge the Bonds as contemplated by the Mortgage and
Indenture, such order is in full force and effect and, to the
best of their knowledge after due inquiry, no proceeding has been
initiated upon appeal from or to review the effectiveness of such
order; the Pennsylvania Public Utility Commission has entered an
appropriate order authorizing the Company to issue and sell the
Notes as contemplated by this Agreement and any applicable Terms
Agreement, such order is in full force and effect and, to the
best of their knowledge after due inquiry, no proceeding has been
initiated upon appeal from or to review the effectiveness of such
order; no other approval, authorization, order or consent of or
declaration, registration or filing with any governmental agency
is required for the valid execution and delivery of this
Agreement, any applicable Terms Agreement, the Indenture and the
Mortgage, the issue and sale of the Notes, the issue and pledge
of the Bonds or the consummation by the Company of the other
transactions contemplated by this Agreement, any applicable Terms
Agreement, the Indenture, or the Mortgage except such as have
been obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue
Sky laws;
(vii) The Indenture has been duly authorized by
all necessary corporate action on the part of the Company and has
been duly executed and delivered by duly authorized officers of
the Company. The Indenture constitutes a legal, valid and
binding instrument, enforceable in accordance with its terms,
except, as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium and other laws
or affecting creditors' rights generally, and to general equity
principles; the Indenture has been qualified under the Trust
Indenture Act; and the Indenture conforms to the description
thereof in the Prospectus as amended or supplemented;
(viii) The Mortgage has been duly authorized by
all necessary corporate action on the part of the Company and has
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<PAGE>
been duly executed and delivered by duly authorized officers of
the Company. The Mortgage constitutes a legal, valid and binding
instrument, enforceable in accordance with its terms, except, as
the enforceability thereof may be limited by (a) bankruptcy,
insolvency, reorganization, moratorium and other laws affecting
creditors' rights generally, (b) applicable state laws which may
affect the remedies provided for in the Mortgage without,
however, rendering inadequate, in such counsel's opinion, the
remedies available to the Bond Trustee for the practical
realization of the benefit of the security intended to be
afforded thereby, (c) the Atomic Energy Act of 1954, 42 U.S.C.
section 2011, et seq, and the rules and regulations thereunder, and (d)
general equity principles; and the Mortgage conforms to the
description thereof in the prospectus as amended or supplemented;
(ix) This Agreement and any applicable Terms
Agreement have been duly authorized, executed and delivered by
the Company;
(x) The Notes have been duly authorized by all
necessary corporate action on the part of the Company, and when
duly executed, issued and delivered by duly authorized officers
of the Company and authenticated by the Note Trustee, will
constitute legal, valid and binding obligations of the Company;
(xi) The Notes when issued and authenticated in
compliance with the Indenture will be entitled to the benefit of
the security afforded by the Indenture and will be secured
equally and ratably with all other notes outstanding under the
Indenture, if any;
(xii) The Bonds have been duly authorized by all
necessary corporate action on the part of the Company, and when
duly executed, issued and delivered by duly authorized officers
of the Company and authenticated by the Bond Trustee, will
constitute legal, valid and binding obligations of the Company;
(xiii) The Bonds when issued and authenticated in
compliance with the Mortgage will be entitled to the benefit of
the security afforded by the Mortgage and will be secured equally
and ratably with all other bonds outstanding under the Mortgage
except insofar as the benefit of any sinking or other fund
provided for in the Mortgage may be limited to the bonds of a
particular series;
(xiv) Upon delivery of the Bonds to the Note
Trustee in accordance with the Indenture, the pledge of the Bonds
pursuant to the Indenture will create in favor of the holders of
the Notes a valid and perfected first priority security interest
in the Bonds;
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<PAGE>
(xv) The Registration Statement has become
effective under the Act and, to the best of such counsel's
knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or are pending or contemplated;
(xvi) The descriptions in the Registration
Statement and Prospectus as amended or supplemented of the Notes
and the Bonds and of statutes, legal and governmental proceedings
and contracts and other documents are accurate and fairly present
the information required to be shown and they do not know of any
legal or governmental proceedings required to be described in the
Prospectus as amended or supplemented which are not described as
required, nor of any contracts or documents of a character
required to be described in the Registration Statement or
prospectus as amended or supplemented or to be filed as exhibits
to the Registration Statement which are not described and filed
as required; and
(xvii) The Registration Statement and the
Prospectus as amended and supplemented comply as to form in all
material respects with the Act and the Trust Indenture Act, and
the documents incorporated therein by reference in the Prospectus
as amended and supplemented complied, when filed, in all material
respects with the Exchange Act (provided that such counsel need
not express any opinion as to financial statements, schedules or
other financial data included in the Registration Statement or
the prospectus as amended and supplemented);
Such counsel shall also state that they have acted as
special counsel to the Company in connection with the issuance
and sale of the Notes and in connection therewith have
participated in the preparation of the Registration Statement and
in the review of all the documents incorporated therein by
reference, and that based upon such participation and review,
such counsel do not believe that either the Registration
Statement or the Prospectus as amended and supplemented,
including the documents incorporated therein by reference (except
for financial statements, schedules and other financial data
included therein or incorporated therein by reference, as to
which counsel need express no opinion or belief) at the time the
Registration Statement became effective contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus as amended or
supplemented, including the documents incorporated therein by
reference (except for financial statements, schedules and other
financial data included therein or incorporated by reference as
to which counsel need express no opinion or belief) contains any
untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements therein, in the
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<PAGE>
light of the circumstances under which they were made, not
misleading.
Such opinion shall also cover the title to the
Company's properties, the lien of the Mortgage on present and
after-acquired real property of the Company and perfection of
security interests in the Company's present and after acquired
personal property and in all of the capital stock of PECO Energy
Company, all in the form and scope to which you have heretofore
given your approval;
(d) Not later than 10:00 A.M., Philadelphia time,
on the Commencement Date and on each Settlement Date or Time of
Delivery referred to in Section 4(j) hereof, the independent
certified public accountants who have certified the financial
statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement shall
have furnished to such Agent a letter, dated the Commencement
Date or such Settlement Date or Time of Delivery, as the case may
be, in form and substance satisfactory to such Agent,
substantially in the form heretofore approved by you;
(e) Since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus as amended or supplemented there shall not have been
any change, or any development which the Agent reasonably
believes will result in a material adverse change, in the
financial condition, business or results of operations of the
Company and its subsidiaries, considered as a whole, otherwise
than as set forth or contemplated in the Prospectus as amended or
supplemented, the effect of which, in any such case is in the
judgment of such Agent so material and adverse as to make it
impracticable or inadvisable to proceed with the solicitation by
such Agent of offers to purchase Notes from the Company or the
purchase by such Agent of Notes from the Company as principal, as
the case may be, on the terms and in the manner contemplated in
the Prospectus as amended or supplemented;
(f) There shall not have occurred any of the
following: (i) trading in securities on the New York Stock
Exchange shall have been suspended or materially limited, or
minimum prices have been established on such Exchange, or any new
restrictions on transactions in securities materially affecting
the free market shall have been established by such Exchange, by
the Commission, by any other federal or state agency, by action
of the Congress or by Executive Order; (ii) a general moratorium
on commercial banking activities in New York shall have been
declared by either federal or New York State authorities; or
(iii) there shall have occurred any outbreak or escalation of
hostilities or any calamity or crisis of comparable magnitude
that, in the judgment of any Agent, is material and adverse and,
in the case of any of the events specified in clauses (i) through
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<PAGE>
(iii), such event singly or together with any other event, makes
it, in the reasonable judgment of any Agent, impracticable or
inadvisable to proceed with the solicitation of offers to
purchase Notes or the purchase of Notes from the Company as
principal, pursuant to the applicable Terms Agreement or
otherwise, as the case may be, on the terms and in the manner
contemplated in the Prospectus as amended or supplemented; or
(iv) any downgrading in the rating accorded the Company's first
and refunding mortgage bonds by Moody's Investors Service, Inc.
or Standard & Poor's Corporation;
(g) The Company shall have furnished or caused to
be furnished to such Agent certificates of officers of the
Company dated the Commencement Date and each Settlement Date or
Time of Delivery referred to in Section 4(k) hereof, as the case
may be, in such form and executed by such officers of the Company
as shall be satisfactory to such Agent, as to the accuracy of the
representations and warranties of the Company herein at and as of
the Commencement Date or such Settlement Date or Time of
Delivery, as the case may be, as to the performance by the
Company of all of its obligations hereunder to be performed at or
prior to the Commencement Date or such Settlement Date or Time of
Delivery, as the case may be, as to the matters set forth in
subsections (a), (e), (h) and (i) of this Section 6, and as to
such other matters as such Agent may reasonably request;
(h) At the Settlement Date or Time of Delivery,
as the case may be, there shall be in full force and effect a
Notice of Registration of a Securities Certificate under the
Pennsylvania Public Utility Law permitting the issuance and
pledge of the Bonds and the transactions relating thereto
substantially in accordance with the terms and conditions herein
set forth and containing no provision unacceptable to the Agents,
it being understood that the Notice in effect as of the date of
this Agreement (of which a copy is available at the office of the
Company for examination by the Agents) does not contain any such
unacceptable provision, and that no subsequent Notice shall be
deemed to contain any such unacceptable provision, unless the
Agents, within 24 hours after receiving a copy thereof from the
Company, shall give notice to the Company to the effect that such
Notice contains an unacceptable provision; and
(i) At the Settlement Date or Time of Delivery,
as the case may be, there shall be in full force and effect a
Notice of Registration of a Securities Certificate under the
Pennsylvania Public Utility Law permitting the issuance and sale
of the Notes and the transactions relating thereto substantially
in accordance with the terms and conditions herein set forth and
containing no provision unacceptable to the Agents, it being
understood that the Notice in effect as of the date of this
Agreement (of which a copy is available at the office of the
Company for examination by the Agents) does not contain any such
- 21 -
<PAGE>
unacceptable provision, and that no subsequent Notice shall be
deemed to contain any such unacceptable provision, unless the
Agents, within 24 hours after receiving a copy thereof from the
Company, shall give notice to the Company to the effect that such
Notice contains an unacceptable provision.
7. (a) The Company will indemnify and hold harmless
each Agent against any losses, claims, damages or liabilities,
joint or several, to which such Agent may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the
Registration Statement, the Prospectus or the Prospectus as
amended or supplemented, or arise out of or are based upon the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse such Agent for any
legal or other expenses reasonably incurred in connection with
investigating or defending any such action or claim; provided,
however, that the Company shall not be liable in any such case to
the extent that any such loss, claim, damage or liability arises
out of or is based upon (i) an untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement, the Prospectus or the
Prospectus as amended or supplemented, in reliance upon and in
conformity with written information furnished to the Company by
such Agent expressly for use therein; or (ii) any statements or
alleged statements in or omissions or alleged omissions from the
Statement of Eligibility and Qualification of the Note Trustee
under the Indenture; and further provided that the foregoing
indemnification with respect to the Preliminary Prospectus or
Prospectus shall not inure to the benefit of any Agent from whom
or through whom the person asserting any such losses, claims,
damages or liabilities purchased Notes if the Company shall
sustain the burden of proving that a copy of the Preliminary
Prospectus or Prospectus as amended or supplemented (if the
Company shall have furnished any amendments or supplements
thereto) was provided to such Agent in a timely fashion and not
sent or given by or on behalf of such Agent to such person at or
prior to written confirmation of the sale of such Notes to such
person and if the Prospectus as so amended or supplemented would
have cured all defects giving rise to such losses, claims,
damages or liabilities.
(b) Each Agent will indemnify and hold harmless
the Company against any losses, claims, damages or liabilities to
which the Company may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration
- 22 -
<PAGE>
Statement, the Prospectus or the Prospectus as amended or
supplemented, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent
that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement, the Prospectus or the
Prospectus as amended or supplemented, in reliance upon and in
conformity with written information furnished to the Company by
such Agent expressly for use therein; and will reimburse the
Company for any legal or other expenses reasonably incurred by
the Company in connection with investigating or defending any
such action or claim.
(c) Promptly after receipt by an indemnified
party under subsection (a) or (b) above of notice of the
commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to
notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party pursuant to
the second sentence of subsection (d) below and otherwise than
under this Agreement. In case any such action shall be brought
against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent
that it shall wish to assume the defense thereof, with counsel
selected by the indemnifying party and reasonably satisfactory to
such indemnified party (who shall not, except with the consent of
the indemnified party, be counsel to the indemnifying party),
and, after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party
under such subsection for any legal expenses of other counsel or
any other expenses in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. The indemnifying party
shall not be liable for any settlement of any proceeding effected
without its written consent but if settled with such consent or
if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this
Section 7 is unavailable to (other than by reason of failure to
give notice pursuant to subsection (c) above) or insufficient to
hold harmless an indemnified party under subsection (a) or (b)
above in respect of any losses, claims, damages or liabilities
(or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable
- 23 -
<PAGE>
by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and each Agent on the
other from the offering of the Notes to which such loss, claim,
damage or liability (or action in respect thereof) relates. If,
however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c)
above and such failure did not prejudice the indemnifying party,
then each indemnifying party shall contribute to such amount paid
or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also
the relative fault of the Company on the one hand and each Agent
on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the
Company on the one hand and each Agent on the other shall be
deemed to be in the same proportion as the total net proceeds
from the sale of Notes (before deducting expenses) received by
the Company bear to the total commissions or discounts received
by such Agent in respect thereof. The relative fault shall be
determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact required to
be stated therein or necessary in order to make the statements
therein not misleading relates to information supplied by the
Company on the one hand or by any Agent on the other and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and each Agent agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if all Agents were
treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed
to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the
provisions of this subsection (d), an Agent shall not be required
to contribute any amount in excess of the amount by which the
total public offering price at which the Notes purchased by or
through it were sold exceeds the amount of any damages which such
Agent has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
- 24 -
<PAGE>
misrepresentation. The obligations of each of the Agents under
this subsection (d) to contribute are several in proportion to
the respective purchases made by or through it to which such
loss, claim, damage or liability (or action in respect thereof)
relates and are not joint.
(e) The obligations of the Company under this
Section 7 shall be in addition to any liability which the Company
may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Agent within
the meaning of the Act; and the obligations of each Agent under
this Section 7 shall be in addition to any liability which such
Agent may otherwise have and shall extend, upon the same terms
and conditions, to each officer and director of the Company and
to each person, if any, who controls the Company within the
meaning of the Act.
8. Each Agent, in soliciting offers to purchase Notes
from the Company and in performing the other obligations of such
Agent hereunder (other than in respect of any purchase by an
Agent as principal, pursuant to a Terms Agreement or otherwise),
is acting solely as agent for the Company and not as principal.
Each Agent will make reasonable efforts to assist the Company in
obtaining performance by each purchaser whose offer to purchase
Notes from the Company was solicited by such Agent and has been
accepted by the Company, but such Agent shall not have any
liability to the Company in the event such purchase is not
consummated for any reason. If the Company shall default on its
obligation to deliver Notes to a purchaser whose offer it has
accepted, the Company shall (i) hold each Agent harmless against
any loss, claim or damage arising from or as a result of such
default by the Company and (ii) notwithstanding such default, pay
to the Agent that solicited such offer any commission to which it
would be entitled in connection with such sale; provided however
that in the event of a purchaser's refusal to purchase pursuant
to Section 4(l) hereof such Agent shall not be entitled to any
commission.
9. The respective indemnities, agreements,
representations, warranties and other statements by any Agent and
the Company set forth in or made pursuant to this Agreement shall
remain in full force and effect regardless of any investigation
(or any statement as to the results thereof) made by or on behalf
of any Agent or any controlling person of any Agent, or the
Company, or any officer or director or any controlling person of
the Company, and shall survive each delivery of and payment for
any of the Notes.
10. The provisions of this Agreement relating to the
solicitation of offers to purchase Notes from the Company may be
suspended or terminated at any time by the Company as to any
Agent; terminated at any time by any Agent as to such Agent and,
- 25 -
<PAGE>
if in the judgment of any Agent the conditions to the obligations
of any purchaser to purchase securities might not be met on any
prospective Settlement Date, suspended at any time by any Agent
as to such Agent upon the giving of written notice of such
suspension or termination to such Agent or the Company, as the
case may be. In the event of such suspension or termination with
respect to any Agent, (x) this Agreement shall remain in full
force and effect with respect to any Agent as to which such
suspension or termination has not occurred, (y) this Agreement
shall remain in full force and effect with respect to the rights
and obligations of any party which have previously accrued or
which relate to Notes which are already issued, agreed to be
issued or the subject of a pending offer at the time of such
suspension or termination and (z) in any event, this Agreement
shall remain in full force and effect insofar as the fourth
paragraph of Section 2(a), Section 4(d), Section 4(e), Section 5,
Section 7, Section 8 and Section 9 hereof are concerned.
11. Except as otherwise specifically provided herein
or in the Administrative Procedure, all statements, requests,
notices and advices hereunder shall be in writing, or by
telephone if promptly confirmed in writing, and if to [insert
names, delivery addresses and fax #'s of agents] and if to the
Company shall be sufficient in all respects when delivered or
sent by facsimile transmission or registered mail to 2301 Market
Street, Philadelphia, Pennsylvania 19101, Facsimile Transmission
No. 215-________, Attention: Treasurer.
12. This Agreement and any Terms Agreement shall be
binding upon, and inure solely to the benefit of, each Agent and
the Company, and to the extent provided in Section 7, Section 8
and Section 9 hereof, the officers and directors of the Company
and any person who controls any Agent or the Company, and their
respective personal representatives, successors and assigns, and
no other person shall acquire or have any right under or by
virtue of this Agreement or any Terms Agreement. No purchaser of
any of the Notes through or from any Agent hereunder shall be
deemed a successor or assign by reason of such purchase or to be
entitled to the benefits of this Agreement by reason of such
purchase.
13. Time shall be of the essence in this Agreement and
any Terms Agreement. As used herein, the term "business day"
shall mean any day when the office of the Commission in
Washington, D.C. is normally open for business.
14. This Agreement and any Terms Agreement shall be
governed by, and construed in accordance with, the laws of the
State of New York.
- 26 -
<PAGE>
15. This Agreement and any Terms Agreement may be
executed by any one or more of the parties hereto and thereto in
any number of counterparts.
If the foregoing is in accordance with your
understanding, please sign and return to us four counterparts
hereof, whereupon this letter and the acceptance by each of you
thereof shall constitute a binding agreement between the Company
and each of you in accordance with its terms.
Very truly yours,
PECO ENERGY COMPANY
By:/s/ M. W. Rimerman
_______________________________
M. W. Rimerman
Vice President
Accepted in New York, New York,
as of the date hereof:
[________________________________]
By:_______________________________
By:_______________________________
Vice President
- 27 -
<PAGE>
ANNEX I
PECO ENERGY COMPANY
[$____________] [COLLATERALIZED MEDIUM-TERM NOTES, SERIES B]
TERMS AGREEMENT
---------------
, 19
[Insert names and addresses of underwriters]
Dear Sirs:
PECO Energy Company (the "Company") proposes, subject
to the terms and conditions stated herein and in the Distribution
Agreement, dated ____________, 1994 (the "Distribution
Agreement"), between the Company on the one hand and
[ ], [ ]
[ ] (the "Agents") on the other, to issue
and sell to [ ],
[ ] [ ] the
securities specified in the Schedule hereto (the "Purchased
Notes"). Each of the provisions of the Distribution Agreement
not specifically related to the solicitation by the Agents, as
agents of the Company, of offers to purchase Notes is
incorporated herein by reference in its entirety, and shall be
deemed to be part of this Terms Agreement to the same extent as
if such provisions had been set forth in full herein. Nothing
contained herein or in the Distribution Agreement shall make any
party hereto an agent of the Company or make such party subject
to the provisions therein relating to the solicitation of offers
to purchase Notes from the Company, solely by virtue of its
execution of this Terms Agreement. Each of the representations
and warranties set forth therein shall be deemed to have been
made at and as of the date of this Terms Agreement, except that
each representation and warranty in Section 1 of the Distribution
Agreement which makes reference to the Prospectus shall be deemed
to be a representation and warranty as of the date of the
Distribution Agreement in relation to the Prospectus (as therein
defined), and also a representation and warranty as of the date
of this Terms Agreement in relation to the Prospectus as amended
and supplemented to relate to the Purchased Notes.
An amendment to the Registration Statement, or a
supplement to the Prospectus, as the case may be, relating to the
Purchased Notes, in the form heretofore delivered to you is now
proposed to be filed with, or in the case of a supplement, mailed
for filing to, the Commission.
<PAGE>
Subject to the terms and conditions set forth herein
and in the Distribution Agreement incorporated herein by
reference, the Company agrees to issue and sell to you and you
agree to purchase from the Company the Purchased Notes, at the
time and place, in the principal amount and at the purchase price
set forth in the Schedule hereto.
If the foregoing is in accordance with your
understanding, please sign and return to us _____ counterparts
hereof, and upon acceptance hereof by you this letter and such
acceptance hereof, including those provisions of the Distribution
Agreement incorporated herein by reference, shall constitute a
binding agreement between you and the Company.
