As filed with the Securities and Exchange Commission on May __, 1994
Registration No. 33-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
-----------------
DUQUESNE LIGHT COMPANY DUQUESNE CAPITAL L.P.
(Exact name of registrant as (Exact name of registrant
specified in its charter) as specified in its
charter)
One Oxford Centre
Pennsylvania 301 Grant Street Delaware
(State or other Pittsburgh, Pennsylvania 15279 (State or other
jurisdiction of (412) 393-6000 jurisdiction of
incorporation or (Address, including zip code, and incorporation or
organization) telephone number, including area organization)
code, of registrants' principal
25-0451600 executive offices) Applied for
(I.R.S. Employer (I.R.S. Employer
Identification WESLEY W. VON SCHACK Identification
No.) Chairman of the Board, President No.)
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)
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
-------------------
Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this Registration Statement as
determined in light of market conditions.
-------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. []
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box. [x]
-----------------
CALCULATION OF REGISTRATION FEE
Proposed Proposed
maximum maximum
Title of each Amount offering aggregate
class of to be price offering Amount of
securities to be registered per unit price registration
registered (1) (1)(2)(3) (1)(2)(3) fee (1)
Duquesne Capital
L.P.
Cumulative
Monthly Income
Preferred
Securities . . . .
Duquesne Light
Company Monthly
Income
Subordinated
Debentures . . . .
Duquesne Light
Company Payment
and Guarantee
Agreement with
respect to
Duquesne Capital
L.P.
Cumulative Monthly
Income
Preferred Securities
Total . . . . . . . $150,000,00
0 100% $150,000,000 $51,725
(1) THERE ARE BEING REGISTERED HEREUNDER SUCH PRESENTLY INDETERMINATE
NUMBER OF CUMULATIVE MONTHLY INCOME PREFERRED SECURITIES OF
DUQUESNE CAPITAL L.P. WITH AN AGGREGATE INITIAL OFFERING PRICE NOT
TO EXCEED $150,000,000 AND CERTAIN OBLIGATIONS WHICH SHALL BE
INCURRED BY DUQUESNE LIGHT COMPANY IN CONNECTION WITH DUQUESNE
CAPITAL L.P. CUMULATIVE MONTHLY INCOME PREFERRED SECURITIES,
INCLUDING A PAYMENT AND GUARANTEE AGREEMENT BY DUQUESNE LIGHT
COMPANY AND MONTHLY INCOME SUBORDINATED DEBENTURES OF DUQUESNE
LIGHT COMPANY. THE MONTHLY INCOME SUBORDINATED DEBENTURES MAY BE
DISTRIBUTED IN EXCHANGE FOR THE CUMULATIVE MONTHLY INCOME PREFERRED
SECURITIES UNDER CERTAIN CIRCUMSTANCES. NO SEPARATE CONSIDERATION
WILL BE RECEIVED FOR THE MONTHLY INCOME SUBORDINATED DEBENTURES OR
THE PAYMENT AND GUARANTEE AGREEMENT OFFERED WITH RESPECT TO THE
DUQUESNE CAPITAL L.P. CUMULATIVE MONTHLY INCOME PREFERRED
SECURITIES. PURSUANT TO RULE 457(O) UNDER THE SECURITIES ACT OF
1933 WHICH PERMITS THE REGISTRATION FEE TO BE CALCULATED ON THE
BASIS OF THE MAXIMUM OFFERING PRICE OF ALL THE SECURITIES LISTED,
THE TABLE DOES NOT SPECIFY BY EACH CLASS INFORMATION AS TO THE
AMOUNT TO BE REGISTERED, PROPOSED MAXIMUM OFFERING PRICE PER UNIT
OR PROPOSED MAXIMUM AGGREGATE PRICE.
(2) ESTIMATED SOLELY FOR THE PURPOSE OF DETERMINING THE REGISTRATION
FEE.
(3) EXCLUSIVE OF ACCRUED INTEREST AND DIVIDENDS, IF ANY.
--------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE
REGISTRANTS SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT
THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE
WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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<PAGE>
SUBJECT TO COMPLETION, DATED ________, 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.
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 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 __% Monthly Income
Subordinated 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 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. Duquesne Capital's
earnings will be limited to payments by Duquesne Light of interest on the
Series A Debentures and any other Indenture Securities. 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.
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 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, 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" 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, unless
the Series A MIPS have previously been exchanged for Series A Debentures
and 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.
---------------
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 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) $
(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.
* 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.
<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.
S-2
<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 to all Senior Indebtedness of Duquesne
Light. As of March 31, 1994, Duquesne Light had approximately
$1,509,000,000 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 can 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.
S-3
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 "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. 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 (as defined herein, and
including the Debentures) of Duquesne Light. The rights and obligations of
the General Partner and the limited partners in Duquesne Capital will be
governed 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.
S-4
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 a rate of ___% per annum 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
payments. 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
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 (and will continue to accumulate but without
interest on any amounts so deferred) by Duquesne Capital 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.
S-5
In addition, 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. 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 stated 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 stated 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 , 2044 (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:
S-6
Number of
Series A
Underwriters MIPS
------------ ----------
Goldman, Sachs & Co. . . . . . . . . . . . . . . .
----------
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. In order to meet one of the requirements for listing the Series A
MIPS on the New York Stock Exchange, the Underwriters will undertake to
sell lots of 100 or more Series A MIPS to a minimum of 400 beneficial
holders.
Duquesne Capital and Duquesne Light have agreed to indemnify the
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 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 of
Duquesne Capital or preferred stock or such substantially similar
securities of either Duquesne Capital or Duquesne Light, without the prior
written consent of the Underwriters.
S-7
<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 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 Monthly Income
Subordinated 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 of interest on the Debentures and other
securities 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. 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, the aggregate principal amount 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.
-----------------
The date of this Prospectus is , 1994.
----------------
* 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, 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 has been filed with the Commission pursuant to the
Exchange Act and is 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.
2
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"). 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
Duquesne Light, 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 (as defined herein, and including the Debentures) of
Duquesne Light. The rights and obligations of Duquesne Light, as general
partner, and the limited partners in Duquesne Capital will be governed 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.
3
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,
------------------------
1993 1992 1991 1990 1989
---- ---- ---- ---- ----
Ratio of Earnings to Fixed 2.43 2.38 2.23 2.04 1.92
Charges
Ratio of Earnings to Combined 2.23 2.19 2.05 1.85 1.72
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.
4
The dividend rate per annum payable 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 payments. 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 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 (and will continue to accumulate but without interest
on any amounts so deferred) by Duquesne Capital 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;
5
(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 stated 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 stated liquidation
preference of such MIPS until such certificates are presented to Duquesne
Light or its agent for exchange.
6
"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 and/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.
-------
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. 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
7
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 of 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 ______, 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 partnership 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.
8
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 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 or replacement
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 or replacement does not cause the MIPS to be downgraded 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 or replacement
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 or replacement 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 or replacement, (x) such successor
entity will be treated as a partnership for Federal income tax purposes,
(y) following such merger, consolidation, amalgamation or replacement,
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 or replacement 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
9
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 trustee (the "Preferred Trustee") 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 Preferred
Trustee to enforce Duquesne Capital's creditor 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.
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 Preferred Trustee 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 Preferred Trustee 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 Preferred Trustee, 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 dissolution of Duquesne Capital and distribution of Debentures upon
the occurrence of a Special Event), then the 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, 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, 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 pari passu with or junior to the MIPS of such
-----------
series with regard to participation in the profits or assets of
Duquesne Capital. Holders of MIPS will have no preemptive rights.
10
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 Preferred Trustee, 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 of any series are entitled to vote
or consent under any of the circumstances described above, the holders of
MIPS of such series 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
11
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
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.
12
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.
Duquesne Capital will not 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
13
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 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 the Delaware Act) 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 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
14
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 March 31, 1994, Duquesne Light had
15
approximately $1,509,000,000 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 March 31, 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 relating to the MIPS 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
16
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 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 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
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
17
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 or 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
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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 applicable to such Senior Indebtedness
until the Indenture Securities shall have been paid in full, and such
payments or distributions of cash, securities or other property 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 Duquesne Light (i) will be in default with respect to its
payment or other obligations under the Guarantee, (ii) 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 under the
Indenture or (iii) 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 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 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 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 interest payment
period
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by Duquesne Light shall not constitute a default in the payment of
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 the 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 Preferred Trustee 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
20
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, either
the Indenture Trustee or the holders of not less than 25% in aggregate
principal amount of all outstanding Indenture Securities, considered as one
class, or the Preferred Trustees 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
Preferred Trustee appointed in respect of any one series, may make such
declaration of acceleration.
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
Preferred Trustee 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 Preferred
Trustees 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; 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 Preferred Trustee, the Indenture Trustee shall be
entitled to receive from such holders or any such Preferred Trustee
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
21
which an Event of Default has occurred and is continuing 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. 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, 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 Preferred Trustee, which trustee shall be authorized to exercise
Duquesne Capital's right to accelerate the principal amount of the
Debentures and to enforce Duquesne Capital's other creditor 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
Preferred Trustee 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 holder.
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
22
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 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 affected 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 liquidation preference of all such Preferred Securities considered
23
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).
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.
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.
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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
resident 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
25
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,
among other things, 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
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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.
26
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 a 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,
27
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
28
to certain matters of Delaware law. Mudge Rose Guthrie Alexander & Ferdon
has from time to time performed legal services for Duquesne Light.
As of May 3, 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.
29
<PAGE>
============================= Certain Terms of the Series A
NO PERSON HAS BEEN AUTHORIZED Debentures . . . . . . . S-6
TO GIVE ANY INFORMATION OR TO Underwriting . . . . . . S-6
MAKE ANY REPRESENTATIONS OTHER
THAN THOSE CONTAINED IN THIS PROSPECTUS
PROSPECTUS SUPPLEMENT OR THE
PROSPECTUS AND, IF GIVEN OR Available Information . . . 2
MADE, SUCH INFORMATION OR Incorporation of Certain
REPRESENTATIONS MUST NOT BE Documents by
RELIED UPON AS HAVING BEEN Reference . . . . . . . 2
AUTHORIZED. THIS PROSPECTUS Duquesne Light Company . . 3
SUPPLEMENT AND THE PROSPECTUS Duquesne Capital. . . . . 3
DO NOT CONSTITUTE AN OFFER TO Use of Proceeds . . . . . . 3
SELL OR THE SOLICITATION OF AN Ratio of Earnings to Fixed
OFFER TO BUY ANY SECURITIES Charges and Ratio of
OTHER THAN THE SECURITIES Earnings to Combined
DESCRIBED IN THIS PROSPECTUS Fixed Charges and Preferred
SUPPLEMENT AND THE PROSPECTUS and
OR AN OFFER TO SELL OR THE Preference Stock Dividend
SOLICITATION OF AN OFFER TO Requirements . . . . . . . 4
BUY SUCH SECURITIES IN ANY Description of the MIPS . . 4
CIRCUMSTANCES IN WHICH SUCH Description of the Guarantee
OFFER OR SOLICITATION IS Description of the Debentures
UNLAWFUL. NEITHER THE and
DELIVERY OF THIS PROSPECTUS the Indenture . . . . . 15
SUPPLEMENT AND THE PROSPECTUS United States Income Taxation
NOR ANY SALE MADE HEREUNDER Plan of Distribution . . . 27
SHALL, UNDER ANY Legal Opinions . . . . . . 28
CIRCUMSTANCES, CREATE ANY Experts . . . . . . . . . . 29
IMPLICATION THAT THE
INFORMATION CONTAINED HEREIN ==============================
OR THEREIN IS CORRECT AS OF
ANY TIME SUBSEQUENT TO THE <PAGE>
DATE OF SUCH INFORMATION. ==============================
--------- _______ PREFERRED SECURITIES
DUQUESNE CAPITAL
TABLE OF CONTENTS
% CUMULATIVE
PROSPECTUS SUPPLEMENT MONTHLY INCOME PREFERRED
SECURITIES,
PAGE SERIES A
----
Certain Investment GUARANTEED TO THE EXTENT SET
Considerations . . . . . S-3 FORTH
Duquesne Light Company . S-4 HEREIN BY
Duquesne Capital . . . . S-4 DUQUESNE LIGHT COMPANY
Use of Proceeds . . . . . S-5
Certain Terms of the Series A ---------
MIPS . . . . . . . . . . S-5 PROSPECTUS SUPPLEMENT
----------
GOLDMAN, SACHS & CO.
REPRESENTATIVES OF THE
UNDERWRITERS
<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14.OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following is an estimate of expenses to be incurred by the registrants
in connection with the issuance and distribution of the MIPS, other than
underwriting discounts and commissions:
Securities and Exchange Commission
registration fee . . . . . . . . $51,725
Printing expenses . . . . . . . . 5,000
Trustees' charges, including
authentication . . . . . . . . . 5,000
Accounting fees and expenses . . 30,000
Legal fees and expenses . . . . . 225,000
Blue Sky expenses, including legal
fees . . . . . . . . . . . . . . 20,000
Rating agency fees . . . . . . . 100,000
Miscellaneous . . . . . . . . . . 13,275
Total . . . . . . . . $450,000
ITEM 15.INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Article II, Section 11 (the "Indemnification By-Law") of the By-Laws
of Duquesne Light, the directors and officers of Duquesne Light are each
entitled to be indemnified against reasonable expenses, including
attorneys' fees, and liabilities paid or incurred by them in connection
with actual or threatened claims, actions, suits or other proceedings by
reason of their having been or being a director or officer of Duquesne
Light, or having served at the request of Duquesne Light as a
representative of another corporation, partnership, joint venture, trust,
employee benefit plan or other entity, except as prohibited by law.
Section 1746(b) of the Pennsylvania Business Corporation Law prohibits
indemnification in any case where the act or failure to act giving rise to
the claim for indemnification is determined by a court to have constituted
willful misconduct or recklessness.
The Indemnification By-Law provides that it shall not be deemed exclusive
of any other rights of indemnification which a person seeking indemnity may
have under any agreement, By-Law or charter provision, vote of stockholders
or directors or otherwise. Also, under the By-Laws, Duquesne Light may
purchase insurance to protect itself and any person entitled to
indemnification against any liability or expense asserted against such
person, whether or not Duquesne Light would be permitted to indemnify
against such liability or expense under the Indemnification By-Law.
Duquesne Light maintains such liability insurance for its officers and
directors.
Reference is made to the form of Underwriting Agreement filed as Exhibit
1.1 hereto, which contains provisions for indemnification of Duquesne
Capital and Duquesne Light against certain liabilities for information
furnished by the Underwriters expressly for use in this Registration
Statement.
ITEM 16.LIST OF EXHIBITS.
Reference is made to the Exhibit Index on page II-8 hereof, such Exhibit
Index being incorporated by such reference in this Item 16.
ITEM 17.UNDERTAKINGS.
The undersigned registrants hereby undertake:
(1)to file, during any period in which offers or sales are being made, a
post-effective amendment to this
Registration Statement:
(i)to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii)to reflect in the prospectus any facts or events arising after the
effective date of this Registration
II-1
Statement (or the most recent post-effective amendment thereof) which,
individually or in the aggregate,
represent a fundamental change in the information set forth in this
Registration Statement; and
(iii)to include any material information with respect to the plan of
distribution not previously disclosed
in this Registration Statement or any material change to such information
in the Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
-----------------
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrants
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement;
(2)that, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof;
(3)to remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination
of the offering; and
(4)that, for purposes of determining any liability under the Securities
Act, each filing of Duquesne Light's annual report pursuant to Section
13(a) or 15(d) of the Exchange Act that is incorporated by reference in
this Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrants pursuant to the provisions described in Item 15 above, or
otherwise, the registrants have been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the registrants of expenses incurred or paid by a director, officer or
controlling person of the registrants in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrants will, unless in the opinion of their counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
The undersigned registrants hereby further undertake that:
(1) for purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrants pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective; and (2)
for the purpose of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Duquesne Light
Company certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Pittsburgh, Commonwealth of
Pennsylvania on the 9th day of May, 1994.
