Exhibit (4)-10
Commonwealth Edison Company
Form S-4 File No. 333-
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SERIES A CAPITAL SECURITIES GUARANTEE AGREEMENT
COMMONWEALTH EDISON COMPANY
and
WILMINGTON TRUST COMPANY
Dated as of January 24, 1997
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions..................................................2
SECTION 1.2 Interpretation...............................................5
ARTICLE II TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.............................6
SECTION 2.2 Lists of Holders of Securities...............................6
SECTION 2.3 Reports by the Capital Securities Guarantee Trustee..........6
SECTION 2.4 Periodic Reports to Capital Securities Guarantee Trustee.....6
SECTION 2.5 Evidence of Compliance with Conditions Precedent.............7
SECTION 2.6 Events of Default; Waiver....................................7
SECTION 2.7 Event of Default; Notice.....................................7
SECTION 2.8 Conflicting Interests........................................7
ARTICLE III POWERS, DUTIES AND RIGHTS OF
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Capital Securities Guarantee
Trustee.............................................................8
SECTION 3.2 Certain Rights of Capital Securities Guarantee Trustee.......9
SECTION 3.3 Not Responsible for Recitals or Issuance of Series A Capital
Securities Guarantee...............................................11
ARTICLE IV CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Capital Securities Guarantee Trustee; Eligibility...........12
SECTION 4.2 Appointment, Removal and Resignation of Capital Securities
Guarantee Trustee..................................................12
ARTICLE V GUARANTEE
SECTION 5.1 Guarantee...................................................13
SECTION 5.2 Waiver of Notice and Demand.................................13
SECTION 5.3 Obligations Not Affected....................................13
SECTION 5.4 Rights of Holders...........................................14
SECTION 5.5 Guarantee of Payment........................................15
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SECTION 5.6 Subrogation.................................................15
SECTION 5.7 Independent Obligations.....................................15
ARTICLE VI LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions..................................15
SECTION 6.2 Ranking.....................................................16
ARTICLE VII TERMINATION
SECTION 7.1 Termination.................................................16
ARTICLE VIII COMPENSATION AND EXPENSES OF
CAPITAL SECURITIES GUARANTEE TRUSTEE
ARTICLE IX INDEMNIFICATION
SECTION 9.1 Exculpation.................................................17
SECTION 9.2 Indemnification.............................................18
ARTICLE X MISCELLANEOUS
SECTION 10.1 Successors and Assigns....................................18
SECTION 10.2 Amendments................................................18
SECTION 10.3 Notices...................................................18
SECTION 10.4 Exchange Offer............................................19
SECTION 10.5 Benefit...................................................20
SECTION 10.6 Governing Law.............................................20
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SERIES A CAPITAL SECURITIES GUARANTEE AGREEMENT
THIS SERIES A CAPITAL SECURITIES GUARANTEE AGREEMENT (the "Series A
Capital Securities Guarantee"), dated as of January 24, 1997, is executed and
delivered by Commonwealth Edison Company, an Illinois corporation (the
"Guarantor"), and Wilmington Trust Company, a Delaware banking corporation, as
trustee (the "Capital Securities Guarantee Trustee"), for the benefit of the
Holders (as defined herein) from time to time of the Series A Capital Securities
(as defined herein) of ComEd Financing II, a Delaware statutory business trust
(the "Issuer").
WITNESSETH:
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of January 24, 1997, among the trustees of the Issuer,
the Guarantor, as sponsor, and the holders from time to time of undivided
beneficial interests in the assets of the Issuer, the Issuer is issuing on the
date hereof 150,000 capital securities, having an aggregate liquidation amount
of $150,000,000, such capital securities being designated the "8.50% Series A
Capital Securities (Liquidation Amount $1,000 per Capital Security)" (the
"Series A Capital Securities") and, in connection with an Exchange Offer (as
defined in the Declaration) has agreed to execute and deliver the Series B
Capital Securities Guarantee (as defined in the Declaration) for the benefit of
holders of the Series B Capital Securities (as defined in the Declaration);
WHEREAS, as incentive for the Holders to purchase the Series A Capital
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Series A Capital Securities Guarantee, to pay to
the Holders the Guarantee Payments (as defined below); and the Guarantor agrees
to make certain other payments on the terms and conditions set forth herein;
WHEREAS, the Guarantor is executing and delivering a guarantee
agreement (the "Common Securities Guarantee"), with substantially identical
terms to this Series A Capital Securities Guarantee, for the benefit of the
holders of the Common Securities (as defined herein), except that if an Event of
Default (as defined in the Declaration) has occurred and is continuing, the
rights of holders of the Common Securities to receive Guarantee Payments under
the Common Securities Guarantee are subordinated, to the extent and in the
manner set forth in the Common Securities Guarantee, to the rights of holders of
Series A Capital Securities and the Series B Capital Securities to receive
Guarantee Payments under this Series A Capital Securities Guarantee and the
Series B Capital Securities Guarantee, as the case may be;
NOW, THEREFORE, in consideration of the purchase by each Holder, which
purchase the Guarantor hereby acknowledges shall benefit the Guarantor, the
Guarantor executes and delivers this Series A Capital Securities Guarantee for
the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions. In this Series A Capital Securities
Guarantee, unless the context otherwise requires, capitalized terms used in this
Series A Capital Securities Guarantee but not defined in the preamble above have
the respective meanings assigned to them in this Section 1.1; terms defined in
the Declaration as at the date of execution of this Series A Capital Securities
Guarantee have the same meaning when used in this Series A Capital Securities
Guarantee unless otherwise defined in this Series A Capital Securities
Guarantee; a term defined anywhere in this Series A Capital Securities Guarantee
has the same meaning throughout; and a term defined in the Trust Indenture Act
has the same meaning when used in this Series A Capital Securities Guarantee,
unless otherwise defined in this Series A Capital Securities Guarantee or unless
the context otherwise requires.