PECO ENERGY COMPANY
By:__________________________
Accepted:
[___________________________________]
By:_________________________________]
(Title)
By:________________________________]
(Title)
I-2
<PAGE>
Schedule to Annex I
Title of purchased Notes:
[____% Notes due _____] [Collateralized Medium-Term Notes,
Series B]
Aggregate Principal Amount:
[$_____________]
[Price to Public:]
Purchase Price by [___________________________________]:
_____% of the principal amount of the purchased Notes
[, plus accrued interest from to ] [and
accrued amortization, if any, from to ]
Method of and specified Funds for Payment of Purchase Price:
[By certified or official bank check or checks, payable to
the order of the Company, in [[New York] Clearing House]
[immediately available] funds]
[By wire transfer to a bank account specified by the Company
in [next day] [immediately available] funds]
Indenture:
Indenture, dated as of October 1, 1989, as previously
amended and as further supplemented by a Second Supplemental
Indenture dated as of July 1, 1994 between the Company and
Fidelity Bank, National Association (to which First Fidelity
Bank, National Association is successor), as Note Trustee
Time of Delivery:
Closing Location:
Maturity:
Redemption Provisions:
Initial Redemption Date:
Initial Redemption Price:
Annual Redemption Reduction: ____% per annum
Limitation Date:
I-3
<PAGE>
Interest Rate:
[ %]
Interest Payment Dates:
[months and dates]
[Collateral: $__________ First and Refunding Mortgage Bonds,
Medium-Term Note Series B]
Documents to be Delivered:
The following documents referred to in the Distribution
Agreement shall be delivered as a condition to the Closing:
[(1) The opinion or opinions of counsel to the Agents
referred to in Section 4(h).]
[(2) The opinion of counsel to the Company referred to
in Section 4(i).]
[(3) The accountants' letter referred to in Section
4(j).]
[(4) The officers' certificate referred to in Section
4(k).]
Other Provisions (including Syndicate Provisions, if applicable):
I-4
<PAGE>
ANNEX II
PECO ENERGY COMPANY
ADMINISTRATIVE PROCEDURE
------------------------
This Administrative Procedure relates to the Notes
defined in the Distribution Agreement, dated July __, 1994 (the
"Distribution Agreement"), between PECO Energy Company (the
"Company") and [ ] (together, the
"Agents"), to which this Administrative Procedure is attached as
Annex II. Defined terms used herein and not defined herein shall
have the meanings given such terms in the Distribution Agreement,
the Prospectus as amended or supplemented or the Indenture as
amended or supplemented. To the extent any procedure set forth
below conflicts with the provisions of the Notes, the Indenture
or the Distribution Agreement, the relevant provisions of the
Notes, the Indenture and the Distribution Agreement shall
control.
The procedures to be followed with respect to the
settlement of sales of Notes directly by the Company to
purchasers solicited by an Agent, as agent, are set forth below.
Part I below describes procedures of general applicability with
respect to such Notes. Part II below describes procedures
specifically and exclusively applicable (any procedure in Part I
below to the contrary notwithstanding) to such Notes which are
either Global Notes or Book-Entry Notes (each as defined below).
The terms and settlement details related to a purchase of Notes
by an Agent, as principal, from the Company will be set forth in
a Terms Agreement pursuant to the Distribution Agreement, unless
the Company and such Agent otherwise agree as provided in Section
2(b) of the Distribution Agreement, in which case the procedures
to be followed in respect of the settlement of such sale will be
as set forth below. An Agent, in relation to a purchase of a
Note by a purchaser solicited by such Agent, is referred to
herein as the "Selling Agent" and, in relation to a purchase of a
Note by such Agent as principal other than pursuant to a Terms
Agreement, as the "Purchasing Agent."
The Company will advise each Agent in writing of those
persons with whom such Agent is to communicate regarding offers
to purchase Notes and the related settlement details.
Each Note will be issued only in fully registered form
and will be represented by either a global certificate (a "Global
Certificate") delivered to the Trustee, as agent for The
Depository Trust Company (the "Depositary") and recorded in the
book-entry system maintained by the Depositary (a "Book-Entry
Note") or a certificate (a "Definitive Certificate") delivered to
a person designated by an Agent.
<PAGE>
PART I: PROCEDURES OF GENERAL APPLICABILITY
POSTING RATES BY COMPANY:
- -------------------------
The Company and the Agents will discuss from time to
time the rates of interest per annum to be borne by and the
maturities of Notes that may be sold as a result of the
solicitation of offers by an Agent. The Company may establish a
fixed set of interest rates and maturities for an offering
period. If the Company decides to change already posted rates,
it will promptly advise the Agents to suspend solicitation of
offers until the new posted rates have been established with the
Agents.
ACCEPTANCE OF OFFERS BY COMPANY:
- --------------------------------
Each Agent will promptly advise the Company by
telephone or other appropriate means of all reasonable offers to
purchase Notes, other than those rejected by such Agent. Each
Agent may, in its discretion reasonably exercised, reject any
offer received by it in whole or in part. Each Agent also may
make offers to the Company to purchase Notes as a Purchasing
Agent. The Company will have the sole right in its absolute
discretion to accept offers to purchase Notes and may reject any
such offer in whole or in part.
The Company will promptly notify the Selling Agent or
Purchasing Agent, as the case may be, of its acceptance or
rejection of an offer to purchase Notes. If the Company accepts
an offer to purchase Notes, it will confirm such acceptance in
writing to the Selling Agent or Purchasing Agent, as the case may
be, and the Trustee.
COMMUNICATION OF SALE INFORMATION TO COMPANY BY SELLING AGENT:
- --------------------------------------------------------------
After the acceptance of an offer by the Company, the
Selling Agent or Purchasing Agent, as the case may be, will
communicate the following details of the terms of such offer (the
"Sale Information") to the Company by telephone (confirmed in
writing) or by facsimile transmission or other acceptable written
means:
(1) Principal amount of Notes to be purchased;
(2) Interest Rate;
(3) Maturity Date;
(4) Issue Date;
II-2
<PAGE>
(5) Issue Price;
(6) Selling Agent's commission or Purchasing Agent's
discount, as the case may be;
(7) Net proceeds to the Company;
(8) Settlement Date;
(9) If a redeemable Note, such of the following as are
applicable:
(i) Initial Redemption Date,
(ii) Initial Redemption Price (% of par),
(iii) Annual Redemption Reduction (% per annum),
and
(iv) Limitation Date;
(10) Name, address and taxpayer identification number
of the registered owner; and
(11) Denomination of certificates to be delivered at
settlement.
PREPARATION OF PRICING SUPPLEMENT BY COMPANY:
- ---------------------------------------------
If the Company accepts an offer to purchase a Note, it
will prepare a Pricing Supplement. The Company will supply at
least ten copies of such Pricing Supplement to the Selling Agent
or Purchasing Agent, as the case may be, not later than 5:00
P.M., New York City time, on the Business Day following the date
of acceptance of such offer, or if the Company and the purchaser
agree to settlement on the date of such acceptance, not later
than noon, New York City time, on such date. The Company will
arrange to have the Pricing Supplement filed with the Commission
pursuant to Rule 424(b) under the Act within the applicable time
period for such filing by the rules and regulations under the
Act.
DELIVERY OF CONFIRMATION AND PROSPECTUS TO PURCHASER BY SELLING AGENT:
- ----------------------------------------------------------------------
The Selling Agent will deliver to the purchaser of a
Note a written confirmation of the sale and delivery and payment
instructions. In addition, the Selling Agent will deliver to
such purchaser or its agent the Prospectus as amended or
supplemented (including the Pricing Supplement) in relation to
such Note prior to or together with the earlier of the delivery
to such purchaser or its agent of (a) the confirmation of sale
(including, in the case of a Book-Entry Note, the confirmation
through the Depositary's Institutional Delivery System) or (b)
the Note.
II-3
<PAGE>
DATE OF SETTLEMENT:
- -------------------
All offers solicited by a Selling Agent or made by a
Purchasing Agent and accepted by the Company will be settled on a
date (the "Settlement Date") which is the fifth Business Day
after the date of acceptance of such offer, unless the Company
and the purchaser agree to settlement (a) on any other Business
Day after the acceptance of such offer or (b) with respect to an
offer accepted by the Company prior to 10:00 A.M., New York City
time, on the date of such acceptance.
INSTRUCTION FROM COMPANY TO TRUSTEE FOR PREPARATION OF NOTES:
- -------------------------------------------------------------
After receiving the Sale Information from the Selling
Agent or Purchasing Agent, as the case may be, the Company will
communicate such Sale Information to the Trustee by telephone
(confirmed in writing) or by facsimile transmission or other
acceptable written means.
The Company will instruct the Trustee by facsimile
transmission or other acceptable written means to authenticate
and deliver the Notes no later than 2:15 P.M., New York City
time, on the Settlement Date. Such instruction will be given by
the Company prior to 3:00 P.M., New York City time, on the
Business Day prior to the Settlement Date unless the Settlement
Date is the date of acceptance by the Company of the offer to
purchase Notes in which case such instruction will be given by
the Company by 11:00 A.M., New York City time.
PREPARATION AND DELIVERY OF NOTES BY TRUSTEE AND RECEIPT OF PAYMENT THEREFOR:
- -----------------------------------------------------------------------------
The Trustee will prepare each Note and appropriate
receipts that will serve as the documentary control of the
transaction.
In the case of a sale of Notes to a purchaser solicited
by an Agent, the Trustee will, by 2:15 P.M., New York City time,
on the Settlement Date, deliver the Notes to the Selling Agent
for the benefit of the purchaser of such Notes against delivery
by the Selling Agent of a receipt therefor. On the Settlement
Date the Selling Agent will deliver payment for such Notes in
immediately available funds to the Company in an amount equal to
the issue price of the Notes less the Selling Agent's commission;
provided that the Selling Agent reserves the right to withhold
payment for which it has not received funds from the purchaser.
The Company shall not use any proceeds advanced by a Selling
Agent to purchase or carry any margin securities in violation of
Regulations G, T, U or X of the Federal Reserve Board.
In the case of a sale of Notes to a Purchasing Agent,
the Trustee will, by 2:15 P.M., New York City time, on the
II-4
<PAGE>
Settlement Date, deliver the Notes to the Purchasing Agent
against delivery of payment for such Notes in immediately
available funds to the Company in an amount equal to the issue
price of the Notes less the Purchasing Agent's discount.
FAILURE OF PURCHASER TO PAY SELLING AGENT:
- ------------------------------------------
If a purchaser (other than a Purchasing Agent) fails to
make payment to the Selling Agent for a Note, the Selling Agent
will promptly notify the Trustee and the Company thereof by
telephone (confirmed in writing) or by facsimile transmission or
other acceptable written means. The Selling Agent will
immediately return the Note to the Trustee. Immediately upon
receipt of such Note by the Trustee, the Company will return to
the Selling Agent an amount equal to the amount previously paid
to the Company in respect of such Note. The Company will
reimburse the Selling Agent on an equitable basis for its loss of
the use of funds during the period when they were credited to the
account of the Company.
The Trustee will cancel the Note in respect of which
the failure occurred, make appropriate entries in its records
and, unless otherwise instructed by the Company, destroy the
Note.
II-5
<PAGE>
PART II: PROCEDURES APPLICABLE TO BOOK-ENTRY NOTES AND
GLOBAL NOTES
In connection with the qualification of Book-Entry
Notes for eligibility in the book-entry system maintained by the
Depositary, the Trustee will perform the custodial, document
control and administrative functions described below, in
accordance with its respective obligations under a Letter of
Representation from the Company and the Trustee to the
Depositary, dated July ___, 1994, and a Medium-Term Note
Certificate Agreement dated July ___, 1994, between the Trustee
and the Depositary (the "Certificate Agreement"), and the
Trustee's obligations as a participant in the Depositary,
including the Depositary's Same-Day Funds Settlement System
("SDFS"). It is understood that the ownership interests of
purchasers of Book-Entry Notes will be credited to the book-entry
accounts of one or more participants in the Depositary (each a
"Participant") in accordance with the Depositary's customary
practices and reflected in the records of such Participants or
one or more indirect participants in the Depositary designated by
such purchasers in accordance with the arrangements between such
purchasers and such Participants and indirect participants.
Issuance: All Notes which are Book-Entry Notes and have
the same Issue Date, redemption provisions,
repayment provisions, Interest Payment Dates,
interest rate, interest payment periods, and
Stated Maturity (collectively, the "Terms")
will be represented initially by a single
Global Certificate in fully registered form
without coupons.
Identification: The Company has arranged with the CUSIP Service
Bureau of Standard & Poor's Corporation (the
"CUSIP Service Bureau") for the reservation of
approximately [ ] CUSIP numbers which have
been reserved for and relating to Book-Entry
Notes, and the Company has delivered to the
Trustee and the Depositary such list of such
CUSIP numbers. The Company will assign CUSIP
numbers to Book-Entry Notes as described below
under Settlement Procedure B. The Depositary
will notify the CUSIP Service Bureau
periodically of the CUSIP numbers that the
Company has assigned to Book-Entry Notes. The
Trustee will notify the Company at any time
when fewer than 100 of the reserved CUSIP
numbers remain unassigned to Book-Entry Notes,
and, if it deems necessary, the Company will
reserve additional CUSIP numbers for assignment
to Book-Entry Notes. Upon obtaining such
II-6
<PAGE>
additional CUSIP numbers, the Company will
deliver a list of such additional numbers to
the Trustee and the Depositary. Book-Entry
Notes having an aggregate principal amount in
excess of $100,000,000 will be represented by
two or more Global Certificates which shall all
be assigned the same CUSIP number.
Registration: Each Global Certificate will be registered in
the name of Cede & Co., as nominee for the
Depositary, on the register maintained by the
Trustee under the Indenture. On the first
Business Day of each month, the Trustee will
deliver to the Company a written statement
indicating the total principal amount of
Outstanding Book-Entry Notes as of the
immediately preceding Business Day.
Transfers: Transfers of interests in a Book-Entry Note
will be effected in accordance with
arrangements in effect between Participants
(and in certain cases, one or more indirect
participants in the Depositary) and the
beneficial transferors and beneficial
transferees of such Book-Entry Note, and the
interests of participants therein will be
reflected as appropriate by book entries made
by the Depositary.
Exchanges: The Trustee may deliver to the Depositary and
the CUSIP Service Bureau at any time a written
notice specifying (a) the CUSIP numbers of two
or more Global Certificates for outstanding
Book-Entry Notes having the same Terms, (except
that Issue Dates need not be the same), and for
which interest (if any) has been paid to the
same date; (b) a date, occurring at least 30
days after such written notice is delivered and
at least 30 days before the next Interest
Payment Date (if any) for such Book-Entry
Notes, on which such Global Certificates shall
be exchanged for a single replacement Global
Certificate; and (c) a new CUSIP number,
obtained from the Company, to be assigned to
such replacement Global Certificate. Upon
receipt of such a notice, the Depositary will
send to its participants (including the
Trustee) a written reorganization notice to the
effect that such exchange will occur on such
date. Prior to the specified exchange date,
the Trustee will deliver to the CUSIP Service
Bureau written notice setting forth such
II-7
<PAGE>
exchange date and the new CUSIP number and
stating that, as of such exchange date, the
CUSIP numbers of the Global Certificates to be
exchanged will no longer be valid. On the
specified exchange date, the Trustee will
exchange such Global Certificates for a single
Global Certificate bearing the new CUSIP
number, and the CUSIP numbers of the exchanged
Global Certificates will, in accordance with
CUSIP Service Bureau procedures, be cancelled
and not immediately reassigned.
Notwithstanding the foregoing, if the Global
Certificates to be exchanged exceed
$100,000,000 in aggregate principal amount, one
replacement Global Certificate will be
authenticated and issued to represent each
$100,000,000 of principal amount of the
exchanged Global Certificates and an additional
Global Certificate will be authenticated and
issued to represent any remaining principal
amount of such Global Certificates (see
"Denominations" below).
Denominations: All Book-Entry Notes will be denominated in
U.S. dollars. Book-Entry Notes will be issued
in denominations of $1,000 and any integral
multiple thereof. Global Certificates will be
denominated in principal amounts not in excess
of $100,000,000. If one or more Book-Entry
Notes having an aggregate principal amount in
excess of $100,000,000 would, but for the
preceding sentence, be represented by a single
Global Certificate, then one Global Certificate
will be issued to represent each $100,000,000
principal amount of such Book-Entry Note or
Book-Entry Notes and an additional Global
Certificate will be issued to represent any
remaining principal amount of such Book-Entry
Note or Book-Entry Notes. In such a case, each
of the Global Certificates representing such
Book-Entry Note or Notes shall be assigned the
same CUSIP number.
Interest: General. The Depositary will arrange for each
pending deposit message described under
Settlement Procedure C below to be transmitted
to Standard & Poor's Corporation, which will
use the message to include certain information
regarding the related Book-Entry Notes in the
appropriate daily bond report published by
Standard & Poor's Corporation.
II-8
<PAGE>
Payments of
Principal
and Interest: Payments of Interest Only. Promptly after each
Regular Record Date, the Trustee will deliver
to the Company and the Depositary a written
notice specifying by CUSIP number the amount of
interest (if any) to be paid on each Book-Entry
Note on the following Interest Payment Date
(other than an Interest Payment Date coinciding
with the Stated Maturity) and the total of such
amounts. The Depositary will confirm the
amount payable (if any) on each Book-Entry Note
on such Interest Payment Date by reference to
the daily bond reports published by Standard &
Poor's Corporation. On such Interest Payment
Date, the Company will pay to the Trustee, as
Paying Agent, and the Trustee in turn will pay
to the Depositary, such total amount of
interest due (other than at Stated Maturity),
and the times and in the manner set forth below
under "Manner of Payment."
Payments at Stated Maturity. On or about the
first Business Day of each month, the Trustee
will deliver to the Company and the Depositary
a written list of principal, premium, if any,
and interest to be paid on each Book-Entry Note
maturing either at Stated Maturity or on a
Redemption Date or repayment date in the
following month. The Trustee, the Company and
the Depositary will confirm the amounts of such
principal, premium (if any) and interest
payments with respect to each such Book-Entry
Note on or about the fifth Business Day
preceding the Stated Maturity of such Book-
Entry Note. At such Stated Maturity, the
Company will pay to the Trustee, and the
Trustee in turn will pay to the Depositary, the
principal amount of such Book-Entry Note,
together with interest and premium, if any, due
at such Stated Maturity, at the times and in
the manner set forth below under "Manner of
Payment." Promptly after payment to the
Depositary of the principal, interest and
premium, if any, due at the Stated Maturity of
all Book-Entry Notes represented by a
particular Global Certificate, the Trustee will
cancel such Global Certificate, make
appropriate entries in its records and, unless
otherwise instructed by the Company, destroy
such Global Certificate.
II-9
<PAGE>
Manner of Payment. The total amount of any
principal, premium and interest due on Book-
Entry Notes on any Interest Payment Date or at
Stated Maturity shall be paid by the Company to
the Trustee, as Paying Agent, in funds
immediately available for use by the Trustee as
of 9:30 A.M., New York City time, on such date.
The Company will make such payment on such
Book-Entry Notes by wire transfer to the
Trustee or by instructing the Trustee to
withdraw funds from an account maintained by
the Company at the Trustee. The Company will
confirm such instructions in writing to the
Trustee. For maturity, redemption and other
principal payments, prior to 10:00 A.M., New
York City time, on each Stated Maturity or
other such date or as soon as possible
thereafter, the Trustee will pay by separate
wire transfer (using Fedwire message entry
instructions in a form previously specified by
the Depositary) to an account at the Federal
Reserve Bank of New York previously specified
by the Depositary, in funds available for
immediate use by the Depositary, each payment
of interest, principal and premium, if any, due
on Book-Entry Notes on such date; and for
interest payments, the Trustee will pay the
Depositary in same-day funds on the Interest
Payment Date in accordance with existing
arrangements between the Trustee and the
Depositary. Thereafter on each such date, the
Depositary will pay, in accordance with its
SDFS operating procedures then in effect, such
amounts in funds available for immediate use to
the respective Participants in whose names such
Book-Entry Notes are recorded in the book-entry
system maintained by the Depositary. Once
payment has been made to the Depositary,
neither the Company nor the Trustee shall have
any responsibility or liability for the payment
by the Depositary of the principal of, or
premium, if any, or interest on, the Book-Entry
Notes to such Participants.
Withholding Taxes. The amount of any taxes
required under applicable law to be withheld
from any interest payment on a Book-Entry Note
will be determined and withheld by the
Participant, indirect participant in the
Depositary or other Person responsible for
forwarding payments and materials directly to
II-10
<PAGE>
the beneficial owner of such Book-Entry Note,
or as applicable law may otherwise require.
