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As filed with the Securities and Exchange Commission on February 12, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CONECTIV
(Exact name of registrant as specified in charter)
Delaware 51-0377417
(State or other jurisdiction of (IRS Employer Identification No.)
Incorporation or organization)
800 King Street
Wilmington, DE 19899-0231
Attn: John C. van Roden, Jr.
(302) 429-3525
(Address, including zip code, and telephone number
including area code, of registrant's principal
executive offices)
Peter F. Clark, Esquire John C. van Roden, Jr.
General Counsel Senior Vice President and Chief Financial Officer
Conectiv Conectiv
800 King Street 800 King Street
Wilmington, DE 19899 Wilmington, DE 19899
(302) 429-3311 (302) 429-3525
(Names, addresses, including zip codes, and telephone numbers, including
area codes, of agents for service)
It is respectfully requested that the Commission send copies of all notices,
orders and communications to:
J. Anthony Terrell, Esquire
Thelen Reid & Priest LLP
40 West 57th Street
New York, New York 10019
(212) 603-2000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the registration statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, please check the following box. /x/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration number of the earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================================
Title of Each Class Amount to be Registered Proposed Maximum Offering Proposed Maximum Amount of Registration
Securities to be Registered Pricing Per Unit (1) Aggregate Offering Price Fee (1)
(1)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities $250,000,000 100% $250,000,000 $69,500.00
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o).
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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The information in this Prospectus is not complete and may be changed. We may
not sell these securities until the Registration Statement filed with the
Securities and Exchange Commission is effective. this prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, PRELIMINARY PROSPECTUS DATED FEBRUARY 12, 1999
CONECTIV LOGO PROSPECTUS
CONECTIV
800 King Street
Wilmington, Delaware 19899
(302) 429-3525
$250,000,000
DEBT SECURITIES
We may offer from time to time unsecured debt securities of
senior notes and debentures and subordinated notes and debentures
and/or other unsecured evidences of indebtedness in one or more series.
The aggregate initial offering price of the securities that are offered
will not exceed $250,000,000. We will offer the securities in an amount
and on terms to be determined by market conditions at the time of the
offering.
We will provide specific terms of these securities in
supplements to this prospectus. You should read this prospectus and any
supplement carefully before you invest. This prospectus may not be used
to sell securities unless accompanied by a prospectus supplement.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OF THE SECURITIES TO BE ISSUED UNDER THIS
PROSPECTUS OR DETERMINED IF THIS PROSPECTUS IS ACCURATE OR ADEQUATE.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is _____, 1999
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TABLE OF CONTENTS
<TABLE>
<S> <C>
ABOUT THIS PROSPECTUS ..................................................... 3
WHERE YOU CAN FIND MORE INFORMATION ....................................... 3
THE COMPANY ............................................................... 5
USE OF PROCEEDS ........................................................... 6
RATIO OF EARNINGS TO FIXED CHARGES ........................................ 6
DESCRIPTION OF DEBT SECURITIES ............................................ 7
PLAN OF DISTRIBUTION ...................................................... 13
LEGAL MATTERS ............................................................. 15
EXPERTS ................................................................... 15
</TABLE>
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that Conectiv ("we"
or "Conectiv") filed with the Securities and Exchange Commission (the "SEC")
utilizing a shelf registration process. Under this shelf process, we may sell
Debt Securities in a cumulative amount up to $250,000,000 in one or more
offerings over the next several years. This prospectus provides you with a
general description of the Debt Securities we may offer. Whenever we sell Debt
Securities under this registration statement, we will provide a prospectus
supplement which will contain specific information about the terms of that
particular transaction. The prospectus supplement or pricing supplement may also
add, update or change information contained in this prospectus. Although we will
try to include all information that we believe may be material to investors,
certain details that may be important to you may have been excluded. To obtain
more detailed information, you should read the exhibits filed by us with this
registration statement or our other SEC filings. You also should read this
prospectus and any prospectus supplement together with the additional
information described under the heading "WHERE YOU CAN FIND MORE INFORMATION."
We also regularly file with the SEC documents that include information
about our financial statements and our company, including information on matters
that might affect our future financial results. Our principal subsidiaries,
Delmarva Power & Light Company ("Delmarva") and Atlantic City Electric Company
("ACE"), also periodically file documents with the SEC. It is important for you
to read these documents, this Prospectus and the applicable Prospectus
Supplement before you invest.
WHERE YOU CAN FIND MORE INFORMATION
AVAILABLE INFORMATION
We file annual, quarterly and special reports, and other information
with the SEC. You may read and copy any document we file at the SEC's Public
Reference Room located at 450 Fifth Street, N. W., Room 1024 Washington, D. C.
20549 or at the SEC's other public reference facilities located at the New York
Regional Office 7 World Trade Center, Suite 1300, New York, New York 10048 and
Chicago Regional Office, Citicorp Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661-2511. Please call the SEC at 1-800-SEC-0330 to obtain
information about the operation of the public reference facilities. The
Company's Common Stock and Class A Common Stock are listed on the New York Stock
Exchange (NYSE: CIV and CIV A).
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Our SEC filings are also available for inspection at the offices of the
New York Stock Exchange at 20 Broad Street, New York, New York 10005. Please
call the New York Stock Exchange at (212) 656-5060 to learn how to obtain
copies. The SEC also maintains an Internet world wide web site that contains
annual and quarterly reports, proxy statements and other information about
issuers. Our SEC filings are available to the public over the Internet at the
SEC's website at http://www.sec.gov. Our SEC filings can also be reviewed at
Conectiv's Internet web site at http://www.conectiv.com. Please click on
"InvestorInfo" on the home page to access our SEC filings.
INCORPORATION BY REFERENCE
We incorporate by reference the information we file with the SEC, which
means we can disclose important information to you by referring you to another
document filed separately with the SEC. The information incorporated by
reference is an important part of this prospectus, and information that we file
with the SEC at a later date will automatically update this prospectus. We
incorporate by reference the documents listed below and any future filings with
the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act
of 1934 until all the Debt Securities are sold:
- - Delmarva's Annual Report on Form 10-K for the year ended December 31,
1997;
- - Combined Atlantic Energy, Inc. ("Atlantic") and ACE's Annual Report on
Form 10-K for the year ended December 31, 1997;
- - Our quarterly reports on Form 10-Q for the periods ended March 31,
1998, June 30, 1998 and September 30, 1998;
- - Delmarva's quarterly reports on Form 10-Q for the periods ended March
31, 1998, June 30, 1998 and September 30, 1998;
- - ACE's quarterly reports on Form 10-Q for the periods ended March 31,
1998, June 30, 1998 and September 30, 1998;
- - Our current reports on Form 8-K dated March 6, 1998 (as amended on
March 9, 1998), April 23, 1998, August 3, 1998, September 18, 1998,
November 2, 1998 and December 8, 1998, and January 26, 1999;
- - ACE's current reports on Form 8-K dated March 3, 1998, March 5, 1998,
September 18, 1998 and December 7, 1998; and
- - Delmarva's current reports on Form 8-K dated March 3, 1998, March 4,
1998, March 9, 1998 and January 26, 1999.
You may request a copy of these filings at no cost, by writing or
telephoning us at the following address:
Corporate Secretary -- Assistant Secretary
Conectiv
800 King Street
Wilmington, Delaware 19899
(302) 429-3935
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You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. We may only use this
prospectus to sell Debt Securities if it is accompanied by a prospectus
supplement. We are only offering these Debt Securities in states where the offer
is permitted. You should not assume that the information in this prospectus or
any applicable prospectus supplement is accurate as of any date other than the
date on the front of those documents.
THE COMPANY
Conectiv is a registered public utility holding company under the
Public Utility Holding Company Act of 1935, as amended ("PUHCA") and is
headquartered in Wilmington, Delaware. On March 1, 1998, through a combination
of Delmarva and Atlantic, Delmarva and its direct subsidiaries and Atlantic's
direct subsidiaries, including ACE, became direct subsidiaries of the Company
and Atlantic was merged out of existence. Delmarva was incorporated under the
laws of the State of Delaware in 1909 and under the laws of the Commonwealth of
Virginia in 1979. Delmarva's primary business includes producing, purchasing,
delivering and selling electricity; purchasing, transporting and selling natural
gas; and providing other services which are primarily energy-related. Delmarva
provides electric service in Delaware, Maryland and Virginia and gas service in
Delaware. ACE is a public utility company organized under the laws of the State
of New Jersey in 1924 by the merger and consolidation of several utility
companies. ACE is engaged in the generation, transmission, distribution, and
sale of electric energy in the southern part of New Jersey.
Conectiv provides vital services (energy, telecommunications, heating,
cooling, plumbing) to homes and businesses in the mid Atlantic region. We
currently have 950,000 regulated retail energy customers and 175,000
nonregulated retail energy, services and telecommunications customers in
Delaware, southern New Jersey, and parts of Virginia, Maryland and southeastern
Pennsylvania.
Conectiv is organized in three business groups: Energy, Services and
Power Delivery. Energy is a multi-fueled, asset-backed energy (electric, natural
gas, oil) provider to regulated and unregulated customers throughout the mid
Atlantic region. Power Delivery delivers electricity and natural gas in four
regulated franchise jurisdictions. Services includes Conectiv Communications
Inc. ("CCI"), Conectiv Services Inc. ("CSI") and Conectiv Thermal Inc. ("CTS").
CCI was formed in November 1997 and provides facilities-based local and long
distance telecommunications services. CSI commenced operations in 1996 and has
grown through acquisitions. CTS began operation in 1995 and provides thermal
energy services to large commercial and industrial customers, including casinos,
hotels and office complexes, primarily in New Jersey.
We have received authorization from the SEC pursuant to the PUHCA for
certain actions designed to further simplify and consolidate our non-utility
subsidiaries. The restructuring will be accomplished in two phases with final
phase to be completed by June 1999.
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The information above concerning Conectiv and its subsidiaries is only
a summary and does not purport to be comprehensive. For additional information
concerning the Company and its subsidiaries, you should refer to the information
described in "Where You Can Find More Information."
The principal executive offices of Conectiv are located at 800 King
Street, Wilmington, DE 19899 and the telephone number for Conectiv information
is 1-800-424-8401.
USE OF PROCEEDS
Unless the applicable prospectus supplement indicates otherwise, we
anticipate adding the net proceeds to be received from the sale of the offered
Debt Securities to our general funds, which may be used to:
- - repay short-term debt;
- - repurchase shares of our common stock;
- - finance capital expenditures of non-regulated subsidiary companies; and
- - provide working capital.
Until all of the net proceeds are used, they may be temporarily invested in
short-term interest-bearing securities.
RATIO OF EARNINGS TO FIXED CHARGES
Our consolidated ratios of earnings to fixed charges for the periods
indicated are as follow:
<TABLE>
<CAPTION>
TWELVE MONTHS ENDED DEC. 31
TWELVE MONTHS ENDED ---------------------------
SEPTEMBER 30, 1998 1997 1996 1995 1994 1993
- ------------------ ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
2.62 2.63 2.83 2.92 2.85 2.88
</TABLE>
For purposes of computing the ratio, earnings are net income plus income taxes
and fixed charges, less nonutility capitalized interest. Fixed charges consist
of interest on long- and short-term debt, amortization of debt discount, premium
and expense, preferred stock dividend requirements of subsidiaries and interest
on leases. Preferred dividend requirements for purposes of computing the ratio
have been increased to an amount representing the pre-tax earnings that would be
required to cover such dividend requirements.
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DESCRIPTION OF DEBT SECURITIES
The following description states the general terms and provisions of
our unsecured debt securities. In this prospectus, "Debt Securities" means the
debentures, notes, bonds and other evidences of indebtedness that we will issue
and the Trustee will authenticate and deliver under an Indenture to be entered
into between us and the trustee, the First Union Trust Company, National.
Association. The prospectus supplement will describe the specific terms of the
Debt Securities offered through that prospectus supplement and any general terms
outlined in this section that will not apply to those Debt Securities.
We have summarized certain terms and provisions of the Indenture in
this section. The summary is not complete. We have also filed the form of the
Indenture as an exhibit to this registration statement. You should read the form
of Indenture for additional information before you buy any Debt Securities. The
Indenture will be qualified under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"). You should refer to the Trust Indenture Act for
provisions that apply to the Debt Securities. In the summary, we have included
references to section numbers of the Indenture so that you can more easily
locate these provisions. This summary also is subject to and qualified by
reference to the description of the particular terms of the Debt Securities
described in the applicable prospectus supplement or supplements and pricing
supplement or supplements. Capitalized terms used but not defined in this
summary have the meanings specified in the Indenture.
GENERAL
The Debt Securities will be our direct, senior, unsecured obligations
and will rank equally with any other senior, unsecured debt of Conectiv. Debt
Securities issued under the Indenture will be issued as part of a series that
has been established pursuant to a supplemental indenture, a Board Resolution or
an Officer's Certificate designating the specific terms of the series of Debt
Securities (Section 2.01). These terms will be described in a prospectus
supplement and will include, among other things, the following:
- - The title of the Debt Securities of the series;
- - The denominations in which the Debt Securities can be issued if other
than denominations of $1,000 or any integral multiple thereof;
- - Any limit upon the aggregate principal amount of the Debt Securities;
- - The dates on which the principal and premium, if applicable, of the
Debt Securities will be payable;
- - The interest rate which the Debt Securities will bear and the interest
rate payment dates for the Debt Securities;
- - The place or places where the principal of and premium, if any, and
interest, if any, on any of the Debt Securities will be payable;
- - The percentage of the principal amount at which the Debt Securities
will be issued and any optional redemption provisions that would permit
us to redeem the Debt Securities prior to their final maturity;
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- - Any sinking fund provisions that would obligate us to repurchase or to
redeem part or all of the Debt Securities prior to their final
maturity;
- - Any deletions or modifications of or additions to the Events of Default
or covenants of Conectiv;
- - The applicability of the provisions described under the Heading
"Defeasance" to the Debt Securities;
- - Whether the Debt Securities will be issued in whole or in part in the
form of a "global security" (meaning a debt security issued under the
Indenture to represent all or part of an entire series of Debt
Securities); and
- - Any other terms of the Debt Securities.
Some of the Debt Securities may be issued at a discount below their
stated principal amount bearing no interest or a reduced interest rate. These
Debt Securities are known as "Discount Securities." In such a case, any
applicable United States federal income tax consequences and other special
factors applicable to the Discount Securities should be considered prior to
purchasing such Discount Securities and will be described in a prospectus
supplement.
PAYMENT OF DEBT SECURITIES (Sections 2.01 and 2.12)
Unless we state differently in a prospectus supplement, we may make
interest payments on any series of Debt Securities by mailing a check to the
address of the Holder listed on the Security Registrar's books or by wire
transfer to the account of any Holder as of the close business on the regular
record date relating to such payment. However, we will pay interest payable at
maturity to the person to whom the principal is paid. If we have defaulted in
the payment of interest on any Debt Security, then we shall pay defaulted
interest in any lawful manner. We may pay such defaulted interest to the Holders
of Debt Securities as of the close of business on a date at least 5 days prior
to the date on which we propose to pay such defaulted interest.
Unless otherwise specified in the prospectus supplement, we will pay
principal, premium, if any, and interest on the Debt Securities at maturity upon
presentation of the Debt Securities at the corporate trust office of First Union
Trust Company, National Association, One Rodney Square, 920 King Street
Wilmington, Delaware, 19801.
REGISTRATION AND TRANSFER (Sections 2.05 and 2.08)
You may exchange or transfer Debt Securities at the office of the
Trustee. The Trustee acts as our agent for registering Debt Securities in the
names of Holders and transferring Debt Securities. The Company may appoint or
remove additional agents or may act as its own agent for this purpose. The
Company may at its discretion change the place for registration of transfer of
the Debt Securities.
Except as otherwise provided in a prospectus supplement, there will be
no service charge for the registration of transfer or exchange of any Debt
Security but we may require you to pay any applicable tax or other governmental
charge payable in connection with the registration of transfer or exchange of
Debt Securities. We are not required to execute or to provide for the
registration of transfer of, or the exchange
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of, Debt Securities during a period of 15 days prior to giving any notice of
redemption of such Debt Securities called for redemption or (b) any Debt
Securities selected for redemption, except the unredeemed portion of any Debt
Securities being redeemed in part.
CONSOLIDATION, MERGER OR SALE (SECTION 4.01)
The Indenture generally permits us to merge or consolidate with or to
sell or lease all or substantially all of our assets to another United States
based company as long as:
- - the resulting entity expressly assumes all of our obligations under the
Debt Securities and Indenture;
- - immediately after the transaction, no Event of Default exists;
- - Conectiv delivers to the Trustee an officer's certificate and legal
opinion stating that the transaction complies with the Indenture; and
- - certain other conditions are met.
If we merge or consolidate with or sell all or substantially all of our
assets to another United States based company, and satisfy the conditions
enumerated above, then we will be relieved of all obligations under the
Indenture and the Debt Securities.
EVENTS OF DEFAULT (SECTION 5.01)
"Event of Default," when used in the Indenture with respect to any
series of Debt Securities, means any of the following:
- - failure to pay interest on Debt Securities for 30 days after the same
becomes due;
- - failure to pay principal on Debt Securities when due;
- - failure to comply with any of our agreements in the Debt Securities or
the Indenture that applies to Debt Securities for 60 days after
receiving written notice of such failure;
- - certain events in bankruptcy, insolvency or reorganization of Conectiv;
or
- - any other Event of Default described in a prospectus supplement
applicable to that certain series of Debt Securities.
REMEDIES
Acceleration of Maturity (Section 5.02 and 5.03)
If an Event of Default (other than an Event of Default with respect to
certain events in bankruptcy, insolvency or reorganization of Conectiv) occurs
and is continuing, then either the Trustee or the Holders of
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not less than 33% in aggregate principal amount of Debt Securities may declare
the principal amount (or if \ any of the Debt Securities are Discount
Securities, such portion of the principal amount thereof as may specified in the
terms thereof) of all such Debt Securities, together with premium, if any, and
accrued interest, if any, to be due and payable immediately by written notice to
us (and to the Trustee if given by the Holders of Debt Securities). If such a
declaration is made, the Holders of a majority of the aggregate principal amount
of that series can void the declaration.
If any Event of Default with respect to certain events in bankruptcy,
insolvency or reorganization of Conectiv occurs and is continuing, the principal
of, together with premium, if any, and interest, if any, on all the Debt
Securities shall become and be immediately due and payable without any
declaration or other act on the part of the Trustee of any Holders.
With certain exceptions, the Holders of a majority in principal amount
of the Debt Securities may waive an existing Event of Default. If all existing
Events of Default have been waived or cured, except nonpayment of any amount
that has become due solely because of acceleration, any such acceleration and
its consequences shall be automatically rescinded unless such rescission would
conflict with any judgment or decree.
The prospectus supplement for each series of Debt Securities that are
Discount Securities will describe the particular provisions that relate to the
acceleration of maturity of a portion of the principal amount of such series
when an Event of Default occurs and continues.
Right to Direct Proceedings (Section 5.05)
If an Event of Default occurs and is continuing, the Holders of a
majority in Principal Amount of the Debt Securities will have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or of exercising any trust or power conferred on the
Trustee; provided, however, that (a) such direction does not conflict with any
rule of law or with the Indenture, and could not involve the Trustee in personal
liability in circumstances where indemnity would not, in the Trustee's sole
discretion, be adequate, (b) the Trustee determines that such direction does not
unduly prejudice the rights of the other Holders and (c) the Trustee may take
any other action deemed proper by the Trustee which is not inconsistent with
such direction.
Limitation on Right to Institute Proceedings (Section 5.06)
No Holder of Debt Securities shall have the right to pursue any remedy
with respect to the Indenture or the Debt Securities unless:
(a) the Holder provides the Trustee with written notice of a
continuing Event of Default;
(b) the Holders of at least 33% in Principal Amount of the Debt
Securities make a written request to the Trustee to pursue the
remedy and have offered the Trustee reasonable security or
indemnity against any loss, liability or expense;
(c) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of security or
indemnity; and
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(d) the Holders of a majority of the [Principal Amount] of the
Debt Securities do not give the Trustee a direction
inconsistent with the request during the 60-day period.
No Impairment of Right to Receive Payment (Section 5.07)
Notwithstanding any other provision in the Indenture (including
remedies which are subject to conditions precedent), each Holder of Debt
Securities will have the right, which is absolute and unconditional, to receive
payment of the principal of and premium, if any, and interest, if any, on the
Debt Securities when due and to institute suit for the enforcement of any such
payment. Such rights may not be impaired or affected without the consent of such
Holder.
Notice of Default (Section 6.05)
If an Event of Default occurs and is continuing and if it is known to
the Trustee, the Trustee shall mail to each Holder of Debt Securities notice of
the Event of Default. The Trust Indenture Act currently permits the Trustee to
withold notices of default (except for certain payment defaults) if the Trustee
in good faith determines that withholding the notice is in the interests of the
Holders.
MODIFICATION OF THE INDENTURE (SECTIONS 5.04, 8.01 AND 8.02)
Modification Without Consent
Conectiv and the Trustee may amend the Indenture or the Debt Securities
without notice for any of the following purposes:
- to cure any ambiguity, omission, defect or inconsistency, or
to make any other changes that do not adversely affect the
rights of any holder of the Debt Securities in any material
respect; or
- to evidence the succession of another entity to Conectiv and
the assumption by any such successor of the covenants of
Conectiv in the Indenture and the Debt Securities; or
- to provide for the procedures required to permit Conectiv to
utilize, at its option, a non-certificated system of
registration for all or any series of the Debt Securities; or
- to provide collateral security for the Debt Securities; or
- to add to the covenants of Conectiv for the benefit of all
Holders of the Debt Securities of one or more specific series
or for the benefit of the holders of the Debt Securities or to
surrender any right or power herein conferred upon Conectiv by
the Indenture; or
- to make any change that does not adversely affect the rights
of any holder of any Debt Securities in any material respect.
Without limiting the generality of the foregoing, if the Trust
Indenture Act is amended after the date
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of the Indenture so as to require changes to the Indenture or the incorporation
therein of additional provisions or so as to permit changes to, or the
elimination of, provisions which, at the date of the Indenture or at any time
thereafter, were required by the Trust Indenture Act to be contained in the
Indenture, the Indenture will be deemed to have been amended so as to conform to
such amendment or to effect such changes or elimination, and the Company and the
Trustee may, without the consent of any holders of any Debt Securities, enter
into one or more supplemental indentures to evidence or effect such amendment.
Modification With Consent
Conectiv and the Trustee may amend and/or supplement the Indenture or
the Debt Securities without notice to any Holder but with the written consent of
the Holders of more than 50% of the aggregate principal amount of outstanding
Debt Securities of each series affected by the change. Without the consent of
each Holder affected, any amendment may not:
- reduce the amount of Debt Securities whose Holders must
consent to an amendment;
- reduce the rate of or extend the time for payment of interest
on any Debt Security;
- reduce the principal of or extend the fixed maturity of any
Debt Security;
- reduce the premium payable upon the redemption of any Debt
Security or change the time at which any Debt Security may or
shall be redeemed;
- make any Debt Security payable in money other than that stated
in the Debt Security; or
- reduce the number of holders of Debt Securities that are
required for any waiver of default under the Indenture.
We may enter into supplemental indentures for other specified purposes,
including the creation of a new series of Debt Securities, without the consent
of any Holder of Debt Securities.
DEFEASANCE (SECTION 7.01)
We will be discharged from our obligations on the Debt Securities of
any series, or any portion of the principal amount thereof, at any time that we
irrevocably deposit in trust with the Trustee or any Paying Agent (other than
Conectiv) cash or non-redeemable U.S. Government Obligations, or a combination
of the two, sufficient to pay the principal of, interest, and any premium or
other sums due to the maturity date or a redemption date of the Debt Securities
of the series. If this happens, the Holders of Debt Securities of the series
will not be entitled to the benefits of the Indenture except for registration of
transfer and exchange of Debt Securities and replacement of lost, stolen or
mutilated Debt Securities.
"U.S. Government Obligations" include direct obligations of, or
obligations unconditionally guaranteed by, the United States entitled to the
benefit of the full faith and credit thereof and certificates, depositary
receipts or other instruments which evidence a direct ownership interest in such
obligations or in any specific interest or principal payments due in respect
thereof.
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DISCHARGE OF INDENTURE (SECTION 7.02)
The Indenture will cease to be of any effect when:
- - all previously issued Debt Securities have been delivered to the
Trustee for cancellation and have been deemed paid; and
- - all sums payable by us under the Indenture have been paid.
REDEMPTION (SECTIONS 9.02, 9.03 AND 9.04)
The terms for the redemption of Debt Securities will be stated in the
applicable prospectus supplement. Unless the prospectus supplement states
differently and except with respect to Debt Securities redeemable at the option
of the Holder, Debt Securities will be redeemable upon notice by mail to each
Holder of Debt Securities to be redeemed between 30 and 60 days prior to the
redemption date. If less than all of the Debt Securities of any series are to be
redeemed, the Trustee will select the Debt Securities to be redeemed pro rata,
by lot or by a another method as the Trustee deems fair and appropriate. Debt
Securities selected by the Trustee shall be in the amounts of $1,000 or in the
minimum principal denomination for the such series of Debt Securities.
Any notice of redemption at the option of Conectiv may state that such
redemption will be conditional upon receipt by the Paying Agent of monies
sufficient to redeem all the Securities called for redemption not later than the
opening of business on the redemption date. If such moneys are to be deposited
by such date and time, the Trustee shall promptly notify the holders of all
Securities called for redemption of such fact and Conectiv shall not be required
to redeem such securities.
Debt Securities will cease to bear interest on the redemption date.
Upon the surrender of your Debt Securities, Conectiv will pay the redemption
price plus any premium and accrued interest. If only part of the Debt Securities
is redeemed, the Trustee will deliver to you a new Debt Security of the same
series for the remaining portion.
PLAN OF DISTRIBUTION
We may sell the Debt Securities offered under this prospectus through
underwriters, agents or dealers or directly to purchasers.
UNDERWRITERS
Any agents or underwriters will be identified and their compensation
(including underwriting discount) will be described in the applicable prospectus
supplement. The prospectus supplement will also describe other terms of the
offering, including any discounts or concessions allowed or reallowed or paid to
dealers and any securities exchanges on which the offered securities may be
listed.
13
<PAGE> 15
The distribution of Debt Securities under this prospectus may occur
from time to time in one or more transactions at a fixed price or prices, which
may be changed, at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices.
AGENTS AND DIRECT SALES
If the applicable prospectus supplement indicates, we will authorize
dealers or our agents to solicit offers by certain institutions to purchase
offered Debt Securities from us pursuant to contracts that provide for payment
and delivery on a future date. We must approve all institutions, but they may
include, among others:
- - commercial and savings banks;
- - insurance companies;
- - pension funds;
- - investment companies; and
- - education and charitable institutions.
The institutional purchaser's obligations under the contract are
subject only to the condition that the purchase of the offered Debt Securities
at the time delivery is allowed by any laws that govern the purchaser. The
dealers and our agents will not be responsible for the validity or performance
of the contracts.
GENERAL INFORMATION
Underwriters, dealers and agents participating in a sale of Debt
Securities may be deemed to be underwriters as defined in the Securities Act,
and any discounts and commissions received by them and any profit realized by
them on resale of the Debt Securities may be deemed to be underwriting discounts
and commissions under the Securities Act. We may have agreements with the
agents, underwriters and dealers to indemnify them against certain civil
liabilities, including liabilities under the Securities Act, or to contribute
with respect to payments which the agents, underwriters or dealers may be
required to make as a result of those certain civil liabilities.
Unless we indicate differently in a prospectus supplement, we will not
list the Debt Securities on any securities exchange. If we sell a security
offered under this prospectus to an underwriter for public offering and sale,
the underwriter may make a market for that security but is not obligated to do
so. Therefore, we cannot give any assurances to you concerning the liquidity of
any security offered under this prospectus.
