SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
20549
Form 8-K
Current Report Pursuant to Section 13 or 15 (d)
of the Securities Exchange Act of 1934
Date of Report: March 24, 1997
(Date of Earliest event reported: March 24, 1997)
Registrant;
Commission State of Incorporation IRS Employer
File No. Address and Telephone No. Identification No.
1-3559 Atlantic City Electric Company 21-0398280
(New Jersey)
6801 Black Horse Pike
Egg Harbor Township, NJ 08234
(609) 645-4100
<PAGE>
ITEM 5. Other Events
On March 24, 1997, Atlantic City Electric Company entered
into a Selling Agency Agreement with respect to its First
Mortgage Bonds, Designated Secured Medium Term Notes, Series D,
and its Unsecured Medium Term Notes, Series A (collectively, (the
"Notes"). Said Notes were registered under the Securities Act of
1933, as amended, pursuant to the Company's shelf registration
statements (Registration Statement 33-53841 and 333-23475). For
further information concerning the Notes, refer to the Exhibits
contained in this Current Report on Form 8-K.
ITEM 7. Financial Statements, Pro Forma Financial Information
and Exhibits
(c)
1b Selling Agency Agreement, dated March 24, 1997, between
the Company and the Agents named therein.
4b Supplemental Indenture, dated as of March 1, 1997,
between the Company and The Bank of New York, as
Trustee.
4d Form of First Mortgage Bond, Designated Secured Medium
Term Note.
4e Indenture, dated as of March 1, 1997, between the
Company and The Bank of New York, as Trustee.
***********************************
SIGNATURE
Pursuant to the requirements of the Securities
Exchange Act of 1934, the Registrant has duly caused this report
to be signed on its behalf by the undersigned hereunto duly
authorized.
Atlantic City Electric Company
(Registrant)
By: /s/L. M. Walters
L. M. Walters
Vice President, Treasurer and
Assistant Secretary
Date: March 24, 1997
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 24, 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 333-23475), 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. 333-23475 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. 333-23475
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. 333-23475
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. 333-23475 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: /s/ L. M. Walters
Its: Vice President
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
GOLDMAN, SACHS & CO.
By: /s/ Goldman, Sachs & Co.
FIRST CHICAGO CAPITAL MARKETS, INC.
By: /s/ Evonne W. Taylor
Its: Vice President
LEHMAN BROTHERS INC.
By: /s/ Jeanne Kane
Its: Managing Director
<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
Executed Counterpart No.
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.
/s/ James E. Franklin II
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 5
TRUST 5
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 8
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.
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 18th day of March, 1997.
ATLANTIC CITY ELECTRIC COMPANY
SEAL
By: /s/ L. M. Walters
(L. M. Walters)
Vice President
ATTEST:
/s/ James E. Franklin II
(James E. Franklin II)
Secretary
Signed, sealed and delivered by ATLANTIC CITY ELECTRIC COMPANY in
the presence of:
/s/ Robert K. Marshall
(Robert K. Marshall)
/s/ Kathleen A. Graham
(Kathleen A. Graham)
THE BANK OF NEW YORK
SEAL
By: /s/ F. W. Clark
(F. W. Clark)
Vice President
ATTEST:
/s/ Lucille Firrincieli
(Lucille Firrincieli)
Assistant Vice President
Signed, sealed and delivered by THE BANK OF NEW YORK in the
presence of:
/s/ A. Mazur
(A. Mazur)
/s/ L. Mullen
(L. Mullen)
<PAGE>
STATE OF NEW JERSEY
ss:
COUNTY OF ATLANTIC
BE IT REMEMBERED that on this 18th 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.
