REGISTRATION NOS. 33-53563 AND 33-53563-01
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
AMENDMENT NO. 1
TO
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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DUQUESNE LIGHT COMPANY DUQUESNE CAPITAL L.P.
(Exact name of registrant (Exact name of registrant
as specified in its charter) as specified in its charter)
Pennsylvania One Oxford Centre Delaware
(State or other 301 Grant Street (State or other
jurisdiction of Pittsburgh, Pennsylvania 15279 jurisdiction of
incorporation or (412) 393-6000 incorporation or
organization) organization)
25-0451600 (Address, including zip code, Applied for
(I.R.S. Employer and telephone number, including (I.R.S. Employer
Identification No.) area code, of registrants' Identification No.)
principal executive offices)
WESLEY W. VON SCHACK
CHAIRMAN OF THE BOARD, PRESIDENT
AND CHIEF EXECUTIVE OFFICER
DUQUESNE LIGHT COMPANY
ONE OXFORD CENTRE
301 GRANT STREET
PITTSBURGH, PENNSYLVANIA 15279
(412) 393-6000
(Name, address, including zip code, and telephone number, including area
code, of agent for service for each registrant)
COPIES TO:
J. ANTHONY TERRELL, ESQ. THEODORE N. FARRIS, ESQ.
KEVIN STACEY, ESQ. MUDGE ROSE GUTHRIE ALEXANDER & FERDON
REID & PRIEST 180 MAIDEN LANE
40 WEST 57th STREET NEW YORK, NEW YORK 10038
NEW YORK, NEW YORK 10019 (212) 510-7792
(212) 603-2108
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<PAGE>
SUBJECT TO COMPLETION, DATED JULY 8, 1994
PROSPECTUS SUPPLEMENT TO PROSPECTUS DATED ________, 1994
_________ PREFERRED SECURITIES
DUQUESNE CAPITAL
% CUMULATIVE MONTHLY INCOME PREFERRED SECURITIES, SERIES A ("MIPS"*)
(LIQUIDATION PREFERENCE $25 PER SECURITY)
GUARANTEED TO THE EXTENT DUQUESNE CAPITAL HAS FUNDS AS SET FORTH HEREIN BY
DUQUESNE LIGHT COMPANY
=========
The % Cumulative Monthly Income Preferred Securities, Series A (the
"Series A MIPS") offered hereby are being issued by, and represent limited
partner interests in, Duquesne Capital L.P., a Delaware special purpose
limited partnership ("Duquesne Capital"). Duquesne Capital was formed for
the sole purpose of issuing its limited partnership interests and lending
the proceeds thereof to Duquesne Light Company ("Duquesne Light"), the sole
General Partner of Duquesne Capital. The proceeds of the Series A MIPS
will be loaned to Duquesne Light in return for __% Subordinated Deferrable
Interest Debentures, Series A (the "Series A Debentures").
Holders of the Series A MIPS will be entitled to receive, to the
extent of funds held by Duquesne Capital and legally available therefor,
periodic cash distributions ("dividends"), at an annual rate of % of the
liquidation preference of $25 per security, accumulating from the date of
original issuance and payable monthly in arrears on the last day of each
calendar month, commencing ________, 1994. The payment of dividends and
payments on liquidation or redemption with respect to the Series A MIPS, to
the extent of funds held by Duquesne Capital and legally available
therefor, will be guaranteed under a Payment and Guarantee Agreement (the
"Guarantee") of Duquesne Light to the extent described herein and in the
accompanying Prospectus. The Guarantee does not cover payment of amounts
in respect of the Series A MIPS to the extent that Duquesne Capital does
not have legally available funds for the payment thereof and cash on hand
sufficient to make such payment. Duquesne Capital's earnings will be
limited to payments by Duquesne Light on the Series A Debentures and any
other Indenture Securities (as defined in the accompanying Prospectus). If
Duquesne Light fails to make interest payments on the Series A Debentures,
Duquesne Capital will have insufficient funds to pay dividends on the
Series A MIPS and the Guarantee will not cover payment of such dividends.
In such event, the holders of Series A MIPS may enforce certain rights in
respect of the Series A Debentures. See "Description of the Guarantee" in
the accompanying Prospectus.
The Guarantee and the Series A Debentures will rank subordinate in
right of payment to all Senior Indebtedness (as defined in the accompanying
Prospectus) of Duquesne Light. As of June 30, 1994, Duquesne Light had
approximately $1.5 billion of Senior Indebtedness outstanding.
The Series A MIPS are redeemable, at the option of Duquesne Capital
(with Duquesne Light's consent), in whole or in part, from time to time, on
or after ________, 1999, at $25 per security plus accumulated and unpaid
dividends to the date fixed for redemption (the "Redemption Price").
In addition, upon redemption or payment at maturity of the Series A
Debentures, the proceeds from such redemption or payment will be applied to
redeem Series A MIPS. Under certain circumstances following the occurrence
of a Special Event (as defined in the accompanying Prospectus), Duquesne
Light may cause Duquesne Capital to redeem the Series A MIPS in whole at
the Redemption Price or Duquesne Light may cause Duquesne Capital to
distribute the Series A Debentures in exchange for the Series A MIPS in
whole. If Series A Debentures are distributed, Duquesne Light will use its
best efforts to have such Series A Debentures listed on the same exchange
on which the Series A MIPS are then listed. See "Certain Terms of the
Series A MIPS--Redemption or Exchange" and "Certain Terms of the Series A
Debentures".
In the event of the liquidation of Duquesne Capital, holders of Series
A MIPS will be entitled to receive for each security a liquidation
preference of $25 plus accumulated and unpaid dividends to the date of
payment, subject to certain limitations. See "Description of the MIPS--
Liquidation Distribution" in the accompanying Prospectus.
Application will be made to list the Series A MIPS on the New York
Stock Exchange.
==============
SEE "CERTAIN INVESTMENT CONSIDERATIONS" FOR CERTAIN FACTORS WHICH
SHOULD BE CONSIDERED IN CONNECTION WITH AN INVESTMENT IN THE SERIES A MIPS,
INCLUDING THE PERIOD AND CIRCUMSTANCES DURING AND UNDER WHICH DIVIDENDS ON
THE SERIES A MIPS AND INTEREST ON THE SERIES A DEBENTURES MAY BE DEFERRED.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED
BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION NOR HAS THE SECURITIES AND EX-
CHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROS-
PECTUS SUPPLEMENT OR THE PROSPECTUS TO WHICH IT
RELATES. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
==============
INITIAL PUBLIC UNDERWRITING PROCEEDS TO
OFFERING PRICE COMMISSION (1) DUQUESNE CAPITAL(2)(3)
-------------- -------------- ----------------------
Per security $ (2) $
Total $ (2) $
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(1) Duquesne Capital and Duquesne Light have agreed to indemnify the
several Underwriters against certain liabilities, including
liabilities under the Securities Act of 1933, as amended. See
"Underwriting".
(2) In view of the fact that the proceeds of the sale of the Series A MIPS
will be loaned to Duquesne Light, Duquesne Light has agreed, in the
Underwriting Agreement, to pay to the Underwriters as compensation for
their services $ per security (or $ in the aggregate); provided
that such compensation will be $ per security sold to certain
institutions. Therefore, to the extent that Series A MIPS are sold to
such institutions, the actual amount of Underwriters' compensation
will be less than the amount specified in the preceding sentence and
the Proceeds to Duquesne Capital will be greater than the amount set
forth in the table above. See "Underwriting".
(3) Expenses of the offering, which are payable by Duquesne Light, are
estimated to be $ .
==============
The Series A MIPS offered hereby are offered severally by the
Underwriters, as specified herein, subject to receipt and acceptance by
them and subject to their right to reject any order in whole or in part.
It is expected that delivery of the Series A MIPS will be made only in
book-entry form through the facilities of The Depository Trust Company on
or about , 1994.
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* An application has been filed by Goldman, Sachs & Co. with the United
States Patent and Trademark Office for the registration of the MIPS
servicemark.
GOLDMAN, SACHS & CO.
==============
The date of this Prospectus Supplement is ,1994.
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor
may offers to buy be accepted prior to the time the registration statement
becomes effective. This prospectus supplement shall not constitute an
offer to sell or the solicitation of an offer to buy nor shall there be any
sale of these securities in any State in which such offer, solicitation or
sale would be unlawful prior to registration or qualification under the
securities laws of any such State.
<PAGE>
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR
EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE
SECURITIES OFFERED HEREBY AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE
PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW
YORK STOCK EXCHANGE, IN THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH
STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
<PAGE>
CERTAIN INVESTMENT CONSIDERATIONS
Prospective purchasers of the Series A MIPS should carefully review
the information contained in the Prospectus and elsewhere in this
Prospectus Supplement and should particularly consider the following
matters. Capitalized terms used in this Prospectus Supplement shall have
the meanings ascribed thereto in the Prospectus unless otherwise defined in
this Prospectus Supplement.
SUBORDINATION OF DUQUESNE LIGHT'S OBLIGATIONS
The payment of dividends and payments on liquidation or redemption
with respect to the Series A MIPS, to the extent of funds held by Duquesne
Capital and legally available to make such payments, will be guaranteed by
Duquesne Light under the Guarantee. The Guarantee does not cover payment
of amounts in respect of the Series A MIPS to the extent that Duquesne
Capital does not have legally available funds for the payment thereof and
cash on hand sufficient to make such payment.
Duquesne Light's obligations under the Guarantee and the Series A
Debentures will be subordinate in right of payment to all Senior
Indebtedness of Duquesne Light. As of June 30, 1994, Duquesne Light had
approximately $1.5 billion of Senior Indebtedness outstanding (exclusive of
certain guarantees and other contingent obligations, but inclusive of
capitalized lease obligations and current installments and short-term notes
payable). See "Description of the Guarantee--Status of the Guarantee" and
"Description of the Debentures and the Indenture--Subordination" in the
Prospectus. There are no provisions in the Series A MIPS, the Guarantee,
the Partnership Agreement or the Indenture that limit Duquesne Light's
ability to incur additional indebtedness, including indebtedness that ranks
senior to the Guarantee and the Series A Debentures.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
Duquesne Light has the right under the Indenture, from time to time,
to extend interest payment periods on the Series A Debentures for up to 18
consecutive months, and, as a consequence, monthly dividends on the Series
A MIPS will be deferred by Duquesne Capital (and will continue to
accumulate but without interest on any amounts so deferred) during any such
extended interest payment period. During any such extended interest
period, Duquesne Light may not declare or pay dividends on, or redeem,
purchase, acquire or make a liquidation payment with respect to, any shares
of its capital stock. Duquesne Light has no current intention to extend
the interest payment period as described above. See "Description of the
Debentures and the Indenture--Option to Extend Interest Payment Period" and
"Description of the MIPS--Voting Rights" in the accompanying Prospectus.
TAX CONSEQUENCES OF EXTENDED INTEREST PAYMENT PERIOD
Should an extended interest payment period occur, Duquesne Capital
will continue to accrue income for Federal income tax purposes which will
be allocated but not distributed to record holders of Series A MIPS. As a
result, such a holder will include such interest in gross income for
Federal income tax purposes in advance of the receipt of cash, and will not
receive the cash related to such income if such a holder disposes of the
Series A MIPS prior to the record date for payment of dividends. The tax
basis of the Series A MIPS will be increased by the amount of any interest
that is included in a Series A MIPS holder's income without receipt of
cash, and will be decreased when and if such cash is subsequently received
by such Series A MIPS holder from Duquesne Capital. See "United States
Income Taxation--Potential Extension of Interest Payment Period" in the
accompanying Prospectus.
SPECIAL EVENT REDEMPTION OR EXCHANGE
Upon the occurrence and continuation of a Special Event (as defined in
the accompanying Prospectus, which term, as so defined, relates to a change
in law or regulation or official interpretation thereof), Duquesne Light,
as general partner of Duquesne Capital (the "General Partner"), will elect
to either (i) cause Duquesne Capital to redeem the Series A MIPS in whole
(and not in part) or (ii) cause Duquesne Capital to distribute the Series A
Debentures in exchange for Series A MIPS. In the case of a Special Event
which is a Tax Event, the General Partner may also elect to cause the
Series A MIPS to remain outstanding. See "Certain Terms of the Series A
MIPS -- Redemption or Exchange" herein and "Description of the MIPS --
Special Event Redemption or Exchange" in the accompanying Prospectus.
Such an exchange will generally be treated as a non-taxable exchange
and will result in each Series A MIPS holder receiving an aggregate basis
in its Series A Debentures equal to such holder's aggregate tax basis in
its Series A MIPS. A Series A MIPS holder's holding period in the Series A
Debentures received in such an exchange will include the period for which
the Series A MIPS were held by such holder, provided the Series A MIPS were
held as a capital asset.
If such an exchange occurs following a determination that, due to a
change in law, Duquesne Capital is subject to Federal income tax with
respect to interest received on the Series A Debentures, such exchange will
generally be taxable to the Series A MIPS holder. Gain or loss will be
recognized in an amount measured by the difference between the Series A
MIPS holder's basis in its Series A MIPS and the value of the Series A
Debentures received in the exchange. In such case, the holding period of
the Series A MIPS holder for the Series A Debentures will not include the
period for which the Series A MIPS were held.
DUQUESNE LIGHT COMPANY
Duquesne Light was formed under the laws of Pennsylvania by the
consolidation and merger in 1912 of three constituent companies. As part
of a corporate reorganization, Duquesne Light became a wholly-owned
subsidiary of DQE, an energy services holding company formed in 1989.
Duquesne Light is engaged in the production, transmission, distribution and
sale of electric energy. Duquesne Light provides electric service to
customers in Allegheny County, including the City of Pittsburgh, and Beaver
County. This represents a service territory of approximately 800 square
miles.
DUQUESNE CAPITAL
Duquesne Capital is a limited partnership which was formed under the
Delaware Revised Uniform Limited Partnership Act, as amended (the "Delaware
Act"), on April 27, 1994. Duquesne Capital was formed for the sole purpose
of issuing its limited partnership interests and lending the proceeds
thereof to Duquesne Light. Duquesne Light is the sole General Partner of
Duquesne Capital and will manage the business and affairs of Duquesne
Capital. Holders of MIPS and other Preferred Securities of Duquesne
Capital will be limited partners in Duquesne Capital. Duquesne Light will
make capital contributions from time to time to the extent required so that
the total contributions made by the General Partner shall at all times be
at least equal to 1% of the total contributions made by all partners.
Duquesne Capital will lend such amounts to Duquesne Light from time to time
in return for Indenture Securities of Duquesne Light, including the
Debentures. The rights and obligations of the General Partner and the
limited partners of Duquesne Capital will be governed by the Delaware Act
and by an Amended and Restated Agreement of Limited Partnership of Duquesne
Capital (the "Partnership Agreement") substantially in the form filed as an
exhibit to the Registration Statement of which this Prospectus Supplement
is a part.
USE OF PROCEEDS
The proceeds from the sale of the Series A MIPS will be lent to
Duquesne Light in return for Series A Debentures of Duquesne Light.
Duquesne Light intends to apply the proceeds of such loan or loans to the
payment or provision for payment at maturity, the purchase, on the open
market, in private transactions or otherwise, or the redemption of
outstanding securities of Duquesne Light and for general corporate
purposes.
CERTAIN TERMS OF THE SERIES A MIPS
THE FOLLOWING SUMMARY OF CERTAIN TERMS OF THE SERIES A MIPS
SUPPLEMENTS THE DESCRIPTION OF THE MIPS SET FORTH IN THE ACCOMPANYING
PROSPECTUS UNDER THE HEADING "DESCRIPTION OF THE MIPS", TO WHICH
DESCRIPTION REFERENCE IS HEREBY MADE.
GENERAL
The Series A MIPS will be issued as the initial series of Preferred
Securities pursuant to the Partnership Agreement.
DIVIDENDS
Dividends on the Series A MIPS will be cumulative from the date of
issue and will be payable monthly in arrears on the last day of each
calendar month at an annual rate of ___% of the liquidation preference of
$25 per security. The first dividend payment date for the Series A MIPS
will be ____________, 1994.
Dividends on the Series A MIPS are required to be paid to the extent
that, on any scheduled dividend payment date, Duquesne Capital has (x)
funds legally available for the payment of such dividends, as determined by
the General Partner, and (y) cash on hand sufficient to permit such
payment. Duquesne Capital's earnings will be limited to Duquesne Light's
payments of interest on the Series A Debentures and any other Indenture
Securities. See "Description of the Debentures and the Indenture" in the
accompanying Prospectus. Duquesne Light has the right under the Indenture,
from time to time, to extend the interest payment periods on the Series A
Debentures for up to 18 consecutive months, and, as a consequence, monthly
dividends on the Series A MIPS will be deferred by Duquesne Capital (and
will continue to accumulate but without interest on any amounts so
deferred) during any such extended interest payment period. See
"Description of the Debentures and the Indenture--Option to Extend Interest
Payment Period" in the accompanying Prospectus.
Dividends on the Series A MIPS will be payable to the holders thereof
as they appear on the books and records of Duquesne Capital on the relevant
record dates, which will be one Business Day (as defined in the
accompanying Prospectus) prior to the relevant payment dates; provided,
however, that if the Series A MIPS of any series are not held by a
securities depositary, the General Partner shall have the right to change
such record dates.
REDEMPTION OR EXCHANGE
On or after _________, 1999, Duquesne Capital may, at its option and
at the direction of Duquesne Light, redeem the Series A MIPS in whole or in
part upon not less than 30 nor more than 60 days' notice at a redemption
price of $25 per security plus an amount equal to accumulated and unpaid
dividends thereon, if any, to the date fixed for redemption.
In addition, upon the payment of the Series A Debentures at maturity,
the proceeds from such payment will be applied to redeem Series A MIPS at a
redemption price of $25 per security plus an amount equal to accumulated
and unpaid dividends, if any, thereon, to such maturity date. See "Certain
Terms of the Series A Debentures" herein and "Description of the MIPS --
Redemption Procedures" in the accompanying Prospectus.
If a Special Event shall occur, Duquesne Capital may redeem the Series
A MIPS in whole or cause Series A Debentures to be distributed in exchange
for the Series A MIPS. In the event of any such distribution, each holder
of Series A MIPS would receive Series A Debentures in an aggregate
principal amount equal to the aggregate liquidation preference of $25 per
security on the Series A MIPS held by it. Upon any such distribution of
Series A Debentures in exchange for the Series A MIPS, Duquesne Light will
use its best efforts to have the Series A Debentures listed on the same
exchange on which the Series A MIPS are listed. After the date fixed for
any such exchange, (i) the Series A MIPS will no longer be deemed to be
outstanding, (ii) DTC or its nominee, as the record holder of the Series A
MIPS will exchange the global certificate or certificates representing the
Series A MIPS for a registered global certificate or certificates
representing the Series A Debentures to be delivered upon such exchange and
(iii) any certificates representing Series A MIPS not held by DTC or its
nominee will be deemed to represent Series A Debentures having a principal
amount equal to the aggregate liquidation preference of such Series A MIPS
until such certificates are presented to Duquesne Capital or its agent for
exchange.
CERTAIN TERMS OF THE SERIES A DEBENTURES
THE FOLLOWING SUMMARY OF CERTAIN TERMS AND PROVISIONS OF THE SERIES A
DEBENTURES SUPPLEMENTS THE DESCRIPTION OF THE DEBENTURES SET FORTH IN THE
ACCOMPANYING PROSPECTUS UNDER THE HEADING "DESCRIPTION OF THE DEBENTURES
AND THE INDENTURE", TO WHICH DESCRIPTION REFERENCE IS HEREBY MADE.
GENERAL
Pursuant to the Indenture and in return for the loan by Duquesne
Capital to Duquesne Light of the proceeds of the issuance of the Series A
MIPS and the related capital contribution made by the General Partner,
Duquesne Light will issue Series A Debentures to Duquesne Capital in an
aggregate principal amount equal to the sum of the aggregate liquidation
preference of the Series A MIPS and the amount of such capital
contribution.
The entire principal amount of the Series A Debentures will become due
and payable, together with any accrued and unpaid interest thereon,
including Additional Interest (as defined in the accompanying Prospectus),
if any, on , 204_ (subject to Duquesne Light's rights and
obligations to redeem the Series A Debentures). See "Redemption" below.
INTEREST
The Series A Debentures will bear interest at a rate of % per annum
from the date they are issued until maturity. Such interest will be
payable monthly on the last day of each calendar month of each year,
commencing , 1994.
REDEMPTION
The Series A Debentures may be redeemed at the option of Duquesne
Light, at any time on or after ________, 1999, in whole or in part, at a
redemption price equal to 100% of the principal amount thereof plus any
accrued but unpaid interest, including Additional Interest, if any, to the
date fixed for redemption. In addition, the Series A Debentures may be
subject to mandatory redemption at any time under the circumstances
described under "Description of the Debentures and the Indenture--Mandatory
Redemption" in the accompanying Prospectus.
UNDERWRITING
Subject to the terms and conditions of the Underwriting Agreement,
Duquesne Capital has agreed to sell to each of the Underwriters named
below, and each of the Underwriters, for whom Goldman, Sachs & Co., and
___________ are acting as Representatives, has severally agreed to purchase
from Duquesne Capital, the respective number of Series A MIPS set forth
opposite its name below:
NUMBER OF
SERIES A
UNDERWRITERS MIPS
------------ ---------
Goldman, Sachs & Co. . . . . . . . . . .
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Total . . . . . . ========
Under the terms and conditions of the Underwriting Agreement, the
Underwriters are committed to take and pay for all such Series A MIPS
offered hereby, if any are taken.
The Underwriters propose to offer the Series A MIPS in part directly
to the public at the initial public offering price set forth on the cover
page of this Prospectus Supplement, and in part to certain securities
dealers at such price less a concession of $ per security. The
Underwriters may allow, and such dealers may reallow, a concession not in
excess of $ per security to certain brokers and dealers. After the
Series A MIPS are released for sale to the public, the offering price and
other selling terms may from time to time be varied by the Representatives.
In view of the fact that the proceeds of the sale of the Series A MIPS
will be loaned to Duquesne Light, Duquesne Light has agreed, in the
Underwriting Agreement, to pay to the Underwriters as compensation for
their services an amount of $ per security ($ per security sold
to certain institutions) for the accounts of the several Underwriters.
Certain of the Underwriters engage in transactions with, and from time
to time have performed services for, Duquesne Light in the ordinary course
of business.
Prior to this offering, there has been no public market for the Series
A MIPS. The Underwriters have advised Duquesne Capital and Duquesne Light
that they will undertake to sell lots of 100 or more Series A MIPS to a
minimum of 400 beneficial holders in order to meet one of the requirements
for listing the Series A MIPS on the New York Stock Exchange.
Duquesne Capital and Duquesne Light have agreed to indemnify the
several Underwriters against certain liabilities, including liabilities
under the Securities Act of 1933, as amended.
Duquesne Capital and Duquesne Light have agreed, during the period
beginning from the date of the Underwriting Agreement and continuing to and
including the earlier of (1) the termination of trading restrictions for
the Series A MIPS, as determined by the Underwriters, or (2) 30 days after
the closing date, not to offer, sell, contract to sell or otherwise dispose
of any Preferred Securities of Duquesne Capital, any limited partnership
interests of Duquesne Capital or any preferred stock of Duquesne Light or
any other securities of Duquesne Capital or Duquesne Light which are
substantially similar to the Preferred Securities, or any securities
convertible into or exchangeable for Preferred Securities, limited
partnership interests, preferred stock or such substantially similar
securities of either Duquesne Capital or Duquesne Light, without the prior
written consent of the Underwriters.
<PAGE>
SUBJECT TO COMPLETION, DATED ________, 1994
$150,000,000
DUQUESNE CAPITAL
CUMULATIVE MONTHLY INCOME PREFERRED SECURITIES ("MIPS"*)
(LIQUIDATION PREFERENCE $25 PER SECURITY)
GUARANTEED TO THE EXTENT DUQUESNE CAPITAL HAS FUNDS AS SET FORTH HEREIN BY
DUQUESNE LIGHT COMPANY
Duquesne Capital L.P. ("Duquesne Capital"), a Delaware special purpose
limited partnership, the sole general partner of which is Duquesne Light
Company ("Duquesne Light"), may offer, from time to time, in one or more
series, up to $150,000,000 of its Cumulative Monthly Income Preferred
Securities (the "MIPS"), which are preferred securities ("Preferred
Securities"), representing limited partner interests in Duquesne Capital.
The MIPS may be offered in amounts, at prices and on terms to be determined
at the time of offering. Duquesne Capital was formed for the sole purpose
of issuing its limited partnership interests and lending the proceeds
thereof to Duquesne Light. Duquesne Capital will lend the proceeds of the
sale of the MIPS to Duquesne Light in return for Subordinated Deferrable
Interest Debentures of Duquesne Light in aggregate principal amount equal
to the aggregate liquidation preference of the MIPS, bearing interest at an
annual rate equal to the annual dividend rate on the MIPS and having
certain redemption terms which correspond to the redemption terms for the
MIPS ("Debentures").
The payment of periodic cash distributions ("dividends") and payments
on liquidation or redemption with respect to the MIPS, to the extent of
funds held by Duquesne Capital and legally available therefor, will be
guaranteed under a Payment and Guarantee Agreement (the "Guarantee") of
Duquesne Light to the extent described herein. The Guarantee and the
Debentures will rank subordinate in right of payment to all Senior
Indebtedness (as defined herein) of Duquesne Light. Duquesne Capital's
earnings will be limited to payments by Duquesne Light on the Debentures
and other Indenture Securities (as defined herein) issued under the
Indenture (as defined herein). If Duquesne Light fails to make interest
payments on the Debentures, Duquesne Capital will have insufficient funds
to pay dividends on the MIPS and the Guarantee will not cover payment of
such dividends. In such event, the holders of MIPS may enforce certain
rights in respect of the Debentures under the Indenture. Interest on the
Debentures may be deferred at the option of Duquesne Light as described
under "Description of the Debentures and the Indenture--Option to Extend
Interest Payment Period", and, as a consequence, monthly dividends on the
MIPS may be deferred by Duquesne Capital. See "Description of the
Guarantee" and "Description of the Debentures and the Indenture" herein for
a description of the terms and limitations of such obligations of Duquesne
Light relating to the MIPS.
Under certain circumstances described herein, Duquesne Light may cause
Duquesne Capital to distribute the Debentures in exchange for MIPS. See
"Description of the MIPS--Special Event Redemption or Exchange".
Certain specific terms of the MIPS and the related series of
Debentures in respect of which this Prospectus is being delivered will be
set forth in an accompanying Prospectus Supplement ("Prospectus
Supplement"), including the series designation, number of securities and
the dividend rate on MIPS, and the maturity and the interest rate on such
Debentures and any other special terms.
The MIPS will be sold directly, through agents, underwriters,
including Goldman, Sachs & Co., or dealers as designated from time to time,
or through a combination of such methods. If agents of Duquesne Capital or
any dealers or underwriters are involved in the sale of the MIPS in respect
of which this Prospectus is being delivered, the names of such agents,
dealers or underwriters and any applicable commissions or discounts will be
set forth in or may be calculated from the accompanying Prospectus
Supplement. See "Plan of Distribution".
This Prospectus may not be used to consummate sales of the MIPS unless
accompanied by a Prospectus Supplement.
==============
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
====================
GOLDMAN, SACHS & CO.
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The date of this Prospectus is , 1994.
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* An application has been filed by Goldman, Sachs & Co. with the United
States Patent and Trademark Office for the registration of the MIPS
servicemark.
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor
may offers to buy be accepted prior to the time the registration statement
becomes effective. This prospectus shall not constitute an offer to sell
or the solicitation of an offer to buy nor shall there be any sale of these
securities in any State in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws
of any such State.
<PAGE>
AVAILABLE INFORMATION
Duquesne Light is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports and other information with the
Securities and Exchange Commission (the "Commission"). Such reports and
other information filed by Duquesne Light can be inspected and copied at
the public reference facilities maintained by the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the following Regional
Offices of the Commission: 7 World Trade Center, New York, New York 10048;
and 500 West Madison Street, Chicago, Illinois 60661-2511. Copies of such
material can be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. Certain securities of Duquesne Light are listed on the
New York Stock Exchange. Reports and other information concerning Duquesne
Light may be inspected at the offices of such exchange at 20 Broad Street,
New York, New York 10005. In addition, such reports and other information
concerning Duquesne Light can be inspected at the principal office of
Duquesne Light, One Oxford Centre, 301 Grant Street, Pittsburgh,
Pennsylvania 15279.
This Prospectus does not contain all the information set forth in the
Registration Statement on Form S-3, which Duquesne Light and Duquesne
Capital have filed with the Commission under the Securities Act of 1933, as
amended (the "Securities Act"). Statements contained or incorporated by
reference herein concerning the provisions of documents are necessarily
summaries of such documents, and each statement is qualified in its
entirety by reference to such Registration Statement, as amended by
Amendment No. 1 thereto, including the documents filed as exhibits thereto
(the "Registration Statement").
No separate financial statements of Duquesne Capital have been
included herein. Duquesne Light and Duquesne Capital do not consider that
such financial statements would be material to holders of MIPS because
Duquesne Capital is a newly organized special purpose entity, has no
operating history and no independent operations and is not engaged in, and
does not propose to engage in, any activity other than as set forth below.
See "Description of the MIPS". Duquesne Capital is a special purpose
limited partnership organized under the laws of the State of Delaware, and
Duquesne Light is the sole general partner. Duquesne Capital exists for
the sole purpose of issuing its limited partnership interests and lending
the proceeds thereof to Duquesne Light.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Duquesne Light's Annual Report on Form 10-K for the fiscal year ended
December 31, 1993 and its Quarterly Report on Form 10-Q for the quarter
ended March 31, 1994 have been filed with the Commission pursuant to the
Exchange Act and are hereby incorporated herein by reference. All
documents subsequently filed by Duquesne Light pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act prior to the termination of the
offering of the securities offered hereby shall be deemed to be
incorporated by reference into this Prospectus and to be a part hereof from
the date of filing such documents. The documents incorporated or deemed to
be incorporated herein by reference are sometimes referred to herein as the
"Incorporated Documents". Any statement contained herein or in an
Incorporated Document shall be deemed to be modified or superseded for all
purposes to the extent that a statement contained herein, in any Prospectus
Supplement or in any subsequently filed Incorporated Document modifies or
supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a
part of this Prospectus.
Any person receiving a copy of this Prospectus may obtain without
charge, upon request, a copy of any of the Incorporated Documents (not
including the exhibits to such documents, unless such exhibits are
specifically incorporated by reference in such Incorporated Documents).
Requests for such copies should be directed to Ms. Diane S. Eismont,
Secretary, Duquesne Light Company, One Oxford Centre, 301 Grant Street,
Pittsburgh, Pennsylvania 15279, telephone number (412) 393-6080.
DUQUESNE LIGHT COMPANY
Duquesne Light was formed under the laws of Pennsylvania by the
consolidation and merger in 1912 of three constituent companies. As part
of a corporate reorganization, Duquesne Light became a wholly-owned
subsidiary of DQE, an energy services holding company formed in 1989.
Duquesne Light is engaged in the production, transmission, distribution and
sale of electric energy. Duquesne Light provides electric service to
customers in Allegheny County, including the City of Pittsburgh, and Beaver
County. This represents a service territory of approximately 800 square
miles. The principal executive office of Duquesne Light is located at One
Oxford Centre, 301 Grant Street, Pittsburgh, Pennsylvania 15279. Its
telephone number is (412) 393-6000. Additional information concerning
Duquesne Light and its operations is contained in the Incorporated
Documents, to which reference is hereby made.