Agents and underwriters and their affiliates may be customers of,
engage in transactions with, or perform services for us or our subsidiary
companies in the ordinary course of business.
14
<PAGE> 16
LEGAL MATTERS
The validity of the Debt Securities will be passed upon for Conectiv by
Peter F. Clark, General Counsel for Conectiv, and for the underwriters or agents
by Thelen Reid & Priest LLP, New York, New York. Thelen Reid & Priest, LLP
represents Conectiv in connection with certain federal income tax matters.
EXPERTS
The consolidated balance sheets of Delmarva and its subsidiaries as of
December 31, 1997 and 1996, and the related consolidated statements of income,
changes in common stockholders' equity and cash flows for each of the three
years in the period ended December 31, 1997, incorporated by reference in this
Registration Statement, have been incorporated herein in reliance on the report
of Coopers & Lybrand L.L.P., independent accountants, as given on the authority
of that firm as experts in accounting and auditing.
The consolidated financial statements of Atlantic Energy, Inc. and ACE
incorporated herein by reference from their respective Annual Reports on Form
10-K for the year ended December 31, 1997 have been audited by Deloitte & Touche
LLP, independent auditors, as stated in their reports, which are incorporated
herein by reference, and have been so incorporated in reliance upon the reports
of such firm given upon their authority as experts in accounting and auditing.
15
<PAGE> 17
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth those expenses to be incurred by the
Conectiv in connection with the issuance and distribution of the Debt Securities
being registered, other than underwriting discounts and commissions. All of the
amounts shown are estimates, except the applicable Securities and Exchange
Commission registration fee.
<TABLE>
<S> <C>
Securities and Exchange Commission Filing Fees......................... $69,500
Printing Expenses...................................................... $30,000*
Trustee's Fees and Expenses............................................ $ 5,000
Legal Fees and Expenses................................................ $75,000*
Independent Public Accountants' Fees and Expenses...................... $40,000*
Rating Agency Fees..................................................... $40,000*
Blue Sky Filing Fees and Expenses...................................... $ 7,500*
Miscellaneous Expenses................................................. $_______
Total Expenses................................................ $267,000*
*Estimated
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Conectiv is a Delaware corporation. Under Section 145 of the General
Corporation Law of the State of Delaware, the Conectiv has the power to
indemnify its directors and officers, subject to certain limitations.
The Restated Certificate and Articles of Incorporation of Conectiv
provide that Conectiv shall indemnify, to the full extent that it shall have
power to do so under applicable law, each director and officer against all costs
and liabilities reasonably incurred by or imposed on such persons in connection
with any litigation in which such director or officer may be involved by reason
of being or having been a director or officer of Conectiv. This provision is not
exclusive of other rights to which any director or officer may otherwise be
entitled.
The Restated Certificate and Articles of Incorporation of Conectiv also
provide that, to the extent the Delaware General Corporation Law is amended to
authorize further eliminating or limiting the personal liability of directors,
the liability of the directors of the Corporation shall be eliminated or limited
to the fullest extent permitted by the Delaware General Corporation Law.
Subject to certain exceptions, the directors and all corporate officers
of Conectiv are insured for not less than $75,000,000 for of any claim or claims
that may be made against them, including those claims arising under the
Securities Act, and caused by any negligent act, any error, any omission or any
breach of
II-1
<PAGE> 18
duty while acting in their capacities as such directors or officers, and
Conectiv is insured to the extent that it shall have indemnified the directors
and officers for such loss. The premiums for such director and officer insurance
are paid by Conectiv.
The foregoing summaries are necessarily subject to the complete text of
the statute, certificate of incorporation and insurance policy referred to above
and are qualified in their entirety by reference thereto.
ITEM 16. EXHIBITS
Reference is made to the Exhibit Index filed herein at Page II-5, such Exhibit
Index is being incorporated in this Item 16 by reference.
ITEM 17. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
1. To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration
Statement:
i. To include any prospectus required by Section
10(a)(3) of the Securities Act;
ii. To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the
total dollar value of securities offered would not
exceed that which was registered) and any deviation
from the low or high end of the estimated maximum
offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective Registration Statement; and
iii. To include any material information with respect to
the plan of distribution not previously disclosed in
the Registration Statement or any material change to
such information in the Registration Statement;
provided, however, that paragraphs (l)(i) and (l)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or 15(d) of the Exchange Act that are incorporated by reference in
the Registration Statement.
2. That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
II-2
<PAGE> 19
3. To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
4. That, for purposes of determining any liability under the
Securities Act, each filing of the registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act
that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers and controlling persons of the registrant
pursuant to the provisions described under Item 15 above, or otherwise, the
registrant has been advised that in the opinion of the SEC such indemnification
is against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted against the
Conectiv by such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
II-3
<PAGE> 20
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, Conectiv
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Wilmington and State of Delaware on the 12th of
February, 1999.
CONECTIV
By /s/ J.C. VAN RODEN, JR.
Name: J.C. van Roden, Jr.
Title: Senior Vice President and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed on the 12th day of February, 1999 by the
following persons in the capacities indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ H.E. COSGROVE Chairman of the Board, Chief Executive Officer and
- ----------------------- Director
(H. E. Cosgrove) (Principal Executive Officer)
/s/ J.C. VAN RODEN, JR. Senior Vice President and Chief Financial Officer
- ----------------------- (Principal Financial Officer)
(J.C. van Roden, Jr.)
/s/ J. P. LAVIN Controller
- ----------------------- (Principal Accounting Officer)
(J. P. Lavin)
</TABLE>
M. G. Abercrombie )
R. D. Burris )
A. K. Doberstein ) Directors*
M. B. Emery )
S. I. Gore )
C. Holley )
J. L. Jacobs )
R. B. Mc Glynn ) Directors*
B. J. Morgan )
W. E. Nellius )
H. Raveche )
* Louis M. Walters, by signing his name hereto on the 12th day of February,
1999, does hereby sign this document pursuant to powers duly executed by the
Directors named, filed with the Securities and Exchange Commission on behalf of
such Directors, all in the capacities and on the date stated, such persons all
being Directors of the Registrant.
/s/ Louis M. Walters
--------------------
Louis M. Walters, Attorney-in-Fact
II-4
<PAGE> 21
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- ------ ----------------------
<S> <C> <C>
1 --- Form of Distribution Agreement (for the offering of
Medium-Term Notes)
4(a) --- Form of Indenture between the Company and First Union Trust
Company, National Association, Trustee
5 --- Opinion of Peter F. Clark, Esq. (to be filed by amendment)
12 --- Statement of Ratio of Earnings to Fixed Charges (Incorporated
by reference to the Company's quarterly report on Form 10-Q
for the period ended September 30, 1998)
23 --- Consent of Peter F. Clark, Esq. (Included in Exhibit 5)
23(b) --- Consent of PricewaterhouseCoopers LLP, independent accountants
23(c) --- Consent of Deloitte & Touche LLP, independent auditors
24 --- Powers of Attorney
25 --- Statement of Eligibility of Trustee
</TABLE>
II-5
<PAGE> 1
EXHIBIT 1
CONECTIV
$___________
Medium-Term Notes, Series __
DISTRIBUTION AGREEMENT
[insert date]
[insert names and addresses of agents]
Ladies and Gentlemen:
Conectiv, a Delaware corporation (the "Company"), proposes to issue and
sell from time to time its Medium Term Notes, Series __ (the "Securities"), in
an aggregate amount up to [insert aggregate principal amount] and agrees with
each of you (individually, an "Agent", and collectively, the "Agents") as set
forth in this Agreement.
Subject to the terms and conditions stated herein and to the
reservation by the Company of the right to sell Securities directly on its own
behalf, the Company hereby (i) appoints each Agent as an agent of the Company
for the purpose of soliciting and receiving offers to purchase Securities from
the Company pursuant to Section 2(a) hereof and (ii) agrees that, except as
otherwise contemplated herein, whenever it determines to sell Securities
directly to any Agent, as principal, it will enter into a separate agreement
(each a "Terms Agreement") in accordance with Section 2(b) hereof.
The Securities will be issued under an Indenture, dated as of [insert
date], as it may be supplemented and amended (the "Indenture"), between the
Company and First Union Trust Company, National Association, as Trustee (the
"Trustee"). The Securities shall have the maturity ranges, interest rates,
redemption provisions and other terms set forth in the Prospectus referred to
below as it may be amended or supplemented from time to time. The Securities
will be issued, and the terms and rights thereof established, from time to time
by the Company in accordance with the Indenture and the Administrative Procedure
set forth on Annex II hereto.
1. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, each Agent that:
(a) A registration statement (No. ), together with
amendments thereto, if any, with respect to the Securities has
been prepared by the Company and filed with the Securities and
Exchange Commission (the "Commission") in conformity with the
rules, regulations
<PAGE> 2
-2-
and releases of the Commission (the "Rules and Regulations")
under the Securities Act of 1933, as amended (the "Act"). Such
registration statement has been declared effective by the
Commission and the Indenture has been qualified under the
Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"). Copies of such registration statement, together with
all amendments thereto, if any, have heretofore been delivered
to each Agent, and copies of any amendments thereto, including
the exhibits filed therewith, which shall be filed subsequent
to the date hereof also will be delivered to each Agent. Such
registration statement, including all exhibits thereto but
excluding the Statement of Eligibility of the Trustee, as
amended at the time it became effective, is hereinafter called
the "Registration Statement" (the prospectus included in the
Registration Statement, as such prospectus may have been
amended to the date hereof, being hereinafter called the
"Basic Prospectus"); the Basic Prospectus, as amended by a
prospectus supplement relating to the Securities and the plan
of distribution thereof, in the form in which such prospectus
supplement most recently has been filed with the Commission
pursuant to Rule 424(b) under the Act on or prior to the date
of this Agreement, is hereinafter called the "Prospectus"; any
reference herein to the Registration Statement, the Basic
Prospectus or the Prospectus shall be deemed to refer to and
include the documents filed by the Company under the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and incorporated by reference therein (the
"Incorporated Documents") as of the date of such Registration
Statement, Basic Prospectus or Prospectus, as the case may be;
any reference to any amendment or supplement to the Basic
Prospectus or the Prospectus, including any supplement to the
Prospectus that sets forth only the terms of a particular
issue of the Securities (a "Pricing Supplement"), shall be
deemed to refer to and include the Incorporated Documents as
of the date of such amendment or supplement; and any reference
to the Prospectus as amended or supplemented shall be deemed
to refer to and include the Prospectus as then amended or
supplemented (including the applicable Pricing Supplement) in
relation to a particular issue of Securities, in the form
filed with the Commission pursuant to Rule 424(b) under the
Act, including any Incorporated Documents as of the date of
such filing.
(b) No stop order suspending the effectiveness of the Registration
Statement nor any order preventing or suspending use of the
Prospectus nor any order directed to the adequacy or accuracy
of any Incorporated Document has been issued by the
Commission, and no proceeding for any such purpose has been
initiated or is pending or, to the knowledge of the Company,
is contemplated by the Commission.
(c)(i) The Registration Statement as amended, as of each applicable
Effective Date (as hereinafter defined), complied and will
comply in all material respects with the applicable provisions
of the Act, the Rules and Regulations and the Trust Indenture
Act and did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading.
<PAGE> 3
-3-
(ii) The Prospectus as amended or supplemented, as of each
applicable Representation Date (as hereinafter
defined), complied and will comply in all material
respects with the applicable provisions of the Act
and the Trust Indenture Act and did not and will not
include an untrue statement of a material fact or
omit to state a material fact necessary to make the
statements therein, in the light of the circumstances
under which they were made, not misleading.
(iii) The documents which constitute Incorporated Documents
as of the date hereof, when they became effective or
were filed with the Commission, complied in all
material respects with the applicable provisions of
the Act, the Rules and Regulations, the Exchange Act,
and/or the rules and regulations of the Commission
under the Exchange Act, and did not contain an untrue
statement of a material fact or (considered together)
omit to state a material fact necessary to make the
statements therein, in the light of the circumstances
under which they were made, not misleading; and any
documents which become Incorporated Documents after
the date hereof, when they become effective or are
filed with the Commission, as the case may be, will
comply in all material respects with the applicable
provisions of the Act, the Rules and Regulations, the
Exchange Act, and/or the rules and regulations of the
Commission under the Exchange Act and will not
contain an untrue statement of a material fact or
omit to state a material fact necessary to make the
statements therein, in the light of the circumstances
under which they were made, not misleading.
(iv) There are no contracts or documents of the Company or
of any Subsidiary (as defined below) which are
required to be filed as exhibits to the Registration
Statement by the Act or by the Rules and Regulations
which have not been filed as required.
(v) The representations and warranties in this subsection
(c) shall not apply to any statements or omissions
made in reliance upon and in conformity with
information furnished in writing to the Company by
any Agent expressly for use in the Prospectus as
amended or supplemented to relate to a particular
issuance of Securities or to any statement in or
omissions from the Statement of Eligibility of the
Trustee under the Indenture.
(vi) As used herein, (A) "Effective Date" means the later
of the date and time that the Registration Statement
or any post-effective amendment thereto became or
becomes effective or the date and time thereafter of
the filing of the Company's most recent Annual Report
on Form 10-K, and (B) Representation Date means each
of (I) the Commencement Date, (II) each Solicitation
Time (as defined in Section 6), (III) the time of
each acceptance of an offer to purchase Securities
hereunder, (IV) the time of the related issuance,
sale and delivery of such Securities pursuant to each
such accepted offer, (V) the time of the execution
and delivery of each Terms Agreement and (VI) the
related Time of Delivery (as defined in Section 2)
under each such Terms Agreement.
<PAGE> 4
-4-
(d) The Company has filed timely all reports and all definitive
proxy and information statements required to be filed by the
Company with the Commission pursuant to the Exchange Act and
the rules and regulations of the Commission thereunder.
(e) The Company has been duly organized and is validly existing as
a corporation in good standing under the laws of Delaware,
with all corporate power and other authority, including
franchises, necessary to own or lease its properties and
conduct its business as described in the Registration
Statement and the Prospectus and to issue and sell the
Securities. The Company is not qualified to do business as a
foreign corporation or in any other jurisdiction and the
conduct of its business or its ownership or leasing of
properties requires no such qualification.
(f) The issue and sale of the Securities, the compliance by the
Company with all of the provisions of the Securities, the
Indenture, this Agreement, the Administrative Procedure (as
defined in Section 2 hereof) and any Terms Agreement, and the
consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute
a default under, the Indenture or any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument
to which the Company is a party or by which it is bound or to
which any of its property or assets is subject, or the
Company's Articles of Incorporation or the By-Laws, or any
statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the
Company or any of its property.
(g) The Company has full power and lawful authority to authorize,
issue and sell the Securities on the terms and conditions
herein set forth; has taken all corporate action necessary
therefor; and has obtained every consent, approval,
authorization and other order of any regulatory body which is
required for such authorization, issue or sale, except as may
be required under state securities laws; and such consents,
approvals, authorizations and other orders are in full force
and effect and are not subject to appeal.
(h) Since the respective dates as of which information contained
in the Prospectus as amended or supplemented is given, and
except as set forth therein or contemplated thereby, there has
not been any material adverse change in, or any adverse
development which materially affects, the business,
properties, financial condition, results of operations or
business prospects of the Company and its consolidated
subsidiaries taken as a whole.
(i) The Company has an authorized capitalization as set forth in
the financial statements incorporated by reference in the
Prospectus, and all of the outstanding shares of capital stock
of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable.
<PAGE> 5
-5-
(j) The financial statements included in the Registration
Statement present fairly the financial position of the Company
and its consolidated subsidiaries, as the case may be, as at
the dates indicated and the results of their operations for
the periods specified; and, except as otherwise stated in the
Registration Statement, such financial statements have been
prepared in conformity with generally accepted accounting
principles applied on a consistent basis during the periods
involved and the supporting financial schedules included in
the Registration Statement present fairly the information
required to be stated therein. PricewaterhouseCoopers LLP and
Deloitte & Touche LLP, the accountants who certified certain
of such financial statements and financial schedules, are
independent certified public accountants as required by the
Act.
(k) The Securities have been duly authorized, and, when issued and
delivered pursuant to this Agreement and any Terms Agreement,
will have been duly executed, authenticated, issued and
delivered and will constitute valid and legally binding
obligations of the Company entitled to the benefits provided
by the Indenture; the Indenture has been duly authorized and
constitutes a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting
creditors' rights and to general principles of equity; and the
Indenture conforms and the Securities of any particular
tranche will conform to the descriptions thereof in the
Prospectus as amended or supplemented to relate to such
tranche of Securities.
(l) Each of the Company's direct and indirect subsidiaries has
been duly incorporated, is validly existing and is in good
standing under the laws of its jurisdiction of incorporation,
and is duly qualified to do business and is in good standing
as a foreign corporation in each jurisdiction in which its
ownership of properties or the conduct of its business
requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole, and has the
corporate power and authority necessary to own or hold its
respective properties and to conduct the businesses in which
it is engaged.
(m) The Company directly or indirectly has good and marketable
title to all of the common stock of its direct and indirect
subsidiaries which the Registration Statement and Prospectus
disclose as being owned by it, free and clear of all liens and
encumbrances, except such as do not materially affect the
value thereof, and the common stock of each of such
subsidiaries has been duly and validly issued and is fully
paid and nonassessable.
(n) Other than as set forth in or contemplated by the Prospectus
as amended or supplemented, there are no legal or governmental
proceedings pending to which the Company or any of its
subsidiaries is a party or to which any property of the
Company or any of its subsidiaries is a party or to which any
property of the Company or any of its subsidiaries is subject,
which, if determined adversely to the
<PAGE> 6
-6-
Company or any of its subsidiaries, would individually or in
the aggregate have a material adverse effect on the
consolidated financial position, stockholders' equity or
results of operations of the Company and its subsidiaries,
and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(o) The Company is not an "investment company" or an entity
"controlled" by an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended.
(p) Immediately after any sale of Securities by the Company
hereunder or under any Terms Agreement, the aggregate amount
of Securities which shall have been issued and sold by the
Company hereunder or under any Terms Agreement will not exceed
the amount of Securities registered under the Act.
(q) This Agreement has been, and any Terms Agreement will have
been, duly authorized and entered into by the Company.
2. Obligations of the Agents and the Company.
(a) On the basis of the representations and warranties and subject
to the terms and conditions herein set forth, each of the
Agents hereby severally and not jointly agrees, as agent of
the Company, to use reasonable efforts to solicit and receive
offers to purchase the Securities from the Company upon the
terms and conditions set forth in the Prospectus as amended or
supplemented from time to time. So long as this Agreement
shall remain in effect with respect to any Agent, the Company
shall not, without the consent of such Agent, solicit or
accept offers to purchase, or sell, any debt securities with a
maturity at the time of original issuance of 9 months to 40
years except pursuant to this Agreement, any Terms Agreement
or a private placement not constituting a public offering
under the Act, or except in connection with a firm commitment
underwriting pursuant to an underwriting agreement that does
not provide for a continuous offering of medium-term debt
securities. However, the Company reserves the right to sell,
and may solicit and accept offers to purchase, Securities
directly on its own behalf, and, in the case of any such sale
not resulting from a solicitation made by any Agent, no
commission will be payable with respect to such sale. These
provisions shall not limit Section 4(f) hereof or any similar
provision included in any Terms Agreement.
Procedural details relating to the issue and delivery of
Securities, the solicitation of offers to purchase Securities and the
payment therefor shall be as set forth in the Administrative Procedure
attached hereto as Annex II as it may be amended from time to time by
written agreement between the Agents and the Company (the
"Administrative Procedure"). The provisions of the Administrative
Procedure shall apply to all transactions contemplated hereunder other
than those made pursuant to a written Terms Agreement. Each Agent and
the Company agree to perform the respective duties and obligations
specifically provided to be
<PAGE> 7
-7-
performed by each of them in the Administrative Procedure. The Company
will furnish to the Trustee a copy of the Administrative Procedure as
from time to time in effect.
The Company reserves the right, in its sole discretion, to
reject any offer to purchase Securities, in whole or in part. Each
Agent may, in its discretion reasonably exercised, reject any offer
received by it to purchase Securities, in whole or in part.
The Company reserves the right, in its sole discretion, to
instruct the Agents to suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase the Securities. As
soon as practicable, but in any event not later than one business day,
after receipt of notice from the Company, the Agents will suspend
solicitation of offers to purchase Securities from the Company until
such time as the Company has advised the Agents that such solicitation
may be resumed.
The Company agrees to pay each Agent a commission, at the time
of settlement of any sale of a Security by the Company as a result of a
solicitation made by such Agent, in an amount equal to the following
applicable percentage of the principal amount of such Security sold
(except that the Company and such Agent may agree in writing to a
higher commission for maturities in excess of 30 years):
<TABLE>
<CAPTION>
COMMISSION
(PERCENTAGE OF
AGGREGATE
PRINCIPAL AMOUNT)
RANGE OF MATURITIES OF SECURITIES SOLD
------------------
<S> <C>
From 9 months to less than 1 year.............................
From 1 year to less than 18 months............................
From 18 months to less than 2 years...........................
From 2 years to less than 3 years.............................
From 3 years to less than 4 years.............................
From 4 years to less than 5 years.............................
From 5 years to less than 6 years.............................
From 6 years to less than 7 years.............................
From 7 years to less than 10 years............................
From 10 years to less than 15 years...........................
From 15 years to less than 20 years...........................
20 years and more.............................................
</TABLE>
(b) Each sale of Securities to any Agent as principal shall be
made in accordance with the terms of this Agreement and a
Terms Agreement which will provide for the sale of such
Securities to, and the purchase thereof by, such Agent. A
Terms Agreement may be either (i) a written agreement between
one or more of the Agents and the Company, which may be
substantially in the form of Annex I hereto, or (ii) an oral
agreement between any Agent and the Company confirmed in
writing by such Agent. Each Terms
<PAGE> 8
-8-
Agreement shall contain the information specified in the
Administrative Procedure under the caption, "Communication of
Sale Information to Company by Agent", and may specify certain
terms of the reoffering of the Securities. The commitment of
any Agent to purchase Securities as principal pursuant to any
Terms Agreement shall be deemed to have been made on the basis
of the representations and warranties of the Company herein
contained and shall be subject to the terms and conditions
herein set forth.
Each Terms Agreement shall specify the time and date and place
of delivery of and payment for such Securities. Unless otherwise
specified in a Terms Agreement, the procedural details relating to the
issue and delivery of such Securities and payment therefor shall be as
set forth in the Administrative Procedure.
Each time and date of delivery of and payment for Securities
to be purchased by an Agent as principal, is referred to herein as a
"Time of Delivery".
Unless otherwise specified in a Terms Agreement, an Agent
purchasing Securities as principal may resell such Securities to
dealers. Any such sales may be at a discount, which shall not exceed
the amount set forth in the Pricing Supplement relating to such
Securities.
3. Commencement. The documents required to be delivered pursuant to
Section 6 hereof on the Commencement Date (as defined below) shall be
delivered to the Agents at the offices of Thelen Reid & Priest LLP at
or before 12:00 noon, New York City time, on the date of this
Agreement, which date and time of such delivery may be postponed by
agreement between the Agents and the Company but in no event shall be
later than the day prior to the date on which solicitation of offers to
purchase Securities is commenced or on which any Terms Agreement is
executed (such time and date being referred to herein as the
"Commencement Date").
4. Covenants of the Company. The Company covenants and agrees with each
Agent:
(a) (i) To make no amendment or supplement to the Registration
Statement or the Prospectus (A) prior to the Commencement
Date, to which any Agent shall reasonably object after
reasonable notice thereof or (B) after the date of any Terms
Agreement by an Agent to purchase Securities as principal and
prior to the related Time of Delivery, to which any Agent
party to such Terms Agreement or so purchasing as principal
shall reasonably object after reasonable notice thereof; (ii)
to prepare, with respect to each particular issue of
Securities to be sold through or to such Agent pursuant to
this Agreement, a Pricing Supplement with respect to such
Securities in a form previously approved by such Agent and to
file such Pricing Supplement pursuant to Rule 424(b) under the
Act; (iii) to make no amendment or supplement to the
Registration Statement or Prospectus, other than any Pricing
Supplement, at any time prior to having afforded each Agent a
reasonable opportunity to review and comment on it; (iv) to
file timely all reports and any definitive proxy or
information statements required to be filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act for so long as the delivery of a
prospectus is required in connection with the offering or sale
of
<PAGE> 9
-9-
the Securities, and during such same period to advise such
Agent, promptly after the Company receives notice thereof, of
the time when any amendment to the Registration Statement has
been filed or has become effective or any supplement to the
Prospectus or any amended Prospectus (other than any Pricing
Supplement that relates to Securities not purchased through or
by such Agent) has been filed with the Commission, of the
issuance by the Commission of any stop order or of any order
preventing or suspending the use of any prospectus relating to
the Securities, of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amendment
or supplement of the Registration Statement or Prospectus or
for additional information; and (v) in the event of the
issuance of any such stop order or of any such order
preventing or suspending the use of any such prospectus or
suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal;
(b) Promptly, from time to time, to take such action as such Agent
reasonably may request to qualify the Securities for offering
and sale under the securities laws of such jurisdictions as
such Agent may request and to comply with such laws so as to
permit the continuance of sales and dealings therein for as
long as may be necessary to complete the distribution or sale
of the Securities; provided, however, that in connection
therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of
process in any jurisdiction or to submit to any requirements
which it deems unduly burdensome;
(c) To furnish such Agent with copies of the Registration
Statement and each amendment thereto, and with copies of the
Prospectus as amended or supplemented, other than any Pricing
Supplement (except as provided in the Administrative
Procedure), in the form in which it is filed with the
Commission pursuant to Rule 424(b) under the Act, both in such
quantities as such Agent may reasonably request from time to
time; and, if the delivery of a prospectus is required at any
time in connection with the offering or sale of the Securities
(including Securities purchased from the Company by such Agent
as principal) and if at such time any event shall have
occurred as a result of which the Prospectus as then amended
or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it
shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act
any document incorporated by reference in the Prospectus in
order to comply with the Act, the Exchange Act or the Trust
Indenture Act, to notify such Agent and request such Agent, in
its capacity as agent of the Company, to suspend solicitation
of offers to purchase Securities from the Company (and, if so
notified, such Agent shall cease such solicitations as soon as
practicable, but in any event not later than one business day
later); and if the Company shall decide to amend or supplement
the Registration Statement or the Prospectus as then amended
or supplemented, to so advise such Agent promptly by telephone
(with confirmation in writing) and to prepare and cause to be
filed promptly with the Commission an amendment or supplement
to the
<PAGE> 10
-10-
Registration Statement or the Prospectus as then amended or
supplemented that will correct such statement or omission or
effect such compliance; provided, however, that if during such
same period such Agent continues to own Securities purchased
from the Company by such Agent as principal or such Agent is
otherwise required to deliver a prospectus in respect of
transactions in the Securities, the Company shall promptly
prepare and file with the Commission such an amendment or
supplement;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months
after (i) the effective date of the Registration Statement,
(ii) the effective date of each post-effective amendment to
the Registration Statement, and (iii) the date of each filing
by the Company with the Commission of an Annual Report on Form
10-K that is incorporated by reference in the Registration
Statement, an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with
Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including, at the option of the
Company, Rule 158);
(e) For a period of five years from the date any Securities are
sold by the Company pursuant to an offer solicited by such
Agent under this Agreement, to deliver to such Agent (i) as
soon as available, a copy of each report of the Company mailed
to security holders or filed with the Commission and (ii) from
time to time such other information concerning the Company as
such Agent shall reasonably request. If at any time, the
Company shall have a majority-owned subsidiary or subsidiaries
which is or are "significant" within the meaning of Regulation
S-X of the Commission, the financial statements contained in
the documents referred to in (i) shall be furnished in
consolidated form, if such consolidation is required under
such Regulation S-X, for the Company and such subsidiary or
subsidiaries;
(f) That, between the date of any Terms Agreement with an Agent
and the related Time of Delivery, the Company will not,
without the prior written consent of such Agent, offer, sell,
contract to sell or otherwise dispose of any debt securities
of the Company substantially similar to the Securities (other
than (i) Securities that are to be sold pursuant to such Terms
Agreement, (ii) Securities previously agreed to be sold by the
Company and (iii) commercial paper issued in the ordinary
course of business), except as may otherwise be provided in
such Terms Agreement;
(g) That each acceptance by the Company of an offer to purchase
Securities hereunder, each execution and delivery by the
Company of a Terms Agreement and each issuance, sale and
delivery by the Company of Securities hereunder or pursuant to
a Terms Agreement shall be deemed to be an affirmation to such
Agent that the representations and warranties of the Company
contained in or made pursuant to this Agreement are true and
correct as of the date of such acceptance or the date of the
issuance, sale and delivery of Securities pursuant to such
accepted offer, or the date of such Terms Agreement or the
Time of Delivery thereunder, as the case may be, as though
made at and as of such date (except that such representations
and warranties shall be deemed to relate to the
<PAGE> 11
-11-
Registration Statement and the Prospectus as amended and
supplemented relating to such Securities);
(h) The Company shall timely furnish or use all reasonable efforts
to cause to be furnished all the opinions of counsel, letters
of accountants and officers' certificates specified in Section
6 and shall prepare and furnish such papers and information as
shall be reasonably requested in connection herewith.
