Exhibit (4)-4
Commonwealth Edison Company
Form S-4 File No. 333-
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THIRD SUPPLEMENTAL INDENTURE
Dated as of _______________, 1997
Between
COMMONWEALTH EDISON COMPANY
and
WILMINGTON TRUST COMPANY
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
Section 1.1. Definition of Terms............................................ 2
Section 1.2. Interpretation................................................. 4
ARTICLE II
GENERAL TERMS AND CONDITIONS OF
THE DEBENTURES
Section 2.1. Designation and Principal Amount............................... 5
Section 2.2. Maturity....................................................... 5
Section 2.3. Form and Payment............................................... 5
Section 2.4. Global Debenture............................................... 5
Section 2.5. Interest....................................................... 6
ARTICLE III
REDEMPTION OF THE DEBENTURES
Section 3.1. Tax Event Redemption........................................... 7
Section 3.2. Optional Redemption by Company................................. 7
Section 3.3. No Sinking Fund................................................ 8
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
Section 4.1. Extension of Interest Payment Period........................... 8
Section 4.2. Notice of Extension............................................ 8
ARTICLE V
EXPENSES
Section 5.1. Payment of Expenses............................................ 9
ARTICLE VI
SUBORDINATION
Section 6.1. Agreement to Subordinate.......................................10
Section 6.2. Default on Senior Indebtedness.................................10
Section 6.3. Liquidation; Dissolution; Bankruptcy...........................10
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Section 6.4. Subrogation................................................ 12
Section 6.5. Trustee to Effectuate Subordination........................ 12
Section 6.6. Notice by the Company...................................... 13
Section 6.7. Rights of the Trustee; Holders of Senior Indebtedness...... 13
Section 6.8. Subordination May Not Be Impaired.......................... 14
ARTICLE VII
FORM OF DEBENTURE
Section 7.1. Form of Debenture.......................................... 14
ARTICLE VIII
ORIGINAL ISSUE OF DEBENTURES; EXCHANGE
Section 8.1. Original Issue of Debentures............................... 21
ARTICLE IX
MISCELLANEOUS
Section 9.1. Ratification of Indenture.................................. 22
Section 9.2. Trustee Not Responsible for Recitals....................... 22
Section 9.3. Governing Law.............................................. 22
Section 9.4. Separability............................................... 22
Section 9.5. Counterparts............................................... 22
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THIS THIRD SUPPLEMENTAL INDENTURE, dated as of __________, 1997 (the "Third
Supplemental Indenture"), between Commonwealth Edison Company, an Illinois
corporation (the "Company"), and Wilmington Trust Company, not in its individual
capacity but solely as trustee (the "Trustee") under the Indenture dated as of
September 1, 1995 between the Company and the Trustee (the "Indenture") as
supplemented by the First Supplemental Indenture dated as of September 19, 1995
between the Company and the Trustee (the "First Supplemental Indenture") and the
Second Supplemental Indenture dated as of January 24, 1997 between the Company
and the Trustee (the "Second Supplemental Indenture").
W I T N E S S E T H:
WHEREAS, the Company executed and delivered the Indenture to the Trustee to
provide, among other things, for the future issuance of the Company's unsecured
subordinated debt securities, to be issued from time to time in one or more
series as might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered as
provided in the Indenture; and
WHEREAS, on January 24, 1997, ComEd Financing II, a Delaware statutory
business trust (the "Trust"), sold $150,000,000 aggregate liquidation amount of
its 8.50 % Series A Capital Securities (Liquidation Amount $1,000 per Capital
Security) (the "Old Capital Securities") and sold $4,640,000 aggregate stated
liquidation amount of its 8.50% Common Securities (Liquidation Amount $1,000 per
Common Security) (the "Common Securities"), such Capital Securities and Common
Securities representing undivided beneficial interests in the assets of the
Trust, and invested the proceeds from such offering in $154,640,000 aggregate
principal amount of the Company's 8.50% Subordinated Deferrable Interest
Debentures due January 15, 2027 (the "Series A Debentures"); and
WHEREAS, pursuant to Section 8.2 of the Second Supplemental Indenture, the
Company desires to exchange a new series of its debt securities to be known as
its 8.50% Series B Subordinated Deferrable Interest Debentures due January 15,
2027 (the "Debentures"), the form and substance of such Debentures and the
terms, provisions and conditions thereof to be set forth as provided in the
Indenture and this Third Supplemental Indenture, for the Series A Debentures;
and
WHEREAS, the Company has requested the Trustee to execute and deliver this
Third Supplemental Indenture, and all requirements necessary to make this Third
Supplemental Indenture a valid instrument, in accordance with its terms, and to
make the Debentures, when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company, have been
performed, and the execution and delivery of this Third Supplemental Indenture
has been duly authorized in all respects;
NOW, THEREFORE, in consideration of the purchase and acceptance of the
Debentures by the holders thereof, and for the purpose of setting forth, as
provided in the Indenture, the form and substance of the Debentures and the
terms, provisions and conditions thereof, the Company covenants and agrees with
the Trustee as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definition of Terms. Unless the context otherwise requires,
(a) a term defined in the Indenture has the same meaning when used in this Third
Supplemental Indenture, (b) a term defined anywhere in this Third Supplemental
Indenture has the same meaning throughout and (c) the following terms have the
meanings given to them in the Declaration: (i) Administrative Trustee; (ii)
Capital Security Certificate; (iii) Clearing Agency; (iv) Delaware Trustee; (v)
Exchange Offer; (vi) No Recognition Opinion; (vii) Property Trustee; (viii) Pro
Rata; (ix) Sponsor; and (x) Tax Event.