Settlement
Procedures: Settlement Procedures with regard to each Book-
Entry Note sold by each Agent, as agent of the
Company will be as follows:
A. After the acceptance of an offer by the
Company with respect to a Book-Entry Note,
the Selling Agent or Purchasing Agent, as
the case may be, will communicate the
following details of the terms of such
offer (the "Book-Entry Sale Information")
to the Company by telephone confirmed in
writing or by facsimile transmission or
other acceptable written means:
(1) Principal amount of the Book-Entry
Note to be purchased;
(2) Interest Rate;
(3) Stated Maturity;
(4) Issue Date;
(5) Issue Price;
(6) Selling Agent's commission or
Purchasing Agent's discount, as the
case may be;
(7) Net proceeds to the Company;
(8) Settlement Date;
(9) If a redeemable Note, such of the
following as are applicable:
(i) Initial Redemption Date,
(ii) Initial Redemption Price (% of
par),
(iii) Annual Redemption Reduction (%
per annum), and
(iv) Limitation Date; and
(10) The taxpayer identification number of
the purchaser.
II-11
<PAGE>
B. Upon receiving the Book-Entry Sale
Information from the Selling Agent or the
Purchasing Agent, as the case may be, the
Company will assign a CUSIP number to the
Global Certificate representing such Book-
Entry Note and then as soon as practicable
advise the Trustee by telephone (confirmed
by facsimile transmission) of the Book-
Entry Sale Information received from the
Selling Agent or the Purchasing Agent, as
the case may be, such CUSIP number and the
name of such Agent.
C. The Trustee will communicate to the
Depositary, such Agent and Standard &
Poor's Corporation, through the
Depositary's Participant Terminal System,
a pending deposit message specifying the
following settlement information:
1. The Book-Entry Sale Information.
2. Identification numbers of the
participant accounts maintained by
the Depositary on behalf of the
Trustee and such Agent.
3. Identification as a Fixed Rate Note.
4. Initial Interest Payment Date for
such Note, number of days by which
such date succeeds the related record
date for Depositary purposes and, if
then calculable, the amount of
interest payable on such Interest
Payment Date (which amount shall have
been confirmed by the Trustee).
5. CUSIP number of the Global
Certificate representing such Book-
Entry Note.
6. Whether such Global Certificate will
represent any other Book-Entry Notes
issued or to be issued (to the extent
then known).
D. The Company will instruct the Trustee by
facsimile transmission or other acceptable
written means to complete a Global
Certificate representing such Book-Entry
Note and to authenticate such Global
II-12
<PAGE>
Certificate, to register such Global
Certificate in the name of Cede & Co., as
nominee of the Depositary, and to effect
delivery thereof to the Depositary by the
Trustee's possession of such authenticated
Global Certificate as agent for the
Depositary.
E. The Trustee will authenticate the Global
Certificate representing such Book-Entry
Note, register such Global Certificate in
the name of Cede & Co., as nominee of the
Depositary, and take delivery thereof as
agent for the Depositary.
F. The Depositary will credit such Book-Entry
Note to the participant account of the
Trustee maintained by the Depositary.
G. The Trustee will enter an SDFS deliver
order through the Depositary's Participant
Terminal System instructing the Depositary
(i) to debit such Book-Entry Note to the
Trustee's participant account and credit
such Book-Entry Note to the participant
account of the Selling Agent or the
Purchasing Agent, as the case may be,
maintained by the Depositary and (ii) to
debit the settlement account of the
Selling Agent or the Purchasing Agent, as
the case may be, and credit the settlement
account of the Trustee maintained by the
Depositary, in an amount equal to the
price of such Book-Entry Note less such
Agent's commission or discount, as the
case may be. Any entry of such a deliver
order shall be deemed to constitute a
representation and warranty by the Trustee
to the Depositary that (i) the Global
Certificate representing such Book-Entry
Note has been issued, authenticated and
delivered and (ii) the Trustee is holding
such Global Certificate pursuant to the
Medium-Term Note Certificate Agreement
between Trustee and the Depositary.
H. The Selling Agent or the Purchasing Agent,
as the case may be, will enter an SDFS
deliver order through the Depositary's
Participant Terminal System instructing
the Depositary (i) to debit such Book-
Entry Note to the participant account of
II-13
<PAGE>
such Agent and credit such Book-Entry Note
to the participant accounts of the
Participants with respect to such Book-
Entry Note maintained by the Depositary
and (ii) to debit the settlement accounts
of such Participants and credit the
settlement account of such Agent
maintained by the Depositary in an amount
equal to the price of such Book-Entry
Note.
I. Transfers of funds in accordance with SDFS
deliver orders described in Settlement
Procedures G and H will be settled in
accordance with SDFS operating procedures
in effect on the Settlement Date.
J. The Trustee will credit to an account of
the Company maintained at the Trustee
funds available for immediate use in the
amount transferred to the Trustee in
accordance with Settlement Procedure G.
K. The Trustee will send a copy of the Global
Certificate by first-class mail to the
Company together with a statement setting
forth the principal amount of Book-Entry
Notes Outstanding as of the related
Settlement Date after giving effect to
such transaction and all other offers to
purchase Notes of which the Company has
advised the Trustee but which have not yet
been settled.
L. The Selling Agent or the Purchasing Agent,
as the case may be, will confirm the
purchase of such Book-Entry Note to the
purchaser either by transmitting to the
Participants with respect to such Book-
Entry Note a confirmation order through
the Depositary's Participant Terminal
System or by mailing a written
confirmation to such purchaser.
Settlement
Procedures
Timetable: For orders of Book-Entry Notes accepted by the
Company, Settlement Procedures "A" through "L"
set forth above shall be completed as soon as
possible but not later than the respective
times (New York City time) set forth below:
II-14
<PAGE>
Settlement
Procedure Time
---------- ----
A 11:00 A.M. on the trade date
B 12:00 Noon on the trade date
C 2:00 P.M. on the trade date
D 3:00 P.M. on the Business Day
Settlement Date
E 9:00 A.M. on Settlement Date
F 10:00 A.M. on Settlement Date
G-H 2:00 P.M. on Settlement Date
I 4:45 P.M. on Settlement Date
J-L 5:00 P.M. on Settlement Date
If a sale is to be settled more than one
Business Day after the trade date, Settlement
Procedures A, B, and C may, if necessary, be
completed at any time prior to the specified
times on the first Business Day after such sale
date. Settlement Procedure I is subject to an
extension in accordance with any extension of
Fedwire closing deadlines and in the other
events specified in the SDFS operating
procedures in effect on the Settlement Date.
If settlement of a Book-Entry Note is
rescheduled or cancelled, the Company will as
soon as practicable give the Trustee notice to
such effect. The Trustee will deliver to the
Depositary through the Depositary's Participant
Terminal System, a cancellation message to such
effect by no later than 2:00 P.M., New York
City time, on the Business Day immediately
preceding the scheduled Settlement Date
(provided the Trustee received such notice from
the Company by noon on the Business Day
immediately preceding the Settlement Date) and
in any case as soon as practicable. A copy of
such message will be routed through the
facilities of the Depositary to the Selling
Agent and Standard & Poor's Corporation.
Failure to
Settle: If the Trustee fails to enter in timely fashion
an SDFS deliver order with respect to any
portion of a Book-Entry Note pursuant to
Settlement Procedure G, or if the Selling Agent
or the Purchasing Agent, as the case may be,
fails to enter in timely fashion an SDFS
deliver order with respect to such Book-Entry
Note pursuant to Settlement Procedure H (in
II-15
<PAGE>
which event the Trustee shall not be liable for
damages arising as a consequence of or incident
to such Selling Agent's or Purchasing Agent's
failure; as the case may be), the Trustee may
deliver to the Depositary, through the
Depositary's Participant Terminal System, as
soon as practicable a withdrawal message
instructing the Depositary to debit such Book-
Entry Note to the participant account of the
Trustee maintained at the Depositary. A copy
of such message will be routed through the
facilities of the Depositary to such Agent.
The Depositary will process the withdrawal
message, provided that such participant account
contains Book-Entry Notes having the same Terms
having an aggregate principal amount that is at
least equal to the principal amount to be
debited. If withdrawal messages are processed
with respect to all the Book-Entry Notes
represented by a particular Global Certificate,
the Trustee will immediately cancel such Global
Certificate, make appropriate entries in its
records and, unless otherwise instructed by the
Company destroy the Global Certificate. The
CUSIP number assigned to such Global
Certificate shall, in accordance with CUSIP
Service Bureau procedures, be cancelled and not
immediately reassigned. If withdrawal messages
are processed with respect to only a portion of
the Book-Entry Notes represented by a
particular Global Certificate, the Trustee will
exchange such Global Certificate for two Global
Certificates, one of which shall represent the
Book-Entry Notes for which withdrawal messages
are processed and shall be cancelled and
destroyed immediately after issuance, and the
other of which shall represent the other Book-
Entry Notes previously represented by the
surrendered Global Certificate and shall bear
the CUSIP number of the surrendered Global
Certificate. The Company will reimburse such
Agent on an equitable basis for its loss of the
use of funds during any period when the funds
were credited to the account of the Company in
connection with such attempted settlement.
If the purchase price for any Book-Entry Note
is not timely paid to the Participants with
respect to such Note by the beneficial
purchaser thereof or by a person, including an
indirect participant in the Depositary, acting
on behalf of such purchaser (other than the
II-16
<PAGE>
Purchasing Agent, if any), such Participants
and, in turn, the Selling Agent or the
Purchasing Agent, as the case may be, may enter
SDFS deliver orders through the Depositary's
Participant Terminal System reversing the
orders entered pursuant to Settlement
Procedures G and H, respectively. Immediately
thereafter, the Trustee will deliver the
withdrawal message and take the related actions
described in the preceding paragraph. The
Company will reimburse such Agent on an
equitable basis for its loss of the use of
funds during any period when the funds were
credited to the account of the Company in
connection with such attempted settlement.
Notwithstanding the foregoing, upon any failure
to settle with respect to any portion of a
Book-Entry Note, the Depositary may take any
actions in accordance with its SDFS operating
procedures then in effect. In the event of a
failure to settle with respect to any portion
of a Book-Entry Note that was to have been
represented by a Global Certificate also
representing other Book-Entry Notes, the
Trustee will provide, in accordance with
Settlement Procedures D and E, for the
authentication and issuance of a Global
Certificate representing the remaining
principal amount to have been represented by
such Global Certificate and will make
appropriate entries in its records.
II-17
EXHIBIT 4(B)-96
===========================================================================
PECO ENERGY COMPANY
TO
FIRST FIDELITY BANK, NATIONAL
ASSOCIATION, TRUSTEE
----------
NINETY-SIXTH SUPPLEMENTAL
INDENTURE DATED AS OF
JULY 1, 1994
TO
FIRST AND REFUNDING MORTGAGE
OF
THE COUNTIES GAS AND ELECTRIC
COMPANY
TO
FIDELITY TRUST COMPANY, TRUSTEE
DATED MAY 1, 1923
----------
MEDIUM-TERM NOTE SERIES B
===========================================================================
<PAGE>
1
THIS SUPPLEMENTAL INDENTURE dated as of July 1, 1994, by and between
PECO ENERGY COMPANY, a corporation organized and existing under the laws of
the Commonwealth of Pennsylvania (hereinafter called the Company), party of
the first part, and FIRST FIDELITY BANK, NATIONAL ASSOCIATION, a national
banking association organized and existing under the laws of the United
States of America (hereinafter called the Trustee), as Trustee under the
Mortgage hereinafter mentioned, party of the second part, Witnesseth that
WHEREAS, The Counties Gas and Electric Company (hereinafter called
Counties Company), a Pennsylvania corporation and a predecessor to the
Company, duly executed and delivered to Fidelity Trust Company, a
Pennsylvania corporation to which the Trustee is successor, as Trustee, a
certain indenture of mortgage and deed of trust dated May 1, 1923
(hereinafter called the Mortgage), to provide for the issue of, and to
secure, its First and Refunding Mortgage Bonds, issuable in series and
without limit as to principal amount except as provided in the Mortgage,
the initial series of Bonds being designated the 6% Series of 1923, and the
terms and provisions of other series of bonds secured by the Mortgage to be
determined as provided in the Mortgage; and
WHEREAS, thereafter Counties Company, Philadelphia Suburban-Counties
Gas and Electric Company (hereinafter called Suburban Company), and the
Company, respectively, have from time to time executed and delivered
indentures supplemental to the Mortgage, providing for the creation of
additional series of bonds secured by the Mortgage and for amendment of
certain of the terms and provisions of the Mortgage and of indentures
supplemental thereto, or evidencing the succession of Suburban Company to
Counties Company and of the Company to Suburban Company, such indentures
supplemental to the Mortgage, the respective dates, parties thereto, and
purposes thereof, being as follows:
<PAGE>
2
SUPPLEMENTAL INDENTURE
AND DATE PARTIES PROVIDING FOR:
- ---------------------- ------- --------------
First Counties Company to Bonds of 5% Series of
September 1, 1926 Fidelity-Philadelphia 1926
Trust Company
(Successor to Fidelity
Trust Company)
Second Suburban Company to Evidencing succession of
May 1, 1927 Fidelity-Philadelphia Suburban Company to
Trust Company Counties Company
Third Suburban Company to Bonds of 4-1/2% Series
May 1, 1927 Fidelity-Philadelphia due 1957; amendment of
Trust Company certain provisions of
Mortgage
Fourth Suburban Company to Additional bonds of
November 1, 1927 Fidelity-Philadelphia 4-1/2% Series due 1957
Trust Company
Fifth Company to Evidencing succession of
January 31, 1931 Fidelity-Philadelphia Company to Suburban
Trust Company Company
Sixth Company to Bonds of 4% Series due
February 1, 1931 Fidelity-Philadelphia 1971
Trust Company
Seventh Company to Bonds of 3-1/2% Series
March 1, 1937 Fidelity-Philadelphia due 1967; amendment of
Trust Company certain provisions of
Mortgage
Eighth Company to Bonds of 2-3/4% Series
December 1, 1941 Fidelity-Philadelphia due 1971; amendment of
Trust Company certain provisions of
Mortgage
Ninth Company to Bonds of 2-3/4% Series
November 1, 1944 Fidelity-Philadelphia due 1967 and 2-3/4%
Trust Company Series due 1974;
amendment of certain
provisions of Mortgage
Tenth Company to Bonds of 2-3/4% Series
December 1, 1946 Fidelity-Philadelphia due 1981; amendment of
Trust Company certain provisions of
Mortgage*
Eleventh Company to Bonds of 2-7/8% Series
February 1, 1948 Fidelity-Philadelphia due 1978*
Trust Company
Twelfth Company to Bonds of 3-1/4% Series
January 1, 1952 Fidelity-Philadelphia due 1982*
Trust Company
<PAGE>
3
SUPPLEMENTAL INDENTURE
AND DATE PARTIES PROVIDING FOR:
- ---------------------- ------- --------------
Thirteenth Company to Bonds of 3-7/8% Series
May 1, 1953 Fidelity-Philadelphia due 1983*
Trust Company
Fourteenth Company to Bonds of 3-1/8% Series
December 1, 1953 Fidelity-Philadelphia due 1983*
Trust Company
Fifteenth Company to Bonds of 3-1/8% Series
April 1, 1955 Fidelity-Philadelphia due 1985*
Trust Company
Sixteenth Company to Bonds of 4-5/8% Series
September 1, 1957 Fidelity-Philadelphia due 1987; amendment of
Trust Company certain provisions of
Mortgage*
Seventeenth Company to Bonds of 3-3/4% Series
May 1, 1958 Fidelity-Philadelphia due 1988; amendment of
Trust Company certain provisions of
Mortgage*
Eighteenth Company to Bonds of 4-3/8% Series
December 1, 1958 Fidelity-Philadelphia due 1986*
Trust Company
Nineteenth Company to Bonds of 5% Series
October 1, 1959 Fidelity-Philadelphia due 1989*
Trust Company
Twentieth Company to Bonds of 4-1/2% Series
May 1, 1964 Fidelity-Philadelphia due 1994*
Trust Company
Twenty-first Company to Bonds of 6% Series due
October 15, 1966 Fidelity-Philadelphia 1968-1973*
Trust Company
Twenty-second Company to The Fidelity Bonds of 5-1/4% Series
June 1, 1967 Bank (formerly due 1968-1973 and
Fidelity-Philadelphia 5-3/4% Series due
Trust Company) 1977*
Twenty-third Company to The Fidelity Bonds of 6-1/8% Series
October 1, 1967 Bank due 1997*
Twenty-fourth Company to The Fidelity Bonds of 6-1/2% Series
March 1, 1968 Bank due 1993; amendment
of Article XIV of
Mortgage*
Twenty-fifth Company to The Fidelity Bonds of 1968 Series
September 10, 1968 Bank due 1969-1976*
Twenty-sixth Company to The Fidelity Bonds of 8% Series due
August 15, 1969 Bank 1975*
<PAGE>
4
SUPPLEMENTAL INDENTURE
AND DATE PARTIES PROVIDING FOR:
- ---------------------- ------- --------------
Twenty-seventh Company to The Fidelity Bonds of 9% Series due
February 1, 1970 Bank 1995*
Twenty-eighth Company to The Fidelity Bonds of 8-1/2% Series
May 1, 1970 Bank due 1976*
Twenty-ninth Company to The Fidelity Bonds of 7-3/4% Series
December 15, 1970 Bank due 2000*
Thirtieth Company to The Fidelity Bonds of 8-1/4% Series
August 1, 1971 Bank due 1996*
Thirty-first Company to The Fidelity Bonds of 7-3/8% Series
December 15, 1971 Bank due 2001; amendment
of Article XI of
Mortgage*
Thirty-second Company to The Fidelity Bonds of 7-1/2% Series
June 15, 1972 Bank due 1998*
Thirty-third Company to The Fidelity Bonds of 7-1/2% Series
January 15, 1973 Bank due 1999*
Thirty-fourth Company to The Fidelity Bonds of 8-1/2% Series
January 15, 1974 Bank due 2004*
Thirty-fifth Company to The Fidelity Bonds of 11% Series due
October 15, 1974 Bank 1980*
Thirty-sixth Company to The Fidelity Bonds of 11-5/8% Series
April 15, 1975 Bank due 2000*
Thirty-seventh Company to The Fidelity Bonds of 11% Series due
August 1, 1975 Bank 2000*
Thirty-eighth Company to The Fidelity Bonds of 9-1/8% Series
March 1, 1976 Bank due 2006*
Thirty-ninth Company to The Fidelity Bonds of 9-5/8% Series
August 1, 1976 Bank due 2002*
Fortieth Company to The Fidelity Bonds of Pollution
February 1, 1977 Bank Control Series A
and Pollution
Control Series B*
Forty-first Company to The Fidelity Bonds of 8-5/8% Series
March 15, 1977 Bank due 2007*
Forty-second Company to The Fidelity Bonds of 8-5/8% Series
July 15, 1977 Bank due 2003*
Forty-third Company to The Fidelity Bonds of 9-1/8% Series
March 15, 1978 Bank due 2008*
Forty-fourth Company to The Fidelity Bonds of 12-1/2% Series
October 15, 1979 Bank due 2005*
Forty-fifth Company to The Fidelity Bonds of 13-3/4% Series
October 15, 1980 Bank due 1992*
<PAGE>
5
SUPPLEMENTAL INDENTURE
AND DATE PARTIES PROVIDING FOR:
- ---------------------- ------- --------------
Forty-sixth Company to The Fidelity Bonds of 15-1/4% Series
March 1, 1981 Bank due 1996; amendment
of Article VIII of
Mortgage*
Forty-seventh Company to The Fidelity Bonds of 15% Series due
March 1, 1981 Bank 1996; amendment of
Article VIII of
Mortgage*
Forty-eighth Company to The Fidelity Bonds of 17-5/8% Series
July 1, 1981 Bank due 2011*
Forty-ninth Company to The Fidelity Bonds of 18-3/4% Series
September 15, 1981 Bank due 2009*
Fiftieth Company to The Fidelity Bonds of 18% Series due
April 1, 1982 Bank 2012*
Fifty-first Company to The Fidelity Bonds of 15-3/8% Series
October 1, 1982 Bank due 2010*
Fifty-second Company to The Fidelity Bonds of 13-3/8% Series
June 15, 1983 Bank due 2013*
Fifty-third Company to Fidelity Bank, Bonds of 13.05% Series
November 15, 1984 National Association due 1994; amendment
(formerly The Fidelity of Article VIII of
Bank) Mortgage*
Fifty-fourth Company to Fidelity Bank, Bonds of 14% Series due
December 1, 1984 National Association 1988-1994; amendment
of Article VIII of
Mortgage*
Fifty-fifth Company to Fidelity Bank, Bonds of Pollution
May 15, 1985 National Association Control Series C*
Fifty-sixth Company to Fidelity Bank, Bonds of Pollution
October 1, 1985 National Association Control Series D*
Fifty-seventh Company to Fidelity Bank, Bonds of 10-7/8% Series
November 15, 1985 National Association due 1995*
Fifty-eighth Company to Fidelity Bank, Bonds of 11-3/4% Series
November 15, 1985 National Association due 2014*
Fifty-ninth Company to Fidelity Bank, Bonds of Pollution
June 1, 1986 National Association Control Series E*
Sixtieth Company to Fidelity Bank, Bonds of 10-1/4% Series
November 1, 1986 National Association due 2016*
Sixty-first Company to Fidelity Bank, Bonds of 8-3/4% Series
November 1, 1986 National Association due 1994*
Sixty-second Company to Fidelity Bank, Bonds of 9-3/8% Series
April 1, 1987 National Association due 2017*
<PAGE>
6
SUPPLEMENTAL INDENTURE
AND DATE PARTIES PROVIDING FOR:
- ---------------------- ------- --------------
Sixty-third Company to Fidelity Bank, Bonds of 11% Series due
July 15, 1987 National Association 2016*
Sixty-fourth Company to Fidelity Bank, Bonds of 10% Series due
July 15, 1987 National Association 1997*
Sixty-fifth Company to Fidelity Bank, Bonds of 10-1/4% Series
August 1, 1987 National Association due 2007*
Sixty-sixth Company to Fidelity Bank, Bonds of 11% Series due
October 15, 1987 National Association 1997*
Sixty-seventh Company to Fidelity Bank, Bonds of 12-1/8% Series
October 15, 1987 National Association due 2016*
Sixty-eighth Company to Fidelity Bank, Bonds of 10% Series due
April 15, 1988 National Association 1998*
Sixty-ninth Company to Fidelity Bank, Bonds of 11% Series due
April 15, 1988 National Association 2018*
Seventieth Company to Fidelity Bank, Bonds of 10% Series due
June 15, 1989 National Association 2019*
Seventy-first Company to Fidelity Bank, Bonds of 9-7/8% Series
October 1, 1989 National Association due 2019*
Seventy-second Company to Fidelity Bank, Bonds of 9-1/4% Series
October 1, 1989 National Association due 1999*
Seventy-third Company to Fidelity Bank, Medium-Term Note
October 1, 1989 National Association Series A*
Seventy-fourth Company to Fidelity Bank, Bonds of 10-1/2% Series
October 15, 1990 National Association due 2020*
Seventy-fifth Company to Fidelity Bank, Bonds of 10% Series due
October 15, 1990 National Association 2000*
Seventy-sixth Company to Fidelity Bank, Bonds of Pollution
April 1, 1991 National Association Control Series F
and Pollution
Control Series G*
Seventy-seventh Company to Fidelity Bank, Bonds of Pollution
December 1, 1991 National Association Control Series H*
Seventy-eighth Company to Fidelity Bank, Bonds of 7-1/2% 1992
January 15, 1992 National Association Series due 1999*
Seventy-ninth Company to Fidelity Bank, Bonds of 8% Series due
April 1, 1992 National Association 2002*
Eightieth Company to Fidelity Bank, Bonds of 8-3/4% Series
April 1, 1992 National Association due 2022*
Eighty-first Company to Fidelity Bank, Bonds of Pollution
June 1, 1992 National Association Control Series I*
Eighty-second Company to Fidelity Bank, Bonds of 8-5/8% Series
June 1, 1992 National Association due 2022*
<PAGE>
7
SUPPLEMENTAL INDENTURE
AND DATE PARTIES PROVIDING FOR:
- ---------------------- ------- --------------
Eighty-third Company to Fidelity Bank, Bonds of 7-1/2% Series
July 15, 1992 National Association due 2002*
Eighty-fourth Company to Fidelity Bank, Bonds of 8-1/4% Series
September 1, 1992 National Association due 2022*
Eighty-fifth Company to Fidelity Bank, Bonds of 7-1/8% Series
September 1, 1992 National Association due 2002*
Eighty-sixth Company to Fidelity Bank, Bonds of 6-5/8% Series
March 1, 1993 National Association due 2003*
Eighty-seventh Company to Fidelity Bank, Bonds of 7-3/4% Series
March 1, 1993 National Association due 2023*
Eighty-eighth Company to Fidelity Bank, Bonds of Pollution
March 1, 1993 National Association Control Series J,
Pollution
Control Series K,
Pollution Control
Series L and Pollution
Control Series M*
Eighty-ninth Company to Fidelity Bank, Bonds of 6-1/2% Series
March 1, 1993 National Association due 2003*
Ninetieth Company to Fidelity Bank, Bonds of 7-3/4% Series
May 1, 1993 National Association 2 due 2023*
Ninety-first Company to First Fidelity Bonds of 7-1/8% Series
August 15, 1993 Bank, N.A., Pennsylvania due 2023*
Ninety-second Company to First Fidelity Bonds of 6-3/8% Series
August 15, 1993 Bank, N.A., Pennsylvania due 2005*
Ninety-third Company to First Fidelity Bonds of 5-3/8% Series
August 15, 1993 Bank, N.A., Pennsylvania due 1998*
Ninety-fourth Company to First Fidelity Bonds of 7-1/4% Series
November 1, 1993 Bank, N.A., Pennsylvania due 2024*
Ninety-fifth Company to First Fidelity Bonds of 5-5/8% Series
November 1, 1993 Bank, N.A., Pennsylvania due 2001*
*And amendment of certain provisions of the Ninth Supplemental Indenture.
