As filed with the Securities and Exchange Commission on January 30, 1997.
Registration No. 333-
==========================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------------------
DELMARVA POWER & LIGHT COMPANY
(Exact name of registrant as
specified in its charter)
-------------------------------------
DELAWARE & VIRGINIA 51-0084283
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
800 King Street
P. O. Box 231
Wilmington, Delaware 19899
(302) 429-3011
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
DELMARVA POWER & LIGHT COMPANY
LONG-TERM INCENTIVE PLAN
(Full Title of Plan)
---------------------------------------
BARBARA S. GRAHAM
Senior Vice President
and Chief Financial Officer
800 King Street
P. O. Box 231
Wilmington, Delaware 19899
(302) 429-3448
(Name, address and telephone number,
including area code, of agent for service)
-------------------------------------------
CALCULATION OF REGISTRATION FEE
==========================================================================
Proposed Proposed
Title of Amount maximum maximum
securities to be offering aggregate Amount of
to be registered price offering registration
registered (1) per unit(2) price(2) fee
--------------------------------------------------------------------------
Common Stock
(par value
$2.25 per 400,000
share) Shares(3) $19.50 $7,800,000.00 $2,363.64
==========================================================================
(1) In addition, pursuant to Rule 416(a) under the Securities Act of
1933, as amended, this registration statement also covers any
additional securities to be offered or issued in connection with
a stock split, stock dividend or similar transaction.
(2) Estimated solely for the purpose of calculating the registration
fee, pursuant to Rule 457(h), on the basis of the average of the
high and low prices of the registrant's Common Stock on the New
York Stock Exchange composite tape on January 28, 1997.
(3) Pursuant to Rule 429, the documents constituting a Section 10(a)
Prospectus relating to the securities registered under this
Registration Statement constitute a combined Prospectus in
connection with this Registration Statement and Registration
Statement No. 33-33810. 187,803 shares of Common Stock are being
carried forward from Registration No. 33-33810, as to which a
registration fee of $941.83 was paid previously with such
Registration Statement.
=======================================================================
<PAGE>
DELMARVA POWER & LIGHT COMPANY
LONG-TERM INCENTIVE PLAN
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Delmarva Power & Light Company (the "Company") hereby
incorporates herein by reference the following documents previously filed
by the Company with the Securities and Exchange Commission:
(1) The Company's Annual Report on Form 10-K for the year
ended December 31, 1995;
(2) The Company's Quarterly Reports on Form 10-Q for the
quarters ended March 31, June 30 and September 30,
1996; and
(3) The Company's Current Reports on Form 8-K, dated
February 22, May 29, July 23, and August 9 (filed on
August 14) 1996 and January 28, 1997.
All documents subsequently filed by the Company pursuant to
Sections 13, 14 or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which
deregisters all the securities then remaining unsold, shall be deemed to be
incorporated herein by reference and to be a part hereof from the
respective dates of filing thereof. Any statement contained in an
incorporated document shall be deemed to be modified or superseded to the
extent that a statement contained herein or in any subsequently filed
incorporated document modifies or supersedes such statement.
ITEM 4. DESCRIPTION OF SECURITIES.
The following brief summary of certain features of the Common
Stock does not purport to delineate all the provisions governing the Common
Stock. Such provisions are stated in full in the Company's Restated
Certificate and Articles of Incorporation, as amended, and in the Company's
Mortgage and Deed of Trust, as amended and supplemented.
II-1
<PAGE>
DIVIDEND RIGHTS
The holders of Common Stock shall be entitled to receive such
dividends as may be declared by the Board of Directors, except that the
holders of the Preferred Stock have a right to receive cumulative dividends
at the rates set forth in the title of each series thereof before any
dividends are paid to the holders of Common Stock.
LIMITATIONS ON PAYMENT OF DIVIDENDS ON COMMON STOCK
The Company's Restated Certificate and Articles of
Incorporation, as amended, the Mortgage and Deed of Trust, as amended and
supplemented, securing the Company's outstanding First Mortgage Bonds, and
the Indenture, as amended and supplemented, relating to the Company's
outstanding Junior Subordinated Debentures, contain restrictions on the
payment of cash dividends on Common Stock, including restrictions that
would become applicable if Common Stock equity would be less than 25% of
total capitalization. (At December 31, 1996, Common Stock equity was
approximately 45.96% of total capitalization, including Variable Rate
Demand Bonds. Retained earnings available for dividends on Common Stock as
of December 31, 1996 were approximately $257,911 under the most restrictive
of these provisions.
VOTING RIGHTS
The holders of Common Stock have one vote for each share
held. Except as provided by law and as hereinafter set forth, the holders
of the Preferred Stock are not entitled to vote. Upon default in the
payment of dividends on the Preferred Stock in an amount equivalent to or
exceeding one year's dividends, and until all dividends in default shall
have been paid or declared and set apart for payment, the holders of the
Preferred Stock are entitled as a class to elect a majority of the Board of
Directors and the holders of the Common Stock are entitled as a class to
elect the remaining directors. The consent of certain proportions of the
Preferred Stock is required to effect a merger, consolidation or sale or
other disposition of all of the Company's assets, to amend, alter, change
or repeal any of the express terms of the Preferred Stock in a manner
prejudicial to its holders, to increase the authorized number of shares of,
or to create or authorize any kind of stock ranking prior to or on parity
with, or any security convertible into, the Preferred Stock and to issue
additional shares of the Preferred Stock unless certain capitalization and
coverage tests are met. In some cases, the right to vote only applies in
certain circumstances.
II-2
<PAGE>
OTHER RIGHTS
The holders of Common Stock have no preemptive rights to
purchase additional shares of Common Stock or securities convertible into
Common Stock.
The outstanding shares of Common Stock are, and the
additional shares offered hereby upon issuance will be, fully paid and non-
assessable. Subject to the preferential rights of creditors and the
holders of Preferred Stock, the holders of the Common Stock are entitled to
share ratably in the distribution of all remaining assets in the event of
liquidation.
CLASSIFICATION OF THE BOARD OF DIRECTORS
The Board of Directors is divided into three classes, each
class consisting, as nearly as possible, of one-third of the total number
of directors constituting the entire Board.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The consolidated financial statements and related schedules
incorporated by reference in this registration statement from the Company's
Annual Report on Form 10-K for the fiscal year ended December 31, 1995,
have been audited by Coopers & Lybrand, L.L.P., independent accountants, as
indicated in their report with respect thereto, and are incorporated herein
in reliance upon such report, given on the authority of that firm as
experts in accounting and auditing.
Dale G. Stoodley, General Counsel for the Company, has
reviewed the statements as to matters of law and legal conclusions under
"Item 4. Description of Securities" and in the documents incorporated
herein by reference, and such statements have been included herein and
therein upon his authority as an expert.
The validity of the shares of Common Stock offered hereby
will be passed upon for the Company by Dale G. Stoodley, General Counsel
for the Company, and, as to matters of Virginia law, by Peter F. Clark,
Assistant General Counsel for the Company. Mr. Stoodley may rely as to
matters of Virginia law upon the opinion of Mr. Clark, and Messrs. Stoodley
and Clark may rely as to matters of Maryland, New Jersey and Pennsylvania
law upon the opinions of counsel admitted to such jurisdictions.
As of December 31, 1996, Mr. Stoodley held, in the form of
stock and share equivalents in the Company's employee benefit plans,
approximately 2,774 shares of the Company's Common Stock and had been
granted 4,050 performance shares as to which full rights will not vest, if
at all, until a future date. On such date, Mr. Stoodley's shares,
including the performance shares, had a fair market value of approximately
II-3
<PAGE>
$139,039. As of December 31, 1996, Mr. Clark held, in the form of stock
and share equivalents in the Company's employee benefit plans,
approximately 1,403 shares of the Company's Common Stock and had been
granted 1,930 performance shares as to which full rights will not vest, if
at all, until a future date. On such date, Mr. Clark's shares, including
the performance shares, had a fair market value of approximately $67,910.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Restated Certificate and Articles of Incorporation of the
Company, as amended, provides that the Company 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 the Company. This provision is not exclusive of
other rights to which any director or officer may otherwise be entitled.
Under applicable corporate law, the Company may, upon a determination that
such persons have met the applicable statutory standard of conduct,
indemnify directors, officers, employees and agents against expenses,
judgments, fines and settlement payments reasonably incurred.
Subject to certain exceptions, the directors and all
corporate officers of the Company are insured to an overall limit of
$45,000,000 (subject to a Company deductible of $200,000 for each loss
involving non-nuclear operations and $1,000,000 for each loss involving
nuclear operations) because of any claim or claims made against them,
including claims arising under the Securities Act of 1933 and caused by any
negligent act, any error, any omission or any breach of duty while acting
in their capacities as such directors or officers, and the Company is
insured to the extent that it shall have indemnified the directors and
officers for such loss. The premiums for such insurance are paid by the
Company.
ITEM 8. EXHIBITS.
Exhibit
Number Description of Exhibits
------ -----------------------
4-A - A copy of the Company's Restated Certificate and Articles of
Incorporation effective as of April 12, 1990, (filed with
Registration No. 33-50453).*
4-B - A copy of the Company's Certificate of Designation and Articles
of Amendment establishing the 7-3/4% Preferred Stock--$25 Par
(filed with Registration No. 33-50453).*
II-4
<PAGE>
4-C - A copy of the Company's Certificate of Designation and Articles
of Amendment establishing the 6-3/4% Preferred Stock (filed with
Form 10-K for the year ended December 31, 1993).*
4-D - A copy of the Company's Certificate of Amendment of Restated
Certificate and Articles of Incorporation filed with the Delaware
Secretary of State, effective as of June 7, 1996 (filed with
Registration No. 333-07281).*
4-E - A copy of the Company's Articles of Amendment of Restated
Certificate and Articles of Incorporation filed with the Virginia
State Corporation Commission, effective as of June 7, 1996 (filed
with Registration No. 333-07281).*
4-F - A copy of the Company's Bylaws as amended February 29, 1996
(filed with Registration No. 333-07281).*
4-G - A copy of the Mortgage and Deed of Trust from the Company to
The New York Trust Company as Trustee, dated as of October 1,
1943, and copies of the First through Sixty-Eighth
Supplemental Indentures thereto (filed with Registration No.
33-1763).*
4-H - A copy of the Sixty-Ninth Supplemental Indenture (filed with
Registration No. 33-39756).*
4-I - Copies of the Seventieth through Seventy-Fourth Supplemental
Indentures (filed with Registration No. 33-24955).*
4-J - Copies of the Seventy-Fifth through Seventy-Seventh Supplemental
Indentures (filed with Registration No. 33-39756).*
4-K - A copy of the Seventy-Eighth and Seventy-Ninth Supplemental
Indentures (filed with Registration No. 33-46892).*
4-L - A copy of the Eightieth Supplemental Indenture (filed with
Registration No. 33-49750).*
4-M - A copy of the Eighty-First Supplemental Indenture (filed with
Registration No. 33-57652).*
4-N - A copy of the Eighty-Second Supplemental Indenture (filed with
Registration No. 33-63582).*
4-0 - A copy of the Eighty-Third Supplemental Indenture (filed with
Registration No. 33-50453).*
II-5
<PAGE>
4-P - Copies of the Eighty-Fourth through Eighty-Eighth
Supplemental Indentures (filed with Registration No. 33-
53855).*
4-Q - Copies of the Eighty-Ninth and Ninetieth Supplemental Indentures
(filed with Registration No. 333-00505).*
4-R - Indenture between the Company and Chase Manhattan Bank
(ultimate successor to Manufacturers Hanover Trust Company),
as Trustee, dated as of November 1, 1988 (filed with
Registration No. 33-46892).*
4-S - Indenture (for Unsecured Subordinated Debt Securities relating to
Trust Securities) between the Company and Wilmington Trust
Company, as Trustee, dated as of October 1, 1996.
4-T - Officer's Certificate dated October 3, 1996, establishing the
8.125% Junior Subordinated Debentures, Series I, Due 2036.
4-U - Guarantee Agreement between Delmarva Power & Light Company, as
Guarantor, and Wilmington Trust Company, as Trustee, dated as of
October 1, 1996.
4-V - Amended and Restated Trust Agreement between Delmarva Power &
Light Company, as Depositor, and Wilmington Trust Company,
Barbara S. Graham, Edric R. Mason and Donald P. Connelly, as
Trustees, dated as of October 1, 1996.
4-W - Agreement as to Expenses and Liabilities dated as of October 1,
1996, between Delmarva Power & Light Company and Delmarva Power
Financing I.
5-A - Opinion of Dale G. Stoodley, General Counsel for the Company.
5-B - Opinion of Peter F. Clark, Assistant General Counsel for the
Company.
23-A - Consent of Coopers & Lybrand L.L.P.
23-B - Consents of Mr. Stoodley and Mr. Clark are included in their
respective opinions filed as Exhibits 5-A and 5-B, respectively.
24 - Power of Attorney (see page II-9).
_____________________
* Incorporated by reference pursuant to Rule 411.
II-6
<PAGE>
ITEM 9. UNDERTAKINGS.
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 of 1933;
(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;
(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 (i) and (ii) do not apply
if the registration statement is on Form S-3 or Form S-8 and
the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic
reports filed by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, 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-7
<PAGE>
(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 of 1933, 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
of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-8
<PAGE>
POWER OF ATTORNEY
Each person whose signature appears below and on the
following page hereby authorizes any agent for service named in this
registration statement to execute in the name of each such person, and to
file with the Securities and Exchange Commission, any and all amendments,
including post-effective amendments, to this registration statement which
amendments may make such changes in this registration statement as the
registrant deems appropriate, and appoints such agent for service as
attorney-in-fact to sign in each such person's behalf individually and in
each capacity stated below and file any such amendments to the registration
statement and the registrant hereby also appoints each such agent for
service as its attorney-in-fact with like authority to sign and file any
such amendments in its name and behalf.
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the
Securities Act of 1933, the registrant certifies that it has reasonable
grounds to believe that it meets all of the requirements for filing on Form
S-8 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 January 30, 1997.
DELMARVA POWER & LIGHT COMPANY
(Registrant)
By /s/ B.S. Graham
---------------------------------
Barbara S. Graham
Senior Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in
the capacities and on the date indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ H.E. Cosgrove Chairman of the Board, January 30, 1997
------------------- President, Chief Executive
(H. E. Cosgrove) Officer and Director
(Principal Executive
Officer)
II-9
<PAGE>
SIGNATURE TITLE DATE
--------- ----- ----
/s/ B.S. Graham Senior Vice President and January 30, 1997
------------------------ Chief Financial Officer
(B. S. Graham) (Principal Financial
Officer)
/s/ James P. Lavin Comptroller and Chief January 30, 1997
------------------------ Accounting
(James P. Lavin) Officer (Principal
Accounting Officer)
/s/ Michael G. Abercrombie Director January 30, 1997
---------------------------
(Michael G. Abercrombie)
/s/ R. Franklin Bulotti Director January 30, 1997
------------------------
(R. Franklin Balotti)
/s/ Robert D. Burris Director January 30, 1997
------------------------
(Robert D. Burris)
/s/ Audrey K. Doberstein Director January 30, 1997
-------------------------
(Audrey K. Doberstein)
/s/ Michael B. Emery Director January 30, 1997
------------------------
(Michael B. Emery)
/s/ James H. Gilliam, Jr. Director January 30, 1997
-------------------------
(James H. Gilliam, Jr.)
/s/ Sarah I. Gore Director January 30, 1997
-------------------------
(Sarah I. Gore)
/s/ James C. Johnson, III Director January 30, 1997
-------------------------
(James C. Johnson, III)
/s/ Weston E. Nellius Director January 30, 1997
-------------------------
(Weston E. Nellius)
II-10
<PAGE>
EXHIBIT INDEX
Exhibit Description
------- -----------
4-A - A copy of the Company's Restated Certificate and Articles of
Incorporation effective as of April 12, 1990, (filed with
Registration No. 33-50453).*
4-B - A copy of the Company's Certificate of Designation and Articles
of Amendment establishing the 7-3/4% Preferred Stock--$25 Par
(filed with Registration No. 33-50453).*
4-C - A copy of the Company's Certificate of Designation and Articles
of Amendment establishing the 6-3/4% Preferred Stock (filed with
Form 10-K for the year ended December 31, 1993).*
4-D - A copy of the Company's Certificate of Amendment of Restated
Certificate and Articles of Incorporation filed with the Delaware
Secretary of State, effective as of June 7, 1996 (filed with
Registration No. 333-07281).*
4-E - A copy of the Company's Articles of Amendment of Restated
Certificate and Articles of Incorporation filed with the Virginia
State Corporation Commission, effective as of June 7, 1996 (filed
with Registration No. 333-07281).*
4-F - A copy of the Company's Bylaws as amended February 29, 1996
(filed with Registration No. 333-07281).*
4-G - A copy of the Mortgage and Deed of Trust from the Company to The
New York Trust Company as Trustee, dated as of October 1, 1943,
and copies of the First through Sixty-Eighth Supplemental
Indentures thereto (filed with Registration No. 33-1763).*
4-H - A copy of the Sixty-Ninth Supplemental Indenture (filed with
Registration No. 33-39756).*
4-I - Copies of the Seventieth through Seventy-Fourth Supplemental
Indentures (filed with Registration No. 33-24955).*
4-J - Copies of the Seventy-Fifth through Seventy-Seventh Supplemental
Indentures (filed with Registration No. 33-39756).*
4-K - A copy of the Seventy-Eighth and Seventy-Ninth Supplemental
Indentures (filed with Registration No. 33-46892).*
4-L - A copy of the Eightieth Supplemental Indenture (filed with
Registration No. 33-49750).*
4-M - A copy of the Eighty-First Supplemental Indenture (filed with
Registration No. 33-57652).*
4-N - A copy of the Eighty-Second Supplemental Indenture (filed with
Registration No. 33-63582).*
4-0 - A copy of the Eighty-Third Supplemental Indenture (filed with
Registration No. 33-50453).*
4-P - Copies of the Eighty-Fourth through Eighty-Eighth Supplemental
Indentures (filed with Registration No. 33-53855).*
4-Q - Copies of the Eighty-Ninth and Ninetieth Supplemental Indentures
(filed with Registration No. 333-00505).*
4-R - Indenture between the Company and Chase Manhattan Bank (ultimate
successor to Manufacturers Hanover Trust Company), as Trustee,
dated as of November 1, 1988 (filed with Registration No. 33-
46892).*
4-S - Indenture (for Unsecured Subordinated Debt Securities relating to
Trust Securities) between the Company and Wilmington Trust
Company, as Trustee, dated as of October 1, 1996.
4-T - Officer's Certificate dated October 3, 1996, establishing the
8.125% Junior Subordinated Debentures, Series I, Due 2036.
4-U - Guarantee Agreement between Delmarva Power & Light Company, as
Guarantor, and Wilmington Trust Company, as Trustee, dated as of
October 1, 1996.
4-V - Amended and Restated Trust Agreement between Delmarva Power &
Light Company, as Depositor, and Wilmington Trust Company,
Barbara S. Graham, Edric R. Mason and Donald P. Connelly, as
Trustees, dated as of October 1, 1996.
4-W - Agreement as to Expenses and Liabilities dated as of October 1,
1996, between Delmarva Power & Light Company and Delmarva Power
Financing I.
5-A - Opinion of Dale G. Stoodley, General Counsel for the Company.
5-B - Opinion of Peter F. Clark, Assistant General Counsel for the
Company.
23-A - Consent of Coopers & Lybrand L.L.P.
23-B - Consents of Mr. Stoodley and Mr. Clark are included in their
respective opinions filed as Exhibits 5-A and 5-B, respectively.
24 - Power of Attorney (see page II-9).
_____________________
* Incorporated by reference pursuant to Rule 411.
__________________________________________
DELMARVA POWER & LIGHT COMPANY
TO
WILMINGTON TRUST COMPANY
TRUSTEE
_________
INDENTURE
(FOR UNSECURED SUBORDINATED DEBT SECURITIES
RELATING TO TRUST SECURITIES)
DATED AS OF OCTOBER 1, 1996
__________________________________________
<PAGE>
TABLE OF CONTENTS
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITAL OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
Definitions and Other Provisions of General Application . . . . . . . . 1
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Additional Interest . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . 2
Authorized Officer . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Company Request" or "Company Order" . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . . 3
corporation . . . . . . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . 3
"Dollar" or "$" . . . . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . . . 3
Governmental Authority . . . . . . . . . . . . . . . . . . . 3
Government Obligations . . . . . . . . . . . . . . . . . . . 3
Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . . . . . . . . . 4
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Officer's Certificate . . . . . . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . 4
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . 4
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . 5
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Place of Payment . . . . . . . . . . . . . . . . . . . . . . 5
Predecessor Security . . . . . . . . . . . . . . . . . . . . 5
Preferred Securities . . . . . . . . . . . . . . . . . . . . 6
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . 6
Redemption Price . . . . . . . . . . . . . . . . . . . . . . 6
Regular Record Date . . . . . . . . . . . . . . . . . . . . . 6
NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE
PART OF THE INDENTURE.
<PAGE>
Responsible Officer . . . . . . . . . . . . . . . . . . . . . 6
Securities . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Security Register" and "Security Registrar" . . . . . . . . 6
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . 6
Special Record Date . . . . . . . . . . . . . . . . . . . . . 6
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . 6
Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trust Agreement . . . . . . . . . . . . . . . . . . . . . . . 7
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . 7
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
United States . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 102. Compliance Certificates and Opinions . . . . . . . . 7
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . 8
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . . . 9
SECTION 105. Notices, etc. to Trustee and Company . . . . . . . . 10
SECTION 106. Notice to Holders of Securities; Waiver . . . . . . 11
SECTION 107. Conflict with Trust Indenture Act . . . . . . . . . 12
SECTION 108. Effect of Headings and Table of Contents . . . . . . 12
SECTION 109. Successors and Assigns . . . . . . . . . . . . . . . 12
SECTION 110. Separability Clause . . . . . . . . . . . . . . . . 12
SECTION 111. Benefits of Indenture . . . . . . . . . . . . . . . 12
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . . . 12
SECTION 113. Legal Holidays . . . . . . . . . . . . . . . . . . . 13
ARTICLE TWO
Security Forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . 13
SECTION 202. Form of Trustee's Certificate of Authentication . . 14
ARTICLE THREE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
The Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . 14
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . 17
SECTION 303. Execution, Authentication, Delivery and Dating . . . 18
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . 19
SECTION 305. Registration, Registration of Transfer and Exchange 20
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities . . 21
SECTION 307. Payment of Interest; Interest Rights Preserved . . . 22
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . 23
SECTION 309. Cancellation by Security Registrar . . . . . . . . . 23
SECTION 310. Computation of Interest . . . . . . . . . . . . . . 24
SECTION 311. Extension of Interest Payment . . . . . . . . . . . 24
SECTION 312. Additional Interest. . . . . . . . . . . . . . . . . 24
NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE
PART OF THE INDENTURE.
<PAGE>
ARTICLE FOUR
Redemption of Securities . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 401. Applicability of Article . . . . . . . . . . . . . . 25
SECTION 402. Election to Redeem; Notice to Trustee . . . . . . . 25
SECTION 403. Selection of Securities to Be Redeemed . . . . . . . 25
SECTION 404. Notice of Redemption . . . . . . . . . . . . . . . . 26
SECTION 405. Securities Payable on Redemption Date . . . . . . . 27
SECTION 406. Securities Redeemed in Part . . . . . . . . . . . . 27
ARTICLE FIVE
Sinking Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 501. Applicability of Article . . . . . . . . . . . . . . 28
SECTION 502. Satisfaction of Sinking Fund Payments with Securities 28
SECTION 503. Redemption of Securities for Sinking Fund . . . . . 28
ARTICLE SIX
Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 601. Payment of Principal, Premium and Interest . . . . . 29
SECTION 602. Maintenance of Office or Agency . . . . . . . . . . 29
SECTION 603. Money for Securities Payments to Be Held in Trust . 30
SECTION 604. Corporate Existence . . . . . . . . . . . . . . . . 31
SECTION 605. Maintenance of Properties . . . . . . . . . . . . . 31
SECTION 606. Annual Officer's Certificate as to Compliance. . . . 32
SECTION 607. Waiver of Certain Covenants . . . . . . . . . . . . 32
SECTION 608. Restriction on Payment of Dividends . . . . . . . . 32
SECTION 609. Maintenance of Trust Existence . . . . . . . . . . . 33
ARTICLE SEVEN
Satisfaction and Discharge . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 701. Defeasance . . . . . . . . . . . . . . . . . . . . . 33
SECTION 702. Satisfaction and Discharge of Indenture . . . . . . 36
SECTION 703. Application of Trust Money . . . . . . . . . . . . . 36
ARTICLE EIGHT
Events of Default; Remedies . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 801. Events of Default . . . . . . . . . . . . . . . . . 37
SECTION 802. Acceleration of Maturity; Rescission and Annulment . 38
SECTION 803. Collection of Indebtedness and Suits for Enforcement
by Trustee . . . . . . . . . . . . . . . . . . . . . 40
SECTION 804. Trustee May File Proofs of Claim . . . . . . . . . . 40
SECTION 805. Trustee May Enforce Claims Without Possession of
Securities . . . . . . . . . . . . . . . . . . . . . 41
NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE
PART OF THE INDENTURE.
<PAGE>
SECTION 806. Application of Money Collected . . . . . . . . . . . 41
SECTION 807. Limitation on Suits . . . . . . . . . . . . . . . . 42
SECTION 808. Unconditional Right of Holders to Receive Principal,
Premium and Interest . . . . . . . . . . . . . . . 43
SECTION 809. Restoration of Rights and Remedies . . . . . . . . . 43
SECTION 810. Rights and Remedies Cumulative . . . . . . . . . . . 43
SECTION 811. Delay or Omission Not Waiver . . . . . . . . . . . . 43
SECTION 812. Control by Holders of Securities . . . . . . . . . . 44
SECTION 813. Waiver of Past Defaults . . . . . . . . . . . . . . 44
SECTION 814. Undertaking for Costs . . . . . . . . . . . . . . . 44
SECTION 815. Waiver of Stay or Extension Laws . . . . . . . . . . 45
ARTICLE NINE
The Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 901. Certain Duties and Responsibilities . . . . . . . . 45
SECTION 902. Notice of Defaults . . . . . . . . . . . . . . . . . 46
SECTION 903. Certain Rights of Trustee . . . . . . . . . . . . . 47
SECTION 904. Not Responsible for Recitals or Issuance of . . . .
Securities. . . . . . . . . . . . . . . . . . . . . 48
SECTION 905. May Hold Securities . . . . . . . . . . . . . . . . 48
SECTION 906. Money Held in Trust . . . . . . . . . . . . . . . . 48
SECTION 907. Compensation and Reimbursement . . . . . . . . . . . 48
SECTION 908. Disqualification; Conflicting Interests. . . . . . . 49
SECTION 909. Corporate Trustee Required; Eligibility . . . . . . 50
SECTION 910. Resignation and Removal; Appointment of Successor . 50
SECTION 911. Acceptance of Appointment by Successor . . . . . . . 52
SECTION 912. Merger, Conversion, Consolidation or Succession to .
Business . . . . . . . . . . . . . . . . . . . . . 53
SECTION 913. Preferential Collection of Claims Against Company . 54
SECTION 914. Co-trustees and Separate Trustees. . . . . . . . . . 54
SECTION 915. Appointment of Authenticating Agent . . . . . . . . 55
ARTICLE TEN
Holders' Lists and Reports by Trustee and Company . . . . . . . . . . . 57
SECTION 1001. Lists of Holders . . . . . . . . . . . . . . . . . 57
SECTION 1002. Reports by Trustee . . . . . . . . . . . . . . . . 58
SECTION 1003. Reports to the Trustee . . . . . . . . . . . . . . 58
ARTICLE ELEVEN
Consolidation, Merger, Conveyance or Other Transfer . . . . . . . . . 58
SECTION 1101. Company May Consolidate, etc., Only on Certain Terms
58
SECTION 1102. Successor Corporation Substituted . . . . . . . . . 59
NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE
PART OF THE INDENTURE.
<PAGE>
ARTICLE TWELVE
Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 1201. Supplemental Indentures Without Consent of Holders 59
SECTION 1202. Supplemental Indentures With Consent of Holders . . 61
SECTION 1203. Execution of Supplemental Indentures . . . . . . . 62
SECTION 1204. Effect of Supplemental Indentures . . . . . . . . . 63
SECTION 1205. Conformity With Trust Indenture Act . . . . . . . . 63
SECTION 1206. Reference in Securities to Supplemental Indentures 63
SECTION 1207. Modification Without Supplemental Indenture . . . . 63
ARTICLE THIRTEEN
Meetings of Holders; Action Without Meeting . . . . . . . . . . . . . . 64
SECTION 1301. Purposes for Which Meetings May Be Called . . . . . 64
SECTION 1302. Call, Notice and Place of Meetings . . . . . . . . 64
SECTION 1303. Persons Entitled to Vote at Meetings . . . . . . . 65
SECTION 1304. Quorum; Action . . . . . . . . . . . . . . . . . . 65
SECTION 1305. Attendance at Meetings; Determination of Voting Rights;
Conduct and Adjournment of Meetings . . . . . . . . 66
SECTION 1306. Counting Votes and Recording Action of Meetings . . 67
SECTION 1307. Action Without Meeting . . . . . . . . . . . . . . 67
ARTICLE FOURTEEN
Immunity of Incorporators, Stockholders, Officers and Directors . . . . 67
SECTION 1401. Liability Solely Corporate . . . . . . . . . . . . 67
ARTICLE FIFTEEN
Subordination of Securities . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 1501. Securities Subordinate to Senior Indebtedness. . . 68
SECTION 1502. Payment Over of Proceeds of Securities . . . . . . 68
SECTION 1503. Disputes with Holders of Certain Senior . . . . . .
Indebtedness . . . . . . . . . . . . . . . . . . . 70
SECTION 1504. Subrogation . . . . . . . . . . . . . . . . . . . . 71
SECTION 1505. Obligation of the Company Unconditional . . . . . . 71
SECTION 1506. Priority of Senior Indebtedness Upon Maturity . . . 71
SECTION 1507. Trustee as Holder of Senior Indebtedness . . . . . 72
SECTION 1508. Notice to Trustee to Effectuate Subordination . . . 72
SECTION 1509. Modification, Extension, etc. of Senior Indebtedness 72
SECTION 1510. Trustee Has No Fiduciary Duty to Holders of Senior
Indebtedness . . . . . . . . . . . . . . . . . . . 73
SECTION 1511. Paying Agents Other Than the Trustee . . . . . . . 73
SECTION 1512. Rights of Holders of Senior Indebtedness Not
Impaired . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 1513. Effect of Subordination Provisions; Termination . . 73
NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE
PART OF THE INDENTURE.
< Page>
Testimonium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Signatures and Seals . . . . . . . . . . . . . . . . . . . . . . . . . 74
Acknowledgements . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE
PART OF THE INDENTURE.
<PAGE>
DELMARVA POWER & LIGHT COMPANY
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF OCTOBER 1, 1996
TRUST INDENTURE ACT SECTION INDENTURE SECTION
SECTION 310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . 909
(a)(2) . . . . . . . . . . . . . . . . . . . . . . 909
(a)(3) . . . . . . . . . . . . . . . . . . . . . . 914
(a)(4) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . 908
910
SECTION 311 (a) . . . . . . . . . . . . . . . . . . . . . . . 913
(b) . . . . . . . . . . . . . . . . . . . . . . . 913
(c) . . . . . . . . . . . . . . . . . . . . . . . 913
SECTION 312 (a) . . . . . . . . . . . . . . . . . . . . . . . 1001
(b) . . . . . . . . . . . . . . . . . . . . . . . 1001
(c) . . . . . . . . . . . . . . . . . . . . . . . 1001
SECTION 313 (a) . . . . . . . . . . . . . . . . . . . . . . . 1002
(b) . . . . . . . . . . . . . . . . . . . . . . . 1002
(c) . . . . . . . . . . . . . . . . . . . . . . . 1002
SECTION 314 (a) . . . . . . . . . . . . . . . . . . . . . . . 1003
(a)(4) . . . . . . . . . . . . . . . . . . . . . . 606
(b) . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . 102
SECTION 315 (a) . . . . . . . . . . . . . . . . . . . . . . . 901
903
(b) . . . . . . . . . . . . . . . . . . . . . . . 902
(c) . . . . . . . . . . . . . . . . . . . . . . . 901
(d) . . . . . . . . . . . . . . . . . . . . . . . 901
(e) . . . . . . . . . . . . . . . . . . . . . . . 814
SECTION 316 (a) . . . . . . . . . . . . . . . . . . . . . . . 812
813
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . 802
812
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . 813
(a)(2) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . 808
SECTION 317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . 803
(a)(2) . . . . . . . . . . . . . . . . . . . . . . 804
(b) . . . . . . . . . . . . . . . . . . . . . . . 603
SECTION 318 (a) . . . . . . . . . . . . . . . . . . . . . . . 107
INDENTURE, dated as of October 1, 1996, between DELMARVA POWER &
LIGHT COMPANY, a corporation duly organized and existing under the laws of
the States of Delaware and Virginia (herein called the "Company"), having
its principal office at 800 King Street, Wilmington, Delaware 19899, and
WILMINGTON TRUST COMPANY, a corporation of the State of Delaware, having
its principal corporate trust office at Rodney Square North, 1100 North
Market Street, Wilmington, Delaware 19890, as Trustee (herein called the
"Trustee").
RECITAL 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 its
unsecured subordinated debentures, notes or other evidences of indebtedness
(herein called the "Securities"), in an unlimited aggregate principal
amount to be issued in one or more series as contemplated herein; and all
acts necessary to make this Indenture a valid agreement of the Company have
been performed.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires, capitalized terms used
herein shall have the meanings assigned to them in Article One of this
Indenture.
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 or
of any series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as
the singular;
(b) all terms used herein without definition which are
defined in the Trust Indenture Act, either directly or by reference
therein, have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted
accounting principles in the United States, and, except as
otherwise herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are
generally accepted in the United States 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 account-
ing principles applicable to the Company, the Company shall, to the
extent required, conform to any order, rule or regulation of any
administrative agency, regulatory authority or other governmental
body having jurisdiction over the Company; and
(d) 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.
Certain terms, used principally in Article Nine, are defined
in that Article.
"ACT", when used with respect to any Holder of a Security, has
the meaning specified in Section 104.
"ADDITIONAL INTEREST" has the meaning specified in Section
312.
"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 through one or more intermediaries, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"CONTROLLING" and "CONTROLLED" have meanings correlative to the foregoing.
"AUTHENTICATING AGENT" means any Person (other than the
Company or an Affiliate of the Company) authorized by the Trustee pursuant
to Section 915 to act on behalf of the Trustee to authenticate one or more
series of Securities.
"AUTHORIZED OFFICER" means the Chairman of the Board, the
President, any Vice President, the Treasurer, any Assistant Treasurer, or
any other officer or agent of the Company duly authorized by the Board of
Directors to act in respect of matters relating to this Indenture.
"BOARD OF DIRECTORS" means either the board of directors of
the Company or any committee thereof duly authorized to act in respect of
matters relating to this Indenture.
"BOARD RESOLUTION" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"BUSINESS DAY", when used with respect to a Place of Payment
or any other particular location specified in the Securities or this
Indenture, means any day, other than a Saturday or Sunday, which is not a
day on which banking institutions or trust companies in such Place of
Payment or other location are generally authorized or required by law,
regulation or executive order to remain closed, except as may be otherwise
specified as contemplated by Section 301.
"COMMISSION" 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 execution and
delivery of this Indenture such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body,
if any, performing such duties at such time.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request
or order signed in the name of the Company by an Authorized Officer and de-
livered to the Trustee.
"CORPORATE TRUST OFFICE" means the office of the Trustee at
which at any particular time its corporate trust business shall be
principally administered, which office at the date of execution and
delivery of this Indenture is located at Rodney Square North, 1100 North
Market Street, Wilmington, Delaware 19890-0001, Attention: Corporate Trust
Office.
"CORPORATION" means a corporation, association, company, joint
stock company or business trust.
"DEFAULTED INTEREST" has the meaning specified in Section 307.
"DOLLAR" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States as at the time shall be legal
tender for the payment of public and private debts.
"EVENT OF DEFAULT" has the meaning specified in Section 801.
"GOVERNMENTAL AUTHORITY" means the government of the United
States or of any State or Territory thereof or of the District of Columbia
or of any county, municipality or other political subdivision of any of the
foregoing, or any department, agency, authority or other instrumentality of
any of the foregoing.
"GOVERNMENT OBLIGATIONS" means:
(a) direct obligations of, or obligations the
principal of and interest on which are
unconditionally guaranteed by, the United States and
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 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
payments and shall not be permitted to make any
deduction therefrom.
"GUARANTEE" means the guarantee agreement delivered
from the Company to a Trust, for the benefit of the
holders of Preferred Securities issued by such Trust.
"HOLDER" means a Person in whose name a Security is
registered in the Security Register.
"INDENTURE" means this instrument as originally
executed and delivered and as it may from time to time be
supplemented or amended by one or more indentures
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 301.
"INTEREST PAYMENT DATE", when used with respect to
any Security, means the Stated Maturity of an installment
of interest on such Security.
"MATURITY", when used with respect to any Security,
means the date on which the principal of such Security or
an installment of principal becomes due and payable as
provided in such Security or in this Indenture, whether at
the Stated Maturity, by declaration of acceleration, upon
call for redemption or otherwise.
"OFFICER'S CERTIFICATE" means a certificate signed by
an Authorized Officer and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of
counsel, who may be counsel for the Company, or other
counsel acceptable to the Trustee.
"OUTSTANDING", when used with respect to Securities,
means, as of the date of determination, all Securities
theretofore authenticated and delivered under this
Indenture, except:
(a) Securities theretofore canceled by the
Trustee or delivered to the Trustee for cancellation;
(b) Securities deemed to have been paid in
accordance with Section 701; and
(c) Securities which have been paid pursuant to
Section 306 or in exchange for or in lieu of which
other Securities have been authenticated and
delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to
it and the Company that such Securities are held by a
bona fide purchaser or purchasers in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether or not the
Holders of the requisite principal amount of the
Securities Outstanding under this Indenture, or the
Outstanding Securities of any series, have given any
request, demand, authorization, direction, notice,
consent or waiver hereunder or whether or not a quorum is
present at a meeting of Holders of Securities, Securities
owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such
other obligor (unless the Company, such Affiliate or such
obligor owns all Securities Outstanding under this
Indenture, or all Outstanding Securities of each such
series, as the case may be, determined without regard to
this provision) shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice,
consent or waiver or upon any such determination as to
the presence of a quorum, only Securities which the
Trustee knows to be 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 the pledgee establishes to the satisfaction of the
Trustee the pledgee's 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 of such other obligor; and provided,
further, that, in the case of any Security the principal
of which is payable from time to time without presentment
or surrender, the principal amount of such Security that
shall be deemed to be Outstanding at any time for all
purposes of this Indenture shall be the original
principal amount thereof less the aggregate amount of
principal thereof theretofore paid.