DUQUESNE CAPITAL
Duquesne Capital is a limited partnership which was formed under the
Delaware Revised Uniform Limited Partnership Act, as amended (the "Delaware
Act"), on April 27, 1994. Duquesne Capital was formed for the sole purpose
of issuing its limited partnership interests and lending the proceeds
thereof to Duquesne Light. Duquesne Light is the sole general partner of
Duquesne Capital (the "General Partner") and will manage the business and
affairs of Duquesne Capital. Holders of MIPS and other Preferred
Securities of Duquesne Capital will be limited partners in Duquesne
Capital. Duquesne Light will make capital contributions from time to time
to the extent required so that the total contributions made by the General
Partner, as general partner, shall at all times be at least equal to 1% of
the total contributions made by all partners. Duquesne Capital will lend
such amounts to Duquesne Light from time to time in return for Indenture
Securities of Duquesne Light, including the Debentures. The rights and
obligations of Duquesne Light, as General Partner, and the limited partners
of Duquesne Capital will be governed by the Delaware Act and by an Amended
and Restated Agreement of Limited Partnership of Duquesne Capital (the
"Partnership Agreement") substantially in the form filed as an exhibit to
the Registration Statement of which this Prospectus is a part. The
principal executive office of Duquesne Capital is c/o Duquesne Light
Company, One Oxford Centre, 301 Grant Street, Pittsburgh, Pennsylvania
15279, and the telephone number is (412) 393-4131.
USE OF PROCEEDS
The proceeds from the sale of the MIPS will be lent to Duquesne Light
in return for Debentures of Duquesne Light. Duquesne Light intends to
apply the proceeds of such loan or loans to the payment or provision for
payment at maturity, the purchase, on the open market, in private
transactions or otherwise, or the redemption of outstanding securities of
Duquesne Light and for general corporate purposes.
RATIO OF EARNINGS TO FIXED CHARGES AND RATIO OF EARNINGS
TO COMBINED FIXED CHARGES AND PREFERRED
AND PREFERENCE STOCK DIVIDEND REQUIREMENTS
Year Ended December 31,
---------------------------------
Three Months
Ended
March 31, 1994 1993 1992 1991 1990 1989
-------------- ---- ---- ---- ---- ----
Ratio of 2.65 2.39 2.38 2.23 2.04 1.92
Earnings
to Fixed
Charges
Ratio of 2.48 2.19 2.19 2.05 1.85 1.72
Earnings
to Combined
Fixed
Charges and
Preferred and
Preference
Stock
Dividend
Requirements
For purposes of computing the foregoing ratios, Duquesne Light's share
of the fixed charges of an unaffiliated coal supplier, which amounted to
approximately $4 million for the year ended December 31, 1993, has been
excluded.
DESCRIPTION OF THE MIPS
SET FORTH BELOW IS A SUMMARY OF CERTAIN TERMS AND PROVISIONS OF THE
MIPS. THIS SUMMARY DOES NOT PURPORT TO BE COMPLETE AND IS SUBJECT TO, AND
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO, THE FORMS OF PARTNERSHIP
AGREEMENT AND ACTION OF GENERAL PARTNER ESTABLISHING THE MIPS FILED AS
EXHIBITS TO THE REGISTRATION STATEMENT OF WHICH THIS PROSPECTUS IS A PART.
GENERAL
The Partnership Agreement will authorize Duquesne Light as the
General Partner, to establish various series of Preferred Securities,
including one or more series of MIPS, having such designations, rights,
privileges, restrictions and other terms and provisions as the General
Partner may determine. The MIPS are limited partner interests in Duquesne
Capital, and may be issued from time to time, having terms described herein
and in the Prospectus Supplement relating thereto. The limited partner
interests represented by the MIPS will have a preference with respect to
cash distributions and amounts payable on liquidation over the General
Partner's interest in Duquesne Capital. The Action or Actions of General
Partner creating the MIPS will not permit the issuance of any limited
partnership interests of Duquesne Capital ranking, as to participation in
profits or the assets of Duquesne Capital, senior to the MIPS.
Amounts payable in respect of the MIPS will be guaranteed by Duquesne
Light to the extent set forth below under "Description of the Guarantee".
Under certain circumstances described herein, the MIPS may be exchanged
for Debentures of Duquesne Light. See "Special Event Redemption or
Exchange" below.
DIVIDENDS
Unless otherwise specified in a Prospectus Supplement, dividends on the
MIPS of each series will be cumulative, will accumulate from the date of
issue and will be payable monthly in arrears on the last day of each
calendar month of each year except as otherwise described below.
The annual dividend rate on the MIPS of each series will be set
forth in a Prospectus Supplement relating to such series.
The amount of dividends payable for any period will be computed on the
basis of twelve 30-day months and a 360-day year and, for any period
shorter than a full monthly dividend period, will be computed on the basis
of the actual number of days elapsed in such period. Payment of dividends
on the MIPS is limited in relation to the amount of funds held by Duquesne
Capital and legally available therefor.
Dividends on the MIPS are required to be paid to the extent that, on
any scheduled dividend payment date, Duquesne Capital has (x) funds legally
available for the payment of such dividends, as determined by the General
Partner, and (y) cash on hand sufficient to permit such payment. Duquesne
Capital's earnings will be limited to Duquesne Light's payments of interest
on the Debentures and other Indenture Securities. See "Description of the
Debentures and the Indenture". Duquesne Light has the right under the
Indenture, from time to time, to extend the interest payment periods on the
Debentures for up to 18 consecutive months, and, as a consequence, monthly
dividends on the MIPS will be deferred by Duquesne Capital (and will
continue to accumulate but without interest on any amounts so deferred)
during any such extended interest payment period. See "Description of the
Debentures and the Indenture--Option to Extend Interest Payment Period".
Dividends on the MIPS will be payable to the holders thereof as they
appear on the books and records of Duquesne Capital on the relevant record
dates, which will be one Business Day (as hereinafter defined) prior to the
relevant payment dates; provided, however, that if the MIPS of any series
are not held by a securities depositary, the General Partner shall have the
right to change such record dates. Subject to any applicable laws and
regulations and the provisions of the Partnership Agreement, each such
payment will be made as described under "Book-Entry-Only Issuance" below.
In the event that any date on which dividends are payable on the MIPS is
not a Business Day, then payment of the dividends payable on such date will
be made on the next succeeding day which is a Business Day (and without any
interest or other payment in respect of any such delay) 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 such date.
A "Business Day" shall mean any day other than a day on which banking
institutions in The City of New York or the City of Pittsburgh,
Pennsylvania are authorized or required by law to close.
CERTAIN RESTRICTIONS ON DUQUESNE CAPITAL
If dividends have not been paid in full on the MIPS of any series,
Duquesne Capital shall not:
(i) pay, or set aside for payment, any dividends on any other
Preferred Securities ranking pari passu with the MIPS of such series as
---- -----
regards participation in profits of Duquesne Capital ("Dividend Parity
Securities"), unless, at the time of such payment or setting aside,
there shall also be paid, or set aside for payment, as the case may be,
dividends on the MIPS of such series on a pro rata basis, so that, after
giving effect to the payment of all such dividends,
(x) the ratio of (a) the aggregate amount of dividends paid on
the MIPS of such series to (b) the aggregate amount of dividends paid
on such Dividend Parity Securities is the same as
(y) the ratio of (a) the aggregate of all accumulated arrears
of unpaid dividends in respect of the MIPS of such series to (b) the
aggregate of all accumulated arrears of unpaid dividends in respect of
such Dividend Parity Securities;
(ii) pay, or set aside for payment, any dividends or other
distributions on any other securities of Duquesne Capital ranking junior
to the MIPS of such series as to dividends ("Dividend Junior
Securities"); or
(iii) redeem, purchase or otherwise acquire any MIPS of such series,
any Dividend Parity Securities or any Dividend Junior Securities;
until, in each case, such time as all accumulated and unpaid dividends on
the MIPS of such series shall have been paid in full for all dividend
periods terminating on or prior to, in the case of clauses (i) and (ii),
such payment and, in the case of clause (iii), the date of such redemption,
purchase or acquisition.
OPTIONAL REDEMPTION
Unless otherwise provided in a Prospectus Supplement, the MIPS of each
series will be redeemable, at the option of Duquesne Capital and at the
direction of Duquesne Light, in whole or in part from time to time, on or
after the fifth anniversary of the last day of the month in which such MIPS
are issued, upon not less than 30 nor more than 60 days' notice, at a
redemption price of $25 per security, plus an amount equal to accumulated
and unpaid dividends to the date fixed for redemption (the "Redemption
Price"); provided, however, that prior to giving any such notice of
redemption Duquesne Capital shall have received from Duquesne Light a
notice of redemption of Debentures of the corresponding series having an
aggregate principal amount equal to the aggregate liquidation preference of
the MIPS to be redeemed. In the event that fewer than all the outstanding
MIPS of any series are to be so redeemed, the MIPS to be redeemed will be
selected as described under "Book-Entry-Only Issuance" below. If a partial
redemption would result in a delisting of the MIPS of any series by any
national securities exchange or other organization on which the MIPS of
such series are then listed, Duquesne Capital may only redeem the MIPS of
such series in whole.
SPECIAL EVENT REDEMPTION OR EXCHANGE
If a Special Event (as defined below) shall occur and be continuing,
the General Partner will (i) cause Duquesne Capital to redeem the MIPS in
whole (and not in part), upon not less than 30 nor more than 60 days'
notice, at the Redemption Price within 90 days following the occurrence of
such Special Event, or (ii) cause Duquesne Capital to distribute Debentures
to holders of MIPS in exchange for such MIPS within 90 days following the
occurrence of such Special Event. Notwithstanding the foregoing, if the
Special Event is solely a Tax Event (as defined below), neither the General
Partner nor Duquesne Capital shall be required to elect either of the
options described in (i) or (ii) above and may, instead, allow the MIPS to
remain outstanding.
In the event of a distribution of Debentures as described in (ii)
above, each holder of MIPS would receive Debentures in an aggregate
principal amount equal to the aggregate liquidation preference of $25 per
security on the MIPS held by it and bearing interest at a rate per annum
equal to the dividend rate per annum on such MIPS from the last date on
which dividends on such MIPS were paid. Under such circumstances, if there
are no other Preferred Securities then outstanding, Duquesne Light may
cause Duquesne Capital to be dissolved.
After the date fixed for any such exchange, (i) the MIPS will no
longer be deemed to be outstanding, (ii) the Depositary (as hereinafter
defined) or its nominee, as the record holder of the MIPS, will exchange
the global certificate or certificates representing the MIPS for a
registered global certificate or certificates representing the Debentures
to be delivered upon such exchange and (iii) any certificates representing
shares of MIPS not held by the Depositary or its nominee will be deemed to
represent Debentures having a principal amount equal to the liquidation
preference of such MIPS until such certificates are presented to Duquesne
Light or its agent for exchange.
"Special Event" means an Investment Company Event or a Tax Event.
"Investment Company Event" means the occurrence of a change in law
or regulation or a written change in official interpretation of law or
regulation by any legislative body, court, governmental agency or
regulatory authority (a "Change in 40 Act Law") to the effect that Duquesne
Capital is or will be considered an "investment company" required to be
registered under the Investment Company Act of 1940, as amended (the "1940
Act"), which Change in 40 Act Law becomes effective on or after the date of
the first issuance of MIPS of such series; provided that no Investment
Company Event shall be deemed to have occurred if Duquesne Light or
Duquesne Capital shall have obtained a written opinion of nationally
recognized independent counsel experienced in practice under the 1940 Act,
to the effect that Duquesne Light or Duquesne Capital has successfully
taken either of the steps set forth in (i) or (ii) below to avoid such
Change in 40 Act Law so that in the opinion of such counsel,
notwithstanding such Change in 40 Act Law, Duquesne Capital is not required
to be registered as an "investment company" within the meaning of the 1940
Act. Such steps shall be either (i) issuing an additional or supplemental
irrevocable and unconditional guarantee (x) of accumulated and unpaid
dividends (whether or not moneys are legally available therefor) on the
MIPS and (y) upon a liquidation of Duquesne Capital, of the full amount of
the Liquidation Distribution (as hereinafter defined) on the MIPS
(regardless of the amount of assets of Duquesne Capital otherwise available
for distribution in such liquidation), or (ii) the use of any other
reasonable measures that do not adversely affect holders of MIPS in any
material respect.
"Tax Event" means that Duquesne Light or Duquesne Capital shall have
obtained an opinion of nationally recognized independent tax 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 any amendment to or change in an official interpretation or
application of such laws or regulations, which amendment or change is
effective on or after the date of the first issuance of MIPS of such
series, and which change cannot be avoided by the use of any reasonable
measures available to Duquesne Light or Duquesne Capital, there is a
substantial increase in risk that (i) Duquesne Capital is subject to
Federal income tax with respect to interest received on the Debentures,
(ii) interest payable on the Debentures will not be deductible for Federal
income tax purposes or (iii) Duquesne Capital is subject to more than a de
--
minimis amount of other taxes, duties or other governmental charges.
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REDEMPTION PROCEDURES
If at any time Duquesne Light (i) pays at maturity or (ii) redeems
Debentures of any series as described under "Description of the Debentures
and the Indenture--Optional Redemption", the proceeds from such payment or
redemption of principal of such Debentures will be applied to redeem MIPS
of the related series at the Redemption Price upon not less than 30 nor
more than 60 days' notice (except that no such notice will be required in
the case of (i)).
If (a) Duquesne Capital gives a notice of redemption in respect of
MIPS of any series (which notice will be irrevocable) or (b) MIPS of any
series shall become redeemable by virtue of the maturity of the related
Debentures, then, on the date fixed for redemption, which in the case of
(b) shall be the applicable Debenture maturity date (the "Redemption
Date"), Duquesne Capital will pay the applicable Redemption Price to the
record holders of such MIPS. See "Book-Entry-Only Issuance" below. If
notice of redemption has been given and payment or provision for payment
has been made on the date fixed for redemption as required, then upon such
date, all rights of holders of such MIPS so called for redemption will
cease, except the right of such holders to receive the Redemption Price,
but without interest. In the event that any Redemption Date is not a
Business Day, payment of the Redemption Price payable on such date will be
made on the next succeeding day which is a Business Day (and without any
interest or other payment in respect of any such delay), except that, if
such Business Day falls in the next calendar year, such payment will be
made on the immediately preceding Business Day. In the event that payment
of the Redemption Price in respect of any MIPS is not paid either by
Duquesne Capital or by Duquesne Light pursuant to the Guarantee described
under "Description of the Guarantee", dividends on such MIPS will continue
to accumulate (but without any interest on amounts so accumulating) from
the original Redemption Date to the date of payment, in which case the
actual payment date will be considered the Redemption Date for purposes of
calculating the Redemption Price.
Subject to the foregoing and applicable law (including, without
limitation, Federal securities laws), Duquesne Light or its affiliates may
at any time and from time to time purchase outstanding MIPS by tender, in
the open market or by private agreement. In the event that Duquesne Light
surrenders any MIPS to Duquesne Capital, Duquesne Capital will distribute
to or upon the order of Duquesne Light, Debentures of the corresponding
series in aggregate principal amount equal to the aggregate liquidation
preference on the MIPS so surrendered.
LIQUIDATION DISTRIBUTION
In the event of any voluntary or involuntary dissolution,
liquidation or winding up of Duquesne Capital, the holders of the MIPS of
each series at the time outstanding will be entitled to receive out of the
assets of Duquesne Capital available for distribution to partners of
Duquesne Capital, after satisfaction of liabilities to creditors, if any,
as required by the Delaware Act, before any distribution of assets is made
to the General Partner or any other series of Preferred Securities ranking
junior to the MIPS of such series with respect to participation in the
assets of Duquesne Capital, but together with the holders of every other
series of Preferred Securities outstanding, if any, ranking pari passu with
---- -----
the MIPS of such series with respect to participation in the assets of
Duquesne Capital ("Liquidation Parity Securities"), an amount equal to the
aggregate of the liquidation preference of $25 per security plus an amount
equal to all accumulated and unpaid dividends on the MIPS of such series to
the date of payment (the "Liquidation Distribution").
If, upon any such liquidation, the Liquidation Distribution for MIPS of
any series can be paid only in part because Duquesne Capital has
insufficient assets available to pay in full the aggregate Liquidation
Distribution for such series and the aggregate maximum liquidation
distributions on the Liquidation Parity Securities, then the amounts
payable directly by Duquesne Capital on the MIPS of such series and on such
Liquidation Parity Securities shall be paid on a pro rata basis, so that
(i) the ratio of (x) the aggregate amount paid in respect of the
Liquidation Distribution to (y) the aggregate amount paid in respect
of liquidation distributions on the Liquidation Parity Securities is
the same as
(ii) the ratio of (x) the aggregate Liquidation Distribution to (y)
the aggregate maximum liquidation distributions on the Liquidation
Parity Securities.
Pursuant to the Partnership Agreement, Duquesne Capital shall be
dissolved and its affairs shall be wound up: (i) on ________, 204_, the
expiration of the term of Duquesne Capital, (ii) upon the withdrawal,
removal or bankruptcy of the General Partner, or the assignment by the
General Partner of its general partner interest in Duquesne Capital or the
occurrence of any other event that results in the General Partner ceasing
to be a general partner of Duquesne Capital under the Delaware Act, except
for a transfer to a permitted successor of Duquesne Light under the
Indenture, unless in any such case the business of Duquesne Capital is
continued in accordance with the Delaware Act, (iii) upon the entry of
decree of a judicial dissolution, or (iv) upon the written consent of all
partners of Duquesne Capital, including the holders of the Preferred
Securities.
SOURCE OF PAYMENT FOR THE MIPS
Duquesne Capital is a special purpose limited partnership formed for the
sole purpose of issuing its limited partnership interests and lending the
proceeds thereof to Duquesne Light in return for debt securities of
Duquesne Light. The proceeds of the MIPS will be loaned to Duquesne Light
in return for Debentures. Duquesne Capital's earnings will be limited to
payments by Duquesne Light on the Debentures and other Indenture
Securities.
Dividends on the MIPS must be paid to the extent of funds held by
Duquesne Capital and legally available to make such payments. Under the
terms of the Guarantee as described under "Description of the Guarantee -
General" herein, such payments required to be made on the MIPS will be
irrevocably and unconditionally guaranteed by Duquesne Light. Because the
payment terms of the Debentures will generally correspond to the payment
terms of the MIPS, Duquesne Capital is expected to have sufficient funds to
make payments on the MIPS so long as Duquesne Light is not in default in
payment of the Debentures. In addition, because Duquesne Light will
covenant in the Guarantee to timely perform all of its duties as General
Partner, including the duty to pay dividends on the MIPS and the duty to
pay all costs and expenses of Duquesne Capital, it is expected that all
payments on the Debentures will be available for the payment of dividends
on the MIPS. Duquesne Light and Duquesne Capital believe that the
obligations of Duquesne Light under the Guarantee, the Partnership
Agreement and the Debentures, taken together, are substantially equivalent
to a full and unconditional guarantee by Duquesne Light of payments due on
the MIPS. The Guarantee will be one of payment and not of collection,
and holders of MIPS may enforce the Guarantee directly against Duquesne
Light, without first proceeding against Duquesne Capital. If Duquesne
Light fails to make interest payments on the Debentures, Duquesne Capital
will have insufficient funds to pay dividends on the MIPS, and the
Guarantee will not cover payment of such dividends. In such event, the
holders of MIPS may enforce certain rights in respect of the Debentures as
third party beneficiaries under the Indenture. In addition, under certain
circumstances, holders of MIPS will have the right to appoint a Special
Representative to enforce Duquesne Capital's rights as holder of the
Debentures.
See "Description of the Guarantee" and "Description of the Debentures
and the Indenture" herein for a description of the terms and limitations of
the obligations of Duquesne Light relating to the MIPS.
MERGER, CONSOLIDATION, AMALGAMATION, ETC. OF DUQUESNE CAPITAL
The General Partner is authorized and directed to conduct its affairs
and to operate Duquesne Capital in such a way that Duquesne Capital would
not be deemed to be an "investment company" required to be registered under
the 1940 Act or taxed as a corporation for Federal income tax purposes and
so that the Debentures will be treated as indebtedness of Duquesne Light
for Federal income tax purposes. In this connection, the General Partner
is authorized to take any action not inconsistent with applicable law, the
Certificate of Limited Partnership or the Partnership Agreement and that
does not adversely affect the interests of holders of MIPS that the General
Partner determines in its discretion to be necessary or desirable for such
purposes.
Duquesne Capital may not 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 partnership, corporation or other body,
except as described below. Duquesne Light, as General Partner, may,
without the consent of the holders of the MIPS, cause Duquesne Capital to
consolidate, amalgamate, merge with or into, or be replaced by, or convey
or transfer its properties and assets substantially as an entirety to, a
Delaware limited partnership or "other business entity" (as defined in the
Delaware Act but not including any general partnership) organized under the
laws of any state of the United States or the Turks and Caicos Islands,
provided that (i) such successor entity either (x) expressly assumes all of
the obligations of Duquesne Capital under the MIPS or (y) substitutes for
the MIPS other securities having substantially the same terms as the MIPS
(the "Successor Securities") so long as the Successor Securities rank, with
respect to participation in the profits and assets of the successor entity,
at least as high as the MIPS rank, with respect to participation in the
profits and assets of Duquesne Capital, (ii) Duquesne Light expressly
acknowledges such successor entity as the holder of the Debentures relating
to the MIPS, (iii) such merger, consolidation, amalgamation, replacement,
conveyance or transfer does not cause the MIPS to be delisted by any
national securities exchange or other organization on which the MIPS are
then listed unless the MIPS are promptly relisted, or the Successor
Securities are promptly listed, by such exchange or other organization,
(iv) such merger, consolidation, amalgamation, replacement, conveyance or
transfer does not cause the MIPS to be downgraded or the Successor
Securities to be rated lower than the MIPS immediately prior to such
merger, consolidation, amalgamation, replacement, conveyance or transfer by
any "nationally recognized statistical rating organization", as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the
Securities Act, (v) such merger, consolidation, amalgamation, replacement,
conveyance or transfer does not adversely affect the powers, preferences
and other special rights of holders of MIPS in any material respect, and
(vi) prior to such merger, consolidation, amalgamation, replacement,
conveyance or transfer Duquesne Light has received an opinion of nationally
recognized independent counsel to Duquesne Capital experienced in such
matters to the effect that (w) holders of MIPS will not recognize any gain
or loss for Federal income tax purposes as a result of the merger,
consolidation, amalgamation, replacement, conveyance or transfer, (x) such
successor entity will be treated as a partnership for Federal income tax
purposes, (y) following such merger, consolidation, amalgamation,
replacement, conveyance or transfer, Duquesne Light and such successor
entity will be in compliance with the 1940 Act without registering
thereunder as an investment company, and (z) such merger, consolidation,
amalgamation, replacement, conveyance or transfer will not adversely affect
the limited liability of holders of MIPS.
VOTING RIGHTS
Except as provided below and under "Description of the Guarantee--
Amendments and Assignments" and as otherwise required by law and the
Partnership Agreement, the holders of the MIPS will have no voting rights.
If (i) Duquesne Capital fails to pay dividends in full on the MIPS of
any series for any period of 18 consecutive months, (ii) an Event of
Default with respect to the corresponding series of Debentures (as
described under "Description of the Debentures and the Indenture--Events of
Default; Remedies") occurs and is continuing, or (iii) Duquesne Light is in
default on any of its payment or other obligations under the Guarantee (as
described under "Description of the Guarantee--Certain Covenants of
Duquesne Light"), then the holders of the outstanding MIPS of such series,
together with the holders of any other series of Preferred Securities
having the right to vote for the appointment of a special representative
(the "Special Representative") in such event, acting as a single class,
will be entitled, by vote of holders of a majority in aggregate liquidation
preference of all Preferred Securities having the right to vote, to appoint
and authorize a Special Representative to enforce Duquesne Capital's rights
under the corresponding Indenture Securities (as hereinafter defined),
including the corresponding Debentures, and the Indenture against Duquesne
Light, enforce the obligations undertaken by Duquesne Light under the
Guarantee and pay dividends on the MIPS of such series (to the extent
Duquesne Capital has funds legally available for the payment of such
dividends and cash on hand sufficient to permit such payment).
For purposes of determining whether Duquesne Capital has failed to
pay dividends in full for 18 consecutive months, dividends shall be deemed
to remain in arrears, notwithstanding any payments in respect thereof,
until full cumulative dividends have been or contemporaneously are set
aside and paid with respect to all monthly dividend periods terminating on
or prior to the date of payment of such full cumulative dividends. Not
later than 30 days after such right to appoint a Special Representative
arises, the General Partner will convene a general meeting for the above
purpose. If the General Partner fails to convene such meeting within such
30-day period, the holders of 10% in aggregate liquidation preference of
the outstanding MIPS of any series will be entitled to convene such
meeting. The provisions of the Partnership Agreement relating to the
convening and conduct of the general meetings of partners of Duquesne
Capital will apply with respect to any such meeting. Any Special
Representative so appointed shall vacate office immediately if Duquesne
Capital (or Duquesne Light pursuant to the Guarantee) shall have paid in
full all accumulated and unpaid dividends on the MIPS of such series or
such Event of Default or default under the Guarantee, as the case may be,
shall have been cured. Notwithstanding the appointment of any such Special
Representative, Duquesne Light shall retain its rights under the Indenture
to extend the interest payment period as provided under "Description of the
Debentures and the Indenture--Option to Extend Interest Payment Period".
If any proposed amendment to the Partnership Agreement provides for,
or the General Partner otherwise proposes to effect, (x) any action which
would adversely affect the rights, preferences and privileges of the
holders of MIPS of any series, whether by way of amendment to the
Partnership Agreement or otherwise (including, without limitation, the
authorization or issuance of any limited partnership interests of Duquesne
Capital ranking, as to participation in the profits or assets of Duquesne
Capital, senior to the MIPS of such series), or (y) the dissolution,
liquidation or winding up of Duquesne Capital (other than in connection
with a distribution of Debentures and dissolution of Duquesne Capital upon
the occurrence of a Special Event), then holders of outstanding MIPS of
such series will be entitled to vote on such amendment or proposed action
of the General Partner (but not on any other amendment or action) together
as a class with, in the case of an action described in clause (x) above
which would equally adversely affect the rights, preferences or privileges
of holders of any Dividend Parity Securities or any Liquidation Parity
Securities, holders of such Dividend Parity Securities or such Liquidation
Parity Securities, as the case may be, or, in the case of any amendment
described in clause (y) above, holders of all Liquidation Parity
Securities, and such amendment or action shall not be effective except with
the approval of the holders of 66 2/3% in aggregate liquidation preference
of such class; provided, however, that no such approval shall be required
if the dissolution, liquidation or winding up of Duquesne Capital is
proposed or initiated pursuant to the Partnership Agreement or upon the
initiation of proceedings, or after proceedings have been initiated, for
the dissolution, liquidation or winding up of Duquesne Light.
The rights of holders of MIPS of any series will be deemed not to be
adversely affected by the creation or issue of, and no vote will be
required for the creation of, any further limited partnership interests of
Duquesne Capital ranking junior to, or pari passu with, the MIPS of such
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series with regard to participation in the profits or assets of Duquesne
Capital. Holders of MIPS will have no preemptive rights.
The Partnership Agreement provides that the General Partner will not
permit or cause Duquesne Capital to file a voluntary petition in bankruptcy
without the affirmative vote of the holders of 66 2/3% in aggregate
liquidation preference of the outstanding Preferred Securities.
If any action is, by the terms of the Indenture, not permitted to be
taken by Duquesne Capital without the consent of holders of Preferred
Securities or any Special Representative, the General Partner shall not,
without such requisite consent, take any such action.
Any required approval of holders of MIPS of any series may be given at a
separate meeting of such holders convened for such purpose, at a general
meeting of partners of Duquesne Capital or pursuant to written consent.
Duquesne Capital will cause a notice of any meeting at which holders of the
MIPS of such series are entitled to vote, or of any matter upon which
action by written consent of such holders is to be taken, to be mailed to
each holder of record of such MIPS. Each such notice will include a
statement setting forth (i) the date of such meeting or the date by which
such action is to be taken, (ii) a description of any matter on which such
holders are entitled to vote or upon which written consent is sought and
(iii) instructions for the delivery of proxies or consents.
No vote or consent of the holders of the MIPS will be required for
Duquesne Capital to redeem and cancel MIPS in accordance with the
Partnership Agreement.
Notwithstanding that holders of MIPS are entitled to vote or consent
under any of the circumstances described above, the holders of MIPS that
are owned by Duquesne Light or any affiliate of Duquesne Light shall not be
entitled to vote or consent and shall, for the purposes of such vote or
consent, be treated as if they were not outstanding.
BOOK-ENTRY-ONLY ISSUANCE
The Depository Trust Company ("DTC") will initially act as securities
depository for the MIPS. The MIPS will be issued only as fully-registered
securities registered in the name of Cede & Co. (DTC's nominee). DTC and
any other depositary which may replace DTC as depositary for the MIPS are
sometimes referred to herein as the "Depositary." One or more
fully-registered global certificates will be issued for each series,
representing in the aggregate the total number of MIPS for such series, and
will be deposited with DTC.
DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York
Banking Law, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the New York Uniform Commercial Code,
and a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act. DTC holds securities that its participants
("Participants") deposit with DTC. DTC also facilitates the settlement
among Participants of securities transactions, such as transfers and
pledges, in deposited securities through electronic computerized book-entry
changes in Participants' accounts, thereby eliminating the need for
physical movement of securities certificates. Direct Participants ("Direct
Participants") include securities brokers and dealers, banks, trust
companies, clearing corporations, and certain other organizations. DTC is
owned by a number of its Direct Participants and by the New York Stock
Exchange, Inc., the American Stock Exchange, Inc., and the National
Association of Securities Dealers, Inc. Access to the DTC system is also
available to others such as securities brokers and dealers, banks and trust
companies that clear through or maintain a custodial relationship with a
Direct Participant, either directly or indirectly ("Indirect
Participants"). The rules applicable to DTC and its Participants are on
file with the Commission.
Purchases of MIPS under the DTC system must be made by or through Direct
Participants, which will receive a credit for the MIPS on DTC's records.
The ownership interest of each actual purchaser of MIPS ("Beneficial
Owner") is in turn to be recorded on the Direct and Indirect Participants'
records. Beneficial Owners will not receive written confirmation from DTC
of their purchases, but Beneficial Owners are expected to receive written
confirmations providing details of the transactions, as well as periodic
statements of their holdings, from the Direct or Indirect Participants
through which the Beneficial Owners purchased MIPS. Transfers of ownership
interests in the MIPS are to be accomplished by entries made on the books
of Participants acting on behalf of Beneficial Owners. Beneficial Owners
will not receive certificates representing their ownership interests in
MIPS, except in the event that use of the book-entry system for the MIPS is
discontinued.
To facilitate subsequent transfers, all MIPS deposited by
Participants with DTC are registered in the name of Cede & Co. DTC has no
knowledge of the actual Beneficial Owners of the MIPS; DTC's records
reflect only the identity of the Direct Participants to whose accounts such
MIPS are credited, which may or may not be the Beneficial Owners. The
Participants will remain responsible for keeping account of their holdings
on behalf of their customers.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by
Direct Participants and Indirect Participants to Beneficial Owners will be
governed by arrangements among them, subject to any statutory or regulatory
requirements as may be in effect from time to time.
