REGISTRATION NOS. 333- and 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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DQE, INC. DQE CAPITAL CORPORATION
(Exact name of registrant (Exact name of registrant as
as specified in its charter) specified in its charter)
PENNSYLVANIA DELAWARE
(State or other jurisdiction of (State or other jurisdiction
incorporation or organization) of incorporation or
organization)
25-1598483 25-1837152
(I.R.S. Employer Identification) (I.R.S. Employer
Identification)
CHERRINGTON CORPORATE CENTER, 411 SEVENTH AVENUE
SUITE 100 PITTSBURGH, PENNSYLVANIA
500 CHERRINGTON PARKWAY 15219-1905
CORAOPOLIS, (412) 393-6700
PENNSYLVANIA 15108-3189
(412) 262-4700
(Address, including zip code, and (Address, including zip code,
telephone number, including area and telephone number,
code, of registrant's principal including area code, of
executive offices) registrant's principal
executive offices)
VICTOR A. ROQUE, ESQ. J. ANTHONY TERRELL, ESQ.
EXECUTIVE VICE PRESIDENT CATHERINE C. HOOD, ESQ.
AND GENERAL COUNSEL THELEN REID & PRIEST LLP
DQE, INC. 40 WEST 57TH STREET
CHERRINGTON CORPORATE NEW YORK, NEW YORK 10019-4097
CENTER, SUITE 100 (212) 603-2000
500 CHERRINGTON PARKWAY
CORAOPOLIS, PENNSYLVANIA
15108-3189
(412) 393-6000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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COPIES TO:
M. DOUGLAS DUNN, ESQ.
ROBERT B. WILLIAMS, ESQ.
MILBANK, TWEED, HADLEY & MCCLOY LLP
1 CHASE MANHATTAN PLAZA
NEW YORK, NEW YORK 10005
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the registration statement becomes
effective, as determined by market and other conditions.
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If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415
under the Securities Act of 1933, other than securities offered
only in connection with dividend or interest reinvestment plans,
check the following box.[X]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box.[ ]
CALCULATION OF REGISTRATION FEE
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TITLE OF EACH PROPOSED PROPOSED
CLASS OF MAXIMUM MAXIMUM
SECURITIES OFFERING AGGREGATE AMOUNT OF
BEING AMOUNT TO BE PRICE PER OFFERING REGISTRATION
REGISTERED REGISTERED UNIT(1) PRICE(1)(2) FEE
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DQE Capital
Corporation
Debt
Securities . $250,000,000 100% $250,000,000 $ 69,500
DQE, Inc.
Guaranties of
DQE
Capital
Corporation
Debt
Securities
(3) . . . . - - - -
Total . . . . $250,000,000 100% $250,000,000 $ 69,500
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(1) Estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457 under the Securities
Act of 1933.
(2) Exclusive of accrued interest, if any.
(3) No separate consideration will be received for the
Guaranties.
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON
SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE
DATE UNTIL THE REGISTRANTS SHALL FILE A FURTHER AMENDMENT WHICH
SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL
THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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The information in this prospectus is not complete and may be
changed. A registration statement relating to these documents
has been filed with the Securities and Exchange Commission. This
prospectus is not an offer to sell these securities and it is not
soliciting an offer to buy these securities in any state where
the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED JUNE 10, 1999
PROSPECTUS
$250,000,000
DQE CAPITAL CORPORATION
DEBT SECURITIES
UNCONDITIONALLY GUARANTEED BY
DQE, INC.
DQE Capital Corporation may offer from time to time up to
$250,000,000 in principal amount of its unsecured debt securities
at prices and on terms to be determined at the time of sale.
DQE, Inc., which is the parent company of DQE Capital, will
unconditionally guarantee the payment of the debt securities.
One or more supplements to this prospectus will indicate the
terms of each series of debt securities, and each tranche within
a series, including, where applicable, the
() series designation,
() principal amount,
() stated maturity date,
() interest rate and interest payment dates,
() provisions for redemption, if any, and
() initial public offering price.
DQE Capital may sell the debt securities to or through
underwriters, dealers or agents or directly to one or more
purchasers. The applicable prospectus supplement will describe
each offering of the debt securities.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED THESE
SECURITIES OR PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
, 1999.
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THIS PROSPECTUS INCORPORATES BY REFERENCE IMPORTANT BUSINESS AND
FINANCIAL INFORMATION ABOUT DQE THAT IS NOT INCLUDED IN OR
DELIVERED WITH THIS PROSPECTUS. SEE AVAILABLE INFORMATION. YOU
MAY OBTAIN COPIES OF DOCUMENTS CONTAINING SUCH INFORMATION FROM
US, WITHOUT CHARGE, BY EITHER CALLING OR WRITING TO US AT:
DQE CAPITAL CORPORATION
411 SEVENTH AVENUE
PITTSBURGH, PENNSYLVANIA 15219-1905
ATTENTION: TREASURER
TELEPHONE: (412) 393-6700
TABLE OF CONTENTS
PAGE PAGE
AVAILABLE INFORMATION . . . . . . . . . . . . . . . . . . . . . 3
DQE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
DQE CAPITAL . . . . . . . . . . . . . . . . . . . . . . . . . 4
USE OF PROCEEDS . . . . . . . . . . . . . . . . . . . . . . . 5
DESCRIPTION OF THE DEBT SECURITIES . . . . . . . . . . . . . 5
General . . . . . . . . . . . . . . . . . . . . . . . . 5
Guaranty of DQE; Holding
Company Structure . . . . . . . . . . . . . . . . . . 6
Payment and Paying Agents . . . . . . . . . . . . . . . 7
Registration and Transfer . . . . . . . . . . . . . . . 8
Redemption . . . . . . . . . . . . . . . . . . . . . . . 8
Satisfaction and Discharge . . . . . . . . . . . . . . . 8
Events of Default . . . . . . . . . . . . . . . . . . . . 9
Remedies . . . . . . . . . . . . . . . . . . . . . . . . 10
Consolidation, Merger
Sale of Assets . . . . . . . . . . . . . . . . . . . 12
Modification of Indenture . . . . . . . . . . . . . . . 13
Duties of Trustee; Resignation;
Removal . . . . . . . . . . . . . . . . . . . . . . . 16
Evidence of Compliance . . . . . . . . . . . . . . . . . 16
Governing Law . . . . . . . . . . . . . . . . . . . . . 16
PLAN OF DISTRIBUTION . . . . . . . . . . . . . . . . . . . . 16
EXPERTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
LEGAL OPINIONS . . . . . . . . . . . . . . . . . . . . . . . 18
WE HAVE NOT AUTHORIZED ANYONE TO GIVE YOU ANY INFORMATION OTHER
THAN THIS PROSPECTUS AND ONE OR MORE SUPPLEMENTS TO THIS
PROSPECTUS. YOU SHOULD NOT ASSUME THAT THE INFORMATION CONTAINED
OR INCORPORATED IN THIS PROSPECTUS IS ACCURATE AS OF ANY DATE
AFTER , 1999, WHICH IS THE DATE OF THIS PROSPECTUS.
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THIS PROSPECTUS IS NOT AN OFFER TO SELL THE BONDS AND IT IS NOT
SOLICITING AN OFFER TO BUY THE BONDS IN ANY JURISDICTION IN WHICH
THE OFFER IS NOT PERMITTED.
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AVAILABLE INFORMATION
DQE, Inc., which is the parent company of DQE Capital
Corporation, files annual, quarterly and special reports, proxy
statements and other information with the SEC. You may read and
copy this information at the SEC's Public Reference Room and at
its Regional Offices:
Public Reference Room New York Regional Chicago Regional
Judiciary Plaza Office Office
450 Fifth Street, 7 World Trade Citicorp Center
N.W. Center 500 West Madison
Room 1024 Suite 1300 Street
Washington, D.C. New York, New York Suite 1400
20549 10048 Chicago, Illinois
60661-2551
You may obtain information on the operation of the SEC's
public reference rooms by calling the SEC at 1-800-SEC-0330. You
may also obtain copies of such material by mail from the Public
Reference Section of the SEC, Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549 at prescribed rates. The SEC also
maintains an Internet site that contains DQE's reports, proxy
statements and other information filed with the SEC. The address
of that site is http://www.sec.gov.
DQE's Common Stock is listed on the New York Stock Exchange,
and reports, proxy statements and other information concerning
DQE can also be inspected at the office of that exchange located
at 20 Broad Street, New York, New York 10005.
DQE is incorporating into this prospectus by reference:
() DQE's most recent Annual Report on Form 10-K filed
with the SEC pursuant to the Exchange Act and
() all other documents filed by DQE with the SEC
pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act subsequent to the filing of DQE's
most recent Annual Report and prior to the
termination of the offering made by this
prospectus,
and all of those documents are deemed to be a part of this
prospectus from the date of filing those documents. We refer to
the documents incorporated into this prospectus by reference as
the "Incorporated Documents". Any statement contained in an
Incorporated Document may be modified or superseded by a
statement in this prospectus or in any prospectus supplement or
in any subsequently filed Incorporated Document. The
Incorporated Documents as of the date of this prospectus are:
() Annual Report on Form 10-K for the year ended
December 31, 1998;
() Quarterly Report on Form 10-Q for the quarter
ended March 31, 1999; and
() Current Reports on Form 8-K dated March 19 and
March 26, 1999.
DQE maintains an Internet site at http://www.dqe.com which
contains information concerning DQE and its affiliates. The
information contained at DQE's Internet site is not incorporated
in this prospectus by reference and you should not consider it a
part of this prospectus.
DQE Capital is not required to file reports with the SEC.
There will be no separate reports or other information relating
to DQE Capital included or incorporated in this prospectus.
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DQE
DQE, Inc., a Pennsylvania corporation, is a multi-utility
delivery and services company. DQE has the following direct
subsidiaries, in addition to DQE Capital:
() Duquesne Light Company, a utility engaged in the
generation, transmission, distribution and sale of
electric energy, is DQE's largest subsidiary,
accounting for 88.7% of DQE's consolidated revenue as
of December 31, 1998. The utility provides power to
approximately 580,000 customers in an 800 square mile
area located within the Allegheny, Beaver and, to a
limited extent, Westmoreland counties of southwestern
Pennsylvania. The total population within the area is
over 1.5 million, of which over 350,000 live in
Pittsburgh.
() Montauk, Inc. makes long-term investments in affordable
housing projects, sale/leasebacks, lease/leasebacks and
investments in alternative energy.
() AquaSource, Inc., is a water resource management
company that acquires, develops and manages water and
wastewater service operations and bottled water
delivery companies.
() Duquesne Enterprises, Inc., is building businesses in
the energy services and technologies and electronics
commerce industries and in communications.
() DQE Energy Services, Inc. is a diversified energy
services company offering a wide range of energy
solutions for industrial, utility and consumer markets
worldwide. DES' initiatives include energy facility
development and operation, domestic and international
independent power production and the production and
supply of innovative fuels.
() DQEnergy Partners, Inc. is working with a wide range of
gas, electricity and telecommunications distribution
system owners to help them better meet the needs of
their customers and communities.
DQE's principal executive offices are located at Cherrington
Corporate Center, Suite 100, 500 Cherrington Parkway, Coraopolis,
Pennsylvania 15108-3189 and the telephone number is (412) 262-
4700.
See AVAILABLE INFORMATION for the availability of additional
information about DQE.
DQE CAPITAL
DQE Capital Corporation is a Delaware corporation and a
wholly-owned subsidiary of DQE. DQE Capital's primary business
purpose is to provide financing for the operations of the direct
and indirect subsidiaries of DQE other than Duquesne Light
Company.
DQE Capital's principal executive offices are located at 411
Seventh Avenue, Pittsburgh, Pennsylvania 15219-1905 and the
telephone number is (412) 393-6700.
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USE OF PROCEEDS
Unless otherwise specified in the prospectus supplement
relating to any series or tranche of the debt securities offered
by this prospectus (the "Debt Securities"), the net proceeds from
the sale of Debt Securities will be loaned to DQE and/or to one
or more of DQE's direct or indirect subsidiaries (other than
Duquesne Light Company). DQE Capital expects that the proceeds
will be used for general corporate purposes, including investing
in unregulated business activities and reducing short-term debt
incurred to provide interim financing for these purposes.
DESCRIPTION OF THE DEBT SECURITIES
GENERAL
DQE Capital may issue the Debt Securities in one or more
series, or in one or more tranches within a series, as fully
registered securities, without coupons, under an Indenture dated
as of 1, 1999 (the "Indenture"), from DQE Capital and DQE
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to The First National Bank of Chicago, as trustee (the
"Trustee"). The terms of the Debt Securities will include those
stated in the Indenture and those made part of the Indenture by
the Trust Indenture Act of 1939, as amended. The following
summary is not complete and is subject in all respects to the
provisions of, and is qualified in its entirety by reference to,
the Indenture and the Trust Indenture Act. DQE Capital has filed
the Indenture as well as the form of officer's certificate to
establish a series of debt securities, as exhibits to the
registration statement of which this prospectus is a part.
Capitalized terms used under this heading which are not otherwise
defined in this prospectus have the meanings set forth in the
Indenture. Wherever particular provisions of the Indenture or
terms defined therein are referred to, such provisions or
definitions are incorporated by reference as a part of the
statements made in this prospectus and such statements are
qualified in their entirety by such reference. References to
article and section numbers, unless otherwise indicated, are
references to article and section numbers of the Indenture.
In addition to the Debt Securities, other debt securities
may be issued under the Indenture, without any limit on the
aggregate principal amount. The Bonds and all other debt
securities issued under the Indenture are collectively referred
to as the "Indenture Securities." Each series of Indenture
Securities will be unsecured and will rank pari passu with all
other series of Indenture Securities, except as otherwise
provided in the Indenture, and with all other unsecured and
unsubordinated indebtedness of DQE Capital. Except as otherwise
described in the applicable prospectus supplement, the Indenture
does not limit the incurrence or issuance by DQE Capital of other
secured or unsecured debt, whether under the Indenture, under any
other indenture that DQE Capital may enter into in the future or
otherwise. See the prospectus supplement relating to any
offering of Debt Securities.
DQE will unconditionally guarantee the payment when due of
the principal of and premium, if any, and interest, if any, on
the Indenture Securities. See "Guaranty of DQE; Holding Company
Structure".
The applicable prospectus supplement or supplements will
describe the following terms of the Debt Securities of each
series or tranche:
(a) the title of the Debt Securities;
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(b) any limit upon the aggregate principal amount of
the Debt Securities;
(c) the date or dates on which the principal of the
Debt Securities is payable or the method of determination
thereof and the right, if any, to extend such date or dates;
(d) the rate or rates at which the Debt Securities
will bear interest, if any, or the method by which such rate
or rates, if any, will be determined, the date or dates from
which any such interest will accrue, the interest payment
dates on which any such interest will be payable, the right,
if any, of DQE Capital to defer or extend an interest
payment date, and the regular record date for any interest
payable on any interest payment date and the person or
persons to whom interest on the Debt Securities will be
payable on any interest payment date, if other than the
person or persons in whose names the Debt Securities are
registered at the close of business on the regular record
date for such interest;
(e) the place or places where, subject to the terms of
the Indenture as described below under "--Payment and Paying
Agents", the principal of and premium, if any, and interest,
if any, on the Debt Securities will be payable and where,
subject to the terms of the Indenture as described below
under "--Registration and Transfer", the Debt Securities may
be presented for registration of transfer or exchange and
the place or places where notices and demands to or upon DQE
Capital in respect of the Debt Securities and the Indenture
may be served; the Security Registrar and Paying Agents for
the Debt Securities; and, if such is the case, that the
principal of the Debt Securities will be payable without
presentation or surrender;
(f) any period or periods within which, date or dates
on which, the price or prices at which and the terms and
conditions upon which the Debt Securities may be redeemed,
in whole or in part, at the option of DQE Capital;
(g) the obligation or obligations, if any, of DQE
Capital to redeem or purchase any of the Debt Securities
pursuant to any sinking fund or other mandatory redemption
provisions or at the option of the holder, and the period or
periods within which, or date or dates on which, the price
or prices at which, and the terms and conditions upon which
the Debt Securities will be redeemed or purchased, in whole
or in part, pursuant to such obligation, and applicable
exceptions to the requirements of a notice of redemption in
the case of mandatory redemption or redemption at the option
of the holder;
(h) the denominations in which any of the Debt
Securities will be issuable if other than denominations of
$1,000 and any integral multiple of $1,000;
(i) if the Debt Securities are to be issued in global
form, the identity of the depositary; and
(j) any other terms of the Debt Securities.
GUARANTY OF DQE; HOLDING COMPANY STRUCTURE
DQE will unconditionally guarantee the payment of principal
of and premium, if any, and interest, if any, on the Debt
Securities, when due and payable, whether at the stated maturity
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date, by declaration of acceleration, call for redemption or
otherwise, in accordance with the terms of such Debt Securities
and the Indenture. The Guaranty will be contained in the
Indenture and will also be endorsed on each Debt Security. The
Guaranty will remain in effect until the entire principal of and
premium, if any, and interest, if any, on the Debt Securities has
been paid in full or otherwise discharged in accordance with the
provisions of the Indenture. (See Article Thirteen.)
DQE conducts its operations primarily through its direct and
indirect subsidiaries, and substantially all of the assets shown
on DQE's consolidated balance sheet are held by such
subsidiaries. Accordingly, DQE's cash flow and its ability to
meet its obligations under the Guaranty are largely dependent
upon the earnings of such subsidiaries and the distribution or
other payment of such earnings to DQE in the form of dividends or
loans or advances and repayment of loans and advances from DQE.
The subsidiaries are separate and distinct legal entities and,
except for DQE Capital, have no obligation to pay any amounts due
on the Debt Securities or to make any funds available for such
payment.
Because DQE is a holding company, its obligations under the
Guaranty will be effectively subordinated to all existing and
future liabilities of its subsidiaries. Therefore, DQE's rights
and the rights of its creditors, including the rights of the
holders of the Debt Securities under the Guaranty, to participate
in the assets of any subsidiary (other than DQE Capital) upon the
liquidation or reorganization of such a subsidiary will be
subject to the prior claims of such subsidiary's creditors. To
the extent that DQE may itself be a creditor with recognized
claims against any such subsidiary, DQE's claims would still be
effectively subordinated to any security interest in, or
mortgages or other liens on, the assets of such subsidiary and
would be subordinated to any indebtedness or other liabilities of
such subsidiary senior to that held by DQE. Although certain
agreements to which DQE and its subsidiaries are parties limit
the incurrence of additional indebtedness, DQE and its
subsidiaries retain the ability to incur substantial additional
indebtedness and other liabilities.
PAYMENT AND PAYING AGENTS
Except as may be provided in the applicable prospectus
supplement, DQE Capital will pay interest, if any, on each Debt
Security on each Interest Payment Date to the person in whose
name such Debt Security is registered (the registered holder of
any Indenture Security being called a "Holder") as of the close
of business on the Regular Record Date relating to such Interest
Payment Date; provided, however, that DQE Capital will pay
interest at maturity (whether at stated maturity, upon redemption
or otherwise, "Maturity") to the person to whom principal is
paid. However, if there has been a default in the payment of
interest on any Debt Security, such defaulted interest may be
payable to the Holder of such Debt Security as of the close of
business on a date selected by the Trustee which is not more than
30 days and not less than 10 days before the date proposed by DQE
Capital for payment of such defaulted interest or in any other
lawful manner not inconsistent with the requirements of any
securities exchange on which such Debt Security may be listed, if
the Trustee deems such manner of payment practicable. (See
Section 307.)
Unless otherwise specified in the applicable prospectus
supplement, DQE Capital will pay principal of and premium, if
any, and interest on the Debt Securities at Maturity upon
presentation of the Debt Securities at the corporate trust office
of The First National Bank of Chicago in Chicago, Illinois, as
paying agent for DQE Capital. DQE Capital may change the place
of payment on the Debt Securities, may appoint one or more
additional paying agents (including DQE Capital) and may remove
any paying agent, all at its discretion. (See Section 502.)
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REGISTRATION AND TRANSFER
Unless otherwise specified in the applicable prospectus
supplement, Holders may register the transfer of Debt Securities,
and may exchange Debt Securities for other Debt Securities of the
same series and tranche, of authorized denominations and having
the same terms and aggregate principal amount, at the corporate
trust office of The First National Bank of Chicago in Chicago,
Illinois as security registrar for the Debt Securities. DQE
Capital may change the place for registration of transfer of the
Debt Securities, may appoint one or more additional security
registrars (including DQE Capital) and may remove any security
registrar, all at its discretion. (See Section 502.) Except as
otherwise provided in the applicable prospectus supplement, no
service charge will be made for any transfer or exchange of the
Debt Securities, but DQE Capital 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 the Debt Securities. DQE Capital will not be
required to issue and no security registrar will be required to
register the transfer of or to exchange (a) any Debt Security
during a period of 15 days prior to giving any notice of
redemption or (b) any Debt Security selected for redemption in
whole or in part, except the unredeemed portion of any Debt
Security being redeemed in part. (See Section 305.)
REDEMPTION
The applicable prospectus supplement will set forth any
terms for the optional or mandatory redemption of Debt
Securities. Except as shall otherwise be provided in the
applicable prospectus supplement with respect to Debt Securities
redeemable at the option of the Holder, Debt Securities will be
redeemable only upon notice by mail not less than 30 nor more
than 60 days before the date fixed for redemption, and, if less
than all the Debt Securities of a series, or any tranche thereof,
are to be redeemed, the particular Debt Securities to be redeemed
will be selected by such method as shall be provided for any
particular series, or in the absence of any such provision, by
such method of random selection as the Security Registrar deems
fair and appropriate. (See Sections 403 and 404.)
Any notice of redemption at the option of DQE Capital may
state that such redemption will be conditional upon receipt by
the Trustee, on or before the dated fixed for such redemption, of
money sufficient to pay the principal of and premium, if any, and
interest, if any, on such Debt Securities and that if such money
has not been so received, such notice will be of no force and
effect and DQE Capital will not be required to redeem such Debt
Securities. (See Section 404.)
SATISFACTION AND DISCHARGE
Any Indenture Securities, or any portion of the principal
amount thereof, will be deemed to have been paid for purposes of
the Indenture and, at DQE Capital's election, the entire
indebtedness of DQE Capital and DQE in respect thereof will be
deemed to have been satisfied and discharged, if there shall have
been irrevocably deposited with the Trustee or any Paying Agent
(other than DQE Capital or DQE), in trust:
(a) money in an amount which will be sufficient, or
(b) in the case of a deposit made before the maturity
of such Indenture Securities, Eligible Obligations, which do
not contain provisions permitting the redemption or other
prepayment thereof at the option of the issuer thereof, the
principal of and the interest on which when due, without any
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regard to reinvestment thereof, will provide moneys which,
together with the money, if any, deposited with or held by
the Trustee or such Paying Agent, will be sufficient, or
(c) a combination of (a) and (b) which will be
sufficient,
to pay when due the principal of and premium, if any, and
interest, if any, due and to become due on such Indenture
Securities. For this purpose, Eligible Obligations include
direct obligations of, or obligations unconditionally guaranteed
by, the United States, entitled to the benefit of the full faith
and credit thereof and certificates, depositary receipts or other
instruments which evidence a direct ownership interest in such
obligations or in any specific interest or principal payments due
in respect thereof, and such other obligations or instruments as
shall be specified in an accompanying Prospectus Supplement.
(See Section 601.)
The Indenture will be deemed to have been satisfied and
discharged when no Indenture Securities remain outstanding
thereunder and DQE Capital has paid or caused to be paid all
other sums payable by DQE Capital under the Indenture. (See
Section 602.)
EVENTS OF DEFAULT
Any one or more of the following events with respect to a
series of Indenture Securities that has occurred and is
continuing will constitute an "Event of Default" with respect to
such series of Indenture Securities:
(a) failure to pay interest on any Indenture Security
of such series within 30 days after the same becomes due and
payable; provided, however, that no such failure will
constitute an Event of Default if DQE Capital has made a
valid extension of the interest payment period with respect
to the Indenture Securities of such series if so provided
with respect to such series; or
(b) failure to pay the principal of or premium, if
any, on any Indenture Security of such series when due;
provided, however, that no such failure will constitute an
Event of Default if DQE Capital has made a valid extension
of the Maturity of the Indenture Securities of such series,
if so provided with respect to such series; or
(c) failure to perform, or breach of, any covenant or
warranty of DQE Capital or DQE contained in the Indenture
for 60 days after written notice to DQE Capital and DQE from
the Trustee or to DQE Capital, DQE and the Trustee by the
holders of at least 33% in principal amount of Outstanding
Indenture Securities of such series as provided in the
Indenture unless the Trustee, or the Trustee and the Holders
of a principal amount of Securities of such series not less
than the principal amount of Indenture Securities the
Holders of which gave such notice, as the case may be, agree
in writing to an extension of such period before its
expiration; provided, however, that the Trustee, or the
Trustee and the Holders of such principal amount of
Indenture Securities of such series, as the case may be,
will be deemed to have agreed to an extension of such period
if corrective action is initiated by DQE Capital or DQE
within such period and is being diligently pursued; or
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(d) certain events in bankruptcy, insolvency or
reorganization of DQE Capital or DQE.
(See Section 701.)
REMEDIES
Acceleration of Maturity
If an Event of Default applicable to the Indenture
Securities of any series occurs and is continuing, then either
the Trustee or the Holders of not less than 33% in aggregate
principal amount of the Indenture Securities of such series then
Outstanding may declare the principal amount (or, if any of the
Indenture Securities of such series are Discount Securities, such
portion of the principal amount thereof as may be specified in
the terms thereof) of all of the Indenture Securities of such
series then Outstanding to be due and payable immediately by
written notice to the Company (and to the Trustee if given by
Holders); provided, however, that if an Event of Default occurs
and is continuing with respect to more than one series of
Indenture Securities, the Trustee or the Holders of not less than
33% in aggregate principal amount of the Outstanding Indenture
Securities of all such series, considered as one class, may make
such declaration of acceleration and not the Holders of the
Indenture Securities of any one such series.
At any time after such a declaration of acceleration with
respect to the Indenture Securities of any series has been made,
but before a judgment or decree for payment of the money due has
been obtained, such declaration and its consequences will,
without further act, be deemed to have been rescinded and
annulled, if
(a) DQE Capital or DQE has paid or deposited with the
Trustee a sum sufficient to pay
(1) all overdue interest, if any, on all
Indenture Securities of such series;
(2) the principal of and premium, if any, on any
Indenture Securities of such series which have become
due otherwise than by such declaration of acceleration
and interest, if any, thereon at the rate or rates
prescribed therefor in such Indenture Securities;
(3) interest, if any, upon overdue interest, if
any, at the rate or rates prescribed therefor in such
Indenture Securities, to the extent that payment of
such interest is lawful; and
(4) all amounts due to the Trustee under the
Indenture in respect of compensation and reimbursement
of expenses; and
(b) all Events of Default with respect to Indenture
Securities of such series, other than the non-payment of the
principal of the Indenture Securities of such series which
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has become due solely by such declaration of acceleration,
have been cured or waived as provided in the Indenture.
(See Section 702.)
Right to Direct Proceedings
If an Event of Default with respect to the Indenture
Securities of any series occurs and is continuing, the Holders of
a majority in principal amount of the Indenture Securities of
such series then Outstanding will have the right to direct the
time, method and place of conducting any proceedings for any
remedy available to the Trustee or exercising any trust or power
conferred on the Trustee; provided, however, that if an Event of
Default occurs and is continuing with respect to more than one
series of Indenture Securities, the Holders of a majority in
aggregate principal amount of the Outstanding Indenture
Securities of all such series, considered as one class, will have
the right to make such direction, and not the Holders of the
Indenture Securities of any one of such series; and provided,
further, that (a) such direction does not conflict with any
rule of law or with the Indenture, and could not involve the
Trustee in personal liability in circumstances where indemnity
would not, in the Trustee's sole discretion, be adequate, (b) the
Trustee does not determine that the action so directed would be
unjustly prejudicial to the Holders of Indenture Securities of
such series not taking part in such direction and (c) the Trustee
may take any other action deemed proper by the Trustee which is
not inconsistent with such direction. (See Section 712.)
Limitation on Right to Institute Proceedings
No Holder of any Indenture Security will have any right to
institute any proceeding, judicial or otherwise, with respect to
the Indenture or for the appointment of a receiver or for any
other remedy thereunder unless:
(a) such Holder has previously given to the Trustee
written notice of a continuing Event of Default with respect
to the Indenture Securities of any one or more series;
(b) the Holders of a majority in aggregate principal
amount of the outstanding Indenture Securities of all series
in respect of which such Event of Default has occurred,
considered as one class, have made written request to the
Trustee to institute proceedings in respect of such Event of
Default and have offered the Trustee reasonable indemnity
against costs and liabilities to be incurred in complying
with such request; and
(c) for 60 days after receipt of such notice, the
Trustee has failed to institute any such proceeding and no
direction inconsistent with such request has been given to
the Trustee during such 60 day period by the Holders of a
majority in aggregate principal amount of Indenture
Securities then outstanding.
Furthermore, no Holder of Indenture Securities of any series
will be entitled to institute any such action if and to the
extent that such action would disturb or prejudice the rights of
other Holders of Indenture Securities of such series. (See
Section 707.)
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No Impairment of Right to Receive Payment
Notwithstanding that the right of a Holder to institute a
proceeding with respect to the Indenture is subject to certain
conditions precedent, each Holder of an Indenture Security will
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 Indenture Security when due and to institute suit
for the enforcement of any such payment, and such rights may not
be impaired or affected without the consent of such Holder. (See
Section 708.)
Notice of Default
The Trustee is required to give the Holders notice of any
default under the Indenture to the extent required by the Trust
Indenture Act, unless such default shall have been cured or
waived, except that no such notice to holders of a default of the
character described in clause (c) under " Events of Default" may
be given until at least 75 days after the occurrence thereof.
For purposes of the preceding sentence, the term "default" means
any event which is, or after notice or lapse of time, or both,
would become, an Event of Default. The Trust Indenture Act
currently permits the Trustee to withhold notices of default
(except for certain payment defaults) if the Trustee in good
faith determines the withholding of such notice to be in the
interests of the holders. (See Section 802.)
CONSOLIDATION, MERGER, SALE OF ASSETS
Neither DQE Capital nor DQE may consolidate with or merge
into any other Person, or convey or otherwise transfer, or lease,
all of its properties, as or substantially as an entirety, to any
Person, unless:
(a) the Person formed by such consolidation or into
which DQE Capital or DQE, as the case requires, is merged or
the Person which acquires by conveyance or other transfer,
or which leases (for a term extending beyond the last Stated
Maturity of the Indenture Securities then Outstanding), all
of the properties of DQE Capital or DQE, as the case
requires, as or substantially as an entirety, shall be a
Person organized and existing under the laws of the United
States, any State or Territory thereof or the District of
Columbia or under the laws of Canada or any Province
thereof; and
(b) such Person shall expressly assume the due and
punctual payment of the principal of and premium, if any,
and interest, if any, on all the Indenture Securities then
Outstanding and the performance and observance of every
covenant and condition of the Indenture to be performed or
observed by DQE Capital or DQE, as the case requires.
In the case of the conveyance or other transfer of all of the
properties of DQE Capital or DQE, as or substantially as an
entirety, to any person as contemplated above, DQE Capital or
DQE, as the case requires, would be released and discharged from
all obligations under the Indenture and on all Indenture
Securities then outstanding unless DQE Capital or DQE, as the
case requires, elects to waive such release and discharge. Upon
any such consolidation or merger or any such conveyance or other
transfer of properties of DQE Capital or DQE, as the case
requires, the successor or transferee shall succeed to, and be
substituted for, and may exercise every power and right of, DQE
Capital or DQE, as the case requires, under the Indenture. (See
Sections 1001, 1002 and 1003).
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The Indenture will not prevent or restrict:
(a) any consolidation or merger after the consummation
of which DQE Capital or DQE would be the surviving or
resulting entity;
(b) any consolidation of DQE Capital with DQE or any
other Person all of the outstanding voting securities of
which are owned, directly or indirectly, by DQE; or any
merger of any of such Persons into any other of such
Persons; or any conveyance or other transfer, or lease, of
properties by any thereof to any other thereof;
(c) any conveyance or other transfer, or lease, of any
part of the properties of DQE Capital or DQE which does not
constitute the entirety, or substantially the entirety,
thereof; or
(d) the approval by DQE Capital or DQE of, or the
consent by DQE Capital or DQE to, any consolidation or
merger to which any direct or indirect subsidiary or
affiliate of DQE Capital or DQE, as the case requires, may
be a party or any conveyance, transfer or lease by any such
subsidiary or affiliate of any of its assets. (See Section
1004.)
MODIFICATION OF INDENTURE
Modifications Without Consent
DQE Capital, DQE and the Trustee may enter into one or more
supplemental indentures without the consent of any Holders of
Indenture Securities, for any of the following purposes:
(a) to evidence the succession of another Person to
DQE Capital or DQE, as the case may be, and the assumption
by any such successor of the covenants of such party; or
(b) to add one or more covenants of DQE Capital or
DQE, as the case may be, or other provisions for the benefit
of all Holders of Indenture Securities or for the benefit of
the Holders of, or to remain in effect only so long as there
shall be Outstanding, Indenture Securities of one or more
specified series, or one or more Tranches thereof, or to
surrender any right or power conferred upon DQE Capital or
DQE by the Indenture; or
(c) to change or eliminate any provision of the
Indenture or to add any new provision to the Indenture,
provided that if such change, elimination or addition
adversely affects the interests of the Holders of the
Indenture Securities of any series or Tranche in any
material respect, such change, elimination or addition will
become effective with respect to such series or Tranche only
when no Indenture Security of such series or Tranche remains
Outstanding; or
(d) to provide collateral security for the Indenture
Securities or any series thereof; or
(e) to establish the form or terms of the Indenture
Securities of any series or Tranche as permitted by the
Indenture; or
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(f) to provide for the authentication and delivery of
bearer securities and coupons relating thereto
representing interest, if any, thereon and for the
procedures for the registration, exchange and replacement
thereof and for the giving of notice to, and the
solicitation of the vote or consent of, the holders thereof,
and for any and all other matters incidental thereto; or
(g) to evidence and provide for the acceptance of
appointment by a successor trustee with respect to the
Indenture Securities of one or more series; or
(h) to provide for the procedures required to permit
the utilization of a non-certificated system of registration
for all, or any series or Tranche of, the Indenture
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 Indenture Securities, or any Tranche
thereof, will be payable, (2) all or any series of Indenture
Securities, or any Tranche thereof, may be surrendered for
registration of transfer, (3) all or any series of Indenture
Securities, or any Tranche thereof, may be surrendered for
exchange and (4) notices and demands to or upon DQE Capital
or DQE in respect of all or any series of Indenture
Securities, or any Tranche thereof, and the Indenture may be
served; or
(j) to cure any ambiguity, to correct or supplement
any provision therein which may be defective or inconsistent
with any other provision therein, or to make any other
changes to the provisions thereof or to add other provisions
with respect to matters and questions arising under the
Indenture, so long as such other changes or additions do not
adversely affect the interests of the Holders of Indenture
Securities of any series or Tranche in any material respect.
(See Section 1101.)
Without limiting the generality of the foregoing, if the
Trust Indenture Act is amended after the date of the Original
Indenture in such a way as to require changes to the Indenture or
the incorporation therein of additional provisions or so as to
permit changes to, or the elimination of, provisions which, at
the date of the Original Indenture or at any time thereafter,
were required by the Trust Indenture Act to be contained in the
Indenture, the Indenture will be deemed to have been amended so
as to conform to such amendment or to effect such changes or
elimination, and DQE Capital, DQE and the Trustee may, without
the consent of any Holders of Indenture Securities, enter into
one or more supplemental indentures to evidence such amendment.
Modifications Requiring Consent
Except as provided above, the consent of the Holders of a
majority in aggregate principal amount of the Indenture
Securities of all series then Outstanding, considered as one
class, is required for the purpose of adding any provisions to,
or changing in any manner, or eliminating any of the provisions
of, the Indenture pursuant to one or more supplemental
indentures; provided, however, that if less than all of the
series of Indenture Securities Outstanding are directly affected
by a proposed supplemental indenture, then the consent only of
the Holders of a majority in aggregate principal amount of
Outstanding Indenture Securities of all series so directly
affected, considered as one class, will be required; and
provided, further, that if the Indenture Securities of any series
14
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have been issued in more than one Tranche and if the proposed
supplemental indenture directly affects the rights of the Holders
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 Indenture Securities of all Tranches so
directly affected, considered as one class, will be required; and
provided, further, that no such supplemental indenture may
(a) change the Stated Maturity of the principal of, or
any installment of principal of or interest on, any
Indenture Security other than pursuant to the terms thereof,
or reduce the principal amount thereof or the rate of
interest thereon (or the amount of any installment of
interest thereon) or change the method of calculating such
rate or reduce any premium payable upon the redemption
thereof, or reduce the amount of the principal of any
Discount Security that would be due and payable upon a
declaration of acceleration of Maturity or change the coin
or currency (or other property) in which any Indenture
Security or any premium or the interest thereon is payable,
or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity of any
Indenture Security (or, in the case of redemption, on or
after the redemption date) without, in any such case, the
consent of the Holder of such Indenture Security,
(b) reduce the percentage in principal amount of the
Outstanding Indenture Securities of any series, or any
Tranche thereof, 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 the Indenture or of any
default thereunder and its consequences, or reduce the
requirements for quorum or voting, without, in any such
case, the consent of the Holder of each Outstanding
Indenture Security of such series or Tranche, or
(c) modify certain of the provisions of the Indenture
relating to supplemental indentures, waivers of certain
covenants and waivers of past defaults with respect to the
Indenture Securities of any series, or any Tranche thereof,
without the consent of the Holder of each Outstanding
Indenture Security of such series or Tranche.
A supplemental indenture which changes or eliminates any
covenant or other provision of the Indenture which has expressly
been included solely for the benefit of the Holders of, or which
is to remain in effect only so long as there shall be
Outstanding, Indenture Securities of one or more specified
series, or one or more Tranches thereof, or modifies the rights
of the Holders of Indenture Securities of such series or Tranches
with respect to such covenant or other provision, will be deemed
not to affect the rights under the Indenture of the Holders of
the Indenture Securities of any other series or Tranche.
If the supplemental indenture or other document establishing
any series or Tranche of Indenture Securities so provides, and as
specified in the applicable prospectus supplement and/or pricing
supplement, the Holders of such Indenture Securities will be
deemed to have consented, by virtue of their purchase of such
Indenture Securities, to a supplemental indenture containing the
additions, changes or eliminations to or from the Indenture which
are specified in such supplemental indenture or other document,
no Act of such Holders will be required to evidence such consent
and such consent may be counted in the determination of whether
the Holders of the requisite principal amount of Indenture
Securities have consented to such supplemental indenture. (See
Section 1102.)
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DUTIES OF THE TRUSTEE; RESIGNATION; REMOVAL
The Trustee will have, and will be subject to, all the
duties and responsibilities specified with respect to an
indenture trustee under the Trust Indenture Act. Subject to such
provisions, the Trustee will be under no obligation to exercise
any of the powers vested in it by the Indenture at the request of
any Holder of Indenture Securities, unless such Holder offers it
reasonable indemnity against the costs, expenses and liabilities
which might be incurred thereby. The Trustee will not be
required to expend or risk its own funds or otherwise incur
personal financial liability in the performance of its duties if
the Trustee reasonably believes that repayment or adequate
indemnity is not reasonably assured to it. (See Sections 801 and
803.)
The Trustee may resign at any time with respect to the
Indenture Securities of one or more series by giving written
notice thereof to DQE Capital or may be removed at any time with
respect to the Indenture Securities of one or more series by Act
of the Holders of a majority in principal amount of the
Outstanding Indenture Securities of such series delivered to the
Trustee and DQE Capital. No resignation or removal of the
Trustee and no appointment of a successor trustee will become
effective until the acceptance of appointment by a successor
trustee in accordance with the requirements of the Indenture. So
long as no Event of Default or event which, after notice or lapse
of time, or both, would become an Event of Default has occurred
and is continuing, if DQE Capital has delivered to the Trustee
with respect to one or more series an instrument appointing a
successor trustee with respect to that or those series and such
successor has accepted such appointment in accordance with the
terms of the Indenture, the Trustee with respect to that or those
series will be deemed to have resigned and the successor will be
deemed to have been appointed as trustee in accordance with the
Indenture. (See Section 810.)
EVIDENCE OF COMPLIANCE
Compliance with the Indenture provisions is evidenced by
written statements of officers of DQE Capital and DQE or persons
selected or paid by DQE Capital or DQE. In certain cases,
opinions of counsel and certifications of an engineer, appraiser
or other expert (who in some cases must be independent) must be
furnished. In addition, the Indenture requires that DQE Capital
and DQE give the Trustee, not less than annually, a brief
statement as to compliance with the conditions and covenants
under the Indenture.
GOVERNING LAW
The Indenture and the Indenture Securities will be governed
by and construed in accordance with the laws of the State of New
York, except to the extent that the Trust Indenture of 1939, as
amended, shall be applicable.
PLAN OF DISTRIBUTION
DQE Capital may sell the Debt Securities in any of three
ways: (1) to or through underwriters or dealers, (2) directly to
one or more purchasers or (3) through agents. The applicable
prospectus supplement or a supplement thereto will set forth the
terms of the offering of any Debt Securities, including the names
of any underwriters, dealers or agents, the purchase price of
such Debt Securities and the proceeds to DQE Capital from such
sale, any underwriting discounts or commissions and other items
16
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constituting underwriters' compensation, the initial public
offering price, any discounts or concessions allowed or reallowed
or paid to dealers and any securities exchanges on which such
Debt Securities may be listed.
If underwriters are used in any sale of Debt Securities,
such Debt Securities will be acquired by the underwriters for
their own account and may be resold from time to time in one or
more transactions, including negotiated transactions, at a fixed
public offering price or at varying prices determined at the time
of sale. Such Debt Securities may be offered to the public
either through underwriting syndicates represented by managing
underwriters or by underwriters without a syndicate. Unless
otherwise set forth in the applicable prospectus supplement, the
obligations of the underwriters to purchase such Debt Securities
will be subject to certain conditions precedent, and the
underwriters will be obligated to purchase all of such Debt
Securities if any of such Debt Securities are purchased, except
that, in certain cases involving a default by one or more
underwriters, less than all of such Debt Securities may be
purchased. The initial public offering prices and any discounts
or concessions allowed or reallowed or paid to dealers may be
changed from time to time.
The Debt Securities may also be sold directly by DQE Capital
or through agents designated by DQE Capital from time to time.
Any agent involved in the offer or sale of the Debt Securities
will be named, and any commissions payable by DQE Capital to such
agent will be set forth, in the applicable prospectus supplement
or a supplement thereto. Unless otherwise indicated in the
applicable prospectus supplement, any such agent will act on a
best efforts basis for the period of its appointment.
If so indicated in the applicable prospectus supplement or a
supplement thereto, DQE Capital will authorize agents,
underwriters or dealers to solicit offers by certain specified
institutions to purchase the Debt Securities at the public
offering price set forth in such prospectus supplement or
supplement pursuant to delayed delivery contracts providing for
payment and delivery on a future date specified in such
prospectus supplement or supplement. Such contracts will be
subject only to those conditions set forth in the applicable
prospectus supplement or supplement thereto and such prospectus
supplement or supplement will set forth the commissions payable
for solicitation of such contracts.
Any underwriters, dealers or agents participating in the
distribution of the Debt Securities may be deemed to be
underwriters and any discounts or commissions received by them on
the sale or resale of the Debt Securities may be deemed to be
underwriting discounts and commissions under the Securities Act
of 1933, as amended. Agents and underwriters may be entitled
under agreements entered into with DQE Capital to indemnification
by DQE Capital against certain liabilities, including liabilities
under the Securities Act and other securities laws, or to
contribution with respect to payments that the agents or
underwriters may be required to make in respect thereof.
Any underwriters, dealers or agents participating in the
distribution of the Debt Securities, and/or affiliates thereof,
may engage in transactions with and perform services for DQE
Capital and its affiliates in the ordinary course of business.
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EXPERTS
The consolidated financial statements and the related
financial statement schedule incorporated in this prospectus by
reference to DQE's most recent Annual Report on Form 10-K have
been audited by Deloitte & Touche LLP, independent auditors, as
stated in their report, which is included in such Form 10-K,
and have been so incorporated in reliance upon the report of
such firm given upon their authority as experts in accounting
and auditing.
LEGAL OPINIONS
The validity of the Debt Securities and the Guaranty and
certain other matters will be passed upon for DQE Capital and DQE
by David R. High, Esq., employed by DQE as its Associate General
Counsel, and by Thelen Reid & Priest LLP, special counsel for DQE
Capital and DQE, and for any agents, underwriters or dealers by
Milbank, Tweed, Hadley & McCloy LLP. In giving their opinions,
Thelen Reid & Priest LLP and Milbank, Tweed, Hadley & McCloy LLP
may rely on the opinion of Mr. High as to all matters of
Pennsylvania law, and Mr. High may rely upon the opinion of
Thelen Reid & Priest LLP as to all matters of New York law and
certain matters of federal securities law.
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PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Securities and Exchange Commission registration fee . $ 69,500
Printing expenses . . . . . . . . . . . . . . . . . . 10,000
Trustee fees and expenses . . . . . . . . . . . . . . 10,000
Legal fees and expenses . . . . . . . . . . . . . . . 200,000
Accounting fees and expenses . . . . . . . . . . . . 25,000
Blue Sky fees and expenses . . . . . . . . . . . . . 10,000
Rating Agency fees . . . . . . . . . . . . . . . . . 100,000
Miscellaneous . . . . . . . . . . . . . . . . . . . . 5,500
-------
Total . . . . . . . . . . . . . . . . . . . . . $430,000
=======
-------------------
All of the above except the Securities and Exchange Commission
registration fee are estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
DQE, INC.
---------
Under the Restated Articles of DQE, to the fullest extent that
the laws of the Commonwealth of Pennsylvania, as now or as
hereafter amended, permit elimination or limitation of the
liability of directors, no director of DQE shall be personally
liable for monetary damages for any action taken, or any failure
to take action, as a director.
Under the By-Laws of DQE, the directors and officers of DQE
are each entitled to be indemnified against reasonable expenses,
including attorneys' fees, and any liability paid or incurred by
them in connection with any actual or threatened claim, action,
suit or other proceeding by reason of their being or having been
a director or officer of DQE, or serving or having served at the
request of DQE as a representative of another corporation,
partnership, joint venture, trust, employee benefit plan or other
entity, except as prohibited by law.
Section 1746(b) of the Pennsylvania Business Corporation Law
prohibits indemnification in any case where the act or failure to
act giving rise to the claim for indemnification is determined by
a court to have constituted willful misconduct or recklessness.
DQE maintains director and officer liability insurance
covering the directors and officers of DQE and all its
subsidiaries with respect to certain liabilities which may be
incurred in connection with their service to DQE or any of its
subsidiaries, including liabilities arising under the Securities
Act of 1933, as amended. This insurance provides reimbursement
to DQE and its subsidiaries up to policy limits for amounts paid
to directors and officers pursuant to the indemnification
provisions summarized above.
Directors and officers of DQE may also be indemnified in
certain circumstances pursuant to the statutory provisions of
general application contained in Pennsylvania law. Furthermore,
DQE, as well as its directors and officers, may be entitled to
indemnification by any underwriters named in a Prospectus
Supplement against certain civil liabilities under the Securities
Act of 1933 under agreements entered into between DQE and such
underwriters.
DQE CAPITAL CORPORATION
-----------------------
Article 7 of DQE Capital's Articles of Incorporation provides,
in relevant part, as follows:
(a) No director of the Corporation shall be personally
liable for monetary damages for breach of fiduciary duty as a
Director; provided, however, that nothing herein shall be
deemed to eliminate or limit any liability which may not be so
II-1
<PAGE>
eliminated or limited under the laws of the State of Delaware,
as in effect at the effective date of this Certificate of
Incorporation or as thereafter amended. No amendment,
modification or repeal of this paragraph (a) shall eliminate
or limit the protection afforded by this paragraph (a) to a
director with respect to any act or omission occurring before
the effective date thereof.
(b) (1) The Corporation shall, to the maximum extent
permitted by applicable law, as from time to time in effect,
indemnify any person who was or is a party to or otherwise
involved in (or threatened to be made a party to or otherwise
involved in) any threatened, pending or completed action, suit
or proceeding (hereinafter called an "Action"), whether civil,
criminal, administrative or investigative (including without
limitation any Action by or in the right of the Corporation to
procure a judgment in its favor) by reason of the fact that he
is or was a director or officer of the Corporation, or is or
was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or
any other entity or enterprise, against expenses (including
attorneys' fees) and against judgments, fines (including any
excise tax assessed with respect to an employee benefit plan)
and amounts paid in settlement actually and reasonably
incurred by him in connection with such Action or any appeal
therein.
(2) The Corporation shall pay any such expenses
incurred by a director or officer, or former director or
officer, of the Corporation in defending any such Action in
advance of the final disposition thereof upon receipt of an
undertaking by or on behalf of such person to repay such
advances to the extent of the amount to which such person
shall ultimately be determined not to be entitled.
. . . . . . .
(5) The Corporation may purchase and maintain insurance
on behalf of, or insure or cause to be insured, any Person who
is an Indemnified Person against any liability asserted
against him and incurred by him in any capacity in respect of
which he is an Indemnified Person, or arising out of his
status in such capacity, whether or not the Corporation would
have the power to indemnify him against such liability under
this paragraph (b). As used in this Section "insurance"
includes retrospectively rated and self-insured programs;
provided, however, that no such program shall provide coverage
for directors and officers which is prohibited by applicable
law. The Corporation's indemnity of any person who is an
Indemnified Person shall be reduced by any amounts such person
may collect with respect to such liability (A) under any
policy of insurance purchased and maintained on his behalf by
the Corporation or (B) from any other entity or enterprise
served by such person.
The By-Laws of DQE Capital provide that DQE Capital shall
provide, in certain circumstances, director and officer liability
insurance covering its directors and officers for any liability
arising out of their status as directors and officers of DQE
Capital.
Directors and officers of DQE Capital may also be indemnified
in certain circumstances pursuant to the statutory provisions of
general application contained in Delaware law. Furthermore, DQE
Capital, as well as its directors and officers, may be entitled
to indemnification by any underwriters named in a Prospectus
Supplement against certain civil liabilities under the Securities
Act of 1933 under agreements entered into between DQE Capital and
such underwriters.