"Affiliate" has the same meaning as given to that term in Rule 405
under the Securities Act of 1933, or any successor rule thereunder.
"Business Day" means any day other than a Saturday or a Sunday, or a
day on which banking institutions in Wilmington, Delaware or New York, New
York are authorized or required by law or executive order to close.
"Capital Securities Guarantee Trustee" means Wilmington Trust Company,
a Delaware banking corporation, until a Successor Capital Securities
Guarantee Trustee has been appointed and has accepted such appointment
pursuant to the terms of this Series A Capital Securities Guarantee and
thereafter means each such Successor Capital Securities Guarantee Trustee.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer.
"Corporate Trust Office" means the office of the Capital Securities
Guarantee Trustee at which the corporate trust business of the Capital
Securities Guarantee Trustee shall, at any particular time, be principally
administered, which office at the date of execution of this Series A
Capital Securities Guarantee is located at ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
"Covered Person" means any Holder or beneficial owner of Series A
Capital Securities.
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"Debentures" means the series of subordinated debt securities of the
Guarantor designated the "8.50% Series A Subordinated Deferrable Interest
Debentures due January 15, 2027" held by the Property Trustee (as defined
in the Declaration) of the Issuer.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Series A Capital Securities
Guarantee.
"Exchange Offer" means the Exchange Offer defined and described in the
Registration Rights Agreement.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Series A Capital Securities, to
the extent not paid or made by the Issuer: (i) any accumulated and unpaid
Distributions (as defined in the Declaration) that are required to be paid
on such Series A Capital Securities to the extent the Issuer has funds on
hand legally available therefor at such time, (ii) the redemption price,
including all accumulated and unpaid Distributions to the date of
redemption (the "Redemption Price") to the extent the Issuer has funds on
hand legally available therefor at such time, with respect to any Series A
Capital Securities called for redemption by the Issuer, and (iii) upon a
voluntary or involuntary dissolution, winding-up or termination of the
Issuer (other than in connection with the distribution of Debentures to the
Holders in exchange for Series A Capital Securities as provided in the
Declaration), the lesser of (a) the Liquidation Distribution and (b) the
amount of assets of the Issuer remaining available for distribution to
Holders in liquidation of the Issuer. If an Indenture Event of Default has
occurred and is continuing, no guarantee payments under the Common
Securities Guarantee with respect to the Common Securities or any guarantee
payment under any Other Common Securities Guarantees shall be made until
the Holders shall be paid in full the Guarantee Payments to which they are
entitled under this Series A Capital Securities Guarantee.
"Holder" shall mean any holder, as registered on the books and records
of the Issuer, of any Series A Capital Securities; provided, however, that,
in determining whether the holders of the requisite percentage of Series A
Capital Securities have given any request, notice, consent or waiver
hereunder, "Holder" shall not include the Guarantor or any Affiliate of the
Guarantor.
"Indemnified Person" means the Capital Securities Guarantee Trustee,
any Affiliate of the Capital Securities Guarantee Trustee, or any officers,
directors, shareholders, members, partners, employees, representatives,
nominees, custodians or agents of the Capital Securities Guarantee Trustee.
"Indenture" means the Indenture dated as of September 1, 1995, among
the Guarantor (the "Debenture Issuer") and Wilmington Trust Company, as
trustee (the "Debenture Trustee"), as supplemented by the First
Supplemental Indenture dated as of
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September 19, 1995, between the Debenture Issuer and the Debenture Trustee,
and the Second Supplemental Indenture.
"Indenture Event of Default" shall mean any event specified in Section
6.01 of the Indenture.
"Liquidation Distribution" means the aggregate of the liquidation
amount and all accumulated and unpaid Distributions on the Series A Capital
Securities to the date of payment.
"Majority in liquidation amount of the Series A Capital Securities"
means, except as provided by the Trust Indenture Act, a vote by Holder(s)
of more than 50% of the aggregate liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus
accumulated and unpaid Distributions to the date upon which the voting
percentages are determined) of all Series A Capital Securities.
"Officers' Certificate" means a certificate signed by any two of the
Chairman, a Vice Chairman, the Chief Executive Officer, the President, a
Vice President, the Comptroller, the Treasurer, the Secretary, an Assistant
Treasurer or an Assistant Secretary of the Guarantor. Any Officers'
Certificate delivered with respect to compliance with a condition or
covenant provided for in this Series A Capital Securities Guarantee (other
than pursuant to Section 314(d)(4) of the Trust Indenture Act) shall
include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(b) a statement that each such officer has made such examination
or investigation as, in such officer's opinion, is necessary to enable
such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(c) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Other Common Securities Guarantees" shall have the same meaning as
"Other Guarantees" in the Common Securities Guarantee.