<PAGE>
8
WHEREAS, the respective principal amounts of the bonds of each
series presently outstanding under the Mortgage and the several
supplemental indentures above referred to, are as follows:
PRINCIPAL
SERIES AMOUNT
------ ---------
13.05 % Series due 1994 ..................... $ 20,000,000
8-3/4% Series due 1994 ..................... 100,000,000
6-1/8% Series due 1997 ..................... 75,000,000
5-3/8% Series due 1998 ..................... 225,000,000
7-1/2% 1992 Series due 1999 ................ 250,000,000
9-1/4% Series due 1999 ..................... 75,000,000
10 % Series due 2000 ..................... 30,069,000
5-5/8% Series due 2001 ..................... 250,000,000
7-3/8% Series due 2001 ..................... 80,000,000
8 % Series due 2002 ..................... 200,000,000
7-1/8% Series due 2002 ..................... 200,000,000
7-1/2% Series due 2002 ..................... 100,000,000
6-5/8% Series due 2003 ..................... 250,000,000
6-1/2% Series due 2003 ..................... 200,000,000
6-3/8% Series due 2005 ..................... 75,000,000
10-1/4% Series due 2007 ..................... 56,875,000
Pollution Control Series J due 2012 ......... 50,000,000
Pollution Control Series K due 2012 ......... 50,000,000
Pollution Control Series L due 2012 ......... 50,000,000
Pollution Control Series M due 2012 ......... 4,200,000
8-7/8% Pollution Control Series E due 2016.. 34,000,000
10-3/4% Series due 2019 ..................... 71,000,000
9-7/8% Series due 2019 ..................... 40,281,000
Medium-Term Note Series A ................... 85,000,000
10-1/2% Series due 2020 ..................... 58,150,000
7-3/8% Pollution Control Series F due 2021.. 90,000,000
7.60 % Pollution Control Series G due 2021.. 27,030,000
6.70 % Pollution Control Series H due 2021.. 160,560,000
8-3/4% Series due 2022 ..................... 150,000,000
6-5/8% Pollution Control Series I due 2022.. 29,540,000
8-1/4% Series due 2022 ..................... 250,000,000
8-5/8% Series due 2022 ..................... 125,000,000
7-1/8% Series due 2023 ..................... 200,000,000
7-3/4% Series due 2023 ..................... 100,000,000
7-3/4% Series 2 due 2023 ................... 250,000,000
7-1/4% Series due 2024 ..................... 225,000,000
--------------
Total ................................. $4,236,705,000
==============
<PAGE>
9
and
WHEREAS, the Company deems it advisable and has determined, pursuant to
Article XI of the Mortgage,
(a) to amend Article II of the Ninth Supplemental Indenture to the
Mortgage as heretofore amended;
(b) to convey, pledge, transfer and assign to the Trustee and to
subject specifically to the lien of the Mortgage additional property not
therein or in any supplemental indenture specifically described but now
owned by the Company and acquired by it by purchase or otherwise; and
(c) to create a new series of bonds to be issued from time to time
under, and secured by, the Mortgage, to be designated PECO Energy Company
First and Refunding Mortgage Bonds, Medium-Term Note Series B (hereinafter
sometimes called the "bonds of the Medium-Term Note Series B"); and for the
above-mentioned purposes to execute, deliver and record this Supplemental
Indenture; and
WHEREAS, the Company has determined by proper corporate action that the
terms, provisions and form of the bonds of the New Series shall be
substantially as follows:
(Form of Face of Bond)
PECO ENERGY
COMPANY
REGISTERED REGISTERED
NUMBER
FIRST AND REFUNDING MORTGAGE BOND,
MEDIUM-TERM NOTE SERIES B
PECO Energy Company, a Pennsylvania corporation (hereinafter called the
Company), for value received, hereby promises to pay to First Fidelity
Bank, National Association as trustee (in such capacity, hereinafter called
the Note Trustee) under the Company's Collateralized Note Indenture dated
as of October 1, 1989, as previously amended, and as further supplemented
by a Second Supplemental Indenture dated as of July 1,1994 (hereinafter
called the Collateralized Note Indenture) or registered assigns,
Dollars on July 1, 2025, at the
office or agency of the Company, in the City of Philadelphia, Pennsylvania,
or, at the option of the holder, at the office or agency of the Company, in
the Borough of Manhattan, The City of New York, in such coin or currency of
the United States of America as at the time of payment shall constitute
legal tender for the payment of
<PAGE>
10
public and private debts, and to pay interest (computed on the basis of
a 360-day year of twelve 30-day months) thereon from the date hereof at the
rate of ten percent per annum in like coin or currency, payable at either
of the offices aforesaid on January 1 and July 1 in each year until the
Company's obligation with respect to the payment of such principal shall
have been discharged; provided, however, that if the date of authentication
of a bond is between the fifteenth day of the calendar month preceding an
interest payment date and the interest payment date, interest payment on
such bond shall commence on the second interest payment date following the
date of authentication.
The Company may fix a date, not more than fourteen calendar days prior
to any interest payment date, as a record date for determining the
registered holder of this bond entitled to such interest payment, in which
case only the registered holder on such record date shall be entitled to
receive such payment, notwithstanding any transfer of this bond upon the
registration books subsequent to such record date.
This bond shall not be valid or become obligatory for any purpose
unless it shall have been authenticated by the certificate of the Trustee
under said Mortgage endorsed hereon.
The provisions of this bond are continued on the reverse hereof and
such continued provisions shall for all purposes have the same effect as
though fully set forth at this place.
IN WITNESS WHEREOF, PECO Energy Company has caused this instrument to
be signed in its corporate name with the manual or facsimile signature of
its President or a Vice President and its corporate seal to be impressed or
a facsimile imprinted hereon, duly attested by the manual or facsimile
signature of its Secretary or an Assistant Secretary.
Dated:
PECO ENERGY COMPANY
By _____________________________________
President
[SEAL]
Attest:
________________________________________
Secretary
<PAGE>
11
(Form of Reverse of Bond)
PECO ENERGY COMPANY
First and Refunding Mortgage Bond,
Medium-Term Note Series B
(CONTINUED)
This bond is one of a duly authorized issue of bonds of the Company,
unlimited as to amount except as provided in the Mortgage hereinafter
mentioned or in any indenture supplemental thereto, and is one of a series
of said bonds known as First and Refunding Mortgage Bonds, Medium-Term Note
Series B. This bond and all other bonds of said issue are issued and to be
issued under and pursuant to and are all secured equally and ratably by an
indenture of mortgage and deed of trust dated May 1, 1923, duly executed
and delivered by The Counties Gas and Electric Company (to which the
Company is successor) to Fidelity Trust Company, as Trustee (to which First
Fidelity Bank, National Association, a national banking association
organized and existing under the laws of the United States of America, is
successor Trustee), as amended, modified or supplemented by ninety-six
certain supplemental indentures from the Company or its predecessors to
said successor Trustee or its predecessors, said mortgage, as so amended,
modified or supplemented being herein called the Mortgage. Reference is
hereby made to the Mortgage for a statement of the property mortgaged and
pledged, the nature and extent of the security, the rights of the holders
of said bonds and of the Trustee in respect of such security, the rights,
duties and immunities of the Trustee, and the terms and conditions upon
which said bonds are and are to be secured, and the circumstances under
which additional bonds may be issued.
As provided in the Mortgage, the bonds secured thereby may be for
various principal sums and are issuable in series, which series may mature
at different times, may bear interest at different rates, and may otherwise
vary. The bonds of this series mature on July 1, 2025, and are issuable
only in registered form without coupons to the Note Trustee in any
denomination authorized by the Company. The bonds of this series are being
issued solely to provide security for the Company's notes (the "Series B
Notes") issued under the Collateralized Note Indenture.
Any bond or bonds of this series may be exchanged for another bond or
bonds of this series in a like aggregate principal amount in authorized
denominations, upon presentation at the principal office of the Trustee in
the City of Philadelphia, Pennsylvania, or, at the option of the holder, at
the office or agency of the Company in the
<PAGE>
12
Borough of Manhattan, The City of New York, all subject to the terms of
the Mortgage but without any charge other than a sum sufficient to
reimburse the Company for any stamp tax or other governmental charge
incident to the exchange.
The bonds of this series are redeemable at the option of the Company,
as a whole or in part at any time upon notice sent by the Company through
the mail, postage prepaid, at least thirty days and not more than
forty-five days prior to the date fixed for redemption, to the registered
holder of each bond to be redeemed, addressed to such holder at his address
appearing upon the registration books, at a redemption price of 100% of the
principal amount together with accrued interest to the date fixed for
redemption.
The principal of this bond may be declared or may become due on the
conditions, in the manner and with the effect provided in the Mortgage upon
the happening of an event of default as in the Mortgage provided.
This bond is transferable by the registered holder hereof in person or
by attorney, duly authorized in writing, at the principal office of the
Trustee in the City of Philadelphia, Pennsylvania, or, at the option of the
holder, at the office or agency of the Company in the Borough of Manhattan,
The City of New York, in books of the Company to be kept for that purpose,
upon surrender and cancellation hereof, and upon any such transfer, a new
registered bond or bonds, without coupons, of this series and for the same
aggregate principal amount, will be issued to the transferee in exchange
herefor, all subject to the terms of the Mortgage but without payment of
any charge other than a sum sufficient to reimburse the Company for any
stamp tax or other governmental charge incident to the transfer. The
Company, the Trustee, and any paying agent may deem and treat the person in
whose name this bond is registered as the absolute owner hereof for the
purpose of receiving payment of or on account of the principal and interest
due hereon and for all other purposes, and neither the Company nor the
Trustee nor any paying agent shall be affected by any notice to the
contrary.
No recourse shall be had for the payment of the principal of or
interest on this bond to any incorporator or any past, present or future
stockholder, officer or director of the Company or of any predecessor or
successor corporation, either directly or indirectly, by virtue of any
statute or by enforcement of any assessment or otherwise, and any and all
liability of the said incorporators, stockholders, officers or directors of
the Company or of any predecessor or successor corporation in respect to
this bond is hereby expressly waived
<PAGE>
13
and released by every holder hereof, except to the extent that such
liability may not be waived or released under the provisions of the
Securities Act of 1933 or of the rules and regulations of the Securities
and Exchange Commission thereunder.
(End of Form of Reverse of Bond)
and
WHEREAS, on the face of each of the bonds of the Medium-Term Note
Series B, there is to be endorsed a certificate of the Trustee in
substantially the following form, to wit:
(Form of Trustee's Certificate)
This bond is one of the bonds, of the series designated therein,
provided for in the within-mentioned Mortgage and in the Ninety-sixth
Supplemental Indenture dated as of July 1, 1994.
FIRST FIDELITY BANK,
NATIONAL ASSOCIATION,
TRUSTEE
By _________________________________
Authorized Officer
and
WHEREAS, all acts and things necessary to make the bonds of the
Medium-Term Note Series B, when duly executed by the Company and
authenticated by the Trustee as provided in the Mortgage and indentures
supplemental thereto, and issued by the Company, the valid, binding and
legal obligations of the Company, and this Supplemental Indenture a valid
and enforceable supplement to the Mortgage, have been done, performed and
fulfilled and the execution and delivery hereof have been in all respects
duly and lawfully authorized.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
That in order to secure the payment of the principal of and interest on
all bonds issued and to be issued under the Mortgage and/or under any
indenture supplemental thereto, according to their tenor and effect, and
according to the terms of the Mortgage and of any indenture supplemental
thereto, and to secure the performance of the covenants and obligations in
the bonds and in the Mortgage and any indenture supplemental thereto
respectively contained, and for the proper assuring, conveying, and
confirming unto the Trustee, its successors in trust and its and their
assigns forever, upon the trusts and for the purposes expressed in the
Mortgage and in any indentures supplemental thereto, all and singular the
estates, prop-
<PAGE>
14
erty and franchises of the Company thereby mortgaged or intended so to
be, the Company, for and in consideration of the premises and of the sum of
One Dollar ($1.00) in hand paid by the Trustee to the Company upon the
execution and delivery of this Supplemental Indenture, receipt whereof is
hereby acknowledged, and of other good and valuable consideration, has
granted, bargained, sold, conveyed, released, confirmed, pledged, assigned,
transferred and set over and by these presents does grant, bargain, sell,
convey, release, confirm, pledge, assign, transfer, and set over to First
Fidelity Bank, National Association, as Trustee, and to its successors in
trust and its and their assigns forever, all the following described
property, real, personal and mixed of the Company, viz.:
The real property set forth in Schedule A, attached hereto and hereby
made a part hereof, with any improvements thereon erected now owned by the
Company but not specifically described in the Mortgage or in any indenture
supplemental thereto heretofore executed, in the places set forth in
Schedule A.
Together with all gas works, electric works, plants, buildings,
structures, improvements and machinery located upon such real estate or any
portion thereof, and all rights, privileges and easements of every kind and
nature appurtenant thereto, and all and singular the tenements,
hereditaments and appurtenances belonging to the real estate or any part
thereof hereinbefore described or referred to or intended so to be, or in
any way appertaining thereto, and the reversions, remainders, rents, issues
and profits thereof; also all the estate, right, title, interest, property,
possession, claim and demand whatsoever, as well in law as in equity, of
the Company, of, in and to the same and any and every part thereof, with
the appurtenances.
Also all the Company's electric transmission and distribution lines and
systems, substations, transforming stations, structures, machinery,
apparatus, appliances, devices and appurtenances.
Also all the Company's gas transmission and distribution mains, pipes,
pipe lines and systems, storage facilities, structures, machinery,
apparatus, appliances, devices and appurtenances.
Also all plants, systems, works, improvements, buildings, structures,
fixtures, appliances, engines, furnaces, boilers, machinery, retorts,
tanks, condensers, pumps, gas tanks, holders, reservoirs, expansion tanks,
gas mains and pipes, tunnels, service pipe, pipe lines, fittings, gates,
valves, connections, gas and electric meters, generators, dynamos, fans,
supplies, tools and implements, tracks, sidings, motor and other vehicles,
all electric light lines, electric power lines, transmission lines,
distribution lines, conduits, cables,
<PAGE>
15
stations, substations, and distributing systems, motors, conductors,
converters, switchboards, shafting, belting, wires, mains, feeders, poles,
towers, mast arms, brackets, pipes, lamps, insulators, house wiring
connections and all instruments, appliances, apparatus, fixtures, fittings
and equipment and all stores, repair parts, materials and supplies of every
nature and kind whatsoever now or hereafter owned by the Company in
connection with or appurtenant to its plants and systems for production,
purchase, storage, transmission, distribution, utilization and sale of gas
and its by-products and residual products, and/or for the generation,
production, purchase, storage, transmission, distribution, utilization and
sale of electricity, or in connection with such business.
Also all the goodwill of the business of the Company, and all rights,
claims, contracts, leases, patents, patent rights, and agreements, all
accounts receivable, accounts, claims, demands, choses in action, books of
account, cash assets, franchises, ordinances, rights, powers, easements,
water rights, riparian rights, licenses, privileges, immunities,
concessions and consents now or hereafter owned by the Company in
connection with or appurtenant to its said business.
Also all the right, title and interest of the Company in and to all
contracts for the purchase, sale or supply of gas, and its by-products and
residual products of electricity and electrical energy, now or hereafter
entered into by the Company with the right on the part of the Trustee, upon
the happening of an event of default as defined in the Mortgage as
supplemented by any supplemental indenture, to require a specific
assignment of any and all such contracts, whenever it shall request the
Company to make the same.
Also all rents, tolls, earnings, profits, revenues, dividends and
income arising or to arise from any property now owned, leased, operated or
controlled or hereafter acquired, leased, operated or controlled by the
Company and subject to the lien of the Mortgage and indentures supplemental
thereto.
Also all the estate, right, title and interest of the Company, as
lessee, in and to any and all demised premises under any and all agreements
of lease now or at any time hereafter in force, insofar as the same may now
or hereafter be assignable by the Company.