DUQUESNE LIGHT COMPANY
(Registrant)
By /s/ Wesley W. von Schack
-------------------------------
Wesley W. von Schack
Chairman of the Board, President and
Chief Executive Officer
II-3
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, Duquesne
Capital L.P. certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Pittsburgh, Commonwealth of
Pennsylvania on the 9th day of May, 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
II-4
<PAGE>
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Gary L. Schwass, Diane S. Eismont and Edwyna
G. Anderson and each of them his or her true and lawful attorneys-in-fact
and agents, with full power of substitution and revocation, for him or her
and in his or her name, place and stead, in any and all capacities, to sign
any and all amendments (including post-effective amendments) to this
Registration Statement and to file the same with the all exhibits thereto,
and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and
each of them, full power and authority to do and perform each and every act
and thing requisite and necessary to be done as fully to all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or
their or his substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
II-5
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, as amended,
this 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
--------- ------
/s/ Wesley W. von Schack Chairman of the Board,
------------------------- President and Chief May 9, 1994
Wesley W. von Schack Executive Officer
/s/ Gary L. Schwass Vice President-Finance
------------------------- and Principal Financial May 9, 1994
Gary L. Schwass Officer
/s/ Raymond H. Panza Controller and Principal May 9, 1194
------------------------- Accounting Officer
Raymond H. Panza
II-6
<PAGE>
/s/ John M. Arthur Director May 9, 1994
---------------------
John M. Arthur
/s/ Daniel Berg Director May 9, 1994
---------------------
Daniel Berg
/s/ Doreen E. Boyce Director May 9, 1994
---------------------
Doreen E. Boyce
/s/ Robert P. Bozzone Director May 9, 1994
----------------------
Robert P. Bozzone
/s/ Sigo Falk Director May 9, 1994
-----------------------
Sigo Falk
/s/ W. H. Knoell Director May 9, 1994
-----------------------
W. H. Knoell
/s/ G. Christian Lantzsch Director May 9, 1994
--------------------------
G. Christian Lantzsch
/s/ Robert Mehrabian Director May 9, 1994
-------------------------
Robert Mehrabian
/s/ Thomas J. Murrin Director May 9, 1994
-------------------------
Thomas J. Murrin
/s/ Robert B. Pease Director May 9, 1994
--------------------------
Robert B. Pease
/s/ Eric W. Springer Director May 9, 1994
--------------------------
Eric W. Springer
II-7
<PAGE>
DUQUESNE LIGHT COMPANY
DUQUESNE CAPITAL L.P.
REGISTRATION STATEMENT
ON FORM S-3
EXHIBIT INDEX
Exhibit
No. Description and Method of Filing
------------------------------------------
1.1 Form of Underwriting Agreement Filed herewith.
3.1 *Restated Articles of Duquesne Exhibit 3.1 to Duquesne
Light Company, as amended to Light Company's Annual
date Report on Form 10-K for
the year ended December
31, 1991.
3.2 *By-Laws of Duquesne Light Exhibit 3.2 to Duquesne
Company, as amended to date Light Company's Annual
Report on Form 10-K for
the year ended December
31, 1991.
4.1 Certificate of Limited Filed herewith.
Partnership of Duquesne Light
L.P.
4.2 Amended and Restated Certificate Filed herewith.
of Limited Partnership of
Duquesne Light L.P.
4.3 Agreement of Limited Partnership Filed herewith.
of Duquesne
Light L.P.
4.4 Amended and Restated Agreement Filed herewith.
of Limited Partnership of
Duquesne Capital L.P.
4.5 Form of Amended and Restated Filed herewith.
Agreement of Limited Partnership
of Duquesne Capital L.P.
4.6 Form of Action of Duquesne Light Filed herewith.
Company as General Partner of
Duquesne Capital L.P.,
establishing the terms of the
MIPS
4.7 Form of Indenture between Filed herewith.
Duquesne Light Company and The
First National Bank of Chicago
4.8 Form of Officer's Certificate Filed herewith.
establishing the Debentures
4.9 Form of Payment and Guarantee Filed herewith.
Agreement with respect to the
Preferred Securities
5.1 Opinion of Richard S. Christner Filed herewith.
as to the legality of the
Debentures and the Guarantee
5.2 Opinion of Reid & Priest as to Filed herewith.
the legality of the Debentures
and the Guarantee
5.3 Opinion of Richards, Layton and Filed herewith.
Finger as to the legality of the
MIPS
II-8
Exhibit
No. Description and Method of Filing
------------------------------------------
8.1 Opinion of Reid & Priest as to Filed herewith as part
certain Federal tax matters of Exhibit 5.2.
Calculation of Ratio of Earnings Filed herewith.
12.1 to Fixed Charges and Ratio of
Earnings to Combined Fixed
Charges and Preferred and
Preference Stock Dividend
Requirements
23.1(a) Consent of Richard S. Christner Filed herewith as part
of Exhibit 5.1.
23.1(b) Consent of Reid & Priest Filed herewith as part
of Exhibit 5.2.
23.1(c) Consent of Richards, Layton & Filed herewith as part
Finger of Exhibit 5.3.
23.2 Independent Auditors' Consent Filed herewith.
25.1 Statement of Eligibility of Filed herewith.
Indenture Trustee
----------------------
* Previously filed as indicated and incorporated herein by reference.
II-9
<PAGE>
EXHIBIT 12.1
DUQUESNE LIGHT COMPANY AND SUBSIDIARY
CALCULATION OF RATIO OF EARNINGS TO FIXED CHARGES
(THOUSANDS OF DOLLARS)
Year Ended December 31,
------------------------
1993 1992 1991 1990 1989
----- ---- ---- ---- ----
FIXED CHARGES:
Interest on long-term debt $102,938 $119,179$127,606 $135,850$140,623
Other interest 3,517 2,464 2,339 6,148 12,332
Amortization of debt
discount, premium and
expense-net 5,541 4,223 3,892 4,039 4,010
Portion of lease payments
representing an interest
factor 45,925 60,721 64,189 64,586 64,854
Total Fixed Charges $157,921 $186,587$198,026 $210,623$221,819
-------- ---------------- ----------------
EARNINGS:
Income from continuing
operations $144,787 $149,768$143,133 $135,456$129,437
Income taxes 81,623 107,999 101,073 84,478 75,151
Fixed charges as above 157,921 186,587 198,026 210,623 221,819
-------------------------------------------
Total Earnings $384,331 $444,354$442,232 $430,557$426,407
-------------------------------------------
RATIO OF EARNINGS TO FIXED 2.43 2.38 2.23 2.04 1.92
CHARGES ------ ------ ----- ----- ------
DUQUESNE LIGHT COMPANY AND SUBSIDIARY
CALCULATION OF RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED AND PREFERENCE STOCK DIVIDEND REQUIREMENTS
(THOUSANDS OF DOLLARS)
Year Ended December 31,
------------------------------------------
1993 1992 1991 1990 1989
------ ------ ------ ----- -----
FIXED CHARGES:
Interest on long-term
debt $102,938 $119,179 $127,606 $135,850$140,623
Other interest 3,517 2,464 2,339 6,148 12,332
Amortization of debt
discount, premium and
expense-net 5,541 4,223 3,892 4,039 4,010
Portion of lease
payments representing
an interest factor 45,925 60,721 64,189 64,586 64,854
Preferred and
Preference Dividends 14,368 15,908 18,001 22,384 26,397
Total Fixed Charges
and Preferred and $172,289 $202,495 $216,027 $233,007$248,216
Preference Dividends -------- -------- -------- ----------------
EARNINGS:
Income from
continuing operations $144,787 $149,768 $143,133 $135,456$129,437
Income taxes 81,623 107,999 101,073 84,478 75,151
Fixed charges as
above 157,921 186,587 198,026 210,623 221,819
Total Earnings $384,331 $444,354 $442,232 $430,557$426,407
-------- -------- -------- ----------------
RATIO OF EARNINGS TO
COMBINED FIXED
CHARGES AND PREFERRED
AND PREFERENCE STOCK 2.23 2.19 2.05 1.85 1.72
DIVIDEND REQUIREMENTS ------ ------ ------ ----- -----
II-10
<PAGE>
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in the Prospectus which
is a part of this Registration Statement of Duquesne Light Company on Form
S-3 of our report dated January 25, 1994, appearing in the Annual Report on
Form 10-K of Duquesne Light Company for the year ended December 31, 1993,
and to the reference to us under the heading "Experts" in such Prospectus.
DELOITTE & TOUCHE
Pittsburgh, Pennsylvania
May 6, 1994
II-11
EXHIBIT 1.1
Duquesne Capital L.P.
___% Cumulative Monthly Income
Preferred Securities, Series __
(liquidation preference $25 per Preferred Security)
guaranteed by
Duquesne Light Company
Underwriting Agreement
_____________, 1994
Goldman, Sachs & Co.
[INSERT NAMES OF CO-MANAGERS]
[As Representatives of the Several Underwriters]
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Dear Sirs:
Duquesne Capital L.P., a limited partnership
formed under the laws of the State of Delaware (the
"Partnership"), and Duquesne Light Company, a
Pennsylvania corporation, as guarantor (the "Guarantor")
and providor of certain Guarantor Securities (as defined
below), propose, subject to the terms and conditions
stated herein, that the Partnership issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters")
an aggregate of ______________ limited partner interests
of the Partnership of a series designated the ____%
Cumulative Monthly Income Preferred Securities,
Series ___ (liquidation preference $25 per Preferred
Security) (the "Preferred Securities"), guaranteed
pursuant to the Payment and Guarantee Agreement of the
Guarantor (the "Guarantee"), as to the payment of
dividends, as, if, and when declared and as to payments
on liquidation or redemption and entitled to the
benefits of the Guarantor Securities
described in the Final Supplemented Prospectus (as
defined in Section 1(a) hereof) provided by the
Guarantor. The proceeds from the sale of the Preferred
Securities will be loaned to the Guarantor in return
for subordinated debentures (the "Debentures") of the
Guarantor to be issued under the Indenture (the
"Indenture"), to be dated as of ____________ ___, 1994,
between the Guarantor and The First National Bank of
Chicago, as trustee (the "Trustee"). The Debentures
and the Guarantee are hereinafter referred to
collectively as the "Guarantor Securities," and the
Preferred Securities and the Guarantor Securities are
hereinafter referred to collectively as the
"Securities."
<PAGE>
1. Each of the Partnership and the
Guarantor jointly and severally represents and warrants
to, and agrees with, each of the Underwriters that:
(a) A registration statement on Form S-3
(File No. 33-__________) in respect of the Securities
has been filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Act"); such registration
statement and any post-effective amendment thereto,
each in the form heretofore delivered or to be
delivered to the Underwriters, and to you for each of
the other Underwriters (except that copies of the
registration statement and any post-effective amendment
delivered to you for each of the other Underwriters
need not include exhibits but shall include all
documents incorporated by reference therein), have been
declared effective by the Commission in such form; no
other document included or incorporated by reference in
the registration statement has heretofore been filed,
or transmitted for filing, with the Commission; and no
stop order suspending the effectiveness of such
registration statement has been issued and no
proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary
prospectus included in such registration statement or
filed with the Commission pursuant to Rule 424(a) of
the rules and regulations of the Commission under the
Act, being hereinafter called a "Preliminary
Prospectus"; the various parts of such registration
statement, including all exhibits thereto and the
documents then incorporated by reference therein, each
as amended at the time such part of the registration
statement became effective, being hereinafter called
the "Registration Statement"; the prospectus relating
to the Securities, in the form in which it was included
in the Registration Statement at the time it became
effective, being hereinafter called the "Prospectus";
any reference herein to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Act, as of
the date of such Preliminary Prospectus or Prospectus,
as the case may be; any reference to any amendment or
supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any
documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated by reference in such
Preliminary Prospectus or Prospectus, as the case may
be; and any reference to any amendment to the
Registration Statement shall be deemed to refer to and
include any annual report of the Guarantor filed
pursuant to Section 13(a) or 15(d) of the Exchange Act
after the effective date of the Registration Statement
that is incorporated by reference in the Registration
Statement; and the Prospectus as supplemented on
____________, 1994, in the form in which it was filed
with the Commission pursuant to Rule 424(b) under the
Act, including any documents incorporated by reference
therein as of the date of such filing, being
hereinafter called the "Preliminary Supplemented
2
<PAGE>
Prospectus"; and the Prospectus as amended or
supplemented in final form in the form in which it is
filed with the Commission pursuant to Rule 424(b) under
the Act in accordance with Section 5(a) hereof,
including any documents incorporated by reference
therein as of the date of such filing, being
hereinafter called the "Final Supplemented
Prospectus");
(b) The documents filed under the Act and
incorporated by reference in the Registration Statement
or Prospectus, if any, when they became effective,
conformed in all material respects to the requirements
of the Act and the rules, instructions and regulations
of the Commission thereunder, and as of such time none
of such documents contained an untrue statement of a
material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements therein, not misleading; and any further
documents so filed under the Act and incorporated by
reference in the Prospectus or any further amendment or
supplement thereto, when such documents become
effective will conform in all material respects to the
requirements of the Act and the rules, instructions and
regulations of the Commission thereunder and will not
contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein
or necessary to make the statements therein not
misleading; the documents filed under the Exchange Act
and incorporated by reference in the Registration
Statement or Prospectus, when they were filed with the
Commission, conformed in all material respects to the
requirements of the Exchange Act and the rules,
instructions and regulations of the Commission
thereunder, and as of such time none of such documents
contained an untrue statement of a material fact or
omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in
light of the circumstances under which they were made,
not misleading; and any further documents so filed
under the Exchange Act and incorporated by reference in
the Prospectus or any further amendment or supplement
thereto, when such documents are filed with the
Commission will conform in all material respects to the
requirements of the Exchange Act and the rules,
instructions and regulations of the Commission
thereunder and will not contain an untrue statement of
a material fact or omit to state a material fact
required to be stated therein or necessary to make the
statements therein, in light of the circumstances under
which they were made, not misleading;
(c) No order preventing or suspending the
use of any Preliminary Prospectus has been issued by
the Commission, and each Preliminary Prospectus, at the
time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules
and regulations of the Commission thereunder, and did
not contain an untrue statement of a material fact or
omit to state a material fact required to be stated
therein or necessary to make the statements therein, in
the light of the circumstances under which they were
made, not misleading; provided, however, that this
representation and warranty shall not apply to any
statements or
3
<PAGE>
omissions made in reliance upon and in
conformity with information furnished in writing to the
Partnership or the Guarantor by an Underwriter through
you expressly for use therein;
(d) The Registration Statement, the
Prospectus and, to the extent not used to confirm sales
of the Securities, the Preliminary Supplemented
Prospectus conform, and the Final Supplemented
Prospectus and any further amendments or supplements to
the Registration Statement or the Prospectus, when any
such post-effective amendments are declared effective
or supplements are filed with the Commission, as the
case may be, will conform in all material respects to
the requirements of the Act, the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act") and the
rules and regulations of the Commission thereunder and
do not and will not, (i) as of the applicable effective
date as to the Registration Statement and any amendment
thereto, (ii) as of the filing date of the Preliminary
Supplemented Prospectus, and (iii) as of the applicable
filing date as to the Final Supplemented Prospectus and
any Prospectus as further amended or supplemented,
contain an untrue statement of a material fact or omit
to state a material fact necessary in order to make the
statements therein, in light of the circumstances under
which they were made, not misleading; provided,
however, that neither the Guarantor nor the Partnership
makes any representations or warranties as to (A) that
part of the Registration Statement which shall
constitute the Statement of Eligibility (Form T-1)
under the Trust Indenture Act of the Trustee (the "Form
T-1"), or (B) the information contained in or omitted
from the Registration Statement or the Final
Supplemented Prospectus in reliance upon and in
conformity with information furnished in writing to the
Guarantor or the Partnership by an Underwriter through
you specifically for use in the Registration Statement
or the Final Supplemented Prospectus;
(e) The Partnership has no subsidiaries;
(f) The Securities Certificate filed by the
Guarantor with the Pennsylvania Public Utility
Commission (the "PUC") for issuance of the Debentures
and the Guarantee in connection with the issue and sale
of the Preferred Securities (the "Securities
Certificate") has been duly registered by order of the
PUC and remains in full force and effect without
amendment or modification, and is not the subject of
any appeal or other proceeding;
(g) The Partnership has been duly formed and
is validly existing in good standing as a limited
partnership under the laws of the State of Delaware,
with power and authority to own its properties and
conduct its business as described in the Preliminary
Supplemented Prospectus and the Final Supplemented
Prospectus, and has been duly qualified as a foreign
limited partnership for the transaction of business and
is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such
qualification, or is
4
<PAGE>
subject to no material liability
or disability by reason of the failure to be so
qualified in any such jurisdiction;
(h) The Guarantor has been duly incorporated
and is a corporation presently subsisting under the
laws of the Commonwealth of Pennsylvania, with
corporate power and authority to own its properties and
conduct its business as described in the Preliminary
Supplemented Prospectus and Final Supplemented
Prospectus and has been duly qualified as a foreign
corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction
in which it owns or leases properties, or conducts any
business, so as to require such qualification, or is
subject to no material liability or disability by
reason of the failure to be so qualified in any such
jurisdiction; and each subsidiary of the Guarantor