Redemption notices will be sent to Cede & Co. If less than all of the
MIPS of any series are being redeemed, DTC's practice is to determine by
lot the amount of the interest of each Direct Participant in such series to
be redeemed.
Although voting with respect to the MIPS is limited, in those cases
where a vote is required, neither DTC nor Cede & Co. will consent or vote
with respect to MIPS. Under its usual procedures, DTC would mail its
Omnibus Proxy to Duquesne Capital as soon as possible after the record
date. The Omnibus Proxy assigns Cede & Co.'s consenting or voting rights
to those Direct Participants to whose accounts the MIPS are credited on the
record date (identified in a listing attached to the Omnibus Proxy).
Dividend payments on the MIPS will be made to DTC. DTC's practice is to
credit Direct Participants' accounts on the relevant payable date in
accordance with their respective holdings shown on DTC's records unless DTC
has reason to believe that it will not receive payments on such payable
date. Payments by Participants to Beneficial Owners will be governed by
standing instructions and customary practices, as is the case with
securities held for the accounts of customers in bearer form or registered
in "street name," and will be the responsibility of such Participant and
not of DTC, Duquesne Capital or Duquesne Light, subject to any statutory or
regulatory requirements as may be in effect from time to time. Payment of
dividends to DTC is the responsibility of Duquesne Capital, disbursement of
such payments to Direct Participants is the responsibility of DTC, and
disbursement of such payments to the Beneficial Owners is the
responsibility of Direct Participants and Indirect Participants.
DTC may discontinue providing its services as securities depository with
respect to the MIPS at any time by giving reasonable notice to Duquesne
Capital. Under such circumstances, in the event that a successor
securities depository is not obtained, MIPS certificates are required to be
printed and delivered. Additionally, Duquesne Capital (with the consent of
Duquesne Light) may decide to select another Depositary for the MIPS or to
discontinue use of the system of book-entry transfers through DTC (or a
successor Depositary). In the latter event, certificates for the MIPS will
be printed and delivered.
The information in this section concerning DTC and DTC's book-entry
system has been obtained from DTC. Duquesne Capital and Duquesne Light
believe such information to be reliable, but neither Duquesne Capital nor
Duquesne Light takes any responsibility for the accuracy thereof.
None of Duquesne Light, Duquesne Capital any paying agent or any other
agent of Duquesne Light or Duquesne Capital will have any responsibility or
liability for any aspect of the records relating to or payments made on
account of beneficial ownership interests in MIPS or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
REGISTRAR, TRANSFER AGENT AND PAYING AGENT
Duquesne Light will act as registrar, transfer agent and paying agent
for the MIPS.
Registration of transfers of MIPS will be effected without charge by or
on behalf of Duquesne Capital, but upon payment in respect of any tax or
other governmental charges which may be imposed in relation to it, together
with the giving of such indemnity as Duquesne Capital or Duquesne Light may
require.
Neither Duquesne Light nor Duquesne Capital will be required to
register or cause to be registered the transfer of any MIPS which have been
called for redemption.
DESCRIPTION OF THE GUARANTEE
SET FORTH BELOW IS A SUMMARY OF CERTAIN TERMS AND PROVISIONS OF THE
PAYMENT AND GUARANTEE AGREEMENT (THE "GUARANTEE") WHICH WILL BE EXECUTED
AND DELIVERED BY DUQUESNE LIGHT FOR THE BENEFIT OF THE HOLDERS OF ANY
SERIES FROM TIME TO TIME OF THE PREFERRED SECURITIES. THIS SUMMARY DOES
NOT PURPORT TO BE COMPLETE AND IS SUBJECT TO, AND QUALIFIED IN ITS ENTIRETY
BY REFERENCE TO, THE FORM OF GUARANTEE FILED AS AN EXHIBIT TO THE
REGISTRATION STATEMENT OF WHICH THIS PROSPECTUS IS A PART.
GENERAL
Duquesne Light will irrevocably and unconditionally agree, to the extent
set forth herein, to pay in full, to the holders of the Preferred
Securities of each series (including any series of MIPS), the Guarantee
Payments (as defined below), as and when due, regardless of any defense,
right of set-off or counterclaim which Duquesne Capital may have or assert.
As used herein, Guarantee Payments means the following payments, without
duplication, to the extent not paid by Duquesne Capital (the "Guarantee
Payments"): (i) any accumulated and unpaid dividends on the Preferred
Securities of such series, but only to the extent that Duquesne Capital has
(a) funds legally available for the payment of such dividends, as
determined by the General Partner, and (b) cash on hand sufficient to make
such payment; (ii) the Redemption Price payable with respect to Preferred
Securities of such series called for redemption by Duquesne Capital, but
only to the extent that Duquesne Capital has (a) funds legally available
for the payment of such Redemption Price, as determined by the General
Partner, and (b) cash on hand sufficient to make such payment; and (iii)
upon a liquidation of Duquesne Capital, the lesser of (a) the Liquidation
Distribution and (b) the amount of assets of Duquesne Capital legally
available to Duquesne Capital for distribution to holders of Preferred
Securities. Duquesne Light's obligation to make a Guarantee Payment may be
satisfied by direct payment of the required amounts by Duquesne Light to
holders of Preferred Securities or by causing Duquesne Capital to pay such
amounts to such holders.
If Duquesne Light fails to make payments of principal of or interest on
the Debentures, Duquesne Capital will not have sufficient funds to make
corresponding payments in respect of the Redemption Price or Liquidation
Distribution, as the case may be, of, or dividends on, the MIPS. The
Guarantee does not cover payment of amounts in respect of the MIPS to the
extent that Duquesne Capital does not have legally available funds for the
payment thereof and cash on hand sufficient to make such payment. In such
event, a holder of MIPS may enforce certain rights in respect of the
Debentures under the Indenture. See "Description of the Debentures and the
Indenture--Enforcement of Certain Rights by Holders of MIPS".
CERTAIN COVENANTS OF DUQUESNE LIGHT
In the Guarantee, Duquesne Light will covenant that, so long as any
Preferred Securities remain outstanding, Duquesne Light shall not declare
or pay any dividend on, or redeem, purchase, acquire or make a liquidation
payment with respect to, any of its capital stock or make any guarantee
payments with respect to the foregoing (other than payments under the
Guarantee) if at such time Duquesne Light is in default with respect to its
payment or other obligations under the Guarantee or there has occurred and
is continuing a payment default (whether before or after the expiration of
any period of grace) or an Event of Default under the Indenture.
In the Guarantee, Duquesne Light will also covenant that, so long as
any Preferred Securities of any series remain outstanding, it will (i) not
voluntarily (to the extent permitted by law) dissolve, liquidate or wind up
Duquesne Capital; (ii) remain the sole General Partner of Duquesne Capital
and timely perform all of its duties as General Partner of Duquesne Capital
(including the duty to pay dividends on the Preferred Securities), provided
that any permitted successor of Duquesne Light under the Indenture may
succeed to Duquesne Light's duties as General Partner; and (iii) use its
reasonable efforts to cause Duquesne Capital to remain a limited
partnership (or permitted successor under the Partnership Agreement) and
otherwise continue to be treated as a partnership for Federal income tax
purposes.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes which do not adversely affect the
rights of holders of Preferred Securities of any series (in which case no
vote will be required), the Guarantee may be amended only with the prior
approval of the holders of not less than 66 2/3% in aggregate liquidation
preference of the outstanding Preferred Securities of each affected series
(voting together as one class). All guarantees and agreements contained in
the Guarantee will bind the successors, assigns, receivers and trustees of
Duquesne Light and will inure to the benefit of the holders of the
Preferred Securities.
TERMINATION OF THE GUARANTEE
The Guarantee will terminate and be of no further force and effect upon
full payment of the Redemption Price of all Preferred Securities or upon
full payment of the amounts payable upon liquidation of Duquesne Capital.
The Guarantee will continue to be effective or will be reinstated, as the
case may be, if at any time any holder of Preferred Securities must restore
payment of any sums paid under the Preferred Securities or the Guarantee.
STATUS OF THE GUARANTEE
The Guarantee will constitute an unsecured obligation of Duquesne
Light and will rank, like the Debentures and other Indenture Securities,
subordinate in right of payment to all Senior Indebtedness (as hereinafter
defined). The Guarantee provides that each holder of Preferred Securities
by acceptance thereof agrees that (1) amounts payable under the Guarantee
will be subordinate in right of payment to amounts payable upon the Senior
Indebtedness to the same extent that amounts payable under the Indenture
and in respect of Indenture Securities (including the Debentures) are so
subordinated and (2) the subordination provisions of the Indenture
applicable to holders of Indenture Securities will be equally applicable to
it. For a discussion of the subordination provisions relating to the
Debentures and other Indenture Securities, see "Description of the
Debentures and the Indenture--Subordination".
The Guarantee will constitute a guarantee of payment and not of
collection. A holder of Preferred Securities may enforce the Guarantee
directly against Duquesne Light, and Duquesne Light will waive any right or
remedy to require that any action be brought against Duquesne Capital or
any other person or entity before proceeding against Duquesne Light. The
Guarantee will not be discharged except by payment of the Guarantee
Payments in full to the extent not paid by Duquesne Capital and by complete
performance of all obligations under the Guarantee.
GOVERNING LAW
The Guarantee will be governed by and construed and interpreted in
accordance with the laws of the State of New York.
DESCRIPTION OF THE DEBENTURES AND THE INDENTURE
SET FORTH BELOW IS A SUMMARY OF CERTAIN TERMS AND PROVISIONS OF THE
INDENTURE AND THE DEBENTURES TO BE ISSUED THEREUNDER THAT WILL EVIDENCE THE
LOANS TO BE MADE BY DUQUESNE CAPITAL TO DUQUESNE LIGHT OF THE PROCEEDS OF
MIPS AND DUQUESNE LIGHT'S RELATED CAPITAL CONTRIBUTIONS TO DUQUESNE
CAPITAL. THIS SUMMARY DOES NOT PURPORT TO BE COMPLETE AND IS SUBJECT TO,
AND QUALIFIED IN ITS ENTIRETY BY REFERENCE TO, THE DETAILED PROVISIONS OF
THE FORMS OF INDENTURE AND OFFICER'S CERTIFICATE ESTABLISHING THE
DEBENTURES FILED AS EXHIBITS TO THE REGISTRATION STATEMENT OF WHICH THIS
PROSPECTUS IS A PART. UNDER CERTAIN CIRCUMSTANCES FOLLOWING THE OCCURRENCE
OF A SPECIAL EVENT, DEBENTURES MAY BE DISTRIBUTED TO THE HOLDERS OF MIPS
AND DUQUESNE CAPITAL MAY BE DISSOLVED. SEE "DESCRIPTION OF THE MIPS--
SPECIAL EVENT REDEMPTION OR EXCHANGE".
GENERAL
Pursuant to an Indenture (the "Indenture"), between Duquesne Light and
The First National Bank of Chicago, trustee (the "Indenture Trustee"),
Duquesne Light will issue to Duquesne Capital, with respect to each series
of MIPS issued and sold by Duquesne Capital, a series of Monthly Income
Subordinated Debentures (the "Debentures"), in an aggregate principal
amount equal to the aggregate liquidation preference of such series of MIPS
and the related capital contribution by Duquesne Light, bearing interest at
an annual rate equal to the annual dividend rate on such series of MIPS and
having certain other terms which correspond to the terms of such series of
MIPS.
Unless otherwise provided in a Prospectus Supplement, the entire
principal amount of all Debentures will become due and payable, together
with any accrued and unpaid interest thereon, including Additional Interest
(as hereinafter defined), if any, on the date that is the last dividend
payment date prior to the fiftieth anniversary of the issuance of the MIPS
of the first series issued.
The Indenture provides that, in addition to the Debentures,
additional subordinated debentures may be issued thereunder, without
limitation as to the aggregate principal amount, provided that such
securities are issued to evidence loans by Duquesne Capital of the proceeds
of the issuance of Preferred Securities and related capital contributions
by Duquesne Light to Duquesne Capital. The Debentures and all other
subordinated debentures hereafter issued under the Indenture are
collectively referred to as the "Indenture Securities". The Indenture does
not limit the amount of other debt, secured or unsecured, which may be
issued by Duquesne Light. The Indenture Securities will be subordinate and
junior to all Senior Indebtedness of Duquesne Light. As of June 30, 1994,
Duquesne Light had approximately $1.5 billion of Senior Indebtedness
outstanding (exclusive of certain guarantees and other contingent
obligations, but inclusive of capitalized lease obligations and current
installments and short-term notes payable).
The Restated Articles of Duquesne Light provide that Duquesne Light
may not issue any unsecured indebtedness without the consent of the holders
of two-thirds of its outstanding preferred stock, except for certain
limited purposes, if immediately after such issue the total principal
amount of unsecured indebtedness issued or assumed by Duquesne Light then
outstanding would exceed 20% of the aggregate of (i) the total principal
amount of all secured indebtedness then outstanding and (ii) the total of
the capital stock and earned and capital surplus of Duquesne Light plus any
premiums on capital stock of Duquesne Light as then to be stated on its
books plus any premiums on capital stock of Duquesne Light of any class
then carried on its books. At June 30, 1994 Duquesne Light could have
issued approximately $420 million of unsecured indebtedness (such as the
Debentures) without violating this restriction.
MANDATORY REDEMPTION
If Duquesne Capital redeems MIPS of any series in accordance with the
terms thereof, Duquesne Light shall redeem Debentures of the corresponding
series, in a principal amount equal to the aggregate liquidation preference
of the MIPS of such series so redeemed, at a redemption price equal to 100%
of the aggregate principal amount of such Debentures to be redeemed, plus
any accrued but unpaid interest, including Additional Interest, if any, any
such redemption to be made on the date such MIPS are redeemed or on such
earlier date as Duquesne Capital and Duquesne Light shall agree.
OPTIONAL REDEMPTION
Unless otherwise provided in a Prospectus Supplement, Duquesne Light
will have the right to redeem the Debentures of any Series at any time on
or after the fifth anniversary of the last day of the month in which such
Debentures are issued, in whole or in part, at a redemption price equal to
100% of the aggregate principal amount of such Debentures to be redeemed,
plus any accrued but unpaid interest, including Additional Interest, if
any, to the date fixed for redemption, upon not less than 30 nor more than
60 days' notice.
INTEREST
The Debentures relating to MIPS of any series will bear interest at the
annual rate set forth in the Prospectus Supplement for such series,
accruing from the date they are issued until maturity. Such interest will
be payable monthly in arrears on the last day of each calendar month to the
holder of record one Business Day prior to the relevant interest payment
date, subject to the right of Duquesne Light to extend any interest payment
period as described below; provided, however, that if the Debentures of any
series are held neither by Duquesne Capital nor by a securities depositary,
Duquesne Light shall have the right to change such record dates.
The amount of interest payable for any monthly interest payment period
will be computed on the basis of twelve 30-day months and a 360-day year
and, for any period shorter than a full monthly interest period, will be
computed on the basis of the actual number of days elapsed in such period.
In the event that any date on which interest or principal is payable on
the Debentures is not a Business Day, then payment of the amounts payable
on such date will be made on the next succeeding day which is a Business
Day (and without any interest or other payment in respect of any such
delay), 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 such date.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
Duquesne Light shall have the right at any time or times during the
term of the Indenture Securities of any series, including any series of
Debentures, so long as Duquesne Light is not in default in the payment of
interest under any Indenture Securities, to extend interest payment periods
for up to 18 consecutive months, and at, or at any time prior to, the end
of any such extended interest payment period Duquesne Light will pay all
interest then accrued and unpaid (together with interest thereon at the
rate specified for such Indenture Securities to the extent permitted by
applicable law); provided that, during any such extended interest payment
--------
period, Duquesne Light shall not declare or pay any dividend on, or redeem,
purchase, acquire or make a liquidation payment with respect to, any of its
capital stock or make any guarantee payments with respect to the foregoing
(other than payments under the Guarantee); and provided further that any
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such extended interest payment period may only be selected with respect to
any Indenture Securities if an extended interest payment period of
identical length is simultaneously selected for all Indenture Securities.
Prior to the end of any such extended interest payment period of less than
18 consecutive months, Duquesne Light may further extend the interest
payment period; provided that such extended interest payment period,
--------
together with all such further extensions thereof, may not exceed a period
of 18 consecutive months. Following the termination of any extended
interest payment period, if Duquesne Light has paid all accrued and unpaid
interest required by the Indenture Securities for such period, Duquesne
Light shall have the right to again extend interest payment periods for up
to 18 consecutive months as herein described. So long as Duquesne Capital
is the sole holder of Indenture Securities, Duquesne Light shall give
Duquesne Capital notice of its selection of any such extended interest
payment period one Business Day prior to the earlier of (i) the date
dividends on any series of Preferred Securities would otherwise be payable
and (ii) the date Duquesne Capital is required to give notice of the record
or payment date of such dividends to any national securities exchange on
which the Preferred Securities of such series shall be listed or to holders
of the Preferred Securities of such series, but in any event not less than
two Business Days prior to such record date. Duquesne Light will cause
Duquesne Capital to give such notice of Duquesne Light's selection of any
such extended interest payment period to the holders of the Preferred
Securities. If Duquesne Capital is not the sole holder of the Indenture
Securities, Duquesne Light shall give the holders of Indenture Securities
(including the Debentures) notice of its selection of such extended
interest payment period ten Business Days prior to the related interest
payment date.
ADDITIONAL INTEREST
If Duquesne Capital shall be required to pay, with respect to its income
derived from the interest payments on the Indenture 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, Duquesne Light will pay
as interest on such series of Indenture Securities such additional interest
("Additional Interest") as may be necessary in order that the net amounts
received and retained by Duquesne Capital after the payment of such taxes,
duties, assessments or governmental charges shall result in Duquesne
Capital's having such funds as it would have had in the absence of the
payment of such taxes, duties, assessments or governmental charges.
BOOK-ENTRY SYSTEM AND SETTLEMENT IN THE EVENT OF EXCHANGE
In the event that Debentures are to be distributed to the holders of the
MIPS, it is anticipated that such distribution would occur in book-entry
form and that DTC, or any successor Depositary for the MIPS, would act as
depositary for the Debentures and that the depositary arrangements for the
Debentures would be substantially identical to those in effect for the
MIPS. For a description of DTC and the terms of the depositary
arrangements relating to payments, transfers, voting rights, redemption and
other notices and other matters, see "Description of the MIPS--Book-Entry-
Only Issuance".
Except under certain limited circumstances as described under
"Description of the MIPS--Book-Entry-Only Issuance" for delivery of
certificates evidencing beneficial ownership in MIPS, the Debentures would
not be issuable as, or exchangeable for, Debentures in definitive
certificated form. In the event that Debentures were to be issued in
certificated form, such Debentures would be in denominations of $25.00 and
integral multiples thereof and principal and interest on such Debentures
would be payable at, and transfers or exchanges of such Debentures would be
effected at, the office or agency of Duquesne Light designated for such
purposes.
SUBORDINATION
The Indenture will provide (and each holder of MIPS by acceptance
thereof agrees) that each of the Debentures is subordinate and junior in
right of payment to all Senior Indebtedness. The Indenture defines "Senior
Indebtedness" as all obligations (other than non-recourse obligations and
the indebtedness issued under the Indenture) of, or guaranteed or assumed
by, Duquesne Light for borrowed money (including both senior and
subordinated indebtedness for borrowed money (other than the Indenture
Securities)) or for the payment of money relating to any lease which is
capitalized on the consolidated balance sheet of Duquesne Light 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 the Indenture or
subsequently incurred by Duquesne Light; provided that Duquesne Light's
obligations under the Guarantee shall not be deemed to be "Senior
Indebtedness" for purposes of the Indenture (or the Guarantee).
Upon the maturity of any Senior Indebtedness of Duquesne Light by lapse
of time, acceleration or otherwise, all such Senior Indebtedness then due
and owing shall first be paid in full, before any payment is made on
account of, or Duquesne Light can acquire, any Indenture Securities
(including the Debentures).
In the event (a) of any insolvency or bankruptcy proceedings, or any
receivership, liquidation, reorganization or other similar proceedings in
respect of Duquesne Light or a substantial part of its property or of any
proceedings for liquidation, dissolution or other winding up of Duquesne
Light, whether or not involving insolvency or bankruptcy, or (b) 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 the accrued interest on the Indenture Securities of any
series shall have been declared due and payable upon an Event of Default
and such declaration shall not have been rescinded and annulled as provided
under the Indenture, then 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 Indenture Securities are entitled to receive a
payment on account of the principal of or any interest on the indebtedness
evidenced by their Indenture Securities. Any payment or distribution,
whether in cash, securities or other property, which would otherwise (but
for the subordination provisions) be payable or deliverable in respect of
the Indenture Securities shall be paid or delivered directly to the holders
of such Senior Indebtedness (or their representative or trustee) in
accordance with the priorities then existing among such holders until all
Senior Indebtedness of Duquesne Light shall have been paid in full before
any payment or distribution is made to the holders of Indenture Securities.
In the event that notwithstanding such subordination provisions, any
payment or distribution of assets of any kind or character is made on the
Indenture Securities before all Senior Indebtedness is paid in full, the
Indenture Trustee or the holders of Indenture Securities receiving such
payment will be required to pay over such payment or distribution to the
holders of such Senior Indebtedness.
No present or future holder of any Senior Indebtedness of Duquesne Light
shall be prejudiced in the right to enforce subordination of the
indebtedness under the Indenture by any act or failure to act on the part
of Duquesne Light.
Senior Indebtedness will 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. Upon the payment in full of all Senior
Indebtedness, the holders of Indenture Securities shall be subrogated to
all the rights of any holders of such Senior Indebtedness to receive any
further payments or distributions of cash, property or securities of
Duquesne Light applicable to such Senior Indebtedness until the Indenture
Securities shall have been paid in full, and such payments or distributions
of cash, property or securities received by the holders of Indenture
Securities, by reason of such subrogation, which otherwise would be paid or
distributed to the holders of such Senior Indebtedness, shall, as between
Duquesne Light and its creditors other than the holders of Senior
Indebtedness, on the one hand, and the holders of Indenture Securities on
the other, be deemed to be a payment on account of Senior Indebtedness, and
not on account of the Indenture Securities.
CERTAIN COVENANTS OF DUQUESNE LIGHT
The Indenture will provide that, so long as any Preferred Securities
of any series remain outstanding, Duquesne Light will not declare or pay
any dividend on, or redeem, purchase, acquire or make a liquidation payment
with respect to, any of its capital stock or make any guarantee payments
with respect to the foregoing (other than payments under the Guarantee) if
at such time (i) Duquesne Light will be in default with respect to its
payment or other obligations under the Guarantee, (ii) there has occurred
and is continuing a payment default (whether before or after the expiration
of any period of grace) or an Event of Default under the Indenture or (iii)
Duquesne Light has given notice of its election to extend any interest
payment period as provided in the Indenture, and such period, or any
extension thereof, shall be continuing.
The Indenture will also provide that, so long as Preferred Securities
of any series remain outstanding, Duquesne Light will (i) maintain direct
or indirect ownership of all interests in Duquesne Capital other than such
Preferred Securities, (ii) not voluntarily (to the extent permitted by law)
dissolve, liquidate or wind up Duquesne Capital, (iii) remain the sole
General Partner of Duquesne Capital and timely perform in all material
respects all of its duties as the General Partner of Duquesne Capital
(including the duty to pay dividends on the MIPS as described in the fourth
paragraph under "Description of the MIPS--Dividends"), provided that any
permitted successor to Duquesne Light under the Indenture may succeed to
Duquesne Light's duties as General Partner of Duquesne Capital, and (iv)
use reasonable efforts to cause Duquesne Capital to remain a limited
partnership and otherwise continue to be treated as a partnership for
Federal income tax purposes; provided that Duquesne Light may permit
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Duquesne Capital to consolidate or merge with or into another limited
partnership or other permitted successor as described above under
"Description of the MIPS--Merger, Consolidation, Amalgamation, etc. of
Duquesne Capital" so long as Duquesne Light agrees to comply with the
covenants described in clauses (i) through (iv) above with respect to such
successor limited partnership or other permitted successor.
So long as Duquesne Capital holds the Debentures of any series, it
may not waive compliance or waive any default in compliance by Duquesne
Light with any covenant or other term in such Debentures or the Indenture,
or any past default under the Indenture, without the approval or consent of
the holders of at least 66 2/3% in aggregate liquidation preference of the
outstanding Preferred Securities affected.
EVENTS OF DEFAULT; REMEDIES
The following events shall constitute Events of Default with respect to
each series of Indenture Securities (including each series of Debentures)
issued under the Indenture:
(a) Duquesne Light shall fail to pay any interest, including
any Additional Interest, on any Indenture Securities of such series
within 30 days after the same becomes due and payable (whether or not
payment is prohibited by the provisions described above under
"Subordination" or otherwise); provided that a valid extension of the
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interest payment period by Duquesne Light shall not constitute a failure to
pay interest for this purpose;
(b) Duquesne Light shall fail to pay when due any principal of or
premium, if any, on any Indenture Securities of such series, whether at
maturity, upon redemption, by declaration of acceleration or otherwise
(whether or not payment is prohibited by the provisions described above
under "Subordination" or otherwise);
(c) Duquesne Light shall fail to perform or breach any
covenant or warranty in the Indenture (other than a covenant or
warranty a default in the performance of which or breach of which is
dealt with elsewhere under this paragraph) for a period of 60 days
after there has been given to Duquesne Light by the Indenture Trustee,
or to Duquesne Light and the Indenture Trustee by the holders of at
least 25% in principal amount of outstanding Indenture 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", unless the Indenture Trustee, or the Indenture Trustee
and the holders of a principal amount of Indenture Securities of such
series not less than the principal amount of Indenture Securities of
such series the holders of which gave such notice, as the case may
be, agree in writing to an extension of such period prior to its
expiration; provided, however, that the Indenture Trustee, or the
Indenture Trustee and such holders, as the case may be, will be
deemed to have agreed to an extension of such period if corrective
action has been initiated by Duquesne Light within such period and
is being diligently pursued;
(d) Certain events relating to reorganization, bankruptcy or
insolvency of Duquesne Capital or Duquesne Light or the appointment of a
receiver or trustee for its property; or
(e) any other Event of Default specified with respect to Indenture
Securities of such series.
No Event of Default with respect to any series of Indenture Securities
necessarily constitutes an Event of Default with respect to the Indenture
Securities of any other series issued under the Indenture.
If an Event of Default due to the default in payment of principal of
or interest on any series of Indenture Securities or due to the default in
the performance or breach of any other covenant or warranty of Duquesne
Light applicable to the Indenture Securities of such series but not
applicable to all series occurs and is continuing, then either the
Indenture Trustee or the holders of 25% in principal amount of the
outstanding Indenture Securities of such series or a Special Representative
appointed in respect of the Preferred Securities of the corresponding
series as described under "Description of the MIPS--Voting Rights" may
declare the principal of all of the Indenture Securities of such series and
interest accrued thereon to be due and payable immediately (subject to the
subordination provisions of the Indenture). If an Event of Default due to
the default in the performance of any other covenants or agreements in the
Indenture applicable to all outstanding Indenture Securities or due to
certain events of bankruptcy, insolvency or reorganization of Duquesne
Light or Duquesne Capital has occurred and is continuing, either the
Indenture Trustee or the holders of not less than 25% in principal amount
of all outstanding Indenture Securities, considered as one class, or the
Special Representative or Special Representatives appointed in respect of
series of outstanding Indenture Securities representing not less than 25%
in principal amount of all Indenture Securities then outstanding, and not
the holders of the Indenture Securities of any one of such series or the
Special Representative appointed in respect of any one series, may make
such declaration of acceleration (subject to the subordination provisions
of the Indenture).
At any time after the declaration of acceleration with respect to the
Indenture Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained, the Event or Events
of Default giving rise to such declaration of acceleration will, without
further act, be deemed to have been waived, and such declaration and its
consequences will, without further act, be deemed to have been rescinded
and annulled, if (a) Duquesne Light has paid or deposited with the
Indenture Trustee a sum sufficient to pay (1) all overdue interest on all
Indenture Securities of such series; (2) the principal of and premium, if
any, on any Indenture 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 Indenture Securities; (3)
interest upon overdue interest at the rate or rates prescribed therefor in
such Indenture Securities to the extent that payment of such interest is
lawful; and (4) all amounts due to the Indenture Trustee under the
Indenture; and (b) any other Event or Events of Default with respect to the
Indenture Securities of such series, other than the nonpayment of the
principal of the Indenture Securities of such series which has become due
solely by such declaration of acceleration, have been cured or waived as
provided in the Indenture.
If an Event of Default with respect to the Indenture Securities of
any series occurs and is continuing, the holders of a majority in principal
amount of the outstanding Indenture Securities of such series or the
Special Representative appointed in respect of such series may direct the
time, method and place of conducting any proceeding for any remedy
available to the Indenture Trustee or exercising any trust or power
conferred on the Indenture Trustee with respect to the Indenture Securities
of such series; provided, however, that if an Event of Default occurs and
is continuing with respect to more than one series of Indenture Securities,
the holders of a majority in aggregate principal amount of the outstanding
Indenture Securities of all such series, considered as one class, or the
Special Representative or Special Representatives appointed with respect to
series of outstanding Indenture Securities representing 66 2/3% in
aggregate principal amount of the outstanding Indenture Securities of all
such series, will have the right to make such direction, and not the
holders of the Indenture Securities of any one of such series or the
Special Representative of any one of such series; and provided, further,
that such direction will not be in conflict with any rule of law or with
the Indenture. Before proceeding to exercise any right or power under the
Indenture at the direction of such holders or any such Special
Representative, the Indenture Trustee shall be entitled to receive from
such holders or any such Special Representative reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with any such direction.
Duquesne Light will be required to furnish to the Indenture Trustee
annually a statement of an officer of Duquesne Light to the effect that, to
the best of such officer's knowledge, Duquesne Light is not in default in
the performance of the terms of the Indenture or, if such officer has
knowledge that Duquesne Light is in default, specifying such default.
The Indenture provides that no holder of Indenture Securities issued
under the Indenture may institute any proceeding against Duquesne Light
with respect to the Indenture unless (a) the holder has previously given to
the Indenture Trustee written notice of a continuing Event of Default and
unless the holders of not less than 25% in principal amount of the
Indenture Securities of all series of Indenture Securities in respect of
which an Event of Default has occurred and is continuing (considered as one
class) have requested the Indenture Trustee to institute such action and
shall have offered the Indenture Trustee reasonable indemnity, (b) the
Indenture Trustee shall not have instituted such action within 60 days of
such request, and (c) the Indenture Trustee shall not have received
direction inconsistent with such written request by the holders of a
majority in principal amount of the outstanding Indenture Securities of
such affected series (considered as one class). Furthermore, no holder will
be entitled to institute any such action if and to the extent that such
action would disturb or prejudice the rights of other holders of Indenture
Securities. Notwithstanding the foregoing, each holder of an Indenture
Security has a right, which is absolute and unconditional, to receive
payment of the principal of and premium, if any, and interest, subject to
the right of Duquesne Light to extend interest payment periods in
accordance with the Indenture, if any, on such Indenture Security when due
and to institute suit for the enforcement of any such payment, and such
rights may not be impaired without the consent of such holder.
The Indenture requires the Indenture Trustee to give to all holders
of outstanding Indenture Securities of any series notice of any default to
the extent required by the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), unless such default has been cured or waived;
provided that in the case of any default of the character specified above
in clause (c) under "Events of Default", no such notice will be given to
such holders until at least 45 days after the occurrence thereof. The
Trust Indenture Act currently permits the Indenture Trustee to withhold
notices of default (except for certain payment defaults) if the Indenture
Trustee in good faith determines the withholding of such notice to be in
the interests of the holders.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF MIPS
Holders of MIPS will have the rights referred to under "Description
of the MIPS--Voting Rights", including the right under certain
circumstances to appoint a Special Representative, which Special
Representative shall be authorized to exercise Duquesne Capital's right to
accelerate the principal amount of the Debentures and to enforce Duquesne
Capital's other rights under the Debentures and the Indenture.
