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As filed with the Securities and Exchange Commission on October 17, 2003
Registration Statement No. 333-108546
Registration Statement No. 333-108546-01
Registration Statement No. 333-108546-02
Registration Statement No. 333-108546-03
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
__________________________
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
__________________________
Exhibit 5.2
[Letterhead of Richards, Layton & Finger, P.A.]
October 15, 2003
Exelon Corporation
Exelon Capital Trust I
Exelon Capital Trust II
Exelon Capital Trust III
10 South Dearborn Street - 37th Floor
P.O. Box 805379
Chicago, IL 60680-5379
Re: Exelon Capital Trust I, Exelon Capital Trust II
and Exelon Capital Trust III
Ladies and Gentlemen:
We have acted as special Delaware counsel for Exelon Capital Trust I,
Exelon Capital Trust II and Exelon Capital Trust III, each a Delaware statutory
trust (each, a "Trust," and collectively, the "Trusts"), in connection with the
matters set forth herein. At your request, this opinion is being furnished to
you.
We have examined and relied upon such records, documents, certificates
and other instruments as in our judgment are necessary or appropriate to enable
us to render the opinions expressed below, including the following documents:
(a) The Certificate of Trust of each Trust, each dated August 25, 2003
(collectively, the "Certificates"), as filed with the office of the Secretary of
State of the State of Delaware (the "Secretary of State") on August 25, 2003;
(b) The Declaration of Trust of each Trust, each dated as of August
25, 2003, among Exelon Corporation, a Pennsylvania corporation (the "Company"),
and the trustees of the Trust named therein;
(c) The Registration Statement (the "Registration Statement") on Form
S-3, including a preliminary prospectus (the "Prospectus"), relating to, among
other things, the trust preferred securities of the Trusts representing
undivided beneficial interests in the assets of each Trust (each, a "Preferred
Security" and collectively, the "Preferred Securities"), as filed by the
Exelon Corporation
Exelon Capital Trust I
Exelon Capital Trust II
Exelon Capital Trust III
October 15, 2003
Page 2 of 3
Company and the Trusts with the Securities and Exchange Commission (the "SEC")
on September 5, 2003, as amended by Amendment No. 1 thereto, as proposed to be
filed by the Company and the Trusts with the SEC on or about October 15, 2003;
(d) A form of Amended and Restated Declaration of Trust for the Trusts
(including Exhibits A and C thereto) (each, a "Declaration," and collectively,
the "Declarations"), to be entered into with respect to each Trust among the
Company, as sponsor, the trustees of such Trust named therein, and the holders,
from time to time, of undivided beneficial interests in the assets of such
Trust, attached as an exhibit to the Registration Statement; and
(e) A Certificate of Good Standing for each Trust, each dated
September 4, 2003, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Declarations.
As to various questions of fact material to our opinion, we have
relied upon the representations made in the foregoing documents and upon
certificates of officers of the Company.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Declarations and the Certificates will be in full force and effect and will not
be amended, (ii) that each of the parties to the documents examined by us (other
than each Trust) has been duly created, organized or formed, as the case may be,
and is validly existing in good standing under the laws of the jurisdiction
governing its creation, organization or formation, (iii) the legal capacity of
natural persons who are parties to the documents examined by us, (iv) that each
of the parties to the documents examined by us (other than each Trust) has the
power and authority to execute and deliver, and to perform its obligations
under, such documents, (v) that each of the parties to the documents examined by
us (other than each Trust) has duly authorized, executed and delivered such
documents, (vi) the receipt by each Person to whom a Preferred Security is to be
issued by a Trust (collectively, the "Preferred Security Holders") of a
Preferred Securities Certificate for such Preferred Security and the payment for
the Preferred Security acquired by it, in accordance with the applicable
Declaration and the Registration Statement, and (vii) that the Preferred
Securities will be issued and sold to the Preferred Security Holders in
accordance with the applicable Declaration and the Registration Statement. We
have not participated in the preparation of the Registration Statement and
assume no responsibility for its contents.
Exelon Corporation
Exelon Capital Trust I
Exelon Capital Trust II
Exelon Capital Trust III
October 15, 2003
Page 2 of 3
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. Each Trust has been duly created and is validly existing in good
standing as a statutory trust under the Delaware Statutory Trust Act (12 Del.C.
ss. 3801, et seq.).
2. The Preferred Securities of each Trust will represent valid and,
subject to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of such Trust.
3. The Preferred Security Holders of a Trust, as beneficial owners of
such Trust, will be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware. We note that the Preferred
Security Holders of a Trust may be obligated to make payments as set forth in
the Declaration of such Trust.