Also all other property, real, personal and mixed not hereinbefore
specified or referred to, of every kind and nature whatsoever, now owned,
or which may hereafter be owned by the Company (except
<PAGE>
16
shares of stock, bonds or other securities not now or hereafter
specifically pledged under the Mortgage and indentures supplemental thereto
or required to be pledged thereunder by the provisions of the Mortgage or
any indenture supplemental thereto), together with all and singular the
tenements, hereditaments and appurtenances thereunto belonging or in any
way appertaining and the reversions, remainder or remainders, rents, issues
and profits thereof; and also all the estate, right, title, interest,
property, claim and demand whatsoever as well in law as in equity of the
Company of, in and to the same and every part and parcel thereof.
It is the intention and it is hereby agreed that all property and the
earnings and income thereof acquired by the Company after the date hereof
shall be as fully embraced within the provisions hereof and subject to the
lien hereby created for securing the payment of all bonds, together with
the interest thereon, as if the property were now owned by the Company and
were specifically described herein and conveyed hereby, provided
nevertheless, that no shares of stock, bonds or other securities now or
hereafter owned by the Company, shall be subject to the lien of the
Mortgage and indentures supplemental thereto unless now or hereafter
specifically pledged or required to be pledged thereunder by the provisions
of the Mortgage or any indenture supplemental thereto.
TO HAVE AND TO HOLD, all and singular the property, rights, privileges
and franchises hereby conveyed, transferred or pledged or intended so to
be, including after-acquired property, together with all and singular the
reversions, remainders, rents, revenues, income, issues and profits,
privileges and appurtenances, now or hereafter belonging or in any way
appertaining thereto, unto the Trustee and its successors in the trust
hereby created, and its and their assigns forever;
IN TRUST NEVERTHELESS, for the equal and pro rata benefit and security
of each and every person or corporation who may be or become the holders of
bonds secured by the Mortgage and indentures supplemental thereto, without
preference, priority or distinction (except as provided in Section 1 of
Article VIII of the Mortgage) as to lien or otherwise of any bond of any
series over or from any other bond, so that (except as aforesaid) each and
every of the bonds issued or to be issued, of whatsoever series, shall have
the same right, lien, privilege under the Mortgage and indentures
supplemental thereto and shall be equally secured thereby and hereby, with
the same effect as if the bonds had all been made, issued and negotiated
simultaneously on the date of the Mortgage.
<PAGE>
17
AND THIS SUPPLEMENTAL INDENTURE FURTHER WITNESSETH:
It is hereby covenanted that all bonds secured by the Mortgage and
indentures supplemental thereto with the coupons appertaining thereto, are
issued to and accepted by each and every holder thereof, and that the
property aforesaid and all other property subject to the lien of the
Mortgage and indentures supplemental thereto is held by or hereby conveyed
to the Trustee, under and subject to the trusts, conditions and limitations
set forth in the Mortgage and indentures supplemental thereto and upon and
subject to the further trusts, conditions and limitations hereinafter set
forth, as follows, to wit:
ARTICLE I.
AMENDMENTS OF MORTGAGE
Article II of the Ninth Supplemental Indenture to the Mortgage, as
heretofore amended, is hereby further amended as follows:
By deleting from paragraph (d) of Section 5 and from the first clause
of Section 9, the following:
"or 5-5/8% Series due 2001"
and by inserting in lieu thereof, in both instances, the following:
", 5-5/8% Series due 2001 or Medium-Term Note Series B"
ARTICLE II.
BONDS OF THE MEDIUM-TERM NOTE SERIES B
Section 1. The bonds of the Medium-Term Note Series B shall be
designated as "PECO Energy Company First and Refunding Mortgage Bonds,
Medium-Term Note Series B," subject however, to the provisions of Section 2
of Article I of the Mortgage, as amended, and are issuable only as
registered bonds without coupons, substantially in the form hereinbefore
recited; and the issue thereof shall be limited to $250,000,000 principal
amount. The bonds of said series shall be redeemable as provided in
Article IV of this Supplemental Indenture.
The bonds of such series shall bear interest from the date thereof and
shall be dated as of the interest payment date to which interest was paid
on the bond or bonds in exchange for which such bond is being issued unless
(a) such date of issue is an interest payment date to which interest was
paid or (b) issued prior to the occurrence of the first interest payment
date for such bond, in which event such bonds shall be dated the date of
authentication. The bonds of said series shall mature on July 1, 2025.
<PAGE>
18
The bonds of the Medium-Term Note Series B shall bear interest
(computed on the basis of a 360-day year of twelve 30-day months) at the
rate of 10 percent per annum, payable on January 1 and July 1 (each, an
interest payment date) of each year commencing with the interest payment
date following the date of authentication, until the Company's obligation
with respect to the payment of the principal thereof shall have been
discharged; provided, however, that if the date of authentication of a bond
is between the fifteenth day of the calendar month preceding an interest
payment date and the interest payment date, interest payments on such bond
shall commence on the second interest payment date following the date of
authentication. Both principal and interest on bonds of such series shall
be payable at the office or agency of the Company in the City of
Philadelphia, Pennsylvania, or, at the option of the holder, at the office
or agency of the Company in the Borough of Manhattan, The City of New York,
and shall be payable in such coin or currency of the United States of
America as at the time of payment shall constitute legal tender for the
payment of public and private debts.
The bonds of the Medium-Term Note Series B shall be in denominations of
$1,000 and any larger amount in integral multiples of $1,000.
Section 2. The Company may fix a date, not more than fourteen calendar
days prior to any interest payment date, as a record date for determining
the registered holder of each bond of Medium-Term Note Series B entitled to
such interest payment, in which case only the registered holder of such
bond on such record date shall be entitled to receive such payment,
notwithstanding any transfer of such bond upon the registration books
subsequent to such record date.
Section 3. The bonds of the Medium-Term Note Series B shall be issued
under and subject to all of the terms and provisions of the Mortgage, of
the indentures supplemental thereto referred to in the recitals hereof and
of this Supplemental Indenture which may be applicable to said bonds or
applicable to all bonds issued under the Mortgage and indentures
supplemental thereto.
ARTICLE III.
ISSUE AND AUTHENTICATION OF BONDS OF THE
MEDIUM-TERM NOTE SERIES B
In addition to any bonds of any series which may from time to time be
executed by the Company and authenticated and delivered by the Trustee upon
compliance with the provisions of the Mortgage and/or of any indenture
supplemental thereto, bonds of the Medium-Term Note Series B of an
aggregate principal amount not exceeding
<PAGE>
19
$250,000,000 shall forthwith be executed by the Company and deposited
with the Trustee for safekeeping in accordance with Section 6 of Article II
of the Mortgage, as amended, pursuant to a resolution of the Board of
Directors of the Company and the written order of the President, a Vice
President, or the Treasurer of the Company, under the terms and provisions
of paragraph (c) of Section 3 of Article II of the Mortgage, as amended;
provided, that the Trustee shall have obtained all documents required for
the authentication and delivery of such bonds pursuant to paragraph (c) of
Section 3 of Article II of the Mortgage, as amended, except the opinion
required by paragraph (4) of Section 6 of Article II of the Mortgage, as
amended; and in lieu of such opinion, the Trustee shall have received the
opinion specified in such paragraph to be given when bonds are to be
deposited with the Trustee.
Section 2. After such deposit, the Trustee, whether or not this
Supplemental Indenture shall have been recorded, shall authenticate bonds
of such series upon receipt of (i) a written order of the President, a Vice
President, or the Treasurer of the Company specifying the principal amount
of bonds of such series to be authenticated and the authentication date,
(ii) an opinion of counsel pursuant to paragraphs (4) and (6) of Section 6
of Article II of the Mortgage, as amended, which opinion shall also confirm
the opinion of counsel delivered to the Trustee in connection with said
deposit, (iii) a Secretary's certificate, as of the date of such
authentication, confirming that the resolutions delivered to the Trustee in
connection with said deposit have not been rescinded and remain in full
force and effect, and (iv) certificates of appropriate officers pursuant to
paragraphs (3) and (6) of Section 6 of Article II of the Mortgage, as
amended, or as otherwise needed to confirm the correctness of the documents
delivered as of the date of such deposit of such bonds; provided, that if
any of such documents are incorrect as of any such date of authentication
or must otherwise be modified to meet the requirements of authentication
and delivery pursuant to paragraph (c) of Section 3 of Article II of the
Mortgage, as amended, such correction and modification shall be made by the
Company in order to deliver to the Trustee the documents required by this
Article III and the other applicable provisions of the Mortgage, as
amended.
ARTICLE IV.
REDEMPTION OF BONDS OF THE
MEDIUM-TERM NOTE SERIES B
Section 1. The bonds of the Medium-Term Note Series B shall be
redeemable, at the option of the Company, as a whole or in part, at any
time upon notice sent by the Company through the mail, postage prepaid, at
least thirty days and not more than forty-five
<PAGE>
20
days prior to the date fixed for redemption, to the registered holder
of each bond to be redeemed in whole or in part, addressed to such holder
at his address appearing upon the registration books, at a redemption price
(of 100% of the principal amount), together with accrued interest to the
date fixed for redemption.
Section 2. In case the Company shall desire to exercise such right to
redeem and pay off all or any part of such bonds of the Medium-Term Note
Series B as hereinbefore provided it shall comply with all the terms and
provisions of Article III of the Mortgage, as amended, applicable thereto,
and such redemption shall be made under and subject to the terms and
provisions of Article III and in the manner and with the effect therein
provided, but at the time or times and upon mailing of notice, all as
hereinbefore set forth in Section 1 of this Article. No publication of
notice of any redemption of any bonds of the Medium-Term Note Series B
shall be required.
ARTICLE V.
CERTAIN EVENTS OF DEFAULT; REMEDIES
Section 1. So long as any bonds of the Medium-Term Note Series B remain
outstanding, in case one or more of the following events shall happen, such
events shall, in addition to the events of default heretofore enumerated in
paragraphs (a) through (d) of Section 2 of Article VIII of the Mortgage,
constitute an "event of default" under the Mortgage, as fully as if such
events were enumerated therein:
(e) default shall be made in the due and punctual payment of the
principal (including the full amount of any applicable optional
redemption price) of the bond or bonds of the Medium-Term Note Series
B, whether at the maturity of said bonds, or at a date fixed for
redemption of said bonds, or any of them, or by declaration as
authorized by the Mortgage;
Section 2. So long as any bonds of the Medium-Term Note Series B remain
outstanding, Section 10 of Article VIII of the Mortgage, as heretofore
amended, is hereby further amended by inserting in the first paragraph of
such Section 10, immediately after the words "as herein provided," at the
end of clause (2) thereof, the following:
"or (3) in case default shall be made in any payment of any
interest on any bond or bonds secured by this indenture or in the
payment of the principal (including the applicable optional redemption
price) of any bond or bonds secured by this indenture, where such
default is not of the character referred to in clause (1) or (2) of
this Section 10 but constitutes an event of default within the meaning
of Section 2 of this Article VIII."
<PAGE>
21
ARTICLE VI.
CREDITS WITH RESPECT TO PRINCIPAL
OF AND INTEREST ON
BONDS OF THE MEDIUM-TERM NOTE SERIES B
AUTHORIZED HEREBY
Section 1. In addition to any other credit, payment or satisfaction to
which the Company is entitled with respect to the bonds of the Medium-Term
Note Series B, the Company shall be entitled to credits against amounts
otherwise payable in respect of the bonds of the Medium-Term Note Series B
in an amount corresponding to (i) the principal amount of any Series B
Notes surrendered to the Note Trustee by the Company, or purchased by the
Note Trustee, for cancellation, (ii) the amount of money held by the Note
Trustee and available and designated for the payment of principal or
redemption price (other than premium) of, and/or interest on, the Series B
Notes, regardless of the source of payment to the Note Trustee of such
moneys and (iii) interest due on the bonds of the Medium-Term Note Series B
in excess of interest due on the Series B Notes. The Note Trustee shall
make notation on such bonds authorized hereby of any such credit under
clause (iii) above.
Section 2. The cancellation and delivery by the Note Trustee to the
Trustee of bonds of the Medium-Term Note Series B under clause (i) or (ii)
of Section 1 of Article VI hereof, or the notation on such bonds under
clause (iii) of Section 1 of Article VI hereof shall be conclusive evidence
of a credit under Section 1 of Article VI hereof, and the Trustee shall
accept such cancellation and delivery or notation as such evidence without
further investigation or verification of the matters stated herein.
ARTICLE VII.
CONCERNING THE TRUSTEE
The Trustee hereby accepts the trust herein declared and provided and
agrees to perform the same upon the terms and conditions set forth in the
Mortgage, as amended and supplemented, and upon the following terms and
conditions:
The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity of this Supplemental Indenture or the due execution
hereof by the Company or for or in respect of the recitals contained
herein, all of which recitals are made by the Company solely.
<PAGE>
22
ARTICLE VIII.
MISCELLANEOUS
Section 1. Unless otherwise clearly required by the context, the term
"Trustee," or any other equivalent term used in this Supplemental
Indenture, shall be held and construed to mean the trustee under the
Mortgage for the time being whether the original or a successor trustee.
Section 2. The headings of the Articles of this Supplemental Indenture
are inserted for convenience of reference only and are not to be taken to
be any part of this Supplemental Indenture or to control or affect the
meaning of the same.
Section 3. Nothing expressed or mentioned in or to be implied from this
Supplemental Indenture or in or from the bonds of the Medium-Term Note
Series B is intended, or shall be construed, to give any person or
corporation, other than the parties hereto and their respective successors,
and the holders of bonds secured by the Mortgage and the indentures
supplemental thereto, any legal or equitable right, remedy or claim under
or in respect of such bonds or the Mortgage or any indenture supplemental
thereto, or any covenant, condition or provision therein or in this
Supplemental Indenture contained. All the covenants, conditions and
provisions thereof and hereof are for the sole and exclusive benefit of the
parties hereto and their successors and of the holders of bonds secured by
the Mortgage and indentures supplemental thereto.
Section 4. This Supplemental Indenture may be executed in several
counterparts, each of which shall be an original and all collectively but
one instrument.
Section 5. This Supplemental Indenture is dated and shall be effective
as of July 1, 1994, but was actually executed and delivered on ,
1994.
<PAGE>
23
IN WITNESS WHEREOF, the parties of the first and second parts hereto
have caused their corporate seals to be hereunto affixed and the President
or a Vice President of the party of the first part and the President or a
Vice President of the party of the second part, under and by the authority
vested in them, have hereto affixed their signatures and their Secretaries
or Assistant Secretaries have duly attested the execution hereof the day
of , 1994.
PECO ENERGY COMPANY
By _______________________________________
M. W. Rimerman
Vice President
[SEAL]
Attest ___________________________________
T. D. Cutler
Assistant Secretary
FIRST FIDELITY BANK,
NATIONAL ASSOCIATION,
By _______________________________________
G. J. Rayzis
Vice President
[SEAL]
Attest ___________________________________
J. H. Clapham
Assistant Secretary
<PAGE>
24
COMMONWEALTH OF PENNSYLVANIA
ss.
COUNTY OF PHILADELPHIA
BE IT REMEMBERED, that on the day of , 1994, before me, the
subscriber, a Notary Public in and for said County and Commonwealth,
residing in Philadelphia, personally appeared M. W. Rimerman and T. D.
Cutler, who being duly sworn according to law deposed and said that they
are a Vice President and an Assistant Secretary, respectively, of PECO
Energy Company, a corporation, and that they, being authorized to do so, in
due form of law acknowledged the foregoing Supplemental Indenture to be
their act and deed and desired that the same might be recorded as such.
WITNESS my hand and seal the day and year aforesaid.
<PAGE>
25
COMMONWEALTH OF PENNSYLVANIA
ss.
COUNTY OF PHILADELPHIA
BE IT REMEMBERED, that on the day of , 1994, before me, the
subscriber, a Notary Public in and for said County and Commonwealth,
residing in Philadelphia, personally appeared G. J. Rayzis and J. H.
Clapham, who being duly sworn according to law deposed and said that they
are a Vice President and an Assistant Secretary of First Fidelity Bank,
National Association, a corporation, and that they, being authorized to do
so, in due form of law acknowledged the foregoing Supplemental Indenture to
be their act and deed and desired that the same might be recorded as such.
WITNESS my hand and seal the day and year aforesaid.
I hereby certify that I am not an officer or director of said First
Fidelity Bank, National Association.
<PAGE>
26
CERTIFICATE OF RESIDENCE
First Fidelity Bank, National Association, Mortgagee and Trustee within
named, hereby certifies that its precise residence in the City of
Philadelphia is N.E. Cor. Broad and Walnut Streets in the City of
Philadelphia, Pennsylvania.
FIRST FIDELITY BANK, NATIONAL ASSOCIATION
By ____________________________________________
G. J. Rayzis
Vice President
Exhibit 4(f)-1
===========================================================================
PECO ENERGY COMPANY
(formerly Philadelphia Electric Company)
TO
FIRST FIDELITY BANK, NATIONAL ASSOCIATION
(formerly Fidelity Bank, National Association)
____________________
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF JULY 1, 1994
TO
COLLATERALIZED NOTE INDENTURE
OF
PHILADELPHIA ELECTRIC COMPANY
TO
FIDELITY BANK, NATIONAL ASSOCIATION
TRUSTEE
DATED AS OF OCTOBER 1, 1989
____________________
===========================================================================
<PAGE>
THIS SUPPLEMENTAL INDENTURE dated as of July 1, 1994,
by and between PECO ENERGY COMPANY, a corporation organized and
existing under the laws of the Commonwealth of Pennsylvania
(hereinafter called the "Company"), and FIRST FIDELITY BANK,
NATIONAL ASSOCIATION, a national banking association organized
and existing under the laws of the United States of America
(hereinafter called the "Trustee"), as Trustee under the
Indenture hereinafter mentioned,
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company duly executed and delivered to the
Trustee a certain indenture dated as of October 1, 1989 (herein
called the "Indenture"), to provide for the issue of one or more
series of collateralized notes (herein sometimes called the
"Notes"), issuable as in the Indenture provided, the initial
series of Notes being designated therein as the Collateralized
Series A Medium-Term Notes; and
WHEREAS, effective January 1, 1994, the Company changed
its name from PHILADELPHIA ELECTRIC COMPANY to PECO ENERGY
COMPANY; and
WHEREAS, since the time the Company executed and
delivered the Indenture, the Trustee has restructured and changed
its name to FIRST FIDELITY BANK, NATIONAL ASSOCIATION effective
January 10, 1994; and
WHEREAS, both the Company and the Trustee desire to
amend the Indenture to reflect their current names.
NOW, THEREFORE, this First Supplemental Indenture
Witnesseth:
That for and in consideration of the premises and of
the sum of One Dollar ($1.00) lawful money of the United States
of America to it in hand paid by the Trustee at or before the
execution and delivery of this First Supplemental Indenture, the
receipt whereof is hereby acknowledged, the Company covenants and
agrees with the Trustee, for the equal benefit of all the present
and future holders of the Notes, without preference, priority or
distinction of any of the Notes by reason of difference in series
or priority in time of issuance, negotiation or maturity thereof,
or otherwise, except as permitted by the Indenture and this First
Supplemental Indenture, as follows:
<PAGE>
ARTICLE I
AMENDMENT OF FORM OF NOTE
The following language and form of note shall be added
to the end of Exhibit A of the Indenture:
The following form of note shall apply to all Series A
Notes issued after January 1, 1994:
Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street,
New York, New York) to the Company or its agent for registration
of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust
Company and any payment is made to Cede & Co., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL since the registered owner hereof, Cede & Co.,
has an interest herein.
[Form of Face]
CUSIP NO. PRINCIPAL
REGISTERED NO. AMOUNT
$__________
PECO ENERGY COMPANY
COLLATERALIZED MEDIUM-TERM NOTE, SERIES A
Issue Date: Maturity Date:
Interest Rate: per annum Initial Redemption Date:
Refunding Rate: per annum Limitation Date:
The Redemption Price shall initially be __________ of
the principal amount of this Note and shall decline on each
anniversary of the Initial Redemption Date by _______________ of
the principal amount of this Note until the Redemption Price is
equal to 100% of such principal amount of this Note.
PECO ENERGY COMPANY a corporation duly organized and
existing under the laws of The Commonwealth of Pennsylvania
(hereinafter called the "Company," which term includes any
2
<PAGE>
successor corporation under the Indenture hereinafter referred
to), for value received hereby promises to pay to
or registered assigns, the principal sum of
DOLLARS
on the Maturity Date stated above and to pay interest thereon
from the Issue Date stated above or from the most recent Interest
Payment Date to which interest has been paid or duly provided
for, semi-annually on April 1 and October 1 (an Interest Payment
Date) in each year and on the Maturity Date stated above,
commencing on the first Interest Payment Date succeeding the
Issue Date (provided that if the Issue Date of this Note is
between the Regular Record Date for an Interest Payment Date and
the Interest Payment Date, interest payments on this Note will
commence on the second Interest Payment Date following the Issue
Date), at the Interest Rate per annum shown above until the
principal or Redemption Price hereof is paid or made available
for payment and (to the extent that the payment of such interest
shall be legally enforceable) at the Interest Rate stated on the
face of this Note on any overdue principal and on any overdue
installment of interest. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture hereinafter referred to, be paid to the
Person in whose name this Note (or one or more Predecessor Note)
is registered at the close of business on the Regular Record Date
for such interest, which shall be the March 15 or September 15
(whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Interest payable on the
Maturity Date (except when the Maturity Date occurs on April 1 or
October 1) will be payable upon surrender of the Note to the
Trustee to the registered Holder. Any such interest not so
punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either
be paid to the Person in whose name this Note (or one or more
Predecessor Notes) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders
of Notes of this series not less than 10 days prior to such
Special Record Date, or be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities
exchange on which the Notes of this series may be listed, and
upon such notice as may be required by such exchange, all as more
fully provided in said Indenture.
