- --------------------------------------------------------------------------------
Pursuant to requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
PECO ENERGY COMPANY
/s/ Michael B. Bemis /s/ Robert S. Shapard
- ---------------------------------- -----------------------------------
MICHAEL B. BEMIS ROBERT S. SHAPARD
President, Exelon Energy Delivery Executive Vice President and Chief
(Principal Executive Officer) Financial Officer, Exelon
(Principal Financial Officer)
/s/ Duane M. DesParte
- ----------------------------------
DUANE M. DESPARTE
Vice President and Controller, Exelon Energy Delivery
(Principal Accounting Officer)
July 30, 2003
- --------------------------------------------------------------------------------
Pursuant to requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
EXELON GENERATION COMPANY, LLC
/s/ Oliver D. Kingsley Jr. /s/ Robert S. Shapard
- ---------------------------------- -----------------------------------
OLIVER D. KINGSLEY JR. ROBERT S. SHAPARD
Chief Executive Officer and Executive Vice President and Chief
President Financial Officer, Exelon
(Principal Executive Officer) (Principal Financial Officer)
/s/ Thomas Weir III
- ----------------------------------
THOMAS WEIR III
Vice President and Controller
(Principal Accounting Officer)
July 30, 2003
157
Exhibit 4.1
PECO ENERGY COMPANY,
Issuer
AND
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
INDENTURE
Dated as of June 24, 2003
Subordinated Debt Securities
CROSS-REFERENCE TABLE*
Section of
Trust Indenture Act Section of
of 1939, as amended Indenture
------------------- ----------
310(a) 7.09
310(b) 7.08
7.10
310(c) Inapplicable
311(a) 7.13
311(b) 7.13
311(c) Inapplicable
312(a) 5.01
5.02(a)
312(b) 5.02(c)
312(c) 5.02(d)
313(a) 5.04(a)
313(b) 5.04(b)
313(c) 5.04(a)
5.04(b)
313(d) 5.04(c)
314(a) 5.03
314(b) Inapplicable
314(c) 13.07
314(d) Inapplicable
314(e) 13.07
314(f) Inapplicable
315(a) 7.01(b)
7.02
315(b) 6.01(e)
315(c) 7.01
315(d) 7.01(b)
7.01(c)
315(e) 6.07
316(a) 6.06
8.04
316(b) 6.04
316(c) 8.01
317(a) 6.02
317(b) 4.03
318(a) 13.09
*This Cross-Reference Table does not constitute part of the Indenture and shall
not have any bearing on the interpretation of any of its terms or provisions.
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.............................................................................................1
SECTION 1.01. Definitions of Terms.................................................................1
ARTICLE II ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF DEBT SECURITIES.....................6
SECTION 2.01. Designation and Terms of Debt Securities.............................................6
SECTION 2.02. Form of Debt Securities and Trustee's Certificate....................................7
SECTION 2.03. Denominations; Provisions for Payment................................................8
SECTION 2.04. Execution and Authentication.........................................................9
SECTION 2.05. Registration of Transfer and Exchange...............................................10
SECTION 2.06. Temporary Securities................................................................11
SECTION 2.07. Mutilated, Destroyed, Lost or Stolen Debt Securities................................11
SECTION 2.08. Cancellation........................................................................12
SECTION 2.09. Benefits of Indenture...............................................................12
SECTION 2.10. Authenticating Agent................................................................12
SECTION 2.11. Global Securities...................................................................13
ARTICLE III REDEMPTION OF DEBT SECURITIES AND SINKING FUND PROVISIONS............................................14
SECTION 3.01. Redemption..........................................................................14
SECTION 3.02. Notice of Redemption................................................................14
SECTION 3.03. Payment Upon Redemption.............................................................15
SECTION 3.04. Sinking Fund........................................................................15
SECTION 3.05. Satisfaction of Sinking Fund Payments with Debt Securities..........................15
SECTION 3.06. Redemption of Debt Securities for Sinking Fund......................................16
ARTICLE IV COVENANTS OF THE COMPANY..............................................................................16
SECTION 4.01. Payment of Principal, Premium and Interest..........................................16
SECTION 4.02. Maintenance of Office or Agency.....................................................16
SECTION 4.03. Paying Agents.......................................................................16
SECTION 4.04. Appointment to Fill Vacancy in Office of Trustee....................................17
SECTION 4.05. Compliance with Consolidation Provisions............................................17
SECTION 4.06. Limitation on Dividends; Transactions with Affiliates...............................18
SECTION 4.07. Covenants as to PECO Trust..........................................................18
SECTION 4.08. Corporate Existence.................................................................18
ARTICLE V SECURITYHOLDERS, LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE......................................18
SECTION 5.01. Company to Furnish Trustee Names and Addresses of Securityholders...................18
SECTION 5.02. Preservation Of Information; Communications With Securityholders....................19
SECTION 5.03. Reports By the Company..............................................................19
SECTION 5.04. Reports by the Trustee..............................................................20
i
ARTICLE VI REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT.......................................20
SECTION 6.01. Events of Default...................................................................20
SECTION 6.02. Collection of Indebtedness and Suits for Enforcement by Trustee.....................22
SECTION 6.03. Application of Moneys Collected.....................................................23
SECTION 6.04. Limitation on Suits.................................................................23
SECTION 6.05. Rights and Remedies Cumulative; Delay or Omission Not Waiver........................24
SECTION 6.06. Control by Securityholders..........................................................24
SECTION 6.07. Undertaking to Pay Costs............................................................25
ARTICLE VII CONCERNING THE TRUSTEE...............................................................................25
SECTION 7.01. Certain Duties and Responsibilities of Trustee......................................25
SECTION 7.02. Certain Rights of Trustee...........................................................26
SECTION 7.03. Trustee Not Responsible for Recitals or Issuance of Debt Securities.................27
SECTION 7.04. May Hold Debt Securities............................................................27
SECTION 7.05. Moneys Held in Trust................................................................28
SECTION 7.06. Compensation and Reimbursement......................................................28
SECTION 7.07. Reliance on Officers' Certificate...................................................28
SECTION 7.08. Qualification; Conflicting Interests................................................29
SECTION 7.09. Corporate Trustee Required; Eligibility.............................................29
SECTION 7.10. Resignation and Removal; Appointment of Successor...................................29
SECTION 7.11. Acceptance of Appointment By Successor..............................................30
SECTION 7.12. Merger, Conversion, Consolidation or Succession to Business.........................31
SECTION 7.13. Preferential Collection of Claims Against the Company...............................31
ARTICLE VIII CONCERNING THE SECURITYHOLDERS......................................................................32
SECTION 8.01. Evidence of Action by Securityholders...............................................32
SECTION 8.02. Proof of Execution by Securityholders...............................................32
SECTION 8.03. Who May be Deemed Owners............................................................32
SECTION 8.04. Certain Debt Securities Owned by Company Disregarded................................33
SECTION 8.05. Actions Binding on Future Securityholders...........................................33
ARTICLE IX SUPPLEMENTAL INDENTURES...............................................................................33
SECTION 9.01. Supplemental Indentures Without the Consent of Securityholders......................33
SECTION 9.02. Supplemental Indentures With Consent of Securityholders.............................34
SECTION 9.03. Effect of Supplemental Indentures...................................................35
SECTION 9.04. Debt Securities Affected by Supplemental Indentures.................................35