The Indenture provides that for so long as any Preferred Securities
remain outstanding, the obligations of Duquesne Light thereunder are for
the benefit of the holders of Preferred Securities. The holders, or a
Special Representative appointed by and acting on behalf of the holders,
may enforce Duquesne Light's obligations under the Indenture and the
Debentures directly against Duquesne Light as third party beneficiary of
Duquesne Light's obligations thereunder to the same extent as if such
holders of Preferred Securities held a principal amount of Debentures equal
to the liquidation preference of the Preferred Securities held by such
holders.
MODIFICATION OF INDENTURE
Without the consent of any holders of Indenture Securities, Duquesne
Light and the Indenture Trustee may enter into one or more supplemental
indentures for any of the following purposes: (a) to evidence the
assumption by any successor to Duquesne Light of the covenants of Duquesne
Light in the Indenture and the Indenture Securities; or (b) to add one or
more covenants of Duquesne Light or other provisions for the benefit of the
holders of all or any series of outstanding Indenture Securities or to
surrender any right or power conferred upon Duquesne Light by the
Indenture; or (c) to add any additional Events of Default with respect to
all or any series of outstanding Indenture Securities; or (d) to change or
eliminate any provision of the Indenture or to add any new provision to the
Indenture, provided that if such change, elimination or addition will
adversely affect the interests of the holders of Indenture Securities of
any series in any material respect, such change, elimination or addition
will become effective with respect to such series only when there is no
Indenture Security of such series remaining outstanding under the
Indenture; or (e) to provide collateral security for the Indenture
Securities; or (f) to establish the form or terms of Indenture Securities
of any series as permitted by the Indenture; or (g) to evidence and provide
for the acceptance of appointment of a successor Indenture Trustee under
the Indenture with respect to the Indenture Securities of one or more
series and to add to or change any of the provisions of the Indenture as
shall be necessary to provide for or to facilitate the administration of
the trusts under the Indenture by more than one trustee; or (h) to provide
for the procedures required to permit the utilization of a noncertificated
system of registration for any series of Indenture Securities; or (i) to
change any place where (1) the principal of and premium, if any, and
interest, if any, on any Indenture Securities shall be payable, (2) any
Indenture Securities may be surrendered for registration of transfer or
exchange and (3) notices and demands to or upon Duquesne Light in respect
of Indenture Securities and the Indenture may be served; or (j) to cure any
ambiguity or inconsistency or to make or change any other provisions with
respect to matters and questions arising under the Indenture, provided such
changes or additions shall not adversely affect the interests of the
holders of Indenture Securities of any series in any material respect.
Without limiting the generality of the foregoing, if the Trust Indenture
Act is amended after the date of the original Indenture in such a way as to
require changes to the Indenture or the incorporation therein of additional
provisions or so as to permit changes to, or the elimination of, provisions
which, at the date of the original Indenture or at any time thereafter,
were required by the Trust Indenture Act to be contained in the Indenture,
Duquesne Light and the Indenture Trustee may, without the consent of any
holders, enter into one or more supplemental indentures to effect or
reflect any such amendment.
The consent of the holders of not less than a majority in aggregate
principal amount of the Indenture Securities of all series then outstanding
under the Indenture, considered as one class, is required for the purpose,
pursuant to an indenture or supplemental indenture, of adding any
provisions to, or changing in any manner or eliminating any of the
provisions of, the Indenture or modifying in any manner the rights of the
holders of such series; provided, however, that if less than all of the
series of Indenture Securities outstanding under the Indenture are directly
affected by a supplemental indenture, then the consent only of the holders
of a majority in aggregate principal amount of the outstanding Indenture
Securities of all series so directly affected, considered as one class,
will be required; and provided, further, that no such supplemental
indenture will, without the consent of the holder of each Indenture
Security outstanding under the Indenture of each such series directly
affected thereby, (a) change the stated maturity of, or any installment of
principal of or the rate of interest on or method of calculating the rate
of interest on (or the amount of any installment of interest on), any
Indenture Security, or reduce the principal thereof or redemption premium
thereon, if any, or change the currency in which any Indenture Security is
payable, or impair the right to institute suit for the enforcement of
payment on any Indenture Security, (b) reduce the percentage in principal
amount of the Indenture Securities outstanding under such series (or, if
applicable, in liquidation preference of any series of Preferred
Securities) required to consent to any supplemental indenture or waiver
under the Indenture or to reduce the requirements for quorum and voting or
(c) modify the provisions in the Indenture relating to supplemental
indentures, waivers of certain covenants and waivers of past defaults.
A supplemental indenture which changes or eliminates any covenant or
other provision of the Indenture which has expressly been included solely
for the benefit of one or more particular series of Indenture Securities,
or which modifies the rights of the holders of Indenture Securities of such
series with respect to such covenant or other provision, shall be deemed
not to affect the rights under the Indenture of the holders of any other
Indenture Securities.
Notwithstanding the foregoing, so long as any of the Preferred
Securities remain outstanding, Duquesne Capital shall not agree to any such
amendment that affects the holders of Preferred Securities then
outstanding, without the prior consent of the holders of not less than
66 2/3% in aggregate liquidation preference of all such affected Preferred
Securities outstanding considered as one class (or, in the case of changes
described in (a), (b) or (c) above, 100% in aggregate liquidation
preference of all such affected Preferred Securities then outstanding
considered as one class).
DEFEASANCE
The Indenture Securities of any series, or any portion of the principal
amount thereof, will be deemed to have been paid for purposes of the
Indenture, and the entire indebtedness of Duquesne Light in respect thereof
will be deemed to have been satisfied and discharged, if there shall have
been irrevocably deposited with the Indenture Trustee or any paying agent
other than Duquesne Light, in trust: (a) money in the amount which will be
sufficient, or (b) Government Obligations (as defined below), which do not
contain provisions permitting the redemption or other prepayment thereof at
the option of the issuer thereof, the principal of and the interest on
which when due, without any regard to reinvestment thereof, will provide
monies which, together with the money, if any, deposited with or held by
the Indenture Trustee, will be sufficient, or (c) a combination of (a) and
(b) which will be sufficient, to pay when due the principal of and premium,
if any, and interest, if any, due and to become due on such Indenture
Securities or portions thereof on and prior to the maturity thereof. For
this purpose, Government Obligations include direct obligations of, or
obligations unconditionally guaranteed by, the United States of America
entitled to the benefit of the full faith and credit thereof and
certificates, depositary receipts or other instruments which evidence a
direct ownership interest in such obligations or in any specific interest
or principal payments due in respect thereof.
GOVERNING LAW
The Indenture and Debentures will be governed by and construed in
accordance with the laws of the State of New York, except to the extent
that the laws of any other jurisdiction shall be mandatorily applicable.
MISCELLANEOUS
The Indenture provides that Duquesne Light may consolidate or merge
with, or convey, transfer or lease its properties and assets substantially
as an entirety to any other corporation, provided that such successor
corporation expressly assumes all obligations of Duquesne Light under the
Indenture and certain other conditions are met.
RESIGNATION OF THE INDENTURE TRUSTEE
The Indenture Trustee may resign at any time by giving written notice
thereof to Duquesne Light or may be removed at any time by act of the
holders of a majority in principal amount of Indenture Securities then
outstanding delivered to the Indenture Trustee and Duquesne Light; provided
that so long as any Preferred Securities remain outstanding, Duquesne
Capital shall not enter into any act to remove the Indenture Trustee
without the consent of the holders of 66 2/3% in aggregate liquidation
preference of Preferred Securities outstanding. No resignation or removal
of the Indenture Trustee and no appointment of a successor trustee will
become effective until the acceptance of appointment by a successor trustee
in accordance with the requirements of the Indenture. So long as no Event
of Default or event which, after notice or lapse of time, or both, would
become an Event of Default has occurred and is continuing, if Duquesne
Light has delivered to the Indenture Trustee a resolution of its Board of
Directors appointing a successor trustee and such successor has accepted
such appointment in accordance with the terms of the Indenture, the
Indenture Trustee will be deemed to have resigned and the successor will be
deemed to have been appointed as trustee in accordance with the Indenture.
UNITED STATES INCOME TAXATION
IN GENERAL
This section is a summary of certain Federal income tax considerations
that may be relevant to prospective purchasers of MIPS and represents the
opinion of Reid & Priest, counsel to Duquesne Light and Duquesne Capital,
insofar as it relates to matters of law and legal conclusions. This
section is based upon current provisions of the Internal Revenue Code of
1986, as amended (the "Code"), existing and proposed regulations thereunder
and current administrative rulings and court decisions, all of which are
subject to change. Subsequent changes may cause tax consequences to vary
substantially from the consequences described below.
No attempt has been made in the following discussion to comment on
all Federal income tax matters affecting purchasers of MIPS. Moreover, the
discussion focuses on holders of MIPS who are individual citizens or
residents of the United States and has only limited application to
corporations, estates, trusts or non-resident aliens. Accordingly, each
prospective purchaser of MIPS should consult, and should depend upon, his
or her own tax advisor in analyzing the Federal, state, local and foreign
income tax consequences of the purchase, ownership, or disposition of MIPS.
INCOME FROM MIPS
In the opinion of Reid & Priest, Duquesne Capital will be treated as a
partnership for Federal income tax purposes. Accordingly, each MIPS holder
will be required to include in gross income his or her distributive share
of Duquesne Capital's net income. Any amount so included in a MIPS
holder's gross income will increase his or her tax basis in the MIPS, and
the amount of cash dividends distributed to the MIPS holder will be a non-
taxable reduction in his or her tax basis in the MIPS. The income included
in a MIPS holder's gross income should not exceed dividends received on
such MIPS, except in the limited circumstances described below under
"Potential Extension of Interest Payment Period." No portion of such
income will be eligible for the dividends received deduction.
DISPOSITION OF MIPS
Upon the sale or redemption for cash of MIPS, gain or loss realized will
be recognized by each MIPS holder in an amount equal to the difference
between (i) the amount realized by the MIPS holder for such MIPS, and (ii)
such holder's tax basis in such MIPS. Depending upon the particular
circumstances of a MIPS holder, gain or loss recognized by such holder on
the sale or exchange of MIPS held for more than one (1) year will generally
be taxable as long-term capital gain or loss.
EXCHANGE OF THE MIPS FOR DEBENTURES
Under certain circumstances relating to changes in law, as described
under the caption "Description of the MIPS - Special Event Redemption or
Exchange", Duquesne Capital may distribute the Debentures to MIPS holders
in exchange for the MIPS. Such an exchange will generally be treated as a
non-taxable exchange and will result in each MIPS holder receiving an
aggregate basis in its Debentures equal to such holder's aggregate tax
basis in its MIPS. A MIPS holder's holding period in the Debentures
received in such an exchange will include the period for which the MIPS
were held by such holder, provided the MIPS were held as a capital asset.
If such an exchange occurs following a determination that, due to a
change in law, Duquesne Capital is subject to Federal income tax with
respect to interest received on the Debentures, such exchange will
generally be taxable to the MIPS holder. Gain or loss will be recognized
in amount measured by the difference between the MIPS holder's basis in its
MIPS and the value of the Debentures received in the exchange. In such a
case, the holding period of the MIPS holder for the Debentures will not
include the period for which the MIPS were held.
DUQUESNE CAPITAL INFORMATION RETURNS AND AUDIT PROCEDURES
Duquesne Light, as the General Partner of Duquesne Capital, will furnish
each MIPS holder with a Schedule K-1 for each year setting forth such MIPS
holder's allocable share of income for the prior calendar year. Duquesne
Light is currently required to furnish such Schedule K-1's as soon as
practicable following the end of each year, but in any event prior to March
31.
Any person who holds MIPS as a nominee for another person is required to
furnish to Duquesne Light: (i) the name, address and taxpayer
identification number of the beneficial owner and nominee; (ii) information
as to whether the beneficial owner is (a) a person that is not a United
States person, (b) a foreign government, an international organization or
any wholly-owned agency or instrumentality of the foregoing, or (c) a tax-
exempt entity; (iii) the amount and description of the MIPS held, acquired
or transferred for the beneficial owner; and (iv) certain information
including the dates of acquisitions and transfers, means of acquisitions
and transfers, and acquisition costs for purchases, as well as the amount
of net proceeds from sales. Brokers and financial institutions are
required to furnish additional information, including whether they are
United States persons, and certain information on MIPS that they acquire,
hold, or transfer for their own accounts. A penalty of $50 per failure (up
to a maximum of $100,000 per calendar year) is imposed by the Code for
failure to report such information to Duquesne Light. The nominee is
required to supply the beneficial owners of the MIPS with the information
furnished to Duquesne Light.
POTENTIAL EXTENSION OF INTEREST PAYMENT PERIOD
Under the terms of the Debentures, Duquesne Light will be permitted
to extend from time to time interest payment periods for up to 18
consecutive months. In the event that Duquesne Light exercises this right,
it may not declare or pay dividends on any of its capital stock. Because
the interest payment period is extendable, the interest on the Debentures
will be treated as "original issue discount" ("OID") pursuant to Code
sections 1271 et seq. and the Treasury Regulations promulgated thereunder.
Pursuant thereto, Duquesne Capital will be required to include the interest
on the Debentures in income as it accrues in accordance with a constant
yield method based upon a compounding of interest before actual receipt of
the cash payment representing such interest.
Accrued income includible by Duquesne Capital during an extended
interest payment period pursuant to the OID rules will be allocated, but
not distributed, to MIPS holders of record on the Business Day preceding
the last day of each calendar month. As a result, during an extended
interest payment period holders of MIPS will include interest in gross
income in advance of the receipt of cash. The tax basis of MIPS will be
increased by the amount of any interest that is included in a MIPS holder's
income without receipt of cash, and will be decreased when and if such cash
is subsequently received by such MIPS holder from Duquesne Capital.
However, in the event that interest payable on the Debentures is not
deductible by Duquesne Light for Federal income tax purposes, during an
extended interest payment period holders of the MIPS will not include any
amount in gross income with respect to the MIPS until Duquesne Capital is
required to include such amounts in its income, which should occur at
approximately the same time as the receipt of cash from Duquesne Capital.
UNITED STATES ALIEN HOLDERS
For purposes of this discussion, a "United States Alien Holder" is
any holder of MIPS who is (i) a nonresident alien individual, foreign
corporation, partnership, estate or trust, and (ii) not subject to Federal
income tax on a net income basis in respect of such MIPS.
Under current Federal income tax law:
(i) payments by Duquesne Capital or any of its paying agents to any
United States Alien Holder will not be subject to Federal withholding
tax provided that (a) the beneficial owner of MIPS does not actually or
constructively own ten percent (10%) or more of the total combined
voting power of all classes of stock of Duquesne Light entitled to vote,
(b) the beneficial owner of MIPS is not a controlled foreign corporation
that is related to Duquesne Light through stock ownership, and (c)
either (1) the beneficial owner of MIPS certifies to Duquesne Capital or
its agent, under penalties of perjury, that it is a United States Alien
Holder and provides its name and address, or (2) the holder of MIPS is a
securities clearing organization, bank or other financial institution
that holds customers' securities in the ordinary course of its trade or
business (a "Financial Institution") and such holder certifies to
Duquesne Capital or its agent under penalties of perjury that such
statement has been received from the beneficial owner by it or by a
Financial Institution between it and the beneficial owner and furnishes
Duquesne Capital or its agent with a copy thereof; and
(ii) a United States Alien Holder will generally not be subject to
Federal tax on any gain realized upon the sale or exchange of MIPS
unless such holder is present in the United States for 183 days or more
in the taxable year of the sale and either has a "tax home" in the
United States or certain other requirements are met.
The above paragraphs (i) and (ii) are subject to the following discussion
on backup withholding and assume satisfaction by Duquesne Light of its
withholding tax obligations.
BACKUP WITHHOLDING AND INFORMATION REPORTING
In general, information reporting requirements will apply to payments of
the proceeds of the sale of MIPS within the United States to noncorporate
U.S. MIPS holders, and "backup withholding" at a rate of thirty-one percent
(31%) will apply to such payments if such MIPS holder fails to provide to
Duquesne Capital an accurate taxpayer identification number.
Payments of the proceeds from the sale by a United States Alien Holder
of MIPS made to or through a foreign office or a broker will not be subject
to information reporting or backup withholding. However, if the broker is a
United States person, a controlled foreign corporation for United States
tax purposes, or a foreign person fifty percent (50%) or more of whose
gross income is effectively connected with a United States trade or
business for a specified three (3) year period, information reporting may
apply to such payments. Payments of the proceeds from the sale of MIPS to
or through the United States office of a broker is subject to information
reporting and backup withholding unless the holder or beneficial owner
certifies as to its non-United States status or otherwise establishes an
exemption from information reporting and backup withholding.
PLAN OF DISTRIBUTION
Duquesne Capital may sell MIPS (i) through underwriters, including
Goldman, Sachs & Co., (ii) through dealers, (iii) through agents or (iv)
directly to purchasers. The Prospectus Supplement relating to the MIPS of
any series will set forth the terms of such offering, including the names
of any underwriters, dealers or agents involved in the sale of such MIPS,
the number of MIPS of such series to be purchased by any underwriters,
dealers or agents and any applicable commissions or discounts. The net
estimated proceeds to Duquesne Capital from such series of MIPS will also
be set forth in the Prospectus Supplement.
If underwriters are used in the sale, the MIPS being sold will be
acquired by the underwriters for their own account and may be resold from
time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices
determined at the time of sale. Unless otherwise set forth in the
Prospectus Supplement relating to the MIPS of any series, the obligations
of the underwriters to purchase such MIPS will be subject to certain
conditions precedent and the underwriters will be obliged to purchase all
of such MIPS if any of such MIPS are purchased. Any initial public
offering price and any discounts or concessions allowed or reallowed or
paid to dealers may be changed from time to time.
If dealers are used in the sale, unless otherwise indicated in the
Prospectus Supplement relating to the MIPS of any series, Duquesne Capital
will sell such MIPS to the dealers as principals. The dealers may then
resell such MIPS to the public at varying prices to be determined by such
dealers at the time of resale.
MIPS of any series may also be sold through agents designated by
Duquesne Capital from time to time or directly by Duquesne Capital. Any
agent involved in the offering and sale of any such MIPS will be named, and
any commissions payable by Duquesne Capital to such agent will be set
forth, in the Prospectus Supplement relating to the MIPS of such series.
Unless otherwise indicated in such Prospectus Supplement, any such agent
will act on a reasonable efforts basis for the period of its appointment.
Underwriters, dealers and agents may be entitled under agreements
entered into with Duquesne Light or Duquesne Capital to indemnification by
Duquesne Light or Duquesne Capital against certain civil liabilities,
including liabilities under the Securities Act, or to contribution with
respect to payments which the underwriters, dealers or agents may be
required to make in respect thereof. Underwriters, dealers and agents may
be customers of, engage in transactions with, or perform services for,
Duquesne Light and Duquesne Capital in the ordinary course of business.
Each series of MIPS will be a new issue of securities and will have no
established trading market. Any underwriter to whom MIPS of any series are
sold by Duquesne Capital for public offering and sale may make a market in
such series of MIPS, but such underwriters will not be obligated to do so
and may discontinue any market making at any time without notice. If so
indicated in the accompanying Prospectus Supplement for any series of MIPS,
the MIPS of such series will be listed on a national securities exchange.
No assurance can be given as to the liquidity of, or the trading markets
for, any MIPS.
LEGAL OPINIONS
The validity of the MIPS will be passed upon by Richards, Layton &
Finger as special Delaware counsel to Duquesne Capital. The validity of
the Debentures and the Guarantee will be passed upon on behalf of Duquesne
Light by Richard S. Christner, Esq., Associate General Counsel of Duquesne
Light and Reid & Priest, special counsel to Duquesne Light. The validity
of the MIPS, the Debentures and the Guarantee will be passed upon on behalf
of the Underwriters by Mudge Rose Guthrie Alexander & Ferdon, counsel to
the Underwriters. Mr. Christner may rely on Reid & Priest as to all
matters of New York law, and Reid & Priest and Mudge Rose Guthrie Alexander
& Ferdon may rely on the opinion of Mr. Christner as to all matters of
Pennsylvania law. Mr. Christner, Reid & Priest and Mudge Rose Guthrie
Alexander & Ferdon may rely on the opinion of Richards, Layton & Finger as
to certain matters of Delaware law. Mudge Rose Guthrie Alexander & Ferdon
has from time to time performed legal services for Duquesne Light.
As of June 30, 1994, Mr. Christner owned 1,428 shares of DQE Common
Stock and 171 shares of Duquesne Light Company Plan Preference Stock (which
is exchangeable into DQE Common Stock) under the matching feature of an
employee benefit plan.
EXPERTS
The consolidated financial statements and related financial statement
schedules incorporated in this Prospectus by reference to Duquesne Light's
Annual Report on Form 10-K for the year ended December 31, 1993, have been
audited by Deloitte & Touche, independent auditors, as stated in their
report, which is incorporated herein by reference, and have been so
incorporated in reliance upon such report given upon the authority of such
firm as experts in auditing and accounting.
<PAGE>
===================================== ===================================
NO PERSON HAS BEEN AUTHORIZED TO GIVE
ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE _______ PREFERRED SECURITIES
CONTAINED IN THIS PROSPECTUS
SUPPLEMENT OR THE PROSPECTUS AND, DUQUESNE CAPITAL
IF GIVEN OR MADE, SUCH INFORMATION
OR REPRESENTATIONS MUST NOT BE RELIED % CUMULATIVE
UPON AS HAVING BEEN AUTHORIZED. THIS MONTHLY INCOME PREFERRED
PROSPECTUS SUPPLEMENT AND THE PROSPECTUS SECURITIES, SERIES A
DO NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY ANY (LIQUIDATION PREFERENCE
SECURITIES OTHER THAN THE SECURITIES $25 PER SECURITY)
DESCRIBED IN THIS PROSPECTUS SUPPLEMENT GUARANTEED TO THE EXTENT
AND THE PROSPECTUS OR AN OFFER TO SELL DUQUESNE CAPITAL HAS FUNDS
OR THE SOLICITATION OF AN OFFER TO BUY AS SET FORTH HEREIN BY
SUCH SECURITIES IN ANY CIRCUMSTANCES
IN WHICH SUCH OFFER OR SOLICITATION IS
UNLAWFUL. NEITHER THE DELIVERY OF THIS DUQUESNE LIGHT COMPANY
PROSPECTUS SUPPLEMENT AND THE PROSPECTUS
NOR ANY SALE MADE HEREUNDER SHALL, UNDER
ANY CIRCUMSTANCES, CREATE ANY IMPLICATION
THAT THE INFORMATION CONTAINED HEREIN OR
THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT
TO THE DATE OF SUCH INFORMATION.
-------------
TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT ------------
Page PROSPECTUS SUPPLEMENT
---- ------------
Certain Investment
Considerations . . . . . . . . S-3
Duquesne Light Company . . . . . S-4
Duquesne Capital . . . . . . . . S-4
Use of Proceeds . . . . . . . . S-5
Certain Terms of the Series
A MIPS . . . . . . . . . . . . S-5
Certain Terms of the Series
A Debentures . . . . . . . . . S-6
Underwriting . . . . . . . . . . S-7
Prospectus
Available Information . . . . . . 2 GOLDMAN, SACHS & CO.
Incorporation of Certain
Documents by Reference . . . . . 2 REPRESENTATIVES OF THE UNDERWRITERS
Duquesne Light Company . . . . . 3
Duquesne Capital . . . . . . . . 3
Use of Proceeds . . . . . . . . . 3
Ratio of Earnings to Fixed
Charges and Ratio of Earnings
to Combined Fixed Charges and
Preferred and Preference Stock
Dividend Requirements . . . . . 4
Description of the MIPS . . . . . 4
Description of the Guarantee. . . 14
Description of the Debentures
and the Indenture . . . . . . 16
United States Income Taxation . . 26
Plan of Distribution . . . . . . 28
Legal Opinions . . . . . . . . . 29
Experts . . . . . . . . . . . . . 30
===================================== ===================================
<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. LIST OF EXHIBITS.
Reference is made to the Exhibit Index on page II-5 hereof, such Exhibit
Index being incorporated by such reference in this Item 16.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Duquesne Light
Company has duly caused this Amendment No. 1 to Registration Statement to
be signed on its behalf by the undersigned, thereunto duly authorized, in
the City of Pittsburgh, Commonwealth of Pennsylvania on the 8th day of
July, 1994.
DUQUESNE LIGHT COMPANY
(Registrant)
By /s/ Gary L. Schwass
------------------------------
Gary L. Schwass
Vice President - Finance and
Chief Financial Officer
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, Duquesne
Capital L.P. has duly caused this Amendment No. 1 to Registration Statement
to be signed on its behalf by the undersigned, thereunto duly authorized,
in the City of Pittsburgh, Commonwealth of Pennsylvania on the 8th day of
July, 1994.
DUQUESNE CAPITAL L.P.
(Registrant)
By: DUQUESNE LIGHT COMPANY,
General Partner
By /s/ Gary L. Schwass
------------------------------
Gary L. Schwass
Vice President - Finance and
Chief Financial Officer
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment No. 1 to Registration Statement has been signed below on
behalf of each of the registrants by the following persons in their
capacities as officers or directors, as indicated below, of Duquesne Light
Company, and on the dates so indicated.
Signature Title
--------- -----
* Chairman of the Board, July 8, 1994
------------------------------- President and Chief
Wesley W. von Schack Executive Officer
/s/ Gary L. Schwass Vice President--Finance July 8, 1994
------------------------------- and Principal Financial
Gary L. Schwass Officer
* Controller and Principal July 8, 1994
------------------------------- Accounting Officer
Raymond H. Panza
*John M. Arthur Director July 8, 1994
*Daniel Berg Director July 8, 1994
*Doreen E. Boyce Director July 8, 1994
*Robert P. Bozzone Director July 8, 1994
*Sigo Falk Director July 8, 1994
*W.H. Knoell Director July 8, 1994
*G. Christian Lantzsch Director July 8, 1994
*Robert Mehrabian Director July 8, 1994
*Thomas J. Murrin Director July 8, 1994
*Robert B. Pease Director July 8, 1994
*Eric W. Springer Director July 8, 1994
By /s/ Gary L. Schwass
----------------------------------------
Gary L. Schwass, As Attorney-in-fact
for each of the persons indicated by
by an asterisk
<PAGE>
DUQUESNE LIGHT COMPANY
DUQUESNE CAPITAL L.P.
AMENDMENT NO. 1 TO
REGISTRATION STATEMENT
ON FORM S-3
EXHIBIT INDEX
Exhibit
No. Description and Method of Filing
------- --------------------------------
4.1 Revised Form of Amended and Restated Filed herewith.
Agreement of Limited Partnership of
Duquesne Capital L.P.
4.2 Revised Form of Action of Duquesne Filed herewith.
Light Company as General Partner of
Duquesne Capital L.P., establishing
the terms of the MIPS
4.3 Revised Form of Indenture between Filed herewith.
Duquesne Light Company and The
First National Bank of Chicago
4.4 Revised Form of Officer's Certificate Filed herewith.
establishing the Debentures
4.5 Revised Form of Payment and Guarantee Filed herewith.
Agreement with respect to the
Preferred Securities
12.1 Revised Calculation of Ratio of Filed herewith.
Earnings to Fixed Charges and
Ratio of Earnings to Combined Fixed
Charges and Preferred and Preference
Stock Dividend Requirements
24.1 *Power of Attorney See pages II-5 through
II-7 of Registration
Statement Nos. 33-53563
and 33-53563-01.
---------------------------------
* Previously filed as indicated and incorporated herein by reference.
<PAGE>
EXHIBIT 12.1
DUQUESNE LIGHT COMPANY AND SUBSIDIARY
CALCULATION OF RATIO OF EARNINGS TO FIXED CHARGES
(THOUSANDS OF DOLLARS)
Three Months Year Ended December 31,
Ended --------------------------------------------
March 31,
1994 1993 1992 1991 1990 1989
--------- ---- ---- ---- ---- ----
FIXED CHARGES:
Interest on
long-term
debt $23,398 $102,938 $119,179 $127,606 $135,850 $140,623
Other interest 535 3,517 2,464 2,339 6,148 12,332
Amortization of
debt discount,
premium and
expense-net 1,573 5,541 4,223 3,892 4,039 4,010
Portion of lease
payments
representing
an interest
factor 11,292 45,925 60,721 64,189 64,586 64,854
Total Fixed
Charges $36,798 $157,921 $186,587 $198,026 $210,623 $221,819
------- -------- -------- -------- -------- --------
EARNINGS:
Income from
continuing
operations $35,492 $144,787 $149,768 $143,133 $135,456 $129,437
Income taxes 25,214 75,042 107,999 101,073 84,478 75,151
Fixed charges
as above 36,798 157,921 186,587 198,026 210,623 221,819
------ ------- ------- ------- ------- -------
Total
Earnings $97,504 $377,750 $444,354 $442,232 $430,557 $426,407
------- -------- -------- -------- -------- --------
RATIO OF
EARNINGS TO
FIXED CHARGES 2.65 2.39 2.38 2.23 2.04 1.92
---- ---- ---- ---- ---- ----
DUQUESNE LIGHT COMPANY AND SUBSIDIARY
CALCULATION OF RATIO TO COMBINED FIXED CHARGES
AND PREFERRED AND PREFERENCE STOCK DIVIDEND REQUIREMENTS
(THOUSANDS OF DOLLARS)
Three Months Year Ended December 31,
Ended ----------------------------------------
March 31,
1994 1993 1992 1991 1990 1989
---------- ---- ---- ---- ---- ----
FIXED CHARGES:
Interest on long-
term debt $23,398 $102,938 $119,179 $127,606 $135,850 $140,623
Other interest 535 3,517 2,464 2,339 6,148 12,332
Amortization of
debt discount,
premium and
expense-net 1,573 5,541 4,223 3,892 4,039 4,010
Portion of lease
payments repre-
senting an
interest factor 11,292 45,925 60,721 64,189 64,586 64,854
Preferred and
Preference
Dividends 2,499 14,368 15,908 18,001 22,384 26,397
----- ------ ------ ----- ------ ------
Total Fixed
Charges and
Preferred and
Preference
Dividends $39,297 $172,289 $202,495 $216,027 $233,007 $248,216
------- -------- -------- -------- -------- --------
EARNINGS:
Income from
continuing
operations $35,492 144,787 $149,768 $143,133 $135,456 $129,437
Income taxes 25,214 75,042 107,999 101,073 84,478 75,151
Fixed charges
as above 36,798 157,921 186,587 198,026 210,623 221,819
------ ------- -------- ------- ------- -------
Total
Earnings $97,504 $377,750 $444,354 $442,232 $430,557 $426,407
------- -------- -------- -------- -------- --------
RATIO OF EARNINGS TO
COMBINED FIXED CHARGES
AND PREFERRED AND
PREFERENCE STOCK
DIVIDEND
REQUIREMENTS 2.48 2.19 2.19 2.05 1.85 1.72
----- ----- ---- ---- ---- ----
EXHIBIT 4.1
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
OF DUQUESNE CAPITAL L.P.
This AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF
DUQUESNE CAPITAL L.P. dated ___________, 1994 is entered into by and among
Duquesne Light Company, a Pennsylvania corporation ("Duquesne Light"), as
the General Partner, and ________________ (the "Initial Limited Partner"),
together with the other Persons who become Limited Partners of the
Partnership as provided herein.
WHEREAS, Duquesne Light and the Initial Limited Partner have
heretofore formed a limited partnership pursuant to Section 17-201 of the
Delaware Revised Uniform Limited Partnership Act, 6 Del. C. Section 17-101,
--- -
et seq., as amended from time to time (the "Act"), by filing a Certificate
-- ---
of Limited Partnership with the office of the Secretary of State of the
State of Delaware on April 27, 1994, and entering into an Agreement of
Limited Partnership of Duquesne Light L.P., dated as of April 27, 1994, and
Duquesne Light and the Initial Limited Partner have agreed pursuant to an
Amended and Restated Agreement of Limited Partnership of Duquesne Capital
L.P. dated as of May 9, 1994 to change the name of the Partnership from
Duquesne Light L.P. to Duquesne Capital L.P. (the "Original Limited
Partnership Agreement") and such name change has been reflected by filing
an Amended and Restated Certificate of Limited Partnership with the office
of the Secretary of State of the State of Delaware on May 9, 1994; and
WHEREAS, the Partners desire to continue the Partnership as a
limited partnership under the Act and to amend and restate the Original
Limited Partnership Agreement in its entirety;
NOW, THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto hereby agree as follows:
ARTICLE I
DEFINED TERMS
Unless the context otherwise requires, the terms defined in this
Article I shall, for the purposes of this Agreement, have the meanings
herein specified.
"Act" shall mean the Delaware Revised Uniform Limited Partnership
Act, 6 Del. C. Section 17-101, et seq., as the same may be amended from
--- - ------
time to time, and any successor to such Act.
"Affiliate" shall mean, with respect to a specified Person, any
Person that directly or indirectly controls, is controlled by, or is under
common control with, the specified Person. For purposes of this
definition, the term "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.
"Agreement" shall mean this Amended and Restated Agreement of
Limited Partnership of the Partnership, as amended, supplemented or
restated and in effect from time to time.
"Bankruptcy" shall mean any events specified in
Sections 17-402(a)(4) and (5) of the Act.
"Book-Entry Interest" shall mean a beneficial interest in an LP
Certificate, ownership and transfers of which shall be made through book
entries by the Depository as described in Section 14.4.
"Certificate" shall mean the Certificate of Limited Partnership
and any and all amendments thereto and restatements thereof filed on behalf
of the Partnership with the office of the Secretary of State of the State
of Delaware pursuant to the Act.
"Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time, or any corresponding federal tax statute enacted after
the date of this Agreement. A reference to a specific section (Section) of
the Code refers not only to such specific section but also to any
corresponding provision of any federal tax statute enacted after the date
of this Agreement, as such specific section or corresponding provision is
in effect on the date of application of the provisions of this Agreement
containing such reference.
"Covered Person" shall mean the General Partner, any Affiliate of
the General Partner or any officers, directors, shareholders, partners,
employees, representatives or agents of the General Partner or their
respective Affiliates, or any employee or agent of the Partnership or its
Affiliates.
"Debentures" shall mean the subordinated debentures of Duquesne
Light issued in one or more series under the Indenture and having certain
payment terms that correspond to the terms of the related series of
Preferred Securities.
"Depository" shall mean The Depository Trust Company, New York,
New York, or its successors and assigns and any other securities depository
for the Preferred Securities in accordance with this Agreement.
"Dividends" shall mean the distributions paid or payable to any
Limited Partner who is a Preferred Security Holder pursuant to the terms of
the Preferred Securities held by such Limited Partner.
"Duquesne Light" means Duquesne Light Company, a Pennsylvania
corporation, and any successor thereto permitted under the Indenture.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and any successor to such statute.
"Fiscal Year" shall mean (i) the period commencing upon the
formation of the Partnership and ending on December 31, 1994, (ii) any
subsequent twelve (12) month period commencing on January 1 and ending on
December 31.
"General Partner" shall mean Duquesne Light, in its capacity as
general partner of the Partnership, together with any successor thereto
that becomes a general partner of the Partnership pursuant to the terms of
this Agreement.
"General Partner Interests" shall mean the Interests of the
General Partner in the Partnership.
"Guarantee" shall mean the Payment and Guarantee Agreement of
Duquesne Light dated as of _________, 1994 relating to the Preferred
Securities.
"Guarantor" means Duquesne Light.
"Holder" or "Preferred Security Holder" means a Person in whose
name an LP Certificate is registered on the books and records of the
Partnership; 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 Duquesne
Light or any Affiliate of Duquesne Light.
"Indemnified Person" shall mean each Limited Partner, any
Affiliate of the General Partner or any officers, directors, shareholders,
partners, employees, representatives or agents of the General Partner or of
any Affiliate of the General Partner, or any employee or agent of the
Partnership or its Affiliates.
"Indenture" shall mean the Indenture of Duquesne Light dated as
of ________________, 1994 between Duquesne Light and The First National
Bank of Chicago, as trustee.
"Initial Limited Partner" shall mean _____________.
"Interest" shall mean the entire interest of a Partner in the
Partnership at any particular time, including the right of such Partner to
any and all benefits to which a Partner may be entitled as provided in this
Agreement, together with the obligations of such Partner to comply with all
of the terms and provisions of this Agreement.
"Limited Partners" shall mean any Person who is admitted to the
Partnership as a limited partner of the Partnership in accordance with the
terms of this Agreement, including the Preferred Security Holders, together
with any successors thereto, in each such Person's capacity as a limited
partner of the Partnership.
"LP Certificate" shall mean a certificate substantially in the
form attached hereto as Exhibit A, evidencing the Preferred Securities held
by a Limited Partner.
"Partners" shall mean the General Partner and the Limited
Partners, collectively, and a "Partner" shall mean any one of the Partners.
"Partnership" shall mean the limited partnership heretofore
formed and continued pursuant to this Agreement, and any successor thereto.
"Person" shall mean any individual, corporation, association,
partnership (general or limited), joint venture, trust, estate, limited
liability company, or other legal entity or organization.
"Preferred Securities" shall have the meaning set forth in
Section 10.2 of this Agreement.
"Preferred Security Owner" shall mean, with respect to a Book-
Entry Interest, a Person who is the beneficial owner of such Book-Entry
Interest, as reflected on the books of the Depository, or on the books of a
Person maintaining an account with such Depository (directly as a
participant or as an indirect participant in the Depository, in each case
in accordance with the rules of such Depository).
"Purchase Price" shall mean the amount paid for each Preferred
Security by a Holder of such Preferred Security in the initial offering
thereof.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and any successor to such statute.
"Tax Matters Partner" means the General Partner designated as
such in Section 12.1 hereof.
"Treasury Regulations" means the income tax regulations,
including temporary regulations, promulgated under the Code, as such
regulations may be amended from time to time (including corresponding
provisions of succeeding regulations).
"Underwriting Agreement" means an Underwriting Agreement among
the Partnership, Duquesne Light and the underwriters named therein relating
to the issuance and sale of one or more series of Preferred Securities.
ARTICLE II
CONTINUATION AND TERM
Section 2.1 Formation. The General Partner and the Initial
---------
Limited Partner have previously formed the Partnership as a limited
partnership pursuant to the provisions of the Act and hereby amend and
restate the Original Limited Partnership Agreement in its entirety.
Section 2.2 Continuation.
------------
(a) The Partners hereby agree to continue the Partnership under
and pursuant to the provisions of the Act and agree that the rights, duties
and liabilities of the Partners shall be as provided in the Act, except as
otherwise provided herein.
(b) Upon the execution of this Agreement or a counterpart of
this Agreement, Duquesne Light shall continue as the General Partner and
_________ shall continue as the Initial Limited Partner. Pursuant to
Section 2.2(c) of this Agreement, the Holders of Preferred Securities from
time to time shall be admitted to the Partnership as Limited Partners.
Following the admission of any Holder of Preferred Securities to the
Partnership as a Limited Partner, the Initial Limited Partner shall
withdraw from the Partnership and shall receive the return of her capital
contribution without interest or deduction, and the remaining Partners
hereby agree to continue the business of the Partnership without
dissolution.
(c) Without execution of this Agreement, upon receipt by a
Person of an LP Certificate and payment for the Preferred Security being
acquired by such Person, which shall be deemed to constitute a request by
such Person that the books and records of the Partnership reflect its
admission as a Limited Partner, such Person shall be admitted to the
Partnership as a Limited Partner and shall become bound by this Agreement.
(d) The name and mailing address of each Partner and the amount
contributed by such Partner to the capital of the Partnership shall be
listed on the books and records of the Partnership. The General Partner
shall be required to update the books and records from time to time as
necessary to accurately reflect the information therein.
(e) The General Partner shall execute, deliver and file any and
all amendments to and restatements of the Certificate.
Section 2.3 Name. The name of the Partnership heretofore formed
----
and continued hereby is Duquesne Capital L.P., unless and until the name of
the Partnership is changed by the General Partner, in its sole discretion,
and an appropriate amendment to the Certificate is filed as required by the
Act.
Section 2.4 Duration. The Partnership commenced on the date the
--------
Certificate was filed in the office of the Secretary of State of the State
of Delaware and shall continue until December 31, 204[4/5] unless sooner
dissolved before such date in accordance with the provisions of this
Agreement.
Section 2.5 Registered Agent and Office. The Partnership's
---------------------------
registered agent and office in the State of Delaware is The Corporation
Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington,
New Castle County, Delaware 19801. At any time, the General Partner may
designate another registered agent and/or registered office.
Section 2.6 Principal Place of Business. The principal place of
---------------------------
business of the Partnership shall be c/o Duquesne Light Company, One Oxford
Centre, 301 Grant Street, Pittsburgh, Pennsylvania 15279. The General
Partner may change the location of the Partnership's principal place of
business, in its sole and absolute discretion, to be the same as the
location of the General Partner's principal place of business.
Section 2.7 Statutory Compliance. The General Partner shall
--------------------
execute and file on behalf and at the expense of the Partnership all
appropriate certificates required by law to be filed in connection with the
formation and existence of the Partnership, and the General Partner shall
execute and so file such other documents, applications and instruments as
it may be deemed necessary or appropriate with respect to the formation of
and the conduct of business by the Partnership, including, without
limitation, the conduct of business, if any, of the Partnership in
Pennsylvania.
ARTICLE III
PURPOSE AND POWERS OF THE PARTNERSHIP
Section 3.1 Purpose. The sole purpose of the Partnership is to
-------
issue interests in the Partnership, including, without limitation, General
Partner Interests and Preferred Securities, and to loan the proceeds
thereof to Duquesne Light in return for Debentures of Duquesne Light, and
to engage in any and all activities necessary, advisable or incidental
thereto.
Section 3.2 Powers of the Partnership.
-------------------------
(a) The Partnership shall have the power and authority to take
any and all actions necessary, appropriate, proper, advisable, incidental
or convenient to or for the furtherance of the purpose set forth in Section
3.1., including all of the powers that may be exercised by the General
Partner on behalf of the Partnership pursuant to this Agreement.
(b) The Partnership, and the General Partner on behalf of the
Partnership, may enter into and execute, deliver, acknowledge and perform
one or more Underwriting Agreements, registration statements, applications
and filings to list Preferred Securities on one or more national securities
exchanges or qualify the Preferred Securities for sale in various
jurisdictions, and any other contracts, applications, certificates or
agreements contemplated thereby or specifically described therein, and make
loans to Duquesne Light in return for Debentures of Duquesne Light, all
without any further act, vote or approval of any Partner notwithstanding
any other provision of this Agreement, the Act or other applicable law.
The General Partner is hereby authorized to enter into and perform on
behalf of the Partnership all such contracts, applications, filings,
certificates and agreements, but such authorization shall not be deemed a
restriction on the power of the General Partner to enter into other
documents on behalf of the Partnership to the extent specifically provided
for in this Agreement.
Section 3.3 Limitations on Partnership Powers. Notwithstanding
---------------------------------
the foregoing provisions of Section 3.2, neither the Partnership nor the
General Partner on behalf of the Partnership shall have the power or
authority to (a) borrow money or to become liable for the borrowings of any
third party or (b) except as expressly provided in Section 3.1, to engage
in any financial or other trade or business. The Partnership shall not do
business in any jurisdiction other than Delaware or Pennsylvania.
ARTICLE IV
CAPITAL CONTRIBUTIONS, SECURITIES
AND CAPITAL ACCOUNTS
Section 4.1 Capital Contributions.
---------------------
(a) The General Partner has contributed the amount of
$__________ to the capital of the Partnership and shall make such further
contributions as are necessary to satisfy its obligations under Section
6.4.
(b) The Initial Limited Partner has contributed the amount of $1
to the capital of the Partnership, which amount shall be returned to the
Initial Limited Partner upon her withdrawal from the Partnership.
(c) Each Limited Partner has contributed to the capital of the
Partnership the amount of the Purchase Price for the Preferred Securities
held by it. No Limited Partner shall be required to make any additional
capital contribution to the Partnership in respect of the Preferred
Securities held by it.
Section 4.2 Securities.
----------
(a) The Preferred Securities held by a Preferred Security Holder
shall be registered in its name on the books and records of the
Partnership. A Preferred Security Holder's Interests shall be represented
by the Preferred Securities so registered in its name. Each Limited
Partner and Holder of Preferred Securities hereby agrees that its Interests
and any Preferred Securities held by it shall for all purposes be personal
property. No Limited Partner or Holder of Preferred Securities shall have
any interest in specific Partnership property.
(b) The General Partner Interests shall be set forth on the
books and records of the Partnership. The General Partner hereby agrees
that the General Partner Interests shall for all purposes be personal
property. The General Partner shall have no interest in specific
Partnership property.
Section 4.3 Capital Accounts. An individual capital account (a
----------------
"Capital Account") shall be established and maintained for each Partner
which shall be credited with the capital contributions made and the profits
allocated to the Partner (or predecessor in interest) and debited by the
distributions made and losses allocated to the Partner (or predecessor
thereof). Any syndication expenses incurred by the Partnership shall be
allocated exclusively to the Capital Account of the General Partner. All
provisions of this Agreement relating to the maintenance of Capital
Accounts are intended to comply with the Treasury Regulations promulgated
under Code Section 704(b), and shall be interpreted and applied in a manner
consistent with such Treasury Regulations.
ARTICLE V
PARTNERS
Section 5.1 Powers of Partners. The Partners shall have the
------------------
power to exercise any and all rights or powers granted to the Partners
pursuant to the express terms of this Agreement.
Section 5.2 Partition. Each Partner waives any and all rights
---------
that it may have to maintain an action for partition of the Partnership's
property.
Section 5.3 Withdrawal. A Partner (other than the Initial
----------
Limited Partner) may not withdraw from the Partnership prior to the
dissolution and winding up of the Partnership except upon the assignment of
its Interests (including any redemption, repurchase or other acquisition by
the Partnership or Duquesne Light, as the case may be), in accordance with
the provisions of this Agreement. A withdrawing Partner shall not be
entitled to receive any distribution and shall not otherwise be entitled to
receive the fair value of its Interests except as otherwise expressly
provided in this Agreement.
ARTICLE VI
MANAGEMENT
Section 6.1 Management of the Partnership. The General Partner
-----------------------------
shall have full, exclusive and complete discretion to manage and control
the business and affairs of the Partnership, to make all decisions
affecting the business and affairs of the Partnership and to take all such
actions as it deems necessary, appropriate or convenient to accomplish the
purpose of the Partnership as set forth herein.
Section 6.2 Expenses. The General Partner shall pay for all,
--------
and the Partnership shall not be obligated to pay, directly or indirectly,
any, of the costs and expenses of the Partnership (including, without
limitation, costs and expenses relating to the organization of, and
offering of limited partner interests in, the Partnership and costs and
expenses relating to the operation of the Partnership, including without
limitation, costs and expenses of accountants, attorneys, statistical or
bookkeeping services and computing or accounting equipment, any paying
agents, registrars, transfer agents, duplicating, travel and telephone).
Section 6.3 Powers of the General Partner. The General Partner
-----------------------------
shall have the right, power and authority in the management of the business
and affairs of the Partnership to do or cause to be done any and all acts
deemed by the General Partner to be necessary, appropriate or convenient to
effectuate the business, purposes and objectives of the Partnership.
Without limiting the generality of the foregoing, the General Partner shall
have the power and authority without any further act, vote or approval of
any Partner to:
(a) issue Interests, including the General Partner Interests,
and the Preferred Securities in accordance with this Agreement;
(b) act as registrar and transfer agent for the Preferred
Securities;
(c) establish a record date with respect to all actions to be
taken hereunder that require a record date be established, including with
respect to Dividends and voting rights and pay Dividends and make all other
required payments and distributions on General Partner Interests and
Preferred Securities as the Partnership's paying agent;
(d) bring and defend on behalf of the Partnership actions and
proceedings at law or in equity before any court or governmental,
administrative or other regulatory agency, body or commission or otherwise;
(e) employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors and
consultants and pay reasonable compensation for such services; and
(f) execute all documents or instruments, perform all duties and
powers and do all things for and on behalf of the Partnership in all
matters necessary or desirable or incidental to the foregoing.
The expression of any power or authority of the General Partner
in this Agreement shall not in any way limit or exclude any other power or
authority which is not specifically or expressly set forth in this
Agreement.
Notwithstanding the foregoing, the General Partner shall not have
the power to permit or cause the Partnership to file a voluntary petition
in bankruptcy without the affirmative vote of the Holders of 66-2/3% in
aggregate liquidation preference of the outstanding Preferred Securities.
Section 6.4 Ownership by the General Partner. The capital
--------------------------------
contributions made by the General Partner to the Partnership shall be at
least equal to 1% of the total contributions made by all Partners to the
Partnership, and except as otherwise provided in this Agreement, at all
times at least 1% of all income, gain, loss, deduction and credit of the
Partnership shall be allocated to the General Partner.
Section 6.5 No Management by the Limited Partners. Except as
-------------------------------------
otherwise expressly provided herein, no Limited Partner, in its capacity as
such, shall take part in the day-to-day management, operation or control of
the business and affairs of the Partnership. The Limited Partners shall
not be agents of the Partnership and shall not have any right, power or
authority to transact any business in the name of the Partnership or to act
for or on behalf of or to bind the Partnership.
Section 6.6 Limitation of Liability. Except as otherwise
-----------------------
expressly required by law, a Limited Partner, in its capacity as such,
shall have no liability in excess of (a) the amount of its capital
contributions, (b) its share of any assets and undistributed profits of the
Partnership, and (c) the amount of any distributions wrongfully distributed
to it. The Limited Partners and the Initial Limited Partner shall have no
liability under this Agreement except as expressly provided in this
Agreement or the Act.
ARTICLE VII
AMENDMENTS AND MEETINGS
Section 7.1 Amendments. Except as otherwise provided in this
----------
Agreement or by any applicable terms of any Action (as hereinafter defined)
establishing a series of Preferred Securities, this Agreement may be
amended by, and only by, a written instrument executed by the General
Partner; PROVIDED, HOWEVER, that (i) no amendment shall be made, and any
such purported amendment shall be void and ineffective, to the extent the
result thereof would be to cause the Partnership to be treated as anything
other than a partnership for purposes of United States income taxation and
(ii) any amendment which would adversely affect the powers, preferences or
special rights of any series of Preferred Securities may be effected only
as permitted by the terms of such series of Preferred Securities.
Section 7.2 Meetings of the Partners.
------------------------
(a) Meetings of the Partners may be called at any time by the
General Partner or as provided in any Action establishing a series of
Preferred Securities. Except to the extent otherwise provided in any such
Action, the following provisions shall apply to meetings of Partners.
(b) Notice of any such meeting shall be given to all Partners
not less than thirty (30) business days nor more than sixty (60) days prior
to the date of such meeting. Partners may vote in person or by proxy at
such meeting. Whenever a vote, consent or approval of Partners is
permitted or required under this Agreement, such vote, consent or approval
may be given at a meeting of Partners or by written consent.
(c) Each Partner may authorize any Person to act for it by proxy
on all matters in which a Partner is entitled to participate, including
waiving notice of any meeting, or voting or participating at a meeting.
Every proxy must be signed by the Partner or its attorney-in-fact. No
proxy shall be valid after the expiration of eleven (11) months from the
date thereof unless otherwise provided in the proxy. Every proxy shall be
revocable at the pleasure of the Partner executing it.
(d) Each meeting of Partners shall be conducted by the General
Partner or by such other Person as the General Partner may designate.
(e) The General Partner, in its sole discretion, shall establish
all other provisions relating to meetings of Partners, including notice of
the time, place or purpose of any meeting at which any matter is to be
voted on by any Partners, waiver of any such notice, action by consent
without a meeting, the establishment of a record date, quorum requirements,
voting in person or by proxy or any other matter with respect to the
exercise of any such right to vote; provided however, that unless the
General Partner has established a lower percentage, a majority of the
Partners entitled to vote thereat shall constitute a quorum at all meetings
of the Partners.
ARTICLE VIII
ALLOCATIONS
Section 8.1 Profits. Each fiscal period, the net profits of the
-------
Partnership will be allocated (i) first, to the Preferred Security Holders,
in proportion to the number of Preferred Securities held by each such
Holder, in an amount equal to the excess of (a) the Dividends accrued on
the Preferred Securities since their date of issuance through and including
the close of the current fiscal period (whether or not paid) over (b) the
amount of profits allocated to the Preferred Security Holders pursuant to
this Section 8.1(i) in all prior fiscal periods and (ii) thereafter, to the
General Partner.
Section 8.2 Losses. Except in connection with a dissolution and
------
liquidation of the Partnership, the net losses of the Partnership shall be
allocated each year to the General Partner. Upon a dissolution and
liquidation of the Partnership, net losses shall be allocated to each
Preferred Security Holder in an amount equal to the excess of (a) such
Preferred Security Holder's Capital Account over (b) such Preferred
Security Holder's Liquidation Distribution (as defined with respect to each
Preferred Security in the Action establishing such Preferred Security),
with any remaining net losses being allocated to the General Partner.
Section 8.3 Allocation Rules.
----------------
(a) For purposes of determining the profits, losses or any other
items allocable to any period, profits, losses and any such other items
shall be determined on a daily, monthly or other basis, as determined by
the General Partner using any method that is permissible under Section 706
of the Code and the Treasury Regulations thereunder.
(b) The Partners are aware of the income tax consequences of the
allocations made by this Article VIII and hereby agree to be bound by the
provisions of this Article VIII in reporting their shares of Partnership
income and loss for income tax purposes.
ARTICLE IX
DIVIDENDS
Section 9.1 Dividends. Limited Partners shall receive periodic
---------
Dividends, if any, redemption payments and Liquidation Distributions in
accordance with the applicable terms of the Preferred Securities. Subject
to the rights of the Preferred Securities, all remaining cash shall be
distributed to the General Partner at such time as the General Partner
shall determine.
Section 9.2 Limitations on Distributions. Notwithstanding any
----------------------------
provision to the contrary contained in this Agreement, the Partnership
shall not make a distribution (including a Dividend) to any Partner on
account of its interest in the Partnership if such distribution (including
a Dividend) would violate Section 17-607 of the Act or other applicable
law.
Section 9.3 Withholding. The Partnership shall comply with all
-----------
withholding requirements under federal, state and local law. The
Partnership shall request, and the Partners shall provide to the
Partnership, such forms or certificates as are necessary to establish an
exemption from withholding with respect to each Partner, and any
representations and forms as shall reasonably be requested by the
Partnership to assist it in determining the extent of, and in fulfilling,
its withholding obligations. The Partnership shall file required forms
with applicable jurisdictions and, unless an exemption from withholding is
properly established by a Partner, shall remit amounts withheld with
respect to the Partners to applicable jurisdictions. To the extent that
the Partnership is required to withhold and pay over any amounts to any
authority with respect to distributions or allocations to any Partner, the
amount withheld shall be deemed to be a distribution in the amount of the
withholding to the Partner. In the event of any claimed overwitholding,
Partners shall be limited to an action against the applicable jurisdiction
If the amount withheld was not withheld from actual distributions, the
Partnership may reduce subsequent distributions by the amount of such
withholding.
ARTICLE X
THE GENERAL PARTNER INTERESTS AND PREFERRED SECURITIES
Section 10.1 Interests of the Partners.
-------------------------
(a) Duquesne Light shall be the sole general partner of the
Partnership and shall hold all of the General Partner Interests of the
Partnership.
(b) The aggregate number of Preferred Securities which the
Partnership shall have authority to issue is unlimited.
Section 10.2 Preferred Securities. (a) The General Partner on
--------------------
behalf of the Partnership is authorized to issue limited partner interests
(the "Preferred Securities"), in one or more series, having such
designations, rights, privileges, restrictions, preferences and other terms
and provisions as may from time to time be established in a written action
or actions (each, an "Action") of the General Partner providing for issue
of such series. In connection with the foregoing, the General Partner is
expressly authorized, prior to issuance, to set forth in an Action or
Actions providing for the issue of such series, the following:
(i) the distinctive designation of such series which shall
distinguish it from other series;
(ii) the number of Preferred Securities included in such
series;
(iii) the annual Dividend rate (or method of determining such
rate) for Preferred Securities of such series and the date or dates
upon which such Dividends shall be payable;
(iv) whether Dividends on the Preferred Securities of such
series shall be cumulative, and, in the case of Preferred Securities
of any series having cumulative Dividend rights, the date or dates or
method of determining the date or dates from which Dividends on the
Preferred Securities of such series shall be cumulative;
(v) the amount or amounts which shall be paid out of the
assets of the Partnership to the Holders of the Preferred Securities
of such series upon voluntary or involuntary dissolution, liquidation
or winding up of the Partnership;
(vi) the price or prices at which, the period or periods
within which and the terms and conditions upon which the Preferred
Securities of such series may be redeemed or purchased, in whole or in
part, at the option of the Partnership;
(vii) the obligation, if any, of the Partnership to purchase or
redeem Preferred Securities of such series pursuant to a sinking fund
or otherwise and the price or prices at which, the period or periods
within which and the terms and conditions upon which the Preferred
Securities of such series shall be redeemed, in whole or in part,
pursuant to such obligation;
(viii) the period or periods within which and the terms and
conditions, if any, including the price or prices or the rate or rates
of conversion or exchange and the terms and conditions of any
adjustments thereof, upon which the Preferred Securities of such
series shall be convertible or exchangeable at the option of the
Preferred Security Holder, the Partnership or Duquesne Light into any
other Interests or securities or other property or cash or into any
other series of Preferred Securities;
(ix) the voting rights, if any, of the Preferred Securities of
such series in addition to those required by law, including the number
of votes per Preferred Security and any requirement for the approval
by the Holders of Preferred Securities, or of the Preferred Securities
of one or more series, or of both, as a condition to specified Action
or amendments to this Agreement;
(x) the ranking of the Preferred Securities of the series as
compared with Preferred Securities of other series in respect of the
right to receive Dividends and the right to receive payments out of
the assets of the Partnership upon voluntary or involuntary
dissolution, winding up or termination of the Partnership;
(xi) the nature and terms of the Debentures and any other
backup undertakings of Duquesne Light and/or another subsidiary of
Duquesne Light to be provided to Holders of the Preferred Securities
of such series; and
(xii) any other relative rights, powers and duties of the
Preferred Securities of the series not inconsistent with this
Agreement or with applicable law;
provided that the proceeds of the issuance of each such series of Preferred
Securities, together with the proceeds of any related capital contribution
of the General Partner, shall be lent to Duquesne Light in return for a
concurrently issued series of Debentures in aggregate principal amount
equal to the aggregate liquidation preference of the Preferred Securities
of such series and the related capital contribution, bearing interest at an
annual rate equal to the annual Dividend rate on such Preferred Securities
payable at such times as the Dividends on such Preferred Securities, and
having certain redemption provisions which correspond to the redemption
provisions for such Preferred Securities.
(b) In connection with the foregoing and without limiting the
generality thereof, the General Partner is hereby expressly authorized,
without the vote or approval of any Partner or Holder of Preferred
Securities, to take any Action to create under the provisions of this
Agreement a series of Preferred Securities that was not previously
outstanding, including a series ranking junior to other series of Preferred
Securities in respect of the right to receive Dividends and the right to
receive payments out of assets of the Partnership upon voluntary or
involuntary dissolution, liquidation or winding up of the Partnership.
Without the vote or approval of any Partner or Holder of Preferred
Securities, the General Partner may execute, swear to, acknowledge,
deliver, file and record whatever documents may be required in connection
with the issue from time to time of Preferred Securities in one or more
series as shall be necessary, convenient or desirable to reflect the issue
of such series. The General Partner shall do all things it deems to be
appropriate or necessary to comply with the Act and is authorized and
directed to do all things it deems to be necessary or permissible in
connection with any future issuance, including compliance with any statute,
rule, regulation or guideline of any federal, state or other governmental
agency or any securities exchange.
(c) Any Action or Actions taken by the General Partner pursuant
to the provisions of this Section 10.2 shall be deemed an amendment and
supplement to and part of this Agreement.
(d) All Preferred Securities shall rank senior to the General
Partner Interests in respect of the right to receive Dividends or other
property distributions and the right to receive payments out of the assets
of the Partnership upon voluntary or involuntary dissolution, liquidation
or winding up of the Partnership. All Preferred Securities redeemed,
purchased or otherwise acquired by the Partnership (including Preferred
Securities surrendered for conversion or exchange) shall be cancelled and
thereupon restored to the status of authorized but unissued Preferred
Securities undesignated as to series.
(e) No Holder of Preferred Securities shall be entitled as a
matter of right to subscribe for or purchase, or have any preemptive right
with respect to, any part of any new series or additional issue of an
existing series of Preferred Securities, or of interests or securities
convertible into any Preferred Securities, whether now or hereafter
authorized and whether issued for cash or other consideration or by way of
Dividend or distribution.
(f) Except as otherwise provided in this Agreement or by the
General Partner in accordance with Section 10.2(a) above in respect of any
series of Preferred Securities and as otherwise required by law, all
management of the Partnership shall be vested exclusively in the General
Partner.
(g) Any Person acquiring Preferred Securities shall be admitted
to the Partnership as a Limited Partner upon compliance with Section 2.2.
(h) If any action is, by the terms of the Indenture, not
permitted to be taken by the Partnership without the consent of holders of
Preferred Securities or any representative appointed with respect to any
series of Preferred Securities, the General Partner shall not, without such
requisite consent, take any such action.
(i) The General Partner shall notify holders of Preferred
Securities of each series of any notice of default received from the
trustee under the Indenture with respect to the related series of
Debentures.
ARTICLE XI
BOOKS AND RECORDS
Section 11.1 Books, Records and Financial Statements.
---------------------------------------
(a) At all times during the continuance of the Partnership, the
Partnership shall maintain, at its principal place of business, separate
books of account for the Partnership that shall show a true and accurate
record of all costs and expenses incurred, all charges made, all credits
made and received and all income derived in connection with the operation
of the Partnership's business in accordance with generally accepted
accounting principles consistently applied, and, to the extent inconsistent
therewith, in accordance with this Agreement. Such books of account,
together with a copy of this Agreement and a certified copy of the
Certificate, shall at all times be maintained at the principal place of
business of the Partnership and shall be open to inspection and examination
at reasonable times by each Limited Partner or its duly authorized
representative for any purpose reasonably related to such Limited Partner's
interest in the Partnership.
(b) Notwithstanding any other provision of this Agreement, the
General Partner may, to the maximum extent permitted by applicable law,
keep confidential from the Limited Partners any information the disclosure
of which the General Partner reasonably believes is not in the best
interests of the Partnership or is adverse to the interests of the
Partnership or which the Partnership or the General Partner is required by
law or by an agreement with any Person to keep confidential.