Payment of the principal of and interest on this Note
will be made in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of
public and private debts. Payments of interest other than
interest payable on the Maturity Date will be made by check
3
<PAGE>
mailed to the registered Holder hereof at the address shown in
the Note Register or, at the option of the registered Holder
hereof, to such other place in the United States of America as
the registered Holder hereof shall designate to the Trustee in
writing. At the request of a registered Holder of at least
$10,000,000 aggregate principal amount of Notes, interest on such
Notes will be payable by wire transfer within the continental
United States in immediately available funds to the bank account
number of such Holder appearing on the Note Register.
The payment amount hereof and interest due on the
Maturity Date (except when such Maturity Date occurs on April 1
or October 1,) will be paid upon Maturity of this Note upon
surrender of this Note at the principal corporate trust office of
First Fidelity Bank, National Association, as Paying Agent, in
Philadelphia, Pennsylvania, or at such other office or agency of
the Paying Agent as the Company shall designate by written notice
to the registered Holder of this Note. The Company and the
Trustee may treat the Person in whose name this Note is
registered as the owner of such Note for the purpose of receiving
payments of principal and interest on this Note and for all
purposes whatsoever.
Reference is hereby made to the further provisions of
this Note set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereof has
been executed by the Trustee referred to on the reverse hereof by
manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed in its corporate name with the
manual or facsimile signature of its Treasurer or Assistant
Treasurer and to be countersigned with the manual or facsimile
signature of its President or Vice President.
Dated:____________________
PECO ENERGY COMPANY
By:___________________________
Treasurer or Assistant
Treasurer
4
<PAGE>
Countersigned:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Notes ___________________________
of the series designated President or Vice President
herein referred to in the
within mentioned Indenture.
FIRST FIDELITY BANK, NATIONAL
ASSOCIATION, as Trustee
By:___________________________
5
<PAGE>
[Form of Reverse of Note]
PECO ENERGY COMPANY
COLLATERALIZED MEDIUM-TERM NOTE, SERIES A
This Collateralized Medium-Term Note, Series A is one
of a duly authorized issue of notes of the Company (herein called
the "Series A Notes"), issued and to be issued under a
Collateralized Note Indenture, dated as of October 1, 1989, as
supplemented by a First Supplemental Indenture dated as of
July 1, 1994 (said Indenture, as so supplemented, being herein
called the "Indenture"), between Philadelphia Electric Company
(former name of the Company) and Fidelity Bank, National
Association (predecessor to First Fidelity Bank, National
Association), as Trustee (herein called the "Trustee," which term
includes any successor trustee under the Indenture).
Concurrently with each issuance of the Series A Notes, the
Company will deliver to the Trustee its First and Refunding
Mortgage Bonds, Medium-Term Note Series A in the principal amount
equal to such Series A Notes and with payment provisions
corresponding to the Series A Notes. Except as otherwise
specified in the Indenture, this Series A Note is entitled to the
benefit of the Indenture equally and ratably both as to principal
(and Redemption Price) and interest with all Notes issued and to
be issued under the Indenture, to which reference is made for a
description of the rights of the holders of the Notes; the
rights, duties and obligations of the Trustee; the provisions
relating to amendments to and modifications of the Indenture; and
the terms and conditions upon which additional Notes may be
issued thereunder. The holder of this Series A Note shall have
no right to enforce the provisions of the Indenture or the First
and Refunding Mortgage Bonds of the Company pledged to the
Trustee thereunder or to institute action to enforce the
covenants thereof or rights or remedies thereunder except as
provided in the Indenture.
This Note is subject to redemption upon not less than
30 nor more than 45 days' notice prior to the date fixed for
redemption by mail, at any time as a whole or in part, on or
after the Initial Redemption Date, if any, specified on the face
hereof, at the option of the Company, at the Redemption Prices,
if any, specified on the face hereof (expressed in percentages of
the principal amount), and thereafter at a Redemption Price equal
to 100% of the principal amount of this Note, together with
accrued interest to the Redemption Date, but interest
installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of this Note, or
one or more Predecessor Notes, of record at the close of business
6
<PAGE>
on the relevant Record Dates referred to on the face hereof, all
as provided in the Indenture. Unless an Initial Redemption Date
is specified on the face hereof, this Note is not subject to
redemption prior to maturity at the option of the Company.
Notwithstanding the foregoing, the Company may not,
prior to the Limitation Date specified on the face hereof, if
any, redeem this Note as contemplated by the next preceding
paragraph as a part of, or in anticipation of, any refunding
operation by the application, directly or indirectly, of monies
borrowed having an interest cost to the Company (calculated in
accordance with generally accepted financial practice) of less
than the Refunding Rate specified on the face hereof, if any.
In any case where any Interest Payment Date or the
Maturity Date of this Note shall not be a Business Day, then
(notwithstanding any other provision hereof or of the Indenture)
the payment of interest and/or of principal need not be made on
such date, but may be made on the next succeeding Business Day
with the same force and effect as if made on such Interest
Payment Date or at the Maturity Date, and no interest shall
accrue with respect to such payment for the period from and after
such Interest Payment Date or Maturity Date to such next
succeeding Business Day.
If an Event of Default with respect to Notes issued
under the Indenture shall occur and be continuing, the principal
of all of the Notes issued under the Indenture may be declared
due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the
Holders of the Notes of each series to be affected under the
Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the
Notes at the time Outstanding, if all series of Notes Outstanding
are affected, or the Holders of a majority in aggregate principal
amount of all series to be affected in case one or more, but less
than all, of the series of Outstanding Notes are affected. The
Indenture also contains provisions permitting the Holders of a
majority in principal amount of all Notes Outstanding of all
series affected, to waive compliance by the Company with certain
provisions of the Indenture. Certain past defaults in payments
of principal or interest can be waived by a majority in aggregate
principal amount of all Notes Outstanding with respect to which
such default exists and other events of default can be waived by
a majority in aggregate principal amount of all Notes
Outstanding. The Trustee may also, in its discretion, waive
certain defaults and their consequences. Any such consent or
7
<PAGE>
waiver by the Holder of this Note or the Trustee shall be
conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon
this Note.
No reference herein to the Indenture and no provision
of this Note or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and interest on this Note at the times,
place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note is
registerable in the Note Register, upon surrender of this Note
for registration of transfer at the office or agency of the
Company in any place where the principal of and interest on this
Note are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and
the Note Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more
Series A Notes, of like tenor and authorized denominations and
for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Series A Notes are issuable only in registered form
without coupons in minimum denominations of $100,000 and any
integral multiple of $1,000 if in excess thereof. As provided in
the Indenture and subject to certain limitations therein set
forth, Series A Notes are exchangeable for a like aggregate
principal amount of Series A Notes of like tenor and a different
authorized denomination, as requested by the Holder surrendering
the same; provided, however, that the Company shall not be
required to issue any Series A Notes of a denomination less than
$1,000.
No service charge shall be made for any such
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
All terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
This Note shall be governed by and construed in
accordance with the laws of The Commonwealth of Pennsylvania.
8
<PAGE>
ARTICLE II
MISCELLANEOUS
-------------
SECTION 1. Unless otherwise clearly required by the
context, the term, "Trustee," or any other equivalent term used
in this First Supplemental Indenture shall be held and construed
to mean the trustee under the Indenture for the time being
whether the original or a successor trustee.
SECTION 2. The headings of the Articles of this First
Supplemental Indenture are inserted for convenience of reference
only and are not to be taken to be any part of this First
Supplemental Indenture or to control or affect the meaning of the
same.
SECTION 3. Nothing expressed or mentioned in or to be
implied from this First Supplemental Indenture or in or from the
Series A Notes is intended, or shall be construed, to give any
person or corporation, other than the parties hereto and their
respective successors and the holders of Notes issued under the
Indenture and the indentures supplemental thereto, any legal or
equitable right, remedy or claim under or in respect of such
Notes or the Indenture or any indenture supplemental thereto, or
any covenant, condition or provision therein or in this First
Supplemental Indenture contained; all the covenants, conditions
and provisions thereof and hereof being for the sole and
exclusive benefit of the parties hereto and their successors and
of the holders of Notes issued under the Indenture and the
indentures supplemental thereto.
SECTION 4. This First Supplemental Indenture may be
executed in several counterparts, each of which shall be an
original and all collectively but one instrument.
SECTION 5. This First Supplemental Indenture is dated
as of July 1, 1994, but was actually executed and delivered on
July 5, 1994.
9
<PAGE>
IN WITNESS WHEREOF, PECO Energy Company and First
Fidelity Bank, National Association, have caused this First
Supplemental Indenture to be duly executed, their respective
corporate seals to be hereunto affixed and attested, all as of
the day and year first above written.
PECO ENERGY COMPANY
/s/ MORTON W. RIMERMAN
By:___________________________
Morton W. Rimerman
Vice President
Attest:
/s/ TODD D. CUTLER
______________________________
Todd D. Cutler, Assistant
Secretary
[SEAL]
FIRST FIDELITY BANK, NATIONAL
ASSOCIATION
/s/ J. H. CLAPHAM
By:____________________________
J. H. Clapham
Assistant Vice President
Attest:
/s/ ALAN G. FINN
_________________________________
Alan G. Finn
Assistant Secretary
[SEAL]
10
<PAGE>
COMMONWEALTH OF PENNSYLVANIA :
: ss.
COUNTY OF PHILADELPHIA :
BE IT REMEMBERED, that on the 1st day of July, 1994,
before me, the undersigned officer, personally appeared Todd D.
Cutler, who being duly sworn according to law doth depose and say
that she was personally present and did see the common or
corporate seal of the above named PECO Energy Company affixed to
the foregoing First Supplemental Indenture, that the seal so
affixed is the common or corporate seal of the said PECO Energy
Company, and was so affixed by the authority of the said
corporation as the act and deed thereof; that the above named
Morton W. Rimerman, is Vice-President of the said corporation,
and did sign the said First Supplemental Indenture as such in the
presence of this deponent. That this deponent is Assistant
Secretary of the said corporation, and that the name of this
deponent, above signed in attestation of the due execution of the
said First Supplemental Indenture is of this deponent's own
proper handwriting.
Sworn to and subscribed before me the day and year
aforesaid.
[SEAL] /s/ CAROL A. WALTON
___________________________
Carol A. Walton
Notary Public, Philadelphia, Philadelphia Co.
My Commission Expires August 26, 1996
11
<PAGE>
COMMONWEALTH OF PENNSYLVANIA :
: ss.
COUNTY OF PHILADELPHIA :
BE IT REMEMBERED, that on the 5th day of July, 1994,
before me, the undersigned officer, personally appeared John H.
Clapham, who being duly sworn according to law doth depose and
say that he was personally present and did see the common or
corporate seal of the above named First Fidelity Bank, National
Association, affixed to the foregoing First Supplemental
Indenture, that the seal so affixed is the common or corporate
seal of the said First Fidelity Bank, National Association, and
was so affixed by the authority of the said corporation as the
act and deed thereof; that the above named Alan G. Finn is
Assistant Vice President of the said corporation, and did sign
the said First Supplemental Indenture as such in the presence of
this deponent. That this deponent is an Assistant Secretary of
the said corporation, and that the name of this deponent, above
signed in attestation of the due execution of the said First
Supplemental Indenture is of this deponent's own proper
handwriting.
Sworn to and subscribed before me the day and year
aforesaid.
I hereby certify that I am not a stockholder, officer
or director of said First Fidelity Bank, National Association.
[SEAL] /s/ AIDA B. DALES
___________________________
Aida B. Dales
Notary Public, Philadelphia, Philadelphia Co.
My Commission Expires November 22, 1997
12
Exhibit 4(F)-2
===========================================================================
PECO ENERGY COMPANY
TO
FIRST FIDELITY BANK, NATIONAL ASSOCIATION
--------------------
SECOND SUPPLEMENTAL INDENTURE
DATED AS OF JULY 1, 1994
TO
COLLATERALIZED NOTE INDENTURE
OF
PHILADELPHIA ELECTRIC COMPANY
TO
FIDELITY BANK, NATIONAL ASSOCIATION
TRUSTEE
DATED AS OF OCTOBER 1, 1989
--------------------
MEDIUM-TERM NOTES, SERIES B
===========================================================================
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . 2
ARTICLE II
THE SERIES B NOTES
SECTION 2.01. Terms of The Series B Notes . . . . . . . . . . 3
SECTION 2.02 Compliance with Terms of Indenture. . . . . . . 5
ARTICLE III
ISSUANCE OF SERIES B NOTES
SECTION 3.01. Issuance of Series B Notes. . . . . . . . . . . 5
ARTICLE IV
REDEMPTION OF NOTES
SECTION 4.01. Redemption of Series B Notes. . . . . . . . . . 7
SECTION 4.02. Compliance with Terms of Indenture. . . . . . . 7
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Not Responsible for Recitals. . . . . . . . . . 7
SECTION 8.02. Qualification Under Trust Indenture
Act of 1939. . . . . . . . . . . . . . . . . . 7
ARTICLE XIII
MISCELLANEOUS
SECTION 13.01. Use of Term "Trustee". . . . . . . . . . . . . 8
SECTION 13.02. Confirmation of Indenture. . . . . . . . . . . 8
SECTION 13.03. Headings . . . . . . . . . . . . . . . . . . . 8
(i)
<PAGE>
SECTION 13.04. Benefits of Indenture. . . . . . . . . . . . . 8
SECTION 13.05. Counterparts . . . . . . . . . . . . . . . . . 8
SECTION 13.06. Date of Indenture. . . . . . . . . . . . . . . 8
- ---------------
NOTE: This table of contents shall not, for any purpose, be
deemed to be part of the Second Supplemental Indenture
to the Collateralized Note Indenture.
(ii)
<PAGE>
THIS SUPPLEMENTAL INDENTURE dated as of July 1, 1994,
by and between PECO ENERGY COMPANY, a corporation organized and
existing under the laws of the Commonwealth of Pennsylvania
(hereinafter called the "Company"), and FIRST FIDELITY BANK,
NATIONAL ASSOCIATION, a national banking association organized
and existing under the laws of the United States of America
(hereinafter called the "Trustee"), as Trustee under the
Indenture hereinafter mentioned,
RECITALS:
---------
A. The Company duly executed and delivered to the
Trustee a Collateralized Note Indenture dated as of October 1,
1989 (the "Original Indenture"), as amended by a First
Supplemental Indenture dated as of July 1, 1994 (the Original
Indenture, as so amended, and as supplemented by this Second
Supplemental Indenture, herein called the "Indenture"), to
provide for the issue of one or more series of collateralized
notes (herein sometimes called the "Notes"), issuable as in the
Indenture provided, the initial series of Notes being designated
therein as the Collateralized Medium-Term Notes, Series A; and
B. The only Notes presently outstanding under the
Indenture are $85,000,000 principal amount of the collateralized
Medium-Term Notes, Series A; and
C. The Company deems it necessary to borrow money for
its corporate purposes and to issue its Notes therefor, and has
determined, pursuant to Article III of the Original Indenture, to
create a new series of Notes to be issued under the Indenture,
such series to be designated the Company's Collateralized
Medium-Term Notes, Series B (hereinafter sometimes called the
"Series B Notes"); and
D. The Company has determined by proper corporate
action that the terms, provisions and form of the Series B Notes
shall be substantially as set forth in Exhibit A hereto; and
E. In accordance with Section 3.02(a)(ii) of the
Original Indenture, the Company has delivered to the Trustee an
executed counterpart of the Ninety-sixth Supplemental Indenture
to the Company's Mortgage creating a series of Mortgage Bonds
meeting the requirements of Section 3.02(a)(ii) of the Original
Indenture; and
F. All acts and things necessary to make the Series B
Notes, when duly executed by the Company and authenticated and
delivered by the Trustee as provided in the Indenture, and issued
<PAGE>
by the Company, the valid, binding, and legal obligations of the
Company, and this Second Supplemental Indenture a valid and
enforceable supplement to the Indenture, have been done and
performed:
NOW, THEREFORE, this Second Supplemental Indenture
Witnesseth:
The Company, to provide for the payment of principal or
redemption price (as the case may be) in respect of all Notes
issued and to be issued and outstanding under the Indenture and
any indentures supplemental thereto, together with interest
thereon, the rights of the holders thereof and the performance of
the covenants contained in the Notes and the Indenture, will
deliver to the Trustee, registered in the Trustee's name, the
Company's First and Refunding Mortgage Bonds, Medium-Term Note,
Series B, as required under Article III of the Original Indenture
and the Company does hereby, in confirmation of the Original
Indenture, sell, assign, transfer, set over, pledge unto and
grant a first priority security interest in its First and
Refunding Mortgage Bonds, Medium-Term Note, Series B, issued from
time to time and in such other Mortgage Bonds as are delivered to
the Trustee from time to time under the Indenture.
NOW, THEREFORE, this Second Supplemental Indenture
further Witnesseth:
That for and in consideration of the premises and of
the sum of One Dollar ($1.00) lawful money of the United States
of America to it in hand paid by the Trustee at or before the
execution and delivery of this Second Supplemental Indenture, the
receipt whereof is hereby acknowledged, the Company covenants and
agrees with the Trustee, for the equal benefit of all the present
and future holders of the Notes, without preference, priority or
distinction of any of the Notes by reason of difference in series
or priority in time of issuance, negotiation or maturity thereof,
or otherwise, except as permitted by the Indenture, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. For purposes of this
Second Supplemental Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) each of the terms defined in this Article has
the meaning assigned to it in this Article and includes the
plural as well as the singular;
2
<PAGE>
(2) each of the other terms used herein which is
defined in the Trust Indenture Act, either directly or by
reference therein, has the meaning assigned to it therein;
(3) each accounting term not otherwise defined
herein has the meaning assigned to it in accordance with
generally accepted accounting principles in the United
States of America, and, except as otherwise herein expressly
provided, the term "generally accepted accounting
principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as
are generally accepted in the United States of America at
the date of such computation; and
(4) the words, "herein", "hereof" and "hereunder"
and other words of similar import refer to this Second
Supplemental Indenture as a whole and not to any particular
Article, Section or other subdivision.
Each other capitalized terms used herein and not
defined in this Article I has the meaning set forth in the
Indenture.
"Regular Record Date" for the Series B Notes means
June 15 and December 15 of each year.
"Series B First Mortgage Bonds" means the Company's
First and Refunding Mortgage Bonds, Medium-Term Note, Series B,
issued pursuant to the Mortgage and delivered to the Trustee in
accordance with Section 3.01 hereof.
"Series B Notes" means the Company's Collateralized
Medium-Term Notes, Series B, issued from time to time in
accordance with Section 2.01 hereof.
ARTICLE II
THE SERIES B NOTES
SECTION 2.01. Terms of The Series B Notes. The
Series B Notes shall be designated "PECO Energy Company
Collateralized Medium-Term Notes, Series B" and shall be
substantially in the form set forth in Exhibit A to this Second
Supplemental Indenture. The aggregate principal amount of the
Series B Notes shall be limited to Two Hundred and Fifty Million
Dollars ($250,000,000) to be initially authenticated and
delivered from time to time upon delivery to the Trustee of the
items specified in Section 3.01 hereof. Each Series B Note shall
have the Issue Date, bear interest at the fixed rate to maturity
3
<PAGE>
and have the Stated Maturity specified in the Company Request
delivered pursuant to Section 3.01 hereof for that Series B Note;
provided that no Series B Note shall bear interest at a stated
rate in excess of 10% per annum or have a Stated Maturity of less
than nine months after its Issue Date or later than July 1, 2025.
All of the Series B Notes shall be substantially identical except
for the items specified in Section 3.01 hereof.
The Interest Payment Dates for each Series B Note shall
be January 1 and July 1 of each year after the issuance of such
Series B Note and on the Stated Maturity (unless January 1 and
July 1) of such Series B Note; provided that if the Issue Date of
a Series B Note is between the Regular Record Date for an
Interest Payment Date and the Interest Payment Date, interest
payments on such Series B Note will commence on the second
Interest Payment Date following the Issue Date.
The "Paying Agent" for the Series B Notes shall be
First Fidelity Bank, National Association and the Place of
Payment shall be the principal corporate trust office of First
Fidelity Bank, National Association.
The "Note Registrar" for the purpose of registering the
Series B Notes and transfers of the Series B Notes as provided in
the Indenture shall be First Fidelity Bank, National Association.