5. Payment of Expenses. The Company covenants and agrees with each Agent
that the Company will pay or cause to be paid the following: (i) the
fees and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and
all other expenses in connection with the preparation, printing and
filing of the Registration Statement, any Preliminary Prospectus, the
Prospectus and any Pricing Supplement and all other amendments and
supplements thereto and the mailing and delivering of copies thereof to
such Agent; (ii) the fees and expenses of counsel for the Agents in
connection with the establishment of the program contemplated hereby,
any opinions to be rendered by such counsel hereunder and the
continuing advice and services of such counsel in connection with the
transactions contemplated hereunder; (iii) the cost of printing,
preparing by word processor or reproducing this Agreement, any Terms
Agreement, any Indenture, any Blue Sky and Legal Investment Memoranda
and any other documents in connection with the offering, purchase, sale
and delivery of the Securities; (iv) all expenses in connection with
the qualification of the Securities for offering and sale under state
securities laws as provided in Section 4(b) hereof, including fees and
disbursements of counsel for the Agents in connection with such
qualification and in connection with the Blue Sky and legal investment
surveys; (v) any fees charged by securities rating services for rating
the Securities; (vi) any filing fees incident to any required review by
the National Association of Securities Dealers, Inc. of the terms of
the sale of the Securities; (vii) the cost of preparing the Securities;
(viii) the fees and expenses of any Trustee and any agent of any
Trustee and any transfer or paying agent of the Company and the fees
and disbursements of counsel for any Trustee or such agent in
connection with any Indenture and the Securities; (ix) the
out-of-pocket expenses of the Agents incurred in connection with the
implementation of the program for the offer and sale of the Securities;
and (x) all other costs and expenses incident to the performance of the
Company's obligations hereunder which are not otherwise specifically
provided for in this Section. Except as provided in Sections 7 and 8
hereof, each Agent shall pay all other expenses it incurs.
6. Conditions. The obligation of any Agent, as agent of the Company, at
any time ("Solicitation Time") to solicit offers to purchase the
Securities, the obligation of any offeree to purchase Securities
pursuant to an accepted offer or the obligation of any Agent to
purchase Securities as principal pursuant to any Terms Agreement, shall
in each case be subject, in such offeree's or Agent's discretion, to
the condition that all representations and warranties and other
statements of the Company herein (and, in the case of an obligation of
an Agent under a Terms Agreement, contained in or incorporated in such
Terms Agreement by reference) are true and correct at and as of the
Commencement Date and any other applicable Representation Date that is
on or prior to such Solicitation Time, the date of such purchase or
<PAGE> 12
-12-
the Time of Delivery under such Terms Agreement, as the case may be,
and at and as of such Solicitation Time, the date of such purchase or
such Time of Delivery, as the case may be, the condition that at or
prior to such time the Company shall have performed all of its
obligations hereunder (or under any applicable Terms Agreement)
theretofore to be performed, and the following additional conditions:
(a) (i) The Prospectus as then amended or supplemented (including
the Pricing Supplement) with respect to such Securities shall
have been filed with the Commission pursuant to Rule 424(b)
under the Act (if and to the extent such filing is required)
within the applicable time period prescribed for such filing
by the Rules and Regulations and in accordance with Section
4(a) hereof; (ii) no stop order suspending the effectiveness
of the Registration Statement shall have been issued and shall
remain in effect and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and (iii) all
requests for additional information on the part of the
Commission shall have been complied with to the reasonable
satisfaction of such Agent;
(b) Counsel to the Agents shall have furnished to such Agent (i)
such opinion or opinions, dated the Commencement Date, with
respect to such matters as shall have been reasonably
requested by the Agents and (ii) if and to the extent
requested by such Agent, on each date (on or prior to such
Solicitation Time, the date of such purchase pursuant to an
accepted offer or the Time of Delivery under such Terms
Agreement, as the case may be) on which (A) the Registration
Statement or the Prospectus is amended or supplemented (other
than by a Pricing Supplement) or (B) a document is filed under
the Act or the Exchange Act and is incorporated by reference
into the Prospectus or (C) the Company sells Securities under
a Terms Agreement which specifies a condition under this
subsection, a letter, dated such applicable date, to the
effect that such Agent may rely on the opinion or opinions
which were last furnished to such Agent pursuant to this
Section 6(b) to the same extent as though it or they were
dated the date of such letter authorizing reliance (except
that the statements in such letter shall be deemed to relate
to the Registration Statement and the Prospectus as amended
and supplemented to such date) or, in any case, in lieu of
such a letter, an opinion or opinions of the same tenor as the
opinion or opinions referred to in clause (i) but modified to
relate to the Registration Statement and the Prospectus as
amended and supplemented to such date; and in each case such
counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such
matters;
(c) General Counsel for the Company, or other counsel for the
Company satisfactory to such Agent, shall have furnished to
such Agent his written opinions, dated the Commencement Date
and each applicable date referred to in subsection (b) above,
in form and substance satisfactory to such Agent and the
Company to the effect set forth in Annex III hereto;
(d) The independent certified public accountants who have
certified the financial statements of the Company and its
subsidiaries included or incorporated by reference in the
Registration Statement shall have furnished to such Agent a
letter, dated the
<PAGE> 13
-13-
Commencement Date and each applicable date referred to in
subsection (b) above, in form and substance satisfactory to
such Agent to the effect set forth in Annex IV hereto;
(e) The Company shall have furnished or caused to be furnished to
such Agent certificates of officers of the Company dated the
Commencement Date and each applicable date referred to in
subsection (b) above (read to refer to this subsection) in
such form and executed by such officers of the Company as
shall be satisfactory to such Agent, as to the accuracy of the
representations and warranties of the Company herein at and as
of the Commencement Date or such applicable date, as the case
may be, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to the
Commencement Date or such applicable date, as the case may be,
as to the matters set forth in subsections (a), (f) and (g) of
this Section 6, and as to such other matters as such Agent may
reasonably request.
(f) Since the respective dates as of which information in the
Prospectus as amended or supplemented to such Solicitation
Time, the date of such acceptance or the date of such Terms
Agreement, as the case may be, is given, and except as set
forth therein or contemplated thereby, there shall not have
been any change in, or any development which affects, the
business, properties, financial condition, results of
operations or business prospects of the Company and its
consolidated subsidiaries, taken as a whole, which, in the
reasonable judgment of such Agent, is material and adverse and
which, in the reasonable judgment of such Agent, makes it
impracticable or inadvisable to proceed with the solicitation
of offers to purchase the Securities or to proceed with the
purchase of Securities pursuant to such accepted offer or such
Terms Agreement.
(g) Unless known to such Agent prior to such Solicitation Time,
the date of such acceptance or the date of such Terms
Agreement, as the case may be, there shall not have occurred:
(i) suspension or material limitation of trading
generally on or by, as the case may be, the New York
Stock Exchange, the American Stock Exchange, the
National Association of Securities Dealers, Inc., the
Chicago Board Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade,
(B) suspension of trading of any securities of the
Company on any exchange or in any over-the-counter
market, (C) declaration of a general moratorium on
commercial banking activities in New York by either
Federal or New York State authorities or (D) any
outbreak or escalation of hostilities or any change
in financial markets or any calamity or crisis that,
in such Agent's reasonable judgment, is material and
adverse and, in the case of any of the events
described in clauses (A) through (D), such event,
singly or together with any other such event, makes
it, in such Agent's reasonable judgment,
impracticable to market the Securities on the terms
and in the manner contemplated by the Prospectus, as
amended or supplemented at such Solicitation Time,
the date of such acceptance or Time of Delivery, as
the case may be; or
<PAGE> 14
-14-
(ii) downgrading in the rating accorded any of the
Company's securities by any "nationally recognized
statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the
Securities Act.
7. Indemnification.
(a) The Company will indemnify and hold harmless each Agent, and
each person, if any, who controls such Agent within the
meaning of the Act, against any losses, claims, damages or
liabilities, joint or several, to which such Agent may become
subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the
Registration Statement any Preliminary Prospectus, the Basic
Prospectus, the Prospectus as amended or supplemented or any
other prospectus relating to the Securities, or any amendment
or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse such
Agent for any legal or other expenses reasonably incurred by
it in connection with investigating or defending any such
action or claim as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case
to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement, the
Prospectus, the Prospectus as amended or supplemented or any
other prospectus relating to the Securities, or any such
amendment or supplement, in reliance upon and in conformity
with written information furnished to the Company by such
Agent expressly for use therein, and provided, further, that
the indemnity agreement contained in this paragraph shall not
inure to the benefit of any Agent on account of any such
losses, claims, damages or liabilities (or actions in respect
thereof) arising from the sale of the Securities by or through
such Agent to any person if a copy of the Prospectus as it
then may be amended or supplemented (exclusive of the
Incorporated Documents) shall not have been given or sent to
such person by such Agent with or prior to the written
confirmation of the sale involved to the extent that (i) the
Prospectus as so amended or supplemented would have cured the
defect in such document giving rise to such losses, claims,
damages or liabilities, (ii) sufficient quantities of the
Prospectus as so amended or supplemented were timely made
available to such Agent and (iii) such Agent shall not have
reasonably objected to such amendment or supplement pursuant
to Section 4(a) hereof.
(b) Each Agent will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which
the Company may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration
Statement, the Prospectus, the Prospectus as amended or
supplemented or any other prospectus relating to the
Securities, or any amendment or supplement thereto, or arise
out of or are based
<PAGE> 15
-15-
upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to
the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission
was made in any Preliminary Prospectus, the Registration
Statement, the Prospectus, the Prospectus as amended or
supplemented or any other prospectus relating to the
Securities, or any such amendment or supplement, in reliance
upon and in conformity with written information furnished to
the Company by such Agent expressly for use therein; and will
reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such
expenses are incurred.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in
respect of which indemnity may be sought pursuant to either
paragraph (a) or (b) above, such person (the "indemnified
party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing
and the indemnifying party, upon request of the indemnified
party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any
others the indemnifying party may designate in such proceeding
and shall pay the reasonable fees and disbursements of such
counsel related to such proceeding. In any such proceeding,
any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have
mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the
indemnified party and representation of both parties by the
same counsel would be inappropriate due to actual or potential
differing interests between them; provided, however, that the
indemnifying party shall only be responsible for the fees of
such counsel to the extent they are reasonably incurred. It is
understood that the indemnifying party shall not, in respect
of the legal expenses of any indemnified party in connection
with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than
one separate firm (in addition to any local counsel) for all
such indemnified parties and that all such fees and expenses,
to the extent they are reasonable, shall be reimbursed as they
are incurred. Such firm shall be designated in writing by the
Agents, in the case of parties indemnified pursuant to
paragraph (a) above, and by the Company, in the case of
parties indemnified pursuant to paragraph (b) above. The
indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by
reason of such settlement or judgment. No indemnifying party
shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of
such proceeding.
<PAGE> 16
-16-
(d) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified
party under subsection (a) or (b) above in respect of any
losses, claims, damages or liabilities (or actions in respect
thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages
or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and each Agent on the
other from the offering of the Securities to which such loss,
claim, damage or liability (or action in respect thereof)
relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable
law, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one
hand and each Agent on the other in connection with the
statements or omissions which resulted in such losses, claims,
damages or liabilities (or actions in respect thereof), as
well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and
each Agent on the other shall be deemed to be in the same
proportion as the total net proceeds from the sale of
Securities (before deducting expenses) received by the Company
bear to the total commissions or discounts received by such
Agent in respect thereof. The relative fault shall be
determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact required
to be stated therein or necessary in order to make the
statements therein not misleading relates to information
supplied by the Company on the one hand or by any Agent on the
other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such
statement or omission. The Company and each Agent agree that
it would not be just and equitable if contribution pursuant to
this subsection (d) were determined by per capita allocation
(even if all Agents were treated as one entity for such
purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above
in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages
or liabilities (or actions in respect thereof) referred to
above in this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the
provisions of this subsection (d), an Agent shall not be
required to contribute any amount in excess of the amount by
which the total public offering price at which the Securities
purchased by or through it were sold exceeds the amount of any
damages which such Agent has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The
obligations of each of the Agents under this subsection (d) to
contribute are several in proportion to the respective
purchases made by or through it to which such loss, claim,
damage or liability (or action in respect thereof) relates and
are not joint.
<PAGE> 17
-17-
(e) The obligations of the Company under this Section 7 shall be
in addition to any liability which the Company may otherwise
have and shall extend, upon the same terms and conditions, to
each person, if any, who controls any Agent within the meaning
of the Act; and the obligations of each Agent under this
Section 7 shall be in addition to any liability which such
Agent may otherwise have and shall extend, upon the same terms
and conditions, to each officer and director of the Company
and to each person, if any, who controls the Company within
the meaning of the Act.
8. Nonperformance. Each Agent, in soliciting offers to purchase Securities
from the Company and in performing the other obligations of such Agent
hereunder (other than in respect of any purchase by an Agent as
principal, pursuant to a Terms Agreement or otherwise), is acting
solely as agent for the Company and not as principal. Each Agent will
make reasonable efforts to assist the Company in obtaining performance
by each purchaser whose offer to purchase Securities from the Company
was solicited by such Agent and has been accepted by the Company, but
such Agent shall not have any liability to the Company in the event
such purchase is not consummated for any reason. If the Company shall
default on its obligation to deliver Securities to a purchaser whose
offer it has accepted, the Company shall (i) hold each Agent harmless
against any loss, claim or damage arising from or as a result of such
default by the Company and (ii) notwithstanding such default, pay to
the Agent that solicited such offer any commission to which it would be
entitled in connection with such sale.
9. Survival of Agreement. The respective indemnities, agreements,
representations, warranties and other statements by any Agent and the
Company set forth in or made pursuant to this Agreement shall remain in
full force and effect regardless of any investigation (or any statement
as to the results thereof) made by or on behalf of any Agent or any
controlling person of any Agent or the Company, or any officer or
director or any controlling person of the Company, and shall survive
each delivery of and payment for any of the Securities.
10. Suspension or Termination. The provisions of this Agreement relating to
the solicitation of offers to purchase Securities from the Company may
be suspended or terminated at any time by the Company as to any Agent
or by any Agent as to such Agent upon the giving of written notice of
such suspension or termination to such Agent or the Company, as the
case may be. In the event of such suspension or termination with
respect to any Agent, (i) this Agreement shall remain in full force and
effect with respect to any Agent as to which such suspension or
termination has not occurred, (ii) this Agreement shall remain in full
force and effect with respect to the rights and obligations of any
party which have previously accrued or which relate to Securities which
are already issued, agreed to be issued or the subject of a pending
offer at the time of such suspension or termination and (iii) in any
event, this Agreement shall remain in full force and effect insofar as
the fourth paragraph of Section 2(a), Section 4(d), Section 4(e),
Section 5, Section 7, Section 8 and Section 9 hereof are concerned.
11. Notices. Except as otherwise specifically provided herein or in the
Administrative Procedure, all statements, requests, notices and advices
hereunder shall be in writing, or by telephone if promptly confirmed in
writing, and if to _____________________, shall be sufficient in all
<PAGE> 18
-18-
respects when delivered or sent by facsimile transmission or registered
mail to ______________________________________________________________,
Attention: _________________________________, Facsimile Transmission
No. _____________, and if to ___________________________, shall be
sufficient in all respects when delivered or sent by facsimile
transmission or registered mail to __________________________________,
Facsimile Transmission No. _______________________, Attention:
_______________________________, and if to the Company shall be
sufficient in all respects when delivered or sent by facsimile
transmission or registered mail to Conectiv, 800 King Street,
Wilmington, Delaware 19899, Facsimile Transmission No. (302) 429-3119,
Attention: Treasurer.
12. Benefit of Agreement. This Agreement and any Terms Agreement shall be
binding upon, and inure solely to the benefit of, each Agent and the
Company, and to the extent provided in Section 7, Section 8 and Section
9 hereof, the officers and directors of the Company and any person who
controls any Agent or the Company, and their respective personal
representatives, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement or any
Terms Agreement. No purchaser of any of the Securities through or from
any Agent hereunder shall be deemed a successor or assign by reason of
such purchase.
13. Definition of Business Day. Time shall be of the essence in this
Agreement and any Terms Agreement. As used herein, the term "business
day" shall mean any day when the office of the Commission in
Washington, D.C. and banks located in the City of New York are normally
open for business.
14. Governing Law. This Agreement and any Terms Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York
without regard to the conflict of law provisions thereof.
15. Execution in Counterparts. This Agreement and any written Terms
Agreement may be executed by any one or more of the parties hereto and
thereto in any number of counterparts, each of which shall be an
original, but all of such respective counterparts shall together
constitute one and the same instrument.
<PAGE> 19
-19-
If the foregoing is in accordance with your understanding, please sign
and return to us two counterparts hereof, whereupon this letter and the
acceptance by each of you thereof shall constitute a binding agreement between
the Company and each of you in accordance with its terms.
Very truly yours,
CONECTIV
By:___________________________
Title:________________________
Accepted in New York, New York,
as of the date hereof:
[AGENT]
By:___________________________
Title:________________________
[AGENT]
By:___________________________
Title:________________________
<PAGE> 20
-20-
ANNEX I
CONECTIV
MEDIUM TERM NOTES, SERIES __
TERMS AGREEMENT
___________, 199_
[Agent]
Dear Sirs:
Conectiv (the "Company") proposes, subject to the terms and conditions
stated herein and in the Distribution Agreement, dated __________, 199_ (the
"Distribution Agreement"), between the Company, on the one hand, and
_____________________________________________________(the "Agents") on the
other, to issue and sell to _________________________ the securities specified
in the Schedule hereto (the "Purchased Securities"). Each of the provisions of
the Distribution Agreement not specifically related to the solicitation by the
Agents, as agents of the Company, of offers to purchase Securities is
incorporated herein by reference in its entirety, and shall be deemed to be part
of this Agreement to the same extent as if such provisions had been set forth in
full herein. Nothing contained herein or in the Distribution Agreement shall
make any party hereto an agent of the Company or make such party subject to the
provisions therein relating to the solicitation of offers to purchase securities
from the Company, solely by virtue of its execution of this Agreement. Each of
the representations and warranties set forth in the Distribution Agreement shall
be deemed to have been made at and as of the date of this Agreement, except that
each representation and warranty in Section 1 of the Distribution Agreement
which makes reference to the Prospectus shall be deemed to be a representation
and warranty as of the date of the Distribution Agreement in relation to the
Prospectus (as therein defined), and also a representation and warranty as of
the date of this Agreement in relation to the Prospectus as amended and
supplemented to relate to the Purchased Securities.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Purchased Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
<PAGE> 21
-21-
Subject to the terms and conditions set forth herein and in the
Distribution Agreement incorporated herein by reference, the Company agrees to
issue and sell to ____________________________ and ___________________________
agrees to purchase from the Company the Purchased Securities, at the time and
place, in the principal amount and at the purchase price set forth in the
Schedule hereto.
If the foregoing is in accordance with your understanding, please sign
and return to us two counterparts hereof, and upon acceptance hereof by you this
letter and such acceptance hereof, including those provisions of the
Distribution Agreement incorporated herein by reference, shall constitute a
binding agreement between you and the Company.
CONECTIV
By:___________________________
Title:________________________
Accepted in New York, New York,
as of the date hereof:
[PURCHASING AGENT]
By:___________________________
Title:________________________
<PAGE> 22
-22-
SCHEDULE TO ANNEX I
Title of Purchased Securities:
Aggregate Principal Amount:
Price to Public:
Purchase Price:
Method of and Specified Funds for Payment of Purchase Price:
[By certified or official bank check or checks, payable to the order of
the Company, in immediately available funds]
[By wire transfer to a bank account specified by the Company in
immediately available funds]
Time of Delivery:
Closing Location:
Maturity:
Interest Rate:
Interest Payment Dates:
Initial Interest Payment Date:
Redemption Provisions:
Repayment Provisions:
Documents to be Delivered:
The following documents referred to in the Distribution Agreement shall
be delivered as a condition to the Closing:
[(1) The opinion or opinions of counsel to the Agents referred to
in Section 6(b).]
[(2) The opinion of counsel to the Company referred to in Section
6(c).]
<PAGE> 23
-23-
[(3) The accountants' letter referred to in Section 6(d).]
[(4) The officers' certificate referred to in Section 6(f).]
Other Provisions (including Syndicate Provisions, if applicable):
<PAGE> 24
-24-
ANNEX II
CONECTIV
ADMINISTRATIVE PROCEDURE
This Administrative Procedure relates to the Securities defined in the
Distribution Agreement, dated [insert date] (the "Distribution Agreement"),
between Conectiv (the "Company") and [insert names of agents] (together, the
"Agents"), to which this Administrative Procedure is attached as Annex II.
Defined terms used herein and not defined herein shall have the meanings given
such terms in the Distribution Agreement, the Prospectus as amended or
supplemented or the Indenture.
The procedures to be followed with respect to the settlement of sales
of Securities directly by the Company to purchasers solicited by an Agent, as
agent, are set forth below. Such procedures shall also be followed with respect
to sales of Securities by the Company to an Agent, as principal, unless the
Company and such Agent agree to follow different procedures pursuant to a
written Terms Agreement. An Agent, in relation to a purchase of a Security by a
purchaser solicited by such Agent, is referred to herein as the "Selling Agent"
and, in relation to a purchase of a Security by such Agent as principal as the
"Purchasing Agent".
The Company will advise each Agent in writing of those persons with
whom such Agent is to communicate regarding offers to purchase Securities and
the related settlement details.
Posting Rates by Company:
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Securities that may be
sold as a result of the solicitation of offers by an Agent. The Company may
establish a fixed set of interest rates and maturities for an offering period
("posting"). If the Company decides to change already posted rates, it will
promptly advise the Agents to suspend solicitation of offers until the new
posted rates have been established with the Agents.
Acceptance of Offers by Company:
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Securities, other than
those rejected by such Agent. Each Agent may, in its discretion reasonably
exercised, reject any offer received by it in whole or in part. Each Agent also
may make offers to the Company to purchase Securities as a Purchasing Agent. The
Company will have the sole right to accept offers to purchase Securities and may
reject any such offer in whole or in part.
<PAGE> 25
-25-
The Company will promptly notify the Agent of its acceptance or
rejection of an offer to purchase Securities. If the Company accepts an offer to
purchase Securities, it will confirm such acceptance in writing to the Agent and
the Trustee.
Communication of Sale Information to Company by Agent:
After the acceptance of an offer by the Company, the Agent will
communicate the following details of the terms of such offer (the "Sale
Information") to the Company by telephone (confirmed in writing) or by facsimile
transmission or other acceptable written means:
(1) Principal amount of Securities to be purchased;
(2) If a Fixed Rate Security, the interest rate;
(3) Maturity Date;
(4) Issue Price;
(5) Selling Agent's commission or Purchasing Agent's discount, as
the case may be;
(6) Net proceeds to the Company;
(7) Settlement Date;
(8) If a redeemable Security, such of the following as are
applicable:
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par), and
(iii) Amount (% of par) that the Redemption Price shall
decline on each anniversary of the Redemption
Commencement Date;
[(9) If a Floating Rate Security, such of the following as are
applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;]
(10) Name, address and taxpayer identification number of the
registered owner;
(11) Denomination of certificates to be delivered at settlement;
(12) Whether such Security is a Book-Entry Security or a
Certificated Security; and
(13) Whether such Agent is acting as Selling Agent or Purchasing
Agent.
<PAGE> 26
-26-
Preparation of Pricing Supplement by Company:
If the Company accepts an offer to purchase a Security, it will prepare
a Pricing Supplement. The Company will arrange to have ten Pricing Supplements
filed with the Commission not later than the close of business of the Commission
on the fifth business day following the date on which such Pricing Supplement is
first used, and will promptly deliver copies of such Pricing Supplement to the
Agent no later than 11:00 a.m. on the day following the Trade Date via next day
mail or telecopy at the following locations:
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of a Security a written
confirmation of the sale and delivery and payment instructions. In addition, the
Selling Agent will deliver to such purchaser or its agent the Prospectus as
amended or supplemented (including the Pricing Supplement) in relation to such
Security prior to or together with the earlier of the delivery to such purchaser
or its agent of (a) the confirmation of sale or (b) the Security.
Date of Settlement:
All offers solicited by a Selling Agent or made by a Purchasing Agent
and accepted by the Company will be settled on a date (the "Settlement Date")
which is the third business day after the date of acceptance of such offer,
unless the Company and the purchaser agree to settlement (a) on any other
business day after the acceptance of such offer or (b) with respect to an offer
accepted by the Company prior to 10:00 a.m., New York City time, on the date of
such acceptance.
Instruction from Company to Trustee for Preparation of Securities,
Preparation and Delivery of Securities by Trustee and Receipt of Payment
Therefor:
After receiving the Sale Information from the Agent, the Company will
communicate such Sale Information to the Trustee by telephone (confirmed in
writing) or by facsimile transmission or other acceptable written means. The
Trustee will prepare each Security and appropriate receipts that will serve as
the documentary control of the transaction. Each Security will be represented by
either a Global Security (as defined below) delivered to the Trustee, as agent
for The Depository Trust Company ("DTC"), and recorded in the book-entry system
maintained by DTC (a "Book-Entry Security") or a certificate delivered to the
holder thereof or a person designated by such holder (a "Certificated
Security"). Except as set forth in the Prospectus, as amended or supplemented,
an owner of a Book-Entry Security will not be entitled to receive a Certificated
Security.
A. PROCEDURES FOR BOOK-ENTRY SECURITIES
<PAGE> 27
-27-
In connection with the qualification of Book-Entry Securities for
eligibility in the book-entry system maintained by DTC, the Trustee will perform
the custodial, document control and administrative functions described below, in
accordance with its respective obligations under a Letter of Representation from
the Company and the Trustee to DTC, dated as of[insert date] (the "Letter of
Representation"), and a Medium-Term Note Certificate Agreement between the
Trustee and DTC dated [insert date], and its obligations as a participant in
DTC, including DTC's Same-Day Funds Settlement System ("SDFS").
On any Settlement Date for one or more Book-Entry Securities, the
Company will issue a single global security in fully registered form without
coupons (a "Global Security") representing up to U.S. $250,000,000 principal
amount of all such Securities that have the same Original Issue Date, Maturity
Date and other terms. Each Global Security will be dated and issued as of the
date of its authentication by the Trustee. Each Global Security will bear an
"Interest Accrual Date," which will be (i) with respect to an original Global
Security (or any portion thereof), its original issuance date and (ii) with
respect to any Global Security (or any portion thereof) issued subsequently upon
exchange of a Global Security, or in lieu of a destroyed, lost or stolen Global
Security, the most recent Interest Payment Date to which interest has been paid
or duly provided for on the predecessor Global Security or Securities (or if no
such payment or provision has been made, the original issuance date of the
predecessor Global Security), regardless of the date of authentication of such
subsequently issued Global Security. Book-Entry Securities may be payable only
in U.S. dollars. No Global Security will represent any Certificated Security.