/s/ Stephanie M. Scola
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 19th 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 Lucille Firrincieli, 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
F. W. Clark 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 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] /s/ William J. Cassels
<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: /s/ Lucille Firriencieli
(Lucille Firriencieli)
Assistant Vice President
[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
First Mortgage Bond, Designated
Secured Medium Term Note, Series D
CUSIP: Issue Date:
Maturity Date: Interest Rate:
Principal Amount: $
Redeemable by Regular Redemption: Yes ___ No ___
In Whole: Yes ___ No ___
In Part: Yes ___ No ___
Initial Regular Redemption Date:
Regular Redemption Limitation Date:
Initial Regular Redemption Price:
Reduction Percentage:
Redeemable by Special Redemption: Yes ___ No ___
In Whole: Yes ___ No ___
In Part: Yes ___ No ___
Initial Regular Redemption Date:
Special Redemption Limitation Date:
ATLANTIC CITY ELECTRIC COMPANY, a corporation of the
State of New Jersey (hereinafter called the Company), for value
received, hereby promises to pay to CEDE & CO., or registered
assigns, the Principal Amount specified above 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, and to
pay to the registered owner hereof interest thereon from the
Issue Date specified above or from the most recent interest
payment date to which interest has been paid, at the Interest
Rate per annum specified above in like money at such office or
agency on March 1 and September 1 of each year, commencing on the
interest payment date next succeeding the Issue Date, until the
Company's obligation with respect to the payment of such
Principal Amount shall have been discharged; provided, however,
that if this bond shall be authenticated after a Record Date (as
hereinafter defined) for any interest payment date and prior to
such interest payment date, interest shall be payable to such
registered owner only from such interest payment date; and
provided, further, that (i) if the Issue Date shall be after a
Record Date with respect to any interest payment date and prior
to the corresponding interest payment date, this bond shall bear
interest from the Issue Date but payment of interest shall
commence on the second interest payment date succeeding the Issue
Date, and (ii) interest payable on the Maturity Date will be
payable to the person to whom such principal shall be payable.
The interest so payable upon any March 1 or September 1
will, subject to certain exceptions described above and as
provided in the Mortgage hereinafter referred to, be paid to the
person in whose name this bond is registered at the close of
business on the Record Date with respect to any interest payment
date. "Record Date" shall mean the February 15 preceding such
March 1 or the August 15 preceding such September 1, as the case
may be, 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.
This bond is one of an issue of bonds of the Company,
issuable in series, and is one of a series known as its First
Mortgage Bonds, Designated Secured Medium Term Notes, Series D,
all bonds of all series issued and to be issued under and equally
secured (except insofar as any sinking fund, established in
accordance with the provisions of the Mortgage hereinafter
mentioned, may afford additional security for the bonds of any
particular series) by a Mortgage and Deed of Trust (herein,
together with any indentures supplemental thereto, called the
Mortgage), dated January 15, 1937, executed by the Company to THE
BANK OF NEW YORK, as Trustee, to which Mortgage reference is made
for a description of the property mortgaged and pledged, the
nature and extent of the security, the rights of the holders of
the bonds in respect thereof, the duties and immunities of the
Trustee, and the terms and conditions upon which the bonds are
secured. With the consent of the Company and to the extent
permitted by and as provided in the Mortgage, the rights and
obligations of the Company and/or of the holders of the bonds
and/or coupons and/or the terms and provisions of the Mortgage
and/or of any instruments supplemental thereto may be modified or
altered by affirmative vote of the holders of at least
seventy-five per centum (75%) in principal amount of the bonds
affected by such modification or alteration then outstanding
under the Mortgage (excluding bonds disqualified from voting by
reason of the Company's interest therein as provided in the
Mortgage); provided that no such modification or alteration shall
permit the extension of the maturity of the principal of this
bond or the reduction in the rate of interest hereon or any other
modification in the terms of payment of such principal or
interest without the consent of the holder hereof.
The principal hereof may be declared or may become due
prior to the express date of the maturity hereof on the
conditions, in the manner and at the time set forth in the
Mortgage, upon the occurrence of a completed default as in the
Mortgage provided.
The bonds of this series are issuable only as fully
registered bonds without coupons in denominations of $1,000 and
authorized multiples thereof. This bond is transferable as
prescribed in the Mortgage by the registered owner hereof in
person, or by his duly authorized attorney, at the office or
agency of the Company in the Borough of Manhattan, The City of
New York, upon surrender and cancellation of this bond, and upon
payment of the charges prescribed in the Mortgage, and thereupon
a new registered bond or bonds of authorized denominations of the
same series for a like principal amount and having the same Issue
Date, Maturity Date, Interest Rate and redemption provisions, if
any, will be issued to the transferee in exchange herefor as
provided in the Mortgage. In the manner and upon payment of the
charges prescribed in the Mortgage, registered bonds of this
series may be exchanged for a like aggregate principal amount of
registered bonds of other authorized denominations of the same
series having the same Issue Date, Maturity Date, Interest Rate
and redemption provisions, if any, upon surrender thereof for
cancellation, at the office or agency of the Company in the
Borough of Manhattan, The City of New York.
The Company and the Trustee may deem and treat the
person in whose name this bond is registered as the absolute
owner hereof for the purpose of receiving payment of or on
account of principal or (subject to the provisions of the
Mortgage) interest hereon and for all other purposes and the
Company and the Trustee shall not be affected by any notice to
the contrary.
The Company shall not be required to make transfers or
exchanges of bonds of this series for a period of sixteen days
next preceding any interest payment date of said series, or next
preceding any designation of bonds of said series to be redeemed,
and the Company shall not be required to make transfers or
exchanges of any bonds designated in whole or in part for
redemption.
This bond shall be redeemable to the extent set forth
herein and in the Mortgage upon not less than thirty, but not
more than ninety, days previous notice by mail to the registered
owner.
<PAGE>
If so specified on the face hereof, this bond is
subject to Regular Redemption at any time on or after the Initial
Regular 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. Unless otherwise
specified on the face hereof, such redemption price shall be the
Initial Regular Redemption Price specified on the face hereof for
the twelve-month period commencing on the Initial Regular
Redemption Date and shall decline for the twelve-month period
commencing on each anniversary of the Initial Regular 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 bond.
If so specified on the face hereof, this bond is
subject to Special Redemption at any time on or after the Initial
Special Redemption Date specified on the face hereof, as a whole
or, if specified, in part, at the election of the Company, if
redeemed by the use of proceeds of released property or the
proceeds of insurance, at 100% of the principal amount hereof
plus accrued interest to the date fixed for redemption.
Notwithstanding the foregoing, the Company may not,
prior to the Regular Redemption Limitation Date, if any, or the
Special Redemption Limitation Date, if any, as the case may be,
specified on the face hereof, redeem this bond by Regular
Redemption or Special Redemption, as the case may be, 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 bond.
No recourse shall be had for the payment of the
principal of or interest on this bond against any incorporator or
any past, present or future subscriber to the capital stock,
shareholder, officer or director, as such, of the Company or of
any successor corporation, either directly or through the Company
or any successor corporation, under any rule of law, statute or
constitution or by the enforcement of any assessment or
otherwise, all such liability of incorporators, subscribers,
shareholders, officers and directors, as such, being released by
the holder or owner hereof by the acceptance of this bond and
being likewise waived and released by the terms of the Mortgage.
This bond shall not become valid or obligatory for any
purpose until THE BANK OF NEW YORK, the Trustee under the
Mortgage, or its successor thereunder, shall have signed the form
of authentication certificate endorsed hereon.
IN WITNESS WHEREOF, ATLANTIC CITY ELECTRIC COMPANY has
caused this instrument to be executed in its name by the manual
or facsimile signature of its President or one of its Vice
Presidents and its corporate seal, or a facsimile thereof, to be
impressed or imprinted hereon and attested by the manual or
facsimile signature of its Secretary or one of its Assistant
Secretaries.
Dated:
(Seal)
ATLANTIC CITY ELECTRIC COMPANY
By:
VicePresident
Attest:
Secretary
TRUSTEE'S AUTHENTICATION CERTIFICATE
This bond is one of the bonds, of the series herein
designated, described in the within-mentioned Mortgage.
THE BANK OF NEW YORK,
Trustee,
By:
Authorized Signatory
<PAGE>
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
transferee must be printed or
typewritten]
the within bond of ATLANTIC CITY ELECTRIC COMPANY and does hereby
irrevocably constitute and appoint
attorneys to transfer said bond on the books of the within -
mentioned Company, with full power of substitution in the
premises.
Dated:
ATLANTIC CITY ELECTRIC COMPANY
TO
THE BANK OF NEW YORK,
Trustee
__________________________
INDENTURE
Dated as of March 1, 1997
__________________________
<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. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Security Register . . . . . . . . . . . . . . . . . . . . . . . 7
Security Registrar. . . . . . . . . . . . . . . . . . . . . . . 7
Special Record Date . . . . . . . . . . . . . . . . . . . . . . 7
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. . . . . . . . 11
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. . . . . . . . . . . . . . . . . . 12
SECTION 111. Benefits of Indenture. . . . . . . . . . . . . . . . . 12
SECTION 112. Governing Law. . . . . . . . . . . . . . . . . . . . . 12
SECTION 113. Legal Holidays . . . . . . . . . . . . . . . . . . . . 12
SECTION 114. Counterparts . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE TWO
Security Forms . . . . . . . . . . . . . . 13
SECTION 201. Forms Generally. . . . . . . . . . . . . . . . . . . . 13
SECTION 202. Form of Trustee's Certificate of
Authentication. . . . . . . . . . . . . . . . . . . 13
ARTICLE THREE
The Securities . . . . . . . . . . . . . . 14
SECTION 301. Amount Unlimited; Issuable in Series and
in Tranches thereof; Establishment of
Series and of Tranches thereof. . . . . . . . . . . 14
SECTION 302. Denominations. . . . . . . . . . . . . . . . . . . . . 17
SECTION 303. Execution; Authentication and Delivery;
Dating. . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . 20
SECTION 305. Registration, Registration of Transfer
and Exchange. . . . . . . . . . . . . . . . . . . . 21
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities. . . . . . . . . . . . . . . . . . . . . 22
SECTION 307. Payment of Interest; Interest Rights
Preserved . . . . . . . . . . . . . . . . . . . . . 23
SECTION 308. Persons Deemed Owners. . . . . . . . . . . . . . . . . 24
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . 25
SECTION 310. Computation of Interest. . . . . . . . . . . . . . . . 25
SECTION 311. CUSIP Numbers. . . . . . . . . . . . . . . . . . . . . 25
SECTION 312. Payment to Be in Proper Currency.. . . . . . . . . . . 25
ARTICLE FOUR
Redemption of Securities. . . . . . . . . . . . 26
SECTION 401. Applicability of Article . . . . . . . . . . . . . . . 26
SECTION 402. Election to Redeem; Notice to Trustee. . . . . . . . . 26
SECTION 403. Selection of Securities to Be Redeemed . . . . . . . . 26
SECTION 404. Notice of Redemption . . . . . . . . . . . . . . . . . 27
SECTION 405. Securities Payable on Redemption Date. . . . . . . . . 28
SECTION 406. Securities Redeemed in Part. . . . . . . . . . . . . . 28
ARTICLE FIVE
Sinking Funds . . . . . . . . . . . . . . 29
SECTION 501. Applicability of Article . . . . . . . . . . . . . . . 29
SECTION 502. Satisfaction of Sinking Fund Payments
with Securities . . . . . . . . . . . . . . . . . . 29
SECTION 503. Redemption of Securities for Sinking
Fund. . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE SIX
Covenants . . . . . . . . . . . . . . . 30
SECTION 601. Payment of Principal, Premium and
Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 602. Maintenance of Office or Agency. . . . . . . . . . . . 31
SECTION 603. Money for Securities Payments to Be Held
in Trust. . . . . . . . . . . . . . . . . . . . . . 31
SECTION 604. Corporate Existence. . . . . . . . . . . . . . . . . . 33
ARTICLE SEVEN
Satisfaction and Discharge . . . . . . . . . . . 33
SECTION 701. Satisfaction and Discharge of Securities . . . . . . . 33
SECTION 702. Satisfaction and Discharge of Indenture. . . . . . . . 35
SECTION 703. Application of Trust Money . . . . . . . . . . . . . . 36
ARTICLE EIGHT
Events of Default; Remedies. . . . . . . . . . . 37
SECTION 801. Events of Default. . . . . . . . . . . . . . . . . . . 37
SECTION 802. Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . . . . . . . 38
SECTION 803. Collection of Indebtedness and Suits for
Enforcement by Trustee. . . . . . . . . . . . . . . 39
SECTION 804. Trustee May File Proofs of Claim . . . . . . . . . . . 40
SECTION 805. Trustee May Enforce Claims Without
Possession of Securities. . . . . . . . . . . . . . 40
SECTION 806. Application of Money Collected . . . . . . . . . . . . 41
SECTION 807. Limitation on Suits. . . . . . . . . . . . . . . . . . 41
SECTION 808. Unconditional Right of Holders to Receive
Principal, Premium and Interest . . . . . . . . . . 42
SECTION 809. Restoration of Rights and Remedies . . . . . . . . . . 42
SECTION 810. Rights and Remedies Cumulative . . . . . . . . . . . . 42
SECTION 811. Delay or Omission Not Waiver . . . . . . . . . . . . . 42
SECTION 812. Control by Holders of Securities . . . . . . . . . . . 43
SECTION 813. Waiver of Past Defaults. . . . . . . . . . . . . . . . 43
SECTION 814. Undertaking for Costs. . . . . . . . . . . . . . . . . 44
SECTION 815. Waiver of Stay or Extension Laws . . . . . . . . . . . 44
ARTICLE NINE
The Trustee. . . . . . . . . . . . . . . 45
SECTION 901. Corporate Trustee Required; Eligibility. . . . . . . . 45
SECTION 902. Certain Duties and Responsibilities. . . . . . . . . . 45
SECTION 903. Notice of Defaults . . . . . . . . . . . . . . . . . . 46
SECTION 904. Certain Rights of Trustee. . . . . . . . . . . . . . . 47
SECTION 905. Not Responsible for Recitals or Issuance
of Securities . . . . . . . . . . . . . . . . . . . 48
SECTION 906. May Hold Securities. . . . . . . . . . . . . . . . . . 48
SECTION 907. Preferential Collection of Claims Against
Company . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 908. Money Held in Trust. . . . . . . . . . . . . . . . . . 49
SECTION 909. Compensation and Reimbursement . . . . . . . . . . . . 49
SECTION 910. Disqualification; Conflicting Interests. . . . . . . . 50
SECTION 911. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . . . . . . 50
SECTION 912. Acceptance of Appointment by Successor . . . . . . . . 52
SECTION 913. Merger, Conversion, Consolidation or
Succession to Business. . . . . . . . . . . . . . . 53
SECTION 914. Appointment of Authenticating Agent. . . . . . . . . . 54
ARTICLE TEN
Holders' Lists and Reports by Trustee and Company . . . . . 56
SECTION 1001. Company to Furnish Trustee Names and
Addresses of Holders. . . . . . . . . . . . . . . . 56
SECTION 1002. Preservation of Information;
Communications to Holders . . . . . . . . . . . . . 57
SECTION 1003. Reports by Trustee. . . . . . . . . . . . . . . . . . 57
SECTION 1004. Reports by Company. . . . . . . . . . . . . . . . . . 57
ARTICLE ELEVEN
Consolidation, Merger, Conveyance, Transfer or Lease. . . . . 58
SECTION 1101. Company May Consolidate, Etc., Only on Certain
Terms . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 1102. Successor Corporation Substituted . . . . . . . . . . 58
ARTICLE TWELVE
Supplemental Indentures. . . . . . . . . . . . 59
SECTION 1201. Supplemental Indentures Without Consent
of Holders. . . . . . . . . . . . . . . . . . . . . 59
SECTION 1202. Supplemental Indentures With Consent of
Holders . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 1203. Execution of Supplemental Indentures. . . . . . . . . 63
SECTION 1204. Effect of Supplemental Indentures . . . . . . . . . . 63
SECTION 1205. Conformity With Trust Indenture Act . . . . . . . . . 63
SECTION 1206. Reference in Securities to Supplemental
Indentures. . . . . . . . . . . . . . . . . . . . . 63
SECTION 1207. Modification Without Supplemental
Indenture . . . . . . . . . . . . . . . . . . . . . 63
ARTICLE THIRTEEN
Meetings of Holders; Action Without Meeting. . . . . . . 64
SECTION 1301. Purposes for Which Meetings May Be
Called. . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 1302. Call, Notice and Place of Meetings. . . . . . . . . . 64
SECTION 1303. Persons Entitled to Vote at Meetings. . . . . . . . . 65
SECTION 1304. Quorum; Action. . . . . . . . . . . . . . . . . . . . 65
SECTION 1305. Attendance at Meetings; Determination of
Voting Rights; Conduct and Adjournment
of Meetings . . . . . . . . . . . . . . . . . . . . 66
SECTION 1306. Counting Votes and Recording Action of
Meetings. . . . . . . . . . . . . . . . . . . . . . 67
SECTION 1307. Action Without Meeting. . . . . . . . . . . . . . . . 68
SECTION 1308. Record Date . . . . . . . . . . . . . . . . . . . . . 68
ARTICLE FOURTEEN
Immunity of Incorporators, Stockholders,
Officers and Directors . . . . . . . . . . . . 68
SECTION 1401. Liability Solely Corporate. . . . . . . . . . . . . . 68
<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 314(a)(4) of the Trust Indenture Act) 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 hereon 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.
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 (which may contain assumptions acceptable to the
Trustee) 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) subject to any conditions specified in such Opinion
of Counsel, 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
hereto, 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.
<PAGE>
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 waives 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 Sections 307 and 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.
<PAGE>
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 as provided herein; (ii) in <PAGE>
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) 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) if such deposit shall have been made prior to the
Maturity of such Securities, an 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 United States 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,
404, 503 (as to notice of redemption), 602, 603, 909 and 914 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.
Anything herein to the contrary notwithstanding, if, at
any time after a Security would be deemed to have been satisfied
or discharged pursuant to this Section (without regard to the
provisions of this paragraph), the Trustee shall be required to
return the money or Government Obligations, or combination
thereof, deposited with it as aforesaid to the Company or its
representative under any applicable Federal or state bankruptcy,
insolvency or other similar law, the indebtedness of the Company
in respect of such Security shall thereupon be deemed
retroactively not to have been satisfied and discharged, as
aforesaid, and to remain Outstanding.
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.
<PAGE>
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.
<PAGE>
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.
<PAGE>
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
75 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
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:
<PAGE>
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, 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
<PAGE>
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 <PAGE>
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: /s/ L. M. Walters
(L.M. Walters)
Vice President
[SEAL]
ATTEST:
/s/ James E. Franklin II
(James E. Franklin II)
Secretary
THE BANK OF NEW YORK, Trustee
By: /s/ F. W. Clark
( F. W. Clark)
Vice President
[SEAL]
ATTEST:
/s/ Lucille Firrincieli
(Lucille Firrincieli)
Assistant Vice President