SECTION 9.05. Execution of Supplemental Indentures................................................35
ARTICLE X SUCCESSOR CORPORATION..................................................................................35
SECTION 10.01. Company May Consolidate, Etc........................................................35
SECTION 10.02. Successor Corporation Substituted...................................................36
SECTION 10.03. Evidence of Consolidation, Etc. to Trustee..........................................36
ii
ARTICLE XI SATISFACTION AND DISCHARGE............................................................................36
SECTION 11.01. Satisfaction and Discharge of Indenture.............................................36
SECTION 11.02. Discharge of Obligations............................................................37
SECTION 11.03. Deposited Moneys to be Held in Trust................................................37
SECTION 11.04. Payment of Moneys Held by Paying Agents.............................................38
SECTION 11.05. Repayment to Company................................................................38
ARTICLE XII IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS......................................38
SECTION 12.01. No Recourse.........................................................................38
ARTICLE XIII MISCELLANEOUS PROVISIONS............................................................................38
SECTION 13.01. Effect on Successors and Assigns....................................................38
SECTION 13.02. Actions by Successor................................................................39
SECTION 13.03. Surrender of Company Powers.........................................................39
SECTION 13.04. Notices.............................................................................39
SECTION 13.05. Governing Law.......................................................................39
SECTION 13.06. Treatment of the Debt Securities as Debt............................................39
SECTION 13.07. Compliance Certificates and Opinions................................................39
SECTION 13.08. Payments on Business Days...........................................................40
SECTION 13.09. Conflict with Trust Indenture Act...................................................40
SECTION 13.10. Counterparts........................................................................40
SECTION 13.11. Separability........................................................................40
SECTION 13.12. Assignment..........................................................................40
SECTION 13.13. Acknowledgment of Rights............................................................40
ARTICLE XIV SUBORDINATION OF DEBT SECURITIES.....................................................................41
SECTION 14.01. Subordination Terms.................................................................41
iii
THIS INDENTURE, dated as of June 24, 2003, between PECO ENERGY COMPANY,
a Pennsylvania corporation (the "Company"), and WACHOVIA BANK, NATIONAL
ASSOCIATION, a national banking association not in its individual capacity but
solely as trustee (the "Trustee"):
W I T N E S S E T H:
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the execution and delivery of this Indenture to provide for the
issuance of unsecured subordinated debt securities (hereinafter referred to as
the "Debt Securities"), in an unlimited aggregate principal amount to be issued
from time to time in one or more series as in this Indenture provided, as
registered Debt Securities without coupons, to be authenticated by the
certificate of the Trustee;
WHEREAS, to provide the terms and conditions upon which the Debt
Securities are to be authenticated, issued and delivered, the Company has duly
authorized the execution of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done;
NOW, THEREFORE, in consideration of the premises and the purchase of
the Debt Securities by the holders thereof, and intending to be legally bound
hereby, it is mutually covenanted and agreed as follows for the equal and
ratable benefit of the holders of Debt Securities:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions of Terms. The terms defined in this Section (except as
in this Indenture otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section and shall
include the plural as well as the singular. All other terms used in this
Indenture that are defined in the Trust Indenture Act of 1939, as amended, or
that are by reference in such Act defined in the Securities Act of 1933, as
amended (except as herein otherwise expressly provided or unless the context
otherwise requires), shall have the meanings assigned to such terms in said
Trust Indenture Act and in said Securities Act as in force at the date of the
execution of this instrument.
"Additional Interest" means (i) such additional amounts as may be
required so that the net amounts received and retained by the Holder (if the
Holder is a PECO Trust) after paying taxes, duties, assessments or governmental
charges of whatever nature (other than withholding taxes) imposed by the United
States or any other taxing authority will not be less than the amounts the
Holder would have received had no such taxes, duties, assessments, or other
governmental charges been imposed; and (ii) any interest due and not paid on an
Interest Payment Date, together with interest thereon from such Interest Payment
Date to the date of payment, compounded semiannually, on each Interest Payment
Date.
"Affiliate" means, with respect to a specified Person, (a) any Person
directly or indirectly owning, controlling or holding with power to vote 10% or
more of the outstanding voting securities or other ownership interests of the
specified Person, (b) any Person 10% or more of whose outstanding voting
securities or other ownership interests are directly or indirectly owned,
controlled or held with power to vote by the specified Person, (c) any Person
directly or indirectly controlling, controlled by or under common control with
the specified Person, (d) a partnership in which the specified Person is a
general partner, (e) any officer or director of the specified Person and (f) if
the specified Person is an individual, any entity of which the specified Person
is an officer, director or general partner.
"Authenticating Agent" means an authenticating agent with respect to
all or any of the series of Debt Securities appointed with respect to all or
such series of the Debt Securities by the Trustee pursuant to Section 2.10.
"Bankruptcy Law" means Title 11, United States Code, or any similar
federal or state law for the relief of debtors.
"Board of Directors" means the board of directors of the Company, or
any duly authorized committee of such board or any officer of the Company duly
authorized by the board of directors of the Company or a duly authorized
committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification; provided that any Board Resolution that is adopted by an officer
of the Company shall be accompanied by a copy of a resolution of either the
board of directors of the Company or a duly authorized committee of that board,
certified as aforesaid, authorizing such officer to take such action.
"Business Day" means, with respect to any series of Debt Securities,
any day other than a Saturday or Sunday or a day on which federal or state
banking institutions in Wilmington, Delaware or Philadelphia, Pennsylvania, are
authorized or obligated by law, executive order or regulation to close, or a day
on which the Corporate Trust Office of the Trustee or the Property Trustee is
closed for business.
"Certificate" means a certificate signed by the principal executive
officer, the principal financial officer, the treasurer or the principal
accounting officer of the Company. The Certificate need not comply with the
provisions of Section 13.07.
"Common Securities" means undivided beneficial interests in the assets
of a PECO Trust which rank pari passu with Preferred Securities issued by such
trust; provided, however, that upon the occurrence of an Event of Default, the
rights of holders of Common Securities to payment in respect of distributions
and payments upon liquidation, redemption and maturity are subordinated to the
rights of holders of Preferred Securities.
"Common Securities Guarantee" means any guarantee that the Company may
enter into with a PECO Trust or other Persons that operate directly or
indirectly for the benefit of holders of Common Securities of such trust.
"Company" means PECO Energy Company, a corporation duly organized and
existing under the laws of the Commonwealth of Pennsylvania, and, subject to the
provisions of Article X, shall also include its successors and assigns.
"Company Order" means a written request or order signed in the name of
the Company by an officer, or if required by the context in which such term
appears herein, officers, of the Company 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 hereof is located at Wachovia Bank,
National Association, PA 1249, 123 South Broad Street, 11th Floor, Philadelphia,
PA 19109, Attention: Corporate Trust Administration.