"Other Guarantees" means all guarantees issued, or to be issued, by
the Guarantor with respect to capital securities similar to the Series A
Capital Securities issued by other trusts established, or to be
established, by the Guarantor, in each case similar to the Issuer. "Other
Guarantees" shall include the Preferred Securities Guarantee Agreement
dated as of September 26, 1995 issued by the Guarantor with respect to the
8.48% Trust Originated Preferred Securities of ComEd Financing I.
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"Other Indebtedness" means all subordinated notes, debentures or other
indebtedness issued by the Guarantor from time to time and sold to trusts
established, or to be established, by the Guarantor, in each case similar
to the Issuer. "Other Indebtedness" shall include the 8.48% Subordinated
Deferrable Interest Notes due September 30, 2035, issued by the Guarantor
to ComEd Financing I.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company,
limited liability company, trust, unincorporated association, or government
or any agency or political subdivision thereof, or any other entity of
whatever nature.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of January 24, 1997, among the Guarantor, the Issuer and
the Initial Purchasers named therein as such agreement may be amended,
modified or supplemented from time to time.
"Responsible Officer" means, with respect to the Capital Securities
Guarantee Trustee, the chairman of the board of directors, the president,
any vice president, the secretary, any assistant vice president, any
assistant secretary, the treasurer, any assistant treasurer, any trust
officer or assistant trust officer or other officer of the Capital
Securities Guarantee Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means,
with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of that officer's knowledge of and
familiarity with the particular subject.
"Second Supplemental Indenture" means the Second Supplemental
Indenture dated as of January 24, 1997, between the Debenture Issuer and
the Debenture Trustee.
"Successor Capital Securities Guarantee Trustee" means a successor
Capital Securities Guarantee Trustee possessing the qualifications to act
as Capital Securities Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939.
"Trust Securities" means the Common Securities, the Series A Capital
Securities and the Series B Capital Securities, collectively.
SECTION 1.2. Interpretation. Each definition in this Series A
Capital Securities Guarantee Agreement includes the singular and the plural, and
references to the neuter gender include the masculine and feminine where
appropriate. Terms which relate to accounting matters shall be interpreted in
accordance with generally accepted accounting principles in effect from time to
time. All references to "the Series A Capital Securities Guarantee Agreement" or
"this Series A Capital Securities Guarantee Agreement" are to this Series A
Capital Securities Guarantee Agreement as modified, supplemented or amended from
time to time. References to any statute
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mean such statute as amended at the time and include any successor legislation.
The word "or" is not exclusive, and the words "herein," "hereof" and "hereunder"
refer to this Series A Capital Securities Guarantee Agreement as a whole. The
headings to the Articles and Sections are for convenience of reference and shall
not affect the meaning or interpretation of this Series A Capital Securities
Guarantee Agreement. References to Articles and Sections mean the Articles and
Sections of this Series A Capital Securities Guarantee Agreement unless
otherwise specified.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application. (a) This Series A
Capital Securities Guarantee is subject to the provisions of the Trust Indenture
Act that are required to be part of this Series A Capital Securities Guarantee
and shall, to the extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Series A Capital
Securities Guarantee limits, qualifies or conflicts with the duties imposed by
Section 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
SECTION 2.2 Lists of Holders of Securities. (a) The Guarantor shall
provide the Capital Securities Guarantee Trustee (unless the Capital Securities
Guarantee Trustee is otherwise the registrar of the Capital Securities) with a
list, in such form as the Capital Securities Guarantee Trustee may reasonably
require, of the names and addresses of the Holders ("List of Holders") as of
such date, (i) within ten Business Days after January 1 and June 30 of each
year, and (ii) at any other time within 30 days of receipt by the Guarantor of a
written request for a List of Holders as of a date no more than 14 days before
such List of Holders is given to the Capital Securities Guarantee Trustee
provided, that the Guarantor shall not be obligated to provide such List of
Holders at any time the List of Holders does not differ from the most recent
List of Holders given to the Capital Securities Guarantee Trustee by the
Guarantor. The Capital Securities Guarantee Trustee may destroy any List of
Holders previously given to it on receipt of a new List of Holders.
(b) The Capital Securities Guarantee Trustee shall comply with its
obligations under Sections 311(a), 311(b) and Section 312(b) of the Trust
Indenture Act.
SECTION 2.3 Reports by the Capital Securities Guarantee Trustee.
Within 60 days after May 15 of each year, commencing May 15, 1997, the Capital
Securities Guarantee Trustee shall provide to the Holders such reports as are
required by Section 313(a) of the Trust Indenture Act, if any, in the form and
in the manner provided by Section 313 of the Trust Indenture Act. The Capital
Securities Guarantee Trustee shall also comply with the other requirements of
Section 313 of the Trust Indenture Act.
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SECTION 2.4 Periodic Reports to Capital Securities Guarantee Trustee.
The Guarantor shall provide to the Capital Securities Guarantee Trustee such
documents, reports and information as required by Section 314 (if any) and the
compliance certificate required by Section 314 of the Trust Indenture Act in the
form, in the manner and at the times required by Section 314 of the Trust
Indenture Act. Delivery of such reports, information and documents to the
Capital Securities Guarantee Trustee is for informational purposes only and the
Capital Securities Guarantee Trustee's receipt of such shall not constitute
constructive notice of any information contained therein or determinable from
information contained therein, including the Guarantor's compliance with any of
its covenants hereunder (as to which the Capital Securities Guarantee Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 2.5 Evidence of Compliance with Conditions Precedent. The
Guarantor shall provide to the Capital Securities Guarantee Trustee such
evidence of compliance with any conditions precedent, if any, provided for in
this Series A Capital Securities Guarantee that relate to any of the matters set
forth in Section 314(c) of the Trust Indenture Act. Any certificate or opinion
required to be given by an officer pursuant to Section 314(c)(1) may be given in
the form of an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver. The Holders of a Majority in
liquidation amount of the Series A Capital Securities may, by vote, on behalf of
all the Holders, waive any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of this
Series A Capital Securities Guarantee, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 2.7 Event of Default; Notice. (a) The Capital Securities
Guarantee Trustee shall, within 90 days after a Responsible Officer has
knowledge of the occurrence of an Event of Default, transmit by mail, first
class postage prepaid, to all Holders, notices of all Events of Default actually
known to a Responsible Officer of the Capital Securities Guarantee Trustee,
unless such Events of Default have been cured before the giving of such notice,
provided, that, except in the case of default in the payment of any Guarantee
Payment, the Capital Securities Guarantee Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee, or a trust committee of directors and/or Responsible Officers of the
Capital Securities Guarantee Trustee in good faith determines that the
withholding of such notice is in the interests of the holders of the Series A
Capital Securities.
(b) The Capital Securities Guarantee Trustee shall not be deemed to
have knowledge of any Event of Default unless the Capital Securities Guarantee
Trustee shall have received written notice from the Guarantor or a Holder, or a
Responsible Officer of the Capital Securities Guarantee Trustee charged with
the administration of the Declaration shall have obtained actual knowledge, of
such Event of Default.
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SECTION 2.8 Conflicting Interests. The Declaration shall be deemed to
be specifically described in this Series A Capital Securities Guarantee for the
purposes of clause (i) of the first proviso contained in Section 310(b) of the
Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Capital Securities Guarantee
Trustee. (a) This Series A Capital Securities Guarantee shall be held by the
Capital Securities Guarantee Trustee for the benefit of the Holders, and the
Capital Securities Guarantee Trustee shall not transfer this Series A Capital
Securities Guarantee to any Person except a Holder exercising his or her rights
pursuant to Section 5.4(b) or to a Successor Capital Securities Guarantee
Trustee on acceptance by such Successor Capital Securities Guarantee Trustee of
its appointment to act as Successor Capital Securities Guarantee Trustee. The
right, title and interest of the Capital Securities Guarantee Trustee shall
automatically vest in any Successor Capital Securities Guarantee Trustee, and
such vesting and succession of title shall be effective whether or not
conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Capital Securities Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible Officer of
the Capital Securities Guarantee Trustee has occurred and is continuing, the
Capital Securities Guarantee Trustee shall enforce this Series A Capital
Securities Guarantee for the benefit of the Holders.
(c) The Capital Securities Guarantee Trustee, before the occurrence of
any Event of Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Series A Capital Securities Guarantee, and no implied covenants
shall be read into this Series A Capital Securities Guarantee against the
Capital Securities Guarantee Trustee. In case an Event of Default has occurred
(that has not been cured or waived pursuant to Section 2.6) and is actually
known to a Responsible Officer of the Capital Securities Guarantee Trustee, the
Capital Securities Guarantee Trustee shall exercise such of the rights and
powers vested in it by this Series A Capital Securities Guarantee, and use the
same degree of care and skill in its exercise thereof as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(d) No provision of this Series A Capital Securities Guarantee shall
be construed to relieve the Capital Securities Guarantee Trustee from liability
for its own negligent action, its own negligent failure to act, or its own
willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
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(A) the duties and obligations of the Capital Securities
Guarantee Trustee shall be determined solely by the express provisions
of this Series A Capital Securities Guarantee, and the Capital
Securities Guarantee Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set
forth in this Series A Capital Securities Guarantee, and no implied
covenants or obligations shall be read into this Series A Capital
Securities Guarantee against the Capital Securities Guarantee Trustee;
and
(B) in the absence of bad faith on the part of the Capital
Securities Guarantee Trustee, the Capital Securities Guarantee Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates
or opinions furnished to the Capital Securities Guarantee Trustee and
conforming to the requirements of this Series A Capital Securities
Guarantee; but in the case of any such certificates or opinions that
by any provision hereof are specifically required to be furnished to
the Capital Securities Guarantee Trustee, the Capital Securities
Guarantee Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Series A Capital Securities Guarantee;
(ii) the Capital Securities Guarantee Trustee shall not be liable for
any error of judgment made in good faith by a Responsible Officer of the
Capital Securities Guarantee Trustee, unless it shall be proved that the
Capital Securities Guarantee Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(iii) the Capital Securities Guarantee Trustee shall not be liable
with respect to any action taken or omitted to be taken by it in good faith
in accordance with the direction of the Holders of not less than a Majority
in liquidation amount of the Series A Capital Securities relating to the
time, method and place of conducting any proceeding for any remedy avail
able to the Capital Securities Guarantee Trustee, or exercising any trust
or power conferred upon the Capital Securities Guarantee Trustee under this
Series A Capital Securities Guarantee; and
(iv) no provision of this Series A Capital Securities Guarantee shall
require the Capital Securities Guarantee Trustee to expend or risk its own
funds or otherwise incur personal financial liability in the performance of
any of its duties or in the exercise of any of its rights or powers, if the
Capital Securities Guarantee Trustee shall have reasonable grounds for
believing that the repayment of such funds or liability is not reasonably
assured to it under the terms of this Series A Capital Securities Guarantee
or indemnity, reasonably satisfactory to the Capital Securities Guarantee
Trustee, against such risk or liability is not reasonably assured to it.