(other than the Partnership) has been duly incorporated
and is a corporation presently subsisting under the
laws of the Commonwealth of Pennsylvania;
(i) The Guarantor has no significant
subsidiaries within the meaning of Regulation S-X; all
of the shares of common stock of the Guarantor are
owned by DQE, Inc., a Pennsylvania corporation (the
"Parent");
(j) The Preferred Securities have been duly
and validly authorized and, when issued and delivered
against payment therefor as provided herein and in the
Partnership Agreement (as defined below), will be
validly issued and fully paid and nonassessable limited
partner interests in the Partnership and will conform
to the description thereof contained in the Final
Supplemented Prospectus;
(k) The issuance and delivery of the
Debentures have been duly authorized and, when the
Debentures have been duly executed, authenticated,
issued and delivered in accordance with this Agreement,
the Partnership Agreement and the Indenture in
consideration for the loan of the proceeds of the
issuance of the Preferred Securities, the Debentures
will constitute valid and legally binding obligations
of the Guarantor entitled to the benefits provided by
the Indenture, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting
creditors' rights and to general equity principles; the
Indenture has been duly authorized and, at the Time of
Delivery (as defined below), the Indenture will be duly
qualified under the Trust Indenture Act and will
constitute a valid and legally binding obligation of
the Guarantor, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general
applicability relating to or affecting creditors'
rights and to general equity principles; the
Debentures and the Indenture conform to the
descriptions thereof in the Final Supplemented
Prospectus; and the Indenture will be substantially in
the form filed as an exhibit to the Registration
Statement;
5
<PAGE>
(l) The Amended and Restated Agreement of
Limited Partnership of the Partnership dated the date
hereof (the "Partnership Agreement") has been duly
authorized by the Guarantor and constitutes a legal,
valid and binding agreement of the Guarantor and is
enforceable against the Guarantor in accordance with
its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general
applicability relating to or affecting creditors'
rights and to general equity principles;
(m) The Guarantee has been duly authorized
by the Guarantor and, when executed and delivered by
the Guarantor, will constitute a valid and legally
binding obligation of the Guarantor, enforceable in
accordance with its terms, subject, as to enforcement,
to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting
creditors' rights and to general equity principles; the
Guarantee will conform to the description thereof in
the Final Supplemented Prospectus;
(n) All of the issued general and limited
partner interests of the Partnership (other than the
Preferred Securities) are owned by the Guarantor and
the Initial Limited Partner (as defined in the
Partnership Agreement) and have been duly and validly
authorized and validly issued, and the interest of the
Guarantor is free and clear of all liens, encumbrances,
equities or claims; and the Partnership is not a party
to or otherwise bound by any agreement other than this
Agreement, the Partnership Agreement and the agreements
contemplated by the Final Supplemented Prospectus;
(o) The Partnership is not in violation of
its Certificate of Limited Partnership or the
Partnership Agreement, or in default in the performance
or observance of any material obligation, agreement,
covenant or condition contained in any contract,
agreement or other instrument to which it is a party or
by which it may be bound, the effect of which is
material to the Partnership, and neither the execution
or delivery of this Agreement, the consummation of the
transactions herein contemplated, the fulfillment of
the terms hereof, nor compliance with the terms and
provisions hereof will conflict with, or result in a
breach or violation of, or constitute a default under
(i) its Certificate of Limited Partnership or the
Partnership Agreement, or any contract, agreement or
other instrument to which the Partnership is a party or
by which it may be bound or (ii) any statute, order,
rule or regulation applicable to the Partnership of any
court or any federal or state governmental agency or
body having jurisdiction over the Partnership or over
any of its properties; and no consent, approval,
authorization, order, registration or qualification of
or with any such court or governmental agency or body
is required for the issue and sale or delivery of the
Securities or the consummation by the Partnership of
the transactions contemplated by this Agreement, except
as set
6
<PAGE>
forth in Section 1(e) above and except for the
registration under the Act of the Securities, the
qualification of the Indenture under the Trust
Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws in
connection with the purchase of the Preferred
Securities and the distribution of the Securities by
the Underwriters;
(p) The Guarantor is not in violation of its
Restated Articles, as amended (the "Restated
Articles"), or its By-Laws, as amended (the "By-Laws"),
or in default in the performance or observance of any
material obligation, agreement, covenant or condition
contained in any contract, agreement or other
instrument to which it is a party or by which it may be
bound, the effect of which is material to the
Guarantor, and neither the execution or delivery of
this Agreement, the consummation of the transactions
herein contemplated, the fulfillment of the terms
hereof, nor compliance with the terms and provisions
hereof will conflict with, or result in a breach or
violation of, or constitute a default under (i) the
Restated Articles, the By-Laws, or any contract,
agreement or other instrument to which the Guarantor is
a party or by which it may be bound or (ii) any
statute, order, rule or regulation applicable to the
Guarantor of any court or any federal or state
governmental agency or body having jurisdiction over
the Guarantor or over its properties; and no consent,
approval, authorization, order, registration or
qualification of or with any such court or governmental
agency or body is required for the issue and sale or
delivery of the Securities or the consummation by the
Guarantor of the transactions contemplated by this
Agreement, except as set forth in Section 1(e) above
and except for the registration under the Act of the
Securities, the qualification of the Indenture under
the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws in
connection with the purchase of the Preferred
Securities and the distribution of the Securities by
the Underwriters;
(q) Other than as set forth in the Final
Supplemented Prospectus, there are no legal or
governmental proceedings pending to which the Guarantor
or any of its subsidiaries is a party or of which any
property of the Guarantor or any of its subsidiaries is
the subject which, if determined adversely to the
Guarantor or any of its subsidiaries, would
individually or in the aggregate have a material
adverse effect on the consolidated position,
stockholders' equity or results of operations of the
Guarantor and its subsidiaries taken as a whole; and,
to the best of the Guarantor's knowledge, no such
proceedings are threatened or contemplated by
governmental authorities or threatened by others;
7
<PAGE>
(r) There are no contracts or documents that
are required to be filed as exhibits to the
Registration Statement or to any of the documents
incorporated by reference therein by the Act or the
Exchange Act or by the rules and regulations of the
Commission thereunder that have not been so filed;
(s) Neither the Partnership nor the
Guarantor is an investment company that is or is
required to be registered under the Investment Company
Act of 1940, as amended (the "Investment Company Act");
and neither the Partnership nor the Guarantor nor any
of the Guarantor's subsidiaries is directly or
indirectly controlled by or acting on behalf of any
person that is such a company; and
(t) Neither the Partnership nor the
Guarantor is a "holding company" within the meaning of
the Public Utility Holding Company Act of 1935, as
amended ("PUHCA"); the Parent is a "holding company" as
defined in PUHCA by reason of its ownership of all the
outstanding shares of common stock of the Guarantor,
but the Parent and Guarantor are each exempt from
PUHCA, except for the provisions of Section 9(a)(2)
thereof, by virtue of Section 3(a)(1) thereof and Rule
2 thereunder.
2. Subject to the terms and conditions
herein set forth, the Partnership agrees to issue and
sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to
purchase from the Partnership, at a purchase price per
Preferred Security of $____________, the number of
Preferred Securities set forth opposite the name of
such Underwriter in Schedule I hereto. The Guarantor
agrees to issue the Guarantor Securities concurrently
with the issue and sale of the Preferred Securities as
contemplated herein.
The Guarantor hereby guarantees the timely
performance by the Partnership of its obligations under
this Section 2, Section 6 and Section 11. As
compensation to the Underwriters for their commitments
hereunder, and in view of the fact that the proceeds of
the sale of the Preferred Securities will be loaned by
the Partnership to the Guarantor in return for the
Debentures of the Guarantor, the Guarantor hereby
agrees to pay at the Time of Delivery (as defined in
Section 4 hereof) to Goldman, Sachs & Co. for the
accounts of the several Underwriters, an amount equal
to $____________ per Preferred Security for the
Preferred Securities to be delivered by the Partnership
hereunder at the Time of Delivery; provided, however,
that such compensation will be an amount equal to
$____________ per Preferred Security for Preferred
Securities sold to certain institutions and to be
delivered by the Partnership hereunder at the Time of
Delivery. The Underwriters shall inform the Guarantor
in writing, not later than the business day prior to
the Time of Delivery, of the number of Preferred
Securities sold to such institutions.
8
<PAGE>
3. Upon the authorization by you of the
release of the Preferred Securities, the several
Underwriters propose to offer the Preferred Securities
for sale upon the terms and conditions set forth in the
Final Supplemented Prospectus.
4. A certificate or certificates in
definitive form for the Preferred Securities to be
purchased by each Underwriter hereunder, and in such
denominations and registered in such names as Goldman,
Sachs & Co. may request upon at least forty-eight
hours' prior notice to the Partnership, shall be
delivered by or on behalf of the Partnership to you for
the account of each such Underwriter, against payment
by such Underwriter or on its behalf of the purchase
price therefor by certified or official bank check or
checks or wire transfer in New York Clearing House
(next day) funds. The time, date and location of such
delivery and payment shall be 9:30 a.m. New York time,
on ____________, 1994, or at such other time and date
as you and the Partnership or the Guarantor may agree
upon in writing at the offices of Reid & Priest, 40
West 57th Street, New York, New York 10019. Such time
and date for delivery of the Preferred Securities is
herein called the "Time of Delivery." Such certificates
will be made available for checking and packaging at
least twenty-four hours prior to the Time of Delivery
at the office of The Depository Trust Company, 55 Water
Street, New York, New York 10004.
At the Time of Delivery, the Guarantor will
pay, or cause to be paid, the compensation payable to
the Underwriters under Section 2 hereof by certified or
official bank check or checks or wire transfer in New
York Clearing House (next day) funds.
5. Each of the Partnership and the
Guarantor jointly and severally agrees with each of the
Underwriters:
(a) (i) To prepare the Final Supplemented
Prospectus in a form approved by you and to file such
Final Supplemented Prospectus pursuant to Rule 424(b)
under the Act not later than the Commission's close of
business on the second business day following the
execution and delivery of this Agreement, or, if
applicable, at such earlier time as may be required by
Rule 424(b) under the Act; (ii) to make no further
amendment or any supplement to the Registration
Statement or Final Supplemented Prospectus prior to the
Time of Delivery which shall be reasonably disapproved
by you promptly after reasonable notice thereof; (iii)
to advise you promptly of any such amendment or
supplement after the Time of Delivery and furnish you
with copies thereof; (iv) in the case of the Guarantor,
to file promptly all reports and any definitive proxy
or information statements required to be filed by the
Guarantor with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act in each
case for so long as the delivery of a prospectus is
required in connection with the offering or sale of the
Securities and during such same period to advise you,
promptly after it receives notice thereof, of the time
9
<PAGE>
when any amendment to the Registration Statement has
been filed or becomes effective or any supplement to
the Prospectus or any amended Prospectus has been filed
with the Commission, of the issuance by the Commission
of any stop order or of any order preventing or
suspending the use of any prospectus relating to the
Securities, of the suspension of the qualification of
such Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by
the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional
information; and (v) in the event of the issuance of
any stop order or of any order preventing or suspending
the use of any prospectus or suspending any such
qualification, to use promptly its best efforts to
obtain its withdrawal;
(b) Promptly, from time to time, to take
such action as you may reasonably request to qualify
the Securities for offering and sale under the
securities laws of such jurisdictions as you may
request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to
complete the distribution of the Securities, provided
that in connection therewith neither the Partnership
nor the Guarantor shall be required to qualify as a
foreign corporation or to file a general consent to
service of process in any jurisdiction or to comply
with any other requirement of such laws reasonably
deemed by the Guarantor to be unduly burdensome;
(c) To furnish the Underwriters with copies
of the Final Supplemented Prospectus in such quantities
as you may from time to time reasonably request, and,
if the delivery of a prospectus is required at any time
prior to the expiration of nine months after the date
of this Agreement in connection with the offering or
sale of the Securities and if at such time any events
shall have occurred as a result of which the Final
Supplemented Prospectus as then amended or supplemented
would include an untrue statement of a material fact or
omit to state any material fact necessary in order to
make the statements therein, in light of the
circumstances under which they were made when such
Final Supplemented Prospectus is delivered, not
misleading, or, if for any other reason it shall be
necessary during such same period to amend or
supplement the Final Supplemented Prospectus or to file
under the Exchange Act any document incorporated by
reference in the Final Supplemented Prospectus in order
to comply with the Act or the Exchange Act and the
rules and regulations of the Commission thereunder, to
notify you and upon your request to file such document
and to prepare and furnish without charge to each
Underwriter and any dealer in securities as many copies
as you may from time to time reasonably request of an
amended Final Supplemented Prospectus or a supplement
to the Final Supplemented Prospectus which will correct
such statement or omission or effect such compliance;
10
<PAGE>
(d) In the case of the Guarantor, to make
generally available to its securityholders as soon as
practicable, but in any event not later than eighteen
months after the effective date of the Registration
Statement (as defined in Rule 158(c) under the Act), an
earning statement of the Guarantor and its subsidiaries
(which need not be audited) complying with Section
11(a) of the Act and the rules and regulations of the
Commission thereunder (including, at the option of the
Guarantor, Rule 158);
(e) During the period beginning from the
date hereof and continuing to and including the earlier
of (i) the termination of trading restrictions for the
Securities, as notified to the Partnership and the
Guarantor by you, and (ii) the date which is 30 days
after Time of Delivery, each of the Partnership and the
Guarantor agrees not to offer, sell, contract to sell
or otherwise dispose of any Preferred Securities, any
limited partnership interests of the Partnership, or
any preferred stock of the Guarantor or any other
securities of the Partnership or the Guarantor 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 the Partnership or the Guarantor,
without your prior written consent; and
(f) To use its best efforts to list, subject
to notice of issuance, the Preferred Securities on the
New York Stock Exchange.
6. The Partnership and the Guarantor, in
consideration of the loan by the Partnership of the
proceeds of the sale of the Preferred Securities to the
Guarantor, jointly and severally covenant and agree
with the several Underwriters that the Partnership and
the Guarantor will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of
the Partnership's and the Guarantor's counsel and
accountants in connection with the registration of the
Securities under the Act and all other expenses in
connection with the preparation, printing and filing of
the Registration Statement, any Preliminary Prospectus,
the Prospectus, the Preliminary Supplemented
Prospectus, the Final Supplemented Prospectus and
amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and
dealers; (ii) the cost of printing or producing any
Agreement Among Underwriters, this Agreement, the
Indenture, any Blue Sky Memorandum and any other
documents in connection with the offering, purchase,
sale and delivery of the Securities; (iii) all expenses
in connection with the qualification of the Securities
for offering and sale under state securities laws as
provided in Section 5(b) hereof, including the
reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and
in connection with the Blue Sky Memorandum up to an
amount not to exceed $____________; (iv) any
11
<PAGE>
fees charged by securities rating services for rating the
Securities; (v) the cost of listing the Preferred
Securities on the New York Stock Exchange; (vi) the
cost of preparing certificates for the Preferred
Securities; (vii) the fees and expenses of the Trustee
and any agent of the Trustee and the fees and
disbursements of counsel for the Trustee in connection
with the Indenture and the Debentures; (viii) the cost
and charges of any transfer agent or registrar; and
(ix) all other costs and expenses incident to the
performance of its obligations hereunder which are not
otherwise specifically provided for in this Section.
It is understood, however, that, except as provided in
this Section, Section 8 and Section 11 hereof, the
Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, transfer
taxes on resale of any of the Preferred Securities by
them, and any advertising expenses connected with any
offers they may make.