In addition, the following terms have the following respective meanings:
"Adjusted Treasury Rate" means, with respect to any redemption date, the
rate per annum equal to (i) the yield, under the heading which represents the
average for the immediately prior week, appearing in the most recently published
statistical release designated "H.15 (519)" or any successor publication which
is published weekly by the Federal Reserve Board and which establishes yields on
actively traded United States Treasury securities adjusted to constant maturity
under the caption "Treasury Constant Maturities," for the maturity corresponding
to the Initial Optional Prepayment Date (if no maturity is within three months
before or after the Initial Optional Prepayment Date, yields for the two
published maturities most closely corresponding to the Initial Optional
Prepayment Date shall be determined and the Adjusted Treasury Rate shall be
interpolated or extrapolated from such yields on a straight-line basis, rounding
to the nearest month) or (ii) if such release (or any successor release) is not
published during the week preceding the calculation date or does not contain
such yields, the rate per annum equal to the semi-annual equivalent yield to
maturity of the Comparable Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date, in each case calculated on
the third Business Day preceding the redemption date, plus in each case (a) 1.25
% if such redemption date occurs on or prior to January 15, 1998, and (b) 0.50%
in all other cases.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Quotation Agent as having a maturity date corresponding to the
Initial Optional Prepayment Date that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities with a maturity date corresponding to the
Initial Optional Prepayment Date. If no United States Treasury security has a
maturity date which is within three months before or after the Initial Optional
Prepayment Date, the two most closely corresponding United States Treasury
securities shall be used as the Comparable Treasure Issue, and the calculation
of the Adjusted Treasury Rate pursuant to clause (ii) of the definition thereof
shall be interpolated or extrapolated on a straight line basis, rounding to the
nearest month.
"Comparable Treasury Price" means, with respect any redemption date, (i)
the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as
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a percentage of its principal amount) on the third Business Day preceding such
redemption date, as set forth in the daily statistical release (or any successor
release) published by the Federal Reserve Bank of New York and designated
"Composite 3:30 p.m. Quotations for U.S. Government Securities" or (ii) if such
release (or any successor release) is not published or does not contain such
prices on such Business Day, (a) the average of three Reference Treasury Dealer
Quotations for such redemption date, after excluding the highest and lowest of
such Reference Treasury Dealer Quotations, or (b) if the Trustee obtains fewer
than three such Reference Treasury Dealer Quotations, the average of all such
quotations.
"Declaration" means the Amended and Restated Declaration of Trust of ComEd
Financing II, a Delaware statutory business trust, dated as of January 24, 1997.
"Dissolution Event" means that, as a result of the occurrence and
continuation of a Tax Event, the Trust is to be dissolved in accordance with the
Declaration and the Debentures held by the Property Trustee are to be
distributed to the holders of the Trust Securities issued by the Trust Pro Rata
in accordance with the Declaration.
"Federal Reserve Board" means the Board of Governors of the Federal Reserve
System.
"Initial Optional Prepayment Date" means January 15, 2007.
"Guarantees" means the guarantees by the Company of the payment of
distributions of moneys held by the Trust and payments on liquidation of the
Trust.
"Initial Purchasers" means the entities so identified in the Purchase
Agreement.
"Maturity Date" means the date on which the Debentures mature and on which
the principal shall be due and payable together with all accrued and unpaid
interest thereon including Compounded Interest and Additional Interest, if any.
"Quotation Agent" means the Reference Treasury Dealer appointed by the
Trustee after consultation with the Company.
"Reference Treasury Dealer" means: (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇ Government Securities,
Inc. and its successors; provided, however, that if the foregoing shall cease to
be a primary U.S. Government securities dealer in New York City (a "Primary
Treasury Dealer"), the Company shall substitute therefor another Primary
Treasury Dealer; and (ii) any other Primary Treasury Dealer selected by the
Trustee after consultation with the Company.
"Reference Treasury Dealer Quotation" means, with respect to each Reference
Treasury Dealer and any redemption date, the average, as determined by the
Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its
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principal amount) quoted in writing to the Trustee by such Reference Treasury
Dealer at 5:00 p.m., New York City time, on the third Business Day preceding
such redemption date.
"Senior Indebtedness" means (i) any payment in respect of (A) indebtedness
of the Company for money borrowed and (B) indebtedness evidenced by securities,
debentures, bonds, notes or other similar instruments issued by the Company
including, without limitation, indebtedness evidenced by securities issued
pursuant to the provisions of the Mortgage dated July 1, 1923, as supplemented
by Supplemental Indenture dated August 1, 1944 and subsequent supplemental
indentures, between the Company, as mortgagor, and ▇▇▇▇▇▇ Trust and Savings Bank
and ▇.▇. ▇▇▇▇▇▇▇, as trustees; the Indenture dated as of September 1, 1987, as
supplemented and amended, between the Company and Citibank, N.A., as trustee;
the Indentures dated April 1, 1949, October 1, 1949, October 1, 1950, October 1,
1954, January 1, 1958, January 1, 1959 and December 1, 1961, between the Company
and Amalgamated Bank, as successor trustee to The First National Bank of
Chicago; and the Indenture dated February 15, 1973, as supplemented, between the
Company and LaSalle National Bank, as successor trustee to The First National
Bank of Chicago; (ii) all capital lease obligations of the Company; (iii) all
obligations of the Company issued or assumed as the deferred purchase price of
property, all conditional sale obligations of the Company and all obligations of
such obligor under any title retention agreement (but excluding trade accounts
payable arising in the ordinary course of business); (iv) all obligations of the
Company for reimbursement on any letter of credit, banker's acceptance, security
purchase facility or similar credit transaction; (v) all obligations of the type
referred to in clauses (i) through (iv) of other persons for the payment of
which the Company is responsible or liable as obligor, guarantor or otherwise;
and (vi) all obligations of the type referred to in clauses (i) through (v) of
other persons secured by any lien on any property or asset of the Company
(whether or not such obligation is assumed by such obligor), except for (1) any
such indebtedness that is by its terms subordinated to or pari passu with the
Debentures, as the case may be, including all other debt securities and
guarantees in respect of those debt securities, issued to any other trusts,
partnerships or any other entity affiliated with the Company which is a
financing vehicle of the Company ("Financing Entity") in connection with an
issuance of preferred securities by such Financing Entity or other securities
which rank pari passu with, or junior to, the Capital Securities, and (2) any
indebtedness between or among the Company and its Affiliates.
Section 1.2. Interpretation. Each definition in this Third Supplemental
Indenture 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. References to any statute
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 Third Supplemental Indenture 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 Third Supplemental Indenture. References to
Articles and Sections mean the Articles and Sections of this Third Supplemental
Indenture.