SECTION 3.2 Certain Rights of Capital Securities Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
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(i) The Capital Securities Guarantee Trustee may conclusively rely,
and shall be fully protected in acting or refraining from acting, upon any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document believed by it to be genuine and
to have been signed, sent or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this Series
A Capital Securities Guarantee may be sufficiently evidenced by an
Officers' Certificate.
(iii) Whenever, in the administration of this Series A Capital
Securities Guarantee, the Capital Securities Guarantee Trustee shall deem
it desirable that a matter be proved or established before taking,
suffering or omitting any action hereunder, the Capital Securities
Guarantee Trustee (unless other evidence is herein specifically prescribed)
may, in the absence of bad faith on its part, request and conclusively rely
upon an Officers' Certificate which, upon receipt of such request, shall be
promptly delivered by the Guarantor.
(iv) The Capital Securities Guarantee Trustee shall have no duty to
see to any recording, filing or registration of any instrument (or any
rerecording, refiling or registration thereof).
(v) The Capital Securities Guarantee Trustee may consult with counsel
of its selection, and the advice or opinion of such counsel with respect to
legal matters shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good
faith and in accordance with such advice or opinion. Such counsel may be
counsel to the Guarantor or any of its Affiliates and may include any of
its employees. The Capital Securities Guarantee Trustee shall have the
right at any time to seek instructions concerning the administration of
this Series A Capital Securities Guarantee from any court of competent
jurisdiction.
(vi) The Capital Securities Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Series A Capital Securities Guarantee at the request or direction of any
Holder, unless such Holder shall have provided to the Capital Securities
Guarantee Trustee such security and indemnity, reasonably satisfactory to
the Capital Securities Guarantee Trustee, against the costs, expenses
(including attorneys' fees and expenses and the expenses of the Capital
Securities Guarantee Trustee's agents, nominees or custodians) and
liabilities that might be incurred by it in complying with such request or
direction, including such reasonable advances as may be requested by the
Capital Securities Guarantee Trustee; provided that, nothing contained in
this Section 3.2(a)(vi) shall be taken to relieve the Capital Securities
Guarantee Trustee, upon the occurrence of an Event of Default, of its
obligation to exercise the rights and powers vested in it by this Series A
Capital Securities Guarantee.
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(vii) The Capital Securities Guarantee Trustee shall not be bound to
make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Capital Securities
Guarantee Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit.
(viii) The Capital Securities Guarantee Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either directly
or by or through agents, nominees, custodians or attorneys, and the Capital
Securities Guarantee Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
(ix) Any action taken by the Capital Securities Guarantee Trustee or
its agents hereunder shall bind the Holders, and the signature of the
Capital Securities Guarantee Trustee or its agents alone shall be
sufficient and effective to perform any such action. No third party shall
be required to inquire as to the authority of the Capital Securities
Guarantee Trustee to so act or as to its compliance with any of the terms
and provisions of this Series A Capital Securities Guarantee, both of which
shall be conclusively evidenced by the Capital Securities Guarantee
Trustee's or its agent's taking such action.
(x) Whenever in the administration of this Series A Capital Securities
Guarantee the Capital Securities Guarantee Trustee shall deem it desirable
to receive instructions with respect to enforcing any remedy or right or
taking any other action hereunder, the Capital Securities Guarantee Trustee
(i) may request instructions from the Holders of a Majority in liquidation
amount of the Series A Capital Securities, (ii) may refrain from enforcing
such remedy or right or taking such other action until such instructions
are received, and (iii) shall be protected in conclusively relying on or
acting in accordance with such instructions.
(xi) The Capital Securities Guarantee Trustee shall not be liable for
any action taken, suffered, or omitted to be taken by it in good faith,
without negligence, and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Series
A Capital Securities Guarantee.
(b) No provision of this Series A Capital Securities Guarantee shall
be deemed to impose any duty or obligation on the Capital Securities Guarantee
Trustee to perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it in any jurisdiction in which it shall be
illegal, or in which the Capital Securities Guarantee Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Capital Securities Guarantee
Trustee shall be construed to be a duty.
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SECTION 3.3 Not Responsible for Recitals or Issuance of Series A
Capital Securities Guarantee. The recitals contained in this Series A Capital
Securities Guarantee shall be taken as the statements of the Guarantor, and the
Capital Securities Guarantee Trustee does not assume any responsibility for
their correctness. The Capital Securities Guarantee Trustee makes no represen
tation as to the validity or sufficiency of this Series A Capital Securities
Guarantee.
ARTICLE IV
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Capital Securities Guarantee Trustee; Eligibility. (a)
There shall at all times be a Capital Securities Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the laws of
the United States of America or any State or Territory thereof or of the
District of Columbia, or a corporation or Person permitted by the
Securities and Exchange Commission to act as an institutional trustee under
the Trust Indenture Act, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least fifty
million U.S. dollars ($50,000,000), and subject to supervision or
examination by Federal, State, Territorial or District of Columbia
authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the supervising or
examining authority referred to above, then, for the purposes of this
Section 4.1(a)(ii), the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published.
(b) If at any time the Capital Securities Guarantee Trustee shall
cease to be eligible to so act under Section 4.1(a), the Capital Securities
Guarantee Trustee shall immediately resign in the manner and with the effect set
out in Section 4.2(c).
(c) If the Capital Securities Guarantee Trustee has or shall acquire
any "conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Capital Securities Guarantee Trustee and the Guarantor shall
in all respects comply with the provisions of Section 310(b) of the Trust
Indenture Act, subject to the penultimate paragraph thereof.
SECTION 4.2 Appointment, Removal and Resignation of Capital Securities
Guarantee Trustee. (a) Subject to Section 4.2(b), the Capital Securities
Guarantee Trustee may be appointed or removed without cause at any time by the
Guarantor except during an Event of Default.
(b) The Capital Securities Guarantee Trustee shall not be removed in
accordance with Section 4.2(a) until a Successor Capital Securities Guarantee
Trustee has been appointed and
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has accepted such appointment by written instrument executed by such Successor
Capital Securities Guarantee Trustee and delivered to the Guarantor.
(c) The Capital Securities Guarantee Trustee shall hold office until a
Successor Capital Securities Guarantee Trustee shall have been appointed or
until its removal or resignation. The Capital Securities Guarantee Trustee may
resign from office (without need for prior or subsequent accounting) by an
instrument in writing executed by the Capital Securities Guarantee Trustee and
delivered to the Guarantor, which resignation shall not take effect until a
Successor Capital Securities Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such Successor
Capital Securities Guarantee Trustee and delivered to the Guarantor and the
resigning Capital Securities Guarantee Trustee.
(d) If no Successor Capital Securities Guarantee Trustee shall have
been appointed and accepted appointment as provided in this Section 4.2 within
60 days after delivery of an instrument of removal or resignation, the Capital
Securities Guarantee Trustee resigning or being removed may petition any court
of competent jurisdiction for appointment of a Successor Capital Securities
Guarantee Trustee. Such court may thereupon, after prescribing such notice, if
any, as it may deem proper, appoint a Successor Capital Securities Guarantee
Trustee.
(e) No Capital Securities Guarantee Trustee shall be liable for the
acts or omissions to act of any Successor Capital Securities Guarantee Trustee.
(f) Upon termination of this Series A Capital Securities Guarantee or
removal or resignation of the Capital Securities Guarantee Trustee pursuant to
this Section 4.2, the Guarantor shall pay to the Capital Securities Guarantee
Trustee all amounts due to the Capital Securities Guarantee Trustee accrued to
the date of such termination, removal or resignation.
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee. The Guarantor irrevocably and unconditionally
agrees to pay in full to the Holders the Guarantee Payments (without duplication
of amounts theretofore paid by the Issuer), as and when due, regardless of any
defense, right of set-off or counterclaim that the Issuer may have or assert.
The Guarantor's obligation to make a Guarantee Payment may be satisfied by
direct payment of the required amounts by the Guarantor to the Holders or by
causing the Issuer to pay such amounts to the Holders.
SECTION 5.2 Waiver of Notice and Demand. The Guarantor hereby waives
notice of acceptance of this Series A Capital Securities Guarantee and of any
liability to which it applies or may apply, presentment, demand for payment, any
right to require a proceeding first against the Issuer or any other Person
before proceeding against the Guarantor, protest, notice of nonpayment, notice
of dishonor, notice of redemption and all other notices and demands.
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SECTION 5.3 Obligations Not Affected. The obligations, covenants,
agreements and duties of the Guarantor under this Series A Capital Securities
Guarantee shall in no way be affected or impaired by reason of the happening
from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the Series A Capital
Securities to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or
any other sums payable under the terms of the Series A Capital Securities
or the extension of time for the performance of any other obligation under,
arising out of, or in connection with, the Series A Capital Securities
(other than an extension of time for payment of Distributions, Redemption
Price, Liquidation Distribution or other sums payable that results from the
extension of any interest payment period on the Debentures permitted by the
Indenture);
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Holders pursuant to the terms of the Series A
Capital Securities, or any action on the part of the Issuer granting
indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the Issuer
or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the Series A
Capital Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred;
(g) the consummation of the Exchange Offer; or
(h) any other circumstance whatsoever that might otherwise constitute
a legal or equitable discharge or defense of a guarantor, it being the
intent of this Section 5.3 that the obligations of the Guarantor with
respect to the Guarantee Payments shall be absolute and unconditional under
any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain consent
of, the Guarantor with respect to the happening of any of the foregoing.
SECTION 5.4 Rights of Holders. (a) The Holders of a Majority in
liquidation amount of the Series A Capital Securities have the right to direct
the time, method and place of
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conducting any proceeding for any remedy available to the Capital Securities
Guarantee Trustee in respect of this Series A Capital Securities Guarantee or
exercising any trust or power conferred upon the Capital Securities Guarantee
Trustee under this Series A Capital Securities Guarantee provided, however,
that, subject to the duties and responsibilities of the Debenture Trustee
pursuant to the Indenture, the Capital Securities Guarantee Trustee shall have
the right to decline to follow any such direction if the Capital Securities
Guarantee Trustee shall determine that the action so directed would be unjustly
prejudicial to the holders not taking part in such direction or if the Capital
Securities Guarantee Trustee being advised by counsel determines that the action
or proceeding so directed may not lawfully be taken or if the Capital Securities
Guarantee Trustee in good faith by its board of directors or trustees, executive
committee, or a trust committee of directors or trustees and/or Responsible
Officers shall determine that the action or proceedings so directed would
involve the Capital Securities Guarantee Trustee in personal liability.
(b) If the Capital Securities Guarantee Trustee fails to enforce such
Series A Capital Securities Guarantee, any Holder may institute a legal
proceeding directly against the Guarantor to enforce the Capital Securities
Guarantee Trustee's rights under this Series A Capital Securities Guarantee,
without first instituting a legal proceeding against the Issuer, the Capital
Securities Guarantee Trustee or any other person or entity. The Guarantor waives
any right or remedy to require that any action be brought first against the
Issuer or any other person or entity before proceeding directly against the
Guarantor.
SECTION 5.5 Guarantee of Payment. This Series A Capital Securities
Guarantee creates a guarantee of payment and not of collection.
SECTION 5.6 Subrogation. The Guarantor shall be subrogated to all (if
any) rights of the Holders against the Issuer in respect of any amounts paid to
such Holders by the Guarantor under this Series A Capital Securities Guarantee;
provided, however, that the Guarantor shall not (except to the extent required
by mandatory provisions of law) be entitled to enforce or exercise any right
that it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this Series A Capital
Securities Guarantee, if, at the time of any such payment, any amounts are due
and unpaid under this Series A Capital Securities Guarantee. If any amount shall
be paid to the Guarantor in violation of the preceding sentence, the Guarantor
agrees to hold such amount in trust for the Holders and to pay over such amount
to the Holders.
SECTION 5.7 Independent Obligations. The Guarantor acknowledges that
its obligations hereunder are independent of the obligations of the Issuer with
respect to the Series A Capital Securities, and that the Guarantor shall be
liable as principal and as debtor hereunder to make Guarantee Payments pursuant
to the terms of this Series A Capital Securities Guarantee notwith standing the
occurrence of any event referred to in subsections (a) through (h), inclusive,
of Section 5.3 hereof.
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ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions. So long as any Capital
Securities remain outstanding, the Guarantor shall not (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Guarantor's capital stock (which
includes common, preference and preferred stock) or (ii) make any payment of
principal, interest or premium, if any, on or repay or repurchase or redeem any
debt securities of the Guarantor (including any Other Indebtedness) that rank
pari passu with or junior in right of payment to the Debentures or (iii) make
any guarantee payments with respect to any guarantee by the Guarantor of any
securities of any subsidiary of the Guarantor (including Other Guarantees) if
such guarantee ranks pari passu or junior in right of payment to the Debentures,
if at such time (i) an Indenture Event of Default has occurred and is
continuing, (ii) there shall have occurred any event of which the Guarantor has
actual knowledge that (a) is, or with the giving of notice or the lapse of time,
or both, would be an Indenture Event of Default and (b) in respect of which the
Guarantor shall not have taken reasonable steps to cure, (iii) the Guarantor
shall be in default with respect to its payment of any obligations under this
Series A Capital Securities Guarantee or (iv) the Guarantor shall have given
notice of its election of the exercise of its right to extend the interest
payment period pursuant to Section 4.2 of the Second Supplemental Indenture, or
any extension thereof, and shall not have rescinded such notice, and such period
of interest payment extension, or any extension thereof, shall have commenced.
SECTION 6.2 Ranking. This Series A Capital Securities Guarantee will
constitute an unsecured obligation of the Guarantor and will rank (i)
subordinate and junior in right of payment to Senior Indebtedness (as defined in
the Second Supplemental Indenture), to the same extent and in the same manner
that the Debentures are subordinated to Senior Indebtedness pursuant to the
Second Supplemental Indenture, it being understood that the terms of Article VI
of the Second Supplemental Indenture shall apply to the obligations of the
Guarantor under this Series A Capital Securities Guarantee as if (x) such
Article VI were set forth herein in full and (y) such obligations were
substituted for the term "Debentures" appearing in such Article VI, (ii)
subordinate and junior in right of payment to the Debentures and any Other
Indebtedness, (iii) pari passu with the most senior preferred stock now or
hereafter issued by the Guarantor and with any Other Guarantees and any Other
Common Securities Guarantee and any guarantee now or hereafter entered into by
the Guarantor in respect of any preferred stock of any Affiliate of the
Guarantor, and (iv) senior to the Guarantor's common stock.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination. This Series A Capital Securities Guarantee
shall terminate (i) upon full payment of the applicable Redemption Price (as
defined in the Declaration) of all Series A Capital Securities, (ii) upon full
payment of the Liquidation Amount or the distribution of
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the Debentures to the Holders of all of the Series A Capital Securities or (iii)
upon exchange of all the Series A Capital Securities for the Series B Capital
Securities in the Exchange Offer. Notwithstanding the foregoing, this Series A
Capital Securities Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder must restore payment
of any sums paid under the Series A Capital Securities or under this Series A
Capital Securities Guarantee.