2
"Custodian" means any receiver, trustee, assignee, liquidator, or
similar official under any Bankruptcy Law.
"Declaration" means, in respect of a PECO Trust, the amended and
restated declaration of trust of such PECO Trust or any other governing
instrument of such PECO Trust.
"Debt Securities" means the unsecured subordinated debt securities of
the Company authenticated and delivered under this Indenture.
"Default" means any event, act or condition that with notice or lapse
of time, or both, would constitute an Event of Default.
"Defaulted Interest" has the meaning specified in Section 2.03.
"Depository" means, with respect to Debt Securities of any series for
which the Company shall determine that such Debt Securities will be issued as a
Global Security, The Depository Trust Company, New York, New York, another
clearing agency, or any successor registered as a clearing agency under the
Exchange Act or other applicable statute or regulation, which, in each case,
shall be designated by the Company pursuant to either Section 2.01 or 2.11.
"Event of Default" means, with respect to Debt Securities of a
particular series, any event specified in Section 6.01, continued for the period
of time, if any, therein designated.
"Exchange Act" means the Securities Exchange Act of 1934.
"Global Security" means, with respect to any series of Debt Securities,
a Debt Security executed by the Company and delivered by the Trustee to the
Depository or pursuant to the Depository's instruction, all in accordance with
the Indenture, which shall be registered in the name of the Depository or its
nominee.
"Governmental Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America that, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian with respect to any such
Governmental Obligation or a specific payment of principal of or interest on any
such Governmental Obligation held by such custodian for the account of the
holder of such depository receipt; provided, however, that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Governmental Obligation or the specific payment of
principal of or interest on the Governmental Obligation evidenced by such
depository receipt.
"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.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into in accordance with the terms hereof.
3
"Interest Payment Date," when used with respect to any installment of
interest on a Debt Security of a particular series, means the date specified in
such Debt Security or in a Board Resolution or in an indenture supplemental
hereto with respect to such series as the fixed date on which an installment of
interest with respect to Debt Securities of that series is due and payable.
"List of Holders" means the list of holders of each series of Debt
Securities provided by the Company to the Trustee under Section 5.01.
"Officers' Certificate" means a certificate signed by the President or
a Vice President and by the Treasurer or an Assistant Treasurer or the
Controller or an Assistant Controller or the Secretary or an Assistant Secretary
of the Company that is delivered to the Trustee in accordance with the terms
hereof. Each such certificate shall include the statements provided for in
Section 13.07, if and to the extent required by the provisions thereof.
"Opinion of Counsel" means an opinion in writing of legal counsel, who
may be an employee of or counsel for the Company, that is reasonably acceptable
to the Trustee and delivered to the Trustee in accordance with the terms hereof.
Each such opinion shall include the statements provided for in Section 13.07, if
and to the extent required by the provisions thereof.
"Outstanding," when used with reference to Debt Securities of any
series, means, subject to the provisions of Section 8.04, as of any particular
time, all Debt Securities of that series theretofore authenticated and delivered
by the Trustee under this Indenture, except (a) Debt Securities theretofore
canceled by the Trustee, or delivered to the Trustee for cancellation or that
have previously been canceled; (b) Debt Securities or portions thereof for the
payment or redemption of which moneys or Governmental Obligations in the
necessary amount shall have been deposited in trust with the Trustee or with any
paying agent (other than the Company) or shall have been set aside and
segregated in trust by the Company (if the Company shall act as its own paying
agent); provided, however, that if such Debt Securities or portions of such Debt
Securities are to be redeemed prior to the maturity thereof, notice of such
redemption shall have been given as in Article III provided, or provision
satisfactory to the Trustee shall have been made for giving such notice, (c)
Debt Securities in lieu of or in substitution for which other Debt Securities
shall have been authenticated and delivered pursuant to the terms of Section
2.07; and (d) Debt Securities, except to the extent provided in Sections 11.01
and 11.02, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article XI.
"PECO Trust" means a Delaware statutory trust formed by the Company for
the purpose of purchasing Debt Securities of the Company.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, joint-stock company, unincorporated
organization or government or any agency or political subdivision thereof or any
other entity.
"Predecessor Security" of any particular Debt Security means every
previous Debt Security evidencing all or a portion of the same debt and
guarantee as that evidenced by such particular Debt Security; and, for the
purposes of this definition, any Debt Security authenticated and delivered under
Section 2.07 in lieu of a lost, destroyed or stolen Debt Security shall be
deemed to evidence the same debt as the lost, destroyed or stolen Debt Security.
"Preferred Securities" means undivided beneficial interests in the
assets of a PECO Trust which rank pari passu with Common Securities issued by
such trust; provided, however, that upon the occurrence of an Event of Default,
the rights of holders of Common Securities to payment in respect of
4
distributions and payments upon liquidation, redemption and otherwise are
subordinated to the rights of holders of Preferred Securities.
"Preferred Securities Guarantee" means any guarantee that the Company
may enter into with a PECO Trust or other Persons that operate directly or
indirectly for the benefit of holders of Preferred Securities of such trust.
"Property Trustee" means the entity performing the functions of the
Property Trustee of a PECO Trust under the applicable Declaration of such PECO
Trust.
"Responsible Officer," when used with respect to the Trustee, means the
Chairman of the Board of Directors, the President, any Vice President, the
Secretary, the Treasurer, any trust officer, any corporate trust officer or any
other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of his or her knowledge of and familiarity with the particular subject.
"Securityholder," "Holder," "holder of Debt Securities," "registered
holder," or other similar term, means the Person or Persons in whose name or
names a particular Debt Security shall be registered on the Security Register in
accordance with the terms of this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings set forth in Section 2.05.
"Senior Indebtedness" means (i) any payment in respect of (A)
indebtedness of the Company for money borrowed and (B) indebtedness evidenced by
securities, debentures, bonds, notes or other similar instruments issued by the
Company including, without limitation, indebtedness evidenced by securities
issued pursuant to the provisions of the First and Refunding Mortgage dated May
1, 1923, as supplemented by subsequent supplemental indentures; (ii) all capital
lease obligations of the Company; (iii) all obligations of the Company issued or
assumed as the deferred purchase price of property, all conditional sale
obligations of the Company and all obligations of such obligor under any title
retention agreement (but excluding trade accounts payable arising in the
ordinary course of business); (iv) all obligations of the Company for
reimbursement on any letter of credit, banker's acceptance, security purchase
facility or similar credit transaction; (v) all obligations of the type referred
to in clauses (i) through (iv) of other persons for the payment of which the
Company is responsible or liable as obligor, guarantor or otherwise; and (vi)
all obligations of the type referred to in clauses (i) through (v) of other
persons secured by any lien on any property or asset of the Company (whether or
not such obligation is assumed by such obligor), except for (1) any such
indebtedness that is by its terms subordinated to or ranked pari passu with the
Debt Securities, as the case may be, including all other debt securities and
guarantees in respect of those debt securities, issued to any other trusts,
partnerships or any other entity affiliated with the Company which is a
financing vehicle of the Company ("Financing Entity") in connection with an
issuance of preferred securities by such Financing Entity or other securities
which rank pari passu with, or junior to, the Preferred Securities and (2) any
indebtedness between or among the Company and its Affiliates.