We consent to the filing of this opinion with the SEC as an exhibit to
the Registration Statement. We hereby consent to the use of our name under the
heading "Legal Matters" in the Prospectus. In giving the foregoing consents, we
do not thereby admit that we come within the category of Persons whose consent
is required under Section 7 of the Securities Act of 1933, as amended, or the
rules and regulations of the SEC thereunder.
Very truly yours,
/s/ Richards, Layton & Finger, P.A.
BJK/EJE
Exhibit 8.1
LAW OFFICES
Ballard Spahr Andrews & Ingersoll, LLP BALTIMORE, MD
1735 MARKET STREET, 51ST FLOOR DENVER, CO
PHILADELPHIA, PENNSYLVANIA 19103-7599 SALT LAKE CITY, UT
215-665-8500 VOORHEES, NJ
FAX: 215-864-8999 WASHINGTON, DC
LAWYERS@BALLARDSPAHR.COM WILMINGTON, DE
October 16, 2003
Exelon Corporation
Exelon Capital Trust I
Exelon Capital Trust II
Exelon Capital Trust III
10 South Dearborn Street - 37th Floor
P.O. Box 805379
Chicago, Illinois 60680
Dear Ladies and Gentlemen:
We have acted as United States tax counsel to Exelon Corporation, a
Pennsylvania corporation (the "Company"), and Exelon Capital Trust I, Exelon
Capital Trust II and Exelon Capital Trust III, each a statutory trust formed
under the laws of the State of Delaware (each a "Trust" and, collectively, the
"Trusts"), in connection with the preparation of a Registration Statement on
Form S-3 (such Registration Statement, including the prospectus supplement
relating to the Trusts' trust preferred securities that was a part thereof, is
referred to herein as the "Registration Statement") which was filed by the
Company and the Trust with the Securities and Exchange Commission (the
"Commission") on September 5, 2003, under the Securities Act of 1933, as amended
(the "Securities Act"), relating to the registration of (i) debt securities,
common stock, stock purchase contracts and stock purchase units, preferred stock
and subordinated debt securities of the Company and (ii) trust preferred
securities of the Trusts and related guarantees of the Company.
We are familiar with the proceedings to date with respect to the
Registration Statement and have examined such records, documents and questions
of law, and satisfied ourselves as to such matters of fact, as we have
considered relevant and necessary as a basis for this opinion. In addition, we
have assumed that there will be no change in the laws currently applicable to
the Company and the Trusts and that such laws will be the only laws applicable
to the Company and the Trusts.
Based upon and subject to the foregoing, the statements set forth in
the Registration Statement under the headings "Description of Trust Preferred
Securities - Certain United States Federal Income Tax Consequences," to the
extent they constitute matters of federal income tax law or legal conclusions
with respect thereto, set forth our opinion that under then current law and
subject to certain assumptions, each of the trusts will be characterized for
United States federal income tax purposes as a "grantor trust" and not as an
association or publicly traded partnership taxable as a corporation. If a trust
is properly
Exelon Corporation
Exelon Capital Trust I
Exelon Capital Trust II
Exelon Capital Trust III
October 16, 2003
Page 2 of 2
characterized as a grantor trust, the trust will not be subject to United States
federal income taxes and each beneficial owner of trust preferred securities
will be treated for such purposes as owning a pro rata undivided interest in the
subordinated debt securities, and will be required to include in income any
income with respect to the owner's allocable share of those subordinated debt
securities.
In giving the foregoing opinion, we express no opinion as to the laws
of any jurisdiction other than the law of the United States of America.
This opinion letter is limited to the matters stated herein and no
opinion is implied or may be inferred beyond the matters expressly stated
herein. This opinion is rendered as of the date hereof based on the law and
facts in existence on the date hereof, and we do not undertake, and hereby
disclaim, any obligation to advise you of any changes in law or fact, whether or
not material, which may be brought to our attention at a later date.
We hereby consent to the filing of this opinion with the Commission as
Exhibit 8-1 to the Registration Statement. We also consent to the use of our
name under the heading "Legal Matters" in the Registration Statement. In giving
this consent, we do not hereby admit that we are within the category of persons
whose consent is required under Section 7 of the Securities Act of 1933, as
amended, or the rules or regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ Ballard Spahr Andrews & Ingersoll, LLP
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated January 29, 2003, except for Note 23
for which the date is February 20, 2003, relating to the financial statements,
which appears in the 2002 Annual Report to Shareholders, which is incorporated
by reference in Exelon Corporation's Annual Report on Form 10-K for the year
ended December 31, 2002. We also consent to the incorporation by reference of
our report dated January 29, 2003, except for Note 23 for which the date is
February 20, 2003, relating to the financial statement schedule, which appears
in such Annual Report on Form 10-K. We also consent to the references to us
under the heading "Experts" in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
October 17, 2003