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ARTICLE II
GENERAL TERMS AND CONDITIONS OF
THE DEBENTURES
Section 2.1. Designation and Principal Amount. There is hereby
authorized a series of Debt Securities designated the "8.50 % Series B
Subordinated Deferrable Interest Debentures due January 15, 2027," limited in
aggregate principal amount to $154,640,000, which amount shall be as set forth
in any written order of the Company for the authentication and delivery of
Debentures pursuant to Section 2.04 of the Indenture.
Section 2.2. Maturity. The Maturity Date will be January 15, 2027.
Section 2.3. Form and Payment. Except as provided in Section 2.4,
the Debentures shall be issued in fully registered certificated form without
interest coupons. Principal and interest on the Debentures issued in
certificated form will be payable, the transfer of such Debentures will be
registrable and such Debentures will be exchangeable for Debentures bearing
identical terms and provisions at the office or agency of the Trustee in
Wilmington, Delaware, provided, however, that payment of interest may be made at
the option of the Company by check mailed to the registered holder at such
address as shall appear in the Security Register. Notwithstanding the foregoing,
so long as the registered holder of any Debentures is the Property Trustee, the
payment of the principal of, premium (if any) and interest (including Compounded
Interest and Additional Interest, if any) on such Debentures held by the
Property Trustee will be made at such place and to such account as may be
designated by the Property Trustee.
Section 2.4. Global Debenture. In the event that the Sponsor gives
notice of its election to liquidate the Trust pursuant to Section 8.1(a)(iii) of
the Declaration:
(a) the Debentures in certificated form may be presented to the
Trustee by the Property Trustee in exchange for a Global Security in an
aggregate principal amount equal to the aggregate principal amount of the
Debentures so presented, to be registered in the name of the Depositary, or
its nominee, and delivered by the Trustee to the Depositary for crediting
to the accounts of its participants pursuant to the instructions of the
Administrative Trustees. The Company, upon any such presentation, shall
execute a Global Security in such aggregate principal amount and deliver
the same to the Trustee for authentication and delivery in accordance with
the Indenture and this Third Supplemental Indenture; and any payments on
the Debentures issued as a Global Security will be made to the Depositary;
and
(b) if any Capital Securities are held in non book-entry certificated
form, the Debentures in certificated form may be presented to the Trustee
by the Property Trustee and any Capital Security Certificate which
represents Capital Securities other than Capital Securities held by the
Clearing Agency or its nominee ("Non Book-
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Entry Capital Securities") will be deemed to represent beneficial interests
in Debentures presented to the Trustee by the Property Trustee having an
aggregate principal amount equal to the aggregate stated liquidation amount
of the Non Book-Entry Capital Securities until such Capital Security
Certificates are presented to the Security Registrar for transfer or
reissuance at which time such Capital Security Certificates will be
canceled and a Debenture, registered in the name of the holder of such
Capital Security Certificate or the transferee of the holder of such
Capital Security Certificate, as the case may be, with an aggregate
principal amount equal to the aggregate stated liquidation amount of the
Capital Security Certificate canceled, will be executed by the Company and
delivered to the Trustee for authentication and delivery in accordance with
the Indenture and this Third Supplemental Indenture. On issue of such
Debentures, Debentures with an equivalent aggregate principal amount that
were presented by the Property Trustee to the Trustee will be deemed to
have been cancelled.
Section 2.5. Interest. (a) Each Debenture will bear interest at the
rate of 8.50% per annum (the "Coupon Rate") from January 24, 1997 or from the
most recent Interest Payment Date (as defined below) until the principal
thereof becomes due and payable, and on any overdue principal and (to the extent
that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the Coupon Rate, compounded semi-annually,
payable (subject to the provisions of Article IV) semi-annually in arrears on
July 15 and January 15 of each year (each, an "Interest Payment Date"),
commencing on July 15, 1997, to the Person in whose name such Debenture or any
predecessor Debenture is registered, at the close of business on the first day
of July and January, respectively.
(b) The amount of interest payable for any period will be computed on
the basis of a 360-day year consisting of twelve 30-day months. In the event
that any date on which interest is payable on the Debentures is not a Business
Day, then payment of interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay). The amount of interest payable for any
period shorter than a full calendar month for which interest is computed, will
be computed on the basis of the actual number of days elapsed in such month.
(c) If at any time while the Property Trustee is the holder of any
Debentures, the Trust or the Property Trustee is required to pay any taxes,
duties, assessments or governmental charges of whatever nature (other than
withholding taxes) imposed by the United States, or any other taxing authority,
then, in any case, the Company will pay as additional interest ("Additional
Interest") on the Debentures held by the Property Trustee, such additional
amounts as shall be required so that the net amounts received and retained by
the Trust and the Property Trustee after paying such taxes, duties, assessments
or other governmental charges will be equal to the amounts the Trust and the
Property Trustee would have received had no such taxes, duties, assessments or
other government charges been imposed.
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ARTICLE III
REDEMPTION OF THE DEBENTURES
Section 3.1. Tax Event Redemption. If a Tax Event has occurred and
is continuing, then, notwithstanding Section 3.2, the Company shall have the
right, upon not less than 30 days' nor more than 60 days' notice to the
registered holders of the Debentures, to redeem the Debentures, in whole (but
not in part), for cash at any time prior to January 15, 2007 and within 90 days
of the occurrence of such Tax Event (the "90 Day Period") at a redemption price
(the "Tax Event Redemption Price") equal to the greater for (i) 100% of the
principal amount of such Debentures or (ii) the sum, as determined by a
Quotation Agent, of the present values of the principal amount and premium
payable as part of the redemption price with respect to an optional redemption
of such Debentures on January 15, 2007, together with scheduled payments of
interest on the Debentures accruing from the redemption date to and including
January 15, 2007, in each case discounted to the redemption date on a semi-
annual basis (assuming a 360-day year consisting of twelve 30-day months) at the
Adjusted Treasury Rate, plus, in each case, accrued interest thereon to the date
of such redemption. The Tax Event Redemption Price shall be paid prior to 12:00
noon, New York time, on the date of such redemption or at such earlier time as
the Company determines and specifies in the notice of redemption, provided the
Company shall deposit with the Trustee an amount sufficient to pay the Tax Event
Redemption Price by 11:00 a.m. on the date such Tax Event Redemption Price is to
be paid.