"Subsidiary" means, with respect to any Person, (i) any corporation at
least a majority of whose outstanding Voting Stock shall at the time be owned,
directly or indirectly, by such Person or by one or more of its Subsidiaries or
by such Person and one or more of its Subsidiaries, (ii) any general
partnership, joint venture or similar entity, at least a majority of whose
outstanding partnership or similar interests shall at the time be owned by such
Person, or by one or more of its Subsidiaries, or by such
5
Person and one or more of its Subsidiaries and (iii) any limited partnership of
which such Person or any of its Subsidiaries is a general partner.
"Trustee" means Wachovia Bank, National Association, not in its
individual capacity, but solely as Trustee hereunder, and, subject to the
provisions of Article VII, shall also include its successors and assigns, and,
if at any time there is more than one Person acting in such capacity hereunder,
"Trustee" shall mean each such Person. The term "Trustee," as used with respect
to a particular series of Debt Securities, shall mean the trustee with respect
to that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, subject to
the provisions of Sections 9.01, 9.02 and 10.01, as in effect at the date of
execution of this instrument.
Trust Securities" means Common Securities and Preferred Securities.
"Voting Stock," as applied to stock of any Person, means shares,
interests, participations or other equivalents in the equity interest (however
designated) in such Person having ordinary voting power for the election of a
majority of the directors (or the equivalent) of such Person, other than shares,
interests, participations or other equivalents having such power only by reason
of the occurrence of a contingency.
ARTICLE II
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF DEBT SECURITIES
SECTION 2.01. Designation and Terms of Debt Securities. The aggregate principal
amount of Debt Securities that may be authenticated and delivered under this
Indenture is unlimited. The Debt Securities may be issued in one or more series
up to the aggregate principal amount of Debt Securities of that series from time
to time authorized by or pursuant to a Board Resolution of the Company or,
pursuant to one or more indentures supplemental hereto. Prior to the initial
issuance of Debt Securities of any series, there shall be established in or
pursuant to a Board Resolution of the Company, and set forth in an Officers'
Certificate of the Company, or established in one or more indentures
supplemental hereto:
(1) the title of the series of Debt Security (which shall distinguish the Debt
Securities of that series from all other series of Debt Securities);
(2) any limit upon the aggregate principal amount of the Debt Securities of
that series that may be authenticated and delivered under this Indenture
(except for Debt Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Debt Securities
of that series);
(3) the date or dates on which the principal of the Debt Securities of that
series is payable;
(4) the rate or rates at which the Debt Securities of that series shall bear
interest or the manner of calculation of such rate or rates, if any;
(5) the date or dates from which such interest shall accrue, the Interest
Payment Dates on which such interest will be payable or the manner of
determination of such Interest Payment Dates and the record date for the
determination of holders to whom interest is payable on any such Interest
Payment Dates;
(6) the right, if any, to extend the interest payment periods and the duration
of such extension;
6
(7) the period or periods within which, the price or prices at which, and the
terms and conditions upon which, Debt Securities of that series may be
redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or purchase Debt
Securities of that series pursuant to any sinking fund or analogous
provisions (including payments made in cash in participation of future
sinking fund obligations) 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, Debt Securities of that series shall be
redeemed or purchased, in whole or in part, pursuant to such obligation;
(9) the subordination terms of the Debt Securities of that series;
(10) the form of the Debt Securities of that series, including the form of the
certificate of authentication for such series;
(11) if other than denominations of twenty-five U.S. dollars ($25) or any
integral multiple thereof, the denominations in which the Debt Securities
of that series shall be issuable;
(12) whether and under what circumstances the Company will pay Additional
Interest on the Debt Securities of the series to any Holder who is not a
United States person (including any modification to the definition of such
term) in respect of any tax, assessment or governmental charge and, if so,
whether the Company will have the option to redeem such Debt Securities
rather than pay such Additional Interest (and the terms of any such
option);
(13) any and all other terms with respect to such series (which terms shall not
be inconsistent with the terms of this Indenture), including any terms
which may be required by or advisable under United States laws or
regulations or advisable in connection with the marketing of Debt
Securities of that series; and
(14) whether the Debt Securities are issuable as a Global Security and, in such
case, the identity of the Depository for such series.
All Debt Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to any such Board Resolution and set forth in the applicable Officer's
Certificate, or in any indentures supplemental hereto.
If any of the terms of a series are established by action taken
pursuant to a Board Resolution of the Company, a copy of an appropriate record
of such action shall be certified by the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate of the Company setting forth the terms of such series.
SECTION 2.02. Form of Debt Securities and Trustee's Certificate. The Debt
Securities of any series and the Trustee's certificate of authentication to be
borne by such Debt Securities shall be substantially of the tenor and purport as
set forth in one or more indentures supplemental hereto or as provided in a
Board Resolution of the Company and as set forth in an Officers' Certificate of
the Company, and may have such letters, numbers or other marks of identification
or designation and such legends or endorsements printed, lithographed or
engraved thereon as the Company may deem appropriate and as are not inconsistent
with the provisions of this Indenture, or as may be required to comply with any
law or with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which Debt Securities of that series may be
listed, if any, or to conform to usage.
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SECTION 2.03. Denominations; Provisions for Payment. The Debt Securities shall
be issuable as registered Debt Securities and in the denominations of
twenty-five U.S. dollars ($25) or any integral multiple thereof, subject to
Section 2.01(11). The Debt Securities of a particular series shall bear interest
payable on the dates and at the rate specified with respect to that series. The
principal of and the interest on the Debt Securities of any series, as well as
any premium thereon in case of redemption thereof prior to maturity, shall be
payable in the coin or currency of the United States of America that at the time
is legal tender for public and private debt, at the office or agency of the
Company maintained for that purpose in Philadelphia, Pennsylvania. Each Debt
Security shall be dated the date of its authentication. Interest on the Debt
Securities shall be computed on the basis of a 360-day year composed of twelve
30-day months.
The interest installment on any Debt Security that is payable, and is
punctually paid or duly provided for, on any Interest Payment Date for Debt
Securities of that series shall be paid to the Person in whose name said Debt
Security (or one or more Predecessor Securities) is registered at the close of
business on the regular record date for such interest installment. In the event
that any Debt Security of a particular series or portion thereof is called for
redemption and the redemption date is subsequent to a regular record date with
respect to any Interest Payment Date and prior to such Interest Payment Date,
interest on such Debt Security will be paid upon presentation and surrender of
such Debt Security as provided in Section 3.03.