ITEM 16. EXHIBITS.
Reference is made to the Exhibit Index filed herewith at page
II-7, such Exhibit Index being incorporated in this Item 16 by
reference.
ITEM 17. UNDERTAKINGS.
The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
Registration Statement:
II-2
<PAGE>
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in the Registration Statement. Notwithstanding the
foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in
the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20% change in
the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
Registration Statement; and
(iii) to include any material information with
respect to the plan of distribution not previously
disclosed in the Registration Statement or any material
change to such information in the Registration Statement;
provided, however, that (i) and (ii) do not apply if the
-------- -------
information required to be included in a post-effective
amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the
registrants pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) That, for purposes of determining any liability
under the Securities Act of 1933, each filing of DQE, Inc.'s
annual report pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange Act of 1934 that is incorporated by
reference in this Registration Statement shall be deemed to
be a new registration statement relating to the securities
offered herein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrants pursuant to the
provisions described under Item 15 above, or otherwise, the
registrants have been advised that in the opinion of the
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such
liabilities (other than the payment by a registrant of
expenses incurred or paid by a director, officer or
controlling person in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or
controlling person against either registrant in connection
with the securities being registered, such registrant will,
unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
II-3
<PAGE>
POWER OF ATTORNEY
EACH DIRECTOR AND/OR OFFICER OF THE REGISTRANT WHOSE SIGNATURE
APPEARS BELOW HEREBY APPOINTS GARY L. SCHWASS, DIANE S. EISMONT
AND VICTOR A. ROQUE, AND EACH OF THEM SEVERALLY, AS HIS TRUE AND
LAWFUL ATTORNEY-IN-FACT AND AGENT TO SIGN IN HIS NAME AND BEHALF,
IN ANY AND ALL CAPACITIES STATED BELOW, AND TO FILE WITH THE
SECURITIES AND EXCHANGE COMMISSION, ANY AND ALL AMENDMENTS,
INCLUDING POST-EFFECTIVE AMENDMENTS, TO THIS REGISTRATION
STATEMENT, AND THE REGISTRANT HEREBY ALSO APPOINTS EACH SUCH
PERSON AS ITS ATTORNEY-IN-FACT AND AGENT WITH LIKE AUTHORITY TO
SIGN AND FILE ANY SUCH AMENDMENTS IN ITS NAME AND BEHALF.
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS
AMENDED, DQE, INC. CERTIFIES THAT IT HAS REASONABLE GROUNDS TO
BELIEVE THAT IT MEETS ALL OF THE REQUIREMENTS FOR FILING ON FORM
S-3 AND HAS DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED
ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN
THE CITY OF PITTSBURGH, AND COMMONWEALTH OF PENNSYLVANIA, ON THE
10TH DAY OF JUNE, 1999.
DQE, INC.
(REGISTRANT)
BY /s/Gary L. Schwass
-------------------------------
Gary L. Schwass
Executive Vice President and
Chief Financial Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS
AMENDED, THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE
FOLLOWING PERSONS IN THE CAPACITIES INDICATED ON THE 10TH DAY OF
JUNE, 1999.
SIGNATURE TITLE
--------- -----
/s/David D. Marshall President, Chief Executive
-------------------------- Officer and Director
David D. Marshall (Principal Executive
Officer)
/s/Gary L. Schwass Executive Vice President
--------------------------- and Chief Financial Officer
Gary L. Schwass (Principal Financial
Officer)
/s/Morgan K. O'Brien Vice President, Controller
--------------------------- and Treasurer
Morgan K. O'Brien (Principal Accounting
Officer)
*
------------------------ Director
Daniel Berg
Director
------------------------
Doreen E. Boyce
Director
*
------------------------
Robert P. Bozzone Director
II-4
<PAGE>
*
------------------------ Director
Sigo Falk
Director
------------------------
William H. Knoell
Director
*
------------------------
Thomas J. Murrin
*
------------------------
Eric W. Springer
*By: /s/Gary L. Schwass
----------------------
Gary L. Schwass
As Attorney-in-Fact
II-5
<PAGE>
POWER OF ATTORNEY
EACH DIRECTOR AND/OR OFFICER OF THE REGISTRANT WHOSE SIGNATURE
APPEARS BELOW HEREBY APPOINTS GARY L. SCHWASS, DIANE S. EISMONT
AND VICTOR A. ROQUE, AND EACH OF THEM SEVERALLY, AS HIS TRUE AND
LAWFUL ATTORNEY-IN-FACT AND AGENT TO SIGN IN HIS NAME AND BEHALF,
IN ANY AND ALL CAPACITIES STATED BELOW, AND TO FILE WITH THE
SECURITIES AND EXCHANGE COMMISSION, ANY AND ALL AMENDMENTS,
INCLUDING POST-EFFECTIVE AMENDMENTS, TO THIS REGISTRATION
STATEMENT, AND THE REGISTRANT HEREBY ALSO APPOINTS EACH SUCH
PERSON AS ITS ATTORNEY-IN-FACT AND AGENT WITH LIKE AUTHORITY TO
SIGN AND FILE ANY SUCH AMENDMENTS IN ITS NAME AND BEHALF.
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933,
THE REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO
BELIEVE THAT IT MEETS ALL OF THE REQUIREMENTS FOR FILING ON FORM
S-3 AND HAS DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED
ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN
THE CITY OF PITTSBURGH, AND COMMONWEALTH OF PENNSYLVANIA, ON THE
10TH DAY OF JUNE, 1999.
DQE CAPITAL CORPORATION
(REGISTRANT)
BY/s/Gary L. Schwass
------------------------------
GARY L. SCHWASS, PRESIDENT
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE
FOLLOWING PERSONS IN THE CAPACITIES INDICATED ON THE 10TH DAY
OF JUNE, 1999.
SIGNATURE TITLE
--------- -----
/S/GARY L. SCHWASS PRESIDENT AND
------------------------------ DIRECTOR (PRINCIPAL
GARY L. SCHWASS EXECUTIVE OFFICER)
/S/JAMES D. MITCHELL VICE PRESIDENT AND
------------------------------ DIRECTOR
JAMES D. MITCHELL (PRINCIPAL
FINANCIAL OFFICER)
/S/MORGAN K. O'BRIEN VICE PRESIDENT AND
------------------------------ DIRECTOR
MORGAN K. O'BRIEN
/S/JAMES E. WILSON CONTROLLER
------------------------------ (PRINCIPAL
JAMES E. WILSON ACCOUNTING OFFICER)
/S/DAVID D. MARSHALL DIRECTOR
------------------------------
DAVID D. MARSHALL
/S/VICTOR A. ROQUE DIRECTOR
------------------------------
VICTOR A. ROQUE
/S/JACK E. SAXER, JR. DIRECTOR
------------------------------
JACK E. SAXER, JR.
II-6
<PAGE>
DQE, INC.
DQE CAPITAL CORPORATION
REGISTRATION STATEMENT ON FORM S-3
EXHIBIT INDEX
Exhibit Description and
No. Method of Filing
------- ----------------
1.1 Form of Selling Agency Filed herewith.
Agreement (including form of
Terms Agreement)
1.2 Form of Underwriting A form of any
Agreement underwriting agreement
with respect to the
Debt Securities will
be filed as an Exhibit
on Form 8-K, as
contemplated by Item
601(b)(1) of
Regulation S-K under
the Securities Act.
3.1* Articles of Incorporation of Exhibit 3.1 to DQE,
DQE, effective January 5, Inc.'s Annual Report
1989. on Form 10-K for the
year ended December
31, 1989.
3.2* DQE Articles of Amendment, Exhibit 3.2 to DQE,
effective April 27, 1989, Inc.'s Annual Report
containing Restated Articles on Form 10-K for the
of Incorporation. year ended December
31, 1989.
3.3* DQE Articles of Amendment, Exhibit 3.3 to DQE,
effective February 8, 1993. Inc.'s Annual Report
on Form 10-K for the
year ended December
31, 1992.
3.4* DQE Articles of Amendment, Exhibit 3.4 to DQE,
effective May 24, 1994. Inc.'s Annual Report
on Form 10-K for the
year ended December
31, 1994.
3.5* DQE Articles of Amendment, Exhibit 3.5 to DQE,
effective April 20, 1995. Inc.'s Annual Report
on Form 10-K for the
year ended December
31, 1995.
3.6* By-Laws of DQE, as amended Exhibit 3.6 to DQE,
through December 18, 1996 and Inc.'s Annual Report
as currently in effect. on Form 10-K for the
year ended December
31, 1996.
3.7 Certificate of Incorporation Filed herewith.
of DQE Capital Corporation.
3.8 By-Laws of DQE Capital Filed herewith.
Corporation.
4.1 Form of Indenture from DQE Filed herewith.
Capital Corporation and DQE,
Inc. to The First National
Bank of Chicago, as Trustee.
4.2 Form of Officer's Certificate Filed herewith.
establishing the form and
terms of the Debt Securities.
5.1 Opinion of David R. High, Filed herewith.
Esq.
5.2 Opinion of Thelen Reid & Filed herewith.
Priest LLP.
II-7
<PAGE>
Exhibit Description and
No. Method of Filing
------- ----------------
12 *Calculation of Ratio of Exhibit 12 to DQE,
Earnings to Fixed Charges. Inc. Annual Report on
Form 10-K for the year
ended December 31,
1998 and Exhibit 12.1
to Quarterly Report on
Form 10-Q for the
quarter ended March
31, 1999.
23.1 Consent of David R. High, Filed herewith as part
Esq. of Exhibit 5.1.
23.2 Consent of Thelen Reid & Filed herewith as part
Priest LLP. of Exhibit 5.2.
23.3 Consent of Deloitte & Touche Filed herewith.
LLP.
24 Power of Attorney of Filed herewith.
Directors of DQE, Inc.
Power of Attorney of Filed herewith on page
Directors of DQE Capital II-5.
Corporation.
25.1 Statement of Eligibility of Filed herewith.
Trustee with respect to the
Debt Securities.
25.2 Statement of Eligibility of Filed herewith.
Trustee with respect to the
Guaranties.
----------------
* Previously filed as indicated and incorporated herein by
reference.
II-8
DQE Capital Corporation
$300,000,000
Medium-Term Notes, Series A
Unconditionally Guaranteed by DQE, Inc.
SELLING AGENCY AGREEMENT
____________, 1999
New York, New York
[Names and Addresses of Agents]
Dear Sirs:
DQE Capital Corporation, a Delaware corporation (the
"Company"), and DQE, Inc., a Pennsylvania corporation, as guarantor (the
"Guarantor", and together with the Company, the "Offerors") confirm their
agreement (the "Agreement") with each of you with respect to the issue and sale
by the Company of up to $300,000,000 aggregate principal amount of its
Medium-Term Notes, Series A (the "Notes").
The Company proposes to issue the Notes under an Indenture,
dated as of _________ __, 1999 (the "Indenture"), among the Company, the
Guarantor and The First National Bank of Chicago as trustee (the "Trustee"). DQE
will unconditionally guarantee (the "Guaranty") to the Holder of each Note, and
to the Trustee on behalf of each Holder, the due and punctual payment of the
principal of and premium, if any, and interest, if any, on such Notes when and
as the same shall become due and payable, in accordance with the terms of the
Notes and the Indenture.
The Notes will be issued in minimum denominations of $1,000
and any integral multiple thereof (unless otherwise specified by the Company),
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 or
supplements to the Prospectus referred to below. The Notes will be issued, and
the terms thereof established, in accordance with the Indenture, and, in the
case of Notes sold pursuant to Section 2(a), the Administrative Procedures for
the Notes, attached hereto as Exhibit A (the "Procedures"). The Procedures may
---------
only be amended by written agreement of the Company, the Guarantor 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 acting solely in the
capacity as agent for the Company pursuant to Section 2(a) and not as principal
(collectively, the "Agents"), the term "Purchaser" shall refer to any of you
acting solely as principal pursuant to Section 2(b) and not as agent, and the
term "you" shall refer to you together whether at any time any of you is acting
in both such capacities or in either such capacity.
<PAGE>
1. Representations and Warranties of Company and the
-------------------------------------------------
Guarantor. Each of the Company and the Guarantor jointly and severally
- ---------
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 (c)
hereof.
(a) The Guarantor meets, and the Company and the Guarantor,
together, meet, the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and the Company and the
Guarantor, as co-registrants, have filed with the Securities and
Exchange Commission (the "Commission"), as co-registrants, a
registration statement on such Form (File Nos. 333-_____ and 333-
____), including a basic prospectus, which has become effective, for
the registration under the Act of $300,000,000 aggregate principal
amount of the Company's debt securities, including the Notes, and the
Guarantor's Guaranty. Such registration statement, as amended at the
date of this Agreement, meets the requirements set forth in Rule
415(a)(1)(ix) or (x) under the Act and complies in all other material
respects with said Rule 415. The Company and the Guarantor have
included in such registration statement, or have filed or will file
with the Commission pursuant to the applicable paragraph of Rule 424(b)
under the Act, one or more supplements to the basic prospectus included
in such registration statement relating to the Notes and the plan of
distribution thereof (any such supplement being hereinafter called a
"Prospectus Supplement"). In connection with the sale of Notes, the
Company and the Guarantor propose to file with the Commission pursuant
to the applicable paragraph of Rule 424(b) under the Act further
supplements to the Prospectus Supplement providing for the
specification of or a change in the interest rates, if any, maturity
dates, issuance prices, redemption terms and prices, if any, and, if
appropriate, other terms of the Notes sold pursuant hereto or the
offering thereof (any such further supplement being hereinafter called
a "Pricing Supplement").
(b) (i) As of the Execution Time, (ii) on the Effective Date,
(iii) when any supplement to the Prospectus (as defined below) is filed
with, or transmitted for filing to, the Commission pursuant to Rule
424(b), (iv) as of the date of any Terms Agreement (as defined in
Section 2(b)) and (v) at the date of delivery by the Company of any
Notes sold hereunder (each, a "Closing Date"), (1) the Registration
Statement, as amended or supplemented as of any such time, the
Prospectus, as amended or supplemented as of any such time, and the
Indenture, as amended and supplemented as of any such time, complied or
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 applicable instructions, rules and regulations
of the Commission thereunder or pursuant to such instructions, rules
and regulations are deemed to comply therewith; (2) the Incorporated
Documents (as defined below), when filed with the Commission, complied
or will comply in all material respects with the applicable
requirements of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the applicable instructions, rules and regulations
of the Commission thereunder or pursuant to such instructions, rules
and regulations were or will be deemed to comply therewith; (3) the
Registration Statement, as amended or supplemented 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
-2-
<PAGE>
(4) the Prospectus, as amended or supplemented as of any such time, did
not or will not include 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 and the Guarantor
make no representations or warranties as to (A) that part of the
Registration Statement which shall constitute the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of the Mortgage
Trustee (the "Form T-1"), (B) any information contained in any
Prospectus Supplement specified to have been furnished or obtained from
The Depository Trust Company or (C) the information contained in or
omitted from the Registration Statement or the Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company or the Guarantor by any of you
specifically for use in connection with the preparation of the
Registration Statement or the Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term "Effective Date" shall mean the
later of the date and time that the Registration Statement or any
post-effective amendment or amendments thereto became or becomes
effective or the date and time of the filing thereafter of the
Guarantor's most recent Annual Report on Form 10-K. "Execution Time"
shall mean the date and time that this Agreement is executed and
delivered by the parties hereto. "Basic Prospectus" shall mean the
basic prospectus under the Act relating to the Notes included in the
Registration Statement at the Effective Date thereof (unless such basic
prospectus has been amended subsequent to the Effective Date, in which
case "Basic Prospectus" shall mean the basic prospectus as so amended).
"Prospectus" shall mean the Basic Prospectus as supplemented by the
Prospectus Supplement. "Registration Statement" shall mean the
registration statement referred to in paragraph (a) above, including
all Incorporated Documents, exhibits and financial statements, as
amended at the Execution Time. "Rule 415" and "Rule 424(b)" refer to
such rules under the Act. Any reference herein to the Registration
Statement, the Basic Prospectus, the Prospectus Supplement or the
Prospectus shall be deemed to refer to and include the documents that
are, or are deemed to be, incorporated by reference therein pursuant to
Item 12 of Form S-3 (the "Incorporated Documents") which were filed
under the Exchange Act on or before the Effective Date of the
Registration Statement 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 Statement, 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 of the Registration Statement 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.
(d) None of the Company, the Guarantor or any of their
respective subsidiaries is in violation of its charter or by-laws, or
in default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any contract, agreement
or other instrument to which it is a party or by which it or any of
them or their properties may be bound, the effect of which is material
to the Guarantor and its subsidiaries, taken as a whole, and neither
the execution, delivery or performance by the
-3-
<PAGE>
Company and the Guarantor of this Agreement, the execution or delivery
by the Company and the Guarantor of the Indenture, the consummation of
the transactions herein contemplated, the fulfillment of the terms of
the Indenture or the Notes, nor compliance with the terms and
provisions hereof or of the Indenture or the Notes will conflict with,
or result in a breach or violation of, or constitute a default under,
or result in the creation or imposition of any lien, charge or
encumbrance upon any of the property or assets of the Company or the
Guarantor or any of their respective subsidiaries pursuant to the terms
of, any statute, indenture, mortgage, deed of trust, loan agreement,
note, lease, or other agreement or instrument to which the Company or
the Guarantor or any of their respective subsidiaries is a party or by
which the Company or the Guarantor or any of their respective
subsidiaries is bound or to which any of the properties or assets of
the Company or the Guarantor or any of their respective subsidiaries is
subject, the effect of which is material to the Guarantor and the
Company taken as a whole, nor will such action result in a violation of
the provisions of (i) the charter or by-laws of the Company, the
Guarantor or any of their respective subsidiaries or (ii) any order,
rule or regulation applicable to the Company, the Guarantor or any of
their respective subsidiaries of any court or any federal or state
governmental body having jurisdiction over the Company, the Guarantor
or any of their respective subsidiaries or over their respective
properties, the effect of which is material to the Guarantor and the
Company taken as a whole.
(e) The Indenture has been duly authorized, executed and
delivered by each of the Company and the Guarantor and is a legal,
valid and binding obligation of the Company and the Guarantor,
enforceable against the Company and the Guarantor in accordance with
its terms, subject, as to enforcement, to laws relating to or affecting
generally the enforcement of creditors' rights, including, without
limitation, bankruptcy and insolvency laws, and to general principles
of equity.
(f) The creation, issuance and sale of the Notes has been duly
and validly authorized and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered and paid
for by the purchasers thereof, the Notes will constitute legal, valid
and binding obligations of the Company and the Guarantor enforceable
against the Company and the Guarantor in accordance with its terms,
subject, as to enforcement, to laws relating to or affecting generally
the enforcement of creditors' rights, including, without limitation,
bankruptcy and insolvency laws, and to general principles of equity,
and will be entitled to the benefits provided by the Indenture,
including the Guaranty contained therein.
(g) This Agreement has been duly and validly authorized,
executed and delivered by each of the Company and the Guarantor and,
upon execution and delivery to the Agents, will constitute a valid and
legally binding obligation of the Company and the Guarantor enforceable
against the Company and the Guarantor in accordance with its terms
subject, as to enforcement, to laws relating to or affecting generally
the enforcement of creditors' rights, including, without limitation,
bankruptcy and insolvency laws, and to general principles of equity..
(h) Each of the Company and the Guarantor has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its
-4-
<PAGE>
incorporation, with full corporate power and authority to own its
properties and conduct its business as described in the Registration
Statement and the Prospectus, and each of the Company and the Guarantor
is duly qualified as a foreign corporation to transact business as a
foreign corporation and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of their respective
businesses, except where the failure to so qualify or be in good
standing would not have a material adverse effect on the condition,
financial or otherwise or the results of operations of the Company or
the Guarantor, as applicable.
(i) Duquesne Light Company, Montauk, Inc., AquaSource, Inc.,
Duquesne Enterprises, Inc., DQE Energy Services, Inc. and DQEnergy
Partners, Inc., each a subsidiary of the Guarantor (each a "Subsidiary"
and together, the "Subsidiaries") and the Guarantor, each has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has corporate
power and authority to own, lease and operate its properties and to
conduct its business as presently conducted and as described in the
Registration Statement and the Prospectus, and is duly qualified as a
foreign corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or be in good standing
would not have a material adverse effect on the condition, financial or
otherwise, or the results of operations of the Guarantor and its
subsidiaries considered as one enterprise; all of the issued and
outstanding shares of capital stock of each such Subsidiary have been
duly authorized and validly issued, are fully paid and non-assessable
and all such shares are owned by the Guarantor directly or through its
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity.
(j) No consent, approval, authorization or order of any court
or other governmental agency or body is required for the consummation
of the transactions contemplated by this Agreement except such as have
been obtained and such as may be required under the Blue Sky Laws of
any jurisdiction in connection with the sale of the Notes as
contemplated by this Agreement.
(k) Deloitte & Touche LLP are independent public accountants
as required by the Act and the rules and regulations of the Commission
thereunder.
(n) Immediately after the sale of the Notes by the Company
hereunder, the aggregate amount of the Notes which shall have been
issued and sold by the Company hereunder and of any debt securities of
the Company (other than the Notes) that shall have been issued and sold
pursuant to the Registration Statement will not exceed the amount of
debt securities registered under the Registration Statement.
(o) None of the Company, the Guarantor or any of their
respective subsidiaries is an "investment company" or under the
"control" of an "investment company" as such terms are defined under
the Investment Company Act of 1940, as amended (the "1940 Act").
-5-
<PAGE>
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
reject any offer to purchase Notes, in whole or in part. In addition, 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 solicitations of offers to purchase Notes from the
Company until such time as the Company has advised the Agents that such
solicitation may be resumed.
Each Agent may, in its discretion reasonably exercised, reject
any offer to purchase Notes received by it in whole or in part.
The Company agrees to pay each Agent a commission, in the form
of a discount, 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
----------
of the Notes sold by the Company. Such commission shall be payable as specified
in the Procedures.
Subject to the provisions of this Section 2 and to the
Procedures, offers for the purchase of Notes may be solicited by an Agent as
agent for the Company at such times and in such amounts as such Agent deems
advisable. The Company may appoint additional agents in connection with the
offering of the Notes; provided that (i) the Company promptly notifies the
-------- ----
Agents of such appointment and (ii) the commission paid to any such additional
agent with respect to the sale of Notes by the Company as a result of a
solicitation made by such additional agent does not exceed that percentage
specified in Schedule I hereto of the aggregate principal amount of such Notes
sold by the Company; and provided further that, unless the appointment of such
-------- ------- ----
additional agent is expressly limited to the solicitation of offers to purchase
a specified principal amount of Notes on specified terms, such additional agent
enters into an agreement with the Company making such agent an Agent under this
Agreement or enters into an agreement with the Company on terms which are
substantially similar to those contained in this Agreement, which agreement
shall include appropriate changes to reflect the arrangements between the
Company and such additional agent. The Company may from time to time offer Notes
for sale other than through an Agent.
Each Agent agrees that in carrying out the transactions
contemplated by this Agreement, it will observe and comply with all state
securities or Blue Sky Laws, regulations, rules and ordinances in any
jurisdiction in which the Notes may be offered, sold or delivered applicable to
it as Agent hereunder. Each Agent agrees not to cause any advertisement of the
Notes to be published in any newspaper or periodical or posted in any public
place and not to
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<PAGE>
issue any publicly distributed circular relating to the Notes other than the
Prospectus, as then amended and supplemented, except in any such case with the
express consent of the Company.
(b) Subject to the terms and conditions stated herein,
whenever the Company and any Agent determine that the Company shall sell Notes
directly to such Agent as Purchaser, 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. Without prior notice to the Company, no purchase by
an Agent as principal of any Notes shall be made other than pursuant to such a
supplemental agreement. Each such supplemental agreement (which may be (i) an
oral agreement between an authorized officer of the Company and such Agent
promptly confirmed in writing (including facsimile transmission), provided such
oral agreement contains all the information, as applicable, specified in Exhibit
-------
B hereto or (ii) a written agreement, provided such written agreement is
- -
substantially in the form of Exhibit B hereto) is herein referred to as a "Terms
---------
Agreement." The Purchaser's commitment to purchase Notes pursuant to any Terms
Agreement shall be deemed to have been made on the basis of the representations
and warranties of the Company and the Guarantor herein contained and shall be
subject to the terms and conditions herein set forth. Each Terms Agreement shall
describe (whether orally or in writing) the Notes to be purchased by the
Purchaser pursuant thereto and confirm the continued effectiveness of the
Guaranty, specify the principal amount of such Notes, the price to be paid to
the Company for such Notes, the rate at which interest will be paid on the
Notes, the redemption provisions, if any, or other terms of such Notes, the
Closing Date for such Notes, the place of settlement of the Notes and payment
therefor, the method of payment and any modification of the requirements for the
delivery of the opinions of counsel, the certificates from the Company or its
officers, and the letter from the Company's independent public accountants,
pursuant to Section 6(b). Such Terms Agreement shall also specify the period of
time referred to in Section 4(m).
Delivery of the certificates for Notes sold to the Purchaser
pursuant to any Terms Agreement shall be made as agreed to between the Company
and the Purchaser as set forth in the respective Terms Agreement, not later than
the Closing Date set forth 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 respective Terms Agreement. If a Terms
Agreement does not contain such settlement details, the settlement details
specified in the Procedures shall apply; provided that in such event all
references to the Agent and the beneficial owner shall be deemed to refer to the
Purchaser.
Unless otherwise agreed to between the Company and the
Purchaser in a Terms Agreement, any Note sold to a Purchaser (i) 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 a
fixed public offering price or at varying prices determined at the time of sale.
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 the dealers or purchasers.
-7-
<PAGE>
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. Each of the Company and the Guarantor agrees
----------
with you that:
(a) Prior to the termination of the offering of the Notes
(including by way of resale by a Purchaser of Notes, provided that, if
such offering and resale of Notes has not terminated prior to the later
of the termination of this Agreement or the 60th day following the
Closing Date with respect to such Notes, such Purchaser shall have
notified the Company that such Notes have not yet been resold), the
Company and the Guarantor will not file any amendment of the
Registration Statement or supplement to the Prospectus (except for (i)
periodic or current reports filed under the Exchange Act, (ii) a
Pricing Supplement, or (iii) a supplement relating to an offering of
debt 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 and the
Guarantor 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. 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
the Registration Statement shall have been filed or become effective,
(iii) of any request by the Commission for any amendment of the
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 the 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 and the Guarantor will use their 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 the Registration Statement or to supplement
the Prospectus to comply with the Act, 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)
unless the Company shall have determined to suspend the solicitation of
offers to purchase Notes pursuant to Section 2 or to terminate this
Agreement, 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
-8-
<PAGE>
Prospectus to each of you in such quantities as you may reasonably
request; provided, however, that should any such event relate solely to
activities of any Purchaser, then such Purchaser shall assume the
expense of preparing and furnishing any such amendment or supplement.
Notwithstanding any suspension by the Company of solicitation of offers
to purchase Notes, the Company's obligations to prepare and file
amendments or supplements and supply supplemented Prospectuses shall
remain in effect if, at the time the Company gives notice of such
suspension, any Purchaser then holds Notes purchased pursuant to a
Terms Agreement pursuant to Section 2(b) and in connection with resales
of such Notes is required by law to deliver the Prospectus. If such
amendment or supplement, and any documents, certificates and opinions
furnished to each of you pursuant to paragraphs (j), (k) and (l) 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 the
Registration Statement, if such an amendment is required, resume your
obligation to solicit offers to purchase Notes hereunder. If requested
by the Company each Purchaser will inform the Company if it is then
holding any Notes purchased pursuant to a Terms Agreement pursuant to
Section 2(b).
(c) During the term of this Agreement, the Company and the
Guarantor will timely file 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 the date on which the Company or the Guarantor (or as
soon as practicable thereafter) makes any announcement to the general
public concerning earnings or concerning any other event which is
required to be described, or which the Company or the Guarantor
proposes to describe, in a document filed pursuant to the Exchange Act,
the Company or the Guarantor, as the case may be, will furnish to each
of you the information contained in such announcement. The Company and
the Guarantor will notify each of you of any downgrading in the rating
of the Notes or any other debt securities of the Company or the
Guarantor, respectively, or any action which either of them has actual
knowledge to downgrade the rating of the Notes or any other debt
securities of the Company or the Guarantor, by any "nationally
recognized statistical rating organization" (as defined for purposes of
Rule 436(g) under the Act), promptly after the Company or the Guarantor
learns of any such downgrading or action to downgrade.
(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 Guarantor 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 (except as otherwise provided herein), copies of the
Registration Statement (including exhibits thereto) 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.
-9-
<PAGE>
(f) The Company and the Guarantor will arrange for the
qualification of the Notes for sale under the laws of such
jurisdictions as any of you may designate, will maintain such
qualifications in effect so long as required for the distribution of
the Notes, and will arrange for the determination of the legality of
the Notes for purchase by institutional investors; provided, however,
that neither the Company nor the Guarantor shall be required to qualify
as a foreign corporation or to file a general consent to service of
process in any jurisdiction, or to comply with any other requirement
reasonably deemed by the Company or the Guarantor to be unduly
burdensome.
(g) During the term of this Agreement, the Company shall
furnish to each of you (i) copies of all annual, quarterly and other
reports furnished to stockholders of the Guarantor, (ii) copies of all
annual, quarterly and current reports (without exhibits but including
documents incorporated by reference therein) of the Guarantor filed
with the Commission under the Exchange Act and (iii) such other
information concerning the Company or the Guarantor as you may
reasonably request from time to time.
(h) The Company and the Guarantor 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 Statement, the
Prospectus, all amendments thereof and supplements thereto, the
Indenture, this Agreement, any Terms Agreement and all other documents
relating to the offering, the cost of preparing, printing, packaging
and delivering the Notes, the fees and disbursements, including fees of
counsel, incurred in compliance with Section 4(f), the fees and
disbursements of the Trustee and the fees of any ratings agency that
rates the Notes, (ii) reimburse each of you on a monthly basis for all
reasonable out-of-pocket expenses (including without limitation
advertising expenses) incurred by you in connection with this Agreement
and (iii) pay the reasonable fees and expenses of your counsel incurred
in connection with the execution of this Agreement and the reasonable
fees and expenses of your counsel incurred from time to time in
connection with offering of the Notes.
(i) Each acceptance by the Company of an offer to purchase
Notes and each delivery of the Notes by the Company will be deemed to
be a reconfirmation to you that the representations and warranties of
the Company contained in Section 1 are true and correct at the time of
such acceptance or delivery, as though made at and as of such time
(except that such representations and warranties shall be deemed to
relate solely to the Registration Statement as then amended and to the
Prospectus as then amended and supplemented to each such time).
(j) Except as otherwise provided in subsection (p) of this
Section 4, each time that the Registration Statement or the Prospectus
is amended or supplemented (other than by (i) an amendment or
supplement relating to any offering of debt securities other than the
Notes or (ii) a Pricing Supplement), the Company will deliver or cause
to be delivered promptly to each of you a certificate or certificates
of the Company and the Guarantor, signed by its Chairman of the Board,
President and Chief Executive Officer, any Vice President having
responsibilities for financial matters, or the Treasurer of the Company
-10-
<PAGE>
and the Guarantor, 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(e) but modified to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of
the effectiveness of such amendment or the filing of such supplement.
(k) Except as otherwise provided in subsection (p) of this
Section 4, each time that the Registration Statement or the Prospectus
is amended or supplemented (other than by (i) an amendment or
supplement relating to any offering of debt securities other than the
Notes, (ii) a Pricing Supplement or (iii) an amendment or supplement
setting forth or incorporating by reference financial statements or
other information as of and for a fiscal quarter, unless, in the case
of clause (iii) above, in the reasonable judgment of the Agents, such
financial statements or other information are of such a nature that an
opinion of counsel should be furnished), the Company and the Guarantor
shall furnish or cause to be furnished promptly to each of you a
written opinion of David R. High, Esq., Associate General Counsel of
the Guarantor, 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 opinion referred to in Section 5(b),
but modified to relate to the Registration Statement and the Prospectus
as amended and supplemented to the time of the effectiveness of such
amendment or the filing of such supplement or, in lieu of such opinion,
such counsel may furnish each of you with a letter to the effect that
you may rely on such counsel's last opinion to the same effect 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 Statement and the Prospectus as amended and
supplemented to the time of the effectiveness of such amendment or the
filing of such supplement).
(l) Except as otherwise provided in subsection (p) of this
Section 4, each time that the Registration Statement or the Prospectus
is amended or supplemented to include or incorporate amended or
supplemental financial information, the Company and the Guarantor shall
cause their 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(f)
with such changes as may be necessary to reflect the amended and
supplemental financial information included or incorporated by
reference in the Registration Statement and the Prospectus, as amended
or supplemented to the date of such letter; provided, however, that, if
-------- -------
the 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 or the Guarantor's
independent public accountants may limit the scope of such letter to
cover the matters set forth in Section 5(f)(i) and (ii)(1); provided
--------
further that after a reading of the "Management's Discussion and
------- ----
Analysis of Financial Condition and Results of Operations" disclosure
included in such amendment or supplement, the Agents may request that
the scope of such letter be expanded to cover specified information
relating to a material event of an accounting, financial or statistical
nature included in such amendment or supplement.
(m) During the period, if any, specified in any Terms
Agreement, the Company shall not, without the prior consent of the
Purchaser thereunder, issue or announce the
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<PAGE>
proposed issuance of any of its debt securities, including Notes, with
maturities or other 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 and issuances of
its commercial paper.
(n) Notwithstanding anything contained in this Agreement to
the contrary, the Company shall not be required to comply with the
provisions of subsections (j), (k) and (l) of this Section 4 during any
period (which may occur from time to time during the term of this
Agreement) for which the Company has instructed the Agents to suspend
the solicitation of offers to purchase Notes; provided that, during any
-------- ----
such period, any Purchaser does not then hold any Notes for resale
purchased pursuant to a Terms Agreement. Upon the Company's request,
each Purchaser shall promptly notify the Company as to whether such
Purchaser then holds any Notes for resale purchased pursuant to a Terms
Agreement. The Company shall be required to comply with the provisions
of subsections (b), (j), (k) and (l) of this Section 4 prior to
instructing the Agents to resume the solicitation of offers to purchase
Notes or prior to entering into a Terms Agreement.
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 and the Guarantor contained herein as of the Execution Time, on the
Effective Date, when any supplement to the Prospectus is filed with the
Commission and to the accuracy of the statements of the Company and the
Guarantor made in any certificates pursuant to the provisions hereof, to the
performance by the Company and the Guarantor of its obligations hereunder and to
the following additional conditions:
(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) The Company shall have furnished to each Agent the opinion
of David R. High, Esq., Associate General Counsel of the Guarantor,
dated the Execution Time, in form and substance satisfactory to the
Agents, to the effect that:
(i) Each of the Company and the Guarantor has been
duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation, with full corporate power and authority to own
its properties and conduct its business as described in the
Registration Statement and the Prospectus, and each of the
Company and the Guarantor is duly qualified as a foreign
corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or
the conduct of their respective businesses, except where the
failure to so qualify or be in good standing would not
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<PAGE>
have a material adverse effect on the condition, financial or
otherwise, or the results of operations of the Company and the
Guarantor, as applicable;
(ii) the Indenture has been duly authorized, executed
and delivered by each of the Company and the Guarantor, has
been duly qualified under the Trust Indenture Act, and is a
legal, valid and binding obligation of the Company and the
Guarantor, enforceable against the Company or the Guarantor,
as the case may be, in accordance with its terms, subject, as
to enforcement, to laws relating to or affecting generally the
enforcement of creditors' rights, including, without
limitation, bankruptcy and insolvency laws, and to general
principles of equity;
(iii) the creation, issuance and sale of the Notes
has been duly and validly authorized by each of the Company
and the Guarantor and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered
to and paid for by the purchasers thereof in accordance with
this Agreement, the Notes will constitute legal, valid and
binding obligations of the Company and the Guarantor,
enforceable against the Company or the Guarantor, as the case
may be, in accordance with their terms, subject, as to
enforcement, to laws relating to or affecting generally the
enforcement of creditors' rights, including, without
limitation, bankruptcy and insolvency laws, and to general
principles of equity, and will be entitled to the benefits of
the Indenture and the Guaranty included in the Indenture; and
the Notes conform as to legal matters to the description of
the terms thereof contained in the Registration Statement and
the Prospectus;
(iv) to the best knowledge of such counsel, there is
no pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body or any
arbitrator involving the Company or the Guarantor or any of
their respective subsidiaries, of a character required to be
disclosed in the Registration Statement which is not
adequately disclosed in the Prospectus, and there is no
franchise, contract or other document of a character required
to be described in the Registration Statement or Prospectus,
or to be filed as an exhibit, which is not described or filed
as required; and the statements included or incorporated in
the Prospectus describing any legal proceedings or material
contracts or agreements relating to the Company or the
Guarantor fairly summarize such matters;
(v) the Registration Statement, at the Effective
Date, and the Prospectus, at the date it was filed with, or
transmitted for filing to, the Commission pursuant to Rule
424(b) and at the date of such opinion (except as to the
financial statements and other financial and statistical data
contained or incorporated by reference in the Registration
Statement
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<PAGE>
and the Prospectus as to which such counsel need express no
opinion), complied as to form in all material respects with
all applicable requirements of the Act and the Trust Indenture
Act, and the applicable instructions, rules and regulations of
the Commission thereunder or pursuant to such instructions,
rules and regulations are deemed to have complied therewith;
the Incorporated Documents (except as to the financial
statements and other financial and statistical data contained
therein or incorporated by reference as to which such counsel
need express no opinion), when filed with the Commission,
complied as to form in all material respects with the
applicable requirements of the Exchange Act, and the
applicable instructions, rules and regulations of the
Commission thereunder or pursuant to such instructions, rules
and regulations are deemed to have complied therewith; the
Registration Statement has become effective under the Act,
and, to the best knowledge of such counsel, no proceedings for
a stop order with respect thereto have been instituted or are
pending or threatened under Section 8 of the Act;
(vi) such counsel has no reason to believe that the
Registration Statement, at the Effective Date, contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading, or that the
Prospectus, at the date it was filed with, or transmitted for
filing to, the Commission pursuant to Rule 424(b), and as of
the date of such opinion, includes an untrue statement of a
material fact or omits 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, that such counsel need not express any belief as to
(1) the financial statements or other financial or statistical
data contained in or incorporated by reference in the
Registration Statement and the Prospectus, (2) any information
contained in the Prospectus that was furnished to the Company
in writing by any of the Agents expressly for use therein or
specified therein to have been obtained from The Depository
Trust Company, or (3) statements contained in the Form T-1
filed as an exhibit to the Registration Statement;
(vii) this Agreement has been duly authorized
executed and delivered by each of the Company and the
Guarantor; and
(viii) none of the execution and delivery of the
Indenture, the issue and sale of the Notes in accordance with
this Agreement, or the consummation of any other of the
transactions contemplated by this Agreement or the fulfillment
of the terms thereof will conflict with, result in a breach
of, or constitute a default under, the respective charter or
By-Laws of the Company and the Guarantor, as amended, or the
terms of any indenture or other agreement or instrument known
to such counsel and to which the Company, the Guarantor or any
of their respective subsidiaries is a party or is bound, or
any order or regulation known to such counsel to be applicable
to the Company, the Guarantor or any of their respective
subsidiaries of any court, regulatory body, administrative
agency,
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<PAGE>
governmental body or arbitrator having jurisdiction over the
Company, the Guarantor or any of their respective
subsidiaries.
In rendering such opinion, such counsel may rely as to matters
involving the application of laws of the State of New York, the
Federal Securities Laws of the United States and the Federal Income
Tax Laws of the United States, to the extent deemed proper and
specified in such opinion, upon the opinion of Thelen Reid & Priest
LLP, counsel to the Company and the Guarantor.
(c) Each Agent shall have received from Thelen Reid & Priest
LLP, counsel to the Company and the Guarantor, dated the Execution
Time, an opinion to the same effect with respect to the matters
enumerated in paragraphs (ii), (iii), (v) (provided that such counsel
need not express any opinion as to the documents incorporated by
reference in the Registration Statement and the Prospectus, (vii) and
(ix) (to the extent such paragraph (ix) opines as to the respective
charter, as amended, and By-Laws of the Company and the Guarantor) of
subsection (b) of this Section 5 as the opinion of David R. High, Esq.
As to matters of Pennsylvania Law Thelen Reid & Priest LLP may rely on
the opinions of David R. High, Esq.
(d) Each Agent shall have received from Milbank, Tweed, Hadley
& McCloy LLP, counsel for the Agents, such opinion or opinions, dated
the Execution Time, with respect to the issuance and sale of the Notes,
the Indenture, the Registration Statement, the Prospectus and other
related matters as the Agents may reasonably require, and the Company
shall have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters.
(e) The Company and the Guarantor shall have furnished to each
Agent a certificate or certificates of the Company and the Guarantor,
signed by the respective Chairman of the Board, President and Chief
Executive Officer, any Vice President having responsibilities for
financial matters, or the Treasurer of the Company and the Guarantor,
dated the Execution Time, to the effect that:
(i) the representations and warranties of each of the
Company and the Guarantor in this Agreement are true and
correct in all material respects on and as of the date hereof
with the same effect as if made on the date hereof and each of
the Company and the Guarantor 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;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Company's or
Guarantor's knowledge, threatened;
(iii) since the date of the most recent financial
statements included in the Prospectus, there has been no
material adverse change in the business, properties or
condition (financial or other) of the Company, the Guarantor
and their respective subsidiaries, considered as one
enterprise, whether or not arising from
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<PAGE>
transactions in the ordinary course of business, except as set
forth in or contemplated by the Prospectus; and
(iv) no proceeding for the dissolution, merger,
consolidation or liquidation of the Company or the Guarantor
or for the sale of all or substantially all of its assets is
pending, or to the best of the signer's knowledge, threatened,
other than as described in the Registration Statement and
Prospectus or the documents incorporated therein by reference.
(f) At the Execution Time, Deloitte & Touche LLP shall have
furnished to each Agent a letter, dated as of the Execution Time, in
form and substance satisfactory to the Agents, confirming that they are
independent public accountants within the meaning of the Act and the
applicable published rules and regulations thereunder and stating in
effect that:
(i) in their opinion the audited consolidated
financial statements and related supplemental schedules
included or incorporated by reference in the Registration
Statement and the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the
Act and the Exchange Act and the published rules and
regulations thereunder;
(ii) on the basis of a reading of the latest
unaudited consolidated financial statements made available by
the Guarantor and its subsidiaries; a reading of the minutes
of the meetings of the Board of Directors of the Guarantor;
and inquiries of certain officials of the Guarantor who have
responsibility for financial and accounting matters of the
Guarantor and its subsidiaries, nothing came to their
attention which caused them to believe that:
(1) any unaudited condensed consolidated
financial statements included or incorporated by
reference in the Registration Statement and the
Prospectus do not comply in form in all material
respects with the applicable accounting requirements
and with the published rules and regulations of the
Commission with respect to financial statements
included or incorporated in Quarterly Reports on Form
10-Q under the Exchange Act; and said unaudited
condensed consolidated financial statements are not
in conformity with generally accepted accounting
principles applied on a basis substantially
consistent with that of the audited financial
statements included or incorporated by reference in
the Registration Statement and the Prospectus;
(2) with respect to the period subsequent to
the date of the most recent financial statements
(other than any capsule information) included or
incorporated by reference in the Registration
Statement and the Prospectus, there were any changes,
at a specified date not more than five business days
prior to the date of the letter, in the consolidated
capital stock, short-term indebtedness or long-term
debt of the Guarantor and its subsidiaries as
compared with the amounts shown on the most recent
-16-
<PAGE>
consolidated balance sheet included or incorporated
by reference in the Registration Statement and the
Prospectus, or for the period from the end of the
most recent fiscal year of the Guarantor to the date
of the most recent available consolidated financial
statements of the Guarantor there was any decrease in
consolidated net assets or there were any decreases,
as compared with the corresponding period in the
preceding year, in operating revenues, operating
income, income before interest charges, net income,
or the ratio of earnings to fixed charges (all
determined on a consolidated basis), except in all
instances for changes or decreases set forth in such
letter; or
(3) the amounts included in any unaudited
"capsule" information included or incorporated by
reference in the Registration Statement and the
Prospectus do not agree with the amounts set forth in
the unaudited financial statements for the same
periods or were not determined on a basis
substantially consistent with that of the
corresponding amounts in the audited financial
statements included or incorporated by reference in
the Registration Statement and the Prospectus;
(iii) they have compared certain dollar amounts (or
percentages derived from such dollar amounts) and other
financial information specified by the Agents (A) which appear
or are incorporated by reference in the Guarantor's Annual
Report on Form 10-K incorporated by reference in the
Registration Statement and the Prospectus in Item 1 under the
captions "General," "Financial Condition," "Construction,"
"Rate Matters," "Electric Operations," "Fossil Fuel,"
"Long-Term Power Sales," "Nuclear Fuel," "Nuclear
Decommissioning" and in Item 6 under the caption "Selected
Financial Data," and in Item 7 under the caption "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" and (B) which appear in Part I of any of the
Guarantor's Quarterly Reports on Form 10-Q incorporated by
reference in the Registration Statement and the Prospectus
under the captions "Management's Discussion and Analysis of
Financial Condition and Results of Operations", "Ratio of
Earnings to Fixed Charges" and "Operating Statistics
(Unaudited)" (in each case to the extent that such dollar
amounts, percentages and other financial information are
derived from the general accounting records of the Guarantor
subject to the internal controls of the Guarantor's accounting
system or are derived directly from such records by analysis
or computation) with the results obtained from inquiries, a
reading of such general accounting records and other
procedures specified in such letter and have found such dollar
amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in
such letter. All financial statements included in material
incorporated by reference in the Prospectus shall be deemed
included in the Prospectus for purposes of this subsection.
References to the Prospectus in this paragraph (f) include any
supplement thereto at the date of the letter.
-17-
<PAGE>
(g) On and as of each Closing Date with respect to the sale by
the Company of Notes, counsel for the Agents shall have received copies
of (i) all documents required to be delivered to the Trustee under the
Indenture by the Company and the Guarantor in connection with the
issuance of Notes on such date.
(h) 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. Notice of such cancellation shall be given to the Company in
writing or by telephone confirmed in writing by facsimile.
The documents required to be delivered by this Section 5 at
the Execution Time shall be delivered at the office of Thelen Reid & Priest LLP,
40 West 57th Street, New York, New York 10019.
6. Conditions to the Obligations of the Purchaser. The
----------------------------------------------
obligations of the Purchaser to purchase any Notes will be subject to the
accuracy (to the extent set forth below in subsection (b)) of the
representations and warranties on the part of the Company and the Guarantor
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 each of the Company and the
Guarantor of all covenants and agreements in all material respects 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 the
Registration Statement shall have been issued and no proceedings for
the 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 and
the Guarantor, dated as of the Closing Date, to the effect set forth in
Section 5(e), (ii) the opinion of David R. High, Esq., Associate
General Counsel of the Guarantor, dated as of the Closing Date,
substantially to the effect set forth in Section 5(b) (provided, that,
-------- ----
unless otherwise agreed in the Terms Agreement, the opinions set forth
in Section 5(b)(iv) shall be deemed to speak as of the later of the
Execution Time or such other date on which such opinions of such
counsel shall have been furnished to the Purchaser if such opinion has
been previously furnished within one year of such Closing Date), (iii)
the opinion of Thelen Reid & Priest LLP, counsel to the Company and the
Guarantor, dated as of the Closing Date, substantially to the effect
set forth in Section 5(c), (iv) the opinion of Milbank, Tweed, Hadley &
McCloy LLP, counsel for the Purchaser, dated as of the Closing Date,
substantially to the effect set forth in Section 5(d), and (v) the
letter of Deloitte & Touche LLP, independent public
-18-
<PAGE>
accountants for the Company and the Guarantor, dated as of the Closing
Date, substantially to the effect set forth in Section 5(f); provided,
--------
however, that references to the Registration Statement and the
-------
Prospectus in such certificate, opinions and letter shall be to the
Registration Statement and the Prospectus as then amended and
supplemented.
(c) 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 any time prior to, the respective Closing Date by the Purchaser.
Notice of such cancellation shall be given to the Company in writing or by
telephone and confirmed in writing by facsimile transmission.
7. Right of Person Who Agreed to Purchase to Refuse to
---------------------------------------------------
Purchase. 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.
8. Indemnification and Contribution. (a) Each of the Company
--------------------------------
and the Guarantor agrees to indemnify and hold harmless each of you and each
person who controls each of you within the meaning of either the Act or the
Exchange 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, the Exchange Act or other Federal or state statutory law or regulation,
at common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
registration statement for the registration of the Notes as originally filed or
in any amendment thereof, or in the Prospectus or any preliminary prospectus, or
in any amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and agrees to reimburse each such indemnified party, as incurred, for any legal
or other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action; provided,
--------
however, that (i) neither the Company nor the Guarantor will be liable in any
- -------
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company or the Guarantor by any of you
specifically for use in connection with the preparation thereof and (ii) such
indemnity with respect to the Prospectus or any preliminary prospectus shall not
inure to the benefit of any of you (or any person controlling any of you) from
whom the person asserting any such loss, claim, damage or liability purchased
the Notes which are the subject
-19-
<PAGE>
thereof if such person did not receive a copy of the Prospectus (or the
Prospectus as supplemented) excluding documents incorporated therein by
reference at or prior to the confirmation of the sale of such Notes to such
person in any case where such delivery is required by the Act and the untrue
statement or omission of a material fact contained in the Prospectus or any
preliminary prospectus was corrected in the Prospectus (or the Prospectus as
supplemented); provided that, copies of the Prospectus (or the Prospectus as
-------- ----
supplemented) were sufficiently and timely provided to you. This indemnity
agreement will be in addition to any liability which the Company or the
Guarantor may otherwise have.
(b) Each of you agrees to indemnify and hold harmless the
Company and the Guarantor, each of their directors, each of their officers who
signs the Registration Statement and each person who control either the Company
or the Guarantor within the meaning of either the Act or the Exchange Act, to
the same extent as the foregoing indemnity from the Company and the Guarantor to
you, but only with reference to written information relating to such of you
furnished to the Company or the Guarantor by such of you specifically for use in
the preparation of 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 and the Guarantor acknowledge that the statements set forth in
[the last paragraph of the cover page, and in the paragraph regarding
market-making activities of the Agents 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 documents referred to in the
foregoing indemnity, and you confirm that such statements are correct].