Section 3.2. Optional Redemption by Company. Subject to the
provisions of Article III of the Indenture, except as otherwise specified in
this Third Supplemental Indenture, the Company shall have the right to redeem
the Debentures, in whole or in part, from time to time, on or after January 15,
2007, at a redemption price (the "Optional Redemption Price") equal to the
percentage of the principal amount of the Debentures specified below, plus, in
each case, accrued and unpaid interest thereon to the date of such redemption if
redeemed during the 12-month period beginning January 15 of the years indicated
below:
Year Percentage
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2007 104.250%
2008 103.825
2009 103.400
2010 102.975
2011 102.550
2012 102.125
2013 101.700
2014 101.275
2015 101.850
2016 100.425
2017 and thereafter 100.000
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Any redemption pursuant to this Section 3.2 will be made upon not less than 30
days' nor more than 60 days' notice to the registered holder of the Debentures,
at the Optional Redemption Price. If the Debentures are only partially redeemed
pursuant to this Section 3.2, the Debentures will be redeemed pro rata or by lot
or by any other method utilized by the Trustee; provided, that if at the time of
redemption, the Debentures are registered as a Global Security, the Depositary
shall determine by lot the principal amount of such Debentures held by each
Debenture holder to be redeemed. The Optional Redemption Price shall be paid
prior to 12:00 noon, New York time, on the date of such redemption or at such
earlier time as the Company determines and specifies in the notice of
redemption, provided the Company shall deposit with the Trustee an amount
sufficient to pay the Optional Redemption Price by 11:00 a.m. on the date such
Optional Redemption Price is to be paid.
Section 3.3. No Sinking Fund. The Debentures are not entitled to the
benefit of any sinking fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
Section 4.1. Extension of Interest Payment Period. So long as no
Event of Default has occurred and is continuing, the Company shall have the
right, at any time and from time to time during the term of the Debentures, to
extend the interest payment period of such Debentures for up to ten (10)
consecutive semi-annual periods (the "Extended Interest Payment Period"). To
the extent permitted by applicable law, interest, the payment of which has been
deferred because of the extension of the interest payment period pursuant to
this Section 4.1, will bear interest compounded semi-annually at the Coupon Rate
for each semi-annual period of the Extended Interest Payment Period ("Compounded
Interest"). At the end of the Extended Interest Payment Period, the Company
shall pay all interest accrued and unpaid on the Debentures, including any
Compounded Interest and Additional Interest ("Deferred Interest") which shall be
payable to the holders of the Debentures in whose names the Debentures are
registered in the Security Register on the record date immediately preceding the
end of the Extended Interest Payment Period. Before the termination of any
Extended Interest Payment Period, the Company may further extend such period,
provided that such period together with all such further extensions thereof
shall not exceed ten (10) consecutive semi-annual periods or extend beyond the
Maturity Date of the Debentures. Upon the termination of any Extended Interest
Payment Period and upon the payment of all Deferred Interest then due, the
Company may select a new Extended Interest Payment Period, subject to the
foregoing requirements. No interest shall be due and payable during an Extended
Interest Payment Period, except at the end thereof, but the Company may pay at
any time all or any portion of the interest accrued during an Extended Interest
Payment Period.
Section 4.2. Notice of Extension. (a) If the Property Trustee is
the only registered holder of the Debentures at the time the Company selects an
Extended Interest Payment Period, the Company shall give written notice to the
Administrative Trustees, the Property Trustee and the
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Trustee of its selection of such Extended Interest Payment Period on the earlier
of (i) ten days prior to the next succeeding date on which Distributions on the
Trust Securities issued by the Trust are payable, or (ii) the date the Trust or
the Administrative Trustees are required to give notice of the record or payment
date for such Distributions to the New York Stock Exchange or other applicable
self-regulatory organization or to holders of the Capital Securities issued by
the Trust, but in any event at least ten days before such record date.
(b) If the Property Trustee is not the only holder of the Debentures
at the time the Company selects an Extended Interest Payment Period, the Company
shall give the holders of the Debentures and the Trustee written notice of its
selection of such Extended Interest Payment Period ten days before the earlier
of (i) the next succeeding Interest Payment Date, or (ii) the date the Company
is required to give notice of the record or payment date of such interest
payment to the New York Stock Exchange or other applicable self-regulatory
organization or to holders of the Debentures, but in any event at least ten days
before such record date.
(c) The period in which any notice is given pursuant to paragraphs (a)
or (b) of this Section 4.2 shall be counted as one of the 10 semi-annual periods
permitted in the maximum Extended Interest Payment Period permitted under
Section 4.1.
ARTICLE V
EXPENSES
Section 5.1. Payment of Expenses. In connection with the offering,
exchange and issuance of the Debentures to the Property Trustee, the Company
shall:
(a) pay all costs and expenses relating to the offering, exchange and
issuance of the Debentures;
(b) pay all costs and expenses of the Trust (including, but not
limited to, the fees and expenses of the Property Trustee and the Delaware
Trustee, the costs and expenses relating to the operation of the Trust,
including without limitation, costs and expenses of accountants, attorneys,
statistical or bookkeeping services, expenses for printing and engraving
and computing or accounting equipment, paying agent(s), registrar(s),
transfer agent(s), duplicating, travel and telephone and other
telecommunications expenses and costs and expenses incurred in connection
with the acquisition, financing, and disposition of Trust assets); and
(c) pay any and all taxes (other than United States withholding taxes
attributable to the Trust or its assets) and all liabilities, costs and
expenses with respect to such taxes of the Trust.
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ARTICLE VI
SUBORDINATION
Section 6.1. Agreement to Subordinate. The Company covenants and
agrees, and each holder of Debentures issued hereunder by such holder's
acceptance thereof likewise covenants and agrees, that all Debentures shall be
issued subject to the provisions of this Article VI; and each holder of a
Debenture, whether upon original issue or upon transfer or assignment thereof,
accepts and agrees to be bound by such provisions.
The payment by the Company of the principal of, premium, if any, and
interest on all Debentures issued hereunder shall, to the extent and in the
manner hereinafter set forth, be subordinated and subject in right of payment to
the prior payment in full of all Senior Indebtedness of the Company, whether
outstanding at the date of this Third Supplemental Indenture or thereafter
incurred.
No provision of this Article VI shall prevent the occurrence of any
default or Event of Default hereunder.