Any interest on any Debt Security that is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date for Debt
Securities of that series (herein called "Defaulted Interest") shall forthwith
cease to be payable to the registered holder on the relevant regular record date
by virtue of having been such holder; and such Defaulted Interest shall be paid
by the Company, at its election, as provided in clause (1) or clause (2) below:
(1) The Company may make payment of any Defaulted Interest on Debt
Securities to the Persons in whose names such Debt Securities (or their
respective Predecessor Securities) are registered at the close of business on a
special record date for the payment of such Defaulted Interest, which shall be
fixed in the following manner: the Company shall notify the Trustee and the
paying agent in writing of the amount of Defaulted Interest proposed to be paid
on each such Debt Security and the date of the proposed payment, and at the same
time the Company shall deposit with the paying agent an amount of money equal to
the aggregate amount proposed to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the paying agent for such deposit
prior to the date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted Interest as
in this clause provided. The special record date for the payment of such
Defaulted Interest shall be the close of business not more than 15 nor less than
10 Business Days prior to the date of the proposed payment and not less than 15
Business Days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the special record
date therefor to be mailed, first class postage prepaid, to each Securityholder
at his or her address as it appears in the List of Holders (or in the Security
Register if the Trustee is the Security Registrar of a particular series of Debt
Securities), not less than 10 Business Days prior to such special record date.
Notice of the proposed payment of such Defaulted Interest and the special record
date therefor having been mailed as aforesaid, such Defaulted Interest shall be
paid to the Persons in whose names such Debt Securities (or their respective
Predecessor Securities) are registered at the close of business on such special
record date and shall be no longer payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on any Debt
Securities in any other lawful manner not inconsistent with the requirements of
any securities exchange on which such Debt Securities may be listed, if any, and
upon such notice as may be required by such exchange, if, after
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notice given by the Company to the Trustees of the proposed payment pursuant to
this clause, such manner of payment shall be deemed practicable by the paying
agent.
Unless otherwise set forth in a Board Resolution of the Company or one
or more indentures supplemental hereto establishing the terms of any series of
Debt Securities pursuant to Section 2.01 hereof, the term "regular record date"
as used in this Section with respect to a series of Debt Securities with respect
to any Interest Payment Date for such series shall mean either the fifteenth day
of the month immediately preceding the month in which an Interest Payment Date
established for such series pursuant to Section 2.01 hereof shall occur, if such
Interest Payment Date is the first day of a month, or the last day of the month
immediately preceding the month in which an Interest Payment Date established
for such series pursuant to Section 2.01 hereof shall occur, if such Interest
Payment Date is the fifteenth day of a month, whether or not such date is a
Business Day.
Subject to the foregoing provisions of this Section, each Debt Security
of a series delivered under this Indenture upon transfer of or in exchange for
or in lieu of any other Debt Security of such series shall carry the rights to
interest accrued and unpaid, and to accrue, that were carried by such other Debt
Security.
SECTION 2.04. Execution and Authentication. The Debt Securities shall be signed
on behalf of the Company by its President or one of its Vice Presidents, under
its corporate seal attested by its Secretary or one of its Assistant
Secretaries. Signatures may be in the form of a manual or facsimile signature.
The Company may use the facsimile signature of any Person who shall have been a
President or Vice President thereof, or of any Person who shall have been a
Secretary or Assistant Secretary thereof, notwithstanding the fact that at the
time the Debt Securities shall be authenticated and delivered or disposed of
such Person shall have ceased to be the President or a Vice President, or the
Secretary or an Assistant Secretary, of the Company. The seal of the Company may
be in the form of a facsimile of such seal and may be impressed, affixed,
imprinted or otherwise reproduced on the Debt Securities. The Debt Securities
may contain such notations, legends or endorsements required by law, stock
exchange rule or usage. Each Debt Security shall be dated the date of its
authentication by the Trustee.
A Debt Security shall not be valid until authenticated manually by an
authorized signatory of the Trustee, or by an Authenticating Agent. Such
authentication upon any Debt Security shall be conclusive evidence that the Debt
Security so authenticated has been duly authenticated and delivered hereunder
and that the holder is entitled to the benefits of this Indenture.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Debt Securities of any series executed
by the Company to the Trustee for authentication, together with a Company Order
requesting the authentication and delivery of such Debt Securities, signed by
its President or any Vice President and its Treasurer or any Assistant
Treasurer, and the Trustee in accordance with such Company Order shall
authenticate and deliver such Debt Securities.
In authenticating such Debt Securities and accepting the additional
responsibilities under this Indenture in relation to such Debt Securities, the
Trustee shall be entitled to receive, and (subject to Section 7.01) shall be
fully protected in relying upon, in addition to an Officer's Certificate and an
Opinion of Counsel under Section 13.07, an Opinion of Counsel stating that the
form and terms thereof have been established in conformity with the provisions
of this Indenture.
The Trustee shall not be required to authenticate such Securities if
the issue of such Debt Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Debt Securities and this
Indenture or otherwise in a manner that is not reasonably acceptable to the
Trustee.
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SECTION 2.05. Registration of Transfer and Exchange. (a) Debt Securities
of any series may be exchanged upon presentation thereof at the office or agency
of the Company designated for such purpose in Philadelphia, Pennsylvania or at
the office of the Security Registrar, for other Debt Securities of such series
of authorized denominations, and for a like aggregate principal amount, upon
payment of a sum sufficient to cover any tax or other governmental charge in
relation thereto, all as provided in this Section. In respect of any Debt
Securities so surrendered for exchange, the Company shall execute, the Trustee,
at the Security Registrar's request, shall authenticate and such office or
agency shall deliver in exchange therefor the Debt Security or Debt Securities
of the same series that the Securityholder making the exchange shall be entitled
to receive, bearing numbers not contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at its office or agency
designated for such purpose in Philadelphia, Pennsylvania, or such other
location designated by the Company a register or registers (herein referred to
as the "Security Register") in which, subject to such reasonable regulations as
it may prescribe, the Company shall register the Debt Securities and the
transfers and exchanges of Debt Securities as in this Article provided and which
at all reasonable times shall be open for inspection by the Trustee. The
registrar for the purpose of registering Debt Securities and transfers and
exchanges of Debt Securities as herein provided shall initially be the Trustee
and thereafter as may be appointed as authorized by Board Resolution (the
"Security Registrar"), such appointment to be effective by such Person's
acceptance as Security Registrar. The Trustee hereby accepts its appointment as
the initial Security Registrar hereunder and the location of the Security
Register shall initially be the Corporate Trust Office of the Trustee.
Upon surrender for transfer of any Debt Security at the office or
agency of the Company designated for such purpose in Philadelphia, Pennsylvania,
the Company shall execute, the Trustee, at the Security Registrar's request,
shall authenticate and such office or agency shall deliver in the name of the
transferee or transferees a new Debt Security or Debt Securities of the same
series as the Debt Security presented for a like aggregate principal amount.
All Debt Securities presented or surrendered for exchange or
registration of transfer, as provided in this Section, shall be accompanied (if
so required by the Company or the Security Registrar) by a written instrument or
instruments of transfer, in form satisfactory to the Company or the Security
Registrar, duly executed by the registered holder or by such holder's duly
authorized attorney in writing.
(c) No service charge shall be made for any exchange or registration of
transfer of Debt Securities, or issue of new Debt Securities in case of partial
redemption of any series, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge in relation thereto,
other than exchanges pursuant to Section 2.06, Section 3.03(b) and Section 9.04
not involving any transfer.
(d) The Company shall not be required (i) to issue, exchange or register
the transfer of any Debt Securities during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of less
than all the Outstanding Debt Securities of the same series and ending at the
close of business on the day of such mailing, nor (ii) to register the transfer
of or exchange any Debt Securities of any series or portions thereof called for
redemption. The provisions of this Section 2.05 are, with respect to any Global
Security, subject to Section 2.11 hereof.
SECTION 2.06. Temporary Securities. Pending the preparation of definitive
Debt Securities of any series, the Company may execute, and the Trustee shall,
upon receipt of a Company Order requesting the Trustee's authentication thereof,
authenticate and deliver, temporary Debt Securities (printed, lithographed or
typewritten) of any authorized denomination. Such temporary Debt Securities
shall be substantially in the form of the definitive Debt Securities in lieu of
which they are issued, but with such
10
omissions, insertions and variations as may be appropriate for temporary Debt
Securities, all as may be determined by the Company. Every temporary Debt
Security of any series shall be executed by the Company and be authenticated by
the Trustee upon the same conditions and in substantially the same manner, and
with like effect, as the definitive Debt Securities of such series. Without
unnecessary delay the Company will execute and will furnish definitive Debt
Securities of such series and thereupon any or all temporary Debt Securities of
such series may be surrendered in exchange therefor (without charge to the
holders), at the office or agency of the Company designated for such purpose in
Philadelphia, Pennsylvania, and the Trustee shall, upon receipt of a Company
Order requesting the Trustee's authentication thereof, authenticate and such
office or agency shall deliver in exchange for such temporary Debt Securities an
equal aggregate principal amount of definitive Debt Securities of such series,
unless the Company advises the Trustee to the effect that definitive Debt
Securities need not be executed and furnished until further notice from the
Company. Until so exchanged, the temporary Debt Securities of such series shall
be entitled to the same benefits under this Indenture as definitive Debt
Securities of such series authenticated and delivered hereunder.
SECTION 2.07. Mutilated, Destroyed, Lost or Stolen Debt Securities. In
case any temporary or definitive Debt Security shall become mutilated or be
destroyed, lost or stolen, the Company (subject to the next succeeding sentence)
shall execute and the Trustee (subject as aforesaid) shall, upon receipt of a
Company Order requesting the Trustee's authentication and delivery thereof,
authenticate and deliver, a new Debt Security of the same series, bearing a
number not contemporaneously outstanding, in exchange and substitution for the
mutilated Debt Security, or in lieu of and in substitution for the Debt Security
so destroyed, lost or stolen. In every case the applicant for a substituted Debt
Security shall furnish to the Company and the Trustee such security or indemnity
as may be required by them to save each of them harmless, and, in every case of
destruction, loss or theft, the applicant shall also furnish to the Company and
the Trustee evidence to their satisfaction of the destruction, loss or theft of
the applicant's Debt Security and of the ownership thereof. Upon the issuance of
any substituted Debt Security, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Trustee) connected therewith. In case any Debt Security that has matured or is
about to mature shall become mutilated or be destroyed, lost or stolen, the
Company may, instead of issuing a substitute Debt Security, pay or authorize the
payment of the same (without surrender thereof except in the case of a mutilated
Debt Security) if the applicant for such payment shall furnish to the Company
and the Trustee such security or indemnity as they may require to save them
harmless, and, in case of destruction, loss or theft, evidence to the
satisfaction of the Company and the Trustee of the destruction, loss or theft of
such Debt Security and of the ownership thereof.
Every replacement Debt Security issued pursuant to the provisions of
this Section shall constitute an additional contractual obligation of the
Company, whether or not the mutilated, destroyed, lost or stolen Debt Security
shall be found at any time, or be enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and proportionately with any and
all other Debt Securities of the same series duly issued hereunder. All Debt
Securities shall be held and owned upon the express condition that the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Debt Securities, and shall preclude (to the
extent lawful) any and all other rights or remedies, notwithstanding any law or
statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
SECTION 2.08. Cancellation. All Debt Securities surrendered for the
purpose of payment, redemption, exchange or registration of transfer shall, if
surrendered to the Company or any paying agent, be delivered to the Trustee for
cancellation, or, if surrendered to the Trustee, shall be cancelled by it, and
no Debt Securities shall be issued in lieu thereof except as expressly required
or permitted by any of the
11
provisions of this Indenture. On request of the Company at the time of such
surrender, the Trustee shall deliver to the Company canceled Debt Securities
held by the Trustee. In the absence of such request the Trustee may dispose of
canceled Debt Securities in accordance with its standard procedures and deliver
a certificate of disposition to the Company. If the Company shall otherwise
acquire any of the Debt Securities, however, such acquisition shall not operate
as a redemption or satisfaction of the indebtedness represented by such Debt
Securities unless and until the same are delivered to the Trustee for
cancellation.
SECTION 2.09. Benefits of Indenture. Nothing in this Indenture or in the
Debt Securities, express or implied, shall give or be construed to give to any
Person, other than the parties hereto and the holders of the Debt Securities
(and, with respect to the provisions of Article XIV, the holders of Senior
Indebtedness) any legal or equitable right, remedy or claim under or in respect
of this Indenture, or under any covenant, condition or provision herein
contained; all such covenants, conditions and provisions being for the sole
benefit of the parties hereto and of the holders of the Debt Securities (and,
with respect to the provisions of Article XIV, the holders of Senior
Indebtedness).
SECTION 2.10. Authenticating Agent. So long as any of the Debt Securities
of any series remain Outstanding, there may be an Authenticating Agent for any
or all such series of Debt Securities which the Trustee shall have the right to
appoint. Said Authenticating Agent shall be authorized to authenticate Debt
Securities of such series issued upon exchange, transfer or partial redemption
thereof, and Debt 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. All references in this Indenture to the
authentication of Debt Securities by the Trustee shall be deemed to include
authentication by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall be a corporation that (i) would be permitted
under the Trust Indenture Act to act as Trustee under an indenture qualified
thereunder, (ii) has a combined capital and surplus, as most recently reported
or determined by it, required of the Trustee under Section 7.09 and sufficient
under the laws of any jurisdiction under which it is organized or in which it is
doing business to conduct a trust business, (iii) is otherwise authorized under
such laws to conduct such business and (iv) is subject to supervision or
examination by federal or state authorities. If at any time any Authenticating
Agent shall cease to be eligible in accordance with these provisions, it shall
resign immediately.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at any
time (and upon receipt of a Company Order requesting the termination thereof
shall) terminate the agency of any Authenticating Agent by giving written notice
of termination to such Authenticating Agent and to the Company. Upon
resignation, termination or cessation of eligibility of any Authenticating
Agent, the Trustee may appoint an eligible successor Authenticating Agent
acceptable to the Company. Any successor Authenticating Agent, upon acceptance
of its appointment hereunder, shall become vested with all the rights, powers
and duties of its predecessor hereunder as if originally named as an
Authenticating Agent pursuant hereto.
SECTION 2.11. Global Securities. (a) If the Company shall establish
pursuant to Section 2.01 that the Debt Securities of a particular series are to
be issued as a Global Security or Securities, then the Company shall execute and
the Trustee shall, in accordance with Section 2.04, authenticate and deliver, a
Global Security that (i) shall represent, and shall be denominated in an amount
equal to the aggregate principal amount of, all of the Outstanding Debt
Securities of such series, (ii) shall be registered in the name of the
Depository or its nominee, (iii) shall be delivered by the Trustee to the
Depository or pursuant to the Depository's instruction and (iv) shall bear a
legend substantially to the following effect: "Except as otherwise provided in
Section 2.11 of the Indenture, this Debt Security may be transferred, in whole
but not in part, only to another nominee of the Depository or to a successor
Depository or to a nominee of such successor Depository."
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(b) Notwithstanding the provisions of Section 2.05, the Global Security or
Securities of a series may be transferred, in whole but not in part and in the
manner provided in Section 2.05, only to another nominee of the Depository for
such series, or to a successor Depository for such series selected or approved
by the Company or to a nominee of such successor Depository.
(c) If at any time the Depository for a series of the Debt Securities
notifies the Company that it is unwilling or unable to continue as Depository
for such series or if at any time the Depository for such series shall no longer
be registered or in good standing under the Exchange Act, or other applicable
statute or regulation, at a time when the Depository is required to be so
registered to act as such Depository and a successor Depository for such series
is not appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such condition, as the case may be, this Section 2.11
shall no longer be applicable to the Debt Securities of such series and the
Company will execute and, subject to Section 2.05 and upon receipt of an
Officer's Certificate stating that the Company has determined that an event set
forth above has occurred, the Trustee will authenticate and deliver the Debt
Securities of such series in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security or Securities of such series in exchange
for such Global Security or Securities. In addition, the Company may at any time
determine that the Debt Securities of any series shall no longer be represented
by a Global Security or Securities and that the provisions of this Section 2.11
shall no longer apply to the Debt Securities of such series. In such event, the
Company will execute and subject to Section 2.05, the Trustee, upon receipt of
an Officers' Certificate evidencing such determination by the Company, will
authenticate and deliver the Debt Securities of such series in definitive
registered form without coupons, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the Global Security
or Securities of such series in exchange for such Global Security or Securities.
Upon the exchange of the Global Security or Securities for such Debt Securities
in definitive registered form without coupons, in authorized denominations, the
Global Security or Securities shall be canceled by the Trustee in the manner set
forth in Section 2.08. Such Debt Securities in definitive registered form issued
in exchange for the Global Security or Securities pursuant to this Section
2.11(c) shall be registered in such names and in such authorized denominations
as the Depository, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall deliver
such Debt Securities to the Depository for delivery to the Persons in whose
names such Debt Securities are so registered.
ARTICLE III
REDEMPTION OF DEBT SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.01. Redemption. The Company may redeem the Debt Securities of
any series issued hereunder on and after the dates and in accordance with the
terms established for such series pursuant to Section 2.01 hereof.
SECTION 3.02. Notice of Redemption. (a) In case the Company shall desire
to exercise such right to redeem all or, as the case may be, a portion of the
Debt Securities of any series in accordance with the right reserved so to do,
the Company shall, or shall cause the Trustee to, give notice of such redemption
to holders of the Debt Securities of such series to be redeemed by mailing,
first class postage prepaid, a notice of such redemption not less than 30 days
and not more than 90 days before the date fixed for redemption of that series to
such holders at their last addresses as they shall appear upon the Security
Register unless a shorter period is specified in the Debt Securities to be
redeemed. Any notice that is mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the registered
holder receives the notice. In any case, failure duly to give such notice to the
holder of any Debt Security of any series designated for redemption in whole or
in part, or any defect in the notice, shall not affect the validity of the
proceedings for the redemption of any other Debt Securities of such series or
any other series. In the case of any redemption of Debt Securities prior to the
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expiration of any restriction on such redemption provided in the terms of such
Debt Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with any such
restriction.
Each such notice of redemption shall specify the date fixed for
redemption and the redemption price at which Debt Securities of that series are
to be redeemed, and shall state that payment of the redemption price of such
Debt Securities to be redeemed will be made at the office or agency of the
Company in Philadelphia, Pennsylvania or at the Corporate Trust Office, upon
presentation and surrender of such Debt Securities, that interest accrued to the
date fixed for redemption will be paid as specified in said notice, that from
and after said date interest will cease to accrue and that the redemption is for
a sinking fund, if such is the case. If less than all the Debt Securities of a
series are to be redeemed, the notice to the holders of Debt Securities of that
series to be redeemed in whole or in part shall specify the particular Debt
Securities to be so redeemed. In case any Debt Security is to be redeemed in
part only, the notice that relates to such Debt Security shall state the portion
of the principal amount thereof to be redeemed, and shall state that on and
after the redemption date, upon surrender of such Debt Security, a new Debt
Security or Debt Securities of such series in principal amount equal to the
unredeemed portion thereof will be issued.
(b) If less than all the Debt Securities of a series are to be redeemed,
the Company shall give the Trustee at least 45 days' notice in advance of the
date fixed for redemption as to the aggregate principal amount of Debt
Securities of the series to be redeemed and the Company's selection of, by lot
or in such other manner as it shall deem appropriate and fair in its discretion
and that may provide for the selection of a portion or portions (equal to
twenty-five U.S. dollars ($25) or any integral multiple thereof) of the
principal amount of such Debt Securities of a denomination larger than $25, the
Debt Securities to be redeemed in whole or in part.
The Company may, if and whenever it shall so elect, by delivery of a
Company Order signed on its behalf by its President or any Vice President,
instruct the Trustee or any paying agent to call all or any part of the Debt
Securities of a particular series for redemption and to give notice of
redemption in the manner set forth in this Section, such notice to be in the
name of the Company or its own name as the Trustee or such paying agent may deem
advisable. In any case in which notice of redemption is to be given by the
Trustee or any such paying agent, the Company shall deliver or cause to be
delivered to, or permit to remain with, the Trustee or such paying agent, as the
case may be, such Security Register, transfer books or other records, or
suitable copies or extracts therefrom, sufficient to enable the Trustee or such
paying agent to give any notice by mail that may be required under the
provisions of this Section.
SECTION 3.03. Payment Upon Redemption. (a) If the giving of notice of
redemption shall have been completed as provided in Section 3.02, the Debt
Securities or portions of Debt Securities of the series to be redeemed specified
in such notice shall become due and payable on the date and at the place stated
in such notice at the applicable redemption price, together with interest
accrued to the date fixed for redemption and interest on such Debt Securities or
portions of Debt Securities shall cease to accrue on and after the date fixed
for redemption, unless the Company shall default in the payment of such
redemption price and accrued interest with respect to any such Debt Security or
portion thereof. On presentation and surrender of such Debt Securities on or
after the date fixed for redemption at the place of payment specified in the
notice, said Debt Securities shall be paid and redeemed at the applicable
redemption price for such series, together with interest accrued thereon to the
date fixed for redemption (but if the date fixed for redemption is an Interest
Payment Date, the interest installment payable on such date shall be payable to
the registered holder at the close of business on the applicable record date
pursuant to Section 2.03).