(c) The General Partner shall prepare and maintain, or cause to
be prepared and maintained, the books of account of the Partnership and
within three (3) months after the close of each Fiscal Year the General
Partner shall transmit to each Partner a statement indicating such
Partner's share of each item of Partnership income, gain, loss, deduction
or credit for such Fiscal Year for Federal income tax purposes.
Section 11.2 Accounting Method. For both financial and tax
-----------------
reporting purposes and for purposes of determining profits and losses, the
books and records of the Partnership shall be kept on the accrual method of
accounting applied in a consistent manner and shall reflect all Partnership
transactions and be appropriate and adequate for the Partnership's
business.
ARTICLE XII
TAX MATTERS
Section 12.1 Tax Matters Partner. The General Partner is hereby
-------------------
designated as "Tax Matters Partner" of the Partnership for purposes of
Section 6231(a)(7) of the Code and shall have the power to manage and
control, on behalf of the Partnership, any administrative proceeding at the
Partnership level with the Internal Revenue Service relating to the
determination of any item of Partnership income, gain, loss, deduction or
credit for Federal income tax purposes.
Section 12.2 No Right to Make Section 754 Election. The General
-------------------------------------
Partner shall not make an election in accordance with Section 754 of the
Code.
Section 12.3 Taxation as Partnership. The General Partner and
-----------------------
the Preferred Security Holders acknowledge that they intend, for Federal
income tax purposes, that the Partnership shall be treated as a partnership
and that the General Partner and the Holders of Preferred Securities shall
be treated as Partners of such Partnership for such purposes.
ARTICLE XIII
EXCULPATION AND INDEMNIFICATION
Section 13.1 Exculpation.
-----------
(a) No Covered Person shall be liable to the Partnership or any
Indemnified Person for any loss, damage or claim incurred by reason of any
act or omission performed or omitted by such Covered Person in good faith
on behalf of the Partnership and in a manner reasonably believed to be
within the scope of authority conferred on such Covered Person by this
Agreement, except that a Covered Person shall be liable for any such loss,
damage or claim incurred by reason of such Covered Person's gross
negligence, bad faith, recklessness or willful misconduct.
(b) Each Covered Person shall be fully protected in relying in
good faith upon the records of the Partnership and upon such information,
opinions, reports or statements presented to the Partnership by any Person
as to matters such Covered Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Partnership, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses, or any other facts pertinent to the existence
and amount of assets from which distributions to Partners might properly be
paid.
Section 13.2 Duties.
------
(a) To the extent that, at law or in equity, a Covered Person
has duties (including fiduciary duties) and liabilities relating thereto to
the Partnership or to any Indemnified Person, such Covered Person acting
under this Agreement shall not be liable to the Partnership or to any other
Indemnified Person for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they
restrict the duties and liabilities of a Covered Person otherwise existing
at law or in equity, are agreed by the parties hereto to replace such other
duties and liabilities of such Covered Person.
(b) Unless otherwise expressly provided herein, (a) whenever a
conflict of interest exists or arises between a Covered Person, on the one
hand, and the Partnership or a Limited Partner, on the other hand, or (b)
whenever this Agreement or any other agreement contemplated herein or
therein provides that a Covered Person shall act in a manner that is, or
provide terms that are, fair and reasonable to the Partnership or any
Partner, such Covered 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 gross negligence, recklessness, bad faith or willful misconduct
by the Covered Person, the resolution, action or term so made, taken or
provided by such Covered Person shall not constitute a breach of this
Agreement or any other agreement contemplated herein or of any duty or
obligation of such Covered Person at law or in equity or otherwise.
(c) Whenever in this Agreement the General Partner or an
Indemnified Person is permitted or required to make a decision (i) in its
"discretion" or under a grant of similar authority, the General Partner or
such Indemnified Person shall be entitled to consider only such interests
and factors as it desires, including its own interests, and shall have no
duty or obligation to give any consideration to any interest of or factors
affecting the Partnership or any other Person, or (ii) in its "good faith"
or under another express standard, the General Partner or such Indemnified
Person shall act under such express standard and shall not be subject to
any other or different standard imposed by this Agreement or other
applicable law.
Section 13.3 Indemnification. To the fullest extent permitted
---------------
by applicable law, an Indemnified Person shall be entitled to
indemnification from the Partnership for any loss, damage or claim incurred
by such Indemnified Person by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the
Partnership and in a manner reasonably believed to be within the scope of
authority conferred on such Indemnified Person by this Agreement, except
that no Indemnified Person shall be entitled to be indemnified in respect
of any loss, damage or claim incurred by such Indemnified Person by reason
of gross negligence, recklessness, bad faith or willful misconduct with
respect to such acts or omissions; provided, however, that any indemnity
-------- -------
under this Section 13.3 shall be provided out of and to the extent of
Partnership assets only, and no Covered Person shall have any personal
liability on account thereof.
Section 13.4 Expenses. To the fullest extent permitted by
--------
applicable law, expenses (including legal fees) incurred by an Indemnified
Person in defending any claim, demand, action, suit or proceeding may, from
time to time, be advanced by the Partnership prior to the final disposition
of such claim, demand, action, suit or proceeding upon receipt by the
Partnership of an undertaking by or on behalf of the Indemnified Person to
repay such amount if it shall be determined that the Indemnified Person is
not entitled to be indemnified as authorized in Section 13.3 hereof.
Section 13.5 Outside Businesses. Any Partner or Affiliate
------------------
thereof may engage in or possess an interest in other business ventures of
any nature or description, independently or with others, similar or
dissimilar to the business of the Partnership, and the Partnership and the
Partners shall have no rights by virtue of this Agreement in and to such
independent ventures or the income or profits derived therefrom, and the
pursuit of any such venture, even if competitive with the business of the
Partnership, shall not be deemed wrongful or improper. No Partner or
Affiliate thereof shall be obligated to present any particular investment
opportunity to the Partnership even if such opportunity is of a character
that, if presented to the Partnership, could be taken by the Partnership,
and any Partner or Affiliate thereof shall have the right to take for its
own account (individually or as a partner or fiduciary) or to recommend to
others any such particular investment opportunity.
Section 13.6 Liability of the General Partner. Except as
--------------------------------
otherwise provided in the Act, the General Partner shall have the
liabilities of a partner in a partnership without limited partners to any
Person other than the Partnership and the Limited Partners. Except as
otherwise provided in this Agreement or the Act, the General Partner shall
have the liabilities of a partner in a partnership without limited partners
to the Partnership and each Limited Partner.
Section 13.7 Waiver by General Partner; Indemnification of
---------------------------------------------
Partnership by General Partner. The General Partner hereby waives all
------------------------------
rights of indemnification which it may have against the Partnership under
this Agreement or otherwise. The General Partner also hereby agrees to
indemnify and hold harmless the Partnership for (i) any payments made by it
under this Article XIII, and (ii) any indemnity payments the Partnership
may otherwise be required to make under applicable law.
ARTICLE XIV
TRANSFERS
Section 14.1 Transfer of Interests. (a) Preferred Securities
---------------------
shall be freely transferable by a Preferred Security Holder.
(b) The General Partner may not assign its interest in the
Partnership in whole or in part under any circumstances, except to a
successor of Duquesne Light under the Indenture. Any such assignee of all
or a part of the Interest of a General Partner in the Partnership shall be
admitted to the Partnership as a general partner of the Partnership
immediately prior to the effective date of such assignment, and such
additional or successor General Partner is hereby authorized to and shall
continue the business of the Partnership without dissolution.
(c) No Interest shall be transferred, in whole or in part,
except in accordance with the terms and conditions set forth in this
Agreement. Any transfer or purported transfer of any Interest not made in
accordance with this Agreement shall be null and void.
Section 14.2 Transfer of LP Certificates. The General Partner
---------------------------
shall provide for the registration of LP Certificates and of transfers of
LP Certificates without charge by or on behalf of the Partnership, but upon
payment in respect of any tax or other governmental charges which may be
imposed in relation to it, together with the giving of such indemnity as
the General Partner may require. Upon surrender for registration of
transfer of any LP Certificate, the General Partner shall cause one or more
new LP Certificates to be issued in the name of the designated transferee
or transferees. Every LP Certificate surrendered for registration of
transfer shall be accompanied by a written instrument of transfer in form
satisfactory to the General Partner duly executed by the Preferred Security
Holder or his or her attorney duly authorized in writing. Each LP
Certificate surrendered for registration of transfer shall be cancelled by
the General Partner. A transferee of an LP Certificate shall be admitted
to the Partnership as a Limited Partner and shall be entitled to the rights
and subject to the obligations of a Preferred Security Holder hereunder
upon the receipt by such transferee of an LP Certificate. The transferor
of an LP Certificate shall cease to be a limited partner of the Partnership
at the time that the transferee of the LP Certificate is admitted to the
Partnership as a Limited Partner in accordance with this Section 14.2.
Section 14.3 Persons Deemed Preferred Security Holders. The
-----------------------------------------
Partnership may treat the Person in whose name any LP Certificate shall be
registered on the books and records of the Partnership as the Preferred
Security Holder and the sole holder of such LP Certificate for purposes of
receiving Dividends and for all other purposes whatsoever and, accordingly,
shall not be bound to recognize any equitable or other claim to or interest
in such LP Certificate on the part of any other Person, whether or not the
Partnership shall have actual or other notice thereof.
Section 14.4 Book-Entry Interests. The LP Certificates, on
--------------------
original issuance, will be issued in the form of a global LP Certificate or
LP Certificates representing Book-Entry Interests, to be delivered to the
Depository, by, or on behalf of, the Partnership. Such LP Certificate or
LP Certificates shall initially be registered on the books and records of
the Partnership in the name of the Depository or its nominee, and no
Preferred Security Owner will receive a definitive LP Certificate
representing such Preferred Security Owner's interests in such LP
Certificate, except as provided in Section 14.6. Unless and until
definitive, fully registered LP Certificates (the "Definitive LP
Certificates") have been issued to the Preferred Security Owners pursuant
to Section 14.6:
(a) The provisions of this Section shall be in full force and
effect;
(b) The Partnership and the General Partner shall be entitled to
deal with the Depository for all purposes of this Agreement (including the
payment of Dividends on the LP Certificates and receiving approvals, votes
or consents hereunder) as the Preferred Security Holder and the sole holder
of the LP Certificates and shall have no obligation to the Preferred
Security Owners;
(c) To the extent that the provisions of this Section conflict
with any other provisions of this Agreement or any Action with respect to
Preferred Securities, the provisions of this Section or any such Action
shall control; and
(d) The rights of the Preferred Security Owners shall be
exercised only through the Depository and shall be limited to those
established by law and agreements between such Preferred Security Owners
and the Depository and/or the Depository participants. Unless and until
the Definitive LP Certificates are issued pursuant to Section 14.6, the
Depository will be responsible for making book-entry transfers among its
participants and accepting and transmitting payments of Dividends on the LP
Certificates to such participants.
Section 14.5 Notices to the Depository. Whenever a notice or
-------------------------
other communication to the Preferred Security Holders is required under
this Agreement, unless and until Definitive LP Certificates shall have been
issued to the Preferred Security Owners pursuant to Section 14.6, the
General Partner shall give all such notices and communications specified
herein to be given to the Preferred Security Holders to the Depository, and
shall have no obligations to the Preferred Security Owners.
Section 14.6 Definitive LP Certificates. If (a) the Depository
--------------------------
elects to discontinue its services as securities depository and gives
reasonable notice to the Partnership, or (b) the Partnership elects to
terminate the book-entry system through the Depository then the Partnership
shall either (i) appoint a successor Depository or (ii) cause Definitive LP
Certificates to be prepared by the Partnership. Upon surrender of the
global LP Certificate or LP Certificates representing the Book-Entry
Interests by the Depository, accompanied by registration instructions, the
General Partner shall cause Definitive LP Certificates to be delivered to
Preferred Security Owners in accordance with the instructions of the
Depository. Neither the General Partner nor the Partnership shall be
liable for any delay in delivery of such instructions and may conclusively
rely on, and shall be protected in relying on, such instructions. Any
Person receiving a Definitive LP Certificate in accordance with this
Article XIV shall be admitted to the Partnership as a Limited Partner upon
receipt of such Definitive LP Certificate. The Depository or the nominee
of the Depository, as the case may be, shall cease to be a limited partner
of the Partnership under this Section 14.6 at the time that at least one
additional Person is admitted to the Partnership as a Limited Partner in
accordance with this Section 14.6. The Definitive LP Certificates shall be
printed, lithographed or engraved or may be produced in any other manner as
is reasonably acceptable to the General Partner, as evidenced by its
execution thereof.
Section 14.7 Surrender of Preferred Securities by General
--------------------------------------------
Partner. If at any time Duquesne Light shall surrender any Preferred
-------
Securities of a particular series to the Partnership, the Partnership shall
surrender to or upon the order of Duquesne Light Debentures of the series
issued concurrently with the Preferred Securities so surrendered, in
aggregate principal amount equal to the aggregate liquidation preference of
such Preferred Securities so surrendered.
ARTICLE XV
DISSOLUTION, LIQUIDATION AND TERMINATION
Section 15.1 No Dissolution. The Partnership shall not be
--------------
dissolved by the admission of additional or successor Partners in
accordance with the terms of this Agreement. The death, withdrawal,
incompetency, Bankruptcy, dissolution or other cessation to exist as a
legal entity of a Limited Partner, or the occurrence of any other event
which terminates the Interest of a Limited Partner in the Partnership,
shall not in and of itself cause the Partnership to be dissolved and its
affairs wound up. To the fullest extent permitted by applicable law, upon
the occurrence of any such event, the General Partner may, without any
further act, vote or approval of any Partner, admit any Person to the
Partnership as an additional or substitute Limited Partner, which admission
shall be effective as of the date of the occurrence of such event, and the
business of the Partnership shall be continued without dissolution.
Section 15.2 Events Causing Dissolution. The Partnership shall
--------------------------
be dissolved and its affairs shall be wound up upon the occurrence of any
of the following events:
(a) the expiration of the term of the Partnership, as provided
in Section 2.4 hereof;
(b) the withdrawal, removal or Bankruptcy of the General Partner
or assignment by the General Partner of its entire Interest in the
Partnership when the assignee is not admitted to the Partnership as an
additional or successor General Partner in accordance with Section 14.1(b),
or the occurrence of any other event that results in the General Partner
ceasing to be a general partner of the Partnership under the Act, unless,
in any such case, the business of the Partnership is continued in
accordance with the Act;
(c) the entry of a decree of judicial dissolution under Section
17-802 of the Act; or
(d) the written consent of all Partners.
Section 15.3 Notice of Dissolution. Upon the dissolution of the
---------------------
Partnership, the General Partner, as liquidating trustee, shall promptly
notify the Partners of such dissolution.
Section 15.4 Liquidation. Upon dissolution of the Partnership,
-----------
the General Partner, as liquidating trustee, shall immediately commence to
wind up the Partnership's affairs; provided, however, that a reasonable
-------- -------
time shall be allowed for the orderly liquidation of the assets of the
Partnership and the satisfaction of liabilities to creditors so as to
enable the Partners to minimize the normal losses attendant upon a
liquidation. The Preferred Security Holders shall continue to share
profits and losses during liquidation in the same proportions, as specified
in Article VIII hereof, as before liquidation. The proceeds of liquidation
shall be distributed, as realized, in the following order and priority:
(a) to creditors of the Partnership, including Partners who are
creditors, to the extent permitted by law, in satisfaction of the
liabilities of the Partnership (whether by payment or the making of
reasonable provision for payment thereof), other than liabilities for
distributions (including Dividends) to Partners;
(b) to the Preferred Security Holders of each series then
outstanding in accordance with their respective interests and in the amount
of their respective Liquidation Distributions; and
(c) the balance to the General Partner.
Section 15.5 Termination. The Partnership shall terminate when
-----------
all of the assets of the Partnership shall have been distributed in the
manner provided for in this Article XV, and the Certificate shall have been
cancelled in the manner required by the Act.
ARTICLE XVI
MISCELLANEOUS
Section 16.1 Notices. All notices provided for in this
-------
Agreement shall be in writing, duly signed by the party giving such notice.
(a) All notices provided for in this Agreement to the
Partnership or General Partner shall be delivered, telecopied or mailed by
registered or certified mail, as follows:
(i) if given to the Partnership, in care of the General
Partner at the Partnership's mailing address set forth below:
c/o Duquesne Light Company
One Oxford Centre
301 Grant Street
Pittsburgh, Pennsylvania 15279
Telecopy: (412) 393-6571
Telephone: (412) 393-4131
Attention: Treasurer
(ii) if given to the General Partner, at its mailing
address set forth below:
Duquesne Light Company
One Oxford Centre
301 Grant Street
Pittsburgh, Pennsylvania 15279
Telecopy: (412) 393-6571
Telephone: (412) 393-6000
Attention: Treasurer
All such notices shall be deemed to have been given when
received.
(b) All notices provided for in this Agreement to any other
Partner shall be given at the address set forth on the books and records of
the Partnership, by mail, first-class postage prepaid, and shall be deemed
given when so mailed.
Section 16.2 Failure to Pursue Remedies. The failure of any
--------------------------
party to seek redress for violation of, or to insist upon the strict
performance of, any provision of this Agreement shall not prevent a
subsequent act, which would have originally constituted a violation, from
having the effect of an original violation.
Section 16.3 Cumulative Remedies. The rights and remedies
-------------------
provided by this Agreement are cumulative and the use of any one right or
remedy by any party shall not preclude or waive its right to use any or all
other remedies. Said rights and remedies are given in addition to any
other rights the parties may have by law, statute, ordinance or otherwise.
Section 16.4 Binding Effect. This Agreement shall be binding
--------------
upon and inure to the benefit of all of the parties and, to the extent
permitted by this Agreement, their successors, legal representatives and
assigns.
Section 16.5 Interpretation. Throughout this Agreement, nouns,
--------------
pronouns and verbs shall be construed as singular or plural, whichever
shall be applicable. All references herein to "Articles", "Sections" and
"paragraphs" shall refer to corresponding provisions of this Agreement.
Section 16.6 Severability. The invalidity or unenforceability
------------
of any particular provision of this Agreement shall not affect the other
provisions hereof, and this Agreement shall be construed in all respects as
if such invalid or unenforceable provision were omitted.
Section 16.7 Counterparts. This Agreement may be executed in
------------
any number of counterparts with the same effect as if all parties hereto
had signed the same document. All counterparts shall be construed together
and shall constitute one instrument.
Section 16.8 Integration. This Agreement constitutes the entire
-----------
agreement among the parties hereto pertaining to the subject matter hereof
and supersedes all prior agreements and understandings pertaining thereto.
SECTION 16.9 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS OF
-------------
THE PARTIES HEREUNDER SHALL BE INTERPRETED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF DELAWARE, AND ALL RIGHTS AND REMEDIES SHALL BE GOVERNED BY
SUCH LAWS WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
Section 16.10 Headings. The headings and subheadings in this
--------
Agreement are included for convenience and identification only and are in
no way intended to describe, interpret, define or limit the scope, extent
or intent of this Agreement or any provision hereof.
Section 16.11 Power of Attorney. Appointment of General
----------------- ----------------------
Partner. (a) Each Limited Partner hereby irrevocably constitutes and
-------
appoints the General Partner as its true and lawful attorney in fact, in
its name, place, and stead, to make, execute, acknowledge, and file the
following documents, to the extent consistent with the other provisions of
this Agreement:
(i) This Agreement, and, to the extent required by law, the
Certificate;
(ii) Any fictitious or assumed-name certificates required to
be filed on behalf of the Partnership;
(iii) Any application or registration to do business in any
State other than, or in addition to, the State of Delaware;
(iv) Deeds, notes, mortgages, pledges, security instruments of
any kind and nature, leases, and such other instruments as may be
necessary to carry on the business of the Partnership; provided that
no such instrument shall increase the personal liability of the
Limited Partners;
(v) All certificates and other instruments that the General
Partner deems appropriate or necessary to form and qualify, or
continue the qualification of, the Partnership as a limited
partnership in the State of Delaware and all jurisdictions in which
the Partnership may intend to conduct business or own property;
(vi) Any duly adopted amendment to or restatement of this
Agreement or the Certificate;
(vii) All conveyances and other instruments or documents that
the General Partner deems appropriate or necessary to effect or
reflect the dissolution, liquidation and termination of the
Partnership pursuant to the terms of this Agreement (including a
certificate of cancellation); and
(viii) All other instruments as the attorneys-in-fact or any of
them may deem necessary or advisable to carry out fully the provisions
of this Agreement in accordance with its terms.
(b) It is expressly intended by each Limited Partner that the
power of attorney granted by Section 16.11(a) is coupled with an interest,
shall be irrevocable, and shall survive and not be affected by the
subsequent disability or incapacity of such Limited Partner (or if such
Limited Partner is a corporation, partnership, trust, association, limited
liability company or other legal entity, by the dissolution or termination
thereof).
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above stated.
GENERAL PARTNER:
DUQUESNE LIGHT COMPANY
By: ______________________________
Name:
Title:
INITIAL LIMITED PARTNER:
[INSERT NAME]
By: _______________________________
Name:
Title:
<PAGE>
Exhibit A
===========================================================================
Certificate Number Number of Preferred Securities
---------------------------------------------------------------------------
R-1
===========================================================================
CUSIP NO.
Certificate Evidencing Preferred Securities
of
Duquesne Capital L.P.
_% Cumulative Monthly Income Preferred Securities, Series _
(liquidation preference $25 per security)
Duquesne Capital L.P., a limited partnership formed under the
laws of the State of Delaware (the "PARTNERSHIP"), hereby certifies that
__________ (the "PREFERRED SECURITY HOLDER") is the registered owner of
_______ (_________) preferred securities of the Partnership representing
Interests in the Partnership of a series designated the __% Cumulative
Monthly Income Preferred Securities, Series __ (liquidation preference $25
per security) (the "SERIES __ PREFERRED SECURITIES"). The Series __
Preferred Securities are fully paid and nonassessable Interests in the
Partnership, as to which the limited partners of the Partnership who hold
the Series __ Preferred Securities, in their capacities as limited partners
of the Partnership, will have no liability solely by reason of being
Preferred Security Holders in excess of their obligations to make payments
provided for in the Limited Partnership Agreement (as defined below) and
their share of the Partnership's assets and undistributed profits (subject
to the obligation of a Preferred Security Holder to repay any funds
wrongfully distributed to it). The Series __ Preferred Securities are
transferable on the books and records of the Partnership, in person or by a
duly authorized attorney, upon surrender of this certificate duly endorsed
and in proper form for transfer. The powers, preferences and special
rights and limitations of the Series __ Preferred Securities are
established pursuant to, and this certificate and the Series __ Preferred
Securities represented hereby are issued and shall in all respects be
subject to the terms and provisions of, the Amended and Restated Agreement
of Limited Partnership of the Partnership dated as of ________________,
1994, as the same may, from time to time, be amended (the "LIMITED
PARTNERSHIP AGREEMENT") authorizing the issuance of the Series __ Preferred
Securities and determining the powers, preferences, and other special
rights and limitations, regarding Dividends, voting, return of capital and
otherwise, and other matters relating to the Series __ Preferred
Securities. Capitalized terms used herein but not defined shall have the
meaning given them in the Limited Partnership Agreement. The Preferred
Security Holder is entitled to the benefits of the Payment and Guarantee
Agreement of Duquesne Light Company, a Pennsylvania corporation, dated as
of __________ , 1994 (the "GUARANTEE") and the __% Subordinated Deferrable
Interest Debentures, Series __ of Duquesne Light Company (the "DEBENTURES")
issued pursuant to the Indenture dated as of _________, 1994 between
Duquesne Light Company and The First National Bank of Chicago, as Trustee,
in each case to the extent provided therein and in the Limited Partnership
Agreement. The Partnership will furnish a copy of the Limited Partnership
Agreement, the Guarantee and the Debentures to the Preferred Security
Holder without charge upon written request to the Partnership at its
principal place of business or registered office.
The Preferred Security Holder, by accepting this certificate, is
deemed to have agreed that the Debentures and the Guarantee are subordinate
and junior in right of payment to all Senior Indebtedness of Duquesne Light
Company as and to the extent provided in the Indenture and the Guarantee.
Upon receipt of this certificate, the Preferred Security Holder is admitted
to the Partnership as a Limited Partner, is bound by the Limited
Partnership Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, the Partnership has executed this certificate
this ___ day of _________, 199_.
DUQUESNE CAPITAL L.P.
By: Duquesne Light Company, its General Partner
By:____________________________________________
EXHIBIT 4.2
ACTION OF GENERAL PARTNER
DUQUESNE LIGHT COMPANY, a Pennsylvania corporation ("Duquesne
Light"), as General Partner of DUQUESNE CAPITAL L.P., a Delaware limited
partnership (the "Partnership"), in accordance with Section 10.2(a) of the
Amended and Restated Agreement of Limited Partnership of the Partnership
dated as of _____________, 1994, as heretofore amended (the "Partnership
Agreement," capitalized terms used herein without definition having the
meanings specified in the Partnership Agreement), does hereby establish a
new series of Preferred Securities having the following designation,
rights, privileges, restrictions and other terms and provisions (the
numbered clauses set forth below corresponding to the subsections of
Section 10.2(a) of the Partnership Agreement):
(i)-(ii) Designation and Number. ________ Preferred
----------------------
Securities of the Partnership with an aggregate liquidation preference of
$________ million ($_,000,000) and a liquidation preference of $25 per
Preferred Security, are hereby designated as "___% Cumulative Monthly
Income Preferred Securities, Series __" (hereinafter called the "Series __
Preferred Securities"). The LP Certificates evidencing the Series __
Preferred Securities shall be substantially in the form attached hereto as
Exhibit A. The proceeds of the Series __ Preferred Securities shall be
loaned to Duquesne Light in return for ___% Subordinated Deferrable
Interest Debentures, Series __ of Duquesne Light in aggregate principal
amount equal to the aggregate liquidation preference of the Series __
Preferred Securities, bearing interest at an annual rate equal to the
annual dividend rate on the Series __ Preferred Securities and having
certain payment and redemption provisions which correspond to the payment
and redemption provisions of the Series __ Preferred Securities (the
"Series __ Debentures").
(iii)-(iv) Dividends. (a) The Limited Partners who hold the
---------
Series __ Preferred Securities shall be entitled to receive, to the extent
set forth in paragraph (b), cumulative cash Dividends at the annual rate of
_ % of the liquidation preference of $25 per Preferred Security per annum,
calculated for any full monthly dividend period on the basis of a 360-day
year consisting of 12 months of 30 days each, and for any period shorter
than a full monthly dividend period, Dividends will be computed on the
basis of the actual number of days elapsed in such period. Dividends will
be payable in United States dollars monthly in arrears on the last day of
each calendar month of each year, commencing __________, 199_. Such
Dividends will accumulate (but there shall not accrue any interest on
accumulated and unpaid Dividends) whether or not there are profits, surplus
or other funds of the Partnership legally available to the Partnership for
the payment of Dividends. Dividends on the Series __ Preferred Securities
shall be cumulative from the date of original issue, and the cumulative
portion from such date to _________, 199_ shall be payable on ________,
199_. In the event that any date on which Dividends are payable on the
Series __ Preferred Securities is not a Business Day (as defined below),
then payment of the Dividends payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay) 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 such date. A "Business Day"
shall mean any day other than a day on which banking institutions in The
City of New York or the City of Pittsburgh are authorized or required by
law to close.
(b) Dividends on the Series __ Preferred Securities shall be
paid to the extent that, on any scheduled Dividend payment date, the
Partnership has (x) funds legally available for the payment of such
Dividends, as determined by the General Partner, and (y) cash on hand
sufficient to permit such payment. Dividends on the Series __ Preferred
Securities will be payable to the Holders thereof as they appear on the
books and records of the Partnership on the relevant record dates. Such
record dates shall be one Business Day prior to the relevant payment dates;
provided, however, that if the Series __ Preferred Securities are not held
by a securities depositary, the General Partner shall have the right to
change such record dates.
(c) If Dividends have not been paid in full on the Series __
Preferred Securities, the Partnership shall not:
(i) pay, or set aside for payment, any Dividends on any other
Preferred Securities ranking pari passu with the Series __ Preferred
---- -----
Securities as regards participation in the profits of the Partnership
("Dividend Parity Securities"), unless, at the time of such payment or
setting aside, there shall also be paid, or set aside for payment, as
the case may be, Dividends on the Series __ Preferred Securities on a
pro rata basis, so that after giving effect to the payment of all such
Dividends,
(x) the ratio of (a) the aggregate amount of Dividends paid
on the Series __ Preferred Securities to (b) the aggregate amount
of Dividends paid on such Dividend Parity Securities is the same
as
(y) the ratio of (a) the aggregate of all accumulated
arrears of unpaid Dividends in respect of the Series __ Preferred
Securities to (b) the aggregate of all accumulated arrears of
unpaid Dividends in respect of such Dividend Parity Securities;
(ii) pay, or set aside for payment, any Dividends or other
distributions on the General Partner Interests or any other securities
of the Partnership ranking junior to the Series __ Preferred
Securities as to Dividends (collectively, the "Dividend Junior
Securities"); or
(iii) redeem, purchase or otherwise acquire any Series __
Preferred Securities, any Dividend Parity Securities or any Dividend
Junior Securities;
until, in each case, such time as all accumulated and unpaid Dividends on
the Series __ Preferred Securities shall have been paid in full for all
Dividend periods terminating on or prior to, in the case of clauses (i) and
(ii), such payment and, in the case of clause (iii), the date of such
redemption, purchase or acquisition.
(v) Liquidation Distribution. In the event of any voluntary or
------------------------
involuntary dissolution, liquidation or winding up of the Partnership,
Preferred Security Holders who hold the Series __ Preferred Securities at
the time outstanding will be entitled to receive out of the assets of the
Partnership available for distribution to Partners after satisfaction of
liabilities to creditors, if any, as required by the Act, before any
distribution of assets is made to the General Partner or any other series
of Preferred Securities ranking junior to the Series __ Preferred
Securities with respect to participation in the assets of the Partnership,
but together with the holders of every other series of Preferred Securities
outstanding, if any, ranking pari passu with the Series __ Preferred
Securities with respect to participation in the assets of the Partnership
("Liquidation Parity Securities"), an amount equal to the aggregate of the
liquidation preference of $25 per Series __ Preferred Security plus an
amount equal to all accumulated and unpaid Dividends thereon to the date of
payment (the "Liquidation Distribution"). If, upon any such liquidation,
the Liquidation Distribution can be paid only in part because the
Partnership has insufficient assets available to pay in full the aggregate
Liquidation Distribution and the aggregate maximum liquidation
distributions on the Liquidation Parity Securities, then the amounts
payable directly by the Partnership on the Series __ Preferred Securities
and on such Liquidation Parity Securities shall be paid on a pro rata
basis, so that
(i) the ratio of (x) the aggregate amount paid in respect of the
Liquidation Distribution to (y) the aggregate amount paid in respect
of liquidation distributions on the Liquidation Parity Securities is
the same as
(ii) the ratio of (x) the aggregate Liquidation Distribution to
(y) the aggregate maximum liquidation distributions on the Liquidation
Parity Securities.