Upon receipt of the Sale Information from the Company, the Trustee will
then assign a CUSIP number to the Global Security representing such Security and
will notify the Company and the Agent of such CUSIP number by telephone as soon
as practicable.
The Trustee will enter a pending deposit message through DTC's
Participant Terminal System providing the following settlement information to
DTC, the Agent and Standard & Poor's Corporation:
1. The Sale Information.
2. The Initial Interest Payment Date for such Security, the number of days
by which such date succeeds the related DTC Record Date (which shall be
the Record Date as defined in the Security) and, if known, amount of
interest payable on such Initial Interest Payment Date.
3. The CUSIP number of the Global Security representing such Security.
4. Whether such Global Security will represent any other Book-Entry
Security (to the extent known at such time).
<PAGE> 28
-28-
By 9:00 a.m. on the Settlement Date, the Trustee will complete and
authenticate the Global Security representing such Security. By 10:00 a.m. on
the Settlement Date, DTC will credit such Security to the Trustee's participant
account at DTC.
By 2:00 p.m. on the Settlement Date, the Trustee will enter an SDFS
deliver order through DTC's Participant Terminal System instructing DTC to (i)
debit such Security to the Trustee's participant account and credit such
Security to the Agent's participant account and (ii) debit the Agent's
settlement account and credit the Trustee's settlement account for an amount
equal to the price of such Security less the Agent's commission, if any. The
entry of such a deliver order shall constitute a representation and warranty by
the Trustee to DTC that (a) the Global Security representing such Book-Entry
Security has been issued and authenticated and (b) the Trustee is holding such
Global Security pursuant to the Medium-Term Note Certificate Agreement between
the Trustee and DTC.
Unless the Agent is the end purchaser of such Security, the Agent will
enter an SDFS deliver order through DTC's Participant Terminal System
instructing DTC (i) to debit such Security to the Agent's participant account
and credit such Security to the participant accounts of the Participants with
respect to such Security and (ii) to debit the settlement accounts of such
Participants and credit the settlement account of the Agent for an amount equal
to the price of such Security.
By 4:45 p.m. on the Settlement Date transfers of funds in accordance
with SDFS deliver orders described in the two preceding paragraphs will be
settled in accordance with SDFS operating procedures in effect on the Settlement
Date.
By 5:00 p.m. on the Settlement Date, the Trustee will credit to the
account of the Company maintained with the Trustee in funds available for
immediate use in the amount transferred to the Trustee by the Agent.
Unless the Agent is the end purchaser of such Security, the Agent will
confirm the purchase of such Security to the purchaser either by transmitting to
the Participants with respect to such Security a confirmation order or orders
through DTC's institutional delivery system or by mailing a written confirmation
to such purchaser.
If settlement of a Book-Entry Security is rescheduled or canceled, the
Trustee, after receiving notice from the Company or the Agent, will deliver to
DTC, through DTC's Participant Terminal System, a cancellation message to such
effect by no later than 2:00 P.M. on the Business Day immediately preceding the
scheduled Settlement Date.
The Company will instruct the Trustee by facsimile transmission or
other acceptable written means to authenticate and deliver the Certificated
Securities no later than 2:15 p.m., New
<PAGE> 29
-29-
York City time, on the Settlement Date. Such instruction will be given by the
Company prior to 3:00 p.m., New York City time, on the business day prior to the
Settlement Date unless the Settlement Date is the date of acceptance by the
Company of the offer to purchase Securities in which case such instruction will
be given by the Company by 11:00 a.m., New York City time.
B. PROCEDURES FOR CERTIFICATED SECURITIES
In the case of a sale of Certificated Securities to a purchaser
solicited by an Agent, the Trustee will, by 2:15 p.m., New York City time, on
the Settlement Date, deliver the Securities to the Selling Agent for the benefit
of the purchaser of such Securities against delivery by the Selling Agent of a
receipt therefor. On the Settlement Date, the Selling Agent will deliver payment
for such Securities in immediately available funds to the Trustee in an amount
equal to the issue price of the Securities less the Selling Agent's commission;
provided that the Selling Agent reserves the right to withhold payment for which
it has not received funds from the purchaser.
In the case of a sale of Securities to a Purchasing Agent, the Trustee
will, by 2:15 p.m., New York City time, on the Settlement Date, deliver the
Securities to the Purchasing Agent against delivery of payment for such
Securities in immediately available funds to the Trustee in an amount equal to
the issue price of the Securities less the Purchasing Agent's discount.
In either case, promptly upon receipt of such funds from the Agent, the
Trustee will wire an amount equal thereto to, or upon the order of, the Company
in immediately available funds.
The Trustee shall deliver Certificated Securities to:
Failure to Settle:
A. PROCEDURES FOR BOOK-ENTRY SECURITIES
If the Trustee fails to enter an SDFS deliver order with respect to a
Book-Entry Security, the Trustee may deliver to DTC, through DTC's Participant
Terminal System, as soon as practicable a withdrawal message instructing DTC to
debit such Security to the Trustee's participant account, provided that the
Trustee's participant account contains a principal amount of the Global Security
representing such Security that is at least equal to the principal amount to be
debited. If a withdrawal message is processed with respect to all the Book-Entry
Securities represented by a Global Security, the Trustee will mark such Global
Security "canceled," make appropriate entries in the Trustee's records and send
such canceled Global Security to the Company. The CUSIP number assigned to such
Global Security shall, in accordance with the procedures of the CUSIP Service
Bureau of Standard & Poor's Corporation, be canceled and not immediately
reassigned. If a withdrawal message is processed with respect to one or more,
but not all, of the Book-Entry Securities represented by a Global Security, the
Trustee will exchange
<PAGE> 30
-30-
such Global Security for two Global Securities, one of which shall represent
such Book-Entry Security or Securities and shall be canceled immediately after
issuance and the other of which shall represent the remaining Book-Entry
Securities previously represented by the surrendered Global Security and shall
bear the CUSIP number of the surrendered Global Security.
If the purchase price for any Book-Entry Security is not timely paid to
the Participants with respect to such Security by the beneficial purchaser
thereof (or a person, including an indirect participant in DTC, acting on behalf
of such purchaser), such Participants and, in turn, the Agent may enter SDFS
deliver orders through DTC's Participant Terminal System reversing the orders
entered. Thereafter, the Trustee will deliver the withdrawal message and take
the related actions described in the preceding paragraph.
Notwithstanding the foregoing, upon any failure to settle with respect
to a Book-Entry Security, DTC may take any actions in accordance with its SDFS
operating procedures then in effect.
In the event of a failure to settle with respect to one or more, but
not all, of the Book-Entry Securities to have been represented by a Global
Security, the Trustee will provide for the authentication and issuance of a
Global Security representing the Book-Entry Securities to be represented by such
Global Security and will make appropriate entries in its records.
B. PROCEDURES FOR CERTIFICATED SECURITIES
If a purchaser fails to make payment to the Selling Agent for a
Certificated Security, the Selling Agent will promptly notify the Trustee and
the Company thereof by telephone (confirmed in writing) or by facsimile
transmission or other acceptable written means. The Selling Agent will
immediately return the Certificated Security to the Trustee. Immediately upon
receipt of such Security by the Trustee, the Trustee will debit the account of
the Company in an amount equal to the amount previously credited thereto in
respect of such Security and will return such funds to the Selling Agent. The
Company will reimburse the Selling Agent on an equitable basis for its loss of
the use of funds at the then prevailing broker-loan rate during the period when
they were credited to the account of the Company.
The Trustee will cancel the Certificated Security in respect of which
the failure occurred, make appropriate entries in its records and, unless
otherwise instructed by the Company, destroy the Security.
<PAGE> 1
EXHIBIT 4(a)
CONECTIV
Senior Debt Securities
INDENTURE
Dated as of _________, 1999
First Union Trust Company, National Association
Trustee
<PAGE> 2
CROSS-REFERENCE TABLE
CONECTIV AND FIRST UNION TRUST COMPANY, NATIONAL ASSOCIATION, TRUSTEE
INDENTURE DATED ___________, 1999
<TABLE>
<CAPTION>
TIA Section Indenture Section
- ----------- -----------------
<S> <C>
310 (a)(1) ................................................... 6.10
(a)(2) ................................................... 6.10
(a)(3) ................................................... N.A.
(a)(4) ................................................... N.A.
(b) ...................................................... 6.08, 6.10, 12.02
(c) ...................................................... N.A.
311 (a) ...................................................... 6.11
(b) ...................................................... 6.11
(c) ...................................................... N.A.
312 (a) ...................................................... 2.07
(b) ...................................................... 12.03
(c) ...................................................... 12.03
313 (a) ...................................................... 6.06
(b) ...................................................... 6.06
(c) ...................................................... 6.06, 12.02
(d) ...................................................... 6.06
314 (a) ...................................................... 3.02, 3.03, 12.02
(b) ...................................................... N.A
(c)(1) ................................................... 12.05
(c)(2) ................................................... 6.02, 12.05
(c)(3) ................................................... N.A.
(d) ...................................................... N.A.
(e) ...................................................... 12.06
(f) ...................................................... N.A.
315 (a) ...................................................... 6.01(b)
(b) ...................................................... 6.05, 12.02
(c) ...................................................... 6.01(a)
(d) ...................................................... 6.01(c)
(e) ...................................................... 5.11
316 (a)(1)(A) ................................................ 5.05
(a)(1)(B) ................................................ 5.04
(a)(2) ................................................... N.A.
(b) ...................................................... 5.07
317 (a)(1) ................................................... 5.08
(a)(2) ................................................... 5.09
(b) ...................................................... 2.06
318 (a) ...................................................... 12.01
</TABLE>
2
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
RECITALS ......................................................................... 1
ARTICLE 1
Definitions and Incorporation by Reference
SECTION 1.01. Definitions ............................................... 1
SECTION 1.02. Other Definitions ......................................... 4
SECTION 1.03. Incorporation by Reference of Trust Indenture Act ......... 4
SECTION 1.04. Rules of Construction ..................................... 5
ARTICLE 2
The Securities
SECTION 2.01. Amount; Issuable in Series ................................ 6
SECTION 2.02. Denominations ............................................. 9
SECTION 2.03. Execution, Authentication and Delivery .................... 9
SECTION 2.04. Temporary Securities ...................................... 10
SECTION 2.05. Registrar and Paying Agent ................................ 11
SECTION 2.06. Paying Agent to Hold Money in Trust ....................... 12
SECTION 2.07. Securityholder Lists ...................................... 12
SECTION 2.08. Transfer and Exchange ..................................... 13
SECTION 2.09. Mutilated, Destroyed, Lost or Stolen Securities ........... 14
SECTION 2.10. Outstanding Securities .................................... 14
SECTION 2.11. Cancellation .............................................. 15
SECTION 2.12. Default Interest .......................................... 15
SECTION 2.13. Computation of Interest ................................... 16
ARTICLE 3
Covenants
SECTION 3.01. Payment of Securities ..................................... 16
SECTION 3.02. SEC Reports ............................................... 16
SECTION 3.03. Compliance Certificate .................................... 16
</TABLE>
3
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
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<S> <C>
ARTICLE 4
Successor Company
SECTION 4.01. When Company May Merge or Transfer Assets ................. 17
SECTION 4.02. Successor Entity Substituted .............................. 17
SECTION 4.03. Limitation ................................................ 17
ARTICLE 5
Defaults and Remedies
SECTION 5.01. Events of Default ......................................... 18
SECTION 5.02. Acceleration .............................................. 19
SECTION 5.03. Other Remedies ............................................ 19
SECTION 5.04. Waiver of Past Defaults ................................... 19
SECTION 5.05. Control by Majority ....................................... 20
SECTION 5.06. Limitation on Suits ....................................... 20
SECTION 5.07. Rights of Holders To Receive Payment ...................... 20
SECTION 5.08. Collection Suit by Trustee ................................ 21
SECTION 5.09. Trustee May File Proofs of Claim .......................... 21
SECTION 5.10. Priorities ................................................ 21
SECTION 5.11. Undertaking for Costs ..................................... 22
SECTION 5.12. Waiver of Stay or Extension Laws .......................... 22
ARTICLE 6
Trustee
SECTION 6.01. Duties of Trustee ......................................... 22
SECTION 6.02. Rights of Trustee ......................................... 23
SECTION 6.03. Individual Rights of Trustee .............................. 24
SECTION 6.04. Trustee's Disclaimer ...................................... 24
SECTION 6.05. Notice of Defaults ........................................ 24
SECTION 6.06. Reports by Trustee to Holders ............................. 25
SECTION 6.07. Compensation and Indemnity ................................ 25
SECTION 6.08. Replacement of Trustee .................................... 26
SECTION 6.09. Successor Trustee by Merger ............................... 27
SECTION 6.10. Eligibility; Disqualification ............................. 27
SECTION 6.11. Preferential Collection of Claims Against Company ......... 27
</TABLE>
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TABLE OF CONTENTS
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ARTICLE 7
Discharge of Securities and Indenture
SECTION 7.01. Satisfaction and Discharge of Securities .................. 27
SECTION 7.02. Satisfaction and Discharge of Indenture ................... 30
SECTION 7.03. Application of Trust Money ................................ 31
ARTICLE 8
Amendments
SECTION 8.01. Without Consent of Holders ................................ 31
SECTION 8.02. With Consent of Holders ................................... 32
SECTION 8.03. Compliance with Trust Indenture Act ....................... 33
SECTION 8.04. Revocation and Effect of Consent and Waivers .............. 33
SECTION 8.05. Notation on or Exchange of Securities ..................... 34
SECTION 8.06. Trustee To Sign Amendments ................................ 34
ARTICLE 9
Redemption
SECTION 9.01. Applicability ............................................. 34
SECTION 9.02. Notice to Trustee ......................................... 34
SECTION 9.03. Selection of Securities To Be Redeemed .................... 35
SECTION 9.04. Notice of Redemption ...................................... 35
SECTION 9.05. Effect of Notice of Redemption ............................ 36
SECTION 9.06. Deposit of Redemption Price ............................... 36
SECTION 9.07. Securities Redeemed in Part ............................... 36
ARTICLE 10
Sinking Funds
SECTION 10.01. Applicability ............................................ 37
SECTION 10.02. Satisfaction of Sinking Fund Payment with Securities ..... 37
SECTION 10.03. Redemption of Securities for Sinking Fund ................ 38
</TABLE>
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TABLE OF CONTENTS
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ARTICLE 11
Meetings of Holders; Actions without Meeting
SECTION 11.01. Purposes for Which Meetings May Be Called ................ 38
SECTION 11.02. Call, Notice and Place of Meetings ....................... 38
SECTION 11.03. Persons Entitled to Vote at Meetings ..................... 39
SECTION 11.04. Quorum; Action ........................................... 39
SECTION 11.05. Attendance at Meeting; Determination of Voting Rights;
Conduct and Adjournment of Meetings ...................... 40
SECTION 11.06. Counting Votes and Recording Action of Meetings .......... 41
SECTION 11.07. Action without Meeting ................................... 42
ARTICLE 12
Miscellaneous
SECTION 12.01. Trust Indenture Act Controls ............................. 42
SECTION 12.02. Notices .................................................. 42
SECTION 12.03. Communication by Holders with Other Holders .............. 43
SECTION 12.04 Acts of Holders .......................................... 43
SECTION 12.05. Certificate and Opinion as to Conditions Precedent ....... 45
SECTION 12.06. Statements Required in Certificate or Opinion ............ 45
SECTION 12.07. When Securities Disregarded .............................. 45
SECTION 12.08. Rules by Trustee, Paying Agent and Registrar ............. 46
SECTION 12.09. Legal Holidays ........................................... 46
SECTION 12.10. Governing Law ............................................ 46
SECTION 12.11. No Recourse Against Others ............................... 46
SECTION 12.12. Successors ............................................... 46
SECTION 12.13. Multiple Originals ....................................... 46
SECTION 12.14. Table of Contents; Headings .............................. 47
SECTION 12.15 Separability Clause ...................................... 47
TESTIMONIUM ...................................................................... 47
EXECUTION ........................................................................ 47
ACKNOWLEDGMENTS .................................................................. 47
</TABLE>
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<PAGE> 7
THIS INDENTURE dated ___________________ between Conectiv, a
corporation duly organized and existing under the laws of the State of Delaware
(hereinafter called the "Company"), having its principal office at 800 King
Street, Wilmington, Delaware 19899, and First Union Trust Company, national
banking association, a National Association organized and existing under the
laws of the United States of America (hereinafter called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of unsecured debentures,
notes or other evidences of indebtedness (herein called the "Securities"), to be
issued in one or more series as contemplated herein.
All things necessary to make this Indenture a valid agreement of the
Company in accordance with its terms have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all holders of the Securities as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions
"Affiliate" of any specified person means any other person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
"control" when used with respect to any specified person means the power to
direct the management and policies of such person directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Bankruptcy Law" means Title 11, United States Code, or any similar
Federal or state law for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company or any
committee thereof duly authorized to act on behalf of such Board of Directors in
respect of matters related to this Indenture.
<PAGE> 8
"Board Resolution" means a resolution duly adopted by the Board of
Directors, a copy of which shall be certified by the Secretary or an Assistant
Secretary as being in full force and effect on the date of such certification
and delivered to the Trustee.
"Business Day" means, unless otherwise specified pursuant to Section
2.01, each day which is not a Legal Holiday.
"Bylaws" means the bylaws of the Company as amended from time to time.
"Company" means Conectiv, a Delaware corporation, unless and until a
successor replaces it pursuant to Article 4 and, thereafter, means the successor
(or any subsequent successor pursuant to said Article) and, for purposes of any
provision contained herein and required by the TIA, each other Obligor on the
Securities.
"Company Request", "Request of the Company", "Company Order" or "Order
of the Company" means a written request or order signed in the name of the
Company by an Officer and delivered to the Trustee.
"Custodian" means any receiver, trustee, assignee, liquidator,
custodian or similar official under any Bankruptcy Law.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default as more fully described in Section 5.01 of
this Indenture.
"Discount Security" means any Security which provides for an amount
less than the principal amount thereof to be due and payable upon a declaration
of acceleration of the maturity thereof pursuant to Section 5.02.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Holder" or "Securityholder" means the person in whose name a Security
is registered in the Security Register.
"Indenture" means this Indenture, as originally executed and delivered
and as it may from time to time be amended or supplemented by one or more
indentures or other instruments supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of a particular series
of Securities established as contemplated by Section 2.01.
"Interest Payment Date" means the date specified in the Securities as
the fixed date on which interest is due and payable.
"Officer" means the Chairman of the Board, the President, any Vice
President, the Treasurer, the Secretary, the Controller, any Assistant
Treasurer, any Assistant Secretary, any
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<PAGE> 9
Assistant Controller, or any officer, agent or attorney-in-fact of the Company
designated by Board Resolution or the Bylaws or named in an Officer's
Certificate.
"Officer's Certificate" means a certificate signed by an Officer.
"Opinion of Counsel" means a written opinion from legal counsel, who
may be an employee of or counsel to the Company (or any Subsidiary or Affiliate)
or other counsel acceptable to the Trustee.
"Placement of Payment" when used with respect to the Securities of any
series, or any Tranche thereof, means the place or places, specified as
contemplated by Section 2.01, at which principal of and premium, if any, and
interest, if any, on the Securities of such series payable.
"Principal Amount" of a Security means the principal amount of the
Security plus the premium, if applicable, payable on the Security which is due
or overdue or is to become due at the relevant time.
"SEC" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as amended,
or, if at any time after the date of the execution and delivery of this
Indenture such Commission is not existing and performing the duties now assigned
to it under the TIA, then the body, if any, performing such duties at such time.
"Securities" means any unsecured debentures, notes or other evidences
of indebtedness issued under this Indenture.
"Subsidiary" means a corporation or limited liability company of which
a majority of the capital stock, having voting power under ordinary
circumstances to elect directors, is owned by the Company and/or one or more
Subsidiaries.
"Terms" means the maturity date, interest rate or method of determining
the interest rate, interest payment dates, redemption provisions (optional or
mandatory) and any other terms of any Securities established pursuant to
Sections 2.01 and 2.03.
"TIA" means, as of any time, the Trust Indenture Act of 1939, or any
successor statute, as in effect at such time.
"Trustee" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor.
"Trust Officer" means any officer of the Trustee assigned by the
Trustee to administer its corporate trust matters.
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<PAGE> 10
"U.S. Government Obligations" means (a) direct obligations of, or
obligations the principal of and interest on which are unconditionally
guaranteed by, the United States entitled to the benefit of the full faith and
credit thereof; and (b) certificates, depositary receipts or other instruments
which evidence a direct ownership interest in obligations described in clause
(a) above or in any specific interest or principal payments due in the respect
thereof; provided, however, that the custodian of such obligations or specific
interest or principal payments shall be a bank or trust company (which may
include the Trustee or any Paying Agent) subject to federal or state supervision
or examination with a combined capital and surplus of at least $50,000,000; and
provided, further, that except as may be otherwise required by law, such
custodian shall be obligated to pay to the holders of such certificates,
depositary receipts or other instruments the full amount received by such
custodian in respect of such obligations or specific payment and shall not be
permitted to make any deduction therefrom.
SECTION 1.02. Other Definitions
<TABLE>
<CAPTION>
Defined in Term .................................................. Section
- --------------- -------
<S> <C>
"Act" ............................................................ 12.04
"Event of Default" ............................................... 5.01
"Legal Holiday" .................................................. 12.09
"Mandatory Sinking Fund Payment" ................................. 10.01
"Notice of Default" .............................................. 5.01
"Optional Sinking Fund Payment" .................................. 10.01
"Paying Agent" ................................................... 2.05
"Registrar" ...................................................... 2.05
"Security Register" .............................................. 2.05
"Security Registrar" ............................................. 2.05
</TABLE>
SECTION 1.03. Incorporation by Reference of Trust Indenture Act
Whenever this Indenture refers to a provision of the TIA or a provision
of the TIA provides that an indenture to be qualified thereunder shall be deemed
to include such provision, the provision is incorporated by reference in and
made a part of this Indenture. The following TIA terms used in this Indenture
have the following meanings as if fully set forth herein and in any supplement
hereto:
"Commission" means the SEC.
"Obligor" on the Securities means the Company and any other obligor on
the Securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule have
the meanings assigned to them by such definitions.
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<PAGE> 11
SECTION 1.04. Rules of Construction
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted
accounting principles in the United States as in effect from
time to time provided, the term "generally accepted accounting
principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as
are generally accepted in the United States at the date of
such computation or, at the election of the Company from time
to time, at the date of the execution and delivery of this
Indenture; provided, however, that in determining generally
accepted accounting principles applicable to the Company,
effect shall be given, to the extent required, to any order,
rule or regulation of any administrative agency, regulatory
authority or other governmental body having jurisdiction over
the Company;
(3) any term used herein without definition which is defined in
the Uniform Commercial Code as in effect in any jurisdiction
in which any property of the Company is located shall have the
meanings assigned to it therein with respect to such property;
(4) "including" means including, without limitation;
(5) "person" means any individual, corporation, partnership,
limited liability partnership, limited liability company,
joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or
political subdivision thereof or any other entity.
(6) "or" is not exclusive;
(7) the words "herein," hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision;
(8) words in the singular include the plural and words in the
plural include the singular; and
(9) the principal amount of any non-interest bearing or other
discount security at any date shall be the principal amount
thereof that would be shown on a balance sheet of the issuer
dated such date prepared in accordance with generally accepted
accounting principles and accretion of principal on such
security shall not be deemed to be the issuance of Debt
Securities.
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<PAGE> 12
ARTICLE 2
THE SECURITIES
SECTION 2.01. Amount; Issuable in Series
The aggregate Principal Amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series and Securities of
the same series may have different Terms. There shall be established in a Board
Resolution or a supplemental indenture or in an Officer's Certificate pursuant
to a Board Resolution or supplemental indenture, prior to the issuance of
Securities of any series, except as contemplated by the fourth paragraph of
Section 2.03:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all Securities
of other series);
(2) any limit upon the aggregate Principal Amount of the
Securities of the series which may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Securities of the
series pursuant to Sections 2.04, 2.08, 2.09, 8.05 and 9.07);
(3) the date or dates on which the principal and premium, if
applicable, of any of the Securities of the series are payable
or the method of determination thereof;
(4) the rate or rates, or the method of determination thereof, at
which any of the Securities of the series shall bear interest,
if any, the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such interest
shall be payable and the regular record date for the interest
payable on any Interest Payment Date;
(5) the place or places where the principal of and interest, if
any, on any of the Securities of the series shall be payable
and the office or agency for the Securities of the series
maintained by the Company pursuant to Section 2.05;
(6) the period or periods within which, the price or prices at
which and the terms and conditions upon which any of the
Securities of the series may be redeemed, in whole or in part,
at the option of the Company;
(7) the terms of any sinking fund and the obligation, if any, of
the Company to redeem or purchase Securities of the series
pursuant to any sinking fund or analogous provisions or at the
option of a Holder thereof and the period or periods within
which, the price or
6
<PAGE> 13
prices at which and the terms and conditions upon which
Securities of the series shall be redeemed or purchased, in
whole or in part;
(8) if other than denominations authorized by Section 2.02, the
denominations in which the Securities of the series shall be
issuable;
(9) if other than the Principal Amount thereof, the portion of the
Principal Amount of any of the Securities of the series which
shall be payable upon declaration of acceleration of the
maturity thereof pursuant to Section 5.02;
(10) any deletions or modifications of or additions to the Events
of Default set forth in Section 5.01, or covenants of the
Company set forth in Article 3, to be in effect so long as any
Securities of the series remain outstanding;
(11) the currency or currencies, including composite currencies, in
which payment of the principal of and premium, if any, and
interest, if any, on the Securities of such series shall be
payable (if other than in U.S. dollars) and the formulary or
other method or other means by which the equivalent or any
such amount in U.S. dollars is to be determined for any
purpose, including for the purpose of determining the
principal amount of such Securities deemed to be outstanding
as any time;
(12) if the principal of or premium, if any, or interest, if any,
on the Securities of such series, are to be payable, at the
election of the Company or a Holder thereof, in a coin or
currency other than that in which the Securities are stated to
be payable, the period or periods within which, and the terms
and conditions upon which, such election may be made;
(13) if the principal of or premium, if any, or interest, if any,
on the Securities of such series, are to be payable, or are to
be payable at the election of the Company or a Holder thereof,
in securities or other property, the type and amount of such
securities or other property, or the formulary or other method
or other means by which such amount shall be determined, and
the period or periods within which, and the terms and
conditions upon which, any such election may be made;
(14) if the amount payable in respect of the principal of or
premium, if any, or interest, if any, on the Securities of
such series, may be determined with reference to an index or
other fact or event ascertainable outside of this Indenture,
the manner in which such amounts shall be determined (to the
extent not established pursuant to clause (4) of this
paragraph);
(15) the forms of the Securities of the series;
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<PAGE> 14
(16) any exceptions to Section 12.09 or variation in the definition
of Business Day, with respect to the Securities of such
series, except any variations which would eliminate reference
to Delaware and North Carolina in Section 12.09;
(17) whether the Securities of the series shall be issued in whole
or in part in the form of one or more global Securities and,
in such case, (i) the depository for such global Security or
Securities, (ii) any limitations on the rights of the Holder
or Holders of such Securities to transfer or exchange the same
or to obtain the registration of transfer thereof, (iii) any
limitations on the rights of the Holder or Holders thereof to
obtain certificates therefor in definitive form in lieu of
temporary form and (iv) any and all other matters incidental
to such Securities;
(18) if Securities of the series are to be convertible into other
securities, the Terms of such conversion; and
(19) any other Terms of any of the Securities of the series;
provided, however, that any provision in any such Board
Resolution, supplemental indenture, or Officer's Certificate,
or in or pursuant to any Company Order in accordance with
Section 2.03, that affects any right, power, authority, duty,
benefit, protection, privilege, immunity, or indemnity of the
Trustee shall not be binding on the Trustee unless the Trustee
shall have consented thereto in writing (such consent not to
be unreasonably delayed or withheld);
All Securities of any one series shall be substantially identical
except as to denomination and other terms as provided in or pursuant to the
Board Resolution or supplemental indenture or the Officer's Certificate referred
to above, or the Company Order contemplated by the fourth paragraph of Section
2.03.