Each Series B Note shall bear interest from its Issue
Date or from the most recent Interest Payment Date to which
interest has been paid or duly provided for with respect to such
Series B Note; except that, so long as there is no existing
Defaulted Interest on the Series B Notes, any Series B Note
authenticated by the Trustee between the Regular Record Date for
any Interest Payment Date and such Interest Payment Date shall
bear interest from such Interest Payment Date; provided, however,
that if and to the extent the Company shall default in payment of
the interest due on such Interest Payment Date, then any such
Series B Notes shall bear interest to that extent from the most
recent Interest Payment Date to which interest has been paid or
duly provided for with respect to such Series B Note, or, if no
interest has been paid, then from the Issue Date of such Series B
Note.
Overdue principal and interest on any Series B Note
shall bear interest (to the extent that the payment of such
interest shall be legally enforceable) at a rate per annum equal
to the interest rate per annum payable on such Series B Note.
Interest on the Series B Notes shall be computed on the
basis of a 360-day year of twelve 30-day months.
4
<PAGE>
The Series B Notes shall be issuable only in registered
form in denominations of $1,000 and any integral multiples
thereof.
SECTION 2.02. Compliance with Terms of Indenture. The
Series B Notes shall be issued under and subject to all of the
terms and provisions of the Indenture and of this Second
Supplemental Indenture which may be applicable to the Series B
Notes or applicable to all Notes issued under the Indenture.
ARTICLE III
ISSUANCE OF SERIES B NOTES
SECTION 3.01. Issuance of Series B Notes. In
accordance with Section 3.02(b) of the Original Indenture, the
Series B Notes may be issued from time to time by the Company,
and the Trustee shall authenticate such Series B Notes, but only
upon receipt of the following:
(a) a Company Request specifying the following
matters with respect to the Series B Notes to be issued:
(i) the principal amount;
(ii) the interest rate;
(iii) the Issue Date;
(iv) the Stated Maturity;
(v) the redemption periods and Redemption
Prices, if any;
(vi) the periods during which the Series B
Notes will not be refundable, if any;
Unless otherwise specified in the Company Request, the
Series B Notes shall be issued as global Notes to The
Depository Trust Company or its nominee. If any Series B
Notes are not to be so issued, the Company request shall
also specify:
(vii) the registered Holder; and
(viii) delivery instructions.
(b) an Officer's Certificate stating that no
Event of Default has occurred and is continuing and that the
5
<PAGE>
conditions precedent under the Indenture for the issuance of
such Series B Notes have been met;
(c) an Opinion of Counsel that the Series B Notes
to be issued have been duly authorized, executed and
delivered by the Company and, when authenticated by the
Trustee, will be legal, valid and binding obligations of the
Company, entitled to the benefits of the Indenture and that
the conditions precedent under the Indenture for the
issuance of such Series B Notes have been met; and
(d) Series B First Mortgage Bonds in the
principal amount of the Series B Notes to be issued
registered in the name of the Trustee.
ARTICLE IV
REDEMPTION OF SERIES B NOTES
SECTION 4.01. Redemption of Series B Notes. The
Series B Notes issued from time to time pursuant to Section 3.01
hereof shall be redeemable at the option of the Company, in
accordance with the terms hereof, as a whole or in part, as
provided in the form of Series B Notes, at the times, if any, and
the Redemption Prices, if any, and with the nonrefunding periods,
if any, specified in the Company Request.
SECTION 4.02. Compliance with Terms of Indenture. In
case the Company shall desire to exercise such right to redeem
and pay off all or any part of said Series B Notes as
hereinbefore provided, it shall comply with all the terms and
provisions of Article IV of the Indenture applicable thereto, and
such redemption shall be made under and subject to the terms and
provisions of said Article IV and in the manner and with the
effect therein provided, but at the time or times and at the
respective redemption rates and upon mailing of notice, all as
hereinbefore set forth in Section 4.01 of this Article.
ARTICLE IV
CONCERNING THE TRUSTEE
The Trustee hereby accepts the trust herein declared
and provided and agrees to perform the same upon the terms and
conditions set forth in the Indenture, as supplemented by this
Second Supplemental Indenture, and upon the following terms and
conditions:
6
<PAGE>
SECTION 5.01. Not Responsible for Recitals. The
Trustee shall not be responsible in any manner whatsoever for or
in respect of the validity or sufficiency of this Second
Supplemental Indenture or the due execution thereof by the
Company or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Company.
SECTION 5.02. Qualification Under Trust Indenture Act
of 1939. The Trustee hereby acknowledges that the Company
proposes to qualify this Second Supplemental Indenture under the
Trust Indenture Act of 1939.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.01. Use of Term "Trustee". Unless
otherwise clearly required by the context, the term, "Trustee,"
or any other equivalent term used in this Second Supplemental
Indenture shall be held and construed to mean the trustee under
the Indenture for the time being whether the original or a
successor trustee.
SECTION 13.02. Confirmation of Indenture. As
supplemented by this Second Supplemental Indenture, the
Indenture, as previously amended and supplemented, is in all
respects ratified and confirmed, and this Second Supplemental
Indenture shall be read, taken and construed as a part of the
Indenture so that all of the rights, remedies, terms, conditions,
covenants and agreements of the Indenture shall apply and remain
in full force and effect with respect to this Second Supplemental
Indenture and to the Series B Notes issued hereunder.
SECTION 13.03. Headings. The headings of the Articles
and Sections of this Second Supplemental Indenture and the Table
of Contents are inserted for convenience of reference only and
are not to be taken to be any part of this Second Supplemental
Indenture or to control or affect the meaning of the same.
SECTION 13.04. Benefits of Indenture. Nothing
expressed or mentioned in or to be implied from this Second
Supplemental Indenture or in or from the Series B Notes is
intended, or shall be construed, to give any person or
corporation, other than the parties hereto and their respective
successors and the holders of Notes issued under the Indenture
and the indentures supplemental thereto, any legal or equitable
right, remedy or claim under or in respect of such Series B Notes
or the Indenture or any indenture supplemental thereto, or any
covenant, condition or provision therein or in this Second
7
<PAGE>
Supplemental Indenture contained; all the covenants, conditions
and provisions thereof and hereof being for the sole and
exclusive benefit of the parties hereto and their successors and
of the holders of Notes issued under the Indenture and the
indentures supplemental thereto.
SECTION 13.05. Counterparts. This Second Supplemental
Indenture may be executed in several counterparts, each of which
shall be an original and all collectively but one instrument.
SECTION 13.06. Date of Indenture. This Second
Supplemental Indenture is dated as of July 1, 1994, but was
actually executed and delivered on ________, 1994.
8
<PAGE>
IN WITNESS WHEREOF, PECO Energy Company and First
Fidelity Bank, National Association, have caused this Second
Supplemental Indenture to be duly executed, their respective
corporate seals to be hereunto affixed and attested, all as of
the day and year first above written.
PECO ENERGY COMPANY
By:___________________________
M.W. Rimerman,
Vice President
Attest:
______________________________
T.D. Cutler,
Assistant Secretary
[SEAL]
FIRST FIDELITY BANK, NATIONAL
ASSOCIATION
By:___________________________
G.J. Rayzis, Vice President
Attest:
______________________________
J.H. Clapham,
Assistant Secretary
[SEAL]
9
<PAGE>
COMMONWEALTH OF PENNSYLVANIA
ss.
COUNTY OF PHILADELPHIA
BE IT REMEMBERED, that on the ____ day of __________,
1994, before me, the subscriber, a Notary Public in and for said
County and commonwealth, residing in Philadelphia, personally
appeared M.W. Rimerman and T.D. Cutler, who being duly sworn
according to law deposed and said that they are a Vice President
and an Assistant Secretary, respectively, of PECO Energy Company,
a corporation, and that they, being authorized to do so, in due
form of law acknowledged the foregoing Supplemental Indenture to
be their act and deed and desired that the same might be recorded
as such.
WITNESS my hand and seal the day and year aforesaid.
10
<PAGE>
COMMONWEALTH OF PENNSYLVANIA :
: ss.
COUNTY OF PHILADELPHIA :
BE IT REMEMBERED, that on the ____ day of
______________, 1994, before me, the subscriber, a Notary Public
in and for said County and Commonwealth, residing in
Philadelphia, personally appeared G.J. Rayzis and J.H. Clapham,
who being duly sworn according to law deposed and said that they
are a Vice President and an Assistant Secretary of First Fidelity
Bank, National Association, a corporation, and that they, being
authorized to do so, in due form of law acknowledged the
foregoing Supplemental Indenture to be their act and deed and
desired that the same might be recorded as such.
WITNESS my hand and seal the day and year aforesaid.
I hereby certify that I am not an officer or director
of said First Fidelity Bank, National Association.
11
<PAGE>
EXHIBIT A
Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street,
New York, New York) to the Company or its agent for registration
of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust
Company and any payment is made to Cede & Co., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL since the registered owner hereof, Cede & Co.,
has an interest herein.
[Form of Face]
CUSIP NO. PRINCIPAL
REGISTERED NO. AMOUNT
$__________
PECO ENERGY COMPANY
COLLATERALIZED MEDIUM-TERM NOTE, SERIES B
Issue Date: Maturity Date:
Interest Rate: per annum Initial Redemption Date:
Refunding Rate: per annum Limitation Date:
The Redemption Price shall initially be __________ of
the principal amount of this Note and shall decline on each
anniversary of the Initial Redemption Date by _______________ of
the principal amount of this Note until the Redemption Price is
equal to 100% of such principal amount of this Note.
PECO ENERGY COMPANY, a corporation duly organized and
existing under the laws of The Commonwealth of Pennsylvania
(hereinafter called the "Company," which term includes any
successor corporation under the Indenture hereinafter referred
to), for value received hereby promises to pay to
or registered assigns, the principal sum of
DOLLARS
on the Maturity Date stated above and to pay interest thereon
from the Issue Date stated above or from the most recent Interest
Payment Date to which interest has been paid or duly provided
for, semi-annually on January 1 and July 1 (an Interest Payment
Date) in each year and on the Maturity Date stated above,
A-1
<PAGE>
commencing on the first Interest Payment Date succeeding the
Issue Date (provided that if the Issue Date of this Note is
between the Regular Record Date for an Interest Payment Date and
the Interest Payment Date, interest payments on this Note will
commence on the second Interest Payment Date following the Issue
Date), at the Interest Rate per annum shown above until the
principal or Redemption Price hereof is paid or made available
for payment and (to the extent that the payment of such interest
shall be legally enforceable) at the Interest Rate stated on the
face of this Note on any overdue principal and on any overdue
installment of interest. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture hereinafter referred to, be paid to the
Person in whose name this Note (or one or more Predecessor Notes)
is registered at the close of business on the Regular Record Date
for such interest, which shall be the June 15 or December 15
(whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Interest payable on the
Maturity Date (except when the Maturity Date occurs on January 1
or July 1) will be payable upon surrender of the Note to the
Trustee to the registered Holder. Any such interest not so
punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either
be paid to the Person in whose name this Note (or one or more
Predecessor Notes) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders
of Notes of this series not less than 10 days prior to such
Special Record Date, or be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities
exchange on which the Notes of this series may be listed, and
upon such notice as may be required by such exchange, all as more
fully provided in said Indenture.
Payment of the principal of and interest on this Note
will be made in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of
public and private debts. Payments of interest other than
interest payable on the Maturity Date will be made by check
mailed to the registered Holder of this Note on the Regular
Record Date preceding such Interest Payment Date at the address
shown in the Note Register or, at the option of the registered
Holder hereof, to such other place in the United States of
America as the registered Holder hereof shall designate to the
Trustee in writing. At the request of a registered Holder of at
least $10,000,000 aggregate principal amount of Notes, interest
on such Notes will be payable by wire transfer within the
continental United States in immediately available funds to the
bank account number of such Holder appearing on the Note
Register.
A-2
<PAGE>
The payment amount hereof and interest due on the
Maturity Date (except when such Maturity Date occurs on January 1
or July,) will be paid upon Maturity of this Note upon surrender
of this Note at the principal corporate trust office of First
Fidelity Bank, National Association, as Paying Agent, in
Philadelphia, Pennsylvania, or at such other office or agency of
the Paying Agent as the Company shall designate by written notice
to the registered Holder of this Note. The Company and the
Trustee may treat the Person in whose name this Note is
registered on the Maturity Date as the owner of such Note for the
purpose of receiving payments of principal and interest on this
Note and for all purposes whatsoever.
Reference is hereby made to the further provisions of
this Note set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereof has
been executed by the Trustee referred to on the reverse hereof by
manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed in its corporate name with the
manual or facsimile signature of its Treasurer or Assistant
Treasurer and to be countersigned with the manual or facsimile
signature of its President or Vice President.
Dated:____________________
PECO ENERGY COMPANY
By:___________________________
Treasurer or Assistant
Treasurer
Countersigned:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Notes ___________________________
of the series designated President or Vice President
herein referred to in the
within mentioned Indenture.
FIRST FIDELITY BANK, NATIONAL
ASSOCIATION, as Trustee
By:___________________________
A-3
<PAGE>
[Form of Reverse of Note]
PECO ENERGY COMPANY
COLLATERALIZED MEDIUM-TERM NOTE, SERIES B
This Collateralized Medium-Term Note, Series B, is one
of a duly authorized issue of notes of the Company (herein called
the "Series B Notes"), issued and to be issued under a
Collateralized Note Indenture, dated as of October 1, 1989, as
amended by a First Supplemental Indenture dated as of July 1,
1994 and as supplemented by a Second Supplemental Indenture dated
as of July 1, 1994 (said Indenture, as so amended and
supplemented, being herein called the "Indenture"), between PECO
Energy Company and First Fidelity Bank, National Association, as
Trustee (herein called the "Trustee," which term includes any
successor trustee under the Indenture). Concurrently with each
issuance of the Series B Notes, the Company will deliver to the
Trustee its First and Refunding Mortgage Bonds, Medium-Term Note,
Series B, in the principal amount equal to such Series B Notes
and with payment provisions corresponding to the Series B Notes.
Except as otherwise specified in the Indenture, this Series B
Note is entitled to the benefit of the Indenture equally and
ratably both as to principal (and Redemption Price) and interest
with all Notes issued and to be issued under the Indenture, to
which reference is made for a description of the rights of the
holders of the Notes; the rights, duties and obligations of the
Trustee; the provisions relating to amendments to and
modifications of the Indenture; and the terms and conditions upon
which additional Notes may be issued thereunder. The holder of
this Series B Note shall have no right to enforce the provisions
of the Indenture or the First and Refunding Mortgage Bonds of the
Company pledged to the Trustee thereunder or to institute action
to enforce the covenants thereof or rights or remedies thereunder
except as provided in the Indenture or as otherwise provided by
The Trust Indenture Act of 1939, as amended.
This Note is subject to redemption upon not less than
30 nor more than 45 days' notice prior to the date fixed for
redemption by mail, at any time as a whole or in part, on or
after the Initial Redemption Date, if any, specified on the face
hereof, at the option of the Company, at the Redemption Prices,
if any, specified on the face hereof (expressed in percentages of
the principal amount), and thereafter at a Redemption Price equal
to 100% of the principal amount of this Note, together with
accrued interest to the Redemption Date, but interest
installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of this Note, or
one or more Predecessor Notes, of record at the close of business
A-4
<PAGE>
on the relevant Regular Record Dates referred to on the face
hereof, all as provided in the Indenture. Unless an Initial
Redemption Date is specified on the face hereof, this Note is not
subject to redemption prior to maturity at the option of the
Company.
Notwithstanding the foregoing, the Company may not,
prior to the Limitation Date specified on the face hereof, if
any, redeem this Note as contemplated by the next preceding
paragraph as a part of, or in anticipation of, any refunding
operation by the application, directly or indirectly, of monies
borrowed having an interest cost to the Company (calculated in
accordance with generally accepted financial practice) of less
than the Refunding Rate specified on the face hereof, if any.
In any case where any Interest Payment Date or the
Maturity Date of this Note shall not be a Business Day, then
(notwithstanding any other provision hereof or of the Indenture)
the payment of interest and/or of principal need not be made on
such date, but may be made on the next succeeding Business Day
with the same force and effect as if made on such Interest
Payment Date or at the Maturity Date, and no interest shall
accrue with respect to such payment for the period from and after
such Interest Payment Date or Maturity Date to such next
succeeding Business Day.
If an Event of Default with respect to Notes issued
under the Indenture shall occur and be continuing, the principal
of all of the Notes issued under the Indenture may be declared
due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the
Holders of the Notes of each series to be affected under the
Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the
Notes at the time Outstanding, if all series of Notes Outstanding
are affected, or the Holders of a majority in aggregate principal
amount of all series to be affected in case one or more, but less
than all, of the series of Outstanding Notes are affected. The
Indenture also contains provisions permitting the Holders of a
majority in principal amount of all Notes Outstanding of all
series affected, to waive compliance by the Company with certain
provisions of the Indenture. Certain past defaults in payments
of principal or interest can be waived by a majority in aggregate
principal amount of all Notes Outstanding with respect to which
such default exists and other events of default can be waived by
a majority in aggregate principal amount of all Notes
Outstanding. The Trustee may also, in its discretion, waive
A-5
<PAGE>
certain defaults and their consequences. Any such consent or
waiver by the Holder of this Note or the Trustee shall be
conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon
this Note.
No reference herein to the Indenture and no provision
of this Note or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and interest on this Note at the times,
place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note is
registerable in the Note Register, upon surrender of this Note
for registration of transfer at the office or agency of the
Company in any place where the principal of and interest on this
Note are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and
the Note Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more
Series B Notes, of like tenor and authorized denominations and
for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Series B Notes are issuable only in registered form
without coupons in minimum denominations of $1,000 and any
integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Series B Notes
are exchangeable for a like aggregate principal amount of
Series B Notes of like tenor and a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
All terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
This Note shall be governed by and construed in
accordance with the laws of The Commonwealth of Pennsylvania.
A-6
EXHIBIT 5
BALLARD, SPAHR, ANDREWS & INGERSOLL BALTIMORE, MD
1735 MARKET STREET, 51ST FLOOR CAMDEN, NJ
PHILADELPHIA, PENNSYLVANIA 19103-7599 DENVER, CO
215-665-8500 SALT LAKE CITY, UT
FAX: 215-864-8999 WASHINGTON, DC
August 4, 1994
PECO Energy Company
2301 Market Street
Philadelphia, Pennsylvania 19103
Re: $250,000,000 principal amount of
PECO Energy Company Collateralized
Medium-Term Notes, Series B
----------------------------------
Ladies and Gentlemen:
We have acted as counsel to you in connection with the
proposed issuance of $250,000,000 principal amount of PECO Energy
Company Collateralized Medium-Term Notes, Series B (the "Notes")
and the registration of the Notes under the Securities Act of
1933, as amended. The Notes will be issued under the
Collateralized Note Indenture dated as of October 1, 1989 between
PECO Energy Company (the "Company") and First Fidelity Bank,
National Association as amended by a First Supplemental Indenture
dated as of July 1, 1994 and as supplemented by a Second Supplemental
Indenture dated as of July 1, 1994 (as so amended and supplemented
the "Indenture").
The opinions expressed below are based on the following
assumptions:
(a) The proposed transactions are carried out on the
basis set forth in the Registration Statement and in conformity
with the authorizations, approvals, consents or exemptions under
the securities laws of the various States and other jurisdictions
of the United States;
(b) The Registration Statement filed by the Company
with the Securities and Exchange Commission concurrently with the
date of this letter will become effective;
<PAGE>
(c) The Company will fix the maturity dates, the
interest rates, the redemption provisions and other terms of the
Notes in accordance with the provisions of the Indenture;
(d) The Notes will be executed, authenticated and
delivered as provided in the Indenture; and
(e) The Second Supplemental Indenture will be qualified
in accordance with the provisions of the Trust Indenture Act of
1939, as amended, and duly completed, executed and delivered
pursuant to the authority granted by the Board of Directors of
the Company.
Based on the foregoing, we are of the opinion that when
properly authenticated and delivered as provided in the
Indenture, the Notes will be legally issued, valid and binding
obligations of the Company.
We consent to the filing of this opinion as Exhibit 5
to the Registration Statement and to the references to this firm
under the heading "Legal Matters" in the Prospectus included in
the Registration Statement.
Very truly yours,
/s/ BALLARD, SPAHR, ANDREWS & INGERSOLL
_______________________________________
Ballard, Spahr, Andrews & Ingersoll
EXHIBIT 23-1
CONSENT OF INDEPENDENT ACCOUNTANTS
To The Board of Directors,
PECO Energy Company:
We consent to the incorporation by reference in the registration
statement of PECO Energy Company, formerly known as Philadelphia Electric
Company, on Form S-3, with respect to the registration of $250,000,000 of
collateralized medium-term notes, of our reports dated January 31, 1994, on
our audits of the consolidated financial statements and financial statement
schedules of PECO Energy Company and Subsidiary Companies as of December
31, 1993 and 1992, and for each of the three years in the period ended
December 31, 1993, listed in Item 14 of the 1993 Annual Report of PECO
Energy Company on Form 10-K. We also consent to the reference to our firm
under the heading "EXPERTS".