"PAYING AGENT" means any Person, including the
Company, authorized by the Company to pay the principal
of, and premium, if any, or interest, if any, on any
Securities on behalf of the Company.
"PERSON" means any individual, corporation,
partnership, joint venture, trust or unincorporated
organization or any Governmental Authority.
"PLACE OF PAYMENT", when used with respect to the
Securities of any series, means the place or places,
specified as contemplated by Section 301, at which,
subject to Section 602, principal of and premium, if any,
and interest, if any, on the Securities of such series are
payable.
"PREDECESSOR SECURITY" of any particular Security
means every previous Security evidencing all or a portion
of the same debt as that evidenced by such particular
Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or
stolen Security shall be deemed (to the extent lawful) to
evidence the same debt as the mutilated, destroyed, lost
or stolen Security.
"PREFERRED SECURITIES" means any preferred trust
interests issued by a Trust or similar securities issued
by permitted successors to such Trust in accordance with
the Trust Agreement pertaining to such Trust.
"REDEMPTION DATE", when used with respect to any
Security to be redeemed, means the date fixed for such
redemption by or pursuant to this Indenture.
"REDEMPTION PRICE", when used with respect to any
Security to be redeemed, means the price at which it is to
be redeemed pursuant to this Indenture.
"REGULAR RECORD DATE" for the interest payable on any
Interest Payment Date on the Securities of any series
means the date specified for that purpose as contemplated
by Section 301.
"RESPONSIBLE OFFICER", when used with respect to the
Trustee, means any officer of the Trustee assigned by the
Trustee to administer its corporate trust matters.
"SECURITIES" has the meaning stated in the first
recital of this Indenture and more particularly means any
securities authenticated and delivered under this
Indenture.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the
respective meanings specified in Section 305.
"SENIOR INDEBTEDNESS" means all obligations (other
than non-recourse obligations and the indebtedness issued
under this Indenture) of, or guaranteed or assumed by, the
Company for borrowed money, including both senior and
subordinated indebtedness for borrowed money (other than
the Securities), or for the payment of money relating to
any lease which is capitalized on the consolidated balance
sheet of the Company and its subsidiaries in accordance
with generally accepted accounting principles as in effect
from time to time, or evidenced by bonds, debentures,
notes or other similar instruments, and in each case,
amendments, renewals, extensions, modifications and
refundings of any such indebtedness or obligations,
whether existing as of the date of this Indenture or
subsequently incurred by the Company unless, in the case
of any particular indebtedness, renewal, extension or
refunding, the instrument creating or evidencing the same
or the assumption or guarantee of the same expressly
provides that such indebtedness, renewal, extension or
refunding is not superior in right of payment to or is
pari passu with the Securities; provided that the
Company's obligations under the Guarantee shall not be
deemed to be Senior Indebtedness.
"SPECIAL RECORD DATE" for the payment of any
Defaulted Interest on the Securities of any series means a
date fixed by the Trustee pursuant to Section 307.
"STATED MATURITY", when used with respect to any
obligation or any installment of principal thereof or
interest thereon, means the date on which the principal of
such obligation or such installment of principal or
interest is stated to be due and payable (without regard
to any provisions for redemption, prepayment,
acceleration, purchase or extension).
"TRUST" means Delmarva Power Financing I, a statutory
business trust created under the laws of the State of
Delaware, or any other Trust designated pursuant to
Section 301 hereof or any permitted successor under the
Trust Agreement pertaining to such Trust.
"TRUST AGREEMENT" means the Amended and Restated
Trust Agreement, dated as of October 1, 1996, relating to
Delmarva Power Financing I or an Amended and Restated
Trust Agreement relating to a Trust designated pursuant to
Section 301 hereof, in each case, among the Company, as
Depositor, the trustees named therein and several holders
referred to therein as they may be amended from time to
time.
"TRUST INDENTURE ACT" means, as of any time, the
Trust Indenture Act of 1939, or any successor statute, as
in effect at such time.
"TRUSTEE" means the Person named as the "Trustee" in
the first paragraph of this Indenture until a successor
Trustee shall have become such with respect to one or more
series of Securities pursuant to the applicable provisions
of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any
series shall mean the Trustee with respect to Securities
of that series.
"UNITED STATES" means the United States of America,
its Territories, its possessions and other areas subject
to its political jurisdiction.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided in this Indenture, upon
any application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall, if requested by
the Trustee, furnish to the Trustee an Officer's Certificate stating that
all conditions precedent, if any, provided for in this Indenture relating
to the proposed action (including any covenants compliance with which
constitutes a condition precedent) have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any
such application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion
need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each Person signing such certificate or
opinion has read such covenant or condition and the definitions
herein relating thereto;
(b) 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;
(c) a statement that, in the opinion of each such Person,
such Person has made such examination or investigation as is
necessary to enable such Person to express an informed opinion as
to whether or not such covenant or condition has been complied
with; and
(d) a statement as to whether, in the opinion of each such
Person, such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only
one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect
to some matters and one or more other such Persons as to other matters, and
any such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or
in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to the matters upon which such
Officer's Certificate or opinion are based are erroneous. Any such
certificate or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by,
an officer or officers of the Company stating that the information with
respect to such factual matters is in the possession of the Company, unless
such counsel knows, or in the exercise of reasonable care should know, that
the certificate or opinion or representations with respect to such matters
are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions
or other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
Whenever, subsequent to the receipt by the Trustee of any
Board Resolution, Officer's Certificate, Opinion of Counsel or other
document or instrument, a clerical, typographical or other inadvertent or
unintentional error or omission shall be discovered therein, a new document
or instrument may be substituted therefor in corrected form with the same
force and effect as if originally filed in the corrected form and,
irrespective of the date or dates of the actual execution and/or delivery
thereof, such substitute document or instrument shall be deemed to have
been executed and/or delivered as of the date or dates required with
respect to the document or instrument for which it is substituted.
Anything in this Indenture to the contrary notwithstanding, if any such
corrective document or instrument indicates that action has been taken by
or at the request of the Company which could not have been taken had the
original document or instrument not contained such error or omission, the
action so taken shall not be invalidated or otherwise rendered ineffective
but shall be and remain in full force and effect, except to the extent that
such action was a result of willful misconduct or bad faith. Without
limiting the generality of the foregoing, any Securities issued under the
authority of such defective document or instrument shall nevertheless be
the valid obligations of the Company entitled to the benefits of this
Indenture equally and ratably with all other Outstanding Securities, except
as aforesaid.
SECTION 104. 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 voting in favor thereof, either
in person or by proxies duly appointed in writing, at any meeting
of Holders duly called and held in accordance with the provisions
of Article Thirteen, 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
instrument 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 901) 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 1306.
(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 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.
(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 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 authenticated and
delivered by the Trustee in exchange for Outstanding Securities of
such series.
(g) If the Company shall solicit from Holders any request,
demand, authorization, direction, notice, consent, waiver or other
Act, the Company may, at its option, fix in advance a record date
for the determination of Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other
Act, but the Company shall have no obligation to do so. If such a
record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act 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 whether Holders of the requisite
proportion of the Outstanding Securities have authorized or agreed
or consented to such request, demand, authorization, direction,
notice, consent, waiver or other Act, and for that purpose the
Outstanding Securities shall be computed as of the record date.
SECTION 105. NOTICES, ETC. TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice,
consent, election, waiver or Act of Holders or other document provided or
permitted by this Indenture to be made upon, given or furnished to, or
filed with, the Trustee by any Holder or by the Company, or the Company by
the Trustee or by any Holder, shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in writing and
delivered personally to an officer or other responsible employee of the
addressee, or transmitted by facsimile transmission or other direct written
electronic means to such telephone number or other electronic
communications address as the parties hereto shall from time to time
designate, or transmitted by certified or registered mail, charges prepaid,
to the applicable address set opposite such party's name below or to such
other address as either party hereto may from time to time designate:
If to the Trustee, to:
Wilmington Trust Company
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
Telephone: (302) 651-1000
Telecopy: (302) 651-8882
If to the Company, to:
Delmarva Power & Light Company
800 King Street
Wilmington, Delaware 19899
Attention: Treasurer
Telephone: (302) 429-3011
Telecopy: (302) 429-3367
Any communication contemplated herein shall be deemed to have
been made, given, furnished and filed if personally delivered, on the date
of delivery, if transmitted by facsimile transmission or other direct
written electronic means, on the date of transmission, and if transmitted
by registered mail, on the date of receipt.
SECTION 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided herein, where this
Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given, and shall be deemed given, to Holders if in writing and
mailed, first-class postage prepaid, to each Holder affected by such event,
at the address of such Holder as it appears in the Security Register, not
later than the latest date, if any, and not earlier than the earliest date,
if any, prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice
to Holders by mail, then such notification as shall be made with the
<PAGE>
approval of the Trustee shall constitute a sufficient notification for
every purpose hereunder. In any case where notice to Holders is given by
mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders.
Any notice required by this Indenture may be waived in writing
by the Person entitled to receive such notice, either before or after the
event otherwise to be specified therein, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed
with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision of this Indenture limits, qualifies or
conflicts with another provision hereof which is required or deemed to be
included in this Indenture by, or is otherwise governed by, any of the
provisions of the Trust Indenture Act, such other provision shall control;
and if any provision hereof otherwise conflicts with the Trust Indenture
Act, the Trust Indenture Act shall control.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings in this Indenture and the
Table of Contents are for convenience only and shall not affect the
construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company
and Trustee shall bind their respective successors and assigns, whether so
expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or the Securities, express or
implied, shall give to any Person, other than the parties hereto, their
successors hereunder, the Holders and, so long as the notice described in
Section 1513 hereof has not been given, the holders of Senior Indebtedness,
any benefit or any legal or equitable right, remedy or claim under this
Indenture; provided, however, that if the Property Trustee fails to enforce
its rights with respect to the Securities or the related Trust Agreement, a
holder of Preferred Securities may institute a legal proceeding directly
against the Company to enforce the Property Trustee's rights with respect
to the Securities or such Trust Agreement, to the fullest extent permitted
by law, without first instituting any legal proceeding against the Property
Trustee or any other person or entity.
SECTION 112. GOVERNING LAW.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York, without
regard to conflict of laws principles, except to the extent that the law of
any other jurisdiction shall be mandatorily applicable.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Security shall not be a Business Day at any Place
of Payment, then (notwithstanding any other provision of this Indenture or
of the Securities other than a provision in Securities of any series, or in
the Board Resolution or Officer's Certificate which establishes the terms
of the Securities of such series, which specifically states that such
provision shall apply in lieu of this Section) payment of interest or
principal and premium, if any, need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day at such
Place of Payment, except that if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect, and in
the same amount, as if made on the Interest Payment Date or Redemption
Date, or at the Stated Maturity, as the case may be, and, if such payment
is made or duly provided for on such Business Day, no interest shall accrue
on the amount so payable for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the case may be, to
such Business Day.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The definitive Securities of each series shall be in
substantially the form or forms thereof established in the indenture
supplemental hereto establishing such series or in a Board Resolution
establishing such series, or in an Officer's Certificate pursuant to such
supplemental indenture or Board Resolution, in each case with such
appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities. If the form or forms of Securities of any series are
established in a Board Resolution or in an Officer's Certificate pursuant
to a Board Resolution, such Board Resolution and Officer's Certificate, if
any, shall be delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 303 for the authentication and
delivery of such Securities.
Unless otherwise specified as contemplated by Section 301, the
Securities of each series shall be issuable in registered form without
coupons. The definitive Securities shall be produced in such manner as
shall be determined by the officers executing such Securities, as evidenced
by their execution thereof.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be in
substantially the form set forth below:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
_________________________________
as Trustee
By: _____________________________
Authorized Signatory
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited; provided,
however, that all Securities shall be issued to a Trust in exchange for
securities of the Company or to evidence loans by a Trust of the proceeds
of the issuance of Preferred Securities of such Trust plus the amount
deposited by the Company with such Trust from time to time.
The Securities may be issued in one or more series. Prior to
the authentication and delivery of Securities of any series there shall be
established by specification in a supplemental indenture or in a Board
Resolution, or in an Officer's Certificate pursuant to a supplemental
indenture or a Board Resolution:
(a) the title of the Securities of such series (which shall
distinguish the Securities of such series from Securities of all
other series);
(b) any limit upon the aggregate principal amount of the
Securities of such 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 such series pursuant to Section
304, 305, 306, 406 or 1206 and except for any Securities which,
pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(c) the Person or Persons (without specific identification)
to whom interest on Securities of such series shall be payable on
any Interest Payment Date, if other than the Persons in whose names
such Securities (or one or more Predecessor Securities) are
registered at the close of business on the Regular Record Date for
such interest;
(d) the date or dates on which the principal of the
Securities of such series is payable or any formulary or other
method or other means by which such date or dates shall be
determined, by reference or otherwise (without regard to any
provisions for redemption, prepayment, acceleration, purchase or
extension);
(e) the rate or rates at which the Securities of such series
shall bear interest, if any (including the rate or rates at which
overdue principal shall bear interest, if different from the rate
or rates at which such Securities shall bear interest prior to
Maturity, and, if applicable, the rate or rates at which overdue
premium or interest shall bear interest, if any), or any formulary
or other method or other means by which such rate or rates shall be
determined, by reference or otherwise; 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, if any,
for the interest payable on such Securities on any Interest Payment
Date; the right of the Company, if any, to extend the interest
payment periods and the duration of any such extension as
contemplated by Section 311; and the basis of computation of
interest, if other than as provided in Section 310;
(f) the place or places at which or methods by which (i) the
principal of and premium, if any, and interest, if any, on
Securities of such series shall be payable, (ii) registration of
transfer of Securities of such series may be effected, (iii)
exchanges of Securities of such series may be effected and (iv)
notices and demands to or upon the Company in respect of the
Securities of such series and this Indenture may be served; the
Security Registrar for such series; and if such is the case, that
the principal of such Securities shall be payable without
presentment or surrender thereof;
(g) the period or periods within which, or the date or dates
on which, the price or prices at which and the terms and conditions
upon which the Securities of such series may be redeemed, in whole
or in part, at the option of the Company and any restrictions on
such redemptions, including but not limited to a restriction on a
partial redemption by the Company of the Securities of any series,
resulting in delisting of such Securities from any national
exchange;
(h) the obligation or obligations, if any, of the Company to
redeem or purchase the Securities of such series pursuant to any
sinking fund or other mandatory redemption provisions or at the
option of a Holder thereof and the period or periods within which
or the date or dates on which, the price or prices at which and the
terms and conditions upon which such Securities shall be redeemed
or purchased, in whole or in part, pursuant to such obligation, and
applicable exceptions to the requirements of Section 404 in the
case of mandatory redemption or redemption at the option of the
Holder;
(i) the denominations in which Securities of such series
shall be issuable if other than denominations of $25 and any
integral multiple thereof;
(j) 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 Dollars);
(k) 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;
(l) 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;
(m) if the amount payable in respect of 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 this Indenture, the manner in which
such amounts shall be determined to the extent not established
pursuant to clause (e) of this paragraph;
(n) if other than the principal amount thereof, the portion
of the principal amount of Securities of such series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 802;
(o) any Events of Default, in addition to those specified in
Section 801, with respect to the Securities of such series, and any
covenants of the Company for the benefit of the Holders of the
Securities of such series, in addition to those set forth in
Article Six;
(p) the terms, if any, pursuant to which the Securities of
such series may be converted into or exchanged for shares of
capital stock or other securities of the Company or any other
Person;
(q) the obligations or instruments, if any, which shall be
considered to be Government Obligations in respect of the
Securities of such series denominated in a currency other than
Dollars or in a composite currency, and any additional or
alternative provisions for the reinstatement of the Company's
indebtedness in respect of such Securities after the satisfaction
and discharge thereof as provided in Section 701;
(r) if the Securities of such series are to be issued in
global form, (i) 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, (ii) any limitations
on the rights of the Holder or Holders thereof to obtain
certificates therefor in definitive form in lieu of temporary form
and (iii) any and all other matters incidental to such Securities;
(s) if the Securities of such series are to be
issuable as bearer securities, any and all matters
incidental thereto which are not specifically addressed in
a supplemental indenture as contemplated by clause (g) of
Section 1201;
(t) to the extent not established pursuant to clause (r) of
this paragraph, any limitations on the rights of the Holders of the
Securities of such Series to transfer or exchange such Securities
or to obtain the registration of transfer thereof; and if a service
charge will be made for the registration of transfer or exchange of
Securities of such series the amount or terms thereof;
(u) any exceptions to Section 113, or variation in the
definition of Business Day, with respect to the Securities of such
series;
(v) the designation of the Trust to which Securities of such
series are to be issued; and
(w) any other terms of the Securities of such series not
inconsistent with the provisions of this Indenture.
All Securities of any one series shall be substantially
identical, except as to principal amount and date of issue and except as
may be set forth in the terms of such series as contemplated above. The
Securities of each series shall be subordinated in right of payment to
Senior Indebtedness as provided in Article Fifteen.
SECTION 302. DENOMINATIONS.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, the Securities of each series shall be
issuable in denominations of $25 and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, the Securities shall be executed on
behalf of the Company by an Authorized Officer and may have the corporate
seal of the Company affixed thereto or reproduced thereon attested by any
other Authorized Officer or by the Secretary or an Assistant Secretary of
the Company. The signature of any or all of these officers on the Secu-
rities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at the time of execution Authorized Officers or the
Secretary or an Assistant Secretary of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold
such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of original issue of such Securities.
The Trustee shall authenticate and deliver Securities of a
series, for original issue, at one time or from time to time in accordance
with the Company Order referred to below, upon receipt by the Trustee of:
(a) the instrument or instruments establishing the form or
forms and terms of such series, as provided in Sections 201 and
301;
(b) a Company Order requesting the authentication and
delivery of such Securities and, to the extent that the terms of
such Securities shall not have been established in an indenture
supplemental hereto or in a Board Resolution, or in an Officer's
Certificate pursuant to a supplemental indenture or Board
Resolution, all as contemplated by Sections 201 and 301,
establishing such terms;
(c) the Securities of such series, executed on behalf of the
Company by an Authorized Officer;
(d) an Opinion of Counsel to the effect that:
(i) the form or forms of such Securities have been duly
authorized by the Company and have been established in
conformity with the provisions of this Indenture;
(ii) the terms of such Securities have been duly
authorized by the Company and have been established in
conformity with the provisions of this Indenture; and
(iii) such Securities, when authenticated and delivered
by the Trustee and issued and delivered by the Company in the
manner and subject to any conditions specified in such Opinion
of Counsel, will have been duly issued under this Indenture
and will constitute valid and legally binding obligations of
the Company, entitled to the benefits provided by this
Indenture, and enforceable in accordance with their terms,
subject, as to enforcement, to laws relating to or affecting
generally the enforcement of creditors' rights, including,
without limitation, bankruptcy and insolvency laws and to
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
If the form or terms of the Securities of any series have been
established by or pursuant to a Board Resolution or an Officer's
Certificate as permitted by Sections 201 or 301, the Trustee shall not be
required to authenticate such Securities if the issuance of such Securities
pursuant to this Indenture will materially or adversely affect the
Trustee's own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner that is not reasonably acceptable to the
Trustee.
Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, each Security shall be dated the date
of its authentication.
Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, no Security shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose
unless there appears on such Security a certificate of authentication sub-
stantially in the form provided for herein executed by the Trustee or an
Authenticating Agent by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is
entitled to the benefits of this Indenture. Notwithstanding the foregoing,
if any Security shall have been authenticated and delivered hereunder to
the Company, or any Person acting on its behalf, but shall never have been
issued and sold by the Company, and the Company shall deliver such Security
to the Trustee for cancellation as provided in Section 309 together with a
written statement (which need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel) stating that such Security has never
been issued and sold by the Company, for all purposes of this Indenture
such Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits hereof.
SECTION 304. 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 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, with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of
such Securities; provided, however, that temporary Securities need not
recite specific redemption, sinking fund, conversion or exchange
provisions.
Unless otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, after the preparation of defini-
tive Securities of such series, the temporary Securities of such series
shall be exchangeable, without charge to the Holder thereof, for definitive
Securities of such series upon surrender of such temporary Securities at
the office or agency of the Company maintained pursuant to Section 602 in a
Place of Payment for such Securities. Upon such surrender of temporary
Securities for such exchange, the Company shall, except as aforesaid,
execute and the Trustee shall authenticate and deliver in exchange therefor
definitive Securities of the same series, of authorized denominations and
of like tenor and aggregate principal amount.
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 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept in each office designated
pursuant to Section 602, 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
transfer thereof. The Company shall designate one Person to maintain the
Security Register for the Securities of each series on a consolidated
basis, 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 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.
Except as otherwise specified as contemplated by Section 301
with respect to the Securities of any series, upon surrender for
registration of transfer of any Security of such series at the office or
agency of the Company maintained pursuant to Section 602 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 301
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 surrender of the Securities to
be exchanged at any such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee 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 or surrendered for registration of
transfer or for exchange shall (if so required by 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 301 with
respect to 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 of transfer
or exchange of Securities, other than exchanges pursuant to Section 304,
406 or 1206 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.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in ex-
change 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 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, 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 Security shall constitute
an original 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 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, interest on any Security which is
payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that Security (or
one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest.
Subject to Section 311, any interest on any Security of any
series which is payable, but is not punctually paid or duly provided for,
on any Interest Payment Date (herein called "Defaulted Interest") shall
forthwith cease to be payable to the Holder on the related Regular Record
Date by virtue of having been such Holder, and such Defaulted Interest may
be paid by the Company, at its election in each case, as provided in clause
(a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such
series (or their respective Predecessor Securities) are registered
at the close of business on a date (herein called a "Special Record
Date") for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to
be paid on each Security of such series and the date of the pro-
posed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall
make arrangements satisfactory to the Trustee for such deposit on
or prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a Special Record Date for the pay-
ment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and
at the expense of the Company, shall promptly cause notice of the
proposed payment of such Defaulted Interest and the Special Record
Date therefor to be mailed, first-class postage prepaid, to each
Holder of Securities of such series at the address of such Holder
as it appears in the Security Register, not less than 10 days prior
to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having
been so mailed, such Defaulted Interest shall be paid to the
Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of
business on such Special Record Date.
(b) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which such Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon registration
of transfer of or in exchange for or in lieu of any other Security shall
carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Security is registered as
the absolute owner of such Security for the purpose of receiving payment of
principal of and premium, if any, and (subject to Sections 305 and 307)
interest, if any, on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
SECTION 309. CANCELLATION BY SECURITY REGISTRAR.
All Securities surrendered for payment, redemption,
registration of transfer or exchange shall, if surrendered to any Person
other than the Security Registrar, be delivered to the Security Registrar
and, if not theretofore canceled, shall be promptly canceled by the
Security Registrar. The Company may at any time deliver to the Security
Registrar for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever or which the Company shall not have issued and sold, and all
Securities so delivered shall be promptly canceled by the Security
Registrar. No Securities shall be authenticated in lieu of or in exchange
for any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. All canceled Securities held by the
Security Registrar shall be disposed of in accordance with a Company Order
delivered to the Security Registrar and the Trustee, and the Security
Registrar shall promptly deliver a certificate of disposition to the
Trustee and the Company unless, by a Company Order, similarly delivered,
the Company shall direct that canceled Securities be returned to it. The
Security Registrar shall promptly deliver evidence of any cancellation of a
Security in accordance with this Section 309 to the Trustee and the
Company.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301
for Securities of any series, interest on the Securities of each series
shall be computed on the basis of a 360-day year consisting of twelve 30-
day months and for any period shorter than a full month, on the basis of
the actual number of days elapsed in such period.
SECTION 311. EXTENSION OF INTEREST PAYMENT.
The Company shall have the right at any time, so long as the
Company is not in default in the payment of interest on the Securities of
any series hereunder, to extend interest payment periods on all Securities
of one or more series, if so specified as contemplated by Section 301 with
respect to such Securities and upon such terms as may be specified as
contemplated by Section 301 with respect to such Securities.
SECTION 312. ADDITIONAL INTEREST.
So long as any Preferred Securities remain outstanding, if the
Trust which issued such Preferred Securities shall be required to pay, with
respect to its income derived from the interest payments on the Securities
of any series, any amounts for or on account of any taxes, duties,
assessments or governmental charges of whatever nature imposed by the
United States, or any other taxing authority, then, in any such case, the
Company will pay as interest on such series such additional interest
("Additional Interest") as may be necessary in order that the net amounts
received and retained by such Trust after the payment of such taxes,
duties, assessments or governmental charges shall result in such Trust's
having such funds as it would have had in the absence of the payment of
such taxes, duties, assessments or governmental charges.
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 401. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms and
(except as otherwise specified as contemplated by Section 301 for
Securities of such series) in accordance with this Article.
SECTION 402. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution or an Officer's Certificate. The Company
shall, at least 45 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee in writing of such Redemption Date and of the principal amount of
such Securities to be redeemed. In the case of any redemption of
Securities (a) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture or (b) pursuant to an election of the Company which is subject to
a condition specified in the terms of such Securities, the Company shall
furnish the Trustee with an Officer's Certificate evidencing compliance
with such restriction or condition.
SECTION 403. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series are to be
redeemed, the particular Securities to be redeemed shall be selected by the
Trustee from the Outstanding Securities of such series not previously
called for redemption, by such method as shall be provided for any
particular series, or, in the absence of any such provision, by such method
as the Trustee shall deem fair and appropriate and which may provide for
the selection for redemption of portions (equal to the minimum authorized
denomination for Securities of such series or any integral multiple
thereof) of the principal amount of Securities of such series of a
denomination larger than the minimum authorized denomination for Securities
of such series; provided, however, that if, as indicated in an Officer's
Certificate, the Company shall have offered to purchase all or any
principal amount of the Securities then Outstanding of any series, and less
than all of such Securities as to which such offer was made shall have been
tendered to the Company for such purchase, the Trustee, if so directed by
Company Order, shall select for redemption all or any principal amount of
such Securities which have not been so tendered.
The Trustee shall promptly notify the Company and the Security
Registrar in writing of the Securities selected for redemption and, in the
case of any Securities selected to be redeemed in part, the principal
amount thereof to be redeemed.
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.
SECTION 404. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in
Section 106 to the Holders of the Securities to be redeemed not less than
30 nor more than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Securities of any series are to be
redeemed, the identification of the particular Securities to be
redeemed and the portion of the principal amount of any Security to
be redeemed in part,
(d) that on the Redemption Date the Redemption Price,
together with accrued interest, if any, to the Redemption Date,
will become due and payable upon each such Security to be redeemed
and, if applicable, that interest thereon will cease to accrue on
and after said date,
(e) the place or places where such Securities are to be
surrendered for payment of the Redemption Price and accrued
interest, if any, unless it shall have been specified as
contemplated by Section 301 with respect to such Securities that
such surrender shall not be required,
(f) that the redemption is for a sinking or other fund, if
such is the case, and
(g) such other matters as the Company shall deem desirable or
appropriate.
Unless otherwise specified with respect to any Securities in
accordance with Section 301, with respect to any notice of redemption of
Securities at the election of the Company, unless, upon the giving of such
notice, such Securities shall be deemed to have been paid in accordance
with Section 701, such notice may state that such redemption shall be
conditional upon the receipt by the Paying Agent or Agents for such
Securities, on or prior to the date fixed for such redemption, of money
sufficient to pay the principal of and premium, if any, and interest, if
any, on such Securities and that if such money shall not have been so
received such notice shall be of no force or effect and the Company shall
not be required to redeem such Securities. In the event that such notice
of redemption contains such a condition and such money is not so received,
the redemption shall not be made and within a reasonable time thereafter
notice shall be given, in the manner in which the notice of redemption was
given, that such money was not so received and such redemption was not
required to be made, and the Paying Agent or Agents for the Securities
otherwise to have been redeemed shall promptly return to the Holders
thereof any of such Securities which had been surrendered for payment upon
such redemption.
Notice of redemption of Securities to be redeemed at the
election of the Company, and any notice of non-satisfaction of a condition
for redemption as aforesaid, shall be given by the Company or, at the
Company's request, by the Security Registrar in the name and at the expense
of the Company. Notice of mandatory redemption of Securities shall be
given by the Security Registrar in the name and at the expense of the
Company.
SECTION 405. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, and the
conditions, if any, set forth in such notice having been satisfied, the
Securities or portions thereof so to be redeemed shall, on the Redemption
Date, become due and payable at the Redemption Price therein specified, and
from and after such date (unless, in the case of an unconditional notice of
redemption, the Company shall default in the payment of the Redemption
Price and accrued interest, if any) such Securities or portions thereof, if
interest-bearing, shall cease to bear interest. Upon surrender of any such
Security for redemption in accordance with such notice, such Security or
portion thereof shall be paid by the Company at the Redemption Price,
together with accrued interest, if any, to the Redemption Date; provided,
however, that no such surrender shall be a condition to such payment if so
specified as contemplated by Section 301 with respect to such Security; and
provided, further, that except as otherwise specified as contemplated by
Section 301 with respect to such Security, any installment of interest on
any Security the Stated Maturity of which installment is on or prior to the
Redemption Date shall be payable to the Holder of such Security, or one or
more Predecessor Securities, registered as such at the close of business on
the related Regular Record Date according to the terms of such Security and
subject to the provisions of Section 307.
SECTION 406. SECURITIES REDEEMED IN PART.
Upon the surrender of any Security which is to be redeemed
only in part at a Place of Payment therefor (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing), the
Company shall execute, and the Trustee shall authenticate and deliver to
the Holder of such Security, without service charge, a new Security or
Securities of the same series, of any authorized denomination requested by
such Holder and of like tenor and in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security
so surrendered.
ARTICLE FIVE
SINKING FUNDS
SECTION 501. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of the Securities of any series, except as
otherwise specified as contemplated by Section 301 for Securities of such
series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series 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 Securities of any series is herein referred to
as an "optional sinking fund payment." If provided for by the terms of
Securities of any series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 502. Each sinking fund
payment shall be applied to the redemption of Securities of the series in
respect of which it was made as provided for by the terms of such
Securities.
SECTION 502. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (a) may deliver to the Trustee Outstanding
Securities (other than any previously called for redemption) of a series in
respect of which a mandatory sinking fund payment is to be made and (b) may
apply as a credit Securities of such series 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 or Outstanding Securities
purchased by the Company, in each case in satisfaction of all or any part
of such mandatory sinking fund payment with respect to the Securities of
such series; provided, however, that no Securities shall be applied in
satisfaction of a mandatory sinking fund payment if such Securities shall
have been previously so applied. Securities so applied shall be received
and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the
sinking fund and the amount of such mandatory sinking fund payment shall be
reduced accordingly.
SECTION 503. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 45 days prior to each sinking fund payment date
for the Securities of any series, the Company shall deliver to the Trustee
an Officer's Certificate specifying:
(a) the amount of the next succeeding mandatory sinking fund
payment for such series;
(b) the amount, if any, of the optional sinking fund payment
to be made together with such mandatory sinking fund payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate sinking fund
payment which is to be satisfied by the payment of cash;
(e) the portion, if any, of such aggregate sinking fund
payment which is to be satisfied by delivering and crediting
Securities of such series pursuant to Section 502 and stating the
basis for such credit and that such Securities have not previously
been so credited, and the Company shall also deliver to the Trustee
any Securities to be so delivered. If the Company shall not
deliver such Officer's Certificate, the next succeeding sinking
fund payment for such series shall be made entirely in cash in the
amount of the mandatory sinking fund payment. 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 403 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 404. Such notice
having been duly given, the redemption of such Securities shall be
made upon the terms and in the manner stated in Sections 405 and
406.
ARTICLE SIX
COVENANTS
SECTION 601. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company shall pay the principal of and premium, if any,
and interest, if any (including Additional Interest), on the Securities of
each series in accordance with the terms of such Securities and this
Indenture.
SECTION 602. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in each Place of Payment for the
Securities of each series an office or agency where payment of such
Securities shall be made, where the registration of transfer or exchange of
such Securities may be effected and where notices and demands to or upon
the Company in respect of such Securities and this Indenture may be served.
The Company shall give prompt written notice to the Trustee of the loca-
tion, and any change in the location, of each such office or agency and
prompt notice to the Holders of any such change in the manner specified in
Section 106. If at any time the Company shall fail to maintain any such
required office or agency in respect of Securities of any series, or shall
fail to furnish the Trustee with the address thereof, payment of such
Securities shall be made, registration of transfer or exchange thereof may
be effected and notices and demands in respect thereof may be served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent for all such purposes in any such event.
The Company may also from time to time designate one or more
other offices or agencies with respect to the Securities of one or more
series, for any or all of the foregoing purposes and may from time to time
rescind such designations; provided, however, that, unless otherwise
specified as contemplated by Section 301 with respect to the Securities of
such series, no such designation or rescission shall in any manner relieve
the Company of its obligation to maintain an office or agency for such
purposes in each Place of Payment for such Securities in accordance with
the requirements set forth above. The Company shall give prompt written
notice to the Trustee, and prompt notice to the Holders in the manner
specified in Section 106, of any such designation or rescission and of any
change in the location of any such other office or agency.
Anything herein to the contrary notwithstanding, any office or
agency required by this Section may be maintained at an office of the
Company, in which event the Company shall perform all functions to be
performed at such office or agency.
SECTION 603. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent
with respect to the Securities of any series, it shall, on or before each
due date of the principal of and premium, if any, and interest, if any, on
any of such Securities, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal and premium
or interest so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided. The Company shall promptly
notify the Trustee of any failure by the Company (or any other obligor on
such Securities) to make any payment of principal of or premium, if any, or
interest, if any, on such Securities.
Whenever the Company shall have one or more Paying Agents for
the Securities of any series, it shall, on or before each due date of the
principal of and premium, if any, and interest, if any, on such Securities,
deposit with such Paying Agents sums sufficient (without duplication) to
pay the principal and premium or interest so becoming due, such sum to be
held in trust for the benefit of the Persons entitled to such principal,
premium or interest, and (unless such Paying Agent is the Trustee) the
Company shall promptly notify the Trustee of any failure by it so to act.
The Company shall cause each Paying Agent for the Securities
of any series, other than the Company or the Trustee, to execute and
deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such
Paying Agent shall:
(a) hold all sums held by it for the payment of the principal
of and premium, if any, or interest, if any, on such Securities in
trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as
herein provided;
(b) give the Trustee notice of any failure by the Company (or
any other obligor upon such Securities) to make any payment of
principal of or premium, if any, or interest, if any, on such
Securities; and
(c) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent and furnish
to the Trustee such information as it possesses regarding the names
and addresses of the Persons entitled to such sums.
The Company may at any time pay, or by Company Order direct
any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent and, if so stated in a Company Order delivered to the Trustee,
in accordance with the provisions of Article Seven; and, upon such payment
by any Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
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 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 a 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 30 days from the date of such mailing, any unclaimed balance of such
money then remaining will be paid to the Company.
SECTION 604. CORPORATE EXISTENCE.
Subject to the rights of the Company under Article Eleven, the
Company shall do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence.
SECTION 605. MAINTENANCE OF PROPERTIES.
The Company shall cause (or, with respect to property owned in
common with others, make reasonable effort to cause) all its properties
used or useful in the conduct of its business to be maintained and kept in
good condition, repair and working order and shall cause (or, with respect
to property owned in common with others, make reasonable effort to cause)
to be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as, in the judgment of the Company, may be
necessary so that the business carried on in connection therewith may be
properly conducted; provided, however, that nothing in this Section shall
prevent the Company from discontinuing, or causing the discontinuance of,
the operation and maintenance of any of its properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct
of its business.
SECTION 606. ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE.
Not later than September 15 in each year, commencing September
15, 1997, the Company shall deliver to the Trustee an Officer's Certificate
which need not comply with Section 102, executed by the principal executive
officer, the principal financial officer or the principal accounting
officer of the Company, as to such officer's knowledge of the Company's
compliance with all conditions and covenants under this Indenture, such
compliance to be determined without regard to any period of grace or
requirement of notice under this Indenture.
SECTION 607. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in (a) Section 602 or any
additional covenant or restriction specified with respect to the Securities
of any series, as contemplated by Section 301, if before the time for such
compliance the Holders of at least a majority in aggregate principal amount
of the Outstanding Securities of all series with respect to which
compliance with Section 602 or such additional covenant or restriction is
to be omitted, considered as one class, shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance
with such term, provision or condition and (b) Section 604, 605 or Article
Eleven if before the time for such compliance the Holders of at least a
majority in principal amount of Securities Outstanding under this Indenture
shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision or
condition; but, in the case of (a) or (b), no such waiver shall extend to
or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any
such term, provision or condition shall remain in full force and effect;
provided, however, that so long as a Trust holds Securities of any series,
such Trust may not waive compliance or waive any default in compliance by
the Company with any covenant or other term contained in this Indenture or
the Securities of such series without the approval of the holders of at
least a majority in aggregate liquidation preference of the outstanding
Preferred Securities issued by such Trust affected, obtained as provided in
the Trust Agreement pertaining to such Trust.
SECTION 608. RESTRICTION ON PAYMENT OF DIVIDENDS.
So long as any Preferred Securities of any series remain
outstanding, the Company shall not declare or pay any dividend on, or
redeem, purchase, acquire or make a liquidation payment with respect to,
any of the Company's capital stock, or make any guarantee payments with
respect to the foregoing (other than payments under the Guarantee relating
to such Preferred Securities) if at such time (a) the Company shall be in
default with respect to its payment or other obligations under the
Guarantee relating to such Preferred Securities, (b) there shall have
occurred and be continuing a payment default (whether before or after
expiration of any period of grace) or an Event of Default hereunder or
(c) the Company shall have elected to extend any interest payment period as
provided in Section 311, and any such period, or any extension thereof,
shall be continuing.
SECTION 609. MAINTENANCE OF TRUST EXISTENCE.
So long as Preferred Securities of any series remain
outstanding, the Company shall (i) maintain direct or indirect ownership of
all interests in the Trust which issued such Preferred Securities, other
than such Preferred Securities, (ii) not voluntarily (to the extent
permitted by law) dissolve, liquidate or wind up such Trust, except in
connection with a distribution of the Securities to the holders of the
Preferred Securities in liquidation of such Trust, (iii) remain the sole
Depositor under the Trust Agreement (the "Depositor") of such Trust and
timely perform in all material respects all of its duties as Depositor of
such Trust, and (iv) use reasonable efforts to cause such Trust to remain a
business trust and otherwise continue to be treated as a grantor trust for
Federal income tax purposes provided that any permitted successor to the
Company under this Indenture may succeed to the Company's duties as
Depositor of such Trust; and provided further that the Company may permit
such Trust to consolidate or merge with or into another business trust or
other permitted successor under the Trust Agreement pertaining to such
Trust so long as the Company agrees to comply with this Section 609 with
respect to such successor business trust or other permitted successor.
ARTICLE SEVEN
SATISFACTION AND DISCHARGE
SECTION 701. DEFEASANCE.