At the option of the Company, interest on any series that bears
interest may be paid by mailing a check to the address of, or making a wire
transfer to the account of, any Holder as such address shall appear in the
register maintained pursuant to Section 2.05.
The Securities may have notations, legends or endorsements required by
law, stock exchange rule, agreements to which the Company is subject, if any, or
usage (provided that any such notation, legend or endorsement is in a form
acceptable to the Company).
If any of the Terms of the series are established by action taken
pursuant to a Board Resolution, except as to those contemplated by the fourth
paragraph of Section 2.03, a copy of an appropriate record of such action
together with such Board Resolution shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Officer's Certificate setting forth the Terms of the series.
8
<PAGE> 15
SECTION 2.02. Denominations
The Securities of each series shall be issuable in such denominations
as shall be specified as contemplated by Section 2.01. In the absence of any
such provisions with respect to the Securities of any series, the Securities of
such series shall be issuable in denominations of $1,000 and in any integral
multiple thereof. Securities of each series shall be numbered, lettered or
otherwise distinguished in such manner in accordance with such plan as the
Officers of the Company executing the same may determine with the approval of
the Trustee.
SECTION 2.03. Execution, Authentication and Delivery
One Officer shall sign the Securities for the Company by manual or
facsimile signature. The Company's seal shall be impressed, affixed, imprinted
or reproduced on the Securities and may be in facsimile form.
If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security, the Security shall be
valid nevertheless.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
At any time after the execution and delivery of this Indenture, the
Company may execute and deliver to the Trustee Securities of any series executed
on behalf of the Company by an Officer, together with the instrument or
instruments establishing the form or forms and Terms of such series and a
Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order shall authenticate and deliver such
Securities; provided that, if all Securities of a series are not to be
originally issued at one time, the Trustee shall authenticate and deliver
Securities of such series for original issue from time to time in the aggregate
Principal Amount established for such series pursuant to such procedures
acceptable to the Trustee as may be specified from time to time by Company
Order. The maturity date, original issuance date, interest rate and any other
Terms of the Securities of such series shall be determined by or pursuant to
such Company Order and procedures. If provided for in such procedures, such
Company Order may authorize authentication and delivery pursuant to oral or
electronic instructions from the Company or its duly authorized agents, which
instructions, if given orally, shall be promptly confirmed in writing.
If the forms or Terms of the Securities of the series have been
established as permitted by Section 2.01, or the fourth paragraph of Section
2.03 prior to and as a condition to, authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel
stating:
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<PAGE> 16
(a) that such forms and/or Terms have been established in
conformity with the provisions of this Indenture; and
(b) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the
Company, entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their
terms, subject, as to enforceability, to such exceptions with
respect to laws or principles of equity relating to or
affecting generally the enforcement of creditors' rights.
If such forms or Terms have been so established, the Trustee
shall not be required to authenticate such Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties, powers, authority, benefits, protections, privileges, indemnities or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 2.01 and of the
second preceding paragraph, if all Securities of a series are not to be
originally issued at one time, it shall not be necessary to deliver the
Officer's Certificate, Board Resolution or supplemental indenture otherwise
required pursuant to Section 2.01 or the Company Order otherwise required
pursuant to the third preceding paragraph, or the Opinion of Counsel otherwise
required pursuant to such second preceding paragraph at or prior to the time of
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued; provided that, in lieu of the opinion described in
(b) above, the Opinion of Counsel may state:
(a) when the Terms of such Securities shall have been
established pursuant to a Company Order or Orders or pursuant
to such procedures as may be specified from time to time by a
Company Order or Orders, all as contemplated by and in
accordance with the instrument or instruments delivered to the
Trustee as required by the procedures set forth above, such
terms will have been duly authorized by the Company and will
have been established in conformity with the provisions of the
Indenture; and
(b) when such Securities shall have been authenticated and
delivered by the Trustee in accordance with this Indenture and
the Company Order or Orders or the specified procedures
referred to in paragraph (a) above and issued and delivered by
the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, such Securities will
constitute valid obligations of the Company, entitled to the
benefits provided by the Indenture.
SECTION 2.04. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which
10
<PAGE> 17
are printed, lithographed, typewritten, mimeographed or otherwise produced, in
any authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, in registered form and with such
appropriate insertions, omissions, substitutions and other variations as the
Officers executing such Securities may determine, as evidenced conclusively by
their execution of such Securities. Such temporary Securities may be in global
form.
Except as otherwise specified as contemplated by Section 2.01 in the
Terms of the Securities of any series, if temporary Securities of any series are
issued, the Company will cause definitive Securities of that series to be
prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company
maintained pursuant to Section 2.05 for the purpose of exchanges of Securities
of such series, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series the Company shall execute and
the Trustee upon Company Order shall authenticate and deliver in exchange
therefor a like aggregate Principal Amount of definitive Securities of the same
series and of like tenor or authorized denominations and having the same Terms
and conditions.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder.
SECTION 2.05. Registrar and Paying Agent
The Company shall cause to be kept in an office or agency, with respect
to the Securities of each series, a register (all registers kept in accordance
with this Section being collectively referred to as the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Securities of such series and the
registration of transfers and exchanges thereof. The Company shall designate one
Person to maintain the Security Register for the Securities of each series, and
such Person is referred to herein, with respect to such series, as the "Security
Registrar."
Anything herein to the contrary notwithstanding, the Company may
designate one or more of its offices as an office in which a Security Register
with respect to the Securities of one or more series shall be maintained, and
the Company may designate itself the Security Registrar with respect to one or
more of such series. The Security Register shall be open for inspection by the
Trustee and the Company at all reasonable times. The Company shall also maintain
an office or agency where Securities may be presented for payment (the "Paying
Agent").
The Company initially appoints the Trustee as Registrar and Paying
Agent in connection with the Securities. All rights, benefits, privileges,
protections, immunities and indemnities of the Trustee shall apply to Trustee in
its capacity as Security Registrar and Paying Agent.
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<PAGE> 18
SECTION 2.06. Paying Agent To Hold Money in Trust
On or prior to each due date of the Principal Amount on any Security,
the Company shall deposit with the Paying Agent a sum sufficient to pay such
principal and interest when so becoming due. The Company shall require each
Paying Agent (other than the Company or the Trustee) to agree in writing that
the Paying Agent shall hold in trust for the benefit of Securityholders or the
Trustee all money held by the Paying Agent for the payment of the Principal
Amount on the Securities and shall notify the Trustee of any default by the
Company (or any other obligator on such Securities) in making any such payment.
If the Company or any Subsidiary or Affiliate of the Company acts as Paying
Agent, it shall segregate the money held by it as Paying Agent and hold it as a
separate trust fund. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee and to account for any funds disbursed by
the Paying Agent. Upon complying with this Section, the Paying Agent shall have
no further liability for the money delivered to the Trustee.
Subject to applicable laws, any money deposited with the Trustee or any
Paying Agent, or then held by the Company, in trust for the payment of the
principal of and premium, if any, or interest, if any, on any Security and
remaining unclaimed for two years after such principal and premium, if any, or
interest, if any, has become due and payable shall be paid to the Company on
Company Request, or, if then held by the Company, shall be discharged from such
trust; and, upon such payment or discharge, the Holder of such Security shall,
as an unsecured general creditor and not as the Holder of an outstanding
Security, look only to the Company for payment of the amount so due and payable
and remaining unpaid, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such payment to the Company, may
at the expense of the Company cause to be mailed, on one occasion only, notice
to such Holder that such money remains unclaimed and that, after a date
specified therein, which shall not be less than thirty (30) days from the date
of such mailing, any unclaimed balance of such money then remaining will be paid
to the Company.
SECTION 2.07. Securityholder Lists
Semiannually, not later than June 30 and December 31 in each year,
commencing June 30, 1999, and within 30 days of such other times as the Trustee
may request in writing, the Company shall furnish or cause to be furnished to
the Trustee information as to the names and addresses of the Holders, as of a
date no more than fifteen (15) days prior to the date such information is so
furnished, and the Trustee shall preserve such information and similar
information received by it in any other capacity and afford to the Holders
access to information so preserved by it, all to such extent, if any, and in
such manner as shall be required by the TIA; provided, however, that no such
list need be furnished so long as the Trustee shall be the Security Registrar.
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SECTION 2.08. Transfer and Exchange
Except as otherwise specified as contemplated by Section 2.01 or the
fourth paragraph of Section 2.03 with respect to the Securities of any series,
upon presentment for registration of transfer of any Security at the office or
agency of the Company in a Place of Payment for such series, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of the same
series, of authorized denominations and of like tenor and aggregate principal
amount.
Except as otherwise specified as contemplated by Section 2.01 with
respect to the Securities of any series, any Security of such series may be
exchanged at the option of the Holder, for one or more new Securities of the
same series, of authorized denominations and of like tenor and aggregate
principal amount, upon presentment of the Securities to be exchanged at any such
office or agency. Whenever any Securities are so presented for exchange, the
Company shall execute, and the Trustee upon Company Order shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities delivered upon any registration of transfer or exchange
of Securities shall be valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented for registration of transfer or for exchange
shall (if so required of the Company, the Trustee or the Security Registrar) be
duly endorsed or shall be accompanied by a written instrument of transfer in
form satisfactory to the Company, the Trustee or the Security Registrar, as the
case may be, duly executed by the Holder thereof or his attorney duly authorized
in writing.
Unless otherwise specified as contemplated by Section 2.01 or the
fourth paragraph of Section 2.03 in the Terms of Securities of any series, no
service charge shall be made for any registration of transfer or exchange of
Securities, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
registration or transfer or exchange of Securities, other than exchanges
pursuant to Section 2.04 or 9.07 not involving any transfer.
The Company shall not be required to execute or to provide for the
registration of transfer of or the exchange of (a) Securities of any series
during a period of 15 days immediately preceding the date of the mailing of any
notice of redemption of such Securities called for redemption or (b) any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
Prior to the due presentation for registration of transfer of any
Security, the Company, the Trustee, the Paying Agent, the Registrar or any
co-registrar may deem and treat the person in whose name a Security is
registered as the absolute owner of such Security for the purpose of receiving
payment of principal of and interest on such Security and for all other purposes
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whatsoever, whether or not such Security is overdue, and none of the Company,
the Trustee, the Paying Agent, the Registrar or any co-registrar shall be
affected by notice to the contrary.
SECTION 2.09. Mutilated, Destroyed, Lost and Stolen Securities
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee upon Company Order shall authenticate and deliver
in exchange therefor a new Security of the same series, and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a) evidence
to their satisfaction of the ownership of and the destruction, loss or theft of
any Security and (b) such security or indemnity as may be reasonably required by
them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security is held by a
person purporting to be the owner of such Security, the Company shall execute
and the Trustee shall authenticate and deliver, in lieu of any such destroyed,
lost or stolen Security, a new Security of the same series and Tranche, and of
like tenor and principal amount and bearing a number not contemporaneously
outstanding.
Notwithstanding the foregoing, in case any such mutilated, destroyed,
lost or stolen Security has become or is about to become due and payable, the
Company in its discretion may, but subject to compliance with the foregoing
conditions, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
reasonable expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Securities shall constitute an additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone other than the Holder
of such new Security, and any such new Security shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Securities of such series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 2.10. Outstanding Securities
Securities outstanding at any time are all Securities authenticated by
the Trustee except for those canceled by it, those delivered to it for
cancellation and those described in this Section
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as not outstanding. A Security does not cease to be outstanding because the
Company or an Affiliate of the Company holds the Security.
If a Security is replaced pursuant to Section 2.09, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Security is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in accordance with
this Indenture, on a redemption date or maturity date money sufficient to pay
all principal, premium (if applicable) and interest payable on that date with
respect to the Securities to be redeemed or maturing, as the case may be, and
the Paying Agent is not prohibited from paying such money to the Securityholders
on that date pursuant to the terms of this Indenture, then on and after that
date such Securities cease to be outstanding and interest on them ceases to
accrue.
In determining whether the Holders of the requisite Principal Amount of
outstanding Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder the Principal Amount of a Discount Security
that shall be deemed to be outstanding for such purposes shall be the amount of
the principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the maturity thereof
pursuant to Section 5.02.
SECTION 2.11. Cancellation
The Company at any time may deliver Securities to the Trustee for
cancellation. The Security Registrar and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for registration of transfer,
exchange or payment. The Trustee and no one else shall cancel and destroy
(subject to the record retention requirements of the Exchange Act) all
Securities surrendered for registration of transfer, exchange, payment or
cancellation and deliver a certificate of such destruction to the Company unless
the Company directs the Trustee to deliver canceled Securities to the Company.
The Company may not issue new Securities to replace Securities it has redeemed,
paid or delivered to the Trustee for cancellation.
SECTION 2.12. Default Interest
If the Company defaults in a payment of interest on the Securities, the
Company shall pay defaulted interest (plus interest on such defaulted interest
to the extent lawful at the rate or rates prescribed therefor in the Securities)
in any lawful manner. The Company may also pay the defaulted interest to the
persons who are Securityholders on a subsequent special record date, which date
shall be at least five Business Days prior to the payment date in which case the
Company shall fix or cause to be fixed any such special record date and payment
date, and, at least 15 days before any such special record date, the Company
shall mail to each Securityholder a notice that states the special record date,
the payment date and the amount of defaulted interest to be paid.
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SECTION 2.13. Computation of Interest
Except as otherwise specified, as contemplated by Section 2.01 or the
fourth paragraph of Section 2.03 in the Terms of Securities of any series,
interest on the Securities of each series shall be computed on the basis of a
three hundred sixty (360) day year consisting of twelve (12) thirty (30) day
months and, with respect to any period less than a full calendar month, on the
basis of the actual number of days elapsed during such period.
ARTICLE 3
COVENANTS
SECTION 3.01. Payment of Securities
The Company shall promptly pay the principal of and interest on the
Securities on the dates and in the manner provided in the Securities and in this
Indenture. Principal and interest shall be considered paid on the date due if on
such date the Trustee or the Paying Agent holds in accordance with this
Indenture money sufficient to pay all principal and interest then due and the
Trustee or the Paying Agent, as the case may be, is not prohibited from paying
such money to the Securityholders on that date pursuant to the terms of this
Indenture.
SECTION 3.02. SEC Reports
The Company shall file with the Trustee, within 30 days after it files
them with the SEC, copies of its annual report and of the information, documents
and other reports (or copies of such portions of any of the foregoing as the SEC
may by rules and regulations prescribe) which the Company is required to file
with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. The Company
shall also comply with the other provisions of TIA Section 314(a)(1),(2) and
(3).
SECTION 3.03. Compliance Certificate
The Company shall deliver to the Trustee within 120 days after the end
of each fiscal year of the Company a certificate from its principal executive
officer, principal financial officer or principal accounting officer stating
that in the course of the performance by such signer of his duties as an officer
of the Company he would normally have knowledge of any Default by the Company or
any noncompliance with the conditions and covenants under the Indenture and
whether or not he knows of any Default or any such noncompliance that occurred
during such period. If such officer does, the certificate shall describe the
Default or non-compliance, its status and what action the Company is taking or
proposes to take with respect thereto. For purposes of this Section 3.03, such
noncompliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture.
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ARTICLE 4
SUCCESSOR COMPANY
SECTION 4.01. When Company May Merge or Transfer Assets
The Company shall not consolidate with or merge with or into, or convey
or otherwise transfer, or lease, its assets as an entirety (or substantially as
an entirety) to, any person, unless:
(i) the resulting, surviving or transferee person (if not the
Company) shall be a person organized and existing under the
laws of the United States of America, any State thereof or the
District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the
Trustee, in form reasonably satisfactory to the Trustee, all
the obligations of the Company under the Securities and this
Indenture;
(ii) immediately after giving effect to such transaction no Default
shall have occurred and be continuing; and
(iii) the Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, transfer, or lease and such
supplemental indenture comply with this Indenture.
SECTION 4.02. Successor Entity Substituted
Upon any consolidation by the Company with or merger by the Company
into any other person or any conveyance or other transfer, of the assets of the
Company as an entirety (or substantially as an entirety) in accordance with
Section 4.01, the successor person formed by such consolidation or into which
the Company is merged or to which such conveyance or other transfer, is made
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such successor
person had been named as the Company herein, and thereafter, the predecessor
entity shall be relieved of all obligations and covenants under this Indenture
and the Securities.
SECTION 4.03. Limitation
Nothing in this Indenture shall be deemed to prevent or restrict: (a)
any consolidation or merger after the consummation of which the Company would be
the surviving or resulting entity or any conveyance or other transfer, or lease
of any part of the properties of the Company which does not constitute the
entirety, or substantially the entirety, thereof; or (b) the approval by the
Company of, or the consent by the Company to, any consolidation or merger to
which any Subsidiary (or any other subsidiary or affiliate of the Company) may
be a party or any conveyance, transfer or lease by any Subsidiary (or any such
other subsidiary or affiliate) of any of its assets.
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ARTICLE 5
DEFAULTS AND REMEDIES
SECTION 5.01. Events of Default
An "Event of Default" occurs if:
(1) the Company defaults in any payment of interest on any Security when
the same becomes due and payable and such default continues for a
period of 30 days;
(2) the Company defaults in the payment of the principal of any Security
when the same becomes due and payable at its stated maturity, upon
declaration or otherwise;
(3) the Company fails to comply with any of its agreements in the
Securities or this Indenture (other than those referred to in (1) or
(2) above) and such failure continues for 60 days after the notice
specified below;
(4) the Company pursuant to or within the meaning of any Bankruptcy Law:
(a) commences a voluntary case;
(b) consents to the entry of an order for relief against it in an
involuntary case;
(c) consents to the appointment of a Custodian of it or for any
substantial part of its property; or
(d) makes a general assignment for the benefit of its creditors;
or
(5) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(a) is for relief against the Company in an involuntary case;
(b) appoints a Custodian of the Company or for any substantial
part of its property; or
(c) orders the winding up or liquidation of the Company;
and the order or decree remains unstayed and in effect for 60 days.
A Default under clause (3) is not an Event of Default until the Trustee
or the Holders of at least 33% in Principal Amount of the Securities notify the
Company of the Default and the Company does not cure such Default within the
time specified after receipt of such Notice. Such
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Notice must specify the Default, demand that it be remedied and state that such
notice is a "Notice of Default".
The Company shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officer's Certificate of
any event which with the giving of notice and the lapse of time would become an
Event of Default under clause (3), its status and what action the Company is
taking or proposes to take with respect thereto.
SECTION 5.02. Acceleration
If an Event of Default (other than an Event of Default specified in
Section 5.01(4) or (5)) occurs and is continuing, the Trustee by notice to the
Company, or the Holders of at least 33% in Principal Amount of the Securities by
notice to the Company and the Trustee, may declare the principal of (or, in
connection with Discount Securities, such portion of the principal amount as may
be specified in the terms of such Securities) and accrued interest on all the
Securities to be due and payable. Upon such a declaration, such principal (or
portion thereof) and interest shall be due and payable immediately. If an Event
of Default specified in Section 5.01(4) or (5) occurs and is continuing, the
principal of and interest on all the Securities shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Securityholders. If all existing Events of Default have been
cured or waived, except nonpayment of principal or interest that has become due
solely because of acceleration, any such acceleration and its consequences shall
be automatically rescinded unless such rescission would conflict with any
judgment or decree. No such rescission shall affect any subsequent Default or
impair any right consequent thereto.
SECTION 5.03. Other Remedies
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal of or interest on the
Securities or to enforce the performance of any provision of the Securities or
this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 5.04. Waiver of Past Defaults
The Holders of a majority in Principal Amount of the Securities by notice to the
Trustee may waive an existing Default and its consequences except (1) a Default
in the payment of the principal of or interest on a Security or (2) a Default in
respect of a provision that under Section 8.02 cannot be amended without the
consent of each Securityholder affected. When a Default is
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waived, it is deemed cured, but no such waiver shall extend to any subsequent or
other Default or impair any consequent right.
SECTION 5.05. Control by Majority
The Holders of a majority in Principal Amount of the Securities may
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or of exercising any trust or power conferred on the
Trustee. However, the Trustee may refuse to follow any direction that conflicts
with law or this Indenture or, subject to Section 6.01, that the Trustee
determines is unduly prejudicial to the rights of other Securityholders or would
involve the Trustee in personal liability; provided, however, that the Trustee
may take any other action deemed proper by the Trustee that is not inconsistent
with such direction. Prior to taking any action hereunder, the Trustee shall be
entitled to indemnification satisfactory to it in its sole discretion against
all losses and expenses caused by taking or not taking such action.
SECTION 5.06. Limitation on Suits
A Securityholder may not pursue any remedy with respect to this
Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating that an
Event of Default is continuing;
(2) the Holders of at least 33% in Principal Amount of the
Securities make a written request to the Trustee to pursue the
remedy;
(3) such Holder or Holders offer to the Trustee reasonable
security or indemnity against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of security or
indemnity; and
(5) the Holders of a majority of Principal Amount of the
Securities do not give the Trustee a direction inconsistent
with the request during such 60-day period.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over another
Securityholder.
SECTION 5.07. Rights of Holders To Receive Payment
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of principal of and interest on the Securities held by
such Holder, on or after the respective due dates expressed in the Securities
(or, in the case of redemption, on the redemption
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date), or to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such
Holder.
SECTION 5.08. Collection Suit by Trustee
If an Event of Default in payment of interest or principal specified in
Section 5.01(1) or (2) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
for the whole amount of principal and interest remaining unpaid (together with
interest on such unpaid interest as provided in Section 3.01, to the extent
lawful) and the amounts provided for in Section 6.07.
SECTION 5.09. Trustee May File Proofs of Claim
The Trustee may file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee and
the Securityholders allowed in any judicial proceedings relative to the Company,
its creditors or its property, and to collect and receive any money or other
property payable or deliverable on any such claims and to distribute the same
and, unless prohibited by law or applicable regulations, may vote on behalf of
the Holders in any election of a trustee in bankruptcy or other person
performing similar functions, and any Custodian in any such judicial proceeding
is hereby authorized by each Holder to make payments to the Trustee and, in the
event that the Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and its counsel, and any other amounts due the Trustee under Section 6.07.
SECTION 5.10. Priorities
If the Trustee collects any money pursuant to this Article 5, it shall
pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 6.07;
SECOND: to Securityholders for amounts due and unpaid on the Securities
for principal and interest, ratably, without preference or priority of
any kind, according to the amounts due and payable on the Securities
for principal and interest, respectively; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section. At least 15 days before such record
date, the Company shall mail to each Securityholder and the Trustee a notice
that states the record date, the payment date and amount to be paid.
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SECTION 5.11. Undertaking for Costs
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 5.07 or a suit by Holders of more than 10% in Principal
Amount of the Securities.
SECTION 5.12. Waiver of Stay or Extension Laws
The Company (to the extent it may lawfully do so) shall not at any time
insist upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and shall not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
shall suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE 6
TRUSTEE
SECTION 6.01. Duties of Trustee
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers vested in it by
this Indenture and use the same degree of care and skill in
their exercise as a prudent person would exercise or use under
the circumstances in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in
this Indenture and no implied covenants or
obligations shall be read into this Indenture against
the Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the
requirements of this Indenture. However, the Trustee
shall examine the certificates and opinions to
determine whether or not they conform to the
requirements of this Indenture.
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(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own
willful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph
(b) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by the Trustee, unless it
is proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in
accordance with a direction received by it pursuant
to Section 5.05.
(d) Every provision of this Indenture that in any way relates to
the Trustee is subject to paragraphs (a), (b) and (c) of this
Section.
(e) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with
the Company.
(f) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur financial
liability in the performance of any of its duties hereunder or
in the exercise of any of its rights or powers, if it shall
have reasonable grounds to believe that repayment of such
funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
Every provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be subject to the
provisions of this Section and to the provisions of the TIA.
SECTION 6.02. Rights of Trustee
(a) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper
person. The Trustee need not investigate any fact or matter
stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officer's Certificate or an Opinion of Counsel. The
Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on the Officer's Certificate
or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent
appointed with due care.
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(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized
or within its rights or powers.
(e) The Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to
this Indenture and the Securities shall be full and complete
authorization and protection from liability in respect to any
action taken, omitted or suffered by it hereunder in good
faith and in accordance with the advice or opinion of such
counsel.
SECTION 6.03. Individual Rights of Trustee
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or its
affiliates with the same rights it would have if it were not Trustee. Any Paying
Agent, Registrar, co-registrar or co-paying agent may do the same with like
rights. However, the Trustee must comply with Sections 6.10 and 6.11.
SECTION 6.04. Trustee's Disclaimer
The Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Indenture or the Securities, it shall not be
accountable for the Company's use of the proceeds from the Securities, and it
shall not be responsible for any statement of the Company in the Indenture or in
any document issued in connection with the sale of the Securities or in the
Securities other than the Trustee's certificate of authentication.
SECTION 6.05. Notice of Defaults
If a Default occurs and is continuing and if it is known to a
responsible officer of the Trustee, the Trustee shall mail to each
Securityholder notice of the Default within 90 days after it occurs. Except in
the case of a Default in payment of principal of or interest on any Security
(including payments pursuant to the mandatory redemption provisions of such
Security), the Trustee may withhold the notice if and so long as a committee of
its Trust Officers in good faith determines that withholding the notice is in
the interests of Securityholders. For purposes of this Indenture, a "responsible
officer" of the Trustee is an officer in the Trustee's office at the address set
forth in Section 12.02 who has direct responsibility for the administration of
this Indenture and the performance of the Trustee's duties hereunder.
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SECTION 6.06. Reports by Trustee to Holders
Prior to November 1 in each year, the Trustee shall mail to each
Securityholder a brief report dated as of the preceding September 1 that
complies with TIA Section 313(a), if so required by such Section of the TIA.
The Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to Securityholders
shall be filed with the SEC and each stock exchange on which the Securities are
listed. The Company agrees to notify promptly the Trustee whenever the
Securities become listed on any stock exchange and of any delisting thereof.
SECTION 6.07. Compensation and Indemnity
The Company shall pay to the Trustee from time to time reasonable
compensation for its services, including those arising in the Trustee's
performance of its duties under Sections 5.02, 5.03 and 5.08 hereof, and to the
extent permitted by law, Section 5.09 hereof. The Trustee's compensation shall
not be limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee upon request for all reasonable
out-of-pocket expenses incurred or made by it, including costs of collection, in
addition to the compensation for its services. Such expenses shall include the
reasonable compensation and expenses, disbursements and advances of the
Trustee's agents, counsel, accountants and experts. The Company shall indemnify
the Trustee against any and all loss, liability or expense (including attorneys'
fees) incurred by it in connection with the administration of this trust and the
performance of its duties or the exercise of its rights hereunder. The Trustee
shall notify the Company promptly of any claim for which it believes it may seek
indemnity. Failure by the Trustee to so notify the Company shall not relieve the
Company of its obligations hereunder. The Company shall defend the claim and the
Trustee may have separate counsel and the Company shall pay the reasonable fees
and expenses of such counsel. The Company need not reimburse any expense or
indemnify against any loss, liability or expense to the extent incurred by the
Trustee through the Trustee's own willful misconduct, negligence or bad faith.