7. (A) The obligations of the Underwriters
hereunder shall be subject, in their discretion, to the
condition that all representations and warranties and
other statements of each of the Partnership and the
Guarantor herein are, at and as of the Time of
Delivery, true and correct, the condition that each of
the Partnership and the Guarantor shall have performed
all of their obligations hereunder theretofore to be
performed, and the following additional conditions:
(a) The Final Supplemented Prospectus shall
have been filed with the Commission pursuant to Rule
424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Act
and in accordance with Section 5(a) hereof; no stop
order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued
and no proceeding for that purpose shall have been
initiated or contemplated or threatened by the
Commission; and all requests for additional information
on the part of the Commission shall have been complied
with to your reasonable satisfaction;
(b) Mudge Rose Guthrie Alexander & Ferdon,
counsel for the Underwriters, shall have furnished to
you such opinion or opinions, dated the Time of
Delivery, with respect to: the incorporation of the
Guarantor and the formation of the Partnership; insofar
as the Federal laws of the United States and the laws
of the States of New York and Delaware are concerned,
the validity of the Guarantor Securities; this
Agreement; the Preferred Securities; the Indenture; the
Registration Statement; the Final Supplemented
Prospectus; and other related matters as you may
reasonably request, and such counsel shall have
received such papers and information as they may
reasonably request to enable them to pass upon such
matters; provided, that in rendering such opinion,
Mudge Rose Guthrie Alexander & Ferdon may rely upon the
opinion of Richard S. Christner, Associate General
Counsel of the Guarantor, delivered pursuant to
subsection (c) hereof as to all matters of Pennsylvania
law and upon the opinion of Richards,
12
<PAGE>
Layton & Finger delivered pursuant to subsection (e) hereof
as to matters of Delaware law relating to the Partnership,
the Preferred Securities and the Partnership Agreement;
(c) Richard S. Christner, Associate General
Counsel of the Guarantor, shall have furnished to you
his written opinion, dated the Time of Delivery, in
form and substance satisfactory to you, to the effect
that:
(i) The Partnership has been duly
qualified as a foreign limited partnership for the
transaction of business and is in good standing
under the laws of Pennsylvania and any other
jurisdiction in which it owns or leases
properties, or conducts any business, so as to
require such qualification, or is subject to no
material liability or disability by reason of the
failure to be so qualified in any such
jurisdiction;
(ii) The Guarantor is a corporation
presently subsisting under the laws of the
Commonwealth of Pennsylvania, with corporate power
and authority to own its properties and conduct
its business as described in the Preliminary
Supplemented Prospectus and Final Supplemented
Prospectus and has been duly qualified as a
foreign corporation for the transaction of
business and is in good standing under the laws of
each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to
require such qualification, or is subject to no
material liability or disability by reason of the
failure to be so qualified in any such
jurisdiction; each subsidiary of the Guarantor
(other than the Partnership) is a corporation
presently subsisting under the laws of the
Commonwealth of Pennsylvania; the Guarantor has no
significant subsidiaries within the meaning of
Regulation S-X; and all of the shares of common
stock of the Guarantor are owned by the Parent;
(iii) All of the issued general partner
interests of the Partnership (other than the
Preferred Securities) have been duly and validly
authorized and validly issued and are owned by the
Guarantor, free and clear of all liens,
encumbrances, equities or claims;
(iv) To the best knowledge of such
counsel there is no pending or threatened action,
suit or proceeding before any court or
governmental agency, authority or body or any
arbitrator involving the Partnership, the
Guarantor or any of the Guarantor's subsidiaries,
of a character required to be disclosed in the
Registration Statement which is not adequately
disclosed in the Final Supplemented Prospectus,
and there is no franchise, contract or other
document of a character required to be described
in the Registration Statement or Final
Supplemented Prospectus, or to be filed as an
exhibit, which is not described in the Final Supplemented
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Prospectus or filed as required; and
the statements included or incorporated in the
Final Supplemented Prospectus describing any legal
proceedings or material contracts or agreements
relating to the Partnership or the Guarantor
fairly summarize such matters;
(v) Assuming that the limited
partners of the Partnership who hold the Preferred
Securities (the "Preferred Security Holders"), as
limited partners of the Partnership, do not
participate in the control of the business of the
Partnership, the Preferred Securities have been
duly and validly authorized and are validly issued
and, subject to the qualification set forth in
this paragraph (v), fully paid and nonassessable
limited partner interests in the Partnership, as
to which the Preferred Security Holders, in their
capacities as limited partners of the Partnership,
will have no liability in excess of their
obligations to make payments provided for in the
Partnership Agreement or the subordination
provisions of the Guarantor Securities 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);
(vi) The issuance and delivery of the
Debentures have been duly authorized and the
Debentures have been duly executed, authenticated,
issued and delivered in accordance with the
Indenture and the Debentures constitute valid and
legally binding obligations of the Guarantor
entitled to the benefits provided by the
Indenture, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or
affecting creditors' rights and to general equity
principles; the Indenture has been duly
authorized, executed and delivered and constitutes
a valid and legally binding obligation of the
Guarantor, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of
general applicability relating to or affecting
creditors' rights and to general equity
principles; the Indenture has been duly qualified
under the Trust Indenture Act; and the Debentures
and the Indenture conform as to legal matters to
the description thereof in the Final Supplemented
Prospectus;
(vii) The issuance of the Guarantee has
been duly authorized and the Guarantee has been
duly executed and delivered by the Guarantor and
constitutes a valid and legally binding obligation
of the Guarantor, enforceable in accordance with
its terms, subject as to enforcement, to
bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or
affecting creditors' rights and to general equity
principles; and the Guarantee conforms as to
14
<PAGE>
legal matters to the description thereof in the Final
Supplemented Prospectus;
(viii) The Partnership Agreement has
been duly authorized and constitutes a legal,
valid and binding agreement of the Guarantor, and
is enforceable against the Guarantor in accordance
with its terms, subject as to enforcement, (A) to
the effect upon the Partnership Agreement of (1)
bankruptcy, insolvency, moratorium, receivership,
reorganization, liquidation, fraudulent conveyance
and other similar laws relating to or affecting
the rights and remedies of creditors generally,
and (2) principles of equity (regardless of
whether considered and applied in a proceeding in
equity or at law), and (B) to the fact that no
opinion is expressed on the effect upon the
Partnership Agreement of applicable law relating
to fiduciary duties;
(ix) This Agreement has been duly
authorized, executed and delivered by each of the
Partnership and the Guarantor;
(x) The Securities Certificate has
been duly registered by order of the PUC and
remains in full force and effect without amendment
or modification, and is not the subject of any
appeal or other proceeding;
(xi) The issuance and sale by the
Partnership of the Preferred Securities, the
issuance and delivery of the Debentures by the
Guarantor, the compliance by the Partnership and
the Guarantor with all of the provisions of this
Agreement, the execution, delivery and performance
by the Guarantor of the Guarantee and the
consummation of the transactions herein and
therein contemplated will not conflict with or
result in a breach or violation of any of the
terms or provisions of, or constitute a default
under, any agreement or instrument known to such
counsel to which the Partnership or the Guarantor
or any of the Guarantor's subsidiaries is a party
or by which the Partnership or the Guarantor or
any of the Guarantor's subsidiaries is bound or to
which any of the property of the Partnership or
the Guarantor or any of the Guarantor's
subsidiaries is subject, the Certificate of
Limited Partnership and the Partnership Agreement,
the Restated Articles or By-laws of the Guarantor,
or any statute, order, rule or regulation known to
such counsel of any court or any federal or state
governmental body having jurisdiction over the
Partnership, the Guarantor or any of the
Guarantor's subsidiaries or any of their
properties; and no consent, approval,
authorization, order, registration or
qualification of or with any court or governmental
agency or body is required solely as a result of
the issuance and delivery of the Securities or the
consummation of the transactions contemplated by
this Agreement, except for (i) the
15
<PAGE>
registration of the Securities Certificate, (ii) the
registration under the Act of the Securities, (iii) the
qualification of the Indenture under the Trust
Indenture Act and (iv) such consents, approvals,
authorizations, registrations or qualifications as
may be required under state securities or Blue Sky
laws in connection with the purchase of the
Preferred Securities and the distribution of the
Securities by the Underwriters;
(xii) Neither the Partnership nor the
Guarantor is a "holding company" within the
meaning of PUHCA; the Parent is a "holding
company" as defined in PUHCA by reason of its
ownership of all the outstanding shares of common
stock of the Guarantor, but the Parent and the
Guarantor are each exempt from PUHCA, except for
the provisions of Section 9(a)(2) thereof, by
virtue of Section 3(a)(1) thereof and Rule 2
thereunder;
(xiii) Neither the Partnership nor the
Guarantor is an investment company that is or is
required to be registered under the Investment
Company Act; and neither the Partnership nor the
Guarantor nor any of the Guarantor's subsidiaries
is directly or indirectly controlled by or acting
on behalf of any person that is such a company;
(xiv) Each part of the Registration
Statement when such part became effective and the
Final Supplemented Prospectus as of its date and
any amendment or supplement thereto made by the
Guarantor and the Partnership prior to the Time of
Delivery as of the date of such amendment or
supplement complied as to form in all material
respects with the requirements of the Act and the
Trust Indenture Act and the rules and regulations
thereunder; such counsel has no reason to believe
that, as of its effective date, the Registration
Statement or any further amendment thereto made by
the Guarantor and the Partnership prior to the
Time of Delivery contained an untrue statement of
a material fact or omitted to state a material
fact required to be stated therein or necessary to
make the statements therein not misleading or
that, as of its date, the Final Supplemented
Prospectus and any further amendment or supplement
thereto made by the Guarantor and the Partnership
prior to the Time of Delivery, contained an untrue
statement of a material fact or omitted to state a
material fact necessary to make the statements
therein, in light of the circumstances in which
they were made, not misleading, or that, as of the
Time of Delivery, either the Registration
Statement or the Final Supplemented Prospectus as
amended or supplemented or any further amendment
or supplement thereto made by the Guarantor and
the Partnership prior to the Time of Delivery
contains an untrue statement of a material fact or
omits to state a material fact necessary to make
the statements therein, in light of the
16
<PAGE>
circumstances in which they were made, not
misleading; provided that such counsel need not
express any belief (A) as to the financial
statements or other financial or statistical data
contained in or incorporated by reference in the
Registration Statement and the Final Supplemented
Prospectus, (B) as to any information contained
therein that was furnished to the Partnership or
the Guarantor in writing by any Underwriter
through you expressly for use therein or (C) as to
any statements contained in the Form T-1 filed as
an exhibit to the Registration Statement;
(xv) The documents incorporated by
reference in the Final Supplemented Prospectus or
any amendment or supplement thereto (other than
the financial statements and related schedules or
other financial or statistical data therein, as to
which such counsel need express no opinion), when
they became effective under the Act or were filed
with the Commission under the Exchange Act, as the
case may be, complied as to form in all material
respects with the requirements of the Act or the
Exchange Act, as applicable, and the rules,
instructions and regulations of the Commission
thereunder.
The foregoing opinions may be limited to the laws
of New York, Delaware and Pennsylvania and federal
securities laws. In rendering his opinion, such counsel
may rely, as to matters of Delaware law relating to the
Partnership, the Preferred Securities and the
Partnership Agreement, upon the opinion of Richards,
Layton & Finger and, as to matters of New York law,
upon the opinion of Reid & Priest, delivered pursuant
to subsections (d) and (e) hereof;
(d) Reid & Priest, special counsel for the
Guarantor, shall have furnished to you their opinion
dated the Time of Delivery, to the same effect as set
forth in clause (i), (ii) (as to the subsistence of the
Guarantor as a corporation only), (iii) (except as to
liens, encumbrances, equities or claims), (v) through
(ix), (xi) (as to the Certificate of Limited
Partnership, the Partnership Agreement, the Restated
Articles and By-laws only), (xii) through (xiii), and
(xiv) (as to the first clause thereof and as to
information in the Final Supplemented Prospectus under
the caption "United States Income Taxation" only) of
subsection (c) above and (i) and (ii) of subsection (e)
below. In addition, Reid & Priest shall include advice
that it confirms its opinion as set forth under "United
States Income Taxation" in the Final Supplemented
Prospectus. The foregoing opinion may be limited to
the laws of New York, Delaware and Pennsylvania and
federal securities laws. In rendering such opinion,
such counsel may rely, as to matters of law of the
Commonwealth of Pennsylvania, upon the opinion of
Richard S. Christner, Esq., delivered pursuant to
subsection (c) hereof, and, as to matters of Delaware
law relating to the Partnership, the Preferred
Securities and the Partnership
17
<PAGE>
Agreement, upon the opinion of Richards, Layton & Finger,
delivered pursuant to subsection (e) hereof;
(e) Richards, Layton & Finger, special
Delaware counsel to the Partnership, shall have
furnished to you their opinion, dated the Time of
Delivery, in form and substance satisfactory to you, to
the effect that:
(i) The Partnership has been duly
formed and is validly existing and in good
standing as a limited partnership under the laws
of the State of Delaware;
(ii) Under the Partnership Agreement
and the Delaware Revised Uniform Limited
Partnership Act, 6 Del. Code Section 17-101 et
seq. (the "Delaware Act"), the Partnership has all
necessary partnership power and authority to own
its properties and conduct its business, all as
described in the Final Supplemented Prospectus;
(iii) The general and limited partner
interests of the Partnership issued to the
Guarantor and the Initial Limited Partner have
been duly and validly authorized and are validly
issued;
(iv) Assuming that the Preferred
Security Holders, as limited partners of the
Partnership, do not participate in the control of
the business of the Partnership, the Preferred
Securities have been duly and validly authorized
and are validly issued and, subject to the
qualification set forth in this paragraph (iv),
fully paid and nonassessable limited partner
interests in the Partnership, as to which the
Preferred Security Holders, in their capacities as
limited partners of the Partnership, will have no
liability in excess of their obligations to make
payments provided for in the Partnership Agreement
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);
(v) There are no provisions in the
Partnership Agreement the inclusion of which,
subject to the terms and conditions therein, or,
assuming that the Preferred Security Holders, as
limited partners of the Partnership, take no
action other than actions permitted by the
Partnership Agreement, the exercise of which, in
accordance with the terms and conditions therein,
would cause the Preferred Security Holders, as
limited partners of the Partnership, to be deemed
to be participating in the control of the business
of the Partnership;
18
<PAGE>
(vi) The Partnership Agreement
constitutes a legal, valid and binding agreement
of the Guarantor, and is enforceable against the
Guarantor, in accordance with its terms, subject,
as to enforcement, (A) to the effect upon the
Partnership Agreement of (1) bankruptcy,
insolvency, moratorium, receivership,
reorganization, liquidation, fraudulent conveyance
and other similar laws relating to or affecting
the rights and remedies of creditors generally,
and (2) principles of equity (regardless of
whether considered and applied in a proceeding in
equity or at law), and (B) to the fact that no
opinion is expressed on the effect upon the
Partnership Agreement of applicable law relating
to fiduciary duties.
(vii) Under the Partnership Agreement
and the Delaware Act, the Partnership has all
necessary partnership power and authority to
execute and deliver, and to perform its
obligations under, this Agreement;
(viii) Under the Partnership Agreement
and the Delaware Act, the execution and delivery
by the Partnership of this Agreement, and the
performance by the Partnership of its obligations
hereunder, have been duly authorized by all
necessary partnership action on the part of the
Partnership;
(ix) The issuance and sale by the
Partnership of the Preferred Securities pursuant
to this Agreement and the execution, delivery and
performance by the Partnership of this Agreement
will not violate (a) any Delaware statute, rule or
regulation, or (b) the Certificate of Limited
Partnership of the Partnership or the Partnership
Agreement;
(x) No consent, approval,
authorization, order, registration or
qualification of or with any Delaware court or
Delaware governmental agency or body is required
solely as a result of the issuance and sale by the
Partnership of the Preferred Securities pursuant
to this Agreement, the execution, delivery and
performance by the Partnership of this Agreement
or the consummation of the transactions
contemplated in this Agreement; and
(xi) Such counsel has reviewed the
statements in the Final Supplemented Prospectus
under the caption "Duquesne Capital L.P." and,
insofar as it contains statements of Delaware law,
such statements are fairly presented; and
(xii) Assuming that the Partnership is
treated as a partnership for Federal income tax
purposes, and assuming that the Partnership
derives no income from or connected with sources
within the State of Delaware and has no assets,
activities (other than the maintenance of a
registered office and registered agent in the
State of Delaware and the filing
19
<PAGE>
of documents with the Delaware Secretary of State) or
employees in the State of Delaware, the Preferred
Security Holders (other than those Preferred Security
Holders who reside or are domiciled in the State
of Delaware), will have no liability for Delaware
income taxes solely as a result of their
participation in the Partnership, and the
Partnership will not be liable for any Delaware
income tax.
(f) On the date of this Agreement and at the
Time of Delivery, Deloitte & Touche shall have
furnished to you a letter, dated the date of delivery
thereof, to the effect set forth in Annex I hereto, and
with respect to such letter dated the Time of Delivery,
as to such other matters as you may reasonably request
and in form and substance satisfactory to you;
(g) (i) Neither the Partnership, the
Guarantor nor any of the Guarantor's subsidiaries shall
have sustained since the date of the latest audited
financial statements included or incorporated by
reference in the Final Supplemented Prospectus any loss
or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as
set forth or contemplated in the Final Supplemented
Prospectus and (ii) since the respective dates as of
which information is given in the Final Supplemented
Prospectus there shall not have been any change in the
capital stock or long-term debt of the Guarantor or any
of its subsidiaries (other than a change not in excess
of $20 million) or any change, or any development
involving a prospective change, in or affecting the
general affairs, management, financial position,
stockholders' equity or results of operations of the
Guarantor and its subsidiaries, otherwise than as set
forth or contemplated in the Final Supplemented
Prospectus, the effect of which, in any such case
described in clause (i) or (ii), is in your judgment
(after consultation with the Guarantor) so material and
adverse as to make it impracticable to proceed with the
public offering or delivery of the Securities on the
terms and in the manner contemplated in the Final
Supplemented Prospectus;
(h) On or after the date hereof (i) no
downgrading shall have occurred in the rating accorded
the Preferred Securities or any of the Guarantor's debt
securities or preferred stock (including the Guarantee
or any other Guarantor Securities in respect of the
Preferred Securities) by any "nationally recognized
statistical rating organization," as that term is
defined by the Commission for purposes of Rule
436(g)(2) under the Act, and (ii) no such organization
shall have publicly announced that it has placed the
Preferred Securities or any debt securities or
preferred stock of the Guarantor on what is commonly
termed a "watch list" for possible downgrading (other
than in the case of (i) and (ii) above any debt
securities of the Guarantor which may have been so
placed on a "watch list" or downgraded as a result of
the provider
20
<PAGE>
of any credit enhancement relating to such
debt securities being so placed on a "watch list" or
downgraded);
(i) On or after the date hereof there shall
not have occurred any of the following: (i) any
outbreak or escalation of hostilities or other national
or international calamity or crisis, the effect of
which shall be such as to make it, in your judgment,
impractical to market the Securities or to enforce
contracts for the sale of the Securities, or (ii)
trading in any securities of the Guarantor shall have
been suspended by the Commission or a national
securities exchange, or if trading generally on the New
York Stock Exchange shall have been suspended, or
minimum or maximum prices for trading shall have been
fixed, or maximum ranges for prices for securities
shall have been required, by said exchange or by order
of the Commission or any other governmental authority,
or (iii) a banking moratorium shall have been declared
by either Federal or New York authorities;
(j) The Preferred Securities shall have been
duly listed, subject to notice of issuance, on the New
York Stock Exchange;
(k) The Guarantor shall have furnished or
caused to be furnished to you at the Time of Delivery,
a certificate or certificates of the general partner of
the Partnership and a certificate or certificates of
officers of the Guarantor, respectively, satisfactory
to you as to the accuracy of the representations and
warranties of the Partnership and the Guarantor herein
at and as of the Time of Delivery, as to the
performance by each of the Partnership and the
Guarantor of all of their obligations hereunder to be
performed at or prior to the Time of Delivery, as to
the matters set forth in subsections (a) and (g) of
this Section and as to such other matters as you may
reasonably request; and
(l) A Special Event (as defined in the Final
Supplemented Prospectus) shall not have occurred and be
continuing.
(B) The obligations of the Partnership and the
Guarantor hereunder shall be subject to the condition
that at the Time of Delivery a Special Event shall not
have occurred and be continuing.
8. (a) The Partnership and the Guarantor
will jointly and severally indemnify and hold harmless
each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such
Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement, the
Prospectus, the Preliminary Supplemented Prospectus,
the Final Supplemented Prospectus or any other
prospectus relating
21
<PAGE>
to the Securities, or any amendment
or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein
a material fact required to be stated therein or
necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any
legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or
defending any such action or claim as such expenses are
incurred; provided, however, that neither the
Partnership nor the Guarantor shall be liable in any
such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement, the Prospectus,
the Preliminary Supplemented Prospectus, the Final
Supplemented Prospectus or any other prospectus
relating to the Securities or any such amendment or
supplement in reliance upon and in conformity with
written information furnished to the Partnership or the
Guarantor through you expressly for use therein; and
provided, further, that neither the Partnership nor the
Guarantor shall be liable to any Underwriter under this
subsection (a) with respect to any Preliminary
Prospectus to the extent that any such loss, claim,
damage or liability of such Underwriter results from
the fact that such Underwriter sold the Securities to a
person as to whom it shall be established that there
was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus
(excluding documents incorporated by reference) or of
the Prospectus as then amended or supplemented
(excluding documents incorporated by reference) in any
case where such delivery is required by the Act if the
Partnership has previously furnished copies thereof in
sufficient quantity to such Underwriter and the loss,
claim, damage or liability of such Underwriter results
from an untrue statement or omission of a material fact
contained in the Preliminary Prospectus which was
identified in writing at such time to such Underwriter
and corrected in the Prospectus (excluding documents
incorporated by reference) or in the Prospectus as then
amended or supplemented (excluding documents
incorporated by reference).
(b) Each Underwriter will indemnify and hold
harmless the Partnership and the Guarantor against any
losses, claims, damages or liabilities to which the
Partnership or the Guarantor may become subject, under
the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained
in any Preliminary Prospectus, the Registration
Statement, the Prospectus, the Preliminary Supplemented
Prospectus, the Final Supplemented Prospectus and any
other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state
therein a material fact required to be stated therein
or necessary to make the statements therein not
misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue
22
<PAGE>
statement or omission or alleged omission was made in
any Preliminary Prospectus, the Registration Statement,
the Prospectus, the Preliminary Supplemented
Prospectus, the Final Supplemented Prospectus and any
other prospectus relating to the Securities, or any
such amendment or supplement in reliance upon and in
conformity with written information furnished to the
Partnership or the Guarantor by such Underwriter
through you expressly for use therein; and will
reimburse the Partnership and the Guarantor for any
legal or other expenses reasonably incurred by the
Partnership or the Guarantor in connection with
investigating or defending any such action or claim as
such expenses are incurred.
(c) Promptly after receipt by an indemnified
party under subsection (a) or (b) above of notice of
the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection,
notify the indemnifying party in writing of the
commencement thereof; provided that failure so to
notify the indemnifying party shall not relieve the
indemnifying party from any liability which the
indemnifying party may have on account of the foregoing
indemnities or otherwise, except to the extent the
indemnifying party shall have been prejudiced by such
failure. In case any such action shall be brought
against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be
counsel to the indemnifying party), and, after notice
from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such
indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified
party, in connection with the defense thereof other
than reasonable costs of investigation; provided,
however, that if the defendants in any such action
include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to
it and/or other indemnified parties which are different
from or additional to those available to the
indemnifying party, the indemnified party or parties
shall have the right to select separate counsel to
assert such legal defenses and to otherwise participate
in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party
of its election so to assume the defense of such action
and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or
other expenses subsequently incurred by such
indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have
employed separate counsel in connection with the
23
<PAGE>
assertion of legal defenses in accordance with the
proviso to the next preceding sentence (it being
understood, however, that the indemnifying party shall
not be liable for the expenses of more than one
separate counsel (plus any local counsel retained in
the indemnified parties' reasonable judgment),
representing the indemnified parties under such
paragraph (a) who are parties to such action), (ii) the
indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice
of commencement of the action or (iii) the indemnifying
party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying
party; and except that, if clause (i) or (iii) is
applicable, such liability shall be only in respect of
the counsel referred to in such clause (i) and (iii).
(d) If the indemnification provided for in
this Section 8 is unavailable to or insufficient to
hold harmless an indemnified party under subsection (a)
or (b) above in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred
to therein, then each indemnifying party shall
contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the
relative benefits received by the Partnership and the
Guarantor on the one hand and the Underwriters on the
other from the offering of the Securities. If,
however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law
or if the indemnified party failed to give notice
required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid
or payable by such indemnified party in such proportion
as is appropriate to reflect not only such relative
benefits but also the relative fault of the Partnership
and the Guarantor on the one hand and the Underwriters
on the other in connection with the statements or
omissions which resulted in such losses, claims,
damages or liabilities (or actions in respect thereof),
as well as any other relevant equitable considerations.
The relative benefits received by the Partnership and
the Guarantor on the one hand and such Underwriters on
the other shall be deemed to be in the same respective
proportions as the net proceeds from the offering
(before deducting expenses) received by the Partnership
and the Guarantor and the total underwriting discounts
and commissions received by such Underwriters. The
relative fault shall be determined by reference to,
among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to
information supplied by the Partnership and the
Guarantor on the one hand or such Underwriters on the
other and the parties' relative intent, knowledge,
access to information and opportunity to correct or
prevent such statement or omission. The Partnership,
the Guarantor and the Underwriters agree that it would
not be just and equitable if contribution pursuant to
this subsection (d) were determined by pro rata
allocation (even if the Underwriters were
24
<PAGE>
treated as one entity for such purpose) or by any other
method of allocation which does not take account of the
equitable considerations referred to above in this subsection
(d). The amount paid or payable by an indemnified party
as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to
above in this subsection (d) shall be deemed to include
any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall
be required to contribute any amount in excess of the
amount by which the total price at which the Securities
underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to
pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled
to contribution from any person who was not guilty of
such fraudulent misrepresentation. The obligations of
the Underwriters in this subsection (d) to contribute
are several in proportion to their respective
underwriting obligations with respect to the Securities
and not joint.
(e) The obligations of the Partnership and
the Guarantor under this Section 8 shall be in addition
to any liability which the Partnership and the
Guarantor may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act
or the Exchange Act; and the obligations of the
Underwriters under this Section 8 shall be in addition
to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms
and conditions, to each officer and director of the
Partnership and the Guarantor and to each person, if
any, who controls the Partnership or the Guarantor
within the meaning of the Act or the Exchange Act.
9. (a) If any Underwriter shall default in
its obligation to purchase the Preferred Securities
which it has agreed to purchase hereunder, you may in
your discretion arrange for you or another party or
other parties to purchase such Preferred Securities on
the terms contained herein, provided that any such
other party shall be reasonably acceptable to the
Guarantor. If within thirty-six hours after such
default by any Underwriter you do not arrange for the
purchase of such Preferred Securities, then the
Partnership and the Guarantor shall be entitled to a
further period of thirty-six hours within which to
procure another party or other parties satisfactory to
you to purchase such Preferred Securities on such
terms. In the event that, within the respective
prescribed periods, you notify the Partnership and the
Guarantor that you have so arranged for the purchase of
such Preferred Securities, or the Partnership or the
Guarantor notifies you that it has so arranged for the
purchase of the Preferred Securities,
25
<PAGE>
you or the Partnership and the Guarantor shall have the right
to postpone the Time of Delivery for a period of not more
than seven days, in order to effect whatever changes
may thereby be made necessary in the Registration
Statement or the Final Supplemented Prospectus, or in
any other documents or arrangements, and the
Partnership and the Guarantor agree to file promptly
any amendments or supplements to the Registration
Statement or the Prospectus which in your opinion may
thereby be made necessary. The term "Underwriter" as
used in this Agreement shall include any person
substituted under this Section with like effect as if
such person had originally been a party to this
Agreement with respect to such Preferred Securities.
(b) If, after giving effect to any
arrangements for the purchase of the Preferred
Securities of a defaulting Underwriter or Underwriters
by you or the Partnership and the Guarantor as provided
in subsection (a) above, the aggregate number of such
Preferred Securities which remains unpurchased does not
exceed fifteen percent (15%) of the aggregate number of
all the Preferred Securities, then the Partnership and
the Guarantor shall have the right to require each non-
defaulting Underwriter to purchase the number of
Preferred Securities which such Underwriter agreed to
purchase hereunder and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata
share (based on the number of Preferred Securities
which such Underwriter agreed to purchase hereunder) of
the Preferred Securities of such defaulting Underwriter
or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any
arrangements for the purchase of the Preferred
Securities of a defaulting Underwriter or Underwriters
by you, the Partnership and the Guarantor as provided
in subsection (a) above, the aggregate principal amount
of the Preferred Securities which remains unpurchased
exceeds fifteen percent (15%) of the aggregate number
of the Preferred Securities, or if the Partnership and
the Guarantor shall not exercise the right described in
subsection (b) above to require non-defaulting
Underwriters to purchase Preferred Securities of a
defaulting Underwriter or Underwriters, then this
Agreement shall thereupon terminate, without liability
on the part of any non-defaulting Underwriter, the
Partnership or the Guarantor, except for the expenses
to be borne by the Partnership, the Guarantor and the
Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8
hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
10. The respective indemnities, agreements,
representations, warranties and other statements of the
Partnership, the Guarantor or their officers, and of
the several Underwriters, as set forth in this
Agreement or made by or on
26
<PAGE>
behalf of them, respectively, pursuant to this Agreement,
shall remain in full force and effect, regardless of any
investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any
controlling person of any Underwriter, or the
Partnership, the Guarantor or any officer or director
or controlling person of the Partnership or the
Guarantor, and shall survive delivery of and payment
for the Preferred Securities.
11. If this Agreement shall be terminated
pursuant to Section 9 hereof, neither the Partnership
nor the Guarantor shall then be under any liability to
any Underwriter except as provided in Section 6 and
Section 8 hereof; but, if for any other reason, the
Preferred Securities are not delivered by or on behalf
of the Partnership or the related Guarantor Securities
issuable by the Guarantor are not concurrently issued
by the Guarantor as provided herein, the Partnership
and the Guarantor will reimburse the Underwriters
through you for all out-of-pocket expenses approved in
writing by you, including fees and disbursements of
counsel, reasonably incurred by the Underwriters in
making preparations for the purchase, sale and delivery
of the Preferred Securities (or Guarantor Securities
not so issued), but the Partnership and the Guarantor
shall then be under no further liability to any
Underwriter except as provided in Section 6 and Section
8 hereof.
12. In all dealings hereunder, you shall act
on behalf of the Underwriters, and the parties hereto
shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of any
Underwriter made or given by you jointly or by Goldman,
Sachs & Co. on behalf of you as the representatives.
All statements, requests, notices, and
agreements hereunder shall be in writing, and if to the
Underwriters shall be delivered or sent by mail, telex
or facsimile transmission to you in care of Goldman,
Sachs & Co.; and if to the Partnership or the Guarantor
shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Guarantor set forth
in the Registration Statement, Attention: Treasurer;
provided, however, that any notice to any Underwriter
pursuant to Section 8(c) hereof shall be delivered or
sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its
Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the
Partnership or the Guarantor upon your request. Any
such statements, requests, notices or agreements shall
take effect upon receipt thereof.
13. This Agreement shall be binding upon,
and inure solely to the benefit of, the parties hereto
and, to the extent provided in Section 8 and Section 10
hereof, the officers and directors of the Partnership
and the Guarantor and each person who controls the
Partnership and the Guarantor or any Underwriter, and
their respective heirs, executors, administrators,
successors and assigns, and no other person shall
acquire or have any right under
27
<PAGE>
or by virtue of this Agreement. No purchaser of any of the
Preferred Securities from any Underwriter shall be deemed a
successor or assign by reason merely of such purchase.
14. Time shall be of the essence of this
Agreement. As used herein, the term "business day"
shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. This Agreement shall be governed by and
construed in accordance with the laws of the State of
New York.
16. This Agreement may be executed by any
one or more of the parties hereto in any number of
counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall
together constitute one and the same instrument.
28
<PAGE>
If the foregoing is in accordance with your
understanding, please sign and return to us __
counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Underwriters, this letter
and such acceptance hereof shall constitute a binding
agreement among each of the Underwriters, on the one
hand, and the Partnership and the Guarantor, on the
other hand. It is understood that your acceptance of
this letter on behalf of each of the Underwriters is
pursuant to the authority set forth in a form of
Agreement Among Underwriters, the form of which shall
be submitted to the Partnership and the Guarantor for
examination, upon request, but without warranty on your
part as to the authority of the signers thereof.
Very truly yours,
DUQUESNE CAPITAL L.P.
By:________________________
DUQUESNE LIGHT COMPANY,
as General Partner
DUQUESNE LIGHT COMPANY
By:________________________
Name:
Title:
Accepted as of the date hereof:
[ ]
By:____________________________
Goldman, Sachs & Co.
On behalf of each of the several Underwriters
29
<PAGE>
SCHEDULE I
Total Number of
Preferred Securities
Underwriter to be Purchased
_______________________________________________________
Goldman, Sachs & Co. $
_______________
Total . . . . . . . . . . . . . . . . $______________
<PAGE>
ANNEX I
Pursuant to Section 7(f) of the Underwriting
Agreement, Deloitte & Touche shall furnish letters to
the Underwriters to the effect that:
(i) They are independent certified
public accountants with respect to the Guarantor
and its subsidiaries within the meaning of the Act
and the published rules and regulations of the
Commission thereunder.
(ii) In their opinion, the
consolidated financial statements and any
schedules audited by them and included or
incorporated by reference in the Registration
Statement and Prospectus comply as to form in all
material respects with the applicable accounting
requirements of the Act and the Exchange Act, as
applicable, and the published rules and
regulations of the Commission thereunder. They
have performed the procedures specified by the
American Institute of Certified Public Accountants
for a review of interim financial information as
described in SAS 71, Interim Financial
Information, on the unaudited financial statements
included in the Guarantor's Quarterly Reports on
Form 10-Q incorporated by reference in the
Prospectus.
(iii) On the basis of procedures
referred to in such letter, including a reading of
the minutes and the latest available interim
financial statements of the Guarantor and
inquiries of officials of the Guarantor
responsible for financial and accounting matters,
nothing caused them to believe that:
(A) Any material modifications
should be made to the unaudited financial
statements, if any, included or incorporated
by reference in the Prospectus, for them to
be in conformity with generally accepted
accounting principles;
(B) the unaudited financial
statements, if any, included or incorporated
by reference in the Prospectus do not comply
as to form in all material respects with the
applicable accounting requirements of the Act
or the Exchange Act and the published rules
and regulations of the Commission thereunder;
(C) the unaudited pro forma
condensed consolidated financial statements,
if any, included or incorporated by reference
in the Prospectus do not comply as to form in
all material respects with the applicable
accounting requirements of the Act or the
Exchange Act and the published rules and
regulations of the Commission
<PAGE>
ANNEX I
Page 2
thereunder or the pro forma adjustments have not
been properly applied to the historical amounts in
the compilation of those statements;
(D) at the date of the latest
available internal balance sheet of the
Guarantor and at a subsequent specified date
not more than five days prior to the date of
such letter, there was any change in the
capital stock, or any increase in long-term
debt of the Guarantor and its subsidiaries
consolidated or any decrease in consolidated
net current assets or net assets as compared
with amounts shown in the latest balance
sheet included or incorporated by reference
in the Prospectus, except in all cases for
changes, increases or decreases that the
Prospectus discloses have occurred or may
occur or as may be set forth in such letter;
or
(E) for the period from the date
of the latest income statement included or
incorporated by reference in the Prospectus
to the date of the latest available internal
income statement of the Guarantor, there was
any decrease, as compared with the
corresponding period of the previous year in
consolidated revenues or in the total income
before extraordinary items or of net income,
except in all cases for changes or decreases
that the Prospectus discloses have occurred
or may occur or as may be set forth in such
letter.
(iv) In addition to their audit
referred to in their reports included or
incorporated by reference in the Registration
Statement and Prospectus and the procedures
referred to in (3) above, they have carried out
certain other specified procedures, not
constituting an audit, with respect to certain
specified dollar amounts, percentages and other
financial information specified by the
Underwriters (A) which appear or are incorporated
by reference in the Guarantor's Annual Report on
Form 10-K incorporated by reference in the
Registration Statement and the Prospectus in Item
1 "General", "Financial Condition", "Transmission
Access", "Construction", "Rate Matters", "Electric
Operations", "Fossil Fuel", "Nuclear Fuel",
"Nuclear Decommissioning", and in Item 5 under the
caption "Market For Registrant's Common Equity and
Related Shareholder Matters", and in Item 6 under
the caption "Selected Financial Data", and in Item
7 under the caption "Management's Discussion and
Analysis of Financial Condition and Results of
Operations", and (B) which appear in Part I of any
of the Guarantor's Quarterly Reports on Form 10-Q
<PAGE>
ANNEX I
Page 3
incorporated by reference in the Registration
Statement and the Prospectus under the captions
"Management's Discussion and Analysis of Financial
Condition and Results of Operations", "Ratio of
Earnings to Fixed Charges", and "Operating
Statistics (Unaudited)" (in each case to the
extent that such dollar amounts, percentages and
other financial information are derived, directly
or by analysis or computation, from the general
accounting records of the Guarantor and its
subsidiaries) and have found such dollar amounts,
percentages and financial information to be in
agreement with the general accounting records of
the Guarantor and its subsidiaries.
For purposes of this letter, all references
in this Annex I to the Prospectus shall be deemed to
the Final Supplemented Prospectus in the form in which
it is proposed to be filed but otherwise as defined in
the Underwriting Agreement (including all documents
incorporated by reference therein) as of the date of
the letter delivered on the date of the Underwriting
Agreement and to the Final Supplemented Prospectus as
defined in the Underwriting Agreement (including all
documents incorporated by reference therein), or, if
the Prospectus has at such time been further amended or
supplemented, to the Prospectus as so further amended
or supplemented, as of the date of the letter delivered
at the Time of Delivery.
EXHIBIT 4.1
CERTIFICATE OF LIMITED PARTNERSHIP
OF
DUQUESNE LIGHT L.P.
This Certificate of Limited Partnership of Duquesne Light L.P.
(the "Limited Partnership") has been duly executed and is being filed by
Duquesne Light Company, a Pennsylvania corporation, as general partner, for
the purpose of forming a limited partnership pursuant to the Delaware
Revised Uniform Limited Partnership Act as amended from time to time (6
Del.C. Section 17-101, et seq.).
------ -- ---
1. Name. The name of the Limited Partnership formed hereby is
DUQUESNE LIGHT L.P.
2. Registered Office and Agent. The address of the registered
office of the Limited Partnership in the State of Delaware is c/o The
Corporation Trust Company, Corporation Trust Center, 1209 Orange Street,
Wilmington, New Castle County, Delaware 19801. The Limited Partnership's
registered agent at that address is The Corporation Trust Company.
3. General Partner. The name and mailing address of the general
partner of the Limited Partnership is as follows:
Duquesne Light Company
One Oxford Centre
301 Grant Street
Pittsburgh, Pennsylvania 15279
IN WITNESS WHEREOF, the undersigned, constituting the sole
general partner of the Limited Partnership, has caused this Certificate of
Limited Partnership to be duly executed the 27th day of April, 1994.
DUQUESNE LIGHT COMPANY
By: /s/ Gary L. Schwass
-------------------
Name: Gary L. Schwass
Title: Vice President - Finance
Chief Financial Officer
EXHIBIT 4.2
AMENDED AND RESTATED CERTIFICATE OF LIMITED PARTNERSHIP
OF
DUQUESNE LIGHT L.P.
THIS Amended and Restated Certificate of Limited Partnership of
Duquesne Light L.P. (the "Partnership"), dated as of May 9, 1994, has been
duly executed and is being filed by the undersigned in accordance with the
provisions of 6 Del. C. Section 17-210, to amend and restate the original
-------
Certificate of Limited Partnership of the Partnership, which was filed on
April 27, 1994, with the Secretary of State of the State of Delaware (the
"Certificate"), to form a limited partnership under the Delaware Revised
Uniform Limited Partnership Act (6 Del. C. Section 17-101, et seq.).
------- -- ---
This Certificate is hereby amended and restated in its entirety
to read as follows:
1. Name. The name of the limited partnership formed and
continued hereby is Duquesne Capital L.P.
2. Registered Office and Agent. The address of the registered
office of the Partnership in the State of Delaware is c/o The Corporation
Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington,
New Castle County, Delaware 19801. The Partnership's registered agent at
that address is The Corporation Trust Company.
3. General Partner. The name and the mailing address of the
sole general partner of the Partnership is as follows:
Duquesne Light Company
One Oxford Centre
301 Grant Street
Pittsburgh, Pennsylvania 15279
IN WITNESS WHEREOF, the undersigned, constituting the sole
general partner of the Partnership, has executed this Amended and Restated
Certificate of Limited Partnership as of the date first-above written.
DUQUESNE LIGHT COMPANY
By: /s/ Gary L. Schwass
-------------------
Name: Gary L. Schwass
Title: Vice President - Finance and
Chief Financial Officer
Exhibit 4.3
AGREEMENT OF LIMITED PARTNERSHIP
OF
DUQUESNE LIGHT L.P.
This AGREEMENT OF LIMITED PARTNERSHIP OF DUQUESNE LIGHT L.P.
(this "Agreement"), is entered into by and between Duquesne Light Company,
a Pennsylvania corporation, as general partner (the "General Partner"), and
Susan Fields, as limited partner (the "Initial Limited Partner").
The General Partner and the Initial Limited Partner hereby form a
limited partnership pursuant to and in accordance with the Delaware Revised
Uniform Limited Partnership Act (6 Del.C. Section 17-101, et seq.) as
------ -- ---
amended from time to time (the "Act"), and hereby agree as follows:
1. Name. The name of the limited partnership formed hereby
is Duquesne Light L.P. (the "Partnership").
2. Purpose. The Partnership is organized for the sole purpose
of issuing its interests in the Partnership, including, without limitation,
its general partner interests and its limited partner interests (the
latter, the "Limited Partner Interests") and lending the proceeds thereof
to the General Partner in return for debentures or other debt instruments
of the General Partner ("Debentures"), and to engage in any and all
activities necessary, advisable or incidental thereto.
3. Registered Office and Agent. The registered office of the
Partnership in the State of Delaware is c/o The Corporation Trust Company,
Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle
County, Delaware 19801. The registered agent of the Partnership is The
Corporation Trust Company.
4. Partners. The names and the business, residence or mailing
address of the General Partner and the Initial Limited Partner are as
follows:
General Partner
---------------
Duquesne Light Company
One Oxford Centre
301 Grant Street
Pittsburgh, Pennsylvania 15279
Initial Limited Partner
-----------------------
Susan Fields
Reid & Priest
40 West 57th Street
New York, New York 10019
5. Powers. The powers of the General Partner include all
powers, statutory and otherwise, possessed by general partners under the
laws of the State of Delaware.
6. Duration. The Partnership shall dissolve, and its affairs
shall be wound up, on December 31, 2044, or at such earlier time as (a) all
of the partners of the Partnership approve in writing, (b) an event of
withdrawal of the General Partner has occurred under the Act, or (c) an
entry of a decree of judicial dissolution has occurred under Section 17-802
of the Act.
7. Capital Contributions. The partners of the Partnership
have contributed the following amounts, in cash, and no other property, to
the Partnership:
General Partner $1.00
---------------
Initial Limited Partner $1.00
-----------------------
8. Additional Contributions. No partner of the Partnership
is required to make any additional capital contribution to the Partnership.
9. Allocations of Profits and Losses. The Partnership's profits
and losses shall be allocated in proportion to the capital contributions of
the partners of the Partnership.
10. Distributions. Distributions shall be made to the partners
of the Partnership at the time determined by the General Partner, but at
least once during each fiscal year of the Partnership, the General Partner
shall cause the Partnership to distribute any cash held by it which is not
reasonably necessary for the operation of the Partnership. Cash available
for distribution shall be distributed to the partners of the Partnership in
the same proportion as their capital account balances at the time of such
distribution.
11. Assignments. The Initial Limited Partner may assign all or
any part of her Limited Partner Interest in the Partnership and may
withdraw from the Partnership only with the consent of the General Partner.
The Initial Limited Partner has no right to grant an assignee of her
Limited Partner Interest the right to become a substituted limited partner
in the Partner.
The General Partner may not assign its interest in the
Partnership in whole or in any part under any circumstances, except to a
permitted successor of the General Partner under any instrument under which
Debentures are issued.
12. Withdrawal. Except as provided in the following Section
13, no right is given to any partner of the Partnership to withdraw from
the Partnership.
13. Additional Partners.
a. Without the approval of the Initial Limited Partner,
the General Partner may admit additional limited partners to the
Partnership. Upon the admission of one or more additional limited partners
to the Partnership, the Initial Limited Partner shall withdraw from the
Partnership and shall be entitled to receive forthwith the return of her
capital contribution, without interest or deduction.
b. After the admission of any additional limited partners
to the Partnership pursuant to this Section 13, the Partnership shall
continue as a limited partnership under the Act.
c. The admission of any additional limited partners to the
Partnership pursuant to this Section 13 shall be accomplished by the
amendment of this Agreement.
14. Governing Law. This Agreement shall be governed by, and
construed under, the laws of the State of Delaware, all rights and remedies
being governed by said laws.
15. Counterparts. This Agreement may be executed in one or more
counterparts, each of which counterparts shall be an original and all of
which together shall constitute one and the same Agreement.
<PAGE>
IN WITNESS WHEREOF, the undersigned, intending to be bound
hereby, have duly executed this Agreement of Limited Partnership as of the
27th day of April, 1994.
General Partner:
---------------
DUQUESNE LIGHT COMPANY
By: /s/ Gary L. Schwass
-------------------
Name: Gary L. Schwass
Title: Chief Financial Officer
Initial Limited Partner:
-----------------------
/s/ Susan Fields
----------------
Susan Fields
EXHIBIT 4.4
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. (this "Agreement"), dated May 9, 1994 is entered into
by and between Duquesne Light Company, a Pennsylvania corporation, as
general partner (the "General Partner"), and Susan Fields, as limited
partner (the "Initial Limited Partner").
WHEREAS, the General Partner 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 Limited Partnership with the office of
the Secretary of State of Delaware on April 27, 1994, and entering into
an Agreement of Limited Partnership of the Partnership , dated as of
April 27, 1994 (the "Original Limited Partnership Agreement"); and
WHEREAS, the General Partner and the Initial Limited Partner have
agreed to change the name of the Partnership from Duquesne Light L.P. to
Duquesne Capital L.P., and to amend and restate the Original Limited
Partnership Agreement in its entirety to reflect such change;
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 is hereby acknowledged, the parties
hereto hereby agree as follows:
1. Name. The name of the limited partnership heretofore
formed and continued hereby is Duquesne Capital L.P. (the "Partnership").
2. Purpose. The Partnership is organized for the sole purpose
of issuing its interests in the Partnership, including, without limitation,
its general partner interests and its limited partner interests (the
latter, the "Limited Partner Interests") and lending the proceeds thereof
to the General Partner in return for debentures or other debt instruments
of the General Partner ("Debentures"), and to engage in any and all
activities necessary, advisable or incidental thereto.
3. Registered Office and Agent. The registered office of the
Partnership in the State of Delaware is c/o The Corporation Trust Company,
Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle
County, Delaware 19801. The registered agent of the Partnership is The
Corporation Trust Company.
4. Partners. The names and the business, residence or mailing
address of the General Partner and the Initial Limited Partner are as
follows:
General Partner
---------------
Duquesne Light Company
One Oxford Centre
301 Grant Street
Pittsburgh, Pennsylvania 15279
Initial Limited Partner
-----------------------
Susan Fields
Reid & Priest
40 West 57th Street
New York, New York 10019
5. Powers. The powers of the General Partner include all
powers, statutory and otherwise, possessed by general partners under the
laws of the State of Delaware.
6. Duration. The Partnership shall dissolve, and its affairs
shall be wound up, on December 31, 2044, or at such earlier time as (a) all
of the partners of the Partnership approve in writing, (b) an event of
withdrawal of the General Partner has occurred under the Act, or (c) an
entry of a decree of judicial dissolution has occurred under Section
17-802 of the Act.
7. Capital Contributions. The partners of the Partnership
have contributed the following amounts, in cash, and no other property, to
the Partnership:
General Partner $1.00
---------------
Initial Limited Partner $1.00
-----------------------
8. Additional Contributions. No partner of the Partnership
is required to make any additional capital contribution to the Partnership.
9. Allocations of Profits and Losses. The Partnership's profits
and losses shall be allocated in proportion to the capital contributions of
the partners of the Partnership.
10. Distributions. Distributions shall be made to the partners
of the Partnership at the time determined by the General Partner, but at
least once during each fiscal year of the Partnership, the General Partner
shall cause the Partnership to distribute any cash held by it which is not
reasonably necessary for the operation of the Partnership. Cash available
for distribution shall be distributed to the partners of the Partnership in
the same proportion as their capital account balances at the time of such
distribution.
11. Assignments. The Initial Limited Partner may assign all or
any part of her Limited Partner Interest in the Partnership and may
withdraw from the Partnership only with the consent of the General Partner.
The Initial Limited Partner has no right to grant an assignee of her
Limited Partner Interest the right to become a substituted limited partner
in the Partner.
The General Partner may not assign its interest in the
Partnership in whole or in any part under any circumstances, except to a
permitted successor of the General Partner under any instrument under which
Debentures are issued.
12. Withdrawal. Except as provided in the following Section
13, no right is given to any partner of the Partnership to withdraw from
the Partnership.
13. Additional Partners.
a. Without the approval of the Initial Limited Partner,
the General Partner may admit additional limited partners to the
Partnership. Upon the admission of one or more additional limited partners
to the Partnership, the Initial Limited Partner shall withdraw from the
Partnership and shall be entitled to receive forthwith the return of her
capital contribution, without interest or deduction.
b. After the admission of any additional limited partners
to the Partnership pursuant to this Section 13, the Partnership shall
continue as a limited partnership under the Act.
c. The admission of any additional limited partners to the
Partnership pursuant to this Section 13 shall be accomplished by the
amendment of this Agreement.
14. Governing Law. This Agreement shall be governed by, and
construed under, the laws of the State of Delaware, all rights and remedies
being governed by said laws.
15. Counterparts. This Agreement may be executed in one or more
counterparts, each of which counterparts shall be an original and all of
which together shall constitute one and the same Agreement.
<PAGE>
IN WITNESS WHEREOF, the undersigned, intending to be bound
hereby, have duly executed this Amended and Restated Agreement of Limited
Partnership as of the date first above stated.
General Partner:
---------------
DUQUESNE LIGHT COMPANY
By: /s/ Gary L. Schwass
-------------------
Name: Gary L. Schwass
Title: Vice President - Finance
Chief Financial Officer
Initial Limited Partner:
-----------------------
/s/ Susan Fields
----------------
Susan Fields
EXHIBIT 4.5
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.
(i) 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.
(ii) 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(iii) 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.
(iii) 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.
(iv) 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.
(v) 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 __________, 2044 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. Upon ten (10)
days' notice to the Limited Partners, the General Partner may change the
location of the Partnership's principal place of business, provided that
such change has no material adverse effect upon any Limited Partner.
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 deem 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.
(i) 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.
(ii) 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.
(i) 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 6.3.
(ii) 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.
(iii) 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.
(i) 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.
(ii) 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 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,
at the expense of the Partnership, 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 declare 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 6.3 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 6.4 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 6.5 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.
(i) 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.
(ii) 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.
(iii) 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.
(iv) Each meeting of Partners shall be conducted by the
General Partner or by such other Person as the General Partner
may designate.
(v) 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.
(i) 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.
(ii) 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.
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 trustee 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.
(i) 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.
(ii) 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.
(iii) 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.
(i) 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.
(ii) 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.
(i) 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.
(ii) 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 provides 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.
(iii) Whenever in this Agreement the General
Partner or an Indemnified Person is permitted or required to make
a decision (a) 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 (b) 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 shall,
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:
(i) The provisions of this Section shall be in full force
and effect;
(ii) 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;
(iii) 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
(iv) 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 (i) the Depository
elects to discontinue its services as securities depository and gives
reasonable notice to the Partnership, or (ii) the Partnership elects to
terminate the book-entry system through the Depository and fails to provide
for a successor Depository, then Definitive LP Certificates shall 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:
(i) the expiration of the term of the Partnership, as
provided in Section 2.4 hereof;
(ii) 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;
(iii) the entry of a decree of judicial dissolution under
Section 17-802 of the Act; or
(iv) 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:
(i) to creditors of the Partnership, including Partners
who are creditors, to the extent otherwise 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;
(ii) 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
(iii) 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 Preferred 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 Preferred 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 __% Monthly Income
Subordinated 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 4.6
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 ___% Monthly Income Subordinated
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 of 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 cause 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 and/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 the Series __ Preferred Securities will be given
by the Partnership by mail to each Holder of Series __ Preferred Securities
to be redeemed not fewer than 30 nor more than 60 days prior to the date
fixed for redemption 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 and the dates on
which notices are given pursuant to this paragraph (b)(1), a Notice of
Redemption 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 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 in
the mailing thereof with respect to any Holder shall affect the validity of
the redemption 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 funds deposited as required,
then upon the date of such deposit, 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. 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 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 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 share 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 Debentures) under the Indenture occurs and is 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 trustee 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 trustee 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. Any trustee 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 trustee so appointed and for the avoidance of any doubt concerning
the powers of the trustee, any trustee, in its own name and as trustee of
an express trust, 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 trustee 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 trustee 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 of 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 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 dissolution of the Partnership and distribution of Series
__ Debentures 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 any Dividend Parity Securities or any Liquidation Parity
Securities, 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, 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, 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 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
or replacement 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 or replacement does not cause the Series __
Preferred Securities to be downgraded 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 or replacement 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 or replacement 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 or replacement, (x) such
successor entity will be treated as a partnership for Federal income tax
purposes, (y) following such merger, consolidation, amalgamation or
replacement, 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 or replacement 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 Preferred 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 Preferred 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 __% Monthly Income
-----------
Subordinated 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:___________________________________
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
<PAGE>
(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
<PAGE>
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . 5
Predecessor Security . . . . . . . . . . . . . . . . . . . . . . . 5
Preferred Securities . . . . . . . . . . . . . . . . . . . . . . . 5
Preferred Trustee . . . . . . . . . . . . . . . . . . . . . . . . 5
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . 5
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . 5
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . 5
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . 6
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Security Register and Security Registrar . . . . . . . . . . . . . 6
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . 6
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . 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 . . . . . . . . . . . . 11
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
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
<PAGE>
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
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 . . . . . . . . . . . . 39
SECTION 813. Waiver of Past Defaults . . . . . . . . . . . . . . . . . 39
SECTION 814. Undertaking for Costs . . . . . . . . . . . . . . . . . . 39
SECTION 815. Waiver of Stay or Extension Laws . . . . . . . . . . . . 40
ARTICLE NINE
<PAGE>
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
<PAGE>
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
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
<PAGE>
<PAGE>
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
SECTION 1503. Disputes with Holders of Certain Senior Indebtedness . . 59
SECTION 1504. Subrogation . . . . . . . . . . . . . . . . . . . . . . 59
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 . . . . . . . . 60
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 . . . . . . . . . . 61
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
NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED
TO BE A PART OF THE INDENTURE.
<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:
<PAGE>
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 govern-
mental 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.
<PAGE>
"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
<PAGE>
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 princi-
pal 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 in-
struments which evidence a direct ownership interest in obli-
gations 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 May __, 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
<PAGE>
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 Sec-
tion 306 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to
this Indenture, other than any such Securities in respect of
which there shall have been presented to the Trustee proof
satisfactory to it and the Company that such Securities are
held by a bona fide purchaser or purchasers in whose hands
such Securities are valid obligations of the Company;
provided, however, that in determining whether or not the Holders of the
requisite principal amount of the Securities Outstanding under this
Indenture, or the Outstanding Securities of any series, have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder or whether or not a quorum is present at a meeting of Holders of
Securities, Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor (unless
the Company, such Affiliate or such obligor owns all Securities Outstanding
under this Indenture, or all Outstanding Securities of each such series, as
the case may be, determined without regard to this provision) shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver or upon any
such determination as to the presence of a quorum, only Securities which
the Trustee knows to be so owned shall be so disregarded; provided,
however, that Securities so owned which have been pledged in good faith may
<PAGE>
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.
"PREFERRED TRUSTEE" means any trustee duly appointed by the
holders of Preferred Securities of any series in accordance with the
Partnership Agreement or Action 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.
"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.
<PAGE>
"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.
"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
<PAGE>
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 cer-
tificate 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.
<PAGE>
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 Preferred Trustee
or, alternatively, may be embodied in and evidenced by the record of
Holders or Preferred Trustees, 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
<PAGE>
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
<PAGE>
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
<PAGE>
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.
<PAGE>
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
Preferred Trustee acting on behalf of such holders and 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, that 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.
<PAGE>
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 desig-
nated 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
<PAGE>
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
<PAGE>
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.
<PAGE>
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;
<PAGE>
(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 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,
<PAGE>
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.
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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.
<PAGE>
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.
The month in which any notice is given pursuant to either of the
preceding two paragraphs shall constitute one of the months which comprise
the maximum extended interest payment period.
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.
<PAGE>
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
<PAGE>
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
<PAGE>
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.
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
(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 % 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
<PAGE>
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 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 Preferred
Trustee, 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
<PAGE>
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 therefor 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
<PAGE>
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
<PAGE>
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
<PAGE>
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 or by a Preferred Trustee in respect 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"
<PAGE>
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.
<PAGE>
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 Preferred Trustee 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 Preferred
Trustees 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 Preferred Trustee 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;
<PAGE>
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
<PAGE>
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
<PAGE>
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) interest, if any, on such Security on the Stated Maturity or
<PAGE>
Maturities expressed in such Security (or, in the case of redemption, on
the Redemption Date) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such
Holder.
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 Preferred
Trustee 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 Preferred Trustees appointed with
respect to series of Outstanding Securities representing 66 % in aggregate
principal amount of the Outstanding Securities of all such series, as the
<PAGE>
case may be, shall have the right to make such direction, and not the
Holders of the Securities or the Preferred Trustee 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
Preferred Trustee, the Trustee shall be entitled to receive from such
Holders or any such Preferred Trustee 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 % 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
<PAGE>
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.
<PAGE>
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
<PAGE>
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
<PAGE>
(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,
<PAGE>
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 % 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
<PAGE>
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 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.
<PAGE>
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.
<PAGE>
(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
<PAGE>
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.
<PAGE>
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.
<PAGE>
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.
<PAGE>
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
<PAGE>
(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
<PAGE>
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, or 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, how-
ever, 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 pro-
viso, 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 of the holders
of not less than 66 % in aggregate liquidation preference of all Preferred
<PAGE>
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
<PAGE>
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 pursuant
to a Board Resolution 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
<PAGE>
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
<PAGE>
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
<PAGE>
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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
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 indebtedness 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
<PAGE>
in good faith be prosecuting an appeal or other proceeding for review and a
stay or execution shall have been obtained pending such appeal or review.
SECTION 1504. SUBROGATION.
Senior Indebtedness shall not be deemed to have been paid in full
unless the holders thereof shall have received cash (or securities or other
property satisfactory to such holders) in full payment of such Senior
Indebtedness then outstanding. 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, securities or other property 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.
<PAGE>
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
<PAGE>
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.
_________________________
<PAGE>
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
<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:_____________________________________ <PAGE>
EXHIBIT 4.8
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
___% Monthly Income Subordinated 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
"___% Monthly Income Subordinated 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 ________, 2044;
(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 4.9
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.
"Liquidation Distribution" shall mean the aggregate of the
liquidation preference of $25 per Preferred Security plus an amount equal
to all accumulated and unpaid Dividends to the date of payment.
"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.
"Paying Agent" shall mean ___________________, as registrar,
transfer agent and paying agent.
"Redemption Price" shall mean $25 per Preferred Security plus an
amount equal to 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 the Act) 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).
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), to it:
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:
[LETTERHEAD OF DLC]
Exhibit 5.1
(412) 393-6041
May 9, 1994
Duquesne Light Company
One Oxford Centre
301 Grant Street
Pittsburgh, Pennsylvania 15279
Ladies and Gentlemen:
I am Associate General Counsel of Duquesne Light
Company (the "Company") and have acted as counsel to the Company
in connection with the proposed issuance and sale from time to
time of up to $150,000,000 of (i) Cumulative Monthly Income
Preferred Securities ("Preferred Securities") of Duquesne Capital
L.P., a limited partnership organized under the laws of the State
of Delaware (the "Partnership"), which represent limited partner
interests in the Partnership and (ii) certain backup undertakings
of the Company with respect to the Preferred Securities including
(a) a Guarantee of the Company to be issued for the benefit of
the holders from time to time of Preferred Securities and (b)
Debentures of the Company to be issued to the Partnership under
an Indenture of the Company (the "Indenture") to The First
National Bank of Chicago, as trustee (the "Trustee"), as
contemplated by the Registration Statement on Form S-3 (the
"Registration Statement") proposed to be filed by the Company and
the Partnership with the Securities and Exchange Commission on or
about the date hereof for the registration of the Preferred
Securities, the Guarantee and the Debentures under the Securities
Act of 1933, as amended (the "Act"), and for the qualification of
the Indenture under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"). I have examined such corporate
records, certificates and other documents and have reviewed such
questions of law as I have considered necessary or appropriate
for purposes of the opinions expressed below.
I am of the opinion that the Company is a corporation
presently subsisting under the laws of the Commonwealth of
Pennsylvania, with full corporate power and authority to own its
properties and conduct its business as described in the
<PAGE>
Duquesne Light Company
May 9, 1994
Page 2
Registration Statement, and that the Company is duly qualified to
do business as a foreign corporation in good standing in all
other jurisdictions in which it owns or leases substantial
properties or in which the conduct of its business requires such
qualification.
I am also of the opinion that when:
(a) the Registration Statement, as it may be
amended, shall have become effective under the Act and any
applicable State securities or Blue Sky laws shall have been
complied with and the Indenture shall have been qualified under
the Trust Indenture Act;
(b) the Securities Certificate filed by the Company
with the Pennsylvania Public Utility Commission with respect to
the Debentures and the Guarantee shall have been duly registered
by said regulatory authority;
(c) the Company's Board of Directors or a duly
authorized Committee thereof shall have taken such action as may
be necessary to authorize the issuance by the Company of the
Debentures and the Guarantee on the terms set forth in or
contemplated by the Registration Statement, as it may be amended,
and the exhibits thereto;
(d) the Indenture shall have been appropriately
executed and delivered by the Company and the Trustee; the terms
of the Debentures have been duly established and the Debentures
have been issued and authenticated in accordance with the
applicable provisions of the Indenture and all necessary
corporate authorizations;
(e) the terms of the Guarantee have been duly
established in accordance with applicable laws and the Guarantee
has been appropriately executed and delivered by the Company;
(f) the Preferred Securities to which the Guarantee
and the Debentures relate have been duly issued and sold and the
purchase price therefor has been received by the Partnership; and
(g) the Company has received the consideration, if
any, separately payable for the Guarantee and the Debentures;
<PAGE>
Duquesne Light Company
May 9, 1994
Page 3
the Guarantee and Debentures will be legal, valid and binding
obligations of the Company 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.
I authorize and consent to the use of this opinion as
Exhibit 5.1 to the Registration Statement, and authorize and
consent to the references to me in the Registration Statement and
in the prospectus constituting a part thereof.
I am a member of the Pennsylvania Bar and do not hold
myself out as an expert on the laws of any other state.
Accordingly, in rendering this opinion, I have relied, as to all
matters governed by the laws of the State of New York, upon the
opinion of even date herewith of Reid & Priest, special counsel
for the Company, which is being filed as Exhibit 5.2 to the
Registration Statement, and, as to all matters governed by the
laws of the State of Delaware, upon the opinion of even date
herewith of Richards, Layton & Finger, special Delaware counsel
for the Company and the Partnership, which is being filed as
Exhibit 5.3 to the Registration Statement.
In rendering its opinion, Reid & Priest may rely upon
this opinion as to all matters of Pennsylvania law addressed
herein as if this opinion were addressed directly to them.
Except as aforesaid, without my prior written consent, this
opinion may not be furnished or quoted to, or relied upon by, any
other person or entity for any purpose.
Very truly yours,
/s/ Richard S. Christner
-------------------------
Richard S. Christner
Associate General Counsel
REID & PRIEST
40 W. 57th Street
New York, NY 10019
EXHIBIT 5.2
New York, New York
May 9, 1994
Duquesne Light Company
One Oxford Centre
301 Grant Street
Pittsburgh, Pennsylvania 15279
Ladies and Gentlemen:
We are acting as special counsel for Duquesne Light
Company, a corporation organized under the laws of the Commonwealth
of Pennsylvania (the "Company"), in connection with the proposed
issuance and sale from time to time of up to $150,000,000 of (i)
Cumulative Monthly Income Preferred Securities ("Preferred
Securities") of Duquesne Capital L.P., a limited partnership
organized under the laws of the State of Delaware (the
"Partnership), which represent limited partner interests in the
Partnership, (ii) a Guarantee of the Company to be issued for the
benefit of the holders from time to time of Preferred Securities
and (iii) Debentures of the Company to be issued to the Partnership
under an Indenture of the Company (the "Indenture") to The First
National Bank of Chicago, as trustee (the "Trustee"), as
contemplated by the Registration Statement on Form S-3 (the
"Registration Statement") proposed to be filed by the Company and
the Partnership with the Securities and Exchange Commission on or
about the date hereof for the registration of the Preferred
Securities, the Guarantee and the Debentures under the Securities
Act of 1933, as amended (the "Act"), and for the qualification of
the Indenture under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"). We have examined such corporate
records, certificates and other documents and have reviewed such
questions of law as we have considered necessary or appropriate for
purposes of the opinion expressed below. Based on such examination
and review, we are of the opinion that when:
(a) the Registration Statement, as it may be amended,
shall have become effective under the Act and any applicable
state securities or Blue Sky laws shall have been complied
with, and the Indenture shall have become qualified under the
Trust Indenture Act;
(b) the Securities Certificate filed by the Company with
the Pennsylvania Public Utility Commission with respect to the
Debentures and the Guarantee shall have been duly registered
by said regulatory authority;
(c) the Company's Board of Directors, or a duly
authorized committee thereof, shall have taken such action as
may be necessary to authorize the issuance by the Company of
the Debentures and the Guarantee on the terms set forth in or
contemplated by the Registration Statement, as it may be
amended, and the exhibits thereto;
(d) the Indenture shall have been appropriately executed
and delivered by the Company and the Trustee, the terms of the
Debentures have been duly established and the Debentures have
been issued and authenticated in accordance with the
applicable provisions of the Indenture and all necessary
corporate authorizations;
(e) the terms of the Guarantee have been duly
established in accordance with applicable law and the
Guarantee has been appropriately executed and delivered by the
the Company;
(f) the Preferred Securities to which the Guarantee and
the Debentures relate have been duly issued and sold and the
purchase price therefor has been received by the Partnership;
and
(g) the Company has received the consideration payable
for the Debentures;
the Guarantee and Debentures will be legal, valid and binding
obligations of the Company 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.
We confirm our opinion as set forth under the caption
"United States Income Taxation" in the prospectus constituting a
part of the Registration Statement.
We hereby authorize and consent to the use of this
opinion as Exhibit 5.2 to the Registration Statement, and authorize
and consent to the reference to our firm in the Registration
Statement and in the prospectus constituting a part thereof.
We are members of the New York Bar and do not hold
ourselves out as experts on the laws of any other state.
Accordingly, in rendering this opinion, we have relied, as to all
matters governed by the laws of the Commonwealth of Pennsylvania,
upon the opinion of even date herewith of Richard S. Christner,
Associate General Counsel for the Company, which is being filed as
Exhibit 5.1 to the Registration Statement, and, as to all matters
governed by the laws of the State of Delaware, upon the opinion of
even date herewith of Richards, Layton & Finger, special Delaware
counsel for the Company and the Partnership, which is being filed
as Exhibit 5.3 to the Registration Statement.
In rendering such opinion, Mr. Christner may rely upon
this opinion as to all matters of New York law addressed herein as
if this opinion were addressed directly to him. Except as
aforesaid, without our prior written consent, this opinion may not
be furnished or quoted to, or relied upon by, any other person or
entity for any purpose.
Very truly yours,
/s/ REID & PRIEST
REID & PRIEST
<PAGE>
EXHIBIT 5.3
[Letterhead of Richards, Layton & Finger]
May 9, 1994
Duquesne Capital L.P.
c/o Duquesne Light Company
One Oxford Centre
301 Grant Street
Pittsburgh, PA 15279
Duquesne Light Company
One Oxford Centre
301 Grant Street
Pittsburgh, PA 15279
Re: Duquesne Capital L.P.
---------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for Duquesne
Capital L.P., a Delaware limited partnership (the "Partnership"),
in connection with the matters set forth herein. At your
request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set
forth, our examination of documents has been limited to the
examination of the following documents or copies thereof:
(a) The Certificate of Limited Partnership of the
Partnership, dated as of April 27, 1994, as filed in the office
of the Secretary of State of the State of Delaware (the
"Secretary of State") on April 27, 1994;
(b) The Agreement of Limited Partnership of the
Partnership, dated as of April 27, 1994;
(c) The Amended and Restated Certificate of Limited
Partnership of the Partnership, dated as of May 9, 1994 (the
"Certificate"), as filed in the office of the Secretary of State
on May 9, 1994;
(d) The Amended and Restated Agreement of Limited
Partnership of the Partnership, dated as of May 9, 1994;
(e) A registration statement (the "Registration
Statement") on Form S-3, including a related preliminary
prospectus (the "Prospectus") and a preliminary prospectus
supplement, proposed to be filed by Duquesne Light Company, a
Pennsylvania corporation (the "General Partner"), and the
Partnership with the Securities and Exchange Commission on or
about May 9, 1994;
(f) A form of Amended and Restated Agreement of
Limited Partnership of the Partnership, attached as an exhibit to
the Registration Statement (the "Agreement");
(g) A form of Action of General Partner, relating to
the Preferred Securities (the "Action"); and
(h) A Certificate of Good Standing for the
Partnership, dated May 9, 1994, obtained from the Secretary of
State.
The Agreement as amended and supplemented by the Action
is hereinafter referred to as the "LP Agreement." Initially
capitalized terms used herein and not otherwise defined are used
as defined in the LP Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a)
through (h) above. In particular, we have not reviewed any
document (other than the documents listed in paragraphs (a)
through (h) above) that is referred to in or incorporated by
reference into the LP Agreement or the Registration Statement.
We have assumed that there exists no provision in any document
that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual
investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth
therein and the additional matters recited or assumed herein,
all of which we have assumed to be true, complete and accurate in
all material respects.
With respect to all documents examined by us, we have
assumed (i) the authenticity of all documents submitted to us as
authentic originals, (ii) the conformity with the originals of
all documents submitted to us as copies or forms, and (iii) the
genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that
the LP Agreement constitutes the entire agreement among the
parties thereto with respect to the subject matter thereof,
including with respect to the admission of partners to, and the
creation, operation and termination of, the Partnership, and that
the LP Agreement and the Certificate are in full force and effect
and have not been amended, (ii) except to the extent provided in
paragraph 1 below, the due organization or due formation, as the
case may be, and valid existence in good standing of each party
to the documents examined by us under the laws of the
jurisdiction governing its organization or formation, (iii) the
legal capacity of natural persons who are parties to the
documents examined by us, (iv) that each of the parties to the
documents examined by us has the power and authority to execute
and deliver, and to perform its obligations under, such
documents, (v) the due authorization, execution and delivery by
all parties thereto of all documents examined by us, including
the Agreement and the Action, (vi) the receipt by each Preferred
Security Holder of an LP Certificate and the payment for the
Preferred Securities acquired by it, in accordance with the LP
Agreement, (vii) that the books and records of the Partnership
set forth all information required by the LP Agreement and the
Delaware Revised Uniform Limited Partnership Act (6 Del. C.
Section 17-101, et seq.) (the "Act"), including all information
-- ---
with respect to all Persons to be admitted as Partners and their
contributions to the Partnership, and (viii) that the Preferred
Securities are issued and sold to the Preferred Security Holders
in accordance with the Registration Statement and the LP
Agreement. We have not participated in the preparation of the
Registration Statement and assume no responsibility for its
contents.
This opinion is limited to the laws of the State of
Delaware (excluding the securities laws of the State of
Delaware), and we have not considered and express no opinion on
the laws of any other jurisdiction, including federal laws and
rules and regulations relating thereto. Our opinions are
rendered only with respect to Delaware laws and rules,
regulations and orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of
such questions of law and statutes of the State of Delaware as we
have considered necessary or appropriate, and subject to the
assumptions, qualifications, limitations and exceptions set forth
herein, we are of the opinion that:
1. The Partnership has been duly formed and is
validly existing in good standing as a limited partnership under
the Act.
2. Assuming that the Preferred Security Holders, as
limited partners of the Partnership, do not participate in the
control of the business of the Partnership, upon issuance and
payment as contemplated by the LP Agreement, the Preferred
Securities will represent valid and, subject to the
qualifications set forth herein, will be fully paid and
nonassessable limited partner interests in the Partnership as to
which the Preferred Security Holders, in their capacities as
limited partners of the Partnership, will have no liability in
excess of their obligations to make payments provided for in the
LP Agreement 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).
3. There are no provisions in the LP Agreement the
inclusion of which, subject to the terms and conditions therein,
or, assuming that the Preferred Security Holders, as limited
partners of the Partnership, take no action other than actions
permitted by the LP Agreement, the exercise of which, in
accordance with the terms and conditions therein, would cause the
Preferred Security Holders, as limited partners of the
Partnership, to be deemed to be participating in the control of
the business of the Partnership.
We consent to the filing of this opinion with the
Securities and Exchange Commission as an exhibit to the
Registration Statement. We hereby consent to the use of our name
under the heading "Legal Opinions" in the Prospectus. We hereby
consent to the reliance by Richard S. Christner, Esquire,
Associate General Counsel of the General Partner, and by Reid &
Priest upon this opinion as to all matters of Delaware law
addressed herein as if this opinion were addressed directly to
them. In giving the foregoing consents, we do not thereby admit
that we come within the category of persons whose consent is
required under Section 7 of the Securities Act of 1933, as
amended, or the rules and regulations of the Securities and
Exchange Commission thereunder. Except as stated above, without
our prior written consent, this opinion may not be furnished or
quoted to, or relied upon by, any other person or entity for any
purpose.
Very truly yours,
/s/ Richards, Layton & Finger
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(B)(2)
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification
number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
DUQUESNE LIGHT COMPANY
(Exact name of obligor as specified in its charter)
Pennsylvania 25-0451600
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification
number)
One Oxford Center
301 Grant Street 15279
Pittsburgh, Pennsylvania (Zip Code)
(Address of Principal Executive Offices)
Debentures
(Title of Indenture Securities)
<PAGE>
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION
AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISION
AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D. C., Federal
Deposit Insurance Corporation, Washington, D. C.,
The Board of Governors of the Federal Reserve
System, Washington, D. C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST
POWERS.
The trustee is authorized to exercise corporate
trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR IS AN
AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A
PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the trustee
now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not applicable.
6. The consent of the trustee required by Section
321(b) of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not applicable.
9. Not applicable.
* EXHIBITS 1,2,3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO
EXHIBITS BEARING IDENTICAL NUMBERS IN ITEM 12 OF THE FORM T-1 OF
THE FIRST NATIONAL BANK OF CHICAGO, FILED AS EXHIBIT 26 TO THE
REGISTRATION STATEMENT ON FORM S-3 OF THE CIT GROUP HOLDINGS, INC.,
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 16,
1993 (REGISTRATION NO. 33-58418).
<PAGE>
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a
national banking association organized and existing under the laws
of the United States of America, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of Chicago, and State of
Illinois, on the 22nd day of April, 1994.
The First National Bank of Chicago,
Trustee,
By: /s/ Steven M. Wagner
----------------------------
Steven M. Wagner
Vice President & Senior Counsel
Corporate Trust Services Division
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(B) OF THE ACT
April 22, 1994
Securities and Exchange Commission
Washington, D. C. 20549
Gentlemen:
In connection with the qualification of an indenture between
Duquesne Light Company and The First National Bank of Chicago, the
undersigned, in accordance with Section 321(b) of the Trust
Indenture Act of 1939, as amended, hereby consents that the reports
of examinations of the undersigned, made by Federal or State
Authorities authorized to make such examinations, may be furnished
by such authorities to the Securities and Exchange Commission upon
its request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Steven M. Wagner
---------------------------------
Steven M. Wagner
Vice President and Senior Counsel
Corporate Trust Services Division
<PAGE>
EXHIBIT 7
A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its supervising or
examining authority.
<PAGE>
Legal Title of Bank: The First National Bank of Chicago
Call Date: 12/31/93 ST-BK: 17-1630 FFIEC 031 Page RC-1
Address: One First National Plaza, Suite 0460
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERICAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1993
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
DOLLAR AMOUNTS C400 <-
IN THOUSANDS
RCFD BIL MIL THOU
ASSETS
1. Cash and balances due
from depository institutions
(from Schedule RCA-A):
a. Noninterest-bearing
balances and currency
and coin(1)............. 0081 3,552,441 1.a.
b. Interest-bearing
balances(2)............. 0071 5,687,085 1.b.
2. Securities (from
Schedule RC-B)............... 0390 470,252 2
3. Federal funds sold and
securities purchased under
agreements to resell in
domestic offices of the
bank and its Edge and
Agreement subsidiaries,
and in IBFs:
a. Federal Funds sold 0276 3,985,638 3.a.
b. Securities purchased
under agreements to
resell...................... 0277 880,886 3.b.
4. Loans and lease financing
receivables:
a. Loans and leases,
net of unearned income
(from Schedule RC-C)....... RCFD 2122
13,308,340 4.a.
b. LESS: Allowance for
loan and lease losses...... RCFD 3123
339,885 4.b.
c. LESS: Allocated
transfer risk reserve...... RCFD 3128
0 4.c.
d. Loans and leases,
net of unearned income,
allowance, and reserve
(item 4.a minus 4.b
and 4.c)................... 2125 12,968,455 4.d.
5. Assets held in trading
accounts................... 2146 3,109,630 5.
6. Premises and fixed
assets (including
capitalized leases)........ 2145 497,559 6.
7. Other real estate owned
(from Schedule RC-M)....... 2150 101,446 7.
8. Investments in unconsolidated
subsidiaries and
associated
- -98 companies (from
Schedule RC-M)............. 2130 6,375 8.
9. Customers' liability to
this bank on acceptances
outstanding................ 2155 477,130 9.
10. Intangible assets (from
Schedule RC-M)............. 2143 147,257 10.
11. Other assets (from
Schedule RC-F)............. 2160 2,607,308 11.
12. Total assets (sum of
items 1 through 11)........ 2170 34,491,462 12.
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
<PAGE>
Legal Title of Bank: The First National Bank of Chicago
Call Date: 12/31/93 ST-BK: 17-1630 FFIEC 031 Page RC-2
Address: One First National Plaza, Suite 0460
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
SCHEDULE RC-CONTINUED
DOLLAR AMOUNTS
IN THOUSANDS BIL MIL THOU
LIABILITIES
13. Deposits:
a. In domestic offices
(sum of totals of columns
A and C from Schedule
RC-E, part 1)............ RCON 2200 15,870,533 13.a.
(1) Noninterest
-bearing(1).............. RCON 6631 7,494,138 13.a.(1)
(2) Interest
-bearing................. RCON 6636 8,376,395 13.a.(2)
b. In foreign offices,
Edge and Agreement
subsidiaries, and IBFs
(from Schedule RC-E,
part II)................. RCFN 2200 7,254,022 13.b.
(1) Noninterest bearing.. RCFN 6631 352,283 13.b.(1)
(2) Interest-bearing..... RCFN 6636 6,901,739 13.b.(2)
14. Federal funds purchased
and securities sold under
agreements to repurchase
in domestic offices of
the bank and of its Edge
and Agreement
subsidiaries, and
in IBFs:
a. Federal funds
purchased................ RCFD 0278 2,649,907 14.a.
b. Securities sold
under agreements to
repurchase............... RCFD 0279 171,899 14.b.
15. Demand notes issued to
the U.S. Treasury........ RCON 2840 106,087 15.
16. Other borrowed money..... RCFD 2850 1,782,869 16.
17. Mortgage indebtedness
and obligations under
capitalized leases....... RCFD 2910 267,000 17.
18. Bank's liability on
acceptance executed
and outstanding.......... RCFD 2920 477,130 18.
19. Subordinated notes and
debentures............... RCFD 3200 1,175,000 19.
20. Other liabilities
(from Schedule RC-G)..... RCFD 2930 2,049,329 20.
21. Total liabilities
(sum of items 13
through 20).............. RCFD 2948 31,803,776 21.
22. Limited-Life preferred
stock and related
surplus.................. RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred
stock and related
surplus.................. RCFD 3838 0 23.
24. Common stock............. RCFD 3230 200,858 24.
25. Surplus (exclude all
surplus related to
preferred stock)......... RCFD 3839 2,254,940 25.
26. a. Undivided profits
and capital reserves..... RCFD 3632 232,478 26.a.
b. LESS: Net unrealized
loss on marketable equity
securities............... RCFD 0297 (299) 26.b.
27. Cumulative foreign
currency translation
adjustments.............. RCFD 3284 (889) 27.
28. Total equity capital
(sum of items 23 through
27)...................... RCFD 3210 2,687,686 28.
29. Total liabilities,
limited-life preferred
stock, and equity capital
(sum of items 21, 22,
and 28).................. RCFD 3300 34,491,462 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed
for the bank by independent external
auditors as of any date during 1992...................... M.1.
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified
public accounting firm which submits a report on the consolidated holding
company (but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other
external auditors (may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