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 deemed to have been 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, Government Obligations, which
shall not contain provisions permitting the redemption or other
prepayment thereof at the option of the issuer thereof, the princi-
pal 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 on or prior to
Maturity; provided, however, that in the case of the provision for payment
or redemption of less than all the Securities of any series, such
Securities or portions thereof shall have been selected by the Trustee as
provided herein and, 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:
(i) if such deposit shall have been made prior to the
Maturity of such Securities, a Company Order stating that the
money and Government Obligations deposited in accordance with
this Section shall be held in trust, as provided in Section
703; and
(ii) if Government Obligations shall have been
deposited, an Opinion of Counsel that the obligations so
deposited constitute Government Obligations and do not contain
provisions permitting the redemption or other prepayment 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
requirements set forth in clause (b) above have been
satisfied; and
(iii) An Opinion of Counsel to the effect that the
Holders of such Securities will not recognize income, gain or
loss for Federal income tax purposes as a result of the
satisfaction and discharge of the Company's indebtedness in
respect of such Securities, and such Holders will be subject
to Federal income taxation on the same amounts and in the same
manner and at the same times as if such satisfaction and
discharge had occurred.
Upon the deposit of money or Government Obligations, or both,
in accordance with this Section, together with the documents required by
clauses (i), (ii) and (iii) above, the Trustee shall, upon receipt of a
Company Request, acknowledge in writing that the Security or Securities or
portions thereof with respect to which such deposit was made 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 Opinion of Counsel specified in clause (iii) 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 of this Indenture or of any of the
covenants of the Company under Article Six (except the covenants contained
in Sections 602 and 603) or any other covenants made in respect of such
Securities or portions thereof as contemplated by Section 301, but the
indebtedness of the Company in respect of such Securities or portions
thereof shall not be deemed to have been satisfied and discharged prior to
Maturity for any other purpose, and the Holders of such Securities or
portions thereof shall continue to be entitled to look to the Company for
payment of the indebtedness represented thereby; 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 Security Registrar shall select such
Securities, or portions of principal amount thereof, in the manner
specified by Section 403 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 60-day period commencing with the date of the deposit
of moneys or 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
304, 305, 306, 404, 503 (as to notice of redemption), 602, 603, 907 and 915
and this Article Seven shall survive.
The Company shall pay, and shall indemnify the Trustee or any
Paying Agent with which Government Obligations shall have been deposited as
provided in this Section against, any tax, fee or other charge imposed on
or assessed against such Government Obligations or the principal or
interest received in respect of such 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 or discharged,
pursuant to this Section (without regard to the provisions of this
paragraph), the Trustee or any Paying Agent, as the case may be, shall be
required to return the money or Government Obligations, or combination
thereof, deposited with it as aforesaid to the Company or its
representative under any applicable Federal or State bankruptcy, insolvency
or other similar law, 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 603.
SECTION 702. 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, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(a) no Securities remain Outstanding hereunder; 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 701, any Security, previously deemed to have been paid for purposes
of this Indenture, shall be deemed retroactively not to have been so paid,
this Indenture shall thereupon be deemed retroactively 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 In-
denture as aforesaid, the obligations of the Company and the Trustee under
Sections 304, 305, 306, 404, 503 (as to notice of redemption), 602, 603,
907 and 915 and this Article Seven shall survive.
Upon satisfaction and discharge of this Indenture as provided
in this Section, the Trustee shall assign, transfer and turn over to the
Company, subject to the lien provided by Section 907, 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 Government Obligations
held by the Trustee pursuant to Section 703.
SECTION 703. APPLICATION OF TRUST MONEY.
Neither the Government Obligations nor the money deposited
pursuant to Section 701, nor the principal or interest payments on any such
Government Obligations, shall be withdrawn or used for any purpose other
than, and shall be held in trust for, the payment of the 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 603; provided, however,
that, so long as there shall not have occurred and be continuing an Event
of Default any cash received from such principal or interest payments on
such Government Obligations, if not then needed for such purpose, shall, to
the extent practicable, be invested in Government Obligations of the type
described in clause (b) in the first paragraph of Section 701 maturing at
such times and in such amounts as 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 on and prior to the Maturity
thereof, and interest earned from such reinvestment shall be paid over to
the Company as received, free and clear of any trust, lien or pledge under
this Indenture except the lien provided by Section 907; and provided, fur-
ther, that, so long as there shall not have occurred and be continuing an
Event of Default, 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 except the lien provided by Section
907; 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 EIGHT
EVENTS OF DEFAULT; REMEDIES
SECTION 801. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events:
(a) failure to pay interest, if any, including any Additional
Interest, on any Security of such series within 30 days after the
same becomes due and payable (whether or not payment is prohibited
by the provisions of Article Fifteen hereof); provided, however,
that a valid extension of the interest payment period by the
Company as contemplated in Section 311 of this Indenture shall not
constitute a failure to pay interest for this purpose; or
(b) failure to pay the principal of or premium, if any, on
any Security of such series at its Maturity (whether or not payment
is prohibited by the provisions of Article Fifteen hereof); or
(c) failure to perform or breach of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty
a default in the performance of which or breach of which is
elsewhere in this Section specifically dealt with or which has
expressly been included in this Indenture solely for the benefit of
one or more series of Securities other than such series) for a
period of 60 days after there has been given, by registered or
certified mail, to the Company by the Trustee, or to the Company
and the Trustee by the Holders of at least 10% in principal amount
of the Outstanding Securities of such series, a written notice
specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder,
unless the Trustee, or the Trustee and the Holders of a principal
amount of Securities of such series not less than the principal
amount of Securities the Holders of which gave such notice, as the
case may be, shall agree in writing to an extension of such period
prior to its expiration; provided, however, that the Trustee, or
the Trustee and the Holders of such principal amount of Securities
of such series, as the case may be, shall be deemed to have agreed
to an extension of such period if corrective action is initiated by
the Company within such period and is being diligently pursued; or
(d) the entry by a court having jurisdiction in the premises
of (1) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law
or (2) a decree or order adjudging the Company a bankrupt or in-
solvent, or approving as properly filed a petition by one or more
Persons other than the Company seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under any
applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other
similar official for the Company or for any substantial part of its
property, or ordering the winding up or liquidation of its affairs,
and any such decree or order for relief or any such other decree or
order shall have remained unstayed and in effect for a period of 90
consecutive days; or
(e) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insol-
vency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in
respect of the Company in a case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency
case or proceeding against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by it to the filing
of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or
similar official of the Company or of any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to
pay its debts generally as they become due, or the authorization of
such action by the Board of Directors; or
(f) any other Event of Default specified with respect to
Securities of such series.
SECTION 802. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default due to the default in payment of
principal of, or interest on, any series of Securities or due to the
default in the performance or breach of any other covenant or warranty of
the Company applicable to the Securities of such series but not applicable
to all outstanding Securities shall have occurred and be continuing, either
the Trustee or the Holders of not less than 25% in principal amount of the
Securities of such series may then declare the principal of all Securities
of such series and interest accrued thereon to be due and payable
immediately; provided, however, that, in the case of the Securities of a
series issued to a Trust, if, upon an Event of Default, the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding
Securities of that series fail to declare the principal of all the
Securities of that series to be immediately due and payable, the holders of
at least 25% in aggregate liquidation amount of the corresponding series of
Preferred Securities then outstanding shall have such right by a notice in
writing to the Company and the Trustee; and upon any such declaration such
principal amount (or specified amount) of and the accrued interest
(including any Additional Interest) on all the Securities of such series
shall become immediately due and payable (provided that the payment of
principal and interest on such Securities shall remain subordinated to the
extent provided in Article Fifteen hereof). If an Event of Default due to
default in the performance of any other of the covenants or agreements
herein applicable to all Outstanding Securities or an Event of Default
specified in Section 801(d) or (e) shall have occurred and be continuing,
either the Trustee or the Holders of not less than 25% in principal amount
of all Securities then Outstanding (considered as one class), and not the
Holders of the Securities of any one of such series, may declare the
principal of all Securities and interest accrued thereon to be due and
payable immediately (provided that the payment of principal and interest on
such Securities shall remain subordinated to the extent provided in the
Indenture).
At any time after such a declaration of acceleration with
respect to Securities of any series shall have been made and before a judg-
ment or decree for payment of the money due shall have been obtained by the
Trustee as hereinafter in this Article provided, the Event or Events of
Default giving rise to such declaration of acceleration shall, without
further act, be deemed to have been waived, and such declaration and its
consequences shall, without further act, be deemed to have been rescinded
and annulled, if
(a) the Company shall have paid or deposited with the Trustee
a sum sufficient to pay
(i) all overdue interest on all Securities of such
series;
(ii) the principal of and premium, if any, on any
Securities of such series which have become due otherwise than
by such declaration of acceleration and interest thereon at
the rate or rates prescribed therefor in such Securities;
(iii) to the extent that payment of such interest is
lawful, interest upon overdue interest, if any, at the rate or
rates prescribed therefor in such Securities;
(iv) all amounts due to the Trustee under Section 907;
and
(b) any other Event or Events of Default with respect to
Securities of such series, other than the nonpayment of the
principal of Securities of such series which shall have become due
solely by such declaration of acceleration, shall have been cured
or waived as provided in Section 813.
No such rescission shall affect any subsequent Event of Default or impair
any right consequent thereon.
SECTION 803. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
If an Event of Default described in clause (a) or (b) of
Section 801 shall have occurred and be continuing, the Company shall, upon
demand of the Trustee, pay to it, for the benefit of the Holders of the
Securities of the series with respect to which such Event of Default shall
have occurred, the whole amount then due and payable on such Securities for
principal and premium, if any, and interest, if any, and, to the extent
permitted by law, interest on premium, if any, and on any overdue principal
and interest, at the rate or rates prescribed therefor in such Securities,
and, in addition thereto, such further amount as shall be sufficient to
cover any amounts due to the Trustee under Section 907.
If the Company shall fail to pay such amounts forthwith upon
such demand, the Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of the sums
so due and unpaid, may prosecute such proceeding to judgment or final
decree and may enforce the same against the Company or any other obligor
upon such Securities and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the Company or
any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any
series shall have occurred and be continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce
any such rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
SECTION 804. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company or any
other obligor upon the Securities or the property of the Company or of such
other obligor or their creditors, the Trustee (irrespective of whether the
principal of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of
overdue principal or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of
principal, premium, if any, and interest, if any, owing and unpaid
in respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for amounts due to the
Trustee under Section 907) and of the Holders allowed in such
judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the
same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such 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 amounts due it under Section 907.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.
SECTION 805. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the Holders
in respect of which such judgment has been recovered.
SECTION 806. APPLICATION OF MONEY COLLECTED.
Subject to the provisions of Article Fifteen, any money
collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of
the distribution of such money on account of principal or premium, if any,
or interest, if any, upon presentation of the Securities in respect of
which or for the benefit of which such money shall have been collected and
the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 907;
SECOND: To the payment of the amounts then due and unpaid
upon the Securities for principal of and premium, if any, and
interest, if any, in respect of which or for the benefit of which
such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on
such Securities for principal, premium, if any, and interest, if
any, respectively; and
THIRD: To the payment of the remainder, if any, to the
Company or to whomsoever may be lawfully entitled to receive the
same or as a court of competent jurisdiction may direct.
SECTION 807. LIMITATION ON SUITS.
No Holder shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder,
unless:
(a) such Holder shall have previously given written notice to
the Trustee of a continuing Event of Default with respect to the
Securities of such series;
(b) the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of all series in
respect of which an Event of Default shall have occurred and be
continuing, considered as one class, shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders shall have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to
be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity shall have failed to institute any
such proceeding; and
(e) no direction inconsistent with such written request shall
have been given to the Trustee during such 60-day period by the
Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series in respect of which an Event
of Default shall have occurred and be continuing, considered as one
class;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of
any other of such Holders or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under
this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all of such Holders.
SECTION 808. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of and premium, if any,
and (subject to Section 307 and 311) interest, if any, on such Security on
the Stated Maturity or Maturities expressed in such Security (or, in the
case of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder. Any holder of related Preferred
Securities shall have the right to institute suit for the enforcement of
any such payment to such holder with respect to Securities relating to such
Preferred Securities having a principal amount equal to the aggregate
liquidation preference amount of the related Preferred Securities held by
such holder.
SECTION 809. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding shall
have been discontinued or abandoned for any reason, or shall have been
determined adversely to the Trustee or to such Holder, then and in every
such case, subject to any determination in such proceeding, the Company,
and Trustee and such Holder shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of
the Trustee and such Holder shall continue as though no such proceeding had
been instituted.
SECTION 810. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or
to the Holders is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder
or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 811. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder to
exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by
the Holders, as the case may be.
SECTION 812. CONTROL BY HOLDERS OF SECURITIES.
If an Event of Default shall have occurred and be continuing
in respect of a series of Securities, the Holders of a majority in
principal amount of the Outstanding Securities of such series shall have
the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, with respect to the Securities of such series;
provided, however, that if an Event of Default shall have occurred and be
continuing with respect to more than one series of Securities, the Holders
of a majority in aggregate principal amount of the Outstanding Securities
of all such series, considered as one class, shall have the right to make
such direction, and not the Holders of the Securities of any one of such
series; and provided, further, that such direction shall not be in conflict
with any rule of law or with this Indenture. Before proceeding to exercise
any right or power hereunder at the direction of such Holders, the Trustee
shall be entitled to receive from such Holders reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with any such direction.
SECTION 813. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of
the Outstanding Securities of any series may on behalf of the Holders of
all the Securities of such series waive any past default hereunder with
respect to such series and its consequences, except a default
(a) in the payment of the principal of or premium, if any, or
interest, if any, on any Security of such series, or
(b) in respect of a covenant or provision hereof which under
Section 1202 cannot be modified or amended without the consent of
the Holder of each Outstanding Security of such series affected;
provided, however, that so long as a Trust holds the Securities of any
series, such Trust may not waive any past default without the consent of at
least a majority in aggregate liquidation preference of the outstanding
Preferred Securities issued by such Trust affected, obtained as provided in
the Trust Agreement pertaining to such Trust.
Upon any such waiver, such default shall cease to exist, and
any and all Events of Default arising therefrom shall be deemed to have
been cured, for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other default or impair any right consequent
thereon.
SECTION 814. UNDERTAKING FOR COSTS.
The Company and the Trustee agree, and each Holder by his
acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, 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, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by
such party litigant; provided, however, that the provisions of this Section
shall not apply to any suit instituted by the Company, to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group
of Holders, holding in the aggregate more than 10% in aggregate principal
amount of the Outstanding Securities of all series in respect of which such
suit may be brought, considered as one class, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of or
premium, if any, or interest, if any, on any Security on or after the
Stated Maturity or Maturities expressed in such Security (or, in the case
of redemption, on or after the Redemption Date).
SECTION 815. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do
so) that it will 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 covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee,
but will suffer and permit the execution of every such power as though no
such law had been enacted.
ARTICLE NINE
THE TRUSTEE
SECTION 901. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default,
(i) 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
(ii) 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;
provided, however, that, in the case of any such certificates
or opinions which by any provisions hereof are specifically
required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of 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 his own
affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct
except that
(i) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error or
judgment made in good faith by a Responsible Officer, unless
it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of Holders pursuant to Section
812 relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to the Securities of such
series.
(d) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any 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 for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it.
(e) Whether or not therein expressly so provided, 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.
SECTION 902. NOTICE OF DEFAULTS.
The Trustee shall give notice of any default hereunder with
respect to the Securities of any series to the Holders of Securities of
such series in the manner and to the extent required to do so by the Trust
Indenture Act, unless such default shall have been cured or waived;
provided, however, that in the case of any default of the character
specified in Section 801(c), no such notice to Holders shall be given until
at least 45 days after the occurrence thereof. For the purpose of this
Section, the term "default" means any event which is, or after notice or
lapse of time, or both, would become, an Event of Default.
SECTION 903. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 901 and to the applicable
provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting in good faith upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document reasonably
believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company
Order, or as otherwise expressly provided herein, and any
resolution of the Board of Directors may be sufficiently evidenced
by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the
request or direction of any Holder pursuant to this Indenture,
unless such Holder shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall
(subject to applicable legal requirements) be entitled to examine,
during normal business hours, the books, records and premises of
the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder; and
(h) the Trustee shall not be charged with knowledge of any
default or Event of Default, as the case may be, with respect to
the Securities of any series for which it is acting as Trustee
unless either (i) a Responsible Officer of the Trustee shall have
actual knowledge of the default or Event of Default, as the case
may be, or (ii) written notice of such default or Event of Default,
as the case may be, shall have been given to the Trustee by the
Company, any other obligor on such Securities or by any Holder of
such Securities.
SECTION 904. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities (except
the Trustee's certificates of authentication) shall be taken as the
statements of the Company, and neither the Trustee nor any Authenticating
Agent assumes responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of
the Securities. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 905. MAY HOLD SECURITIES.
Each of the Trustee, any Authenticating Agent, any Paying
Agent, any Security Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of
Securities and (subject to Sections 908 and 913) may otherwise deal with
the Company with the same rights it would have if it were not the Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 906. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be
segregated from other funds, except to the extent required by law. The
Trustee shall be under no liability for interest on any money received by
it hereunder except as expressly provided herein or otherwise agreed with,
and for the sole benefit of, the Company.
SECTION 907. COMPENSATION AND REIMBURSEMENT.
The Company shall
(a) pay to the Trustee from time to time compensation for all
services rendered by it hereunder in accordance with a separate fee
agreement between the Company and the Trustee (which compensation
shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, reimburse
the Trustee upon its request for all reasonable expenses,
disbursements and advances reasonably incurred or made by the
Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except to the extent that
any such expense, disbursement or advance may be attributable to
the Trustee's negligence, wilful misconduct or bad faith; and
(c) indemnify the Trustee for, and hold it harmless from and
against, any loss, liability or expense incurred by it arising out
of or in connection with the acceptance or administration of the
trust or trusts hereunder or the performance of its duties
hereunder, including the reasonable costs and expenses of defending
itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder,
except to the extent any such loss, liability or expense may be
attributable to its negligence, wilful misconduct or bad faith.
As security for the performance of the obligations of the
Company under this Section, the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the Trustee as
such other than property and funds held in trust under Section 703 (except
as otherwise provided in Section 703). "Trustee" for purposes of this
Section shall include any predecessor Trustee; provided, however, that the
negligence, wilful misconduct or bad faith of any Trustee hereunder shall
not affect the rights of any other Trustee hereunder.
In addition to the rights provided to the Trustee pursuant to
the provisions of the immediately preceding paragraph of this Section 907,
when the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 801(d) or Section 801(e), the
expenses (including the reasonable charges and expenses of its counsel) and
the compensation for the services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency
or other similar law.
SECTION 908. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee shall have or acquire any conflicting interest
within the meaning of the Trust Indenture Act, it shall either eliminate
such conflicting interest or resign to the extent, in the manner and with
the effect, and subject to the conditions, provided in the Trust Indenture
Act and this Indenture. For purposes of Section 310(b)(1) of the Trust
Indenture Act and to the extent permitted thereby, the Trustee, in its
capacity as trustee in respect of the Securities of any series, shall not
be deemed to have a conflicting interest arising from its capacity as
trustee in respect of the Securities of any other series. The Trust
Agreement and the Guarantee Agreement pertaining to each Trust shall be
deemed to be specifically described in this Indenture for the purposes of
clause (i) of the first proviso contained in Section 310(b) of the Trust
Indenture Act.
SECTION 909. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be
(a) a corporation organized and doing business under the laws
of the United States, any State or Territory thereof or the
District of Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at
least $50,000,000 and subject to supervision or examination by
Federal or State authority, or
(b) if and to the extent permitted by the Commission by rule,
regulation or order upon application, a corporation or other Person
organized and doing business under the laws of a foreign
government, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least
$50,000,000 or the Dollar equivalent of the applicable foreign
currency and subject to supervision or examination by authority of
such foreign government or a political subdivision thereof
substantially equivalent to supervision or examination applicable
to United States institutional trustees,
and, in either case, qualified and eligible under this Article and the
Trust Indenture Act. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of such supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article.
SECTION 910. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of
Section 911.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof
to the Company. If the instrument of acceptance by a successor
Trustee required by Section 911 shall not have been delivered to
the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to
the Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series
delivered to the Trustee and to the Company; provided, however,
that so long as any Preferred Securities remain outstanding, the
Trust which issued such Preferred Securities shall not execute any
Act to remove the Trustee without the consent of the holders of a
majority in aggregate liquidation preference of Preferred
Securities issued by such Trust outstanding, obtained as provided
in the Trust Agreement pertaining to such Trust.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 908
after written request therefor by the Company or by any Holder
who has been a bona fide Holder for at least six months, or
(ii) the Trustee shall cease to be eligible under
Section 909 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(iii) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (x) the Company by a Board Resolution may remove
the Trustee with respect to all Securities or (y) subject to Section 814,
any Holder who has been a bona fide Holder for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause (other than as contemplated in clause (y) in
subsection (d) of this Section), with respect to the Securities of
one or more series, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to
the Securities of that or those series (it being understood that
any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any
time there shall be only one Trustee with respect to the Securities
of any particular series) and shall comply with the applicable
requirements of Section 911. If, within one year after such
resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any
series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of
Section 911, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 911, any Holder who
has been a bona fide Holder of a Security of such series for at
least six months may, on behalf of itself and all others similarly
situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities
of such series.
(f) So long as no event which is, or after notice or lapse of
time, or both, would become, an Event of Default shall have
occurred and be continuing, and except with respect to a Trustee
appointed by Act of the Holders of a majority in principal amount
of the Outstanding Securities pursuant to subsection (e) of this
Section, if the Company shall have delivered to the Trustee (i) a
Board Resolution appointing a successor Trustee, effective as of a
date specified therein, and (ii) an instrument of acceptance of
such appointment, effective as of such date, by such successor
Trustee in accordance with Section 911, the Trustee shall be deemed
to have resigned as contemplated in subsection (b) of this Section,
the successor Trustee shall be deemed to have been appointed by the
Company pursuant to subsection (e) of this Section and such
appointment shall be deemed to have been accepted as contemplated
in Section 911, all as of such date, and all other provisions of
this Section and Section 911 shall be applicable to such
resignation, appointment and acceptance except to the extent
inconsistent with this subsection (f).
(g) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any
series and each appointment of a successor Trustee with respect to
the Securities of any series by mailing written notice of such
event by first-class mail, postage prepaid, to all Holders of
Securities of such series as their names and addresses appear in
the Security Register. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and
the address of its corporate trust office.
SECTION 911. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of all series, every such
successor Trustee so appointed shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; provided, however that on the request of
the Company or the successor Trustee, such retiring Trustee shall,
upon payment of all sums owed to it, execute and deliver an
instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor
Trustee with respect to the Securities of one or more series shall
execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (i) shall
contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor Trustee all
the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (ii) if the retiring
Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee and (iii) shall add
to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate
and apart from any trust or trusts hereunder administered by any
other such Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein and
each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such successor
Trustee relates; provided, however that on request of the Company
or any successor Trustee, such retiring Trustee, upon payment of
all sums owed to it, shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any instruments which fully vest in and confirm to
such successor Trustee all such rights, powers and trusts referred
to in subsection (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article.
SECTION 912. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to all or substantially all
the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise qualified
and eligible under this Article, without the execution or filing of any
paper or any further act on the part of any of the parties hereto. In case
any Securities shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication
and deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
SECTION 913. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If the Trustee shall be or become a creditor of the Company or
any other obligor upon the Securities (other than by reason of a
relationship described in Section 311(b) of the Trust Indenture Act), the
Trustee shall be subject to any and all applicable provisions of the Trust
Indenture Act regarding the collection of claims against the Company or
such other obligor. For purposes of Section 311(b) of the Trust Indenture
Act:
(a) the term "cash transaction" means any transaction in
which full payment for goods or securities sold is made within
seven days after delivery of the goods or securities in currency or
in checks or other orders drawn upon banks or bankers and payable
upon demand;
(b) the term "self-liquidating paper" means any draft, bill
of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Company for the purpose of financing
the purchase, processing, manufacturing, shipment, storage or sale
of goods, wares or merchandise and which is secured by documents
evidencing title to, possession of, or a lien upon, the goods,
wares or merchandise or the receivables or proceeds arising from
the sale of the goods, wares or merchandise previously constituting
the security, provided the security is received by the Trustee
simultaneously with the creation of the creditor relationship with
the Company arising from the making, drawing, negotiating or
incurring of the draft, bill of exchange, acceptance or obligation.
SECTION 914. CO-TRUSTEES AND SEPARATE TRUSTEES.
At any time or times, for the purpose of meeting the legal
requirements of any applicable jurisdiction, the Company and the Trustee
shall have power to appoint, and, upon the written request of the Trustee
or of the Holders of at least 25% in principal amount of the Securities
then Outstanding, the Company shall for such purpose join with the Trustee
in the execution and delivery of all instruments and agreements necessary
or proper to appoint, one or more Persons approved by the Trustee either to
act as co-trustee, jointly with the Trustee, or to act as separate trustee,
in either case with such powers as may be provided in the instrument of
appointment, and to vest in such Person or Persons, in the capacity
aforesaid, any property, title, right or power deemed necessary or
desirable, subject to the other provisions of this Section. If the Company
does not join in such appointment within 15 days after the receipt by it of
a request so to do, or if an Event of Default shall have occurred and be
continuing, the Trustee alone shall have power to make such appointment.
Should any written instrument or instruments from the Company
be required by any co-trustee or separate trustee so appointed to more
fully confirm to such co-trustee or separate trustee such property, title,
right or power, any and all such instruments shall, on request, be
executed, acknowledged and delivered by the Company.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the
following conditions:
(a) the Securities shall be authenticated and delivered, and
all rights, powers, duties and obligations hereunder in respect of
the custody of securities, cash and other personal property held
by, or required to be deposited or pledged with, the Trustee
hereunder, shall be exercised solely, by the Trustee;
(b) the rights, powers, duties and obligations hereby
conferred or imposed upon the Trustee in respect of any property
covered by such appointment shall be conferred or imposed upon and
exercised or performed either by the Trustee or by the Trustee and
such co-trustee or separate trustee jointly, as shall be provided
in the instrument appointing such co-trustee or separate trustee,
except to the extent that under any law of any jurisdiction in
which any particular act is to be performed, the Trustee shall be
incompetent or unqualified to perform such act, in which event such
rights, powers, duties and obligations shall be exercised and
performed by such co-trustee or separate trustee;
(c) the Trustee at any time, by an instrument in writing
executed by it, with the concurrence of the Company, may accept the
resignation of or remove any co-trustee or separate trustee
appointed under this Section, and, if an Event of Default shall
have occurred and be continuing, the Trustee shall have power to
accept the resignation of, or remove, any such co-trustee or
separate trustee without the concurrence of the Company. Upon the
written request of the Trustee, the Company shall join with the
Trustee in the execution and delivery of all instruments and
agreements necessary or proper to effectuate such resignation or
removal. A successor to any co-trustee or separate trustee so
resigned or removed may be appointed in the manner provided in this
Section;
(d) no co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Trustee,
or any other such trustee hereunder; and
(e) any Act of Holders delivered to the Trustee shall be
deemed to have been delivered to each such co-trustee and separate
trustee.
SECTION 915. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents with
respect to the Securities of one or more series, which shall be authorized
to act on behalf of the Trustee to authenticate Securities of such series
issued upon original issuance and upon exchange, registration of transfer
or partial redemption thereof or pursuant to Section 306, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall
be valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating
Agent and a certificate of authentication executed on behalf of the Trustee
by an Authenticating Agent. Each Authenticating Agent shall be acceptable
to the Company and shall at all times be a corporation organized and doing
business under the laws of the United States, any State or territory
thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less
than $50,000,000 and subject to supervision or examination by Federal or
State authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section,
the combined capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating
Agent shall cease to be eligible in accordance with the provisions of this
Section, such Authenticating Agent shall resign immediately in the manner
and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any cor-
poration resulting from any merger, conversion or consolidation to which
such Authenticating Agent shall be a party, or any corporation succeeding
to the corporate agency or corporate trust business of an Authenticating
Agent, shall continue to be an Authenticating Agent, provided such
corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the
Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may
at any time terminate the agency of an Authenticating Agent by giving
written notice thereof to such Authenticating Agent and to the Company.
Upon receiving such a notice of resignation or upon such a termination, or
in case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the Company.
Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section,
and the Trustee shall be entitled to be reimbursed for such payments, in
accordance with, and subject to the provisions of Section 907.
The provisions of Sections 308, 904 and 905 shall be ap-
plicable to each Authenticating Agent.
If an appointment with respect to the Securities of one or
more series shall be made pursuant to this Section, the Securities of such
series may have endorsed thereon, in addition to the Trustee's certificate
of authentication, an alternate certificate of authentication substantially
in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
__________________________________________
As Trustee
By________________________________________
As Authenticating Agent
By________________________________________
Authorized Signatory
If all of the Securities of a series may not be originally
issued at one time, and if the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place of
Payment where the Company wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so requested by the
Company in writing (which writing need not comply with Section 102 and need
not be accompanied by an Opinion of Counsel), shall appoint, in accordance
with this Section and in accordance with such procedures as shall be
acceptable to the Trustee, an Authenticating Agent having an office in a
Place of Payment designated by the Company with respect to such series of
Securities.
ARTICLE TEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 1001. LISTS OF HOLDERS.
Semiannually, not later than June 1 and December 1 in each
year, commencing December 1, 1996, and at 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,
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 Trust Indenture Act; provided, however,
that no such list need be furnished so long as the Trustee shall be the
Security Registrar.
SECTION 1002. REPORTS BY TRUSTEE.
(a) The Trustee shall transmit to the Holders such reports
concerning the Trustee and its actions under this Indenture as may be
required pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant thereto. Such of those reports as are required to be
transmitted by the Trustee pursuant to Section 313(a) of the Trust
Indenture Act shall be so transmitted within 60 days after December 31 of
each year, commencing December 31, 1996.
(b) A copy of each such report shall, at the time of such
transmission to the Holders, be filed by the Trustee with each stock
exchange upon which the Securities are listed, with the Commission and with
the Company. The Company shall notify the Trustee when any Securities
shall have been listed on any stock exchange.
SECTION 1003. REPORTS TO THE TRUSTEE. The Company shall provide to the
Trustee such documents, reports, compliance certificates and information as
may be required by Section 314 of the Trust Indenture Act in the form, in
the manner and at the times required thereby.
ARTICLE ELEVEN
CONSOLIDATION, MERGER, CONVEYANCE OR OTHER TRANSFER
SECTION 1101. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other
corporation, or convey or otherwise transfer or lease its properties and
assets substantially as an entirety to any Person, unless
(a) the corporation formed by such consolidation or into
which the Company is merged or the Person which acquires by
conveyance or transfer, or which leases, the properties and assets
of the Company substantially as an entirety shall be a Person
organized and validly existing under the laws of the United States,
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 satisfactory to the Trustee, the due and
punctual payment of the principal of and premium, if any, and
interest, if any, on all Outstanding Securities and the performance
of every covenant of this Indenture on the part of the Company to
be performed or observed;
(b) immediately after giving effect to such transaction no
Event of Default, and no event which, after notice or lapse of time
or both, would become an Event of Default, shall have occurred and
be continuing; and
(c) the Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, conveyance, or other transfer or lease
and such supplemental indenture comply with this Article and that
all conditions precedent herein provided for relating to such
transactions have been complied with.
SECTION 1102. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation by the Company with or merger by the
Company into any other corporation or any conveyance, or other transfer or
lease of the properties and assets of the Company substantially as an
entirety in accordance with Section 1101, the successor corporation formed
by such consolidation or into which the Company is merged or the Person to
which such conveyance, transfer or lease 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, except in the case of a
lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities Outstanding hereunder.
ARTICLE TWELVE
SUPPLEMENTAL INDENTURES
SECTION 1201. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for
any of the following purposes:
(a) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants
of the Company herein and in the Securities, all as provided in
Article Eleven; or
(b) to add one or more covenants of the Company or other
provisions for the benefit of all Holders or for the benefit of the
Holders of, or to remain in effect only so long as there shall be
Outstanding, Securities of one or more specified series, or to
surrender any right or power herein conferred upon the Company; or
(c) to add any additional Events of Default with respect to
all or any series of Securities Outstanding hereunder; or
(d) to change or eliminate any provision of this Indenture or
to add any new provision to this Indenture; provided, however, that
if such change, elimination or addition shall adversely affect the
interests of the Holders of Securities of any series Outstanding on
the date of such indenture supplemental hereto in any material
respect, such change, elimination or addition shall become
effective with respect to such series only pursuant to the
provisions of Section 1202 hereof or when no Security of such
series remains Outstanding; or
(e) to provide collateral security for all but not part of
the Securities; or
(f) to establish the form or terms of Securities of any
series as contemplated by Sections 201 and 301; or
(g) to provide for the authentication and delivery of bearer
securities and coupons appertaining thereto representing interest,
if any, thereon and for the procedures for the registration,
exchange and replacement thereof and for the giving of notice to,
and the solicitation of the vote or consent of, the holders
thereof, and for any and all other matters incidental thereto; or
(h) to evidence and provide for the acceptance of appointment
hereunder by a separate or successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for
or facilitate the administration of the trusts hereunder by more
than one Trustee, pursuant to the requirements of Section 911(b);
or
(i) to provide for the procedures required to permit the
Company to utilize, at its option, a noncertificated system of
registration for all, or any series of, the Securities; or
(j) to change any place or places where (i) the principal of
and premium, if any, and interest, if any, on all or any series of
Securities shall be payable, (ii) all or any series of Securities
may be surrendered for registration of transfer, (iii) all or any
series of Securities may be surrendered for exchange and (iv)
notices and demands to or upon the Company in respect of all or any
series of Securities and this Indenture may be served; or
(k) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any
other provision herein, or to make any other changes to the
provisions hereof or to add other provisions with respect to
matters or questions arising under this Indenture, provided that
such other changes or additions shall not adversely affect the
interests of the Holders of Securities of any series in any
material respect.
Without limiting the generality of the foregoing, if the Trust
Indenture Act as in effect at the date of the execution and delivery of
this Indenture or at any time thereafter shall be amended and
(x) if any such amendment shall require one or more
changes to any provisions hereof or the inclusion herein of
any additional provisions, 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
Trust Indenture Act, and the Company and the Trustee may,
without the consent of any Holders, enter into an indenture
supplemental hereto to effect or evidence such changes or
additional provisions; or
(y) 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 Trust Indenture Act
to be contained herein, 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
evidence such amendment hereof.
SECTION 1202. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Securities of all series then Outstanding
under this Indenture, considered as one class, by Act of said Holders de-
livered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to, or
changing in any manner or eliminating any of the provisions of, this
Indenture or modifying in any manner the rights of the Holders of
Securities of such series under the Indenture; provided, however, that if
there shall be Securities of more than one series Outstanding hereunder and
if a proposed supplemental indenture shall directly affect the rights of
the Holders of Securities of one or more, but less than all, of such
series, then the consent only of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all series so directly
affected, considered as one class, shall be required; and provided,
further, that no such supplemental indenture shall:
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on (except as provided in
Section 311 hereof), any Security, or reduce the principal amount
thereof or the rate of interest thereon (or the amount of any
installment of interest thereon) or change the method of
calculating such rate or reduce any premium payable upon the
redemption thereof, or change the coin or currency (or other
property), in which any Security or any premium or the interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity of
any Security (or, in the case of redemption, on or after the
Redemption Date), without, in any such case, the consent of the
Holder of such Security, or
(b) reduce the percentage in principal amount of the
Outstanding Securities of any series (or, if applicable, in
liquidation preference of any series of Preferred Securities), the
consent of the Holders of which is required for any such
supplemental indenture, or the consent of the Holders of which is
required for any waiver of compliance with any provision of this
Indenture or of any default hereunder and its consequences, or
reduce the requirements of Section 1304 for quorum or voting,
without, in any such case, the consent of the Holders of each
Outstanding Security of such series, or
(c) modify any of the provisions of this Section, Section 607
or Section 813 with respect to the Securities of any series, except
to increase the percentages in principal amount referred to in this
Section or such other Sections or to provide that other provisions
of this Indenture cannot be modified or waived without the consent
of the Holder of each Outstanding Security affected thereby;
provided, however, that this clause shall not be deemed to require
the consent of any Holder with respect to changes in the references
to "the Trustee" and concomitant changes in this Section, or the
deletion of this proviso, in accordance with the requirements of
Sections 911(b) and 1201(h).
Notwithstanding the foregoing, so long as any of the Preferred Securities
remain outstanding, the Trustee may not consent to a supplemental indenture
under this Section 1202 without the prior consent, obtained as provided in
a Trust Agreement pertaining to a Trust which issued such Preferred
Securities, of the holders of not less than a majority in aggregate
liquidation preference of all Preferred Securities issued by such Trust
affected, considered as one class, or, in the case of changes described in
clauses (a), (b) and (c) above, 100% in aggregate liquidation preference of
all such Preferred Securities then outstanding which would be affected
thereby, considered as one class. A supplemental indenture which changes
or eliminates any covenant or other provision of this Indenture which has
expressly been included solely for the benefit of one or more particular
series of Securities, or which modifies the rights of the Holders of
Securities of such series with respect to such covenant or other provision,
shall be deemed not to affect the rights under this Indenture of the
Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof. A waiver by a Holder of such Holder's right to consent
under this Section shall be deemed to be a consent of such Holder.
SECTION 1203. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Section 901) shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties,
immunities or liabilities under this Indenture or otherwise.
SECTION 1204. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby. Any
supplemental indenture permitted by this Article may restate this Indenture
in its entirety, and, upon the execution and delivery thereof, any such
restatement shall supersede this Indenture as theretofore in effect for all
purposes.
SECTION 1205. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in
effect.
SECTION 1206. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. 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 any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
SECTION 1207. MODIFICATION WITHOUT SUPPLEMENTAL INDENTURE.
If the terms of any particular series of Securities shall have
been established in a Board Resolution or an Officer's Certificate as
contemplated by Section 301, and not in an indenture supplemental hereto,
additions to, changes in or the elimination of any of such terms may be
effected by means of a supplemental Board Resolution or Officer's
Certificate, as the case may be, delivered to, and accepted by, the
Trustee; provided, however, that such supplemental Board Resolution or
Officer's Certificate shall not be accepted by the Trustee or otherwise be
effective unless all conditions set forth in this Indenture which would be
required to be satisfied if such additions, changes or elimination were
contained in a supplemental indenture shall have been appropriately
satisfied. Upon the acceptance thereof by the Trustee, any such
supplemental Board Resolution or Officer's Certificate shall be deemed to
be a "supplemental indenture" for purposes of Section 1204 and 1206.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
SECTION 1301. 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 any 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 1302. 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 1301, to be held at such time and at such place in the
Borough of Manhattan, The City of New York, 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, in the manner provided
in Section 106, not less than 21 nor more than 180 days prior to
the date fixed for the meeting.