To secure the Company's payment obligations in this Section, the
Trustee shall have a Lien prior to the Securities on all money or property held
or collected by the Trustee, except that held in trust to pay principal of and
interest on particular Securities.
The Company's payment obligations pursuant to this Section shall
survive the discharge of this Indenture and the resignation or removal of the
Trustee.
For purposes of this Section, the term "Trustee" shall include any
predecessor Trustee, provided that any Trustee hereunder shall not be liable for
the willful misconduct, negligence or bad faith of any other Trustee hereunder.
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SECTION 6.08. Replacement of Trustee
The Trustee may resign at any time by so notifying the Company. The
Holders of a majority in Principal Amount of the Securities or, as long as no
Event of Default under Section 5.01 has occurred or is continuing, the Company
may remove the Trustee by so notifying the Trustee and may appoint a successor
Trustee.
The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 6.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee
or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason (the Trustee in such event being referred to
herein as the retiring Trustee), the Company shall promptly appoint a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Securityholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to payment of
all amounts owing to it in its individual capacity and to the lien provided for
in Section 6.07.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in Principal Amount of the Securities may petition any
court of competent jurisdiction for the appointment of a successor Trustee. If
the Trustee fails to comply with Section 6.10, any Securityholder (subject to
compliance with TIA Section 310(b)(iii)) may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
Notwithstanding the replacement of the Trustee pursuant to this
Section, the Company's obligations under Section 6.07 shall continue for the
benefit of the retiring Trustee.
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SECTION 6.09. Successor Trustee by Merger
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all its corporate trust business or assets to another
person or banking association, the resulting, surviving or transferee person or
banking association without any further act shall be the successor Trustee.
In case at the time such successor or successors by merger, conversion
or consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Securities shall have been authenticated but not delivered,
any such successor to the Trustee may adopt the certificate of authentication of
any predecessor trustee, and deliver such Securities so authenticated; and in
all such cases such certificates shall have the full force which it is anywhere
in the Securities or in this Indenture provided that the certificate of the
Trustee shall have.
SECTION 6.10. Eligibility; Disqualification
The Trustee shall at all times satisfy the requirements of TIA Section
310(a). The Trustee shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report.
The Trustee shall comply with TIA Section 310(b).
SECTION 6.11. Preferential Collection of Claims Against Company
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
For purposes of Section 311(b) of the TIA (a) the term "cash transaction" shall
have the meaning provided in Rule 116-4 under the TIA, and (b) the term
"self-liquidating paper" shall have the meaning provided in Rule 116-6 under the
TIA.
ARTICLE 7
DISCHARGE OF SECURITIES AND INDENTURE
SECTION 7.01. Satisfaction and Discharge of Securities
Any Security or Securities, or any portion of the Principal Amount
thereof, shall be deemed to have been paid for all purposes of this Indenture,
and the entire indebtedness of the Company in respect thereof shall be satisfied
and discharged, if there shall have been irrevocably deposited with the Trustee
or any Paying Agent (other than the Company), in trust:
(a) money in an amount which shall be sufficient, or
(b) in the case of a deposit made prior to the maturity of such
Securities or portions thereof, U.S. Government Obligations,
which shall not contain provisions permitting the
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redemption or other prepayment thereof at the option of the
issuer thereof, the principal of and the interest on which
when due, without any regard to reinvestment thereof, will
provide moneys which, together with the money, if any,
deposited with or held by the Trustee or such Paying Agent,
shall be sufficient, or
(c) a combination of (a) or (b) which shall be sufficient,
to pay when due the principal of and premium, if any, and interest, if any, due
and to become due on such Securities or portions thereof; provided, however,
that in the case of a redemption, the notice requisite to the validity of such
redemption shall have been given or irrevocable authority shall have been given
by the Company to the Trustee to give such notice, under arrangements
satisfactory to the Trustee; and provided, further, that the Company shall have
delivered to the Trustee and such Paying Agent:
(x) if such deposit shall have been made prior to the maturity of
such Securities, a Company Request stating that the money and
U.S. Government Obligations deposited in accordance with this
Section shall be held in trust, as provided in Section 7.03;
(y) if U.S. Government Obligations shall have been deposited, an
Opinion of Counsel to the effect that such obligations
constitute U.S. Government Obligations and do not contain
provisions permitting the redemption or other prepayment
thereof at the option of the issuer thereof, and an opinion of
an independent public accountant of nationally recognized
standing, selected by the Company, to the effect that the
other requirements set forth in clause (b) and, if applicable,
(c) above have been satisfied; and
(z) if such deposit shall have been made prior to the maturity of
such Securities, an Officer's Certificate stating the
Company's intention that, upon delivery of such Officer's
Certificate, its indebtedness in respect of such Securities or
portions thereof will have been satisfied and discharged as
contemplated in this Section.
Upon the deposit of money or U.S. Government Obligations, or both, in
accordance with this Section, together with the documents required by clauses
(x), (y) and (z) above, the Trustee shall, upon Company Request, acknowledge in
writing that such Securities or portions thereof are deemed to have been paid
for all purposes of this Indenture and that the entire indebtedness of the
Company in respect thereof has been satisfied and discharged as contemplated in
this Section. In the event that all of the conditions set forth in the preceding
paragraph shall have been satisfied in respect of any Securities or portions
thereof except that, for any reason, the Officer's Certificate specified in
clause (z) (if otherwise required) shall not have been delivered, such
Securities or portions thereof shall nevertheless be deemed to have been paid
for all purposes of this Indenture, and the Holders of such Securities or
portions thereof shall nevertheless be no longer entitled to the benefits
provided by this Indenture or of any of the covenants of the Company under
Article Three or any other covenants made in respect of such Securities or
portions thereof as contemplated by Section 2.01 or the fourth paragraph of
Section 203, but the indebtedness of the Company in respect of such securities
or portions thereof shall
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not be deemed to have been satisfied and discharged prior to maturity for any
other purpose; and, upon Company Request, the Trustee shall acknowledge in
writing that such Securities or portions thereof are deemed to have been paid
for all purposes of this Indenture.
If payment at stated maturity of less than all of the Securities of any
series is to be provided for in the manner and with the effect provided in this
Section, the Trustee shall select such Securities, or portions of principal
amount thereof, in the manner specified by Section 9.03 for selection for
redemption of less than all the Securities of a series.
In the event that Securities which shall be deemed to have been paid
for purposes of this Indenture, and, if such is the case, in respect of which
the Company's indebtedness shall have been satisfied and discharged, all as
provided in this Section, do not mature and are not to be redeemed within the
sixty (60) day period commencing with the date of the deposit of moneys or U.S.
Government Obligations, as aforesaid, the Company shall, as promptly as
practicable, give a notice, in the same manner as a notice of redemption with
respect to such Securities, to the Holders of such Securities to the effect that
such deposit has been made and the effect thereof.
Notwithstanding that any Securities shall be deemed to have been paid
for purposes of this Indenture, as aforesaid, the obligations of the Company and
the Trustee in respect of such Securities under Sections 2.04, 2.05, 2.06, 2.08,
2.09, 6.07, 6.08, and 9.04 and this Article shall survive.
The Company shall pay, and shall indemnify the Trustee or any Paying
Agent with which U.S. Government Obligations shall have been deposited as
provided in this Section against, any tax, fee or other charge imposed on or
assessed against such U.S. Government Obligations or the principal or interest
received in respect of such U.S. Government Obligations, including, but not
limited to, any such tax payable by any entity deemed, for tax purposes, to have
been created as a result of such deposit.
Anything herein to the contrary notwithstanding, (a) if, at any time
after a Security would be deemed to have been paid for purposes of this
Indenture, and, if such is the case, the Company's indebtedness in respect
thereof would be deemed to have been satisfied and discharged, pursuant to this
Section (without regard to the provisions of this paragraph), the Trustee or any
Paying Agent, as the case may be, (i) shall be required to return the money or
U.S. Government Obligations, or combination thereof, deposited with it as
aforesaid to the Company or its representative under any applicable Bankruptcy
Law, (ii) are unable to apply any money held by the Trustee as provided in this
Section and Section 7.03 with respect to such Security by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, such Security shall thereupon be deemed
retroactively not to have been paid and any satisfaction and discharge of the
Company's indebtedness in respect thereof shall retroactively be deemed not to
have been effected, and such Security shall be deemed to remain outstanding and
(b) any satisfaction and discharge of the Company's indebtedness in respect of
any Security shall be subject to the provisions of the last paragraph of Section
2.06.
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SECTION 7.02. Satisfaction and Discharge of Indenture
This Indenture shall upon Company Request cease to be of further effect
(except as hereinafter expressly provided), and the Trustee, at the expense of
the Company, upon Company Request shall execute such instruments as the Company
shall reasonably request to evidence and acknowledge the satisfaction and
discharge of this Indenture when:
(a) both
(1) all Securities theretofore authenticated and
delivered (other than Securities that have been
destroyed, lost or stolen and that have been replaced
or paid as provided in Section 2.09) have been
delivered to the Trustee for cancellation; and
(2) all Securities not theretofore delivered to the
Trustee for cancellation have been deemed paid in
accordance with Section 7.01; and
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company;
provided, however, that if, in accordance with the last paragraph of Section
7.01, any Security, previously deemed to have been paid for purposes of this
Indenture, shall be deemed retrospectively not to have been so paid, this
Indenture shall thereupon be deemed retrospectively not to have been satisfied
and discharged, as aforesaid, and to remain in full force and effect, and the
Company shall execute and deliver such instruments as the Trustee shall
reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge of this Indenture as
aforesaid, the obligations of the Company and the Trustee under Sections 2.04,
2.05, 2.06, 2.08, 2.09, 6.07, 6.08, and 9.04 and this Article shall survive.
Upon satisfaction and discharge of this Indenture as provided in this
Section, the Trustee shall turn over to the Company any and all money,
securities, and other property then held by the Trustee for the benefit of the
Holders of the Securities (other than money and U.S. Government Obligations held
by the Trustee pursuant to Section 7.03) and shall execute and deliver to the
Company upon Company Order delivered with such instruments, such instruments as,
in the judgment of the Company, shall be necessary, desirable or appropriate to
effect and evidence the satisfaction and discharge of this Indenture.
SECTION 7.03. Application of Trust Money
Neither the U.S. Government Obligations nor the money deposited
pursuant to section 7.01, nor the principal or interest payments on any such
U.S. Government Obligations, shall be withdrawn or used for any purpose other
than, and shall be held in trust for, the payment of the
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principal of and premium, if any and interest, if any, on the Securities or
portions of principal amount thereof in respect of which such deposit was made,
all subject, however, to the provisions of Section 2.06; provided, however, that
any cash received from such principal or interest payment on such U.S.
Government Obligations, if not then needed for such purpose, shall, to the
extent practicable and upon Company Request and delivery to the Trustee of the
Documents referred to in clause (y) in the first paragraph of Section 7.01, be
invested in U.S. Government Obligations of the type described in clause (b) in
the first paragraph of Section 7.01 maturing at such times and in such amounts
as shall be sufficient, together with any other moneys and the proceeds of any
other U.S. Government Obligations then held by the Trustee, to pay when due the
principal of, and premium, if any, and interest, if any, due and to become due
on such Securities or portions thereof on and prior to the maturity thereof, and
interest earned from such reinvestment shall be paid to the Company as received,
free and clear of any trust, lien or pledge under this Indenture; and provided,
further, that any moneys held in accordance with this Section on the maturity of
all such Securities in excess of the amount required to pay the principal of and
premium, if any, and interest, if any, then due on such Securities shall be paid
over to the Company free and clear of any trust, lien or pledge under this
Indenture; and provided, further, that if an Event of Default shall have
occurred and be continuing, moneys to be paid over to the Company pursuant to
this Section shall be held until such Event of Default shall have been waived or
cured.
ARTICLE 8
AMENDMENTS
SECTION 8.01. Without Consent of Holders
The Company and the Trustee may amend and/or supplement this Indenture
or the Securities without notice to or consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article 4;
(3) to provide for the procedures required to permit the Company
to utilize, at its option, a non-certificated system of
registration for all or any series of the Securities;
(4) to provide collateral security for the Securities;
(5) to add to the covenants of the Company for the benefit of the
Holders or to surrender any right or power herein conferred
upon the Company;
(6) to make any change that does not adversely affect the rights
of any Securityholder in any material respect.
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Without limiting the generality of the foregoing, if the TIA as in
effect at the date of the execution and delivery of this Indenture or any time
thereafter shall be amended and (i) if any such amendment shall require one or
more changes to any provisions hereof or the inclusion herein of any additional
provision, or shall by operation of law be deemed to effect such changes or
incorporate such provisions by reference or otherwise, this Indenture shall be
deemed to have been amended so as to conform to such amendment to the TIA and
the Company and the Trustee may, without the consent of any Holders, enter into
an indenture supplemental hereto to evidence such amendment hereof or (ii) if
any such amendment shall permit one or more changes to, or the elimination of,
any provisions hereof which, at the date of the execution and delivery hereof or
at any time thereafter, are required by the TIA to be contained herein or are
contained herein to reflect any provisions of the TIA as in effect at such date,
this Indenture shall be deemed to have been amended to effect such changes or
elimination, and the Company and the Trustee may, without the consent of any
Holders, enter into an indenture supplemental hereto to amend this Indenture to
effect such changes or elimination.
After an amendment under this Section becomes effective, the Company
shall mail to Securityholders a notice briefly describing such amendment. The
failure to give such notice to all Securityholders, or any defect therein, shall
not impair or affect the validity of an amendment under this Section.
SECTION 8.02. With Consent of Holders
The Company and the Trustee may amend and/or supplement this Indenture
or the Securities without notice to any Securityholder but with the written
consent of the Holders of at least a majority in Principal Amount of the
Securities. However, without the consent of each Securityholder affected, an
amendment may not:
(1) reduce the amount of Securities whose Holders must consent to
an amendment;
(2) reduce the rate of or extend the time for payment of interest
on any Security;
(3) reduce the principal of or extend the fixed maturity of any
Security;
(4) reduce the premium payable upon the redemption of any Security
or change the time at which any Security may or shall be
redeemed;
(5) make any Security payable in money other than that stated in
the Security; or
(6) make any change in Section 5.04 or this Section;
and, provided further, that in case more than one series of Securities (or
Securities of a single series which have different Terms) shall be outstanding
under this Indenture, and any such proposed amendment shall affect the rights of
Holders of the Securities of one or more series (or
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Securities of a single series which have different Terms) and shall not affect
the rights of Holders of the Securities of one or more of the other series (or
other Securities of such single series which have different Terms), then only
Holders of Securities to be affected shall have authority or be required to
consent to or approve such amendment. Any waiver of a default provided for in
Section 5.04 shall be deemed to affect the Securities of all series, and,
subject to the foregoing, any modification of the provisions of any sinking fund
or covenant established in respect of Securities of a particular series (or
some, but not all Securities of a single series having the same Terms) shall be
deemed to affect only such Securities.
It shall not be necessary for the consent of the Holders under this
Section 8.02 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section becomes effective, the Company
shall mail to Holders of the affected Securities a notice briefly describing
such amendment. The failure to give such notice to all Securityholders (or all
Holders of the affected Securities), or any defect therein, shall not impair or
affect the validity of an amendment under this Section.
SECTION 8.03. Compliance with Trust Indenture Act
Every amendment to this Indenture or the Securities shall comply with
the TIA as then in effect.
SECTION 8.04. Revocation and Effect of Consents and Waivers
A consent to an amendment or any other action hereunder or a waiver by
a Holder of a Security shall bind the Holder and every subsequent Holder of that
Security or portion of the Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent or waiver is not
made on the Security. However, any such Holder or subsequent Holder may revoke
the consent or waiver as to such Holder's Security or portion of the Security if
the Trustee receives the notice of revocation before the date the amendment or
waiver becomes effective. After an amendment or waiver becomes effective, it
shall bind every Securityholder.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Securityholders entitled to take any action under
this Indenture by vote or consent. Such record date shall be the later of 30
days prior to the first solicitation of such consent or vote or the date of the
most recent list of Holders of the affected Securities furnished to the Trustee
pursuant to Section 2.07 prior to such solicitation. If a record date is fixed,
those persons who were Securityholders at such record date (or their duly
designated proxies), and only those persons, shall be entitled to take such
action by vote or consent or to revoke any vote or consent previously given,
whether or not such persons continue to be Securityholders after such record
date.
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SECTION 8.05. Notation on or Exchange of Securities
If an amendment changes the terms of a Security, the Trustee may
require the Holder of the Security to deliver it to the Trustee. The Trustee may
place an appropriate notation on the Security regarding the changed terms and
return it to the Holder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Security shall issue and the Trustee
upon Company Order shall authenticate a new Security that reflects the changed
terms. Failure to make the appropriate notation or to issue a new Security shall
not affect the validity of such amendment.
SECTION 8.06. Trustee To Sign Amendments
The Trustee shall sign any amendment or supplement authorized pursuant
to this Article 8 if the amendment does not adversely affect the rights, duties,
liabilities, benefits, protections, privileges, indemnities or immunities of the
Trustee. If it does, the Trustee may but need not sign it. In signing such
amendment the Trustee shall be entitled to receive indemnity reasonably
satisfactory to it and to receive, and (subject to Section 6.01) shall be fully
protected in relying upon, an Officer's Certificate and an Opinion of Counsel
stating that such amendment is authorized or permitted by this Indenture.
ARTICLE 9
REDEMPTION
SECTION 9.01. Applicability
Securities of any series which are redeemable before their final
maturity shall be redeemable in accordance with their Terms and (except as
otherwise specified as contemplated by Section 2.01 for Securities of any
series) in accordance with this Article.
SECTION 9.02. Notice to Trustee
The Company may, with respect to any series of Securities (or
Securities of a series having the same Terms), reserve the right to redeem and
pay such Securities or any part thereof, or may covenant to redeem and pay the
series of Securities (or Securities of a series having the same Terms) or any
part thereof, before maturity at such time and on such terms as provided for in
such Securities. If a series of Securities (or Securities of a series having the
same Terms) is redeemable and the Company wants or is obligated to redeem all or
part of the series of Securities (or Securities of a series having the same
Terms) pursuant to the Terms of such Securities, the Company shall notify the
Trustee of the redemption date and the Principal Amount of the series of
Securities (or Securities of a series having the same Terms) to be redeemed. The
Company shall give such notice at least 45 days before the redemption date (or
such shorter notice as may be acceptable to the Trustee in its sole discretion).
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SECTION 9.03. Selection of Securities To Be Redeemed
If less than all the Securities of a series (or Securities of a series
having the same Terms) are to be redeemed, the Trustee, not more than 45 days
prior to the redemption date, shall select the Securities of the series (or
Securities of a series having the same Terms) to be redeemed pro rata or by lot
or by such other method as the Trustee shall deem fair and appropriate. The
Trustee shall make the selection from Securities that are outstanding and that
have not previously been called for redemption. Securities of the series (or
Securities of a series having the same Terms) and portions of them selected by
the Trustee shall be in amounts of $1,000 or integral multiples of $1,000 or
with respect to Securities of any Series issuable in other denominations
pursuant to Section 2.01(8), in amounts equal to the minimum principal
denomination for each such series and in integral multiples thereof. For all
purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities shall relate, in the case of
any Securities redeemed or to be redeemed only in part, to the portion of the
principal amount of such Securities which has been or is to be redeemed. The
Trustee shall promptly notify the Company in writing of the Securities selected
for redemption and, in the case of any Securities selected for partial
redemption, the Principal Amount thereof to be redeemed.
SECTION 9.04. Notice of Redemption
(a) At least 30 days but not more than 60 days before a redemption
date, unless a shorter period is specified in the Terms of the
Securities to be redeemed, the Company shall cause to be
mailed a notice of redemption by first-class mail to each
Holder of Securities that are to be redeemed.
(b) All notices of redemption shall identify the Securities to be
redeemed and shall state:
(1) the redemption date;
(2) the redemption price and interest, if any, payable
upon such redemption;
(3) if less than all the outstanding Securities of a
series (or Securities of a series having the same
Terms) are to be redeemed, the identification (and,
in the case of partial redemption, the Principal
Amounts) of the particular Securities to be redeemed;
(4) the name and address of the Paying Agent;
(5) that the Securities called for redemption must be
surrendered to the Paying Agent to collect the
redemption price; and
(6) that interest on Securities called for redemption
ceases to accrue on and after the redemption date.
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(c) If at the time of any notice of redemption the Company shall
not have deposited or caused to be deposited with the Paying
Agent moneys sufficient to redeem all the Securities called
for redemption, such notice shall state that it is subject to
the deposit of the redemption moneys with the Paying Agent not
later than the opening of business on the redemption date and
shall be of no effect unless such moneys are so deposited. If
such moneys are not deposited by such date and time, the
Trustee shall promptly notify the Holders of all Securities
called for redemption of such fact and the Company shall not
be required to redeem such Securities.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense.
SECTION 9.05. Effect of Notice of Redemption
Once notice of redemption is mailed, and such notice is not conditional
as provided in Section 9.04(c) above, Securities called for redemption become
due and payable on the redemption date at the redemption price. Any failure to
mail notice of redemption or any defect therein shall not affect the redemption
of any other Securities called for redemption.
Upon surrender to the Paying Agent of such Securities, such Securities
shall be paid at the redemption price plus accrued interest to the redemption
date, but installments of interest due on or prior to the redemption date will
be payable to the Holders of such Securities of record at the close of business
on the relevant record dates, unless otherwise specified in the Terms of such
Securities.
SECTION 9.06. Deposit of Redemption Price
On or before the redemption date, the Company shall, subject to any
conditions stated in the notice of redemption, deposit with the Paying Agent
money sufficient to pay the redemption price of and interest accrued to the
redemption date on all Securities to be redeemed on that date.
SECTION 9.07. Securities Redeemed in Part
Upon surrender of a Security that is redeemed in part, the Company
shall issue and the Trustee upon Company Order shall authenticate for the Holder
of that Security a new Security or Securities of the same series and terms in
authorized denominations equal in aggregate Principal Amount to the unredeemed
portion of the Security surrendered.
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ARTICLE 10
SINKING FUNDS
SECTION 10.01. Applicability
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities, except as otherwise specified as contemplated
by Section 2.01 for Securities of any series.
The minimum amount of any sinking fund payment provided for by the
Terms of any Securities is herein referred to as a "Mandatory Sinking Fund
Payment", and any payment in excess of such minimum amount provided for by the
terms of such Securities is herein referred to as an "Optional Sinking Fund
Payment". If provided for by the Terms of Securities, the cash amount of any
sinking fund payment may be subject to reduction as provided in Section 10.02.
Each sinking fund payment shall be applied to the redemption of Securities of
any series (or Securities of a series having the same Terms) as provided for by
the Terms of such Securities.
SECTION 10.02. Satisfaction of Sinking Fund Payments with Securities
The Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities to be made pursuant to the Terms of such
Securities as provided for by such Terms, (1) deliver outstanding Securities of
such series having the same Terms (other than any of such Securities previously
called for redemption) and (2) apply as credit Securities of such series having
the same Terms which have been redeemed either at the election of the Company
pursuant to the Terms of such Securities or through the application of permitted
Optional Sinking Fund Payments pursuant to the Terms of such Securities,
provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
price specified in such Securities for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly. If as a result of the delivery or credit of Securities in lieu of
cash payments pursuant to this Section 10.02, the Principal Amount of Securities
to be redeemed in order to exhaust the aforesaid cash payment shall be less than
$100,000, the Trustee need not call Securities for redemption, except upon
receipt of a Company Order that such action be taken, and such cash payment
shall be held by the Trustee or a Paying Agent and applied to the next
succeeding sinking fund payment with respect to such series of Securities (or
Securities of such series having the same Terms), provided, however, that the
Trustee or such Paying Agent shall at the request of the Company from time to
time pay over and deliver to the Company any cash payment so being held by the
Trustee or such Paying Agent upon delivery by the Company to the Trustee of
Securities of that series having the same Terms purchased by the Company having
an unpaid Principal Amount equal to the cash payment required to be released to
the Company.
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SECTION 10.03. Redemption of Securities for Sinking Fund
Not less than 60 days prior to each sinking fund payment date for any
series of Securities (or Securities of such series having the same Terms), the
Company will deliver to the Trustee an Officer's Certificate specifying the
amount of the next ensuing Mandatory Sinking Fund Payment for that series (or
Securities of such series having the same Terms) pursuant to the Terms of that
series, the portion thereof, if any, which is to be satisfied by payment of cash
and the portion thereof, if any, which is to be satisfied by delivering and
crediting of Securities of that series (or Securities of such series having the
same Terms) pursuant to Section 10.02, and the optional amount, if any, to be
added in cash to the next ensuing Mandatory Sinking Fund Payment, and the
Company shall thereupon be obligated to pay the amount therein specified. Not
less than 30 days before each such sinking fund payment date the Trustee shall
select the Securities to be redeemed upon such sinking fund payment date in the
manner specified in Section 9.03 and cause notice of the redemption thereof to
be given in the name of and at the expense of the Company in the manner provided
in Section 9.04. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
9.05, 9.06 and 9.07.
ARTICLE 11
MEETINGS OF HOLDERS; ACTIONS WITHOUT MEETING
SECTION 11.01. Purposes for Which Meetings May Be Called
A meeting of Holders of Securities of one or more, or all, series may
be called at any time and from time to time pursuant to this Article to make,
give or take request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be made, given or taken by Holders
of Securities of such series.
SECTION 11.02. Call, Notice and Place of Meetings
(a) The Trustee may at any time call a meeting of Holders of
Securities of one or more, or all, series for any purpose
specified in Section 11.01, to be held at such time and
(except as provided in subsection (b) of this Section) at such
place in the County of New Castle, The City of Wilmington, as
the Trustee shall determine, or, with the approval of the
Company, at any other place. Notice of every such meeting,
setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such meeting,
shall be given not less than twenty-one (21) nor more than one
hundred eighty (180) days prior to the date fixed for the
meeting.
(b) The Trustee may be asked to call a meeting of the Holders of
Securities of one or more, or all, series by the Company or
the Holders of thirty-three percent (33%) in aggregate
Principal Amount of all of the outstanding Securities of all
such series, considered as one
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<PAGE> 45
class, for any purpose specified in Section 11.01, by written
request setting forth in reasonable detail the action proposed
to be taken at the meeting. If the Trustee shall have been
asked by the Company to call such a meeting, the Company shall
determine the time and place for such meeting and may call
such meeting by giving notice thereof in the manner provided
in subsection (a) of this Section, or shall direct the
Trustee, in the name and at the expense of the Company, to
give such notice. If the Trustee shall have been asked to call
such a meeting by Holders in accordance with this subsection
(b), and the Trustee shall not have given the notice of such
meeting within twenty-one (21) days after receipt of such
request or shall not thereafter proceed to cause the meeting
to be held as provided herein, then the Holders of Securities
of such series, in the principal amount above specified, may
determine the time and the place in the County of New Castle,
The City of Wilmington, or in such other place as shall be
determined or approved by the Company, for such meeting and
may call such meeting for such purposes by giving notice
thereof as provided in subsection (a) of this Section.
(c) Any meeting of Holders of Securities of one or more, or all,
series shall be valid without notice if the Holders of all
outstanding Securities of such series are present in person or
by proxy and if representatives of the Company and the Trustee
are present, or if notice is waived in writing before or after
the meeting by the Holders of all outstanding Securities of
such series or by such of them as are not present at the
meeting in person or by proxy, and by the Company and the
Trustee.