Section 6.2. Default on Senior Indebtedness. In the event and during
the continuation of any default by the Company in the payment of principal,
premium, interest or any other payment due on any Senior Indebtedness of the
Company, or in the event that the maturity of any Senior Indebtedness of the
Company has been accelerated because of a default, then, in either case, no
payment shall be made by the Company with respect to the principal (including
redemption payments, if any) of premium, if any, or interest on the Debentures.
In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee or any holder when such payment is prohibited by the
preceding paragraph of this Section 6.2, such payment shall be held in trust for
the benefit of, and shall be paid over or delivered to, the holders of Senior
Indebtedness or their respective representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior Indebtedness may have
been issued, as their respective interests may appear, but only to the extent
that the holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee within 90 days of such payment
of the amounts then due and owing on the Senior Indebtedness and only the
amounts specified in such notice to the Trustee shall be paid to the holders of
Senior Indebtedness.
Section 6.3. Liquidation; Dissolution; Bankruptcy. Upon any payment
by the Company, or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to creditors upon any
dissolution or winding-up or liquidation or reorganization of the Company,
whether voluntary or involuntary or in bankruptcy, insolvency, receivership or
other proceedings, all amounts due upon all Senior Indebtedness of the Company
shall first be paid in full, or payment thereof provided for in money in
accordance with its terms, before any payment is made by the Company on account
of the principal (and premium, if any) or
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interest on the Debentures; and upon any such dissolution or winding-up or
liquidation or reorganization, any payment by the Company, or distribution of
assets of the Company of any kind or character, whether in cash, property or
securities, to which the holders of the Debentures or the Trustee would be
entitled to receive from the Company, except for the provisions of this Article
VI, shall be paid by the Company or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or distribution,
or by the holders of the Debentures or by the Trustee under this Indenture if
received by them or it, directly to the holders of Senior Indebtedness of the
Company (pro rata to such holders on the basis of the respective amounts of
Senior Indebtedness held by such holders, as calculated by the Company) or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior Indebtedness
may have been issued, as their respective interests may appear, to the extent
necessary to pay such Senior Indebtedness in full, in money or money's worth,
after giving effect to any concurrent payment or distribution to or for the
holders of such Senior Indebtedness, before any payment or distribution is made
to the holders of Debentures or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, prohibited by the foregoing, shall be received by the
Trustee or the holders of the Debentures before all Senior Indebtedness of the
Company is paid in full, or provision is made for such payment in money in
accordance with its terms, such payment or distribution shall be held in trust
for the benefit of and shall be paid over or delivered to the holders of such
Senior Indebtedness or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any instruments
evidencing such Senior Indebtedness may have been issued, as their respective
interests may appear, as calculated by the Company, for application to the
payment of all Senior Indebtedness of the Company remaining unpaid to the extent
necessary to pay such Senior Indebtedness in full in money in accordance with
its terms, after giving effect to any concurrent payment or distribution to or
for the benefit of the holders of such Senior Indebtedness.
For purposes of this Article VI, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment, the payment of which
is subordinated at least to the extent provided in this Article VI with respect
to the Debentures to the payment of all Senior Indebtedness of the Company that
may at the time be outstanding, provided that (i) such Senior Indebtedness is
assumed by the new corporation, if any, resulting from any such reorganization
or readjustment, and (ii) the rights of the holders of such Senior Indebtedness
are not, without the consent of such holders, altered by such reorganization or
readjustment. The consolidation of the Company with, or the merger of the
Company into, another corporation or the liquidation or dissolution of the
Company following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the terms and
conditions provided for in Article X of the Indenture shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the purposes of this
Section 6.3 if such other corporation shall, as a part of such consolidation,
merger, conveyance or transfer, comply with the conditions stated
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in Article X of the Indenture. Nothing in Section 6.2 or in this Section 6.3
shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 7.06 of the Indenture.
Section 6.4. Subrogation. Subject to the payment in full of all
Senior Indebtedness of the Company, the rights of the holders of the Debentures
shall be subrogated to the rights of the holders of such Senior Indebtedness to
receive payments or distributions of cash, property or securities of the Company
applicable to such Senior Indebtedness until the principal of (and premium, if
any) and interest on the Debentures shall be paid in full; and, for the purposes
of such subrogation, no payments or distributions to the holders for such Senior
Indebtedness of any cash, property or securities to which the holders of the
Debentures or the Trustee would be entitled except for the provisions of this
Article VI, and no payment over pursuant to the provisions of this Article VI,
to or for the benefit of the holders of such Senior Indebtedness by holders of
the Debentures or the Trustee, shall, as between the Company, its creditors
other than holders of Senior Indebtedness of the Company, and the holders of the
Debentures be deemed to be a payment by the Company to or on account of such
Senior Indebtedness. It is understood that the provisions of this Article VI
are and are intended solely for the purposes of defining the relative rights of
the holders of the Debentures, on the one hand, and the holders of such Senior
Indebtedness on the other hand.
Nothing contained in this Article VI or elsewhere in this Indenture or
in the Debentures is intended to or shall impair, as between the Company, its
creditors other than the holders of Senior Indebtedness of the Company, and the
holders of the Debentures, the obligation of the Company which is absolute and
unconditional, to pay to the holders of the Debentures the principal of (and
premium, if any) and interest on the Debentures as and when the same shall
become due and payable in accordance with their terms, or is intended to or
shall affect the relative rights of the holders of the Debentures and creditors
of the Company, other than the holders of Senior Indebtedness of the Company,
nor shall anything herein or therein prevent the Trustee or the holder of any
Debenture from exercising all remedies otherwise permitted by applicable law
upon default under the Indenture, subject to the rights, if any, under this
Article VI of the holders of such Senior Indebtedness in respect of cash,
property or securities of the Company, received upon the exercise of any such
remedy.
Upon any payment or distribution of assets of the Company referred to
in this Article VI, the Trustee, subject to the provisions of Section 7.01 of
the Indenture, and the holders of the Debentures, shall be entitled to rely upon
any order or decree made by any court of competent jurisdiction in which such
dissolution, winding-up, liquidation or reorganization proceedings are pending,
or a certificate of the receiver, trustee in bankruptcy, liquidation trustee,
agent or other Person making such payment or distribution, delivered to the
Trustee or to the holders of the Debentures, for the purposes of ascertaining
the Persons entitled to participate in such distribution, the holders of Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article VI.