(b) If the Trustee shall have been requested to call a
meeting of the Holders of Securities of one or more, or all, series
by the Company or by the Holders of 33% in aggregate principal
amount of all of such series, considered as one class, for any
purpose specified in Section 1301, by written request setting forth
in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have given the notice of such
meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided
herein, then the Company or the Holders of Securities of such
series in the amount above specified, as the case may be, may
determine the time and the place in the Borough of Manhattan, The
City of New York, 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 1303. 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 1304. 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 of Securities of
such series; provided, however, that if any action is to be taken at such
meeting 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, 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 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 ad-
journment 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
1305(e), notice of the reconvening of any meeting adjourned for more than
30 days shall be given as provided in Section 1302(a) not less than 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 1202, 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, con-
sidered 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 Holders 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 1305. ATTENDANCE AT MEETINGS; 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 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,
the holding of Securities shall be proved in the manner specified
in Section 104 and the appointment of any proxy shall be proved in
the manner specified in Section 104. 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 104 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
1302(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 principal amount of Securities held or
represented by him; 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 1302 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 ad-
journed without further notice.
SECTION 1306. 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 of 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 of the proceedings of each meeting of Holders shall be
prepared by the secretary of the meeting and there shall be attached to
said 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 said notice was given as provided in Section 1302 and, if applicable,
Section 1304. 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 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 1307. 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 104.
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 1401. LIABILITY SOLELY CORPORATE.
No recourse shall be had for the payment of the principal of
or premium, if any, or interest, if any, on any Securities, or any part
thereof, or for any claim based thereon or otherwise in respect thereof, or
of the indebtedness represented thereby, or upon any obligation, covenant
or agreement under this Indenture, against any incorporator, stockholder,
officer or director, as such, past, present or future of the Company or of
any predecessor or successor corporation (either directly or through the
Company or a predecessor or 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; it being expressly agreed and
understood that this Indenture and all the Securities are solely corporate
obligations, and that no personal liability whatsoever shall attach to, or
be incurred by, any incorporator, stockholder, officer or director, past,
present or future, of the Company or of any predecessor or successor
corporation, either directly or indirectly through the Company or any
predecessor or successor corporation, because of the indebtedness hereby
authorized or under or by reason of any of the obligations, covenants or
agreements contained in this Indenture or in any of the Securities or to be
implied herefrom or therefrom, and that any such personal liability is
hereby expressly waived and released as a condition of, and as part of the
consideration for, the execution of this Indenture and the issuance of the
Securities.
ARTICLE FIFTEEN
SUBORDINATION OF SECURITIES
SECTION 1501. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS.
The Company, for itself, its successors and assigns, covenants
and agrees, and each Holder of the Securities of each series, by its
acceptance thereof, likewise covenants and agrees, that the payment of the
principal of and premium, if any, and interest, if any, on each and all of
the Securities is hereby expressly subordinated and subject to the extent
and in the manner set forth in this Article, in right of payment to the
prior payment in full of all Senior Indebtedness.
Each Holder of the Securities of each series, by its
acceptance thereof, authorizes and directs the Trustee on its behalf to
take such action as may be necessary or appropriate to effectuate the
subordination as provided in this Article, and appoints the Trustee its
attorney-in-fact for any and all such purposes.
SECTION 1502. PAYMENT OVER OF PROCEEDS OF SECURITIES.
In the event (a) of any insolvency or bankruptcy proceedings
or any receivership, liquidation, reorganization or other similar
proceedings in respect of the Company or a substantial part of its
property, or of any proceedings for liquidation, dissolution or other
winding up of the Company, whether or not involving insolvency or
bankruptcy, or (b) subject to the provisions of Section 1503, that (i) a
default shall have occurred with respect to the payment of principal of or
interest on or other monetary amounts due and payable on any Senior
Indebtedness, or (ii) there shall have occurred a default (other than a
default in the payment of principal or interest or other monetary amounts
due and payable) in respect of any Senior Indebtedness, as defined therein
or in the instrument under which the same is outstanding, permitting the
holder or holders thereof to accelerate the maturity thereof (with notice
or lapse of time, or both), and such default shall have continued beyond
the period of grace, if any, in respect thereof, and, in the cases of
subclauses (i) and (ii) of this clause (b), such default shall not have
been cured or waived or shall not have ceased to exist, or (c) that the
principal of and accrued interest on the Securities of any series shall
have been declared due and payable pursuant to Section 801 and such
declaration shall not have been rescinded and annulled as provided in
Section 802, then:
(1) the holders of all Senior Indebtedness shall
first be entitled to receive payment of the full amount
due thereon, or provision shall be made for such payment
in money or money's worth, before the Holders of any of
the Securities are entitled to receive a payment on
account of the principal of or interest on the
indebtedness evidenced by the Securities, including,
without limitation, any payments made pursuant to
Articles Four and Five;
(2) any payment by, or distribution of assets of,
the Company of any kind or character, whether in cash,
property or securities, to which any Holder or the
Trustee would be entitled except for the provisions of
this Article, shall be paid or delivered by the person
making such payment or distribution, whether a trustee in
bankruptcy, a receiver or liquidating trustee or
otherwise, directly to the holders of such Senior
Indebtedness or their representative or representatives
or to the trustee or trustees under any indenture under
which any instruments evidencing any of such Senior
Indebtedness may have been issued, ratably according to
the aggregate amounts remaining unpaid on account of such
Senior Indebtedness held or represented by each, to the
extent necessary to make payment in full of all Senior
Indebtedness remaining unpaid after giving effect to any
concurrent payment or distribution (or provision
therefor) to the holders of such Senior Indebtedness,
before any payment or distribution is made to the Holders
of the indebtedness evidenced by the Securities or to the
Trustee under this Indenture; and
(3) in the event that, notwithstanding the
foregoing, any payment by, or distribution of assets of,
the Company of any kind or character, whether in cash,
property or securities, in respect of principal of or
interest on the Securities or in connection with any
repurchase by the Company of the Securities, shall be
received by the Trustee or any Holder before all Senior
Indebtedness is paid in full, or provision is made for
such payment in money or money's worth, such payment or
distribution in respect of principal of or interest on
the Securities or in connection with any repurchase by
the Company of the Securities shall be paid over to the
holders of such Senior Indebtedness or their
representative or representatives or to the trustee or
trustees under any indenture under which any instruments
evidencing any such Senior Indebtedness may have been
issued, ratably as aforesaid, for application to the
payment of all Senior Indebtedness remaining unpaid until
all such Senior Indebtedness shall have been paid in
full, after giving effect to any concurrent payment or
distribution (or provision therefor) to the holders of
such Senior Indebtedness.
Notwithstanding the foregoing, at any time after the 123rd day
following the date of deposit of cash or Government Obligations pursuant to
Section 701 (provided all conditions set out in such Section shall have
been satisfied), the funds so deposited and any interest thereon will not
be subject to any rights of holders of Senior Indebtedness including,
without limitation, those arising under this Article Fifteen; provided that
no event described in clauses (d) and (e) of Section 801 with respect to
the Company has occurred during such 123-day period.
For purposes of this Article only, the words "cash, property
or securities" shall not be deemed to include shares of stock of the
Company as reorganized or readjusted, or securities of the Company or any
other corporation provided for by a plan or reorganization or readjustment
which are subordinate in right of payment to all Senior Indebtedness which
may at the time be outstanding to the same extent as, or to a greater
extent than, the Securities are so subordinated as provided in this
Article. The consolidation of the Company with, or the merger of the
Company into, another corporation or the liquidation or dissolution of the
Company following the conveyance or transfer of its property as an
entirety, or substantially as an entirety, to another corporation upon the
terms and conditions provided for in Article Eleven hereof shall not be
deemed a dissolution, winding-up, liquidation or reorganization for the
purposes of this Section 1502 if such other corporation shall, as a part of
such consolidation, merger, conveyance or transfer, comply with the
conditions stated in Article Eleven hereof. Nothing in Section 1501 or in
this Section 1502 shall apply to claims of, or payments to, the Trustee
under or pursuant to Section 907.
SECTION 1503. DISPUTES WITH HOLDERS OF CERTAIN SENIOR INDEBTEDNESS.
Any failure by the Company to make any payment on or perform
any other obligation in respect of Senior Indebtedness, other than any
indebtedness incurred by the Company or assumed or guaranteed, directly or
indirectly, by the Company for money borrowed (or any deferral, renewal,
extension or refunding thereof) or any other obligation as to which the
provisions of this Section shall have been waived by the Company in the
instrument or instruments by which the Company incurred, assumed,
guaranteed or otherwise created such indebtedness or obligation, shall not
be deemed a default under clause (b) of Section 1502 if (i) the Company
shall be disputing its obligation to make such payment or perform such
obligation and (ii) either (A) no final judgment relating to such dispute
shall have been issued against the Company which is in full force and
effect and is not subject to further review, including a judgment that has
become final by reason of the expiration of the time within which a party
may seek further appeal or review, or (B) in the event that a judgment that
is subject to further review or appeal has been issued, the Company shall
in good faith be prosecuting an appeal or other proceeding for review and a
stay or execution shall have been obtained pending such appeal or review.
SECTION 1504. SUBROGATION.
Senior Indebtedness shall not be deemed to have been paid in
full unless the holders thereof shall have received cash (or securities or
other property satisfactory to such holders) in full payment of such Senior
Indebtedness then outstanding. Subject to the prior payment in full of all
Senior Indebtedness, the rights of the Holders of the Securities shall be
subrogated to the rights of the holders of Senior Indebtedness to receive
any further payments or distributions of cash, property or securities of
the Company applicable to the holders of the Senior Indebtedness until all
amounts owing on the Securities shall be paid in full; and such payments or
distributions of cash, property or securities received by the Holders of
the Securities, by reason of such subrogation, which otherwise would be
paid or distributed to the holders of such Senior Indebtedness shall, as
between the Company, its creditors other than the holders of Senior
Indebtedness, and the Holders, be deemed to be a payment by the Company to
or on account of Senior Indebtedness, it being understood that the
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders, on the one hand, and the
holders of the Senior Indebtedness, on the other hand.
SECTION 1505. OBLIGATION OF THE COMPANY UNCONDITIONAL.
Nothing contained in this Article or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as among the
Company, its creditors other than the holders of Senior Indebtedness and
the Holders, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders the principal of and interest on the
Securities as and when the same shall become due and payable in accordance
with their terms, or is intended to or shall affect the relative rights of
the Holders and creditors of the Company other than the holders of Senior
Indebtedness, nor shall anything herein or therein prevent the Trustee or
any Holder from exercising all remedies otherwise permitted by applicable
law upon default under this Indenture, subject to the rights, if any, under
this Article of the holders of Senior Indebtedness in respect of cash,
property or securities of the Company received upon the exercise of any
such remedy.
Upon any payment or distribution of assets or securities of
the Company referred to in this Article, the Trustee and the Holders shall
be entitled to rely upon any order or decree of a court of competent
jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending for the purpose of ascertaining the
persons entitled to participate in such distribution, the holders of the
Senior Indebtedness and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed
thereon, and all other facts pertinent thereto or to this Article.
SECTION 1506. PRIORITY OF SENIOR INDEBTEDNESS UPON MATURITY.
Upon the maturity of the principal of any Senior Indebtedness
by lapse of time, acceleration or otherwise, all matured principal of
Senior Indebtedness and interest and premium, if any, thereon shall first
be paid in full before any payment of principal or premium, if any, or
interest, if any, is made upon the Securities or before any Securities can
be acquired by the Company or any sinking fund payment is made with respect
to the Securities (except that required sinking fund payments may be
reduced by Securities acquired before such maturity of such Senior
Indebtedness).
SECTION 1507. TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS.
The Trustee shall be entitled to all rights set forth in this
Article with respect to any Senior Indebtedness at any time held by it, to
the same extent as any other holder of Senior Indebtedness. Nothing in this
Article shall deprive the Trustee of any of its rights as such holder.
SECTION 1508. NOTICE TO TRUSTEE TO EFFECTUATE SUBORDINATION.
Notwithstanding the provisions of this Article or any other
provision of the Indenture, the Trustee shall not be charged with knowledge
of the existence of any facts which would prohibit the making of any
payment of moneys to or by the Trustee unless and until the Trustee shall
have received written notice thereof from the Company, from a Holder or
from a holder of any Senior Indebtedness or from any representative or
representatives of such holder and, prior to the receipt of any such
written notice, the Trustee shall be entitled, subject to Section 901, in
all respects to assume that no such facts exist; provided, however, that,
if prior to the fifth Business Day preceding the date upon which by the
terms hereof any such moneys may become payable for any purpose, or in the
event of the execution of an instrument pursuant to Section 702
acknowledging satisfaction and discharge of this Indenture, then if prior
to the second Business Day preceding the date of such execution, the
Trustee shall not have received with respect to such moneys the notice
provided for in this Section, then, anything herein contained to the
contrary notwithstanding, the Trustee may, in its discretion, receive such
moneys and/or apply the same to the purpose for which they were received,
and shall not be affected by any notice to the contrary, which may be
received by it on or after such date; provided, however, that no such
application shall affect the obligations under this Article of the persons
receiving such moneys from the Trustee.
SECTION 1509. MODIFICATION, EXTENSION, ETC. OF SENIOR INDEBTEDNESS.
The holders of Senior Indebtedness may, without affecting in
any manner the subordination of the payment of the principal of and
premium, if any, and interest, if any, on the Securities, at any time or
from time to time and in their absolute discretion, agree with the Company
to change the manner, place or terms of payment, change or extend the time
of payment of, or renew or alter, any Senior Indebtedness, or amend or
supplement any instrument pursuant to which any Senior Indebtedness is
issued, or exercise or refrain from exercising any other of their rights
under the Senior Indebtedness including, without limitation, the waiver of
default thereunder, all without notice to or assent from the Holders or the
Trustee.
SECTION 1510. TRUSTEE HAS NO FIDUCIARY DUTY TO HOLDERS OF SENIOR
INDEBTEDNESS.
With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants and
objectives as are specifically set forth in this Indenture, and no implied
covenants or obligations with respect to the holders of Senior Indebtedness
shall be read into this Indenture against the Trustee. The Trustee shall
not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness, and shall not be liable to any such holders if it shall
mistakenly pay over or deliver to the Holders or the Company or any other
Person, money or assets to which any holders of Senior Indebtedness shall
be entitled by virtue of this Article or otherwise.
SECTION 1511. PAYING AGENTS OTHER THAN THE TRUSTEE.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the
term "Trustee" as used in this Article shall in such case (unless the
context shall otherwise require) be construed as extending to and including
such Paying Agent within its meaning as fully for all intents and purposes
as if such Paying Agent were named in this Article in addition to or in
place of the Trustee; provided, however, that Sections 1507, 1508 and 1510
shall not apply to the Company if it acts as Paying Agent.
SECTION 1512. RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS NOT IMPAIRED.
No right of any present or future holder of Senior
Indebtedness to enforce the subordination herein shall at any time or in
any way be prejudiced or impaired by any act or failure to act on the part
of the Company or by any noncompliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any knowledge
thereof any such holder may have or be otherwise charged with.
SECTION 1513. EFFECT OF SUBORDINATION PROVISIONS; TERMINATION.
Notwithstanding anything contained herein to the contrary,
other than as provided in the immediately succeeding sentence, all the
provisions of this Indenture shall be subject to the provisions of this
Article, so far as the same may be applicable thereto.
Notwithstanding anything contained herein to the contrary, the
provisions of this Article Fifteen shall be of no further effect, and the
Securities shall no longer be subordinated in right of payment to the prior
payment of Senior Indebtedness, if the Company shall have delivered to the
Trustee a notice to such effect. Any such notice delivered by the Company
shall not be deemed to be a supplemental indenture for purposes of Article
Twelve.
_________________________
<PAGE>
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the day and year first above
written.
DELMARVA POWER & LIGHT COMPANY
By: /s/ B.S. Graham
-------------------------------------------
Senior Vice President, Treasurer and
Chief Financial Officer
WILMINGTON TRUST COMPANY, Trustee
By: /s/ Norma Closs
--------------------------------------------
<PAGE>
STATE OF DELAWARE )
) ss.:
COUNTY OF )
On the 1st day of October, 1996, before me personally came
B.S. Graham, to me known, who, being by me duly sworn, did depose and say
that she is the Senior Vice President, Treasurer and Chief Financial
Officer of Delmarva Power & Light Company, one of the corporations
described in and which executed the foregoing instrument; that she knows
the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed her name thereto by like
authority.
/s/ Sheryl R. Hynson
----------------------------------
Sheryl R. Hynson
Notary Public, State of Delaware
My Commission Expires March 23, 1999
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 3rd day of October, 1996, before me personally came
Norma Closs, to me known, who, being by me duly sworn, did depose and say
that she is a Vice President of Wilmington Trust Company, one of the
corporations described in and which executed the foregoing instrument; that
she knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation, and that she signed her name
thereto by like authority.
/s/ Carmela F. Marabello
---------------------------------
Carmela F. Marabello
NOTARY PUBLIC, State of New York
No. 24-4763158
Qualified in Kings County
Commission Expires 11/30/96
Delmarva Power & Light Company
OFFICER'S CERTIFICATE
Barbara S. Graham, the Senior Vice President, Treasurer and
Chief Financial Officer of Delmarva Power & Light Company (the
"Company"), pursuant to the authority granted in the Board
Resolutions of the Company dated June 27, 1996, July 25, 1996 and
September 26, 1996, and Sections 201 and 301 of the Indenture
defined herein, does hereby certify to Wilmington Trust Company
(the "Trustee"), as Trustee under the Indenture of the Company
(For Unsecured Subordinated Debt Securities relating to Trust
Securities) dated as of October 1, 1996 (the "Indenture") that:
1. The securities of the first series to be issued under
the Indenture shall be designated "8.125% Junior
Subordinated Debentures, Series I, Due" (the
"Debentures of the First Series"). The Debentures of
the First Series are to be issued to Delmarva Power
Financing I, a Delaware statutory business trust (the
"Trust");
2. The Debentures of the First Series shall be limited in
aggregate principal amount to $72,165,000 at any time
Outstanding, except as contemplated in Section 301(b)
of the Indenture;
3. The Debentures of the First Series shall mature and the
principal shall be due and payable together with all
accrued and unpaid interest thereon on September 30,
2036;
4. The Debentures of the First Series shall bear interest
from, and including, the date of original issuance, at
the rate of 8.125% per annum payable quarterly in
arrears (together with Additional Interest, if any) on
March 31, June 30, September 30 and December 31 of each
year (each, an "Interest Payment Date") commencing
December 31, 1996. The amount of interest payable for
any such period will be computed on the basis of a 360-
day year of twelve 30-day months and for any period
shorter than a full month, on the basis of the actual
number of days elapsed in such period. Interest on the
Debentures of the First Series will accrue from, and
including, the date of original issuance and will
accrue to, and including, the first Interest Payment
Date, and for each subsequent Interest Payment Date
will accrue from, and excluding, the last Interest
Payment Date through which interest has been paid or
duly provided for to, and including, such Interest
Payment Date. In the event that any Interest Payment
Date is not a Business Day, then payment of interest
payable on such date will be made on the next
succeeding day which is a Business Day, except that, if
such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately
preceding Business Day, in each case with the same
force and effect as if made on such Interest Payment
Date;
5. Each installment of interest on a Debenture of the
First Series shall be payable to the Person in whose
name such Debenture of the First Series is registered
at the close of business on the Business Day 15 days
preceding the corresponding Interest Payment Date (the
"Regular Record Date") for the Debentures of the First
Series; provided, however, that if the Debentures of
the First Series are held neither by the Trust nor by a
securities depositary, the Company shall have the right
to change the Regular Record Date by one or more
Officer's Certificates. Any installment of interest on
the Debentures of the First Series not punctually paid
or duly provided for shall forthwith cease to be
payable to the Holders of such Debentures of the First
Series on such Regular Record Date, and may be paid to
the Persons in whose name the Debentures of the First
Series are registered at the close of business on a
Special Record Date to be fixed by the Trustee for the
payment of such Defaulted Interest. Notice of such
Defaulted Interest and Special Record Date shall be
given to the Holders of the Debentures of the First
Series not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of
any securities exchange on which the Debentures of the
First Series may be listed, and upon such notice as may
be required by such exchange, all as more fully
provided in the Indenture;
6. The principal and each installment of interest on the
Debentures of the First Series shall be payable at, and
registration and registration of transfers and
exchanges in respect of the Debentures of the First
Series may be effected at, the office or agency of the
Company in The City of New York; provided, however,
that payment of interest may be made at the option of
the Company by check mailed to the address of the
persons entitled thereto under the Indenture. Notices,
demands to or upon the Company in respect of the
Debentures of the First Series may be served at the
office or agency of the Company in The City of New
York. The Trustee will initially be the agency of the
Company for such service of notices and demands;
provided, however, that the Company reserves the right
to change, by one or more Officer's Certificates any
such office or agency. The Company will be the
Security Registrar and the Paying Agent for the
Debentures of the First Series;
7. The Debentures of the First Series will be redeemable
on or after September 30, 2001 at the option of the
Company, at any time and from time to time, in whole or
in part, at a redemption price equal to 100% of the
principal amount of the Debentures of the First Series
being redeemed, together with any accrued interest,
including Additional Interest, if any, to the
redemption date, upon not less than 30 nor more than 60
days' notice given as provided in the Indenture.
The Debentures of the First Series will also be
redeemable at any time at the option of the Company
upon the occurrence and during the continuation of a
Tax Event or an Investment Company Event in whole but
not in part, at a redemption price equal to 100% of the
principal amount of the Debentures of the First Series
then Outstanding plus any accrued and unpaid interest,
including Additional Interest, if any, to the
redemption date, upon not less than 30 nor more than 60
days' notice given as provided in the Indenture. "Tax
Event" means the receipt by the Trust of an opinion of
counsel (which may be counsel to the Company or an
affiliate but not an employee thereof and which must be
acceptable to the Property Trustee under the Trust
Agreement) experienced in such matters to the effect
that, as a result of any amendment to, or change
(including any announced prospective change) in, the
laws (or any regulations thereunder) of the United
States or any political subdivision or taxing authority
thereof or therein affecting taxation, or as a result
of any official administrative or judicial
pronouncement or decision interpreting or applying such
laws or regulations, which amendment or change is
effective or which pronouncement or decision is
announced on or after the date of original issuance of
the ____% Trust Preferred Capital Securities of the
Trust (the "Preferred Securities"), there is more than
an insubstantial risk that at such time or within 90
days thereof (i) the Trust is, or will be, subject to
United States federal income tax with respect to income
received or accrued on the Debentures of the First
Series, (ii) interest payable by the Company on the
Debentures of the First Series, is not, or will not be
fully deductible for United States federal income tax
purposes, or (iii) the Trust is, or will be, subject to
more than a de minimis amount of other taxes, duties or
other governmental charges. "Investment Company Event"
means the occurrence of a change in law or regulation
or a change in interpretation or application of law or
regulation by any legislative body, court, governmental
agency or regulatory authority to the effect that the
Trust is or will be considered an "investment company"
that is required to be registered under the Investment
Company Act of 1940, as amended, which change in law
becomes effective on or after the date of original
issuance of the Preferred Securities;
The Debentures of the First Series will also be
redeemable, in whole but not in part, at the option of
the Company upon the termination and liquidation of the
Trust pursuant to an order for the dissolution,
termination or liquidation of the Trust entered by a
court of competent jurisdiction at a redemption price
equal to 100% of the principal amount of the Debentures
of the First Series then Outstanding plus any accrued
and unpaid interest, including Additional Interest, if
any, to the redemption date;
The Company may not redeem less than all the Debentures
of the First Series Outstanding unless all accrued and
unpaid interest (including any Additional Interest) has
been paid in full or duly provided for on all
Debentures of the First Series Outstanding under the
Indenture for all quarterly interest periods
terminating on or prior to the date of redemption;
Any notice of redemption given with respect to the
Debentures of the First Series shall be unconditional;
8. Pursuant to Section 311 of the Indenture, the Company
shall have the right, at any time and from time to time
during the term of the Debentures of the First Series,
to extend the interest payment period to a period not
exceeding 20 consecutive quarters (an "Extension
Period"). Prior to the end of an Extension Period, the
Company may, and at the end of the Extension Period the
Company shall, pay all interest accrued and unpaid
(together with interest thereon at the rate specified
for the Debentures of the First Series, compounded
quarterly, to the extent permitted by applicable law).
During any such Extension Period, the Company shall not
declare or pay any dividend or distribution (other than
a dividend or distribution in common stock of the
Company) on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital
stock, or make any payment of principal, interest or
premium, if any, on or repay, repurchase or redeem any
indebtedness that is pari passu with the Debentures of
the First Series (including other Securities issued
under the Indenture), or make any guarantee payments
with respect to the foregoing. Prior to the
termination of any such Extension Period, the Company
may further extend the interest payment period,
provided that such Extension Period together with all
such previous and further extensions thereof shall not
exceed 20 consecutive quarters at any one time or
extend beyond the Stated Maturity of the Debentures of
the First Series. Upon the termination of any such
Extension Period and the payment of all amounts then
due, the Company may select a new Extension Period,
subject to the above requirements. No interest shall
be due and payable during an Extension Period, except
at the end thereof. The Company will give the Trust or
other Holders and the Trustee notice of its election of
an Extension Period prior to the earlier of (i) one
Business Day prior to the record date for the interest
payment which would occur but for such election or (ii)
the date the Company is required to give notice to the
New York Stock Exchange or other applicable
self-regulatory organization of the record date;
9. In the event that, at any time subsequent to the
initial authentication and delivery of the Debentures
of the First Series, the Debentures of the First Series
are to be held by a securities depositary, the Company
may at such time establish the matters contemplated in
clause (r) in the second paragraph of Section 301 of
the Indenture in an Officer's Certificate supplemental
to this Certificate;
10. No service charge shall be made for the registration of
transfer or exchange of the Debentures of the First
Series; provided, however, that the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection
with the exchange or transfer;
11. The Debentures of the First Series shall have such
other terms and provisions as are provided in the form
set forth in Exhibit A hereto, and shall be issued in
substantially such form;
12. In the event that the Debentures of the First Series
are distributed to holders of the Preferred Securities
as a result of the occurrence of (i) a Tax Event or
(ii) an Investment Company Event, the Company will use
its best efforts to list the Debentures of the First
Series on the New York Stock Exchange or on such other
exchange as the Preferred Securities are then listed;
13. The undersigned has read all of the covenants and
conditions contained in the Indenture relating to the
issuance of the Debentures of the First Series and the
definitions in the Indenture relating thereto and in
respect of which this certificate is made;
14. The statements contained in this certificate are based
upon the familiarity of the undersigned with the
Indenture, the documents accompanying this certificate,
and upon discussions by the undersigned with officers
and employees of the Company familiar with the matters
set forth herein;
15. In the opinion of the undersigned, he or she has made
such examination or investigation as is necessary to
express an informed opinion whether or not such
covenants and conditions have been complied with; and
16. In the opinion of the undersigned, such conditions and
covenants and conditions precedent, if any (including
any covenants compliance with which constitutes a
condition precedent) to the authentication and delivery
of the Debentures of the First Series requested in the
accompanying Company Order have been complied with.
All capitalized terms used in this certificate which are not
defined herein but are defined in the Indenture shall have the
meanings set forth in the Indenture.
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this
Officer's Certificate this 3rd day of October, 1996.
/s/ B.S. Graham
-----------------------------
B.S. Graham,
Senior Vice President,
Treasurer and
Chief Financial Officer
<PAGE>
No. R-1
DELMARVA POWER & LIGHT COMPANY
8.125% JUNIOR SUBORDINATED DEBENTURES, SERIES I,
DUE 2036
DELMARVA POWER & LIGHT COMPANY, a corporation duly organized
and existing under the laws of the States of Delaware and
Virginia (herein referred to as the "Company," which term
includes any successor Person under the Indenture), for value
received, hereby promises to pay to Delmarva Power Financing I,
or registered assigns, the principal sum of Seventy-two Million
one Hundred Sixty-five Thousand Dollars on September 30, 2036,
and to pay interest on said principal sum, from and including,
October 3, 1996 or from, and excluding, the most recent Interest
Payment Date through which interest has been paid or duly
provided for, quarterly on March 31, June 30, September 30 and
December 31 of each year, commencing December 31, 1996 at the
rate of 8.125% per annum until the principal hereof is paid or
made available for payment. The amount of interest payable on
any Interest Payment Date shall be computed on the basis of a
360-day year of twelve 30-day months. Interest on the Securities
of this series will accrue from, and including, October 3, 1996
through the first Interest Payment Date, and thereafter will
accrue, from, and excluding, the last Interest Payment Date
through which interest has been paid or duly provided for. In the
event that any Interest Payment Date is not a Business Day, then
payment of interest payable on such date will be made on the next
succeeding day which is a Business Day, except that, if such
Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day,
in each case with the same force and effect as if made on the
Interest Payment Date. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date
for such interest, which shall be the Business Day 15 days
preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either
be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on
a Special Record Date for the payment of such Defaulted Interest
to be fixed by the Trustee, notice whereof shall be given to
Holders of Securities of this series not less than 10 days prior
to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be
listed, and upon such notice as may be required by such exchange,
all as more fully provided in the Indenture referred to on the
reverse hereof.
Payment of the principal of and premium, if any, and
interest on this Security will be made at the office or agency of
the Company maintained for that purpose in The City of New York,
the State of New York in such coin or currency of the United
States of America as at the time of payment is legal tender for
payment of public and private debts; provided, however, that, at
the option of the Company, interest on this Security may be paid
by check mailed to the address of the person entitled thereto, as
such address shall appear on the Security Register.
Reference is hereby made to the further provisions of
this Security set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon has
been executed by the Trustee referred to on the reverse hereof by
manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed.
DELMARVA POWER & LIGHT COMPANY
By:_________________________
ATTEST:
____________________________
CERTIFICATE OF AUTHENTICATION
Dated: ___________________
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
WILMINGTON TRUST COMPANY,
as Trustee
By:________________________________
Authorized Signatory
REVERSE OF JUNIOR SUBORDINATED DEBENTURE
This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities"),
issued and to be issued in one or more series under an Indenture,
dated as of October 1, 1996 (herein, together with any amendments
thereto, called the "Indenture," which term shall have the
meaning assigned to it in such instrument), between the Company
and Wilmington Trust Company, as Trustee (herein called the
"Trustee," which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture,
including the Board Resolutions and Officer's Certificate filed
with the Trustee on October 3, 1996, creating the series
designated on the face hereof, for a statement of the respective
rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders of the Securities and
of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series
designated on the face hereof, limited in aggregate principal
amount to $72,165,000.
The Securities of this series are subject to redemption
upon not less than 30 nor more than 60 days' notice by mail, at
any time on or after September 30, 2001 as a whole or in part, at
the election of the Company, at a Redemption Price equal to 100%
of the principal amount, together in the case of any such
redemption with accrued interest to, but not including, the
Redemption Date, but interest installments whose Stated Maturity
is on or prior to such Redemption Date will be payable to the
Holder of such Security, or one or more Predecessor Securities,
of record at the close of business on the related Regular Record
Date referred to on the face hereof, all as provided in the
Indenture.
The Securities of this series also will be redeemable
at the option of the Company if a Tax Event or an Investment
Company Event shall occur and be continuing, in whole but not in
part, at a redemption price equal to 100% of the principal amount
of the Securities of this series then Outstanding plus any
accrued and unpaid interest, including Additional Interest, if
any, to the redemption date, upon not less than 30 nor more than
60 days' notice given as provided in the Indenture. "Tax Event"
means the receipt by Delmarva Power Financing I, a Delaware
statutory business trust (the "Trust") of an opinion of counsel
(which may be counsel to the Company or an affiliate but not an
employee thereof and which must be acceptable to the Property
Trustee under the Trust Agreement) experienced in such matters to
the effect that, as a result of any amendment to, or change
(including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein affecting
taxation, or as a result of any official administrative or
judicial pronouncement or decision interpreting or applying such
laws or regulations, which amendment or change is effective or
which pronouncement or decision is announced on or after the date
of original issuance of the 8.125% Trust Preferred Capital
Securities of the Trust (the "Preferred Securities"), there is
more than an insubstantial risk that at such time or within 90
days thereof (i) the Trust is, or will be, subject to United
States federal income tax with respect to income received or
accrued on the Securities, (ii) interest payable by the Company
on the Securities, is not, or will not be, fully deductible for
United States federal income tax purposes, or (iii) the Trust is,
or will be, subject to more than a de minimis amount of other
taxes, duties or other governmental charges. "Investment Company
Event" means the occurrence of a change in law or regulation or a
change in interpretation or application of law or regulation by
any legislative body, court, governmental agency or regulatory
authority to the effect that the Trust is or will be considered
an "investment company" that is required to be registered under
the Investment Company Act of 1940, as amended, which change in
law becomes effective on or after the date of original issuance
of the Preferred Securities.
The Securities of this series also will be redeemable,
in whole but not in part, at the option of the Company upon the
termination and liquidation of the Trust pursuant to an order for
the dissolution, termination or liquidation of the Trust entered
by a court of competent jurisdiction at a redemption price equal
to 100% of the principal amount of the Securities of this series
then Outstanding plus any accrued and unpaid interest, including
Additional Interest, if any, to the redemption date, upon not
less than 30 nor more than 60 days' notice given as provided in
the Indenture.
In the event of redemption of this Security in part
only, a new Security or Securities of this series and of like
tenor for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.
The indebtedness evidenced by this Security is, to the
extent provided in the Indenture, subordinated and subject in
right of payment to the prior payment in full of all Senior
Indebtedness, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of
this Security, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee
on his behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for
any and all such purposes. Each Holder hereof, by his acceptance
hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by
each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such Holder upon
said provisions.
The Indenture contains provisions for defeasance at any
time of the entire indebtedness of this Security upon compliance
with certain conditions set forth in the Indenture.
If an Event of Default with respect to Securities of
this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the
Holders of the Securities of each series to be affected under the
Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the
Securities at the time Outstanding of all series to be affected.
The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of
each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made
upon this Security.
As provided in and subject to the provisions of the
Indenture, the Holder of this Security shall not have the right
to institute any proceeding with respect to the Indenture or for
the appointment of a receiver or trustee or for any other remedy
thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with
respect to the Securities of this series, the Holders of not less
than a majority in aggregate principal amount of the Securities
of all series at the time Outstanding in respect of which an
Event of Default shall have occurred and be continuing shall have
made written request to the Trustee to institute proceedings in
respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity, and the Trustee shall not have
received from the Holders of a majority in aggregate principal
amount of Securities of all series at the time Outstanding in
respect of which an Event of Default shall have occurred and be
continuing a direction inconsistent with such request, and shall
have failed to institute any such proceeding, for 60 days after
receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal
hereof or any premium or interest hereon on or after the
respective due dates expressed herein.
No reference herein to the Indenture and no provision
of this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and any premium and interest on this
Security at the times, place and rate, and in the coin or
currency, herein prescribed.
The Company has the right at any time and from time to
time during the term of the Securities of this series to extend
the interest payment period to a period not exceeding 20
consecutive quarters (an "Extension Period"). Prior to the end
of an Extension Period, the Company may, and at the end of such
Extension Period, the Company shall, pay all interest then
accrued and unpaid (together with interest thereon at the same
rate as specified for the Securities of this series, compounded
quarterly, to the extent permitted by applicable law). During
any such Extension Period the Company shall not declare or pay
any dividend or distribution (other than a dividend or
distribution in common stock of the Company) on, or redeem,
purchase, acquire or make a liquidation payment with respect to,
any of its capital stock, or make any payment of principal on,
interest or premium if any, on or repay, repurchase or redeem any
indebtedness that is pari passu with the Securities of this
series (including other Securities issued under the Indenture),
or make any guarantee payments with respect to the foregoing.
Prior to the termination of any such Extension Period, the
Company may further extend the interest payment period, provided
that such Extension Period, together with all such previous and
further extensions thereof, may not exceed 20 consecutive
quarters or extend beyond the Stated Maturity of the Securities
of this series. Upon the termination of any such Extension
Period and the payment of all amounts then due, the Company may
select a new Extension Period, subject to the above requirements.
No interest during the Extension Period, except at the end
thereof, shall be due and payable. The Company shall give the
Holder of this Security notice of its selection of such Extension
Period as provided in or pursuant to the Indenture.
The Securities of this series are issuable only in
registered form without coupons in denominations of $25 and any
integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor and of
authorized denominations, as requested by the Holder surrendering
the same.
As provided in the Indenture, the Company shall not be
required to make transfers or exchanges of Securities of this
series for a period of 15 days immediately preceding the date of
the mailing of any notice of redemption of such Securities and
the Company shall not be required to make transfers or exchanges
of any Securities of this series so selected for redemption in
whole or in part (except the unredeemed portion of thereof).
No service charge shall be made for any such
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Security
is registered as the absolute owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in
the Indenture shall have the meanings assigned to them in the
Indenture.