ARTICLE VIII
COMPENSATION AND EXPENSES OF
CAPITAL SECURITIES GUARANTEE TRUSTEE
The Guarantor covenants and agrees to pay to the Capital Securities
Guarantee Trustee from time to time, and the Capital Securities Guarantee
Trustee shall be entitled to, such compensation as shall be agreed to in writing
between the Guarantor and the Capital Securities Guarantee Trustee (which shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust), and the Guarantor will pay or reimburse the
Capital Securities Guarantee Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Capital Securities
Guarantee Trustee in accordance with any of the provisions of this Capital
Securities Guarantee (including the reasonable compensation and the expenses and
disbursements of its counsel and of all persons not regularly in its employ)
except any such expense, disbursement or advance as may arise from its
negligence or bad faith. The Guarantor also covenants to indemnify each of the
Capital Securities Guarantee Trustee (and its officers, agents, directors and
employees) for, and to hold it harmless against, any and all loss, damage,
claim, liability or expense including taxes (other than taxes based on the
income of the Capital Securities Guarantee Trustee) incurred without negligence
or bad faith on the part of the Capital Securities Guarantee Trustee and arising
out of or in connection with the acceptance or administration of this guarantee,
including the costs and expenses of defending itself against any claim of
liability in the premises. The obligations of the Guarantor under this Article
VIII to compensate and indemnify the Capital Securities Guarantee Trustee and to
pay or reimburse the Capital Securities Guarantee Trustee for expenses,
disbursements and advances shall be secured by a lien prior to that of the
Series A Capital Securities upon all property and funds held or collected by the
Capital Securities Guarantee Trustee as such, except funds held in trust for the
benefit of the holders of particular Series A Capital Securities.
The provisions of this Article shall survive the termination of this
Capital Securities Guarantee.
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ARTICLE IX
INDEMNIFICATION
SECTION 9.1 Exculpation. (a) No Indemnified Person shall be liable,
responsible or accountable in damages or otherwise to the Guarantor or any
Covered Person for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by such Indemnified Person in good faith in
accordance with this Series A Capital Securities Guarantee and in a manner that
such Indemnified Person reasonably believed to be within the scope of the
authority conferred on such Indemnified Person by this Series A Capital
Securities Guarantee or by law, except that an Indemnified Person shall be
liable for any such loss, damage or claim incurred by reason of such Indemnified
Person's negligence or willful misconduct with respect to such acts or
omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Guarantor and upon such information, opinions,
reports or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Guarantor, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders might properly be paid.
SECTION 9.2 Indemnification. The Guarantor agrees to indemnify each
Indemnified Person for, and to hold each Indemnified Person harmless against,
any and all loss, liability, damage, claim or expense incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including the
costs and expenses (including reasonable legal fees and expenses) of defending
itself against, or investigating, any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The obligation
to indemnify as set forth in this Section 9.2 shall survive the termination of
this Series A Capital Securities Guarantee.
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Successors and Assigns. All guarantees and agreements
contained in this Series A Capital Securities Guarantee shall bind the
successors, assigns, receivers, trustees and representatives of the Guarantor
and shall inure to the benefit of the Holders then outstanding.
SECTION 10.2 Amendments. Except with respect to any changes that do
not materially adversely affect the rights of Holders (in which case no consent
of Holders will be required), this Series A Capital Securities Guarantee may
only be amended with the prior approval of the Holders of a Majority in
liquidation amount of the Series A Capital Securities. The provisions
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of the Declaration with respect to consents to amendments thereof (whether at a
meeting or otherwise) shall apply to the giving of such approval.
SECTION 10.3 Notices. All notices provided for in this Series A
Capital Securities Guarantee shall be in writing, duly signed by the party
giving such notice, and shall be delivered, telecopied or mailed by first class
mail, as follows:
(a) If given to the Issuer, in care of the Administrative Trustee at
the Issuer's mailing address set forth below (or such other address as the
Issuer may give notice of to the Holders and the Capital Securities
Guarantee Trustee):
ComEd Financing II
c/o Commonwealth Edison Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Administrative Trustee
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If given to the Capital Securities Guarantee Trustee, at the
Capital Securities Guarantee Trustee's mailing address set forth below (or
such other address as the Capital Securities Guarantee Trustee may give
notice of to the Holders and the Issuer):
Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(c) If given to the Guarantor, at the Guarantor's mailing address set
forth below (or such other address as the Guarantor may give notice of to
the Holders and the Capital Securities Guarantee Trustee):
Commonwealth Edison Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(d) If given to any Holder, at the address for such Holder set forth
on the books and records of the Issuer.
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All such notices shall be deemed to have been given when received in person,
telecopied with receipt confirmed, or mailed by first class mail, postage
prepaid except that if a notice or other document is refused delivery or cannot
be delivered because of a changed address of which no notice was given, such
notice or other document shall be deemed to have been delivered on the date of
such refusal or inability to deliver.
SECTION 10.4 Exchange Offer. In the event an Exchange Offer
Registration Statement (as defined in the Registration Rights Agreement) becomes
effective and the Issuer issues any Series B Capital Securities in the Exchange
Offer, the Guarantor will enter into a new capital securities guarantee
agreement, in substantially the same form as this Series A Capital Securities
Guarantee, with respect to the Series B Capital Securities.
SECTION 10.5 Benefit. This Series A Capital Securities Guarantee
is solely for the benefit of the Holders and, subject to Section 3.1(a), is not
separately transferable from the Series A Capital Securities.
SECTION 10.6 Governing Law. THIS SERIES A CAPITAL SECURITIES
GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES THEREOF.
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THIS SERIES A CAPITAL SECURITIES GUARANTEE is executed as of the day
and year first above written.
COMMONWEALTH EDISON COMPANY,
as Guarantor
By: ▇▇▇▇▇▇ ▇'▇▇▇▇▇
--------------------------------------------------
▇▇▇▇▇▇ ▇'▇▇▇▇▇
Treasurer
WILMINGTON TRUST COMPANY,
Not in its individual capacity but solely as Capital
Securities Guarantee Trustee
By: W. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------------------------
Name: W. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Senior Financial Services Officer