Section 6.5. Trustee to Effectuate Subordination. Each holder of a
Debenture by such holder's acceptance thereof authorizes and directs the Trustee
on such holder's behalf to take
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such action as may be necessary or appropriate to effectuate the subordination
provided in this Article VI and appoints the Trustee such holder's attorney-in-
fact for any and all such purposes.
Section 6.6. Notice by the Company. The Company shall give prompt
written notice to a Responsible Officer of the Trustee of any fact known to the
Company that would prohibit the making of any payment of monies to or by the
Trustee in respect of the Debentures pursuant to the provisions of this Article
VI. Notwithstanding the provisions of this Article VI or any other provision of
the Indenture and this Third Supplemental Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts that would prohibit the
making of any payment of monies to or by the Trustee in respect of the
Debentures pursuant to the provisions of this Article VI unless and until a
Responsible Officer of the Trustee shall have received written notice thereof at
the Principal Office of the Trustee from the Company or a holder or holders of
Senior Indebtedness or from any trustee therefor; and before the receipt of any
such written notice, the Trustee, subject to the provisions of Section 7.01 of
the Indenture, shall be entitled in all respects to assume that no such facts
exist; provided, however, that if the Trustee shall not have received the notice
provided for in this Section 6.6 at least two Business Days prior to the date
upon which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of (or premium, if
any) or interest on any Debenture), then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purposes for which they were
received, and shall not be affected by any notice to the contrary that may be
received by it within two Business Days prior to such date.
The Trustee, subject to the provisions of Section 7.01 of the
Indenture, shall be entitled to rely on the delivery to it of a written notice
by a Person representing himself to be a holder of Senior Indebtedness of the
Company (or a trustee on behalf of such holder) to establish that such notice
has been given by a holder of such Senior Indebtedness or a trustee on behalf of
any such holder or holders. In the event that the Trustee determines in good
faith that further evidence is required with respect to the right of any Person
as a holder of such Senior Indebtedness to participate in any payment or
distribution pursuant to this Article VI, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of such Senior Indebtedness held by such Person, the extent to which such Person
is entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article VI, and if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
Section 6.7. Rights of the Trustee; Holders of Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to all the rights set
forth in this Article VI in respect of any Senior Indebtedness at any time held
by it, to the same extent as any other holder of Senior Indebtedness, and
nothing in the Indenture or this Third Supplemental Indenture shall deprive the
Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness of the Company, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set
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forth in this Article VI, and no implied covenants or obligations with respect
to the holders of such Senior Indebtedness shall be read into the Indenture or
this Third Supplemental Indenture against the Trustee. The Trustee shall not be
deemed to owe any fiduciary duty to the holders of such Senior Indebtedness and,
subject to the provisions of Section 7.01 of the Indenture, the Trustee shall
not be liable to any holder of such Senior Indebtedness if it shall pay over or
deliver to holders of Debentures, the Company or any other Person money or
assets to which any holder of such Senior Indebtedness shall be entitled by
virtue of this Article VI or otherwise.
Section 6.8. Subordination May Not Be Impaired. No right of any
present or future holder of any Senior Indebtedness of the Company to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance by
the Company with the terms, provisions and covenants of the Indenture,
regardless of any knowledge thereof that any such holder may have or otherwise
be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness of the Company may, at any time and from time
to time, without the consent of or notice to the Trustee or the holders of the
Debentures, without incurring responsibility to the holders of the Debentures
and without impairing or releasing the subordination provided in this Article VI
or the obligations hereunder of the holders of the Debentures to the holders of
such Senior Indebtedness, do any one or more the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, such Senior Indebtedness, or otherwise amend or supplement in any manner
such Senior Indebtedness or any instrument evidencing the same or any agreement
under which such Senior Indebtedness is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing such Senior Indebtedness; (iii) release any Person liable in any manner
for the collection of such Senior Indebtedness; and (iv) exercise or refrain
from exercising any rights against the Company and any other Person.
ARTICLE VII
FORM OF DEBENTURE
Section 7.1. Form of Debenture. The Debentures and the Trustee's
Certificate of Authentication to be endorsed thereon are to be substantially in
the following forms:
(FORM OF FACE OF DEBENTURE)
[IF THE DEBENTURE IS TO BE A GLOBAL SECURITY, INSERT: This Debenture
is a Global Security within the meaning of the Indenture hereinafter referred to
and is registered in the name of a Depository or a nominee of a Depository.
This Debenture is exchangeable for Debentures registered in the name of a person
other than the Depository or its nominee only in the limited circumstances
described in the Indenture, and no transfer of this
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Debenture (other than a transfer of this Debenture as a whole by the Depository
to a nominee of the Depository or by a nominee of the Depository to the
Depository or another nominee of the Depository) may be registered except in
limited circumstances.
Unless this Debenture is presented by an authorized representative of
The Depository Trust Company (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) to the issuer
or its agent for registration of transfer, exchange or payment, and any
Debenture 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 hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.]
-15-
No. _______________ $_____________
CUSIP No. __________
COMMONWEALTH EDISON COMPANY
8.50% SERIES B SUBORDINATED DEFERRABLE INTEREST DEBENTURE
DUE JANUARY 15, 2027
COMMONWEALTH EDISON COMPANY, an Illinois corporation (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 January 15,
2027, and to pay interest on said principal sum from January 24, 1997 or from
the most recent interest payment date (each such date, an "Interest Payment
Date") to which interest has been paid or duly provided for, semi-annually
(subject to deferral as set forth herein) in arrears on July 15 and January 15
of each year commencing, July 15, 1997, at the rate of 8.50% per annum until
the principal hereof shall have become due and payable, and on any overdue
principal and premium, if any, and (without duplication and to the extent that
payment of such interest is enforceable under applicable law) on any overdue
installment of interest compounded semi-annually at the same rate per annum.