GUARANTEE AGREEMENT
Between
Delmarva Power & Light Company
(as Guarantor)
and
Wilmington Trust Company
(as Trustee)
dated as of
October 1, 1996
<PAGE>
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . 1
SECTION 1.01 Definitions . . . . . . . . . . . . . . . 1
ARTICLE II TRUST INDENTURE ACT . . . . . . . . . . . . . . 3
SECTION 2.01 Conflict with Trust Indenture Act . . . . 3
SECTION 2.02 Lists of Holders of Preferred Securities . 3
SECTION 2.03 Reports by the Guarantee Trustee . . . . . 3
SECTION 2.04 Periodic Reports to Guarantee Trustee . . 4
SECTION 2.05 Evidence of Compliance with
Conditions Precendent . . . . . . . . . . . . . 4
SECTION 2.06 Events of Default; Waiver . . . . . . . . 4
SECTION 2.07 Event of Default; Notice . . . . . . . . . 4
ARTICLE III POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE . 5
SECTION 3.01 Powers and Duties of the Guarantee
Trustee . . . . . . . . . . . . . . . . . . . . 5
SECTION 3.02 Certain Rights of Guarantee Trustee . . . 6
ARTICLE IV GUARANTEE TRUSTEE . . . . . . . . . . . . . . . 8
SECTION 4.01 Guarantee Trustee; Eligibility . . . . . . 8
SECTION 4.02 Compensation and Reimbursement . . . . . . 9
SECTION 4.03 Appointment, Removal and Resignation of
Guarantee Trustee . . . . . . . . . . . . . . . 10
ARTICLE V GUARANTEE . . . . . . . . . . . . . . . . . . . 10
SECTION 5.01 Guarantee . . . . . . . . . . . . . . . . 10
SECTION 5.02 Waiver of Notice and Demand . . . . . . . 11
SECTION 5.03 Obligations Not Affected . . . . . . . . . 11
SECTION 5.04 Rights of Holders . . . . . . . . . . . . 12
SECTION 5.05 Guarantee of Payment . . . . . . . . . . . 12
SECTION 5.06 Subrogation . . . . . . . . . . . . . . . 12
SECTION 5.07 Independent Obligations . . . . . . . . . 12
ARTICLE VI SUBORDINATION . . . . . . . . . . . . . . . . . 13
SECTION 6.01 Subordination . . . . . . . . . . . . . . 13
ARTICLE VII TERMINATION . . . . . . . . . . . . . . . . . . 13
SECTION 7.01 Termination . . . . . . . . . . . . . . . 13
ARTICLE VIII MISCELLANEOUS . . . . . . . . . . . . . . . . 13
SECTION 8.01 Successors and Assigns . . . . . . . . . . 13
SECTION 8.02 Amendments . . . . . . . . . . . . . . . . 13
SECTION 8.03 Notices . . . . . . . . . . . . . . . . . 14
SECTION 8.04 Benefit . . . . . . . . . . . . . . . . . 15
SECTION 8.05 Interpretation . . . . . . . . . . . . . . 15
SECTION 8.06 Governing Law . . . . . . . . . . . . . . 15
CROSS-REFERENCE TABLE
---------------------
Section of Section of
Trust Indenture Act Guarantee
of 1939, as amended Agreement
------------------- ---------
310(a) . . . . . . . . . . . . . . . . . . . . . . . . . 4.01(a)
310(b) . . . . . . . . . . . . . . . . . . . . . . . . . 4.01(c), 2.08
310(c) . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . 2.02(b)
311(b) . . . . . . . . . . . . . . . . . . . . . . . . . 2.02(b)
311(c) . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . 2.02(a)
312(b) . . . . . . . . . . . . . . . . . . . . . . . . . 2.02(b)
313 . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.03
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . 2.04
314(b) . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(c) . . . . . . . . . . . . . . . . . . . . . . . . . 2.05
314(d) . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(e) . . . . . . . . . . . . . . . . . . . . . . . . . 1.01, 2.05,
3.02
314(f) . . . . . . . . . . . . . . . . . . . . . . . . . 2.01, 3.02
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . 3.01(c)
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . 2.07
315(c) . . . . . . . . . . . . . . . . . . . . . . . . . 3.01
315(d) . . . . . . . . . . . . . . . . . . . . . . . . . 3.01(c)
316(a) . . . . . . . . . . . . . . . . . . . . . . . . . 5.04(a), 2.06
316(b) . . . . . . . . . . . . . . . . . . . . . . . . . 5.03
316(c) . . . . . . . . . . . . . . . . . . . . . . . . . 2.02
317(a) . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
317(b) . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . 2.01(b)
318(b) . . . . . . . . . . . . . . . . . . . . . . . . . 2.01
318(c) . . . . . . . . . . . . . . . . . . . . . . . . . 2.01(a)
----------------
* This Cross-Reference Table does not constitute part of the
Guarantee Agreement and shall not affect the interpretation of
any of its terms or provisions.
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT ("Guarantee Agreement"), dated
as of October 1, 1996, is executed and delivered by Delmarva
Power & Light Company, a Delaware and Virginia corporation (the
"Guarantor"), and Wilmington Trust Company, as trustee (the "Guarantee
Trustee"), for the benefit of the Holders (as defined herein) from
time to time of the Preferred Securities (as defined herein) of
Delmarva Power Financing I, a Delaware statutory business trust
(the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust
Agreement (the "Trust Agreement"), dated as of October 1,
1996, between the Trustees of the Issuer named therein and
Delmarva Power & Light Company, as Depositor, the Issuer is
issuing as of the date hereof $70,000,000 aggregate liquidation
amount of its 8.125% Trust Preferred Capital Securities (the
"Preferred Securities") representing preferred undivided beneficial
ownership interests in the Issuer and having the terms set forth
in the Trust Agreement;
WHEREAS, the Preferred Securities are to be issued for
sale by the Issuer and the proceeds are to be invested in
$72,165,000 principal amount of Debentures (as defined in the
Trust Agreement); and
WHEREAS, in order to enhance the value of the Preferred
Securities, the Guarantor desires to irrevocably and
unconditionally agree, to the extent set forth herein, to pay to
the Holders the Guarantee Payments (as defined herein) and to
make certain other payments on the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the purchase of
Debentures, which purchase the Guarantor hereby agrees shall
benefit the Guarantor, the Guarantor executes and delivers this
Guarantee Agreement for the benefit of the Holders from time to
time.
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. As used in this Guarantee
Agreement, the terms set forth below shall, unless the context
otherwise requires, have the following meanings. Capitalized
or otherwise defined terms used but not otherwise defined herein
shall have the meanings assigned to such terms in the Trust
Agreement as in effect on the date hereof.
"Event of Default" means a default by the Guarantor on
any of its payment obligations under this Guarantee Agreement.
"Guarantee Payments" shall mean the following payments
or distributions, without duplication, with respect to the
Preferred Securities, to the extent not paid or made by or on
behalf of the Issuer: (a) any accrued and unpaid Distributions
that are required to be paid on such Preferred Securities but
only if and to the extent that the Property Trustee has available
in the Payment Account funds sufficient to make such payment, (b)
the Redemption Price with respect to the Preferred Securities
called for redemption by the Issuer but only if and to the extent
that the Property Trustee has available in the Payment Account
funds sufficient to make such payment, (c) upon a voluntary or
involuntary dissolution, winding-up or termination of the Issuer
(unless the Debentures are distributed to the Holders of such
Preferred Securities), the lesser of (i) the aggregate of the
Liquidation Amount and all accrued and unpaid Distributions on
the Preferred Securities to the date of payment, and (ii) the
amount of assets of the Issuer remaining available for
distribution to Holders in liquidation of the Issuer (the
"Liquidation Distribution").
"Guarantee Trustee" means Wilmington Trust Company
until a Successor Guarantee Trustee has been appointed and has
accepted such appointment pursuant to the terms of this Guarantee
Agreement and thereafter means each such Successor Guarantee
Trustee.
"Holder" shall mean any Person in whose name any
Preferred Securities are registered in the Securities Registrar;
provided, however, that, in determining whether the Holders of
the requisite percentage of Preferred Securities have given any
request, notice, consent or waiver hereunder, "Holder" shall not
include the Guarantor or any Affiliate of the Guarantor.
"Indenture" means the Indenture dated as of
October 1, 1996, between the Guarantor (the "Debenture Issuer")
and Wilmington Trust Company, as trustee, pursuant to which the
Debentures are issued.
"Officer's Certificate" means a certificate signed by
the Chairman of the Board, the President, a Vice President, the
Treasurer or an Assistant Treasurer of the Guarantor, and
delivered to the Guarantee Trustee. Any Officer's Certificate
delivered with respect to compliance with a condition or covenant
provided for in this Guarantee Agreement shall include:
(a) a statement that the officer signing the Officer's
Certificate has read the covenant or condition and the
definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by such officer in
rendering the Officer's Certificate;
(c) a statement that such officer has made such
examination or investigation as, in such officer's opinion,
is necessary to enable such officer to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether, in the opinion of such
officer, such condition or covenant has been complied with.
"Responsible Officer" means, with respect to the
Guarantee Trustee, any officer of the Guarantee Trustee assigned
by the Guarantee Trustee to administer its corporate trust
matters.
"Successor Guarantee Trustee" means a successor
Guarantee Trustee possessing the qualifications to act as
Guarantee Trustee under Section 4.01.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01 Conflict with Trust Indenture Act.
If any provision of this Guarantee Agreement limits,
qualifies or conflicts with another provision hereof which is
required or deemed to be included in this Guarantee Agreement by,
or is otherwise governed by, any of the provisions of the Trust
Indenture Act, such other provision shall control; and if any
provision hereof otherwise conflicts with the Trust Indenture
Act, the Trust Indenture Act shall control.
SECTION 2.02 Lists of Holders of Preferred Securities.
(a) Semiannually, not later than June 1 and December 1
in each year, commencing December 1, 1996, and at such other
times as the Guarantee Trustee may request in writing, the
Guarantor shall furnish or cause to be furnished to the Guarantee
Trustee information as to the names and addresses of the Holders,
and the Guarantee Trustee shall preserve such information and
similar information received by it in any other capacity and
afford to the Holders access to 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 Trust Indenture Act.
(b) The Guarantee Trustee shall comply with its
obligations under Section 311(a) of the Trust Indenture Act,
subject to the provisions of Section 311(b) and Section 312(b) of
the Trust Indenture Act.
SECTION 2.03 Reports by the Guarantee Trustee.
(a) The Guarantee Trustee shall transmit to Holders such reports
concerning the Guarantee Trustee and its actions under this
Guarantee Agreement as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant
thereto. Such of those reports as are required to be transmitted
by the Guarantee Trustee pursuant to Section 313(a) of the Trust
Indenture Act shall be so transmitted within 60 days after
December 31 of each year, commencing December 31, 1996.
(b) A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Guarantee Trustee
with each stock exchange upon which the Preferred Securities are
listed, with the Commission and with the Guarantor. The
Guarantor shall notify the Guarantee Trustee when any Preferred
Securities shall have been listed on any stock exchange.
SECTION 2.04 Periodic Reports to Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee such documents,
reports, compliance certificates and information as may be required
by Section 314 of the Trust Indenture Act in the form, in the manner
and at the times required thereby.
SECTION 2.05 Evidence of Compliance with Conditions
Precedent. The Guarantor shall provide to the Guarantee Trustee
such evidence of compliance with any conditions precedent provided
for in this Guarantee Agreement as and to the extent required by
Section 314(c) of the Trust Indenture Act. Any certificate or opinion
required to be given by an officer pursuant to Section 314(c)(1) of
the Trust Indenture Act may be given in the form of an Officer's
Certificate.
SECTION 2.06 Events of Default; Waiver. The
Holders of a majority in liquidation amount of Outstanding
Preferred Securities may, by vote, on behalf of all of the
Holders, waive any past Event of Default and its consequences.
Upon such waiver, any such Event of Default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to
have been cured, for every purpose of this Guarantee Agreement,
but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent
thereon.
SECTION 2.07 Event of Default; Notice.
(a) The Guarantee Trustee shall give notice of any
Event of Default hereunder to the Holders in the manner and to
the extent required to do so by the Trust Indenture Act, unless
such Event of Default shall have been cured or waived.
(b) The Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Guarantee Trustee
shall have received written notice of such Event of Default.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
SECTION 3.01 Powers and Duties of the Guarantee
Trustee.
(a) This Guarantee Agreement shall be held by the
Guarantee Trustee for the benefit of the Holders, and the
Guarantee Trustee shall not transfer this Guarantee Agreement or
any rights hereunder to any Person except a Holder exercising his
or her rights pursuant to Section 5.04 or to a Successor
Guarantee Trustee on acceptance by such Successor Guarantee
Trustee of its appointment to act as Successor Guarantee Trustee.
The right, title and interest of the Guarantee Trustee shall vest
automatically in any Successor Guarantee Trustee, and such
vesting and cessation of title shall be effective whether or not
conveyancing documents have been executed and delivered pursuant
to the appointment of such Successor Guarantee Trustee.
(b) The Guarantee Trustee, prior to the occurrence of
any Event of Default and after the curing of all Events of
Default that may have occurred, shall undertake to perform only
such duties as are specifically set forth in this Guarantee
Agreement, and no implied covenants or obligations shall be read
into this Guarantee Agreement against the Guarantee Trustee. In
case an Event of Default has occurred (that has not been cured or
waived pursuant to Section 2.06), the Guarantee Trustee shall
exercise such of the rights and powers vested in it by this
Guarantee Agreement, and use the same degree of care and skill in
its exercise thereof, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs.
(c) No provision of this Guarantee Agreement shall be
construed to relieve the Guarantee Trustee from liability for its
own negligent action, its own negligent failure to act, or its
own willful misconduct, except that:
(i) prior to the occurrence of any Event of
Default and after the curing or waiving of all such
Events of Default that may have occurred:
(A) the duties and obligations of the
Guarantee Trustee shall be determined solely by
the express provisions of this Guarantee
Agreement, and the Guarantee Trustee shall not be
liable except for the performance of such duties
and obligations as are specifically set forth in
this Guarantee Agreement; and
(B) in the absence of bad faith on the part
of the Guarantee Trustee, the Guarantee Trustee
may conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon any certificates or
opinions furnished to the Guarantee Trustee and
conforming to the requirements of this Guarantee
Agreement; provided, however, that in the case of
any such certificates or opinions that by any
provision hereof are specifically required to be
furnished to the Guarantee Trustee, the Guarantee
Trustee shall be under a duty to examine the same
to determine whether or not they conform to the
requirements of this Guarantee Agreement;
(ii) the Guarantee Trustee shall not be liable
for any error of judgment made in good faith by a
Responsible Officer of the Guarantee Trustee, unless it
shall be proved that the Guarantee Trustee or such
Responsible Officer was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(iii) the Guarantee Trustee shall not be liable
with respect to any action taken or omitted to be taken
by it in good faith in accordance with the direction of
the Holders of a Majority in liquidation amount of the
Preferred Securities relating to the time, method and
place of conducting any proceeding for any remedy
available to the Guarantee Trustee, or exercising any
trust or power conferred upon the Guarantee Trustee
under this Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement
shall require the Guarantee Trustee to expend or risk
its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in
the exercise of any of its rights or powers, if the
Guarantee Trustee shall have reasonable grounds for
believing that the repayment of such funds or liability
is not reasonably assured to it under the terms of this
Guarantee Agreement or adequate indemnity against such
risk or liability is not reasonably assured to it.
SECTION 3.02 Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.01:
(i) the Guarantee Trustee may rely and shall be
fully protected in acting or refraining from acting
upon any resolution, certificate, statement,
instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document
reasonably believed by it to be genuine and to have
been signed, sent or presented by the proper party or
parties;
(ii) any direction or act of the Guarantor
contemplated by this Guarantee Agreement shall be
sufficiently evidenced by an Officer's Certificate;
(iii) whenever, in the administration of this
Guarantee Agreement, the Guarantee Trustee shall deem
it desirable that a matter be proved or established
before taking, suffering or omitting any action
hereunder, the Guarantee Trustee (unless other evidence
is herein specifically prescribed) may, in the absence
of bad faith on its part, request and rely upon an
Officer's Certificate which, upon receipt of such
request, shall be promptly delivered by the Guarantor;
(iv) the Guarantee Trustee may consult with counsel
of its choice, and the written advice or opinion of
such counsel with respect to legal matters shall be
full and complete authorization and protection in
respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with such
advice or opinion; such counsel may be counsel to the
Guarantor or any of its Affiliates and may include any
of its employees; the Guarantee Trustee shall have the
right at any time to seek instructions concerning the
administration of this Guarantee Agreement from any
court of competent jurisdiction;
(v) the Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers
vested in it by this Guarantee Agreement at the request
or direction of any Holder, unless such Holder shall
have provided to the Guarantee Trustee such adequate
security and indemnity as would satisfy a reasonable
person in the position of the Guarantee Trustee,
against the costs, expenses (including attorneys' fees
and expenses) and liabilities that might be incurred by
it in complying with such request or direction,
including such reasonable advances as may be requested
by the Guarantee Trustee; provided, however, that
nothing contained in this Section 3.02(a)(v) shall be
taken to relieve the Guarantee Trustee, upon the
occurrence of an Event of Default, of its obligation to
exercise the rights and powers vested in it by this
Guarantee Agreement;
(vi) the Guarantee Trustee shall not be bound to
make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of
indebtedness or other paper or document reasonably
believed by it to be genuine, but the Guarantee
Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as
it may see fit;
(vii) the Guarantee Trustee may execute any of the
trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or
attorneys, and the Guarantee Trustee shall not be
responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care
by it hereunder;
(viii) whenever in the administration of this
Guarantee Agreement the Guarantee Trustee shall deem it
desirable to receive instructions with respect to
enforcing any remedy or right or taking any other
action hereunder, the Guarantee Trustee (A) may request
instructions from the Holders, (B) may refrain from
enforcing such remedy or right or taking such other
action until such instructions are received, and (C)
shall be protected in acting in accordance with such
instructions; and
(ix) the Guarantee Trustee shall not be liable for
any action taken, suffered or omitted to be taken by it
in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers
conferred upon it by this Guarantee.
(b) No provision of this Guarantee Agreement shall be
deemed to impose any duty or obligation on the Guarantee Trustee
to perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it in any jurisdiction in
which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent in accordance with applicable
law, to perform any such act or acts or to exercise any such
right, power, duty or obligation. No permissive power or
authority available to the Guarantee Trustee shall be construed
to be a duty.
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.01 Guarantee Trustee; Eligibility.
(a) There shall at all times be a Guarantee Trustee
which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing
business under the laws of the United States of America
or any State or Territory thereof or of the District of
Columbia, or a corporation or Person permitted by the
Securities and Exchange Commission to act as an
institutional trustee under the Trust Indenture Act,
authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at
least 50 million U.S. dollars ($50,000,000), and
subject to supervision or examination by Federal,
State, Territorial or District of Columbia authority.
If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements
of the supervising or examining authority referred to
above, then, for the purposes of this Section
4.01(a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital
and surplus as set forth in its most recent report of
condition so published.
(b) If at any time the Guarantee Trustee shall cease
to be eligible to so act under Section 4.01(a), the Guarantee
Trustee shall immediately resign in the manner and with the
effect set out in Section 4.03(c).
(c) If the Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of
the Trust Indenture Act, the Guarantee Trustee and Guarantor
shall in all respects comply with the provisions of Section
310(b) of the Trust Indenture Act.
SECTION 4.02 Compensation and Reimbursement.
The Guarantor agrees:
(a) to pay the Guarantee Trustee from time to time
such reasonable compensation as the Guarantor and the Guarantee
Trustee shall from time to time agree in writing for all services
rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Guarantee Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made
by the Guarantee Trustee in accordance with the provisions of
this Guarantee (including the reasonable compensation and
expenses of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence
or bad faith; and
(c) to indemnify each of the Guarantee Trustee and any
predecessor Guarantee Trustee for, and to hold it harmless from
and against, any and all loss, damage, claim, liability or
expense, including taxes (other than taxes based upon the income
of the Guarantee Trustee) incurred without negligence or bad
faith on its part, arising out of or in connection with the
acceptance of the administration of this Guarantee Agreement,
including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance
of any its powers or duties hereunder.
As security for the performance of the obligations of
the Guarantor under this Section, the Guarantee Trustee shall
have a lien prior to the Preferred Securities upon all the
property and funds held or collected by the Guarantee Trustee as
such, except funds held in trust for the payment of principal of,
and premium (if any) or interest on, particular obligations of
the Guarantor under this Guarantee Agreement.
The provisions of this Section shall survive the
termination of this Guarantee Agreement.
SECTION 4.03 Appointment, Removal and Resignation of
Guarantee Trustee.
(a) Subject to Section 4.03(b), unless an Event of
Default shall have occurred and be continuing, the Guarantee
Trustee may be appointed or removed without cause at any time by
the Guarantor.
(b) The Guarantee Trustee shall not be removed until a
Successor Guarantee Trustee has been appointed and has accepted
such appointment by written instrument executed by such Successor
Guarantee Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee appointed to office shall
hold office until a Successor Guarantee Trustee shall have been
appointed or until its removal or resignation. The Guarantee
Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument in writing executed by
the Guarantee Trustee and delivered to the Guarantor, which
resignation shall not take effect until a Successor Guarantee
Trustee has been appointed and has accepted such appointment by
instrument in writing executed by such Successor Guarantee
Trustee and delivered to the Guarantor and the resigning
Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section
4.03 within 60 days after delivery to the Guarantor of an
instrument of resignation, the resigning Guarantee Trustee may
petition any court of competent jurisdiction for appointment of a
Successor Guarantee Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a
Successor Guarantee Trustee.
(e) The Guarantor shall give notice of each
resignation and each removal of the Guarantee Trustee and each
appointment of a successor Guarantee Trustee to all Holders in
the manner provided in Section 8.03 hereof. Each notice shall
include the name of the successor Guarantee Trustee and the
address of its Corporate Trust Office.
ARTICLE V
GUARANTEE
SECTION 5.01 Guarantee. The Guarantor irrevocably
and unconditionally agrees to pay in full to the Holders the
Guarantee Payments (without duplication of amounts theretofore
paid by the Issuer), as and when due, regardless of any defense,
right of set-off or counterclaim which the Issuer may have or
assert. The Guarantor's obligation to make a Guarantee Payment
may be satisfied by direct payment of the required amounts by
the Guarantor to the Holders or by causing the Issuer to pay
such amounts to the Holders.
SECTION 5.02 Waiver of Notice and Demand. The
Guarantor hereby waives notice of acceptance of this Guarantee
Agreement and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a
proceeding first against the Issuer or any other Person before
proceeding against the Guarantor, protest, notice of nonpayment,
notice of dishonor, notice of redemption and all other notices
and demands.
SECTION 5.03 Obligations Not Affected. The
obligation of the Guarantor to make the Guarantee Payments under
this Guarantee Agreement shall in no way be affected or impaired
by reason of the happening from time to time of any of the
following:
(a) the release or waiver, by operation of law or
otherwise, of the performance or observance by the Issuer of
any express or implied agreement, covenant, term or
condition relating to the Preferred Securities to be
performed or observed by the Issuer;
(b) the extension of time for the payment by the
Issuer of all or any portion of the Distributions,
Redemption Price, Liquidation Distribution or any other sums
payable under the terms of the Preferred Securities or the
extension of time for the performance of any other
obligation under, arising out of, or in connection with, the
Preferred Securities (other than an extension of time for
payment of Distributions, Redemption Price, Liquidation
Distribution or other sum payable that results from the
extension of any interest payment period on the Debentures
permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence
on the part of the Holders to enforce, assert or exercise
any right, privilege, power or remedy conferred on the
Holders pursuant to the terms of the Preferred Securities,
or any action on the part of the Issuer granting indulgence
or extension of any kind;
(d) the voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership,
insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings
affecting, the Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the
Preferred Securities;
(f) the settlement or compromise of any obligation
guaranteed hereby or hereby incurred; or
(g) any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge or
defense of a guarantor, it being the intent of this Section
5.03 that the obligations of the Guarantor hereunder shall
be absolute and unconditional under any and all
circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of
any of the foregoing.
SECTION 5.04 Rights of Holders. The Guarantor
expressly acknowledges that: (a) this Guarantee Agreement will
be deposited with the Guarantee Trustee to be held for the
benefit of the Holders; (b) the Guarantee Trustee has the right
to enforce this Guarantee Agreement on behalf of the Holders; (c)
the Holders of a majority in liquidation amount of the
Outstanding Preferred Securities have the right to direct the
time, method and place of conducting any proceeding for any
remedy available to the Guarantee Trustee in respect of this
Guarantee Agreement or exercising any trust or power conferred
upon the Guarantee Trustee under this Guarantee Agreement; and
(d) any Holder may institute a legal proceeding directly against
the Guarantor to enforce its rights under this Guarantee
Agreement without first instituting a legal proceeding against
the Issuer or any other person or entity.
SECTION 5.05 Guarantee of Payment. This Guarantee
Agreement creates a guarantee of payment and not of collection.
This Guarantee Agreement will not be discharged except by payment
of the Guarantee Payments in full (without duplication).
SECTION 5.06 Subrogation. The Guarantor shall be
subrogated to all (if any) rights of the Holders against the
Issuer in respect of any amounts paid to the Holders by the
Guarantor under this Guarantee Agreement; provided, however, that
the Guarantor shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise
any rights which it may acquire by way of subrogation or any
indemnity, reimbursement or other agreement, in all cases as a
result of payment under this Guarantee Agreement, if, at the time
of any such payment, any amounts of Guarantee Payments are due
and unpaid under this Guarantee Agreement. If any amount shall
be paid to the Guarantor in violation of the preceding sentence,
the Guarantor agrees to hold such amount in trust for the Holders
and to pay over such amount to the Holders.
SECTION 5.07 Independent Obligations. The
Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the
Preferred Securities and that the Guarantor shall be liable as
principal and as debtor hereunder to make Guarantee Payments
pursuant to the terms of this Guarantee Agreement notwithstanding
the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 5.03.
ARTICLE VI
SUBORDINATION
SECTION 6.01 Subordination. This Guarantee
Agreement will constitute an unsecured obligation of the
Guarantor and will rank subordinate and junior in right of
payment to all Senior Indebtedness of the Guarantor to the same
extent as the Debentures.
ARTICLE VII
TERMINATION
SECTION 7.01 Termination. This Guarantee Agreement
shall terminate and be of no further force and effect upon: (a)
full payment of the Redemption Price of all Preferred Securities,
(b) the distribution of Debentures to Holders in exchange for all
of the Preferred Securities or (c) full payment of the amounts
payable in accordance with the Trust Agreement upon liquidation of
the Issuer. Notwithstanding the foregoing, this Guarantee Agreement
will continue to be effective or will be reinstated, as the case may
be, if at any time any Holder must restore payment of any sums paid
with respect to the Preferred Securities or under this Guarantee
Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01 Successors and Assigns. All
guarantees and agreements contained in this Guarantee Agreement
shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit
of the Holders of the Preferred Securities then outstanding.
Except in connection with a consolidation, merger or sale
involving the Guarantor that is permitted under Article Eleven of
the Indenture, the Guarantor shall not assign its obligations
hereunder.
SECTION 8.02 Amendments. This Guarantee Agreement
may be amended only by an instrument in writing entered into by
the Guarantor and the Guarantee Trustee. Except with respect to
any changes which do not materially adversely affect the rights
of Holders (in which case no consent of Holders will be required),
this Guarantee Agreement may only be amended with the prior approval
of the Holders of not less than 66 2/3% of the aggregate liquidation
amount of all of the outstanding Preferred Securities. The provisions
of Article VI of the Trust Agreement concerning meetings of Holders
shall apply to the giving of such approval. Nothing herein contained
shall be deemed to require that the Guarantee Trustee enter into any
amendment of this Guarantee Agreement.
SECTION 8.03 Notices. Any notice, request or other
communication required or permitted to be given hereunder shall
be in writing, duly signed by the party giving such notice, and
delivered, telecopied or mailed by first class mail as follows:
(a) if given to the Guarantor, to the address set
forth below or such other address as the Guarantor may give
notice of to the Holders of the Preferred Securities:
Delmarva Power & Light Company
800 King Street
Wilmington, DE 19899
Facsimile No: (302) 429-3367
Attention: Treasurer
(b) if given to the Issuer, in care of the
Administrative Trustees, at the Issuer's (and the
Administrative Trustees') address set forth below or such
other address as the Administrative Trustees on behalf of
the Issuer may give notice of to the Holders:
Delmarva Power Financing I
c/o Treasury Department, Delmarva Power &
Light Company
800 King Street
Wilmington, DE 19899
Facsimile No: (302) 429-3367
Attention: Administrative Trustees
(c) if given to the Guarantee Trustee, to the address
set forth below or such other address as the Guarantee
Trustee may give notice of to the Holders of the Preferred
Securities:
Wilmington Trust Company
1100 North Market Street
Wilmington, DE 19890
Facsimile No: (302) 651-8882
Attention: Corporate Trust Administration
(d) if given to any Holder, at the address set forth
on the books and records of the Issuer.
All notices hereunder shall be deemed to have been
given when received in person, telecopied with receipt confirmed,
or mailed by first class mail, postage prepaid except that if a
notice or other document is refused delivery or cannot be
delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been
delivered on the date of such refusal or inability to deliver.
SECTION 8.04 Benefit. This Guarantee Agreement
is solely for the benefit of the Holders and, subject to Section
3.01(a), is not separately transferable from the Preferred
Securities.
SECTION 8.05 Interpretation. In this Guarantee
Agreement, unless the context otherwise requires:
(a) a term defined anywhere in this Guarantee
Agreement has the same meaning throughout;
(b) all references to "the Guarantee Agreement" or
"this Guarantee Agreement" are to this Guarantee Agreement
as modified, supplemented or amended from time to time;
(c) all references in this Guarantee Agreement to
Articles and Sections are to Articles and Sections of this
Guarantee Agreement unless otherwise specified;
(d) a term defined in the Trust Indenture Act has the
same meaning when used in this Guarantee Agreement unless
otherwise defined in this Guarantee Agreement or unless the
context otherwise requires;
(e) a reference to the singular includes the plural
and vice versa; and
(f) the masculine, feminine or neuter genders used
herein shall include the masculine, feminine and neuter
genders.
SECTION 8.06 Governing Law. This Guarantee
Agreement shall be governed by and construed and interpreted in
accordance with the laws of the State of New York (without regard
to conflict of laws principles).
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but
one and the same instrument.
<PAGE>
THIS GUARANTEE AGREEMENT is executed as of the day and
year first above written.
Delmarva Power & Light Company
By: /s/ B.S. Graham
---------------------------
Name: Barbara S. Graham
Title: Senior Vice President,
Treasurer and Chief
Financial Officer
Wilmington Trust Company,
as Guarantee Trustee
By: /s/ Norma P. Closs
---------------------------
Name: Norma P. Closs
Title: Vice President
===========================================================================
AMENDED AND RESTATED
TRUST AGREEMENT
between
DELMARVA POWER & LIGHT COMPANY, as Depositor
and
WILMINGTON TRUST COMPANY,
Barbara S. Graham,
Edric R. Mason,
and
Donald P. Connelly, as Trustees
Dated as of October 1, 1996
DELMARVA POWER FINANCING I
===========================================================================
Delmarva Power Financing I
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
--------------- ---------------
Section 310(a)(1) . . . . . . . . . . . . . . . . 8.07
(a)(2) . . . . . . . . . . . . . . . . 8.07
(a)(3) . . . . . . . . . . . . . . . . 8.09
(a)(4) . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . 8.08
Section 311(a) . . . . . . . . . . . . . . . . 8.13
(b) . . . . . . . . . . . . . . . . 8.13
Section 312(a) . . . . . . . . . . . . . . . . 5.07
(b) . . . . . . . . . . . . . . . . 5.07
(c) . . . . . . . . . . . . . . . . 5.07
Section 313(a) . . . . . . . . . . . . . . . . 8.14(a)
(a)(4) . . . . . . . . . . . . . . . . 8.14(b)
(b) . . . . . . . . . . . . . . . . 8.14(b)
(c) . . . . . . . . . . . . . . . . 8.14(a)
(d) . . . . . . . . . . . . . . . . 8.14(a), 8.14(b)
Section 314(a) . . . . . . . . . . . . . . . . 8.15
(a)(4) . . . . . . . . . . . . . . . . Not Applicable
(c) . . . . . . . . . . . . . . . . 8.16
(d) . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . 1.01
Section 315(a) . . . . . . . . . . . . . . . . 8.01
(b) . . . . . . . . . . . . . . . . 8.02
(c) . . . . . . . . . . . . . . . . 8.01(a)
(d) . . . . . . . . . . . . . . . . 8.01, 8.03
(e) . . . . . . . . . . . . . . . . Not Applicable
Section 316(a) . . . . . . . . . . . . . . . . Not Applicable
(a)(1)(A) . . . . . . . . . . . . . . . . Not Applicable
(a)(1)(B) . . . . . . . . . . . . . . . . Not Applicable
(a)(2) . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . Not Applicable
(c) . . . . . . . . . . . . . . . . Not Applicable
Section 317(a)(1) . . . . . . . . . . . . . . . . Not Applicable
(a)(2) . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . 5.09
Section 318(a) . . . . . . . . . . . . . . . . 10.10
-----------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Trust Agreement.
<PAGE>
TABLE OF CONTENTS
ARTICLE I.
Defined Terms
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . 2
ARTICLE II.
Establishment of the Trust; Issuance of
Trust Securities; Rights of Securityholders
Section 2.01. Name . . . . . . . . . . . . . . . . . . . . . . . 11
Section 2.02. Office of the Property Trustee; Principal Place of
Business . . . . . . . . . . . . . . . . . . . . . 11
Section 2.03. Initial Contribution of Trust Property; Initial
Ownership; Organizational Expenses . . . . . . . . 11
Section 2.04. Issuance of the Preferred Securities . . . . . . . 11
Section 2.05. Subscription and Purchase of Debentures; Issuance
of the Common Securities . . . . . . . . . . . . . 11
Section 2.06. Declaration of Trust; Appointment of Additional
Administrative Trustees . . . . . . . . . . . . . . 12
Section 2.07. Authorization to Enter into Certain Transactions . 12
Section 2.08. Assets of Trust . . . . . . . . . . . . . . . . . . 16
Section 2.09. Title to Trust Property . . . . . . . . . . . . . . 16
Section 2.10. Rights of Securityholders . . . . . . . . . . . . . 16
ARTICLE III.
Payment Account
Section 3.01. Payment Account . . . . . . . . . . . . . . . . . . 16
ARTICLE IV.
Distributions; Redemption
Section 4.01. Distributions . . . . . . . . . . . . . . . . . . . 17
Section 4.02. Redemption . . . . . . . . . . . . . . . . . . . . 18
Section 4.03. Subordination of Common Securities . . . . . . . . 19
Section 4.04. Payment Procedures . . . . . . . . . . . . . . . . 20
Section 4.05. Tax Returns and Reports . . . . . . . . . . . . . . 20
Section 4.06. Payments under Subordinated Indenture . . . . . . . 20
<PAGE>
ARTICLE V.
Trust Securities Certificates
Section 5.01. The Trust Securities Certificates . . . . . . . . . 21
Section 5.02. Ownership of Common Securities by Depositor . . . . 21
Section 5.03. Registration of Transfer and Exchange of Preferred
Securities Certificates . . . . . . . . . . . . . . 21
Section 5.04. Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates . . . . . . . . . . . . . . 22
Section 5.05. Cancellation by Registrar. . . . . . . . . . . . . 23
Section 5.06. Persons Deemed Securityholders . . . . . . . . . . 23
Section 5.07. Lists of Holders. . . . . . . . . . . . . . . . . . 23
Section 5.08. Maintenance of Office or Agency . . . . . . . . . . 23
Section 5.09. Appointment of Paying Agent . . . . . . . . . . . . 23
Section 5.10. Book-Entry System . . . . . . . . . . . . . . . . . 24
ARTICLE VI.
Acts of Securityholders; Meetings; Voting
Section 6.01. Limitations on Voting Rights . . . . . . . . . . . 25
Section 6.02. Notice of Meetings . . . . . . . . . . . . . . . . 25
Section 6.03. Meetings of Holders of Preferred Securities . . . . 26
Section 6.04. Voting Rights . . . . . . . . . . . . . . . . . . . 26
Section 6.05. Proxies, etc. . . . . . . . . . . . . . . . . . . . 26
Section 6.06. Securityholder Action by Written Consent . . . . . 26
Section 6.07. Record Date for Voting . . . . . . . . . . . . . . 27
Section 6.08. Acts of Securityholders . . . . . . . . . . . . . . 27
Section 6.09. Inspection of Records . . . . . . . . . . . . . . . 28
ARTICLE VII.
Representations and Warranties
of the Property Trustee
Section 7.01. Property Trustee . . . . . . . . . . . . . . . . . 28
ARTICLE VIII.
The Trustees
Section 8.01. Certain Duties and Responsibilities . . . . . . . . 29
Section 8.02. Certain Notices . . . . . . . . . . . . . . . . . . 31
Section 8.03. Certain Rights of Property Trustee . . . . . . . . 31
Section 8.04. Not Responsible for Recitals or Issuance of
Securities . . . . . . . . . . . . . . . . . . . . 34
Section 8.05. May Hold Securities . . . . . . . . . . . . . . . . 34
Section 8.06. Compensation; Fees; Indemnity. . . . . . . . . . . 34
<PAGE>
Section 8.07. Certain Trustees Required; Eligibility . . . . . . 35
Section 8.08. Conflicting Interests . . . . . . . . . . . . . . . 36
Section 8.09. Co-Trustees and Separate Trustee . . . . . . . . . 36
Section 8.10. Resignation and Removal; Appointment of Successor . 37
Section 8.11. Acceptance of Appointment by Successor . . . . . . 38
Section 8.12. Merger, Conversion, Consolidation or Succession to
Business . . . . . . . . . . . . . . . . . . . . . 39
Section 8.13. Preferential Collection of Claims Against
Depositor or Trust . . . . . . . . . . . . . . . . 39
Section 8.14. Reports by Property Trustee . . . . . . . . . . . . 39
Section 8.15. Reports to the Property Trustee . . . . . . . . . . 39
Section 8.16. Evidence of Compliance With Conditions Precedent . 40
Section 8.17. Number of Trustees. . . . . . . . . . . . . . . . . 40
Section 8.18. Delegation of Power. . . . . . . . . . . . . . . . 40
Section 8.19. Fiduciary Duty . . . . . . . . . . . . . . . . . . 40
ARTICLE IX.
Termination and Liquidation
Section 9.01. Termination Upon Expiration Date . . . . . . . . . 42
Section 9.02. Early Termination . . . . . . . . . . . . . . . . . 42
Section 9.03. Termination . . . . . . . . . . . . . . . . . . . . 42
Section 9.04. Liquidation . . . . . . . . . . . . . . . . . . . . 42
Section 9.05. Mergers, Consolidations, Amalgamations or
Replacements of the Trust . . . . . . . . . . . . . 44
ARTICLE X.
Miscellaneous Provisions
Section 10.01. Guarantee by the Depositor and Assumption of
Obligations . . . . . . . . . . . . . . . . . . . 45
Section 10.02. Limitation of Rights of Securityholders . . . . . 45
Section 10.03. Amendment . . . . . . . . . . . . . . . . . . . . 46
Section 10.04. Separability . . . . . . . . . . . . . . . . . . . 47
Section 10.05. Governing Law . . . . . . . . . . . . . . . . . . 47
Section 10.06. Successors . . . . . . . . . . . . . . . . . . . . 47
Section 10.07. Headings . . . . . . . . . . . . . . . . . . . . . 47
Section 10.08. Notice and Demand . . . . . . . . . . . . . . . . 47
Section 10.09. Agreement Not to Petition . . . . . . . . . . . . 48
Section 10.10. Conflict with Trust Indenture Act . . . . . . . . 48
AMENDED AND RESTATED TRUST AGREEMENT, dated as of October 1,
1996, between (i) Delmarva Power & Light Company, a Delaware and Virginia
corporation (the "Depositor"), (ii) Wilmington Trust Company, a banking
corporation duly organized and existing under the laws of Delaware, as
trustee (the "Property Trustee") and (iii) Barbara S. Graham, Edric R.
Mason and Donald P. Connelly, each an individual, as trustee, and each of
whose address is c/o Delmarva Power & Light Company, 800 King Street,
Wilmington, Delaware 19899 (each, an "Administrative Trustee" and,
collectively, the "Administrative Trustees") (the Property Trustee and the
Administrative Trustees being hereinafter referred to collectively as the
"Trustees").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Depositor, the Property Trustee and Barbara S.
Graham, as Administrative Trustee, have heretofore duly declared and
established a business trust pursuant to the Delaware Business Trust Act by
the entering into of that certain Trust Agreement, dated as of June 27,
1996 (the "Original Trust Agreement"), and by the execution by the Property
Trustee and Barbara S. Graham, as Administrative Trustee and filing with
the Secretary of State of the State of Delaware of the Certificate of
Trust, dated June 27, 1996 (the "Certificate of Trust"), a copy of
which is attached as Exhibit A; and
WHEREAS, the Depositor, the Property Trustee and Barbara S.