(vi)-(vii) Redemption. (a) The Series __ Preferred Securities
----------
shall be redeemable, at the option of the Partnership and at the direction
of Duquesne Light, in whole or in part from time to time, on or after
______________, 199_, upon not less than 30 nor more than 60 days notice,
at a redemption price of $25 per Series __ Preferred Security plus an
amount equal to accumulated and unpaid Dividends thereon to the date fixed
for redemption (the "Redemption Price"); provided, however, that prior to
giving any such notice of redemption, the Partnership shall have received
from Duquesne Light a notice of redemption of Series __ Debentures in an
aggregate principal amount equal to the aggregate liquidation preference of
the Series __ Preferred Securities to be redeemed. If a partial redemption
would result in a delisting of the Series __ Preferred Securities by any
national securities exchange or other organization on which the Series __
Preferred Securities are then listed, the Partnership may only redeem the
Series __ Preferred Securities in whole.
(b) If at any time Duquesne Light (1) pays at maturity or (2)
redeems Series __ Debentures, the proceeds from such payment or redemption
of principal on such Debentures shall be applied to redeem Series __
Preferred Securities at the Redemption Price.
(c) If a Special Event (as defined below) shall occur and be
continuing, the General Partner shall (1) cause the Partnership to redeem
the Series __ Preferred Securities in whole (and not in part) at the
Redemption Price, within 90 days following the occurrence of such Special
Event, or (2) cause the Partnership to distribute to Holders of Series __
Preferred Securities in exchange for such Holders' Series __ Preferred
Securities, within 90 days following the occurrence of such Special Event,
the Series __ Debentures. If the Special Event is solely a Tax Event (as
defined below), neither Duquesne Light nor the Partnership shall be
required to elect either of the options described in (1) or (2) above, and
may, instead, allow the Series __ Preferred Securities to remain
outstanding. For purposes of this Action, "Special Event" shall mean a Tax
Event or an Investment Company Event. "Investment Company Event" shall
mean the occurrence of a change in law or regulation or a written change in
official interpretation of law or regulation by any legislative body,
court, governmental agency or regulatory authority (a "Change in 40 Act
Law") to the effect that the Partnership is or will be considered an
"investment company" required to be registered under the Investment Company
Act of 1940, as amended (the "1940 Act"), which Change in 40 Act Law
becomes effective on or after ________, 199_; provided that no Investment
Company Event shall be deemed to have occurred if Duquesne Light or the
Partnership shall have obtained a written opinion of nationally recognized
independent counsel to the Partnership experienced in practice under the
1940 Act, to the effect that Duquesne Light or the Partnership has
successfully taken either of the steps set forth in (a) or (b) below to
avoid such Change in 40 Act Law so that in the opinion of such counsel,
notwithstanding such Change in 40 Act Law, the Partnership is not required
to be registered as an "investment company" within the meaning of the 1940
Act. Such steps shall be either (a) issuing an additional or supplemental
irrevocable and unconditional guarantee (i) of accumulated and unpaid
Dividends (whether or not moneys are legally available therefor) on the
Series __ Preferred Securities and (ii) upon a liquidation of the
Partnership, of the full amount of the Liquidation Distribution (as herein
defined) on the Series __ Preferred Securities (regardless of the amount of
assets of the Partnership otherwise available for distribution in such
liquidation), or (b) the use of any other reasonable measures that do not
adversely affect Holders of Series __ Preferred Securities in any material
respect. "Tax Event" shall mean that Duquesne Light or the Partnership
shall have obtained an opinion of nationally recognized independent tax
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 any amendment to or change in an official interpretation or
application of such laws or regulations, which amendment or change is
effective on or after _________, 199_, and which change cannot be avoided
by the use of any reasonable measures available to Duquesne Light or the
Partnership, there is a substantial increase in risk that (i) the
Partnership is subject to Federal income tax with respect to interest
received on the Series __ Debentures, (ii) interest payable on the Series
__ Debentures will not be deductible for Federal income tax purposes or
(iii) the Partnership is subject to more than a de minimis amount of other
-- -------
taxes, duties or other governmental charges.
(d) The Series __ Preferred Securities will [not] be subject to
redemption or purchase by operation of a sinking or purchase fund.
[Provisions for sinking fund, if applicable.]
(e) Redemption Procedure. (1) Notice of any redemption (a
--------------------
"Notice of Redemption") of, or notice of distribution of Series __
Debentures in exchange for, the Series __ Preferred Securities will be
given by the Partnership by mail to each Holder of Series __ Preferred
Securities to be redeemed or exchanged not fewer than 30 nor more than 60
days prior to the date fixed for redemption or exchange thereof; provided,
that no such notice shall be required in the case of a redemption of Series
__ Preferred Securities resulting from payment at maturity of the Series __
Debentures as contemplated in (b)(1) above, the redemption date for the
Series __ Preferred Securities being the same as such maturity date in such
case. For purposes of the calculation of the date of redemption or
exchange and the dates on which notices are given pursuant to this
paragraph (b)(1), a Notice of Redemption or notice of distribution shall be
deemed to be given on the day such notice is first mailed by first-class
mail, postage prepaid, to Preferred Security Holders who hold Series __
Preferred Securities. Each Notice of Redemption or notice of distribution
shall be addressed to the Preferred Security Holders who hold Series __
Preferred Securities at the address of each such Holder appearing in the
books and records of the Partnership. No defect in the Notice of
Redemption or notice of distribution or in the mailing of either thereof
with respect to any Holder shall affect the validity of the redemption or
exchange proceedings with respect to any other Holder.
(2) In the event that fewer than all the outstanding Series __
Preferred Securities are to be redeemed, the Series __ Preferred Securities
to be redeemed will be selected in accordance with paragraph (4) below or,
in the event that Series __ Preferred Securities are not held by the
Depository, by lot or in such other manner as the General Partner shall
deem fair or appropriate.
(3) If (a) the Partnership gives a Notice of Redemption in
respect of Series __ Preferred Securities (which notice shall be
irrevocable) or (b) Series __ Preferred Securities shall become redeemable
by virtue of the maturity of Series __ Debentures as contemplated in (b)(1)
above, then on the date fixed for redemption, the Partnership will pay the
Redemption Price to the Holders of Series __ Preferred Securities. If
Notice of Redemption shall have been given and payment or provision for
payment shall have been made on the date fixed for redemption as required,
then upon such date, all rights of the Preferred Security Holders who hold
such Series __ Preferred Securities so called for redemption will cease,
except the right of the Holders of such Preferred Securities to receive the
Redemption Price, but without interest. Neither the General Partner nor
the Partnership shall be required to register or cause to be registered the
transfer of any Series __ Preferred Securities which have been so called
for redemption. In the event that any date fixed for redemption of Series
__ Preferred Securities is not a Business Day, payment of the Redemption
Price payable on such date will be made on the next succeeding day which is
a Business Day (and without any interest or other payment in respect of any
such delay), except that, if such Business Day falls in the next calendar
year, such payment will be made on the immediately preceding Business Day.
In the event that payment of the Redemption Price in respect of Series __
Preferred Securities is not paid either by the Partnership or by Duquesne
Light pursuant to the Guarantee, Dividends on such Series __ Preferred
Securities will continue to accumulate (but without any interest on amounts
so accumulating), from the original date fixed for redemption to the date
of payment, in which case the actual payment date will be considered the
date fixed for redemption for purposes of calculating the Redemption Price.
(4) Redemption or exchange notices shall be sent to the
Depository or its nominee. If less than all of the Series __ Preferred
Securities are being redeemed, interests to be redeemed shall be determined
in accordance with the Depository's practice which at the date hereof is to
determine by lot the amount of the interest of each direct participant in
such series to be redeemed.
(viii) Under the circumstances described in (vi)-(vii)(c)(2)
above and as of the date fixed for distribution of Series __ Debentures,
any LP Certificates representing Series __ Preferred Securities outstanding
shall be deemed to represent the Series __ Debentures to be distributed on
such an exchange, and the Series __ Preferred Securities will no longer be
deemed outstanding and may be cancelled by the General Partner. Under such
circumstances, the General Partner may dissolve the Partnership if there
are no other Preferred Securities outstanding. The Series __ Debentures
distributed upon such an exchange shall have an aggregate principal amount
equal to the aggregate liquidation preference of $25 per security on the
Series __ Preferred Securities so exchanged, and shall bear interest at a
rate per annum equal to the annual Dividend rate on such Series __
Preferred Securities from the last date on which Dividends on such Series
__ Preferred Securities were paid.
(ix) Voting Rights. If (i) the Partnership fails to pay
-------------
Dividends in full on the Series __ Preferred Securities for any period of
18 consecutive months; (ii) an Event of Default (as defined with respect to
the Series __ Debentures) under the Indenture shall have occurred and be
continuing; or (iii) Duquesne Light is in default on any of its payment or
other obligations under the Guarantee, then the Holders of Series __
Preferred Securities, together with the holders of any other series of
Preferred Securities having the right to vote for the appointment of a
special representative in such event, acting as a single class, shall be
entitled, by vote of holders of a majority in aggregate liquidation
preference of all Preferred Securities having the right to vote, to appoint
and authorize a special representative to enforce the Partnership's rights
under the Series __ Debentures (and, if applicable, such other Debentures)
and the Indenture against Duquesne Light, enforce the obligations
undertaken by Duquesne Light under the Guarantee and pay Dividends on the
Series __ Preferred Securities (to the extent the Partnership has funds
legally available for the payment of such dividends and cash on hand
sufficient to permit such payment). Any special representative so
appointed shall not be admitted as a Partner in the Partnership or
otherwise be deemed to be a Partner in the Partnership and shall have no
liability for the debts, obligations or liabilities of the Partnership.
In furtherance of the foregoing, and without limiting the powers
of any special representative so appointed and for the avoidance of any
doubt concerning the powers of the special representative, any special
representative, in its own name and as special representative of the
Partnership, may institute a proceeding, including, without limitation, any
suit in equity, an action at law or other judicial or administrative
proceeding, to enforce the Partnership's rights directly against Duquesne
Light or any other obligor in connection with such obligations to the same
extent as the Partnership and on behalf of the Partnership, and may
prosecute such proceeding to judgment or final decree, and enforce the same
against Duquesne Light, or any other obligor in connection with such
obligations.
For purposes of determining whether the Partnership has failed to
pay Dividends in full for 18 consecutive months, Dividends shall be deemed
to remain in arrears, notwithstanding any payments in respect thereof,
until full cumulative Dividends have been or contemporaneously are set
aside and paid with respect to all monthly Dividend periods terminating on
or prior to the date of payment of such full cumulative Dividends. Not
later than 30 days after such right to appoint a special representative
arises, the General Partner will convene a general meeting for the above
purpose. If the General Partner fails to convene such meeting within such
30-day period, the Holders of 10% in aggregate liquidation preference of
the outstanding Series __ Preferred Securities will be entitled to convene
such meeting. The provisions of Section 7.2 of the Partnership Agreement
relating to the convening and conduct of meetings of Partners will apply
with respect to any such meeting. Any special representative so appointed
shall vacate office immediately if the Partnership (or Duquesne Light
pursuant to the Guarantee) shall have paid in full all accumulated and
unpaid Dividends on the Series __ Preferred Securities or such Event of
Default or default under the Guarantee by Duquesne Light, as the case may
be, shall have been cured.
If any proposed amendment to the Partnership Agreement provides
for, or the General Partner otherwise proposes to effect (pursuant to an
Action or otherwise), (x) any action which would adversely affect the
rights, preferences and privileges of the holders of the Series __
Preferred Securities, whether by way of amendment of the Partnership
Agreement or otherwise (including, without limitation, the authorization or
issuance of any Interests ranking, as to participation in the profits or
assets of the Partnership, senior to the Series __ Preferred Securities),
or (y) the dissolution, liquidation or winding up of the Partnership (other
than in connection with a distribution of Series __ Debentures and
dissolution of the Partnership upon the occurrence of a Special Event),
then Limited Partners who hold the outstanding Series __ Preferred
Securities will be entitled to vote on such amendment or proposed action of
the General Partner (but not on any other amendment or action) together as
a class with, in the case of an amendment or proposed action described in
clause (x) above which would equally adversely affect the rights,
preferences or privileges of holders of any Dividend Parity Securities or
any Liquidation Parity Securities, holders of such Dividend Parity
Securities or such Liquidation Parity Securities, as the case may be, or,
in the case of any amendment described in clause (y) above, holders of all
Liquidation Parity Securities, and such amendment or action shall not be
effective except with the approval of Limited Partners holding 66-2/3% in
aggregate liquidation preference of such class; provided, however, that no
-------- -------
such approval shall be required if the dissolution, liquidation or winding
up the Partnership is proposed or initiated pursuant to Section 15.2 of the
Partnership Agreement, or upon the initiation of proceedings, or after
proceedings have been initiated, for the dissolution, liquidation or
winding up of Duquesne Light.
The rights attached to the Series __ Preferred Securities will be
deemed not to be adversely affected by the creation or issue of, and no
vote will be required for the creation of, any further Interests ranking
junior to, or pari passu with, the Series __ Preferred Securities with
---- -----
regard to participation in the profits or assets of the Partnership.
Any required approval of Holders of Series __ Preferred
Securities may be given at a separate meeting of such Holders convened for
such purpose, at a general meeting of Preferred Security Holders or
pursuant to written consent. The Partnership will cause a notice of any
meeting at which Holders of Series __ Preferred Securities are entitled to
vote, or of any matter upon which action by written consent of such Holders
is to be taken, to be mailed to each Holder of Series __ Preferred
Securities. Each such notice will include a statement setting forth (i)
the date of such meeting or the date by which such action is to be taken,
(ii) a description of any matter on which such Holders are entitled to vote
or upon which written consent is sought and (iii) instructions for the
delivery of proxies or consents.
No vote or consent of Holders of Series __ Preferred Securities
will be required for the Partnership to redeem and cancel Series __
Preferred Securities in accordance with the Partnership Agreement.
Notwithstanding that Holders of Series __ Preferred Securities
are entitled to vote or consent under any of the circumstances described
above, holders of any of the Series __ Preferred Securities and any other
series of Preferred Securities that are entitled to vote or consent with
such Series __ Preferred Securities as a class at such time that are owned
by Duquesne Light or any Affiliate of Duquesne Light shall not be entitled
to vote or consent and shall, for the purposes of such vote or consent, be
treated as if they were not outstanding.
(x) Ranking. So long as any Series __ Preferred Securities are
-------
outstanding, the Partnership will not issue any Interests ranking, as to
participation in the profits or assets of the Partnership, senior to the
Series __ Preferred Securities.
(xi) See (i)-(ii) above for a description of the Series __
Debentures.
(xii) Mergers. The General Partner is authorized and directed
-------
to conduct its affairs and to operate the Partnership in such a way that
the Partnership would not be deemed to be an "investment company" required
to be registered under the 1940 Act or taxed as a corporation for Federal
income tax purposes and so that the Series __ Debentures will be treated as
indebtedness of Duquesne Light for Federal income tax purposes. In this
connection, the General Partner is authorized to take any action not
inconsistent with applicable law, the Certificate or the Partnership
Agreement and that does not adversely affect the interests of Holders of
Series __ Preferred Securities that the General Partner determines in its
discretion to be necessary or desirable for such purposes.
The Partnership shall not 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 partnership, corporation or
other body, except as described below. The General Partner may, without
the consent of the Holders of the Series __ Preferred Securities, cause the
Partnership to consolidate, amalgamate, merge with or into, or be replaced
by, or convey or transfer its properties and assets substantially as an
entirety to, a Delaware limited partnership or "other business entity" (as
defined in the Act, but not including any general partnership) organized
under the laws of any state of the United States or the Turks and Caicos
Islands, provided that (i) such successor entity either (x) expressly
assumes all of the obligations of the Partnership under the Series __
Preferred Securities or (y) substitutes for the Series __ Preferred
Securities other securities having substantially the same terms as the
Series __ Preferred Securities (the "Successor Securities") so long as the
Successor Securities rank, with respect to participation in the profits and
assets of the successor entity, at least as high as the Series __ Preferred
Securities rank, with respect to participation in the profits and assets of
the Partnership, (ii) Duquesne Light expressly acknowledges such successor
entity as the holder of the Series __ Debentures, (iii) such merger,
consolidation, amalgamation, replacement, conveyance or transfer does not
cause the Series __ Preferred Securities to be delisted by any national
securities exchange or other organization on which the Series __ Preferred
Securities are then listed unless the Series __ Preferred Securities are
promptly relisted, or the Successor Securities are promptly listed, by such
exchange or other organization, (iv) such merger, consolidation,
amalgamation, replacement, conveyance or transfer does not cause the
Series __ Preferred Securities to be downgraded or the Successor Securities
to be rated lower than the Series __ Preferred Securities immediately prior
to such merger, consolidation, amalgamation, replacement, conveyance or
transfer by any "nationally recognized statistical rating organization," as
that term is defined by the Securities and Exchange Commission for purposes
of Rule 436(g)(2) under the Securities Act, (v) such merger, consolidation,
amalgamation, replacement, conveyance or transfer does not adversely affect
the powers, preferences and other special rights of Holders of Series __
Preferred Securities in any material respect, and (vi) prior to such
merger, consolidation, amalgamation, replacement, conveyance or transfer,
the General Partner has received an opinion of nationally recognized
independent counsel to the Partnership experienced in such matters to the
effect that (w) Holders of outstanding Series __ Preferred Securities will
not recognize any gain or loss for Federal income tax purposes as a result
of the merger, consolidation, amalgamation, replacement, conveyance or
transfer, (x) such successor entity will be treated as a partnership for
Federal income tax purposes, (y) following such merger, consolidation,
amalgamation, replacement, conveyance or transfer, Duquesne Light and such
successor entity will be in compliance with the 1940 Act without
registering thereunder as an investment company, and (z) such merger,
consolidation, amalgamation, replacement, conveyance or transfer will not
adversely affect the limited liability of Holders of Series __ Preferred
Securities.
<PAGE>
This written Action shall constitute an Action for purposes of
the Partnership Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Action of
General Partner this ____ day of ________, 1994.
GENERAL PARTNER:
DUQUESNE LIGHT COMPANY
By: ______________________________
Name:
Title:
<PAGE>
Exhibit A
===========================================================================
Certificate Number Number of Preferred Securities
---------------------------------------------------------------------------
R-1
===========================================================================
CUSIP NO.
Certificate Evidencing Preferred Securities
of
Duquesne Capital L.P.
_% Cumulative Monthly Income Preferred Securities, Series _
(liquidation preference $25 per security)
Duquesne Capital L.P., a limited partnership formed under the
laws of the State of Delaware (the "PARTNERSHIP"), hereby certifies that
___________ (the "PREFERRED SECURITY HOLDER") is the registered owner of
_______ (_________) preferred securities of the Partnership representing
Interests in the Partnership of a series designated the __% Cumulative
Monthly Income Preferred Securities, Series __ (liquidation preference $25
per security) (the "SERIES __ PREFERRED SECURITIES"). The Series __
Preferred Securities are fully paid and nonassessable Interests in the
Partnership, as to which the limited partners of the Partnership who hold
the Series __ Preferred Securities, in their capacities as limited partners
of the Partnership, will have no liability solely by reason of being
Preferred Security Holders in excess of their obligations to make payments
provided for in the Limited Partnership Agreement (as defined below) and
their share of the Partnership's assets and undistributed profits (subject
to the obligation of a Preferred Security Holder to repay any funds
wrongfully distributed to it). The Series __ Preferred Securities are
transferable on the books and records of the Partnership, in person or by a
duly authorized attorney, upon surrender of this certificate duly endorsed
and in proper form for transfer. The powers, preferences and special
rights and limitations of the Series __ Preferred Securities are
established pursuant to, and this certificate and the Series __ Preferred
Securities represented hereby are issued and shall in all respects be
subject to the terms and provisions of, the Amended and Restated Agreement
of Limited Partnership of the Partnership dated as of _________________,
1994, as the same may, from time to time, be amended (the "LIMITED
PARTNERSHIP AGREEMENT") authorizing the issuance of the Series __ Preferred
Securities and determining the powers, preferences, and other special
rights and limitations, regarding Dividends, voting, return of capital and
otherwise, and other matters relating to the Series __ Preferred
Securities. Capitalized terms used herein but not defined shall have the
meaning given them in the Limited Partnership Agreement. The Preferred
Security Holder is entitled to the benefits of the Payment and Guarantee
Agreement of Duquesne Light Company, a Pennsylvania corporation, dated as
of __________, 1994 (the "GUARANTEE") and the __% Subordinated Deferrable
Interest Debentures, Series __ of Duquesne Light Company (the "DEBENTURES")
issued pursuant to the Indenture dated as of _________, 1994 between
Duquesne Light Company and The First National Bank of Chicago, as Trustee,
in each case to the extent provided therein and in the Limited Partnership
Agreement. The Partnership will furnish a copy of the Limited Partnership
Agreement, the Guarantee and the Debentures to the Preferred Security
Holder without charge upon written request to the Partnership at its
principal place of business or registered office.
The Preferred Security Holder, by accepting this certificate, is
deemed to have agreed that the Debentures are subordinate and junior in
right of payment to all Senior Indebtedness of Duquesne Light Company as
and to the extent provided in the Indenture and the Guarantee. Upon
receipt of this certificate, the Preferred Security Holder is admitted to
the Partnership as a Limited Partner, is bound by the Limited Partnership
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, the Partnership has executed this certificate
this ___ day of _________, 1994.
DUQUESNE CAPITAL L.P.
By: Duquesne Light Company, its General Partner
By:____________________________________________
EXHIBIT 4.3
===========================================================================
DUQUESNE LIGHT COMPANY
TO
THE FIRST NATIONAL BANK OF CHICAGO,
Trustee
__________
INDENTURE
Dated as of __________, 1994
__________
===========================================================================
<PAGE>
DUQUESNE LIGHT COMPANY
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF __________, 1994
TRUST INDENTURE ACT SECTION INDENTURE SECTION
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . 909
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 909
(a)(3) . . . . . . . . . . . . . . . . . . . . . NOT APPLICABLE
(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
(d) . . . . . . . . . . . . . . . . . . . . . . . . . 1002
Section 314(a) . . . . . . . . . . . . . . . . . . . . . . . . . 1002
(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) . . . . . . . . . . . . . . . . . . . . . . . . . 1016
1017
(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
<PAGE>
TABLE OF CONTENTS
PAGE
----
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Additional Interest . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . 2
Authorized Executive Officer . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . 4
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Officer's Certificate . . . . . . . . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . 4
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Partnership . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Partnership Agreement . . . . . . . . . . . . . . . . . . . . . . 5
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . 5
Predecessor Security . . . . . . . . . . . . . . . . . . . . . . 5
Preferred Securities . . . . . . . . . . . . . . . . . . . . . . 5
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . 5
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . 5
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . 5
-----------------
NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED
TO BE A PART OF THE INDENTURE.)
<PAGE>
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . 5
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Security Register and Security Registrar . . . . . . . . . . . . 6
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . 6
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . 6
Special Representative. . . . . . . . . . . . . . . . . . . . . . 6
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . 6
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . 6
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
United States . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 102. Compliance Certificates and Opinions. . . . . . . . . . 6
SECTION 103. Form of Documents Delivered to Trustee. . . . . . . . . 7
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . . . . . 8
SECTION 105. Notices, etc. to Trustee and Company . . . . . . . . . 9
SECTION 106. Notice to Holders of Securities; Waiver . . . . . . . . 10
SECTION 107. Conflict With Trust Indenture Act . . . . . . . . . . . 10
SECTION 108. Effect of Headings and Table of Contents. . . . . . . . 11
SECTION 109. Successors and Assigns. . . . . . . . . . . . . . . . . 11
SECTION 110. Separability Clause . . . . . . . . . . . . . . . . . 11
SECTION 111. Benefits of Indenture . . . . . . . . . . . . . . . . . 11
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . . . . . 11
SECTION 113. Legal Holidays . . . . . . . . . . . . . . . . . . . . 11
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . . . 12
SECTION 202. Form of Trustee's Certificate of Authentication . . . 12
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . . 13
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . 15
SECTION 303. Execution, Authentication, Delivery and Dating . . . . 15
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . 16
SECTION 305. Registration; Registration of Transfer and Exchange . . 17
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities . . . 18
SECTION 307. Payment of Interest; Interest Rights Preserved . . . . 19
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . 20
SECTION 309. Cancellation by Security Registrar . . . . . . . . . . 20
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . 20
SECTION 311. Extension of Interest Payment Period . . . . . . . . . 20
SECTION 312. Additional Interest. . . . . . . . . . . . . . . . . . 21
<PAGE>
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 401. Applicability of Article . . . . . . . . . . . . . . . 22
SECTION 402. Election to Redeem; Notice to Trustee . . . . . . . . 22
SECTION 403. Selection of Securities to Be Redeemed . . . . . . . . 22
SECTION 404. Notice of Redemption . . . . . . . . . . . . . . . . 23
SECTION 405. Securities Payable on Redemption Date . . . . . . . . . 24
SECTION 406. Securities Redeemed in Part . . . . . . . . . . . . . 24
ARTICLE FIVE
SINKING FUNDS
SECTION 501. Applicability of Article . . . . . . . . . . . . . . . 24
SECTION 502. Satisfaction of Sinking Fund Payments With Securities . 25
SECTION 503. Redemption of Securities for Sinking Fund . . . . . . 25
ARTICLE SIX
COVENANTS
SECTION 601. Payment of Principal, Premium and Interest . . . . . . 26
SECTION 602. Maintenance of Office or Agency . . . . . . . . . . . 26
SECTION 603. Money for Securities Payments to Be Held in Trust . . . 26
SECTION 604. Corporate Existence . . . . . . . . . . . . . . . . . . 28
SECTION 605. Maintenance of Properties . . . . . . . . . . . . . . 28
SECTION 606. Statement as to Compliance . . . . . . . . . . . . . . 28
SECTION 607. Waiver of Certain Covenants . . . . . . . . . . . . . . 28
SECTION 608. Restriction on Payment of Dividends . . . . . . . . . . 29
SECTION 609. Maintenance of Partnership Existence . . . . . . . . . 29
SECTION 610. Rights of Holders of Preferred Securities . . . . . . 29
ARTICLE SEVEN
SATISFACTION AND DISCHARGE
SECTION 701. Satisfaction and Discharge of Securities. . . . . . . . 30
SECTION 702. Satisfaction and Discharge of Indenture . . . . . . . 32
SECTION 703. Application of Trust Money . . . . . . . . . . . . . . 32
ARTICLE EIGHT
EVENTS OF DEFAULT; REMEDIES
<PAGE>
SECTION 801. Events of Default . . . . . . . . . . . . . . . . . . . 33
SECTION 802. Acceleration of Maturity; Rescission and Annulment . . 34
SECTION 803. Collection of Indebtedness and Suits for Enforcement
by Trustee . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 804. Trustee May File Proofs of Claim . . . . . . . . . . . 36
SECTION 805. Trustee May Enforce Claims Without Possession
of Securities . . . . . . . . . . . . . . . . . . . . 36
SECTION 806. Application of Money Collected . . . . . . . . . . . . 37
SECTION 807. Limitation on Suits . . . . . . . . . . . . . . . . . 37
SECTION 808. Unconditional Right of Holders to Receive Principal,
Premium and Interest . . . . . . . . . . . . . . . . . 38
SECTION 809. Restoration of Rights and Remedies . . . . . . . . . . 38
SECTION 810. Rights and Remedies Cumulative . . . . . . . . . . . . 38
SECTION 811. Delay or Omission Not Waiver . . . . . . . . . . . . . 38
SECTION 812. Control by Holders of Securities . . . . . . . . . . . 38
SECTION 813. Waiver of Past Defaults . . . . . . . . . . . . . . . 39
SECTION 814. Undertaking for Costs . . . . . . . . . . . . . . . . 39
SECTION 815. Waiver of Stay or Extension Laws . . . . . . . . . . . 40
ARTICLE NINE
THE TRUSTEE
SECTION 901. Certain Duties and Responsibilities . . . . . . . . . . 40
SECTION 902. Notice of Defaults . . . . . . . . . . . . . . . . . . 40
SECTION 903. Certain Rights of Trustee . . . . . . . . . . . . . . . 41
SECTION 904. Not Responsible for Recitals or Issuance of Securities. 42
SECTION 905. May Hold Securities . . . . . . . . . . . . . . . . . 42
SECTION 906. Money Held in Trust . . . . . . . . . . . . . . . . . 42
SECTION 907. Compensation and Reimbursement . . . . . . . . . . . . 42
SECTION 908. Disqualification; Conflicting Interests . . . . . . . 43
SECTION 909. Corporate Trustee Required; Eligibility . . . . . . . 43
SECTION 910. Resignation and Removal; Appointment of Successor . . . 43
SECTION 911. Acceptance of Appointment by Successor . . . . . . . . 45
SECTION 912. Merger, Conversion, Consolidation or Succession
to Business . . . . . . . . . . . . . . . . . . . . . 46
SECTION 913. Preferential Collection of Claims Against Company . . . 46
SECTION 914. Appointment of Authenticating Agent . . . . . . . . . . 47
ARTICLE TEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 1001. Lists of Holders . . . . . . . . . . . . . . . . . . 48
SECTION 1002. Reports by Trustee and Company . . . . . . . . . . . 49
ARTICLE ELEVEN
CONSOLIDATION, MERGER, CONVEYANCE OR OTHER TRANSFER
SECTION 1101. Company May Consolidate, etc., Only on Certain Terms . 49
SECTION 1102. Successor Corporation Substituted . . . . . . . . . . 50
<PAGE>
ARTICLE TWELVE
SUPPLEMENTAL INDENTURES
SECTION 1201. Supplemental Indentures Without Consent of Holders . . 50
SECTION 1202. Supplemental Indentures With Consent of Holders . . . 51
SECTION 1203. Execution of Supplemental Indentures . . . . . . . . . 53
SECTION 1204. Effect of Supplemental Indentures . . . . . . . . . . 53
SECTION 1205. Conformity With Trust Indenture Act . . . . . . . . . 53
SECTION 1206. Reference in Securities to Supplemental Indentures . . 53
SECTION 1207. Modification Without Supplemental Indenture . . . . . 53
ARTICLE THIRTEEN
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
SECTION 1301. Purposes for Which Meetings May Be Called . . . . . . 54
SECTION 1302. Call, Notice and Place of Meetings . . . . . . . . . . 54
SECTION 1303. Persons Entitled to Vote at Meetings . . . . . . . . 54
SECTION 1304. Quorum; Action . . . . . . . . . . . . . . . . . . . 55
SECTION 1305. Attendance at Meetings; Determination of Voting Rights;
Conduct and Adjournment of Meetings. . . . . . . . . . 55
SECTION 1306. Counting Votes and Recording Action of Meetings . . . 56
SECTION 1307. Action Without Meeting . . . . . . . . . . . . . . . . 57
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 1401. Liability Solely Corporate . . . . . . . . . . . . . . 57
ARTICLE FIFTEEN
SUBORDINATION OF SECURITIES
SECTION 1501. Securities Subordinate to Senior Indebtedness . . . . 57
SECTION 1502. Payment Over of Proceeds of Securities . . . . . . . . 58
<PAGE>
SECTION 1503. Disputes with Holders of Certain Senior Indebtedness . 59
SECTION 1504. Subrogation . . . . . . . . . . . . . . . . . . . . . 60
SECTION 1505. Obligation of the Company Unconditional . . . . . . . 60
SECTION 1506. Priority of Senior Indebtedness Upon Maturity . . . . 60
SECTION 1507. Trustee as Holder of Senior Indebtedness . . . . . . . 61
SECTION 1508. Notice to Trustee to Effectuate Subordination . . . . 61
SECTION 1509. Modification, Extension, etc. of Senior Indebtedness . 61
SECTION 1510. Trustee Has No Fiduciary Duty to Holders of Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . . 61
SECTION 1511. Paying Agents Other Than the Trustee . . . . . . . . . 62
SECTION 1512. Rights of Holders of Senior Indebtedness Not Impaired. 62
SECTION 1513. Effect of Subordination Provisions; Termination . . . 62
Testimonium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Signatures and Seals . . . . . . . . . . . . . . . . . . . . . . . . 63
Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . 63-64
<PAGE>
INDENTURE, dated as of __________, 1994, between DUQUESNE
LIGHT COMPANY, a corporation duly organized and existing under the laws of
the Commonwealth of Pennsylvania (herein called the "Company"), having its
principal office at One Oxford Centre, 301 Grant Street, Pittsburgh,
Pennsylvania 15279, and The First National Bank of Chicago, a national
banking association duly organized and existing under the laws of the
United States of America, having its principal corporate trust office at
One First National Plaza, Suite 0126, Chicago, Illinois 60670, 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"), 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.