The amount of interest payable on any Interest Payment Date shall be computed on
the basis of a 360-day year consisting of twelve 30-day months. In the event
that any date on which interest is payable on this Debenture is not a Business
Day, then payment of interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay). The interest installment so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the person in whose name this Debenture
(or one or more Predecessor Securities, as defined in said Indenture) is
registered at the close of business on the first day of the month in which such
Interest Payment Date occurs. Any such interest installment not punctually paid
or duly provided for shall forthwith cease to be payable to the registered
holders on such regular record date, and may be paid to the person in whose name
this Debenture (or one or more Predecessor Securities) is registered at the
close of business on a special record date to be fixed by the Trustee for the
payment of such defaulted interest, notice whereof shall be given to the
registered holders of this series of Debentures not less than ten (10) days
prior to such special record date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Debentures may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in the Indenture. The principal of
(and premium, if any) and the interest on this Debenture shall be payable at the
office or agency of the Trustee maintained for that purpose in Wilmington,
Delaware, in any coin or currency of the United States of America which at the
time of payment is legal tender for payment of public and private debts;
provided, however, that payment of interest may be made at the option of the
Company by check mailed to the registered holder at such address as shall appear
in the Security Register. Notwithstanding the foregoing, so long as the Holder
of this Debenture is the Property Trustee, the
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payment of the principal of (and premium, if any) and interest on this Debenture
will be made at such place and to such account as may be designated by the
Property Trustee.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Indebtedness, and this Debenture is issued
subject to the provisions of the Indenture with respect thereto. Each Holder of
this Debenture, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to acknowledge or effectuate the
subordination so provided and (c) appoints the Trustee his attorney-in-fact for
any and all such purposes. Each Holder hereof, by his acceptance hereof, hereby
waives all notice of the acceptance of the subordination provisions contained
herein and in the Indenture by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such Holder upon
said provisions.
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any purpose
until the Certificate of Authentication hereon shall have been signed by or on
behalf of the Trustee.
The provisions of this Debenture are continued on the reverse side
hereof and such continued provisions shall for all purposes have the same effect
as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
Dated _________________
COMMONWEALTH EDISON COMPANY
By: ________________________________
[Title]
Attest:
By: ____________________________
[Title]
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[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures of the series of Debentures described in the
within-mentioned Indenture.
WILMINGTON TRUST COMPANY, ______________________________
Not in Its Individual Capacity But as Authentication Agent
Solely as Trustee
By: ____________________________ By: _____________________________
Authorized Signatory Authorized Signatory
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of Debt Securities
of the Company (herein sometimes referred to as the "Debentures"), specified in
the Indenture, all issued or to be issued in one or more series under and
pursuant to an Indenture dated as of September 1, 1995, duly executed and
delivered between the Company and Wilmington Trust Company, not in its
individual capacity but solely as trustee (the "Trustee"), as supplemented by
the First Supplemental Indenture dated as of September 19, 1995 between the
Company and the Trustee, the Second Supplemental Indenture dated as of January
24, 1997 between the Company and the Trustee and the Third Supplemental
Indenture dated as of _____________, 1997 between the Company and the Trustee
(the Indenture as so supplemented, the "Indenture"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities thereunder
of the Trustee, the Company and the holders of the Debentures. By the terms of
the Indenture, the Debt Securities are issuable in series which may vary as to
amount, date of maturity, rate of interest and in other respects as in the
Indenture provided. This series of Debt Securities is limited in aggregate
principal amount as specified in said Third Supplemental Indenture.
If a Tax Event has occurred and is continuing, the Company shall have
the right to redeem this Debenture in whole (but not in part) at any time prior
to January 15, 2007 and within 90 days of the occurrence of such Tax Event, at a
redemption price (the "Tax Event Redemption Price") equal to the greater of (i)
100% of the principal amount of this Debenture or (ii) the sum, as determined by
a Quotation Agent, of the present values of the principal amount and premium
payable as part of the redemption price with respect to an optional redemption
of this Debenture on January 15, 2007, together with scheduled payments of
interest on this Debenture accruing from the redemption date to and including
January 15, 2007, in each case discounted to the redemption date
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on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Adjusted Treasury Rate, plus, in each case, accrued interest
thereon to the date of such redemption. The Tax Event Redemption Price shall be
paid prior to 12:00 noon, New York time, on the date of such redemption or at
such earlier time as the Company determines and specifies in the notice of
redemption.
The Company shall have the right to redeem this Debenture, in whole or
in part, from time to time, at any time on or after January 15, 2007 (an
"Optional Redemption"), at a redemption price (the "Optional Redemption Price")
equal to the percentage of the principal amount of this Debenture specified
below, plus, in each case, accrued and unpaid interest thereon to the date of
such redemption if redeemed during the 12-month period beginning January 15 of
the years indicated below:
Year Percentage
---- ----------
2007 104.250%
2008 103.825
2009 103.400
2010 102.975
2011 102.550
2012 102.125
2013 101.700
2014 101.275
2015 100.850
2016 100.425
2017 and thereafter 100.000
Any redemption pursuant to this paragraph will be made upon not less than 30
days' nor more than 60 days' notice, at the Optional Redemption Price. If the
Debentures are only partially redeemed by the Company pursuant to an Optional
Redemption, the Debentures will be redeemed pro rata or by lot or by any other
method utilized by the Trustee; provided that if at the time of redemption, the
Debentures are registered as a Global Security, the Depositary shall determine
by lot the principal amount of such Debentures held by each Debenture holder to
be redeemed.
In the event of redemption of this Debenture in part only, a new
Debenture or Debentures of this series for the unredeemed portion hereof will be
issued in the name of the holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Debentures may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
-19-
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the Debt Securities of each series affected at the
time outstanding, as defined in the Indenture, to execute supplemental
indentures for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of the Indenture or of any supplemental
indenture or of modifying in any manner the rights of the Holders of such Debt
Securities; provided, however, that no such supplemental indenture shall (i)
extend the fixed maturity of this Debenture, or reduce the principal amount
hereof, or reduce the rate or extend the time of payment of interest hereon, or
reduce any premium payable upon the redemption hereof, without the consent of
the Holder hereof or (ii) reduce the aforesaid percentage of Debt Securities,
the Holders of which are required to consent to any such supplemental indenture,
without the consent of the Holders of each Debt Security then outstanding and
affected thereby. The Indenture also contains provisions permitting the Holders
of a majority in aggregate principal amount of the Debt Securities of any series
at the time outstanding affected thereby, on behalf of all of the Holders of the
Debt Securities of such series, to waive any past default in the performance of
any of the covenants contained in the Indenture, or established pursuant to the
Indenture with respect to such series, and its consequences, except a default in
the payment of the principal of or premium, if any, or interest on any of the
Debt Securities of such series. Any such consent or waiver by the registered
Holder of this Debenture (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such Holder and upon all future Holders and owners
of this Debenture and of any Debenture issued in exchange therefor or in place
hereof (whether by registration of transfer or otherwise), irrespective of
whether or not any notation of such consent or waiver is made upon this
Debenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest on this Debenture at the time and place and at the
rate and in the money herein prescribed.