SECTION 11.03. Persons Entitled to Vote at Meetings
To be entitled to vote at any meeting of Holders of Securities of one
or more, or all, series, a person shall be (a) a Holder of one or more
outstanding Securities of such series, or (b) a person appointed by an
instrument in writing as proxy for a Holder or Holders of one or more
outstanding Securities of such series by such Holder or Holders. The only
persons who shall be entitled to attend any meeting of Holders of Securities of
any series shall be the persons entitled to vote at such meeting and their
counsel, any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 11.04. Quorum; Action
The persons entitled to vote a majority in aggregate principal amount
of the outstanding Securities of the series with respect to which a meeting
shall have been called as hereinbefore provided, considered as one class, shall
constitute a quorum for a meeting of Holders or Securities of such series;
provided, however, that if any action is to be taken at such meeting which this
Indenture or the terms of any series of Securities expressly provides may be
taken by the Holders of a specified percentage, which is less than majority, in
Principal Amount of the outstanding Securities of such series, considered as one
class, the persons entitled to vote such specified percentage in Principal
Amount of the outstanding Securities of such series considered as one class,
shall constitute a quorum. In the absence of a quorum within one hour of the
time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of
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Securities of such series, be dissolved. In any other case, the meeting may be
adjourned for such period as may be determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for such
period as may be determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Except as provided by Section 11.05(e),
notice of the reconvening of any meeting adjourned for more than thirty (30)
days shall be given not less than ten (10) days prior to the date on which the
meeting is scheduled to be reconvened. Notice of the reconvening of an adjourned
meeting shall state expressly the percentage, as provided above, of the
Principal Amount of the outstanding Securities of such series which shall
constitute a quorum.
Except as limited by Section 8.02, any resolution presented to a
meeting or adjourned meeting duly reconvened at which a quorum is present as
aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in aggregate principal amount of the outstanding Securities of the
series with respect to which such meeting shall have been called, considered as
one class; provided, however, that, except as so limited, any resolution with
respect to any action which this Indenture expressly provides may be taken by
the Holders of a specified percentage, which is less than a majority, in
principal amount of the outstanding Securities of such series, considered as one
class, may be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote of the Holder
of such specified percentage in principal amount of the outstanding Securities
of such series, considered as one class.
Any resolution passed or decision taken at any meeting of Holders of
Securities duly held in accordance with this Section shall be binding on all the
Holders of Securities of the series with respect to which such meeting shall
have been held, whether or not present or represented at the meeting.
SECTION 11.05. Attendance at Meeting; Determination of Voting Rights; Conduct
and Adjournment of Meetings
(a) Attendance at meetings of Holders of Securities may be in
person or by proxy; and to the extent permitted by law, any
such proxy shall remain in effect and be binding upon any
future Holder of the Securities with respect to which it was
given unless and until specifically revoked by the Holder or
future Holder (except as provided in Section 12.04(g)) of such
Securities before being voted.
(b) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities in regard
to proof of the holding of such Securities and of the
appointment of proxies and in regard to the appointment and
duties of inspectors of votes, the submission and examination
of proxies, certificates and other evidence of the right to
vote, and such other matters concerning the conduct of the
meeting as it shall deem appropriate. Except as otherwise
permitted or required by any such regulations and approved by
the Company,
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the holding of Securities shall be proved in the manner
specified in Section 12.04 and the appointment of any proxy
shall be proved in the manner specified in Section 12.04. Such
regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and
genuine without the proof specified in Section 12.04 or other
proof.
(c) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall
have been called by the Company or by Holders as provided in
Section 11.02(b), in which case the Company or the Holders of
Securities of the series calling the meeting, as the case may
be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting
shall be elected by vote of the persons entitled to vote a
majority in aggregate Principal Amount of the outstanding
Securities of all series represented at the meeting,
considered as one class.
(d) At any meeting each Holder or proxy shall be entitled to one
vote for each $1,000 principal amount of outstanding
Securities held or represented by such Holder or by proxy;
provided, however, that no vote shall be cast or counted at
any meeting in respect of any Security challenged as not
outstanding and ruled by the chairman of the meeting to be not
outstanding. The chairman of the meeting shall have no right
to vote, except as a Holder of a Security or proxy.
(e) Any meeting duly called pursuant to Section 11.02 at which a
quorum is present may be adjourned from time to time by
persons entitled to vote a majority in aggregate principal
amount of the outstanding Securities of all series represented
at the meeting, considered as one class; and the meeting may
be held as so adjourned without further notice.
SECTION 11.06. Counting Votes and Recording Action of Meetings
The vote upon any resolution submitted to any meeting of Holders shall
be by written ballots on which shall be subscribed the signatures of the Holders
or their representatives by proxy and the principal amounts and serial numbers
of the outstanding Securities, of the series with respect to which the meeting
shall have been called, held or represented by them. The permanent chairman of
the meeting shall appoint two inspectors of votes who shall count all votes cast
at the meeting for or against any resolution and who shall make and file with
the secretary of the meeting their verified written reports of all votes cast at
the meeting. A record in duplicate of the proceedings of each meeting of Holders
shall be prepared by the secretary of the meeting and there shall be attached to
such record the original reports of the inspectors of votes on any vote by
ballot taken thereat and affidavits by one or more persons having knowledge of
the facts setting forth a copy of the notice of the meeting and showing that
such notice was given and provided in Section 11.02 and, if applicable, Section
11.04. Each copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be delivered to
the Company and another to the Trustee to be preserved by the
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Trustee, the latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the matters
therein stated.
SECTION 11.07. Action without Meeting
In lieu of a vote of Holders at a meeting as hereinbefore contemplated
in this Article, any request, demand, authorization, direction, notice, consent,
waiver or other action may be made, given or taken by Holders by written
instruments as provided in Section 12.04.
ARTICLE 12
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act Controls
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by operation of TIA Section 318(c), the TIA imposed duties
shall control.
SECTION 12.02. Notices
Any notice or communication shall be in writing and delivered in person
or mailed by first-class mail addressed as follows:
if to the Company: Conectiv
800 King Street
Wilmington, DE 19899
Attention: Corporate Secretary
if to the Trustee: First Union Trust Company, National Association
One Rodney Square
920 King Street
Wilmington, DE 19801
Attention: Corporate Trust Administration
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Securityholder shall be mailed
to the Securityholder at the Securityholder's address as it appears on the
Security Register and shall be sufficiently given if so mailed within the time
prescribed.
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Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 12.03. Communication by Holders with Other Holders
Securityholders may communicate pursuant to TIA Section 312(b) with
other Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
SECTION 12.04. Acts of Holders
(a) Any request, demand, authorization, direction, notice,
consent, election, waiver or other action provided by this
Indenture to be made, given or taken by Holders may be
embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person
or by an agent duly appointed in writing or, alternatively,
may be embodied in and evidenced by the record of Holders duly
called and held in accordance with the provisions of Article
11, or a combination of such instruments and any such record.
Except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments or
record or both are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied
therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Holders signing such instrument or
instruments and so voting at any such meeting. Proof of
execution of any such instruments or of a writing appointing
any such agent, or of the holding by any person of a Security,
shall be sufficient for any purpose of this Indenture and
(subject to Section 6.01) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this
Section. The record of any meeting of Holders shall be proved
in the manner provided in Section 1.06.
(b) The fact and date of the execution by any person of any such
instrument or writing may be proved by the affidavit of a
witness of such execution or by a certificate of a notary
public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the
execution thereof or may be proved in any other manner which
the Trustee and the Company deem sufficient. Where such
execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority.
(c) The ownership, Principal Amount and serial numbers of
Securities held by any person, and the date of holding the
same, shall be proved by the Security Register maintained by
the Security Registrar.
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(d) Any request, demand, authorization, direction, notice,
consent, election, waiver or other Act of a Holder shall bind
every future Holder of the same Security and the Holder of
every Security issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof in respect
of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
(e) Until such time as written instruments or the record described
in Section 12.04(a) or both shall have been delivered to the
Trustee with respect to the requisite percentage of Principal
Amount of Securities for the action contemplated by such
instruments, any such instrument executed and delivered by or
on behalf of a Holder may be revoked with respect to any or
all of such Securities by written notice by such Holder or any
subsequent Holder, proven in the manner in which such
instrument was proven.
(f) Securities of any series authenticated and delivered after any
Act of Holders may, and shall if required by the Trustee, bear
a notation in form approved by the Trustee as to any action
taken by such Act of Holders. If the Company shall so
determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Company, to
such action may be prepared and executed by the Company and
upon Company Order authenticated and delivered by the Trustee
in exchange for outstanding Securities of such series.
(g) The Company may, at its option, by Company Order, fix in
advance a record date for the determination of Holders
entitled to give any request, demand, authorization,
direction, notice, consent, waiver or other Act solicited by
the Company, but the Company shall have no obligation to do
so; provided, however, that the Company may not fix a record
date for the giving or making of any notice, declaration,
request or direction referred to in the next sentence. In
addition, the Trustee may, at its option, fix in advance a
record date for the determination of Holders of Securities of
any series entitled to join in the giving or making of any
Notice of Default, any declaration of acceleration referred to
in Section 5.02, any request to institute proceedings referred
to in Section 5.05 or any direction referred to in Section
5.06, in each case with respect to Securities of such series.
If any such record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other
Act, or such notice, declaration, request or direction, may be
given before or after such record date, but only the Holders
of record at the close of business on the record date shall be
deemed to be Holders for the purposes of determining, subject
to Section 12.07 (i) whether holders of the requisite
proportion of the Securities have authorized or agreed or
consented to such Act (and for that purchase the Securities
will be computed as of the record date) and/or (ii) which
Holders may revoke any such Act (notwithstanding subsection
(e) of this Section); and any such Act, given as aforesaid,
shall be effective whether or not the Holders which authorized
or agreed or consented to such Act remain Holders after such
record date and whether or not the Securities held by such
Holders remain outstanding after such record date.
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SECTION 12.05. Certificate and Opinion as to Conditions Precedent
Upon any request or application by the Company to the Trustee to take
or refrain from taking any action under this Indenture, the Company shall
furnish to the Trustee:
(1) an Officer's Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in
this Indenture (including any covenants compliance with which
constitutes a condition precedent) relating to the proposed
action have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of
such counsel, all such conditions precedent have been complied
with.
SECTION 12.06. Statements Required in Certificate or Opinion
Each certificate or opinion with respect to compliance with a covenant
or condition provided for in this Indenture shall include:
(1) a statement that the person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has made
such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
person, such covenant or condition has been complied with.
SECTION 12.07. When Securities Disregarded
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company or any other obligor upon the Securities or by any Affiliate of
the Company (unless the Company, such obligor or such Affiliate owns all
Securities outstanding under the Indenture, or all outstanding Securities of
each such series determined without regard to this Section) shall be disregarded
and deemed not to be outstanding, except that, for the purpose of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only Securities which a responsible officer of the Trustee knows are
so owned shall be so disregarded provided, however, that Securities so owned
which have been pledged in good faith may be regarded as outstanding if it is
established to the reasonable satisfaction of the Trustee that the pledgee, and
not the
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Company, any such other obligor or Affiliate or such other obligor, has the
right so to act with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate of the Company
or such other obligor. Also, subject to the foregoing, only Securities
outstanding at the time shall be considered in any such determination.
SECTION 12.08. Rules by Trustee, Paying Agent and Registrar
The Trustee may make reasonable rules for action by or a meeting of
Securityholders or for evidencing the due execution of consents or waivers by
Securityholders. The Security Registrar and the Paying Agent may make reasonable
rules for their functions.
SECTION 12.09. Legal Holidays
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions are not required to be open in the State of New York, the State of
Delaware, or the State of North Carolina. If a payment date is a Legal Holiday,
payment shall be made on the next succeeding day that is not a Legal Holiday,
and no interest shall accrue for the intervening period. If a regular record
date is a Legal Holiday, the record date shall not be affected.
SECTION 12.10. Governing Law
This Indenture and the Securities shall be governed by, and construed
in accordance with, the laws of the State of New York but without giving effect
to applicable principles of conflicts of law to the extent that the application
of the laws of another jurisdiction would be required thereby.
SECTION 12.11. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities of this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Security, each
Securityholder shall waive and release all such liability. The waiver and
release shall be part of the consideration for the issue of the Securities.
SECTION 12.12. Successors
All agreements of the Company in this Indenture and the Securities
shall bind its successors. All agreements of the Trustee in this Indenture shall
bind its successors.
SECTION 12.13. Multiple Originals
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement. One signed copy is enough to prove this Indenture.
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<PAGE> 53
SECTION 12.14 Table of Contents; Headings
The table of contents and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not intended
to be considered a part hereof and shall not modify or restrict any of the terms
or provisions hereof.
SECTION 12.15 Separability Clause
In case any provision in this Indenture or the Securities shall be held
to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
CONECTIV
Attest:
by
Title: Title:
FIRST UNION TRUST COMPANY, NATIONAL ASSOCIATION, AS TRUSTEE
Attest:
by
Title: Title:
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<PAGE> 54
STATE OF DELAWARE
SS.:
COUNTY OF NEW CASTLE
On this _____ day of _________, 199_, before me personally came
____________, to me known, who, being by me duly sworn, did depose and say that
he/she resides at Wilmington, Delaware 19899; that he/she is of CONECTIV, one of
the corporations described in and which executed the foregoing instrument; that
he/she knows the seal of said corporation; that the seal affixed to said
instrument bearing the corporate name of said corporation is such corporate
seal; that it was so affixed by order of the Board of Directors of said
corporation; and that he/she signed his/her name thereto by like order.
Notary Public
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STATE OF __________________
SS.:
COUNTY OF __________________________
On the ____ day of _________, 199_, before me personally came
____________, to me known, who, being by me duly sworn, did depose and say that
he/she resides at ________________________, and that he/she is an
________________________ of ________________________, one of the corporations
described in and which executed the foregoing instrument; that he/she knows the
seal of said corporation; that the seal affixed to said instrument bearing the
corporate name of said corporation is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation; and that
he/she signed his/her name thereto by like authority.
Notary Public
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FORM OF DEBENTURE
Unless this certificate is presented by an authorized representative of
The Depository Trust Company (55 Water Street, New York, New York) to the issuer
or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust Company and
any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.
CONECTIV
_______% DEBENTURE, SERIES DUE _______
NO. ____________ $____________
CONECTIV, a Delaware corporation (hereinafter called the Company), for
value received, hereby promises to pay to ____________ or registered assigns,
the sum of $___ on the [________] day of ____________, at the corporate trust
office or agency of ____________, Trustee under the Indenture referred to on the
reverse hereof, or its successor as such Trustee, in the County of New Castle,
the City of Wilmington, in such coin or currency of the United States of America
as at the time of payment shall be legal tender for the payment of public and
private debts, and to pay interest thereon at the rate of ____________% per
annum in like coin or currency, payable at said office or agency semiannually on
the [____________] day of ____________ and the [____________] day of
____________ in each year, from the interest payment date to which interest has
been paid last preceding the date hereof (unless the date hereof is an interest
payment date to which interest has been paid, in which case from the date
hereof, or unless the date hereof is prior to ____________, in which case from
____________) until the Company's obligation with respect to the payment of such
principal shall have been discharged, such interest to be paid to the person who
shall have been the registered owner hereof at the close of business on
____________ or ____________, as the case may be, next preceding an interest
payment date, except as otherwise provided in the Indenture referred to on the
reverse hereof. Notwithstanding the foregoing, if the date of this Debenture is
after ____________ or ____________, as the case may be, and before the
immediately following _________________ or ____________, as the case may be,
this Debenture shall bear interest from such ____________ or ____________;
provided, however, that if and to the extent that the Company shall default in
the payment of interest due on such ____________ or ____________, this Debenture
shall bear interest from the next preceding ____________ or ____________ to
which interest has been paid or, if no interest has been paid, from
____________.
Additional provisions of this Debenture are contained on the reverse
hereof and such provisions shall for all purposes have the same effect as though
fully set forth at this place. This Debenture shall not be valid or become
obligatory for any purpose until it shall have been authenticated by the
certificate, hereon endorsed, of the Trustee under the Indenture.
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IN WITNESS WHEREOF, Conectiv, has caused this Debenture to be executed
in its name by the facsimile signature of its Chairman of the Board or its
President or one of its Vice Presidents or its Treasurer, and its corporate seal
to be hereunto affixed, or a facsimile thereof to be printed or engraved hereon,
and to be attested by the facsimile signature of its Secretary or one of its
Assistant Secretaries.
CONECTIV
Dated: _________________________________
By: ____________________________________
Attest: _______________________________
(FORM OF TRUSTEE'S CERTIFICATE ON DEBENTURES)
This is one of the Debentures, of the series designated therein,
described in the within-mentioned Indenture.
______________________________, as Trustee,
By
Authorized Officer
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[REVERSE]
CONECTIV
______% DEBENTURE, SERIES DUE ______
This Debenture is one of a duly authorized issue of Debentures of the
Company issuable in series, and is one of a series known as its _% Debentures,
Series Due _________ (herein called Debentures Due _________), all issued and to
be issued under an Indenture dated as of _________, in which the Debentures Due
_________ are created and described, all executed between the Company and
_____________ (herein called the Trustee), Trustee, to which Indenture (herein
called the Indenture) reference is hereby made for a statement of the rights
thereunder of the Trustee and of the holders of the Debentures, and of the
duties thereunder of the Trustee and of the Company.
The rights and obligations of the Company and of the holders of
Debentures may be changed and modified at the request of the Company by an
indenture or indentures supplemental to the Indenture, executed pursuant to the
consent in writing of the holders of at least a majority in principal amount of
the Debentures then outstanding affected by such change or modification, all in
the manner and subject to the limitations set forth in the Indenture, provided
that no such change or modification by such supplemental indenture shall extend
the maturity of, or reduce the rate of interest on, or otherwise modify the
terms of payment of the principal of, or the premium, if any, or the interest
on, this Debenture, or reduce the percentage of Debentures the holders of which
are required to consent to any such supplemental indenture, or modify the
provision as to the holders of any series of Debentures authorized or required
to consent to any such supplemental indenture, without the express consent of
the holder hereof. Any such consent by the holder of this Debenture (unless
effectively revoked as provided in the Indenture) shall be conclusive and
binding upon such holder and upon all future holders and owners of this
Debenture, whether or not any notation of such consent is made upon this
Debenture.
[The Debentures Due _________ may not be redeemed prior to maturity.]
52
<PAGE> 59
[The Debentures Due _______ may be redeemed, prior to maturity, at the election
of the Company, as a whole at any time, or in part from time to time, as
provided in the Indenture, at the redemption prices (expressed in percentages of
principal amount) set forth in the tabulation below under the heading "Regular
Redemption Prices":]
<TABLE>
<CAPTION>
IF REDEEMED DURING REGULAR
12 MONTH PERIOD REDEMPTION
COMMENCING PRICES
---------- ------
<S> <C>
</TABLE>
In case a default, as defined in the Indenture, shall occur, the
principal of all the Debentures then outstanding may become or be declared due
and payable in the manner and with the effect provided in the Indenture. The
Indenture provides that in certain events such declaration and certain defaults
under the Indenture may be waived by the holders of a majority in principal
amount of all Securities outstanding under the Indenture.
Except as stated in the first paragraph on the face hereof, this
Debenture is transferable and exchangeable as prescribed in the Indenture by the
registered holder hereof in person, or by his duly authorized attorney, at the
corporate trust office or agency of the Trustee in said County of New Castle,
upon surrender and cancellation of this Debenture, and, thereupon, a new fully
registered Debenture or Debentures Due ______________ of the same aggregate
principal amount shall be issued in exchange therefor as provided in the
Indenture. Except as stated in the first paragraph on the face hereof, the
Company and the Trustee may deem and treat the person in whose name this
Debenture is registered as the absolute owner hereof for the purpose of
receiving payment of or on account of the principal, premium, if any, and
interest due hereon and for all other purposes.
No recourse shall be had for the payment of the principal of, or the
premium, if any, or the interest on, this Debenture, or any part hereof, or for
any claim based hereon or otherwise in respect hereof, or of the indebtedness
represented hereby, or upon any obligation, covenant or agreement of the
Indenture, against any incorporator, stockholder, officer or director, as such,
past, present or future, of the Company or of any successor corporation (either
directly or through the Company or any such successor corporation), whether by
virtue of any constitutional provision, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise, all liability, if any, of
that character against every such incorporator, stockholder, officer and
director being by the acceptance hereof, and as part of the consideration for
the issue hereof, expressly waived and released.
This Debenture shall be deemed to be a contract made under the laws of
the State of New York and for all purposes shall be construed in accordance with
and governed by the laws of said State.
53
<PAGE> 60
FORM OF MEDIUM-TERM NOTE
Unless this certificate is presented by an authorized representative of
The Depository Trust Company (55 Water Street, New York, New York) to the issuer
or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust Company and
any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.
CONECTIV
MEDIUM-TERM NOTE, SERIES _____________
NO. _________________ $_______________
Original Issue Date: Redeemable: Yes___ No___
Interest Rate: Initial Redemption Date:
Stated Maturity Date: Redemption Limitation Date:
Issue Price ( %) Initial Redemption Price:
Interest Payment Dates Reduction Percentage
Regular Record Dates
CONECTIV, a Delaware corporation (hereinafter called the Company), for
value received, hereby promises to pay to _____________ or registered assigns,
the sum of $_____ on the [_____] day of __________, at the corporate trust
office or agency of __________, Trustee under the Indenture referred to on the
reverse hereof, or its successor as such Trustee, in the County of New Castle,
the City of Wilmington, in such coin or currency of the United States of America
as at the time of payment shall be legal tender for the payment of public and
private debts, and to pay interest thereon at the rate of _____% per annum in
like coin or currency, payable at said office or agency semiannually on the
[__________] day of __________ and the [__________] day of __________ in each
year, from the interest payment date to which interest has been paid last
preceding the date hereof (unless the date hereof is an interest payment date to
which interest has been paid, in which case from the date hereof, or unless the
date hereof is prior to __________, in which case from __________) until the
Company's obligation with respect to the payment of such principal shall have
been discharged, such interest to be paid to the person who shall have been the
registered owner hereof at the close of business on __________ or __________, as
the case may be, next preceding an interest payment date, except as otherwise
provided in the Indenture referred to on the reverse hereof. Notwithstanding the
foregoing, if the date of this Medium-Term Note is after __________ or
__________, as the case may be, and before the immediately following __________
or __________, as the case may be, this Medium-Term Note shall bear interest
from such __________ or __________; provided, however, that if and to the extent
that the Company shall default in the payment of interest due on such __________
or __________, this Medium-Term Note shall bear interest from the next preceding
_____
54
<PAGE> 61
or __________ to which interest has been paid or, if no interest has been paid,
from __________.
Additional provisions of this Medium-Term Note are contained on the
reverse hereof and such provisions shall for all purposes have the same effect
as though fully set forth at this place. This Medium-Term Note shall not be
valid or become obligatory for any purpose until it shall have been
authenticated by the certificate, hereon endorsed, of the Trustee under the
Indenture.
55
<PAGE> 62
IN WITNESS WHEREOF, Conectiv, has caused this Medium-Term Note to be
executed in its name by the facsimile signature of its Chairman of the Board or
its President or one of its Vice Presidents or its Treasurer, and its corporate
seal to be hereunto affixed, or a facsimile thereof to be printed or engraved
hereon, and to be attested by the facsimile signature of its Secretary or one of
its Assistant Secretaries.
CONECTIV
Dated: ______________________________
By: _________________________________
Attest: _____________________________
(FORM OF TRUSTEE'S CERTIFICATE ON MEDIUM-TERM NOTES)
This is one of the Medium-Term Notes, of the series designated therein,
described in the within-mentioned Indenture.
______________________________, as Trustee,
By
Authorized Officer
56
<PAGE> 63
[REVERSE]
CONECTIV
MEDIUM-TERM NOTE, SERIES _____
This Medium-Term Note is one of a duly authorized issue of Medium-Term
Notes of the Company issuable in series, and is one of a series known as its
Medium-Term Notes, Series __________ (herein called Medium-Term Notes, Series
__________), all issued and to be issued under an Indenture dated as of
__________, in which the Medium-Term Notes, Series __________ are created and
described, all executed between the Company and __________ (herein called the
Trustee), Trustee, to which Indenture (herein called the Indenture) reference is
hereby made for a statement of the rights thereunder of the Trustee and of the
holders of the Medium-Term Notes, and of the duties thereunder of the Trustee
and of the Company.
The rights and obligations of the Company and of the holders of
Medium-Term Notes may be changed and modified at the request of the Company by
an indenture or indentures supplemental to the Indenture, executed pursuant to
the consent in writing of the holders of at least a majority in principal amount
of the Medium-Term Notes then outstanding affected by such change or
modification, all in the manner and subject to the limitations set forth in the
Indenture, provided that no such change or modification by such supplemental
indenture shall extend the maturity of, or reduce the rate of interest on, or
otherwise modify the terms of payment of the principal of, or the premium, if
any, or the interest on, this Medium-Term Note, or reduce the percentage of
Medium-Term Notes the holders of which are required to consent to any such
supplemental indenture, or modify the provision as to the holders of any series
of Medium-Term Notes authorized or required to consent to any such supplemental
indenture, without the express consent of the holder hereof. Any such consent by
the holder of this Medium-Term Note (unless effectively revoked as provided in
the Indenture) shall be conclusive and binding upon such holder and upon all
future holders and owners of this Medium-Term Note, whether or not any notation
of such consent is made upon this Medium-Term Note.
[The Medium-Term Notes, Series __________ may not be redeemed prior to
maturity.]
57
<PAGE> 64
[The Medium-Term Notes, Series __________ may be redeemed, prior to maturity, at
the election of the Company, as a whole at any time, or in part from time to
time, as provided in the Indenture, at the redemption prices (expressed in
percentages of principal amount) set forth in the tabulation below under the
heading "Regular Redemption Prices":]
<TABLE>
<CAPTION>
IF REDEEMED DURING REGULAR
12 MONTH PERIOD REDEMPTION
COMMENCING PRICES
---------- ------
<S> <C> <C>
</TABLE>
In case a default, as defined in the Indenture, shall occur, the
principal of all the Medium-Term Notes then outstanding may become or be
declared due and payable in the manner and with the effect provided in the
Indenture. The Indenture provides that in certain events such declaration and
certain defaults under the Indenture may be waived by the holders of a majority
in principal amount of all Securities outstanding under the Indenture.
Except as stated in the first paragraph on the face hereof, this
Medium-Term Note is transferable and exchangeable as prescribed in the Indenture
by the registered holder hereof in person, or by his duly authorized attorney,
at the corporate trust office or agency of the Trustee in said County of New
Castle, upon surrender and cancellation of this Medium-Term Note, and,
thereupon, a new fully registered Medium-Term Note or Medium-Term Notes, Series
of the same aggregate principal amount shall be issued in exchange therefor as
provided in the Indenture. Except as stated in the first paragraph on the face
hereof, the Company and the Trustee may deem and treat the person in whose name
this Medium-Term Note is registered as the absolute owner hereof for the purpose
of receiving payment of or on account of the principal, premium, if any, and
interest due hereon and for all other purposes.
No recourse shall be had for the payment of the principal of, or the
premium, if any, or the interest on, this Medium-Term Note, or any part hereof,
or for any claim based hereon or otherwise in respect hereof, or of the
indebtedness represented hereby, or upon any obligation, covenant or agreement
of the Indenture, against any incorporator, stockholder, officer or director, as
such, past, present or future, of the Company or of any successor corporation
(either directly or through the Company or any such successor corporation),
whether by virtue of any constitutional provision, statute or rule of law, or by
the enforcement of any assessment or penalty or otherwise, all liability, if
any, of that character against every such incorporator, stockholder, officer and
director being by the acceptance hereof, and as part of the consideration for
the issue hereof, expressly waived and released.
This Medium-Term Note shall be deemed to be a contract made under the
laws of the State of New York and for all purposes shall be construed in
accordance with and governed by the laws of said State.
58
<PAGE> 1
EXHIBIT 23(b)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement of
Conectiv on Form S-3 of our report dated February 6, 1998, except as to the
information presented in Note 4 under Merger with Atlantic Energy, Inc., for
which the effective date of the merger is March 1, 1998, on our audits of the
consolidated financial statements of Delmarva Power & Light Company and
Subsidiary Companies as of December 31, 1997 and 1996 and for each of the three
years in the period ended December 31, 1997, which is included in the 1997
Annual Report on Form 10-K of Delmarva Power & Light Company. We also consent to
the reference to our Firm under the caption "Experts"
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
2400 Eleven Penn Center
Philadelphia, Pa 19103
February 9, 1999
<PAGE> 1
EXHIBIT 23(c)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Conectiv on Form S-3 of our report dated February 2, 1998 (March 1, 1998 as to
Note 4), appearing in the combined Annual Report on Form 10-K of Atlantic
Energy, Inc. and Atlantic City Electric Company for the year ended December 31,
1997 and to the reference to us under the heading "Experts" in this Registration
Statement.
/s/ DELOITTE & TOUCHE LLP
DELOITTE & TOUCHE LLP
Parsippany, New Jersey
February 9, 1999
<PAGE> 1
EXHIBIT 24
CONECTIV
LIMITED POWER OF ATTORNEY
The undersigned, a director or officer of Conectiv, a Delaware
corporation, does hereby appoint H. E. COSGROVE, B. S. GRAHAM and L. M. WALTERS
and each of them (with power to act without the other), including full power of
substitution and revocation, as the undersigned's true and lawful
attorneys-in-fact and agents, with full power and authority to act in all
capacities for him/her and in his/her name, place and stead in connection with
the filing with the Securities and Exchange Commission, pursuant to the
Securities Act of 1933, as amended, of a Registration Statement on Form S-3, and
any and all amendments thereto, for up to $500 million of a combination of
shares of Company Common Stock, $.01 par value per share, and/or debt
securities, which shall consist of unsecured medium term notes or unsecured
debentures, and execute and deliver for the undersigned and in his/her name,
place and stead all such other documents or instruments and to take such further
action as they, or any of them, deem appropriate. The undersigned hereby grants
to each such attorney-in-fact full power and authority to take any and all
actions requisite, necessary or proper in the exercise of any of the rights and
power granted herein, as fully as the undersigned could do if personally
present, and hereby ratifies and confirms all that any such attorney-in-fact
lawfully does or causes to be done by virtue of this Limited Power of Attorney
and the rights and powers granted herein. The undersigned agrees that this
Limited Power of Attorney shall survive the incapacity or disability of the
undersigned.
IN WITNESS WHEREOF, the undersigned has executed this document as of
this 29th day of October, 1998.
/s/ M. G. ABERCROMBIE
------------------------------
M. G. Abercrombie
<PAGE> 2
CONECTIV
LIMITED POWER OF ATTORNEY
The undersigned, a director or officer of Conectiv, a Delaware
corporation, does hereby appoint H. E. COSGROVE, B. S. GRAHAM and L. M. WALTERS
and each of them (with power to act without the other), including full power of
substitution and revocation, as the undersigned's true and lawful
attorneys-in-fact and agents, with full power and authority to act in all
capacities for him/her and in his/her name, place and stead in connection with
the filing with the Securities and Exchange Commission, pursuant to the
Securities Act of 1933, as amended, of a Registration Statement on Form S-3, and
any and all amendments thereto, for up to $500 million of a combination of
shares of Company Common Stock, $.01 par value per share, and/or debt
securities, which shall consist of unsecured medium term notes or unsecured
debentures, and execute and deliver for the undersigned and in his/her name,
place and stead all such other documents or instruments and to take such further
action as they, or any of them, deem appropriate. The undersigned hereby grants
to each such attorney-in-fact full power and authority to take any and all
actions requisite, necessary or proper in the exercise of any of the rights and
power granted herein, as fully as the undersigned could do if personally
present, and hereby ratifies and confirms all that any such attorney-in-fact
lawfully does or causes to be done by virtue of this Limited Power of Attorney
and the rights and powers granted herein. The undersigned agrees that this
Limited Power of Attorney shall survive the incapacity or disability of the
undersigned.
IN WITNESS WHEREOF, the undersigned has executed this document as of
this 29th day of October, 1998.
/s/ R. D. BURRIS
------------------------------
R. D. Burris
<PAGE> 3
CONECTIV
LIMITED POWER OF ATTORNEY
The undersigned, a director or officer of Conectiv, a Delaware
corporation, does hereby appoint H. E. COSGROVE, B. S. GRAHAM and L. M. WALTERS
and each of them (with power to act without the other), including full power of
substitution and revocation, as the undersigned's true and lawful
attorneys-in-fact and agents, with full power and authority to act in all
capacities for him/her and in his/her name, place and stead in connection with
the filing with the Securities and Exchange Commission, pursuant to the
Securities Act of 1933, as amended, of a Registration Statement on Form S-3, and
any and all amendments thereto, for up to $500 million of a combination of
shares of Company Common Stock, $.01 par value per share, and/or debt
securities, which shall consist of unsecured medium term notes or unsecured
debentures, and execute and deliver for the undersigned and in his/her name,
place and stead all such other documents or instruments and to take such further
action as they, or any of them, deem appropriate. The undersigned hereby grants
to each such attorney-in-fact full power and authority to take any and all
actions requisite, necessary or proper in the exercise of any of the rights and
power granted herein, as fully as the undersigned could do if personally
present, and hereby ratifies and confirms all that any such attorney-in-fact
lawfully does or causes to be done by virtue of this Limited Power of Attorney
and the rights and powers granted herein. The undersigned agrees that this
Limited Power of Attorney shall survive the incapacity or disability of the
undersigned.
IN WITNESS WHEREOF, the undersigned has executed this document as of
this 29th day of October, 1998.
/s/ A. K. DOBERSTEIN
------------------------------
A. K. Doberstein
<PAGE> 4
CONECTIV
LIMITED POWER OF ATTORNEY
The undersigned, a director or officer of Conectiv, a Delaware
corporation, does hereby appoint H. E. COSGROVE, B. S. GRAHAM and L. M. WALTERS
and each of them (with power to act without the other), including full power of
substitution and revocation, as the undersigned's true and lawful
attorneys-in-fact and agents, with full power and authority to act in all
capacities for him/her and in his/her name, place and stead in connection with
the filing with the Securities and Exchange Commission, pursuant to the
Securities Act of 1933, as amended, of a Registration Statement on Form S-3, and
any and all amendments thereto, for up to $500 million of a combination of
shares of Company Common Stock, $.01 par value per share, and/or debt
securities, which shall consist of unsecured medium term notes or unsecured
debentures, and execute and deliver for the undersigned and in his/her name,
place and stead all such other documents or instruments and to take such further
action as they, or any of them, deem appropriate. The undersigned hereby grants
to each such attorney-in-fact full power and authority to take any and all
actions requisite, necessary or proper in the exercise of any of the rights and
power granted herein, as fully as the undersigned could do if personally
present, and hereby ratifies and confirms all that any such attorney-in-fact
lawfully does or causes to be done by virtue of this Limited Power of Attorney
and the rights and powers granted herein. The undersigned agrees that this
Limited Power of Attorney shall survive the incapacity or disability of the
undersigned.
IN WITNESS WHEREOF, the undersigned has executed this document as of
this 29th day of October, 1998.
/s/ M. B. EMERY
------------------------------
M. B. Emery
<PAGE> 5
CONECTIV
LIMITED POWER OF ATTORNEY
The undersigned, a director or officer of Conectiv, a Delaware
corporation, does hereby appoint H. E. COSGROVE, B. S. GRAHAM and L. M. WALTERS
and each of them (with power to act without the other), including full power of
substitution and revocation, as the undersigned's true and lawful
attorneys-in-fact and agents, with full power and authority to act in all
capacities for him/her and in his/her name, place and stead in connection with
the filing with the Securities and Exchange Commission, pursuant to the
Securities Act of 1933, as amended, of a Registration Statement on Form S-3, and
any and all amendments thereto, for up to $500 million of a combination of
shares of Company Common Stock, $.01 par value per share, and/or debt
securities, which shall consist of unsecured medium term notes or unsecured
debentures, and execute and deliver for the undersigned and in his/her name,
place and stead all such other documents or instruments and to take such further
action as they, or any of them, deem appropriate. The undersigned hereby grants
to each such attorney-in-fact full power and authority to take any and all
actions requisite, necessary or proper in the exercise of any of the rights and
power granted herein, as fully as the undersigned could do if personally
present, and hereby ratifies and confirms all that any such attorney-in-fact
lawfully does or causes to be done by virtue of this Limited Power of Attorney
and the rights and powers granted herein. The undersigned agrees that this
Limited Power of Attorney shall survive the incapacity or disability of the
undersigned.
IN WITNESS WHEREOF, the undersigned has executed this document as of
this 29th day of October, 1998.
/s/ S. I. GORE
------------------------------
S. I. Gore
<PAGE> 6
CONECTIV
LIMITED POWER OF ATTORNEY
The undersigned, a director or officer of Conectiv, a Delaware
corporation, does hereby appoint H. E. COSGROVE, B. S. GRAHAM and L. M. WALTERS
and each of them (with power to act without the other), including full power of
substitution and revocation, as the undersigned's true and lawful
attorneys-in-fact and agents, with full power and authority to act in all
capacities for him/her and in his/her name, place and stead in connection with
the filing with the Securities and Exchange Commission, pursuant to the
Securities Act of 1933, as amended, of a Registration Statement on Form S-3, and
any and all amendments thereto, for up to $500 million of a combination of
shares of Company Common Stock, $.01 par value per share, and/or debt
securities, which shall consist of unsecured medium term notes or unsecured
debentures, and execute and deliver for the undersigned and in his/her name,
place and stead all such other documents or instruments and to take such further
action as they, or any of them, deem appropriate. The undersigned hereby grants
to each such attorney-in-fact full power and authority to take any and all
actions requisite, necessary or proper in the exercise of any of the rights and
power granted herein, as fully as the undersigned could do if personally
present, and hereby ratifies and confirms all that any such attorney-in-fact
lawfully does or causes to be done by virtue of this Limited Power of Attorney
and the rights and powers granted herein. The undersigned agrees that this
Limited Power of Attorney shall survive the incapacity or disability of the
undersigned.
IN WITNESS WHEREOF, the undersigned has executed this document as of
this 29th day of October, 1998.
/s/ C. H. HOLLEY
------------------------------
C. H. Holley
<PAGE> 7
CONECTIV
LIMITED POWER OF ATTORNEY
The undersigned, a director or officer of Conectiv, a Delaware
corporation, does hereby appoint H. E. COSGROVE, B. S. GRAHAM and L. M. WALTERS
and each of them (with power to act without the other), including full power of
substitution and revocation, as the undersigned's true and lawful
attorneys-in-fact and agents, with full power and authority to act in all
capacities for him/her and in his/her name, place and stead in connection with
the filing with the Securities and Exchange Commission, pursuant to the
Securities Act of 1933, as amended, of a Registration Statement on Form S-3, and
any and all amendments thereto, for up to $500 million of a combination of
shares of Company Common Stock, $.01 par value per share, and/or debt
securities, which shall consist of unsecured medium term notes or unsecured
debentures, and execute and deliver for the undersigned and in his/her name,
place and stead all such other documents or instruments and to take such further
action as they, or any of them, deem appropriate. The undersigned hereby grants
to each such attorney-in-fact full power and authority to take any and all
actions requisite, necessary or proper in the exercise of any of the rights and
power granted herein, as fully as the undersigned could do if personally
present, and hereby ratifies and confirms all that any such attorney-in-fact
lawfully does or causes to be done by virtue of this Limited Power of Attorney
and the rights and powers granted herein. The undersigned agrees that this
Limited Power of Attorney shall survive the incapacity or disability of the
undersigned.
IN WITNESS WHEREOF, the undersigned has executed this document as of
this 29th day of October, 1998.
/s/ J. L. JACOBS
------------------------------
J. L. Jacobs
<PAGE> 8
CONECTIV
LIMITED POWER OF ATTORNEY
The undersigned, a director or officer of Conectiv, a Delaware
corporation, does hereby appoint H. E. COSGROVE, B. S. GRAHAM and L. M. WALTERS
and each of them (with power to act without the other), including full power of
substitution and revocation, as the undersigned's true and lawful
attorneys-in-fact and agents, with full power and authority to act in all
capacities for him/her and in his/her name, place and stead in connection with
the filing with the Securities and Exchange Commission, pursuant to the
Securities Act of 1933, as amended, of a Registration Statement on Form S-3, and
any and all amendments thereto, for up to $500 million of a combination of
shares of Company Common Stock, $.01 par value per share, and/or debt
securities, which shall consist of unsecured medium term notes or unsecured
debentures, and execute and deliver for the undersigned and in his/her name,
place and stead all such other documents or instruments and to take such further
action as they, or any of them, deem appropriate. The undersigned hereby grants
to each such attorney-in-fact full power and authority to take any and all
actions requisite, necessary or proper in the exercise of any of the rights and
power granted herein, as fully as the undersigned could do if personally
present, and hereby ratifies and confirms all that any such attorney-in-fact
lawfully does or causes to be done by virtue of this Limited Power of Attorney
and the rights and powers granted herein. The undersigned agrees that this
Limited Power of Attorney shall survive the incapacity or disability of the
undersigned.
IN WITNESS WHEREOF, the undersigned has executed this document as of
this 29th day of October, 1998.
/s/ R. B. MCGLYNN
------------------------------
R. B. McGlynn
<PAGE> 9
CONECTIV
LIMITED POWER OF ATTORNEY
The undersigned, a director or officer of Conectiv, a Delaware
corporation, does hereby appoint H. E. COSGROVE, B. S. GRAHAM and L. M. WALTERS
and each of them (with power to act without the other), including full power of
substitution and revocation, as the undersigned's true and lawful
attorneys-in-fact and agents, with full power and authority to act in all
capacities for him/her and in his/her name, place and stead in connection with
the filing with the Securities and Exchange Commission, pursuant to the
Securities Act of 1933, as amended, of a Registration Statement on Form S-3, and
any and all amendments thereto, for up to $500 million of a combination of
shares of Company Common Stock, $.01 par value per share, and/or debt
securities, which shall consist of unsecured medium term notes or unsecured
debentures, and execute and deliver for the undersigned and in his/her name,
place and stead all such other documents or instruments and to take such further
action as they, or any of them, deem appropriate. The undersigned hereby grants
to each such attorney-in-fact full power and authority to take any and all
actions requisite, necessary or proper in the exercise of any of the rights and
power granted herein, as fully as the undersigned could do if personally
present, and hereby ratifies and confirms all that any such attorney-in-fact
lawfully does or causes to be done by virtue of this Limited Power of Attorney
and the rights and powers granted herein. The undersigned agrees that this
Limited Power of Attorney shall survive the incapacity or disability of the
undersigned.
IN WITNESS WHEREOF, the undersigned has executed this document as of
this 29th day of October, 1998.
/s/ B. J. MORGAN
------------------------------
B. J. Morgan
<PAGE> 10
CONECTIV
LIMITED POWER OF ATTORNEY
The undersigned, a director or officer of Conectiv, a Delaware
corporation, does hereby appoint H. E. COSGROVE, B. S. GRAHAM and L. M. WALTERS
and each of them (with power to act without the other), including full power of
substitution and revocation, as the undersigned's true and lawful
attorneys-in-fact and agents, with full power and authority to act in all
capacities for him/her and in his/her name, place and stead in connection with
the filing with the Securities and Exchange Commission, pursuant to the
Securities Act of 1933, as amended, of a Registration Statement on Form S-3, and
any and all amendments thereto, for up to $500 million of a combination of
shares of Company Common Stock, $.01 par value per share, and/or debt
securities, which shall consist of unsecured medium term notes or unsecured
debentures, and execute and deliver for the undersigned and in his/her name,
place and stead all such other documents or instruments and to take such further
action as they, or any of them, deem appropriate. The undersigned hereby grants
to each such attorney-in-fact full power and authority to take any and all
actions requisite, necessary or proper in the exercise of any of the rights and
power granted herein, as fully as the undersigned could do if personally
present, and hereby ratifies and confirms all that any such attorney-in-fact
lawfully does or causes to be done by virtue of this Limited Power of Attorney
and the rights and powers granted herein. The undersigned agrees that this
Limited Power of Attorney shall survive the incapacity or disability of the
undersigned.
IN WITNESS WHEREOF, the undersigned has executed this document as of
this 29th day of October, 1998.
/s/ W. E. NELLIUS
------------------------------
W. E. Nellius
<PAGE> 11
CONECTIV
LIMITED POWER OF ATTORNEY
The undersigned, a director or officer of Conectiv, a Delaware
corporation, does hereby appoint H. E. COSGROVE, B. S. GRAHAM and L. M. WALTERS
and each of them (with power to act without the other), including full power of
substitution and revocation, as the undersigned's true and lawful
attorneys-in-fact and agents, with full power and authority to act in all
capacities for him/her and in his/her name, place and stead in connection with
the filing with the Securities and Exchange Commission, pursuant to the
Securities Act of 1933, as amended, of a Registration Statement on Form S-3, and
any and all amendments thereto, for up to $500 million of a combination of
shares of Company Common Stock, $.01 par value per share, and/or debt
securities, which shall consist of unsecured medium term notes or unsecured
debentures, and execute and deliver for the undersigned and in his/her name,
place and stead all such other documents or instruments and to take such further
action as they, or any of them, deem appropriate. The undersigned hereby grants
to each such attorney-in-fact full power and authority to take any and all
actions requisite, necessary or proper in the exercise of any of the rights and
power granted herein, as fully as the undersigned could do if personally
present, and hereby ratifies and confirms all that any such attorney-in-fact
lawfully does or causes to be done by virtue of this Limited Power of Attorney
and the rights and powers granted herein. The undersigned agrees that this
Limited Power of Attorney shall survive the incapacity or disability of the
undersigned.
IN WITNESS WHEREOF, the undersigned has executed this document as of
this 29th day of October, 1998.
/s/ H. J. RAVECHE
------------------------------
H. J. Raveche
<PAGE> 1
EXHIBIT 25
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939, AS AMENDED, OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2) X
----------
FIRST UNION TRUST COMPANY, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
United States National Banking Association 56-1989961
(State of incorporation if (I.R.S. employer
not a national bank) identification no.)
First Union Trust Company, National Association
One Rodney Square, Suite 102
920 King St.
Wilmington, DE 19801
(Address of principal (Zip Code)
executive offices)
Same as above
(Name, address and telephone number, including
area code, of trustee's agent for service)
Conectiv
(Exact name of obligor as specified in its charter)
The State of Delaware
(State or other jurisdiction of incorporation or organization)
51-0377417
(I.R.S. employer identification no.)
c/o
Stephanie M. Scola
Conectiv
800 King Street
P.O. Box 231
Wilmington, DE 19899-0231
(Address, including zip code, of principal executive offices)
--------------------
<PAGE> 2
MEDIUM TERM NOTES
(Title of the Indenture securities)
------------------------------------------------
1. General information. Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Federal Reserve Bank of Richmond, VA Richmond, VA
Comptroller of the Currency Washington, D.C.
Securities and Exchange Commission
Division of Market Regulation Washington, D.C.
Federal Deposit Insurance Corporation Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
2. Affiliations with obligor and underwriters. If the obligor or any underwriter
for the obligor is an affiliate of the trustee, describe each such affiliation.
None.
(See Note 1 on Page 4.)
Because the obligor is not in default on any securities issued under indentures
under which the applicant is trustee, Items 3 through 15 are not required
herein.
<PAGE> 3
16. List of Exhibits.
All exhibits identified below are filed as a part of this statement of
eligibility.
1. A copy of the Articles of Association of First Union Trust
Company, National Association, as now in effect, which contain
the authority to commence business and a grant of powers to
exercise corporate trust powers.
2. A copy of the certificate of authority of the trustee to
commence business, if not contained in the Articles of
Association.
3. A copy of the authorization of the trustee to exercise
corporate trust powers, if such authorization is not contained
in the documents specified in exhibits (1) or (2) above.
4. A copy of the existing By-laws of First Union Trust Company,
National Association, or instruments corresponding thereto.
5. Inapplicable.
6. The consent of the trustee required by Section 321(b) of the
Trust Indenture Act of 1939 is included at Page 4 of this Form
T-1 Statement.
7. A copy of the latest report of condition of the trustee
published pursuant to law or to the requirements of its
supervising or examining authority is attached hereto.
8. Inapplicable.
9. Inapplicable.
3
<PAGE> 4
NOTE
Note 1: Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the answer
to said Item is based on incomplete information. Item 2 may, however, be
considered correct unless amended by an amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, First Union Trust Company, National Association, a
national banking association organized and existing under the laws of the United
States of America, has duly caused this statement of eligibility and
qualification to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington, and State of Delaware, on the 9th day
of February, 1999.
FIRST UNION TRUST COMPANY, NATIONAL ASSOCIATION
(trustee)
By: \s\ Edward L. Truitt, Jr.
Name: Edward L. Truitt, Jr.
Title: Vice President
CONSENT OF TRUSTEE
Under section 321(b) of the Trust Indenture Act of 1939, as amended,
and in connection with the proposed issuance by Conectiv, Medium Term Notes,
First Union Trust Company, National Association, as the trustee herein named,
hereby consents that reports of examinations of said Trustee by Federal, State,
Territorial or District authorities may be furnished by such authorities to the
Securities and Exchange Commission upon requests therefor.
FIRST UNION TRUST COMPANY, NATIONAL ASSOCIATION
By: \s\ Edward L. Truitt, Jr.
Name: Edward L. Truitt, Jr.
Title: Vice President
4
Dated: February 9, 1999
<PAGE> 5
Legal Title of Bank: First Union Trust Company, N.A. Call Date: 6/30/98
ST-BK: 37-0351 FFIEC 031
Address: Two First Union Center Page RC-1
City, State, Zip: Charlotte, NC 28288-0201
FDIC Certificate #: 33869
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL AND STATE-CHARTERED
SAVINGS BANKS FOR SEPTEMBER 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
C400
Dollar Amount in Thousands RCFD Bil Mil Thou
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule RC-A):
a. Noninterest-bearing balances and currency and coin (1) ............................ 0081 10,212,563 1.a.
b. Interest-bearing balances (2) ..................................................... 0071 1,529,435 1.b.
2. Securities:
a. Held-to-maturity securities (from Schedule RC-B, column A) ........................ 1754 1,994,665 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D) ...................... 1773 37,427,525 2.b.
3. Federal funds sold and securities purchased under agreements to resell ................ 1350 7,551,730 3.
4. Loans and lease financing receivables
a. Loans and leases, net of unearned income (from Schedule RC-C)RCFD 2122 133,841,290 4.a.
b. LESS: Allowance for loan and lease losses ...................RCFD 3123 1,856,548 4.b.
c. LESS: Allocated transfer risk reserve .......................RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income,
allowance, and reserve (item 4.a minus 4.b and 4.c) ............................... 2125 131,984,742 4.d.
5. Trading assets (from Schedule RC-D) ................................................... 3545 8,349,640 5.
6. Premises and fixed assets (including capitalized leases) .............................. 2145 3,208,660 6.
7. Other real estate owned (from Schedule RC-M) .......................................... 2150 127,757 7.
8. Investments in unconsolidated subsidiaries and associated companies
(from Schedule RC-M) ................................................................ 2180 351,648 8.
9. Customers' liability to this bank on acceptances outstanding .......................... 2155 1,026,154 9.
10. Intangible assets (from Schedule RC-M) ................................................ 2143 5,215,196 10.
11. Other assets (from Schedule RC-F) ..................................................... 2160 9,099,122 11.
12. Total assets (sum of items 1 through 11) .............................................. 2170 218,078,837 12.
</TABLE>
- ----------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE> 6
Legal Title of Bank: First Union Trust Company, N.A. Call Date: 6/30/98
ST-BK: 37-0351 FFIEC 031
Address: Two First Union Center Page RC-1
City, State, Zip: Charlotte, NC 28288-0201
FDIC Certificate #: 33869
Schedule RC--Continued
<TABLE>
<CAPTION>
Dollar Amount in Thousands Bil Mil Thou
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E,
part I)..................................................................... RCON 2200 131,541,691 13.a.
(1) Noninterest-bearing (1).......................RCON 6631 23,997,063 13.a.(1)
(2) Interest-bearing..............................RCON 6636 107,544,628 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from
Schedule RC-E, part II).............................................................. RCFN 2200 8,708,735 13.b.
(1) Noninterest-bearing...........................RCFN 6631 400,989 13.b.(1)
(2) Interest-bearing..............................RCFN 6636 8,307,746 13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase...... RCFD 2800 24,903,299 14.
15. a. Demand notes issued to the U.S. Treasury.................................... RCON 2840 772,252 15.a.
b. Trading liabilities (from Schedule RC-D).................................... RCFD 3548 6,496,578 15.b.
16. Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases):............................................................
a. With a remaining maturity of one year or less............................... RCFD 2332 11,928,951 16.a.
b. With a remaining maturity of more than one year through three years......... RCFD A547 1,260,353 16.b.
c. With a remaining maturity of more than three years.......................... RCFD A548 775,219 16.c.
17. Not applicable..................................................................
18. Bank's liability on acceptances executed and outstanding........................ RCFD 2920 1,036,587 18.
19. Subordinated notes and debentures (2)........................................... RCFD 3200 3,501,546 19.
20. Other liabilities (from Schedule RC-G).......................................... RCFD 2930 9,211,139 20.
21. Total liabilities (sum of items 13 through 20).................................. RCFD 2948 200,136,350 21.
22. Not applicable..................................................................
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus................................... RCFD 3838 160,540 23.
24. Common stock.................................................................... RCFD 3230 454,543 24.
25. Surplus (exclude all surplus related to preferred stock)........................ RCFD 3839 13,206,354 25.
26. a. Undivided profits and capital reserves...................................... RCFD 3632 3,553,449 26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities...... RCFD 8434 572,731 26.b.
27. Cumulative foreign currency translation adjustments............................. RCFD 3284 (5,130) 27.
28. Total equity capital (sum of items 23 through 27)............................... RCFD 3210 17,942,487 28.
29. Total liabilities and equity capital (sum of items 21 and 28)................... RCFD 3300 218,078,837 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best
describes the most comprehensive level of auditing work performed for the bank Number
by independent external auditors as of any date during 1996.................... RCFD 6724 N/A M.1.
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified
public accounting firm which submits a report on the consolidated
holding company (but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with
generally accepted auditing standards by a certified public accounting
firm (may be required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- ----------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposit.
(2) Includes limited-life preferred stock and related surplus.
7
<PAGE> 7
Comptroller of the Currency
Administrator of National Banks
Multinational Banking Division
250 E Street, SW
Washington, D.C. 20219-0001
TRUST CERTIFICATE
Whereas, FIRST UNION TRUST COMPANY, NATIONAL ASSOCIATION, Charter
Number 23201, located in WILMINGTON, State of DELAWARE, being a National Banking
Association, organized under the statutes of the United States, has made
application for authority to act as fiduciary;
And whereas, applicable provisions of the statutes of the United States
authorize the granting of such authority;
Now, therefore, I hereby certify that the said association is
authorized to act in all fiduciary capacities by such statutes.
In testimony whereof, witness my signature and Seal of office this fifteenth day
of January 1997.
- --------------------------------------
Deputy Comptroller for Multinational Banking
<PAGE> 8
Comptroller of the Currency
Administrator of National Banks
Multinational Banking Division
250 E Street, SW
Washington, D.C. 20219-0001
CHARTER CERTIFICATE
Whereas, satisfactory evidence has been presented to the Office of the
Comptroller of the Currency that FIRST UNION TRUST COMPANY, NATIONAL
ASSOCIATION, located in WILMINGTON, State of DELAWARE, has complied with all
provisions of the statutes of the United States required to be complied with
before being authorized to commence the business of banking as a National
Banking Association;
Now, therefore, I hereby certify that the above-named association is
authorized to commence the business of banking as a National Banking
Association.
In testimony whereof, witness my signature and Seal of office this fifteenth day
of January 1997.
- --------------------------------------
Deputy Comptroller for Multinational Banking
Charter Number 23201