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 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 in any particular case, at
the date of the execution and delivery of this Indenture;
provided, however, that in determining generally accepted
accounting 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 indirectly, 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 any Affiliate of the Company) authorized by the Trustee pursuant
to Section 914 to act on behalf of the Trustee to authenticate one or more
series of Securities.
"AUTHORIZED EXECUTIVE OFFICER" means the Chairman of the
Board, the President, any Vice President, the Treasurer, any Assistant
Treasurer or any other duly authorized officer of the Company.
"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, 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, per-
forming 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 Executive
Officer and delivered 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 One First National Plaza, Suite
0126, Chicago, Illinois 60670.
"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 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 Payment and Guarantee Agreement dated as
of _____ __, 1994, delivered by the Company for the benefit of the holders
of Preferred Securities.
"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 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 Executive 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 beenauthenticated 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.
"PARTNERSHIP" means Duquesne Capital L.P., a Delaware limited
partnership, or any permitted successor under the Partnership Agreement.
"PARTNERSHIP AGREEMENT" means the Amended and Restated
Agreement of Limited Partnership of Duquesne Capital L.P., dated as of
_________, 1994, as it may be amended from time to time.
"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 limited partnership interests
issued by the Partnership or similar securities issued by a permitted
successor to the Partnership in accordance with the Partnership Agreement.
"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; provided that the Company's
obligations under the Guaranty 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.
"SPECIAL REPRESENTATIVE" means any special representative duly
appointed by the holders of Preferred Securities of any series in
accordance with the Partnership Agreement or Action or Actions of the
General Partner establishing such series to act on their behalf or on
behalf of the Partnership to enforce the obligations of the Company
hereunder.
"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 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 means 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 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 is 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 by a Special
Representative or, alternatively, may be embodied in and evidenced by the
record of Holders or Special Representatives, as the case may be, 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 prin-
cipal 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, telex 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 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:
The First National Bank of Chicago
One First National Plaza
Suite 0126
Chicago, Illinois 60670
Attention: Corporate Trust Services Division
Telephone: (312) 407-1901
Telecopy: (312) 407-1708
If to the Company, to:
Duquesne Light Company
One Oxford Centre
301 Grant Street
Pittsburgh, Pennsylvania 15279
Attention: Treasurer
Telephone: (412) 393-6000
Telecopy: (412) 393-6571
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, telex 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
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
shall bind its 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 for so long as any Preferred Securities
remain outstanding, the holders of such Preferred Securities, or the
Special Representative acting on behalf of such holders, subject to certain
limitations set forth in this Indenture, may enforce the Company's
obligations hereunder directly against the Company as third party
beneficiaries of this Indenture without first proceeding against the
Partnership.
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, 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 pro-
vision 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, 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 supplemental
indenture, Board Resolution or Officer's Certificate (or any combination
thereof) establishing such series, 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.
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 Officer
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 evidence loans by the
Partnership of the proceeds of the issuance of Preferred Securities of the
Partnership plus the amount of capital contributions made by the Company to
the Partnership 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, a Board
Resolution or an Officer's Certificate (or any combination thereof):
(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 the
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; and the basis of computation of
interest, if other than as provided in Section 310;
(f) the place or places at which (1) the principal of
and premium, if any, and interest, if any, on Securities of
such series shall be payable, (2) registration of transfer of
Securities of such series may be effected, (3) exchanges of
Securities of such series may be effected and (4) 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
presentation 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;
(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) 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;
(k) 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;
(l) 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;
(m) any exceptions to Section 113, or variation in the
definition of Business Day, with respect to the Securities of
such series; and
(n) 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 Executive Officer and may have the
corporate seal of the Company affixed thereto or reproduced thereon
attested by any other Authorized Executive Officer or by the 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 Executive Officers
or the 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 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, a Board Resolution, or an
Officer's Certificate (or any combination thereof), 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 Executive 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 affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which 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 its
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 any series of Securities, after the preparation of definitive
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 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 any 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 notice is
to be given identifying the serial numbers of the Securities of such series
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, upon the Company's request, 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 proposed 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 payment 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 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 PERIOD.
Unless otherwise specified as contemplated by Section 301 with
respect to Securities of any series, 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 such series for a period of up to 18
consecutive months, and at, or at any time prior to, the end of any such
extended interest payment period, the Company shall pay all interest then
accrued and unpaid (together with interest thereon at the rate specified
for such Securities to the extent permitted by applicable law) in the same
manner as provided for the payment of Defaulted Interest in Section 307
hereof; provided that, during any such extended interest payment period,
the Company shall not pay or declare any dividend on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of its capital
stock or make any guarantee payments with respect to the foregoing (other
than payments under the Guarantee); and provided further that any such
extended interest payment period may only be selected with respect to the
Securities of such series if an extended interest payment period of
identical length is simultaneously selected for all Securities then
Outstanding under this Indenture. Prior to the end of any such extended
interest payment period of less than 18 consecutive months, the Company may
further extend the interest payment period, provided that such extended
interest payment period together with all such further extensions thereof
may not exceed a period of 18 consecutive months. Following the
termination of any extended interest payment period, if the Company has
paid all accrued and unpaid interest required by the Securities for such
period, the Company shall have the right to again extend the interest
payment periods for up to 18 consecutive months as herein provided.
If the Partnership is the sole holder of Securities at the time
the Company elects to extend an interest payment period, the Company shall
give the Partnership and the Trustee notice of its selection of such
extended interest payment period one Business Day prior to the earlier of
(i) the date dividends on any series of the Preferred Securities would
otherwise be payable and (ii) the date the Partnership is required to give
notice of the record or payment date of such dividends to any national
securities exchange on which the Preferred Securities of such series shall
be listed or to holders of the Preferred Securities of such series, but in
any event not less than two Business Days prior to such record date. The
Company shall cause the Partnership to give such notice of the Company's
selection of any such extended interest payment period to the holders of
the Preferred Securities.
If the Partnership is not the sole holder of Securities at the
time the Company elects to extend an interest payment period, the Company
shall give the holders of the Securities and the Trustee notice of its
selection of such extended interest payment period ten Business Days prior
to the related Interest Payment Date.
SECTION 312. ADDITIONAL INTEREST.
So long as any Preferred Securities remain outstanding, if the
Partnership 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 the Partnership
after the payment of such taxes, duties, assessments or governmental
charges shall result in the Partnership'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 Security
Registrar 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 Security Registrar 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 Security Registrar, 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 Security Registrar shall promptly notify the Company and the
Trustee 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.
If so 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 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 Cer-
tificate, 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 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. STATEMENT AS TO COMPLIANCE.
The Company shall deliver to the Trustee, within 150 days after
the end of each fiscal year of the Company ending after the date hereof, a
written statement, which need not comply with Section 102, signed by an
Authorized Executive Officer of the Company, stating that
(a) a review of the activities of the Company during such year
and of performance under this Indenture has been made under such
officer's supervision, and
(b) to the best of his knowledge, based on such review, either
(1) the Company has fulfilled all its obligations under this Indenture
throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known
to such officer and the nature and status thereof and (2) no Event of
Default has occurred and is continuing or, if an Event of Default has
occurred and is continuing, specifying each such Event of Default
known to such officer and the nature and status thereof.
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, 606 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, so long as the Partnership holds Securities of any
series, the Partnership 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 66 2/3% in aggregate liquidation preference of the
outstanding Preferred Securities affected, obtained as provided in the
Partnership Agreement.
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) if at
such time (a) the Company shall be in default with respect to its payment
or other obligations under the Guarantee, (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 PARTNERSHIP 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 Partnership other than such Preferred Securities, (ii) not
voluntarily (to the extent permitted by law) dissolve, liquidate or wind up
the Partnership, (iii) remain the sole General Partner of the Partnership
and timely perform in all material respects all of its duties as General
Partner of the Partnership (including the duty to pay dividends on the
Preferred Securities), and (iv) use reasonable efforts to cause the
Partnership to remain a limited partnership and otherwise continue to be
treated as a partnership for Federal income tax purposes provided that any
permitted successor to the Company under this Indenture may succeed to the
Company's duties as General Partner of the Partnership; and provided
further that the Company may permit the Partnership to consolidate or merge
with or into another limited partnership or other permitted successor under
the Partnership Agreement so long as the Company agrees to comply with this
Section 609 with respect to such successor limited partnership or other
permitted successor.
SECTION 610. RIGHTS OF HOLDERS OF PREFERRED SECURITIES.
The Company agrees that, for so long as any Preferred Securities
remain outstanding, its obligations under this Indenture will also be for
the benefit of the holders from time to time of Preferred Securities, and
the Company acknowledges and agrees that such holders, or the Special
Representative or Special Representatives acting on behalf of such holders,
will be entitled to enforce this Indenture, as third party beneficiaries,
directly against the Company to the same extent as if such holders of
Preferred Securities held a principal amount of Securities equal to the
liquidation preference of the Preferred Securities held by such holders.
ARTICLE SEVEN
SATISFACTION AND DISCHARGE
SECTION 701. SATISFACTION AND DISCHARGE OF SECURITIES.
Any Security or Securities, or any portion of the principal
amount thereof, shall be deemed to have been paid for all purposes of this
Indenture, and the entire indebtedness of the Company in respect thereof
shall be 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 principal of and the
interest on which when due, without any regard to reinvestment
thereof, will provide moneys which, together with the money 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 Security
Registrar 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:
(x) 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
(y) 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
(z) if such deposit shall have been made prior to the
Maturity of such Securities, 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 not occurred.
Upon the deposit of money or Government Obligations, or both, in
accordance with this Section, together with the documents required by
clauses (x), (y) and (z) above, the Trustee shall, upon 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 (z) 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 sixty (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 914 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 and discharged,
pursuant to this Section (without regard to the provisions of this
paragraph), the Trustee or any Paying Agent, as the case may be, 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 Indenture
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 914
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 any interest, including any Additional
Interest, on any Security of such series within thirty (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 and 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 in-
cluded 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 25% 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 or the
Partnership 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 or the
Partnership a bankrupt or insolvent, or approving as properly filed a
petition by one or more Persons other than the Company or the
Partnership seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company or the Partnership under
any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official for the Company or the Partnership or for any substantial
part of either of their property, or ordering the winding up or
liquidation of either of their affairs, and any such decree or order
for relief or any such other decree or order shall have remained un
stayed and in effect for a period of 90 consecutive days; or
(e) the commencement by the Company or the Partnership of a
voluntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or of any
other case or proceeding to be adjudicated a bankrupt or insolvent, or
the consent by either the Company or the Partnership to the entry of a
decree or order for relief in respect of it in a case or proceeding
under any applicable Federal or State bankruptcy, insolvency, reorga-
nization or other similar law or to the commencement of any bankruptcy
or insolvency case or proceeding against it, or the filing by either
the Company or the Partnership of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or State
law, or the consent by either the Company or the Partnership 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 the Partnership or of any
substantial part of either of their property, or the making by either
the Company or the Partnership of an assignment for the benefit of
creditors, or the admission by either 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 the General Partner, as the
case may be; 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 or the Special Representative in respect 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 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 due to
certain events of bankruptcy, insolvency or reorganization of the Company
or the Partnership 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) or the Special
Representatives appointed in respect of series of Outstanding Securities
representing not less than 25% in principal amount of all Securities then
Outstanding, and not the Holders of the Securities of any one of such
series or the Special Representative appointed in respect of any one
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 judgment 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
(1) all overdue interest on all Securities of such
series;
(2) 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;
(3) interest upon overdue interest at the rate or
rates prescribed therefor in such Securities to the extent
that payment of such interest is lawful;
(4) 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 non-payment 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 Partnership or the
Company or any other obligor upon the Securities or the property of the
Partnership or 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 Company.
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 25% 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 enforce-
ment of any such payment, and such rights shall not be impaired without the
consent of 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 or the Special
Representative appointed in respect 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, or the Special Representative or
Special Representatives appointed with respect to series of Outstanding
Securities representing 66 2/3% in aggregate principal amount of the
Outstanding Securities of all such series, as the case may be, shall have
the right to make such direction, and not the Holders of the Securities or
the Special Representative 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 or any such Special
Representative, the Trustee shall be entitled to receive from such Holders
or any such Special Representative 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 the Partnership holds the Securities of
any series, the Partnership may not waive any past default without the
consent of at least 66 2/3% in aggregate liquidation preference of the
outstanding Preferred Securities affected, obtained as provided in the
Partnership Agreement.
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; but 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) The Trustee shall have and be subject to all the duties and
responsibilities specified with respect to an indenture trustee in the
Trust Indenture Act.
(b) 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.
(c) 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 upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
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) except as otherwise provided in Section 801, the Trustee
shall not be charged with knowledge of any Event of Default with
respect to the Securities of any series for which it is acting as
Trustee unless either (1) a Responsible Officer of the Trustee shall
have actual knowledge of the Event of Default or (2) written notice
of such Event of Default 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 reasonable compensation
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, 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 reasonably 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 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.
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.
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 of America, 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 that so long as any Preferred
Securities remain outstanding, the Partnership shall not execute any Act to
remove the Trustee without the consent of the holders of 66 2/3% in
aggregate liquidation preference of Preferred Securities outstanding,
obtained as provided in the Partnership Agreement.
(d) If at any time:
(1) 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
(2) 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
(3) 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 succes-
sor 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 of Default or event which is, or after
notice or lapse of time, or both, would become, an Event of Default shall
have occurred and be continuing, 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 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; but, 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 (1) 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, (2) 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
(3) 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 here-
under 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; but, 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. 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 or the Commonwealth of Puerto Rico,
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 corporation
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 applicable
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 30 and December 31 in each
year, commencing December 31, 1994, 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 AND COMPANY.
Not later than December 31 in each year, the Trustee shall
transmit to the Holders and the Commission a report with respect to any
events and other matters described in Section 313(a) of the Trust Indenture
Act, in such manner and to the extent required by the Trust Indenture Act.
The Trustee shall transmit to the Holders and the Commission, and the
Company shall file with the Trustee (within thirty (30) days after filing
with the Commission in the case of reports which pursuant to the Trust
Indenture Act must be filed with the Commission and furnished to the
Trustee) and transmit to the Holders, such other information, reports and
other documents, if any, at such times and in such manner, as shall be
required by the Trust Indenture Act.
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 existing
under the laws of the United States of America, any State thereof or
the District of Columbia, and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
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 and
treating any indebtedness for borrowed money which becomes an
obligation of the Company as a result of such transaction as having
been incurred by the Company at the time of 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 in any material
respect, such change, elimination or addition shall become effective
with respect to such series only when no Security of such series
remains Outstanding; or
(e) to provide collateral security for 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 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
(h) 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
(i) to change any place or places where (1) the principal of and
premium, if any, and interest, if any, on all or any series of
Securities shall be payable, (2) all or any series of Securities may
be surrendered for registration of transfer, (3) all or any series of
Securities may be surrendered for exchange and (4) notices and demands
to or upon the Company in respect of all or any series of Securities
and this Indenture may be served; or
(j) 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 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(g).
Notwithstanding the foregoing, so long as any of the Preferred Securities
remain outstanding, the Partnership may not consent to a supplemental
indenture under this Section 1202 without the prior consent, obtained as
provided in the Partnership Agreement, of the holders of not less than
66 2/3% in aggregate liquidation preference of all Preferred Securities
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 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.
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 rep-
resentatives 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 ten
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 $1,000 principal amount of Securities held or represented by
him; provided, however, that no vote shall be cast or counted at any meet-
ing 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 adjourned 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, 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 or 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 property or
securities satisfactory to such holders) in full payment of such Senior
Indebtedness then outstanding. Upon the payment in full of all Senior
Indebtedness, 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 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 hereof.
_________________________
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>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, all as of the day and year first above written.
DUQUESNE LIGHT COMPANY
By:_____________________________________
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:_____________________________________
EXHIBIT 4.4
DUQUESNE LIGHT COMPANY
Officer's Certificate
(Under Section 301 of the Indenture
of Duquesne Light Company)
I, the undersigned ____________________, _______________ of DUQUESNE
LIGHT COMPANY (the "Company"), in accordance with Section 301 of the
Indenture dated as of __________________, 1994 (the "Indenture,"
capitalized terms used herein and not defined herein having the meanings
specified in the Indenture), of the Company to The First National Bank of
Chicago, Trustee, do hereby establish a series of Securities designated
___% Subordinated Deferrable Interest Debentures, Series __, and limited in
aggregate principal amount (except as contemplated in Section 301(b) of the
Indenture) to $____________, having the following terms and
characteristics (the lettered clauses set forth below corresponding to the
lettered subsections of Section 301 of the Indenture):
(a) the title of the Securities of such series shall be "___%
Subordinated Deferrable Interest Debentures, Series __" (the
"Debentures");
(b) the aggregate principal amount of Debentures which may be
authenticated and delivered under the Indenture shall be limited to
$____________, except as contemplated in Section 301(b) of the
Indenture;
(c) interest on the Debentures shall be payable to the
Person or Persons in whose name the Debentures are registered at the
close of business on the Regular Record Date for such interest;
(d) the Stated Maturity of the principal of the Debentures shall
be ________, 204_;
(e) the Debentures shall bear interest at a rate of ___% per
annum accruing from ____________, 199_ or from the most recent
Interest Payment Date (as defined below) to which interest has been
paid or duly provided for; to the extent permitted by law, overdue
installments of principal and interest shall also bear interest at
such rate; subject to the right of the Company to extend interest
payment periods pursuant to Section 311 of the Indenture, such
interest shall be payable monthly on the last day of each calendar
month (an "Interest Payment Date"), commencing on ____________ to the
Holder or Holders of the Debentures on the Regular Record Date for
such interest, which shall be one Business Day prior to the relevant
Interest Payment Date; provided, however, that if the Debentures are
held neither by the Partnership nor by a securities depositary, the
Company shall have the right to change the Regular Record Date by one
or more Officer's Certificates supplemental to this Officer's
Certificate;
(f) the office of The First National Bank of Chicago in New
York, New York, shall be the office or agency of the Company at which
(1) the principal of and premium, if any, and interest, if any, on the
Debentures shall be payable, (2) registration of transfer of the
Debentures may be effected, (3) exchanges of the Debentures may be
effected and (4) notices and demands to or upon the Company in respect
of the Debentures and the Indenture may be served; provided, however,
that the Company reserves the right to change, by one or more
Officer's Certificates, any such office or agency; and provided,
further, that the Company reserves the right to designate, by one or
more Officer's Certificates supplemental to this Officer's
Certificate, its principal office in Pittsburgh, Pennsylvania as any
such office or agency; and ___________ shall be the Security Registrar
for the Debentures;
(g) the Debentures shall be redeemable in whole or in part, at
the option of the Company, at any time on or after ____________, at a
redemption price equal to 100% of the aggregate principal amount of
such Debentures to be redeemed plus any accrued but unpaid interest,
including Additional Interest, to the date fixed for redemption in the
manner provided in the Indenture; no notice of redemption with respect
to the Debentures may state that such redemption shall be conditional
upon the receipt of certain monies as contemplated in the third
paragraph of Section 404 of the Indenture;
(h) If the Partnership redeems ___% Monthly Income Preferred
Securities, Series __ (the "Series __ Preferred Securities"), in
accordance with the terms thereof, the Company shall redeem Debentures
in a principal amount equal to the aggregate liquidation preference of
the Series __ Preferred Securities so redeemed at a redemption price
equal to 100% of the aggregate principal amount of such Debentures to
be redeemed plus any accrued and unpaid interest thereon, including
Additional Interest, any such redemption to be made on the date such
Series ___ Preferred Securities are so redeemed or on such earlier
date as the Company and the Partnership shall agree;
(i) the Debentures shall be issued in denominations of $25 and
integral multiples thereof;
(j) not applicable;
(k) not applicable; provided, however, that in the event that,
at any time subsequent to the initial authentication and delivery of
the Debentures, the Debentures are to be held by a securities
depositary, the Company may at such time establish the matters
contemplated in clause (k) in the second paragraph of Section 301 of
the Indenture in an Officer's Certificate supplemental to this
Officer's Certificate;
(l) no service charge shall be made for the registration of
transfer or exchange of Debentures; provided, however, that the
Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection with the exchange or
transfer (except that no such payment shall be required in connection
with a distribution of the Debentures in exchange for Series ___
Preferred Securities upon the occurrence of a Special Event (as such
term is defined in the Action of General Partner establishing the
Series ___ Preferred Securities));
(m) the provisions of Section 113 shall apply to the Debentures;
"Business Day" for purposes of the Debentures shall mean any day on
which banking institutions in The City of New York, New York or the
City of Pittsburgh, Pennsylvania are authorized or required by law to
close; and
(n) (i) the proper officers of the Company may execute, with
the Paying Agent and any Authenticating Agent for the Debentures, one
or more Letter of Representations to The Depository Trust Company
substantially in the form attached hereto and any supplements or
amendments thereto necessary or desirable to make the Debentures
eligible for deposit at such depositary; provided, however, that the
Company reserves the right to terminate any such Letter of
Representations by one or more Officer's Certificates supplemental to
this Officer's Certificate; and provided, further, that the Company
reserves the right to enter into similar agreements with any other
depositary with respect to the Debentures by one or more Officer's
Certificates supplemental to this Officer's Certificate; (ii) the
Debentures shall be substantially in the form attached hereto and
hereby authorized and approved and shall have such further terms as
are set forth in such form; and (iii) in the event that Debentures are
distributed to holders of Series __ Preferred Securities as a result
of the occurrence of a Special Event, the Company will use its best
efforts to list the Debentures on the New York Stock Exchange or on
such other exchange as the Series __ Preferred Securities are then
listed.
IN WITNESS WHEREOF, I have executed this Officer's Certificate this
_______ day of ________________, 1994.
________________________________
EXHIBIT 4.5
PAYMENT AND GUARANTEE AGREEMENT
PAYMENT AND GUARANTEE AGREEMENT ("Guarantee Agreement"), dated as
of ___________ __, 1994, is executed and delivered by Duquesne Light
Company, a Pennsylvania corporation (the "Guarantor"), for the benefit of
the Holders (as defined below) from time to time of the Preferred
Securities (as defined below) of Duquesne Capital L.P., a Delaware limited
partnership (the "Issuer").
WHEREAS, the Issuer will issue from time to time its preferred
limited partnership interests in one or more series ("Preferred
Securities"), and the Guarantor desires to issue this Guarantee Agreement
for the benefit of the Holders thereof from time to time, as provided
herein;
WHEREAS, the Issuer will loan the proceeds from the issuance and
sale of the Preferred Securities to the Guarantor in return for Debentures
(as defined below) which will be issued by the Guarantor pursuant to the
Indenture (as defined below); and
WHEREAS, the Guarantor desires hereby irrevocably and
unconditionally to agree to the extent set forth herein to pay to the
Holders the Guarantee Payments (as defined below) and to make certain other
payments on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the purchase by each Holder
of the Preferred Securities, which purchase the Guarantor hereby agrees
shall benefit the Guarantor, the Guarantor executes and delivers this
Guarantee Agreement for the benefit of the Holders.
ARTICLE I
As used in this Guarantee Agreement, the terms set forth below
shall, unless the context otherwise requires, have the following meanings.
Capitalized terms used but not otherwise defined herein shall have the
meanings assigned to such terms in the Amended and Restated Agreement of
Limited Partnership of the Issuer dated as of ____________ __, 1994 (the
"Partnership Agreement").
"Debentures" shall mean subordinated debentures of the Guarantor
issued in one or more series under the Indenture and having certain payment
terms which correspond to the terms of the related series of Preferred
Securities.
"Guarantee Payments" shall mean the following payments, without
duplication, to the extent not paid by the Issuer: (i) any accumulated and
unpaid Dividends on the Preferred Securities of any series, but only to the
extent that the Issuer has (a) funds legally available for the payment of
such Dividends, as determined by the General Partner, and (b) cash on hand
sufficient to make such payment; (ii) the Redemption Price (as defined
below) payable with respect to any Preferred Securities called for
redemption by the Issuer, but only to the extent that the Issuer has (a)
funds legally available for the payment of such Redemption Price, as
determined by the General Partner, and (b) cash on hand sufficient to make
such payment; and (iii) upon a liquidation of the Issuer, the lesser of (a)
the Liquidation Distribution (as defined below) and (b) the amount of
assets of the Issuer legally available to the Issuer for distribution to
holders of Preferred Securities.
"Holder" shall mean a Person in whose name an LP certificate
evidencing a Preferred Security is registered on the books and records of
the Issuer; 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" shall mean the Indenture, dated as of the date
hereof, between the Guarantor and The First National Bank of Chicago, as
trustee, pursuant to which the Guarantor will issue Debentures from time to
time to evidence the loan of the proceeds received by the Issuer from (i)
the issuance and sale of the Preferred Securities and (ii) capital
contributions made by the Guarantor to the Issuer.
"Liquidation Distribution" shall mean the aggregate of the
liquidation preference of $25 per Preferred Security plus an amount equal
to any accumulated and unpaid Dividends to the date of payment.
"Redemption Price" shall mean $25 per Preferred Security plus an
amount equal to any accumulated and unpaid Dividends to the date fixed for
redemption.
ARTICLE II
SECTION 2.01. The Guarantor irrevocably and unconditionally
agrees to pay in full to the Holders the Guarantee Payments, 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 2.02. 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, protest, notice of nonpayment,
notice of dishonor, notice of redemption and all other notices and demands.
SECTION 2.03. The obligations, covenants, agreements and duties
of the Guarantor 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 Dividends, 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 any extension arising out of a
permitted extension of any interest payment periods for the
Debentures);
(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, any of the
Preferred Securities; or
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred.
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 2.04. This Guarantee Agreement is a guarantee of payment
and not of collection. A Holder may enforce this Guarantee Agreement
directly against the Guarantor, and the Guarantor hereby waives any right
or remedy to require that any action be brought against the Issuer or any
other person or entity before proceeding against the Guarantor. Subject to
Section 2.05, all waivers herein contained shall be without prejudice to
the Holders' right at the Holders' option to proceed against the Issuer,
whether by separate action or by joinder. The Guarantor agrees that this
Guarantee Agreement shall not be discharged except by payment of the
Guarantee Payments in full and by complete performance of all obligations
of the Guarantor contained in this Guarantee Agreement.
SECTION 2.05. 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 and shall have
the right to waive payment of any amount of Dividends in respect of which
payment has been made to the Holders by the Guarantor pursuant to Section
2.01; provided, however, that the Guarantor shall not (except to the extent
required by mandatory provisions of law) 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 a payment under this Guarantee
Agreement, if, at the time of any such payment, any amounts are due and
unpaid under this Guarantee Agreement. To the extent that any amounts
shall be paid to the Guarantor in violation of the preceding sentence, the
Guarantor agrees to pay over such amounts to the Holders.
SECTION 2.06. 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 sole 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 (f), inclusive, of Section
2.03 hereof.
ARTICLE III
SECTION 3.01. So long as any Preferred Securities remain
outstanding, the Guarantor shall not declare or pay any Dividend on, or
redeem, purchase, acquire or make a liquidation payment with respect to,
any of its capital stock or make any guarantee payments with respect to the
foregoing (other than payments under this Guarantee Agreement) if at such
time the Guarantor shall be in default with respect to its payment or other
obligations hereunder or there shall have occurred and be continuing a
payment default (whether before or after the expiration of any period of
grace) or an Event of Default (as defined in the Indenture) under the
Indenture.
SECTION 3.02. The Guarantor covenants, so long as any Preferred
Securities remain outstanding, that it will: (i) not voluntarily (to the
extent permitted by law) dissolve, liquidate or wind-up the Issuer; (ii)
remain the sole General Partner (as defined in the Partnership Agreement)
of the Issuer and timely perform all of its duties as General Partner of
the Issuer (including the duty to declare and pay dividends on the
Preferred Securities), provided that any permitted successor of the
Guarantor under the Indenture may succeed to the Guarantor's duties as
General Partner; and (iii) use its reasonable efforts to cause the Issuer
to remain a limited partnership (or permitted successor under the
Partnership Agreement) and otherwise continue to be treated as a
partnership for Federal income tax purposes.
SECTION 3.03. This Guarantee Agreement will constitute an
unsecured obligation of the Guarantor and will rank subordinate in right of
payment to all Senior Indebtedness (as defined in the Indenture). Each
Holder shall be deemed to agree, by its acceptance hereof, and likewise
covenants and agrees that (1) any amounts payable hereunder are hereby
expressly subordinated, to the same extent as payments of principal of and
premium, if any, and interest on each and all of the Debentures issued
under the Indenture, in right of payment to the prior payment in full of
all Senior Indebtedness, and (2) it accepts the provisions of Article
Fifteen of the Indenture applicable to and binding the Debenture holders as
if it were a Debenture holder and such provisions applied to it and to the
same extent that such provisions apply to and bind the Debenture holders.
ARTICLE IV
This Guarantee Agreement shall terminate and be of no further
force and effect upon full payment of the Redemption Price of all Preferred
Securities or upon full payment of the Liquidation Distribution with
respect to all Preferred Securities upon liquidation of the Issuer;
provided, however, that this Guarantee Agreement shall continue to be
effective or shall be reinstated, as the case may be, if at any time any
Holder of Preferred Securities must restore payment of any sums paid under
the Preferred Securities or under this Guarantee Agreement for any reason
whatsoever.
ARTICLE V
SECTION 5.01. 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.
SECTION 5.02. Except with respect to any changes which do not
adversely affect the rights of holders of Preferred Securities of any
series (in which case no vote will be required), this Guarantee Agreement
may only be amended by an instrument in writing signed by the Guarantor
with the prior approval of the Holders of not less than 66-2/3% in
aggregate liquidation preference of the outstanding Preferred Securities of
each such affected series (voting together as one class), obtained in the
manner provided in the Partnership Agreement.
SECTION 5.03. Any notice, request or other communication
required or permitted to be given hereunder to the Guarantor shall be given
in writing by delivering the same against receipt therefor by facsimile
transmission (confirmed by mail) or telex, addressed to the Guarantor, as
follows (and if so given, shall be deemed given when mailed or upon receipt
of an answer-back, if sent by telex):
Duquesne Light Company
One Oxford Centre
301 Grant Street
Pittsburgh, Pennsylvania 15279
Facsimile No.: (412) 393-6571
Attention: Treasurer
Any notice, request or other communication required or permitted
to be given hereunder to the Holders shall be given by the Guarantor in the
same manner as notices sent by the Issuer to the Holders.
SECTION 5.04. This Guarantee Agreement is solely for the benefit
of the Holders and is not separately transferable from the Preferred
Securities.
SECTION 5.05. THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
This Guarantee Agreement is executed as of the day and year first
above written.
DUQUESNE LIGHT COMPANY
By __________________________________
Name:
Title:
