As filed with the Securities and Exchange Commission on
March 17, 1997
Registration Statement No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ATLANTIC CITY ELECTRIC COMPANY
(Exact name of Registrant as specified in its charter)
NEW JERSEY
(State or other jurisdiction of
incorporation or organization)
21-0398280
(IRS Employer
Identification
Number)
6801 Black Horse Pike
Egg Harbor Township, New Jersey 08234-4130
(Address of principal executive offices, including zip
code)Registrant's telephone number, including area code:
609-
645-4100
JAMES E. FRANKLIN II, ESQ.,
Senior Vice President, Secretary and General Counsel
6801 Black Horse Pike
Egg Harbor Township, New Jersey 08234-4130
(609) 645-4100
(Name and address, including zip code, and telephone
number,
including area code, of agent for service)
It is respectfully requested that the Commission send copies
of
all notices, order and communications to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, N.Y. 10017
Attention of Vincent Pagano,
Jr.
212-455-2000
Winthrop, Stimson,
Putnam & Roberts
One Battery Park Plaza
New York, N.Y. 10004
Attention of John H.
Byington, Jr.
212-858-1000
Approximate date of commencement of proposed sale to public:
At such time or times after the effective date of the
Registration
Statement as the registrant shall determine.
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.
If this Form is filed to register additional securities for
an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same offering.
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and
list the Securities Act registration statement number of the
earlier effective registration statement for the same offering.
If delivery of the prospectus is expected to be made
pursuant
to Rule 434, please check the following box.
CALCULATION OF REGISTRATION FEE
Title of each Proposed Proposed Amount
class of maximum maximum of
securities Amount offering aggregate registra
being being price offering tion
registered registered per unit* price* fee
Debt
Securities $105,000.00 100% $105,000.00 $31,819
* Estimated solely for the purpose of computing the registration
fee
The registrant hereby amends this registration statement on such
date or dates as may be necessary to delay its effective date
until the registrant shall file a further amendment which
specifically states that this registration statement shall
thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, or until the registration statement
shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
The within Prospectus contains the information required by Rule
429 of the Commission under the Securities Act of 1933 with
respect to $45,000,000 of Debt Securities remaining unsold under
Registration Statement No. 33-53841, declared effective June 16,
1994. The amount of the filing fee associated with such Debt
Securities that was previously paid with Registration Statement
No. 33-53841 was $15,517.50.<PAGE>
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 JURISDICTION IN WHICH SUCH OFFER,
SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR
QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH JURISDICTION.
SUBJECT TO COMPLETION, DATED MARCH 17, 1997
PROSPECTUS
$150,000,000
Atlantic City Electric Company
Debt Securities
[LOGO]
Atlantic City Electric Company (the Company ) intends to offer,
from time to time, up to $150,000,000 aggregate principal amount
of its Debt Securities, consisting of First Mortgage Bonds and/or
First Mortgage Bonds, Designated Secured Medium Term Notes
(collectively, the New Bonds ) and/or Unsecured Notes and/or
Unsecured Medium Term Notes (collectively, the New Notes ). (The
New Bonds and the New Notes are hereinafter collectively referred
to as the Debt Securities ). The Debt Securities will be offered
in one or more series in amounts, at prices and on terms to be
determined at the time or times of sale. The title, aggregate
principal amount, interest provisions, maturity or maturities,
initial public offering price, redemption or tender provisions,
if any, and other specific terms of each series of Debt
Securities in respect of which this Prospectus is being delivered
will be set forth in an accompanying prospectus or pricing
supplement ( 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.
The Company may sell the Debt Securities through
underwriters, dealers or agents, or directly to one or more
institutional purchasers. A Prospectus Supplement will set forth
the names of underwriters, or agents, if any, any applicable
commissions or discounts and the net proceeds to the Company from
any such sale.
The date of this Prospectus is , 1997
No dealer, salesman or any other person has been authorized
to give any information or to make any representation not
contained or incorporated by reference in this Prospectus or this
Prospectus as supplemented by any Prospectus Supplement, and, if
given or made, such information or representation must not be
relied upon as having been authorized by the Company or any other
person. Neither the delivery of this Prospectus nor this
Prospectus as supplemented by any Prospectus Supplement nor any
sale made hereunder or thereunder shall under any circumstances
create an implication that there has or has not been any change
in the affairs of the Company since the date hereof or thereof.
Neither this Prospectus nor this Prospectus as supplemented by
any Prospectus Supplement constitutes an offer of any securities
other than the registered securities to which it relates, or an
offer to any person in any jurisdiction in which such offer would
be unlawful.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of
the Securities Exchange Act of 1934 (the 1934 Act ) and in
accordance therewith files reports, proxy statements and
information statements and other information with the Securities
and Exchange Commission (the SEC ). Such reports, proxy
statements and information statements and other information may
be inspected and copied at the public reference facilities
maintained by the SEC at 450 Fifth Street, N.W., Washington,
D.C., 20549; Citicorp Center, 500 West Madison Street, Suite
1400, Chicago, Illinois, 60661; and 7 World Trade Center, 13th
Floor, New York, New York 10048. Copies of such material can be
obtained from the Public Reference Section of the SEC, 450 Fifth
Street, N.W., Washington, D.C. 20549 at prescribed rates. The SEC
maintains a Web site at http://www.sec.gov containing reports,
proxy statements and information statements and other information
regarding registrants that file electronically with the SEC,
including the Company.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
There are hereby incorporated by reference in this
Prospectus the following documents heretofore filed with the SEC:
1. Annual Report on Form 10-K for the year ended
December 31, 1996.
2. Current Reports on Form 8-K dated January 6, 1997,
January 27, 1997 and January 31, 1997.
All documents filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of this
Prospectus and prior to the termination of the offering made by
this Prospectus shall be deemed to be incorporated by reference
in this Prospectus and to be a part hereof from the date of
filing of such documents (such documents, and the documents
enumerated above, being hereinafter referred to as Incorporated
Documents ). Any statement contained in an Incorporated Document
shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in
any other subsequently filed Incorporated Document or in the
Prospectus as amended 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.
The Company hereby undertakes to provide without charge to
each person, including any beneficial owner, to whom a copy of
this Prospectus has been delivered, on the written or oral
request of any such person, a copy of any or all of the documents
referred to above (other than exhibits to such documents) which
have been or may be incorporated by reference in this Prospectus.
Requests for such copies should be directed to Robert K.
Marshall, Manager, Finance & Treasury Operations, Atlantic City
Electric Company, 6801 Black Horse Pike, Egg Harbor Township, New
Jersey 08234-4130, telephone number: 609/645-4655. The
information relating to the Company contained in this Prospectus
or any Prospectus Supplement relating hereto does not purport to
be comprehensive and should be read together with the information
contained in the Incorporated Documents.<PAGE>
THE COMPANY
The Company was formed under the laws of New Jersey on
April 28, 1924 by merger and consolidation of several utility
companies. The Company is engaged in the generation,
transmission, distribution, and sale of electric energy in the
southern part of New Jersey. The Company, which has a wholly
owned subsidiary, Deepwater Operating Company, is the principal
subsidiary of Atlantic Energy, Inc. ( Energy ), which is a public
utility holding company as defined in the Public Utility Holding
Company Act of 1935 and which has claimed exemption from
substantially all of the provisions of such Act. The other direct
subsidiaries of Energy are Atlantic Energy Enterprises, Inc. and
Atlantic Energy International, Inc.
The Company's principal executive office is located at 6801
Black Horse Pike, Egg Harbor Township, New Jersey, 08232-4130,
telephone 609-645-4100. The Company is subject to regulation by
the New Jersey Board of Public Utilities and the Federal Energy
Regulatory Commission. At December 31, 1996, the Company had over
477,000 customers and employed 1,466 persons, of which 633 were
affiliated with a national labor organization. With the exception
of a municipal electric system providing electric service within
the municipal boundaries of the City of Vineland, New Jersey, the
Company supplies electric service to the southern one-third of
the State of New Jersey. The Company has qualified to do business
as a foreign corporation in the Commonwealth of Pennsylvania to
enable it to participate in the ownership and operation of
generation and transmission facilities located therein.
SELECTED FINANCIAL INFORMATION
The following information is qualified by the detailed
information and financial statements included elsewhere in the
Prospectus, including the documents incorporated by reference.
Year Ended December 31,
1992 1993 1994 1995 1996
Operating
Revenues(000) $816,931 $865,799 $913,226 $953,779 $982,492
Net
Income (000) $107,446 $109,026 $ 93,174 $ 98,752 $ 75,017
Ratio of
Earnings
to Fixed
Charges 3.55 3.37 3.05 3.16 2.58
As of December 31, 1996
Amount
(in thousands)
Ratio
(%)
Long Term Debt* $ 802,420 46.3%
Cumulative Preferred Stock:
Subject to Mandatory Redemption* 53,950 3.1%
Not Subject to Mandatory Redemption 30,000
Cumulative Quarterly Income
Preferred Securities 70,000 4.0
Common Equity 778,425 44.9
Total Capitalization $1,734,795 100.00%
* Includes current portion
USE OF PROCEEDS
Use of the net proceeds to be received by the Company from
the issuance and sale of the Debt Securities will be set forth in
the accompanying Prospectus Supplement.
LEGAL OPINIONS
Opinions as to the legality of the Debt Securities will be
rendered by James E. Franklin, II, Esquire, General Counsel of
the Company, and Simpson Thacher & Bartlett (a partnership which
includes professional corporations), New York, New York, counsel
for the Company, and by Winthrop, Stimson, Putnam & Roberts, New
York, New York, counsel for any underwriters or agents. All
matters pertaining to title, the nature and extent of the lien of
the Mortgage securing the New Bonds and all other questions of
conformity to the laws of the State of New Jersey and of the
Commonwealth of Pennsylvania will be rendered to the purchasers
or underwriters only by James E. Franklin, II, Esquire, who has,
to the extent he deemed necessary, consulted with Pennsylvania
counsel as to matters of conformity to the laws of the
Commonwealth of Pennsylvania and has relied upon opinions of such
counsel as to such matters.
EXPERTS
The consolidated financial statements incorporated herein by
reference from the Company's Annual Report on Form 10-K for the
year ended December 31, 1996 have been audited by Deloitte &
Touche LLP, independent auditors, as stated in their report,
which is incorporated herein by reference, and have been so
incorporated herein in reliance upon the report of such firm
given upon their authority as experts in auditing and accounting.
The legal conclusions in Security under the caption
Description of New Bonds , insofar as such matters are governed
by the laws of the State of New Jersey or the Commonwealth of
Pennsylvania, have been reviewed by James E. Franklin, II, Esq.,
General Counsel of the Company, and have been included in
reliance upon the authority of James E. Franklin, II, Esq., as an
expert.
DESCRIPTION OF NEW BONDS
The New Bonds will be issued under the Mortgage and Deed of
Trust, dated January 15, 1937, made by the Company to The Bank of
New York, New York, N.Y. as Trustee ( Mortgage Trustee ), as
supplemented and amended (the Mortgage ), and one or more new
indentures supplemental thereto (the Supplemental Indenture ).
All First Mortgage Bonds (including the New Bonds) issued and to
be issued under the Mortgage are herein sometimes referred to as
Bonds . Copies of the Mortgage and of the forms of Supplemental
Indenture are filed as exhibits to the Registration Statement.
The statements herein concerning the New Bonds, the Bonds
and the Mortgage are merely an outline and do not purport to be
complete. They are qualified in their entirety by express
reference to the cited Sections and Articles of the Mortgage.
Terms defined in the Mortgage are used in this outline.
Maturity, Interest, Redemption and Payment (see the accompanying
Prospectus Supplement)
Security
The New Bonds will be secured pari passu with Bonds of all
other series now or hereafter issued by the lien of the Mortgage
which constitutes, in the opinion of counsel for the Company, a
first lien on substantially all of the fixed physical property
owned by the Company, subject only to (a) the conditions and
limitations in the instruments through which the Company claims
title to its properties and (b) excepted encumbrances as
defined in Section 6 of the Mortgage.
The Mortgage contains an after-acquired property clause, but
property hereafter acquired may be subject to liens, ranking
prior to the Mortgage, existing thereon at the time of
acquisition. The after-acquired property clause may not be
effective as to property acquired subsequent to the filing of a
case with respect to the Company under the Federal Bankruptcy
Code. The provisions of the Mortgage, in substance, permit
release of property from the lien and withdrawal from the
Mortgage Trustee of cash proceeds of property released from the
lien, not only against new property then becoming subject to the
lien, but also against property already subject to the Mortgage,
unless such property was owned at November 30, 1936, or has been
made the basis of the issue of Bonds or a credit under Section 20
of the Mortgage. Accordingly, any increase in the amount of the
mortgaged and pledged property, as a result of the after-acquired
property clause, may be eliminated by means of such releases and
withdrawals.
Under New Jersey law, the State of New Jersey owns in fee
simple for the benefit of the public schools all lands now or
formerly flowed by the tide up to the mean high-water line,
unless it has made a valid conveyance of its interests in such
property. In 1981, because of uncertainties raised as to possible
claims of State ownership, the New Jersey Constitution was
amended to provide that lands formerly tidal-flowed, but which
were not then tidal-flowed at any time for a period of 40 years,
were not to be subject to State claim unless the State has
specifically defined and asserted a claim within one year period
ending November 2, 1982. As a result, the State published maps of
the eastern (Atlantic) coast of New Jersey depicting claims to
portions of many properties, including certain properties owned
by the Company. The Company believes it has good title to such
properties and will vigorously defend its title, or will obtain
such grants from the State as may ultimately be required. The
cost to acquire any such grants may be covered by title insurance
policies. Assuming that all of such State claims were determined
adversely to the Company, they would relate to land, which,
together with the improvements thereon, would amount to less than
1% of net utility plant. No maps depicting State claims to
property owned by the Company on the western (Delaware River)
side of New Jersey were published within one year period mandated
by the Constitutional Amendment. Nevertheless, the Company
believes it has obtained all necessary grants from the State for
its improved properties along the Delaware River.
Issuance of Additional Bonds
Additional Bonds of any series may be issued in principal
amount equal to:
1. 65% of the cost or then fair value to the Company
(whichever shall be less) of property additions acquired,
made or constructed subsequent to June 30, 1950;
2. The principal amount of Bonds or prior lien bonds retired
or then to be retired; and
3. The amount of cash deposited with the Mortgage Trustee
but, except as otherwise provided in the Mortgage, in each case
only if the net earnings (as defined in Section 7 of the
Mortgage) are at least twice the annual interest charges on all
outstanding indebtedness secured by any equal or prior lien,
including the additional issue. However, no Bonds may be issued
against property additions subject to prior liens, as defined in
Section 6, (a) if the principal amount of outstanding prior lien
bonds secured thereby exceeds 50% of the cost or then fair value
(whichever shall be less) of such property additions, or (b) if
the principal amount of all Bonds theretofore issued and
continuing on such basis, and the amount of certain other items
representing proportions of deposited cash withdrawn, or property
released or credit taken under Section 20 on such basis, in the
aggregate exceed 20% of the principal amount of all Bonds
theretofore issued, including the additional issue. (See Sections
7, 23, 25, 26, 27, 29 and 30.)
The Company plans to authenticate the New Bonds on the basis
of property additions but may, in some cases, authenticate New
Bonds on the basis of retired Bonds. It is estimated that at
January 31, 1997 unfunded property additions amounted to more
than $500,000,000.
Release and Substitution of Property
The Mortgage permits property to be released from the lien of
the Mortgage upon compliance with the provisions thereof. (See
Sections 58, 59, 60 and 62.) Such provisions require that, in
certain specified cases, cash be deposited with the Mortgage
Trustee in an amount equal to the excess of the fair value of the
property to be released over the aggregate of certain
computations required by the Mortgage. The Mortgage also
contains requirements relating to the withdrawal or application
of release moneys and other funds held by the Mortgage Trustee.
(See Sections 55, 61 and 62.)
Modification of the Mortgage
Article XVIII of the Mortgage provides for modifying or
altering the Mortgage with the consent of the Company and by vote
of the holders of 75% in principal amount of the outstanding
Bonds which are affected by the proposed modification or
alteration, but no such modification or alteration may permit the
waiver of any completed default (as defined in Section 65) and
its consequences without the approval of at least a majority in
principal amount of all the outstanding Bonds. No modification or
alteration without the consent of the holder of a Bond may modify
the terms of payment of the principal amount of or interest on
such Bond or create an equal or prior lien or deprive such holder
of a lien on the mortgaged property or reduce the above
percentage.
Concerning the Mortgage Trustee
The Bank of New York also serves as Indenture Trustee under
the Indenture under which the New Notes are issued and as trustee
under a junior subordinated indenture under which junior
subordinated deferrable interest debentures have been issued. The
Company and its affiliates utilize various of the banking
services offered by the Mortgage Trustee. Such services include
acting as a depositary and providing lines of credit.
Defaults
By Section 65 of the Mortgage, the following are defined as
completed defaults : default in the payment of principal;
default for 90 days in the payment of interest; default in
payment of principal or interest on outstanding prior lien bonds
in certain cases; certain events of bankruptcy, insolvency or
reorganization; and default for 90 days after notice in the
performance of any other covenant. By Section 53 of the Mortgage,
a failure to provide money for the redemption of Bonds called for
redemption also constitutes a completed default. The Company is
required to furnish annually to the Mortgage Trustee a
certificate as to compliance with all conditions and covenants
under the Mortgage.
The Mortgage Trustee or the holders of 25% in principal amount
of the Bonds may declare the principal due upon the occurrence of
a completed default, but the holders of a majority in principal
amount may annul such declaration if the default has been cured,
and the Mortgage Trustee, upon the occurrence of a completed
default, is required to declare the principal due, or to enforce
payment of the Bonds and to foreclose the Mortgage, on request of
the holders of a majority in principal amount of the Bonds. (See
Sections 65, 68 and 101.) The holders of a majority in principal
amount of the Bonds may direct the time, method and place of
conducting any proceeding for the enforcement of the Mortgage.
(See Section 69.) No bondholder has the right to institute any
proceeding for the enforcement of the Mortgage unless such holder
shall have given the Mortgage Trustee written notice of a
completed default, the holders of 25% in principal amount shall
have offered to the Mortgage Trustee indemnity against costs,
expenses and liabilities, requested the Mortgage Trustee to take
action and have given the Mortgage Trustee reasonable opportunity
to take such action. (See Section 79.) The Mortgage Trustee is
entitled to be indemnified before taking action to enforce the
lien at the request of such bondholders. (See Section 68.)
DESCRIPTION OF NEW NOTES
General
The New Notes are to be issued under an Indenture, dated as of
March 1, 1997 ( Indenture ), between the Company and The Bank of
New York, as trustee ( Indenture Trustee ).
The statements herein concerning the New Notes and the
Indenture are merely an outline and do not purport to be
complete. They are qualified in their entirety by express
reference to the cited Sections and Articles of the Indenture.
Terms defined in the Indenture are used in this outline.
The Indenture provides that debt securities (including the New
Notes and including both interest bearing and original issue
discount securities) may be issued thereunder, without limitation
as to aggregate principal amount. (See Section 301.) All debt
securities heretofore or hereafter issued under the Indenture
(including the New Notes) 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 the
Company. The New Notes will rank pari passu with all other
unsecured and unsubordinated indebtedness of the Company.
Substantially all of the fixed physical property owned by the
Company is subject to the lien of the Mortgage securing the
Company's Bonds. (See Description of New Bonds Security
herein.)
Maturity, Interest, Redemption and Payment (see the accompanying
Prospectus Supplement)
Events of Default and Notice Thereof
Events of Default are: default for three Business Days in
payment of principal; default for 60 days in payment of interest;
certain events in bankruptcy, insolvency or reorganization;
default for 90 days after notice in the case of a breach of any
other covenant; and any other Event of Default specified with
respect to the Indenture Securities of a particular series. No
Event of Default with respect to a series of Indenture Securities
necessarily constitutes an Event of Default with respect to the
Indenture Securities of any other series. The Indenture Trustee
may withhold notice of default (except in payment of principal,
interest or any funds for the retirement of Indenture Securities)
if it, in good faith, determines that withholding of such notice
is in the interest of the Holders of the Indenture Securities.
(See Sections 801 and 903.)
Either the Indenture Trustee or the Holders of not less than
33% in principal amount (or such lesser amount as may be provided
in the case of discount Indenture Securities) of the outstanding
Indenture Securities of all defaulted series, considered as one
class, may declare the principal and interest on such series due
on default, but the Company may annul such default by effecting
its cure and paying overdue interest and principal. No Holder of
Indenture Securities may enforce the Indenture without having
given the Indenture Trustee written notice of default, and unless
the Holders of a majority of the Indenture Securities of all
defaulted series, considered as one class, shall have requested
the Indenture Trustee to act and offered reasonable indemnity,
and for 60 days the Indenture Trustee shall have failed to act,
but each Holder has an absolute right to receive payment of
principal and interest when due and to institute suit for the
enforcement of such payment. The Indenture Trustee is not
required to risk its funds or incur any financial liability if it
shall have reasonable grounds for believing that repayment is not
reasonably assured. The Holders of a majority of the Indenture
Securities of all defaulted series, considered as one class, may
direct the time, method and place of conducting any proceedings
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, but the
Indenture Trustee is not required to follow such direction if not
sufficiently indemnified and the Indenture Trustee may take any
other action it deems proper which is not inconsistent with such
direction. (See Sections 802, 807, 808, 812 and 902.)
Evidence to be Furnished to the Indenture Trustee
Compliance with Indenture provisions will be evidenced by
written statements of the Company's officers. An annual
certificate with reference to compliance with the covenants and
conditions of the Indenture and the absence of defaults is
required to be filed with the Indenture Trustee. (See Section
1004.)
Modification of the Indenture
The rights of the Holders of the Indenture Securities may be
modified with the consent of the Holders of a majority of the
Indenture Securities of all series or Tranches, as defined below,
affected, considered as one class. However, certain specified
rights of the Holders of Indenture Securities may be modified
without the consent of the Holders if such modification would not
be deemed adversely to affect their interests in any material
respect. In general, no modification of the terms of payment of
principal and interest, no reduction of the percentage in
principal amount of the Indenture Securities outstanding under
such series required to consent to any supplemental indenture or
waiver under the Indenture, no reduction of such percentage
necessary for quorum and voting, and no modification of certain
of the provisions in the Indenture relating to supplemental
indentures, waivers of certain covenants and waivers of past
defaults is effective against any Holder of Indenture Securities
without his consent. Tranche means a group of Indenture
Securities which are of the same series and have identical terms
except as to principal amount and/or date of issuance. (See
Article Twelve.)
The Indenture Trustee
The Bank of New York also serves as the Mortgage Trustee under
the Mortgage under which the New Bonds are issued and as trustee
under a junior subordinated indenture under which junior
subordinated deferrable interest debentures of the Company have
been issued. The Company and its affiliates utilize various of
the banking services offered by the Indenture Trustee. Such
services include acting as a depositary and providing lines of
credit.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities in any of three ways:
(i) through underwriters or dealers; (ii) directly to a limited
number of purchasers or to a single purchaser; or (iii) through
agents. The Prospectus Supplement relating to a series of the
Debt Securities will set forth the terms of the offering of the
Debt Securities, including the name or names of any underwriters,
dealers or agents, the purchase price of such Debt Securities and
the proceeds to the Company from such sale, any underwriting
discounts or agency fees and other items constituting
underwriters' or agents' compensation, any initial public
offering price and any discounts or concessions allowed or
reallowed or paid to dealers. 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 underwriters are used in the sale, the Debt Securities 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 the sale. The
underwriters with respect to a particular underwritten offering
of Debt Securities will be named in the Prospectus Supplement
relating to such offering and, if an underwriting syndicate is
used, the managing underwriters will be set forth on the cover
page of such Prospectus Supplement. Unless otherwise set forth in
the Prospectus Supplement, the several obligations of the
underwriters to purchase the Debt Securities will be subject to
certain conditions precedent, and the underwriters will be
obligated to purchase all such Debt Securities if any are
purchased.
Debt Securities may be sold directly by the Company or through
agents designated by the Company from time to time. The
Prospectus Supplement will set forth the name of any agent
involved in the offer or sale of the Debt Securities in respect
of which the Prospectus Supplement will be delivered as well as
any commissions payable by the Company to such agent. Unless
otherwise indicated in the Prospectus Supplement, any such agent
will be acting on a reasonable best efforts basis for the period
of its appointment.
If so indicated in the Prospectus Supplement, the Company will
authorize agents, underwriters or dealers to solicit offers by
certain specified institutions to purchase Debt Securities from
the Company at the public offering price set forth in the
Prospectus Supplement pursuant to delayed delivery contracts
providing for payment and delivery on a specified date in the
future. Such contracts will be subject to those conditions set
forth in the Prospectus Supplement, and the Prospectus Supplement
will set forth the commission payable for solicitation of such
contracts.
Subject to certain conditions, the Company may agree to
indemnify any underwriters, dealers, agents or purchasers and
their controlling persons against certain civil liabilities,
including certain liabilities under the Securities Act of 1933,
as amended.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.*
Filing Fee for Registration Statement. . . . . . . . . . .$31,819
Rating Agency Fees . . . . . . . . . . . . . . . . . . . . 60,000
Printing Registration Statement, Prospectus, etc.. . . . . 10,000
Fees and Expenses of Mortgage Trustee, Indenture Trustee
and their Counsel. . . . . . . . . . . . . . . . . . . . . 40,000
Certified Public Accountants fees. . . . . . . . . . . . . 19,000
Legal fees . . . . . . . . . . . . . . . . . . . . . . . .150,000
Miscellaneous expenses . . . . . . . . . . . . . . . . . . .7,500
Total. . . . . . . . . . . . . . . . . . . . . . . . . $318,319
* All of the above except the fee payable to the Securities and
Exchange Commission are estimated.
Item 15. Indemnification of Directors and Officers.
Directors and officers of the Company are entitled to be
indemnified against expenses and liabilities incurred by them
under certain circumstances pursuant to the By-Laws of the
Company and pursuant to the New Jersey Business Corporation Act.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended (the Act ), may be permitted
to officers, directors and controlling persons of the Company
pursuant to the By-Laws of the Company or the New Jersey statutes
or otherwise, the Company has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer or
controlling person of the Company 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 Company will, unless in the opinion of its
counsel the matter has theretofore been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final
adjudication of such issue.
The Company has insurance policies under which its directors
and officers are insured against certain liabilities that may be
incurred by them in their capacities as such.
Item 16. Exhibits.
Reference is made to the information contained in the Exhibit
Index filed as a part of this Registration Statement.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i)To include any prospectus
required by section 10(a)(3) of the Securities
Act of 1933;
(ii)To reflect in the
prospectus any facts or events arising after the
effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of Debt Securities (if the total dollar value of Debt
Securities would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) of the
Securities Act of 1933 if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the Calculation
of Registration Fee table in the effective registration
statement;
(iii)To include any material
information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
Provided, however, that (i) and (ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual
report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference
in the registration statement shall be deemed to be a new
registration statement relating to the Debt Securities, and the
offering thereof at that time shall be deemed to be the initial
bona fide offering thereof.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-3 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in
the Township of Egg Harbor, and State of New Jersey on the
seventeenth of March, 1997.
Atlantic City Electric Company
By: /s/ L.M. Walters
L.M. Walters
Vice President, Treasurer and Assistant Secretary
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed below by the
following persons in the capacities and on the dates indicated.
Signature Title Date
(i)Principal
Executive
Officer:
* Chairman, Chief Executive
J. L. Jacobs Officer and Director March 17,1997
(ii)
Principal
Financial and
Accounting
Officer:
*
M.J. Barron Senior Vice President,
Chief Financial Officer
and Director March 17, 1997
(iii) A Majority of
the Directors:
M.J. Chesser*
J.E. Franklin II*
M.I. Harlacher, Jr.*
H.K. Levari*
M.T. Powell* March 17, 1997
*By/s/L.M. Walters
L.M. Walters, Attorney-in-Fact
<PAGE>
EXHIBIT INDEX
Exhibit
No. Description
1a* Copy of Form of Proposal and Form of Purchase
Contract for New Bonds and New Notes.
1b* Copy of Form of Selling Agency Agreement for
First Mortgage Bonds, Designated Secured
Medium Term Notes and Unsecured Medium Term
Notes.
4a** Mortgage and Deed of Trust, dated January 15,
1937, between the Company and The Bank of
New York (formerly Irving Trust Company,
Trustee) and Supplemental Indentures through
November 1, 1994 (File No. 2-66280-Exhibit
No. 2(b); File No. 1-3559, Form 10-K for
year ended December 31, 1980-Exhibit No.
4(d); Form 10-Q for quarter ended June 30,
1981-Exhibit No. 4(a); Form 10-K for year
ended December 31, 1983-Exhibit No. 4(d);
Form 10-Q for quarter ended March 31, 1984-
Exhibit No. 4(a); Form 10-Q for quarter
ended June 30, 1984-Exhibit No. 4(a); Form
10-Q for quarter ended September 30, 1985-
Exhibit 4; Form 10-Q for quarter ended March
31, 1986-Exhibit No. 4; Form 10-K for year
ended December 31, 1987-Exhibit No. 4(d);
Form 10-Q for quarter ended September 30,
1989-Exhibit No. 4(a); Form 10-K for year
ended December 31, 1990-Exhibit No. 4(c);
File No. 33-49279-Exhibit No. 4(b); Form 10-
Q for the quarter ended September 30, 1993-
Exhibits No. 4(a) and 4(b); Form 10-K for
year ended December 31, 1993-Exhibit No.
4c(1); Form 10-Q for the quarter ended June
30, 1994 - Exhibit 4(a); Form 10-Q for the
quarter ended September 30, 1994 - Exhibit
4(a); and Form 10-K for the year ended
December 31, 1994 - Exhibit 4c(1).
<PAGE>
4b* Form of proposed Supplemental Indenture
between the Company and The Bank of New
York, Mortgage Trustee, for the First
Mortgage Bonds, Designated Secured Medium
Term Notes.
4c** Form of proposed Supplemental Indenture
between the Company and The Bank of New
York, Trustee, for the First Mortgage Bonds
(File No. 33-49933-Exhibit No. 4(ii)).
4d* Form of First Mortgage Bond, Designated
Secured Medium Term Note.
4e* Copy of Form of Indenture between the Company
and The Bank of New York, Indenture Trustee
for the New Notes.
4f* Form of Unsecured Note.
5a* Opinion of James E. Franklin II, Esq., with
respect to the securities being registered
hereunder.
5b* Opinion of Simpson Thacher & Bartlett, with
respect to the securities being registered
hereunder.
12** Statement of Computations of Ratio of Earnings
to Fixed Charges (Form 10-K for the year
ended December 31, 1996 - Exhibit 12).
23a* Consent of Independent Auditors.
23b Consent of James E. Franklin II, Esq.
(Included in Exhibit 5a)
23c Consent of Simpson Thacher & Bartlett
(Included in Exhibit 5b)
24* Powers of Attorney.
25a* Statement of eligibility on Form T-1 of
Mortgage Trustee.
25b* Statement of eligibility on Form T-1 of
Indenture Trustee.
* Filed via electronic transmission.
** Incorporated by reference to previous filing.
Exhibit 1a
Form of Proposal for Purchase of
[First Mortgage Bonds] [Unsecured Notes]
of
Atlantic City Electric Company
ATLANTIC CITY ELECTRIC COMPANY
c/o SIMPSON THACHER & BARTLETT
425 Lexington Avenue
New York, N.Y. 10017
Dear Sirs:
Referring to the Terms and Conditions (the Terms)
Relating to Proposals for the Purchase of [First Mortgage Bonds]
[Unsecured Notes] (the Securities) of Atlantic City Electric
Company (the Company), the several persons, firms and
corporations named and to be named in Exhibit I to the Purchase
Contract attached hereto as Exhibit A (the Bidders) submit
herewith the following proposal for the purchase of the
Securities:
1. We have been advised by the Company that (i) the
principal amount of the Securities to be purchased from the
Company shall be $_____ and (ii) the maturity date of the
Securities is __________.
2. The interest rate of the Securities shall be ___%
per annum.
3. The price to be paid to the Company for the
Securities shall be _____% (which shall be not less than 98% or
more than 102%) of the principal amount thereof, plus accrued
interest from the first day of the calendar month during which
the Securities are to be issued to the date of payment and
delivery.
4. If the Company indicates that it proposes to
accept this proposal, the Bidders (acting through the
Representative) will, prior to the completion by the Company of
the form of acceptance set forth below, supply to the Company,
for attachment as Exhibit I to the Purchase Contract attached
hereto as Exhibit A, the names of the Bidders not already set
forth in Exhibit I and the respective principal amounts of
Securities to be purchased severally by such Bidders, such
principal amounts aggregating the principal amount of Securities
to be purchased hereunder.
5. In consideration of the agreements of the Company
set forth in the Terms, each of the Bidders agrees (a) that the
offer of such Bidder included in this proposal shall be
irrevocable until two and one-half hours after the time
designated by the Company pursuant to the Terms for the
submission of proposals, unless sooner rejected by the Company,
and (b) if this proposal is accepted, the Purchase Contract
attached hereto as Exhibit A shall thereupon become effective
without any execution thereof other than the signing by the
Company of a duplicate or reproduction copy of this proposal and
all rights of the Company and of the Bidders shall be determined
solely in accordance with the terms of said Purchase Contract,
subject, however, to such modifications therein as may be
necessary and as are contemplated by the Terms.
6. The Representative represents and warrants that it
has all necessary power and authority to act for each of the
Bidders in respect of the matters referred to in this proposal.
7. This proposal may be executed in any number of
counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same
instrument.
Dated: Very truly yours,
By
By
On behalf of and as
Representative of the persons,
firms and corporations named
and to be named in Exhibit I
to the Purchase Contract.
Address
Accepted:
ATLANTIC CITY ELECTRIC COMPANY
By
Authorized Officer
<PAGE>
EXHIBIT A
ATLANTIC CITY ELECTRIC COMPANY
PURCHASE CONTRACT
AGREEMENT made between ATLANTIC CITY ELECTRIC COMPANY,
a corporation organized and existing under the laws of the State
of New Jersey (the Company), and the several persons, firms and
corporations (the Purchasers) named in Exhibit I hereto.
WITNESSETH:
[WHEREAS, the Company proposes to issue and sell its
First Mortgage Bonds to be in the aggregate principal amount, and
to have the term, maturity and interest rate specified in the
attached Form of Proposal (the Securities), to be issued under
the Mortgage and Deed of Trust, dated January 15, 1937, as
supplemented and amended and as to be supplemented (the
Mortgage); and]
[WHEREAS, the Company proposes to issue and sell its
Unsecured Notes to be in the aggregate principal amount, and to
have the term, maturity and interest rate specified in the
attached Form of Proposal (the Securities), to be issued under
the Indenture dated as of March 1, 1997 (the Indenture); and]
WHEREAS, the Purchasers have designated the person or
persons signing the Form of Proposal (the Representative) to
execute the Form of Proposal on behalf of the respective
Purchasers and to act for the respective Purchasers in the manner
provided in this agreement; and
WHEREAS, the Company has prepared and filed, in
accordance with the provisions of the Securities Act of 1933 (the
Act), with the Securities and Exchange Commission (the
Commission), registration statements and prospectus relating to
the Securities and such registration statements have become
effective; such registration statements, as the same may have
been amended to the date hereof, being herein called the
Registration Statements, and the prospectus included in the
Registration Statements, as it may be last amended or
supplemented prior to the effectiveness of this agreement, but
excluding any amendment or supplement relating solely to
securities other than the Securities, being herein called the
Basic Prospectus; and
WHEREAS, the Basic Prospectus is to be supplemented by
a prospectus supplement containing certain information provided
by the Representative relating to the Purchasers and the price
and terms of any public offering of the Securities, to be filed
or transmitted for filing with the Commission in accordance with
Rule 424(b) under the Act, the Basic Prospectus, as so
supplemented, being herein called the Prospectus. As used
herein, the Registration Statements, the Basic Prospectus and the
Prospectus shall include, in each case, the documents
incorporated by reference therein.
NOW, THEREFORE, in consideration of the premises and
the mutual covenants herein contained, it is agreed between the
parties as follows:
1. Purchase and Sale: Upon the basis of the
warranties and representations and on the terms and subject to
the conditions herein set forth, the Company agrees to sell to
the respective Purchasers named in Exhibit I hereto, severally
and not jointly, and the respective Purchasers, severally and not
jointly, agree to purchase from the Company, at the price
specified in paragraph 3 of the Form of Proposal, the respective
principal amounts of Securities set opposite their names in
Exhibit I hereto, together aggregating all of the Securities.
The respective Purchasers further agree, severally and not
jointly, to offer the Securities to the public at the initial
public offering price furnished to the Company by or on behalf of
the respective Purchasers upon the acceptance by the Company of
the attached Form of Proposal, unless the Purchasers shall have
specified at such time that they do not intend to make a public
offering of the Securities.
2. Payment and Delivery: Payment for the Securities
shall be made to the Company or its order by certified or bank
check or checks, as requested by the Company, payable in Federal
Reserve funds, or by written evidence satisfactory to the Company
confirming receipt of funds by wire transfer in immediately
available funds, at the office of Simpson Thacher & Bartlett, 425
Lexington Avenue, New York, N.Y. 10017 (or at such other place
as may be agreed upon by the Representative and the Company) upon
delivery of the Securities to the Representative for the
respective accounts of the Purchasers against receipt therefor.
Such payment and delivery shall be made at 10:00 A.M., New York
Time, on _______ (or on such later business day as may be agreed
upon by the Company and the Representative), unless postponed in
accordance with the provisions of Section 8 hereof. The day and
time at which payment and delivery are to be made is herein
called the Time of Purchase.
Delivery of the Securities shall be made in fully
registered form registered in the name of CEDE & CO. to the
offices of The Depository Trust Company (DTC) in New York, New
York. The Securities so delivered will be in form acceptable for
deposit with DTC and will be available for inspection by the
Representative at a place suitable therefor at least 20 hours
prior to the Time of Purchase.
3. Conditions of Purchasers' Obligations: The
several obligations of the Purchasers hereunder are subject to
the accuracy of the warranties and representations on the part of
the Company and to the following other conditions:
(a) That all legal proceedings to be taken and
all legal opinions to be rendered in connection with the
issue and sale of the Securities shall be satisfactory in
form and substance to Winthrop, Stimson, Putnam & Roberts,
of counsel to the Purchasers.
(b) That, at the Time of Purchase, the
Representative shall be furnished with the following
opinions, dated the day of the Time of Purchase, with
conformed copies of signed counterparts thereof for each of
the other Purchasers, with such changes therein as may be
agreed upon by the Company and the Representative with the
approval of Winthrop, Stimson, Putnam & Roberts, of counsel
to the Purchasers:
(1) Opinions of Simpson Thacher & Bartlett, of
New York, N.Y., and James E. Franklin II, Esq., of Egg
Harbor Township, New Jersey, of counsel to the Company,
substantially in the form heretofore made available to
the Purchasers as provided in paragraph 2 of the Terms
referred to in the Form of Proposal.
(2) Opinion of Winthrop, Stimson, Putnam &
Roberts, of counsel to the Purchasers, substantially in
the form heretofore made available to the Purchasers as
provided in paragraph 2 of the Terms referred to in the
Form of Proposal.
(c) That the Representative shall have received a
letter from Deloitte & Touche LLP in form and substance
satisfactory to the Representative, on and dated as of the
day of the Time of Purchase, (i) confirming that they are
independent auditors within the meaning of the Act and the
applicable published rules, and regulations of the
Commission thereunder, (ii) stating that in their opinion
the financial statements examined by them and included or
incorporated by reference in the Registration Statements
complied as to form in all material respects with the
applicable accounting requirements of the Commission,
including applicable published rules and regulations of the
Commission, and (iii) covering as of a date not more than
five business days prior to the day of the Time of Purchase
such other matters as the Representative reasonably
requests.
(d) That no amendment to the Registration
Statements or the Prospectus of the Company (other than the
prospectus amendments, prospectuses or prospectus
supplements relating solely to securities other than the
Securities) and no document which would be deemed
incorporated in the Prospectus by reference filed subsequent
to the effectiveness of this agreement and prior to the Time
of Purchase shall contain material information substantially
different from that contained in or contemplated by the
Registration Statements as amended prior to the
effectiveness of this agreement or in the Basic Prospectus
which is unsatisfactory in substance to the Representative
or unsatisfactory in form to Winthrop, Stimson, Putnam &
Roberts, of counsel to the Purchasers.
(e) That, at or before 8 P.M. New York Time on the
first full business day after the effective date of this
agreement, or at such later time and day as the
Representative may from time to time consent to in writing
or by telegram confirmed in writing, appropriate order or
orders of the Board of Public Utilities, State of New
Jersey, necessary to permit the sale of the Securities to
the Purchasers, shall be in effect; and that, prior to the
Time of Purchase, no stop order with respect to the
effectiveness of either of the Registration Statements shall
have been issued under the Act by the Commission or
proceedings therefor initiated.
(f) That, at the Time of Purchase, there shall have
been no change in the business, properties or financial
condition of the Company from that set forth in the
Prospectus (other than changes referred to in or
contemplated by the Prospectus) except changes arising from
transactions in the ordinary course of business, none of
which has had a material adverse effect on the business,
properties or financial condition of the Company, and that
the Company shall, at the Time of Purchase, have delivered
to the Representative a certificate of an executive officer
of the Company to the effect that, to the best of his
knowledge, information and belief, there has been no such
change; provided that the sale by the Company of, or its
failure to sell, any securities other than the Securities,
shall not be such a change.
(g) That the Company shall have performed such of its
obligations under this agreement as are to be performed at
or before the Time of Purchase by the terms hereof.
If any of the conditions specified in this Section 3
shall not have been fulfilled, the Purchase Contract may be
terminated by the Representative with the consent of Purchasers,
who may include the Representative, which have agreed to purchase
in the aggregate 50% or more of the principal amount of the
Securities upon notice thereof to the Company, by telephone,
confirmed in writing, any such termination shall have the effects
provided in Section 9 hereof.
4. Conditions of Company's Obligations: The
obligations of the Company to sell and deliver the Securities are
subject to the accuracy of the warranties and representations on
the part of each of the Purchasers and to the conditions
specified in subsections (e) and (f) of Section 3 hereof.
If any of the conditions specified in this Section 4
shall not have been fulfilled, this agreement may be terminated
by the Company upon notice thereof to the Representative, by
telephone, confirmed in writing. Any such termination shall have
the effects provided in Section 9 hereof.
5. Certain Covenants of the Company: In further
consideration of the agreements of the Purchasers herein
contained, the Company covenants as follows:
(a) As soon as practicable after the effectiveness of
this agreement, to file the Prospectus with the
Commission pursuant to Rule 424(b) under the Act.
(b) As soon as the Company is advised thereof, to
advise the Representative and confirm the advice
in writing of any request made by the Commission
for amendments to either of the Registration
Statements or Prospectus or for additional
information with respect thereto or of the entry
of a stop order suspending the effectiveness of
either of the Registration Statements or of the
initiation or threat of any proceedings for that
purpose and, if such a stop order should be
entered by the Commission, to make every
reasonable effort to obtain the lifting or removal
thereof.
(c) To deliver to the Purchasers, without charge, as
soon as practicable, and from time to time
thereafter during such period of time (not
exceeding nine months) after the Prospectus has
been filed with the Commission pursuant to Rule
424(b) as they are required by law to deliver a
prospectus, as many copies of the Prospectus (as
supplemented or amended if the Company shall have
made any supplements or amendments thereto other
than supplements or amendments relating solely to
securities other than the Securities) as the
Representative may reasonably request; and in case
any Purchaser is required to deliver a Prospectus
after the expiration of nine months after the
Prospectus has been filed with the Commission
pursuant to Rule 424(b) under the Act, to furnish
to the Representative, upon request, at the
expense of such Purchaser, a reasonable quantity
of a supplemental prospectus or of supplements to
the Prospectus complying with Section 10(a)(3) of
the Act.
(d) To furnish the Representative a copy, certified by
the Secretary or an Assistant Secretary of the
Company, of the Registration Statements as
initially filed with the Commission and of all
amendments thereto (exclusive of exhibits), and,
upon request, to furnish to the Representative
sufficient plain copies thereof (exclusive of
exhibits) for distribution of one to each of the
Purchasers.
(e) In the event that the Purchasers constitute
"underwriters" within the meaning of Section 2(11)
of the Act, then for such period of time (not
exceeding nine months) after the Prospectus has
been filed with the Commission pursuant to Rule
424(b) under the Act as they are required by law
to deliver a prospectus, if any event shall have
occurred as a result of which it is necessary to
amend or supplement the Prospectus in order to
make the statements therein, in the light of the
circumstances when the Prospectus is delivered to
a purchaser, not misleading, forthwith to prepare
and furnish, at its own expense, to the Purchasers
and to dealers (whose names and addresses are
furnished to the Company by the Representative) to
whom Securities may have been sold by the
Representative on behalf of the Purchasers and,
upon request, to any other dealers making such
request, copies of such amendments or supplements
to the Prospectus.
(f) To make generally available to the Company's
security holders, as soon as practicable, an
earning statement or statements of the Company
which will satisfy the provisions of Section 11(a)
of the Act and Rule 158 under the Act.
(g) To use its best efforts to qualify the Securities
for offer and sale under the securities or "blue
sky" laws of such Jurisdictions as the
Representative may designate within three months
after the date hereof and itself to pay or to
reimburse the Purchasers and their counsel for,
reasonable filing fees and expenses in connection
therewith in an amount not exceeding $3,500 in the
aggregate (including filing fees and expenses paid
and incurred prior to the date hereof), provided,
however, that the Company shall not be required to
qualify as a foreign corporation or to file a
consent to service of process or to file annual
reports or to comply with any other requirements
deemed by the Company to be unduly burdensome.
(h) To pay all expenses, fees and taxes (other than
transfer taxes on sales by the respective
Purchasers) in connection with the issuance and
delivery of the Securities except that the Company
shall be required to pay the fees and
disbursements (other than disbursements referred
to in paragraph (g) of this Section 5) of
Winthrop, Stimson, Putnam & Roberts, of counsel to
the Purchasers, only in the events provided in
paragraph (i) of this Section 5, the Purchasers
hereby agreeing to pay such fees and disbursements
in any other event.
(i) If the Purchasers shall not take up and pay for
the Securities due to the failure of the company
to comply with any of the conditions specified in
Section 3 hereof, or, if this agreement shall be
terminated in accordance with the provisions of
Section 3, 8 or 9 hereof, to pay the fees and
disbursements of Winthrop, Stimson, Putnam &
Roberts, of counsel to the Purchasers.
6. Warranties of and Indemnity by the Company:
(a) The Company warrants and represents to each of the
Purchasers that when the Registration Statements became
effective, the Registration Statements complied, or were deemed
to comply, with the applicable provisions of the Act and the
published rules and regulations of the Commission, and on the
date the latest Registration Statement became effective, did not
contain any untrue statement of a material fact or omit to state
a material fact required to be stated or necessary to make the
statements therein not misleading, and the Prospectus, as it may
be amended or supplemented, will not contain any 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, except that the Company makes no warranty or
representation to any Purchaser with respect to any statements or
omissions made therein in reliance upon and in conformity with
information furnished in writing to the Company by, or through
the Representative on behalf of, any Purchaser expressly for use
therein, or to any statements in or omissions from the part of
the Registration Statements that shall constitute the Statement
of Eligibility under the Trust Indenture Act of 1939 of any
indenture trustee under an indenture of the Company.
(b) The Company agrees, to the extent permitted by
law, to indemnify and hold harmless each of the Purchasers and
each person, if any, who controls any such Purchaser within the
meaning of Section 15 of the Act, against any and all losses,
claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Act or otherwise, and
to reimburse the Purchasers and such controlling person or
persons, if any, for any legal or other expenses incurred by them
in connection with defending any action, in so far as such
losses, claims, damages, liabilities or actions arise out of or
are based upon any alleged untrue statement of a material fact
contained in the Basic Prospectus (if used prior to the effective
date of this agreement), or in either Registration Statement, or
in the Prospectus, or if the Company shall furnish or cause to be
furnished to the Purchasers any amendments or any supplements
thereto, or shall make any filings pursuant to Sections 13, 14 or
15 of the Securities Exchange Act of 1934, as amended, which are
incorporated therein by reference, in the Prospectus as so
amended or supplemented, other than amendments or supplements
relating solely to securities other than the Securities (provided
that if such Prospectus or such Prospectus, as amended or
supplemented, is used after the period of time referred to in
Section 5(e) hereof, it shall contain such amendments or
supplements as the Company deems necessary to comply with Section
10(a) of the Act), or arise out of or are based upon any alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading, except in so far as such losses, claims, damages,
liabilities or actions arise out of or are based upon any such
alleged untrue statement or omission which was made in either
Registration Statement or Prospectus, or in the Prospectus as so
amended or supplemented, in reliance upon and in conformity with
information furnished in writing to the Company by, or through
the Representative on behalf of, any Purchaser expressly for use
therein, or to any statements in or omissions from the part of
either Registration Statement that shall constitute the Statement
of Eligibility under the Trust Indenture Act of 1939 of any
indenture trustee under an indenture of the Company, and except
that this indemnity shall not inure to the benefit of any
Purchaser (or any person controlling such Purchaser) on account
of any losses, claims, damages, liabilities or actions arising
from the sale of the Securities to any person if a copy of the
Prospectus, as the same may then be supplemented or amended
(excluding, however, any document then incorporated or deemed
incorporated therein by reference) had not been sent or given by
or on behalf of such Purchaser to such person with or prior to
the written confirmation of the sale involved. Each purchaser
agrees within ten days after the receipt by it of notice of the
commencement of any action in respect to which indemnity, from
the Company on account of its agreement contained in this Section
6(b) may be sought by it, or by any person controlling it, to
notify the Company in writing of the commencement thereof, but
the omission of such Purchaser so to notify the Company of any
such action shall not release the Company from any liability
which it may have to such Purchaser or to such controlling person
otherwise than on account of the indemnity agreement contained in
this Section 6(b). In case any such action shall be brought
against any Purchaser or any such person controlling such
Purchaser and such Purchaser shall notify the Company of the
commencement thereof, as above provided, the Company shall be
entitled to participate in (and, to the extent that it shall
wish, including the selection of counsel, to direct) the defense
thereof at its own expense. In case the Company elects to direct
such defense and select such counsel, any Purchaser or
controlling person shall have the right to employ its own
counsel, but, in any such case, the fees and expenses of such
counsel shall be at the expense of such Purchaser or controlling
person unless the Company has agreed in writing to pay such fees
and expenses. The Company shall not be liable in the event of
any settlement of any such action effected without its consent.
(c) If the Purchasers or person entitled to
indemnification by the terms of Section 6 hereof shall have given
notice to the Company of a claim in respect thereof pursuant to
Section 6, and if such claim for indemnification is thereafter
held by a court unavailable for any reason other than by reason
of the terms of this agreement or if such claim is unavailable
under controlling precedent, the Purchasers or such person shall
be entitled to contribution from the Company to the liabilities
and expenses for which the Purchasers or such person would have
been indemnified pursuant to Section 6, except to the extent that
contribution is not permitted under Section 11(f) of the Act. In
determining the amount of contribution to which the Purchaser or
such person is entitled, there shall be considered the relative
benefits received by the Purchasers and the Company from the
offering of the Securities (taking into account the portion of
the proceeds of the offering realized by each), the Purchasers'
or such person's relative knowledge and access to information
concerning the matter with respect to which the claim was
asserted, the opportunity to correct and prevent any statement or
omission, and any other equitable considerations appropriate
under the circumstances. The Company and each Purchaser agree
that it would not be equitable if the amount of contribution
pursuant to this Section 6(c) were determined by pro rata
allocation (even if the Purchasers were treated as one entity for
such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above on
this Section 6(c).
The Company's indemnity agreement contained in Section
6(b) hereof, and its covenants, warranties and representations
contained in this agreement, shall remain in full force and
effect regardless of any investigation made by or on behalf of
any person, and shall survive the delivery of and payment for the
Securities hereunder.
7. Warranties of and Indemnity by Purchasers:
(a) Each Purchaser warrants and represents that the
information furnished to the Company through the
Representative for use in the Registration Statements and
Prospectus will be correct as to such Purchaser.
(b) Each Purchaser agrees, to the extent permitted by
law, to indemnify, hold harmless and reimburse the Company,
its directors and such of its officers as shall have signed
the Registration Statements, each other Purchaser, and each
person, if any, who controls the Company or any such other
Purchaser within the meaning of Section 15 of the Act, to
the same extent and upon the same terms as the indemnity
agreement of the Company set forth in Section 6(b) hereof,
but only with respect to alleged untrue statements or
omissions made in the Registration Statements, or in the
Prospectus, or in the Prospectus as so amended or
supplemented, in reliance upon and in conformity with
information furnished in writing to the Company by, or
through the Representative on behalf of, such Purchaser
expressly for use therein.
(c) Each Purchaser warrants and represents that it may
lawfully purchase from the Company the Securities which it
has agreed to purchase.
The indemnity agreement on the part of each Purchaser
contained in Section 7(b) hereof, and the warranties and
representations of such Purchaser contained in this agreement,
shall remain in full force and effect regardless of any
investigation made by or on behalf of the Company or other
person, and shall survive the delivery of and payment for the
Securities hereunder.
8. Substitution of Purchasers: If any Purchaser
under this agreement shall fail or refuse (whether for some
reason sufficient to justify its termination of its obligations
to purchase or otherwise) to purchase the Securities which it had
agreed to purchase, the Company shall immediately notify the
Representative, and the Representative may, within 24 hours of
receipt of such notice, procure some other responsible party or
parties satisfactory to the Company, to purchase or agree to
purchase such Securities on the terms herein set forth, and, if
the Representative shall fail to procure a satisfactory party or
parties to purchase or agree to purchase such Securities on such
terms within such period after the receipt of such notice, then
the Company shall be entitled to an additional period of 24 hours
within which to procure another party or parties to purchase or
agree to purchase such Securities on the terms herein set forth.
In any such case, either the Representative or the Company shall
have the right to postpone the Time of Purchase for a period not
to exceed five full business days from the date determined as
provided in Section 2 hereof, in order that the necessary changes
in the Registration Statements and Prospectus and any other
documents and arrangements may be effected. If the
Representative and the Company shall fail to procure a
satisfactory party or parties, as above provided, to purchase or
agree to purchase such Securities, then this agreement shall
terminate. In the event of any such termination, the Company
shall not be under any liability to any Purchaser (except to the
extent, if any, provided in Section 5(i) hereof), nor shall any
Purchaser (other than a Purchaser who shall have failed or
refused to purchase Securities without some reason sufficient to
justify, in accordance with the terms hereof, its termination of
its obligations hereunder) be under any liability to the Company.
Nothing herein contained shall release any defaulting
Purchaser from its liability to the Company, for damages
occasioned by its default hereunder.
9. Termination of Agreement: This agreement may be
terminated at any time prior to the Time of Purchase by the
Representative with the consent of Purchasers (including the
Representative) who have agreed to purchase in the aggregate 50%
principal amount or more of the Securities if prior to such time
trading in securities on the New York Stock Exchange shall have
been generally suspended or minimum prices shall have been
generally established on the New York Stock Exchange by the
Commission or by the New York Stock Exchange, or if a general
banking moratorium shall have been declared by Federal or New
York State authorities. If the Representative elects to
terminate this agreement, as provided in this Section 9, the
Representative will promptly notify each other Purchaser and the
Company by telephone, confirmed in writing.
If this agreement shall not be carried out by any
Purchaser for any reason permitted hereunder, or if the sale of
the Securities to the Purchasers as herein contemplated shall not
be carried out because the Company is not able to comply with the
terms hereof, the Company shall not be under any obligation under
this agreement and shall not be liable to any Purchaser or to any
member of any selling group for the loss of anticipated profits
from the transactions contemplated by this agreement (except that
the Company shall remain liable to the extent provided in Section
5(i) hereof) and the Purchasers shall be under no liability to
the Company nor be under any liability under this agreement to
one another.
10. Notices: All notices hereunder shall, unless
otherwise expressly provided, be in writing and be delivered at
or mailed to the following addresses or be sent by telegram to
the following addresses: if to the Purchasers or the
Representative, to the Representative at the address designated
in the Form of Proposal and, if to the Company, to Atlantic City
Electric Company, 6801 Black Horse Pike, Egg Harbor Township, New
Jersey 08234, attention of L.M. Walters, Vice President.
11. Miscellaneous: The validity and interpretation of
this agreement shall be governed by the laws of the State of New
York. The agreement herein set forth has been made solely for
the benefit of the Purchasers, and the Company (including the
directors thereof and such of the officers thereof as shall have
signed the Registration Statements), and the controlling persons,
if any, referred to in Sections 6 and 7 hereof, and their
respective successors, assigns, executors and administrators,
and, except as expressly otherwise provided in Section 8 hereof,
no other person shall acquire or have any right under or by
virtue of this agreement.
12. Definition of Certain Terms: If there be two or
more persons, firms or corporations named in Exhibit I hereto,
the term "Purchasers", as used herein, shall be deemed to mean
the several persons, firms or corporations, so named (including
the Representative herein mentioned, if so named), or, if not so
named, the signers of the proposal to which this Purchase
Contract is attached as Exhibit A, and the term "Representative",
as used herein, shall be deemed to mean the representative or
representatives designated by, or in the manner authorized by,
the Purchasers. All obligations of the Purchasers hereunder are
several and not joint. If there shall be only one person, firm
or corporation named in Exhibit I hereto, the term "Purchasers"
and the term "Representative", as used herein, shall mean such
person, firm or corporation. The term "successors" as used in
this agreement shall not include any purchaser, as such
purchaser, of any of the Securities from any of the respective
Purchasers.
13. Applicable Law: This agreement will be governed
and construed in accordance with the laws of the State of New
York.
<PAGE>
EXHIBIT I
Name
Principal
Amount of
Securities
$
___________
Total. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
$
Exhibit 1b
ATLANTIC CITY ELECTRIC COMPANY
$150,000,000 First Mortgage Bonds,
Designated Secured Medium Term Notes, Series D
and Unsecured Medium Term Notes, Series A
Due From One Year to Thirty Years From Date of Issue
Selling Agency Agreement
March 21, 1997
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
First Chicago Capital Markets, Inc.
One First National Plaza
Chicago, Illinois 60670
Lehman Brothers
Lehman Brothers Inc.
3 World Financial Center
New York, New York 10285
Dear Sirs:
Atlantic City Electric Company, a New Jersey corporation
(the "Company"), confirms its agreement with each of you with
respect to the issue and sale by the Company of up to
$150,000,000 aggregate principal amount of its First Mortgage
Bonds, Designated Secured Medium Term Notes, Series D (the
"Secured Notes"), and its Unsecured Medium Term Notes, Series A
(the "Unsecured Notes", and, together with the Secured Notes, the
"Notes") Due from One Year to Thirty Years from Date of Issue.
The Secured Notes will be issued under the Company's Mortgage and
Deed of Trust dated January 15, 1937 between the Company and The
Bank of New York, as trustee (the "Mortgage Trustee"), as
heretofore supplemented and as to be further supplemented by one
or more supplemental indentures (said Mortgage, as heretofore
supplemented, and as it is to be supplemented, being hereinafter
referred to as the "Mortgage"). The Unsecured Notes will be
issued under an Indenture, dated as of March 1, 1997 (the
"Indenture"), between the Company and The Bank of New York, as
trustee (the "Indenture Trustee"). The term "Trustee" as
hereinafter used shall mean (i) the Mortgage Trustee, when
referring to the Secured Notes, and (ii) the Indenture Trustee,
when referring to the Unsecured Notes. The Notes will be issued
in denominations of $1,000 and integral multiples thereof, will
be issued only in fully registered form and will have the annual
interest rates, maturities and, if appropriate, other terms set
forth in a supplement to the Prospectus referred to below. The
Notes will be issued, and the terms thereof established, in
accordance with the Mortgage or the Indenture, as the case may
be, and, in the case of Notes sold pursuant to Section 2(a), the
Medium Term Notes Administrative Procedures attached hereto as
Exhibit A (the "Procedures"). The Procedures may only be amended
by written agreement of the Company and you after notice to, and
with the approval of, the Trustee. For the purposes of this
Agreement, the term "Agent" shall refer to any of you and any
Additional Agent as defined and as provided for in Section 2(a)
acting solely in the capacity as agent for the Company pursuant
to Section 2(a) and not as principal (collectively, the
"Agents"), the term the "Purchaser" shall refer to one of you
acting solely as principal pursuant to Section 2(b) and not as
agent, and the term "you" shall refer to you collectively whether
at any time any of you is acting in both such capacities or in
either such capacity.
1. Representations and Warranties. The Company represents
and warrants to, and agrees with, you as set forth below in this
Section 1. Certain terms used in this Section 1 are defined in
paragraph (d) hereof.
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act"), and has
filed with the Securities and Exchange Commission (the
"Commission") two registration statements on such Form S-3 (File
Numbers: 33-53841 and 333- ), which have become effective,
for the registration under the Act of $150,000,000 aggregate
principal amount of debt securities (the "Securities"), including
the Notes. Such registration statements meet the requirements
set forth in Rule 415(a)(1)(ix) or (x) under the Act and comply
in all other material respects with said Rule. The Company has
included in Registration Statement No. 333-______ a basic
prospectus which, pursuant to Rule 429 under the Act, is a
combined prospectus also relating to the Securities included in
Registration Statement No. 33-53841. The Company has filed or
will file with the Commission pursuant to the applicable
paragraph of Rule 424(b) under the Act, a supplement to the form
of prospectus included in Registration Statement No. 333-
_________ relating to the Notes and the plan of distribution
thereof (the "Prospectus Supplement"). In connection with the
sale of Notes the Company proposes to file with the Commission
pursuant to the applicable paragraph of Rule 424(b) under the Act
further supplements to the Prospectus Supplement specifying the
interest rates, maturity dates and, if appropriate, other terms
of the Notes sold pursuant hereto or the offering thereof.
(b) As of the Execution Time, on the Effective Date, when
any supplement to the Prospectus is filed with the Commission, as
of the date of any Terms Agreement (as defined in Section 2(b))
and at the date of delivery by the Company of any Notes sold
hereunder (a "Closing Date"), (i) the Registration Statements, as
amended as of any such time, and the Prospectus, as supplemented
as of any such time, will comply in all material respects with
the applicable requirements of the Act, the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act") and the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and the respective rules thereunder; (ii) the Registration
Statements, as amended as of any such time, did not or will not
contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and (iii)
the Prospectus, as supplemented as of any such time, will not
contain any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes
no representations or warranties as to (i) those parts of the
Registration Statements which shall constitute the Statements of
Eligibility (Forms T-1) under the Trust Indenture Act of the
Trustees or (ii) the information contained in or omitted from the
Registration Statements or the Prospectus (or any supplement
thereto) in reliance upon and in conformity with information
furnished in writing to the Company by any of you expressly for
use in the Registration Statements or the Prospectus (or any
supplement thereto).
(c) As of the time any Notes are issued and sold hereunder,
the Mortgage and/or the Indenture, as the case may be, will
constitute a legal, valid and binding instrument enforceable
against the Company in accordance with its terms and such Notes
will have been duly authorized, executed, authenticated and, when
paid for by the purchasers thereof, will constitute legal, valid
and binding obligations of the Company, except as the
enforceability thereof may be limited by bankruptcy, insolvency,
or other similar laws affecting the enforcement of creditors'
rights in general, and except as the availability of the remedy
of specific performance is subject to general principles of
equity (regardless of whether such remedy is sought in a
proceeding in equity or at law), and by an implied covenant of
good faith and fair dealing.
(d) The terms which follow, when used in this Agreement,
shall have the meanings indicated. The term "the Effective Date"
shall mean each date that Registration Statement No. 333-
and any post-effective amendment or amendments thereto became or
become effective. "Execution Time" shall mean the date and time
that this Agreement is executed and delivered by the parties
hereto. "Basic Prospectus" shall mean the form of basic
prospectus relating to the Securities contained in Registration
Statement No. 333- at the Effective Date. "Prospectus"
shall mean the Basic Prospectus as supplemented by the Prospectus
Supplement. "Registration Statements" shall mean, and
"Registration Statement" shall mean either of the registration
statements referred to in paragraph (a) above, including
incorporated documents, exhibits and financial statements, as
amended at the Execution Time, but excluding any portions of the
Registration Statements, amendments or supplements thereto,
incorporated documents, exhibits or financial statements that
relate solely to securities other than the Notes. "Rule 415" and
"Rule 424" refer to such rules under the Act. Any reference
herein to either Registration Statement, the Basic Prospectus,
the Prospectus Supplement 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 which were filed under
the Exchange Act on or before the Effective Date or the issue
date of the Basic Prospectus, the Prospectus Supplement or the
Prospectus, as the case may be; and any reference herein to the
terms "amend", "amendment" or "supplement" with respect to the
Registration Statements, the Basic Prospectus, the Prospectus
Supplement or the Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after
the Effective Date or the issue date of the Basic Prospectus, the
Prospectus Supplement or the Prospectus, as the case may be,
deemed to be incorporated therein by reference.
(e) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of New Jersey, with power and authority to own its
properties and conduct the business in which it is engaged and is
in good standing in each jurisdiction in which the character of
its business makes such qualification necessary, except where the
failure to be so qualified, considering all such cases in the
aggregate, does not involve a material risk to the business,
properties, financial position or results of operations of the
Company.
(f) The Notes, the Mortgage and the Indenture conform to
descriptions thereof in the Prospectus, in all material respects.
(g) The issue and sale of the Notes and the compliance by
the Company with all of the provisions of the Notes, the
Mortgage, the Indenture, this Agreement and any Terms Agreement,
and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach of any
of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company is a party or by
which the Company is bound or to which any of the property or
assets of the Company is subject, nor will such action result in
any violation of the provisions of the Company's Charter, as
amended, or the Bylaws of the Company or any statute or any
order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its property
or assets; 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 of
the Notes or the consummation by the Company of the other
transactions contemplated by this Agreement or any Terms
Agreement or the Mortgage or the Indenture except (i) such as
have been obtained under the Act and the Trust Indenture Act,
(ii) such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue
Sky laws in connection with the public offering of the Notes, and
(iii) the orders issued by the New Jersey Board of Public
Utilities authorizing the issuance and sale by the Company of the
Notes subject to certain conditions set forth therein, copies of
which orders have been provided to the Agents and which are in
full effect.
2. Appointment of Agents; Solicitation by the Agents of
Offers to Purchase; Sales of Notes to a Purchaser.
(a) Subject to the terms and conditions set forth herein,
the Company hereby authorizes each of the Agents to act as its
agent to solicit offers for the purchase of all or part of the
Notes from the Company.
On the basis of the representations and warranties, and
subject to the terms and conditions set forth herein, each of the
Agents agrees, as agent of the Company, to use its reasonable
best efforts to solicit offers to purchase the Notes from the
Company upon the terms and conditions set forth in the Prospectus
(and any supplement thereto) and in the Procedures.
The Company reserves the right, in its sole discretion, to
instruct the Agents to suspend at any time, for any period of
time or permanently, the solicitation of offers to purchase the
Notes. Upon receipt of instructions from the Company, the Agents
will forthwith suspend solicitation of offers to purchase Notes
from the Company until such time as the Company has advised them
that such solicitation may be resumed.
The Company expressly reserves the right, upon fifteen
business days' prior written notice to each Agent, to appoint
other persons, partnerships or corporations ("Additional Agents")
to act as its agent to solicit offers for the purchase of Notes;
provided, each Additional Agent shall be named in the Prospectus
and shall either execute this Agreement and become a party hereto
or shall enter into an agency agreement with the Company on terms
substantially similar to those contained herein; thereafter the
term Agent as used in this Agreement shall mean each Agent and
each such Additional Agent.
The Company agrees to pay each Agent a commission, on the
Closing Date with respect to each sale of Notes by the Company as
a result of a solicitation made by such Agent, in an amount equal
to that percentage specified in Schedule I hereto of the
aggregate principal amount (except as otherwise agreed by the
Company and such Agent) of the Notes sold by the Company. Such
commission shall be payable as specified in the Procedures.
Subject to the provisions of this Section and to the
Procedures, offers for the purchase of Notes may be solicited by
an Agent as agent for the Company at such time and in such
amounts as such Agent deems advisable. The Company may from time
to time offer Notes for sale otherwise than through an Agent;
provided, however, that so long as this Agreement shall be in
effect the Company shall not solicit or accept offers to purchase
Notes through any agent other than an Agent.
Each Agent shall make reasonable efforts to assist the
Company in obtaining performance by each purchaser whose offer to
purchase Notes has been solicited by such Agent and accepted by
the Company, but such Agent shall not, except as otherwise
provided in the Agreement, have any liability to the Company as a
result of the failure of any such purchase to be consummated for
any reason. Except as provided in Section 2(b), under no
circumstances will any Agent be obligated to purchase any Notes
for its own account. It is understood and agreed, however, that
any Agent may purchase Notes as principal pursuant to Section
2(b).
(b) Subject to the terms and conditions stated herein,
whenever the Company and any Agent determines that the Company
shall sell Notes directly to such Agent as principal, each such
sale of Notes shall be made in accordance with the terms of this
Agreement and, unless otherwise agreed by the Company and such
Agent, any supplemental agreement relating thereto between the
Company and the Purchaser. Each such supplemental agreement is
herein referred to as a "Terms Agreement". Each Terms Agreement,
which may be in writing or which may be oral, confirmed in
writing, shall describe the Notes to be purchased by the
Purchaser pursuant thereto, and shall specify the aggregate
principal amount of such Notes, the maturity date of such Notes,
the rate at which interest will be paid on such Notes, the dates
on which interest will be paid on such Notes, any redemption
terms of the Notes, the Closing Date for the purchase of such
Notes, the place of delivery of the Notes and payment therefor,
the method of payment and any modifications of the requirements
for the delivery of the opinions of counsel, the certificates
from the Company or its officers, or a letter from the Company's
independent public accountants, pursuant to Section 6(b). Any
such Terms Agreement may also specify the period of time referred
to in Section 4(m). Any Terms Agreement may be in the form
attached hereto as Exhibit B. The Purchaser's commitment to
purchase Notes shall be deemed to have been made on the basis of
the representations and warranties of the Company herein
contained and shall be subject to the terms and conditions herein
set forth.
Unless otherwise agreed to between the Company and the
Purchaser in a Terms Agreement, any Note sold to a Purchaser (1)
shall be purchased by such Purchaser at a price equal to 100% of
the principal amount thereof less a percentage equal to the
commission applicable to an agency sale of a Note of identical
maturity and (ii) may be resold by such Purchaser at varying
prices from time to time. In connection with any resale of Notes
purchased, a Purchaser may use a selling or dealer group and may
reallow any portion of the discount or commission payable
pursuant hereto to dealers or purchasers.
The Company may sell Notes to any Agent, acting as
principal, at a discount to be agreed upon at the time of sale,
for resale to one or more investors or to another broker-dealer
(acting as principal for purposes of resale) at varying prices
related to prevailing market prices at the time of such resale as
determined by such Agent. An Agent may resell a Note purchased
by it as principal to another broker-dealer at a discount,
provided such discount does not exceed the commission or discount
received by such Agent from the Company in connection with the
original sale of such Note.
Delivery of the certificates for Notes sold to the Purchaser
pursuant to any Terms Agreement shall be made not later than the
Closing Date agreed to in such Terms Agreement, against payment
of funds to the Company in the net amount due to the Company for
such Notes by the method and in the form set forth in the
Procedures unless otherwise agreed to between the Company and the
Purchaser in such Terms Agreement.
(c) The Company, however, expressly reserves the right to
place the Notes itself privately or through a negotiated
underwritten transaction with one or more underwriters without
notice to any Agent and without any opportunity for any Agent to
solicit offers for the purchase of the Notes. In such event, no
commission will be payable to the Agents.
3. Offering and Sale of Notes. Each Agent and the Company
agree to perform the respective duties and obligations
specifically provided to be performed by them in the Procedures.
4. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the Notes,
the Company will not file any amendment of either Registration
Statement or supplement to the Prospectus (except for (i)
periodic or current reports filed under the Exchange Act; (ii) a
supplement relating to any offering of Notes providing solely for
the specification of or a change in the maturity dates, interest
rates, issuance prices or other similar terms of any Notes or
(iii) a supplement relating to an offering of Securities other
than the Notes) unless the Company has furnished each of you a
copy for your review prior to filing and given each of you a
reasonable opportunity to comment on any such proposed amendment
or supplement. Subject to the foregoing sentence, the Company
will cause each supplement to the Prospectus to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence
satisfactory to you of such filing. The Company will promptly
advise each of you (i) when the Prospectus, and any supplement
thereto, shall have been filed with the Commission pursuant to
Rule 424(b); (ii) when, prior to the termination of the offering
of the Notes, any amendment of either Registration Statement
shall have been filed or become effective; (iii) of any request
by the Commission for any amendment of either Registration
Statement or supplement to the Prospectus or for any additional
information; (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of either Registration
Statement or the institution or threatening of any proceeding for
that purpose and (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification
of the Notes for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company will
use its reasonable best efforts to prevent the issuance of any
such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the Notes
is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then supplemented would include
any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, or if it shall be necessary to amend either
Registration Statement or to supplement the Prospectus to comply
with the Act or the Exchange Act or the respective rules
thereunder, the Company promptly will (i) notify each of you to
suspend solicitation of offers to purchase Notes (and, if so
notified by the Company, each of you shall forthwith suspend such
solicitation and cease using the Prospectus as then
supplemented); (ii) prepare and file with the Commission, subject
to the first sentence of paragraph (a) of this Section 4, an
amendment or supplement which will correct such statement or
omission or effect such compliance and (iii) supply any
supplemented Prospectus to each of you in such quantities as you
may reasonably request. If such amendment or supplement, and any
documents, certificates and opinions furnished to each of you
pursuant to paragraph (g) of this Section 4 in connection with
the preparation or filing of such amendment or supplement are
satisfactory in all respects to you, you will, upon the filing of
such amendment or supplement with the Commission and upon the
effectiveness of an amendment to either Registration Statement,
if such an amendment is required, resume your obligation to use
reasonable best efforts to solicit offers to purchase Notes
hereunder.
(c) The Company, during the period when a prospectus
relating to the Notes is required to be delivered under the Act,
will file promptly all documents required to be filed with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act and will furnish to each of you copies of such
documents. In addition, on or prior to the date on which the
Company makes any announcement to the general public concerning
earnings or concerning any other event which is required to be
described, or which the Company proposes to describe, in a
document filed pursuant to the Exchange Act, the Company will
furnish to each of you the information contained or to be
contained in such announcement. The Company also will furnish to
each of you copies of all other press releases or announcements
to the general public. The Company will immediately notify each
of you of any downgrading or change in the rating of the Notes or
any other debt securities of the Company, or any proposal to
downgrade or change the rating of the Notes or any other debt
securities of the Company, by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule
436(g) under the Act) or any public announcement by any such
organization that it has under surveillance or review its rating
of the Notes or any other debt securities of the Company with
negative implications, as soon as the Company learns of any such
downgrading or change or announcement.
(d) As soon as practicable, the Company will make generally
available to its security holders and to each of you an earning
statement or statements of the Company and its subsidiaries which
will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(e) The Company will furnish to each of you and your
counsel, without charge, copies of the Registration Statements
(without exhibits) and, so long as delivery of a prospectus may
be required by the Act, as many copies of the Prospectus and any
supplement thereto as you may reasonably request.
(f) The Company will use its best efforts to qualify the
Notes for offer and sale under the securities or "blue sky" laws
of such jurisdictions as you may designate within six months
after the final sale of Notes pursuant to this Agreement and
agrees to pay, or to reimburse you and your counsel for,
reasonable filing fees and expenses in connection therewith in an
amount not exceeding $5,000 in the aggregate (including filing
fees and expenses paid and incurred prior to the date hereof),
provided, however, that the Company shall not be required to
qualify as a foreign corporation or to file a consent to service
of process or to file annual reports or to comply with any other
requirements deemed by the Company to be unduly burdensome.
(g) The Company shall furnish to each of you such
information, documents, certificates of officers of the Company
and opinions of counsel for the Company relating to the business,
operations and affairs of the Company, the Registration
Statements, the Prospectus, and any amendments thereof or
supplements thereto, the Mortgage, the Indenture, the Notes, this
Agreement, the Procedures and the performance by the Company and
you of its and your respective obligations hereunder and
thereunder as any of you may from time to time and at any time
prior to the termination of this Agreement reasonably request.
(h) The Company shall, whether or not any sale of the Notes
is consummated, (i) pay all expenses incident to the performance
of its obligations under this Agreement, including the fees and
disbursements of its accountants and counsel, the cost of
printing or other production and delivery of the Registration
Statements, the Prospectus, all amendments thereof and
supplements thereto, the Mortgage, the Indenture, this Agreement
and all other documents relating to the offering, the cost of
preparing, printing, packaging and delivering the Notes, the fees
and disbursements of the Trustee and the fees of any agency that
rates the Notes; and (ii) pay the reasonable fees and expenses of
your counsel incurred in connection with this Agreement,
including fees of counsel incurred in compliance with Section
4(f).
(i) Each acceptance by the Company of an offer to purchase
Notes will be deemed to be an affirmation that its
representations and warranties contained in this Agreement are
true and correct at the time of such acceptance, as though made
at and as of such time, and a covenant that such representations
and warranties will be true and correct at the time of delivery
to the purchaser of the Notes relating to such acceptance, as
though made at and as of such time (it being understood that for
purposes of the foregoing affirmation and covenant such
representations and warranties shall relate to the Registration
Statements and Prospectus as amended or supplemented at each such
time). Each such acceptance by the Company of an offer for the
purchase of Notes shall be deemed to constitute an additional
representation, warranty and agreement by the Company that, as of
the settlement date for the sale of such Notes, after giving
effect to the issuance of such Notes, of any other Notes to be
issued on or prior to such settlement date and of any other
Securities to be issued and sold by the Company on or prior to
such settlement date, the aggregate amount of Securities
(including any Notes) which have been issued and sold by the
Company will not exceed the amount of Securities registered
pursuant to the Registration Statements.
(j) If requested, each time that either Registration
Statement or the Prospectus is amended or supplemented (other
than by an amendment or supplement (i) relating to any offering
of Securities other than the Notes, (ii) incorporating by
reference information contained in a Current Report on Form 8-K
filed by the Company under the Exchange Act that is (A) filed
solely under Item 5 of Form 8-K and (B) not required to be filed
to comply with Section 4(b), or (iii) providing solely for the
specification of or a change in the maturity dates, the interest
rates, the issuance prices or other similar terms of any Notes
sold pursuant hereto, unless, in the case of clause (ii) above,
in the reasonable judgment of any of you, such information is of
such a nature that a certificate of the Company should be
delivered), the Company will deliver or cause to be delivered
promptly to each of you a certificate of the Company, signed by a
Vice President or Treasurer of the Company, dated the date of the
effectiveness of such amendment or the date of the filing of such
supplement, in form reasonably satisfactory to you, of the same
tenor as the certificate referred to in Section 5(c) but modified
to relate to the last day of the fiscal quarter for which
financial statements of the Company were last filed with the
Commission and to relate to the Registration Statements and the
Prospectus as amended and supplemented to the time of the
effectiveness of such amendment or the filing of such supplement.
(k) If requested, each time that either Registration
Statement or the Prospectus is amended or supplemented (other
than by an amendment or supplement (i) relating to any offering
of Securities other than the Notes, (ii) incorporating by
reference information contained in a Current Report on Form 8-K
filed by the Company under the Exchange Act that is (A) filed
solely under Item 5 of Form 8-K and (B) not required to be filed
to comply with Section 4(b), or (iii) providing solely for the
specification of or a change in the maturity dates, the interest
rates, the issuance prices or other similar terms of any Notes
sold pursuant hereto, unless, in the case of this clause (ii)
above, in the reasonable judgment of any of you, such information
is of such a nature that an opinion of counsel should be
furnished), the Company shall furnish or cause to be furnished
promptly to each of you a written opinion of counsel of the
Company satisfactory to each of you, dated the date of the
effectiveness of such amendment or the date of the filing of such
supplement, substantially in the form heretofore made available
to the Agents or, in lieu of such opinion, counsel last
furnishing such an opinion to you may furnish each of you with a
letter to the effect that you may rely on such last opinion to
the same extent as though it were dated the date of such letter
authorizing reliance (except that statements in such last opinion
will be deemed to relate to the Registration Statements and the
Prospectus as amended and supplemented to the time of the
effectiveness of such amendment or the filing of such
supplement).
(l) If requested, each time that either Registration
Statement or the Prospectus is amended or supplemented to include
or incorporate amended or supplemental financial information, the
Company shall cause its independent public accountants promptly
to furnish each of you a letter, dated the date of the
effectiveness of such amendment or the date of the filing of such
supplement, in form satisfactory to each of you, of the same
tenor as the letter referred to in Section 5(d) with such changes
as may be necessary to reflect the amended and supplemental
financial information included or incorporated by reference in
the Registration Statements and the Prospectus, as amended or
supplemented to the date of such letter; provided, however, that,
if either Registration Statement or the Prospectus is amended or
supplemented solely to include or incorporate by reference
financial information as of and for a fiscal quarter, the
Company's independent public accountants may limit the scope of
such letter, which shall be satisfactory in form to each of you,
to the unaudited financial statements, the related "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" and any other information of an accounting, financial
or statistical nature included in such amendment or supplement,
unless, in the reasonable judgment of any of you, such letter
should cover other information or changes in specified financial
statement line items.
(m) During the period, if any, which shall not exceed ten
days, specified in any Terms Agreement, the Company shall not,
without the prior consent of the Purchaser thereunder, issue or
announce the proposed issuance of any of its debt securities,
including Notes, with terms substantially similar to the Notes
being purchased pursuant to such Terms Agreement, other than
borrowings under its revolving credit agreements and lines of
credit, issuances of its commercial paper, and other forms of
unsecured borrowings from banks or other financial institutions.
5. Conditions to the Obligations of the Agents. The
obligations of each Agent to solicit offers to purchase the Notes
shall be subject to the accuracy of the representations and
warranties on the part of the Company contained herein as of the
Execution Time, on the Effective Date, when any supplement to the
Prospectus is filed with the Commission and as of each Closing
Date, to the accuracy of the statements of the Company made in
any certificates pursuant to the provisions hereof at each such
time or date, to the performance by the Company of its
obligations hereunder and to the following additional conditions
precedent:
(a) If filing of the Prospectus, or any supplement thereto,
is required pursuant to Rule 424(b), the Prospectus, and any such
supplement, shall have been filed in the manner and within the
time period required by Rule 424(b); and no stop order suspending
the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) That, at the Execution Time, each Agent shall be
furnished with the following opinions, dated the date thereof,
with such changes therein as may be agreed upon by the Company
and the Agents with the approval of Winthrop, Stimson, Putnam &
Roberts, counsel to the Agents:
(1) Opinions of Simpson Thacher & Bartlett, of New York,
New York, and James E. Franklin II, Esq., of Egg Harbor
Township, New Jersey, General Counsel of the Company,
substantially in the forms heretofore made available to
the Agents;
(2) Opinion of Winthrop, Stimson, Putnam & Roberts, of New
York, New York, counsel to the Agents, substantially in
the form heretofore made available to the Agents.
(c) The Company shall have furnished to each Agent a
certificate of the Company, signed by a Vice President or
Treasurer of the Company, dated the Execution Time, to the effect
that the signer of such certificate has carefully examined the
Registration Statements, the Prospectus, any supplement to the
Prospectus and this Agreement and that:
(1) the representations and warranties of the Company in
this Agreement are true and correct in all material
respects on and as of the date of such certificate with
the same effect as if made on the date thereof and the
Company has complied with all the agreements and
satisfied all the conditions on its part to be
performed or satisfied as a condition to the obligation
of the Agents to solicit offers to purchase the Notes;
(2) no stop order suspending the effectiveness of either
Registration Statement has been issued and no
proceedings for that purpose have been instituted or,
to the Company's knowledge, threatened; and
(3) since the date of the most recent financial statements
included in the Prospectus, there has been no material
adverse change in the condition (financial or other),
earnings, business or properties of the Company,
whether or not arising from transactions in the
ordinary course of business, except as set forth in or
contemplated in the Prospectus.
(d) That the Agents shall have received a letter from
Deloitte & Touche LLP in form and substance satisfactory to them,
dated as of the Execution Time, (i) confirming that they are
independent public accountants within the meaning of the Act and
the applicable published rules and regulations of the Commission
thereunder; (ii) stating that in their opinion the financial
statements audited by them and included or incorporated by
reference in the Registration Statements complied as to form in
all material respects with the then applicable accounting
requirements of the Commission, including applicable published
rules and regulations of the Commission and (iii) covering as of
a date not more than five business days prior to the date of such
letter such other matters as the Agents reasonably request.
(e) Prior to the Execution Time, the Company shall have
furnished to each Agent such further information, documents,
certificates and opinions of counsel as the Agents may reasonably
request.
If any of the conditions specified in this Section 5 shall
not have been fulfilled in all material respects when and as
provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall
not be in all material respects reasonably satisfactory in form
and substance to such Agents and counsel for the Agents, this
Agreement and all obligations of any Agent hereunder may be
canceled at any time by the Agents without any liability
whatsoever. Notice of such cancellation shall be given to the
Company in writing or by telephone or telex or facsimile
transmission confirmed in writing.
The documents required to be delivered by this Section 5
shall be delivered at the offices of the Company, at 6801 Black
Horse Pike, Egg Harbor Township, New Jersey, on the date hereof.
6. Conditions to the Obligations of the Purchaser. The
obligations of the Purchaser to purchase any Notes will be
subject to the accuracy of the representations and warranties on
the part of the Company herein as of the date of any related
Terms Agreement and as of the Closing Date for such Notes, to the
performance and observance by the Company of all covenants and
agreements herein contained on its part to be performed and
observed and to the following additional conditions precedent:
(a) No stop order suspending the effectiveness of either
Registration Statement shall have been issued and no proceedings
for that purpose shall have been instituted or threatened.
(b) If specified by any related Terms Agreement and except
to the extent modified by such Terms Agreement, the Purchaser
shall have received, appropriately updated, (i) a certificate of
the Company, dated as of the Closing Date, to the effect set
forth in Section 5(c) (except that references to the Prospectus
shall be to the Prospectus as supplemented at the time of
execution of the Terms Agreement); (ii) the opinions of counsel
for the Company, dated as of the Closing Date, substantially in
the form heretofore made available to the Agents; (iii) the
opinion of Winthrop, Stimson, Putnam & Roberts, counsel for the
Agents, dated as of the Closing Date, substantially in the form
heretofore made available to the Agents, and (iv) the letter of
Deloitte & Touche LLP, independent accountants for the Company,
dated as of the Closing Date, substantially in the form
heretofore made available to the Agents.
(c) There shall not have occurred (i) any change, or any
development involving a prospective change, in or affecting
particularly the business or properties of the Company which, in
the judgement of the Purchaser, materially impairs the investment
quality of the Notes, (ii) any downgrading in the rating of any
debt securities of the Company by Moody's Investors Service,
Inc., Standard & Poor's Corporation or Duff & Phelps Investment
Research Company, Inc., or any public announcement by any such
organization that it has under surveillance or review its rating
of any debt securities of the Company with negative implications;
or (iii) any suspension or limitation of trading in securities
generally on the New York Stock Exchange, or any setting of
minimum prices for trading on such exchange, or any suspension of
trading of any securities of the Company on any exchange or in
the over-the-counter market; (iv) any banking moratorium declared
by Federal or New York authorities; or (v) any outbreak or
escalation of major hostilities in which the United States is
involved, any declaration of war by Congress or any other
substantial national or international calamity or emergency if,
in the judgment of such Purchaser, the effect of any such
outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with solicitations of
offers to purchase, or sales of, Notes.
(d) Prior to the Closing Date, the Company shall have
furnished to the Purchaser such further information, certificates
and documents as the Purchaser may reasonably request.
If any of the conditions specified in this Section 6 shall
not have been fulfilled in all material respects when and as
provided in this Agreement and any Terms Agreement, or if any of
the opinions and certificates mentioned above or elsewhere in
this Agreement or such Terms Agreement shall not be in all
material respects reasonably satisfactory in form and substance
to the Purchaser and its counsel, such Terms Agreement and all
obligations of the Purchaser thereunder and with respect to the
Notes subject thereto may be canceled at, or at any time prior
to, the respective Closing Date by the Purchaser without any
liability whatsoever. Notice of such cancellation shall be given
to the Company in writing or by telephone or telex or facsimile
transmission confirmed in writing.
7. Right of Person Who Agreed to Purchase to Refuse to
Purchase.
(a) The Company agrees that any person who has agreed to
purchase and pay for any Note, including a Purchaser and any
person who purchases pursuant to a solicitation by any of the
Agents, shall have the right to refuse to purchase such Note if
at the Closing Date therefor, any condition set forth in Section
5 or 6, as applicable, shall not be satisfied.
(b) The Company agrees that any person who has agreed to
purchase and pay for any Note pursuant to a solicitation by any
of the Agents shall have the right to refuse to purchase such
Note if, subsequent to the agreement to purchase such Note, any
changes, condition or development specified in any of Section
6(a) or 6(c) (i) through (v) shall have occurred (without regard
to any judgment of a Purchaser required therein) the effect of
which is, in the judgment of the Agent which presented the offer
to purchase such Note, so material and adverse as to make it
impractical or inadvisable to proceed with the delivery of such
Note (it being understood that under no circumstances shall any
such Agent have any duty or obligation to exercise the judgment
permitted to be exercised under this Section 7(b)).
8. Indemnification and Contribution.
(a) The Company agrees, to the extent permitted by law, to
indemnify and hold harmless each of you and each person, if any,
who controls you within the meaning of Section 15 of the Act,
against any and all losses, claims, damages or liabilities, joint
or several, to which you, they or any of you or them may become
subject under the Act or otherwise, and to reimburse you and such
controlling person or persons, if any, for any legal or other
expenses incurred by you or them in connection with defending any
actions, insofar as such losses, claims, damages, liabilities or
actions arise out of or are based upon any alleged untrue
statement of a material fact contained in either Registration
Statement, or in the Prospectus, or if the Company shall furnish
or cause to be furnished to you any amendments or any supplements
thereto, in the Prospectus as so amended or supplemented other
than amendments or supplements relating solely to securities
other than the Notes (provided that if such Prospectus or such
Prospectus, as amended or supplemented, is used after the period
of time referred to in Section 4(b) hereof, it shall contain such
amendments or supplements as the Company deems necessary to
comply with Section 10(a) of the Act), or arise out of or are
based upon any alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon
any such alleged untrue statement or omission which was made in
either Registration Statement or Prospectus, or in the Prospectus
as so amended or supplemented, in reliance upon and in conformity
with information furnished in writing to the Company by or
through you expressly for use therein or any statements in or
omissions from that part of either Registration Statement that
shall constitute the Statement of Eligibility under the Trust
Indenture Act of any indenture trustee under an indenture of the
Company, and except that this indemnity shall not inure to your
benefit (or of any person controlling you) on account of any
losses, claims, damages, liabilities or actions arising from the
sale of the Notes to any person if a copy of the Prospectus, as
the same may then be supplemented or amended (excluding, however,
any document then incorporated or deemed incorporated therein by
reference) which corrected a material misstatement or omission in
a Prospectus previously sent to such person, was not sent or
given by you or on your behalf to such person with or prior to
the written confirmation of the sale involved provided that the
Company has furnished copies of the corrected Prospectus to you.
This indemnity agreement will be in addition to any liability
which the Company may otherwise have. You agree within ten days
after the receipt by you of notice of the commencement of any
action in respect to which indemnity from the Company on account
of its agreement contained in this Section 8(a) may be sought by
you, or by any person controlling you, to notify the Company in
writing of the commencement thereof, but your omission so to
notify the Company of any such action shall not release the
Company from any liability which it may have to you or to such
controlling person otherwise than on account of the indemnity
agreement contained in this Section 8(a). In case any such
action shall be brought against you or any such person
controlling you and you shall notify the Company of the
commencement thereof, as above provided, the Company shall be
entitled to participate in ( and, to the extent that it shall
wish, including the selection of counsel, to direct) the defense
thereof at its own expense. In case the Company elects to direct
such defense and select such counsel, you or any controlling
person shall have the right to employ your own counsel, but, in
any such case, the fees and expenses of such counsel shall be at
your expense unless the Company has agreed in writing to pay such
fees and expenses. The Company shall not be liable in the event
of any settlement of any such action effected without its
consent.
(b) Each of you agrees, to the extent permitted by law, to
indemnify, hold harmless and reimburse the Company, each of its
directors, each of its officers who signs either Registration
Statement and each person who controls the Company within the
meaning of Section 15 of the Act, to the same extent and upon the
same terms as the foregoing indemnity of the Company to you, but
only with reference to written information relating to such of
you furnished to the Company by such of you specifically for use
in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which
you may otherwise have.
The Company acknowledges that the information set forth in
the second and sixth (insofar as applicable to the Agents)
sentences of the last paragraph of the cover page, in the first
paragraph on page S-2, and in the third, fifth and sixth
sentences of the first paragraph and all of the third paragraph
under the heading "Plan of Distribution", of the Prospectus
Supplement constitute the only information furnished in writing
by any of you for inclusion in the Prospectus Supplement.
(c) If you or any person entitled to indemnification by the
terms of Section 8(a) hereof shall have given notice to the
Company of a claim in respect thereof pursuant to Section 8(a),
and if such claim for indemnification is thereafter held by a
court to be unavailable for any reason other than by reason of
the terms of this agreement or if such claim is unavailable under
controlling precedent, you or such person shall be entitled to
contribution from the Company to the liabilities and expenses for
which you or such person would have been indemnified pursuant to
Section 8(a) except to the extent that contribution is not
permitted under Section 11(f) of the Act. In determining the
amount of contribution to which you or such person is entitled,
there shall be considered the relative benefits received by each
of you and the Company from the offering of the Notes (taking
into account the portion of the proceeds of the offering realized
by each), your or such person's relative knowledge and access to
information concerning the matter with respect to which the claim
was asserted, the opportunity to correct and prevent any
statement or omission and any other equitable considerations
appropriate under the circumstances. The Company and each of you
agree that it would not be equitable if the amount of
contribution pursuant to this Section 8(c) were determined by pro
rata allocation (even if you were treated as one entity for such
purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this
Section 8(c).
9. Termination.
This Agreement will continue in effect until terminated as
provided in this Section 9. This Agreement may be terminated by
either the Company as to any of you or by any of you insofar as
this Agreement relates to such of you, giving written notice of
such termination to such of you or the Company, as the case may
be. This Agreement shall so terminate at the close of business on
the first business day following the receipt of such notice by
the party to whom such notice is given. In the event of such
termination, no party shall have any liability to the other party
hereto, except as provided in the fifth paragraph of Section
2(a), Section 4(h), Section 8 and Section 10. The provisions of
this Agreement (including without limitation Section 7 hereof)
applicable to any purchase of a Note for which an agreement to
purchase exists prior to the termination hereof shall survive any
termination of this Agreement. If, at the time of any such
termination, (i) any Purchaser shall own any Notes purchased
pursuant to a Terms Agreement with the intention of reselling
them or (ii) an offer to purchase any of the Notes has been
accepted by the Company but the time of delivery to the purchaser
or its agent of such Notes has not occurred, the covenants set
forth in Sections 4 and 6 hereof shall remain in effect for such
period of time (not exceeding nine months) until such Notes are
so resold or delivered, as the case may be.
(b) If any Terms Agreement or any sale of Notes shall not be
carried out on a Closing Date by any Purchaser or any person who
has agreed to purchase and pay for any Note for any reason
permitted hereunder, or because the Company is not able to comply
with the terms hereof or of any Terms Agreement, neither the
Company nor any Agent shall be liable to any Purchaser of any
such Note or to any person who has agreed to purchase and pay for
any such Note or to each other for loss of anticipated profits or
for opportunity costs from the transactions contemplated by this
agreement or otherwise, except that the Company shall remain
liable as provided in Section 4(h).
10. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities
and other statements of the Company or its officers and of you
set forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of any investigation made by or
on behalf of you or the Company or any of the officers, directors
or controlling persons referred to in Section 8 hereof, and will
survive delivery of and payment for the Notes. The provisions of
the fifth paragraph of Section 2(a) and Sections 4(h) and 8
hereof shall survive the termination or cancellation of this
Agreement.
11. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to any of
you, will be delivered or sent by mail or facsimile transmission
to each of you, at the address specified in Schedule I hereto;
or, if sent to the Company, will be delivered or sent by mail or
facsimile transmission to it at 6801 Black Horse Pike, Egg Harbor
Township, New Jersey, 08234, attention of L. M. Walters, Vice
President (Telecopier:(609) 645-4550).
12. Successors. This Agreement will inure to the benefit
of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons
referred to in Section 8 hereof, and no other person will have
any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed
duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement among the Company and you.
Very truly yours,
ATLANTIC CITY ELECTRIC COMPANY
By:
Its: Vice President
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
GOLDMAN, SACHS & CO.
By: _______________________
FIRST CHICAGO CAPITAL MARKETS, INC.
By: _______________________
Its:
LEHMAN BROTHERS INC.
By: _______________________
Its:
<PAGE>
SCHEDULE I
Commissions:
Except as otherwise agreed with an Agent, the Company agrees
to pay each Agent a commission equal to the following percentage
of the principal amount of each Note sold on an agency basis by
such Agent:
Term Commission Rate
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 7 years .500%
From 7 years to less than 10 years .550%
From 10 years to less than 20 years .600%
From 20 years up to and including 30 years .750%
Unless otherwise specified in the applicable Terms
Agreement, the discount or commission payable to a Purchaser
shall be determined on the basis of the commission schedule set
forth above.
Address for Notice to you:
Goldman, Sachs & Co.
85 Broad Street, 27th Floor
New York, New York 10004
Attention: Ben Smilchensky
Telephone: (212) 902-1482
First Chicago Capital Markets, Inc.
One First National Plaza
Chicago, Illinois 60670
Attention: J. Parker Russell
Vice President, Investment
Grade Securities
Telephone: 312-732-7885
Lehman Brothers Inc.
3 World Financial Center
12th Floor
New York, New York 10285-1200
Attention: John Plaster, Vice President
Medium Term Note Department
Telephone: 212-526-2040
Exhbit 4b
INDENTURE SUPPLEMENTAL
TO
MORTGAGE AND DEED OF TRUST
(Dated January 15, 1937)
Executed By
ATLANTIC CITY ELECTRIC COMPANY
TO
THE BANK OF NEW YORK,
Trustee.
Dated as of March 1, 1997
This instrument was prepared by
James E. Franklin II, Esq.
James E. Franklin II, Esq.<PAGE>
TABLE OF CONTENTS*
Page
PARTIES 1
RECITALS 1
Execution of Mortgage 1
Execution of Supplemental Indentures 1
Acquisition of property rights and property 2
No Default under Original Indenture 2
Provision for issuance of bonds in one or more series 2
Right to execute supplemental indenture 2
Issue of other series of bonds 3
Issue of Bonds of the New Series 3
Supplemental Indenture 3
Compliance with legal requirements 3
GRANT 3
DESCRIPTION OF PROPERTY 4
APPURTENANCES, ETC 5
HABENDUM 5
ENCUMBRANCES 6
TRUST 6
SEC. 1. Creation of Bonds of the New Series 6
SEC. 2. Record date for meetings of bondholders 8
SEC. 3. Approval of Supplemental Indenture by Board of
Public Utilities, State of New Jersey not
to be construed as approval of other acts 8
SEC. 4. Supplemental Indenture and Original Indenture
to be construed as one instrument 9
Limitation on rights of others 9
Trustee assumes no responsibility for correctness
of recitals of fact 9
Execution in counterparts 9
TESTIMONIUM 10
SIGNATURES AND SEALS 10
ACKNOWLEDGEMENTS 11
* The Table of Contents shall not be deemed to be any part of the
Indenture Supplemental to Mortgage and Deed of Trust.
<PAGE>
SUPPLEMENTAL INDENTURE, dated as of March 1, 1997 for
convenience of reference, and effective from the time of execution
and delivery hereof, made and entered into by and between ATLANTIC
CITY ELECTRIC COMPANY, a corporation of the State of New Jersey
(hereinafter sometimes called the "Company"), party of the first
part, and THE BANK OF NEW YORK (formerly Irving Trust Company), a
corporation of the State of New York, as Trustee (hereinafter
sometimes called the "Trustee"), party of the second part.
WHEREAS, the Company has heretofore executed and delivered to
the Trustee its Mortgage and Deed of Trust, dated January 15, 1937
(hereinafter referred to as the "Mortgage"), for the security of
all bonds of the Company outstanding thereunder, and by said
Mortgage conveyed to the Trustee, upon certain trusts, terms and
conditions, and with and subject to certain provisos and covenants
therein contained, all and singular the property, rights and
franchises which the Company then owned or should thereafter
acquire, excepting any property expressly excepted by the terms of
the Mortgage; and
WHEREAS, the Company has heretofore executed and delivered to
the Trustee an Indenture Supplemental to Mortgage and Deed of
Trust, dated as of June 1, 1949, an Indenture Supplemental to
Mortgage and Deed of Trust, dated as of July 1, 1950, an Indenture
Supplemental to Mortgage and Deed of Trust, dated as of November 1,
1950, an Indenture Supplemental to Mortgage and Deed of Trust,
dated as of March 1, 1952, an Indenture Supplemental to Mortgage
and Deed of Trust, dated as of January 1, 1953, an Indenture
Supplemental to Mortgage and Deed of Trust, dated as of March 1,
1954, an Indenture Supplemental to Mortgage and Deed of Trust,
dated as of March 1, 1955, an Indenture Supplemental to Mortgage
and Deed of Trust, dated as of January 1, 1957, an Indenture
Supplemental to Mortgage and Deed of Trust, dated as of April 1,
1958, an Indenture Supplemental to Mortgage and Deed of Trust,
dated as of April 1, 1959, an Indenture Supplemental to Mortgage
and Deed of Trust, dated as of March 1, 1961, an Indenture
Supplemental to Mortgage and Deed of Trust, dated as of July 1,
1962, an Indenture Supplemental to Mortgage and Deed of Trust,
dated as of March 1, 1963, an Indenture Supplemental to Mortgage
and Deed of Trust, dated as of February 1, 1966, an Indenture
Supplemental to Mortgage and Deed of Trust, dated as of April 1,
1970, an Indenture Supplemental to Mortgage and Deed of Trust,
dated as of September 1, 1970, an Indenture Supplemental to
Mortgage and Deed of Trust, dated as of May 1, 1971, an Indenture
Supplemental to Mortgage and Deed of Trust, dated as of April 1,
1972, an Indenture Supplemental to Mortgage and Deed of Trust,
dated as of June 1, 1973, an Indenture Supplemental to Mortgage and
Deed of Trust, dated as of January 1, 1975, an Indenture
Supplemental to Mortgage and Deed of Trust, dated as of May 1,
1975, an Indenture Supplemental to Mortgage and Deed of Trust,
dated as of December 1, 1976, an Indenture Supplemental to Mortgage
and Deed of Trust, dated as of January 1, 1980, an Indenture
Supplemental to Mortgage and Deed of Trust, dated as of May 1,
1981, an Indenture Supplemental to Mortgage and Deed of Trust,
dated as of November 1, 1983, an Indenture Supplemental to Mortgage
and Deed of Trust, dated as of April 15, 1984, an Indenture
Supplemental to Mortgage and Deed of Trust, dated as of July 15,
1984, an Indenture Supplemental to Mortgage and Deed of Trust,
dated as of October 1, 1985, an Indenture Supplemental to Mortgage
and Deed of Trust, dated as of May 1, 1986, an Indenture
Supplemental to Mortgage and Deed of Trust, dated as of July 15,
1987, an Indenture Supplemental to Mortgage and Deed of Trust,
dated as of October 1, 1989, an Indenture Supplemental to Mortgage
and Deed of Trust, dated as of March 1, 1991, an Indenture
Supplemental to Mortgage and Deed of Trust, dated as of May 1,
1992, an Indenture Supplemental to Mortgage and Deed of Trust,
dated as of January 1, 1993, an Indenture Supplemental to Mortgage
and Deed of Trust, dated as of August 1, 1993, an Indenture
Supplemental to Mortgage and Deed of Trust, dated as of September
1, 1993, an Indenture Supplemental to Mortgage and Deed of Trust,
dated as of November 1, 1993, an Indenture Supplemental to Mortgage
and Deed of Trust, dated as of June 1, 1994, an Indenture
Supplemental to Mortgage and Deed of Trust, dated as of October 1,
1994 and an Indenture Supplemental to Mortgage and Deed of Trust,
dated as of November 1, 1994, such instruments amending and
supplementing the Mortgage in certain respects (the Mortgage, as so
amended and supplemented, being hereinafter called the "Original
Indenture") and conveying to the Trustee, upon certain trusts,
terms and conditions, and with and subject to certain provisos and
covenants therein contained, certain property rights and property
therein described; and
WHEREAS, in addition to the property described in the Original
Indenture, the Company has acquired certain property rights and
property hereinafter described and has covenanted in Section 42 of
the Original Indenture to execute and deliver such further
instruments and do such further acts as may be necessary or proper
to make subject to the lien thereof any property thereafter
acquired and intended to be subject to such lien; and
WHEREAS, the Company represents that no default has occurred
under any of the provisions of the Original Indenture; and
WHEREAS, the Original Indenture provides that bonds issued
thereunder may be issued in one or more series and further provides
that, with respect to each series, the rate of interest, the date
or dates of maturity, the dates for the payment of interest, the
terms and rates of optional redemption, and other terms and
conditions shall be determined by the Board of Directors of the
Company prior to the authentication thereof; and
WHEREAS, Section 121 of the Original Indenture provides that
any power, privilege or right expressly or impliedly reserved to or
in any way conferred upon the Company by any provision of the
Original Indenture, whether such power, privilege or right is in
any way restricted or is unrestricted, may be in whole or in part
waived or surrendered or subjected to any restriction if at the
time unrestricted or to additional restriction if already
restricted, and that the Company may enter into any further
covenants, limitations or restrictions for the benefit of any one
or more series of bonds issued under the Original Indenture and
provide that a breach thereof shall be equivalent to a default
under the Original Indenture, or the Company may cure any ambiguity
or correct or supplement any defective or inconsistent provisions
contained in the Original Indenture or in any indenture
supplemental to the Original Indenture, by an instrument in
writing, properly executed, and that the Trustee is authorized to
join with the Company in the execution of any such instrument or
instruments; and
WHEREAS, the Company has heretofore, from time to time in
accordance with the provisions of the Original Indenture, as at the
time in effect, issued bonds of various series and in various
amounts and, of the bonds so issued, $802,591,000 aggregate
principal amount is outstanding at the date hereof; and
WHEREAS, the Company, by appropriate corporate action in
conformity with the terms of the Original Indenture, has duly
determined to create a new series of bonds under the Original
Indenture; and
WHEREAS, the Company, in the exercise of the powers and
authorities conferred upon and reserved to it under and by virtue
of the provisions of the Original Indenture, and pursuant to
resolutions of its Board of Directors, has duly resolved and
determined to make, execute and deliver to the Trustee a
supplemental indenture, in the form hereof, for the purposes herein
provided; and
WHEREAS, the Company represents that all conditions and
requirements necessary to make this supplemental indenture
(hereinafter sometimes referred to as the "First 1997 Supplemental
Indenture") a valid, binding and legal instrument in accordance
with its terms, have been done, performed and fulfilled, and the
execution and delivery hereof have been in all respects duly
authorized;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That Atlantic City Electric Company, in consideration of the
premises and the sum of One Dollar ($1.00) and other good and
valuable consideration paid to it by the Trustee at or before the
ensealing and delivery of these presents, the receipt whereof is
hereby acknowledged, and in order to secure the payment of both the
principal of and interest and premium, if any, on the bonds from
time to time issued under and secured by the Original Indenture and
this First 1997 Supplemental Indenture, according to their tenor
and effect, and the performance of all the provisions of the
Original Indenture and this First 1997 Supplemental Indenture
(including any further indenture or indentures supplemental to the
Original Indenture and any modification or alteration made as in
the Original Indenture provided) and of said bonds, has granted,
bargained, sold, released, conveyed, assigned, transferred,
mortgaged, pledged, set over and confirmed, and by these presents
doth grant, bargain, sell, release, convey, assign, transfer,
mortgage, pledge, set over and confirm unto The Bank of New York,
as Trustee, and to its successor or successors in said trust, and
to it and its and their assigns forever, all of the following
described properties of the Company, that is to say: all property,
real, personal and mixed, tangible and intangible, owned by the
Company on the date of the execution hereof and acquired since the
execution and delivery of the Indenture Supplemental to Mortgage
and Deed of Trust, dated as of October 1, 1994 (except such
property as is hereinafter expressly excepted from the lien and
operation of this First 1997 Supplemental Indenture).
The property covered by the lien of the Original Indenture and
this First 1997 Supplemental Indenture shall include particularly,
among other property, without prejudice to the generality of the
language hereinbefore or hereinafter contained, all property,
whether real, personal or mixed (except any hereinafter expressly
excepted), and wheresoever situated, now owned by the Company and
acquired since the execution and delivery of the Indenture
Supplemental to Mortgage and Deed of Trust, dated as of October 1,
1994, including (without in anywise limiting or impairing by the
enumeration of the same the scope and intent of the foregoing or of
any general description contained in this First 1997 Supplemental
Indenture) all lands, rights of way and roads; all plants for the
generation of electricity, power houses, steam heat plants, hot
water plants, substations, transmission lines, distributing
systems, bridges, culverts, tracks, rolling stock, vehicles,
automobiles; all offices, buildings and structures, and the
equipment thereof; all machinery, engines, boilers, turbines,
dynamos, machines, regulators, meters, transformers, generators and
motors; all appliances whether electrical or mechanical, conduits,
cables and lines; all pipes, whether for water, steam heat, or
other purposes; all mains and pipes, service pipes, fittings,
valves and connections, poles, wires, tools, implements, apparatus,
furniture, chattels, and choses in action; all municipal franchises
and other franchises; all lines for the transmission and/or
distribution of electric current, steam heat or water for any
purpose, including towers, poles, wires, cables, pipes, conduits
and all apparatus for use in connection therewith; all real estate,
lands, leases, leaseholds (excepting the last day of the term of
each lease and leasehold); all contracts, whether heat, light,
power or street lighting contracts; all easements, servitudes,
licenses, permits, rights, powers, franchises, privileges, rights
of way and other rights in or relating to real estate or the
occupancy of the same and (except as hereinafter expressly
excepted) all the right, title, and interest of the Company in and
to all other property of any kind or nature appertaining to and/or
used and/or occupied and/or enjoyed in connection with any property
hereinbefore described.
TOGETHER WITH all and singular the tenements, hereditaments
and appurtenances belonging or in anywise appertaining to the
aforesaid property or any part thereof, with the reversion and
reversions, remainder and remainders and (subject to the provisions
of Section 57 of the Original Indenture) the tolls, rents,
revenues, issues, earnings, income, product and profits thereof,
and all the estate, right, title and interest and claim whatsoever,
at law as well as in equity, which the Company now has or may
hereafter acquire in and to the aforesaid property and franchises
and every part and parcel thereof.
Provided that, in addition to the reservations and exceptions
herein elsewhere contained, the following are not and are not
intended to be now or hereafter granted, bargained, sold, released,
conveyed, assigned, transferred, mortgaged, pledged, set over or
confirmed hereunder and are hereby expressly excepted from the lien
and operation of the Original Indenture and of this First 1997
Supplemental Indenture, viz.: (1) cash, shares of stock and
obligations (including bonds, notes and other securities) not
hereafter specifically pledged, paid or deposited or delivered
hereunder or under the Original Indenture or hereinafter or therein
covenanted so to be; (2) any goods, wares, merchandise, equipment,
materials or supplies acquired for the purpose of sale or resale in
the usual course of business or for consumption in the operation of
any properties of the Company; materials, supplies and construction
equipment; and all judgments, accounts and choses in action, the
proceeds of which the Company is not obligated as provided in the
Original Indenture or as hereinafter provided to deposit with the
Trustee hereunder or thereunder; provided, however, that the
property and rights expressly excepted from the lien and operation
of the Original Indenture and this First 1997 Supplemental
Indenture in the above subdivision (2) shall (to the extent
permitted by law) cease to be so excepted, in the event that the
Trustee or a receiver or trustee shall enter upon and take
possession of the mortgaged and pledged property in the manner
provided in Article XII of the Original Indenture, by reason of the
occurrence of a completed default, as defined in said Article XII.
TO HAVE AND TO HOLD all such properties, real, personal and
mixed, granted, bargained, sold, released, conveyed, assigned,
transferred, mortgaged, pledged, set over, or confirmed by the
Company as aforesaid, or intended so to be unto the Trustee and its
successors and assigns forever.
SUBJECT, HOWEVER, as to all property embraced herein to all of
the reservations, exceptions, limitations and restrictions
contained in the several deeds, leases, servitudes, franchises and
contracts or other instruments through which the Company acquired
and/or claims title to and/or enjoys the use of the aforesaid
properties; and subject also to the encumbrances of the character
defined in Section 6 of the Original Indenture as "excepted
encumbrances", insofar as the same may attach to any of the
property embraced herein.
IN TRUST NEVERTHELESS, upon the terms and trusts in the
Original Indenture and in this First 1997 Supplemental Indenture
set forth for the benefit and security of those who shall hold the
bonds and coupons issued and to be issued hereunder and under the
Original Indenture, or any of them, in accordance with the terms of
the Original Indenture and of this First 1997 Supplemental
Indenture, without preference, priority or distinction as to lien
of any of said bonds or coupons over any others thereof by reason
of priority in the time of the issue or negotiation thereof, or
otherwise howsoever, subject, however, to the conditions,
provisions and covenants set forth in the Original Indenture and in
this First 1997 Supplemental Indenture.
AND THIS INDENTURE FURTHER WITNESSETH:
That in further consideration of the premises and for the
considerations aforesaid, the Company, for itself and its
successors and assigns, hereby covenants and agrees to and with the
Trustee, and its successor or successors in such trust, as follows:
SECTION 1. There shall be a forty-seventh series of bonds to
be issued under and secured by the Original Indenture and this
First 1997 Supplemental Indenture, to be designated and to be
distinguished from the bonds of all other series by the title
"First Mortgage Bonds, Designated Secured Medium Term Notes, Series
D" (herein sometimes referred to as the "bonds of the New Series"),
and the form thereof, which shall be established by resolution of
the Board of Directors of the Company, shall contain suitable
provisions with respect to the matters hereinafter in this Section
specified.
Bonds of the New Series shall be issued from time to time in
an aggregate principal amount not to exceed $150,000,000, be issued
as fully registered bonds in the denominations of One Thousand
Dollars and, at the option of the Company, in any multiple or
multiples of One Thousand Dollars (the exercise of such option to
be evidenced by the execution and delivery thereof) and
notwithstanding the provisions of Section 10 of the Original
Indenture, be dated the date of authentication; each bond of the
New Series shall mature on such date not less than one year nor
more than 30 years from date of issue, shall bear interest computed
on the basis of a 360-day year consisting of twelve 30-day months
from its Issue Date (notwithstanding the provisions of Section 10
of the Original Indenture) or from the most recent interest payment
date to which interest has been paid or duly provided for with
respect to bonds of the same designated interest rate and maturity
at such rate or rates and have such other terms and provisions not
inconsistent with the Mortgage as the Board of Directors may
determine in accordance with a resolution filed with the Trustee
referring to this First 1997 Supplemental Indenture; the principal
of and interest on each said bond to be payable at the office or
agency of the Company in the Borough of Manhattan, The City of New
York, in lawful money of the United States of America.
Interest on bonds of the New Series shall be payable
semiannually on March 1 and September 1 of each year (each an
interest payment date) and at maturity. Notwithstanding the
foregoing, so long as there is no existing default in the payment
of interest on the bonds of the New Series, all bonds of the New
Series authenticated by the Trustee after the Record Date for any
interest payment date, and prior to such interest payment date
(unless the Issue Date with respect to such bonds is after such
Record Date), shall bear interest from such interest payment date,
and the person in whose name any bond of the New Series is
registered at the close of business on any Record Date with respect
to any interest payment date shall be entitled to receive the
interest payable on such interest payment date, notwithstanding the
cancellation of such bond of the New Series, upon any transfer or
exchange thereof (including any exchange effected as an incident to
a partial redemption thereof) subsequent to the Record Date and on
or prior to such interest payment date, except, if and to the
extent that the Company shall default in the payment of the
interest due on such interest payment date, then the registered
holders of bonds of the New Series on such Record Date shall have
no further right to or claim in respect of such defaulted interest
as such registered holders on such Record Date, and the persons
entitled to receive payment of any defaulted interest thereafter
payable or paid on any bonds of the New Series shall be the
registered holders of such bonds of the New Series (or any bond or
bonds issued directly or after intermediate transactions upon
transfer or exchange or in substitution thereof) on the date of
payment of such defaulted interest. If the Issue Date of the bonds
of the New Series of a designated interest rate and maturity is
after such Record Date, such bonds shall bear interest from the
Issue Date but payment of interest shall commence on the second
interest payment date succeeding the Issue Date.
"Record Date" for bonds of the New Series shall mean February
15 for interest payable March 1 and August 15 for interest payable
September 1, or if such February 15 or August 15 shall be a legal
holiday or a day on which banking institutions in the Borough of
Manhattan, the City of New York, are authorized by law to close,
the next preceding day which shall not be a legal holiday or a day
on which such institutions are so authorized to close, provided
that, interest payable on the maturity date will be payable to the
person to whom the principal thereof shall be payable. "Issue Date"
with respect to bonds of the New Series of a designated interest
rate and maturity shall mean the date of first authentication of
bonds of such designated interest rate and maturity.
Bonds of the New Series shall be redeemable to the extent set
forth in the bond of the New Series to be redeemed, the Original
Indenture and this First 1997 Supplemental Indenture at the option
of the Company in whole at any time, or in part from time to time,
prior to maturity, upon not less than thirty, but not more than
ninety days previous notice given by mail to the registered holders
of the bonds to be redeemed, as the Board of Directors may
determine in accordance with a resolution filed with the Trustee
referring to this First 1997 Supplemental Indenture.
Notwithstanding the provisions of Section 52 of the Original
Indenture, the Company may limit redemption in part to bonds of the
New Series which have the same Issue Date, maturity date, interest
rate or rates and redemption provisions.
At the option of the registered owner, any bonds of the New
Series, upon surrender thereof for cancellation at the office or
agency of the Company in the Borough of Manhattan, The City of New
York, shall be exchangeable for a like aggregate principal amount
of bonds of the same series of other authorized denominations which
have the same Issue Date, maturity date, interest rate or rates,
and redemption provisions, if any. The bonds of the New Series may
bear such legends as may be necessary to comply with any law or
with any rules or regulations made pursuant thereto or with the
rules or regulations of any stock exchange or to conform to usage
or agreement with respect thereto.
Bonds of the New Series shall be transferable upon
presentation and surrender thereof, for cancellation, at the office
or agency of the Company in the Borough of Manhattan, The City of
New York, by the registered holders thereof, in person or by duly
authorized attorney, in the manner and upon payment of the charges
prescribed in the Original Indenture.
The Company shall not be required to make transfers or
exchanges of bonds of the New Series for a period of sixteen days
next preceding any selection of bonds of the New Series to be
redeemed or to make transfers or exchanges of any bonds of the New
Series designated in whole or in part for redemption.
Notwithstanding the provisions of Section 12 of the Original
Indenture, the Company shall not be required to make transfers or
exchanges of bonds of the New Series for a period of sixteen days
next preceding any interest payment date.
[PROVISIONS WITH RESPECT TO VARIABLE RATE BONDS, IF ANY,
TO BE INSERTED]
SECTION 2. The holders of Bonds of the New Series consent that
the Company may, but shall not be obligated to, fix a record date
for the purpose of determining the holders of bonds of the New
Series entitled to vote at any meeting of bondholders provided for
in Article XVIII of the Original Indenture. If a record date is
fixed, those persons who were holders at such record date (or their
duly designated proxies), and only those persons, shall be entitled
to vote, whether or not such persons continue to be holders after
such record date.
SECTION 3. The approval by the Board of Public Utilities,
State of New Jersey of the execution and delivery of this First
1997 Supplemental Indenture shall not in anywise be construed as
approval by said Board of any other act, matter or thing which
requires the approval of said Board under the laws of the State of
New Jersey; nor shall said approval bind said Board or any other
public body or authority of the State of New Jersey having
jurisdiction in the premises in any future application for the
issue of bonds under the Original Indenture or any indenture
supplemental thereto or otherwise.
SECTION 4. As supplemented by this First 1997 Supplemental
Indenture, the Original Indenture is in all respects ratified and
confirmed and the Original Indenture and this First 1997
Supplemental Indenture shall be read, taken and construed as one
and the same instrument.
Nothing in this First 1997 Supplemental Indenture contained
shall, or shall be construed to, confer upon any person other than
the holders of bonds issued under the Original Indenture and this
First 1997 Supplemental Indenture, the Company and the Trustee, any
right to avail themselves of any benefit of any provision of the
Original Indenture or of this First 1997 Supplemental Indenture.
The Trustee assumes no responsibility for the correctness of
the recitals of facts contained herein and makes no representations
as to the validity of this First 1997 Supplemental Indenture.
This First 1997 Supplemental Indenture may be simultaneously
executed in any number of counterparts, each of which so executed
shall be deemed to be an original; but such counterparts shall
together constitute but one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, ATLANTIC CITY ELECTRIC COMPANY, party of
the first part, has caused this instrument to be signed in its name
and behalf by its President or a Vice President, and its corporate
seal to be hereunto affixed and attested by its Secretary or an
Assistant Secretary, and THE BANK OF NEW YORK, party hereto of the
second part, has caused this instrument to be signed in its name
and behalf by a Vice President or an Assistant Vice President and
its corporate seal to be hereunto affixed and attested by an
Assistant Vice President or an Assistant Treasurer. Executed and
delivered by Atlantic City Electric Company in the Township of Egg
Harbor, New Jersey, the _______ day of March, 1997.
ATLANTIC CITY ELECTRIC COMPANY
SEAL
By:
(L. M. Walters)
Vice President
ATTEST:
(James E. Franklin, II)
Secretary
Signed, sealed and delivered by ATLANTIC CITY ELECTRIC COMPANY in
the presence of:
( )
( )
THE BANK OF NEW YORK
SEAL
By:
( )
Vice President
ATTEST:
( )
Assistant Vice President
Signed, sealed and delivered by THE BANK OF NEW YORK in the
presence of:
( )
( )
<PAGE>
STATE OF NEW JERSEY
ss:
COUNTY OF ATLANTIC
BE IT REMEMBERED that on this _____ day of March, in the year
of our Lord one thousand nine hundred and ninety-seven before me,
a Notary Public in and for the State and County aforesaid,
personally appeared James E. Franklin II, who being by me duly
sworn on his oath says that he is Secretary of Atlantic City
Electric Company, the grantor in the foregoing Indenture
Supplemental to Mortgage and Deed of Trust, and that L. M. Walters
is a Vice President; that deponent knows the common or corporate
seal of said grantor, and the seal annexed to the said Indenture
Supplemental to Mortgage and Deed of Trust is such common or
corporate seal; that the said Indenture Supplemental to Mortgage
and Deed of Trust was signed by the said Vice President and the
seal of said grantor affixed thereto in the presence of deponent;
that said Indenture Supplemental to Mortgage and Deed of Trust was
signed, sealed and delivered as and for the voluntary act and deed
of said grantor for the uses and purposes therein expressed,
pursuant to a resolution of the Board of Directors of said grantor;
and at the execution thereof this deponent subscribed his name
thereto as witness.
Sworn and subscribed the day and year aforesaid.
STEPHANIE M. SCOLA
NOTARY PUBLIC OF NEW JERSEY
My Commission Expires October 13, 1999
[ SEAL ]
<PAGE>
STATE OF NEW YORK
ss:
COUNTY OF NEW YORK
BE IT REMEMBERED that on this _____ day of March, in the year
of our Lord one thousand nine hundred and ninety-seven before me,
a Notary Public in and for the State and County aforesaid,
personally appeared _______________________, who being by me duly
sworn on her oath says that she is an Assistant Vice President of
THE BANK OF NEW YORK, the Trustee named in the foregoing Indenture
Supplemental to Mortgage and Deed of Trust, and that
______________________ is ______________________ Vice President;
that deponent knows the common or corporate seal of said Trustee,
and that the seal annexed to the said Indenture Supplemental to
Mortgage and Deed of Trust is such common or corporate seal; that
the said Indenture Supplemental to Mortgage and Deed of Trust was
signed by the said Assistant Vice President and the seal of said
Trustee affixed thereto in the presence of deponent; that said
Indenture Supplemental to Mortgage and Deed of Trust was signed,
sealed and delivered as and for the voluntary act and deed of said
Trustee for the uses and purposes therein expressed, pursuant to
authority of the Board of Directors of said Trustee; and at the
execution thereof this deponent subscribed his or her name thereto
as witness.
Sworn and subscribed the day and year aforesaid.
[SEAL]
<PAGE>
CERTIFICATE OF RESIDENCE
THE BANK OF NEW YORK, Mortgagee and Trustee within named,
hereby certifies that its precise residence is 101 Barclay Street,
in the Borough of Manhattan, in The City of New York, in the State
of New York.
THE BANK OF NEW YORK
By:
( )
Assistant Vice President
Exhibit 4e
ATLANTIC CITY ELECTRIC COMPANY
TO
THE BANK OF NEW YORK,
Trustee
__________________________
INDENTURE
Dated as of March 1, 1997
__________________________
<PAGE>
ATLANTIC CITY ELECTRIC COMPANY
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of March 1, 1997
Trust Indenture Act Section Indenture Section
310(a)(1) . . . . . . . . . . . . . . . . 901
(a)(2) . . . . . . . . . . . . . . . . 901
(a)(3) . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . Not Applicable
(a)(5) . . . . . . . . . . . . . . . . 901
(b) . . . . . . . . . . . . . . . . 910
911
311(a) . . . . . . . . . . . . . . . . 907(a)
(b) . . . . . . . . . . . . . . . . 907(b)
(b)(2) . . . . . . . . . . . . . . . . 1003(c)
(c) . . . . . . . . . . . . . . . . Not Applicable
312(a) . . . . . . . . . . . . . . . . 1001
1002(a)
(b) . . . . . . . . . . . . . . . . 1002(b)
(c) . . . . . . . . . . . . . . . . 1002(c)
313(a) (except (6) . . . . . . . . . . 1003(a)
(a)(6) . . . . . . . . . . . . . . . . Not Applicable
(b)(1) . . . . . . . . . . . . . . . . Not Applicable
(b)(2) . . . . . . . . . . . . . . . . 1003(b)
(c) . . . . . . . . . . . . . . . . 1003(c)
(d) . . . . . . . . . . . . . . . . 1003(d)
314(a) . . . . . . . . . . . . . . . . 1004
(b) . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . 102
315(a) . . . . . . . . . . . . . . . . 902(a)
(b) . . . . . . . . . . . . . . . . 903
1003(a)(7)
(c) . . . . . . . . . . . . . . . . 902(b)
(d) . . . . . . . . . . . . . . . . 902(c)
(d)(1) . . . . . . . . . . . . . . . . 902(a)
(d)(2) . . . . . . . . . . . . . . . . 902(c)(2)
(d)(3) . . . . . . . . . . . . . . . . 902(c)(3)
(e) . . . . . . . . . . . . . . . . 814
316(a) . . . . . . . . . . . . . . . . 101-"Outstanding"
(a)(1)(A). . . . . . . . . . . . . . . . 812
(a)(1)(B). . . . . . . . . . . . . . . . 813
(a)(2) . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . 808
(c) . . . . . . . . . . . . . . . . 1308
317(a)(1) . . . . . . . . . . . . . . . 803
(a)(2) . . . . . . . . . . . . . . . . 804
(b) . . . . . . . . . . . . . . . . 603
318(a) . . . . . . . . . . . . . . . . 107<PAGE>
TABLE OF CONTENTS
Page
ARTICLE ONE
Definitions and Other Provisions of General Application. . . . 1
SECTION 101. Definitions. . . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent. . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors. . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution. . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day. . . . . . . . . . . . . . . . . . . . . . . . . . 2
Commission. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Request . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Order . . . . . . . . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office. . . . . . . . . . . . . . . . . . . . . 3
corporation . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest. . . . . . . . . . . . . . . . . . . . . . . 3
Discount Security . . . . . . . . . . . . . . . . . . . . . . . 3
Dollar" or "$ . . . . . . . . . . . . . . . . . . . . . . . . . 3
Event of Default. . . . . . . . . . . . . . . . . . . . . . . . 3
Government Obligations. . . . . . . . . . . . . . . . . . . . . 3
Holder. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . 4
Maturity. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . 4
Opinion of Counsel. . . . . . . . . . . . . . . . . . . . . . . 4
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Paying Agent. . . . . . . . . . . . . . . . . . . . . . . . . . 5
Periodic Offering . . . . . . . . . . . . . . . . . . . . . . . 6
Person. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Place of Payment. . . . . . . . . . . . . . . . . . . . . . . . 6
Predecessor Security. . . . . . . . . . . . . . . . . . . . . . 6
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . 6
Redemption Price. . . . . . . . . . . . . . . . . . . . . . . . 6
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . 6
Required Currency . . . . . . . . . . . . . . . . . . . . . . . 6
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . 6
Security. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Security Register . . . . . . . . . . . . . . . . . . . . . . . 6
Security Registrar. . . . . . . . . . . . . . . . . . . . . . . 6
Special Record Date . . . . . . . . . . . . . . . . . . . . . . 6
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . 7
Tranche . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . 7<PAGE>
SECTION 102. Compliance Certificates and Opinions . . . . . . . . . 7
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . . 8
SECTION 104. Acts of Holders. . . . . . . . . . . . . . . . . . . . 8
SECTION 105. Notices, Etc. to Trustee and Company . . . . . . . . . 10
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. . . . . . . . . . . . . . . . . . . . . 12
SECTION 113. Legal Holidays . . . . . . . . . . . . . . . . . . . . 12
SECTION 114. Counterparts . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE TWO
Security Forms . . . . . . . . . . . . . . 12
SECTION 201. Forms Generally. . . . . . . . . . . . . . . . . . . . 12
SECTION 202. Form of Trustee's Certificate of
Authentication. . . . . . . . . . . . . . . . . . . 13
ARTICLE THREE
The Securities . . . . . . . . . . . . . . 13
SECTION 301. Amount Unlimited; Issuable in Series and
in Tranches thereof; Establishment of
Series and of Tranches thereof. . . . . . . . . . . 13
SECTION 302. Denominations. . . . . . . . . . . . . . . . . . . . . 16
SECTION 303. Execution; Authentication and Delivery;
Dating. . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . 19
SECTION 305. Registration, Registration of Transfer
and Exchange. . . . . . . . . . . . . . . . . . . . 20
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities. . . . . . . . . . . . . . . . . . . . . 21
SECTION 307. Payment of Interest; Interest Rights
Preserved . . . . . . . . . . . . . . . . . . . . . 22
SECTION 308. Persons Deemed Owners. . . . . . . . . . . . . . . . . 24
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . 24
SECTION 310. Computation of Interest. . . . . . . . . . . . . . . . 24
SECTION 311. CUSIP Numbers. . . . . . . . . . . . . . . . . . . . . 24
SECTION 312. Payment to Be in Proper Currency.. . . . . . . . . . . 25
ARTICLE FOUR
Redemption of Securities. . . . . . . . . . . . 25
SECTION 401. Applicability of Article . . . . . . . . . . . . . . . 25
SECTION 402. Election to Redeem; Notice to Trustee. . . . . . . . . 25
SECTION 403. Selection of Securities to Be Redeemed . . . . . . . . 26
SECTION 404. Notice of Redemption . . . . . . . . . . . . . . . . . 26
SECTION 405. Securities Payable on Redemption Date. . . . . . . . . 27
SECTION 406. Securities Redeemed in Part. . . . . . . . . . . . . . 28
ARTICLE FIVE
Sinking Funds . . . . . . . . . . . . . . 28
SECTION 501. Applicability of Article . . . . . . . . . . . . . . . 28
SECTION 502. Satisfaction of Sinking Fund Payments
with Securities . . . . . . . . . . . . . . . . . . 28
SECTION 503. Redemption of Securities for Sinking
Fund. . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE SIX
Covenants . . . . . . . . . . . . . . . 29
SECTION 601. Payment of Principal, Premium and
Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 602. Maintenance of Office or Agency. . . . . . . . . . . . 30
SECTION 603. Money for Securities Payments to Be Held
in Trust. . . . . . . . . . . . . . . . . . . . . . 31
SECTION 604. Corporate Existence. . . . . . . . . . . . . . . . . . 32
ARTICLE SEVEN
Satisfaction and Discharge . . . . . . . . . . . 32
SECTION 701. Satisfaction and Discharge of Securities . . . . . . . 32
SECTION 702. Satisfaction and Discharge of Indenture. . . . . . . . 34
SECTION 703. Application of Trust Money . . . . . . . . . . . . . . 35
ARTICLE EIGHT
Events of Default; Remedies. . . . . . . . . . . 35
SECTION 801. Events of Default. . . . . . . . . . . . . . . . . . . 35
SECTION 802. Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . . . . . . . 37
SECTION 803. Collection of Indebtedness and Suits for
Enforcement by Trustee. . . . . . . . . . . . . . . 38
SECTION 804. Trustee May File Proofs of Claim . . . . . . . . . . . 38
SECTION 805. Trustee May Enforce Claims Without
Possession of Securities. . . . . . . . . . . . . . 39
SECTION 806. Application of Money Collected . . . . . . . . . . . . 39
SECTION 807. Limitation on Suits. . . . . . . . . . . . . . . . . . 40
SECTION 808. Unconditional Right of Holders to Receive
Principal, Premium and Interest . . . . . . . . . . 41
SECTION 809. Restoration of Rights and Remedies . . . . . . . . . . 41
SECTION 810. Rights and Remedies Cumulative . . . . . . . . . . . . 41
SECTION 811. Delay or Omission Not Waiver . . . . . . . . . . . . . 41
SECTION 812. Control by Holders of Securities . . . . . . . . . . . 41
SECTION 813. Waiver of Past Defaults. . . . . . . . . . . . . . . . 42
SECTION 814. Undertaking for Costs. . . . . . . . . . . . . . . . . 42
SECTION 815. Waiver of Stay or Extension Laws . . . . . . . . . . . 43
ARTICLE NINE
The Trustee. . . . . . . . . . . . . . . 43
SECTION 901. Corporate Trustee Required; Eligibility. . . . . . . . 43
SECTION 902. Certain Duties and Responsibilities. . . . . . . . . . 44
SECTION 903. Notice of Defaults . . . . . . . . . . . . . . . . . . 45
SECTION 904. Certain Rights of Trustee. . . . . . . . . . . . . . . 45
SECTION 905. Not Responsible for Recitals or Issuance
of Securities . . . . . . . . . . . . . . . . . . . 47
SECTION 906. May Hold Securities. . . . . . . . . . . . . . . . . . 47
SECTION 907. Preferential Collection of Claims Against
Company . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 908. Money Held in Trust. . . . . . . . . . . . . . . . . . 48
SECTION 909. Compensation and Reimbursement . . . . . . . . . . . . 48
SECTION 910. Disqualification; Conflicting Interests. . . . . . . . 49
SECTION 911. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . . . . . . 49
SECTION 912. Acceptance of Appointment by Successor . . . . . . . . 51
SECTION 913. Merger, Conversion, Consolidation or
Succession to Business. . . . . . . . . . . . . . . 52
SECTION 914. Appointment of Authenticating Agent. . . . . . . . . . 52
ARTICLE TEN
Holders' Lists and Reports by Trustee and Company . . . . . 54
SECTION 1001. Company to Furnish Trustee Names and
Addresses of Holders. . . . . . . . . . . . . . . . 54
SECTION 1002. Preservation of Information;
Communications to Holders . . . . . . . . . . . . . 55
SECTION 1003. Reports by Trustee. . . . . . . . . . . . . . . . . . 55
SECTION 1004. Reports by Company. . . . . . . . . . . . . . . . . . 56
ARTICLE ELEVEN
Consolidation, Merger, Conveyance, Transfer or Lease. . . . . 56
SECTION 1101. Company May Consolidate, Etc., Only on Certain
Terms . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 1102. Successor Corporation Substituted . . . . . . . . . . 57
ARTICLE TWELVE
Supplemental Indentures. . . . . . . . . . . . 57
SECTION 1201. Supplemental Indentures Without Consent
of Holders. . . . . . . . . . . . . . . . . . . . . 57
SECTION 1202. Supplemental Indentures With Consent of
Holders . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 1203. Execution of Supplemental Indentures. . . . . . . . . 61
SECTION 1204. Effect of Supplemental Indentures . . . . . . . . . . 61
SECTION 1205. Conformity With Trust Indenture Act . . . . . . . . . 61
SECTION 1206. Reference in Securities to Supplemental
Indentures. . . . . . . . . . . . . . . . . . . . . 61
SECTION 1207. Modification Without Supplemental
Indenture . . . . . . . . . . . . . . . . . . . . . 62
ARTICLE THIRTEEN
Meetings of Holders; Action Without Meeting. . . . . . . 62
SECTION 1301. Purposes for Which Meetings May Be
Called. . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 1302. Call, Notice and Place of Meetings. . . . . . . . . . 62
SECTION 1303. Persons Entitled to Vote at Meetings. . . . . . . . . 63
SECTION 1304. Quorum; Action. . . . . . . . . . . . . . . . . . . . 63
SECTION 1305. Attendance at Meetings; Determination of
Voting Rights; Conduct and Adjournment
of Meetings . . . . . . . . . . . . . . . . . . . . 64
SECTION 1306. Counting Votes and Recording Action of
Meetings. . . . . . . . . . . . . . . . . . . . . . 65
SECTION 1307. Action Without Meeting. . . . . . . . . . . . . . . . 66
SECTION 1308. Record Date . . . . . . . . . . . . . . . . . . . . . 66
ARTICLE FOURTEEN
Immunity of Incorporators, Stockholders,
Officers and Directors . . . . . . . . . . . . 66
SECTION 1401. Liability Solely Corporate. . . . . . . . . . . . . . 66
<PAGE>
INDENTURE, dated as of March 1, 1997, from ATLANTIC
CITY ELECTRIC COMPANY, a corporation duly organized and existing
under the laws of the State of New Jersey (herein called the
"Company"), having its principal office at 6801 Black Horse Pike,
Egg Harbor Township, New Jersey 08234, to THE BANK OF NEW YORK, a
banking corporation duly organized and existing under the laws of
the State of New York, having its principal corporate trust
office at 101 Barclay Street - 21W, New York, New York 10286, 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 debentures, notes or other evidences of
indebtedness to be issued in one or more series as in this
Indenture provided (all of such securities authenticated and
delivered under this Indenture being herein collectively referred
to as the "Securities" and each of such Securities being herein
individually referred to as a "Security"); and all other things
necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of
all Holders of the Securities or of series thereof, as follows:
100.
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 other terms used herein 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 of America, 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 of America at
the date of such computation; provided, however, that in
determining generally accepted accounting principles
applicable to the Company, the Company shall, to the extent
required, conform to any order, rule or regulation of any
administrative agency, regulatory authority or other
governmental body having jurisdiction over the Company; and
(d) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision.
Certain terms, used principally in Article Nine, are
defined in that Article.
"Act", when used with respect to any Holder of a
Security, has the meaning specified in Section 104.
"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 or Persons
authorized by the Trustee to act on behalf of the Trustee to
authenticate one or more series of Securities.
"Board of Directors" means either the board of
directors of the Company or any duly authorized committee
thereof.
"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 for any series of the Securities, or Tranche thereof,
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
execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in
the first paragraph of this instrument 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 its
Chairman of the Board, its President or a Vice President, and by
its Treasurer, an Assistant Treasurer, its Controller, its
Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Corporate Trust Office" means the Corporate Trust
Office of the Trustee in the Borough of Manhattan, The City of
New York, New York at which at any particular time its corporate
trust business shall be administered, which at the date of this
Indenture is at 101 Barclay Street, New York, New York 10286.
"corporation" means a corporation, association,
company, joint stock company or business trust.
"Defaulted Interest" has the meaning specified in
Section 307.
"Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 802.
"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.
"Government Obligations" means:
(a) direct obligations of, or obligations the
principal of and interest on which are unconditionally
guaranteed by, the United States of America entitled to the
benefit of the full faith and credit thereof; and
(b) certificates, depositary receipts or other
instruments which evidence a direct ownership interest in
obligations described in clause (a) above or in any specific
interest or principal payments due in respect thereof;
provided, however, that the custodian of such obligations or
specific interest or principal payments shall be a bank or
trust company 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.
"Holder" means a Person in whose name a Security is
registered in the Security Register.
"Indenture" means this instrument as originally
executed and as it may from time to time be supplemented or
amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall
include the terms of particular series of Securities established
as contemplated by Section 301.
"interest", when used with respect to a Discount
Security which by its terms bears interest only after Maturity,
means interest payable after Maturity.
"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 therein or
herein provided, whether at the Stated Maturity, by declaration
of acceleration, upon call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by
the Chairman of the Board, the President or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Controller, the
Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of
counsel, who may be an employee of or counsel for the Company,
and who shall be 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 cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities or portion of the principal amount
thereof deemed to have been paid in accordance with Section
701; and
(c) Securities which have been paid pursuant to
Section 306 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to
this Indenture, other than any such Securities in respect of
which there shall have been presented to the Trustee proof
satisfactory to it and the Company that such Securities are
held by a bona fide purchaser 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
or Tranche, have given or concurred in 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,
(x) Securities beneficially 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 and each such Tranche, as the
case may be, determined without regard to this clause (x))
shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver or upon
any such determination as to the presence of a quorum, only
Securities which the Trustee knows to be so owned shall be
so disregarded; provided, however, that Securities so owned
which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes, to the satisfaction
of the Trustee, the pledgee's right so to act with respect
to such Securities and that the pledgee is not the Company
or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor; and
(y) the principal amount of a Discount Security that
shall be deemed to be Outstanding for such purposes shall be
the amount of the principal thereof that would be due and
payable as of the date of such determination upon a
declaration of acceleration of the Maturity thereof pursuant
to Section 802.
"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 and initially shall be The Bank of New York, New York,
New York.
"Periodic Offering" means an offering of Securities of
a series from time to time, the specific terms of which
Securities, including without limitation the rate or rates of
interest, if any, thereon, the Stated Maturity or Stated
Maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by the Company or its
agents upon the issuance of such Securities.
"Person" means any individual, corporation,
partnership, joint venture, trust or unincorporated organization
or any government or any political subdivision, instrumentality
or agency thereof.
"Place of Payment", when used with respect to the
Securities of any series, or any Tranche thereof, means the place
or places, specified as contemplated by Section 301, at which,
subject to Section 602, the principal of, and premium, if any,
and interest, if any, on, the Securities of such series or
Tranche are payable upon presentation.
"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
evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Redemption Date", when used with respect to any
Security to be redeemed, means the date fixed for such redemption
by or pursuant to this Indenture.
"Redemption Price", when used with respect to any
Security to be redeemed, means the price at which it is to be
redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Securities of any series means the
date specified for that purpose as contemplated by Section 301.
"Required Currency" has the meaning specified in
Section 312.
"Responsible Officer", when used with respect to the
Trustee, means an officer of the Trustee assigned to the
Corporate Trust Office, including any vice president, any
assistant vice president, the secretary, any assistant secretary,
any trust officer or assistant trust officer or any other officer
of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means,
with respect to a particular corporate trust matter, any other
officer of the Trustee to whom such matter is referred because of
his knowledge of and familiarity with the particular subject.
"Security" and "Securities" have the meanings stated in
the first recital of this Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"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
Security or any installment of principal thereof or interest
thereon, means the date specified in such Security as the fixed
date on which the principal of such Security or such installment
of principal or interest is due and payable.
"Tranche" means a group of Securities which (a) are of
the same series and (b) have identical terms except as to
principal amount and/or date of issuance.
"Trustee" means the Person named as the "Trustee" in
the first paragraph of this instrument until a successor Trustee
shall have become such with respect to one or more series of
Securities pursuant to the applicable provisions of this
Indenture, and thereafter, "Trustee" shall mean or include each
Person who is then a Trustee hereunder, and if at any time there
is more than one such Person, "Trustee" as used with respect to
the Securities of any series shall mean the Trustee with respect
to Securities of that series.
"Trust Indenture Act" means, as of any time, the Trust
Indenture Act of 1939 as in force at such time.
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 furnish to the Trustee an Officers' 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 (other than certificates pursuant to
Section 1004) or opinion with respect to compliance with a
condition or covenant, provided for in this Indenture shall
include;
(a) a statement that each individual signing such
certificate or opinion has read such covenant or condition
and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of
the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are
based:
(c) a statement that, in the opinion of each such
individual, he has made such examination or investigation as
is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been
complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person,
it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be
so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one
or several documents.
Any certificate or opinion of an officer of the Company
may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless
such officer knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with
respect to the matters upon which his 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.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction,
notice, consent, election, waiver or other action provided by
this Indenture to be made, given or taken by Holders may be
embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or
by an agent duly appointed in writing or, alternatively, may be
embodied in and evidenced by the record of Holders voting in
favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders duly called and held in
accordance with the provisions of Article Thirteen, or a
combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both
are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments and any
such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments and so voting at
any such meeting. Proof of execution of any such instrument or
of a writing appointing any such agent, or of the holding by any
Person of a Security, shall be sufficient for any purpose of this
Indenture and (subject to Section 902) 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 (except as otherwise
contemplated in clause (y) of the proviso to the definition of
Outstanding) and serial numbers of Securities held by any Person,
and the date of holding the same, shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction,
notice, consent, election, waiver or other Act of a Holder shall
bind every future Holder of the same Security and the Holder of
every Security issued upon the registration of transfer thereof
or in exchange therefor or in lieu thereof in respect of anything
done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such
action is made upon such Security.
(e) Until such time as written instruments shall have
been delivered to the Trustee with respect to the requisite
percentage of principal amount of Securities for the action
contemplated by such instruments, any such instrument executed
and delivered by or on behalf of a Holder may be revoked 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, or any Tranche thereof,
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, or any Tranche thereof, 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 or Tranche.
(g) If the Company shall solicit from Holders any
request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, by Board
Resolution, 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,
(a) the Trustee by any Holder or by the Company shall
be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed,
first-class postage prepaid, to the Trustee addressed to the
attention of its Corporate Trust Department at the address
set forth in the introductory paragraph hereof, or at any
other address previously furnished in writing to the Company
by the Trustee, or
(b) 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 mailed,
first-class postage prepaid, to the Company addressed to the
attention of Treasurer at the address set forth in the
introductory paragraph hereof, or at any other address
previously furnished in writing to the Trustee by the
Company.
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, and not earlier than the earliest date, 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 the duties under any provision of the Trust
Indenture Act imposed by Section 318(c) thereof or any successor
provision thereto, such imposed duties shall control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings in this Indenture and
the Table of Contents are for convenience only and shall not
affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the
Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or the
Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or the Securities, express or
implied, shall give to any Person, other than the parties hereto,
their successors hereunder and the Holders, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
<PAGE>
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.
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 any Tranche thereof, or
in the Board Resolution or Officers' Certificate which
establishes the terms of such Securities or Tranche, which
specifically states that such provision shall apply in lieu of
this Section) payment of interest or principal and premium, if
any, need not be made at such Place of Payment on such date, but
may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect 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, then 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.
SECTION 114. Counterparts.
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.
200.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
The definitive Securities of each series shall be in
substantially the form or forms thereof established (i) in
indentures supplemental hereto, Board Resolutions or Officers'
Certificates pursuant to Board Resolutions, or (ii) with respect
to any Tranche of Securities of a series subject to Periodic
Offering, to the extent permitted by any of the documents
referred to in (i) above, in a Company Order or Orders or by
procedures, acceptable to the Trustee, specified in such Company
Order or Orders, 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, to the extent not inconsistent
herewith, may be determined by the officers executing such
Securities, as evidenced by their execution thereof.
Except as otherwise specified as contemplated by
Section 301 and Section 1201(l), 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 following form:
"This is one of the Securities of the series
designated in accordance with, and referred to in, the
within-mentioned Indenture.
THE BANK OF NEW YORK
as Trustee
By:__________________________"
Authorized Signatory
300.
ARTICLE THREE
The Securities
SECTION 301. Amount Unlimited; Issuable in Series and in
Tranches thereof; Establishment of Series and of
Tranches thereof.
The aggregate principal amount of Securities which may
be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series and
in one or more Tranches thereof. Each series shall be
established by an indenture supplemental hereto, a Board
Resolution or an Officers' Certificate pursuant to a Board
Resolution, which shall specify whether the Securities of such
series shall be subject to a Periodic Offering. With respect to
each series so established, there shall be determined (i) by such
indenture supplemental hereto, Board Resolution or Officers'
Certificate pursuant to a Board Resolution, and (ii) with respect
to any Tranche of Securities of a series subject to Periodic
Offering, to the extent that any of the documents specified in
(i) above both does not establish all of the terms of Securities
of such Tranche and provides that such terms may be determined in
a Company Order or by an officer or officers of the Company or
its agent or agents in accordance with procedures, acceptable to
the Trustee, specified in such Company Order, then either by a
Company Order or by such specified procedures:
(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, or any Tranche thereof, 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) whether the Securities of such series shall be
subject to Periodic Offering;
(d) the date or dates on which, and the manner in
which (if other than as provided in Section 601), the
principal of the Securities of such series, or any Tranche
thereof, is payable;
(e) the rate or rates at which the Securities of such
series, or any Tranche thereof, shall bear interest, if any
(including the rate or rates at which overdue principal,
premium or interest shall bear interest, if any), or the
method or methods by which such rate or rates shall be
determined, the date or dates from which interest, if any,
on the Securities of such series, or any Tranche thereof,
shall accrue, the Interest Payment Dates for the payment of
such interest, the record date for each such Interest
Payment Date (the "Regular Record Date"), the manner in
which such interest shall be payable (if other than as
provided in Sections 307 and 601 of the Indenture), and the
basis of computation of interest (if other than as provided
in Section 310);
(f) if other than as provided in Section 602, the
place or places where (1) any Securities of such series, or
any Tranche thereof, may be surrendered for registration of
transfer, (2) Securities of such series, or any Tranche
thereof, may be surrendered for exchange and (3) notices and
demands to or upon the Company in respect of the Securities
of such series, or any Tranche thereof, and this Indenture
may be served;
(g) the period or periods within which, the price or
prices at which and the terms and conditions upon which the
Securities of such series, or any Tranche thereof, may be
redeemed, in whole or in part, at the option of the Company
and any notice to be given in connection therewith (if other
than as provided in Section 404);
(h) the obligation, if any, of the Company to redeem
or purchase the Securities of such series, or any Tranche
thereof, pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which
and the terms and conditions upon which such Securities
shall be redeemed or purchased (including the remarketing
thereof), in whole or in part, pursuant to such obligation;
(i) the denominations in which Securities of such
series, or any Tranche thereof, shall be issuable if other
than denominations of $1,000 and any integral multiple
thereof;
(j) the currency or currencies, including composite
currencies, in which payment of the principal of and
premium, if any, and interest, if any, on the Securities of
such series shall be payable (if other than in Dollars);
(k) if the principal of or premium, if any, or
interest, if any, on the Securities of such series are to be
payable, at the election of the Company or a Holder thereof,
in a coin or currency other than that in which the
Securities are stated to be payable, the period or periods
within which and the terms and conditions upon which, such
election may be made;
(l) if the amount of payments of principal of, or
premium, if any, or interest, if any, on, the Securities of
such series, or any Tranche thereof, may be determined with
reference to an index, formula or other method, the manner
in which such amounts shall be determined;
(m) if other than the principal amount thereof, the
portion of the principal amount of Securities of such
series, or any Tranche thereof, which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant
to Section 802;
(n) any Events of Default, in addition to those
specified in Section 801, with respect to the Securities of
such series, or any Tranche thereof, and any covenants of
the Company for the benefit of the Holders of the Securities
of such series, or any Tranche thereof, in addition to those
set forth in Article Six;
(o) the terms, if any, pursuant to which the
Securities of such series, or any Tranche thereof, may be
converted into or exchanged for shares of capital stock or
other securities of the Company or any other Person;
(p) the Person or Persons (without specific
identification) to whom interest on Securities of such
series, or any Tranche thereof, shall be payable on any
Interest Payment Date, if other than the Person or Persons
specified in Section 307;
(q) if a service charge will be made for the
registration of transfer or exchange of Securities of such
series, or any Tranche thereof, the amount and terms
thereof;
(r) any exceptions to Section 113, or variation in the
definition of Business Day, with respect to the Securities
of such series, or any Tranche thereof;
(s) the terms, if any, required to permit the
Securities of such series, or any Tranche thereof, to be
registered pursuant to a non-certificated system of
registration;
(t) the obligations or instruments, if any, which
shall be considered to be Government Obligations in respect
of the Securities of such series denominated in a currency
other than Dollars or in a composite currency, and any
additional or alternative provisions for the reinstatement
of the Company's indebtedness in respect of such Securities
after the satisfaction and discharge thereof as provided in
Section 701;
(u) if the Securities of such series are to be
issuable as bearer securities, any and all matters
incidental thereto which are not specifically addressed in a
supplemental indenture as contemplated by clause (g) of
Section 1201; and
(v) any other terms of the Securities of such series,
or any Tranche thereof, not inconsistent with the provisions
of this Indenture.
Except as to denominations and except as may otherwise
be determined pursuant to this paragraph, all Securities of any
series or, if issued in Tranches thereof, any such Tranche, shall
be substantially identical.
SECTION 302. Denominations.
Except as otherwise specified as contemplated by
Section 301 with respect to any series of Securities, the
Securities of each series shall be issuable in denominations of
$1,000 and any integral multiple thereof.
SECTION 303. Execution; Authentication and Delivery; Dating.
The Securities shall be executed on behalf of the
Company by its Chairman of the Board, its President, one of its
Vice Presidents, its Treasurer or any other of its duly
authorized officers, under its corporate seal affixed thereto or
reproduced thereon, and attested by its Secretary, one of its
Assistant Secretaries or any other of its duly authorized
officers. The signature of any or all of these officers on the
Securities may be manual or facsimile. Securities bearing the
manual or facsimile signatures of individuals who were, at the
time that their signatures were affixed thereto, the proper
officers of the Company shall bind the Company, notwithstanding
that such individuals or any of them have ceased to hold such
offices prior to the dates of such Securities or the dates of
their authentication and delivery.
At any time and from time to time after the execution
and delivery of this Indenture, the Company may deliver
Securities of any series executed on behalf of the Company to the
Trustee for authentication and delivery. Thereafter, upon
receipt of (i) an indenture supplemental hereto, a Board
Resolution or an Officers' Certificate pursuant to a Board
Resolution, in each case establishing such series, (ii) a Company
Order requesting the authentication and delivery of any of such
Securities and, to the extent permitted by any of the documents
referred to in (i) above, establishing the terms of any Tranche
of such series or specifying procedures, acceptable to the
Trustee, for doing so, and (iii) an Opinion of Counsel with
respect to the matters set forth in the following paragraph, the
Trustee, in accordance with such documents and, in the case of
Securities subject to a Periodic Offering, with such procedures,
acceptable to the Trustee, as may be specified in such Company
Order, shall authenticate and deliver such Securities for
original issue, from time to time, in an aggregate principal
amount not exceeding the aggregate principal amount, if any,
established for such series or Tranche thereof. If such
procedures so provide, such Securities may be authorized,
authenticated and delivered pursuant to oral or electronic
instructions from the Company or its agent or agents, which oral
instructions shall be promptly confirmed electronically or in
writing.
In authenticating and delivering Securities of any
series, the Trustee shall be entitled to receive, and (subject to
Section 902) shall be fully protected in relying upon, an Opinion
of Counsel stating that:
(a) the forms of such Securities have been duly
authorized by the Company and have been established in
conformity with the provisions of this Indenture;
(b) the terms of such Securities have been duly
authorized by the Company and have been established in
conformity with the provisions of this Indenture;
(c) 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 to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and
an implied covenant of good faith and fair dealing; and
(d) all laws and requirements in respect of the
execution and delivery of such Securities have been complied
with.
provided, however, that, with respect to Securities of a series
subject to a Periodic Offering, the Trustee shall be entitled to
receive such Opinion of Counsel only once at or prior to the time
of the first authentication of Securities of such series and
that, in such opinion, the opinions described in clauses (b) and
(c) above may state, respectively, that:
(x) when the terms of such Securities, or each Tranche
thereof, shall have been established pursuant to a Company
Order or Orders or pursuant to such procedures, acceptable
to the Trustee, as may be specified by a Company Order or
Orders, all as contemplated by and in accordance with a
supplemental indenture hereto, a Board Resolution or an
Officers' Certificate pursuant to a Board Resolution, such
terms will have been duly authorized by the Company and will
have been established in conformity with the provisions of
this Indenture; and
(y) such Securities, or each Tranche thereof, when
authenticated and delivered by the Trustee in accordance
with this Indenture and any supplemental indenture hereto,
Board Resolution, Officers' Certificate pursuant to a Board
Resolution, Company Order or Company Orders and specified
procedures referred to in paragraph (x) above 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, to the
effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and
fair dealing.
With respect to Securities of a series subject to a
Periodic Offering, the Trustee may conclusively rely, as to the
authorization by the Company of any of such Securities, the forms
and terms thereof and the legality, validity, binding effect and
enforceability thereof, upon the Opinion of Counsel and other
documents delivered pursuant to this Section at or prior to the
time of the first authentication of Securities of such series
unless and until such opinion or other documents have been
superseded or revoked. In connection with the authentication and
delivery of Securities of a series subject to a Periodic
Offering, the Trustee shall be entitled to assume that the
Company's instructions to authenticate and deliver such
Securities do not violate any laws with respect to, or any rules,
regulations or orders of, any governmental agency or commission
having jurisdiction over the Company.
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
substantially 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 but never 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.
If the form or terms of the Securities of any series
have been established by other than an indenture supplemental,
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.
Each Security shall be dated the date of its original
issue and shall have the date of its authentication noted
thereon.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially
of the tenor of the definitive Securities in lieu of which they
are issued, with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such
Securities may determine, as evidenced by their execution of such
Securities.
If temporary Securities of any series, or any Tranche
thereof, are issued, the Company shall cause definitive
Securities of such series or Tranche to be prepared without
unreasonable delay. After the preparation of such definitive
Securities, such temporary Securities shall be exchangeable for
such definitive Securities 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 series or
Tranche, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any
series, or any Tranche thereof, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor
definitive Securities of the same series or Tranche, of
authorized denominations and of like tenor and aggregate
principal amount.
Until exchanged in full as hereinabove provided, the
temporary Securities of any series or Tranche shall in all
respects be entitled to the same benefits under this Indenture as
definitive Securities of the same series and Tranche and of like
tenor authenticated and delivered hereunder.
SECTION 305. Registration, Registration of Transfer and
Exchange.
The Company shall appoint a Security registrar (the
"Security Registrar") and cause to be kept at the office of the
Security Registrar (which, except as otherwise specified as
contemplated by Section 301 for Securities of any series, or
Tranche thereof, shall be located in the Borough of Manhattan,
The City of New York) a register (the "Security Register") in
which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of
Securities and the registration of transfer thereof. If, at any
time, there shall not be a Security Registrar acting pursuant to
appointment by the Company, the Trustee shall be deemed to be,
and shall act as, Security Registrar. The Trustee is hereby
initially appointed Security Registrar for the purpose of
registration and registration of transfer as herein provided.
Upon surrender for registration of transfer of any
Security of any series, or any Tranche thereof, at the office or
agency of the Company maintained pursuant to Section 602 in a
Place of Payment for such series or Tranche, 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 and Tranche, of authorized
denominations and of like tenor and aggregate principal amount.
At the option of the Holder, Securities of any series,
or any Tranche thereof, may be exchanged for other Securities of
the same series and Tranche, 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 issued upon any registration of transfer
or exchange of Securities shall be the 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 or the Trustee or any transfer agent) be duly
endorsed or shall be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security
Registrar or any transfer agent duly executed by the Holder
thereof or his attorney duly authorized in writing.
Except as otherwise specified as contemplated by
Section 301 with respect to Securities of any series, or any
Tranche thereof, 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 (a) to issue, to
register the transfer of or to exchange Securities of any series,
or any Tranche thereof, during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of
redemption of Securities selected for redemption and ending at
the close of business on the day of such mailing, or (b) to
issue, to register the transfer of or to exchange 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 exchange therefor a new Security of
the same series and Tranche, and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Trustee (a) evidence
to its satisfaction of the ownership of and the destruction, loss
or theft of any Security and (b) such security or indemnity as it
may reasonably require to save it, the Company and their
respective agent or agents harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and
the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security, a new Security of the same
series and Tranche, and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
Notwithstanding the foregoing, in case any such
mutilated, destroyed, lost or stolen Security has become or is
about to become due and payable, the Company in its discretion
may, 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 expenses (including the fees
and expenses of the Trustee) connected therewith.
Every new Security of any series, or any Tranche
thereof, 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, 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
or Tranche 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.
Except as otherwise specified as contemplated by
Section 301 with respect to the Securities of any series, or any
Tranche thereof:
(a) interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest
Payment Date (except the Interest Payment Date, if any,
which coincides with the Stated Maturity of the final
payment of the principal of such Security) shall be paid to
the Person in whose name that Security (or one or more
Predecessor Securities) shall be registered at the close of
business on the Regular Record Date for such interest;
provided, however, that, if the date of original issue of
such Security shall be after a Regular Record Date and
before the corresponding Interest Payment Date, payment of
interest shall commence on the second Interest Payment Date
succeeding such date of original issue and shall be paid to
the Person in whose name such Security shall have been
registered on the Regular Record Date for such second
Interest Payment Date; and
(b) interest on any Security which is payable, and is
punctually paid or duly provided for, on the Interest
Payment Date which coincides with the Stated Maturity of the
final payment of the principal of such Security shall be
paid to the person to whom such final payment of principal
shall be paid.
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
Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security of
such series and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit
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; or
(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.
The Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name any Security is
registered in the Security Register as the absolute owner of such
Security for the purpose of receiving payment of principal of,
and premium, if any, and (subject to Sections 305 and 307)
interest, if any, on, such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither
the Company, the Trustee nor any agent of the Company or the
Trustee shall be affected by notice to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption,
registration of transfer or exchange or for credit against any
sinking fund payment shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and, if not
theretofore cancelled, shall be promptly cancelled by the
Trustee. The Company may at any time deliver to the Trustee 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 cancelled
by the Trustee. No Securities shall be authenticated in lieu of
or in exchange for any Securities cancelled as provided in this
Section, except as expressly permitted by this Indenture. All
cancelled Securities shall be disposed of as directed by a
Company Order, provided, however that the Trustee shall not be
required to destroy the certificate or certificates representing
any of such cancelled Securities.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by
Section 301 for Securities of any series, or Tranche thereof,
interest on the Securities of each series shall be computed on
the basis of a 360-day year consisting of twelve 30-day months.
SECTION 311. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP"
numbers (if then generally in use), and, if so, the Trustee shall
use "CUSIP" numbers in notices of redemption as a convenience to
Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice
of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of
such numbers.
SECTION 312. Payment to Be in Proper Currency.
In the case of any Securities denominated in any
currency other than Dollars or in a composite currency (the
"Required Currency"), except as otherwise provided therein, the
obligation of the Company to make any payment of the principal
thereof, or the premium or interest thereon, shall not be
discharged or satisfied by any tender by the Company, or recovery
by the Trustee, in any currency other than the Required Currency,
except to the extent that such tender or recovery shall result in
the Trustee timely holding the full amount of the Required
Currency then due and payable. If any such tender or recovery is
in a currency other than the Required Currency, the Trustee may
take such actions as it considers appropriate to exchange such
currency for the Required Currency. The costs and risks of delay
and exchange rate fluctuation, shall be borne by the Company, the
Company shall remain fully liable for any shortfall or
delinquency in the full amount of Required Currency then due and
payable, and in no circumstances shall the Trustee be liable
therefor except in the case of its negligence or willful
misconduct. The Company hereby waive any defense of payment
based upon any such tender or recovery which is not in the
Required Currency, or which, when exchanged for the Required
Currency by the Trustee, is less than the full amount of Required
Currency then due and payable.
400.
ARTICLE FOUR
Redemption of Securities
SECTION 401. Applicability of Article.
Securities of any series, or any Tranche thereof, 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 or
Tranche) 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 Officers'
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
Officers' 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, or any
Tranche thereof, are to be redeemed, the particular Securities to
be redeemed shall be selected by the Trustee from the Outstanding
Securities of such series or Tranche not previously called for
redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for
redemption of portions; provided, however, that no such partial
redemption shall reduce the portion of the principal amount of a
Security of such series not redeemed to less than the minimum
authorized denomination for Securities of such series, if any.
The Trustee shall promptly notify the Company in
writing of the Securities selected for redemption and, in the
case of any Securities selected to be redeemed in part, the
principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Securities redeemed
or to be redeemed only in part, to the portion of the principal
amount of such Securities which has been or is to be redeemed.
SECTION 404. Notice of Redemption.
Except as otherwise specified as contemplated by
Section 301 for Securities of any series, or Tranche thereof,
notice of redemption shall be given in the manner provided in
Section 106 to the Holders of Securities to be redeemed not less
than 30 nor more than 90 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 or
Tranche 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
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,
(f) that the redemption is for a sinking fund or
analogous provisions, if such is the case, and
(g) the CUSIP number(s), if any.
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 Trustee,
on or prior to the date fixed for such redemption, of money
sufficient to pay the Redemption Price of, and accrued 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.
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 Trustee 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, except as otherwise specified as contemplated by Section
301 with respect to Securities of any series, or Tranche thereof,
any installment of interest on any Security the Stated Maturity
of which installment is on or prior to the Redemption Date shall
be payable in accordance with Section 601.
SECTION 406. Securities Redeemed in Part.
Any Security which is to be redeemed in part shall be
surrendered 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), and, in exchange therefor, 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 like tenor of the same series, or
any Tranche thereof, of any authorized denomination requested by
such Holder, and in aggregate principal amount equal to the
unredeemed portion of the principal of the Security so
surrendered.
500.
ARTICLE FIVE
Sinking Funds
SECTION 501. Applicability of Article.
The provisions of this Article shall be applicable to
any sinking fund or analogous provisions for the retirement of
the Securities of any series, or any Tranche thereof, except as
otherwise specified as contemplated by Section 301 for Securities
of such series or Tranche.
The minimum amount of any sinking fund payment provided
for by the terms of Securities of any series, or any Tranche
thereof, 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, or any
Tranche thereof, is herein referred to as an "optional sinking
fund payment". Each sinking fund payment shall be applied to the
redemption of Securities of the series or Tranche 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.
Unless otherwise provided by the terms of Securities of
any series, or any Tranche thereof, in respect of which a
mandatory sinking fund payment is to be made, the Company (a) may
deliver Outstanding Securities (other than those previously
called for redemption) of such series or Tranche and (b) may
apply as a credit Securities of such series or Tranche 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, in each case in satisfaction of all or any part
of such mandatory sinking fund payment; 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 60 days prior to each sinking fund
payment date for the Securities of any series, or any Tranche
thereof (unless shorter notice shall be satisfactory to the
Trustee), the Company shall deliver to the Trustee an Officers'
Certificate specifying:
(a) the amount of the next succeeding mandatory
sinking fund payment for such series or Tranche;
(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 or
crediting Securities of such series or Tranche pursuant to
Section 502 and stating the basis for such credit and that
such Securities have not previously been so credited,
and the Company also shall deliver to the Trustee any Securities
to be so delivered. If the Company shall not deliver such
Officers' Certificate, the next succeeding sinking fund payment
for such series or Tranche 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 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.
600.
ARTICLE SIX
Covenants
SECTION 601. Payment of Principal, Premium and Interest.
The Company shall duly and punctually pay the principal
of, and premium, if any, and interest, if any, on, the Securities
of each series in accordance with the terms of such Securities
and this Indenture.
Except as otherwise specified as contemplated by
Section 301 for Securities of any series, or Tranche thereof, all
payments of the principal of, and premium, if any, and interest,
if any, on, each Security will be made (i) in such coin or
currency of the United States of America as, at the time of
payment, shall be legal tender for the payment of public and
private debts, and (ii) except as otherwise specified as
contemplated by Section 301 for Securities of any series or
Tranche thereof, at the office or agency of the Company
maintained for such purpose in the Borough of Manhattan and The
City of New York; provided, however, that, at the option of the
Company, interest on such Security at any Stated Maturity may be
paid by check mailed to the Holder thereof at such Holder's
address as shown on the Security Register.
SECTION 602. Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for
the Securities of any series, or any Tranche thereof, an office
or agency where such Securities may be presented or surrendered
for payment, where such Securities may be surrendered for
registration of transfer or exchange 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 location, and any change in
the location, of 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 any Tranche thereof, or shall fail to furnish the Trustee with
the address thereof, such presentations and surrenders of such
Securities may be made and notices and demands may be made or
served at the Corporate Trust Office of the Trustee. The Company
hereby appoints the Trustee as its initial agent to receive such
respective presentations, surrenders, notices and demands.
The Company also may from time to time designate one or
more other offices or agencies where the Securities of one or
more series, or any Tranche thereof, may be presented or
surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency for such
purposes in each Place of Payment for such Securities in
accordance with the requirements set forth above. The Company
shall give prompt written notice to the Trustee, and prompt
notice to the Holders in the manner specified in Section 106, of
any such designation or rescission and of any change in the
location of any such other office or agency.
Anything herein to the contrary notwithstanding, any
office or agency required by this Section may be maintained at an
office of the Company, in which event the Company shall perform
all functions to be performed at such office or agency.
SECTION 603. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying
Agent with respect to the Securities of any series, or any
Tranche thereof, it shall, on or before each due date of the
principal of, or premium or interest 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, premium
or interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and shall
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying
Agents for the Securities of any series, or any Tranche thereof,
it shall, prior to each due date of the principal of, and premium
and interest on, such Securities, deposit with such Paying Agents
sums sufficient (without duplication) to pay the principal,
premium and interest so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal,
premium and interest, and (unless such Paying Agent is the
Trustee) the Company shall promptly notify the Trustee of its
action or failure so to act.
The Company shall cause each Paying Agent for the
Securities of any series, or any Tranche thereof, other than 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 and interest on, Securities of
such series or Tranche 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 default by the
Company (or any other obligor upon the Securities of such
series or Tranche) in the making of any payment of principal
of, or premium or interest on, the Securities of such series
or Tranche; 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.
The Company may at any time pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held
by the Trustee upon the same trusts as those upon which such sums
were held by the Company or such Paying Agent; and, 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, or premium or interest on, any Security and
remaining unclaimed for two years after such principal, premium,
or interest shall have become due and payable shall be paid to
the Company pursuant to a Company Request, or, if then held by
the Company, shall be discharged from such trust; and the Holder
of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, 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.
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 and the rights (charter and statutory) and
franchises of the Company; provided, however, that the Company
shall not be required to preserve any such right or franchise if,
in the judgment of the Company, the preservation thereof is no
longer desirable in the conduct of the business of the Company.
700.
ARTICLE SEVEN
Satisfaction and Discharge
SECTION 701. Satisfaction and Discharge of Securities.
Any 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, in trust:
(a) money in an amount which shall be sufficient, or
(b) in the case of a deposit made prior to the
Maturity of such Securities or portions thereof, Government
Obligations, which shall not contain provisions permitting
the redemption or other prepayment thereof at the option of
the issuer thereof, the principal of and the interest on
which when due, without any regard to reinvestment thereof,
will provide moneys which, together with the money, if any,
deposited with or held by the Trustee, 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, on, such Securities or portions thereof;
provided, however, that (i) in the case of the provision for
payment of less than all of the Securities, such Securities or
portions of the principal amounts thereof shall have been
selected by the Security Registrar as provided herein; (ii) 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; [and (iii) such money or the proceeds of such Government
Obligations shall either (i) have been on deposit with the
Trustee for a period of at least 90 days, or (ii) the Trustee
shall have received an opinion of Counsel reasonably satisfactory
in form to the Trustee to the effect that payments to Holders
with such moneys as proceeds are not recoverable as a preference
under any applicable United States federal or state law relating
to bankruptcy, insolvency, receivership, winding-up, liquidation,
reorganization or relief of debtors;] and (iv) the Company shall
have delivered to the Trustee:
(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 with the
Trustee in accordance with this Section shall be held by the
Trustee, in trust, as provided in Section 703;
(y) if Government Obligations shall have been
deposited with the Trustee, an Officers' Certificate to the
effect that the requirements set forth in clause (b) above
have been satisfied; and
[(z) a Opinion of Counsel in a form reasonably
satisfactory to the Trustee which shall be (i) accompanied by a
ruling of the Internal Revenue Service issued to the Company, or
(ii) based on a change in law or regulation occurring after the
date hereof, to the effect that the Holders will not realize
income, gain or loss for Federal income tax purposes as a result
of such defeasance but will realize income, gain or loss on the
Securities, including payments of interest thereon, on the same
amounts and in the same manner and at the same time as would have
been the case if such defeasance had not occurred.]
Upon receipt by the Trustee 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 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 is deemed to have been satisfied and discharged.
If payment of less than all of the Securities 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 amounts 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 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 with the Trustee 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 the satisfaction and discharge of any
Securities as aforesaid, the obligations of the Company and the
Trustee in respect of such Securities under Sections 305, 306,
602, 603 and 909 and this Article Seven shall survive.
The Company shall pay, and shall indemnify the Trustee
and each Holder of Securities which are deemed to have been paid
as provided in this Section against, any tax, fee or other charge
imposed on or assessed against the Government Obligations
deposited with the Trustee or the principal or interest received
by the Trustee in respect of such Government Obligations.
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, upon Company Request and at the expense of the
Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) both
(1) all Securities theretofore authenticated and
delivered (other than Securities which have been
destroyed, lost or stolen and which have been replaced
or paid as provided in Section 306) have been delivered
to the Trustee for cancellation; and
(2) all Securities not theretofore delivered to
the Trustee for cancellation shall be deemed to have
been paid in accordance with Section 701;
(b) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that there has been compliance with all conditions
precedent herein provided for relating to the satisfaction
and discharge of this Indenture.
In the event there shall be Securities of two or more
series Outstanding hereunder, the Trustee shall be required to
execute an instrument acknowledging satisfaction and discharge of
this Indenture only if requested to do so with respect to
Securities of all series as to which it is Trustee and if the
other conditions thereto are met. In the event there shall be
two or more Trustees hereunder, then the effectiveness of each
such instrument from each Trustee hereunder shall be conditioned
upon receipt of such instruments from each other Trustee
hereunder.
Notwithstanding the satisfaction and discharge of this
Indenture as aforesaid, the obligations of the Company to the
Trustee under Section 909 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
909, any and all money, securities and other property then held
by the Trustee under this Indenture, 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 with the Trustee pursuant to Section 701, nor the
principal or interest payments on any such Government
Obligations, shall be withdrawn or used for any purpose other
than, and shall be held in trust for, the payment of the
principal of, and premium, if any, and interest, if any, on, the
Securities or portions of principal amount thereof in respect of
which such deposit was made, all subject, however, to the
provisions of Section 603; provided, however, that, so long as
there shall not have occurred and be continuing an Event of
Default, any cash received from such principal or interest
payments on such Government Obligations deposited with the
Trustee, 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, 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 by the
Trustee, free and clear of any trust, lien or pledge under this
Indenture except the lien provided by Section 909; and provided,
further, that, so long as there shall not have occurred and be
continuing an Event of Default, any moneys held by the Trustee 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, 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 909.
800.
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 installment of interest on any
such Security within 60 days after its Stated Maturity; or
(b) failure to pay the principal of, or premium, if
any, on, any such Security within three Business Days after
its Maturity; or
(c) failure to perform or breach of any covenant of
the Company in this Indenture (other than a covenant a
default in the performance of which is elsewhere in this
Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of one or
more series of Securities other than such series) for a
period of 90 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 33% in
principal amount of the Outstanding Securities of such
series a written notice specifying such default and
requiring it to be remedied and stating that such notice is
a "Notice of Default" hereunder; or
(d) the entry by a court having jurisdiction in the
premises of a decree or order (1) adjudging the Company a
bankrupt or insolvent, (2) approving as properly filed a
petition by one or more Persons, other than the Company,
seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company, (3) appointing
a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official for the Company or
for any substantial part of its property, or (4) ordering
the winding up or liquidation of its affairs; and any such
decree or order shall have remained unstayed and in effect
for a period of 90 consecutive days; or
(e) (1) the commencement by the Company of a case or
proceeding to be adjudicated a bankrupt or insolvent, (2)
the consent by it to (A) the entry of a decree or order for
relief in respect of the Company, (B) the commencement of
any bankruptcy or insolvency case or proceeding against it,
or (C) the filing of a petition seeking reorganization or
relief, or the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official, of the Company or of any
substantial part of its property, (3) the filing by it of a
petition or answer or consent seeking reorganization or
relief, or (4) the making by it of an assignment for the
benefit of creditors, in each such case described in clauses
(1) through (4) above under any applicable Federal or state
bankruptcy, insolvency, reorganization of other similar law,
(5) the admission by it in writing or its inability to pay
its debts generally as they become due, or (6) the
authorization of any action referred to in subclauses (1)
through (5) of this clause (e) by the Board of Directors; or
(f) any other Event of Default specified with respect
to Securities of such series as contemplated by Section 301.
SECTION 802. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default shall have occurred and be
continuing with respect to Securities of any series at the time
Outstanding, either the Trustee or the Holders of not less than
33% in principal amount of the Outstanding Securities of such
series may declare the principal amount (or, if any of such
Securities are Discount Securities, such portion of the principal
amount thereof as may be specified by their terms as contemplated
by Section 301) of all of such Securities to be due and payable
immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon receipt by the Company of
notice of such declaration, such principal amount (or specified
amount thereof) shall become immediately due and payable;
provided, however, that if an Event of Default shall have
occurred and be continuing with respect to more than one series
of Securities, the Trustee or the Holders of not less than 33% in
aggregate principal amount of the Outstanding Securities of all
such series, considered as one class, may make such declaration
of acceleration, and not the Holders of the Securities of any one
of such series.
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 such Securities;
(2) the principal of, and premium, if any, on,
all such Securities which have become due, otherwise
than by such declaration of acceleration, and interest
thereon at the rate or rates prescribed therefor;
(3) to the extent that payment of such interest
is lawful, interest upon overdue interest at the rate
or rates prescribed therefor;
(4) all amounts due to the Trustee under Section
909;
and
(b) any other Event or Events of Default with respect
to such Securities, 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 with respect to which such Event of
Default shall have occurred, the whole amount then due and
payable on such Securities for principal, 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 or, if
no such rate or rates shall be prescribed, at the rate or rates
borne by such Securities at the time of such Event of Default,
and, in addition thereto, such further amount as shall be
sufficient to cover any amounts due to the Trustee under Section
909.
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 any Securities
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 such Securities by such appropriate
judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 804. Trustee May File Proofs of Claim.
In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the
property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of
the Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment
of overdue principal or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of
principal, premium, if any, and interest, if any, owing and
unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim
for amounts due to the Trustee under Section 909) 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 909.
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.
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 909;
Second: To the payment of the amounts then due and
unpaid upon the Securities for principal of and premium, if
any, and interest, if any, in respect of which or for the
benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal,
premium, if any, and interest, if any, respectively; and
Third: To the Company.
SECTION 807. Limitation on Suits.
No Holder shall have any right to institute any
proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless:
(a) such Holder shall have previously given written
notice to the Trustee of a continuing Event of Default with
respect to the Securities of such series;
(b) the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of
all series in respect of which an Event of Default shall
have occurred and be continuing, considered as one class,
shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(c) such Holder or Holders shall have offered to the
Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity shall have failed to
institute any such proceeding; and
(e) no direction inconsistent with such written
request shall have been given to the Trustee during such
60-day period by the Holders of a majority in aggregate
principal amount of all Outstanding Securities 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 interest, if any, on, such Security
on the Stated Maturity or Maturities therefor (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 or affected 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 Securities of any series, the Holders of
a majority in principal amount of the Outstanding Securities of
such series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the
Trustee hereby, with respect to such Securities; provided,
however, that if an Event of Default shall have occurred and be
continuing with respect to more than one such series of
Securities, the Holders of a majority in aggregate principal
amount of the Outstanding Securities of all such series,
considered as one class, shall have the right to make such
direction, and not the Holders of the Securities of any one of
such series; and provided, further, that
(a) such direction shall not be in conflict with any
rule of law or with this Indenture, and would not involve
the Trustee in personal liability in circumstances where
indemnity, in the Trustee's sole discretion, would not be
adequate, and
(b) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with 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, such Securities, or
(b) in respect of a covenant or provision hereof which
under Section 1202 cannot be modified or amended without the
consent of each such Holder;
provided, however, that if any such default shall have occurred
and be continuing with respect to more than one such series of
Securities, the Holders of a majority in aggregate principal
amount of the Outstanding Securities of all such series,
considered as one class, shall have the right to waive such
default, and not the Holders of the Securities of any one such
series.
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 of
each Security by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture,
or in any suit against the Trustee for any action taken, suffered
or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant
in such suit, having due regard to the merits and good faith of
the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted
by the Company, to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in aggregate principal amount of the
Outstanding Securities of all series in respect of which such
suit may be brought, considered as one class, or to any suit
instituted by any Holder for the enforcement of the payment of
the principal of, or premium, if any, or interest, if any, on,
any Security on or after the Stated Maturity or Maturities
expressed in such Security (or, in the case of the redemption of
any Security, on or after its 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 its covenants or
its 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.
900.
ARTICLE NINE
The Trustee
SECTION 901. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which
shall be a corporation organized and doing business under the
laws of the United States of America, any State thereof or the
District of Columbia or such other corporation or person
permitted to act as Trustee by the Commission, which (i) shall be
authorized under such laws to exercise corporate trust powers,
(ii) shall have a combined capital and surplus of at least
$10,000,000, (iii) shall be subject to supervision or examination
by Federal, state or District of Columbia authority or such other
authority as the Commission shall permit, and (iv) shall be
qualified and eligible under this Article. 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. Neither the Company nor any
Person directly or indirectly controlling, controlled by, or
under common control with the Company shall serve as Trustee. 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 902. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of
Default with respect to Securities of any series,
(1) the Trustee undertakes to perform, with respect to
Securities of such series, such duties and only such duties
as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may, with respect to Securities of such series,
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the
case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default with respect to
Securities of any series shall have occurred and be continuing,
the Trustee shall exercise, with respect to Securities of such
series, such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed
to relieve the Trustee from liability for its own negligent
action, its own negligent failure to act, or its own wilful
misconduct, except that
(1) this Section 902(c) shall not be construed to
limit the effect of Section 902(a);
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or
Officers, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to
any action affecting Outstanding Securities of one or more
series taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority
in principal amount of such Outstanding Securities relating
to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this
Indenture with respect to such Outstanding Securities; and
(4) 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.
(d) 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 903. Notice of Defaults.
Within 90 days after the occurrence of any default
hereunder known to the Trustee with respect to the Securities of
any series, the Trustee shall give to all Holders of Securities
of such series, notice of such default, unless such default shall
have been cured or waived; provided, however, that, except in the
case of a default in the payment of the principal of, or premium,
if any, or interest, if any, on, any Security of such series or
in the payment of any sinking or analogous fund installment with
respect to Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the board
of directors, the executive committee or a trust committee of
directors or Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the interest
of the Holders of Securities of such series; and provided,
further, that in the case of any default of the character
specified in Section 801(c) with respect to Securities of such
series, no such notice to Holders shall be given until at least
90 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
with respect to Securities of such series.
SECTION 904. Certain Rights of Trustee.
Subject to the provisions of Section 902:
(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 action 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 Officers' Certificate;
(d) the Trustee may consult with counsel and the
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 be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys and the
Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed
with due care by it hereunder; and
(h) the Trustee shall not be charged with knowledge of
any Event of Default with respect to the Securities of any
series for which it is acting as Trustee unless either (1) a
Responsible Officer of the Trustee assigned to the group of
the Trustee responsible for corporate trustee administration
(or any successor division or department 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 905. 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 other agent appointed hereunder assumes any
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
other agent appointed hereunder shall be accountable for the use
or application by the Company of Securities or the proceeds
thereof.
SECTION 906. May Hold Securities.
The Trustee and any other agent appointed hereunder, in
its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 907 and 910, may
otherwise deal with the Company with the same rights it would
have if it were not either the Trustee or such agent.
SECTION 907. 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 908. 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 otherwise agreed with
the Company.
SECTION 909. 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 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 any such
expense, disbursement or advance as may be attributable to
its negligence, wilful misconduct or bad faith; and
(c) indemnify the Trustee for, and to hold it harmless
from and against, any and all loss, damage, claims,
liability or expense reasonably incurred without negligence,
willful misconduct or bad faith on its part, arising out of
or in connection with the acceptance or administration of
the trust or trusts hereunder, including liability which the
Trustee may incur as a result of failure to withhold, pay or
report any tax, assessment or other governmental charges and
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.
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, except as otherwise provided in
Section 703. "Trustee" for purposes of this Section shall
include any predecessor Trustee; provided, however, that the
negligence, wilful misconduct or bad faith of any Trustee
hereunder shall not affect the rights of any other Trustee
hereunder.
In addition to the rights provided to the Trustee
pursuant to the provisions of the immediately preceding paragraph
of this Section 909, when the Trustee incurs expenses or renders
services in connection with an Event of Default specified in
Section 801(d) or Section 801(e), the expenses (including the
reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses
of administration under any applicable Federal or State
bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the
termination of this Indenture.
SECTION 910. 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 911. 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 Section 912.
(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 912 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.
(d) If at any time:
(1) the Trustee shall fail to comply with Section
910(a) 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 901 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) any
Holder who has been a bona fide Holder for at least six months
may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of
the Trustee with respect to all Securities and the appointment of
a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, 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 912. If, within one year
after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to
the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 911, become the
successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the
Company or the Holders and accepted appointment in the manner
required by Section 912, any Holder who has been a bona fide
Holder of a Security of such series for at least six months may,
on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation
and each removal of the Trustee with respect to the Securities of
any series and each appointment of a successor Trustee with
respect to the Securities of any series by mailing written notice
of such event by first-class mail, postage prepaid, to all
Holders of Securities of such series as their names and addresses
appear in the Security Register. Each notice shall include the
name of the successor Trustee with respect to the Securities of
such series and the address of its Corporate Trust Office.
SECTION 912. 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;
subject nevertheless to its lien provided for in Section 909;
provided, however, that the retiring Trustee shall not be
required to indemnify the successor Trustee against any liability
and expense incurred as a result of the appointment of the
successor Trustee.
(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
such successor Trustee with respect to the Securities of one or
more series shall execute and deliver an indenture supplemental
hereto wherein each such 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 such 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 hereunder administered by any
other such Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein and
each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of
such successor Trustee relates; 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, subject nevertheless to its lien provided for in Section
909; provided, however, that the retiring Trustee shall not be
required to indemnify the successor Trustee against any liability
and expense incurred as a result of the appointment of the
successor Trustee.
(c) Upon request of any such successor Trustee, the
Company shall execute any instruments which fully vest in and
confirm to such successor Trustee all such rights, powers and
trusts referred to in subsection (a) or (b) of this Section, as
the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee
shall be qualified and eligible under this Article.
SECTION 913. 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 914. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or
Agents with respect to the Securities of one or more series, or
any Tranche thereof, which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series or
Tranche issued upon original issuance, exchange, registration of
transfer or partial redemption thereof or pursuant to Section
306, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the
Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation
organized and doing business under the laws of the United States
of America, any State or territory thereof or the District of
Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than
$10,000,000 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 and shall make written notice of such
appointment by first-class mail, postage prepaid, to all Holders.
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 Company agrees to pay to each Authenticating Agent,
from time to time, reasonable compensation for its services under
this Section and to reimburse each Authenticating Agent, from
time to time, for its reasonable out-of-pocket expenses incurred
under this Section.
If an appointment with respect to the Securities of one
or more series, or any Tranche thereof, shall be made pursuant to
this Section, the Securities of such series or Tranche 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.
THE BANK OF NEW YORK
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 (which, if so requested by the Company, may
be an Affiliate of the Company) having an office in a Place of
Payment designated by the Company with respect to such series of
Securities.
1000.
ARTICLE TEN
Holders' Lists and Reports by Trustee and Company
SECTION 1001. Company to Furnish Trustee Names and Addresses of
Holders.
The Company shall furnish or cause to be furnished to
the Trustee
(a) semiannually, not more than 15 days after January
15 and July 15, in each year, a list, in such form as the
Trustee may reasonably require, containing all the
information in the possession or control of the Company, or
any of its Paying Agents other than the Trustee, as to the
names and addresses of the Holders as of the preceding
January 1 or July 1, as the case may be, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of
any such request, a list of similar form and content as of a
date not more than 15 days prior to the time such list is
furnished;
provided, however, the Company may exclude from any such list
names and addresses provided by it to the Trustee in its capacity
as Security Registrar.
SECTION 1002. Preservation of Information; Communications to
Holders.
(a) The Trustee shall preserve, in as current a form
as is reasonably practicable, the names and addresses of Holders
contained in the most recent list furnished to the Trustee as
provided in Section 1001 and the names and addresses of Holders
received by the Trustee in its capacity as Securities Registrar.
The Trustee may destroy any list furnished to it as provided in
Section 1001 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other
Holders with respect to their rights under this Indenture or
under the Securities, and the corresponding rights and privileges
of the Trustee, shall be as provided in the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and
holding the same, agrees with the Company and the Trustee that
neither the Company nor the Trustee nor any agent of either of
them shall be held accountable by reason of the disclosure of
information as to the names and addresses of the Holders made
pursuant to the Trust Indenture Act, regardless of the source
from which such information was derived, and that the Trustee
shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 312(b) of the Trust
Indenture Act, or any successor section of such Act.
SECTION 1003. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as
may be required pursuant to the Trust Indenture Act, at the times
and in the manner provided pursuant thereto.
(b) Reports so required to be transmitted at stated
intervals of not more than 12 months shall be dated as of July
1, in each calendar year and shall be transmitted no later than
60 days after each such July 1, commencing with the first July 1
after the first issuance of Securities under this Indenture.
SECTION 1004. Reports by Company.
The Company shall file with the Trustee and with the
Commission, and transmit to Holders, such information, documents
and other reports, and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the
manner provided in the Trust Indenture Act; provided that such
information, documents or reports required to be filed with the
Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 shall be filed with the Trustee
within 15 days after the same is required to be filed with the
Commission. The Company also shall comply with the other
provisions of Trust Indenture Act Section 314(a).
1100.
ARTICLE ELEVEN
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 1101. Company May Consolidate, Etc., Only on Certain
Terms.
The Company shall not consolidate with or merge into
any other corporation or convey, 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; and
(b) immediately after giving effect to such
transaction, no Event of Default, and no event which, after
notice or lapse of time, or both, would become an Event of
Default, shall have happened and be continuing; and
(c) any such lease shall provide that it will remain
in effect so long as any Securities are Outstanding; and
(d) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance,
transfer or lease and such indenture supplemental hereto
complies with this Article and that all conditions precedent
herein provided for relating to such transactions have been
complied with.
SECTION 1102. Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by
the Company into any other corporation or any conveyance,
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, the
predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities Outstanding
hereunder.
1200.
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 to the covenants of the Company for the
benefit of the Holders of all or any series of Securities,
or any Tranche thereof (and if such covenants are to be for
the benefit of less than all Securities, stating that such
covenants are expressly being included solely for the
benefit of such series or Tranche) 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; 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, or a Tranche thereof, in any
material respect, such change, elimination or addition shall
become effective with respect to such series or Tranche only
when no Security of such series or Tranche remains
Outstanding; or
(e) to provide collateral security for the Securities;
or
(f) to establish, when authorized by a Board
Resolution, the form or terms of Securities of any series or
Tranche as contemplated by Sections 201 and 301; or
(g) to evidence and provide for the acceptance of
appointment hereunder by a separate or successor Trustee
with respect to the Securities of one or more series and to
add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 912(b), or
(h) to provide for the procedures required to permit
the Company to utilize, at its option, a non-certificated
system of registration for all, or any series or Tranche 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, or any Tranche thereof,
shall be payable, (2) all or any series of Securities, or
any Tranche thereof, may be surrendered for registration of
transfer, (3) all or any series of Securities, or any
Tranche thereof, may be surrendered for exchange and (4)
notices and demands to or upon the Company in respect of all
or any series of Securities, or any Tranche thereof, and
this Indenture may be served, provided, however, that any
such place shall be located in New York, New York or be the
principal office of the Company; or
(j) to provide for the payment by the Company of
additional amounts in respect of certain taxes imposed on
certain Holders and for the treatment of such additional
amounts as interest and for all matters incidental thereto;
or
(k) to provide for the issuance of Securities
denominated in a currency other than Dollars or in a
composite currency and for all matters incidental thereto;
or
(l) to provide for the issuance of Securities payable
to bearer and for all matters incidental thereto; or
(m) 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
provisions with respect to matters or questions arising
under this Indenture, provided that such other provisions
shall not adversely affect the interests of the Holders of
Securities of any series or Tranche 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
effect such changes or elimination; or
(z) if, by reason of any such amendment, one or more
provisions 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 shall be deemed to be
incorporated herein by reference or otherwise, or otherwise
made applicable hereto, and shall no longer be required to
be contained herein, the Company and the Trustee may,
without the consent of any Holders, enter into an indenture
supplemental hereto to effect the elimination of such
provisions.
SECTION 1202. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a
majority in aggregate principal amount of the Securities of all
series then Outstanding under this Indenture, considered as one
class, by Act of said Holders delivered 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; 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 if the
Securities of any series shall have been issued in more than one
Tranche and if the proposed supplemental indenture shall directly
affect the rights of the Holders of Securities of one or more,
but less than all, of such Tranches, then the consent only of the
Holders of a majority in aggregate principal amount of the
Outstanding Securities of all Tranches so directly affected,
considered as one class, shall be required; and provided,
further, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security of each series
or Tranche so directly affected,
(a) change the Stated Maturity of the principal of, or
any installment of principal of or interest on, any
Security, or reduce the principal amount thereof or the rate
of interest thereon or the method of calculating such rate
(or the amount of any installment of interest thereon) or
any premium payable upon the redemption thereof, or reduce
the amount of the principal of a Discount Security that
would be due and payable upon a declaration of acceleration
of the Maturity thereof pursuant to Section 802, or impair
the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the
case of redemption, on or after the Redemption Date), or
(b) reduce the percentage in principal amount of the
Outstanding Securities of such series or Tranche, 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, or
(c) modify any of the provisions of this Section or
Section 813, except to increase the percentages in principal
amount referred to in this Section or Section 813 or to
provide that other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby; provided, however,
that this clause shall not be deemed to require the consent
of any Holder with respect to changes in the references to
"the Trustee" and concomitant changes in this Section, or
the deletion of this proviso, in accordance with the
requirements of Sections 912(b) and 1201(g).
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 of one or more Tranches
thereof, or which modifies the rights of the Holders of
Securities of such series or Tranches 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 or Tranche.
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 902) 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, 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, or any Tranche thereof,
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, or any Tranche thereof, so modified as to conform, in
the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series or Tranche.
SECTION 1207. Modification Without Supplemental Indenture.
If the terms of any particular series, or any Tranche
thereof, of Securities shall have been established by a Board
Resolution, an Officers' Certificate pursuant to a Board
Resolution, a Company Order or procedures, acceptable to the
Trustee, specified in a Company Order 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 further Board Resolution or further
Officers' Certificate pursuant to a Board Resolution, as the case
may be, delivered to, and accepted by, the Trustee; provided,
however, that such Board Resolution or Officers' 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 Board Resolution or Officers' Certificate shall
be deemed to be a "supplemental indenture" for purposes of
Section 1204 and 1206.
1300.
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
series, or one or more Tranches thereof, 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 or Tranches.
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 series, or one or more
Tranches thereof, 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 360 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 series, or
one or more Tranches thereof, by the Company or by the Holders of
33% in aggregate principal amount of all of such series and
Tranches, 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, the
Company or the Holders of Securities of such series and Tranches
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 in the manner
provided in Section 106.
(c) Any meeting of Holders of Securities of one or
more series, or one or more Tranches thereof, shall be valid
without notice if the Holders of all Outstanding Securities of
such series or Tranches are present in person or by proxy and if
representatives of the Company and the Trustee are present, or if
notice is waived in writing before or after the meeting by the
Holders of all Outstanding Securities of such series or Tranches,
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 series, or one or more Tranches
thereof, a Person shall be (a) a Holder of one or more
Outstanding Securities of such series or Tranches, 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 or Tranches by such Holder or Holders. The only Persons
who shall be entitled to attend any meeting of Holders of
Securities of any series or Tranche 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 and
Tranches 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 and Tranches; 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 and Tranches, considered as
one class, the Persons entitled to vote such specified percentage
in principal amount of the Outstanding Securities of such series
and Tranches, 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 and Tranches, be
dissolved. In any other case the meeting may be adjourned for
such period as may be determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may
be further adjourned for such period as may be determined by the
chairman of the meeting prior to the adjournment of such
adjourned meeting. Except as provided by Section 1305(e), notice
of the reconvening of any meeting adjourned for more than 30 days
shall be given in the manner provided in Section 106 not less
than ten days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of an adjourned
meeting shall state expressly the percentage, as provided above,
of the principal amount of the Outstanding Securities of such
series and Tranches 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 and
Tranches with respect to which such meeting shall have been
called, considered as one class; provided, however, that, except
as so limited, any resolution with respect to any action which
this Indenture expressly provides may be taken by the Holders of
a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of such series and
Tranches, 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 and Tranches, 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 and Tranches 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 to be 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. With the consent of the Company, 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 calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by vote of
the Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of all series and Tranches
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 meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote, except as a Holder of a
Security or proxy.
(e) Any meeting duly called pursuant to Section 1302
at which a quorum is present may be adjourned, from time to time,
by Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of all series and Tranches
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 and Tranches
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 provided
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.
SECTION 1308. Record Date.
The Company may set a record date for the purpose of
determining the Holders of the Securities entitled to vote or
consent, whether at a meeting thereof or otherwise, to any action
authorized or permitted by the Indenture. If the Company should
set a record date, that date shall be no less than 15 nor more
than 30 days preceding the first solicitation of such vote or
consent or notice of such meeting.
1400.
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.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the day and
year first above written.
ATLANTIC CITY ELECTRIC COMPANY
By:________________________
(L.M. Walters)
Vice President
[SEAL]
ATTEST:
__________________________
(James E. Franklin, II)
Secretary
THE BANK OF NEW YORK, Trustee
By:________________________
( )
Vice President
[SEAL]
ATTEST:
__________________________
( )
Assistant Vice President
Exhibit 4f
[Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street,
New York, New York) to the issuer or its agent for registration
of transfer, exchange or payment, and any certificate to be
issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of The
Depository Trust Company and any payment is made to Cede & Co.,
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]
No.
ATLANTIC CITY ELECTRIC COMPANY
Unsecured Medium Term Note, Series A
CUSIP: Issue Date:
Stated Maturity Date: Interest Rate:
Principal Amount:
Redeemable: Yes ___ No ___
In Whole: Yes ___ No ___
In Part: Yes ___ No ___
Initial Redemption Date:
Redemption Limitation Date:
Initial Redemption Price:
Reduction Percentage:
ATLANTIC CITY ELECTRIC COMPANY, a corporation of the
State of New Jersey (herein called the "Company", which term
includes any successor corporation under the Indenture referred
to on the reverse hereof), for value received, hereby promises to
pay to CEDE & CO. or registered assigns, the principal amount
specified above on the Stated Maturity Date specified above, and
to pay interest thereon from the Issue Date specified above or
from the most recent Interest Payment Date to which interest has
been paid or duly provided for, semi-annually in arrears on
March 1 and September 1 in each year, commencing (except as
provided in the following sentence) with the Interest Payment
Date next succeeding the Issue Date specified above, at the
Interest Rate per annum specified above, until the principal
hereof shall have been paid or duly provided for. The interest
so payable, and punctually paid or duly provided for, on any
Interest Payment Date, as provided in such Indenture, shall be<PAGE>
paid to the
Person in whose name this Security (or one or more
Predecessor Securities) shall have been registered as the close
of business on the Regular Record Date with respect to such
Interest Payment Date, which shall be the February 15 or
August 15 (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date; provided, however,
that, if the Issue Date of this Security shall be after a Regular
Record Date and before the corresponding Interest Payment Date,
payment of interest shall commence on the second Interest Payment
Date succeeding such Issue Date and shall be paid to the Person
in whose name this Security was registered on the Regular Record
Date for such second Interest Payment Date; and provided,
further, that interest payable on the Stated Maturity Date shall
be paid to the Person to whom principal shall be paid. Any such
interest not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular
Record Date and shall be paid as provided in said Indenture.
Payment of the principal of, and premium, if any, and
interest on, this Security shall be made at the office or agency
of the Company maintained for such purpose in the Borough of
Manhattan, The City of New York, New York, in such coin or
currency of the United States of America as at the time of
payment shall be legal tender for payment of public and private
debts; provided, however, that, at the option of the Company,
payment of interest may be made by check mailed to the address of
the Person entitled thereto as such address shall appear in the
Security Register; and provided further, that payment of
principal, and premium, if any, and interest, payable on the
Stated Maturity Date specified above or upon redemption, at the
request of the Holder, will be made at said office or agency in
immediately available funds upon presentation of this Security.
This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities"),
issued and issuable in one or more series under an Indenture,
dated as of March 1, 1997 (such Indenture, as originally executed
and delivered and as thereafter supplemented and amended,
together with any constituent instruments establishing the terms
of particular Securities, being herein called the "Indenture"),
from the Company to The Bank of New York, as trustee (herein
called the Trustee, which term includes any successor trustee
under the Indenture), to which Indenture reference is hereby made
for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and
the Holders of the Securities and of the terms upon which the
Securities have been, and will be, authenticated and delivered.
The acceptance of this Security shall be deemed to constitute the
consent and agreement by the Holder hereof to all of the terms
and provisions of the Indenture. This Security is one of the
series designated on the face hereof, limited in aggregate
principal amount to $150,000,000.
If any Interest Payment Date, any Redemption Date or
the Stated Maturity Date, shall not be a Business Day, payment of
the amounts due on this Security on such date may be made on the
next succeeding Business Day; and no interest shall accrue on
such amounts for the period from and after such Interest Payment
Date, Redemption Date or Stated Maturity Date, as the case may
be.
If so specified on the face hereof, this Security is
subject to redemption at any time on or after the Initial
Redemption Date specified on the face hereof, as a whole or, if
specified, in part, at the election of the Company, at the
applicable redemption price (as described below) plus accrued
interest to the date fixed for redemption. Such redemption price
shall be the Initial Redemption Price specified on the face
hereof for the twelve-month period commencing on the Initial
Redemption Date and shall decline for the twelve-month period
commencing on each anniversary of the Initial Redemption Date by
a percentage of principal amount equal to the Reduction
Percentage specified on the face hereof until such redemption
price is 100% of the principal amount of this Security to be
redeemed.
Notwithstanding the foregoing, the Company may not,
prior to the Redemption Limitation Date, if any, specified on the
face hereof, redeem any Securities of this series as contemplated
above as a part of, or in anticipation of, any refunding
operation by the application, directly or indirectly, of moneys
borrowed having an effective interest cost to the Company
(calculated in accordance with generally accepted financial
practice) of less than the effective interest cost to the Company
(similarly calculated) of this Security.
Notice of redemption shall be given by mail to Holders
of Securities, not less than 30 days nor more than 90 days prior
to the date fixed for redemption, all as provided in the
Indenture. As provided in the Indenture, notice of redemption as
aforesaid may state that such redemption shall be conditional
upon the receipt by the Trustee of money sufficient to pay the
Redemption Price of, and interest, if any, on, this Security on
or prior to the date fixed for such redemption. A notice of
redemption so conditioned shall be of no force or effect if such
money is not so received; and, in such event, the Company shall
not be required to redeem this Security.
The Company shall not be required to (a) register the
transfer of or exchange Securities of this series during a period
beginning at the opening of business 15 days before the day of
the mailing of a notice of redemption of Securities selected for
redemption and ending at the close of business on the day of such
mailing or (b) issue, to register the transfer of or to exchange
any Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in
part.
In the event of redemption of this Security in part
only, a new Security or Securities of this series and Tranche, of
like tenor, for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the surrender of this
Security.
If an Event of Default with respect to Securities of
this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as
therein provided, the Trustee to enter into one or more
supplemental indentures for the purpose of adding any provisions
to, or changing in any manner or eliminating any of the
provisions of, the Indenture with the consent of the Holders of
not less than a majority in aggregate principal amount of the
Securities of all series then Outstanding under the Indenture,
considered as one class; provided, however, that if there shall
be Securities of more than one series Outstanding under the
Indenture 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 if the Securities of any series shall have been
issued in more than one Tranche and if the proposed supplemental
indenture shall directly affect the rights of the Holders of
Securities of one or more, but less than all of such Tranches,
then the consent only of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all Tranches so
directly affected, considered as one series, shall be required.
The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of
any series then Outstanding, on behalf of the Holders of all
Securities of such series, to waive certain past defaults under
the Indenture and their consequences. Any such consent or waiver
by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and
of any Security issued upon the registration of transfer hereof
or in exchange therefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision
of this Security or of the Indenture shall or impair the
obligation of the Company, which is absolute and unconditional to
pay the principal of, and premium, if any, and interest, on, this
Security at the times, place and rate, in the coin or currency,
and in the manner, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is
registrable in the Security Register, upon surrender of this
Security for registration of transfer at the Corporate Trust
Office of the Trustee or such other office or agency as may be
designated by the Company for such purpose in the Borough of
Manhattan, The City of New York, New York, duly endorsed by, or
accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in
writing, and, thereupon, one or more new Securities of this
series and Tranche of authorized denominations and of like tenor
and aggregate principal amount will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only as
Registered Securities, without coupons, in integral multiples of
$1,000. As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series and
Tranche are exchangeable for a like aggregate principal amount of
Securities of the same series and Tranche, of any authorized
denominations, as requested by the Holder surrendering the same,
and of like tenor upon surrender of the Security or Securities to
be exchanged at the Corporate Trust Office of the Trustee or such
other office or agency shall be designated by the Company for
such purpose in the Borough of Manhattan, The City of New York,
New York.
[PROVISIONS WITH RESPECT TO VARIABLE RATE NOTES, IF ANY,
TO BE INSERTED]
No service charge shall be made for any such
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
Prior to due presentment of this 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
this Security is registered as the absolute owner hereof for all
purposes, whether or not this Security be overdue, and neither
the Company, he Trustee nor any such agent shall be affected by
notice to the contrary.
The Indenture and the Securities shall be governed by
and construed in accordance with the laws of the State of New
York.
All terms used in this Security which are defined in
the Indenture shall have the meanings defined to them in the
Indenture.
As provided in the Indenture, no recourse shall be had
for the payment of the principal of, or premium, if any, or
interest 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 the 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 the 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, 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), because of the
indebtedness thereby authorized or under or by reason of any of
the obligations, covenants or agreements contained in the
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 the Indenture and the
issuance of the Securities.
Unless the certificate of authentication hereon has
been executed by the Trustee by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed under its corporate seal as of the
date of authentication set forth below.
Attest
[SEAL]
Secretary
ATLANTIC CITY ELECTRIC COMPANY
By
President
This is one of the Securities of the series designated
in accordance with, and referred to in, the within-mentioned
Indenture.
Date of Authentication:
THE BANK OF NEW YORK, as Trustee
By:
Authorized Signatory
_________________________
FOR VALUE RECEIVED, the undersigned hereby sells,
assigns and transfers unto
[please insert social security or
other identifying number of assignee]
[name and address of transfer must be printed or typewritten]
the within Security of ATLANTIC CITY ELECTRIC COMPANY and does
hereby irrevocably constitute and appoint
attorney, to transfer said Security on the books of the within-
mentioned Company, with full power of substitution in the
premises.
Dated:
Exhibit 5a
March 17, 1997
Atlantic City Electric Company
6801 Black Horse Pike
Egg Harbor Township, New Jersey 08234
Dear Ladies and Gentlemen:
With reference to the Registration Statement on Form
S-3 (the "Registration Statement") of Atlantic City Electric
Company (the "Company") filed under the Securities Act of
1933, relating to the issuance and sale of not in excess of
$150,000,000 aggregate principal amount of Debt Securities,
under the Mortgage and Deed of Trust to Irving Trust Company
(now The Bank of New York), as Trustee, dated January 15,
1937, as supplemented and amended (said Mortgage and Deed of
Trust, as supplemented and amended and to be supplemented and
amended being hereinafter called the "Mortgage"), and/or under
an Indenture to be entered into between the Company and The
Bank of New York, as Trustee (the "Indenture"), I wish to
advise you as follows and I consent that this opinion may be
filed as an exhibit to said Registration Statement.
I am of the opinion that the Company is a corporation
duly organized and existing under the laws of the State of New
Jersey and is duly qualified to do business as a foreign
corporation in the Commonwealth of Pennsylvania.
I am further of the opinion that, when Debt
Securities have been issued and sold and the purchase price
thereof has been paid in accordance with the transactions
proposed in the Registration Statement, as the same may be
amended, and when the steps mentioned in the next paragraph
have been taken, such Debt Securities will be valid and
legally binding obligations of the Company and entitled to the
security afforded by the Mortgage, except as the same may be
limited by the laws of the State of New Jersey or of the
Commonwealth of Pennsylvania, or both, affecting the remedies
for the enforcement of the security provided for therein, and
subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws
relating to or affecting creditor's rights generally, general
equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and
fair dealing.
The steps to be taken which are referred to in the
next preceding paragraph are:
(1) Appropriate definitive section by the Board of
Directors of the Company or an authorized committee
thereof with respect to the proposed transactions set
forth in the Registration Statement;
(2) Appropriate action by and before the Board of
Public Utilities of the State of New Jersey with respect
to the Debt Securities then proposed to be issued and
sold;
(3) Execution and delivery and the recordation of
such Supplemental Indenture(s) as are required by the
Mortgage in all offices of record in the State of New
Jersey and the Commonwealth of Pennsylvania in which the
Mortgage has been recorded;
(4) Execution and delivery of the Indenture;
(5) Compliance with the Securities Act of 1933, as
amended, and the Trust Indenture Act of 1939; and
(6) Issuance and sale of the Debt Securities in
accordance with the Mortgage and/or Indenture and with
the corporate and governmental authorizations aforesaid.
I am further of the opinion that, except as noted
above, no consent of any governmental authority is necessary
for the execution and delivery of any indenture or
supplemental indenture(s) or for the issuance and sale of the
Debt Securities.
The statements made in the Prospectus which is part
of said Registration Statement in the paragraph "Security"
under the caption "Description of New Bonds" with respect to
the lien of the Mortgage securing the Debt Securities have
been reviewed by me. In my opinion said statements fairly
describe the substantial effect of titles to property and lien
of the Mortgage, insofar as such matters are governed by the
laws of the State of New Jersey or of the Commonwealth of
Pennsylvania, and do not omit to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading.
In rendering the opinion set forth above, I have, to
the extent I deemed necessary, consulted with Pennsylvania
counsel as to matters of conformity to the laws of the
Commonwealth of Pennsylvania and have relied upon opinions of
such counsel as to such matters.
I hereby consent to the statements with regard to me
appearing in said Registration Statement under the caption
"Experts," to the reference to me appearing in said
Registration Statement under the caption "Legal Opinions" and
in the opinion of Simpson Thacher & Bartlett filed as Exhibit
5b therewith.
Very truly yours,
By: /s/ James E. Franklin II
James E. Franklin II
Exhibit 5b
March 17, 1997
Atlantic City Electric Company
6801 Black Horse Pike
Egg Harbor Township, New Jersey 08234
Dear Sirs:
With reference to the Registration Statement on Form
S-3 (the "Registration Statement") of Atlantic City Electric
Company (the "Company") filed pursuant to the Securities Act
of 1933, relating to the issuance and sale by the Company in
one or more transactions from time to time of its Debt
Securities (the "Debt Securities"), under the Mortgage and
Deed of Trust to The Bank of New York, as Trustee, dated
January 15, 1937, as supplemented and amended and to be
supplemented and amended (said Mortgage and Deed of Trust, as
supplemented and amended and to be supplemented and amended
being hereinafter called the "Mortgage"), and/or an Indenture
to be entered into between the Company and The Bank of New
York, as Trustee (the "Indenture"), we wish to advise you as
follows:
We are of the opinion that, when the Debt Securities
have been issued and sold and the purchase price thereof has
been paid in accordance with the transactions proposed in the
Registration Statement, as the same may be amended, and when
the steps mentioned in the next paragraph have been taken,
such Debt Securities will be valid and legally binding
obligations of the Company, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and
an implied covenant of good faith and fair dealing.
The steps to be taken which are referred to in the
next preceding paragraph are:
1. Appropriate definitive section by the Board of
Directors of the Company or an authorized committee
thereof with respect to the proposed transactions set
forth in the Registration Statement;
2. Appropriate action by and before the Board of
Public Utilities, State of New Jersey with respect to the
proposed transactions set forth in the Registration
Statement;
3. Execution and delivery of one or more proposed
supplemental indentures and the recording and filing
thereof as required by the Mortgage;
4. Execution and delivery of the Indenture;
5. Compliance with the Securities Act of 1933, as
amended, and the Trust Indenture Act of 1939, as amended;
and
6. Issuance and sale of the Debt Securities in
accordance with the Mortgage and/or Indenture and the
corporate and governmental authorizations aforesaid.
We are further of the opinion that no consent of any
federal regulatory agency is necessary for the issuance and
sale of the Debt Securities by the Company.
Insofar as this opinion relates to any matter
governed by laws of any state other than the State of New
York, we base it upon the opinion of James E. Franklin II,
Esq., to be filed as an exhibit to said Registration
Statement. This opinion does not purport, and is not
intended, to cover any questions relating to property titles,
recordation or the lien of the Mortgage.
We consent to the filing of this opinion as an
exhibit to the Registration Statement and to the use of our
name and the inclusion of the statement in regard to us set
forth in the Registration Statement under the caption "Legal
Opinions".
Very truly yours,
/s/ Simpson Thacher & Bartlett
SIMPSON THACHER & BARTLETT
Exhibit 23a
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this
Registration Statement of Atlantic City Electric
Company on Form S-3 of our report dated February 7,
1997, appearing in the Annual Report on Form 10-K of
Atlantic City Electric company for the year ended
December 31, 1996 and to the reference to us under the
heading "Experts" in the Prospectus, which is part of
this Registration Statement.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Parsippany, New Jersey
March 17, 1997
Exhibit 24
ATLANTIC CITY ELECTRIC COMPANY
POWER OF ATTORNEY
Each of the undersigned directors or officers of
Atlantic City Electric Company, a New Jersey corporation, does
hereby appoint J.L. JACOBS, M.J. BARRON, J.E. FRANKLIN II and
L.M. WALTERS and each of them (with power to act without the
other), including full power of substitution and revocation, as
the undersigned's true and lawful attorneys-in-fact and agents,
with full power and authority to act in all capacities for him
and in his name, place and stead in connection with (a) the
filing with the Securities and Exchange Commission, pursuant to
the Securities Act of 1933, as amended, of a registration
statement(s) on Form S-3 which pertains to the offering of one or
more series of Debt Securities in the aggregate principal amount
of not more than $150,000,000 and any and all amendments thereto,
including post-effective amendments, and (b) in connection with
the preparation, delivery and filing of any and all
registrations, qualifications or notifications under the
applicable securities law of any and all states or other
jurisdictions with respect to the long-term debt to be sold
thereunder. Such attorneys-in-fact and agents, or any of them,
are also granted full power and authority to execute and deliver
for each of the undersigned and in his name, place and stead all
such other documents or instruments and to take such further
action as they, or any of them, deem appropriate. Each of the
undersigned hereby ratifies and adopts as his own act and deed
the acts lawfully taken by said attorneys-in-fact and agents, or
any of them, or by their respective substitutes pursuant to the
powers and authorities granted herein.
IN WITNESS WHEREOF, the undersigned have executed this
document as of this 17th day of March, 1997.
/s/ J.L. Jacobs
J.L. Jacobs
/s/ M.I. Harlacher
M.I. Harlacher
/s/ M.J. Barron
M.J. Barron
/s/ H.K. Levari
H.K. Levari
/s/ M.J. Chesser
M.J. Chesser
/s/ M.T. Powell
M.T. Powell
/s/ J.E. Franklin II
J.E. Franklin II
Exhibit 25a
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 BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(Jurisdiction of incorporation (I.R.S. Employer
if not a U.S. national bank) Identification No.)
48 Wall Street, New York, New York 10286
(Address of principal executive offices) (Zip code)
_________________
ATLANTIC CITY ELECTRIC COMPANY
(Exact name of obligor as specified in its charter)
New Jersey 21-0398280
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
6801 Black Horse Pike
Egg Harbor Township, New Jersey 08234-4130
(Address of principal executive offices) (Zip code)
_________________
First Mortgage Bonds*
(Title of the indenture securities)
*Specific title(s) to be determined in connection with
sale(s) of First Mortgage Bonds.<PAGE>
Item 1. General Information.
Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising
authority to
which it is subject.
Superintendent of Banks 2 Rector Street, New York, N.Y.
of the State of New York 10006 and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza,
New York, N.Y. 10045
Federal Deposit Insurance 550 17th Street, N.W.,
Corporation Washington, D.C. 20429
New York Clearing House
Association New York, N.Y.
(b) Whether it is authorized to exercise corporate trust
powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee,
describe each such affiliation.
None. (See Note on page 2.)
Item 16. List of Exhibits.
Exhibits identified in parentheses below, on file
with the Commission, are incorporated herein by reference as an
exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture
Act of 1939 (the "Act") and Rule 24 of the Commission's Rules of
Practice.
1.- A copy of the Organization Certificate of The Bank of New
York (formerly Irving Trust Company) as now in effect,
which contains the authority to commence business and a
grant of powers to exercise corporate trust powers.
(Exhibit 1 to Amendment No. 1 to Form T-1 filed with
Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672
and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4.- A copy of the existing By-laws of the Trustee. (Exhibit 4
to Form T-1 filed with Registration Statement No. 33-
31019.)
6.- The consent of the Trustee required by Section 321(b) of
the Act. (Exhibit 6 to Form T-1 filed with Registration
Statement No. 33-44051.)
7.- A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority. <PAGE>
NOTE
Inasmuch as this Form T-1 is being filed prior to the
ascertainment by the Trustee of all facts on which to base a
responsive answer to Item 2, the answer to said Item is based on
incomplete information.
Item 2 may, however, be considered as correct unless
amended by an amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The
Bank of New York, a corporation organized and existing under the
laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in The City of New York, and State
of New York, on the 12th day of March, 1997.
THE BANK OF NEW YORK
By: MARY JANE MORRISSEY
Mary Jane Morrissey
Vice President<PAGE>
EXHIBIT 7
(Page 1 of 3)
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal
Reserve System, at the close of business September 30, 1996,
published in accordance with a call made by the Federal Reserve
Bank of this District pursuant to the provisions of the Federal
Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from
depository institutions:
Noninterest-bearing balances
and currency and coin. . . . . . . . . . . . . . . . . . . $ 4,404,522
Interest-bearing balances. . . . . . . . . . . . . . . . . . . . 732,833
Securities:
Held-to-maturity securities. . . . . . . . . . . . . . . . . . . 789,964
Available-for-sale securities. . . . . . . . . . . . . . . . . .2,005,509
Federal funds sold in domestic
offices of the bank:
Federal funds sold . . . . . . . . . . . . . . . . . . . . . . .3,364,838
Loans and lease financing
receivables:
Loans and leases, net of unearned
income . . . . . . . . . . . . . . . . . . . . 28,728,602
LESS: Allowance for loan and
lease losses . . . . . . . . . . . . . . . . . 584,525
LESS: Allocated transfer risk
reserve. . . . . . . . . . . . . . . . . . . . 429
Loans and leases, net of unearned
income, allowance, and reserve . . . . . . . . . . . . . . . 28,143,648
Assets held in trading accounts. . . . . . . . . . . . . . . . . 1,004,242
Premises and fixed assets (including
capitalized leases). . . . . . . . . . . . . . . . . . . . . . . .605,668
Other real estate owned. . . . . . . . . . . . . . . . . . . . . . . 41,238
Investments in unconsolidated subsid-
iaries and associated companies. . . . . . . . . . . . . . . . . 205,031
Customers' liability to this bank on
acceptances outstanding. . . . . . . . . . . . . . . . . . . 949,154
Intangible assets. . . . . . . . . . . . . . . . . . . . . . . 490,524
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . 1,305,839
Total assets . . . . . . . . . . . . . . . . . . . . . . . . . $44,043,010
<PAGE>
EXHIBIT 7
(Page 2 of 3)
LIABILITIES
Deposits:
In domestic offices. . . . . . . . . . . . . . . . . . . . . $20,441,318
Noninterest-bearing. . . . . . . . . . . . . . . 8,158,472
Interest-bearing . . . . . . . . . . . . . . . .12,282,846
In foreign offices, Edge and
Agreement subsidiaries, and IBFs . . . . . . . . . . . . . . 11,710,903
Noninterest-bearing. . . . . . . . . . . . . . . . .46,182
Interest-bearing . . . . . . . . . . . . . . . .11,664,721
Federal funds purchased in domestic
offices of the bank:
Federal funds purchased. . . . . . . . . . . . . . . . . . . 1,565,288
Demand notes issued to the U.S.
Treasury . . . . . . . . . . . . . . . . . . . . . . . . . . 293,186
Trading liabilities. . . . . . . . . . . . . . . . . . . . . . 826,856
Other borrowed money:
With original maturity of one year or less . . . . . . . . . 2,103,443
With original maturity of more than
one year . . . . . . . . . . . . . . . . . . . . . . . . . 20,766
Bank's liability on acceptances
executed and outstanding . . . . . . . . . . . . . . . . . . 951,116
Subordinated notes and debentures. . . . . . . . . . . . . . . 1,020,400
Other liabilities. . . . . . . . . . . . . . . . . . . . . . . 1,522,884
Total liabilities. . . . . . . . . . . . . . . . . . . . . . . 40,456,160
EQUITY CAPITAL
Common stock . . . . . . . . . . . . . . . . . . . . . . . . . 942,284
Surplus. . . . . . . . . . . . . . . . . . . . . . . . . . . . 525,666
Undivided profits and capital
reserves . . . . . . . . . . . . . . . . . . . . . . . . . . 2,129,376
Net unrealized holding gains (losses)
on available-for-sale securities . . . . . . . . . . . . . . ( 2,073)
Cumulative foreign currency
translation adjustments. . . . . . . . . . . . . . . . . . . ( 8,403)
Total equity capital . . . . . . . . . . . . . . . . . . . . . 3,586,850
Total liabilities and equity capital . . . . . . . . . . . . . $44,043,010
<PAGE>
EXHIBIT 7
(Page 3 of 3)
I, Robert E. Keilman, Senior Vice President and Comptroller of
the above-named bank do hereby declare that this Report of
Condition has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System
and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of
this Report of Condition and declare that it has been examined by
us and to the best of our knowledge and belief has been prepared
in conformance with the instructions issued by the Board of
Governors of the Federal Reserve System and is true and correct.
J. Carter Bacot )
Thomas A. Renyi ) Directors
Alan R. Griffith )
Exhibit 25b
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 BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(Jurisdiction of incorporation (I.R.S. Employer
if not a U.S. national bank) Identification No.)
48 Wall Street, New York, New York 10286
(Address of principal executive offices) (Zip code)
_________________
ATLANTIC CITY ELECTRIC COMPANY
(Exact name of obligor as specified in its charter)
New Jersey 21-0398280
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
6801 Black Horse Pike
Egg Harbor Township, New Jersey 08234-4130
(Address of principal executive offices) (Zip code)
_________________
Debt Securities*
(Title of the indenture securities)
*Specific title(s) to be determined in connection with
sale(s) of Debt Securities.<PAGE>
Item 1. General Information.
Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Superintendent of Banks of the 2 Rector Street, New York, N.Y.
State of New York 10006 and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza,
New York, N.Y. 10045
Federal Deposit Insurance 550 17th Street, N.W.,
Corporation Washington, D.C. 20429
New York Clearing House
Association New York, N.Y.
(b) Whether it is authorized to exercise corporate trust
powers. Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee,
describe each such affiliation. None. (See Note on page 2.)
Item 16. List of Exhibits.
Exhibits identified in parentheses below, on file
with the Commission, are incorporated herein by reference as an
exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture
Act of 1939 (the "Act") and Rule 24 of the Commission's Rules of
Practice.
1.- A copy of the Organization Certificate of The Bank of New
York (formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration
Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to
Form T-1 filed with Registration Statement No. 33-29637.)
4.- A copy of the existing By-laws of the Trustee. (Exhibit 4
to Form T-1 filed with Registration Statement No. 33-31019.)
6.- The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration
Statement No. 33-44051.)
7.- A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority. <PAGE>
NOTE
Inasmuch as this Form T-1 is being filed prior to the
ascertainment by the Trustee of all facts on which to base a
responsive answer to Item 2, the answer to said Item is based on
incomplete information.
Item 2 may, however, be considered as correct unless amended
by an amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The
Bank of New York, a corporation organized and existing under the
laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in The City of New York, and State
of New York, on the 12th day of March, 1997.
THE BANK OF NEW YORK
By: MARY JANE MORRISSEY
Mary Jane Morrissey
Vice President<PAGE>
EXHIBIT 7
(Page 1 of 3)
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the
Federal Reserve System, at the close of business September 30,
1996, published in accordance with a call made by the Federal
Reserve Bank of this District pursuant to the provisions of the
Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from
depository institutions:
Noninterest-bearing balances
and currency and coin. . . . . . . . . . . . . . . . . . . $ 4,404,522
Interest-bearing balances. . . . . . . . . . . . . . . . . . 732,833
Securities:
Held-to-maturity securities. . . . . . . . . . . . . . . . . 789,964
Available-for-sale securities. . . . . . . . . . . . . . . . 2,005,509
Federal funds sold in domestic
offices of the bank:
Federal funds sold . . . . . . . . . . . . . . . . . . . . . 3,364,838
Loans and lease financing
receivables:
Loans and leases, net of unearned
income . . . . . . . . . . . . . . . . . . . . 28,728,602
LESS: Allowance for loan and
lease losses . . . . . . . . . . . . . . . . . 584,525
LESS: Allocated transfer risk
reserve. . . . . . . . . . . . . . . . . . . . 429
Loans and leases, net of unearned
income, allowance, and reserve . . . . . . . . . . . . . . 28,143,648
Assets held in trading accounts. . . . . . . . . . . . . . . . 1,004,242
Premises and fixed assets (including
capitalized leases). . . . . . . . . . . . . . . . . . . . . 605,668
Other real estate owned. . . . . . . . . . . . . . . . . . . . 41,238
Investments in unconsolidated subsid-
iaries and associated companies. . . . . . . . . . . . . . . 205,031
Customers' liability to this bank on
acceptances outstanding. . . . . . . . . . . . . . . . . . . 949,154
Intangible assets. . . . . . . . . . . . . . . . . . . . . . . 490,524
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . 1,305,839
Total assets . . . . . . . . . . . . . . . . . . . . . . . . . $44,043,010<PAGE>
EXHIBIT 7
(Page 2 of 3)
LIABILITIES
Deposits:
In domestic offices. . . . . . . . . . . . . . . . . . . . . $20,441,318
Noninterest-bearing. . . . . . . . . . . . . . . . 8,158,472
Interest-bearing . . . . . . . . . . . . . . . . .12,282,846
In foreign offices, Edge and
Agreement subsidiaries, and IBFs . . . . . . . . . . . . . . 11,710,903
Noninterest-bearing. . . . . . . . . . . . . . . . . .46,182
Interest-bearing . . . . . . . . . . . . . . . . .11,664,721
Federal funds purchased in domestic
offices of the bank:
Federal funds purchased. . . . . . . . . . . . . . . . . . . 1,565,288
Demand notes issued to the U.S.
Treasury . . . . . . . . . . . . . . . . . . . . . . . . . . 293,186
Trading liabilities. . . . . . . . . . . . . . . . . . . . . . 826,856
Other borrowed money:
With original maturity of one year or less . . . . . . . . . 2,103,443
With original maturity of more than
one year . . . . . . . . . . . . . . . . . . . . . . . . . 20,766
Bank's liability on acceptances
executed and outstanding . . . . . . . . . . . . . . . . . . 951,116
Subordinated notes and debentures. . . . . . . . . . . . . . . 1,020,400
Other liabilities. . . . . . . . . . . . . . . . . . . . . . . 1,522,884
Total liabilities. . . . . . . . . . . . . . . . . . . . . . . 40,456,160
EQUITY CAPITAL
Common stock . . . . . . . . . . . . . . . . . . . . . . . . . . . .942,284
Surplus. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .525,666
Undivided profits and capital
reserves . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,129,376
Net unrealized holding gains (losses)
on available-for-sale securities . . . . . . . . . . . . . . . ( 2,073)
Cumulative foreign currency
translation adjustments. . . . . . . . . . . . . . . . . . . . ( 8,403)
Total equity capital . . . . . . . . . . . . . . . . . . . . . 3,586,850
Total liabilities and equity capital . . . . . . . . . . . . . $44,043,010
<PAGE>
EXHIBIT 7
(Page 3 of 3)
I, Robert E. Keilman, Senior Vice President and Comptroller of
the above-named bank do hereby declare that this Report of
Condition has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System
and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of
this Report of Condition and declare that it has been examined by
us and to the best of our knowledge and belief has been prepared
in conformance with the instructions issued by the Board of
Governors of the Federal Reserve System and is true and correct.
J. Carter Bacot )
Thomas A. Renyi ) Directors
Alan R. Griffith )