Graham, as Administrative Trustee, desire to amend and restate the Original
Trust Agreement in its entirety as set forth herein to provide for, among
other things, (i) the acquisition by the Trust from the Depositor of all of
the right, title and interest in the Debentures, (ii) the issuance of the
Common Securities by the Trust to the Depositor, (iii) the issuance of the
Preferred Securities by the Trust and (iv) the appointment of additional
Administrative Trustees of the Trust;
NOW THEREFORE, in consideration of the agreements and obligations
set forth herein and for other good and valuable consideration, the
sufficiency of which is hereby acknowledged, each party, for the benefit of
the other parties and for the benefit of the Securityholders, hereby amends
and restates the Original Trust Agreement in its entirety and agrees as
follows:
ARTICLE I.
DEFINED TERMS
SECTION 1.01. DEFINITIONS. For all purposes of this Trust
Agreement, except as otherwise expressly provided or unless the context
otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well
as the singular;
(b) all other terms used herein that are defined in the
Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein;
(c) unless the context otherwise requires, any reference to
an "Article" or a "Section" refers to an Article or a Section, as
the case may be, of this Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Trust Agreement as a whole
and not to any particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.08.
"Additional Amount" means, with respect to Trust Securities of a
given Liquidation Amount and for a given period, the amount of Additional
Interest (as defined in the Subordinated Indenture) paid by the Depositor
on a Like Amount of Debentures for such period.
"Administrative Trustee" means each of the individuals identified
as an "Administrative Trustee" in the preamble to this Trust Agreement,
solely in their capacities as Administrative Trustees of the Trust created
hereunder and not in their individual capacities, or any successor trustee
appointed as herein provided.
"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 Event" means, with respect to any Person:
(i) the entry of a decree or order by a court having
jurisdiction in the premises judging such Person a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjudication or composition of or in
respect of such Person under Federal bankruptcy law or any other
applicable Federal or State law, or appointing a receiver, liqui-
dator, assignee, trustee sequestrator or other similar official
of such Person or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect
for a period of 60 consecutive days; or
(ii) the institution by such Person of proceedings to be
adjudicated a bankrupt or insolvent, or of the consent by it to
the institution of bankruptcy or insolvency proceedings against
it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under Federal bankruptcy law or
any other applicable Federal or State law, or the consent by it
to the filing of such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator or similar
official of such Person or of any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to
pay its debts generally as they become due.
"Bankruptcy Laws" has the meaning specified in Section 10.09.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly
adopted by the Depositor's Board of Directors or a duly authorized
committee thereof and to be in full force and effect on the date of such
certification, and delivered to the appropriate Trustee.
"Business Day" means a day other than (a) a Saturday or a Sunday,
(b) a day on which banks in New York, New York are authorized or obligated
by law or executive order to remain closed and (c) a day on which either
the Corporate Trust Office or the Debenture Trustee's principal corporate
trust office is closed for business.
"Certificate of Trust" has the meaning specified in the preamble
to this Trust Agreement.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act.
"Closing Date" means the date of delivery of this Trust
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at
any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Common Security" means an undivided beneficial interest in the
assets of the Trust having a Liquidation Amount of $25 and having the
rights provided therefor in this Trust Agreement, including the right to
receive Distributions and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as
Exhibit B.
"Corporate Trust Office" means the principal corporate trust
office of the Property Trustee located in Wilmington, Delaware.
"Covered Person" means: (a) any officer, director, shareholder,
partner, beneficial owner, member, representative, employee or agent of the
Trust or the Trust's Affiliates; and (b) any Securityholder.
"Debenture Event of Default" means an "Event of Default" as
defined in the Subordinated Indenture.
"Debenture Issuer" means Delmarva Power & Light Company, a
Delaware and Virginia corporation, in its capacity as issuer of the
Debentures.
"Debenture Redemption Date" means "Redemption Date" as defined in
the Subordinated Indenture.
"Debenture Trustee" means Wilmington Trust Company, as trustee
under the Subordinated Indenture.
"Debentures" means the $72,165,000 aggregate principal amount of
the Debenture Issuer's 8.125% Junior Subordinated Debentures, Series I, Due
2036, issued pursuant to the Subordinated Indenture.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from
-- ---
time to time.
"Delaware Trustee" has the meaning specified in Section 8.07(c).
"Depositor" has the meaning specified in the preamble to this
Trust Agreement.
"Distribution Date" has the meaning specified in Section 4.01(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.01.
"Early Termination Event" has the meaning specified in Section
9.02.
"Event of Default" means any one of the following events
(whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(i) the occurrence of a Debenture Event of Default; or
(ii) default by the Trust in the payment of any Distribution
when it becomes due and payable, and continuation of such default
for a period of 30 days; or
(iii) default by the Trust in the payment of any Redemption
Price when it becomes due and payable; or
(iv) default in the performance, or breach, in any material
respect, of any covenant or warranty of the Trustees in this
Trust Agreement (other than a covenant or warranty a default in
whose performance or breach is specifically dealt with in clause
(ii) or (iii), above) and continuation of such default or breach
for a period of 60 days after there has been given, by registered
or certified mail, to the Property Trustee by the Holders of at
least 10% in Liquidation Amount of the Outstanding Preferred
Securities a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(v) the occurrence of a Bankruptcy Event with respect to the
Trust.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Expense Agreement" means the Agreement as to Expenses and
Liabilities between the Depositor and the Trust, substantially in the form
attached as Exhibit C, as amended from time to time.
"Expiration Date" means December 31, 2041.
"Guarantee" means the Guarantee Agreement executed and delivered
by the Depositor and Wilmington Trust Company, a Delaware banking
corporation, as trustee, contemporaneously with the execution and delivery
of this Trust Agreement, for the benefit of the Holders of the Preferred
Securities, as amended from time to time.
"Holder" has the meaning specified in the definition of
"Securityholder."
"Indemnified Person" means any Trustee, any Affiliate of any
Trustee, any officer, director, shareholder, member, partner, employee,
representative or agent of any Trustee, or any employee or agent of the
Trust or its Affiliates.
"Investment Company Act" means the Investment Company Act of
1940, as amended.
"Investment Company Event" means the occurrence of a change in
law or regulation or a change in interpretation or application of law or
regulation by any legislative body, court, governmental agency or
regulatory authority to the effect that the Trust is or will be considered
an "investment company" that is required to be registered under the
Investment Company Act, which change in law becomes effective on or after
the date of original issuance of the Preferred Securities.
"Lien" means any lien, pledge, charge, encumbrance, mortgage,
deed of trust, adverse ownership interest, hypothecation, assignment,
security interest or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever.
"Like Amount" means, as the context requires, (i) Trust
Securities having a Liquidation Amount equal to the principal amount of
Debentures at any time to be repaid, whether at stated maturity or upon
maturity by earlier acceleration, redemption or otherwise and (ii)
Debentures having a principal amount equal to the Liquidation Amount of the
Trust Securities with respect to which such Debentures are to be
distributed.
"Liquidation Amount" means the stated amount of $25 per Trust
Security.
"Liquidation Date" means the date on which Debentures are to be
distributed to Securityholders in connection with a termination and
liquidation of the Trust pursuant to Section 9.04(a).
"Liquidation Distribution" has the meaning specified in
Section 9.04(e).
"No Recognition Opinion" means an opinion of nationally
recognized independent tax counsel experienced in such matters, which
opinion may rely on any then applicable published revenue rulings of the
Internal Revenue Service, to the effect that the Holders of the Preferred
Securities will not recognize any gain or loss for United States
federal income tax purposes as a result of the termination of the Trust and
distribution of the Debentures.
"Officer's Certificate" means a certificate signed by the
Chairman of the Board, the President, a Vice President, the Treasurer or an
Assistant Treasurer of the Depositor, and delivered to the appropriate
Trustee. Any Officer's Certificate delivered with respect to compliance
with a condition or covenant provided for in this Trust Agreement shall
include:
(a) a statement that the officer signing the Officer's
Certificate has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by such officer in rendering the Officer's
Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable
such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of such officer,
such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Trust, the Property Trustee or the Depositor, but not an
employee of the Trust, the Property Trustee or the Depositor, and who shall
be reasonably acceptable to the Property Trustee.
"Original Trust Agreement" has the meaning specified in the
recitals to this Trust Agreement.
"Outstanding," when used with respect to Preferred Securities,
means, as of the date of determination, all Preferred Securities
theretofore delivered under this Trust Agreement, except:
(i) Preferred Securities theretofore canceled by the
Administrative Trustees or delivered to the Administrative
Trustees for cancellation;
(ii) Preferred Securities for whose payment or redemption money
in the necessary amount has been theretofore deposited with the
Property Trustee or any Paying Agent for the Holders of such
Preferred Securities; provided, however, that, if such Preferred
Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Trust Agreement; and
(iii) Preferred Securities in exchange for or in lieu of which
other Preferred Securities have been delivered pursuant to this
Trust Agreement, including pursuant to Sections 5.03 or 5.04;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, Preferred Securities owned by the Depositor, any Trustee or any
Affiliate of the Depositor or any Trustee shall be disregarded and deemed
not to be Outstanding, except that (a) in determining whether any Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Preferred Securities which such
Trustee knows to be so owned shall be so disregarded and (b) the foregoing
shall not apply at any time when all of the outstanding Preferred
Securities are owned by the Depositor, one or more of the Trustees and/or
any such Affiliate. Preferred Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to
the satisfaction of the Administrative Trustees the pledgee's right so to
act with respect to such Preferred Securities and that the pledgee is not
the Depositor or any Affiliate of the Depositor.
"Paying Agent" means any paying agent or co-paying agent
appointed pursuant to Section 5.09 and initially shall be Wilmington Trust
Company.
"Payment Account" means a segregated non-interest-bearing
corporate trust account maintained by the Property Trustee at Wilmington
Trust Company, or such other banking institution as the Depositor shall
select, for the benefit of the Securityholders in which all amounts paid in
respect of the Debentures will be held and from which the Paying Agent,
pursuant to Section 5.09, shall make payments to the Securityholders in
accordance with Sections 4.01 and 4.02.
"Person" means any individual, corporation, partnership, joint
venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.
"Preferred Security" means an undivided beneficial interest in
the assets of the Trust designated as a "8.125% Cumulative Trust Preferred
Capital Security" having a Liquidation Amount of $25 and having rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate evidencing
ownership of Preferred Securities, substantially in the form attached as
Exhibit D.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee" in the preamble to this Trust
Agreement solely in its capacity as Property Trustee of the Trust formed
and continued hereunder and not in its individual capacity, or its
successor in interest in such capacity, or any successor trustee appointed
as herein provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided, however, that each Debenture Redemption Date and
Maturity (as defined in the Subordinated Indenture) of the Debentures shall
be a Redemption Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any Redemption Date of
any Trust Security, the Liquidation Amount of such Trust Security, plus
accumulated and unpaid Distributions thereon to the Redemption Date.
"Registrar" shall mean the registrar for the Preferred Securities
appointed by the Trust and shall be initially Wilmington Trust Company.
"Responsible Officer," when used with respect to the Property
Trustee means an officer of the Property Trustee assigned by the Property
Trustee to administer its corporate trust matters.
"Securities Depository" shall be The Depository Trust Company, or
a successor thereto.
"Securities Register" shall mean the Securities Register
described in Section 5.03.
"Securityholder" or "Holder" means a Person in whose name a Trust
Security or Securities is registered in the Securities Register; any such
Person shall be deemed to be a beneficial owner within the meaning of the
Delaware Business Trust Act.
"Special Event" means either a Tax Event or an Investment Company
Event.
"Subordinated Indenture" means the Indenture, dated as of October
1, 1996, between the Depositor and the Debenture Trustee, as amended or
supplemented from time to time.
"Tax Event" means the receipt by the Trust of an Opinion of
Counsel experienced in such matters to the effect that, as a result of any
amendment to, or change (including any announced prospective change) in,
the laws (or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein affecting
taxation, or as a result of any official administrative or judicial
pronouncement or decision interpreting or applying such laws or
regulations, which amendment or change is effective or which pronouncement
or decision is announced on or after the date of original issuance of the
Preferred Securities under this Trust Agreement, there is more than an
insubstantial risk that at such time or within 90 days of the date thereof
(i) the Trust is, or will be, subject to United States federal income tax
with respect to income received or accrued on the Debentures, (ii) interest
payable by the Depositor on the Debentures is not, or will not be, fully
deductible by the Depositor for United States federal income tax purposes,
or (iii) the Trust is, or will be, subject to more than a de minimis amount
of other taxes, duties or other governmental charges.
"Transfer Agent" shall mean one or more transfer agents for the
Preferred Securities appointed by the Administrative Trustees on behalf of
the Trust and shall be initially Wilmington Trust Company.
"Trust" means the Delaware business trust created by the Original
Trust Agreement and continued hereby and identified on the cover page to
this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust
Agreement, as the same may be modified, amended or supplemented in
accordance with the applicable provisions hereof, including all exhibits
hereto and the provisions of the Trust Indenture Act that are deemed to be
a part of and govern this Amended and Restated Trust Agreement and any such
modification, amendment or supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after
such date, "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (i) the Debentures, (ii) any cash on
deposit in, or owing to, the Payment Account and (iii) all proceeds and
rights in respect of the foregoing and any other property and assets for
the time being held by the Property Trustee pursuant to the trusts of this
Trust Agreement.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Trust Securities Certificate" means any one of the Common
Securities Certificates or the Preferred Securities Certificates.
"Underwriting Agreement" means the Underwriting Agreement, dated
as of September 26, 1996, among the Trust, the Depositor and the
underwriters named therein.
ARTICLE II.
ESTABLISHMENT OF THE TRUST; ISSUANCE OF
TRUST SECURITIES; RIGHTS OF SECURITYHOLDERS
SECTION 2.01. NAME. The Trust created hereby shall be known as
"Delmarva Power Financing I," in which name the Trustees may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and sue and be sued.
SECTION 2.02. OFFICE OF THE PROPERTY TRUSTEE; PRINCIPAL PLACE OF
BUSINESS. The office of the Property Trustee in the State of Delaware is
Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890,
or at such other address in Delaware as the Property Trustee may designate
by written notice to the Securityholders and the Depositor. The principal
place of business of the Trust is c/o Delmarva Power & Light Company, 800
King Street, Wilmington, Delaware 19899.
SECTION 2.03. INITIAL CONTRIBUTION OF TRUST PROPERTY; INITIAL
OWNERSHIP; ORGANIZATIONAL EXPENSES. The Property Trustee acknowledges
receipt in trust from the Depositor in connection with the Original Trust
Agreement of the sum of $10, which constituted the initial Trust Property.
Upon the creation of the Trust by such contribution and until the issuance
of the Trust Securities, and at any time during which no Trust Securities
are outstanding, the Depositor shall be the sole beneficial owner of the
Trust. The Depositor shall pay organizational expenses of the Trust as
they arise or shall, upon request of any Trustee, promptly reimburse such
Trustee for any such expenses paid by such Trustee. The Depositor shall
make no claim upon the Trust Property for the payment of such expenses.
SECTION 2.04. ISSUANCE OF THE PREFERRED SECURITIES. The
Depositor and an Administrative Trustee, on behalf of the Trust, executed
and delivered the Underwriting Agreement. Contemporaneously with the
execution and delivery of this Trust Agreement, one of the Administrative
Trustees, on behalf of the Trust in accordance with Section 5.01, executed
manually and delivered a Preferred Securities Certificate, registered in
the name of the nominee of the Securities Depository, evidencing 2,800,000
Preferred Securities having an aggregate Liquidation Amount of $70,000,000,
against receipt of the purchase price of such Preferred Securities of
$70,000,000, which amount such Administrative Trustee shall promptly
deliver to the Property Trustee.
SECTION 2.05. SUBSCRIPTION AND PURCHASE OF DEBENTURES; ISSUANCE
OF THE COMMON SECURITIES. Contemporaneously with the execution and
delivery of this Trust Agreement, one of the Administrative Trustees, on
behalf of the Trust, shall execute and deliver to the Depositor a Common
Securities Certificate, registered in the name of the Depositor, evidencing
86,600 Common Securities having an aggregate Liquidation Amount of
$2,165,000, against receipt of the purchase price of such Common Securities
of $2,165,000. The Administrative Trustees, on behalf of the Trust, shall
subscribe to and purchase from the Depositor Debentures, registered in the
name of the Property Trustee, in an aggregate principal amount of
$72,165,000, and, in satisfaction of the purchase price for such
Debentures, the Property Trustee, on behalf of the Trust, shall deliver to
the Depositor the sum of $72,165,000, representing the proceeds from the
sale of the Trust Securities.
SECTION 2.06. DECLARATION OF TRUST; APPOINTMENT OF ADDITIONAL
ADMINISTRATIVE TRUSTEES. The exclusive purposes and functions of the Trust
are (i) to issue Trust Securities and invest the proceeds thereof in
Debentures, and (ii) to receive payments to be made with respect to the
Debentures and disburse such payments in accordance with the terms hereof,
and (iii) to engage in those activities necessary, convenient or incidental
thereto. The Depositor hereby appoints the Trustees as trustees of the
Trust, to have all the rights, powers and duties to the extent set forth
herein. The Property Trustee hereby declares that it will hold the Trust
Property in trust upon and subject to the conditions set forth herein for
the benefit of the Securityholders. The Trustees shall have all rights,
powers and duties set forth herein and in accordance with applicable law
with respect to accomplishing the purposes of the Trust.
SECTION 2.07. AUTHORIZATION TO ENTER INTO CERTAIN TRANSACTIONS.
(a) The Trustees shall conduct the affairs of the Trust in accordance with
the terms of this Trust Agreement. Subject to the limitations set forth in
paragraph (b) of this Section 2.07 and Article VIII and in accordance with
the following provisions (i) and (ii), the Trustees shall have the
authority to enter into all transactions and agreements determined by the
Trustees to be appropriate in exercising the authority, express or implied,
otherwise granted to the Trustees under this Trust Agreement, and to
perform all acts in furtherance thereof, including without limitation, the
following:
(i) As among the Trustees, the Administrative Trustees, acting singly
or jointly, shall have the power, duty and authority to act on behalf of
the Trust with respect to the following matters:
(A) the issuance and sale of the Trust Securities;
(B) without the consent of any Person, the causing of the
Trust to enter into and to execute, deliver and perform on behalf
of the Trust, the Expense Agreement, and such agreements or other
documents as may be necessary or desirable in connection with the
consummation of the Underwriting Agreement;
(C) the qualification of the Trust to do business in any
jurisdiction as may be necessary or desirable;
(D) the collection of interest, principal and any other
payments made in respect of the Debentures in the Payment
Account;
(E) the registration of the Preferred Securities under the
Securities Act of 1933, as amended, and under state securities or
blue sky laws, and the qualification of this Trust Agreement as a
trust indenture under the Trust Indenture Act;
(F) the listing of the Preferred Securities upon such
securities exchange or exchanges as shall be determined by the
Depositor and the registration of the Preferred Securities under
the Exchange Act, and the preparation and filing of all periodic
and other reports and other documents pursuant to the foregoing;
(G) the appointment of a Paying Agent, a Transfer Agent and a
Registrar in accordance with this Trust Agreement;
(H) the registration of transfers of the Trust Securities in
accordance with this Trust Agreement; and
(I) the taking of any action incidental to the foregoing as
the Administrative Trustees may from time to time determine is
necessary or advisable to protect and conserve the Trust Property
for the benefit of the Securityholders (without consideration of
the effect of any such action on any particular Securityholder).
(ii) As among the Trustees, the Property Trustee shall have the
power, duty and authority to act on behalf of the Trust with respect to the
following ministerial matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
(C) the deposit of interest, principal and any other payments
made in respect of the Debentures in the Payment Account;
(D) the distribution of amounts owed to the Securityholders in
respect of the Trust Securities in accordance with the terms of
this Trust Agreement;
(E) the sending of notices of default and other information
regarding the Trust Securities and the Debentures to the
Securityholders in accordance with the terms of this Trust
Agreement;
(F) the distribution of the Trust Property in accordance with
the terms of this Trust Agreement;
(G) as provided in this Trust Agreement, the winding up of the
affairs of and liquidation of the Trust and the execution of the
certificate of cancellation to be prepared and filed by the
Administrative Trustees with the Secretary of State of the State
of Delaware; and
(H) the taking of any ministerial action incidental to the
foregoing as the Property Trustee may from time to time determine
is necessary or advisable to protect and conserve the Trust
Property for the benefit of the Securityholders (without
consideration of the effect of any such action on any particular
Securityholder).
Subject to this Section 2.07(a)(ii), the Property Trustee shall have none
of the duties, liabilities, powers or authority of the Administrative
Trustees set forth in Section 2.07(a)(i) or the Depositor set forth in
Section 2.07(c). The Property Trustee shall have the power and authority
to exercise all of the rights, powers and privileges of a holder of
Debentures under the Subordinated Indenture and, if an Event of Default
occurs and is continuing, the Property Trustee may, for the benefit of
Holders of the Trust Securities, in its discretion proceed to protect and
enforce its rights as holder of the Debentures subject to the rights of the
Holders pursuant to the terms of this Trust Agreement.
(b) The Trust (or the Trustees acting on behalf of the Trust)
shall not undertake any business, activities or transaction except as
expressly provided herein or contemplated hereby. In particular, the
Trustees shall not (i) acquire any investments or engage in any activities
not authorized by this Trust Agreement, (ii) sell, assign, transfer,
exchange, pledge, set-off or otherwise dispose of any of the Trust Property
or interests therein, including to Securityholders, except as expressly
provided herein, (iii) take any action that would cause the Trust to fail
or cease to qualify as a "grantor trust" for United States federal income
tax purposes, (iv) incur any indebtedness for borrowed money or (v) take or
consent to any action that would result in the placement of a Lien on any
of the Trust Property. The Trustees shall defend all claims and demands of
all Persons at any time claiming any Lien on any of the Trust Property
adverse to the interest of the Trust or the Securityholders in their
capacity as Securityholders.
(c) In connection with the issuance of the Preferred Securities,
the Depositor shall have the right and responsibility to assist the Trust
with respect to, or effect on behalf of the Trust, the following (and any
actions taken by the Depositor in furtherance of the following prior to the
date of this Trust Agreement are hereby ratified and confirmed in all
respects):
(i) to prepare for filing by the Trust with the Commission and
to execute a registration statement on Form S-3 in relation to
the Preferred Securities, including any amendments thereto;
(ii) to determine the states in which to take appropriate
action to qualify or register for sale all or part of the
Preferred Securities and to do any and all such acts, other than
actions which must be taken by or on behalf of the Trust, and
advise the Trustees of actions they must take on behalf of the
Trust, and prepare for execution and filing any documents to be
executed and filed by the Trust or on behalf of the Trust, as the
Depositor deems necessary or advisable in order to comply with
the applicable laws of any such states;
(iii) to prepare for filing by the Trust an application to the
New York Stock Exchange, any other national stock exchange or the
Nasdaq National Market for listing upon notice of issuance of any
Preferred Securities and to file or cause the Administrative
Trustees to file thereafter with such exchange such notifications
and documents as may be necessary from time to time to maintain
such listing;
(iv) to prepare for filing by the Trust with the Commission and
to execute a registration statement on Form 8-A relating to the
registration of the Preferred Securities under Section 12(b) of
the Exchange Act, including any amendments thereto;
(v) to execute and deliver on behalf of the Trust the
Underwriting Agreement and such other agreements as may be
necessary or desirable in connection with the consummation
thereof;
(vi) to select the investment banker or bankers to act as
underwriters with respect to the offer and sale by the Trust of
Preferred Securities and negotiate the terms of an Underwriting
Agreement and pricing agreement providing for such offer; and
(vii) to take any other actions necessary or desirable to carry
out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the affairs
of the Trust and to operate the Trust so that the Trust will not be deemed
to be an "investment company" required to be registered under the
Investment Company Act of 1940, as amended, or classified other than as a
"grantor trust" for United States federal income tax purposes and so that
the Debentures will be treated as indebtedness of the Depositor for United
States federal income tax purposes. In this connection, subject to the
provisions of Section 10.03, the Depositor and the Administrative Trustees
are authorized to take any action, not inconsistent with applicable law or
this Trust Agreement, that each of the Depositor and the Administrative
Trustees determines in its discretion to be necessary or desirable for such
purposes, as long as such action does not materially and adversely affect
the interests of the Holders of the Preferred Securities.
(e) Anything in this Trust Agreement to the contrary
notwithstanding, the Delaware Trustee shall not be entitled to exercise any
powers, nor shall the Delaware Trustee have any of the duties and
responsibilities, of the Property Trustee or the Administrative Trustees
set forth herein. The Delaware Trustee shall be one of the Trustees of the
Trust for the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Delaware Business Trust Act.
SECTION 2.08. ASSETS OF TRUST. The assets of the Trust shall
consist of the Trust Property.
SECTION 2.09. TITLE TO TRUST PROPERTY. Legal title to all Trust
Property shall be vested at all times in the Property Trustee (in its
capacity as such) and shall be held and administered by the Property
Trustee for the benefit of the Securityholders in accordance with this
Trust Agreement.
SECTION 2.10. RIGHTS OF SECURITYHOLDERS. The legal title to the
Trust Property is vested exclusively in the Property Trustee (in its
capacity as such) in accordance with Section 2.09, and the Securityholders
shall not have any right or title therein other than an undivided
beneficial interest in the assets of the Trust conferred by their Trust
Securities and they shall have no right to call for any partition or
division of property, profits or rights of the Trust except as described
below. The Trust Securities shall be personal property giving only the
rights specifically set forth therein and in this Trust Agreement. The
Preferred Securities shall have no preemptive or similar rights and when
issued and delivered to Securityholders against payment of the purchase
price therefor will be fully paid and nonassessable interests in the Trust.
ARTICLE III.
PAYMENT ACCOUNT
SECTION 3.01. PAYMENT ACCOUNT. (a) On or prior to the Closing
Date, the Property Trustee shall establish the Payment Account. The
Property Trustee and the Paying Agent appointed by the Administrative
Trustees shall have exclusive control with respect to the Payment Account
for the purpose of making deposits in and withdrawals from the Payment
Account in accordance with this Trust Agreement. All monies and other
property deposited or held from time to time in the Payment Account shall
be held by the Property Trustee in the Payment Account for the exclusive
benefit of the Holders of Trust Securities and for distribution as herein
provided.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal or interest on, and any
other payments or proceeds with respect to, the Debentures. Amounts held
in the Payment Account shall not be invested by the Property Trustee
pending distribution thereof.
ARTICLE IV.
DISTRIBUTIONS; REDEMPTION
SECTION 4.01. DISTRIBUTIONS. (a) Distributions on the Trust
Securities shall be cumulative, and will accumulate whether or not there
are funds of the Trust available for the payment of Distributions.
Distributions shall accrue from the Closing Date, and, except in the event
that the Depositor exercises its right to extend the interest payment
period for the Debentures pursuant to Section 311 of the Subordinated
Indenture, shall be payable quarterly in arrears on March 31, June 30,
September 30 and December 31 of each year, commencing on December 31, 1996.
If any date on which Distributions are otherwise payable on the Trust
Securities is not a Business Day, then the payment of such Distribution
shall be made on the next succeeding day that is a Business Day except
that, if such Business Day is in the next succeeding calendar year, payment
of such distribution shall be made on the immediately preceding Business
Day, in each case, with the same force and effect as if made on such date
(each date on which distributions are payable in accordance with this
Section 4.01(a) a "Distribution Date").
(b) Distributions payable on the Trust Securities shall be fixed
at a rate of 8.125% per annum of the Liquidation Amount of the Trust
Securities. The amount of Distributions payable for any full quarterly
period shall be computed on the basis of twelve 30-day months and a 360-day
year and for any period shorter than a full month, on the basis of the
actual number of days elapsed. If the interest payment period for the
Debentures is extended pursuant to Section 311 of the Subordinated
Indenture, then Distributions on the Preferred Securities will be deferred
for the period equal to the extension of the interest payment period for
the Debentures and the rate per annum at which Distributions on the Trust
Securities accumulate shall be increased by an amount such that the
aggregate amount of Distributions that accumulate on all Trust Securities
during any such extended interest payment period is equal to the aggregate
amount of interest (including, to the extent permitted by law, interest
payable on unpaid interest at the percentage rate per annum set forth
above, compounded quarterly) that accrues during any such extended interest
payment period on the Debentures. The amount of Distributions payable for
any period shall include the Additional Amounts, if any.
(c) Distributions on the Trust Securities shall be made and
shall be deemed payable on each Distribution Date only to the extent that
the Trust has funds immediately available in the Payment Account for the
payment of such Distributions.
(d) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on
the Securities Register for the Trust Securities on the relevant record
date, which shall be 15 days prior to such Distribution Date.
SECTION 4.02. REDEMPTION. (a) On each Debenture Redemption Date
and at Maturity for the Debentures, the Property Trustee will be required
to redeem a Like Amount of Trust Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee
by first-class mail, postage prepaid, mailed not less than 30 nor more than
60 days prior to the Redemption Date to each Holder of Trust Securities to
be redeemed, at such Holder's address appearing in the Security Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are to
be redeemed, the identification and the total Liquidation Amount
of the particular Trust Securities to be redeemed;
(v) that on the Redemption Date the Redemption Price will
become due and payable upon each such Trust Security to be
redeemed and that Distributions thereon will cease to accrue on
and after said date;
(vi) the place or places where such Trust Securities are to be
surrendered for payment of the Redemption Price; and
(vii) such other matters as the Property Trustee shall deem
desirable or appropriate.
(c) The Trust Securities redeemed on each Redemption Date shall
be redeemed at the Redemption Price with the proceeds from the
contemporaneous redemption of Debentures. Redemptions of the Trust
Securities shall be made and the Redemption Price shall be deemed payable
on each Redemption Date only if the Trust has funds immediately available
in the Payment Account for such payment.
(d) If the Property Trustee gives a notice of redemption in
respect of any Preferred Securities, then, by 12:00 noon, New York time, on
the Redemption Date, subject to Section 4.02(c), the Property Trustee shall
irrevocably deposit with the Paying Agent funds sufficient to pay the
applicable Redemption Price and will give the Paying Agent irrevocable
instructions to pay the Redemption Price to the Holders thereof upon
surrender of their Trust Securities Certificates. Notwithstanding the
foregoing, Distributions payable on or prior to the Redemption Date for any
Trust Securities called for redemption shall be payable to the Holders of
such Trust Securities as they appear on the Securities Register for the
Trust Securities on the relevant record dates for the related Distribution
Dates. If notice of redemption shall have been given and funds deposited
as required, then on the Redemption Date all rights of Securityholders
holding Trust Securities so called for redemption will cease, except the
right of such Securityholders to receive the Redemption Price, and such
Trust Securities will cease to be outstanding. In the event that any
Redemption Date is not a Business Day, then payment of the Redemption Price
payable on such date shall be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of any
such delay). In the event that payment of the Redemption Price in respect
of any Trust Securities called for redemption is not paid either by the
Trust or by the Depositor pursuant to the Guarantee, Distributions on such
Trust Securities will continue to accrue, at the then applicable rate, from
the Redemption Date originally established to the date on which such
Redemption Price shall actually be paid.
(e) Subject to Section 4.03(a), if less than all the Outstanding
Trust Securities are to be redeemed on a Redemption Date, then the
aggregate Liquidation Amount of Trust Securities to be redeemed shall be
allocated 3% to the Common Securities and 97% to the Preferred Securities.
The particular Preferred Securities to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Property Trustee from
the Outstanding Preferred Securities not previously called for redemption,
by such method as the Property Trustee shall deem fair and appropriate and
which may provide for the selection for redemption of portions (equal to
$25 or integral multiples thereof) of the Liquidation Amount of Preferred
Securities of a denomination larger than $25. The Property Trustee shall
promptly notify the Transfer Agent and Registrar in writing of the
Preferred Securities selected for redemption and, in the case of any
Preferred Securities selected for partial redemption, the Liquidation
Amount thereof to be redeemed. For all purposes of this Trust Agreement,
unless the context otherwise requires, all provisions relating to the
redemption of Preferred Securities shall relate, in the case of any
Preferred Securities redeemed or to be redeemed only in part, to the
portion of the Liquidation Amount of Preferred Securities which has been or
is to be redeemed.
SECTION 4.03. SUBORDINATION OF COMMON SECURITIES. (a) If on
any Distribution Date or Redemption Date any Event of Default resulting
from a Debenture Event of Default shall have occurred and be continuing, no
payment of any Distribution (including Additional Amounts, if applicable)
on, or Redemption Price of, any Common Security, and no other payment on
account of the redemption, liquidation or other acquisition of Common
Securities, shall be made unless payment in full in cash of all accumulated
and unpaid Distributions (including Additional Amounts, if applicable) on
all Outstanding Preferred Securities for all distribution periods
terminating on or prior thereto, or in the case of payment of the
Redemption Price, payment in full of such Redemption Price on all
Outstanding Preferred Securities, shall have been made or provided for.
(b) In the case of the occurrence of an Event of Default
resulting from a Debenture Event of Default, the Holder of Common
Securities will be deemed to have waived such Event of Default until the
effect of all such Events of Default with respect to the Preferred
Securities shall have been cured, waived or otherwise eliminated. Until
all Events of Default with respect to the Preferred Securities shall have
been so cured, waived or otherwise eliminated, the Property Trustee shall
act solely on behalf of the Holders of the Preferred Securities, and only
the Holders of the Preferred Securities will have the right to direct the
Property Trustee to act.
SECTION 4.04. PAYMENT PROCEDURES. Payments in respect of the
Preferred Securities shall be made by check mailed to the address of the
Person entitled thereto as such address shall appear on the Securities
Register. Payments in respect of the Common Securities shall be made in
such manner as shall be mutually agreed between the Administrative Trustees
and the Holder of the Common Securities.
SECTION 4.05. TAX RETURNS AND REPORTS. The Administrative
Trustees shall prepare (or cause to be prepared), at the Depositor's
expense and direction, and file all United States federal, state and local
tax and information returns and reports required to be filed by or in
respect of the Trust. In this regard, the Administrative Trustees shall
(a) prepare and file (or cause to be prepared and filed) the Internal
Revenue Service Form 1041 (or any successor form) required to be filed in
respect of the Trust in each taxable year of the Trust and (b) prepare and
furnish (or cause to be prepared and furnished) to each Securityholder the
related Internal Revenue Service Form 1099, or any successor form or the
information required to be provided on such form. The Administrative
Trustees shall provide the Depositor and the Property Trustee with a copy
of all such returns, reports and schedules promptly after such filing or
furnishing. The Trustees shall comply with United States federal
withholding and backup withholding tax laws and information reporting
requirements with respect to any payments to Securityholders under the
Trust Securities.
SECTION 4.06. PAYMENTS UNDER SUBORDINATED INDENTURE. Any amount
payable hereunder to any Holder of Preferred Securities shall be reduced by
the amount of any corresponding payment such Holder has directly received
pursuant to Section 808 of the Subordinated Indenture. Notwithstanding the
provisions hereunder to the contrary, Securityholders acknowledge that any
Holder of Preferred Securities that receives payment under Section 808 of
the Subordinated Indenture may receive amounts greater than the amount such
Holder may be entitled to receive pursuant to the other provisions of this
Trust Agreement.
ARTICLE V.
TRUST SECURITIES CERTIFICATES
SECTION 5.01. THE TRUST SECURITIES CERTIFICATES. The Trust
Securities Certificates shall be issued in denominations of $25 Liquidation
Amount and integral multiples thereof. Subject to Section 2.04 relating to
the original issuance of the Preferred Securities Certificate registered in
the name of the nominee of the Securities Depository, the Trust Securities
Certificates shall be executed on behalf of the Trust by manual or
facsimile signature of at least one Administrative Trustee and, if executed
on behalf of the Trust by facsimile signature, countersigned by a Transfer
Agent or its agent. Trust Securities Certificates bearing the signatures
of individuals who were, at the time when such signatures shall have been
affixed, authorized to sign on behalf of the Trust and, if executed on
behalf of the Trust by facsimile signature and countersigned by a Transfer
Agent or its agent, shall be validly issued and entitled to the benefits of
this Trust Agreement, notwithstanding that such individuals or any of them
shall have ceased to be so authorized prior to the delivery of such Trust
Securities Certificates or did not hold such offices at the date of
delivery of such Trust Securities Certificates. Trust Securities
Certificates may be typewritten, printed, lithographed or engraved or may
be produced in any other manner as is reasonably acceptable to the
Administrative Trustees, as evidenced by the execution thereof by the
Administrative Trustees, or any one of them.
SECTION 5.02. OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR. On
the Closing Date, the Depositor shall acquire, and thereafter retain,
beneficial and record ownership of the Common Securities. Any attempted
transfer of the Common Securities (other than a transfer in connection with
a merger or consolidation of the Depositor with or into another corporation
pursuant to Section 1101 of the Subordinated Indenture) shall be void. The
Administrative Trustees shall cause each Common Securities Certificate
issued to the Depositor to contain a legend stating "THIS CERTIFICATE IS
NOT TRANSFERABLE." A single Common Securities Certificate representing the
Common Securities shall be issued to the Depositor in the form of a
typewritten or definitive Common Securities Certificate.
SECTION 5.03. REGISTRATION OF TRANSFER AND EXCHANGE OF PREFERRED
SECURITIES CERTIFICATES. (a) The Registrar shall keep or cause to be kept,
at its principal corporate office, a Securities Register in which, subject
to such reasonable regulations as it may prescribe, the Registrar shall
provide for the registration of Preferred Securities Certificates and the
registration of transfers and exchanges of Preferred Securities
Certificates as herein provided.
(b) Upon surrender for registration of transfer of any Preferred
Securities Certificate at the office or agency maintained pursuant to
Section 5.08, the Administrative Trustees, or any one of them, shall
execute on behalf of the Trust by manual or facsimile signature and, if
executed on behalf of the Trust by facsimile signature, cause a Transfer
Agent or its agent to countersign and deliver, in the name of the
designated transferee or transferees, one or more new Preferred Securities
Certificates in authorized denominations of a like aggregate Liquidation
Amount. At the option of a Holder, Preferred Securities Certificates may
be exchanged for other Preferred Securities Certificates in authorized
denominations of the same class and of a like aggregate Liquidation Amount
upon surrender of the Preferred Securities Certificates to be exchanged at
the office or agency maintained pursuant to Section 5.08.
(c) Every Preferred Securities Certificate presented or
surrendered for registration of transfer or exchange shall be accompanied
by a written instrument of transfer in form satisfactory to the
Administrative Trustees and a Transfer Agent duly executed by the Holder or
such Holder's attorney duly authorized in writing. The Trust shall not be
required to (i) issue, register the transfer of, or exchange any Preferred
Securities during a period beginning at the opening of business 15
calendar days before the day of mailing of a notice of redemption of any
Preferred Securities called for redemption and ending at the close of
business on the day of such mailing or (ii) register the transfer of or
exchange any Preferred Securities so selected for redemption, in whole or
in part, except the unredeemed portion of any such Preferred Securities
being redeemed in part.
(d) No service charge shall be made for any registration of
transfer or exchange of Preferred Securities Certificates, but a Transfer
Agent may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Preferred Securities Certificates.
SECTION 5.04. MUTILATED, DESTROYED, LOST OR STOLEN TRUST
SECURITIES CERTIFICATES. If (i) any mutilated Trust Securities Certificate
shall be surrendered to a Transfer Agent, or if a Transfer Agent shall
receive evidence to its satisfaction of the destruction, loss or theft of
any Trust Securities Certificate and (ii) there shall be delivered to the
Transfer Agent and the Administrative Trustees such security or indemnity
as may be required by them to save each of them and the Depositor harmless,
then in the absence of notice that such Trust Securities Certificate shall
have been acquired by a bona fide purchaser, the Administrative Trustees,
or any one of them, on behalf of the Trust, shall execute by manual or
facsimile signature such Trust Securities Certificate and, if execution on
behalf of the Trust is by facsimile signature, such Certificate shall be
countersigned by a Transfer Agent; and the Administrative Trustees, or any
one of them, shall make available for delivery, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Trust Securities
Certificate, a new Trust Securities Certificate of like class, tenor and
denomination. In connection with the issuance of any new Trust Securities
Certificate under this Section 5.04, the Administrative Trustees or the
Transfer Agent may require the payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection therewith.
Any duplicate Trust Securities Certificate issued pursuant to this Section
5.04 shall constitute conclusive evidence of an ownership interest in the
Trust, as if originally issued, whether or not the lost, stolen or
destroyed Trust Securities Certificate shall be found at any time.
SECTION 5.05. CANCELLATION BY REGISTRAR. All Trust Securities
Certificates surrendered for payment, redemption, registration of transfer
or exchange shall, if surrendered to any Person other than the Registrar,
be delivered to the Registrar and, if not theretofore cancelled, shall
promptly be cancelled by the Registrar. No Trust Securities Certificates
shall be issued in lieu of or in exchange for any Trust Securities
Certificates cancelled as provided in this Section, except as expressly
permitted by this Trust Agreement. All cancelled Trust Securities
Certificates held by the Registrar shall be disposed of in accordance with
customary practices.
SECTION 5.06. PERSONS DEEMED SECURITYHOLDERS. Prior to due
presentation of a Preferred Securities Certificate for registration of
transfer, the Trustees and the Registrar shall be entitled to treat the
Person in whose name any Preferred Securities Certificate shall be
registered in the Securities Register as the Holder of such Preferred
Securities Certificate for the purpose of receiving Distributions and for
all other purposes whatsoever, and neither the Trustees nor the Registrar
shall be bound by any notice to the contrary.
SECTION 5.07. LISTS OF HOLDERS. Semiannually, not later than
June 1 and December 1 in each year, commencing December 1, 1996, and at
such other times as the Property Trustee may request in writing, the
Administrative Trustees shall furnish or cause to be furnished to the
Property Trustee information as to the names and addresses of the Holders,
and the Property 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 Trust Indenture Act; provided,
however, that no such list need be furnished so long as the Property
Trustee shall be the Registrar.
SECTION 5.08. MAINTENANCE OF OFFICE OR AGENCY. The
Administrative Trustees shall or shall cause the Transfer Agent to
maintain, in the Borough of Manhattan, the City of New York, an office or
offices or agency or agencies where Preferred Securities Certificates may
be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Trustees or the Transfer Agent in respect of the
Trust Securities Certificates may be served. The Administrative Trustees
shall or shall cause the Transfer Agent to give prompt written notice to
the Property Trustee and to the Securityholders of any change in any such
office or agency.
SECTION 5.09. APPOINTMENT OF PAYING AGENT. The Paying Agent
shall make Distributions to Securityholders from the Payment Account and
shall report the amounts of such Distributions to the Administrative
Trustees and the Property Trustee. Any Paying Agent shall have the
revocable power to withdraw funds from the Payment Account for the purpose
of making the Distributions. The Property Trustee shall be entitled to
rely upon a certificate of the Paying Agent stating in effect the amount of
such funds so to be withdrawn and that same are to be applied by the Paying
Agent in accordance with this Section 5.09. The Administrative Trustees or
any one of them may revoke such power and remove the Paying Agent if the
Administrative Trustees or any one of them determines in its sole
discretion that the Paying Agent shall have failed to perform its
obligations under this Trust Agreement in any material respect. The Paying
Agent may choose any co-paying agent that is acceptable to the
Administrative Trustees and the Depositor. The Paying Agent shall be
permitted to resign upon 30 days' written notice to the Administrative
Trustees and the Depositor. In the event of the removal or resignation of
the Paying Agent, the Administrative Trustees shall appoint a successor
that is reasonably acceptable to the Property Trustee and the Depositor to
act as Paying Agent (which shall be a bank, trust company or an Affiliate
of the Depositor). The Administrative Trustees shall cause such successor
Paying Agent or any additional Paying Agent appointed by the Administrative
Trustees to execute and deliver to the Trustees an instrument in which such
successor Paying Agent or additional Paying Agent shall agree with the
Trustees that as Paying Agent, such successor Paying Agent or additional
Paying Agent will hold all sums, if any, held by it for payment to the
Securityholders in trust for the benefit of the Securityholders entitled
thereto until such sums shall be paid to such Securityholders. The Paying
Agent shall return all unclaimed funds to the Property Trustee and upon
resignation or removal of a Paying Agent such Paying Agent also shall
return all other funds in its possession to the Property Trustee. The
provisions of Sections 8.01 through 8.06 shall apply to the Paying Agent
appointed hereunder, and the Paying Agent shall be bound by the
requirements with respect to paying agents of securities issued pursuant to
the Trust Indenture Act. Any reference in this Trust Agreement to the
Paying Agent shall include any co-paying agent unless the context requires
otherwise.
SECTION 5.10. BOOK-ENTRY SYSTEM. (a) The Administrative
Trustees, at the direction and expense of the Depositor, may from time to
time appoint a Securities Depository or a successor thereto and enter into
a letter of representations or other agreement with such Securities
Depository to establish procedures with respect to the Preferred
Securities. Any Securities Depository shall be a Clearing Agency.
(b) The Depositor and the Trustees covenant and agree to meet the
requirements of a Securities Depository for the Preferred Securities with
respect to required notices and other provisions of the letter of
representations or agreement executed with respect to such Preferred
Securities.
(c) Whenever the beneficial ownership of any Preferred Securities
is determined through the books of a Securities Depository, the
requirements in this Trust Agreement of holding, delivering or
transferring, and making payments in respect of, such Preferred Securities
shall be deemed modified with respect to such Preferred Securities to meet
the requirements of the Securities Depository with respect to actions of
the Trustees, the Depositor and the Paying Agent. Any provisions hereof
permitting or requiring delivery of such Preferred Securities shall, while
such Preferred Securities are in a book-entry system, be satisfied by the
notation on the books of the Securities Depository in accordance with
applicable state law.
ARTICLE VI.
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.01. LIMITATIONS ON VOTING RIGHTS. (a) Except as
provided in this Section 6.01, in Section 10.03 and as otherwise required
by law, no Holder of Preferred Securities shall have any right to vote or
in any manner otherwise control the administration, operation and
management of the Trust or the obligations of the parties hereto, nor shall
anything herein set forth, or contained in the terms of the Trust
Securities Certificates, be construed so as to constitute the
Securityholders from time to time as partners or members of an association.
If the Property Trustee fails to enforce its rights under the Debentures or
this Trust Agreement, a Holder of Preferred Securities may institute a
legal proceeding directly against the Depositor to enforce the Property
Trustee's rights under the Debentures or this Trust Agreement, to the
fullest extent permitted by law, without first instituting any legal
proceeding against the Property Trustee or any other person.
Notwithstanding the foregoing, a Holder of Preferred Securities may
directly institute a proceeding for enforcement of payment to such Holder
directly of principal of or interest on the Debentures having a principal
amount equal to the aggregate Liquidation Amount of the Preferred
Securities of such Holder on or after the due dates specified in the
Debentures. In connection with any such proceeding, the Depositor will be
subrogated to the rights of any Holder of Preferred Securities to the
extent of any payment made by the Depositor to such Holder.
(b) So long as any Debentures are held by the Property Trustee,
the Trustees shall not (i) direct the time, method and place of conducting
any proceeding for any remedy available to the Debenture Trustee, or
executing any trust or power conferred on the Debenture Trustee with
respect to such Debentures, (ii) waive any past default which is waivable
under Section 813 of the Subordinated Indenture, (iii) exercise any right
to rescind or annul a declaration that the principal of all the Debentures
shall be due and payable or (iv) consent to any amendment, modification or
termination of the Subordinated Indenture or the Debentures, where such
consent shall be required, without, in each case, obtaining the prior
approval of the Holders of at least 66 2/3% of the aggregate Liquidation
Amount of the Outstanding Preferred Securities; provided, however, that
where a consent under the Subordinated Indenture would require the consent
of each holder of Debentures affected thereby, no such consent shall be
given by any Trustee without the prior written consent of each holder of
Preferred Securities. The Trustees shall not revoke any action previously
authorized or approved by a vote of the Preferred Securities, except
pursuant to a subsequent vote of the Preferred Securities.
SECTION 6.02. NOTICE OF MEETINGS. Notice of all meetings of the
Holders of a Preferred Securities, stating the time, place and purpose of
the meeting, shall be given by the Administrative Trustees pursuant to
Section 10.08 to each Holder of a Preferred Security, at his registered
address, at least 15 days and not more than 90 days before the meeting. At
any such meeting, any business properly before the meeting may be so
considered whether or not stated in the notice of the meeting. Any
adjourned meeting may be held as adjourned without further notice.
SECTION 6.03. MEETINGS OF HOLDERS OF PREFERRED SECURITIES. (a)
No annual meeting of Securityholders is required to be held. The
Administrative Trustees, however, shall call a meeting of Securityholders
to vote on any matter upon the written request of the Holders of at least
25% of the aggregate Liquidation Amount of the Outstanding Preferred
Securities and may, at any time in their discretion, call a meeting of
Holders of Preferred Securities to vote on any matters as to which the
Holders of Preferred Securities are entitled to vote.
(b) Holders of at least 50% of the aggregate Liquidation Amount
of the Outstanding Preferred Securities, present in person or by proxy,
shall constitute a quorum at any meeting of Securityholders.
(c) If a quorum is present at a meeting, an affirmative vote by
the Holders of a majority of the aggregate Liquidation Amount of the
Outstanding Preferred Securities shall constitute the action of the
Securityholders, unless this Trust Agreement shall require a greater
affirmative vote.
SECTION 6.04. VOTING RIGHTS. Securityholders shall be entitled
to one vote for each $25 of Liquidation Amount represented by their Trust
Securities in respect of any matter as to which such Securityholders are
entitled to vote.
SECTION 6.05. PROXIES, ETC. At any meeting of Securityholders,
any Securityholder entitled to vote thereat may vote by proxy, provided
that no proxy shall be voted at any meeting unless it shall have been
placed on file with the Administrative Trustees, or with such other officer
or agent of the Trust as the Administrative Trustees may direct, for
verification prior to the time at which such vote shall be taken. Only
Securityholders of record shall be entitled to vote. When Trust Securities
are held jointly by several Persons, any one of them may vote at any
meeting in person or by proxy in respect of such Trust Securities, but if
more than one of them shall be present at such meeting in person or by
proxy, and such joint owners or their proxies so present disagree as to any
vote to be cast, such vote shall not be received in respect of such Trust
Securities. A proxy purporting to be executed by or on behalf of a
Securityholder shall be deemed valid unless challenged at or prior to its
exercise, and the burden of proving invalidity shall rest on the
challenger.
SECTION 6.06. SECURITYHOLDER ACTION BY WRITTEN CONSENT. Any
action which may be taken by Securityholders at a meeting may be taken
without a meeting if Holders of at least a majority of the aggregate
Liquidation Amount of the Outstanding Trust Securities entitled to vote in
respect of such action (or such larger proportion thereof as shall be
required by any express provision of this Trust Agreement) shall consent to
the action in writing.
SECTION 6.07. RECORD DATE FOR VOTING. For the purposes of
determining the Securityholders who are entitled to notice of and to vote
at any meeting or by written consent, or for the purpose of any other
action, the Administrative Trustees may from time to time fix a date, not
more than 90 days prior to the date of any meeting of Securityholders or
other action, as the case may be, as a record date for the determination of
the identity of the Securityholders of record for such purposes.
SECTION 6.08. ACTS OF SECURITYHOLDERS. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided
or permitted by this Trust Agreement to be given, made or taken by
Securityholders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Securityholders in person or
by an agent duly appointed in writing; and, except as otherwise expressly
provided herein, such action shall become effective when such instrument or
instruments are delivered to the Administrative Trustees. Such instrument
or instruments (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Securityholders signing
such instrument or instruments. Proof of execution of any such instrument
or of a writing appointing any such agent shall be sufficient for any
purpose of this Trust Agreement and (subject to Section 8.01) conclusive in
favor of the Trustees, if made in the manner provided in this Section 6.08.
(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 acknowledgements of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. 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. The fact and date
of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other manner which any
Trustee deems sufficient.
(c) The ownership of Preferred Securities shall be proved by the
Securities Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Trust Security shall bind
every future Holder of the same Trust Security and the Holder of every
Trust 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 Trustees or the Trust in reliance thereon,
whether or not notation of such action is made upon such Trust Security.
(e) Without limiting the foregoing, a Securityholder entitled
hereunder to take any action hereunder with regard to any particular Trust
Security may do so with regard to all or any part of the Liquidation Amount
of such Trust Security or by one or more duly appointed agents each of
which may do so pursuant to such appointment with regard to all or any part
of such Liquidation Amount.
(f) If any dispute shall arise between or among the
Securityholders and the Administrative Trustees with respect to the
authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such
Securityholder or Trustee under this Article VI, then the determination of
such matter by the Property Trustee shall be conclusive with respect to
such matter.
SECTION 6.09. INSPECTION OF RECORDS. Subject to Section 5.07
concerning access to the list of Securityholders, upon reasonable notice to
the Administrative Trustees and the Property Trustee, the records of the
Trust shall be open to inspection by Securityholders during normal business
hours for any purpose reasonably related to such Securityholder's interest
as a Securityholder.
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES
OF THE PROPERTY TRUSTEE
SECTION 7.01. PROPERTY TRUSTEE. The Property Trustee hereby
represents and warrants for the benefit of the Depositor and the
Securityholders that:
(i) the Property Trustee is a banking corporation or trust
company duly organized, validly existing and in good standing under the
laws of the State of Delaware;
(ii) the Property Trustee has full corporate power, authority
and legal right to execute, deliver and perform its obligations under this
Trust Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Agreement;
(iii) this Trust Agreement has been duly authorized, executed
and delivered by the Property Trustee and constitutes the valid and legally
binding agreement of the Property Trustee enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles;
(iv) the execution, delivery and performance by the Property
Trustee of this Trust Agreement will not violate, conflict with or
constitute a breach of the Property Trustee's charter or by-laws; and
(v) neither the authorization, execution or delivery by the
Property Trustee of this Trust Agreement nor the consummation of any of the
transactions by the Property Trustee contemplated herein require the
consent or approval of, the giving of notice to, the registration with or
the taking of any other action with respect to any governmental authority
or agency under any existing Federal or Delaware law governing the banking
or trust powers of the Property Trustee.
ARTICLE VIII.
THE TRUSTEES
SECTION 8.01. CERTAIN DUTIES AND RESPONSIBILITIES. (a) The
Property Trustee, before the occurrence of any Event of Default and after
the curing of all Events of Default that may have occurred, shall undertake
to perform only such duties as are specifically set forth in this Trust
Agreement and in the terms of the Trust Securities and no implied covenants
shall be read into this Trust Agreement against the Property Trustee. In
case an Event of Default has occurred (that has not been cured or waived),
the Property Trustee shall exercise such of the rights and powers vesting
in it by this Trust Agreement, 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 his or her own affairs.
(b) No provision of this Trust Agreement shall be construed to
relieve the Property Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct, except
that:
(i) prior to the occurrence of an Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Property Trustee
shall be determined solely by the express provisions of this
Trust Agreement and in the terms of the Trust Securities, and the
Property Trustee shall not be liable except for the performance
of such duties and obligations as are specifically set forth in
this Trust Agreement, and no implied covenants or obligations
shall be read into this Trust Agreement against the Property
Trustee; and
(B) in the absence of bad faith on the part of the
Property Trustee, the Property Trustee may conclusively rely, as
to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Property Trustee and conforming to the
requirements of this Trust Agreement; provided, however, that in
the case of any such certificates or opinions that by any
provision hereof are specifically required to be furnished to the
Property Trustee, the Property Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Trustee Agreement.
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of at least a majority of
the aggregate Liquidation Amount of the Outstanding Preferred
Securities relating to the time, method and place of conducting any
proceeding for any remedy available to the Property Trustee, or
exercising any trust or power conferred upon the Property Trustee
under this Trust Agreement;
(iv) no provision of this Trust Agreement shall require any of
the Trustees to expend or risk its own funds or otherwise incur any
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 for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it.
(v) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Trust Property
shall be to deal with such property in a similar manner as the
Property Trustee deals with similar property for its own account,
subject to the protections and limitations on liability afforded to
the Property Trustee under this Trust Agreement, the Trust Indenture
Act and, to the extent applicable, Rule 3a-7 under the Investment
Company Act of 1940, as amended;
(vi) the Property Trustee shall have no duty or liability for,
or with respect to the value, genuineness, existence or sufficiency
of, the Trust Property or the payment of any taxes or assessments
levied thereon or in connection therewith;
(vii) the Property Trustee shall not be liable for any
interest on any money received by it except as it may otherwise agree
with the Depositor. Money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the
Payment Account established by the Property Trustee pursuant to this
Trust Agreement and except to the extent otherwise required by law;
and
(viii) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the
Depositor with their respective duties under this Trust Agreement, nor
shall the Property Trustee be liable for the default or misconduct of
the Administrative Trustees or the Depositor.
(C) all payments made by the Property Trustee or a Paying
Agent in respect of the Trust Securities shall be made only from
the income and proceeds from the Trust Property and only to the
extent that there shall be sufficient income or proceeds from the
Trust Property to enable the Property Trustee or Paying Agent to
make payments in accordance with the terms hereof. Each
Securityholder, by its acceptance of a Trust Security, agrees
that it will look solely to the income and proceeds from the
Trust Property to the extent available for distribution to it as
herein provided and that the Trustees are not personally liable
to it for any amount distributable in respect of any Trust
Security or for any other liability in respect of any Trust
Security. This Section 8.01(c) does not limit the liability of
the Trustees expressly set forth elsewhere in this Trust
Agreement or, in the case of the Property Trustee, in the Trust
Indenture Act.
(D) no Administrative Trustee shall be liable for any act
or omission to act hereunder, except for its own gross negligence
or wilful misconduct.
SECTION 8.02. CERTAIN NOTICES. (a) Within five Business Days
after the occurrence of any Event of Default, the Property Trustee shall
transmit, in the manner and to the extent provided in Section 10.08, notice
of any Event of Default known to the Property Trustee to the
Securityholders, the Administrative Trustees and the Depositor, unless such
Event of Default shall have been cured or waived.
(b) Within Five Business Days after receipt of notice of the
Depositor's exercise of its right to defer the payment of interest on the
Debentures pursuant to the Subordinated Indenture, an Administrative
Trustee shall transmit, in the manner and to the extent provided in Section
10.08, notice of such exercise to the Securityholders and the Property
Trustee.
SECTION 8.03. CERTAIN RIGHTS OF PROPERTY TRUSTEE. Subject to
the provisions of Section 8.01 and except as provided by law:
(i) the Property Trustee may rely and shall be protected in
acting or refraining from acting in good faith upon any
resolution, Opinion of Counsel, certificate, written
representation of a Holder or transferee, certificate of auditors
or any other certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, appraisal, bond,
debenture, note, other evidence of indebtedness or other paper or
document reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(ii) if (A) in performing its duties under this Trust Agreement
the Property Trustee is required to decide between alternative
courses of action or (B) in construing any of the provisions in
this Trust Agreement the Property Trustee finds the same
ambiguous or inconsistent with any other provisions contained
herein or (C) the Property Trustee is unsure of the application
of any provision of this Trust Agreement, then, except as to any
matter as to which the Preferred Securityholders are entitled to
vote under the terms of this Trust Agreement, the Property
Trustee shall deliver a notice to the Depositor requesting
written instructions of the Depositor as to the course of action
to be taken. The Property Trustee shall take such action, or
refrain from taking such action, as the Property Trustee shall be
instructed in writing to take, or to refrain from taking, by the
Depositor; provided, however, that if the Property Trustee does
not receive such instructions of the Depositor within ten
Business Days after it has delivered such notice, or such
reasonably shorter period of time set forth in such notice (which
to the extent practicable shall not be less than two Business
Days), it may, but shall be under no duty to, take or refrain
from taking such action not inconsistent with this Trust
Agreement as it shall deem advisable and in the best interests of
the Securityholders, in which event the Property Trustee shall
have no liability except for its own bad faith, negligence or
willful misconduct;
(iii) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable that a matter be proved
or established prior to taking, suffering or omitting any action
hereunder, the Property Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, request and rely upon an Officer's Certificate;
(iv) the Property Trustee may consult with counsel of its
selection and the written advice of such counsel or any Opinion
of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by
it hereunder in good faith and in reliance thereon;
(v) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Trust
Agreement at the request or direction of any of the
Securityholders pursuant to this Trust Agreement, unless such
Securityholders shall have offered to the Property Trustee
reasonable security or indemnity against the costs, expenses
(including reasonable attorneys' fees and expenses) and
liabilities which might be incurred by it in complying with such
request or direction;
(vi) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, approval, bond, debenture,
note or other evidence of indebtedness or other paper or document
reasonably believed by it to be genuine, unless requested in
writing to do so by one or more Securityholders, but the Property
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit;
(vii) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly
or by or through its agents or attorneys, and the Property
Trustee shall not be responsible for any misconduct or negligence
on the part of any agent or attorney appointed with due care by
it hereunder; provided, however, that the Property Trustee shall
be responsible for its own negligence or recklessness with
respect to selection of any agent or attorney appointed by it
hereunder;
(viii) the Property Trustee shall not be liable for any action
taken, suffered, or omitted to be taken by it in good faith and
reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Trust
Agreement;
(ix) the Property Trustee shall not be charged with knowledge
of any default or Event of Default with respect to the Trust
Securities unless either (A) a Responsible Officer of the
Property Trustee shall have actual knowledge of the default or
Event of Default or (B) written notice of such default or Event
of Default shall have been given to the Property Trustee by the
Depositor, the Administrative Trustees or by any Securityholder;
(x) no provision of this Trust Agreement shall be deemed to
impose any duty or obligation on the Property Trustee to perform
any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it in any jurisdiction in which it shall
be illegal, or in which the Property Trustee shall be unqualified
or incompetent in accordance with applicable law, to perform any
such act or acts or to exercise any such right, power, duty or
obligation; and no permissive or discretionary power or authority
available to the Property Trustee shall be construed to be a
duty;
(xi) no provision of this Trust Agreement shall require the
Property Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers, if
the Property Trustee shall have reasonable grounds for believing
that the repayment of such funds or liability is not reasonably
assured to it under the terms of this Trust Agreement or adequate
indemnity against such risk or liability is not reasonably
assured to it;
(xii) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including
any financing or continuation statement or any securities) (or
any rerecording, refiling or reregistration thereof);
(xiii) the Property Trustee shall have the right at any time to
seek instructions concerning the administration of this Trust
Agreement from any court of competent jurisdiction; and
(xiv) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable to receive instructions
with respect to enforcing any remedy or right or taking any other
action hereunder the Property Trustee (A) may request
instructions from the Securityholders, which instructions may
only be given by the Holders of the same amount of the Trust
Securities as would be entitled to direct the Property Trustee
under the terms of this Trust Agreement in respect of such
remedies, rights or actions, (B) may refrain from enforcing such
remedy or right or taking such other action until such
instructions are received, and (C) shall be protected in acting
in accordance with such instructions.
SECTION 8.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES. The recitals contained herein and in the Trust Securities
Certificates shall be taken as the statements of the Depositor, and the
Trustees do not assume any responsibility for their correctness. The
Trustees make no representations as to the value or condition of the
property of the Trust or any part thereof or as to the title of the Trust
thereto or as to the security afforded thereby or hereby, or as to the
validity or genuineness of any securities at any time pledged and deposited
with any Trustees hereunder, nor as to the validity or sufficiency of this
Trust Agreement or the Trust Securities. The Trustees shall not be
accountable for the use or application by the Trust of the proceeds of the
sale of the Trust Securities in accordance with Section 2.05.
SECTION 8.05. MAY HOLD SECURITIES. Except as provided in the
definition of the term "Outstanding" in Article I, any Trustee or any agent
of any Trustee or the Trust, in its individual or any other capacity, may
become the owner or pledgee of Trust Securities and may otherwise deal with
the Trust with the same rights it would have if it were not a Trustee or
such agent.
SECTION 8.06. COMPENSATION; FEES; INDEMNITY. (a) The Depositor
agrees:
(i) to pay to the Trustees from time to time compensation for
all services rendered by the Trustees hereunder in accordance with a
separate fee agreement between the Depositor and the Trustees, if any
(which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(ii) except as otherwise expressly provided herein, to reimburse
the Trustees upon request for all reasonable expenses, disbursements
and advances reasonably incurred or made by the Trustees in accordance
with any provision of this Trust Agreement (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence (gross negligence, in the case of any
Administrative Trustee), bad faith or willful misconduct; and
(iii) to indemnify each Indemnified Person for, and to hold each
Indemnified Person harmless against, any and all loss, damage, claims,
liability or expense incurred without negligence (gross negligence, in
the case of any Administrative Trustee), bad faith or willful
misconduct on its part, arising out of or in connection with the
acceptance or administration of this Trust Agreement, including the
reasonable costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder.
(b) As security for the performance of the obligations of the
Depositor under this Section, each of the Trustees shall have a lien prior
to the Trust Securities upon all property and funds held or collected by
such Trustee as such.
(c) The provisions of this Section 8.06 shall survive the
termination of this Trust Agreement.
SECTION 8.07. CERTAIN TRUSTEES REQUIRED; ELIGIBILITY. (a) There
shall at all times be a Property Trustee hereunder with respect to the
Trust Securities. The Property Trustee shall be a Person that has a
combined capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the
purposes of this Section 8.07(a), the combined capital and surplus of such
Person shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the
Property Trustee with respect to the Trust Securities shall cease to be
eligible in accordance with the provisions of this Section 8.07(a), it
shall resign immediately in the manner and with the effect hereinafter
specified in this Article VIII.
(b) There shall at all times be one or more Administrative
Trustees hereunder with respect to the Trust Securities. Each
Administrative Trustee shall be either a natural person who is at least 21
years of age or a legal entity that shall act through one or more persons
authorized to bind such entity.
(c) There shall at all times be a Delaware Trustee with respect
to the Trust Securities. The Delaware Trustee shall either be (i) a
natural person who is at least 21 years of age and a resident of the State
of Delaware or (ii) a legal entity with its principal place of business in
the State of Delaware that otherwise meets the requirements of applicable
Delaware law and that shall act through one or more persons authorized to
bind such entity. So long as the Property Trustee has its principal place
of business in the State of Delaware and otherwise meets the requirements
of applicable law, the Property Trustee shall also be the Delaware Trustee.
In the event that the Property Trustee should no longer qualify as the
Delaware Trustee, either one of the Administrative Trustees who is a
resident of the State of Delaware shall be the Delaware Trustee or the
Administrative Trustees shall appoint a qualified Person to be Delaware
Trustee.
SECTION 8.08. CONFLICTING INTERESTS. If the Property Trustee
has or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Property Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Trust Agreement. The
Subordinated Indenture and the Guarantee Agreement shall be deemed to be
specifically described in this Trust Agreement for the purposes of clause
(i) of the first proviso contained in Section 310(b) of the Trust Indenture
Act.
SECTION 8.09. CO-TRUSTEES AND SEPARATE TRUSTEE. (a) Unless an
Event of Default shall have occurred and be continuing, at any time or
times, for the purpose of meeting the legal requirements of the Trust
Indenture Act or of any jurisdiction in which any part of the Trust
Property may at the time be located, the Depositor and the Property Trustee
shall have power to appoint, and upon the written request of the Property
Trustee, the Depositor shall for such purpose join with the Property
Trustee in the execution, delivery, and performance of all instruments and
agreements necessary or proper to appoint, one or more Persons approved by
the Property Trustee either to act as co-trustee, jointly with the Property
Trustee, of all or any part of such Trust Property, or to act as separate
trustee of any such property, in either case with such powers as may be
provided in the instrument of appointment, and to vest in such Person or
Persons in the capacity aforesaid, any property, title, right or power
deemed necessary or desirable, subject to the other provisions of this
Section 8.09. If the Depositor does not join in such appointment within 15
days after the receipt by it of a request so to do, or in case a Debenture
Event of Default has occurred and is continuing, the Property Trustee alone
shall have power to make such appointment.
(b) Should any written instrument from the Depositor be required
by any co-trustee or separate trustee so appointed for more fully
confirming to such co-trustee or separate trustee such property, title,
right, or power, any and all such instruments shall, on request, be
executed, acknowledged, and delivered by the Depositor.
(c) Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the
following terms, namely:
(i) The Trust Securities shall be executed and delivered
and all rights, powers, duties, and obligations hereunder in
respect of the custody of securities, cash and other personal
property held by, or required to be deposited or pledged with,
the Trustees designated for such purpose hereunder, shall be
exercised, solely by such Trustees.
(ii) The rights, powers, duties, and obligations hereby
conferred or imposed upon the Property Trustee in respect of any
property covered by such appointment shall be conferred or
imposed upon and exercised or performed by the Property Trustee
or by the Property Trustee and such co-trustee or separate
trustee jointly, as shall be provided in the instrument
appointing such co-trustee or separate trustee, except to the
extent that under any law of any jurisdiction in which any
particular act is to be performed, the Property Trustee shall be
incompetent or unqualified to perform such act, in which event
such rights, powers, duties, and obligations shall be exercised
and performed by such co-trustee or separate trustee.
(iii) The Property Trustee at any time, by an instrument
in writing executed by it, with the written concurrence of the
Depositor, may accept the resignation of or remove any co-trustee
or separate trustee appointed under this Section 8.09, and, in
case a Debenture Event of Default has occurred and is continuing,
the Property Trustee shall have power to accept the resignation
of, or remove, any such co-trustee or separate trustee without
the concurrence of the Depositor. Upon the written request of
the Property Trustee, the Depositor shall join with the Property
Trustee in the execution, delivery, and performance of all
instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or
separate trustee so resigned or removed may be appointed in the
manner provided in this Section 8.09.
(iv) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the
Trustee, or any other such trustee hereunder.
(v) The Property Trustee shall not be liable by reason of
any act of a co-trustee or separate trustee.
(vi) Any Act of Holders delivered to the Property Trustee
shall be deemed to have been delivered to each such co-trustee
and separate trustee.
SECTION 8.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of any Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
requirements of Section 8.11.
(b) The Property Trustee may resign at any time by giving
written notice thereof to the Deppositor and the Securityholders. Any
Administrative Trustee may resign at any time by giving written notice
thereof to the Depositor. If the instrument of acceptance by a successor
Trustee required by Section 8.11 shall not have been delivered to the
resigning Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) Unless a Debenture Event of Default shall have occurred and
be continuing, the Trustee may be removed at any time by Act of the Common
Securityholder. If a Debenture Event of Default shall have occurred and be
continuing, the Trustee may be removed at such time by Act of the
Securityholders of a majority of the aggregate Liquidation Amount of the
Outstanding Preferred Securities, delivered to such Trustee (in its
individual capacity and on behalf of the Trust).
(d) If a Trustee shall resign, be removed or become incapable of
continuing to act as Trustee at a time when no Debenture Event of Default
shall have occurred and be continuing, the Common Securityholder, by Act of
the Common Securityholder delivered to the retiring Trustee, shall promptly
appoint a successor Trustee, and the Trustee so succeeded shall comply with
the requirements of Section 8.11. If any Trustee shall resign, be removed
or become incapable of continuing to act as Trustee at a time when a
Debenture Event of Default shall have occurred and be continuing, the
Preferred Securityholders, by Act of the Holders of at least a majority of
the aggregate Liquidation Amount of the Outstanding Preferred Securities
delivered to such Trustee, shall promptly appoint a successor Trustee, and
the Trustee so succeeded shall comply with the requirements of Section
8.11. If no successor Trustee shall have been so appointed by the Common
Securityholders or the Preferred Securityholders and accepted appointment
in the manner required by Section 8.11, any Securityholder who has been a
Securityholder for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee.
(e) A retiring Property Trustee shall give notice thereof and of
the appointment of its successor Trustee to all Securityholders in the
manner provided in Section 10.08 and shall give notice to the Depositor.
Each notice shall include the name and address of the successor Trustee and
the address of its Corporate Trust Office.
(f) Notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event any Administrative Trustee dies or becomes
incompetent or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled by (i) the unanimous act of
remaining Administrative Trustees if there are at least two of them or (ii)
otherwise by the Depositor (with the successor in each case being an
individual who satisfies the eligibility requirements for Administrative
Trustees set forth in Section 8.07). Additionally, notwithstanding the
foregoing or any other provision of this Trust Agreement, in the event the
Depositor reasonably believes that any Administrative Trustee has become
incompetent or incapacitated, the Depositor, by notice to the remaining
Trustees, may terminate the status of such Person as an Administrative
Trustee (in which case the vacancy so created will be filled in accordance
with the preceding sentence).
SECTION 8.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. (a) In
case of the appointment hereunder of a successor Trustee, the retiring
Trustee and the successor Trustee shall execute and deliver an amendment
hereto wherein the successor Trustee shall accept such appointment and
which shall contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, the successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to
the Trust Securities and the Trust.
(b) Upon request of any such successor Trustee, the retiring
Trustee shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers
and trusts referred to in the preceding paragraph.
No successor Trustee shall accept its appointment unless at the
time of such acceptance the successor Trustee shall be qualified and
eligible under this Article VIII.
SECTION 8.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS. Any Person into which the Property Trustee or any Trustee that
is not a natural person may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which such Trustee shall be a party, or any Person
succeeding to all or substantially all the corporate trust business of such
Trustee, shall be the successor of such Trustee hereunder, provided such
Person shall be otherwise qualified and eligible under this Article VIII,
without the execution or filing of any paper or any further act on the part
of any of the parties hereto.
SECTION 8.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
DEPOSITOR OR TRUST. If and when the Property Trustee shall be or become a
creditor of the Depositor or the Trust (or any other obligor upon the
Debentures or the Trust Securities), the Property Trustee shall be subject
to the provisions of the Trust Indenture Act regarding the collection of
claims against the Depositor or Trust (or any such other obligor).
SECTION 8.14. REPORTS BY PROPERTY TRUSTEE. (a) The Property
Trustee shall transmit to Securityholders such reports concerning the
Property Trustee and its actions under this Trust Agreement as may be
required pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant thereto. Such of those reports as are required to be
transmitted by the Property Trustee pursuant to Section 313(a) of the Trust
Indenture Act shall be so transmitted within 60 days after December 31 of
each year, commencing December 31, 1996.
(b) A copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Property Trustee with each
stock exchange upon which the Preferred Securities are listed, with the
Commission and with the Depositor. The Depositor will notify the Property
Trustee when any Preferred Securities shall have been listed on any stock
exchange.
SECTION 8.15. REPORTS TO THE PROPERTY TRUSTEE. The Depositor
and the Administrative Trustees on behalf of the Trust shall provide to the
Property Trustee such documents, reports, compliance certificates and
information as may be required by Section 314 of the Trust Indenture Act in
the form, in the manner and at the times required thereby.
SECTION 8.16. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
Each of the Depositor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance
with any conditions precedent, if any, provided for in this Trust Agreement
(including any covenants compliance with which constitutes a condition
precedent) that relate to any of the matters set forth in Section 314(c) of
the Trust Indenture Act. Any certificate or opinion required to be given
by an officer pursuant to Section 314(c)(1) of the Trust Indenture Act may
be given in the form of an Officer's Certificate.
SECTION 8.17. NUMBER OF TRUSTEES. (a) The number of Trustees
shall be four, provided that the Depositor, by written instrument, may
increase or decrease the number of Administrative Trustees so long as there
is at least one.
(b) If a Trustee ceases to hold office for any reason and the
number of Administrative Trustees is not reduced pursuant to Section
8.17(a), or if the number of Trustees is increased pursuant to Section
8.17(a), the vacancy shall be filled with a Trustee appointed in accordance
with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not
operate to annul the Trust. Whenever a vacancy in the number of
Administrative Trustees shall occur, until such vacancy is filled by the
appointment of an Administrative Trustee in accordance with Section 8.10,
the Administrative Trustees in office, regardless of their number (and
notwithstanding any other provision of this Agreement), shall have all the
powers granted to the Administrative Trustees and shall discharge all the
duties imposed upon the Administrative Trustees by this Trust Agreement.
SECTION 8.18. DELEGATION OF POWER. (a) Any Administrative
Trustee may, by power of attorney consistent with applicable law, delegate
to any other natural person over the age of 21 his or her power for the
purpose of executing any documents contemplated in Section 2.07(a),
including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing; and
(b) the Administrative Trustees shall have power to delegate
from time to time to such of their number the doing of such things and the
execution of such instruments either in the name of the Trust or the names
of the Administrative Trustees or otherwise as the Administrative Trustees
may deem expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of the Trust, as set forth
herein.
SECTION 8.19. FIDUCIARY DUTY. (a) To the extent that, at law
or in equity, an Indemnified Person has duties (including fiduciary duties)
and liabilities relating thereto to the Trust or to any other Covered
Person, an Indemnified Person acting under this Trust Agreement shall not
be liable to the Trust or to any other Covered Person for its good faith
reliance on the provisions of this Trust Agreement; provided, however, that
an Indemnified Person shall be liable for any loss, damage or claim
incurred by reason of such Indemnified Person's gross negligence or
willfull misconduct, (subject, with respect to the Property Trustee, to
Section 8.01). The provisions of this Trust Agreement, to the extent that
they restrict the duties and liabilities of an Indemnified Person otherwise
existing at law or in equity (other than the duties imposed on the Property
Trustee under the Trust Indenture Act), are agreed by the parties hereto to
replace such other duties and liabilities of such Indemnified Person.
(b) Unless otherwise expressly provided herein and subject to
the provisions of the Trust Indenture Act:
(i) whenever a conflict of interest exists or arises between
an Indemnified Person and the Trust or any Covered Person; or
(ii) whenever this Trust Agreement or any other agreement
contemplated herein provides that an Indemnified Person shall act
in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any Securityholder,
the Indemnified Person shall resolve such conflict of interest, take such
action or provide such terms, considering in each case the relative
interest of each party (including its own interest) to such conflict,
agreement, transaction or situation and the benefits and burdens relating
to such interests, any customary or accepted industry practices, and any
applicable generally accepted accounting practices or principles. In the
absence of bad faith by the Indemnified Person, the resolution, action or
terms so made, taken or provided by the Indemnified Person shall not
constitute a breach of this Trust Agreement or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person
at law or in equity or otherwise; and
(c) Unless otherwise expressly provided herein and subject to
the provisions of the Trust Indenture Act, whenever in this Trust Agreement
an Indemnified Person is permitted or required to make a decision
(i) in its "discretion" or under a grant of similar authority,
the Indemnified Person shall be entitled to consider such
interests and factors as it reasonably desires, including its own
interests, and shall have no duty or obligation to give any
consideration to any interest of or factors affecting the Trust
or any other Person; or
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and, to
the extent permitted by applicable law, shall not be subject to
any other or different standard imposed by this Trust Agreement.
ARTICLE IX.
TERMINATION AND LIQUIDATION
SECTION 9.01. TERMINATION UPON EXPIRATION DATE. The Trust shall
automatically terminate on the Expiration Date and the Trust Property shall
be distributed in accordance with Section 9.04.
SECTION 9.02. EARLY TERMINATION. Upon the first to occur of
(such first occurrence, an "Early Termination Event"):
(i) a Bankruptcy Event in respect of, or the dissolution or
liquidation of, the Depositor;
(ii) the redemption of all of the Preferred Securities;
(iii) the occurrence of a Special Event and the election by the
Depositor to terminate that Trust pursuant to Section 9.04(d);
(iv) the entrance by a court of competent jurisdiction of an
order for judicial termination of the Trust;
the Trust shall terminate and the Trustees shall take such action as is
required by Section 9.04.
SECTION 9.03. TERMINATION. The respective obligations and
responsibilities of the Trust and the Trustees created hereby shall
terminate upon the latest to occur of the following: (i) the distribution
by the Property Trustee to Securityholders upon the liquidation of the
Trust pursuant to Section 9.04, or upon the redemption of all of the Trust
Securities pursuant to Section 4.02 or 9.04(d), of all amounts required to
be distributed hereunder upon the final payment of the Trust Securities;
(ii) the payment of all amounts due to creditors of the Trust; and (iii)
the discharge of all administrative duties of the Administrative Trustees,
including the performance of any tax reporting obligations with respect to
the Trust or the Securityholders.
SECTION 9.04. LIQUIDATION. (a) On the Expiration Date or
earlier if an Early Termination Event specified in clause (i), (iii) or
(iv) of Section 9.02 shall occur, subject to Section 9.04(e), after
satisfaction of all amounts due to creditors of the Trust, if any, as
provided by applicable law, the Trust shall be liquidated by the Property
Trustee by distributing to each Securityholder a Like Amount of Debentures.
Notice of liquidation shall be given by the Administrative Trustees by
first-class mail, postage prepaid, mailed not later than 30 nor more than
60 days prior to the Liquidation Date to each Securityholder at such
Holder's address appearing in the Securities Register. All notices of
liquidation shall:
(i) state the Liquidation Date, which, in the case of an Early
Termination Event specified in clause (iii) of Section 9.02 shall
be no later than the 90th day following the occurrence of the
Special Event;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be outstanding and any
Trust Securities Certificates not surrendered for exchange will
be deemed to represent a Like Amount of Debentures; and
(iii) provide such information with respect to the mechanics by
which Holders may exchange Trust Securities Certificates for
Debentures, or in the case of a Section 9.04(e) liquidation,
receive a Liquidation Distribution, as the Administrative
Trustees or the Property Trustee shall deem appropriate.
(b) In order to effect the distribution of the Debentures to
Securityholders, the Property Trustee shall establish a record date for
such distribution (which shall be not more than 45 days prior to the
Liquidation Date) and, either itself acting as exchange agent or through
the appointment of a separate exchange agent, shall establish such
procedures as it shall deem appropriate to effect the distribution of
Debentures in exchange for the outstanding Trust Securities Certificates.
(c) After the Liquidation Date, (i) the Trust Securities will no
longer be deemed to be Outstanding, (ii) certificates representing a Like
Amount of Debentures will be issued to Holders of Trust Securities
Certificates, upon surrender of such Trust Securities Certificates to the
Property Trustee or its agent for exchange, (iii) the Depositor shall use
its reasonable efforts to have the Debentures listed on the New York Stock
Exchange or on such other stock exchange or other organization as the
Preferred Securities are then listed or traded, (iv) any Trust Securities
Certificate not so surrendered for exchange will be deemed to represent a
Like Amount of Debentures, accruing interest at the rate provided for in
the Debentures from the last Distribution Date on which a Distribution was
made on such Trust Securities Certificate until such Trust Securities
Certificate shall be so surrendered (and until such Trust Securities
Certificates shall be so surrendered, no payments of interest or principal
will be made to Holders of such Trust Securities Certificates) and (v) all
rights of Securityholders will cease, except the right to receive
Debentures and payments of interest and principal received by the Trustee
with respect to the Debentures represented by Trust Security Certificates
not surrendered for exchange upon surrender of Trust Securities
Certificates.
(d) If at any time a Special Event shall occur and be
continuing, the Depositor may elect to (i) redeem the Debentures in whole
but not in part and therefore cause a mandatory redemption of all the
Preferred Securities at the Redemption Price within 90 days following the
occurrence of such Special Event, or (ii) cause the termination of the
Trust; provided, however, that, in the case of a Tax Event, any such
termination shall be conditioned upon receipt by the Administrative
Trustees of a No Recognition Opinion.
(e) In the event that, notwithstanding the other provisions of
this Section 9.04, whether because of an order for termination entered by a
court of competent jurisdiction or otherwise, distribution of the
Debentures in the manner provided herein is determined by the Property
Trustee not to be practical, the Trust Property shall be liquidated, and
the Trust shall be dissolved, wound-up or terminated by the Property
Trustee in such manner as the Property Trustee determines. In such event,
on the date of the dissolution, winding-up or other termination of the
Trust, Securityholders will be entitled to receive out of the assets of the
Trust available for distribution to Securityholders, after satisfaction of
all amounts due to creditors of the Trust, if any, as provided by
applicable law, an amount equal to the Liquidation Amount per Trust
Security plus accumulated and unpaid Distributions thereon to the date of
payment (such amount being the "Liquidation Distribution"). If, upon any
such dissolution, winding up or termination, the Liquidation Distribution
can be paid only in part because the Trust has insufficient assets
available to pay in full the aggregate Liquidation Distribution, then,
subject to the next succeeding sentence, the amounts payable by the Trust
on the Trust Securities shall be paid on a pro rata basis (based upon
Liquidation Amounts). The Holder of Common Securities will be entitled to
receive Liquidation Distributions upon any such dissolution, winding-up or
termination pro rata (determined as aforesaid) with Holders of Preferred
Securities, except that, if a Debenture Event of Default has occurred and
is continuing or if a Debenture Event of Default has not occurred solely by
reason of a requirement that time lapse or notice be given, the Liquidation
Distribution with respect to the Preferred Securities shall be paid in full
prior to the making of any Liquidation Distribution with respect to the
Common Securities.
SECTION 9.05. MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR
REPLACEMENTS OF THE TRUST. The Trust may not merge with or into,
consolidate, amalgamate, or be replaced by, or convey, transfer or lease
its properties and assets substantially as an entirety to any corporation
or other Person, except pursuant to this Section 9.05. At the request of
the Depositor, with the consent of the Administrative Trustees and without
the consent of the Property Trustee or the Holders of the Preferred
Securities, the Trust may merge with or into, consolidate, amalgamate, be
replaced by or convey, transfer or lease its properties and assets
substantially as an entirety to a trust organized as such under the laws of
any state; provided, however, that (i) such successor entity either (a)
expressly assumes all of the obligations of the Trust with respect to the
Preferred Securities or (b) substitutes for the Preferred Securities other
securities having substantially the same terms as the Preferred Securities
(the "Successor Securities") so long as the Successor Securities rank the
same as the Preferred Securities rank in priority with respect to
distributions and payments upon liquidation, redemption and otherwise, (ii)
the Depositor expressly appoints a trustee of such successor entity
possessing substantially the same powers and duties as the Property Trustee
as the holder of the Debentures, (iii) the Successor Securities are listed
or traded, or any Successor Securities will be listed or traded upon
notification of issuance, on any national securities exchange or other
organization on which the Preferred Securities are then listed, if any,
(iv) such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not cause the Preferred Securities (including any
Successor Securities) to be downgraded by any nationally recognized
statistical rating organization, (v) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the Holders of Preferred
Securities (including any Successor Securities) in any material respect,
(vi) such successor entity has a purpose substantially identical to that of
the Trust, (vii) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Depositor has received an
Opinion of Counsel to the effect that (a) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the Holders of the
Preferred Securities (including any Successor Securities) in any material
respect, and (b) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the Trust nor any
successor entity will be required to register as an investment company
under the Investment Company Act and (viii) the Depositor owns all of the
Common Securities of such successor entity and guarantees the obligations
of such successor entity under the Successor Securities at least to the
extent provided by the Guarantee. Notwithstanding the foregoing, the Trust
shall not, except with the consent of Holders of 100% of the aggregate
Liquidation Amount of the Outstanding Preferred Securities, consolidate,
amalgamate, merge with or into, or be replaced by or convey, transfer or
lease its properties and assets substantially as an entirety to any other
Person or permit any other Person to consolidate, amalgamate, merge with or
into, or replace it if such consolidation, amalgamation, merger or
replacement would cause the Trust or the successor entity to be classified
as other than a grantor trust for United States Federal income tax
purposes.
ARTICLE X.
MISCELLANEOUS PROVISIONS
SECTION 10.01. GUARANTEE BY THE DEPOSITOR AND ASSUMPTION OF
OBLIGATIONS. Subject to the terms and conditions hereof, the Depositor
irrevocably and unconditionally guarantees to each Person to whom the Trust
is now or hereafter becomes indebted or liable (the "Beneficiaries"), and
agrees to assume liability for, the full payment, when and as due, of any
and all Obligations (as hereinafter defined) to such Beneficiaries. As
used herein, "Obligations" means any indebtedness, expenses or liabilities
of the Trust, other than obligations of the Trust to pay to Holders the
amounts due such Holders pursuant to the terms of the Trust Securities.
This guarantee and assumption is intended to be for the benefit, of, and to
be enforceable by, all such Beneficiaries, whether or not such
Beneficiaries have received notice hereof.
SECTION 10.02. LIMITATION OF RIGHTS OF SECURITYHOLDERS. The
death or incapacity of any person having an interest, beneficial or
otherwise, in a Trust Security shall not operate to terminate this Trust
Agreement, nor entitle the legal representatives or heirs of such person or
any Securityholder for such person, to claim an accounting, take any action
or bring any proceeding in any court for a partition or winding up of the
arrangements contemplated hereby, nor otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
SECTION 10.03. AMENDMENT. (a) This Trust Agreement may be
amended from time to time by the Property Trustee, a majority of the
Administrative Trustees and the Depositor, without the consent of any
Securityholders, (i) to cure any ambiguity, correct or supplement any
provision herein or therein which may be inconsistent with any other
provision herein or therein, or to make any other provisions with respect
to matters or questions arising under this Trust Agreement, which shall not
be inconsistent with the other provisions of this Trust Agreement;
provided, however, that such action shall not adversely affect in any
material respect the interests of any Securityholder, (ii) to modify,
eliminate or add to any provisions of this Trust Agreement to such extent
as shall be necessary to ensure that the Trust will not be classified for
United States federal income tax purposes other than as a "grantor trust"
at any time that any Trust Securities are Outstanding or to ensure the
Trust's exemption from the status of an "investment company" under the
Investment Company Act of 1940, as amended, or (iii) to effect the
acceptance of a successor Trustee's appointment. Any amendment of this
Trust Agreement pursuant to clause (i) above shall become effective only
when notice thereof shall have been given to the Securityholders.
(b) Except as provided in Sections 6.01(c) and 10.03(c), any
provision of this Trust Agreement may be amended by the Property Trustee, a
majority of Administrative Trustees and the Depositor with (i) the approval
of the Holders of at least a majority of the aggregate Liquidation Amount
of the Outstanding Trust Securities and (ii) receipt by the Trustees of an
Opinion of Counsel to the effect that such amendment or the exercise of any
power granted to the Trustees in accordance with such amendment will not
affect the Trust's status as a grantor trust for United States federal
income tax purposes or the Trust's exemption from status of an "investment
company" under the Investment Company Act of 1940, as amended; provided,
however, that, subject to Section 10.03(c), if any proposed amendment to
the Trust Agreement provides for, or the Trustees otherwise propose to
effect, (A) any action that would materially adversely affect the powers,
preferences or special rights of the Preferred Securities, whether by way
of amendment to the Trust Agreement or otherwise, or (B) the dissolution,
winding-up or termination of the Trust, other than pursuant to the terms of
this Trust Agreement, then such amendment or proposal shall not be
effective except with the approval of the Holders of at least 66 2/3% of
the aggregate Liquidation Amount of the Outstanding Preferred Securities.
(c) In addition to and notwithstanding any other provision in
this Trust Agreement, without the consent of each affected Securityholder
(such consent being obtained in accordance with Section 6.03 or 6.06), this
Trust Agreement may not be amended to (i) change the amount or timing of
any Distribution on the Trust Securities or otherwise adversely affect the
amount of any Distribution required to be made in respect of the Trust
Securities as of a specified date, (ii) restrict the right of a
Securityholder to institute suit for the enforcement of any such payment on
or after such date or (iii) change the provisions of Section 10.03(c).
(d) Notwithstanding any other provisions of this Trust
Agreement, no Administrative Trustee shall enter into or consent to any
amendment to this Trust Agreement which would cause the Trust to fail or
cease to qualify for the exemption from status of an "investment company"
under the Investment Company Act of 1940, as amended, afforded by Rule 3a-5
thereunder.
(e) Notwithstanding anything in this Trust Agreement to the
contrary, without the consent of the affected party, this Trust Agreement
may not be amended in a manner which imposes any additional obligation on
the Depositor or any Trustee.
(f) In the event there shall be that any amendment to this Trust
Agreement, the Administrative Trustees shall promptly provide to the
Depositor a copy of such amendment.
(g) The Trustees are entitled to receive an Opinion of Counsel
as conclusive evidence that any amendment to this Trust Agreement executed
pursuant to this Section 10.03 is authorized or permitted by, and conforms
to, the terms of this Section 10.03, has been duly authorized by and
lawfully executed and delivered on behalf of the other requisite parties,
and that it is proper for the Trustees under the provisions of this Section
10.03 to join in the execution thereof.
SECTION 10.04. SEPARABILITY. In case any provision in this
Trust Agreement or in the Trust Securities Certificates shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 10.05. GOVERNING LAW. This Trust Agreement and the
rights and obligations of each of the Securityholders, the Trust and the
Trustees with respect to this Trust Agreement and the Trust Securities
shall be construed in accordance with and governed by the laws of the State
of Delaware (without regard to conflict of laws principles).
SECTION 10.06. SUCCESSORS. This Trust Agreement shall be
binding upon and shall inure to the benefit of any successor to the Trust
or the Trustees, including any successor by operation of law.
SECTION 10.07. HEADINGS. The Article and Section headings are
for convenience only and shall not affect the construction of this Trust
Agreement.
SECTION 10.08. NOTICE AND DEMAND. (a) Any notice, demand or
other communication which by any provision of this Trust Agreement is
required or permitted to be given or served to or upon any Securityholder
or the Depositor may be given or served in writing by deposit thereof,
postage prepaid, in the United States mail, hand delivery or facsimile
transmission, in each case, addressed, (i) in the case of a Preferred
Securityholder, to such Preferred Securityholder as such Securityholder's
name and address may appear on the Securities Register and (ii) in the case
of the Common Securityholder or the Depositor, to Delmarva Power & Light
Company, 800 King Street, Wilmington, Delaware 19899, Attention: Treasurer,
facsimile no. (302) 429-3356, with a copy to the Secretary, facsimile no.
(302) 429-3367. Such notice, demand or other communication to or upon a
Securityholder shall be deemed to have been sufficiently given or made, for
all purposes, upon hand delivery, mailing or transmission.
(b) Any notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be given or
served to or upon the Trust, the Property Trustee or the Administrative
Trustees shall be given in writing addressed (until another address is
published by the Trust) as follows: (i) with respect to the Property
Trustee, 1100 North Market Street, Wilmington, Delaware 19890 marked
"Attention: Corporate Trust Administration" and (ii) with respect to the
Trust or the Administrative Trustees, at the address above for notice to
the Depositor, marked "Attention: Administrative Trustees for Delmarva
Power Financing I". Such notice, demand or other communication to or upon
the Trust or the Property Trustee shall be deemed to have been sufficiently
given or made only upon actual receipt of the writing by the Trust or the
Property Trustee.
SECTION 10.09. AGREEMENT NOT TO PETITION. Each of the Trustees
and the Depositor agrees for the benefit of the Securityholders that, until
at least one year and one day after the Trust has been terminated in
accordance with Article IX, it shall not file, or join in the filing of, a
petition against the Trust under any bankruptcy, reorganization,
arrangement, insolvency, liquidation or other similar law (including,
without limitation, the United States Bankruptcy Code) (collectively,
"Bankruptcy Laws") or otherwise join in the commencement of any proceeding
against the Trust under any Bankruptcy Law. In the event the Depositor
takes action in violation of this Section 10.09, the Property Trustee
agrees, for the benefit of Securityholders, that it shall file an answer
with the bankruptcy court or otherwise properly contest the filing of such
petition by the Depositor against the Trust or the commencement of such
action and raise the defense that the Depositor has agreed in writing not
to take such action and should be stopped and precluded therefrom and such
other defenses, if any, as counsel for the Property Trustee or the Trust
may assert. The provisions of this Section 10.09 shall survive the
termination of this Trust Agreement.
SECTION 10.10. CONFLICT WITH TRUST INDENTURE ACT. (a) If any
provision hereof limits, qualifies or conflicts with another provision
hereof which is required or deemed to be included in this Trust Agreement
by, or is otherwise governed by, any of the provisions of the Trust
Indenture Act, such other provisions shall control; and if any provision
hereof otherwise conflicts with the Trust Indenture Act, the Trust
Indenture Act shall control.
(b) The Property Trustee shall be the only Trustee which is a
trustee for the purposes of the Trust Indenture Act.
(c) The application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Trust Securities as equity
securities representing interests in the Trust.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY
OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE
UNCONDITIONAL ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A
BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS
OF THIS TRUST AGREEMENT AND THE SUBORDINATION PROVISIONS AND OTHER TERMS OF
THE GUARANTEE AND THE INDENTURE AND SHALL CONSTITUTE THE AGREEMENT OF THE
TRUST, SUCH SECURITYHOLDER AND SUCH OTHERS THAT THOSE TERMS AND PROVISIONS
SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH
SECURITYHOLDER AND SUCH OTHERS.
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Trust Agreement to be duly
executed, all as of the day and year first above written.
DELMARVA POWER & LIGHT COMPANY
By: /s/ B.S. Graham
----------------------------------------
Title: Senior Vice President, Treasurer
and Chief Financial Officer
WILMINGTON TRUST COMPANY,
as Property Trustee
By: /s/ Norma Closs
----------------------------------------
Title: Vice President
/s/ B.S. Graham
--------------------------------------
Barbara S. Graham, solely in her
capacity as Administrative Trustee
/s/ Edric R. Mason
--------------------------------------
Edric R. Mason, solely in his capacity
as Administrative Trustee
/s/ Donald P. Connelly
--------------------------------------
Donald P. Connelly, solely in his
capacity as Administrative Trustee
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST
OF
DELMARVA POWER FINANCING I
THIS CERTIFICATE OF TRUST of Delmarva Power Financing I (the
"Trust"), dated as of , 1996, is being duly executed and
filed by the undersigned, as trustees, to create a business trust under the
Delaware Business Trust Act (12 Del. C. <section> 3801, et seq.).
------- ------
1. Name. The name of the business trust being created hereby is
Delmarva Power Financing I.
2. Delaware Trustee. The name and business address of the
trustee of the Trust with a principal place of business in the State of
Delaware are as follows:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
3. Effective Date. This Certificate of Trust shall be effective
as of its filing.
IN WITNESS WHEREOF, the undersigned, being the only trustees of
the Trust, have executed this Certificate of Trust as of the date first
above written.
WILMINGTON TRUST COMPANY, ,
not in its individual capacity not in his (her) individual capacity
but solely as Trustee but solely as Trustee
By:
---------------------------- --------------------
Name:
Title:
<PAGE>
EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number Number of Common Securities<PAGE>
C-[ ]
Certificate Evidencing Common Securities
of
DELMARVA POWER FINANCING I
Common Securities
(Liquidation Amount $25 per Common Security)
Delmarva Power Financing I, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby certifies
that Delmarva Power & Light Company (the "Holder") is the registered owner
of the number set forth above of common securities of the Trust
representing undivided beneficial interests in the assets of the Trust and
designated as Common Securities (Liquidation Amount $25 per Common
Security) (the "Common Securities"). In accordance with Section 5.02 of
the Trust Agreement (as defined below) the Common Securities are not
transferable and any attempted transfer hereof shall be void. The
designations, rights, privileges, restrictions, preferences and other terms
and provisions of the Common Securities are set forth in, and this
certificate and the Common Securities represented hereby are issued and
shall in all respects be subject to the terms and provisions of, the
Amended and Restated Trust Agreement of the Trust dated as of ,
------- ---
1996, as the same may be amended from time to time (the "Trust Agreement").
The Trust will furnish a copy of the Trust Agreement to the holder of this
certificate without charge upon written request to the Trust at its
principal place of business or registered office.
Upon receipt of this certificate, the holder of this certificate
is bound by the Trust Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, an Administrative Trustee of the Trust has
executed this certificate for and on behalf of the Trust on this day
----
of , 199 .
--------- -
DELMARVA POWER FINANCING I
By:
------------------------------------------
not in his (her) individual capacity, but
solely as Administrative Trustee
<PAGE>
EXHIBIT C
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of , 1996, between Delmarva Power
-------- ---
& Light Company, a Delaware and Virginia corporation ("Delmarva Power"),
and Delmarva Power Financing I, a Delaware business trust (the "Trust").
WHEREAS, the Trust intends to issue its Common Securities (the
"Common Securities") to and receive Debentures from Delmarva Power and to
issue its % Cumulative Trust Preferred Capital Securities (the
---
"Preferred Securities") with such powers, preferences and special rights
and restrictions as are set forth in the Amended and Restated Trust
Agreement of the Trust dated as of , 1996 as the same may be
________ __
amended from time to time (the "Trust Agreement");
WHEREAS, Delmarva Power is the issuer of the Debentures;
NOW, THEREFORE, in consideration of the acceptance by each holder
of the Preferred Securities, which acceptance Delmarva Power hereby agrees
shall benefit Delmarva Power and which acceptance Delmarva Power
acknowledges will be made in reliance upon the execution and delivery of
this Agreement, Delmarva Power, including in its capacity as holder of the
Common Securities, and the Trust hereby agree as follows:
ARTICLE I
Section 1.01. Assumption by Delmarva Power. Subject to the
----------------------------
terms and conditions hereof, Delmarva Power hereby irrevocably and
unconditionally assumes the full payment, when and as due, of any and all
Obligations (as hereinafter defined) to each person or entity to whom the
Trust is now or hereafter becomes indebted or liable (the "Beneficiaries").
As used herein, "Obligations" means any indebtedness, expenses or
liabilities of the Trust, other than (a) obligations of the Trust to pay to
holders of any Preferred Securities or other similar interests in the Trust
the amounts due such holders pursuant to the terms of the Preferred
Securities or such other similar interests, as the case may be, and (b)
obligations arising out of the negligence, willful misconduct or bad faith
of the Trustees of the Trust. This Agreement is intended to be for the
benefit of, and to be enforceable by, all such Beneficiaries, whether or
not such Beneficiaries have received notice hereof.
Section 1.02. Term of Agreement. This Agreement shall terminate
-----------------
and be of no further force and effect upon the date on which there are no
Beneficiaries remaining; provided, however, that this Agreement shall
continue to be effective or shall be reinstated, as the case may be, if at
any time any Beneficiary must restore payment of any sum paid on account of
any Obligation under this Agreement for any reason whatsoever. This
Agreement is continuing, irrevocable, unconditional and absolute.
Section 1.03. Waiver of Notice. Delmarva Power hereby waives
----------------
(a) notice of acceptance of this Agreement and of any Obligation to which
it may apply and (b) presentment, demand for payment, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices
and demands.
Section 1.04. No Impairment. The obligations, covenants,
-------------
agreements and duties of Delmarva Power under this Agreement shall in no
way be affected or impaired by reason of the happening from time to time of
any of the following:
(a) the extension of time for the payment by the Trust of all or
any portion of the Obligations or for the performance of any other
obligation under, arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part
of the Beneficiaries to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Beneficiaries with respect to the
Obligations or any action on the part of the Trust granting indulgence or
extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale
of any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the Trust
or any of the assets of the Trust.
Neither the Trust nor any Beneficiary shall have any obligation to give
notice to, or obtain the consent of, Delmarva Power with respect to the
happening of any of the foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce this
-----------
Agreement directly against Delmarva Power and Delmarva Power waives any
right or remedy to require that any action be brought against the Trust or
any other person or entity before proceeding against Delmarva Power.
ARTICLE II
Section 2.01. Binding Effect. All of the obligations,
--------------
covenants, agreements and duties contained in this Agreement shall bind the
successors, assigns, receivers, trustees and representatives of Delmarva
Power.
Section 2.02. Amendment. So long as there shall remain any
---------
Beneficiary or any Preferred Securities outstanding, this Agreement shall
not be modified or amended in any manner adverse to such Beneficiary or to
the holders of the Preferred Securities.
Section 2.03. Notices. Any notice, request or other
-------
communication required or permitted to be given hereunder shall be given in
writing by delivering the same against receipt therefor by facsimile
transmission (confirmed by mail), telex or by registered or certified mail,
addressed as follows (and if so given, shall be deemed given when mailed or
upon receipt of an answer-back, if sent by telex), to wit:
Delmarva Power Financing I
c/o Delmarva Power & Light Company, Treasury Department
800 King Street
Wilmington, Delaware 19899
Facsimile No.: (302) 429-3367
Attention: Administrative Trustees
Delmarva Power & Light Company
800 King Street
Wilmington, Delaware 19899
Facsimile No.: (302) 429-3367
Attention: Treasurer
Section 2.04 THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
(WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES).
THIS AGREEMENT is executed as of the day and year first above
written.
DELMARVA POWER & LIGHT COMPANY
By:
----------------------------------------
Name:
Title:
DELMARVA POWER FINANCING I
By:
----------------------------------------
not in his (her) individual capacity,
but solely as Administrative Trustee
<PAGE>
[Clearing Agency Legend]
EXHIBIT D
Certificate Number Number of Preferred Securities
P- CUSIP NO.
Certificate Evidencing Preferred Securities
of
DELMARVA POWER FINANCING I
% Cumulative Trust Preferred Capital Securities
(Liquidation Amount $25 per Preferred Security)
Delmarva Power Financing I, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby certifies
that (the "Holder") is the registered owner of the number set
------------
forth above of preferred securities of the Trust representing undivided
beneficial interests in the assets of the Trust and designated as %
--
Cumulative Trust Preferred Capital Securities (Liquidation Amount $25 per
Preferred Security) (the "Preferred Securities"). The Preferred Securities
are transferable on the books and records of the Trust, in person or by a
duly authorized attorney, upon surrender of this certificate duly endorsed
and in proper form for transfer as provided in the Trust Agreement (as
defined below). The designations, rights, privileges, restrictions,
preferences and other terms and provisions of the Preferred Securities are
set forth in, and this certificate and the Preferred Securities represented
hereby are issued and shall in all respects be subject to the terms and
provisions of, the Amended and Restated Trust Agreement of the Trust, dated
as of , 1996, as the same may be amended from time to
time (the "Trust Agreement"). The holder of this certificate is entitled
to the benefits of the Guarantee Agreement of Delmarva Power & Light
Company, a Delaware and Virginia corporation, and Wilmington Trust Company,
as guarantee trustee, dated as of , 1996 (the
"Guarantee"), to the extent provided therein. The Trust will furnish a
copy of the Trust Agreement and the Guarantee to the holder of this
certificate without charge upon written request to the Trust at its
principal place of business or registered office.
Upon receipt of this certificate, the holder of this certificate
is bound by the Trust Agreement and is entitled to the benefits thereunder.
<PAGE>
IN WITNESS WHEREOF, one of the Administrative Trustees of the
Trust has executed this certificate for and on behalf of the Trust.
Dated:
DELMARVA POWER FINANCING I
By:
--------------------------------------
[ ]
not in his (her) individual
capacity, but solely as
Administrative Trustee
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security to:
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
(Insert address and zip code of assignee)
of the Preferred Securities represented by this Preferred Securities
Certificate and irrevocably appoints
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
attorney to transfer such Preferred Securities Certificate on the books of
the
Trust. The attorney may substitute another to act for him or her.
Date:
------------------
Signature:
------------------------
(Sign exactly as your name appears on the other side of this Preferred
Securities
Certificate)
Signature:
------------------------
(Sign exactly as your name appears on the other side of this Preferred
Securities Certificate)
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of October 1, 1996, between Delmarva
Power & Light Company, a Delaware and Virginia corporation
("Delmarva Power"), and Delmarva Power Financing I, a Delaware
business trust (the "Trust").
WHEREAS, the Trust intends to issue its Common
Securities (the "Common Securities") to and receive Debentures
from Delmarva Power and to issue its 8.125% Cumulative Trust
Preferred Capital Securities (the "Preferred Securities") with
such powers, preferences and special rights and restrictions as
are set forth in the Amended and Restated Trust Agreement of the
Trust dated as of October 1, 1996 as the same may be amended
from time to time (the "Trust Agreement");
WHEREAS, Delmarva Power is the issuer of the
Debentures;
NOW, THEREFORE, in consideration of the acceptance by
each holder of the Preferred Securities, which acceptance
Delmarva Power hereby agrees shall benefit Delmarva Power and
which acceptance Delmarva Power acknowledges will be made in
reliance upon the execution and delivery of this Agreement,
Delmarva Power, including in its capacity as holder of the Common
Securities, and the Trust hereby agree as follows:
ARTICLE I
SECTION 1.01. ASSUMPTION BY DELMARVA POWER. Subject
to the terms and conditions hereof, Delmarva Power hereby
irrevocably and unconditionally assumes the full payment, when
and as due, of any and all Obligations (as hereinafter defined)
to each person or entity to whom the Trust is now or hereafter
becomes indebted or liable (the "Beneficiaries"). As used
herein, "Obligations" means any indebtedness, expenses or
liabilities of the Trust, other than (a) obligations of the Trust
to pay to holders of any Preferred Securities or other similar
interests in the Trust the amounts due such holders pursuant to
the terms of the Preferred Securities or such other similar
interests, as the case may be, and (b) obligations arising out of
the negligence, willful misconduct or bad faith of the Trustees
of the Trust. This Agreement is intended to be for the benefit
of, and to be enforceable by, all such Beneficiaries, whether or
not such Beneficiaries have received notice hereof.
SECTION 1.02. TERM OF AGREEMENT. This Agreement shall
terminate and be of no further force and effect upon the date on
which there are no Beneficiaries remaining; provided, however,
that this Agreement shall continue to be effective or shall be
reinstated, as the case may be, if at any time any Beneficiary
must restore payment of any sum paid on account of any Obligation
under this Agreement for any reason whatsoever. This Agreement
is continuing, irrevocable, unconditional and absolute.
SECTION 1.03. WAIVER OF NOTICE. Delmarva Power hereby
waives (a) notice of acceptance of this Agreement and of any
Obligation to which it may apply and (b) presentment, demand for
payment, protest, notice of nonpayment, notice of dishonor,
notice of redemption and all other notices and demands.
SECTION 1.04. NO IMPAIRMENT. The obligations,
covenants, agreements and duties of Delmarva Power under this
Agreement shall in no way be affected or impaired by reason of
the happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust
of all or any portion of the Obligations or for the performance
of any other obligation under, arising out of, or in connection
with, the Obligations;
(b) any failure, omission, delay or lack of diligence
on the part of the Beneficiaries to enforce, assert or exercise
any right, privilege, power or remedy conferred on the
Beneficiaries with respect to the Obligations or any action on
the part of the Trust granting indulgence or extension of any
kind; or
(c) the voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Trust or any of
the assets of the Trust.
Neither the Trust nor any Beneficiary shall have any obligation
to give notice to, or obtain the consent of, Delmarva Power with
respect to the happening of any of the foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce
this Agreement directly against Delmarva Power and Delmarva Power
waives any right or remedy to require that any action be brought
against the Trust or any other person or entity before proceeding
against Delmarva Power.
ARTICLE II
SECTION 2.01. BINDING EFFECT. All of the obligations,
covenants, agreements and duties contained in this Agreement
shall bind the successors, assigns, receivers, trustees and
representatives of Delmarva Power.
SECTION 2.02. AMENDMENT. So long as there shall
remain any Beneficiary or any Preferred Securities outstanding,
this Agreement shall not be modified or amended in any manner
adverse to such Beneficiary or to the holders of the Preferred
Securities.
SECTION 2.03. NOTICES. Any notice, request or other
communication required or permitted to be given hereunder shall
be given in writing by delivering the same against receipt
therefor by facsimile transmission (confirmed by mail), telex or
by registered or certified mail, addressed as follows (and if so
given, shall be deemed given when mailed or upon receipt of an
answer-back, if sent by telex), to wit:
Delmarva Power Financing I
c/o Delmarva Power & Light Company, Treasury Department
800 King Street
Wilmington, Delaware 19899
Facsimile No.: (302) 429-3367
Attention: Administrative Trustees
Delmarva Power & Light Company
800 King Street
Wilmington, Delaware 19899
Facsimile No.: (302) 429-3367
Attention: Treasurer
SECTION 2.04 THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK (WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES).
THIS AGREEMENT is executed as of the day and year first
above written.
DELMARVA POWER & LIGHT COMPANY
By: /s/ B.S. Graham
-----------------------------
Name: Barbara S. Graham
Title: Senior Vice President,
Treasurer and Chief Financial
Officer
DELMARVA POWER FINANCING I
By: /s/ Edric R. Mason
------------------------------
not in his (her) individual
capacity, but solely as
Administrative Trustee
DELMARVA
POWER
- ---------------------------------------------------------------------------
Dale G. Stoodley 800 King Street . P.O. Box 231
Vice President and General Counsel Wilmington, DE 19899
(302) 429-3757
Fax (302) 429-3801
EXHIBIT 5-A
-----------
January 30, 1997
Delmarva Power & Light Company
800 King Street
P. O. Box 231
Wilmington, DE 19899
Re: Registration on Form S-8 of 400,000
Shares of Common Stock to be Issued
Pursuant to a Long-Term Incentive Plan
--------------------------------------
Ladies and Gentlemen:
In connection with the registration by Delmarva Power &
Light Company (the "Company") of 400,000 shares of its Common
Stock, par value $2.25 per share (the "Shares"), under the
Delmarva Power & Light Company Long-Term Incentive Plan (the
"Plan") pursuant to the Registration Statement to be filed on
Form S-8 on or about the date hereof with the Securities and
Exchange Commission under the Securities Act of 1933, as amended
(the "Act"), the corporate proceedings and other actions taken by
the Company with respect to the authorization and issuance of the
Shares have been reviewed by me or taken under my advice and
direction as General Counsel.
I am of the opinion that, when the Registration
Statement on Form S-8 with respect to the Shares being filed with
the Securities and Exchange Commission under the Act has been
filed and become effective, and so long as the Orders of the
Delaware Public Service Commission and the Virginia State
Corporation Commission (Order No. 3137 in PSC Docket No. 90-3
dated March 13, 1990, and Case No. PUA900014 dated March 27,
1990, respectively, each of which currently remains in full force
and effect), or any subsequent Orders of such commissions, are in
effect, then:
(1) the Shares may be issued for the purposes and upon
the terms stated in the Registration Statement;
and
(2) when so issued and paid for, the Shares will be
validly issued, fully paid and non-assessable
capital stock of the Company.
To the extent that matters addressed in this opinion
are governed by Virginia law, I have relied on the accompanying
opinion of the Company's Assistant General Counsel, Peter F.
Clark. I hereby authorize and consent to the use of this opinion
as an exhibit to the Company's Registration Statement on Form S-8
and to any references to me in the Registration Statement.
Very truly yours,
/s/ Dale G. Stoodley
Dale G. Stoodley
DELMARVA
POWER
- ----------------------------------------------------------------------------
Peter F. Clark 800 King Street . P.O. Box 231
Assistant General Counsel Wilmington, DE 19899
(302) 429-3069
Fax (302) 429-3801
EXHIBIT 5-B
-----------
January 30, 1997
Dale G. Stoodley, Esquire
Delmarva Power & Light Company
800 King Street
P. O. Box 231
Wilmington, Delaware 19899
Re: Registration on Form S-8 of 400,000 Shares of
Common Stock to be Issued Pursuant to a
Long-Term Incentive Plan
---------------------------------------------
Dear Mr. Stoodley:
In connection with the registration by Delmarva Power &
Light Company (the "Company") of 400,000 shares of its Common
Stock, par value $2.25 per share (the "Shares"), under the
Delmarva Power & Light Company Long-Term Incentive Plan (the
"Plan") pursuant to the Registration Statement to be filed on
Form S-8 on or about the date hereof with the Securities and
Exchange Commission under the Securities Act of 1933, as amended
(the "Act"), the corporate proceedings and other actions taken by
the Company with respect to the authorization and issuance of
the Shares have been reviewed by me or taken under my advice and
direction as Assistant General Counsel of the Company.
I am of the opinion, but only to the extent that the
matters addressed in this opinion are governed by Virginia law,
that when the Registration Statement on Form S-8 with respect to
the Shares being filed with the Securities and Exchange
Commission under the Act has been filed and become effective, and
so long as the Order of the Virginia State Corporation Commission
(Case No. PUA900014 dated March 27, 1990, which currently remains
in full force and effect), or any subsequent Order or Orders of
such commission is in effect, then:
(1) the Shares may be issued for the purposes and upon
the terms stated in the Registration Statement;
and
(2) when so issued and paid for, the Shares will be
validly issued, fully paid and non-assessable
capital stock of the Company.
I hereby consent to the use of this opinion as an
exhibit to the Company's Registration Statement and to the use of
my name therein.
Very truly yours,
/s/ Peter F. Clark
Peter F. Clark
EXHIBIT 23-A
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this
Registration Statement of Delmarva Power & Light Company on Form S-8
of our report on our audits of the consolidated financial statements of
Delmarva Power & Light Company and its subsidiary companies, as listed
in Item 14(a) of Delmarva Power & Light Company's Annual Report on Form
10-K for the year ended December 31, 1995. We also consent to the
reference to our firm under the heading "Interests of Named Experts
and Counsel" in the Registration Statement.
/s/ Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
2400 Eleven Penn Center
Philadelphia, PA 19103
January 30, 1997