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under this Section 8. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel satisfactory to
such indemnified party; provided, however, that if the defendants in any such
-------- -------
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this
Section 8 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel (plus any local
counsel retained in the indemnified parties' reasonable
-20-
<PAGE>
judgment), representing the indemnified parties under such paragraph (a) who are
parties to such action), (ii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of this
Section 8 is due in accordance with its terms but is for any reason held by a
court to be unavailable from the Company or the Guarantor on grounds of policy
or otherwise, the Company, the Guarantor and each of you shall contribute to the
aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending same)
to which the Company, the Guarantor and any of you may be subject in such
proportion so that each of you is responsible for that portion represented by
the percentage that the aggregate commissions received by such of you pursuant
to Section 2 in connection with the Notes from which such losses, claims,
damages and liabilities arise (or, in the case of Notes sold pursuant to a Terms
Agreement, the aggregate commissions that would have been received by each of
you if such commissions had been payable), bears to the aggregate principal
amount of such Notes sold and the Company is responsible for the balance;
provided, however, that (y) in no case shall any of you be responsible for any
- -------- -------
amount in excess of the commissions received by such of you in connection with
the Notes from which such losses, claims, damages and liabilities arise (or, in
the case of Notes sold pursuant to a Terms Agreement, the aggregate commissions
that would have been received by such of you if such commissions had been
payable) and (z) no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8, each person who controls any of you within the meaning of the
Act shall have the same rights to contribution as you and each person who
controls the Company or the Guarantor within the meaning of either the Act or
the Exchange Act, each officer of the Company and the Guarantor who shall have
signed the Registration Statement and each director of the Company and the
Guarantor shall have the same rights to contribution as the Company and the
Guarantor, respectively, subject in each case to clauses (y) and (z) of this
paragraph (d). Any party entitled to contribution will, promptly after receipt
of notice of commencement of any action, suit or proceeding against such party
in respect of which a claim for contribution may be made against another party
or parties under this paragraph (d), notify such party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any other obligation it or they may have hereunder or otherwise than under this
paragraph (d). For purposes of this paragraph (d), any notice provided for
indemnification under this Section 8 will be deemed to constitute notice for
purposes of this paragraph (d).
9. Termination. (a) This Agreement will continue in effect
-----------
until terminated as provided in this Section 9. This Agreement may be terminated
by either the Company or the Guarantor as to any of you or 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
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<PAGE>
receipt of such notice by the party to whom such notice is given, and in any
event this Agreement shall terminate on the date when all of the Notes have been
issued, delivered and paid for hereunder. 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.
(b) Each Terms Agreement shall be subject to termination in
the absolute discretion of the Purchaser, by notice given to the Company prior
to delivery of any payment for Notes to be purchased thereunder, if prior to
such time (i) the Purchaser shall exercise its right to refuse to purchase the
Notes which are the subject of such Terms Agreement in accordance with the
provisions of Section 7, or (ii) there shall have occurred any outbreak or
escalation of hostilities or other national or international calamity or crisis,
the effect of which shall be such as to make it, in the judgment of the
Purchaser, impractical to market the Notes or enforce contracts for the sale of
the Notes, or (iii) trading in any securities of the Company or the Guarantor
shall have been suspended by the Commission or a national securities exchange,
or if trading generally on either the American Stock Exchange or the New York
Stock Exchange shall have been suspended, or minimum or maximum prices for
trading shall have been fixed, or maximum ranges for prices for securities shall
have been required, by either of said exchanges or by order of the Commission or
any other governmental authority, or (iv) if a banking moratorium shall have
been declared by either Federal or New York authorities, or (v) if the rating
assigned by any nationally recognized securities rating agency to any debt
securities of the Company or the Guarantor as of the date of the applicable
Terms Agreement shall have been lowered since that date or if any such rating
agency shall have publicly announced that it has placed any debt securities of
the Company or the Guarantor on what is commonly termed a "watch list" for
possible downgrading.
10. Representations and Indemnities to Survive. The respective
------------------------------------------
agreements, representations, warranties, indemnities and other statements of the
Company and the Guarantor or their respective 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, the Company or the
Guarantor 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.
11. Notices. Unless otherwise provided herein, any
-------
communication hereunder will be in writing and effective only on receipt, and,
if sent to any of you, will be mailed, delivered or telecopied and confirmed to
such of you, at the address specified in Schedule I hereto; or, if sent to the
Company, will be mailed, delivered or telecopied and confirmed to it at 411
Seventh Avenue, Pittsburgh, Pennsylvania 15219-1905, telecopy number:
412-393-6004, attention of the Treasurer and if sent to the Guarantor, will be
mailed, delivered or telecopied and confirmed to it at Cherrington Corporate
Center, Suite 100, 500 Cherrington Parkway, Corapolis, Pennsylvania 15108-3189,
telecopy number 412-269-0799.
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.
-22-
<PAGE>
13. Applicable Law. This Agreement will be governed by and
--------------
construed in accordance with the laws of the State of New York.
14. Counterparts. This Agreement may be simultaneously
------------
executed in counterparts, each of which when so executed shall be deemed to be
an original. Such counterparts shall together constitute one and the same
instrument.
-23-
<PAGE>
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, the Guarantor and you.
Very truly yours,
DQE CAPITAL CORPORATION
By:
----------------------
Name:
Title:
DQE, INC.
By:
----------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
[UNDERWRITER]
By:
--------------------------
Name:
Title:
-24-
<PAGE>
SCHEDULE I
Commissions:
- -----------
The Company agrees to pay each Agent a commission equal to the
following percentage of the principal amount of each Note sold by such Agent:
Term Commission Rate
---- ---------------
From 9 months to less than 1 year %
From 1 year to less than 18 months %
From 18 months to less than 2 years %
From 2 years to less than 3 years %
From 3 years to less than 4 years %
From 4 years to less than 5 years %
From 5 years to less than 6 years %
From 6 years to less than 7 years %
From 7 years to less than 10 years %
From 10 years to less than 15 years %
From 15 years to less than 20 years %
From 20 years up to and including 40 years %
Address for Notice to You:
- -------------------------
Notices to [Agents]
<PAGE>
EXHIBIT A
DQE Capital Corporation
Medium-Term Notes, Series A
Administrative Procedures
Medium-Term Notes, Series A (the "Notes"), are to be offered
on a continuing basis by DQE Capital Corporation (the "Company") and will be
unconditionally guaranteed by DQE, Inc., as guarantor (the "Guarantor").
[Agents], as agents (each an "Agent" and collectively the "Agents"), have agreed
to use their reasonable best efforts to solicit offers to purchase the Notes.
The Notes are being sold pursuant to a Selling Agency Agreement among the
Company, the Guarantor and the Agents dated _________, 1998 (the "Agency
Agreement") to which these administrative procedures are attached as Exhibit A.
The Agency Agreement provides that Notes may also be purchased
by an Agent acting solely as principal and not as agent. In the event of any
such purchase, the functions of both the Agent and the beneficial owner under
the administrative procedures set forth below shall be performed by such Agent
acting solely as principal, unless otherwise agreed to between the Company and
such Agent acting as principal.
The Notes will be issued under an Indenture, dated as of
___________, 1999 (the "Indenture") among the Company, the Guarantor and
_______________, as trustee (the "Trustee"). [_______________] will act as the
paying agent (the "Paying Agent") for the payment of principal of and premium,
if any, and interest on the Notes and will perform, as the Paying Agent, unless
otherwise specified, the other duties specified herein. [____________] will act
as the authenticating agent (the "Authenticating Agent") under the Indenture.
The Notes will rank equally and ratably with all other Notes
outstanding or hereafter issued under the Indenture. The Notes have been
registered with the Securities and Exchange Commission (the "Commission") and
will bear interest at [floating/fixed] rates.
Each Note will be represented by either a Global Security (as
defined hereinafter) delivered to the Trustee, as agent for The Depository Trust
Company ("DTC"), and recorded in the book-entry system maintained by DTC (a
"Book-Entry Note") or a certificate delivered to the holder thereof or a person
designated by such holder (a "Certificated Note"). Except as set forth in the
Prospectus (as defined in Section 1(c) of the Agency Agreement), an owner of a
Book-Entry Note will not be entitled to receive a certificate representing such
Note.
The procedures to be followed during, and the specific terms
of, the solicitation of offers by the Agents and the sale as a result thereof by
the Company are explained below. Book-Entry Notes will be issued in accordance
with the administrative procedures set forth in Part I hereof and Certificated
Notes will be issued in accordance with the administrative procedures set forth
in Part II hereof. Administrative procedures applicable to both Book-Entry Notes
and Certificated Notes are set forth in Part III hereof. Administrative
responsibilities, document control and record-keeping functions will be handled
for the Company by [its Chief Financial
A-1
<PAGE>
Officer or its Treasurer]. The Company will advise the Agents, the Paying Agent
and the Trustee in writing of those persons handling administrative
responsibilities with whom the Agents, the Paying Agent and the Trustee are to
communicate regarding offers to purchase Notes and the details of their
delivery.
To the extent the procedures set forth below conflict with the
provisions of the Notes, the Indenture or the Agency Agreement, the relevant
provisions of the Notes, the Indenture and the Agency Agreement shall control.
Unless otherwise defined herein, terms defined in the Indenture shall be used
herein as therein defined.
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes
for eligibility in the book-entry system maintained by DTC, the Paying Agent
will perform the custodial, document control and administrative functions
described below, in accordance with its respective obligations under a Letter of
Representations to be delivered from the Company and the Paying Agent to DTC and
a Medium-Term Note Certificate Agreement between the Paying Agent and DTC, dated
as of _______, 1999, as the same may be amended from time to time, to include
the Notes (the "MTN Certificate Agreement"), and its obligations as a
participant in DTC, including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: On any date of settlement (as defined under
- -------- "Settlement" below) for one or more Book-Entry
Notes, the Company will issue a single global
security in full registered form without coupons
(a "Global Security") representing up to
$[150,000,000] principal amount of all such Notes
that have the same interest rate, date of maturity
("Maturity Date"), redemption provisions, if any,
or provisions for the repayment or purchase by the
Company at the option of the Holder, if any, and
other terms and provisions (collectively, the
"Terms"). Each Global Security will be dated and
issued as of the date of its authentication by the
Authenticating Agent. No Global Security will
represent any Certificated Note.
Identification
Numbers: The Paying Agent or the Company has arranged with
- ------- the CUSIP Service Bureau of Standard & Poor's
Corporation (the "CUSIP Service Bureau") for the
reservation of one series of CUSIP numbers
(including tranche numbers), which series consists
of approximately 900 CUSIP numbers and relates to
Global Securities representing the Book-Entry
Notes. The Paying Agent or the Company has
obtained from the CUSIP Service Bureau a written
list of such series of reserved CUSIP numbers and
has delivered to DTC a written list of 900 CUSIP
numbers of such series. The Paying Agent will
assign CUSIP numbers to Global Securities as
described below under Settlement Procedure
A-2
<PAGE>
"B". It is expected that DTC will notify the CUSIP
Service Bureau periodically of the CUSIP numbers
that the Paying Agent has assigned to Global
Securities. At any time when fewer than 100 of the
reserved CUSIP numbers of the series remain
unassigned to Global Securities, and if it deems
necessary, the Paying Agent will reserve
additional CUSIP numbers for assignment to Global
Securities representing Book-Entry Notes. Upon
obtaining such additional CUSIP numbers, the
Paying Agent shall deliver a list of such
additional CUSIP numbers to the Company and DTC.
Registration: Each Global Security will be registered in the
- ------------ name of Cede & Co., as nominee for DTC, on the
Security Register maintained under the Indenture.
It is expected that the beneficial owner of a
Book-Entry Note (or one or more indirect
participants in DTC designated by such owner) will
designate one or more participants in DTC (with
respect to such Note, the "Participants") to act
as agent or agents for such owner in connection
with the book-entry system maintained by DTC, and
it is expected that DTC will record in book-entry
form, in accordance with instructions provided by
such Participants, a credit balance with respect
to such beneficial owner in such Note in the
account of such Participants. The ownership
interest of such beneficial owner in such Note
will be recorded through the records of such
Participants or through the separate records of
such Participants and one or more indirect
participants in DTC.
Transfers: Transfers of a Book-Entry Note will be
- --------- accomplished by book entries made by DTC and, in
turn, by Participants (and in certain cases, one
or more indirect participants in DTC) acting on
behalf of beneficial transferees and transferors
of such Note.
Consolidations: Upon receipt of instructions from the Company, the
- -------------- Paying Agent may deliver to DTC and the CUSIP
Service Bureau at any time a written notice of
consolidation (a copy of which shall be attached
to the resulting Global Security described below)
specifying (i) the CUSIP numbers of two or more
Outstanding Global Securities that represent
Book-Entry Notes having the same Terms and for
which interest has been paid to the same date,
(ii) a date, occurring at least thirty days after
such written notice is delivered and at least
thirty days before the next Interest Payment Date
(as defined below) for such Book-Entry Notes, on
which such Global Securities shall be exchanged
for a single replacement Global Security and (iii)
a new CUSIP number
A-3
<PAGE>
to be assigned to such replacement Global
Security. Upon receipt of such a notice, it is
expected that DTC will send to its Participants
(including the Paying Agent) a written
reorganization notice to the effect that such
exchange will occur on such date. Prior to the
specified exchange date, the Paying Agent will
deliver to the CUSIP Service Bureau a written
notice setting forth such exchange date and the
new CUSIP number and stating that, as of such
exchange date, the CUSIP numbers of the Global
Securities to be exchanged will no longer be
valid. On the specified exchange date, the Paying
Agent will exchange such Global Securities for a
single Global Security bearing the new CUSIP
number, and the CUSIP numbers of the exchanged
Global Securities will, in accordance with CUSIP
Service Bureau procedures, be canceled and not
reassigned until the Book-Entry Notes represented
by such exchanged Global Securities have matured
or been redeemed. Notwithstanding the foregoing,
if the Global Securities to be exchanged exceed
$[150,000,000] in aggregate principal amount, one
Global Security will be authenticated and issued
to represent each $[150,000,000] of principal
amount of the exchanged Global Security and an
additional Global Security will be authenticated
and issued to represent any remaining principal
amount of such Global Securities (see
"Denominations" below).
Maturities: Each Book-Entry Note will mature on a date not
- ---------- less than nine months nor more than 40 years after
the date of settlement for such Note.
Denominations: Book-Entry Notes will be issued in principal
- ------------- amounts of $1,000 or any integral multiple
thereof. Global Securities will be denominated in
principal amounts not in excess of $[150,000,000].
If one or more Book-Entry Notes having an
aggregate principal amount in excess of
$[150,000,000] would, but for the preceding
sentence, be represented by a single Global
Security, then one Global Security will be issued
to represent each $[150,000,000] principal amount
of such Book-Entry Note or Notes and an additional
Global Security will be issued to represent any
remaining principal amount of such Book-Entry Note
or Notes. In such a case, each of the Global
Securities representing such Book-Entry Note or
Notes shall be assigned the same CUSIP number.
Interest: General: Interest on each Book-Entry Note will
- -------- -------
accrue from and include the original issue date
of, or the last date to which interest has been
paid on, the Global Security representing such
Note. Each payment of interest on a Book-Entry
Note will include interest accrued to but
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excluding the Interest Payment Date or the
Maturity Date or, upon earlier redemption or
repayment, the date of such redemption or
repayment (the "Redemption Date"), as the case may
be. Interest payable on the Maturity Date or the
Redemption Date of a Book-Entry Note will be
payable to the person to whom the principal of
such Note is payable. It is expected that
[Standard & Poor's Corporation] will use the
information received in the pending deposit
message described under Settlement Procedure "C"
below in order to include the amount of any
interest payable and certain other information
regarding the related Global Security in the
appropriate weekly Note report published by
[Standard & Poor's Corporation].
Record Dates. The record date with respect to any
------------
Interest Payment Date is the date fifteen calendar
days next preceding such Interest Payment Date
(each, a "Regular Record Date").
Interest Payment Dates. Interest payments on
----------------------
Book-Entry Notes will be made on the days of each
year set forth in the applicable Pricing
Supplement (as defined under "Preparation of
Pricing Supplement" in Part III below) (each, an
"Interest Payment Date") and on the Maturity Date
or the Redemption Date; provided, however, that in
-------- -------
the case of a Book-Entry Note issued between a
Regular Record Date and an Interest Payment Date,
the first interest payment will be made on the
Interest Payment Date following the next
succeeding Regular Record Date.
Payments of
Principal and
Interest: Payment of Interest Only. Promptly after each
- -------- ------------------------
Regular Record Date, the Paying Agent will deliver
to the Company and DTC a written notice specifying
by CUSIP number the amount of interest to be paid
on each Global Security on the following Interest
Payment Date (other than an Interest Payment Date
coinciding with the Maturity Date) and the total
of such amounts. It is expected that DTC will
confirm the amount payable on each Global Security
on such Interest Payment Date by reference to the
appropriate Note reports published by [Standard &
Poor's Corporation]. The Company will pay to the
Paying Agent the total amount of interest due on
such Interest Payment Date (other than on the
Maturity Date), and the Paying Agent will pay such
amount to DTC at the times and in the manner set
forth under "Manner of Payment" below. If any
Interest Payment Date for a Book-Entry Note is not
a Business Day, the payment due on such day shall
be made on the
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next succeeding Business Day, and no interest
shall accrue on such payment for the period from
and after such Interest Payment Date.
Payments on Maturity Date, Etc. On or about the
------------------------------
first Business Day of each month, the Paying Agent
will deliver to the Company and DTC a written list
of principal and, to the extent known at such
time, interest to be paid on each Global Security
maturing either on the Maturity Date or the
Redemption Date in the following month. The
Company and DTC will confirm with the Paying Agent
the amounts of such principal and interest
payments with respect to each such Global Security
on or about the fifth Business Day preceding the
Maturity Date or the Redemption Date, as the case
may be, of such Global Security. The Company will
pay to the Paying Agent the principal amount of
such Global Security, together with interest due
on such Maturity Date or Redemption Date. The
Paying Agent will pay such amounts to DTC at the
times and in the manner set forth below under
"Manner of Payment". If the Maturity Date or the
Redemption Date of a Global Security representing
Book-Entry Notes is not a Business Day, the
payment due on such day shall be made on the next
succeeding Business Day and no interest shall
accrue on such payment for the period from and
after such Maturity Date or the Redemption Date.
Promptly after payment to DTC of the principal and
interest due at the Maturity Date or the
Redemption Date of such Global Security, the
Paying Agent will cancel such Global Security in
accordance with the terms of the Indenture.
Manner of Payment. The total amount of any
-----------------
principal and interest due on Global Securities on
any Interest Payment Date or on the Maturity Date
or the Redemption Date shall be paid by the
Company to the Paying Agent in immediately
available funds for use by the Paying Agent on
such date. The Company will make such payment on
such Global Securities by wire transfer to the
Paying Agent or by the Paying Agent's debiting the
account of the Company maintained with the Paying
Agent. The Company will confirm such instructions
in writing to the Paying Agent. Prior to 10:00
A.M. (New York City time) on each Maturity Date or
Redemption Date or as soon as possible thereafter,
the Paying Agent will pay by separate wire
transfer (using Fedwire message entry instructions
in a form previously agreed to with DTC) to an
account at the Federal Reserve Bank of New York
previously agreed to with DTC, in same day funds,
each payment of principal (together with interest
thereon) due on Global Securities on
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any Maturity Date or Redemption Date. On each
Interest Payment Date, interest payments shall be
made to DTC or its nominee in same day funds in
accordance with existing arrangements between the
Paying Agent and DTC. Thereafter, on each such
date, it is expected that DTC will pay, in
accordance with its SDFS operating procedures then
in effect, such amounts in funds available for
immediate use to the respective Participants in
whose names the Book-Entry Notes represented by
such Global Securities are recorded in the
book-entry system maintained by DTC. Neither the
Company, the Trustee nor the Paying Agent shall
have any responsibility or liability for the
payment by DTC to such Participants of the
principal of and interest on the Book-Entry Notes.
Withholding Taxes. The amount of any taxes
-----------------
required under applicable law to be withheld from
any interest payment on a Book-Entry Note will be
determined and withheld by the Participant,
indirect participant in DTC or other person
responsible for forwarding payments and materials
directly to the beneficial owner of such Note.
Settlement: The receipt by the Company of immediately
- ---------- available funds in payment for a Book-Entry Note
and the authentication and issuance of the Global
Security representing such Note shall constitute
"settlement" with respect to such Note. All orders
accepted by the Company will be settled on the
fifth Business Day following the date of sale of a
Book-Entry Note unless the Company and the
purchaser agree to settlement on another day that
shall be no earlier than the next Business Day.
Settlement
Procedures: Settlement Procedures with regard to each
- ---------- Book-Entry Note sold by the Company through an
Agent, as agent, shall be as follows:
A. Such Agent will confirm that the transaction
is an agency transaction and advise the
Company by telephone or facsimile (facsimile
no. [__________, Attn: _________________]) of
the following settlement information:
1. Principal amount.
2. Maturity Date.
3. Interest rate.
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4. Redemption provisions, if any, or
provisions for the repayment or purchase
by the Company at the option of the
Holder, if any.
5. Settlement date.
6. Issue price.
7. Agent's commission, determined as
provided in Section 2(a) of the Agency
Agreement.
8. Any other Terms.
B. The Company will advise the Paying Agent by
telephone (confirmed in writing at any time
on the same date) or electronic transmission
of the information set forth in Settlement
Procedure "A" above and the name of such
Agent. The Paying Agent will assign a CUSIP
number to the Global Security representing
such Note and notify the Company of such
number. The Company will notify the Agent of
such CUSIP number by telephone or electronic
transmission as soon as practicable. Each
such communication by the Company shall
constitute a representation and warranty by
the Company to the Trustee and the Paying
Agent and each Agent that (i) such Note is
then, and at the time of issuance and sale
thereof will be, duly authorized for issuance
and sale by the Company, (ii) the Global
Security representing such Note will conform
with the terms of the Indenture pursuant to
which such Note and Global Security are
issued and (iii) upon authentication and
delivery of such Global Security, the
aggregate principal amount of all Notes
issued under the Indenture will not exceed
$300,000,000 (except for Global Securities or
Notes represented by and authenticated and
delivered in exchange for or in lieu of Notes
in accordance with the Indenture).
C. The Paying Agent will enter a pending deposit
message through DTC's Participant Terminal
System, providing the following settlement
information to DTC, such Agent and [Standard
& Poor's Corporation]:
1. The information set forth in Settlement
Procedure "A".
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<PAGE>
2. CUSIP number of the Global Security
representing such Note.
3. Whether such Global Security will
represent any other Book- Entry Note (to
the extent known at such time).
D. The Authenticating Agent will complete and
authenticate the Global Security representing
such Note.
E. It is expected that DTC will credit such Note
to the Paying Agent's participant account at
DTC.
F. The Paying Agent will enter an SDFS deliver
order through DTC's Participant Terminal
System instructing DTC to (i) debit such Note
to the Paying Agent's participant account and
credit such Note to such Agent's participant
account and (ii) debit such Agent's
settlement account and credit the Paying
Agent's settlement account for an amount
equal to the price of such Note less such
Agent's commission. The entry of such a
deliver order shall constitute a
representation and warranty by the Paying
Agent to DTC that (a) the Global Security
representing such Book-Entry Note has been
issued and authenticated by the
Authenticating Agent and (b) the Paying Agent
is holding such Global Security pursuant to
the MTN Certificate Agreement.
G. Such Agent will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to
such Agent's participant account and credit
such Note to the participant accounts of the
Participants with respect to such Note and
(ii) to debit the settlement accounts of such
Participants and credit the settlement
account of such Agent for an amount equal to
the price of such Note.
H. Transfers of funds in accordance with SDFS
deliver orders described in Settlement
Procedures "F" and "G" will be settled in
accordance with SDFS operating procedures in
effect on the settlement date.
I. The Paying Agent will, upon receipt of funds
from the Agent, wire transfer to the account
of the
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<PAGE>
Company maintained at [name and location of
bank] (for credit to DQE Capital Corporation,
Account No. ____________)] in immediately
available funds in the amount transferred to
the Paying Agent in accordance with
Settlement Procedure "F".
J. Such Agent will confirm the purchase of such
Note to the purchaser either by transmitting
to the Participants with respect to such Note
a confirmation order or orders through DTC's
institutional delivery system or by mailing a
written confirmation to such purchaser.
Settlement
Procedures
Timetable: For orders of Book-Entry Notes solicited by an
- --------- Agent, as agent, and accepted by the Company for
settlement on the first Business Day after the
sale date, Settlement Procedures "A" through "J"
set forth above shall be completed as soon as
possible but not later than the respective times
(New York City time) set forth below:
Settlement
Procedures Time
---------- ----
A 11:00 A.M. on the sale date
B 12:00 Noon on the sale date
C 2:00 P.M. on the sale date
D 9:00 A.M. on the settlement date
E 10:00 A.M. on the settlement date
F-G 2:00 P.M. on the settlement date
H 4:45 P.M. on the settlement date
I-J 5:00 P.M. on the settlement date
If a sale is to be settled more than one Business
Day after the sale date, Settlement Procedures
"A", "B" and "C" shall be completed as soon as
practicable but no later than 11:00 A.M. and 12:00
Noon on the first Business Day after the sale date
with respect to Settlement Procedures "A" and "B",
respectively, and no later than 2:00 P.M. on the
Business Day before the settlement date, with
respect to Settlement Procedure "C". Settlement
Procedures "H" and "I" are subject to extension in
accordance with any extension of Fedwire closing
deadlines and in the other events specified in the
SDFS operating procedures in effect on the
settlement date.
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<PAGE>
If settlement of a Book-Entry Note is rescheduled
or canceled, the Company will notify the Trustee
and instruct the Paying Agent by no later than
12:00 noon to deliver to DTC a cancellation
message to such effect on the Business Day
immediately preceding the scheduled settlement
date and the Paying Agent will enter such message
no later than 2:00 P.M. through DTC's
Participation Terminal System.
Monthly
Reports: Monthly, the Paying Agent will send to the Company
- ------- and the Trustee a statement setting forth the
principal amount of Notes outstanding as of that
date under the Indenture and setting forth a brief
description of any sales of which the Company has
advised the Paying Agent but which have not yet
been settled.
Failure to
Settle: If the Paying Agent or the Agent fails to enter an
- ------ SDFS deliver order with respect to a Book-Entry
Note pursuant to Settlement Procedure "F" or "G",
the Paying Agent may upon the approval of the
Company deliver to DTC, through DTC's Participant
Terminal System, as soon as practicable, a
withdrawal message instructing DTC to debit such
Note to the Paying Agent's participant account,
provided that the Paying Agent's participant
account contains a principal amount of the Global
Security representing such Note that is at least
equal to the principal amount to be debited. If a
withdrawal message is processed with respect to
all the Book-Entry Notes represented by a Global
Security, the Paying Agent will cause such Global
Security to be "canceled" in accordance with the
provisions of the Indenture, make appropriate
entries in the Paying Agent's records and send
such canceled Global Security to the Company. The
CUSIP number assigned to such Global Security
shall, in accordance with CUSIP Service Bureau
procedures, be canceled and not reassigned until
the Book-Entry Notes represented by such Global
Security have matured or been redeemed. If a
withdrawal message is processed with respect to
one or more, but not all, of the Book-Entry Notes
represented by a Global Security, the Paying Agent
will exchange such Global Security for another
Global Security, which shall represent the
Book-Entry Notes previously represented by the
surrendered Global Security with respect to which
a withdrawal message has not been processed and
shall bear the CUSIP number of the surrendered
Global Security.
If the purchase price for any Book-Entry Note is
not timely paid to the Participants with respect
to such Note by the
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<PAGE>
beneficial purchaser thereof (or a person,
including an indirect participant in DTC, acting
on behalf of such purchaser), such Participants
and, in turn, the Agent for such Note may enter
SDFS deliver orders through DTC's Participant
Terminal System reversing the orders entered
pursuant to Settlement Procedures "G" and "F",
respectively. Thereafter, the Paying Agent will
deliver the withdrawal message and take the
related actions described in the preceding
paragraph. If such failure shall have occurred for
any reason other than a default by the Agent in
the performance of its obligations hereunder or
under the Agency Agreement, then the Company will
reimburse such Agent or the Paying Agent as
applicable on an equitable basis for the loss of
the use of funds during the period when they were
credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note, DTC may
take any actions in accordance with its SDFS
operating procedures then in effect. In the event
of a failure to settle with respect to one or
more, but not all, of the Book-Entry Notes to have
been represented by a Global Security, the
Authenticating Agent will provide, in accordance
with Settlement Procedure "D", for the
authentication and issuance of a Global Security
representing the other Book-Entry Notes to have
been represented by such Global Security and will
make appropriate entries in its records.
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
The Paying Agent will serve as registrar in connection with the
Certificated Notes.
Maturities: Each Certificated Note will mature on a date not
- ---------- less than nine months and not more than 40 years
after the date of delivery by the Company of such
Note.
Price to Public: Each Certificated Note will be issued at the
- --------------- percentage of principal amount specified in the
Pricing Supplement relating to such Note.
Denominations: The denomination of any Certificated Note will be
- ------------- a minimum of $1,000 or any amount in excess
thereof which is an integral multiple of $1,000.
Registration: Certificated Notes will be issued only in fully
- ------------ registered form.
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Interest: General. Interest on each Certificated Note will
- -------- -------
accrue from and include the original issue date
of, or the last date to which interest has been
paid on, such Note. Each payment of interest on a
Certificated Note will include interest accrued to
but excluding the Interest Payment Date or the
Maturity Date or, upon earlier redemption, the
Redemption Date, as the case may be. Interest
payable on the Maturity Date or the Redemption
Date of a Certificated Note will be payable to the
person to whom the principal of such Note is
payable.
Record Dates. The record dates with respect to the
------------
Interest Payment Dates shall be the Regular Record
Dates.
Interest Payment Dates. Interest payments on
----------------------
Certificated Notes will be made on each Interest
Payment Date and on the Maturity Date or the
Redemption Date; provided, however, that in the
-------- -------
case of a Certificated Note issued between a
Regular Record Date and an Interest Payment Date,
the first interest payment will be made on the
Interest Payment Date following the next
succeeding Regular Record Date.
Payments
of Principal
and Interest: Interest will be payable to the person in whose
- ------------ name a Certificated Note is registered at the
close of business on the Regular Record Date next
preceding an Interest Payment Date; provided,
--------
however, that, in the case of a Certificated Note
-------
originally issued between a Regular Record Date
and an Interest Payment Date, the first payment of
interest will be made on the Interest Payment Date
following the next succeeding Regular Record Date
to the person in whose name such Note was
registered at the close of business on such next
Regular Record Date. Unless other arrangements are
made acceptable to the Company, all interest
payments (excluding interest payments made on the
Maturity Date or the Redemption Date) on a
Certificated Note will be made by check mailed to
the person entitled thereto as provided above.
The Paying Agent will pay the principal amount of
each Certificated Note on the Maturity Date upon
presentation of such Certificated Note. Such
payment, together with payment of interest due on
the Maturity Date, will be made from funds
deposited with the Paying Agent by the Company.
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The Paying Agent will be responsible for
withholding taxes on interest paid on Certificated
Notes as required by applicable law.
Within 10 days following each Regular Record Date,
the Paying Agent will inform the Company of the
total amount of the interest payments to be made
by the Company on the next succeeding Interest
Payment Date. The Paying Agent will provide
monthly to the Company a list of the principal and
interest to be paid on Certificated Notes maturing
in the next succeeding month.
If any Interest Payment Date, Maturity Date or,
upon earlier redemption, Redemption Date, is not a
Business Day, the payment due on such date shall
be made on the next succeeding Business Day, and
no interest shall accrue on such payment for the
period from and after such Interest Payment Date,
Maturity Date or Redemption Date, as the case may
be.
Settlement: The settlement date with respect to any offer to
- ---------- purchase Certificated Notes accepted by the
Company will be a date on or before the fifth
Business Day next succeeding the date of
acceptance unless otherwise agreed by the
purchaser and the Company and shall be specified
upon acceptance of such offer. The Company will
instruct the Paying Agent to effect delivery of
each Certificated Note no later than 1:00 P.M.,
New York City time, on the settlement date to the
presenting Agent (as defined under "Preparation of
Pricing Supplement" in Part III below) for
delivery to the purchaser.
Settlement
Procedures: For each offer to purchase a Certificated Note
- ---------- that is accepted by the Company, the Presenting
Agent will provide (unless provided by the
purchaser directly to the Company) by telephone
the following information to the Company:
1. Name in which such Note is to be registered
(the "Registered Owner").
2. Address of the Registered Owner and, if
different, address for payment of principal
and interest.
3. Taxpayer identification number of the
Registered Owner.
4. Principal amount.
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5. Maturity Date.
6. Interest Rate, interest payment dates,
including without limitation all necessary
information with respect to floating rate
notes, and initial interest payment date.
7. Redemption provisions, if any, or provisions
for the repayment or repurchase by the
Company at the option of the Holder, if any.
8. Settlement date.
9. Issue price.
10. Agent's commission, determined as provided in
Section 2(a) of the Agency Agreement.
11. Any other Terms.
The Agent that presented such offer (the
"Presenting Agent") will advise the Company of the
foregoing information (unless provided by the
purchaser directly to the Company) for each offer
to purchase a Certificated Note solicited by such
Agent and accepted by the Company in time for the
Authenticating Agent to prepare and authenticate
the required Certificated Note. Before accepting
any offer to purchase a Certificated Note to be
settled in less than three Business Days, the
Company shall verify that the Authenticating Agent
will have adequate time to prepare and
authenticate such Note. After receiving from the
Presenting Agent the details for each offer to
purchase a Certificated Note that has been
accepted by the Company, the Company will, after
recording the details and any necessary
calculations, provide appropriate documentation to
the Authenticating Agent, including the
information provided by the Presenting Agent
necessary for the preparation and authentication
of such Note.
Note Deliveries
and Cash Payment: Upon receipt of appropriate documentation and
instructions, the Company will cause the
Authenticating Agent to prepare and authenticate
the pre-printed 4-ply Certificated Note packet
containing the following documents in forms
approved by the Company, the Presenting Agent and
the Authenticating Agent:
1. Note with customer receipt.
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<PAGE>
2. Stub 1 - For the Presenting Agent.
3. Stub 2 - For the Company.
4. Stub 3 - For the Authenticating Agent.
Each Certificated Note shall be authenticated on
the settlement date therefor. The Authenticating
Agent will authenticate each Certificated Note and
deliver it (with the confirmation) to the
Presenting Agent (and deliver the stubs as
indicated above), all in accordance with written
or electronic instructions (or oral instructions,
confirmed in writing (which may be given by telex
or telecopy) on the next Business Day) from the
Company. Delivery by the Authenticating Agent of
each Certificated Note will be made in accordance
with said instructions against receipts therefor
and in connection with contemporaneous receipt by
the Company from the Presenting Agent on the
settlement date in immediately available funds of
an amount equal to the issue price of such Note
less the Presenting Agent's commission.
Upon verification ("Verification") by the
Presenting Agent that a Certificated Note has been
prepared and properly authenticated by the
Authenticating Agent and registered in the name of
the purchaser in the proper principal amount and
other terms in accordance with the aforementioned
confirmation, payment will be made to the Company
by the Presenting Agent the same day as the
Presenting Agent's receipt of the Certificated
Note in immediately available funds. Such payment
shall be made by the Presenting Agent only upon
prior receipt by the Presenting Agent of
immediately available funds from or on behalf of
the purchaser unless the Presenting Agent decides,
at its option, to advance its own funds for such
payment against subsequent receipt of funds from
the purchaser.
Upon delivery of a Certificated Note to the
Presenting Agent, Verification by the Presenting
Agent and the giving of instructions for payment,
the Presenting Agent shall promptly deliver such
Note to the purchaser.
In the event any Certificated Note is incorrectly
prepared, the Authenticating Agent shall promptly
issue a replacement Certificated Note in exchange
for such incorrectly prepared Note.
Failure
to Settle: If the Presenting Agent, at its own option, has
advanced its own funds for payment against
subsequent receipt of funds from the purchaser,
and if the purchaser shall fail to make
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<PAGE>
payment for the Certificated Note on the
Settlement Date therefor, the Presenting Agent
will promptly notify the Authenticating Agent and
the Company by telephone, promptly confirmed in
writing (but no later than the next Business Day).
In such event, the Company shall promptly provide
the Authenticating Agent with appropriate
documentation and instructions consistent with
these procedures for the return of the
Certificated Note to the Authenticating Agent and
the Presenting Agent will promptly return the
Certificated Note to the Authenticating Agent.
Upon (i) confirmation from the Authenticating
Agent in writing (which may be given by telex or
telecopy) that the Authenticating Agent has
received the Certificated Note and upon (ii)
confirmation from the Presenting Agent in writing
(which may be given by telex or telecopy) that the
Presenting Agent has not received payment from the
purchaser (the matters referred to in clauses (i)
and (ii) are referred to hereinafter as the
"Confirmations"), the Company will promptly pay to
the Presenting Agent an amount in immediately
available funds equal to the amount previously
paid by the Presenting Agent in respect of such
Note. Assuming receipt of the Certificated Note by
the Authenticating Agent and of the Confirmations
by the Company, such payment will be made on the
settlement date, if reasonably practical, and in
any event not later than the Business Day
following the date of receipt of the Certificated
Note and Confirmations. If a purchaser shall fail
to make payment for the Certificated Note for any
reason other than the failure of the Presenting
Agent to provide the necessary information to the
Company as described above for settlement or to
provide a confirmation to the purchaser within a
reasonable period of time as described above or
otherwise to satisfy its obligations hereunder or
in the Agency Agreement, and if the Presenting
Agent shall have otherwise complied with its
obligations hereunder and in the Agency Agreement,
the Company will reimburse the Presenting Agent on
an equitable basis for its loss of the use of
funds during the period when they were credited to
the account of the Company.
Immediately upon receipt of the Certificated Note
in respect of which the failure occurred, the
Authenticating Agent will void such Note, make
appropriate entries in its records and send such
canceled Note to the Company, and upon such
action, the Certificated Note will be deemed not
to have been issued, authenticated and delivered.
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<PAGE>
PART III: ADMINISTRATIVE PROCEDURES APPLICABLE TO BOTH BOOK-
ENTRY NOTES AND CERTIFICATED NOTES
Procedure for
Rate Setting
and Posting: The Company and the Agents will discuss from time
- ----------- to time the aggregate amount of, the issuance
price of, and the interest rates to be borne by,
Notes that may be sold as a result of the
solicitation of offers by the Agents. If the
Company decides to set prices of, and rates borne
by, any Notes in respect of which the Agents are
to solicit offers (the setting of such prices and
rates to be referred to herein as "posting") or if
the Company decides to change prices or rates
previously posted by it, it will promptly advise
the Agents of the prices and rates to be posted.
Acceptance
of Offers: If the Company posts prices and rates as provided
above, each Agent as agent for and on behalf of
the Company, shall promptly accept offers received
by such Agent to purchase Notes at the prices and
rates so posted, subject to (i) any instructions
from the Company received by such Agent concerning
the aggregate principal amount of such Notes to be
sold at the prices and rates so posted or the
period during which such posted prices and rates
are to be in effect, (ii) any instructions from
the Company received by such Agent changing or
revoking any posted prices and rates, (iii)
compliance with the securities laws of the United
States and all other relevant jurisdictions and
(iv) such Agent's right to reject any such offer
as provided below.
If the Company does not post prices and rates and
an Agent receives an offer to purchase Notes or,
if while posted prices and rates are in effect, an
Agent receives an offer to purchase Notes on terms
other than those posted by the Company, such Agent
will promptly advise the Company of each such
offer other than offers rejected by such Agent as
provided below. The Company will have the sole
right to accept any such offer to purchase Notes.
The Company may reject any such offer in whole or
in part.
Each Agent may, in its discretion reasonably
exercised, reject any offer to purchase Notes
received by it in whole or in part.
A-18
<PAGE>
Preparation of
Pricing
Supplement: If any offer to purchase a Note is accepted by the
- ---------- Company, the Company and the Guarantor, with the
approval of the Presenting Agent, will prepare a
pricing supplement (a "Pricing Supplement")
reflecting the terms of such Note and identifying
the Presenting Agent, and will arrange to have ten
copies filed with the Commission in accordance
with the applicable paragraph of Rule 424(b) under
the Act and will supply at least 10 copies thereof
(or additional copies if requested) to the
Presenting Agent. At least one copy of such
Pricing Supplement shall be delivered to the
Presenting Agent not later than the close of the
first Business Day immediately following the date
on which such offer to purchase is accepted. Any
such Pricing Supplement may be delivered to the
Presenting Agent as follows: (i) if to
[Underwriter], to ___________, Attention: ______,
Tel. No. ______________, Facsimile No.
___________, and also for record keeping purposes
to ___________, Attention: ____________, Tel. No.
___________, Facsimile No. _____________; (ii) if
to [Underwriter], to ___________, Attention:
____________, Tel. No. __________, Facsimile No.
___________ and (iii) if to [Underwriter], to
_____________, Attention: ____________, Facsimile
No. ____________, and for record keeping purposes
to ______________, Attention: _____________,
Telephone No. _____________, Facsimile
No.____________. The Presenting Agent will cause a
Prospectus and Pricing Supplement to be delivered
to the purchaser of such Note.
A copy of the Pricing Supplement should also be
sent to the following: [the Trustee]; Thelen Reid
& Priest; Milbank, Tweed, Hadley & McCloy LLP; and
[rating agencies].
In each instance that a Pricing Supplement is
prepared, the Agents will affix the Pricing
Supplement to Prospectuses prior to their use.
Outdated Pricing Supplements (other than those
retained for files) will be destroyed.
Suspension of
Solicitation;
Amendment or
Supplement of
Prospectus: The Company may instruct the Agents to suspend at
- ---------- any time, for any period of time or permanently,
the solicitation of offers to purchase Notes. Upon
receipt of such instructions from the Company, the
Agents will forthwith suspend solicitation of
offers to purchase Notes from the
A-19
<PAGE>
Company until such time as the Company has advised
them that such solicitation may be resumed.
If the Company and the Guarantor decide to amend
or supplement the Registration Statement (as
defined in Section 1(c) of the Agency Agreement)
or the Prospectus (except for a supplement
relating to an offering of securities other than
the Notes), they will promptly advise the Agents,
the Paying Agent and the Trustee and will furnish
the Agents, the Paying Agent and the Trustee with
the proposed amendment or supplement in accordance
with the terms of, and its obligations under, the
Agency Agreement. The Company will, consistent
with such obligations, promptly advise each Agent,
the Paying Agent and the Trustee whether orders
outstanding at the time each Agent suspends
solicitation may be settled and whether copies of
such Prospectus and Prospectus Supplement as in
effect at the time of the suspension, together
with the appropriate Pricing Supplement, may be
delivered in connection with the settlement of
such orders. The Company will have the sole
responsibility for such decision and for any
arrangements that may be made in the event that
the Company determines that such orders may not be
settled or that copies of such Prospectus,
Prospectus Supplement and Pricing Supplement may
not be so delivered.
The Company and the Guarantor will file with the
Commission, as co-registrants, any supplement to
the Prospectus relating to the Notes, provide the
Agents with copies of any such supplement, and
confirm to the Agents that such supplement has
been filed with the Commission pursuant to the
applicable paragraph of Rule 424.
Confirmation: For each offer to purchase a Note solicited by an
- ------------ Agent and accepted by or on behalf of the Company,
the Presenting Agent will issue a confirmation to
the purchaser, with a copy to the Company, setting
forth the details set forth above and delivery and
payment instructions.
Paying Agent Not
to Risk Funds: Nothing herein shall be deemed to require the
- ------------- Paying Agent to risk or expend its own funds in
connection with any payment to the Company, or the
Agents or the purchaser or a holder, it being
understood by all parties that payments made by
the Paying Agent to the Company, the Agents or a
holder shall be made only to the extent that funds
are provided to the Paying Agent for such purpose.
A-20
<PAGE>
Authenticity
of Signatures: The Company will furnish the Agents from time to
- ------------- time with the specimen signatures of each of the
Authenticating Agent's officers, employees or
agents who has been authorized by the
Authenticating Agent to authenticate Notes, but
the Agents will have no obligation or liability to
the Company, the Guarantor or the Trustee in
respect of the authenticity of the signature of
any officer, employee or agent of the Company or
the Authenticating Agent on any such Note.
Payment of
Expenses: Each Agent shall forward to the Company, on a
- -------- monthly basis, a statement of the reasonable
out-of-pocket expenses incurred by such Agent
during that month which are reimbursable to it
pursuant to the terms of the Agency Agreement. The
Company will remit payment to the Agents currently
on a monthly basis.
Delivery of
Prospectus: A copy of the Prospectus, Prospectus Supplement
- ---------- and Pricing Supplement relating to a Note must
accompany or precede the earliest of any written
offer of such Note, confirmation of the purchase
of such Note or payment for such Note by its
purchaser. If notice of a change in the terms of
the Notes is received by an Agent between the time
an order for a Note is placed and the time written
confirmation thereof is sent by such Agent to a
customer or his agent, such confirmation shall be
accompanied by a Prospectus, Prospectus Supplement
and Pricing Supplement setting forth the terms in
effect when the order was placed. Subject to
"Suspension of Solicitation; Amendment or
Supplement of Prospectus" above, each Agent will
deliver a Prospectus, Prospectus Supplement and
Pricing Supplement as herein described with
respect to each Note sold by it.
<PAGE>
EXHIBIT B
TERMS AGREEMENT
---------------
DQE Capital Corporation
[address]
Attention: Treasurer
Subject in all respects to the terms and conditions of the
Selling Agency Agreement (the "Agency Agreement") dated ___________, 1999, among
[Underwriters] (the "Underwriters"), DQE Capital Corporation (the "Company") and
DQE, Inc., as guarantor (the "Guarantor"), the undersigned agrees to purchase
the following principal amount of the Company's Medium-Term Notes, Series A (the
"Notes"):
Aggregate Principal Amount: $
Interest Rate:
Date of Maturity:
Interest Payment Dates:
Regular Record Dates:
Purchase Price: % of Principal Amount
[plus accrued interest from ____,
199__]
Denominations:
Redemption Terms:
Settlement Date and Time:
Place for Settlement:
Method of Payment:
Documents, if any, to be
delivered pursuant to Section
B-1
<PAGE>
6(b) of the Agency Agreement:
Period, if any, during which
additional Notes may not be
sold pursuant to Section 4(m)
of the Agency Agreement:
Additional Terms:
1. Upon the execution of this Terms Agreement, the several
Underwriters propose to offer such Notes for sale upon the terms and conditions
set forth in the Prospectus as amended or supplemented.
2. The Notes to be purchased by the Underwriters pursuant to
this Terms Agreement will be represented by Global Securities (as defined in the
Administrative Procedures), shall be delivered by or on behalf of the Company as
described in the Administrative Procedures against payment by the Underwriters
or on their behalf of the purchase price to the Company in the funds specified
above all at the place and time and date specified above or at such other place
and time and date as the Underwriters and the Company may agree upon in writing.
3. The Company and the Guarantor agree with each of the
Underwriters to prepare the Prospectus as amended and supplemented in relation
to the Notes in a form approved by the Underwriters and to file such Prospectus
pursuant to Rule 424(b) under the Act not later than the Commission's close of
business on the second business day following the execution and delivery of this
Terms Agreement, or, if applicable, such earlier time as may be required by Rule
424(b).
4. A. If any Underwriter shall default in its obligation to
purchase the Notes which it has agreed to purchase under this Terms Agreement,
the non-defaulting Underwriters may in their discretion arrange for themselves
or another party or other parties to purchase such Notes on the terms contained
herein. If within thirty-six hours after such default by any Underwriter the
non-defaulting Underwriters do not arrange for the purchase of such Notes, then
the Company shall be entitled to a further period of thirty-six hours within
which to procure another party or other parties reasonably satisfactory to the
non-defaulting Underwriters to purchase such Notes on such terms. In the event
that, within the respective prescribed period, the non-defaulting Underwriters
notify the Company that they have so arranged for the purchase of such Notes, or
the Company notifies the non-defaulting Underwriters that it has so arranged for
the purchase of such Notes, the non-defaulting Underwriters or the Company shall
have the right to postpone the Settlement Date and Time for such Notes for a
period of not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus as
amended or supplemented, or in any other documents or arrangements, and the
Company and the Guarantor agree to file promptly any amendments or supplements
to the Registration Statement or the Prospectus which in the opinion of the
Underwriters may thereby be made necessary. The term "Underwriter" as used in
this Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to this Terms Agreement
with respect to such Notes.
B-2
<PAGE>
B. If, after giving effect to any arrangements
for the purchase of the Notes of a defaulting Underwriter or Underwriters by the
non-defaulting Underwriters and the Company as provided in subsection (A) above,
the aggregate principal amount of such Notes which remains unpurchased does not
exceed one-eleventh of the aggregate principal amount of the Notes, then the
Company shall have the right to require each non-defaulting Underwriter to
purchase the principal amount of Notes which such Underwriter agreed to purchase
hereunder and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the principal amount of Notes which such
Underwriter agreed to purchase hereunder) of the Notes of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
C. If, after giving effect to any arrangements
for the purchase of the Notes of a defaulting Underwriter or Underwriters by the
non-defaulting Underwriters and the Company as provided in subsection (A) above,
the aggregate principal amount of Notes which remains unpurchased exceeds
one-eleventh of the aggregate principal amount of the Notes, as referred to in
subsection (B) above, or if the Company shall not exercise the right described
in subsection (B) above to require non-defaulting Underwriters to purchase Notes
of a defaulting Underwriter or Underwriters, then this Terms Agreement shall
thereupon terminate, without liability on the part of any non-defaulting
Underwriter, the Company or the Guarantor, except for the expenses to be borne
by the Company as provided in Section 4(h) of the Agency Agreement and the
indemnity and contribution agreements in Section 8 of the Agency Agreement; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
D. If for any other reason Notes are not
delivered by or on behalf of the Company as provided herein, the Company shall
be under no liability to any Underwriter with respect to such Notes except as
provided in Sections 4(h) and 8 of the Agency Agreement and except that the
Company will reimburse the Underwriters for any additional out-of-pocket
expenses reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery of such Notes.
5. In all dealings hereunder, [Name of Lead Purchaser] shall
act on behalf of each of the Underwriters, and the parties hereto shall be
entitled to act and rely upon any statement, request, notice or agreement on
behalf of any Underwriter made or given by [Name of Lead Purchaser]. The
following are the names and addresses of the Underwriters:
Underwriters: [Names of Purchasers]
B-3
<PAGE>
Address for Notices,
etc.: c/o [Name of Lead Purchaser]
[Address of Lead Purchaser]
Attention:
Telephone:
Telecopy:
6. This Terms Agreement shall be subject to termination by the
Underwriters, by notice given to the Company prior to delivery of any payment
for Notes to be purchased hereunder, if subsequent to the date hereof there
shall have occurred any change in or affecting the business or properties of the
Company, the Guarantor, or their respective subsidiaries, considered as one
enterprise, the effect of which is, in the judgment of the [Lead Purchaser], so
material and adverse as to make it impractical to proceed with the offering or
delivery of such Notes.
This Agreement shall be governed by and construed in
accordance with the laws of New York.
[Insert name of Purchaser(s)]
By
------------------------------
Title:
Accepted: , 19__
DQE CAPITAL CORPORATION
By
---------------------
Name:
Title:
DQE, INC.
By
---------------------
Name:
Title:
B-4
CERTIFICATE OF INCORPORATION
OF
DQE CAPITAL CORPORATION
THE UNDERSIGNED, for the purpose of forming a corporation
pursuant to the provisions of the General Corporation Law of the State of
Delaware, does hereby certify as follows:
1: The name of the corporation is DQE Capital Corporation (the
"Corporation").
2: The address of the Corporation's registered office in the
State of Delaware is 1105 North Market Street, Suite 1300, City of
Wilmington, County of New Castle, Delaware 19801. The name of its
registered agent at such address is Delaware Corporate Management, Inc.
3: The nature of the business or purposes to be conducted or
promoted by the Corporation are to engage in any lawful act or activity for
which corporations may be organized under the General Corporation Law of
the State of Delaware.
4: The total number of shares of capital stock which the
Corporation shall have authority to issue is One Thousand (1,000) shares of
common stock, all of which are to be of $1.00 par value per share and of
one class, which class is hereby designated as Common Stock.
5: The name and mailing address of the Sole Incorporator of the
Corporation is David R. High, 411 Seventh Ave., Floor 16-006, Pittsburgh,
PA 15219.
6: The following provisions relate to the management of the
business and the conduct of the affairs of the Corporation and are not
inserted for the purpose of creating, defining, limiting and regulating the
powers of the Corporation and its directors and stockholders:
(A) The election of officers may be conducted in any manner
the By-Laws provide, and need not be by written ballot.
(B) The Board of Directors shall have the power to make,
alter, amend or repeal the By-Laws of the Corporation, except to the extent
that the By-Laws otherwise provide.
<PAGE>
2
7: (a) No director of the Corporation shall be personally
liable for monetary damages for breach of fiduciary duty as a Director;
provided, however, that nothing herein shall be deemed to eliminate or
limit any liability which may not be so eliminated or limited under the
laws of the State of Delaware, as in effect at the effective date of this
Certificate of Incorporation or as thereafter amended. No amendment,
modification or repeal of this paragraph (a) shall eliminate or limit the
protection afforded by this paragraph (a) to a director with respect to any
act or omission occurring before the effective date thereof.
(b) (1) The Corporation shall, to the maximum extent
permitted by applicable law, as from time to time in effect, indemnify any
person who was or is a party to or otherwise involved in (or threatened to
be made a party to or otherwise involved in) any threatened, pending or
completed action, suit or proceeding (hereinafter called an "Action"),
whether civil, criminal, administrative or investigative (including without
limitation any Action by or in the right of the Corporation to procure a
judgment in its favor) by reason of the fact that he is or was a director
or officer of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or
any other entity or enterprise, against expenses (including attorneys'
fees) and against judgments, fines (including any excise tax assessed with
respect to an employee benefit plan) and amounts paid in settlement
actually and reasonably incurred by him in connection with such Action or
any appeal therein.
(2) The Corporation shall pay any such expenses
incurred by a director or officer, or former director or officer, of the
Corporation in defending any such Action in advance of the final
disposition thereof upon receipt of an undertaking by or on behalf of such
person to repay such advances to the extent of the amount to which such
person shall ultimately be determined not to be entitled.
(3) The Corporation, by resolution of the Board of
Directors, may extend the benefits of this paragraph (b) to current and/or
former employees, agents and other representatives of the Corporation (each
person entitled to benefits under this paragraph (b) being hereinafter
sometimes called an "Indemnified Person").
(4) All rights to indemnification and to the
advancement of expenses granted under or pursuant to this paragraph (b)
shall be deemed to arise out of a contract between the Corporation and each
person who is an Indemnified Person at any time while this paragraph (b) is
in effect and may be evidenced by a separate contract between the
Corporation and each Indemnified Person; and such rights shall be effective
in respect of all Actions commenced after the effective date of this
Certificate of Incorporation, whether arising from acts or omissions
occurring before or after such date. No amendment, modification or repeal
of this paragraph (b) shall affect any rights or obligations theretofore
existing.
<PAGE>
3
(5) The Corporation may purchase and maintain
insurance on behalf of, or insure or cause to be insured, any Person who is
an Indemnified Person against any liability asserted against him and
incurred by him in any capacity in respect of which he is an Indemnified
Person, or arising out of his status in such capacity, whether or not the
Corporation would have the power to indemnify him against such liability
under this paragraph (b). As used in this Section "insurance" includes
retrospectively rated and self-insured programs; provided, however, that no
such program shall provide coverage for directors and officers which is
prohibited by applicable law. The Corporation's indemnity of any person
who is an Indemnified Person shall be reduced by any amounts such person
may collect with respect to such liability (A) under any policy of
insurance purchased and maintained on his behalf by the Corporation or (B)
from any other entity or enterprise served by such person.
(6) The rights to indemnification and to the
advancement of expenses and all other benefits provided by, or granted
pursuant to, this paragraph (b) shall continue as to a person who has
ceased to serve in the capacity in respect of which such person was an
Indemnified Person and shall inure to the benefit of the heirs, executors
and administrators of such person.
(7) The indemnification and advancement of expenses
provided by, or granted pursuant to this paragraph (b) shall not be deemed
exclusive of any other rights to which any Indemnified Party may be
entitled under any By-Law, agreement, vote of stockholders or disinterested
directors or otherwise.
(8) The Board of Directors shall have the power and
authority to make, alter, amend and repeal such procedural rules and
regulations relating to indemnification and the advancement of expenses as
it, in its discretion, may deem necessary or expedient in order to carry
out the purposes of this paragraph (b), such rules and regulations, if any,
to be set forth in the By-Laws of the Corporation or in a resolution of the
Board of Directors.
8: The Corporation reserves the right to amend or repeal any
provisions contained in this Certificate of Incorporation from time to time
and at any time in the manner now or hereafter prescribed by the laws of
the State of Delaware, and all rights herein conferred upon stockholders,
directors and officers are subject to this reserved power.
IN WITNESS WHEREOF, the undersigned, being the sole Incorporator
hereinabove named, does hereby certify that the facts hereinabove stated
are truly set forth and, accordingly, hereby executes this Certificate of
Incorporation this 23rd day of April, 1999.
------
/s/ David R. High
--------------------------
David R. High, Incorporator
BY-LAWS
OF
DQE CAPITAL CORPORATION
<PAGE>
BY-LAWS
OF
DQE CAPITAL CORPORATION
TABLE OF CONTENTS
-----------------
PAGE
----
ARTICLE I MEETINGS OF STOCKHOLDERS . . . . . . . . . . . . . . . . 1
Section 1.1. Place of Meetings . . . . . . . . . . . . . . . 1
Section 1.2. Annual Meetings . . . . . . . . . . . . . . . . 1
Section 1.3. Special Meetings . . . . . . . . . . . . . . . 1
Section 1.4. Notice of Meetings . . . . . . . . . . . . . . 1
Section 1.5. Adjournments . . . . . . . . . . . . . . . . . 1
Section 1.6. Quorum. . . . . . . . . . . . . . . . . . . . . 2
Section 1.7. Organization . . . . . . . . . . . . . . . . . 2
Section 1.8. Voting; Proxies . . . . . . . . . . . . . . . . 2
Section 1.9. Fixing Date for Determination of Stockholders
of Record . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE II DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.1. Number, Qualifications . . . . . . . . . . . . 5
Section 2.2. Election, Term of Office, Resignation,
Removal, Vacancies . . . . . . . . . . . . . . 5
Section 2.3. Regular and Special Meetings of Directors;
Quorum; Vote Required for Action . . . . . . . 6
Section 2.4. Telephonic Meetings Permitted . . . . . . . . . 6
Section 2.5. Organization . . . . . . . . . . . . . . . . . 6
Section 2.6. Action by Written Consent of Directors . . . . 6
ARTICLE III OFFICERS . . . . . . . . . . . . . . . . . . . . . . . 7
Section 3.1. Enumeration . . . . . . . . . . . . . . . . . . 7
Section 3.2. Chairman of the Board . . . . . . . . . . . . . 7
Section 3.3. President . . . . . . . . . . . . . . . . . . . 7
Section 3.4. Vice President . . . . . . . . . . . . . . . . 7
Section 3.5. Secretary . . . . . . . . . . . . . . . . . . . 7
Section 3.6. Treasurer . . . . . . . . . . . . . . . . . . . 8
Section 3.7. Controller . . . . . . . . . . . . . . . . . . 8
Section 3.8. Other Officers . . . . . . . . . . . . . . . . 8
Section 3.9. Additional Powers and Duties . . . . . . . . . 8
Section 3.10. Term and Compensation . . . . . . . . . . . . 8
ARTICLE IV INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . 9
Section 4.1. Directors and Officers . . . . . . . . . . . . 9
Section 4.2. Timing of Indemnification . . . . . . . . . . . 9
i
<PAGE>
Section 4.3. Authorized Representatives . . . . . . . . . . 9
Section 4.4. Nonexclusivity . . . . . . . . . . . . . . . . 9
Section 4.5. Standard for Indemnification . . . . . . . . . 10
Section 4.6. Insurance . . . . . . . . . . . . . . . . . . . 10
Section 4.7. Constituent Corporations . . . . . . . . . . . 11
Section 4.8. Eligibility . . . . . . . . . . . . . . . . . . 11
Section 4.9. Amendment or Repeal . . . . . . . . . . . . . . 11
ARTICLE V SHARES OF CAPITAL STOCK . . . . . . . . . . . . . . . . 11
Section 5.1. Stock Certificates . . . . . . . . . . . . . . 11
Section 5.2. Transfer of Stock . . . . . . . . . . . . . . . 12
Section 5.3. Lost, Stolen, Destroyed, or Mutilated
Certificates . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 5.4. Regulations . . . . . . . . . . . . . . . . . . 12
ARTICLE VI GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . 12
Section 6.1. Corporate Seal . . . . . . . . . . . . . . . . 12
Section 6.2. Fiscal Year . . . . . . . . . . . . . . . . . . 12
Section 6.3. Authorization . . . . . . . . . . . . . . . . . 12
Section 6.4. Financial Reports . . . . . . . . . . . . . . . 13
Section 6.5. Effect of By-laws . . . . . . . . . . . . . . . 13
ARTICLE VII AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . 13
ii
<PAGE>
BY-LAWS
OF
DQE CAPITAL CORPORATION
ARTICLE I
MEETINGS OF STOCKHOLDERS
Section 1.1. Place of Meetings. Meetings of the stockholders
-----------------
shall be held at each place within or without the State of Delaware as
designated by the Board of Directors or the person or persons calling the
meeting.
Section 1.2. Annual Meetings. The annual meeting of the
---------------
stockholders for the election of directors and the transaction of such
other business as may properly come before the meeting shall be held after
the close of that Corporation's fiscal year on such date and at such time
as shall be designated by the Board of Directors.
Section 1.3. Special Meetings. Special meetings may be called
----------------
at any time by the President or by a majority of the Board of Directors.
Business transacted at any special meeting of stockholders shall be limited
to the purposes stated in the notice of such special meeting.
Section 1.4. Notice of Meetings. A written notice stating the
------------------
place, date, and hour of each meeting and, in the case of a special
meeting, the purpose or purposes for which the meeting is called shall be
given by, or at the direction of, the Secretary or the person or persons
authorized to call the meeting, to each stockholder of record entitled to
vote at such meeting, not less than ten (10) days nor more than sixty (60)
days before the date of the meeting, unless a greater period of time is
required by law in a particular case. If mailed, such notice shall be
deemed to be given when deposited in the United States mail, postage
prepaid, directed to the stockholder at his address as it appears on the
records of the Corporation.
Section 1.5. Adjournments. Any meeting of stockholders may
------------
adjourn from time to time to reconvene at the same or some other place, and
notice need not be given of any such adjourned meeting if the time and
place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting the Corporation may transact any business
which might have been transacted at the original meeting. If the
adjournment is for more than thirty (30) days, or if after the adjournment
a new record date is fixed for the adjourned meeting, notice of the
adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
<PAGE>
Section 1.6. Quorum. At each meeting of stockholders, except
------
where otherwise provided by law or the certificate of incorporation or
these by-laws, the presence in person or by proxy of the holders of a
majority in voting power of the outstanding shares of stock entitled to
vote at the meeting shall be necessary and sufficient to constitute a
quorum. In the absence of a quorum, the stockholders so present may, by a
majority in voting power thereof, adjourn the meeting from time to time in
the manner provided in Section 1.5 of these by-laws until a quorum shall
attend. Shares of its own stock belonging to the Corporation or to another
corporation, if a majority of the shares entitled to vote in the election
of directors of such other corporation is held, directly or indirectly, by
the Corporation, shall neither be entitled to vote nor be counted for
quorum purposes; provided, however, that the foregoing shall not limit the
right of the Corporation or any subsidiary of the Corporation to vote
stock, including but not limited to its own stock, held by it in a
fiduciary capacity.
Section 1.7. Organization. Meetings of stockholders shall be
------------
presided over by the Chairman of the Board, if any, or in his absence by
the Vice Chairman of the Board, if any, or in his absence by the President,
or in his absence by a Vice President, or in the absence of the foregoing
persons by a chairman designated by the Board of Directors, or in the
absence of such designation by a chairman chosen at the meeting. The
Secretary shall act as secretary of the meeting, but in his absence the
chairman of the meeting may appoint any person to act as secretary of the
meeting.
Section 1.8. Voting; Proxies. Unless otherwise provided in the
---------------
certificate of incorporation, each stockholder entitled to vote at any
meeting of stockholders shall be entitled to one vote for each share of
stock held by such stockholder which has voting power upon the matter in
question. Each stockholder entitled to vote at a meeting of stockholders
or to express consent or dissent to corporate action in writing without a
meeting may authorize another person or persons to act for such stockholder
by proxy, but no such proxy shall be voted or acted upon after three years
from its date, unless the proxy provides for a longer period. A duly
executed proxy shall be irrevocable if it states that it is irrevocable and
if, and only as long as, it is coupled with an interest sufficient in law
to support an irrevocable power. A stockholder may revoke any proxy which
is not irrevocable by attending the meeting and voting in person or by
filing an instrument in writing revoking the proxy or by delivering a proxy
in accordance with applicable law bearing a later date to the Secretary of
the Corporation. Voting at meetings of stockholders need not be by written
ballot and need not be conducted by inspectors unless the holders of a
majority in voting power of the outstanding shares of stock of the
Corporation entitled to vote thereon present in person or by proxy at such
meeting shall so determine. At all meetings of stockholders for the
election of directors a plurality of the votes cast shall be sufficient to
elect directors. All other elections and questions shall, unless otherwise
provided by the certificate of incorporation, these by-laws, the rules or
regulations of any stock exchange applicable to the Corporation, as
otherwise provided by law or pursuant to any regulation applicable to the
Corporation, be decided by the affirmative vote of the holders of a
<PAGE>
majority in voting power of the shares of stock of the Corporation which
are present in person or by proxy and entitled to vote thereon.
Section 1.9. Fixing Date for Determination of Stockholders of
------------------------------------------------
Record. In order that the Corporation may determine the stockholders
------
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights
in respect of any change, conversion or exchange of stock or for the
purpose of any other lawful action, the Board of Directors may fix a record
date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and
which record date: (1) in the case of determination of stockholders
entitled to vote at any meeting of stockholders or adjournment thereof,
shall, unless otherwise required by law, not be more than sixty (60) nor
less than ten (10) days before the date of such meeting; (2) in the case of
determination of stockholders entitled to express consent to corporate
action in writing without a meeting, shall not be more than ten (10) days
from the date upon which the resolution fixing the record date is adopted
by the Board of Directors; and (3) in the case of any other action, shall
not be more than sixty (60) days prior to such other action. If no record
date is fixed: (1) the record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the
day on which the meeting is held; (2) the record date for determining
stockholders entitled to express consent to corporate action in writing
without a meeting, when no prior action of the Board of Directors is
required by law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
Corporation in accordance with applicable law, or, if prior action by the
Board of Directors is required by law, shall be at the close of business on
the day on which the Board of Directors adopts the resolution taking such
prior action; and (3) the record date for determining stockholders for any
other purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto. A determination
of stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 1.10. List of Stockholders Entitled to Vote. The
-------------------------------------
Secretary shall prepare and make, at least ten (10) days before every
meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of stocks registered in the name
of each stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten (10) days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall
also be produced and kept at the time and place of the meeting during the
whole time thereof and may be inspected by any stockholder who is present.
<PAGE>
Upon the willful neglect or refusal of the directors to produce such a list
at any meeting for the election of directors, they shall be ineligible for
election to any office at such meeting. Except as otherwise provided by
law, the stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list of stockholders
or the books of the Corporation, or to vote in person or by proxy at any
meeting of stockholders.
Section 1.11. Action By Written Consent of Stockholders. Unless
-----------------------------------------
otherwise restricted by the certificate of incorporation, any action
required or permitted to be taken at any annual or special meeting of the
stockholders may be taken without a meeting, without prior notice and
without a vote, if a consent or consents in writing, setting forth the
action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted and shall be delivered to the
Corporation by delivery to its registered office in the State of Delaware,
its principal place of business, or an officer or agent for the Corporation
having custody of the book in which minutes of proceedings of stockholders
are recorded. Delivery made to the Corporation's registered office shall
be by hand or by certified or registered mail, return receipt requested.
Prompt notice of the taking of the corporate action without a meeting by
less than unanimous written consent shall, to the extent required by law,
be given to those stockholders who have not consented in writing.
Section 1.12. Inspectors of Election. The Corporation may, and
----------------------
shall if required by law, in advance of any meeting of stockholders,
appoint one or more inspectors of election, who may be employees of the
Corporation, to act at the meeting or any adjournment thereof and to make a
written report thereof. The Corporation may designate one or more persons
as alternate inspectors to replace any inspector who fails to act. In the
event that no inspector so appointed or designated is able to act at a
meeting of stockholders, the person presiding at the meeting shall appoint
one or more inspectors to act at the meeting. Each inspector, before
entering upon the discharge of his or her duties, shall take and sign an
oath to execute faithfully the duties of inspector with strict impartiality
and according to the best of his or her ability. The inspector or
inspectors so appointed or designated shall (i) ascertain the number of
shares of capital stock of the Corporation outstanding and the voting power
of each such share, (ii) determine the shares of capital stock of the
Corporation represented at the meeting and the validity of proxies and
ballots, (iii) count all votes and ballots, (iv) determine and retain for a
reasonable period a record of the disposition of any challenges made to any
determination by the inspectors, and (v) certify their determination of the
number of shares of capital stock of the Corporation represented at the
meeting and such inspectors' count of all votes and ballots. Such
certification and report shall specify such other information as may be
required by law. In determining the validity and counting of proxies and
ballots cast at any meeting of stockholders of the Corporation, the
inspectors may consider such information as is permitted by applicable law.
No person who is a candidate for an office at an election may serve as an
inspector at such election.
<PAGE>
Section 1.13. Conduct of Meetings. The date and time of the
-------------------
opening and the closing of the polls for each matter upon which the
stockholders will vote at a meeting shall be announced at the meeting by
the person presiding over the meeting. The Board of Directors may adopt by
resolution such rules and regulations for the conduct of the meeting of
stockholders as it shall deem appropriate. Except to the extent
inconsistent with such rules and regulations as adopted by the Board of
Directors, the chairman of any meeting of stockholders shall have the right
and authority to prescribe such rules, regulations and procedures and to do
all such acts as, in the judgment of such chairman, are appropriate for the
proper conduct of the meeting. Such rules, regulations or procedures,
whether adopted by the Board of Directors or prescribed by the chairman of
the meeting, may include, without limitation, the following: (i) the
establishment of an agenda or order of business for the meeting; (ii) rules
and procedures for maintaining order at the meeting and the safety of those
present; (iii) limitations on attendance at or participation in the meeting
to stockholders of record of the Corporation, their duly authorized and
constituted proxies or such other persons as the chairman of the meeting
shall determine; (iv) restrictions on entry to the meeting after the time
fixed for the commencement thereof; and (v) limitations on the time
allotted to questions or comments by participants. Unless and to the
extent determined by the Board of Directors or the chairman of the meeting,
meetings of stockholders shall not be required to be held in accordance
with the rules of parliamentary procedure.
ARTICLE II
DIRECTORS
Section 2.1. Number, Qualifications. The Board of Directors
----------------------
shall consist of not less than one nor more than twelve members as fixed
from time to time by the Board of Directors. Directors need not be
shareholders.
Section 2.2. Election, Term of Office, Resignation, Removal,
-----------------------------------------------
Vacancies. The Board of Directors shall initially consist of the persons
---------
elected by the incorporator of the Corporation, and each director so
elected shall hold office until the first annual meeting of stockholders or
until his successor is duly elected and qualified. At the first annual
meeting of stockholders and at each annual meeting thereafter, the
stockholders shall elect directors each of whom shall hold office for a
term of one year or until his successor is duly elected and qualified,
subject to such director's earlier death, disqualification or removal. Any
director may resign at any time upon written notice to the Corporation.
Such resignation shall take effect at the time specified therein, and
unless otherwise specified therein no acceptance of such resignation shall
be necessary to make it effective. Any director may be removed with or
without cause at any time upon the affirmative vote of the holders of a
majority of the outstanding shares of stock of the Corporation entitled to
vote for the election of such director, given at a special meting of such
stockholders called for the purpose. Vacancies and newly created
directorships resulting from any increase in the authorized number of
directors may be filled by a majority vote of the directors then in office,
although less than a quorum, or by a sole remaining director. The
<PAGE>
occurrence of a vacancy which is not filled by action of the Board of
Directors shall constitute a determination by the Board of Directors that
the number of directors is reduced, so as to eliminate such vacancy, unless
the Board of Directors shall specify otherwise. When one or more directors
shall resign from the Board, effective at a future date, a majority of the
directors then in office shall have the power to fill such vacancy or
vacancies.
Section 2.3. Regular and Special Meetings of Directors; Quorum;
--------------------------------------------------
Vote Required for Action. Meetings of the Board of Directors shall be held
------------------------
at such times and at such places within or without the State of Delaware as
the Board of Directors shall determine from time to time; and no notice
shall be required to be given of any such regular meeting. A special
meeting of the Board of Directors may be called by the President or any
director by giving one (1) day's notice to each director by letter,
telegram, telephone or other oral message. Except as otherwise provided by
these By-laws, one-third of the total number of directors shall constitute
a quorum for the transaction of business, and the vote of a majority of the
directors present at any meeting at which a quorum is present shall be the
act of the Board of Directors.
Section 2.4. Telephonic Meetings Permitted. Member of the Board
-----------------------------
of Directors, or any committee designated by the Board of Directors, may
participate in a meeting of the Board or of such committee, as the case may
be, by means of conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear each
other, and participation in a meeting pursuant to this by-law shall
constitute presence in person at such meeting.
Section 2.5. Organization. Meetings of the Board of Directors
------------
shall be presided over by the Chairman of the Board, if any, or in his
absence by the Vice Chairman of the Board, if any, or in his absence by the
President, or in their absence by a chairman chosen at the meeting. The
Secretary shall act as secretary of the meeting, but in his absence the
chairman of the meeting may appoint any person to act as secretary of the
meeting.
Section 2.6. Action by Written Consent of Directors. Unless
--------------------------------------
otherwise restricted by the certificate of incorporation or these by-laws,
any action required or permitted to be taken at any meeting of the Board of
Directors, or of any committee thereof, may be taken without a meeting if
all members of the Board of Directors or such committee, as the case may
be, consent thereto in writing, and the writing or writings are filed with
the minutes of proceedings of the Board of Directors or committee.
<PAGE>
ARTICLE III
OFFICERS
Section 3.1. Enumeration. The officers of the Corporation shall
-----------
be elected by the Board of Directors and shall consist of a President, such
number of Vice Presidents (if any) and Assistant Vice-Presidents (if any)
as the Board shall from time to time elect, a Secretary, such number of
Assistant Secretaries (if any) as the Board shall from time to time elect,
a Treasurer, such number of Assistant Treasurers (if any) as the Board
shall from time to time elect, and such other officers (if any), and a
Controller (if any) as the Board shall from time to time elect. The
Chairman of the Board, if any, shall not be deemed to be an officer but
shall be a member of the Board of Directors. Any two or more offices may
be held by the same person.
Section 3.2. Chairman of the Board. The Chairman of the Board
---------------------
shall preside at meetings of the Board of Directors. The Chairman of the
Board shall have such powers and perform such duties as shall from time to
time be specified by the Board of Directors.
Section 3.3. President. The President shall have such powers
---------
and perform such duties as shall from time to time be specified by the
Board of Directors or delegated to the President by the Chairman of the
Board. The President shall sign all certificates for shares of the capital
stock of the Corporation and may, together with the Secretary, execute on
behalf of the Corporation any contract which has been approved by the Board
of Directors. The President of the Corporation is hereby authorized
without prior approval of the Board of Directors to make capital
contributions to wholly owned subsidiaries of the Corporation and to accept
capital contributions from stockholders of the Corporation on behalf of the
Corporation.
Section 3.4. Vice President. The Vice President or, if there
--------------
shall be more than one, the Vice Presidents, in the order of their
seniority unless otherwise specified by the Board of Directors, shall have
all of the powers and perform all of the duties of the President during the
absence or inability to act of the President. Each Vice President shall
also have such other powers and perform such other duties as shall from
time to time be prescribed by the Board of Directors or the President.
Section 3.5. Secretary. The Secretary shall record the
---------
proceedings of the meetings of the stockholders and directors in a book to
be kept for that purpose, and shall give notice as required by statute or
these By-laws of all such meetings. The Secretary shall have custody of
the seal of the Corporation and of all books, records, and papers of the
Corporation, except such as shall be in the charge of the Treasurer or of
some other person authorized to have custody and possession thereof by
resolution of the Board of Directors. The Secretary may, together with the
President, execute on behalf of the Corporation any contract which has been
approved by the Board of Directors. The Secretary shall also have such
<PAGE>
other powers and perform such other duties as are incident to the office of
the secretary of a corporation or as shall from time to time be prescribed
by, or pursuant to authority delegated by, the Board of Directors.
Section 3.6. Treasurer. The Treasurer shall keep full and
---------
accurate accounts of the receipts and disbursements of the Corporation in
books belonging to the Corporation, shall deposit all moneys and other
valuable effects of the Corporation in the name and to the credit of the
Corporation in such depositories as may be designated by the Board of
Directors, and shall also have such other powers and perform such other
duties as are incident to the office of the treasurer of a corporation or
as shall from time to time be prescribed by, or pursuant to authority
delegated by, the Board of Directors.
Section 3.7. Controller. The Controller shall assist the
-----------
President, the Vice-President and the Treasurer in the performance of their
duties. The Controller may execute, or witness the execution of, on behalf
of the Corporation any contract which has been approved by the Board of
Directors. The Controller shall have such other powers of controller of a
corporation or as shall from time to time be prescribed by, or pursuant to
the authority delegated by, the Board of Directors.
Section 3.8. Other Officers. The powers and duties of each
--------------
other Officer who may from time to time be chosen by the Board of Directors
shall be as specified by, or pursuant to authority delegated by, the Board
of Directors at the time of the appointment of such other officer or from
time to time thereafter. In addition, each officer designated as an
assistant officer shall assist in the performance of the duties of the
officer to which he or she is assistant, and shall have the powers and
perform the duties of such officer during the absence or inability to act
of such officer.
Section 3.9. Additional Powers and Duties. The Board of
----------------------------
Directors may from time to time by resolution increase or add to the powers
and duties of any of the officers of the Corporation. Except in cases in
which the signing and execution shall have been expressly delegated by the
Board of Directors to some other officer, employee or agent of the
Corporation, the Chairman of the Board of Directors or the President or any
Vice-President may sign and execute in the name of the Corporation all
authorized deeds, mortgages, bonds, contracts or other instruments;
provided, however, that a Vice-President may delegate to any other officer
or manager reporting to such officer authority to sign and execute in the
name of the Corporation all authorized contracts and similar instruments
pursuant to a policy approved by the Board of Directors.
Section 3.10. Term and Compensation. Officers shall be elected
---------------------
by the Board of Directors from time to time, to serve at the pleasure of
the Board. Each officer shall hold office until his or her successor is
elected and qualified, or until his or her earlier resignation or removal.
Any officer may resign at any time upon written notice to the Corporation.
The compensation of all officers shall be fixed by, or pursuant to
authority delegated by, the Board of Directors from time to time.
<PAGE>
ARTICLE IV
INDEMNIFICATION
Section 4.1. Directors and Officers. No director of the
----------------------
Corporation shall be personally liable for monetary damages for breach of
fiduciary duty as a director; provided, however, that nothing herein shall
be deemed to eliminate or limit any liability which may not be so
eliminated or limited under the laws of the State of Delaware, as in effect
at the effective date of these By-Laws or as thereafter amended.
(b) The Corporation shall, to the maximum extent permitted
by applicable law, as from time to time in effect, indemnify any person who
was or is a party to or otherwise involved in (or threatened to be made a
party to or otherwise involved in) any threatened, pending or completed
action, suit or proceeding (hereinafter called an "Action"), whether civil,
criminal, administrative or investigative (including without limitation any
Action by or in the right of the Corporation to procure a judgment in its
favor) by reason of the fact that he is or was a director or officer of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or any other entity or
enterprise, against expenses (including attorneys' fees and disbursements)
and against judgments, fines (including any excise tax assessed with
respect to an employee benefit plan) and amounts paid in settlement
actually and reasonably incurred by him in connection with such Action or
any appeal therein.
Section 4.2. Timing of Indemnification. The Corporation shall
-------------------------
pay any such expenses incurred by a director or officer, or former director
or officer, of the Corporation in defending any such Action in advance of
the final disposition thereof upon receipt of an undertaking by or on
behalf of such person to repay such advances to the extent of the amount to
which such person shall ultimately be determined not to be entitled.
Section 4.3. Authorized Representatives. The Corporation, by
--------------------------
resolution of the Board of Directors, may extend the benefits of this
Article IV to current and/or former employees, agents and other
representatives of the Corporation and to any person who was or is a party
to or a witness in any Action (each person entitled to benefits under this
Article IV being hereinafter sometimes called an "Indemnified Person").
Section 4.4. Nonexclusivity. (a) Each director and officer of
--------------
the Corporation shall be deemed to act in such capacity in reliance upon
such rights of indemnification and advancement of expenses as are provided
in this Article. The rights of indemnification and advancement of expenses
and other benefits provided by this Article shall not be deemed exclusive
of any other rights to which any person seeking indemnification or
advancement of expenses may be entitled under any By-Law, agreement, vote
of stockholders or disinterested directors, decision of independent
counsel, statute or otherwise, both as to action in such person's official
<PAGE>
capacity and as to action in another capacity while holding such office or
position, and shall continue as to a person who has ceased to be an
authorized representative of the Corporation and shall inure to the benefit
of the heirs, executors, assigns and administrators of such person.
(b) All rights to indemnification and to the advancement of
expenses granted under or pursuant to this Article shall be deemed to arise
out of a contract between the Corporation and each person who is an
Indemnified Person at any time while this Article is in effect and may be
evidenced by a separate contract between the Corporation and each
Indemnified Person; and such rights shall be effective in respect of all
Actions commenced after the effective date of these By-Laws whether arising
from acts or omissions occurring before or after such date.
Section 4.5. Standard for Indemnification. Any indemnification
----------------------------
under this Article shall be made by the Corporation only as authorized in
the specific case upon a determination that indemnification of the
authorized representative is proper in the circumstances because such
person has acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the Corporation,
and, with respect to any criminal action or proceeding had no reasonable
cause to believe his or her conduct was unlawful. Such determination shall
be made (1) by the Board of Directors by a majority vote of a quorum
consisting of Directors who were not parties to such action, suit or
proceeding, or (2) if such quorum is not obtainable, or, even if
obtainable, a quorum of disinterested Directors so directs, by independent
legal counsel in a written opinion, or (3) by the stockholders. The
termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
---- ----------
equivalent, shall not, of itself, create a presumption that the officer or
director did not act in good faith and in a manner which such officer or
director reasonably believed to be in or not opposed to the best interests
of the Corporation, and, with respect to any criminal action or proceeding,
had reasonable cause to believe that such person's conduct was unlawful.
Section 4.6. Insurance. The corporation shall purchase and
---------
maintain insurance on behalf of each director and officer against any
liability asserted against or incurred by such director or officer in any
capacity, or arising out of such director's or officer's status as such,
whether or not the Corporation would have the power to indemnify such
director or officer against such liability under the provisions of this
Article. The Corporation shall not be required to maintain such insurance
if it is not available on terms satisfactory to the Board of Directors or
if, in the business judgment of the Board of Directors, either (i) the
premium cost for such insurance is substantially disproportionate to the
amount of coverage, or (ii) the coverage provided by such insurance is so
limited by exclusions that there is insufficient benefit from such
insurance. The Corporation may purchase and maintain insurance on behalf
of any person referred to in Section 4.3 hereof against any liability
asserted against or incurred by such person in any capacity, whether or not
<PAGE>
the Corporation would have the power to indemnify such person against such
liability under the provisions of this Article. As used in this Section
"insurance" includes retrospectively rated and self-insured programs;
provided, however, that no such program shall provide coverage for any
Indemnified Person which is prohibited by applicable law. The
Corporation's indemnity of any person pursuant to this Article IV shall be
reduced by any amounts such person may collect with respect to such
liability (A) under any policy of insurance purchased and maintained on his
behalf by the Corporation or (B) from any other entity or enterprise served
by such person.
Section 4.7. Constituent Corporations. For purposes of this
------------------------
Article, references to "the Corporation" shall include, in addition to the
resulting corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger which,
if its separate existence had continued, would have had power and authority
to indemnify its authorized representatives so that any person who is or
was an authorized representative of such constituent corporation shall
stand in the same position under this Article with respect to the resulting
or surviving corporation as he or she would have with respect to such
constituent corporation if its separate existence had continued.
Section 4.8. Eligibility. For the purposes of this Article, the
-----------
term "authorized representative" shall mean a director, officer, employee
or agent of the Corporation or of any subsidiary of the Corporation, or a
trustee, custodian, administrator, or fiduciary of any employee benefit
plan established and maintained by the Corporation or by any subsidiary of
the Corporation, or a person serving another corporation, partnership,
joint venture, trust or other enterprise in any of the foregoing capacities
at the request of the Corporation.
Section 4.9. Amendment or Repeal. The Board of Directors shall
-------------------
have the power and authority to make, alter, amend and repeal such
procedural rules and regulations relating to indemnification and the
advancement of expenses as it, in its discretion, may deem necessary or
expedient in order to carry out the purposes of this Article, such rules
and regulations, if any, to be set forth in the By-Laws of the Corporation
or in a resolution of the Board of Directors. No amendment, repeal or
modification of the foregoing provisions of this Article IV shall eliminate
or limit any right or protection afforded hereunder to any Indemnitee with
respect to any act or omission occurring prior to the time of such
amendment, repeal or modification.
ARTICLE V
SHARES OF CAPITAL STOCK
<PAGE>
Section 5.1. Stock Certificates. Certificates for shares of the
------------------
capital stock of the Corporation shall be in the form adopted by the Board
of Directors, may be signed by the President or any Vice President and the
Treasurer or the Assistant Treasurer or the Secretary or the Assistant
Secretary of the Corporation, and may be sealed with the seal of the
Corporation. Any of or all of the signatures on the certificate may be a
facsimile. In case any officer, transfer agent or registrar who has signed
or whose facsimile signature has been placed upon a certificate shall have
ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same
effect as if he were such officer, transfer agent or registrar at the date
of issue. All such certificates shall be numbered consecutively, and the
name of the person owning the shares represented thereby, with the number
of such shares and the date of issue, shall be entered on the books of the
Corporation.
Section 5.2. Transfer of Stock. Shares of capital stock of the
-----------------
Corporation shall be transferred only on the books of the Corporation, by
the holder of record in person or by the holder's duly authorized
representative, upon surrender to the Corporation of the certificate for
such shares duly endorsed for transfer, together with such other documents
(if any) as may be required to effect such transfer.
Section 5.3. Lost, Stolen, Destroyed, or Mutilated Certificates.
--------------------------------------------------
New stock certificates may be issued to replace certificates alleged to
have been lost, stolen, destroyed, or mutilated, upon such terms and
conditions, including proof of loss or destruction, and the giving of a
satisfactory bond of indemnity, as the Board of Directors from time to time
may determine.
Section 5.4. Regulations. The Board of Directors shall have
-----------
power and authority to make all such rules and regulations not inconsistent
with these By-laws as it may deem expedient concerning the issue, transfer,
and registration of shares of capital stock of the Corporation.
ARTICLE VI
GENERAL PROVISIONS
Section 6.1. Corporate Seal. The Corporation may adopt a seal
--------------
in such form as the Board of Directors shall from time to time determine.
The application of the corporate seal shall not be necessary to the valid
execution, assignment or endorsement by the Corporation of any instrument
or other document.
Section 6.2. Fiscal Year. The fiscal year of the Corporation
-----------
shall be as designated by the Board of Directors from time to time.
<PAGE>
Section 6.3. Authorization. All checks, notes, vouchers,
-------------
warrants, drafts, acceptances, and other orders for the payment of moneys
of the Corporation shall be signed by such officer or officers or such
other person or persons as the Board of Directors may from time to time
designate.
Section 6.4. Financial Reports. Financial statements or reports
-----------------
shall not be required to be sent to the stockholders of the Corporation,
but may be so sent in the discretion of the Board of Directors, in which
event the scope of such statements or reports shall be within the
discretion of the Board of Directors, and such statements or reports shall
not be required to have been examined by or to be accompanied by an opinion
of an accountant or firm of accountants.
Section 6.5. Effect of By-laws. No provision in these By-laws
-----------------
shall vest any property right in any stockholder.
ARTICLE VII
AMENDMENTS
Except as provided by the Certificate of Incorporation of the
Corporation or by applicable law, the authority to make, amend and repeal
the By-laws is exclusively vested in the Board of Directors.
=======================================
DQE CAPITAL CORPORATION
Issuer
and
DQE, INC.,
Guarantor
TO
THE FIRST NATIONAL BANK OF CHICAGO,
Trustee
_________
INDENTURE
Dated as of _________, 1999
=======================================
<PAGE>
DQE CAPITAL, INC.
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of _________ 1, 1999
Trust Indenture Act Section Indenture
Section
Section 310 (a)(1) . . . . . 809
(a)(2) . . . . . . . . . . 809
(a)(3) . . . . . . . . . . 815
(a)(4) . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . 808, 810
Section 311 (a) . . . . . . 813
(b) . . . . . . . . . . . . 813
(c) . . . . . . . . . . . . 813
Section 312 (a) . . . . . . 901
(b) . . . . . . . . . . . . 901
(c) . . . . . . . . . . . . 901
Section 313 (a) . . . . . . 902
(b)(1) . . . . . . . . . . Not Applicable
(b)(2) . . . . . . . . . . 902
(c) . . . . . . . . . . . . 902
(d) . . . . . . . . . . . . 902
Section 314 (a) . . . . . . 902, 505
(a)(4) . . . . . . . . . . 605
(b) . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . 102
(c)(2) . . . . . . . . . . 102
(c)(3) . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . 102
Section 315 (a) . . . . . . 801(a), 803
(b) . . . . . . . . . . . . 802
(c) . . . . . . . . . . . . 801(b)
(d) . . . . . . . . . . . . 801(c)
(d)(1) . . . . . . . . . . 801(a)(1), 801
(c)(1)
(d)(2) . . . . . . . . . . 801(c)(2)
(d)(3) . . . . . . . . . . 801(c)(3)
(e) . . . . . . . . . . . . 714
Section 316 (a) . . . . . . 712, 713
(a)(1)(A) . . . . . . . . . 702, 712
(a)(1)(B) . . . . . . . . . 713
(a)(2) . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . 708
(c) . . . . . . . . . . . . 104
Section 317 (a)(1) . . . . . 703
(a)(2) . . . . . . . . . . 705
(b) . . . . . . . . . . . . 503
Section 318 (a) . . . . . . 107
<PAGE>
TABLE OF CONTENTS
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. General Definitions . . . . . . . . . . . . . . . . . . . 2
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . 2
Authorized Officer . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . 3
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . 3
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Order" or "Company Request . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . 3
corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Discount Security . . . . . . . . . . . . . . . . . . . . . . . . 3
Dollar" or "$ . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Eligible Obligations . . . . . . . . . . . . . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . 4
Governmental Authority . . . . . . . . . . . . . . . . . . . . . . 4
Government Obligations . . . . . . . . . . . . . . . . . . . . . . 4
Guarantor . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Guarantor Order" or "Guarantor Request . . . . . . . . . . . . . . 4
Guaranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . 5
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . 5
Officer's Certificate . . . . . . . . . . . . . . . . . . . . . . 5
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . 5
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Periodic Offering . . . . . . . . . . . . . . . . . . . . . . . . 6
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . 6
Predecessor Security . . . . . . . . . . . . . . . . . . . . . . 6
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . 7
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . 7
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . 7
Required Currency . . . . . . . . . . . . . . . . . . . . . . . . 7
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . 7
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Security Register" and "Security Registrar . . . . . . . . . . . 7
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . 7
Stated Interest Rate . . . . . . . . . . . . . . . . . . . . . . 7
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . 7
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Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Tranche . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . 7
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
United States . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Unpaid Interest . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 102. Compliance Certificates and Opinions . . . . . . . . . . 8
SECTION 103. Content and Form of Documents Delivered to Trustee . . . 8
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . . . . . . 9
SECTION 105. Notices, Etc. to Trustee, Company or Guarantor . . . . . 11
SECTION 106. Notice to Holders of Securities; Waiver . . . . . . . . 12
SECTION 107. Conflict with Trust Indenture Act . . . . . . . . . . . 12
SECTION 108. Effect of Headings and Table of Contents . . . . . . . . 12
SECTION 109. Successors and Assigns . . . . . . . . . . . . . . . . . 13
SECTION 110. Separability Clause . . . . . . . . . . . . . . . . . . 13
SECTION 111. Benefits of Indenture . . . . . . . . . . . . . . . . . 13
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . . . . . 13
SECTION 113. Legal Holidays . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . . . 13
SECTION 202. Form of Trustee's Certificate of Authentication . . . . 14
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . . . 14
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . 18
SECTION 303. Execution, Dating, Authentication . . . . . . . . . . . 18
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 by Security Registrar . . . . . . . . . . . 24
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . 25
SECTION 311. Payment to Be in Proper Currency . . . . . . . . . . . . 25
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 401. Applicability of Article . . . . . . . . . . . . . . . . 25
SECTION 402. Election to Redeem; Notice to Trustee . . . . . . . . . 25
SECTION 403. Selection of Securities to Be Redeemed . . . . . . . . . 26
SECTION 404. Notice of Redemption. . . . . . . . . . . . . . . . . . 26
SECTION 405. Securities Payable on Redemption Date . . . . . . . . . 27
SECTION 406. Securities Redeemed in Part . . . . . . . . . . . . . . 27
ARTICLE FIVE
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COVENANTS
SECTION 501. Payment of Securities. . . . . . . . . . . . . . . . . . 28
SECTION 502. Maintenance of Office or Agency . . . . . . . . . . . . 28
SECTION 503. Money for Securities Payments to Be Held in Trust . . . 29
SECTION 504. Corporate Existence . . . . . . . . . . . . . . . . . . 30
SECTION 505. Annual Officer's Certificate . . . . . . . . . . . . . . 30
SECTION 506. Waiver of Certain Covenants . . . . . . . . . . . . . . 30
ARTICLE SIX
SATISFACTION AND DISCHARGE
SECTION 601. Satisfaction and Discharge of Securities . . . . . . . . 31
SECTION 602. Satisfaction and Discharge of Indenture . . . . . . . . 33
SECTION 603. Application of Trust Money . . . . . . . . . . . . . . . 33
ARTICLE SEVEN
EVENTS OF DEFAULT; REMEDIES
SECTION 701. Events of Default . . . . . . . . . . . . . . . . . . . 34
SECTION 702. Acceleration of Maturity; Rescission and Annulment . . . 35
SECTION 703. Collection of Indebtedness and Suits for Enforcement by
Trustee . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 704. Application of Money Collected . . . . . . . . . . . . . 37
SECTION 705. Trustee May File Proofs of Claim . . . . . . . . . . . . 37
SECTION 706. Trustee May Enforce Claims without
Possession of Securities . . . . . . . . . . . . . . . 38
SECTION 707. Limitation on Suits . . . . . . . . . . . . . . . . . . 38
SECTION 708. Unconditional Right of Holders to Receive Principal,
Premium and Interest . . . . . . . . . . . . . . . . . 39
SECTION 709. Restoration of Rights and Remedies . . . . . . . . . . . 39
SECTION 710. Rights and Remedies Cumulative . . . . . . . . . . . . . 39
SECTION 711. Delay or Omission Not Waiver . . . . . . . . . . . . . . 39
SECTION 712. Control by Holders of Securities . . . . . . . . . . . . 40
SECTION 713. Waiver of Past Defaults . . . . . . . . . . . . . . . . 40
SECTION 714. Undertaking for Costs. . . . . . . . . . . . . . . . . . 40
SECTION 715. Waiver of Stay or Extension Laws . . . . . . . . . . . . 41
ARTICLE EIGHT
THE TRUSTEE
SECTION 801. Certain Duties and Responsibilities . . . . . . . . . . 41
SECTION 802. Notice of Defaults . . . . . . . . . . . . . . . . . . . 42
SECTION 803. Certain Rights of Trustee . . . . . . . . . . . . . . . 42
SECTION 804. Not Responsible for Recitals or Issuance of Securities . 43
SECTION 805. May Hold Securities . . . . . . . . . . . . . . . . . . 44
SECTION 806. Money Held in Trust . . . . . . . . . . . . . . . . . . 44
SECTION 807. Compensation and Reimbursement . . . . . . . . . . . . . 44
SECTION 808. Disqualification; Conflicting Interests . . . . . . . . 45
SECTION 809. Corporate Trustee Required; Eligibility . . . . . . . . 45
SECTION 810. Resignation and Removal; Appointment of Successor . . . 45
SECTION 811. Acceptance of Appointment by Successor . . . . . . . . . 47
SECTION 812. Merger, Conversion, Consolidation or Succession
to Business . . . . . . . . . . . . . . . . . . . . . . 48
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<PAGE>
SECTION 813. Preferential Collection of Claims against Company . . . 48
SECTION 814. Appointment of Authenticating Agent . . . . . . . . . . 49
ARTICLE NINE
LISTS OF HOLDERS; REPORTS BY TRUSTEE, COMPANY AND GUARANTOR
SECTION 901. Lists of Holders. . . . . . . . . . . . . . . . . . . . 50
SECTION 902. Reports by Trustee, Company and Guarantor . . . . . . . 50
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE
OR OTHER TRANSFER
SECTION 1001. Company or Guarantor may Consolidate, etc.,
Only on Certain Terms . . . . . . . . . . . . . . . . 51
SECTION 1002. Successor Substituted. . . . . . . . . . . . . . . . . 51
SECTION 1003. Release of Company or Guarantor upon Conveyance or
Other Transfer. . . . . . . . . . . . . . . . . . . . 52
SECTION 1004. Limitation. . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
SECTION 1101. Supplemental Indentures without Consent of Holders . . 53
SECTION 1102. Supplemental Indentures with Consent of Holders . . . . 54
SECTION 1103. Execution of Supplemental Indentures . . . . . . . . . 56
SECTION 1104. Effect of Supplemental Indentures . . . . . . . . . . . 56
SECTION 1105. Conformity with Trust Indenture Act . . . . . . . . . . 56
SECTION 1106. Reference in Securities to Supplemental Indentures . . 56
SECTION 1107. Modification without Supplemental Indenture . . . . . . 56
ARTICLE TWELVE
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
SECTION 1201. Purposes for Which Meetings May Be Called . . . . . . . 57
SECTION 1202. Call, Notice and Place of Meetings . . . . . . . . . . 57
SECTION 1203. Persons Entitled to Vote at Meetings . . . . . . . . . 58
SECTION 1204. Quorum; Action . . . . . . . . . . . . . . . . . . . . 58
SECTION 1205. Attendance at Meetings; Determination of Voting Rights;
Conduct and Adjournment of Meetings . . . . . . . . . 59
SECTION 1206. Counting Votes and Recording Action of Meetings . . . . 59
SECTION 1207. Action without Meeting . . . . . . . . . . . . . . . . 60
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ARTICLE THIRTEEN
GUARANTY
SECTION 1301. Guaranty. . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 1302. Execution and Delivery of Guaranty. . . . . . . . . . . 61
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 1401. Liability Solely Corporate . . . . . . . . . . . . . . 62
Testimonium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
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<PAGE>
INDENTURE, dated as of 1, 1999 among DQE CAPITAL
-----------
CORPORATION, a corporation duly organized and existing under the laws of the
State of Delaware (herein sometimes called the "Company"), DQE, INC., a
corporation duly organized and existing under the laws of the Commonwealth
of Pennsylvania (herein sometimes called the "Guarantor"), and THE FIRST
NATIONAL BANK OF CHICAGO, a national banking association duly organized and
existing under the laws of the United States of America, as trustee (herein
sometimes called the "Trustee").
RECITALS 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 (herein
called the "Securities"), to be issued in one or more series as
contemplated herein, each with the Guaranty endorsed thereon; and all acts
necessary to make this Indenture a valid agreement of the Company have been
performed.
RECITALS OF THE GUARANTOR
The Guarantor has duly authorized the execution and delivery of
this Indenture to provide for the guaranty of the Securities provided for
herein; and all acts necessary to make this Indenture a valid agreement of
the Guarantor have been performed.
NOW, THEREFORE, THIS INDENTURE WITNESSETH that in consideration
of the premises and of the purchase of the Securities by the Holders
thereof, it is hereby covenanted and agreed, for the equal and ratable
benefit of all Holders of the Securities or of series thereof (except as
otherwise contemplated herein), as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. GENERAL DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well
as the singular;
(b) all terms used herein without definition which are
defined in the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally
accepted accounting principles in the United States, and, except
as otherwise herein expressly provided, the term "generally
accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting
principles as are generally accepted in the United States at the
date of such computation or, at the election of the Company or
the Guarantor, as the case requires, at the date of the execution
and delivery of this Indenture;
(d) any reference to an "Article" or a "Section" refers to
an Article or a Section, as the case may be, of this Indenture;
and
(e) 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.
"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 generally the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "CONTROLLING" and
"CONTROLLED" have meanings correlative to the foregoing.
"AUTHENTICATING AGENT" means any Person (other than the Company,
the Guarantor or any Affiliate of either thereof) authorized by the Trustee
to act on behalf of the Trustee to authenticate the Securities of one or
more series.
"AUTHORIZED OFFICER" means the Chairman of the Board, the
President, any Vice President, the Treasurer, any Assistant Treasurer or
the Corporate Secretary or any other duly authorized officer, agent or
attorney-in-fact of the Company or the Guarantor named in an Officer's
Certificate of the Company or the Guarantor, as the case requires, signed
by any of the aforesaid corporate officers.
"BOARD OF DIRECTORS" means either the board of directors of the
Company or the Guarantor, as the case requires, or any committee thereof
duly authorized to act in respect of matters relating to this Indenture.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Corporate Secretary or an Assistant Corporate Secretary of the Company or
the Guarantor to have been duly adopted by the Board of Directors of the
Company or the Guarantor, as the case requires, and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"BUSINESS DAY", when used with respect to a Place of Payment or
any other particular location specified in the Securities or this
Indenture, means any day, other than a Saturday or Sunday, which is not a
day on which banking institutions or trust companies in such Place of
Payment or other location are generally authorized or required by law,
regulation or executive order to remain closed, except as may be otherwise
specified as contemplated by Section 301.
"COMMISSION" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the date of the execution and
delivery of this Indenture such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body,
if any, performing such duties at such time.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"COMPANY ORDER" or "COMPANY REQUEST" means a written order or
request, as the case may be, signed in the name of the Company by an
Authorized Officer and delivered to the Trustee.
"CORPORATE TRUST OFFICE" means the office of the Trustee at which
at any particular time its corporate trust business shall be principally
administered, which office at the date of the execution and delivery of
this Indenture is located at One First National Plaza, Suite 0126, Chicago,
Illinois 60670-0126.
"CORPORATION" means a corporation, association, company, joint
stock company or business trust.
"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
702. "INTEREST" with respect to a Discount Security means interest, if
any, borne by such Security at a Stated Interest Rate.
"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.
"ELIGIBLE OBLIGATIONS" means:
(a) with respect to Securities denominated in Dollars,
Government Obligations; or
(b) with respect to Securities denominated in a currency
other than Dollars or in a composite currency, such other
obligations or instruments as shall be specified with respect to
such Securities, as contemplated by Section 301.
"EVENT OF DEFAULT" has the meaning specified in Section 701.
"FAIR VALUE" has the meaning specified in Section 1005.
"GOVERNMENTAL AUTHORITY" means the government of the United
States or of any State or Territory thereof or of the District of Columbia
or of any county, municipality or other political subdivision of any
thereof, or any department, agency, authority or other instrumentality of
any of the foregoing.
"GOVERNMENT OBLIGATIONS" means:
(a) direct obligations of, or obligations the principal of
and interest on which are unconditionally guaranteed by, the
United States entitled to the benefit of the full faith and
credit thereof; and
(b) certificates, depositary receipts or other instruments
which evidence a direct ownership interest in obligations
described in clause (a) above or in any specific interest or
principal payments due in respect thereof; provided, however,
that the custodian of such obligations or specific interest or
principal payments shall be a bank or trust company (which may
include the Trustee or any Paying Agent) subject to Federal or
State supervision or examination with a combined capital and
surplus of at least Fifty Million Dollars ($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.
"GUARANTOR" means the Person named as "Guarantor" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Guarantor" shall include such successor Person.
"GUARANTOR ORDER" or "GUARANTOR REQUEST" means a written order or
request, as the case may be, signed in the name of the Guarantor by an
Authorized Officer of the Guarantor and delivered to the Trustee.
"GUARANTY" means the guaranty of the Guarantor endorsed on each
Security authenticated and delivered under this Indenture and shall include
the guaranty set forth in Section 1301.
"HOLDER" means a Person in whose name a Security is registered in
the Security Register.
"INDENTURE" means this instrument as originally executed and
delivered and as it may from time to time be amended and/or supplemented by
one or more indentures or other instruments 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.
"INDEPENDENT EXPERT'S CERTIFICATE" has the meaning specified in
Section 1005.
"INTEREST PAYMENT DATE", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"MATURITY", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as provided in such Security or in this Indenture,
whether at the Stated Maturity, by declaration of acceleration, upon call
for redemption or otherwise.
"NOTICE OF DEFAULT" has the meaning specified in Section 701(c).
"OFFICER'S CERTIFICATE" means a certificate signed by an
Authorized Officer of the Company or the Guarantor, as the case requires,
and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who may
be counsel for the Company or the Guarantor or other counsel acceptable to
the Trustee and who may be an employee or Affiliate of the Company.
"OUTSTANDING", when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(a) Securities theretofore canceled or delivered to the
Trustee for cancellation;
(b) Securities deemed to have been paid for all purposes of
this Indenture in accordance with Section 601 (whether or not the
Company's indebtedness in respect thereof shall be satisfied and
discharged for any other purpose); and
(c) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to it and the
Company that such Securities are held by a bona fide purchaser or
purchasers in whose hands such Securities are valid obligations
of the Company;
provided, however, that in determining whether or not the Holders of the
requisite principal amount of the Securities Outstanding under this
Indenture, or the Outstanding Securities of any series or Tranche, have
given or made 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 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 obligor or such Affiliate
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 it is established to the reasonable
satisfaction of the Trustee that the pledgee, and not the
Company, or any such other obligor or Affiliate of either
thereof, has the 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 702;
provided, further, that in the case of any Security the principal of which
is payable from time to time without presentment or surrender, the
principal amount of such Security that shall be deemed to be Outstanding at
any time for all purposes of this Indenture shall be the original principal
amount thereof less the aggregate amount of principal thereof theretofore
paid.
"PAYING AGENT" means any Person, including the Company or the
Guarantor, authorized to pay the principal of, and premium, if any, or
interest, if any, on any Securities on behalf of the Company or the
Guarantor.
"PERIODIC OFFERING" means an offering of Securities of a series
from time to time any or all of the specific terms of which Securities,
including without limitation the rate or rates of interest, if any,
thereon, the Stated Maturity or Maturities thereof and the redemption
provisions, if any, with respect thereto, are to be determined by the
Company or its agents from time to time subsequent to the initial request
for the authentication and delivery of such Securities by the Trustee, as
contemplated in Section 301 and clause (b) of Section 303.
"PERSON" means any individual, corporation, partnership, limited
liability partnership, limited liability company, joint venture, trust or
unincorporated organization or any Governmental Authority.
"PLACE OF PAYMENT", when used with respect to the Securities of
any series, or Tranche thereof, means the place or places, specified as
contemplated by Section 301, at which, subject to Section 502, principal of
and premium, if any, and interest, if any, on the Securities of such series
or Tranche are payable.
"PREDECESSOR SECURITY" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed (to the extent lawful) to evidence the same debt as the
mutilated, destroyed, lost or stolen Security.
"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 311.
"RESPONSIBLE OFFICER", when used with respect to the Trustee,
means any officer of the Trustee assigned by the Trustee to administer its
corporate trust matters.
"SECURITIES" means any bonds, notes and other evidences of
indebtedness authenticated and delivered under this Indenture.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective
meanings specified in Section 305.
"SPECIAL RECORD DATE" for the payment of any Unpaid Interest on
the Securities of any series means a date fixed by the Trustee pursuant to
Section 307.
"STATED INTEREST RATE" means a rate (whether fixed or variable)
at which an obligation by its terms is stated to bear simple interest. Any
calculation or other determination to be made under this Indenture by
reference to the Stated Interest Rate on an obligation shall be made (a) if
the Company's obligations in respect of any other indebtedness shall be
evidenced or secured in whole or in part by such obligation, by reference
to the lower of the Stated Interest Rate on such obligation and the Stated
Interest Rate on such other indebtedness and (b) without regard to the
effective interest cost to the Company of such obligation or of any such
other indebtedness.
"STATED MATURITY", when used with respect to any obligation or
any installment of principal thereof or interest thereon, means the date on
which the principal of such obligation or such installment of principal or
interest is stated to be due and payable (without regard to any provisions
for redemption, prepayment, acceleration, purchase or extension).
"SUCCESSOR" has the meaning set forth in Section 1001.
"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.
"TRUST INDENTURE ACT" means, as of any time, the Trust Indenture
Act of 1939, or any successor statute, as in effect at such time.
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor trustee shall have become
such with respect to one or more series of Securities pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall
mean or include each Person who is then a Trustee hereunder, and if at any
time there is more than one such Person, acting as trustee hereunder,
"Trustee" shall mean each such Person so acting.
"UNITED STATES" means the United States of America, its
Territories, its possessions and other areas subject to its political
jurisdiction.
"UNPAID INTEREST" has the meaning specified in Section 307.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided in this Indenture, upon
any application or request by the Company or the Guarantor to the Trustee
to take any action under any provision of this Indenture, the Company and
the Guarantor each shall furnish to the Trustee an Officer's Certificate
stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, it being understood
that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of
this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each 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, such individual has made such examination or
investigation as is necessary to enable such individual 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. CONTENT AND FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
(a) Any Officer's Certificate may be based (without further
examination or investigation), insofar as it relates to or is dependent
upon legal matters, upon an opinion of, or representations by, counsel,
unless, in any case, such officer has actual knowledge that the certificate
or opinion or representations with respect to the matters upon which such
Officer's Certificate may be based as aforesaid are erroneous.
Any Opinion of Counsel may be based (without further
examination or investigation), insofar as it relates to or is dependent
upon factual matters, information with respect to which is in the
possession of the Company or the Guarantor, upon a certificate of, or
representations by, an officer or officers of the Company or the Guarantor,
as the case requires, unless such counsel has actual knowledge that the
certificate or opinion or representations with respect to the matters upon
which his opinion may be based as aforesaid are erroneous. In addition,
any Opinion of Counsel may be based (without further examination or
investigation), insofar as it relates to or is dependent upon matters
covered in an Opinion of Counsel rendered by other counsel, upon such other
Opinion of Counsel, unless such counsel has actual knowledge that the
Opinion of Counsel rendered by such other counsel with respect to the
matters upon which his Opinion of Counsel may be based as aforesaid are
erroneous. If, in order to render any Opinion of Counsel provided for
herein, the signer thereof shall deem it necessary that additional facts or
matters be stated in any Officer's Certificate provided for herein, then
such certificate may state all such additional facts or matters as the
signer of such Opinion of Counsel may request.
(b) 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. Where (i) any Person is required to
make, give or execute two or more applications, requests, consents,
certificates, statements, opinions or other instruments under this
Indenture, or (ii) two or more Persons are each required to make, give or
execute any such application, request, consent, certificate, statement,
opinion or other instrument, any such applications, requests, consents,
certificates, statements, opinions or other instruments may, but need not,
be consolidated and form one instrument.
(c) Whenever, subsequent to the receipt by the Trustee of
any Board Resolution, Officer's Certificate, Opinion of Counsel or other
document or instrument, a clerical, typographical or other inadvertent or
unintentional error or omission shall be discovered therein, a new document
or instrument may be substituted therefor in corrected form with the same
force and effect as if originally filed in the corrected form and,
irrespective of the date or dates of the actual execution and/or delivery
thereof, such substitute document or instrument shall be deemed to have
been executed and/or delivered as of the date or dates required with
respect to the document or instrument for which it is substituted.
Anything in this Indenture to the contrary notwithstanding, if any such
corrective document or instrument indicates that action has been taken by
or at the request of the Company which could not have been taken had the
original document or instrument not contained such error or omission, the
action so taken shall not be invalidated or otherwise rendered ineffective
but shall be and remain in full force and effect, except to the extent that
such action was a result of willful misconduct or bad faith. Without
limiting the generality of the foregoing, any Securities issued under the
authority of such defective document or instrument shall nevertheless be
the valid obligations of the Company entitled to the benefits provided by
this Indenture equally and ratably with all other Outstanding Securities,
except as aforesaid.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, election, waiver or other action provided by this Indenture to be
made, given or taken by Holders may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Holders in
person or by an agent duly appointed in writing or, alternatively, may be
embodied in and evidenced by the record of Holders voting in favor thereof,
either in person or by proxies duly appointed in writing, at any meeting of
Holders duly called and held in accordance with the provisions of Article
Twelve, 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 and the
Guarantor. 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 801) conclusive in favor of the
Trustee, the Company and the Guarantor, 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 1206.
(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 ownership of Securities and principal amount
(except as otherwise contemplated in clause (y) of the first 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, the Company or the Guarantor in reliance thereon, whether or not
notation of such action is made upon such Security.
(e) Until such time as written instruments shall have been
delivered to the Trustee with respect to the requisite percentage of
principal amount of Securities for the action contemplated by such
instruments, any such instrument executed and delivered by or on behalf of
a Holder may be revoked with respect to any or all of such Securities by
written notice by such Holder or any subsequent Holder, proven in the
manner in which such instrument was proven.
(f) Securities of any series, 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 the Guarantor
and authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series or Tranche.
(g) Each of the Company and the Guarantor may, at its
option, by Company Order or Guarantor Order, as the case requires, fix in
advance a record date for the determination of Holders entitled to give any
request, demand, authorization, direction, notice, consent, waiver or other
Act solicited by the Company, but neither the Company nor the Guarantor
shall have any obligation to do so; provided, however, that neither the
Company nor the Guarantor may fix a record date for the giving or making of
any notice, declaration, request or direction referred to in the next
sentence. In addition, the Trustee may, at its option, fix in advance a
record date for the determination of Holders of Securities of any series
entitled to join in the giving or making of any Notice of Default, any
declaration of acceleration referred to in Section 702, any request to
institute proceedings referred to in Section 707 or any direction referred
to in Section 712, in each case with respect to Securities of such series.
If any such record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act, or such notice,
declaration, request or direction, 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 (i)
whether Holders of the requisite proportion of the Outstanding Securities
have authorized or agreed or consented to such Act (and for that purpose
the Outstanding Securities shall be computed as of the record date) and/or
(ii) which Holders may revoke any such Act (notwithstanding subsection (e)
of this Section); and any such Act, given as aforesaid, shall be effective
whether or not the Holders which authorized or agreed or consented to such
Act remain Holders after such record date and whether or not the Securities
held by such Holders remain Outstanding after such record date.
SECTION 105. NOTICES, ETC. TO TRUSTEE, COMPANY OR GUARANTOR.
Any request, demand, authorization, direction, notice, consent,
election, waiver or Act of Holders or other document provided or permitted
by this Indenture to be made upon, given or furnished to, or filed with,
the Trustee by any Holder or by the Company or the Guarantor, or the
Company or the Guarantor by the Trustee or by any Holder, shall be
sufficient for every purpose hereunder (unless otherwise expressly provided
herein) if the same shall be in writing and delivered personally to an
officer or other responsible employee of such party, or transmitted by
facsimile transmission, telex or other direct written electronic means to
the telephone number or other electronic communications address set forth
for such party below or otherwise as such party shall from time to time
designate, or transmitted by registered mail, charges prepaid, to the
applicable address set forth for such party below or to such other address
as such party may from time to time designate:
If to the Trustee, to:
The First National Bank of Chicago
One N. State Street, 9th Floor
Chicago, Illinois 60670-0126
Attention: Corporate Trust Administration
Telephone: (312) 407-3124
Facsimile: (312) 407-1708
If to the Company, to:
DQE Capital Corporation
411 Seventh Avenue
Pittsburgh, Pennsylvania 15219-1905
Attention: Treasurer
Telephone: (412) 393-6700
Facsimile: (412) 393-6004
If to the Guarantor, to:
DQE, Inc.
Cherrington Corporate Center, Suite 100
500 Cherrington Parkway
Coraopolis, Pennsylvania 15108-3189
Attention: Treasurer
Telephone: (412) 262-4700
Facsimile: (412)
Any communication contemplated herein shall be deemed to have
been made, given, furnished and filed if personally delivered, on the date
of delivery, if transmitted by facsimile transmission, telex or other
direct written electronic means, on the date of transmission, and if
transmitted by registered mail, on the date of receipt. The Trustee shall
promptly deliver to the Guarantor a copy of any such communication
delivered by the Trustee to 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 another provision hereof which is required or deemed to be included in
this Indenture by, or is otherwise governed by, any provision of the Trust
Indenture Act, such other provision shall control; and if any provision
hereof otherwise conflicts with the Trust Indenture Act, the Trust
Indenture Act shall control.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings in this Indenture and the Table
of Contents are for convenience only and shall not affect the construction
hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company or
the Guarantor shall bind its successors and assigns, whether so expressed
or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture, the Securities or the
Guaranties shall be held to 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, the Securities or the Guaranties,
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, the Securities and the Guaranties shall be
governed by and construed in accordance with the law of the State of New
York (including without limitation Section 5-1401 of the New York General
Obligations Law or any successor to such statute), except to the extent
that the Trust Indenture Act shall be applicable.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of
the Securities other than a contrary provision in the Securities of any
series, or any Tranche thereof, or in the indenture supplemental hereto,
Board Resolution or Officer's Certificate which establishes the terms of
the Securities of such series or Tranche) 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, no interest shall accrue on
the amount so payable for the period from and after such Interest Payment
Date, Redemption Date or Stated Maturity, as the case may be, to such
Business Day.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The definitive Securities of each series and the Guaranties to be
endorsed thereon as contemplated by Article Thirteen shall be in
substantially the form or forms established in the Officer's Certificate,
the indenture supplemental hereto or the Board Resolution establishing such
series, in any case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such
Securities or Guaranties, as the case requires, as evidenced by their
execution thereof. If the form or forms of Securities of any series or the
Guaranties to be endorsed thereon are established in an Officer's
Certificate or a Board Resolution, such Officer's Certificate or Board
Resolution shall be delivered to the Trustee at or prior to the delivery of
the Company Order contemplated by Section 303 for the authentication and
delivery of such Securities.
The Securities of each series shall be issuable in registered
form without coupons. The definitive Securities and Guaranties endorsed
thereon shall be produced in such manner as shall be determined by the
officers executing such Securities or Guaranties, as evidenced by their
execution thereof.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be in
substantially the form set forth below:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
----------------------------------
as Trustee
By: ------------------------------
Authorized Officer
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more
series. Subject to the last paragraph of this Section, prior to the
authentication and delivery of Securities of any series there shall be
established by specification in an Officer's Certificate, a supplemental
indenture or a Board Resolution of the Company:
(a) the title of the Securities of such series (which shall
distinguish the Securities of such series from Securities of all
other series);
(b) any limit upon the aggregate principal amount of the
Securities of such series which may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities of such series
pursuant to Section 304, 305, 306, 406 or 1106 and except for any
Securities which, pursuant to Section 303, are deemed never to
have been authenticated and delivered hereunder);
(c) the Persons (without specific identification) to whom
interest, if any, on Securities of such series, or any Tranche
thereof, shall be payable, if other than the Persons in whose
names such Securities (or one or more Predecessor Securities) are
registered at the close of business on the Regular Record Date
for such interest;
(d) the date or dates on which the principal of the
Securities of such series or any Tranche thereof, is payable or
any formulary or other method or other means by which such date
or dates shall be determined, by reference to an index or other
fact or event ascertainable outside of this Indenture or
otherwise (without regard to any provisions for redemption,
prepayment, acceleration, purchase or extension); and the right,
if any, to extend the Maturity of the Securities of such series,
or any Tranche thereof, and the duration of any such extension;
(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 shall
bear interest, and the right, if any, to extend the interest
payment periods and the duration of any such extension; if
different from the rate or rates at which such Securities shall
bear interest prior to Maturity, and, if applicable, the rate or
rates at which overdue premium or interest shall bear interest,
if any), or any formulary or other method or other means by which
such rate or rates shall be determined by reference to an index
or other fact or event ascertainable outside of this Indenture or
otherwise; the date or dates from which such interest shall
accrue; the Interest Payment Dates on which such interest shall
be payable and the Regular Record Date, if any, for the interest
payable on such Securities on any Interest Payment Date; the
basis of computation of interest, if other than as provided in
Section 310; and the right, if any, to extend the interest
payment periods and the duration of any such extension;
(f) the place or places at which and/or the methods (if
other than as provided elsewhere in this Indenture) by which (i)
the principal of and premium, if any, and interest, if any, on
Securities of such series, or any Tranche thereof, shall be
payable, (ii) registration of transfer of Securities of such
series, or any Tranche thereof, may be effected, (iii) exchanges
of Securities of such series, or any Tranche thereof, may be
effected and (iv) 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; the Security Registrar and any
Paying Agent or Agents for such series or Tranche; and, if such
is the case, that the principal of such Securities shall be
payable without the presentment or surrender thereof;
(g) the period or periods within which, or the date or
dates on which, the price or prices at which and the terms and
conditions upon which the Securities of such series, or any
Tranche thereof, may be redeemed, in whole or in part, at the
option of the Company;
(h) the obligation or obligations, if any, of the Company
to redeem or purchase the Securities of such series, or any
Tranche thereof, pursuant to any sinking fund or other mandatory
redemption provisions or at the option of a Holder thereof and
the period or periods within which or the date or dates on which,
the price or prices at which and the terms and conditions upon
which such Securities shall be redeemed or purchased, in whole or
in part, pursuant to such obligation, and applicable exceptions
to the requirements of Section 404 in the case of mandatory
redemption or redemption at the option of the Holder;
(i) the denominations in which Securities of such series,
or any Tranche thereof, shall be issuable if other than
denominations of One Thousand Dollars ($1,000) and any integral
multiple thereof;
(j) the currency or currencies, including composite
currencies, in which payment of the principal of or premium, if
any, or interest, if any, on the Securities of such series, or
any Tranche thereof, shall be payable (if other than in Dollars)
and the formulary or other method or other means by which the
equivalent of any such amount in Dollars is to be determined for
any purpose, including for the purpose of determining the
principal amount of such Securities deemed to be Outstanding at
any time;
(k) if the principal of or premium, if any, or interest, if
any, on the Securities of such series, or any Tranche thereof,
are to be payable, at the election of the Company or a Holder
thereof, in a coin or currency other than that in which the
Securities are stated to be payable, the period or periods within
which, and the terms and conditions upon which, such election may
be made;
(l) if the principal of or premium, if any, or interest, if
any, on the Securities of such series, or any Tranche thereof,
are to be payable, or are to be payable at the election of the
Company or a Holder thereof, in securities or other property, the
type and amount of such securities or other property, or the
formulary or other method or other means by which such amount
shall be determined, and the period or periods within which, and
the terms and conditions upon which, any such election may be
made;
(m) if the amount payable in respect of the 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 or other fact or event ascertainable outside of this
Indenture, the manner in which such amounts shall be determined
(to the extent not established pursuant to clause (e) of this
paragraph);
(n) if other than the entire 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 702;
(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 obligations or instruments, if any, which shall be
considered to be Eligible Obligations in respect of the
Securities of such series, or any Tranche thereof, 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 601;
(q) if the Securities of such series, or any Tranche
thereof, are to be issued in global form, (i) any limitations on
the rights of the Holder or Holders of such Securities to
transfer or exchange the same or to obtain the registration of
transfer thereof, (ii) any limitations on the rights of the
Holder or Holders thereof to obtain certificates therefor in
definitive form in lieu of temporary form and (iii) any and all
other matters incidental to such Securities;
(r) if the Securities of such series, or any Tranche
thereof, 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 (f) of
Section 1101;
(s) to the extent not established pursuant to clause (q) of
this paragraph, any limitations on the rights of the Holders of
the Securities of such Series, or any Tranche thereof, to
transfer or exchange such Securities or to obtain the
registration of transfer thereof; and if a service charge will be
made for the registration of transfer or exchange of Securities
of such series, or any Tranche thereof, the amount or terms
thereof;
(t) 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;
(u) any terms of the Guaranties with respect to the
Securities of such series, or any Tranche thereof, in addition to
those set forth in Section 1301, or any exceptions to those set
forth in Section 1301; and
(v) any other terms of the Securities of such series, or
any Tranche thereof.
With respect to Securities of a series subject to a Periodic
Offering, the Officer's Certificate, the indenture supplemental hereto or
the Board Resolution which establishes such series, as the case may be, may
provide general terms or parameters for Securities of such series and
provide either that the specific terms of Securities of such series, or any
Tranche thereof, shall be specified in a Company Order or that such terms
shall be determined by the Company or its agents in accordance with
procedures specified in a Company Order as contemplated by clause (b) of
Section 303.
Unless otherwise specified with respect to a series of Securities
as contemplated by Section 301(b), any limit upon the aggregate principal
amount of a series of Securities may be increased without the consent of
any Holders and additional Securities of such series may be authenticated
and delivered up to the limit upon the aggregate principal amount
authorized with respect to such series as so increased.
Anything herein to the contrary notwithstanding, the Trustee
shall be under no obligation to authenticate and deliver Securities of any
series the terms of which, established as contemplated by this Section,
would affect the rights, duties, obligations, liabilities or immunities of
the Trustee under this Indenture or otherwise.
SECTION 302. DENOMINATIONS.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, or any Tranche thereof, the Securities
of each series shall be issuable in denominations of One Thousand Dollars
($1,000) and any integral multiple thereof.
SECTION 303. EXECUTION, DATING, AUTHENTICATION.
Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, or any Tranche thereof, the Securities
shall be executed on behalf of the Company by an Authorized Officer, and
may have the corporate seal of the Company affixed thereto or reproduced
thereon and attested by any other Authorized Officer. 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 of execution Authorized Officers shall
bind the Company, notwithstanding that such individuals, or any of them,
have ceased to be such Authorized Officers prior to the authentication and
delivery of such Securities or were not such Authorized Officers at the
date of such Securities.
Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, or any Tranche thereof, the Guaranties
to be endorsed on the Securities shall be executed and delivered in
accordance with the provisions of Section 1302.
The Trustee shall authenticate and deliver Securities of a
series, with the Guaranties endorsed thereon, for original issue, at one
time or from time to time in accordance with the Company Order referred to
below, upon receipt by the Trustee of:
(a) the instrument or instruments establishing the form or
forms and terms of the Securities of such series and the
Guaranties to be endorsed thereon, as provided in Sections 201
and 301;
(b) a Company Order requesting the authentication and
delivery of such Securities and, to the extent that the terms of
such Securities and the Guaranties to be endorsed thereon shall
not have been established in an Officer's Certificate, an
indenture supplemental hereto or a Board Resolution, all as
contemplated by Sections 201 and 301, either (i) establishing
such terms or (ii) in the case of Securities of a series subject
to a Periodic Offering, specifying procedures, acceptable to the
Trustee, by which such terms are to be established (which
procedures may provide, to the extent acceptable to the Trustee,
for authentication and delivery pursuant to oral or electronic
instructions from the Company or any agent or agents thereof,
which oral instructions are to be promptly confirmed
electronically or in writing), in either case in accordance with
the instrument or instruments delivered pursuant to clause (a)
above;
(c) A Guarantor Order approving the terms and delivery of
the Guaranties to be endorsed on such Securities as contemplated
by the Company Order delivered pursuant to clause (b) above;
(d) Securities of such series, each executed on behalf of
the Company by an Authorized Officer and having a Guaranty
endorsed thereon executed on behalf of the Guarantor by an
Authorized Officer;
(e) an Opinion of Counsel to the effect that:
(i) (A) the form or forms of such Securities have been duly
authorized by the Company, (B) the form or forms of the
Guaranties endorsed thereon have been duly authorized by the
Guarantor and (C) the forms of such Securities and such
Guaranties have been established in conformity with the
provisions of this Indenture;
(ii) (A) the terms of such Securities have been duly
authorized by the Company, (B) the terms of such Guaranties have
been duly authorized by the Guarantor and (C) the terms of such
Securities and such Guaranties have been established in
conformity with the provisions of this Indenture; and
(iii) when such Securities shall have been 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, such Securities and the Guaranties
endorsed thereon will constitute valid obligations of the Company
and the Guarantor, respectively, entitled to the benefits
provided by this Indenture;
provided, however, that, with respect to the 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 and delivery of the Securities of such series (provided that
such Opinion of Counsel addresses the authentication and delivery of all
Securities of such series), and that, in lieu of the opinions described in
clauses (ii) and (iii) above, such Counsel may opine that:
(x) when the terms of such Securities and the Guaranties to
be endorsed thereon shall have been established pursuant to a
Company Order or Orders and, if applicable, a Guarantor Order or
Orders, or pursuant to such procedures as may be specified from
time to time by a Company Order or Orders, and, if applicable, a
Guarantor Order or Orders, all as contemplated by and in
accordance with the instrument or instruments delivered pursuant
to clause (a) above, such terms will have been duly authorized by
the Company and the Guarantor, respectively, and will have been
established in conformity with the provisions of this Indenture;
and
(y) when such Securities shall have been (1) authenticated
and delivered by the Trustee in accordance with this Indenture
and the Company Order or Orders and Guarantor Order or Orders, if
any, or the specified procedures referred to in clause (x) above
and (2) issued and delivered by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel,
such Securities and the Guaranties endorsed thereon will
constitute valid obligations of the Company and the Guarantor,
respectively, entitled to the benefits provided by this
Indenture.
With respect to Securities of a series subject to a Periodic
Offering, the Trustee may conclusively rely, as to the authorization by the
Company and the Guarantor of any of such Securities and the Guaranties
endorsed thereon, respectively, the forms and terms thereof, the validity
thereof and the compliance of the authentication and delivery thereof with
the terms and conditions of this Indenture, upon the Opinion or Opinions of
Counsel and the certificates and other documents delivered pursuant to this
Article at or prior to the time of the first authentication and delivery of
Securities of such series until any of such opinions, certificates or other
documents have been superseded or revoked or expire by their terms. 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, and the Guarantor's approval of the delivery of the Guaranties
thereon, do not violate any applicable law or any applicable rule,
regulation or order of any Governmental Authority having jurisdiction over
the Company or the Guarantor.
If the form or terms of the Securities of any series have been
established by or pursuant to an Officer's Certificate or Board Resolution
as permitted by Sections 201 or 301, the Trustee shall not be required to
authenticate such Securities if the issuance of such Securities pursuant to
this Indenture will affect the Trustee's own rights, duties or immunities
under the Securities and this Indenture or otherwise in a manner which is
not reasonably acceptable to the Trustee.
Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, or any Tranche thereof, each Security,
and the Guaranty endorsed thereon, shall be dated the date of the
authentication of such Security.
Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, or any Tranche thereof, no Security or
Guaranty endorsed thereon 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 an Authenticating Agent by
manual signature of an authorized officer thereof, 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 (a) any Security shall have been authenticated and delivered hereunder
to the Company, or any Person acting on its behalf, but shall never have
been issued and sold by the Company, (b) the Company shall deliver such
Security to the Security Registrar for cancellation or shall cancel such
Security and deliver evidence of such cancellation to the Trustee, in each
case as provided in Section 309 and (c) the Company, at its election, shall
deliver to the Trustee a written statement (which need not comply with
Section 102 and need not be accompanied by an Officer's Certificate or an
Opinion of Counsel) stating that such Security has never been issued and
sold by the Company, then for all purposes of this Indenture such Security
shall be deemed never to have been authenticated and delivered hereunder
and shall never be entitled to the benefits hereof.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series,
or any Tranche thereof, the Company may execute, and upon Company Order and
Guarantor Order the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten, mimeographed,
photocopied or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which
they are issued, having Guaranties endorsed thereon, with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities or Guaranties may determine, as evidenced by
their execution of such Securities or Guaranties; provided, however, that
temporary Securities need not recite specific redemption, sinking fund,
conversion or exchange provisions.
Except as otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, or any Tranche thereof, after the
preparation of definitive Securities of such series or Tranche, the
temporary Securities of such series or Tranche shall be exchangeable,
without charge to the Holders thereof, for definitive Securities of such
series or Tranche, with the definitive Guaranties of the Guarantor endorsed
thereon, upon surrender of such temporary Securities at the office or
agency of the Company maintained pursuant to Section 502 in a Place of
Payment for such Securities. Upon such surrender of temporary Securities,
the Company, except as aforesaid, shall execute and the Trustee shall
authenticate and deliver in exchange therefor definitive Securities of the
same series and Tranche, of authorized denominations and of like tenor and
aggregate principal amount, with definitive Guaranties endorsed thereon.
Until exchanged in full as hereinabove provided, temporary
Securities shall in all respects be entitled to the same benefits under
this Indenture as definitive Securities of the same series and Tranche and
of like tenor authenticated and delivered hereunder.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept in one of the offices
designated pursuant to Section 502, with respect to the Securities of each
series, or any Tranche thereof, 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 of such series or
Tranche and the registration of transfer thereof. The Company shall
designate one Person to maintain the Security Register for the Securities
of each series, and such Person is referred to herein, with respect to such
series, as the "Security Registrar". Anything herein to the contrary
notwithstanding, the Company may designate one or more of its offices or an
office of any Affiliate (including the Guarantor) as an office in which a
register with respect to the Securities of one or more series, or any
Tranche or Tranches thereof, shall be maintained, and the Company may
designate itself or any Affiliate (including the Guarantor) as the Security
Registrar with respect to one or more of such series. The Security
Register shall be open for inspection by the Trustee and the Company at all
reasonable times.
Except as otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, or any Tranche thereof, upon
presentment for registration of transfer of any Security of such series or
Tranche at the office or agency of the Company maintained pursuant to
Section 502 in a Place of Payment for such series or Tranche, and further
upon satisfaction of any conditions prescribed by applicable law, 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, with a Guaranties endorsed
thereon.
Except as otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, or any Tranche thereof, any
Security of such series or Tranche may be exchanged, at the option of the
Holder, for one or more new Securities of the same series and Tranche, of
authorized denominations and of like tenor and aggregate principal amount,
upon presentment of the Securities to be exchanged at any such office or
agency. Whenever any Securities are so presented for exchange and upon
satisfaction of any conditions prescribed by applicable law, the Company
shall execute, and the Trustee shall authenticate and deliver, the
Securities, with Guaranties endorsed thereon, which the Holder making the
exchange is entitled to receive.
All Securities delivered upon any registration of transfer or
exchange of Securities shall be valid obligations of the Company, and the
Guaranties endorsed thereon shall be valid obligations of the Guarantor,
evidencing the same respective obligations, and being entitled to the same
benefits under this Indenture, as the Securities (and Guaranties endorsed
thereon) presented upon such registration of transfer or exchange.
Every Security presented for registration of transfer or for
exchange shall (if so required by the Company, the Guarantor, Trustee or
the Security Registrar) be duly endorsed or shall be accompanied by a
written instrument of transfer in form satisfactory to the Company, the
Guarantor and the Trustee or the Security Registrar, as the case may be,
duly executed by the Holder thereof or his attorney duly authorized in
writing.
Unless otherwise specified as contemplated by Section 301 with
respect to Securities of any series, 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 1106 not involving any
transfer.
The Company shall not be required to execute or to provide for
the registration of transfer of or the exchange of (a) Securities of any
series, or any Tranche thereof, during a period of fifteen (15) days
immediately preceding the date notice is to be given identifying the serial
numbers of the Securities of such series or Tranche called for redemption
or (b) any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is presented 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, having a Guaranty endorsed thereon and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company, the Guarantor and the
Trustee (a) evidence to their satisfaction of the ownership of and the
destruction, loss or theft of any Security and (b) such security or
indemnity as may be reasonably required by them to save each of them and
any agent of any of them harmless, then, in the absence of notice to the
Company, the Guarantor or the Trustee that such Security is held by a
Person deemed to be a protected purchaser under applicable law, 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, having a
Guaranty endorsed thereon 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 or the Guarantor in its discretion may, but subject to
compliance with the conditions set forth in the next preceding paragraph,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any
other reasonable expenses (including the fees and expenses of the Trustee)
in connection therewith.
Every new Security of any series issued pursuant to this Section
in lieu of any destroyed, lost or stolen Security and the Guaranty endorsed
thereon shall constitute an original additional contractual obligation of
the Company or the Guarantor, as the case requires, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by
anyone other than the Holder of such new Security, and any such new
Security and Guaranty shall be entitled to all the benefits of this
Indenture equally and ratably with any and all other Securities of such
series duly issued hereunder and the Guaranties endorsed thereon.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, or any Tranche thereof, interest
on any Security which is payable, and is punctually paid or duly provided
for, on any Interest Payment Date shall be paid to the Person in whose name
that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest.
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,
including without limitation interest the payment period for which has been
extended as specified with respect to such series as contemplated by
Section 301 (herein called "Unpaid 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 Unpaid Interest may be paid by the
Company or the Guarantor, at its election in each case, as provided in
clause (a) or (b) below:
(a) The Company or the Guarantor may elect to make payment
of any Unpaid Interest to the Persons in whose names the
Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on a date
(herein called a "Special Record Date") for the payment of such
Unpaid Interest, which shall be fixed in the following manner.
The Company or the Guarantor shall notify the Trustee in writing
of the amount of Unpaid 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 or the Guarantor, as the case
requires, shall deposit with the Trustee an amount of money equal
to the aggregate amount proposed to be paid in respect of such
Unpaid 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 Unpaid Interest as in
this clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Unpaid Interest which shall
be not more than thirty (30) days and not less than ten (10) days
prior to the date of the proposed payment and not less than
twenty-five (25) days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly
notify the Company and the Guarantor of such Special Record Date
and, in the name and at the expense of the Company, shall, not
less than fifteen (15) days prior to such Special Record Date,
cause notice of the proposed payment of such Unpaid 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. Notice of the proposed payment of such Unpaid Interest
and the Special Record Date therefor having been so mailed, such
Unpaid Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such
Special Record Date.
(b) The Company or the Guarantor may make payment of any
Unpaid 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 or the Guarantor to the Trustee of
the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon registration
of transfer of or in exchange for or in lieu of any other Security shall
carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to the due presentment of any Security for
registration of transfer, the Company, the Guarantor, the Trustee and any
agent of the Company, the Guarantor or the Trustee may treat the Person in
whose name such Security is registered as the absolute owner of such
Security for the purpose of receiving payment of principal of and premium,
if any, and (subject to Section 307) interest, if any, on such Security and
for all other purposes whatsoever, whether or not such Security be overdue,
and none of the Company, the Guarantor or the Trustee or any agent of the
Company, the Guarantor or the Trustee shall be affected by notice to the
contrary.
SECTION 309. CANCELLATION BY SECURITY REGISTRAR.
All Securities presented for payment, redemption,
registration of transfer or exchange shall, if presented to any Person
other than the Security Registrar, be delivered to the Security Registrar
and, if not theretofore canceled, shall be promptly canceled by the
Security Registrar. The Company or the Guarantor may at any time deliver
to the Security Registrar for cancellation any Securities previously
authenticated and delivered hereunder which the Company or the Guarantor
may have acquired in any manner whatsoever or which the Company shall not
have issued and sold, and all Securities so delivered shall be promptly
canceled by the Security Registrar. Unless by a Company Order the Company
shall direct that canceled Securities be returned to it, all canceled
Securities held by the Security Registrar shall be disposed of in
accordance with the Security Registrar's customary procedures. The
Security Registrar shall promptly deliver to the Company and the Trustee
evidence of any cancellation by it of a Security, and of any disposition by
it of a canceled Security, in accordance with this Section 309.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301
for Securities of any series, or any Tranche thereof, interest on the
Securities of each series shall be computed on the basis of a three hundred
sixty (360) day year consisting of twelve (12) thirty (30) day months, and,
with respect to any period less than a full calendar month, on the basis of
the actual number of days elapsed during such period.
SECTION 311. PAYMENT TO BE IN PROPER CURRENCY.
In the case of the Securities of any series, or any Tranche
thereof, denominated in any currency other than Dollars or in a composite
currency (the "Required Currency"), except as otherwise specified with
respect to such Securities as contemplated by Section 301, the obligation
of the Company or the Guarantor to make any payment of the principal
thereof, or the premium, if any, or interest, if any, thereon, shall not be
discharged or satisfied by any tender by the Company or the Guarantor, 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 any such exchange, including without limitation the risks of
delay and exchange rate fluctuation, shall be borne by the Company and the
Guarantor, the Company and the Guarantor 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.
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 Officer's Certificate. The
Company shall, at least forty-five (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 and the Guarantor shall each furnish the Trustee with an Officer's
Certificate evidencing compliance with such restriction or condition.
SECTION 403. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series, or any
Tranche thereof, are to be redeemed, the particular Securities to be
redeemed shall be selected by the Security Registrar from the Outstanding
Securities of such series or Tranche not previously called for redemption,
by such method as shall be provided for such series or Tranche, or, in the
absence of any such provision, by such method of random selection as the
Security Registrar shall deem fair and appropriate and which may, in any
case, provide for the selection for redemption of portions (in any
authorized denomination for Securities of such series or Tranche) of the
principal amount of Securities of such series or Tranche having a
denomination larger than the minimum authorized denomination for Securities
of such series or Tranche; provided, however, that if, as indicated in an
Officer's Certificate, the Company shall have offered to purchase all or
any principal amount of the Securities then Outstanding of any series, or
any Tranche thereof, and less than all of such Securities as to which such
offer was made shall have been tendered to the Company for such purchase,
the Security Registrar, if so directed by Company Order, shall select for
redemption all or any principal amount of such Securities which have not
been so tendered.
The Security Registrar shall promptly notify the Company and
the Trustee in writing of the Securities selected for redemption and, in
the case of any Securities selected to be redeemed in part, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed only
in part, to the portion of the principal amount of such Securities which
has been or is to be redeemed.
SECTION 404. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided
in Section 106 to the Holders of the Securities to be redeemed not less
than thirty (30) nor more than sixty (60) days prior to the Redemption
Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Securities of any series 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,
together with accrued interest, if any, to the Redemption
Date, will become due and payable upon each such Security to
be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date,
(e) the place or places where such Securities are to
be surrendered for payment of the Redemption Price and
accrued interest, if any, unless it shall have been
specified as contemplated by Section 301 with respect to
such Securities that such surrender shall not be required,
(f) that the redemption is for a sinking or other
fund, if such is the case, and
(g) such other matters as the Company shall deem
desirable or appropriate.
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
601, such notice may state that such redemption shall be conditional upon
the receipt by the Paying Agent or Agents for such Securities, on or prior
to the date fixed for such redemption, of money sufficient to pay the
principal of and premium, if any, and interest, if any, on such Securities
and that if such money shall not have been so received such notice shall be
of no force or effect and the Company shall not be required to redeem such
Securities. In the event that such notice of redemption contains such a
condition and such money is not so received, the redemption shall not be
made and within a reasonable time thereafter notice shall be given, in the
manner in which the notice of redemption was given, that such money was not
so received and such redemption was not required to be made and the Paying
Agent or Agents for the Securities otherwise to have been redeemed shall
promptly return to the Holders thereof any of such Securities which had
been surrendered for payment upon such redemption.
Notice of redemption of Securities to be redeemed at the
election of the Company, and any notice of non-satisfaction of a condition
for redemption as aforesaid, shall be given by the Company or, upon Company
Request, by the Security Registrar in the name and at the expense of the
Company. Notice of mandatory redemption of Securities shall be given by
the Security Registrar in the name and at the expense of the Company.
SECTION 405. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, and the
conditions, if any, set forth in such notice having been satisfied, the
Securities or portions thereof so to be redeemed shall, on the Redemption
Date, become due and payable at the Redemption Price therein specified, and
from and after such date (unless, in the case of an unconditional notice of
redemption, the Company shall default in the payment of the Redemption
Price and accrued interest, if any) such Securities or portions thereof, if
interest-bearing, shall cease to bear interest. Upon surrender of any such
Security for redemption in accordance with such notice, such Security or
portion thereof shall be paid by the Company at the Redemption Price,
together with accrued interest, if any, to the Redemption Date; provided,
however, that no such surrender shall be a condition to such payment if so
specified as contemplated by Section 301 with respect to such Security; and
provided, further, that except as otherwise specified as contemplated by
Section 301 with respect to such Security, any installment of interest on
any Security the Stated Maturity of which installment is on or prior to the
Redemption Date shall be payable to the Holder of such Security, or one or
more Predecessor Securities, registered as such at the close of business on
the related Regular Record Date according to the terms of such Security and
subject to the provisions of Section 307.
SECTION 406. SECURITIES REDEEMED IN PART.
Upon the surrender of any Security which is to be redeemed
only in part at a Place of Payment therefor (with, if the Company, the
Guarantor or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company, the Guarantor
or the Trustee, as the case may be, duly executed by, the Holder thereof or
his attorney duly authorized in writing), the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder of such Security,
without service charge, a new Security or Securities of the same series and
Tranche, of any authorized denomination requested by such Holder and of
like tenor and in aggregate principal amount equal to and in exchange for
the unredeemed portion of the principal of the Security so surrendered,
with a Guaranty endorsed thereon.
ARTICLE FIVE
COVENANTS
SECTION 501. PAYMENT OF SECURITIES.
The Company shall 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.
SECTION 502. MAINTENANCE OF OFFICE OR AGENCY.
The Company and the Guarantor shall maintain in each Place
of Payment for the Securities of each series, or any Tranche thereof, an
office or agency where payment of such Securities shall be made, where the
registration of transfer or exchange of such Securities may be effected and
where notices and demands to or upon the Company or the Guarantor in
respect of such Securities and this Indenture may be served. The Company
and the Guarantor shall give prompt written notice to the Trustee of the
location, and any change in the location, of each such office or agency and
prompt notice to the Holders of any such change in the manner specified in
Section 106. If at any time the Company or the Guarantor 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, payment of such Securities shall be made, registration
of transfer or exchange thereof may be effected and notices and demands in
respect thereof may be served at the Corporate Trust Office of the Trustee,
and each of the Company and the Guarantor hereby appoint the Trustee as its
agent for all such purposes in any such event.
The Company or the Guarantor may also from time to time
designate one or more other offices or agencies with respect to the
Securities of one or more series, or any Tranche thereof, for any or all of
the foregoing purposes and may from time to time rescind such designations;
provided, however, that, unless otherwise specified as contemplated by
Section 301 with respect to the Securities of such series or Tranche, no
such designation or rescission shall in any manner relieve the Company or
the Guarantor 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 and the Guarantor 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 or the Guarantor or any Affiliate of either of them, in which event
the Company, the Guarantor or such Affiliate, as the case may be, shall
perform all functions to be performed at such office or agency.
SECTION 503. 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 and premium, if any,
and interest, if any, on any of such Securities, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to
pay the principal and premium or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided.
The Company and the Guarantor shall promptly notify the Trustee of any
failure by the Company and the Guarantor (or any other obligor on such
Securities) to make any payment of principal or premium, if any, or
interest, if any, on such Securities.
Whenever the Company shall have one or more Paying Agents
for the Securities of any series, or any Tranche thereof, it shall, on or
before each due date of the principal of and premium, if any, and interest,
if any, on such Securities, deposit with such Paying Agents sums sufficient
(without duplication) to pay the principal and premium or interest so
becoming due, such sums to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company shall promptly notify the Trustee of any
failure by it so to act.
The Company shall cause each Paying Agent for the Securities
of any series, or any Tranche thereof, other than the Company or the
Trustee, to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of
this Section, that such Paying Agent shall:
(a) hold all sums held by it for the payment of the
principal of and premium, if any, or interest, if any, on such
Securities in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(b) give the Trustee notice of any failure by the Company
and the Guarantor (or any other obligor upon such Securities) to
make any payment of principal of and premium, if any, or
interest, if any, on such Securities; and
(c) at any time during the continuance of any such failure,
upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent and
furnish to the Trustee such information as it possesses regarding
the names and addresses of the Persons entitled to such sums.
The Company may at any time pay, or by Company Order direct
any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent and, if so stated in a Company Order delivered to the Trustee,
in accordance with the provisions of Article Six; and, upon such payment by
any Paying Agent to the Trustee, such Paying Agent shall be released from
all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of and
premium, if any, or interest, if any, on any Security and remaining
unclaimed for two years after such principal and premium, if any, or
interest, if any, has become due and payable shall be paid to the Company
on Company Request, or, if then held by the Company, shall be discharged
from such trust; and, upon such payment or discharge, the Holder of such
Security shall, as an unsecured general creditor and not as the Holder of
an Outstanding Security, look only to the Company and the Guarantor for
payment of the amount so due and payable and remaining unpaid, and all
liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before
being required to make any such payment to the Company, may at the expense
of the Company, cause to be mailed, on one occasion only, notice to such
Holder that such money remains unclaimed and that, after a date specified
therein, which shall not be less than thirty (30) days from the date of
such mailing, any unclaimed balance of such money then remaining will be
paid to the Company.
SECTION 504. CORPORATE EXISTENCE.
Subject to the rights of each of the Company and the
Guarantor under Article Ten, each of the Company and the Guarantor shall do
or cause to be done all things necessary to preserve and keep its corporate
existence in full force and effect.
SECTION 505. ANNUAL OFFICER'S CERTIFICATE
Not later than December 1 in each year, commencing December
1, 1999, each of the Company and the Guarantor shall deliver to the Trustee
an Officer's Certificate which need not comply with Section 102, executed
by its principal executive officer, principal financial officer or
principal accounting officer, as to such officer's knowledge of such
obligor's compliance with all conditions and covenants under this
Indenture, such compliance to be determined without regard to any period of
grace or requirement of notice under this Indenture.
SECTION 506. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply
with any term, provision or condition set forth in
(a) any covenant or restriction specified with respect to
the Securities of any one or more series, or any Tranche or
Tranches thereof, as contemplated by Section 301 or by Section
1201(b) if before the time for such compliance the Holders of a
majority in aggregate principal amount of the Outstanding
Securities of all series and Tranches with respect to which
compliance with such covenant or restriction is to be omitted,
considered as one class, shall, by Act of such Holders, either
waive such compliance in such instance or generally waive
compliance with such term, provision or condition; provided,
however, that no such waiver shall be effective as to any matters
contemplated in clause (a), (b) or (c) in Section 1102 without
consent of the Holders specified in such Section; and
(b) Section 504 or Article Ten if before the time for such
compliance the Holders of a majority in principal amount of
Securities Outstanding under this Indenture shall, by Act of such
Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or
condition;
but, in either case, no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition
shall remain in full force and effect.
ARTICLE SIX
SATISFACTION AND DISCHARGE
SECTION 601. SATISFACTION AND DISCHARGE OF SECURITIES.
Any Security or Securities, or any portion of the principal
amount thereof, shall be deemed to have been paid for all purposes of this
Indenture, and the entire indebtedness of the Company and the Guarantor in
respect thereof shall be satisfied and discharged, if there shall have been
irrevocably deposited with the Trustee or any Paying Agent (other than the
Company or the Guarantor), 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, Eligible 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 or such Paying Agent, shall be sufficient, or
(c) a combination of (a) or (b) which shall be sufficient,
to pay when due the principal of and premium, if any, and interest, if any,
due and to become due on such Securities or portions thereof; provided,
however, that in the case of the provision for payment or redemption of
less than all the Securities of any series or Tranche, such Securities or
portions thereof shall have been selected by the Security Registrar as
provided herein and, in the case of a redemption, the notice requisite to
the validity of such redemption shall have been given or irrevocable
authority shall have been given by the Company to the Trustee to give such
notice, under arrangements satisfactory to the Trustee; and provided,
further, that the Company shall have delivered to the Trustee and such
Paying Agent:
(x) if such deposit shall have been made prior to the
Maturity of such Securities, a Company Order stating that the
money and Eligible Obligations deposited in accordance with this
Section shall be held in trust, as provided in Section 603;
(y) if Eligible Obligations shall have been deposited, an
Opinion of Counsel to the effect that such obligations constitute
Eligible Obligations and do not contain provisions permitting the
redemption or other prepayment thereof at the option of the
issuer thereof, and an opinion of an independent public
accountant of nationally recognized standing, selected by the
Company, to the effect that the other requirements set forth in
clause (b) and, if applicable, (c) above have been satisfied; and
(z) if such deposit shall have been made prior to the
Maturity of such Securities, an Officer's Certificate stating the
Company's intention that, upon delivery of such Officer's
Certificate, its indebtedness in respect of such Securities or
portions thereof will have been satisfied and discharged as
contemplated in this Section.
Upon the deposit of money or Eligible Obligations, or both,
in accordance with this Section, together with the documents required by
clauses (x), (y) and (z) above, the Trustee shall, upon Company Request,
acknowledge in writing that such Securities or portions thereof are deemed
to have been paid for all purposes of this Indenture and that the entire
indebtedness of the Company and the Guarantor in respect thereof has been
satisfied and discharged as contemplated in this Section. In the event
that all of the conditions set forth in the preceding paragraph shall have
been satisfied in respect of any Securities or portions thereof except
that, for any reason, the Officer's Certificate specified in clause (z) (if
otherwise required) shall not have been delivered, such Securities or
portions thereof shall nevertheless be deemed to have been paid for all
purposes of this Indenture, and the Holders of such Securities or portions
thereof shall nevertheless be no longer entitled to the benefits provided
by this Indenture or of any of the covenants of the Company under Article
Five (except the covenants contained in Sections 502 and 503) or any other
covenants made in respect of such Securities or portions thereof as
contemplated by Section 301 or Section 1201(b), but the indebtedness of the
Company and the Guarantor in respect of such Securities or portions thereof
shall not be deemed to have been satisfied and discharged prior to Maturity
for any other purpose; and, upon Company Request or Guarantor Request, the
Trustee shall acknowledge in writing that such Securities or portions
thereof are deemed to have been paid for all purposes of this Indenture.
If payment at Stated Maturity of less than all of the
Securities of any series, or any Tranche thereof, is to be provided for in
the manner and with the effect provided in this Section, the Security
Registrar shall select such Securities, or portions of principal amount
thereof, in the manner specified by Section 403 for selection for
redemption of less than all the Securities of a series or Tranche.
In the event that Securities which shall be deemed to have
been paid for purposes of this Indenture, and, if such is the case, in
respect of which the indebtedness of the Company and the Guarantor shall
have been satisfied and discharged, all as provided in this Section, do not
mature and are not to be redeemed within the sixty (60) day period
commencing with the date of the deposit of moneys or Eligible Obligations,
as aforesaid, the Company shall, as promptly as practicable, give a notice,
in the same manner as a notice of redemption with respect to such
Securities, to the Holders of such Securities to the effect that such
deposit has been made and the effect thereof.
Notwithstanding that any Securities shall be deemed to have
been paid for purposes of this Indenture, as aforesaid, the obligations of
the Company, the Guarantor and the Trustee in respect of such Securities
under Sections 304, 305, 306, 404, 502, 503, 807 and 814 and this Article
shall survive.
The Company shall pay, and shall indemnify the Trustee or
any Paying Agent with which Eligible Obligations shall have been deposited
as provided in this Section against, any tax, fee or other charge imposed
on or assessed against such Eligible Obligations or the principal or
interest received in respect of such Eligible Obligations, including, but
not limited to, any such tax payable by any entity deemed, for tax
purposes, to have been created as a result of such deposit.
Anything herein to the contrary notwithstanding, (a) if, at
any time after a Security would be deemed to have been paid for purposes of
this Indenture, and, if such is the case, the Company's indebtedness in
respect thereof would be deemed to have been satisfied and discharged
pursuant to this Section (without regard to the provisions of this
paragraph), the Trustee or any Paying Agent, as the case may be, (i) shall
be required to return the money or Eligible Obligations, or combination
thereof, deposited with it as aforesaid to the Company or the Guarantor, or
any representative of either thereof, under any applicable Federal or State
bankruptcy, insolvency or other similar law or (ii) are unable to apply any
money with respect to such Security by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, such Security shall thereupon be deemed
retroactively not to have been paid and any satisfaction and discharge of
the indebtedness of the Company and the Guarantor in respect thereof shall
retroactively be deemed not to have been effected, and such Security shall
be deemed to remain Outstanding and (b) any satisfaction and discharge of
the indebtedness of the Company and the Guarantor in respect of any
Security shall be subject to the provisions of the last paragraph of
Section 503.
SECTION 602. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of
further effect (except as hereinafter expressly provided), and the Trustee,
at the expense of the Company, shall execute such instruments as the
Company shall reasonably request to evidence and acknowledge the
satisfaction and discharge of this Indenture, when:
(a) no Securities remain Outstanding hereunder; and
(b) the Company or the Guarantor has paid or caused to be
paid all other sums payable hereunder by the Company or the
Guarantor;
provided, however, that if, in accordance with the last paragraph of
Section 601, any Security, previously deemed to have been paid for purposes
of this Indenture, shall be deemed retroactively not to have been so paid,
this Indenture shall thereupon be deemed retroactively not to have been
satisfied and discharged, as aforesaid, and to remain in full force and
effect, and the Company shall execute and deliver such instruments as the
Trustee shall reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge of this
Indenture as aforesaid, the obligations of the Company, the Guarantor and
the Trustee under Sections 304, 305, 306, 404, 502, 503, 807 and 814 and
this Article shall survive.
Upon satisfaction and discharge of this Indenture as
provided in this Section, the Trustee shall turn over to the Company any
and all money, securities and other property then held by the Trustee for
the benefit of the Holders of the Securities (other than money and Eligible
Obligations held by the Trustee pursuant to Section 603) and shall execute
and deliver to the Company and the Guarantor such instruments as, in the
judgment of the Company and the Guarantor, shall be necessary, desirable or
appropriate to effect or evidence the satisfaction and discharge of this
Indenture.
SECTION 603. APPLICATION OF TRUST MONEY.
Neither the Eligible Obligations nor the money deposited
pursuant to Section 601, nor the principal or interest payments on any such
Eligible 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 503; provided, however, that
any cash received from such principal or interest payments on such Eligible
Obligations, if not then needed for such purpose, shall, to the extent
practicable and upon Company Request and delivery to the Trustee of the
documents referred to in clause (y) in the first paragraph of Section 601,
be invested in Eligible Obligations of the type described in clause (b) in
the first paragraph of Section 601 maturing at such times and in such
amounts as shall be sufficient, together with any other moneys and the
proceeds of any other Eligible Obligations then held by the Trustee, to pay
when due the principal of and premium, if any, and interest, if any, due
and to become due on such Securities or portions thereof on and prior to
the Maturity thereof, and interest earned from such reinvestment shall be
paid over to the Company as received, free and clear of any trust, lien or
pledge under this Indenture; and provided, further, that any moneys held in
accordance with this Section on the Maturity of all such Securities in
excess of the amount required to pay the principal of and premium, if any,
and interest, if any, then due on such Securities shall be paid over to the
Company free and clear of any trust, lien or pledge under this Indenture;
and provided, further, that if an Event of Default shall have occurred and
be continuing, moneys to be paid over to the Company pursuant to this
Section shall be held until such Event of Default shall have been waived or
cured.
ARTICLE SEVEN
EVENTS OF DEFAULT; REMEDIES
SECTION 701. EVENTS OF DEFAULT.
"EVENT OF DEFAULT", wherever used herein with respect to the
Securities of any series, means any of the following events which shall
have occurred and be continuing:
(a) failure to pay interest, if any, on any Security of
such series within thirty (30) days after the same becomes due
and payable; provided, however, that no such failure shall
constitute an "Event of Default" if the Company shall have made a
valid extension of the interest payment period with respect to
the Securities of such series if so provided with respect to such
series as contemplated by Section 301; or
(b) failure to pay the principal of or premium, if any, on
any Security of such series when due; provided, however, that no
such failure shall constitute an "Event of Default" if the
Company shall have made a valid extension of the Maturity of the
Securities of such series if so provided with respect to such
series as contemplated by Section 301; or
(c) failure to perform or breach of any covenant or
warranty of the Company or the Guarantor in this Indenture (other
than a covenant or warranty a default in the performance of which
or breach of which is elsewhere in this Section specifically
dealt with or which has expressly been included in this Indenture
solely for the benefit of one or more series of Securities other
than such series) for a period of sixty (60) days after there has
been given, by registered or certified mail, to the Company and
the Guarantor by the Trustee, or to the Company, the Guarantor
and the Trustee by the Holders of at least thirty-three percentum
(33%) in principal amount of the Outstanding Securities of such
series, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a
"NOTICE OF DEFAULT" hereunder, unless the Trustee, or the Trustee
and the Holders of a principal amount of Securities of such
series not less than the principal amount of Securities the
Holders of which gave such notice, as the case may be, shall
agree in writing to an extension of such period prior to its
expiration; provided, however, that the Trustee, or the Trustee
and the Holders of such principal amount of Securities of such
series, as the case may be, shall be deemed to have agreed to an
extension of such period if corrective action is initiated by the
Company or the Guarantor within such period and is being
diligently pursued; or
(d) the entry by a court having jurisdiction in the
premises of (i) a decree or order for relief in respect of the
Company or the Guarantor in an involuntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (ii) a decree or order
adjudging the Company or the Guarantor a bankrupt or insolvent,
or approving as properly filed a petition by one or more Persons
other than the Company or the Guarantor seeking reorganization,
arrangement, adjustment or composition of or in respect of the
Company or the Guarantor under any applicable Federal or State
law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official for the Company
or the Guarantor or for any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and any
such decree or order for relief or any such other decree or order
shall have remained unstayed and in effect for a period of ninety
(90) consecutive days; or
(e) the commencement by the Company or the Guarantor of a
voluntary case or proceeding under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law
or of any other case or proceeding to be adjudicated a bankrupt
or insolvent, or the consent by the Company or the Guarantor to
the entry of a decree or order for relief in respect of the
Company or the Guarantor in a case or proceeding under any
applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against the Company
or the Guarantor, or the filing by the Company or the Guarantor
of a petition or answer or consent seeking reorganization or
relief under any applicable Federal or State law, or the consent
by the Company or the Guarantor to the filing of such petition or
to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company or the Guarantor or of any substantial
part of its property, or the making by the Company or the
Guarantor of an assignment for the benefit of creditors, or the
admission by the Company or the Guarantor in writing of its
inability to pay its debts generally as they become due, or the
authorization of such action by the Board of Directors of the
Company or the Guarantor.
SECTION 702. 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, then in
every such case the Trustee or the Holders of not less than thirty-three
percentum (33%) in principal amount of the Securities of such series then
Outstanding may declare the principal amount (or, if any of the Securities
of such series are Discount Securities, such portion of the principal
amount of such Securities as may be specified in the terms thereof as
contemplated by Section 301) of all of the Securities of such series then
Outstanding to be due and payable immediately, by a notice in writing to
the Company (and to the Trustee if given by Holders), and upon such
declaration such principal amount (or specified amount), together with
premium, if any, and accrued interest, if any, thereon, 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 thirty-three
percentum (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 of the
maturity of the Securities of any series then Outstanding shall have been
made, but before a judgment or decree for payment of the money due shall
have been obtained by the Trustee as provided in this Article, such
declaration and its consequences shall, without further act, be deemed to
have been rescinded and annulled, if
(a) the Company or the Guarantor shall have paid or
deposited with the Trustee a sum sufficient to pay
(i) all overdue interest, if any, on all Securities of
such series then Outstanding;
(ii) the principal of and premium, if any, on any
Securities of such series then Outstanding which have become
due otherwise than by such declaration of acceleration and
interest, if any, thereon at the rate or rates prescribed
therefor in such Securities;
(iii) interest, if any, upon overdue interest, if any,
at the rate or rates prescribed therefor in such Securities,
to the extent that payment of such interest is lawful;
(iv) all amounts due to the Trustee under Section 807;
and
(b) all Events of Default with respect to Securities of
such series, other than the non-payment of the principal of
Securities of such series which shall have become due solely by
such declaration of acceleration, shall have been cured or waived
as provided in Section 713.
No such rescission shall affect any subsequent Event of Default or impair
any right consequent thereon.
SECTION 703. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
If an Event of Default described in clause (a) or (b) of
Section 701 shall have occurred and be continuing, the Company or the
Guarantor shall, upon demand of the Trustee, pay to it, for the benefit of
the Holders of the Securities of the series with respect to which such
Event of Default shall have occurred, the whole amount then due and payable
on such Securities for principal and premium, if any, and interest, if any,
and, in addition thereto, such further amount as shall be sufficient to
cover any amounts due to the Trustee under Section 807.
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 and the Guarantor 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 and the Guarantor or any other obligor upon such Securities,
wherever situated.
If an Event of Default with respect to Securities of any
series shall have occurred and be continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders of the Securities of such series then Outstanding 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 704. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, to the extent permitted by law, 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 807;
SECOND: To the payment of the whole amount then due and
unpaid upon the Outstanding Securities for principal and premium,
if any, and interest, if any, in respect of which or for the
benefit of which such money has been collected; and in case such
proceeds shall be insufficient to pay in full the whole amount so
due and unpaid upon such Securities, then to the payment of such
principal and interest, if any, thereon without any preference or
priority, ratably according to the aggregate amount so due and
unpaid, with any balance then remaining to the payment of
premium, if any, and, if so specified as contemplated by Section
301 with respect to the Securities of any series, or any Tranche
thereof, interest, if any, on overdue premium, if any, and
overdue interest, if any, ratably as aforesaid, all to the extent
permitted by applicable law;
THIRD: To the payment of the remainder, if any, to the
Company or to whomsoever may be lawfully entitled to receive the
same or as a court of competent jurisdiction may direct.
SECTION 705. 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 the
Guarantor or any other obligor upon the Securities or the property of the
Company or the Guarantor 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 or the Guarantor 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 807) 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 807.
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 706. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture, or on
the Securities or the Guaranties endorsed thereon, may be prosecuted and
enforced by the Trustee without the possession of any of the Securities or
the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for
the ratable benefit of the Holders in respect of which such judgment has
been recovered.
SECTION 707. 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 a majority in aggregate principal amount
of the Securities then Outstanding 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 sixty (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 sixty (60) day
period by the Holders of a majority in aggregate principal amount
of the Securities then Outstanding of all series in respect of
which an Event of Default shall have occurred and be continuing,
considered as one class;
it being understood and intended that no one or more of the Holders of
Securities of any series 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 Holders of Securities of any
series or to obtain or to seek to obtain priority or preference over any
other Holders of Securities of such series or to enforce any right under
this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all Holders of Securities of such series.
SECTION 708. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of and premium, if any,
and (subject to Section 307) interest, if any, on such Security on the
Stated Maturity or Maturities expressed in such Security (or, in the case
of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
SECTION 709. 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, the Guarantor, the 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 710. 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 711. 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 712. CONTROL BY HOLDERS OF SECURITIES.
If an Event of Default shall have occurred and be continuing
in respect of a series of Securities, the Holders of a majority in
principal amount of the Securities of such series then Outstanding shall
have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee, with respect to the Securities of such
series; provided, however, that if an Event of Default shall have occurred
and be continuing with respect to more than one series of Securities, the
Holders of a majority in aggregate principal amount of the Outstanding
Securities of all such series, considered as one class, shall have the
right to make such direction, and not the Holders of the Securities of any
one of such series; and provided, further, that
(a) such direction shall not be in conflict with any rule
of law or with this Indenture, and could not involve the Trustee
in personal liability in circumstances where indemnity would not,
in the Trustee's sole discretion, be adequate,
(b) the Trustee shall not determine that the action so
directed would be unjustly prejudicial to the Holders of
Securities of such series not taking part in such direction, and
(c) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
SECTION 713. WAIVER OF PAST DEFAULTS.
The Holders of a majority in principal amount of the
Securities of any series then Outstanding may on behalf of the Holders of
all the Securities of such series then Outstanding waive any past default
with respect to such series hereunder and its consequences, except a
default
(a) in the payment of the principal of or premium, if any,
or interest, if any, on any Security of such series then
Outstanding, or
(b) in respect of a covenant or provision hereof which
under Section 1102 cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such series
or the affected Tranche thereof.
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 714. UNDERTAKING FOR COSTS.
The Company and the Trustee agree, and each Holder by its
acceptance of a Security 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, all in the manner, to the extent and except as
provided in the Trust Indenture Act; but the provisions of this Section
shall not apply to any suit instituted by the Company or the Guarantor, to
any suit instituted by the Trustee, to any suit instituted by any Holder,
or group of Holders, holding in the aggregate more than ten percentum (10%)
in aggregate principal amount of the Outstanding Securities of all series
in respect of which such suit may be brought, considered as one class, or
to any suit instituted by any Holder for the enforcement of the payment of
the principal of or premium, if any, or interest, if any, on any Security
on or after the Stated Maturity or Maturities expressed in such Security
(or, in the case of redemption, on or after the Redemption Date).
SECTION 715. WAIVER OF STAY OR EXTENSION LAWS.
To the full extent that it may lawfully so agree, neither
the Company nor the Guarantor shall at any time set up, claim or otherwise
seek to take the benefit or advantage of any stay or extension law, now or
hereafter in effect, in order to prevent or hinder the enforcement of this
Indenture; and each of the Company and the Guarantor, for itself and all
who may claim under it, so far as it or they now or hereafter may lawfully
do so, hereby waives the benefit of all such laws.
ARTICLE EIGHT
THE TRUSTEE
SECTION 801. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default
with respect to Securities of any series,
(i) 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
(ii) 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
provisions hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default 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 willful misconduct, except that:
(i) this subsection shall not be construed to limit the
effect of subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it
shall be proved that the Trustee was negligent in ascertaining
the pertinent facts;
(iii) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
principal amount of the Securities of any one or more series then
Outstanding, as provided herein, relating to the time, method and
place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture with respect to the Securities of
such series; and
(iv) 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 802. NOTICE OF DEFAULTS.
The Trustee shall give notice of any default hereunder with
respect to the Securities of any series to the Holders of Securities of
such series in the manner and to the extent required to do so by the Trust
Indenture Act, unless such default shall have been cured or waived;
provided, however, that in the case of any default of the character
specified in Section 701(c), no such notice to Holders shall be given until
at least seventy-five (75) days after the occurrence thereof; and provided,
further, that, subject to the provisions of Section 801, the Trustee shall
not be deemed to have knowledge of such default unless either (i) a
Responsible Officer of the Trustee shall have actual knowledge of such
default or (ii) the Trustee shall have received written notice thereof from
the Company or any Holder or, in the case of a default described in Section
701(d), from the holder of any indebtedness or from the trustee under any
mortgage, indenture or other instrument referred to in such Section. 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 the Securities of such series.
SECTION 803. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 801 and to the
applicable provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document believed by it to be
genuine and to have been signed, sent or presented by the proper
party or parties;
(b) any request, direction or act of the Company or the
Guarantor mentioned herein shall be sufficiently evidenced by a
Company Request or Company Order, or a Guarantor Request or
Guarantor Order, as the case requires, or as otherwise expressly
provided herein, and any resolution of the Board of Directors of
the Company or the Guarantor 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 is specifically
prescribed herein) may, in the absence of bad faith on its part,
rely upon an Officer's Certificate of the Company or the
Guarantor, as appropriate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any Holder pursuant to this Indenture,
unless such Holder shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities
which might be incurred by it complying with such request or
direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and,
if the Trustee shall determine to make such further inquiry or
investigation, it shall (subject to applicable legal
requirements) be entitled to examine, during normal business
hours, the books, records and premises of the Company or the
Guarantor, 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 (i) a Responsible
Officer of the Trustee shall have actual knowledge of the Event
of Default or (ii) written notice of such Event of Default shall
have been given to the Trustee by the Company or the Guarantor or
any other obligor on such Securities, or by any Holder of such
Securities.
SECTION 804. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities and the
Guarantees endorsed thereon (except the Trustee's certificates of
authentication) shall be taken as the statements of the Company and the
Guarantor, as the case requires, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities or the Guarantees endorsed thereon. Neither
the Trustee nor any Authenticating Agent shall be accountable for the use
or application by the Company of Securities or the proceeds thereof.
SECTION 805. MAY HOLD SECURITIES.
Each of the Trustee, any Authenticating Agent, any Paying
Agent, any Security Registrar or any other agent of the Company or the
Trustee, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 808 and 813, may otherwise
deal with the Company with the same rights it would have if it were not
such Trustee, Authenticating Agent, Paying Agent, Security Registrar or
such other agent.
SECTION 806. 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 or investment of any
money received by it hereunder except as expressly provided herein or
otherwise agreed with, and for the sole benefit of, the Company or the
Guarantor.
SECTION 807. COMPENSATION AND REIMBURSEMENT.
The Company and the Guarantor jointly and severally agree
(a) to 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, to
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances reasonably incurred or made
by the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except to the extent
that any such expense, disbursement or advance as may be
attributable to its negligence, wilful misconduct or bad faith;
and
(c) to indemnify the Trustee and hold it harmless from and
against any loss, liability or expense reasonably incurred by it
arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder or the
performance of its duties hereunder, including the reasonable
costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any
of its powers or duties hereunder, except to the extent that any
such loss, liability or expense may be attributable to its
negligence, wilful misconduct or bad faith.
As security for the performance of the obligations of the
Company and the Guarantor under this Section, the Trustee shall have a lien
prior to the Securities upon all property and funds held or collected by
the Trustee as such, other than property and funds held in trust under
Section 603 (except moneys payable to the Company as provided in Section
603). "TRUSTEE" for purposes of this Section shall include any predecessor
Trustee; provided, however, that the negligence, wilful misconduct or bad
faith of any Trustee hereunder shall not affect the rights of any other
Trustee hereunder.
SECTION 808. 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 809. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall
be
(a) a corporation organized and doing business under the
laws of the United States any State or Territory thereof or the
District of Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of
at least Ten Million Dollars ($10,000,000) and subject to
supervision or examination by Federal, State, Territorial or
District of Columbia authority, or
(b) if and to the extent permitted by the Commission by
rule, regulation or order upon application, a corporation or
other Person organized and doing business under the laws of a
foreign government, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of
at least Fifty Million Dollars ($50,000,000) or the Dollar
equivalent of the applicable foreign currency and subject to
supervision or examination by authority of such foreign
government or a political subdivision thereof substantially
equivalent to supervision or examination applicable to United
States institutional trustees,
and, in either case, qualified and eligible under this Article and the
Trust Indenture Act. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of such supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section or the Trust Indenture Act,
it shall resign immediately in the manner and with the effect hereinafter
specified in this Article.
SECTION 810. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 811.
(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 and the Guarantor. If the instrument of acceptance by a successor
Trustee required by Section 811 shall not have been delivered to the
Trustee within thirty (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 Securities of such series then Outstanding
delivered to the Trustee, and to the Company and the Guarantor.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 808 after
written request therefor by the Company, the Guarantor or by any
Holder who has been a bona fide Holder for at least six months,
or
(ii) the Trustee shall cease to be eligible under Section
809 or Section 310(a) of the Trust Indenture Act and shall fail
to resign after written request therefor by the Company, the
Guarantor or by any such Holder, or
(iii) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer shall
take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (x) the Company and the Guarantor may remove the
Trustee with respect to all Securities or (y) subject to Section 714, any
Holder who has been a bona fide Holder for at least six (6) months may, on
behalf of itself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee
for any cause (other than as contemplated by clause (y) in subsection (d)
of this Section), with respect to the Securities of one or more series, the
Company and the Guarantor shall take prompt steps to 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 811. If, within one (1) 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 Securities of such series
then Outstanding 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 811,
become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company
and the Guarantor. If no successor Trustee with respect to the Securities
of any series shall have been so appointed by the Company and the Guarantor
or the Holders and accepted appointment in the manner required by Section
811, any Holder who has been a bona fide Holder of a Security of such
series for at least six (6) months may, on behalf of itself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(f) So long as no event which is, or after notice or lapse
of time, or both, would become, an Event of Default shall have occurred and
be continuing, if the Company and the Guarantor shall have delivered to the
Trustee or Trustees with respect to the Securities of one or more series,
(i) an instrument executed by an Authorized Officer of each of the Company
and the Guarantor appointing a successor Trustee or Trustees with respect
to such series, effective as of a date specified therein, and (ii) an
instrument of acceptance of such appointment, effective as of such date, by
such successor Trustee or Trustees in accordance with Section 811, the
Trustee or Trustees with respect to such series, shall be deemed to have
resigned as contemplated in subsection (b) of this Section, the successor
Trustee or Trustees shall be deemed to have been appointed by the Company
and the Guarantor pursuant to subsection (e) of this Section and such
appointment shall be deemed to have been accepted as contemplated in
Section 811, all as of such date, and all other provisions of this Section
and Section 811 shall be applicable to such resignation, appointment and
acceptance except to the extent inconsistent with this subsection (f).
This subsection (f) shall not apply with respect to a Trustee appointed by
Act of the Holders of a majority in principal amount of the Outstanding
Securities of any series pursuant to subsection (e) of this Section.
(g) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any series
and each appointment of a successor Trustee with respect to the Securities
of any series to all Holders of Securities of such series. 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 811. 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,
the Guarantor 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, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the Company, the
Guarantor or the successor Trustee, such retiring Trustee shall, upon
payment of all sums owed to it, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of
the retiring Trustee and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series,
the Company, the Guarantor, the retiring Trustee and each successor Trustee
with respect to the Securities of such series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall accept
such appointment and which (i) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (ii) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series as to which the retiring Trustee
is not retiring shall continue to be vested in the retiring Trustee and
(iii) shall add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that nothing
herein or in such supplemental indenture shall constitute such Trustees co-
trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee; and upon the execution
and delivery of such supplemental indenture the resignation or removal of
the retiring Trustee shall become effective to the extent provided therein
and each such successor Trustee, without any further act, 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, the Guarantor or any successor Trustee, such retiring Trustee,
upon payment of all sums owed to it, shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon reasonable request of any such successor Trustee,
the Company and the Guarantor shall execute instruments to more fully and
certainly vest in and confirm to such successor Trustee all 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 812. 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 813. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If the Trustee shall be or become a creditor of the Company,
the Guarantor 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, the Guarantor or such other obligor. For purposes of Section
311(b) of the Trust Indenture Act
(a) the term "cash transaction" shall have the meaning
specified in Rule 11b-4 under the Trust Indenture Act and
(b) the term "self-liquidating paper" shall have the meaning
specified in Rule 11b-6 under the Trust Indenture Act,
in each case as such rule (or any successor rule) shall be in effect at the
applicable time.
SECTION 814. 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 the Guarantor 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 or the Commonwealth
of Puerto Rico, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than Ten Million Dollars
($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 all or substantially all of 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, the Company and the Guarantor. The
Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent, the Company and
the Guarantor. 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 the Guarantor. 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 shall pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section.
The provisions of Sections 308, 804 and 805 shall be
applicable to each Authenticating Agent.
If an appointment with respect to the Securities of one or
more series, or any Tranche thereof, shall be made pursuant to this
Section, the Securities of such series or Tranche may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the following
form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
-----------------------------
As Trustee
By---------------------------
As Authenticating Agent
By---------------------------
Authorized Officer
If all of the Securities of a series may not be originally
issued at one time, and if the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place of
Payment where the Company wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so requested by the
Company in writing (which writing need not comply with Section 102 and need
not be accompanied by an Opinion of Counsel), shall appoint, in accordance
with this Section and in accordance with such procedures as shall be
acceptable to the Trustee, an Authenticating Agent having an office in a
Place of Payment designated by the Company with respect to such series of
Securities.
ARTICLE NINE
LISTS OF HOLDERS; REPORTS BY TRUSTEE, COMPANY AND GUARANTOR
SECTION 901. LISTS OF HOLDERS.
Semiannually, not later than June 30 and December 31 in each
year, commencing December 31, 1999 and within thirty (30) days of such
other times as the Trustee may request in writing, the Company and the
Guarantor shall furnish or cause to be furnished to the Trustee information
as to the names and addresses of the Holders, and the Trustee shall
preserve such information and similar information received by it in any
other capacity and afford to the Holders access to information so preserved
by it, all to such extent, if any, and in such manner as shall be required
by the Trust Indenture Act; provided, however, that no such list need be
furnished so long as the Trustee shall be the Security Registrar.
SECTION 902. REPORTS BY TRUSTEE, COMPANY AND GUARANTOR.
Not later than July 15 in each year, commencing July 15,
2000, the Trustee shall transmit to the Holders, the Commission and each
securities exchange upon which any Securities are listed, a report, dated
as of the next preceding May 15, with respect to any events and other
matters described in Section 313(a) of the Trust Indenture Act, in such
manner and to the extent required by the Trust Indenture Act. The Trustee
shall transmit to the Holders, the Commission and each securities exchange
upon which any Securities are listed, and the Company and the Guarantor
shall each file with the Trustee (within thirty (30) days after filing with
the Commission in the case of reports which pursuant to the Trust Indenture
Act must be filed with the Commission and furnished to the Trustee) and
transmit to the Holders, such other information, reports and other
documents, if any, at such times and in such manner, as shall be required
by the Trust Indenture Act. The Company and the Guarantor shall notify the
Trustee of the listing of any Securities on any securities exchange.
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE
OR OTHER TRANSFER
SECTION 1001. COMPANY OR GUARANTOR MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS.
Neither the Company nor the Guarantor shall consolidate with
or merge into any other Person, or convey or otherwise transfer, or lease,
all of its properties, as or substantially as an entirety, to any Person,
unless:
(a) the Person formed by such consolidation or into which
the Company or the Guarantor, as the case requires, is merged or
the Person which acquires by conveyance or other transfer, or
which leases (for a term extending beyond the last Stated
Maturity of the Securities then Outstanding), all of the
properties of the Company or the Guarantor, as the case requires,
as or substantially as an entirety, shall be a Person organized
and existing under the laws of the United States, any State or
Territory thereof or the District of Columbia or under the laws
of Canada or any Province thereof (such Person being hereinafter
sometimes called the "SUCCESSOR") and shall expressly assume, by
an indenture supplemental hereto, executed and delivered to the
Trustee, in form reasonably satisfactory to the Trustee, the due
and punctual payment of the principal of and premium, if any, and
interest, if any, on all the Securities then Outstanding and the
performance and observance of every other covenant and condition
of this Indenture to be performed or observed by the Company or
the Guarantor, as the case requires; and
(b) the Company or the Guarantor, as the case requires,
shall have delivered to the Trustee an Officer's Certificate and
an Opinion of Counsel, each of which shall state that such
consolidation, merger, conveyance or other transfer or lease, and
such supplemental indenture, comply with this Article and that
all conditions precedent herein provided for relating to such
transaction have been complied with.
SECTION 1002. SUCCESSOR SUBSTITUTED.
Upon any consolidation or merger or any conveyance or other
transfer of all the properties of the Company or the Guarantor, as or
substantially as an entirety, in accordance with Section 1001, the
Successor shall succeed to, and be substituted for, and may exercise every
power and right of, the Company or the Guarantor, as the case requires,
under this Indenture with the same effect as if such Successor had been
named as the "Company" or the "Guarantor", as the case requires, herein.
Without limiting the generality of the foregoing, the Successor may execute
and deliver to the Trustee, and thereupon the Trustee shall, subject to the
provisions of Article Three, authenticate and deliver, Securities. All
Securities so executed by the Successor, and authenticated and delivered by
the Trustee, shall in all respects be entitled to the benefits provided by
this Indenture equally and ratably with all Securities executed,
authenticated and delivered prior to the time such consolidation, merger,
conveyance or other transfer became effective. The provisions of this
Section shall not apply in the case of a lease of properties of the Company
or the Guarantor.
SECTION 1003. RELEASE OF COMPANY OR GUARANTOR UPON CONVEYANCE OR OTHER
TRANSFER.
In the case of a conveyance or other transfer to any Person
or Persons as contemplated in Section 1001, upon the satisfaction of all
the conditions specified in Section 1001 the Company or the Guarantor, as
the case requires, (such terms being used in this Section without giving
effect to such transaction) shall be released and discharged from all
obligations and covenants under this Indenture and on and under all
Securities then Outstanding (unless the Company or the Guarantor, as the
case requires, shall have delivered to the Trustee an instrument in which
it shall waive such release and discharge) and the Trustee shall
acknowledge in writing that the Company has been so released and
discharged. The provisions of this Section shall not apply in the case of
a lease of properties of the Company or the Guarantor.
SECTION 1004. LIMITATION.
Nothing in this Indenture shall be deemed to prevent or
restrict:
(a) any consolidation or merger after the consummation of
which the Company or the Guarantor would be the surviving or
resulting entity,
(b) any consolidation of the Company with the Guarantor or
any other Person all of the outstanding voting securities of
which are owned, directly or indirectly, by the Guarantor; or any
merger of any of such Persons into any other of such Persons; or
any conveyance or other transfer, or lease, of properties by any
thereof to any other thereof,
(c) any conveyance or other transfer, or lease, of any part
of the properties of the Company or the Guarantor which does not
constitute the entirety, or substantially the entirety, thereof
or
(d) the approval by the Company or the Guarantor of, or the
consent by the Company or the Guarantor to, any consolidation or
merger to which any direct or indirect subsidiary or affiliate of
the Company or the Guarantor, as the case requires, may be a
party or any conveyance, transfer or lease by any such subsidiary
or affiliate of any of its assets.
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
SECTION 1101. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, the
Guarantor and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form reasonably
satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the
Company or the Guarantor and the assumption by any such successor
of the covenants of the Company or the Guarantor, as the case
requires, herein and in the Securities or the Guarantees endorsed
thereon, all as provided in Article Ten; or
(b) to add one or more covenants of the Company or the
Guarantor or other provisions for the benefit of all Holders or
for the benefit of the Holders of, or to remain in effect only so
long as there shall be Outstanding Securities of one or more
specified series, or one or more specified Tranches thereof or to
surrender any right or power herein conferred upon the Company or
the Guarantor; or
(c) 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 Outstanding Securities of
any series or Tranche in any material respect, such change,
elimination or addition shall become effective with respect to
such series or Tranche only in accordance with the provisions of
Section 1102 or when no Security of such series or Tranche
remains Outstanding; or
(d) to provide collateral security for the Securities or
any series thereof; or
(e) to establish the form or terms of Securities of any
series or Tranche or any Guaranties to be endorsed thereon as
contemplated by Sections 201 and 301; or
(f) to provide for the authentication and delivery of
bearer securities and coupons appertaining thereto representing
interest, if any, thereon and for the procedures for the
registration, exchange and replacement thereof and for the giving
of notice to, and the solicitation of the vote or consent of, the
holders thereof, and for any and all other matters incidental
thereto; or
(g) to evidence and provide for the acceptance of
appointment hereunder by a 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
811(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
or the Guarantor in respect of all or any series of Securities,
or any Tranche thereof, and this Indenture may be served; or
(j) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any
other provision herein; or to add other provisions with respect
to matters or questions arising under this Indenture or to make
any other changes to the provisions hereof, provided that such
additions or other changes 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, the Guarantor and the Trustee may, without the
consent of any Holders, enter into an indenture supplemental
hereto to evidence such amendment hereof; 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 or are contained herein to reflect any
provisions of the Trust Indenture Act as in effect at such date,
this Indenture shall be deemed to have been amended to effect
such changes or elimination, and the Company, the Guarantor and
the Trustee may, without the consent of any Holders, enter into
an indenture supplemental hereto to evidence such amendment.
SECTION 1102. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
Subject to the provisions of Section 1101, with the consent
of the Holders of 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, the
Guarantor and the Trustee, the Company, the Guarantor and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to, or changing in any manner or eliminating any
of the provisions of, this Indenture; provided, however, that if there
shall be Securities of more than one series Outstanding hereunder and if a
proposed supplemental indenture shall directly affect the rights of the
Holders of Securities of one or more, but less than all, of such series,
then the consent only of the Holders of a majority in aggregate principal
amount of the Outstanding Securities of all series so directly affected,
considered as one class, shall be required; and provided, further, that if
the Securities of any series shall have been issued in more than one
Tranche and if the proposed supplemental indenture shall directly affect
the rights of the Holders of Securities of one or more, but less than all,
of such Tranches, then the consent only of the Holders of a majority in
aggregate principal amount of the Outstanding Securities of all Tranches so
directly affected, considered as one class, shall be required; and
provided, further, that no such supplemental indenture shall
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security (other
than pursuant to the terms thereof), or reduce the principal
amount thereof or the rate of interest thereon (or the amount of
any installment of interest thereon) or change the method of
calculating such rate or reduce any premium payable thereon or
reduce the amount of the principal of any Discount Security that
would be due and payable upon a declaration of acceleration of
the Maturity thereof pursuant to Section 702, or change the coin
or currency (or other property), in which any Security or the
premium, if any, or the interest, if any, thereon is payable, or
impair the right to institute suit for the enforcement of any
such payment on or after the Maturity of any Security, without,
in any such case, the consent of the Holder of such Security; or
(b) reduce the percentage in principal amount of the
Outstanding Securities of any series, or any Tranche thereof, 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 1204 for quorum or voting,
without, in any such case, the consent of the Holder of each
Outstanding Security of such series or Tranche; or
(c) modify any of the provisions of this Section, Section
506 or Section 713 with respect to the Securities of any series
or any Tranche thereof (except to increase the percentages in
principal amount referred to in this Section or such other
Sections or to provide that other provisions of this Indenture
cannot be modified or waived without, in any such case, the
consent of the Holder of each Outstanding Security of such series
or Tranche; 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 811(b) and 1101(g).
A supplemental indenture which (x) changes or eliminates any
covenant or other provision of this Indenture which has expressly been
included solely for the benefit of the Holders of, or which is to remain in
effect only so long as there shall be Outstanding, Securities of one or
more specified series, or one or more Tranches thereof, or (y) 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.
Anything in this Indenture to the contrary notwithstanding,
if the Officer's Certificate, supplemental indenture or Board Resolution,
as the case may be, establishing the Securities of any series or Tranche
shall so provide, (a) the Holders of such Securities shall be deemed to
have consented to a supplemental indenture containing the additions,
changes or eliminations to or from the Indenture which shall be specified
in such Officer's Certificate, supplemental indenture or Board Resolution
establishing such series or Tranche, (b) no Act of such Holders shall be
required to evidence such consent and (c) such consent may be counted in
the determination of whether or not the Holders of the requisite principal
amount of Securities shall have consented to such supplemental indenture.
SECTION 1103. 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 801) 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 1104. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution and delivery of any supplemental
indenture under this Article this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
Any supplemental indenture permitted by this Article may restate this
Indenture in its entirety, and, upon the execution and delivery thereof,
any such restatement shall supersede this Indenture as theretofore in
effect for all purposes.
SECTION 1105. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture Act.
SECTION 1106. 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 and the
Guarantor shall so determine, new Securities of any series, or any Tranche
thereof, so modified as to conform, in the opinion of the Trustee, the
Company and Guarantor, to any such supplemental indenture may be prepared
and executed by the Company (with Guaranties of the Guarantor endorsed
thereon), and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series or Tranche.
SECTION 1107. MODIFICATION WITHOUT SUPPLEMENTAL INDENTURE.
To the extent, if any, that the terms of any particular
series of Securities shall have been established in or pursuant to an
Officer's Certificate or a Board Resolution as contemplated by Section 301,
and not in an indenture supplemental hereto, additions to, changes in or
the elimination of any of such terms may be effected by means of a
supplemental Officer's Certificate or a supplemental Board Resolution, as
the case may be, delivered to, and accepted by, the Trustee; provided,
however, that such supplemental Officer's Certificate or supplemental Board
Resolution shall not be accepted by the Trustee or otherwise be effective
unless all conditions set forth in this Indenture which would be required
to be satisfied if such additions, changes or elimination were contained in
a supplemental indenture shall have been appropriately satisfied. Upon the
acceptance thereof by the Trustee, any such supplemental Officer's
Certificate or supplemental Board Resolution shall be deemed to be a
"supplemental indenture" for purposes of Section 1104 and 1106.
ARTICLE TWELVE
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
SECTION 1201. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of one or more, or all,
series, or any Tranche or 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 1202. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders
of Securities of one or more, or all, series, or any Tranche or Tranches
thereof, for any purpose specified in Section 1201, to be held at such time
and (except as provided in subsection (b) of this Section) 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 twenty-one (21) nor more than one hundred eighty (180) days prior to
the date fixed for the meeting.
(b) The Trustee may be asked to call a meeting of the
Holders of Securities of one or more, or all, series, or any Tranche or
Tranches thereof, by the Company, the Guarantor or by the Holders of
thirty-three percentum (33%) in aggregate principal amount of all of such
series and Tranches, considered as one class, for any purpose specified in
Section 1201, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting. If the Trustee shall have been
asked by the Company or the Guarantor to call such a meeting, the Company
or the Guarantor, as the case requires, shall determine the time and place
for such meeting and may call such meeting by giving notice thereof in the
manner provided in subsection (a) of this Section, or shall direct the
Trustee, in the name and at the expense of the Company or the Guarantor, as
the case requires, to give such notice. If the Trustee shall have been
asked to call such a meeting by Holders in accordance with this subsection
(b), and the Trustee shall not have given the notice of such meeting within
twenty-one (21) days after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein, then the
Company, the Guarantor or the Holders of Securities of such series and
Tranches, in the principal amount above specified 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 or the
Guarantor, for such meeting and may call such meeting for such purposes by
giving notice thereof as provided in subsection (a) of this Section.
(c) Any meeting of Holders of Securities of one or more, or
all, series, or any Tranche or 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, the Guarantor 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 any Tranche or Tranches thereof, or by such
of them as are not present at the meeting in person or by proxy, and by the
Company, the Guarantor and the Trustee.
SECTION 1203. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of
Securities of one or more, or all, series, or any Tranche or 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 the
Guarantor and their counsel.
SECTION 1204. 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
1205(e), notice of the reconvening of any meeting adjourned for more than
thirty (30) days shall be given as provided in Section 106 not less than
ten (10) days prior to the date on which the meeting is scheduled to be
reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series and Tranches which shall constitute a
quorum.
Except as limited by Section 1102, 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 1205. 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 (except as provided in Section
104(g)) of such Securities before being voted.
(b) Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem advisable
for any meeting of Holders of Securities in regard to proof of the holding
of such Securities and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to
vote, and such other matters concerning the conduct of the meeting as it
shall deem appropriate. Except as otherwise permitted or required by any
such regulations and approved by the Company and the Guarantor, the holding
of Securities shall be proved in the manner specified in Section 104 and
the appointment of any proxy shall be proved in the manner specified in
Section 104. Such regulations may provide that written instruments
appointing proxies, regular on their face, may be presumed valid and
genuine without the proof specified in Section 104 or other proof.
(c) The Trustee shall, by an instrument in writing, appoint
a temporary chairman of the meeting, unless the meeting shall have been
called by the Company or the Guarantor or by Holders as provided in Section
1202(b), in which case the Company or the Guarantor or the Holders of
Securities of the series and Tranches 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 One Thousand Dollars ($1,000) principal amount of
Outstanding Securities held or represented by such Holder; 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 1202 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 1206. 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 in duplicate of the proceedings of each meeting
of Holders shall be prepared by the secretary of the meeting and there
shall be attached to such 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 such notice was given as provided in Section
1202 and, if applicable, Section 1204. 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 1207. ACTION WITHOUT MEETING.
In lieu of a vote of Holders at a meeting as hereinbefore
contemplated in this Article, any request, demand, authorization,
direction, notice, consent, waiver or other action may be made, given or
taken by Holders by written instruments as provided in Section 104.
ARTICLE THIRTEEN
Guaranty
SECTION 1301. GUARANTY.
The Guarantor hereby unconditionally guarantees to the
Holder of each Security Outstanding from time to time, and to the Trustee
on behalf of such Holder, the due and punctual payment of the principal of
and premium, if any, and interest, if any, on such Security when and as the
same shall become due and payable, whether at the Stated Maturity, by
declaration of acceleration, call for redemption, or otherwise, in
accordance with the terms of such Security and of this Indenture. In case
of the failure of the Company punctually to make any such payment, the
Guarantor shall cause such payment to be made punctually when and as the
same shall become due and payable, as aforesaid, as if such payment were
made by the Company.
The obligations of the Guarantor hereunder shall be absolute
and unconditional irrespective of, and shall be unaffected by, any
invalidity, irregularity or unenforceability of such Security or this
Indenture, any failure to enforce the provisions of such Security or this
Indenture, or any waiver, modification or indulgence granted to the Company
with respect thereto, by the Holder of such Security or the Trustee or any
other circumstance which may otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor; provided, however, that
notwithstanding the foregoing, no such waiver, modification or indulgence
shall, without the consent of the Guarantor, increase the principal amount
of such Security, or increase the interest rate thereon, or change any
redemption provisions thereof (including any change to increase any premium
payable upon redemption thereof), or change the Stated Maturity thereof, or
increase the principal amount of any Discount Security that would be due
and payable upon a declaration of acceleration of the maturity thereof
pursuant to Article Seven of this Indenture.
The Guarantor hereby waives the benefits of diligence,
presentment, demand for payment, any requirement that the Trustee or any of
the Holders exhaust any right or take any action against the Company or any
other Person, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against
the Company, protest or notice with respect to any Security or the
indebtedness evidenced thereby and all demands whatsoever, and covenants
that this Guaranty will not be discharged in respect of any Security except
by complete performance of the obligations contained in such Security and
in this Guaranty. This Guaranty shall constitute a guaranty of payment and
not of collection. The Guarantor hereby agrees that, in the event of a
default in payment of principal of, or premium, if any, or interest, if
any, on, any Security, whether at its Stated Maturity, by declaration of
acceleration, call for redemption, or otherwise, legal proceedings may be
instituted by the Trustee on behalf of, or by, the Holder of such Security,
subject to the terms and conditions set forth in this Indenture, directly
against the Guarantor to enforce this Guaranty without first proceeding
against the Company.
The obligations of the Guarantor hereunder with respect to
any Security shall be continuing and irrevocable until the date upon which
the entire principal of and premium, if any, and interest, if any, on such
Security have been, or have been deemed pursuant to the provisions of
Article Six to have been, paid in full or otherwise discharged.
The Guarantor shall be subrogated to all rights of the
Holders of the Securities upon which its Guaranty is endorsed against the
Company in respect of any amounts paid by the Guarantor on account of such
Securities pursuant to the provisions of its Guaranty or this Indenture;
provided, however, that the Guarantor shall not be entitled to enforce or
to receive any payments arising out of, or based upon, such right of
subrogation until the principal of and premium, if any, and interest, if
any, on all Securities issued hereunder shall have been paid in full.
This Guaranty shall remain in full force and effect and
continue notwithstanding any petition filed by or against the Company for
liquidation or reorganization, the Company becoming insolvent or making an
assignment for the benefit of creditors or a receiver or trustee being
appointed for all or any significant part of the Company's assets, and
shall, to the fullest extent permitted by law, continue to be effective or
reinstated, as the case may be, if at any time payment of any Security is,
pursuant to applicable law, rescinded or reduced in amount, or must
otherwise be restored or returned by any Holder of such Security, whether
as a "voidable preference", "fraudulent transfer" or otherwise, all as
though such payment or performance had not been made. In the event that
any payment in respect of any Security, or any part thereof, is rescinded,
reduced, restored or returned, such Security shall, to the fullest extent
permitted by law, be reinstated and shall be deemed paid only to the extent
of the amount paid and not so rescinded, reduced, restored or returned.
SECTION 1302. EXECUTION AND DELIVERY OF GUARANTY.
The Guaranty to be endorsed on the Securities of each series
shall include the terms of the Guaranty set forth in Section 1301 and any
other terms that may be set forth as established pursuant to Section 301.
The Guarantor hereby agrees to execute its Guaranty, in a form established
pursuant to Section 201, to be endorsed on each Security authenticated and
delivered by the Trustee.
The Guaranty shall be executed on behalf of the Guarantor by
an Authorized Officer of the Guarantor. The signature of any such officer
on the Guarantee may be manual or facsimile.
A Guaranty bearing the manual or facsimile signature of an
individual who was at the time of execution an Authorized Officer of the
Guarantor shall bind the Guarantor, notwithstanding that such individual
has ceased to be such Authorized Officer prior to the authentication and
delivery of the Security on which such Guaranty is endorsed or was not such
Authorized Officer at the date of such Guaranty.
The delivery of any Security by the Company, after the
authentication and delivery thereof by the Trustee hereunder, shall
constitute due delivery of the Guaranty endorsed thereon on behalf of the
Guarantor. The Guarantor hereby agrees that its Guaranty set forth in
Section 1301 shall remain in full force and effect notwithstanding any
failure to endorse a Guaranty on any Security. The Guarantor by its
execution of this Indenture hereby authorizes the Company, in the name and
on behalf of the Guarantor, to confirm the applicable Guaranty to the
Holder of each Security authenticated and delivered hereunder by its
execution and delivery of each such Security.
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, any Guaranties
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 the Guarantor or of any predecessor or successor
corporation of either of them (either directly or through the Company or
the Guarantor, as the case may be, or a predecessor or successor
corporation of either of them), 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 and Guaranties are solely corporate
obligations, and that no personal liability whatsoever shall attach to, or
be incurred by, any incorporator, stockholder, officer or director, past,
present or future, of the Company or of the Guarantor or of any predecessor
or successor corporation, either directly or indirectly through the Company
or the Guarantor or any predecessor or successor corporation of either of
them, 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 Guaranties or to be implied
herefrom or therefrom; and such personal liability, if any, is hereby
expressly waived and released as a condition of, and as part of the
consideration for, the execution and delivery of this Indenture and the
issuance and delivery of the Securities and the Guaranties.
--------------------------------
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
DQE CAPITAL CORPORATION
By:--------------------
Name:
Title:
DQE, INC.
By:--------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
Trustee
By:--------------------
Name:
Title:
=================================================================
DQE CAPITAL CORPORATION
DQE, INC.
----------------------------
OFFICER'S CERTIFICATE
(Under Section 301 of the Indenture,
dated as of 1, 1999)
------------
Establishing Series of Securities Designated
Medium-Term Notes, Series A
-------------------------------
,
--------------
=================================================================
<PAGE>
DQE CAPITAL CORPORATION
OFFICER'S CERTIFICATE
(Under Section 301 of the Indenture,
dated as of 1, 1999)
---------
I, Frosina C. Cordisco, The Treasurer of DQE CAPITAL
CORPORATION (the "Company"), in accordance with Section 301 of
the Indenture, dated as of , 1999 (the "Indenture",
----- -
capitalized terms used herein and not defined herein having the
meanings specified in the Indenture), of the Company and DQE,
Inc. (the "Guarantor") to The First National Bank of Chicago,
trustee (the "Trustee"), do hereby establish a series of
Securities having the terms and characteristics set forth in this
Officer's Certificate.
PART I
Set forth below in this Part I are the terms and
characteristics of the series of Securities established hereby
referred to in clauses (a) through (t) in the second paragraph of
Section 301 of the Indenture (the lettered clauses set forth
herein corresponding to such clauses in said Section 301).
(a) the title of the Securities of such series, being
Series No. 1 under the Indenture, shall be "Medium-Term Notes,
Series A" (the Securities of such series, for purposes of this
Officer's Certificate, being sometimes hereinafter called the
"Notes");
(b) the aggregate principal amount of Notes which may
be authenticated and delivered under the Indenture shall not be
limited;
(c) interest on the Notes shall be payable to the
Person or Persons in whose names the Notes are registered at the
close of business on the Regular Record Date for such interest,
except as otherwise expressly provided in the forms of Note
attached hereto and hereby authorized and approved;
(d) the date or dates on which the principal of the
Notes shall be payable shall be determined at the time of sale of
the Notes, or any Tranche thereof, by the proper officers of the
Company and communicated to the Trustee by Company Order, or by
the proper officers of the Company pursuant to the Administrative
Procedure (the "Administrative Procedure") attached as Annex II
to the Selling Agency Agreement dated , 1999 among the
-----------
Company, the Guarantor and ; provided,
-------------------
however, that in no event shall any Note have a term less than
nine months or more than 40 years;
(e) the Notes, or any Tranche thereof, may bear
interest at a fixed rate (any such Note being hereinafter called
a "Fixed Rate Note") or at a floating rate (any such Note being
hereinafter called a "Floating Rate Note"), or they may bear no
interest. There shall be determined by the proper officers of
the Company and communicated to the Trustee by Company Order, or
by the proper officers of the Company pursuant to the
Administrative Procedure, at the time of sale of the Notes or any
Tranche thereof,
(i) in the case of Fixed Rate Notes, the interest rate
or rates (including the interest rate, if any, on overdue
principal, premium or interest, if any) applicable to such
Fixed Rate Notes, or Tranche thereof and
<PAGE>
(ii) in the case of Floating Rate Notes, the Initial
Interest Rate, the Base Rate (which shall be the CD Rate,
the CMT Rate, Commercial Paper Rate, the Federal Funds Rate,
LIBOR, the Prime Rate, the Treasury Rate or any other Base
Rate determined at the time of sale of the Notes or Tranche
thereof), the Maximum Interest Rate, if any, the Minimum
Interest Rate, if any, the Interest Payment Period, the
Interest Reset Period, the Interest Reset Dates, the Rate
Determination Dates, the Index Maturity, the Spread, if any,
the Spread Multiplier, if any (each of such terms being
referred to in the form of Floating Rate Note attached
hereto), any other terms relating to the determination of
the interest rates on Floating Rate Notes and the interest
rate, if any, on overdue principal, premium or interest, if
any, applicable to such Floating Rate Notes or Tranche
thereof;
interest shall accrue on any Note from the Original Interest
Accrual Date specified in such Note or the most recent date to
which interest has been paid or duly provided for; the Interest
Payment Dates on the Notes shall be determined at the time of
sale of the Notes of each Tranche by the proper officers of the
Company and communicated to the Trustee by Company Order, or
determined by the proper officers of the Company pursuant to the
Administrative Procedure, and the Regular Record Date with
respect to each such Interest Payment Date shall be the date 15
calendar days immediately preceding such Interest Payment Date
(whether or not a Business Day); and interest on Floating Rate
Notes which employ the Treasury Rate as the Base Rate shall be
computed on the basis of the actual number of days in the year;
(f) the corporate trust office of The First National
Bank of Chicago in Chicago, Illinois shall be the place at which
(i) the principal of, premium, if any, and interest, if any, on
the Notes at Maturity shall be payable upon presentment, interest
prior to Maturity to be paid as specified in the forms of Note
attached hereto, (ii) registration of transfer of the Notes may
be effected, (iii) exchanges of Notes may be effected and (iv)
notices and demands to or upon the Company in respect of the
Notes and the Indenture may be served; and The First National
Bank of Chicago shall be the Security Registrar and a Paying
Agent for the Notes; provided, however, that the Company reserves
the right to change, by one or more Officer's Certificates
supplemental to this Officer's Certificate, any such place or the
Security Registrar or such Paying Agent; and provided, further,
that the Company reserves the right to designate, by one or more
Officer's Certificates supplemental to this Officer's
Certificate, its principal corporate office in Pittsburgh,
Pennsylvania as any such place or itself as the Security
Registrar;
(g) the Notes, or any Tranche thereof, shall be
redeemable in whole or in part, at the option of the Company as
and to the extent determined at the time of sale of the Notes or
any Tranche thereof by the proper officers of the Company and
communicated to the Trustee by Company Order, or determined by
the proper officers of the Company pursuant to the Administrative
Procedures;
(h) the obligation, if any, of the Company to redeem
or purchase the Notes 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
Notes or Tranche thereof shall be redeemed or purchased, in whole
or in part, pursuant to such obligation shall be determined at
the time of sale of the Notes or Tranche thereof by the proper
officers of the Company and communicated to the Trustee by
Company Order, or determined by the proper officers of the
Company pursuant to the Administrative Procedures;
(i) the Notes shall be issued in denominations of
$1,000 and any integral multiple thereof;
(j) inapplicable;
-2-
<PAGE>
(k) inapplicable;
(l) inapplicable;
(m) inapplicable;
(n) inapplicable;
(o) inapplicable;
(p) inapplicable;
(q) the Notes are initially to be issued in global
form, registered in the name of Cede & Co., as nominee for The
Depository Trust Company (the "Depositary"). Such Notes shall
not be transferable or exchangeable, nor shall any purported
transfer be registered, except as follows:
(i) such Notes may be transferred in whole, and
appropriate registration of transfer effected, if such
transfer is by such nominee to the Depositary, or by the
Depositary to another nominee thereof, or by any nominee of
the Depositary to any other nominee thereof, or by the
Depositary or any nominee thereof to any successor
securities depositary or any nominee thereof; and
(ii) such Notes may be exchanged for definitive Notes
registered in the respective names of the beneficial holders
thereof, and thereafter shall be transferable without
restriction, if:
(A) The Depositary, or any successor securities
depositary, shall have notified the Company and the
Trustee that it is unwilling or unable to continue to
act as securities depositary with respect to such Notes
and the Trustee shall not have been notified by the
Company within ninety (90) days of the identity of a
successor securities depositary with respect to such
Notes; or
(B) the Company shall have delivered to the Trustee a
Company Order to the effect that such Notes shall be so
exchangeable on and after a date specified therein;
it being understood that any such registration of transfer or
exchange shall be effected in accordance with Section 305 of the
Indenture;
(r) inapplicable;
(s) no service charge shall be made for the
registration of transfer or exchange of the Notes, or any Tranche
thereof; provided, however, that the Company may require payment
of a sum sufficient to cover any tax or other governmental charge
payable in connection with such transfer or exchange; and
(t) Section 113 of the Indenture shall apply to the
Notes, except to the extent that the provisions of the Floating
Rate Notes hereinafter authorized and approved which are
inconsistent with Section 113, and, to the extent of such
inconsistency, the provisions of the Floating Rate Notes shall
apply in lieu of the provisions of Section 113.
-3-
<PAGE>
PART II
Set forth below in this Part II are additional terms of
the Medium-Term Notes, Series A, as contemplated by clause (u) in
the second paragraph of Section 301 of the Indenture.
(a) the Notes shall have such further terms as are set
forth in the forms of Fixed Rate Note and Floating Rate Note
attached hereto as Exhibits A and B, respectively;
(b) if the Company shall make any deposit of money
and/or Government Obligations with respect to any Notes, or any
portion of the principal amount thereof, as contemplated by
Section 601 of the Indenture, the Company shall not deliver an
Officer's Certificate described in clause (z) in the first
paragraph of said Section 601 unless the Company shall also
deliver to the Trustee, together with such Officer's Certificate,
either:
(i) an instrument wherein the Company, notwithstanding
the satisfaction and discharge of its indebtedness in
respect of the Notes, shall assume the obligation (which
shall be absolute and unconditional) to irrevocably deposit
with the Trustee or Paying Agent such additional sums of
money, if any, or additional Government Obligations (meeting
the requirements of Section 601), if any, or any combination
thereof, at such time or times, as shall be necessary,
together with the money and/or Government Obligations
theretofore so deposited, to pay when due the principal of
and premium, if any, and interest due and to become due on
such Notes or portions thereof, all in accordance with and
subject to the provisions of said Section 601; provided,
however, that such instrument may state that the obligation
of the Company to make additional deposits as aforesaid
shall be subject to the delivery to the Company by the
Trustee of a notice asserting the deficiency accompanied by
an opinion of an independent public accountant of nationally
recognized standing showing the calculation thereof (which
opinion shall be obtained at the expense of the Company); or
(ii) an Opinion of Counsel to the effect that the
Holders of such Notes, or portions of the principal amount
thereof, will not recognize income, gain or loss for United
States federal income tax purposes as a result of the
satisfaction and discharge of the Company's indebtedness in
respect thereof and will be subject to United States federal
income tax on the same amounts, at the same times and in the
same manner as if such satisfaction and discharge had not
been effected; and
(c) [Special covenants, if any, with respect to this series
will be inserted here.]
------------
-4-
<PAGE>
IN WITNESS WHEREOF, I have executed this Officer's
Certificate this day of , 1999.
--- ----
------------------------------
Name:
Title:
-5-
<PAGE>
EXHIBIT A
FORM OF FIXED RATE NOTE
(See legend at the end of this Security for
restrictions on transfer and change of form)
DQE CAPITAL CORPORATION
Medium-Term Notes, Series A
Unconditionally Guaranteed as to Payment of Principal,
Premium, if any, and Interest, if any, by
DQE, INC.
Original Interest Accrual Date: Redeemable: Yes No
-- --
Stated Maturity: Initial Redemption Date:
Interest Rate: Initial Redemption Price:
Interest Payment Dates: Reduction Percentage:
Regular Record Dates: Redemption Limitation
Date:
Other Provisions:
OID: Yes No
-- --
Total Amount of OID (%):
Yield to Maturity (%):
Initial Accrual
Period OID (%):
(Constant - Yield Method)
-------------------------
This Security is not a Discount Security
within the meaning of the within-mentioned Indenture.
--------------------------------------
Principal Amount Registered No.
$ CUSIP
DQE CAPITAL CORPORATION, a corporation organized and
existing under the laws of the State of Delaware (herein called
the "Company," which term includes any successor corporation
under the Indenture referred to below), for value received,
hereby promises to pay to
or registered assigns, the principal sum of
<PAGE>
DOLLARS
on the Stated Maturity specified above, and to pay interest
thereon from the Original Interest Accrual Date specified above
or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, semi-annually in arrears on
the Interest Payment Dates specified above in each year,
commencing with the Interest Payment Date next succeeding the
Original Interest Accrual Date specified above, and at Maturity,
at the Interest Rate per annum specified above, until the
principal hereof is paid or duly provided for. The interest so
payable, and paid or duly provided for, on any Interest Payment
Date shall, as provided in such Indenture, be paid to the Person
in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular
Record Date specified above (whether or not a Business Day) next
preceding such Interest Payment Date. Notwithstanding the
foregoing, (a) if the Original Interest Accrual Date of this
Security is after a Regular Record Date and before the
corresponding Interest Payment Date, interest so payable for the
period from and including the Original Interest Accrual Date to
but excluding such Interest Payment Date shall be paid on the
next succeeding Interest Payment Date to the Holder hereof on the
related Regular Record Date; and (b) interest payable at Maturity
shall be paid to the Person to whom principal shall be paid.
Except as otherwise provided in said Indenture, any such interest
not so paid or duly provided for shall forthwith cease to be
payable to the Holder on such Regular Record Date and may either
be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on
a Special Record Date for the payment of such Unpaid Interest to
be fixed by the Trustee, notice of which shall be given to
Holders of Securities of this series not less than 15 days prior
to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be
listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture.
Payment of the principal of and premium, if any, on this
Security and interest hereon at Maturity shall be made upon
presentation of this Security at the Corporate Trust Office of
The First National Bank of Chicago in Chicago, Illinois, or at
such other office or agency as may be designated for such purpose
by the Company from time to time. Payment of interest on this
Security (other than interest at Maturity) shall be made by check
mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register, except that (a) if
such Person shall be a securities depositary, such payment may be
made by such other means in lieu of check, as shall be agreed
upon by the Company, the Trustee and such Person and (b) upon the
written request of a Holder of not less than $10 million in
aggregate principal amount of Securities (as hereinafter defined)
of the same series and Tranche delivered to the Company and the
Paying Agent at least ten days prior to any Interest Payment
Date, payment of interest on such Securities to such Holder on
such Interest Payment Date shall be made by wire transfer of
immediately available funds to an account maintained within the
continental United States specified by such Holder or, if such
Holder maintains an account with the entity acting as Paying
Agent, by deposit into such account. Payment of the principal of
and premium, if any, and interest on this Security, as aforesaid,
shall be made 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.
This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities"),
issued and issuable in one or more series under an Indenture,
dated as of 1999 (such Indenture as originally executed and
------
delivered and as supplemented or amended from time to time thereafter,
together with any constituent instruments establishing the terms
of particular Securities, being herein called the "Indenture"),
of the Company and DQE, Inc. (the "Guarantor") to The First
National Bank of Chicago, trustee herein called the "Trustee,"
which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto
reference is hereby made for a description of the respective
2
<PAGE>
rights, limitations of rights, duties and immunities of the
Company, the Trustee and the Holders of the Securities thereunder
and of the terms and conditions upon which the Securities are,
and are to be, authenticated and delivered and guaranteed. The
acceptance of this Security shall be deemed to constitute the
consent and agreement by the Holder hereof to all of the terms
and provisions of the Indenture. This Security is one of the
series designated above.
If any Interest Payment Date, any Redemption Date or the
Stated Maturity shall not be a Business Day (as hereinafter
defined), payment of the amounts due on this Security on such
date may be made on the next succeeding Business Day; and, if
such payment is made or duly provided for on such Business Day,
no interest shall accrue on such amounts for the period from and
after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be, to such Business Day.
If, as specified above, this Security is redeemable, this
Security is subject to redemption at any time on or after the
Initial Redemption Date specified above, as a whole or in part,
at the election of the Company, at the applicable redemption
price (as described below) plus accrued interest to the date
fixed for redemption. Such redemption price shall be the Initial
Redemption Price specified above for the twelve-month period
commencing on the Initial Redemption Date and shall decline for
the twelve-month period commencing on each anniversary of the
Initial Redemption Date by a percentage of principal amount equal
to the Reduction Percentage specified above until such redemption
price is 100% of the principal amount of this Security to be
redeemed.
Notwithstanding the foregoing, the Company may not, prior to
the Redemption Limitation Date, if any, specified above, redeem
this Security 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) less than the effective
interest cost to the Company (similarly calculated) of this
Security.
[Insert provisions, if any, for redemption pursuant to a
sinking fund or analogous provision or at the option of the
Holder.]
Notice of redemption [(other than at the election of the
Holder)] shall be given by mail to Holders of Securities, not
less than 30 days nor more than 60 days prior to the date fixed
for redemption, all as provided in the Indenture. As provided in
the Indenture, notice of redemption at the election of the
Company as aforesaid may state that such redemption shall be
conditional upon the receipt by the Trustee of money sufficient
to pay the principal of and premium, if any, and interest, if
any, on this Security on or prior to the date fixed for such
redemption; a notice of redemption so conditioned shall be of no
force or effect if such money is not so received and, in such
event, the Company shall not be required to redeem this Security.
In the event of redemption of this Security in part only, a
new Security or Securities of this series, of like tenor, for the
unredeemed portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing, the
principal of this Security may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the Trustee to enter into one or more supplemental
indentures for the purpose of adding any provisions to, or
changing in any manner or eliminating any of the provisions of,
3
<PAGE>
the Indenture with the consent of the Holders of not less than a
majority in aggregate principal amount of the Securities of all
series then Outstanding under the Indenture, considered as one
class; provided, however, that if there shall be Securities of
more than one series Outstanding under the Indenture and if a
proposed supplemental indenture shall directly affect the rights
of the Holders of Securities of one or more, but less than all,
of such series, then the consent only of the Holders of a
majority in aggregate principal amount of the Outstanding
Securities of all series so directly affected, considered as one
class, shall be required; and provided, further, that if the
Securities of any series shall have been issued in more than one
Tranche and if the proposed supplemental indenture shall directly
affect the rights of the Holders of Securities of one or more,
but less than all, of such Tranches, then the consent only of the
Holders of a majority in aggregate principal amount of the
Outstanding Securities of all Tranches so directly affected,
considered as one class, shall be required; and provided,
further, that the Indenture permits the Trustee to enter into one
or more supplemental indentures for limited purposes without the
consent of any Holders of Securities. The Indenture also
contains provisions permitting the Holders of a majority in
principal amount of the Securities then Outstanding, on behalf of
the Holders of all Securities, to waive compliance by the Company
with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange therefor or in
lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
As provided in the Indenture and subject to certain
limitations therein set forth, this Security or any portion of
the principal amount hereof will be deemed to have been paid for
all purposes of the Indenture and to be no longer Outstanding
thereunder, and, at the election of the Company, the Company's
entire indebtedness in respect thereof will be satisfied and
discharged, if there has been irrevocably deposited with the
Trustee or any Paying Agent (other than the Company), in trust,
money in an amount which will be sufficient and/or Eligible
Obligations, the principal of and interest on which when due,
without regard to any reinvestment thereof, will provide moneys
which, together with moneys so deposited, will be sufficient to
pay when due the principal of and interest on this Security when
due.
The Indenture contains terms, provisions and conditions
relating to the consolidation or merger of the Company or the
Guarantor with or into, and the conveyance or other transfer, or
lease, of assets to, another Person, to the assumption by such
other Person, in certain circumstances, of all of the obligations
of the Company or the Guarantor under the Indenture and on the
Securities and to the release and discharge of the Company and
the Guarantor, in certain circumstances, from such obligation.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is
registrable in the Security Register, upon surrender of this
Security for registration of transfer at the corporate trust
office of The First National Bank of Chicago in Chicago, Illinois
or such other office or agency as may be designated by the
Company from time to time, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder
hereof or his attorney duly authorized in writing, and thereupon
one or more new Securities of this series of authorized
denominations and of like tenor and aggregate principal amount,
will be issued to the designated transferee or transferees.
The Securities of this series are issuable only as
registered Securities, without coupons, and in denominations of
$1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate
principal amount of Securities of the same series and Tranche, of
any authorized denominations, as requested by the Holder
4
<PAGE>
surrendering the same, and of like tenor upon surrender of the
Security or Securities to be exchanged at the corporate trust
office of The First National Bank of Chicago in Chicago, Illinois
or such other office or agency as may be designated by the
Company from time to time.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due surrender of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Security
is registered as the absolute owner hereof for all purposes
(subject to Section 307 of the Indenture), whether or not this
Security be overdue, and neither the Company, the Trustee nor any
such agent shall be affected by notice to the contrary.
The Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York,
except to the extent that the Trust Indenture Act shall be
applicable .
As used herein, "Business Day" means any day, other than a
Saturday or Sunday, which is not a day on which banking
institutions or trust companies in The City of New York, New York
or other city in which is located any office or agency maintained
for the payment of principal, premium, if any, or interest on
this Security, are authorized or required by law, regulation or
executive order to remain closed. All other terms used in this
Security which are defined in the Indenture shall have the
meanings assigned to them in the Indenture.
As provided in the Indenture, no recourse shall be had for
the payment of the principal of or premium, if any, or interest
on any Securities or any guaranties, or any part of either
thereof, or for any claim based thereon or otherwise in respect
thereof, or of the indebtedness represented thereby, or upon any
obligation, covenant or agreement under the Indenture, against,
and no personal liability whatsoever shall attach to, or be
incurred by, any incorporator, shareholder, officer or director,
as such, past, present or future of the Company or the Guarantor
or of any predecessor or successor corporation (either directly
or through the Company or the Guarantor, as the case requires, or
a predecessor or successor corporation) of either thereof,
whether by virtue of any constitutional provision, statute or
rule of law, or by the enforcement of any assessment or penalty
or otherwise; it being expressly agreed and understood that the
Indenture and all the Securities and the Guaranties endorsed
therein are solely corporate obligations and that any such
personal liability is hereby expressly waived and released as a
condition of, and as part of the consideration for, the execution
of the Indenture and the issuance of the Securities and the
Guaranties.
Unless the certificate of authentication hereon has been
executed by the Trustee or an Authenticating Agent by manual
signature, this Security shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
5
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument
to be duly executed.
DQE CAPITAL CORPORATION
By:
-------------------------------
[Title]
6
<PAGE>
GUARANTY
DQE, Inc., a corporation organized under the
laws of the Commonwealth of Pennsylvania (the
"Guarantor", which term includes any successor under
the Indenture (the "Indenture") referred to in the
Security upon which this Guarantee is endorsed), for
value received, hereby unconditionally guarantees to
the Holder of the Security upon which this Guaranty is
endorsed, the due and punctual payment of the principal
of and premium, if any, and interest, if any, on such
Security when and as the same shall become due and
payable, whether at the Stated Maturity, by declaration
of acceleration, call for redemption, or otherwise, in
accordance with the terms of such Security and of the
Indenture. In case of the failure of DQE Capital
Corporation, a corporation organized under the laws of
the State of Delaware (the "Company", which term
includes any successor under the Indenture), punctually
to make any such payment, the Guarantor shall cause
such payment to be made punctually when and as the same
shall become due and payable, as aforesaid, as if such
payment were made by the Company.
The obligations of the Guarantor hereunder
shall be absolute and unconditional irrespective of,
and shall be unaffected by, any invalidity,
irregularity or unenforceability of such Security or
the Indenture, any failure to enforce the provisions of
such Security or the Indenture, or any waiver,
modification or indulgence granted to the Company with
respect thereto, by the Holder of such Security or the
Trustee or any other circumstance which may otherwise
constitute a legal or equitable discharge or defense of
a surety or guarantor; provided, however, that
notwithstanding the foregoing, no such waiver,
modification or indulgence shall, without the consent
of the Guarantor, increase the principal amount of such
Security, or increase the interest rate thereon, or
change any redemption provisions thereof (including any
change to increase any premium payable upon redemption
thereof) or change the Stated Maturity thereof, or
increase the principal amount of any Discount Security
that would be due and payable upon a declaration of
acceleration of the maturity thereof pursuant to
Article Seven of the Indenture.
The Guarantor hereby waives the benefits of
diligence, presentment, demand for payment, any
requirement that the Trustee or the Holder of such
Security exhaust any right or take any action against
the Company or any other Person, filing of claims with
a court in the event of insolvency or bankruptcy of the
Company, any right to require a proceeding first
against the Company, protest or notice with respect to
such Security or the indebtedness evidenced thereby and
all demands whatsoever, and covenants that this
Guaranty will not be discharged in respect of such
Security except by complete performance of the
obligations contained in such Security and in this
Guaranty. This Guaranty shall constitute a guaranty of
payment and not of collection. The Guarantor hereby
agrees that, in the event of a default in payment of
principal of, or premium, if any, or interest, if any,
on such Security, whether at its Stated Maturity, by
declaration of acceleration, call for redemption, or
otherwise, legal proceedings may be instituted by the
Trustee on behalf of, or by, the Holder of such
Security, subject to the terms and conditions set forth
in the Indenture, directly against the Guarantor to
enforce this Guaranty without first proceeding against
the Company.
7
<PAGE>
The obligations of the Guarantor hereunder
with respect to such Security shall be continuing and
irrevocable until the date upon which the entire
principal of and premium, if any, and interest, if any,
on such Security have been, or have been deemed
pursuant to the provisions of Article Seven of the
Indenture to have been, paid in full or otherwise
discharged.
The Guarantor shall be subrogated to all
rights of the Holder of such Security against the
Company in respect of any amounts paid by the Guarantor
on account of such Security pursuant to the provisions
of this Guaranty or the Indenture; provided, however,
that the Guarantor shall not be entitled to enforce or
to receive any payments arising out of, or based upon,
such right of subrogation until the principal of and
premium, if any, and interest, if any, on all
Securities issued under the Indenture shall have been
paid in full.
This Guaranty shall remain in full force and
effect and continue notwithstanding any petition filed
by or against the Company for liquidation or
reorganization, the Company becoming insolvent or
making an assignment for the benefit of creditors or a
receiver or trustee being appointed for all or any
significant part of the Company's assets, and shall, to
the fullest extent permitted by law, continue to be
effective or reinstated, as the case may be, if at any
time payment of the Security upon which this Guaranty
is endorsed, is, pursuant to applicable law, rescinded
or reduced in amount, or must otherwise be restored or
returned by the Holder of such Security, whether as a
"voidable preference", "fraudulent transfer", or
otherwise, all as though such payment or performance
had not been made. In the event that any payment, or
any part thereof, is rescinded, reduced, restored or
returned, such Security shall, to the fullest extent
permitted by law, be reinstated and shall be deemed
paid only to the extent of the amount paid and not so
rescinded, reduced, restored or returned.
This Guaranty shall not be valid or
obligatory for any purpose until the certificate of
authentication of the Security upon which this Guaranty
is endorsed shall have been manually executed by or on
behalf of the Trustee under the Indenture.
All terms used in this Guaranty which are
defined in such Indenture shall have the meanings
assigned to them in such Indenture.
This Guaranty shall be governed by and
construed in accordance with the laws of the State of
New York, except to the extent that the Trust Indenture
Act shall be applicable.
IN WITNESS WHEREOF, the Guarantor has caused
this Guaranty to be executed as of the date first
written above.
DQE, INC.
By:
---------------------------
8
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
Dated:
------------------
THE FIRST NATIONAL BANK OF CHICAGO OR THE FIRST NATIONAL
AS TRUSTEE BANK OF CHICAGO
AS TRUSTEE
By:
---------------------------- BY:[ ],
Authorized Officer AS AUTHENTICATING AGENT
By:
---------------------------
Authorized Officer
9
<PAGE>
THIS SECURITY MAY NOT BE TRANSFERRED OR EXCHANGED, NOR MAY
ANY PURPORTED TRANSFER BE REGISTERED, EXCEPT (I) THIS SECURITY
MAY BE TRANSFERRED IN WHOLE, AND APPROPRIATE REGISTRATION OF
TRANSFER EFFECTED, IF SUCH TRANSFER IS BY CEDE & CO., AS NOMINEE
FOR THE DEPOSITORY TRUST COMPANY (THE "DEPOSITARY"), TO THE
DEPOSITARY, OR BY THE DEPOSITARY TO ANOTHER NOMINEE THEREOF, OR
BY ANY NOMINEE OF THE DEPOSITARY TO ANY OTHER NOMINEE THEREOF, OR
BY THE DEPOSITARY OR ANY NOMINEE THEREOF TO ANY SUCCESSOR
SECURITIES DEPOSITARY OR ANY NOMINEE THEREOF; AND (II) THIS
SECURITY MAY BE EXCHANGED FOR DEFINITIVE SECURITIES REGISTERED IN
THE RESPECTIVE NAMES OF THE BENEFICIAL HOLDERS HEREOF, AND
THEREAFTER SHALL BE TRANSFERABLE WITHOUT RESTRICTIONS IF: (A) THE
DEPOSITARY, OR ANY SUCCESSOR SECURITIES DEPOSITARY, SHALL HAVE
NOTIFIED THE COMPANY AND THE TRUSTEE THAT IT IS UNWILLING OR
UNABLE TO CONTINUE TO ACT AS SECURITIES DEPOSITARY WITH RESPECT
TO THE SECURITIES AND THE TRUSTEE SHALL NOT HAVE BEEN NOTIFIED BY
THE COMPANY WITHIN NINETY (90) DAYS OF THE IDENTITY OF A
SUCCESSOR SECURITIES DEPOSITARY WITH RESPECT TO THE SECURITIES OR
(B) THE COMPANY SHALL HAVE DELIVERED TO THE TRUSTEE A COMPANY
ORDER TO THE EFFECT THAT THE SECURITIES SHALL BE SO EXCHANGEABLE
ON AND AFTER A DATE SPECIFIED THEREIN.
------------------
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
-----------------------------------------------------------------
[please insert social security or other identifying number of
assignee]
-----------------------------------------------------------------
[please print or typewrite name and address of assignee]
-----------------------------------------------------------------
the within Security of DQE CAPITAL CORPORATION and does hereby
irrevocably constitute and appoint ,
------------------------------
Attorney, to transfer said Security on the books of the
within-mentioned Company, with full power of substitution in the
premises.
DQE CAPITAL CORPORATION
-----------------------------------
Dated:
---------------
10
<PAGE>
-----------------------------------------------------------------
Notice: The signature to this assignment must correspond with
the name as written upon the face of the Security in every
particular without alteration or enlargement or any change
whatsoever.
11
<PAGE>
EXHIBIT B
FORM OF FLOATING RATE NOTE
(See legend at the end of this Security for
restrictions on transfer and change of form)
DQE CAPITAL CORPORATION
Medium-Term Notes, Series A
Unconditionally Guaranteed as to Payment of Principal,
Premium, if any, and Interest, if any, by
DQE, INC.
ORIGINAL INTEREST ACCRUAL DATE: MAXIMUM INTEREST RATE:
STATED MATURITY: MINIMUM INTEREST RATE:
INITIAL INTEREST RATE: INTEREST PAYMENT PERIOD:
BASE RATE: INTEREST PAYMENT DATES:
-- CD RATE REGULAR RECORD DATES:
-- CMT RATE INTEREST RESET PERIOD:
DESIGNATED CMT MATURITY INDEX: INTEREST RESET DATES:
DESIGNATED CMT TELERATE PAGE: RATE DETERMINATION DATES:
-- COMMERCIAL PAPER RATE INDEX MATURITY:
-- FEDERAL FUNDS RATE SPREAD: (+ BASIS PTS.)
-
-- LIBOR
REPORTING SERVICE: REDEEMABLE: YES___ NO___
-- LIBOR REUTERS INITIAL REDEMPTION DATE:
-- LIBOR TELERATE INITIAL REDEMPTION PRICE:
INDEX CURRENCY: REDUCTION PERCENTAGE:
-- PRIME RATE REDEMPTION LIMITATION DATE:
-- TREASURY RATE OTHER PROVISIONS:
OID: YES__ NO__
TOTAL AMOUNT OF OID (%):
YIELD TO MATURITY (%):
INITIAL ACCRUAL
PERIOD OID (%):
(CONSTANT - YIELD METHOD)
---------------------------------------
This Security is not a Discount Security
within the meaning of the within-mentioned Indenture.
---------------------------------------
Principal Amount Registered No.
$ CUSIP
DQE CAPITAL CORPORATION, a corporation organized and
existing under the laws of the State of Delaware (herein called
the "Company," which term includes any successor corporation
under the Indenture referred to below), for value received,
hereby promises to pay to
or registered assigns, the principal sum of
DOLLARS
on the Stated Maturity specified above, and to pay interest
thereon from the Original Interest Accrual Date specified above
or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, quarterly, semi-annually or
annually, as specified above for the Interest Payment Period, in
arrears on the Interest Payment Dates specified above in each
year, commencing with the Interest Payment Date next succeeding
the Original Interest Accrual Date specified above, and at
Maturity, until the principal hereof is paid or duly provided
for. Except as otherwise provided herein, the rate of interest
to be so paid shall be the Initial Interest Rate specified above
until the first Interest Reset Date specified above following the
Original Interest Accrual Date and thereafter a rate determined,
in accordance with the provisions hereinafter set forth, by
reference to the Base Rate specified above plus or minus the
Spread, if any, specified above or multiplied by the Spread
Multiplier, if any, specified above. The interest so payable,
and paid or duly provided for, on any Interest Payment Date
shall, as provided in such Indenture, be paid to the Person in
whose name this Security (or one or more Predecessor Securities)
is registered at the close of business on the Regular Record Date
specified above (whether or not a Business Day) next preceding
such Interest Payment Date. Notwithstanding the foregoing, (a)
if the Original Interest Accrual Date of this Security is after a
Regular Record Date and before the corresponding Interest Payment
Date, interest so payable for the period from and including the
Original Interest Accrual Date to but excluding such Interest
Payment Date shall be paid on the next succeeding Interest
Payment Date to the Holder hereof on the related Regular Record
Date; and (b) interest payable at Maturity shall be paid to the
Person to whom principal shall be paid. Except as otherwise
provided in said Indenture, any such interest not so paid or duly
provided for shall forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the Person in
whose name this Security (or one or more Predecessor Securities)
is registered at the close of business on a Special Record Date
for the payment of such Unpaid Interest to be fixed by the
Trustee, notice of which shall be given to Holders of Securities
of this series not less than 15 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which the Securities of this series may be listed, and upon such
notice as may be required by such exchange, all as more fully
provided in said Indenture.
Payment of the principal of and premium, if any, on this
Security and interest hereon at Maturity shall be made upon
presentation of this Security at the Corporate Trust Office of
The First National Bank of Chicago in Chicago, Illinois or at
such other office or agency as may be designated for such purpose
by the Company from time to time. Payment of interest on this
Security (other than interest at Maturity) shall be made by check
mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register, except that (a) if
such Person shall be a securities depositary, such payment may be
made by such other means in lieu of check, as shall be agreed
upon by the Company, the Trustee and such Person and (b) upon the
written request of a Holder of not less than $10 million in
aggregate principal amount of Securities (as hereinafter defined)
of the same series and Tranche delivered to the Company and the
Paying Agent at least ten days prior to any Interest Payment
Date, payment of interest on such Securities to such Holder on
such Interest Payment Date shall be made by wire transfer of
immediately available funds to an account maintained within the
continental United States specified by such Holder or, if such
Holder maintains an account with the entity acting as Paying
Agent, by deposit into such account. Payment of the principal of
and premium, if any, and interest on this Security, as aforesaid,
shall be made 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.
This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities"),
issued and issuable in one or more series under an Indenture,
dated as of 1, 1999 (such Indenture as originally
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executed and delivered and as supplemented or amended from time
to time thereafter, together with any constituent instruments
establishing the terms of particular Securities, being herein
called the "Indenture"), of the Company and DQE, Inc. (the
"Guarantor") to and DQE, Inc. (the "Guarantor") to The First
National Bank of Chicago, trustee (herein called the "Trustee,"
which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto
reference is hereby made for a description of the respective
rights, limitations of rights, duties and immunities of the
Company, the Trustee and the Holders of the Securities thereunder
and of the terms and conditions upon which the Securities are,
and are to be, authenticated and delivered and guaranteed. The
acceptance of this Security shall be deemed to constitute the
consent and agreement by the Holder hereof to all terms and
provisions of the Indenture. This Security is one of the series
designated above.
Interest payments on this Security shall be the amount of
interest accrued from and including the last date to which
interest has been paid or duly provided for, or, if no interest
has been paid or duly provided for, from and including the
Original Interest Accrual Date, to but excluding the next
succeeding Interest Payment Date; provided, however, that if the
interest rate on this Security is reset daily or weekly as
specified on the face hereof for the Interest Reset Period,
interest payments shall be the amount of interest accrued from
and including the most recent date to which interest has been
paid or duly provided for, or, if no interest has been paid, from
the Original Interest Accrual Date, to, but excluding, the
Regular Record Date next preceding such Interest Payment Date,
except that at Maturity the interest payable shall include
interest accrued to but excluding the date of Maturity.
Accrued interest on this Security shall be calculated by
multiplying the principal amount of this Security by an accrued
interest factor. Such accrued interest factor shall be computed
by adding the interest factors calculated for each day in the
Interest Payment Period for which accrued interest is being
calculated. The interest factor (expressed as a decimal
calculated to seven decimal places without rounding) for each
such day shall be computed by dividing the interest rate
applicable to such day by 360 if the Base Rate is the CD Rate,
the Commercial Paper Rate, the Federal Funds Rate, LIBOR or the
Prime Rate, as indicated above, or by the actual number of days
in the year if the Base Rate is the CMT Rate or the Treasury
Rate, as indicated above. For purposes of making the foregoing
calculation, the interest rate in effect on any Interest Reset
Date shall be the applicable rate as reset on such date. Unless
otherwise specified above, all percentages resulting from any
calculation of the rate of interest hereon shall be rounded, if
necessary, to the nearest 1/100,000 of 1% (.0000001), with five
one-millionths of a percentage point rounded upward, and all
dollar amounts used in or resulting from such calculation shall
be rounded to the nearest one-hundredth cent (with .005 of a cent
being rounded upward).
Except as otherwise provided herein, commencing with the
first Interest Reset Date specified above following the Original
Interest Accrual Date and thereafter upon each succeeding
Interest Reset Date specified above, the rate at which interest
on this Security is payable shall be reset daily, weekly,
monthly, quarterly, semi-annually or annually as specified above
for the Interest Reset Period, and such rate, as so reset, shall
be effective as of and for the related Interest Reset Date and
for the balance of the related Interest Reset Period to but
excluding the next succeeding Interest Reset Date. Unless
otherwise specified above, the Interest Reset Dates shall be, if
the interest rate on this Security resets daily, each Business
Day; if the interest rate on this Security (unless the Base Rate
is the Treasury Rate) resets weekly, Wednesday of each week; if
the Base Rate specified above is the Treasury Rate and resets
weekly, Tuesday of each week (except as provided below under
"Determination of Treasury Rate"); if the interest rate on this
Security resets monthly, the third Wednesday of each month; if
the interest rate on this Security resets quarterly, the third
Wednesday of March, June, September and December of each year; if
the interest rate on this Security resets semi-annually, the
third Wednesday of the two months of each year specified above;
and if the interest rate on this Security resets annually, the
third Wednesday of the month of each year specified above;
provided, however, that the interest rate in effect for the ten
days immediately prior to Maturity will be that in effect on the
tenth day preceding Maturity. If an Interest Reset Date for this
Security would otherwise be a day that is not a Business Day (as
hereinafter defined), such Interest Reset Date shall be postponed
to the next succeeding Business Day, except that, if the Base
Rate specified on the face hereof is LIBOR and such Business Day
is in the next succeeding calendar month, such Interest Reset
Date shall be the immediately preceding Business Day.
Anything herein to the contrary notwithstanding, the
interest rate hereon shall not be greater than the Maximum
Interest Rate, if any, or less than the Minimum Interest Rate, if
any, specified above. In addition, the interest rate hereon
shall in no event be higher than the maximum rate permitted by
New York law as the same may be modified by United States law of
general application.
Unless otherwise specified above, interest will be payable,
if the interest rate on this Security resets daily, weekly or
monthly, on the third Wednesday of each month or on the third
Wednesday of March, June, September and December of each year, as
specified above; if the interest rate on this Security resets
quarterly, on the third Wednesday of March, June, September and
December of each year; if the interest rate on this Security
resets semi-annually, on the third Wednesday of the two months of
each year specified above; and if the interest rate on this
Security resets annually, on the third Wednesday of the month of
each year specified above (each such day being an "Interest
Payment Date").
If any Interest Payment Date other than a Redemption Date or
the Stated Maturity would otherwise be a day that is not a
Business Day, such Interest Payment Date shall be postponed to
the next succeeding Business Day, except that, if the Base Rate
specified above is LIBOR and such next succeeding Business Day is
in the next succeeding calendar month, such Interest Payment Date
shall be the next preceding Business Day. If a Redemption Date
or the Stated Maturity shall not be a Business Day, payment of
the amounts due on this Security on such date in respect of
principal, premium, if any, and/or interest may be made on the
next succeeding Business Day; and if payment is made or duly
provided for on such Business Day, no interest shall accrue on
such amounts for the period from and after such Redemption Date
or Stated Maturity, as the case may be, to such Business Day.
The Company will appoint, and enter into an agreement with,
an agent (the "Calculation Agent") to calculate the interest
rates on floating rate Securities (including this Security).
Unless otherwise specified above, shall be
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the Calculation Agent. All determinations of interest rates by
the Calculation Agent shall, in the absence of manifest error, be
conclusive for all purposes and binding on the Holder hereof.
Subject to applicable provisions of law and except as
otherwise specified herein, on each Interest Reset Date the rate
of interest shall be determined in accordance with the provisions
of the applicable heading below.
Determination of CD Rate If the Base Rate specified above
is the CD Rate, this Security shall bear interest for each
Interest Reset Period at an interest rate calculated with
reference to the CD Rate, determined as set forth below, and the
Spread or Spread Multiplier, if any, and subject to the Maximum
Interest Rate, if any, and the Minimum Interest Rate, if any,
specified above.
The "CD Rate" for each Interest Reset Period shall be
determined by the Calculation Agent on the Calculation Date (as
hereinafter defined) and shall be (a) the rate (expressed as a
percentage per annum) as of the second Business Day prior to the
related Interest Reset Date (a "CD Rate Determination Date") for
negotiable certificates of deposit having the Index Maturity
specified above as published in H.15(519) under the heading "CDs
(Secondary Market)", or (b) if such rate is not so published by
9:00 A.M., New York City time, on the Calculation Date, the rate
as of such CD Rate Determination Date for negotiable
certificates of deposit of the Index Maturity specified above as
published in Composite Quotations (as hereinafter defined), or
(c) if neither of such rates is published by 3:00 P.M., New York
City time, on the Calculation Date, the arithmetic mean of the
secondary market offered rates as of 10:00 A.M., New York City
time, on such CD Rate Determination Date for certificates of
deposit in an amount that is representative of a single
transaction at that time with a remaining maturity closest to the
Index Maturity specified above of three leading nonbank dealers
in negotiable U.S. dollar certificates of deposit in The City of
New York selected by the Calculation Agent, in its discretion
(after consultation with the Company); provided, however, that if
the dealers selected as aforesaid by the Calculation Agent are
not quoting as described in clause (c) above, the CD Rate for
such Interest Reset Period shall be the same as the CD Rate for
the immediately preceding Interest Reset Period (or, if there was
no such previous Interest Reset Period, the rate of interest
hereon for such Interest Reset Period shall be the Initial
Interest Rate).
Determination of CMT Rate If the Base Rate specified above
is the CMT Rate, this Security shall bear interest for each
Interest Reset Period at a rate calculated with reference to the
CMT Rate, determined as set forth below, and the Spread or Spread
Multiplier, if any, and subject to the Maximum Interest Rate, if
any, and the Minimum Interest Rate, if any, specified above.
The "CMT Rate" for each Interest Reset Period shall be
determined by the Calculation Agent on the Calculation Date and
shall be the rate (expressed as a percentage per annum) displayed
on the Designated CMT Telerate Page (as defined below) under the
caption "...Treasury Constant Maturities... Federal Reserve Board
Release H.15...Mondays Approximately 3:45 p.m." under the column
for the Designated CMT Maturity Index (as defined below) for
(a)(i) if the Designated CMT Telerate Page is 7055, the second
Business Day prior to the related Interest Reset Date (a "CMT
Rate Determination Date") or (ii) if the Designated CMT Telerate
Page is 7052, the week or the month, as applicable, ended
immediately preceding the week in which such CMT Rate
Determination Date occurs, or (b) if such rate is no longer
displayed on the relevant page, or if not displayed by 3:00 p.m.,
New York City time on the Calculation Date, the Treasury Constant
Maturity rate for the Designated CMT Maturity Index as published
in H.15(519), or (c) if such rate is no longer published or, if
not published by 3:00 p.m., New York City time, on the
Calculation Date, the Treasury Constant Maturity rate for the
Designated CMT Maturity Index (or other United States Treasury
rate for the Designated CMT Maturity Index) for such CMT Rate
Determination Date as may then be published by either the Board
of Governors of the Federal Reserve System or the United States
Department of the Treasury that the Calculation Agent determines
to be comparable to the rate formerly displayed on the Designated
CMT Telerate Page and published in H.15(519), or (d) if such
information is not provided by 3:00 p.m., New York City time, on
the Calculation Date, then the CMT Rate for the CMT Rate
Determination Date shall be a yield to maturity, based on the
arithmetic mean of the secondary market closing offer side prices
as of approximately 3:30 p.m., New York City time, on the CMT
Rate Determination Date reported, according to their written
records, by three leading primary United States government
securities dealers (each, a "Reference Dealer") in The City of
New York selected by the Calculation Agent (from five such
Reference Dealers selected by the Calculation Agent, in its
discretion (after consultation with the Company), and eliminating
the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality,
one of the lowest)), for the most recently issued direct
noncallable fixed rate obligations of the United States
("Treasury notes") with an original maturity of approximately the
Designated CMT Maturity Index and a remaining term to maturity of
not less than such Designated CMT Maturity Index minus one year,
or (e) if the Calculation Agent cannot obtain three such Treasury
notes quotations, a yield to maturity based on the arithmetic
mean of the secondary market offer side prices as of
approximately 3:30 p.m., New York City time, on the CMT Rate
Determination Date of three Reference Dealers in The City of New
York (from five such Reference Dealers selected by the
Calculation Agent, in its discretion (after consultation with the
Company), and eliminating the highest quotation (or, in the event
of equality, one of the highest) and the lowest quotation (or, in
the event of equality, one of the lowest)), for Treasury notes
with an original maturity of the number of years that is the next
highest to the Designated CMT Maturity Index and a remaining term
to maturity closest to the Designated CMT Maturity Index and in
an amount of at least $100 million, or (f) if three or four (and
not five) of such Reference dealers are quoting as described
above, the arithmetic mean of the offer prices obtained without
the elimination of either the highest or the lowest of such
quotes; provided, however, that if fewer than three Reference
Dealers selected by the Calculation Agent are quoting as
described above, the CMT Rate for such Interest Reset Period will
be the same as the CMT Rate for the immediately preceding
Interest Reset Period (or, if there was no such previous Interest
Reset Period, the rate of interest hereon for such Interest Reset
Period shall be the Initial Interest Rate). For purposes of
clause (e) in the first sentence of this paragraph, if two
Treasury notes have remaining terms to maturity equally close to
the Designated CMT Maturity Index, the quotes for the Treasury
note with the shorter remaining term to maturity shall be used.
"Designated CMT Maturity Index" shall be the original period
to maturity of the U.S. Treasury securities (either 1, 2, 3, 5,
7, 10, 20 or 30 years) specified above with respect to which the
CMT Rate will be calculated. If no such maturity is specified
above, the Designated CMT Maturity Index shall be 2 years.
"Designated CMT Telerate Page" means the display on the Dow
Jones Market service (formerly known as the Dow Jones Telerate
Service) on the page specified above (or any other page as may
replace such page on that service, or any successor service, for
the purpose of displaying Treasury Constant Maturities as
reported in H.15(519)), for the purpose of displaying Treasury
Constant Maturities as reported in H.15(519). If no such page is
specified above, the page shall be 7052, for the most recent
week.
Determination of Commercial Paper Rate If the Base Rate
specified above is the Commercial Paper Rate, this Security shall
bear interest for each Interest Reset Period at a rate calculated
with reference to the Commercial Paper Rate, determined as set
forth below, and the Spread or Spread Multiplier, if any, and
subject to the Maximum Interest Rate, if any, and the Minimum
Interest Rate, if any, specified above.
The "Commercial Paper Rate" for each Interest Reset Period
shall be determined by the Calculation Agent on the Calculation
Date and shall be (a) the Money Market Yield (as hereinafter
defined) as of the second Business Day prior to the related
Interest Reset Date (a "Commercial Paper Rate Determination
Date") of the rate (expressed as a percentage per annum) for
commercial paper having the Index Maturity specified above, as
such rate shall be published in H.15(519) (as hereinafter
defined) under the heading "Commercial Paper - Nonfinancial", or
(b) if such rate is not so published prior to 9:00 a.m., New York
City time, on the Calculation Date, the Money Market Yield as of
such Commercial Paper Rate Determination Date of the rate for
commercial paper of the Index Maturity as published in Composite
Quotations (as hereinafter defined) under the heading "Commercial
Paper", or (c) if none of such rates is published by 3:00 p.m.,
New York City time, on the Calculation Date, the Money Market
Yield of the arithmetic mean of the offered rates, as of 11:00
a.m., New York City time, on such Commercial Paper Rate
Determination Date, of three leading dealers in commercial paper
in The City of New York selected by the Calculation Agent, in its
discretion (after consultation with the Company), for commercial
paper of the Index Maturity placed for a nonfinancial issuer
whose bond rating is "AA," or the equivalent, from a nationally
recognized statistical rating organization; provided, however,
that if the dealers selected as aforesaid are not quoting offered
rates as described in clause (c) above, the Commercial Paper Rate
for such Interest Reset Period shall be deemed to be the same as
the Commercial Paper Rate for the preceding Interest Reset Period
(or, if there was no such previous Interest Reset Period, the
rate of interest hereon for such Interest Reset Period shall be
the Initial Interest Rate).
"Money Market Yield" shall be a yield calculated in
accordance with the following formula:
Money Market Yield = D x 360 x 100
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360 - (D x M)
where "D" refers to the applicable per annum rate for commercial
paper quoted on a bank discount basis and expressed as a decimal,
and "M" refers to the actual number of days in the Index Maturity
specified above.
Determination of Federal Funds Rate If the Base Rate
specified above is the Federal Funds Rate, this Security shall
bear interest for each Interest Reset Period at a rate calculated
with reference to the Federal Funds Rate, determined as set forth
below, and the Spread or Spread Multiplier, if any, and subject
to the Maximum Interest Rate, if any, and the Minimum Interest
Rate, if any, specified above.
The "Federal Funds Rate" for each Interest Reset Period
shall be determined by the Calculation Agent on the Calculation
Date and shall be (a) the rate (expressed as a percentage per
annum) as of the second Business Day prior to the related
Interest Reset Date (a "Federal Funds Rate Determination Date")
for Federal funds as published in H.15(519) under the heading
"Federal Funds (Effective)", or (b) if such rate is not so
published by 9:00 A.M., New York City time, on the Calculation
Date, the rate on such Federal Funds Rate Determination Date as
published in Composite Quotations under the heading "Federal
Funds/Effective Rate", or (c) if neither of such rates is
published by 3:00 P.M., New York City time, on the Calculation
Date, the arithmetic mean of the rates for the last transaction
in overnight Federal funds as of 11:00 A.M., New York City time,
on such Federal Funds Rate Determination Date arranged by three
leading brokers in Federal Funds transactions in The City of New
York selected by the Calculation Agent, in its discretion (after
consultation with the Company); provided, however, that if the
brokers selected as aforesaid by the Calculation Agent are not
quoting as described in clause (c) above, the Federal Funds Rate
for such Interest Reset Period shall be the same as the Federal
Funds Rate for the immediately preceding Interest Reset Period
(or, if there was no such previous Interest Reset Period, the
rate of interest hereon for such Interest Reset Period shall be
the Initial Interest Rate).
Determination of LIBOR If the Base Rate specified above is
LIBOR, this Security shall bear interest for each Interest Reset
Period at a rate calculated with reference to LIBOR, determined
as set forth below, and the Spread or Spread Multiplier, if any,
and subject to the Maximum Interest Rate, if any, and the Minimum
Interest Rate, if any, specified above.
"LIBOR" for each Interest Reset Period shall be determined
by the Calculation Agent and shall be:
(a)(i) if "LIBOR Reuters" is specified above as the
Reporting Service, the arithmetic mean of the offered rates
(unless the specified Designated LIBOR Page (as hereinafter
defined) by its terms provides only for a single rate, in
which case such single rate shall be used) for deposits in
the Index Currency specified above in the London interbank
market, for the period of the Index Maturity specified above
commencing on the related Interest Reset Date for such
Interest Reset Period, which appear or appears on the
Designated LIBOR Page at approximately 11:00 a.m., London
time, on the second London Banking Day (as hereinafter
defined) prior to such Interest Reset Date (a "LIBOR
Determination Date"), or (ii) if "LIBOR Telerate" is
specified above as the Reporting Service, the rate for
deposits in the Index Currency, for the period of the Index
Maturity commencing on such Interest Reset Date (or, if the
pound sterling is the Index Currency, commencing on the
LIBOR Determination Date) that appears on the Designated
LIBOR Page at approximately 11:00 a.m., London time, on such
LIBOR Determination Date;
(b) with respect to a LIBOR Determination Date on
which fewer than two offered rates appear (if "LIBOR
Reuters" is specified above as the Reporting Service and
calculation of LIBOR is based on the arithmetic mean of the
offered rates) or on which no rate appears (if the Reporting
Service specified above is either (x) "LIBOR Reuters" and
the Designated LIBOR Page by its terms provides only for a
single rate or (y) "LIBOR Telerate"), the Calculation Agent
shall request the principal London office of each of four
major reference banks in the London interbank market
selected by the Calculation Agent, in its discretion (after
consultation with the Company), to provide the Calculation
Agent with its offered quotations for deposits in the Index
Currency, for the period of the Index Maturity commencing on
the Interest Reset Date (or, if the pound sterling is the
Index Currency, commencing on the LIBOR Determination Date)
for such Interest Reset Period and in a principal amount
equal to an amount of not less than U.S.$1 million (or the
equivalent amount in the Index Currency) that is
representative of a single transaction in the Index Currency
in such market at such time, to prime banks in the London
interbank market at approximately 11:00 a.m., London time,
on such LIBOR Determination Date; if at least two such
quotations are provided, LIBOR, in respect of such LIBOR
Determination Date, shall be the arithmetic mean of such
quotations;
(c) if fewer than two such quotations are so provided,
LIBOR in respect of such LIBOR Determination Date shall be
the arithmetic mean of the rates quoted by three major banks
in the applicable Principal Financial Center for the country
of the Index Currency on such LIBOR Determination Date
selected by the Calculation Agent, in its discretion (after
consultation with the Company), at approximately 11:00 a.m.
on such LIBOR Determination Date, for loans in the Index
Currency to leading European banks, for the period of the
Index Maturity commencing on the Interest Reset Date (or, if
the pound sterling is the Index Currency, commencing on the
LIBOR Determination Date) for such Interest Reset Period and
in a principal amount of not less than U.S.$1 million (or
the equivalent amount in the Index Currency) that is
representative of a single transaction in the Index Currency
in such market at such time; provided, however, that if
fewer than three banks selected as aforesaid by the
Calculation Agent are quoting rates described in this
clause (c), LIBOR for such Interest Reset Period shall be
the same as LIBOR for the immediately preceding Interest
Reset Period (or, if there was no such previous Interest
Reset Period, the rate of interest hereon for such Interest
Reset Period shall be the Initial Interest Rate).
"Designated LIBOR Page" means (x) if "LIBOR Reuters" is
specified above as the Reporting Service, the display on the
Reuters monitor money rates service (or any successor service)
for the purpose of displaying the London interbank rates of major
banks for the applicable Index Currency, or (y) if "LIBOR
Telerate" is specified above as the Reporting Service, the
display on the Dow Jones Market service (formerly known as the
Dow Jones Telerate Service), or any successor service, for the
purpose of displaying the London interbank rates of major banks
for the Index Currency. If neither LIBOR Reuters nor LIBOR
Telerate is specified above as the Reporting Service, LIBOR shall
be determined as if LIBOR Telerate Page 3750 had been specified.
"Index Currency" means the currency (including any composite
currency) so specified above. If no such currency is so
specified above, "Index Currency" means U.S. dollars.
"LIBOR Telerate Page 3750" means the display designated as
"Page 3750" on the Dow Jones Market service (formerly known as
the Dow Jones Telerate Service), or such other page as may
replace Page 3750 on such service or such other successor service
or services as may be nominated by the British Bankers'
Association as the information vendor for the purpose of
displaying London interbank offered rates for U.S. dollar
deposits.
"Principal Financial Center" will be, for purposes of clause
(c) above, the principal financial center of the country of the
specified Index Currency, which generally will be the capital
city of such country, except that with respect to U.S. Dollars,
Deutsche Marks and Euros, the Principal Financial Center shall be
the City of New York, Frankfurt or Brussels, as the case may be.
Determination of Prime Rate If the Base Rate specified
above is the Prime Rate, this Security shall bear interest for
each Interest Rest Period at a rate calculated with reference to
the Prime Rate, determined as set forth below, and the Spread or
Spread Multiplier, if any, and subject to the Maximum Interest
Rate, if any, and the Minimum Interest Rate, if any, specified
above.
The "Prime Rate" for each Interest Reset Period shall be
determined by the Calculation Agent on the Calculation Date and
shall be (a) the rate (expressed as a percentage per annum) as of
the second Business Day prior to the related Interest Reset Date
(a "Prime Rate Determination Date") set forth in H.15(519)
opposite the caption "Bank Prime Loan", or (b) if such rate is
not so published prior to 3:00 p.m., New York City time, on the
Calculation Date, the arithmetic mean of the rates publicly
announced by each bank named on the Reuters Screen USPRIME1 Page
(as defined below) as such bank's prime rate or base lending rate
as in effect on such Prime Rate Determination Date as quoted on
the Reuters Screen USPRIME1 Page on such Prime Rate Determination
Date or (c) if fewer than four such rates appear on the Reuters
Screen USPRIME1 Page for such Prime Rate Determination Date, the
arithmetic mean of the prime rates quoted on the basis of the
actual number of days in the year divided by 360 as of the close
of business on such Prime Rate Determination Date by at least two
of three major money center banks in The City of New York
selected by the Calculation Agent, in its discretion (after
consultation with the Company), from which quotations are
requested; provided, however, that if fewer than two such prime
rates are so quoted by major money center banks as aforesaid,
there shall be included in the group of rates whose arithmetic
mean is to be so determined the prime rates or base lending
rates, as of such Prime Rate Determination Date, of that number
of substitute banks or trust companies organized and doing
business under the laws of the United States, or any State
thereof, in each case having total equity capital of at least
U.S. $500 million and being subject to supervision or examination
by Federal or State authority, selected by the Calculation Agent,
in its discretion (after consultation with the Company), which,
when added to the number of rates provided by major money center
banks as aforesaid, shall equal two.
If in any calendar month the Prime Rate is not published in
H.15(519) and the banks or trust companies selected as aforesaid
are not quoting as described in the preceding paragraph, the
"Prime Rate" for the applicable Interest Reset Period shall be
Prime Rate for the immediately preceding Interest Reset Period
(or, if there was no such previous Interest Reset Period, the
rate of interest hereon for such Interest Reset Period shall be
the Initial Interest Rate).
"Reuters Screen USPRIME1 Page" means the display designated
as Page "USPRIME1" on the Reuters monitor money rates service (or
such other page as may replace the USPRIME1 Page on that service
for the purpose of displaying prime rates or base lending rates
of major United States banks).
Determination of Treasury Rate If the Base Rate specified
above is the Treasury Rate, this Security shall bear interest for
each Interest Reset Period at a rate calculated with reference to
the Treasury Rate, determined as set forth below, and the Spread
or Spread Multiplier, if any, and subject to the Maximum Interest
Rate, if any, and the Minimum Interest Rate, if any, specified
above.
The "Treasury Rate" for each Interest Reset Period shall be
determined by the Calculation Agent on the Calculation Date and
shall be (a) the rate (expressed as a percentage per annum) for
the auction held on the Treasury Rate Determination Date (as
hereinafter defined) for such Interest Reset Period of direct
obligations of the United States ("Treasury bills") having the
Index Maturity specified above, as such rate shall be published
in H.15(519) under the heading "U.S. Government Securities -
Treasury bills - auction average (investment)", or (b) if such
rate is not published prior to 9:00 a.m., New York City time, on
the Calculation Date, the auction average rate (expressed as a
bond equivalent on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) on such Treasury Rate
Determination Date as otherwise announced by the United States
Department of Treasury, or (c) if the results of the auction of
Treasury bills having such Index Maturity are not published or
reported as provided above by 3:00 p.m., New York City time, on
the Calculation Date, or if no such auction is held on such
Treasury Rate Determination Date, a yield to maturity (expressed
as a bond equivalent on the basis of a year of 365 or 366 days,
as applicable, and applied on a daily basis) of the arithmetic
mean of the secondary market bid rates, as of approximately 3:30
p.m., New York City time, on such Treasury Rate Determination
Date, of three leading primary United States government
securities dealers selected by the Calculation Agent, in its
discretion (after consultations with the Company), for the issue
of Treasury bills with a remaining maturity closest to such Index
Maturity; provided, however, that if the dealers selected as
aforesaid by the Calculation Agent are not quoting bid rates as
described in clause (c) above, then the "Treasury Rate" for such
Interest Reset Period shall be deemed to be the same as the
Treasury Rate for the immediately preceding Interest Reset Period
(or, if there was no such previous Interest Reset Period, the
rate of interest hereon for such Interest Reset Period shall be
the Initial Interest Rate).
The "Treasury Rate Determination Date" for each Interest
Reset Period shall be the day of the week in which the Interest
Reset Date for such Interest Reset Period falls on which Treasury
bills would normally be auctioned. (As of the Original Interest
Accrual Date, Treasury bills are normally sold at auction on
Monday of each week, unless that day is a legal holiday, in which
case the auction is normally held on the following Tuesday,
except that such auction may be held on the preceding Friday.)
If, as the result of a legal holiday, an auction is so held on
the preceding Friday, such Friday shall be the Treasury Rate
Determination Date pertaining to the Interest Reset Period
commencing in the next succeeding week. If an auction date shall
fall on any day that would otherwise be an Interest Reset Date
for a Treasury Rate Note, then such Interest Reset Date shall
instead be the Business Day immediately following such auction
date.
If, as specified above, this Security is redeemable, this
Security is subject to redemption at any time on or after the
Initial Redemption Date specified above, as a whole or in part,
at the election of the Company, at the applicable redemption
price (as described below) plus accrued interest to the date
fixed for redemption. Such redemption price shall be the Initial
Redemption Price specified above for the twelve-month period
commencing on the Initial Redemption Date and shall decline for
the twelve-month period commencing on each anniversary of the
Initial Redemption Date by a percentage of principal amount equal
to the Reduction Percentage specified above until such redemption
price is 100% of the principal amount of this Security to be
redeemed.
Notwithstanding the foregoing, the Company may not, prior to
the Redemption Limitation Date, if any, specified above, redeem
this Security 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) less than the effective
interest cost to the Company (similarly calculated) of this
Security.
[Insert provisions, if any, for redemption pursuant to a
sinking fund or analogous provision or at the option of the
Holder.]
Notice of redemption [(other than at the election of the
Holder)] shall be given by mail to Holders of Securities, not
less than 30 days nor more than 60 days prior to the date fixed
for redemption, all as provided in the Indenture. As provided in
the Indenture, notice of redemption at the election of the
Company as aforesaid may state that such redemption shall be
conditional upon the receipt by the Trustee of money sufficient
to pay the principal of and premium, if any, and interest, if
any, on this Security on or prior to the date fixed for such
redemption; a notice of redemption so conditioned shall be of no
force or effect if such money is not so received and, in such
event, the Company shall not be required to redeem this Security.
In the event of redemption of this Security in part only, a
new Security or Securities of this series, of like tenor, for the
unredeemed portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing, the
principal of this Security may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the Trustee to enter into one or more supplemental
indentures for the purpose of adding any provisions to, or
changing in any manner or eliminating any of the provisions of,
the Indenture with the consent of the Holders of not less than a
majority in aggregate principal amount of the Securities of all
series then Outstanding under the Indenture, considered as one
class; provided, however, that if there shall be Securities of
more than one series Outstanding under the Indenture and if a
proposed supplemental indenture shall directly affect the rights
of the Holders of Securities of one or more, but less than all,
of such series, then the consent only of the Holders of a
majority in aggregate principal amount of the Outstanding
Securities of all series so directly affected, considered as one
class, shall be required; and provided, further, that if the
Securities of any series shall have been issued in more than one
Tranche and if the proposed supplemental indenture shall directly
affect the rights of the Holders of Securities of one or more,
but less than all, of such Tranches, then the consent only of the
Holders of a majority in aggregate principal amount of the
Outstanding Securities of all Tranches so directly affected,
considered as one class, shall be required; and provided,
further, that the Indenture permits the Trustee to enter into one
or more supplemental indentures for limited purposes without the
consent of any Holders of Securities. The Indenture also
contains provisions permitting the Holders of a majority in
principal amount of the Securities then Outstanding, on behalf of
the Holders of all Securities, to waive compliance by the Company
with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange therefor or in
lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
As provided in the Indenture and subject to certain
limitations therein set forth, this Security or any portion of
the principal amount hereof will be deemed to have been paid for
all purposes of the Indenture and to be no longer Outstanding
thereunder, and, at the election of the Company, the Company's
entire indebtedness in respect thereof will be satisfied and
discharged, if there has been irrevocably deposited with the
Trustee or any Paying Agent (other than the Company), in trust,
money in an amount which will be sufficient and/or Eligible
Obligations, the principal of and interest on which when due,
without regard to any reinvestment thereof, will provide moneys
which, together with moneys so deposited, will be sufficient to
pay when due the principal of and interest on this Security when
due.
The Indenture contains terms, provisions and conditions
relating to the consolidation or merger of the Company or the
Guarantor with or into, and the conveyance or other transfer, or
lease, of assets to, another Person, to the assumption by such
other Person, in certain circumstances, of all of the obligations
of the Company or the Guarantor under the Indenture and on the
Securities and to the release and discharge of the Company and
the Guarantor, in certain circumstances, from such obligation.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is
registrable in the Security Register, upon surrender of this
Security for registration of transfer at the corporate trust
office of The First National Bank of Chicago in Chicago, Illinois
or such other office or agency as may be designated by the
Company from time to time, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder
hereof or his attorney duly authorized in writing, and thereupon
one or more new Securities of this series of authorized
denominations and of like tenor and aggregate principal amount,
will be issued to the designated transferee or transferees.
The Securities of this series are issuable only as
registered Securities, without coupons, and in denominations of
$1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate
principal amount of Securities of the same series and Tranche, of
any authorized denominations, as requested by the Holder
surrendering the same, and of like tenor upon surrender of the
Security or Securities to be exchanged at the corporate trust
office of The First National Bank of Chicago in Chicago, Illinois
or such other office or agency as may be designated by the
Company from time to time.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due surrender of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Security
is registered as the absolute owner hereof for all purposes
(subject to Section 307 of the Indenture), whether or not this
Security be overdue, and neither the Company, the Trustee nor any
such agent shall be affected by notice to the contrary.
The Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York,
except to the extent that the Trust Indenture Act shall be
applicable.
As used herein,
(1) "Business Day" means any day, other than a Saturday or
Sunday, which is (a) not a day on which banking
institutions or trust companies in The City of New
York, New York or other city in which is located any
office or agency maintained for the payment of
principal of or premium, if any, or interest on this
Security, are authorized or required by law, regulation
or executive order to remain closed and (b) if the Base
Rate specified above is LIBOR, a London Banking Day.
"London Banking Day" means any day on which dealings in
deposits in the Index Currency, if any, specified above
are transacted in the London Interbank market;
(2) "Calculation Date", with respect to a Rate
Determination Date, means the earlier of (a) the tenth
calendar day after such Rate Determination Date, or, if
such day is not a Business Day, the next succeeding
Business Day, and (b) the Business Day next preceding
the related Interest Payment Date or the Maturity Date,
as the case may be;
(3) "Composite Quotations" means the daily statistical
release entitled "Composite 3:30 p.m. Quotations for
U.S. Government Securities," or any successor release,
published by the Federal Reserve Bank of New York;
(4) "H.15(519)" means the publication entitled "Statistical
Release H.15(519)," Selected Interest Rates, or any
successor publication, published by the Board of
Governors of the Federal Reserve System; and
(5) "Rate Determination Date" means, as applicable, a "CD
Rate Determination Date", a "CMT Rate Determination
Date", a "Commercial Paper Rate Determination Date", a
"Federal Funds Rate Determination Date", a "LIBOR
Determination Date", a "Prime Rate Determination Date"
or a "Treasury Rate Determination Date".
All other terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
As provided in the Indenture, no recourse shall be had for
the payment of the principal of or premium, if any, or interest
on any Securities or any Guaranties, or any part of either
thereof, or for any claim based thereon or otherwise in respect
thereof, or of the indebtedness represented thereby, or upon any
obligation, covenant or agreement under the Indenture, against,
and no personal liability whatsoever shall attach to, or be
incurred by, any incorporator, shareholder, officer or director,
as such, past, present or future of the Company or the Guarantor
or of any predecessor or successor corporation (either directly
or through the Company or the Guarantor, as the case may be, or a
predecessor or successor corporation) of either thereof, whether
by virtue of any constitutional provision, statute or rule of
law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly agreed and understood that the
Indenture and all the Securities and the Guaranties endorsed
thereon are solely corporate obligations and that any such
personal liability is hereby expressly waived and released as a
condition of, and as part of the consideration for, the execution
of the Indenture and the issuance of the Securities and the
Guaranties.
Unless the certificate of authentication hereon has been
executed by the Trustee or an Authenticating Agent by manual
signature, this Security shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument
to be duly executed.
DQE CAPITAL CORPORATION
By:
------------------------------------------
[Title]
<PAGE>
GUARANTY
DQE, Inc., a corporation organized under the laws of the
Commonwealth of Pennsylvania (the "Guarantor", which term
includes any successor under the Indenture (the "Indenture")
referred to in the Security upon which this Guarantee is
endorsed), for value received, hereby unconditionally guarantees
to the Holder of the Security upon which this Guaranty is
endorsed, the due and punctual payment of the principal of and
premium, if any, and interest, if any, on such Security when and
as the same shall become due and payable, whether at the Stated
Maturity, by declaration of acceleration, call for redemption, or
otherwise, in accordance with the terms of such Security and of
the Indenture. In case of the failure of DQE Capital
Corporation, a corporation organized under the laws of the State
of Delaware (the "Company", which term includes any successor
under the Indenture), punctually to make any such payment, the
Guarantor shall cause such payment to be made punctually when and
as the same shall become due and payable, as aforesaid, as if
such payment were made by the Company.
The obligations of the Guarantor hereunder shall be absolute
and unconditional irrespective of, and shall be unaffected by,
any invalidity, irregularity or unenforceability of such Security
or the Indenture, any failure to enforce the provisions of such
Security or the Indenture, or any waiver, modification or
indulgence granted to the Company with respect thereto, by the
Holder of such Security or the Trustee or any other circumstance
which may otherwise constitute a legal or equitable discharge or
defense of a surety or guarantor; provided, however, that
notwithstanding the foregoing, no such waiver, modification or
indulgence shall, without the consent of the Guarantor, increase
the principal amount of such Security, or increase the interest
rate thereon, or change any redemption provisions thereof
(including any change to increase any premium payable upon
redemption thereof) or change the Stated Maturity thereof, or
increase the principal amount of any Discount Security that would
be due and payable upon a declaration of acceleration of the
maturity thereof pursuant to Article Seven of the Indenture.
The Guarantor hereby waives the benefits of diligence,
presentment, demand for payment, any requirement that the Trustee
or the Holder of such Security exhaust any right or take any
action against the Company or any other Person, filing of claims
with a court in the event of insolvency or bankruptcy of the
Company, any right to require a proceeding first against the
Company, protest or notice with respect to such Security or the
indebtedness evidenced thereby and all demands whatsoever, and
covenants that this Guaranty will not be discharged in respect of
such Security except by complete performance of the obligations
contained in such Security and in this Guaranty. This Guaranty
shall constitute a guaranty of payment and not of collection.
The Guarantor hereby agrees that, in the event of a default in
payment of principal of, or premium, if any, or interest, if any,
on such Security, whether at its Stated Maturity, by declaration
of acceleration, call for redemption, or otherwise, legal
proceedings may be instituted by the Trustee on behalf of, or by,
the Holder of such Security, subject to the terms and conditions
set forth in the Indenture, directly against the Guarantor to
enforce this Guaranty without first proceeding against the
Company.
The obligations of the Guarantor hereunder with respect to
such Security shall be continuing and irrevocable until the date
upon which the entire principal of and premium, if any, and
interest, if any, on such Security have been, or have been deemed
pursuant to the provisions of Article Seven of the Indenture to
have been, paid in full or otherwise discharged.
The Guarantor shall be subrogated to all rights of the
Holder of such Security against the Company in respect of any
amounts paid by the Guarantor on account of such Security
pursuant to the provisions of this Guaranty or the Indenture;
provided, however, that the Guarantor shall not be entitled to
enforce or to receive any payments arising out of, or based upon,
such right of subrogation until the principal of and premium, if
any, and interest, if any, on all Securities issued under the
Indenture shall have been paid in full.
This Guaranty shall remain in full force and effect and
continue notwithstanding any petition filed by or against the
Company for liquidation or reorganization, the Company becoming
insolvent or making an assignment for the benefit of creditors or
a receiver or trustee being appointed for all or any significant
part of the Company's assets, and shall, to the fullest extent
permitted by law, continue to be effective or reinstated, as the
case may be, if at any time payment of the Security upon which
this Guaranty is endorsed, is, pursuant to applicable law,
rescinded or reduced in amount, or must otherwise be restored or
returned by the Holder of such Security, whether as a "voidable
preference", "fraudulent transfer", or otherwise, all as though
such payment or performance had not been made. In the event that
any payment, or any part thereof, is rescinded, reduced, restored
or returned, such Security shall, to the fullest extent permitted
by law, be reinstated and shall be deemed paid only to the extent
of the amount paid and not so rescinded, reduced, restored or
returned.
This Guaranty shall not be valid or obligatory for any
purpose until the certificate of authentication of the Security
upon which this Guaranty is endorsed shall have been manually
executed by or on behalf of the Trustee under the Indenture.
All terms used in this Guaranty which are defined in such
Indenture shall have the meanings assigned to them in such
Indenture.
This Guaranty shall be governed by and construed in
accordance with the laws of the State of New York, except to the
extent that the Trust Indenture Act shall be applicable.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty
to be executed as of the date first written above.
DQE, INC.
By:
---------------------------
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
Dated:
---------------------
THE FIRST NATIONAL BANK OF OR THE FIRST NATIONAL BANK OF
CHICAGO CHICAGO
AS TRUSTEE AS TRUSTEE
By: BY:[ ],
---------------------------- -------------------------
Authorized Officer AS AUTHENTICATING
AGENT
By:
---------------------------
Authorized Officer
<PAGE>
THIS SECURITY MAY NOT BE TRANSFERRED OR EXCHANGED, NOR MAY
ANY PURPORTED TRANSFER BE REGISTERED, EXCEPT (I) THIS SECURITY
MAY BE TRANSFERRED IN WHOLE, AND APPROPRIATE REGISTRATION OF
TRANSFER EFFECTED, IF SUCH TRANSFER IS BY CEDE & CO., AS NOMINEE
FOR THE DEPOSITORY TRUST COMPANY (THE "DEPOSITARY"), TO THE
DEPOSITARY, OR BY THE DEPOSITARY TO ANOTHER NOMINEE THEREOF, OR
BY ANY NOMINEE OF THE DEPOSITARY TO ANY OTHER NOMINEE THEREOF, OR
BY THE DEPOSITARY OR ANY NOMINEE THEREOF TO ANY SUCCESSOR
SECURITIES DEPOSITARY OR ANY NOMINEE THEREOF; AND (II) THIS
SECURITY MAY BE EXCHANGED FOR DEFINITIVE SECURITIES REGISTERED IN
THE RESPECTIVE NAMES OF THE BENEFICIAL HOLDERS HEREOF, AND
THEREAFTER SHALL BE TRANSFERABLE WITHOUT RESTRICTIONS IF: (A) THE
DEPOSITARY, OR ANY SUCCESSOR SECURITIES DEPOSITARY, SHALL HAVE
NOTIFIED THE COMPANY AND THE TRUSTEE THAT IT IS UNWILLING OR
UNABLE TO CONTINUE TO ACT AS SECURITIES DEPOSITARY WITH RESPECT
TO THE SECURITIES AND THE TRUSTEE SHALL NOT HAVE BEEN NOTIFIED BY
THE COMPANY WITHIN NINETY (90) DAYS OF THE IDENTITY OF A
SUCCESSOR SECURITIES DEPOSITARY WITH RESPECT TO THE SECURITIES;
OR (B) THE COMPANY SHALL HAVE DELIVERED TO THE TRUSTEE A COMPANY
ORDER TO THE EFFECT THAT THE SECURITIES SHALL BE SO EXCHANGEABLE
ON AND AFTER A DATE SPECIFIED THEREIN.
-----------------------
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
-----------------------------------------------------------------
[please insert social security or other identifying number of
assignee]
-----------------------------------------------------------------
[please print or typewrite name and address of assignee]
-----------------------------------------------------------------
the within Security of DQE CAPITAL and does hereby irrevocably
constitute and appoint , Attorney, to
---------------------------
transfer said Security on the books of the within-mentioned
Company, with full power of substitution in the premises.
Dated:
--------------
----------------------------------------------------
Notice: The signature to this assignment must correspond with
the name as written upon the face of the Security in every
particular without alteration or enlargement or any change
whatsoever.
411 Seventh Avenue
P.O. Box 1930
Pittsburgh, Pennsylvania 15230-1930
Phone: 412 393-6000
Fax: 412 393-6645
Writer's DIRECT DIAL Number:
(412) 393-6443
June 10, 1999
DQE, Inc.
411 Seventh Avenue
Pittsburgh, Pennsylvania 15219
DQE Capital Corporation
411 Seventh Avenue
Pittsburgh, Pennsylvania 15219
Gentlemen/Ladies:
I am Associate General Counsel of DQE, Inc. (the "Guarantor") and
have acted as counsel to the Guarantor and DQE Capital
Corporation ("the Company") in connection with (i) the proposed
issuance and sale by the Company from time to time of up to
$250,000,000 in aggregate principal amount of its Debt Securities
(the "Debt Securities") and (ii) the proposed guaranty by the
Guarantor of the payment of the principal of and premium, if any,
and interest, if any, on such Debt Securities (the "Guaranty"),
the Debt Securities and the Guaranty to be issued under the
Indenture (the "Indenture"), to be entered into by the Company,
the Guarantor and The First National Bank of Chicago (the "Trustee"),
as contemplated by the Registration Statement on Form S-3 (the
"Registration Statement") proposed to be filed by the Company and
the Guarantor with the Securities and Exchange Commission on or
about the date hereof for the registration of the Debt Securities
and the Guaranty under the Securities Act of 1933, as amended
(the "Act"), and for the qualification of the Indenture under the
Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act").
I am of the opinion that the Company is validly existing as a
corporation under the laws of the State of Delaware and the
Guarantor is a corporation presently subsisting under the laws of
the Commonwealth of Pennsylvania.
I am also of the opinion that all action necessary to make valid
the proposed issuance and sale by the Company of the Debt
Securities from time to time and the execution and delivery of
the Guaranty by the Guarantor will have been taken when:
<PAGE>
(a) the Registration Statement, as it may be amended, shall
have become effective under the Act and the Indenture shall have been
qualified under the Trust Indenture Act;
(b) the Indenture shall have been duly authorized, executed
and delivered by the Company and the Guarantor;
(c) the Company's Board of Directors shall have taken such
action as may be necessary to authorize the issuance and sale by the
Company of the Debt Securities on the terms set forth in or
contemplated by the Registration Statement, as it may be amended,
and the exhibits thereto; and the Guarantor's Board of Directors
shall have taken such action as may be necessary to authorize the
Guaranty to be endorsed on the Debt Securities;
(d) the Company shall have duly established the terms of
the Debt Securities in accordance with the applicable provisions of
the Indenture and all necessary corporate authorization; and
(e) the Debt Securities shall have been appropriately
executed by the Company, with the Guaranty appropriately endorsed
thereon, and appropriately authenticated and delivered by the Trustee
in accordance with the applicable provisions of the Indenture and
shall have been issued, sold and delivered by the Company to the
purchasers thereof against payment therefor, all as contemplated
by, and in conformity with, the Indenture and the acts,
proceedings and documents referred to above.
I am further of the opinion that, when the foregoing steps
have been taken, (i) the Debt Securities will be legally issued and
binding obligation of the Company and (ii) the Guaranty will be a
legally issued and binding obligation of the Guarantor.
I do not hold myself out as an expert on the laws of the State
of New York. Accordingly, in rendering this opinion, I have relied,
as to all matters governed by the laws of New York, upon the
opinion of even date herewith of Thelen Reid & Priest, LLP,
special New York counsel for the Company, which is being filed as
Exhibit 5.2 to the Registration Statement.
I hereby authorize and consent to the use of this opinion as
Exhibit 5.1 to the Registration Statement, and authorize and
consent to the references to me in the Registration Statement and
in the prospectus constituting a part thereof.
Very truly yours,
/s/ David R. High
David R. High
Associate General Counsel
-2-
THELEN REID & PRIEST LLP
40 West 57th Street
New York, NY 10019-4097
Exhibit 5.2
New York, New York
June 10, 1999
DQE, Inc.
411 Seventh Avenue
Pittsburgh, Pennsylvania 15219
DQE Capital Corporation
411 Seventh Avenue
Pittsburgh, Pennsylvania 15219
Ladies and Gentlemen:
We are acting as special counsel for DQE Capital
Corporation (the "Company") and DQE, Inc. (the "Guarantor") in
connection with (i) the proposed issuance and sale by the Company
from time to time of up to $250,000,000 in aggregate principal
amount of its Debt Securities (the "Debt Securities"), and (ii)
the proposed guaranty by the Guarantor of the payment of
principal and premium, if any, and interest, if any, on such Debt
Securities (the "Guaranty"), such Debt Securities and the
Guaranty to be issued under the Indenture (the "Indenture") to
be entered into by the Company, the Guarantor and The First National
Bank of Chicago (the "Trustee"), as contemplated by the Registration
Statement on Form S-3 (the "Registration Statement") proposed to
be filed by the Company and the Guarantor with the Securities and
Exchange Commission on or about the date hereof for the
registration of the Debt Securities and the Guaranty under the
Securities Act of 1933, as amended (the "Act"), and for the
qualification of the Indenture under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act").
We are of the opinion that the Company is validly
existing as a corporation under the laws of the State of Delaware
and the Guarantor is a corporation presently subsisting under the
laws of the Commonwealth of Pennsylvania.
<PAGE>
DQE, Inc.
DQE Capital Corporation 2- June 10, 1999
We are of the opinion that all action necessary to make
valid the proposed issuance and sale by the Company of the Debt
Securities from time to time and the execution and delivery of
the Guaranty by the Guarantor will have been taken when:
(a) the Registration Statement, as it may be amended,
shall have become effective under the Act and the Indenture shall
have been qualified under the Trust Indenture Act;
(b) the Indenture shall have been duly authorized,
executed and delivered by the Company and the Guarantor;
(c) the Company's Board of Directors shall have taken
such action as may be necessary to authorize the issuance and
sale by the Company of the Debt Securities on the terms set forth
in or contemplated by the Registration Statement, as it may be
amended, and the exhibits thereto, and the Guarantor's Board of
Directors shall have taken such action as may be necessary to
authorize the Guaranty to be endorsed on the Debt Securities;
(d) the Company shall have duly established the terms
of the Debt Securities in accordance with the applicable
provisions of the Indenture and all necessary corporate
authorizations; and
(e) the Debt Securities shall have been appropriately
executed by the Company with the Guaranty appropriately endorsed
thereon, and appropriately authenticated and delivered by the
Trustee in accordance with the applicable provisions of the
Indenture, and each Debt Security shall have been issued, sold
and delivered by the Company to the purchasers thereof against
payment therefor, all as contemplated by, and in conformity with,
the Indenture and the acts, proceedings and documents referred to
above.
We are also of the opinion that, when the foregoing
steps have been taken, (i) the Debt Securities will be legally
issued and binding obligations of the Company and (ii) the
Guaranty will be a legally issued and binding obligation of the
Guarantor.
We do not hold ourselves out as experts on the laws of
the Commonwealth of Pennsylvania. Accordingly, in rendering this
<PAGE>
DQE, Inc.
DQE Capital Corporation 3- June 10, 1999
opinion, we have relied, as to all matters governed by the laws
of said Commonwealth, upon the opinion of even date herewith of
David R. High, Associate General Counsel for the Guarantor, which
is being filed as Exhibit 5.1 to the Registration Statement.
We hereby authorize and consent to the use of this
opinion as Exhibit 5.2 to the Registration Statement, and
authorize and consent to the reference to our firm in the
Registration Statement and in the prospectus constituting a part
thereof.
Very truly yours,
/s/ Thelen Reid & Priest LLP
THELEN REID & PRIEST LLP
EXHIBIT 23.3
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in the Prospectus
which is a part of this Registration Statement of DQE, Inc. and
DQE Capital Corporation on Form S-3 of our report dated January
26, 1999 appearing in the Annual Report on Form 10-K of DQE, Inc.
for the year ended December 31, 1998, and to the reference to us
under the heading "Experts" in the Prospectus, which is a part of
this Registration Statement.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Pittsburgh, Pennsylvania
June 7, 1999
DQE, INC.
ISSUANCE OF DEBT SECURITIES
POWER OF ATTORNEY
-----------------
Each of the undersigned directors of DQE, Inc., a Pennsylvania
corporation, hereby appoints Gary L. Schwass, Diane S. Eismont and Victor
A. Roque, and each of them, his or her true and lawful attorney and agent,
with power to act without the other and with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in
any and all capacities, to sign and file with the Securities and Exchange
Commission, Washington, D. C., under provisions of the Securities Act of
1933, as amended, a registration statement or registration statements for
the registration under provisions of the Securities Act of 1933, as
amended, and any other rules, regulations or requirements of the Securities
and Exchange Commission in respect thereof, of not in excess of $350
million of debt securities of DQE Capital Corporation, to be guaranteed by
DQE, Inc., and any and all amendments thereto, whether said amendments add
to, delete from or otherwise alter any such registration statement or
registration statements, or add or withdraw any exhibits or schedules to be
filed therewith and any and all instruments in connection therewith. Each
of the undersigned hereby grants to said attorneys and each of them full
power and authority to do and perform in the name of and on behalf of the
undersigned, and in any and all capacities, any act and thing whatsoever
<PAGE>
required or necessary to be done in and about the premises, as full and to
all intents and purposes as the undersigned might do, hereby ratifying and
approving the acts of said attorneys and each of them.
IN WITNESS WHEREOF, the undersigned have hereunto set their
hands and seals this 23rd day of March, 1999.
----
/s/ Daniel Berg
---------------------------- -----------------------------
Daniel Berg William H. Knoell
/s/ David D. Marshall
---------------------------- -----------------------------
Doreen E. Boyce David D. Marshall
/s/ Robert P. Bozzone /s/ Thomas J. Murrin
----------------------------- -----------------------------
Robert P. Bozzone Thomas J. Murrin
/s/ Sigo Falk /s/ Eric W. Springer
---------------------------- ----------------------------
Sigo Falk Eric Springer
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(B)(2)
----
--------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
---------------------
DQE CAPITAL CORPORATION
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE 25-1837152
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
411 SEVENTH AVENUE
PITTSBURGH, PENNSYLVANIA 15219-1905
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE>
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
-------------------
INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.; Federal Deposit
Insurance Corporation, Washington, D.C.; The Board of
Governors of the Federal Reserve System, Washington D.C..
(B) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
-----------------------------
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART
----------------
OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of
the Act.
<PAGE>
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all
in the City of Chicago and State of Illinois, on the 3rd day of June,
1999.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
BY /s/ Sandra L. Caruba
-----------------------------------
SANDRA L. CARUBA
VICE PRESIDENT
* EXHIBIT 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS BEARING
IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF THE FIRST NATIONAL BANK OF
CHICAGO, FILED AS EXHIBIT 25 TO THE REGISTRATION STATEMENT ON FORM S-3 OF U S
WEST CAPITAL FUNDING, INC., FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON
MAY 6, 1998 (REGISTRATION NO. 333-51907-01).
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
June 3, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of the Indenture by and between DQE Capital
Corporation, DQE, Inc. and The First National Bank of Chicago, as Trustee, the
undersigned, in accordance with Section 321(b) of the Trust Indenture Act of
1939, as amended, hereby consents that the reports of examinations of the
undersigned, made by Federal or State authorities authorized to make such
examinations, may be furnished by such authorities to the Securities and
Exchange Commission upon its request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
BY: /s/ Sandra L. Caruba
-----------------------------------
SANDRA L. CARUBA
VICE PRESIDENT
<PAGE>
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago Call Date: 03/31/99
ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR MARCH 31, 1999
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN THOUSANDS C400
RCFD BIL MIL THOU ----
---- ------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository RCFD
institutions (from Schedule RC-A): ----
a. Noninterest-bearing balances and
currency and coin(1)..................... 0081 3,809,517 1.a
b. Interest-bearing balances(2).............. 0071 4,072,166 1.b
2. Securities
a. Held-to-maturity securities(from
Schedule RC-B, column A).................. 1754 0 2.a
b. Available-for-sale securities
(from Schedule RC-B, column D)............ 1773 12,885,728 2.b
3. Federal funds sold and securities
purchased under agreements to resell...... 1350 4,684,756 3.
4. Loans and lease financing receivables: RCFD
a. Loans and leases, net of unearned ----
income (from Schedule RC-C)............... 2122 34,304,806 4.a
b. LESS: Allowance for loan and lease
losses.................................... 3123 411,476 4.b
c. LESS: Allocated transfer risk reserve..... 3128 3,884 4.c
d. Loans and leases, net of unearned RCFD
income, allowance, and reserve ----
(item 4.a minus 4.b and 4.c).............. 2125 33,889,446 4.d
5. Trading assets (from Schedule RD-D).......... 3545 5,100,499 5.
6. Premises and fixed assets (including
capitalized leases).......................... 2145 754,052 6.
7. Other real estate owned (from Schedule
RC-M)........................................ 2150 5,244 7.
8. Investments in unconsolidated subsidiaries
and associated companies (from Schedule
RC-M)........................................ 2130 201,068 8.
9. Customers' liability to this bank on
acceptances outstanding...................... 2155 265,041 9.
10. Intangible assets (from Schedule RC-M)....... 2143 285,709 10.
11. Other assets (from Schedule RC-F)............ 2160 2,987,184 11.
12. Total assets (sum of items 1 through 11)..... 2170 68,940,410 12.
</TABLE>
- --------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
Legal Title of Bank: The First National Bank of Chicago Call Date: 03/31/99
ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS
---------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of RCON
columns A and C from Schedule RC-E, ----
part 1)................................... 2200 22,163,664 13.a
(1) Noninterest-bearing(1)................ 6631 9,740,100 13.a1
(2) Interest-bearing..................... 6636 12,423,564 13.a2
b. In foreign offices, Edge and Agreement RCFN
subsidiaries, and ----
IBFs (from Schedule RC-E, part II)... 2200 19,273,426 13.b
(1) Noninterest bearing................... 6631 334,741 13.b1
(2) Interest-bearing...................... 6636 18,938,685 13.b2
14. Federal funds purchased and securities sold
under agreements to repurchase: RCFD 2800 4,405,792 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 173,505 15.a
b. Trading Liabilities(from Sechedule
RC-D)..................................... RCFD 3548 4,824,567 15.b
RCFD
16. Other borrowed money: ----
a. With original maturity of one year
or less................................... 2332 7,453,761 16.a
b. With original maturity of more than
one year.................................. A547 330,300 16.b
c. With original maturity of more than
three years............................... A548 357,737 16.c
17. Not applicable
18. Bank's liability on acceptance executed
and outstanding.............................. 2920 265,041 18.
19. Subordinated notes and debentures............ 3200 2,600,000 19.
20. Other liabilities (from Schedule RC-G)....... 2930 1,878,367 20.
21. Total liabilities (sum of items 13
through 20).................................. 2948 63,726,160 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related
surplus...................................... 3838 0 23.
24. Common stock................................. 3230 200,858 24.
25. Surplus (exclude all surplus related to
preferred stock)............................. 3839 3,239,836 25.
26. a. Undivided profits and capital reserves.... 3632 1,813,367 26.a
b. Net unrealized holding gains (losses)
on available-for-sale securities.......... 8434 (37,357) 26.b
c. ACCUMULATED NET GAINS (LOSSES) ON CASH
FLOW HEDGES............................... 4336 0 26.c
27. Cumulative foreign currency translation
adjustments.................................. 3284 (2,454) 27.
28. Total equity capital (sum of items 23
through 27).................................. 3210 5,214,250 28.
29. Total liabilities, limited-life preferred
stock, and equity capital (sum of items
21, 22, and 28).............................. 3300 68,940,410 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed
for the bank by independent external Number auditors as of any date
during 1996..................................RCFD 6724.... N/A Number
M.1.
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors (may
be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- --------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(B)(2)
-----------------
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
----------------
DQE, INC.
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
PENNSYLVANIA 25-1598483
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
CHERRINGTON CORPORATE CENTER, SUITE 100
500 CHERRINGTON PARKWAY
CORAOPOLIS, PENNSYLVANIA 15108-3189
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
GUARANTIES OF DQE CAPITAL CORPORATION DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE>
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
-------------------
INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.; Federal Deposit
Insurance Corporation, Washington, D.C.; The Board of
Governors of the Federal Reserve System, Washington D.C..
(B) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
-----------------------------
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART
----------------
OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of
the Act.
<PAGE>
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all
in the City of Chicago and State of Illinois, on the 3rd day of June,
1999.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
BY: /s/ Sandra L. Caruba
-------------------------------------------
SANDRA L. CARUBA
VICE PRESIDENT
* EXHIBIT 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS BEARING
IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF THE FIRST NATIONAL BANK OF
CHICAGO, FILED AS EXHIBIT 25 TO THE REGISTRATION STATEMENT ON FORM S-3 OF U S
WEST CAPITAL FUNDING, INC., FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON
MAY 6, 1998 (REGISTRATION NO. 333-51907-01).
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
June 3, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of the Indenture by and between DQE Capital
Corporation, DQE, Inc. and The First National Bank of Chicago, as Trustee, the
undersigned, in accordance with Section 321(b) of the Trust Indenture Act of
1939, as amended, hereby consents that the reports of examinations of the
undersigned, made by Federal or State authorities authorized to make such
examinations, may be furnished by such authorities to the Securities and
Exchange Commission upon its request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
BY: /s/ Sandar L. Caruba
--------------------------------------
SANDRA L. CARUBA
VICE PRESIDENT
<PAGE>
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago Call Date: 03/31/99
ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR MARCH 31, 1999
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
DOLLAR AMOUNTS IN C400
THOUSANDS ------
RCFD BIL MIL THOU
---- --- --- ----
ASSETS
1. Cash and balances due from depository RCFD
institutions (from Schedule RC-A): ----
a. Noninterest-bearing balances and
currency and coin(1)..................... 0081 3,809,517 1.a
b. Interest-bearing balances(2)............. 0071 4,072,166 1.b
2. Securities
a. Held-to-maturity securities(from
Schedule RC-B, column A).................. 1754 0 2.a
b. Available-for-sale securities
(from Schedule RC-B, column D)............ 1773 12,885,728 2.b
3. Federal funds sold and securities
purchased under agreements to resell...... 1350 4,684,756 3.
4. Loans and lease financing receivables: RCFD
a. Loans and leases, net of unearned ----
income (from Schedule RC-C)............... 2122 34,304,806 4.a
b. LESS: Allowance for loan and lease
losses.................................... 3123 411,476 4.b
c. LESS: Allocated transfer risk reserve..... 3128 3,884 4.c
d. Loans and leases, net of unearned RCFD
income, allowance, and reserve ----
(item 4.a minus 4.b and 4.c).............. 2125 33,889,446 4.d
5. Trading assets (from Schedule RD-D).......... 3545 5,100,499 5.
6. Premises and fixed assets (including
capitalized leases).......................... 2145 754,052 6.
7. Other real estate owned (from Schedule
RC-M)........................................ 2150 5,244 7.
8. Investments in unconsolidated subsidiaries
and associated companies (from Schedule
RC-M)........................................ 2130 201,068 8.
9. Customers' liability to this bank on
acceptances outstanding...................... 2155 265,041 9.
10. Intangible assets (from Schedule RC-M)....... 2143 285,709 10.
11. Other assets (from Schedule RC-F)............ 2160 2,987,184 11.
12. Total assets (sum of items 1 through 11)..... 2170 68,940,410 12.
- --------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
Legal Title of Bank: The First National Bank of Chicago Call Date: 03/31/99
ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS
---------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of RCON
columns A and C from Schedule RC-E, ----
part 1)................................... 2200 22,163,664 13.a
(1) Noninterest-bearing(1)................ 6631 9,740,100 13.a1
(2) Interest-bearing..................... 6636 12,423,564 13.a2
b. In foreign offices, Edge and Agreement RCFN
subsidiaries, and ----
IBFs (from Schedule RC-E, part II)... 2200 19,273,426 13.b
(1) Noninterest bearing................... 6631 334,741 13.b1
(2) Interest-bearing...................... 6636 18,938,685 13.b2
14. Federal funds purchased and securities sold
under agreements to repurchase: RCFD 2800 4,405,792 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 173,505 15.a
b. Trading Liabilities(from Sechedule
RC-D)..................................... RCFD 3548 4,824,567 15.b
RCFD
16. Other borrowed money: ----
a. With original maturity of one year
or less................................... 2332 7,453,761 16.a
b. With original maturity of more than
one year.................................. A547 330,300 16.b
c. With original maturity of more than
three years............................... A548 357,737 16.c
17. Not applicable
18. Bank's liability on acceptance executed
and outstanding.............................. 2920 265,041 18.
19. Subordinated notes and debentures............ 3200 2,600,000 19.
20. Other liabilities (from Schedule RC-G)....... 2930 1,878,367 20.
21. Total liabilities (sum of items 13
through 20).................................. 2948 63,726,160 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related
surplus...................................... 3838 0 23.
24. Common stock................................. 3230 200,858 24.
25. Surplus (exclude all surplus related to
preferred stock)............................. 3839 3,239,836 25.
26. a. Undivided profits and capital reserves.... 3632 1,813,367 26.a
b. Net unrealized holding gains (losses)
on available-for-sale securities.......... 8434 (37,357) 26.b
c. ACCUMULATED NET GAINS (LOSSES) ON CASH
FLOW HEDGES............................... 4336 0 26.c
27. Cumulative foreign currency translation
adjustments.................................. 3284 (2,454) 27.
28. Total equity capital (sum of items 23
through 27).................................. 3210 5,214,250 28.
29. Total liabilities, limited-life preferred
stock, and equity capital (sum of items
21, 22, and 28).............................. 3300 68,940,410 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best
describes the most comprehensive level of auditing work performed for the
bank by independent external Number auditors as of any date during
1996...........................................RCFD 6724.... [N/A] Number
M.1.
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors (may
be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- --------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