/s/ COOPERS & LYBRAND
---------------------------------------
COOPERS & LYBRAND, L.L.P.
Philadelphia, Pennsylvania
August 4, 1994
EXHIBIT 23-2
CONSENT OF CAHILL, WILINSKI & CAHILL
To The Board of Directors,
PECO Energy Company:
We hereby consent to all references to our firm included in or made a
part of the Registration Statement.
/s/ CAHILL, WILINSKI & CAHILL
---------------------------------------------
CAHILL, WILINSKI & CAHILL
Haddonfield, New Jersey
August 4, 1994
EXHIBIT 24
PECO ENERGY COMPANY
-------------------
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS That I, SUSAN W. CATHERWOOD, of Bryn
Mawr, PA, do hereby appoint J. F. Paquette, Jr., C. A. McNeill, Jr., and
K. G. Lawrence, or any of them, attorney for me and in my name and on my
behalf TO SIGN THE REGISTRATION STATEMENT, and any amendments thereto,
of PECO ENERGY COMPANY to be filed with the Securities and Exchange
Commission under the Securities Act of 1933 with respect to the issue
and sale of not more than $250,000,000 principal amount of the Company's
Medium Term Notes, and generally to do and perform all things necessary
to be done in the premises as fully and effectually in all respects as I
could do if personally present.
Dated: April 13, 1994 /s/SUSAN W. CATHERWOOD
_________________________________________
SUSAN W. CATHERWOOD,
<PAGE>
PECO ENERGY COMPANY
-------------------
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS That I, M. WALTER D'ALESSIO, of
Philadelphia, PA, do hereby appoint J. F. Paquette, Jr., C. A. McNeill,
Jr., and K. G. Lawrence, or any of them, attorney for me and in my name
and on my behalf TO SIGN THE REGISTRATION STATEMENT, and any amendments
thereto, of PECO ENERGY COMPANY to be filed with the Securities and
Exchange Commission under the Securities Act of 1933 with respect to the
issue and sale of not more than $250,000,000 principal amount of the
Company's Medium Term Notes, and generally to do and perform all things
necessary to be done in the premises as fully and effectually in all
respects as I could do if personally present.
Dated: April 13, 1994 /s/ M. WALTER D'ALESSIO
_________________________________________
M. WALTER D'ALESSIO,
<PAGE>
PECO ENERGY COMPANY
-------------------
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS That I, RICHARD G. GILMORE, of Sarasota,
FL, do hereby appoint J. F. Paquette, Jr., C. A. McNeill, Jr., and K. G.
Lawrence, or any of them, attorney for me and in my name and on my
behalf TO SIGN THE REGISTRATION STATEMENT, and any amendments thereto,
of PECO ENERGY COMPANY to be filed with the Securities and Exchange
Commission under the Securities Act of 1933 with respect to the issue
and sale of not more than $250,000,000 principal amount of the Company's
Medium Term Notes, and generally to do and perform all things necessary
to be done in the premises as fully and effectually in all respects as I
could do if personally present.
Dated: April 13, 1994 /s/RICHARD G. GILMORE
_________________________________________
RICHARD G. GILMORE,
<PAGE>
PECO ENERGY COMPANY
-------------------
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS That I, RICHARD H. GLANTON, of
Philadelphia, PA, do hereby appoint J. F. Paquette, Jr., C. A. McNeill,
Jr., and K. G. Lawrence, or any of them, attorney for me and in my name
and on my behalf TO SIGN THE REGISTRATION STATEMENT, and any amendments
thereto, of PECO ENERGY COMPANY to be filed with the Securities and
Exchange Commission under the Securities Act of 1933 with respect to the
issue and sale of not more than $250,000,000 principal amount of the
Company's Medium Term Notes, and generally to do and perform all things
necessary to be done in the premises as fully and effectually in all
respects as I could do if personally present.
Dated: April 13, 1994 /s/RICHARD H. GLANTON
_________________________________________
RICHARD H. GLANTON,
<PAGE>
PECO ENERGY COMPANY
-------------------
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS That I, JAMES A. HAGEN, of Villanova, PA,
do hereby appoint J. F. Paquette, Jr., C. A. McNeill, Jr., and K. G.
Lawrence, or any of them, attorney for me and in my name and on my
behalf TO SIGN THE REGISTRATION STATEMENT, and any amendments thereto,
of PECO ENERGY COMPANY to be filed with the Securities and Exchange
Commission under the Securities Act of 1933 with respect to the issue
and sale of not more than $250,000,000 principal amount of the Company's
Medium Term Notes, and generally to do and perform all things necessary
to be done in the premises as fully and effectually in all respects as I
could do if personally present.
Dated: April 13, 1994 /s/JAMES A. HAGEN
_________________________________________
JAMES A. HAGEN,
<PAGE>
PECO ENERGY COMPANY
-------------------
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS That I, NELSON G. HARRIS, of Lafayette
Hill, PA, do hereby appoint J. F. Paquette, Jr., C. A. McNeill, Jr., and
K. G. Lawrence, or any of them, attorney for me and in my name and on my
behalf TO SIGN THE REGISTRATION STATEMENT, and any amendments thereto,
of PECO ENERGY COMPANY to be filed with the Securities and Exchange
Commission under the Securities Act of 1933 with respect to the issue
and sale of not more than $250,000,000 principal amount of the Company's
Medium Term Notes, and generally to do and perform all things necessary
to be done in the premises as fully and effectually in all respects as I
could do if personally present.
Dated: April 13, 1994 /s/NELSON G. HARRIS
_________________________________________
NELSON G. HARRIS,
<PAGE>
PECO ENERGY COMPANY
-------------------
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS That I, JOSEPH C. LADD, of Rosemont, PA,
do hereby appoint J. F. Paquette, Jr., C. A. McNeill, Jr., and K. G.
Lawrence, or any of them, attorney for me and in my name and on my
behalf TO SIGN THE REGISTRATION STATEMENT, and any amendments thereto,
of PECO ENERGY COMPANY to be filed with the Securities and Exchange
Commission under the Securities Act of 1933 with respect to the issue
and sale of not more than $250,000,000 principal amount of the Company's
Medium Term Notes, and generally to do and perform all things necessary
to be done in the premises as fully and effectually in all respects as I
could do if personally present.
Dated: April 13, 1994 /s/JOSEPH C. LADD
_________________________________________
JOSEPH C. LADD,
<PAGE>
PECO ENERGY COMPANY
-------------------
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS That I, EDITHE J. LEVIT, of Philadelphia,
PA, do hereby appoint J. F. Paquette, Jr., C. A. McNeill, Jr., and K. G.
Lawrence, or any of them, attorney for me and in my name and on my
behalf TO SIGN THE REGISTRATION STATEMENT, and any amendments thereto,
of PECO ENERGY COMPANY to be filed with the Securities and Exchange
Commission under the Securities Act of 1933 with respect to the issue
and sale of not more than $250,000,000 principal amount of the Company's
Medium Term Notes, and generally to do and perform all things necessary
to be done in the premises as fully and effectually in all respects as I
could do if personally present.
Dated: April 13, 1994 /s/EDITHE J. LEVIT
_________________________________________
EDITHE J. LEVIT,
<PAGE>
PECO ENERGY COMPANY
-------------------
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS That I, KINNAIRD R. MCKEE, of Oxford, MD,
do hereby appoint J. F. Paquette, Jr., C. A. McNeill, Jr., and K. G.
Lawrence, or any of them, attorney for me and in my name and on my
behalf TO SIGN THE REGISTRATION STATEMENT, and any amendments thereto,
of PECO ENERGY COMPANY to be filed with the Securities and Exchange
Commission under the Securities Act of 1933 with respect to the issue
and sale of not more than $250,000,000 principal amount of the Company's
Medium Term Notes, and generally to do and perform all things necessary
to be done in the premises as fully and effectually in all respects as I
could do if personally present.
Dated: April 13, 1994 /s/KINNAIRD R. MCKEE
_________________________________________
KINNAIRD R. MCKEE,
<PAGE>
PECO ENERGY COMPANY
-------------------
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS That I, JOSEPH J. MCLAUGHLIN, of
Rosemont, PA, do hereby appoint J. F. Paquette, Jr., C. A. McNeill, Jr.,
and K. G. Lawrence, or any of them, attorney for me and in my name and
on my behalf TO SIGN THE REGISTRATION STATEMENT, and any amendments
thereto, of PECO ENERGY COMPANY to be filed with the Securities and
Exchange Commission under the Securities Act of 1933 with respect to the
issue and sale of not more than $250,000,000 principal amount of the
Company's Medium Term Notes, and generally to do and perform all things
necessary to be done in the premises as fully and effectually in all
respects as I could do if personally present.
Dated: April 13, 1994 /s/JOSEPH J. MCLAUGHLIN
_________________________________________
JOSEPH J. MCLAUGHLIN,
<PAGE>
PECO ENERGY COMPANY
-------------------
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS That I, DR. JOHN M. PALMS, of Columbia,
SC, do hereby appoint J. F. Paquette, Jr., C. A. McNeill, Jr., and K. G.
Lawrence, or any of them, attorney for me and in my name and on my
behalf TO SIGN THE REGISTRATION STATEMENT, and any amendments thereto,
of PECO ENERGY COMPANY to be filed with the Securities and Exchange
Commission under the Securities Act of 1933 with respect to the issue
and sale of not more than $250,000,000 principal amount of the Company's
Medium Term Notes, and generally to do and perform all things necessary
to be done in the premises as fully and effectually in all respects as I
could do if personally present.
Dated: April 13, 1994 /s/DR. JOHN M. PALMS
_________________________________________
DR. JOHN M. PALMS,
<PAGE>
PECO ENERGY COMPANY
-------------------
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS That I, RONALD RUBIN, of Narberth, PA, do
hereby appoint J. F. Paquette, Jr., C. A. McNeill, Jr., and K. G.
Lawrence, or any of them, attorney for me and in my name and on my
behalf TO SIGN THE REGISTRATION STATEMENT, and any amendments thereto,
of PECO ENERGY COMPANY to be filed with the Securities and Exchange
Commission under the Securities Act of 1933 with respect to the issue
and sale of not more than $250,000,000 principal amount of the Company's
Medium Term Notes, and generally to do and perform all things necessary
to be done in the premises as fully and effectually in all respects as I
could do if personally present.
Dated: April 13, 1994 /s/RONALD RUBIN
_________________________________________
RONALD RUBIN,
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2) __
FIRST FIDELITY BANK, NATIONAL ASSOCIATION
(formerly First Fidelity Bank, National Association, Pennsylvania)
(Exact Name of Trustee as Specified in its Charter)
22-1147033
(I.R.S. Employer Identification No.)
175 WEST BROADWAY, SALEM, NEW JERSEY
(Address of Principal Executive Offices)
08079
(Zip Code)
FIRST FIDELITY BANK, NATIONAL ASSOCIATION
123 SOUTH BROAD STREET
PHILADELPHIA, PA 19109
ATTENTION: CORPORATE TRUST ADMINISTRATION
(215) 985-6000
(Name, address and telephone number of Agent for Service)
PECO ENERGY COMPANY
(Exact Name of Obligor as Specified in its Charter)
PENNSYLVANIA
(State or other jurisdiction of Incorporation or Organization)
23-0970240
(I.R.S. Employer Identification No.)
P.O. BOX 8699
2301 MARKET STREET, PHILADELPHIA, PA
(Address of Principal Executive Offices)
19101
(Zip Code)
$250,000,000 COLLATERALIZED MEDIUM TERM NOTES, SERIES B % DUE
Application relates to all securities registered pursuant
to the delayed offering registration statement.
(Title of Indenture Securities)
<PAGE>
1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervisory
authority to which it is subject:
Comptroller of the Currency
United States Department of the Treasury
Washington, D.C. 20219
Federal Reserve Bank (3rd District)
Philadelphia, Pennsylvania 19106
Federal Deposit Insurance Corporation
Washington, D.C. 20429
(b) Whether it is authorized to exercise corporate trust
powers.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
None.
3. VOTING SECURITIES OF THE TRUSTEE.
Furnish the following information as to each class of voting
securities of the trustee:
Not applicable - see answer to Item 13.
4. TRUSTEESHIPS UNDER OTHER INDENTURES.
If the trustee is a trustee under another indenture under
which any other securities, or certificates of interest or
participation in any other securities, of the obligor are
outstanding, furnish the following information:
Not applicable - see answer to Item 13.
2
<PAGE>
5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE
OBLIGOR OR UNDERWRITERS.
If the trustee or any of the directors or executive officers
of the trustee is a director, officer, partner, employee,
appointee, or representative of the obligor or of any underwriter
for the obligor, identify each such person having any such
connection and state the nature of each such connection.
Not applicable - see answer to Item 13.
6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS
OFFICIALS.
Furnish the following information as to the voting securities
of the trustee owned beneficially by the obligor and each director,
partner, and executive officer of the obligor:
Not applicable - see answer to Item 13.
7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR
THEIR OFFICIALS.
Furnish the following information as to the voting securities
of the trustee owned beneficially by each underwriter for the
obligor and each director, partner, and executive officer of each
such underwriter:
Not applicable - see answer to Item 13.
8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE.
Furnish the following information as to securities of the
obligor owned beneficially or held as collateral security for
obligations in default by the trustee:
Not applicable - see answer to Item 13.
9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
If the trustee owns beneficially or holds as collateral
security for obligations in default any securities of an
underwriter for the obligor, furnish the following information
3
<PAGE>
as to each class of securities of such underwriter any of which are
so owned or held by the trustee:
Not applicable - see answer to Item 13.
10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF
CERTAIN AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
If the trustee owns beneficially or holds as collateral
security for obligations in default voting securities of a person
who, to the knowledge of the trustee (1) owns 10 percent or more of
the voting stock of the obligor or (2) is an affiliate, other than
a subsidiary, of the obligor, furnish the following information as
to the voting securities of such person:
Not applicable - see answer to Item 13.
11. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A
PERSON OWNING 50 PERCENT OR MORE OF THE VOTING SECURITIES OF
THE OBLIGOR.
If the trustee owns beneficially or holds as collateral
security for obligations in default any securities of a person who,
to the knowledge of the trustee, owns 50 percent or more of the
voting securities of the obligor, furnish the following information
as to each class of securities of such person any of which are so
owned or held by the trustee:
Not applicable - see answer to Item 13.
12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE.
Except as noted in the instructions, if the obligor is
indebted to the trustee, furnish the following information:
Not applicable - see answer to Item 13.
13. DEFAULTS BY THE OBLIGOR.
(a) State whether there is or has been a default with respect
to the securities under this indenture. Explain the nature of any
such default.
None.
(b) If the trustee is a trustee under another indenture under
which any other securities, or certificates of interest or
participation in any other securities, of the obligor are
4
<PAGE>
outstanding, or is trustee for more than one outstanding series of
securities under the indenture, state whether there has been a
default under any such indenture or series, identify the indenture
or series affected, and explain the nature of any such default.
None.
14. AFFILIATIONS WITH THE UNDERWRITERS.
If any underwriter is an affiliate of the trustee, describe
each such affiliation.
Not applicable - see answer to Item 13.
15. FOREIGN TRUSTEE.
Identify the order or rule pursuant to which the trustee is
authorized to act as sole trustee under indentures qualified or to
be qualified under the Act.
Not applicable - trustee is a national banking association
organized under the laws of the United States.
16. LIST OF EXHIBITS.
List below all exhibits filed as part of this statement of
eligibility.
___ 1. Copy of Articles of Association of the trustee as now in
effect.*
___ 2. Copy of the Certificate of the Comptroller of the
Currency dated January 11, 1994, evidencing the authority
of the trustee to transact business.*
___ 3. Copy of the authorization of the trustee to exercise
fiduciary powers.*
___ 4. Copy of existing by-laws of the trustee.*
___ 5. Copy of each indenture referred to in Item 4, if the
obligor is in default, not applicable.
_X_ 6. Consent of the trustee required by Section 321(b) of the
Act.
5
<PAGE>
_X_ 7. Copy of report of condition of the trustee at the close
of business on March 31, 1994, published pursuant to the
requirements of its supervising authority.
___ 8. Copy of any order pursuant to which the foreign trustee
is authorized to act as sole trustee under indentures
qualified or to be qualified under the Act.
- Not applicable.
___ 9. Consent to service of process required of foreign
trustees pursuant to Rule 10a-4 under the Act.
- Not applicable.
_____________________
*Previously filed with the Securities and Exchange
Commission on February 11, 1994 as an exhibit to Form T-1 in
connection with Registration Statement No. 22-73340 and
incorporated herein by reference.
NOTE
The trustee disclaims responsibility for the accuracy or
completeness of information contained in this Statement of
Eligibility and Qualification not known to the trustee and not
obtainable by it through reasonable investigation and as to which
information it has obtained from the obligor and has had to rely or
will obtain from the principal underwriters and will have to rely.
6
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of
1939, the trustee, First Fidelity Bank, National Association, a
national banking association organized and existing under the laws
of the United States of America, has duly caused this Statement of
Eligibility and Qualification to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of
Philadelphia and Commonwealth of Pennsylvania, on the 29th day of
July, 1994.
FIRST FIDELITY BANK, NATIONAL ASSOCIATION
By:/s/George J. Rayzis
------------------------------
George J. Rayzis
Vice President
<PAGE>
EXHIBIT 6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the
Trust Indenture Act of 1939, and in connection with the
proposed issue of PECO Energy Company Collaterialized Medium
Term Notes, Series B, First Fidelity Bank, National
Association hereby consents that reports of examinations by
Federal, State, Territorial or District authorities may be
furnished by such authorities to the Securities and Exchange
Commission upon request therefor.
FIRST FIDELITY BANK, NATIONAL ASSOCIATION
By:/s/George J. Rayzis
-------------------------------
George J. Rayzis
Vice President
Philadelphia, Pennsylvania
July 29, 1994
<PAGE>
EXHIBIT T-7
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of the First Fidelity
Bank, National Association of Salem in the state of New Jersey, at the
close of business on March 31, 1994, published in response to call made by
Comptroller of the Currency, under title 12, United States Code, Section
161. Charter Number 33869 Comptroller of the Currency Northeastern
District.
STATEMENT OF RESOURCES AND LIABILITIES
ASSETS
Thousand of Dollars
-------------------
Cash and balance due from depository institutions:
Noninterest-bearing balances and currency and coin......... 1,857,291
Interest-bearing balances.................................. 611,096
Securities................................................... /////////
Hold-to-maturity securities................................ 3,619,115
Available-for-sale securities.............................. 2,501,401
Federal funds sold and securities purchased under agreements //////////
to resell in domestic offices of the bank and of it //////////
Edge and Agreement subsidiaries, and in IBFs: //////////
Federal funds sold..................................... 191,180
Securities purchased under agreements to resell........ 367,414
Loans and lease financing receivables:
Loan and leases, net of unearned income......18,393,675
LESS: Allowance for loan and lease losses.......526,109
LESS: Allocated transfer risk reserve.................0
Loans and leases, net of unearned income, allowance, and
reserve................................................. 17,867,566
Assets held in trading accounts............................... 183,757
Premises and fixed assets (including capitalized leases)...... 342,058
Other real estate owned....................................... 135,644
Investment in unconsolidated subsidiaries and associated //////////
companies..................................................... 6,778
Customer's liability to this bank on acceptances outstanding... 188,605
Intangible assets............................................. 234,601
Other assets.................................................. 472,266
Total assets.................................................. 28,578,772
LIABILITIES
Deposits:
In domestic offices..................................... 23,577,518
Noninterest-bearing..........................5,083,582
Interest-bearing............................18,493,936
In foreign offices, Edge and Agreement subsidiaries,
and IBFs................................................ 269,371
Noninterest-bearing.............................13,796
Interest-bearing...............................255,573
Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of its
Edge and Agreement subsidiaries, and IBFs
Federal fund purchased.................................. 375,427
Securities sold under agreements to repurchase.......... 1,077,572
Demand notes issued to the U.S. Treasury...................... 0
Trading liabilities........................................... 0
Other borrowed money:......................................... /////////
With original maturity of one year or less.............. 5,424
With original maturity of more than one year............ 846
Mortgage indebtedness and obligations under capitalized leases 7,123
Bank's liability on acceptances executed and outstanding..... 191,659
Subordinated notes and debentures............................ 175,000
Other liabilities............................................ 418,775
Total liabilities............................................ 26,098,715
Limited-life preferred stock and related surplus............. 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus................. 0
Common Stock.................................................. 430,000
Surplus....................................................... 918,675
Undivided profits and capital reserves........................ 1,135,806
Net unrealized holding gains (losses) on available-for-sale /////////
securities................................................... (4,424)
Cumulative foreign currency translation adjustments........... 0
Total equity capital.......................................... 2,480,037
Total liabilities, limited-life preferred stock and equity.... //////////
capital..................................................... 28,578,772