The Company shall have the right, at any time and from time to time
during the term of the Debentures, to extend the interest payment period of the
Debentures (including this Debenture) for up to ten (10) consecutive semi-annual
periods (an "Extended Interest Payment Period"), at the end of which period the
Company shall pay all interest then accrued and unpaid (together with interest
thereon at the rate specified for the Debentures to the extent that payment of
such interest is enforceable under applicable law). Before the termination of
any such Extended Interest Payment Period, the Company may further extend such
Extended Interest Payment Period, provided that such Extended Interest Payment
Period together with all such further extensions thereof shall not exceed ten
(10) consecutive semi-annual periods or extend beyond the Maturity Date of the
Debentures. At the termination of any such Extended Interest Payment Period and
upon the payment of all Deferred Interest then due, the Company may select a new
Extended Interest Payment Period, subject to the foregoing requirements.
As provided in the Indenture and subject to certain limitations
therein set forth, this Debenture is transferable by the registered holder
hereof on the Security Register of the Company, upon surrender of this Debenture
for registration of transfer at the office or agency of the Trustee in
-▇▇-
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company or the Trustee duly executed by the
registered holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Debentures of authorized denominations and for the
same aggregate principal amount and series will be issued to the designated
transferee or transferees. No service charge will be made for any such
transfer, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any paying agent and any Security Registrar
may deem and treat the registered holder hereof as the absolute owner hereof
(whether or not this Debenture shall be overdue and notwithstanding any notice
of ownership or writing hereon made by anyone other than the Security Registrar)
for the purpose of receiving payment of or on account of the principal hereof
and premium, if any, and interest due hereon and for all other purposes, and
neither the Company nor the Trustee nor any paying agent nor any Security
Registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of, premium
(if any) or the interest on this Debenture, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Indenture, against
any incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
[The Debentures of this series are issuable only in registered form
without coupons in denominations of $[1,000] and any integral multiple thereof.]
[This Global Security is exchangeable for Debentures in definitive form only
under certain limited circumstances set forth in the Indenture. Debentures of
this series so issued are issuable only in registered form without coupons in
denominations of $[1,000] and any integral multiple thereof.] As provided in the
Indenture and subject to certain limitations [herein and] therein set forth,
Debentures of this series [so issued] are exchangeable for a like aggregate
principal amount of Debentures of this series of a different authorized
denomination, as requested by the Holder surrendering the same.
All terms used in this Debenture which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE
AND THE DEBENTURES WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS THEREOF.
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ARTICLE VIII
ORIGINAL ISSUE OF DEBENTURES; EXCHANGE
Section 8.1. Original Issue of Debentures. Debentures in the
aggregate principal amount of $154,640,000 may, upon execution of this Third
Supplemental Indenture, be executed by the Company and delivered to the Trustee
for authentication, and the Trustee shall thereupon authenticate and deliver
said Debentures to or upon the written order of the Company, signed by its
Chairman, its President or any Vice President and its Treasurer or an Assistant
Treasurer, without any further action by the Company.
ARTICLE IX
MISCELLANEOUS
Section 9.1. Ratification of Indenture. The Indenture, as
supplemented by the First Supplemental Indenture, the Second Supplemental
Indenture and this Third Supplemental Indenture, is in all respects ratified and
confirmed, and this Third Supplemental Indenture shall be deemed part of the
Indenture in the manner and to the extent herein and therein provided.
Section 9.2. Trustee Not Responsible for Recitals. The recitals
herein contained are made by the Company and not by the Trustee, and the Trustee
assumes no responsibility for the correctness thereof. The Trustee makes no
representation as to the validity or sufficiency of this Third Supplemental
Indenture.
Section 9.3. Governing Law. This Third Supplemental Indenture and
each Debenture shall be deemed to be a contract made under the internal laws of
the State of New York, and for all purposes shall be construed in accordance
with the laws of said State.
Section 9.4. Separability. In case any one or more of the provisions
contained in this Third Supplemental Indenture or in the Debentures shall for
any reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provisions
of this Third Supplemental Indenture or of the Debentures, but this Third
Supplemental Indenture and the Debentures shall be construed as if such invalid
or illegal or unenforceable provision had never been contained herein or
therein.
Section 9.5. Counterparts. This Third Supplemental Indenture may be
executed in any number of counterparts each of which shall be an original; but
such counterparts shall together constitute but one and the same instrument.
-22-
IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, on the date or dates indicated in the
acknowledgments and as of the day and year first above written.
COMMONWEALTH EDISON COMPANY
By: ________________________________
Vice President
[Corporate Seal]
Attest:
_____________________________
Secretary
WILMINGTON TRUST COMPANY,
Not in Its Individual Capacity
But Solely as Trustee
By: ________________________________
Title:
[Corporate Seal]
Attest:
Title:
-▇▇-
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ )
COUNTY OF ▇▇▇▇ ) ss:
On the ____ day of ____________, 1997, before me personally came ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say that
he is a Vice President of COMMONWEALTH EDISON COMPANY, one of the corporations
described in and which executed the above instrument; that he knows the
corporate seal of said corporation; that the seal affixed to the said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
_________________________________
NOTARY PUBLIC
_________________________________
[seal] Commission expires
STATE OF DELAWARE )
COUNTY OF NEW CASTLE ):
On the ________ day of ___________, 1997, before me personally came
W. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and
say that he is a Senior Financial Services Officer of WILMINGTON TRUST COMPANY,
one of the corporations described in and which executed the above instrument;
that he knows the corporate seal of said corporation; that the seal affixed to
the said instrument is such corporate seal; that it was so affixed by authority
of the Board of Directors of said corporation, and that he signed his name
thereto by like authority.
_________________________________
NOTARY PUBLIC
_________________________________
[seal] Commission expires