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(b) Upon presentation of any Debt Security of such series that is to be
redeemed in part only, the Company shall execute and the Trustee shall, upon
receipt of a Company Order requesting the Trustee's authentication thereof,
authenticate and the office or agency where the Debt Security is presented shall
deliver to the holder thereof, at the expense of the Company, a new Debt
Security or Debt Securities of the same series, of authorized denominations in
principal amount equal to the unredeemed portion of the Debt Security so
presented.
SECTION 3.04. Sinking Fund. The provisions of Sections 3.04, 3.05 and 3.06
shall be applicable to any sinking fund for the retirement of Debt Securities of
a series, except as otherwise specified as contemplated by Section 2.01 for Debt
Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Debt Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount provided
for by the terms of Debt Securities of any series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of Debt Securities
of any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 3.05. Each sinking fund payment shall be
applied to the redemption of Debt Securities of any series as provided for by
the terms of Debt Securities of such series.
SECTION 3.05. Satisfaction of Sinking Fund Payments with Debt Securities.
The Company (i) may deliver Outstanding Debt Securities of a series (other than
any Debt Securities previously called for redemption) and (ii) may apply as a
credit Debt Securities of a series that have been redeemed either at the
election of the Company pursuant to the terms of such Debt Securities or through
the application of permitted optional sinking fund payments pursuant to the
terms of such Debt Securities, in each case in satisfaction of all or any part
of any sinking fund payment with respect to the Debt Securities of such series
required to be made pursuant to the terms of such Debt Securities as provided
for by the terms of such series, provided that such Debt Securities have not
been previously so credited. Such Debt Securities shall be received and credited
for such purpose by the Trustee at the redemption price specified in such Debt
Securities for redemption through operation of the sinking fund and the amount
of such sinking fund payment shall be reduced accordingly.
SECTION 3.06. Redemption of Debt Securities for Sinking Fund. Not less
than 45 days prior to each sinking fund payment date for any series of Debt
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of the series, the portion thereof, if any, that is to be
satisfied by delivering and crediting Debt Securities of that series pursuant to
Section 3.05 and the basis for such credit and will, together with such
Officers' Certificate, deliver to the Trustee any Debt Securities to be so
delivered. Not less than 30 days before each such sinking fund payment date, the
Company shall select the Debt Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 3.02 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 3.02. Such notice having been duly given, the
redemption of such Debt Securities shall be made upon the terms and in the
manner stated in Section 3.03.
ARTICLE IV
COVENANTS OF THE COMPANY
SECTION 4.01. Payment of Principal, Premium and Interest. The Company will
duly and punctually pay or cause to be paid the principal of (and premium, if
any) and interest on the Debt Securities of that series at the time and place
and in the manner provided herein and established with respect to such Debt
Securities.
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SECTION 4.02. Maintenance of Office or Agency. So long as any series of
the Debt Securities remain Outstanding, the Company agrees to maintain an office
or agency in Philadelphia, Pennsylvania, with respect to each such series and at
such other location or locations as may be designated as provided in this
Section 4.02, where (i) Debt Securities of that series may be presented for
payment, (ii) Debt Securities of that series may be presented as hereinabove
authorized for registration of transfer and exchange, and (iii) notices and
demands to or upon the Company in respect of the Debt Securities of that series
and this Indenture may be given or served, such designation to continue with
respect to such office or agency until the Company shall, by written notice
signed by its President or a Vice President and delivered to the Trustee,
designate some other office or agency for such purposes or any of them. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, notices and demands.
SECTION 4.03. Paying Agents. (a) The Company shall be the initial paying
agent. If the Company shall appoint one or more paying agents for all or any
series of the Debt Securities, other than the Trustee, the Company will cause
each such paying agent to execute and deliver to the Trustee an instrument in
which such agent shall agree with the Trustee, subject to the provisions of this
Section:
(1) that it will hold all sums held by it as such
paying agent for the payment of the principal of (and premium,
if any) or interest on the Debt Securities of that series
(whether such sums have been paid to it by the Company or by
any other obligor of such Debt Securities) in trust for the
benefit of the Persons entitled thereto;
(2) that it will give the Trustee notice of any
failure by the Company to make any payment of the principal of
(and premium, if any) or interest on the Debt Securities of
that series when the same shall be due and payable;
(3) that it will, at any time during the continuance
of any failure referred to in the preceding paragraph (a)(2)
above, upon the written request of the Trustee, forthwith pay
to the Trustee all sums so held in trust by such paying agent;
and
(4) that it will perform all other duties of paying
agent as set forth in this Indenture.
(b) If the Company shall act as its own paying agent with respect to any
series of the Debt Securities, it will on or before each due date of the
principal of (and premium, if any) or interest on Debt Securities of that
series, set aside, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay such principal (and premium, if any) or
interest so becoming due on Debt Securities of that series until such sums shall
be paid to such Persons or otherwise disposed of as herein provided and will
promptly notify the Trustee of such action, or any failure by it to take such
action. Whenever the Company shall have one or more paying agents for any series
of Debt Securities, it will, prior to each due date of the principal of (and
premium, if any) or interest on any Debt Securities of that series, deposit with
the paying agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such paying
agent is the Trustee) the Company will promptly notify the Trustee of this
action or failure so to act.
(c) Notwithstanding anything in this Section to the contrary, (i) the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Section 11.05, and (ii) the Company may at any time, for the
purpose of obtaining the satisfaction and discharge of this Indenture or for any
other
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purpose, pay, or 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 terms and conditions as those upon which such sums were
held by the Company or such paying agent; and, upon such payment by any paying
agent to the Trustee, such paying agent shall be released from all further
liability with respect to such money.
SECTION 4.04. Appointment to Fill Vacancy in Office of Trustee. The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 7.10, a Trustee, so that there
shall at all times be a Trustee hereunder.
SECTION 4.05. Compliance with Consolidation Provisions. The Company will
not, while any of the Debt Securities remain Outstanding, consolidate with, or
merge into, or merge into itself, or sell or convey all or substantially all of
its property to any other company unless the provisions of Article X hereof are
complied with.
SECTION 4.06. Limitation on Dividends; Transactions with Affiliates. (a)
If Debt Securities are issued to a PECO Trust or a trustee of such trust in
connection with the issuance of Trust Securities by such PECO Trust and (i)
there shall have occurred any event that would constitute an Event of Default or
(ii) the Company shall be in default with respect to its payment or any
obligations under the Preferred Securities Guarantee or Common Securities
Guarantee relating to such Trust Securities, then the Company shall not declare
or pay any dividend on, make any distributions with respect to, or redeem,
purchase or make a liquidation payment with respect to, any of its capital
stock.
(b) If Debt Securities are issued to a PECO Trust or a trustee of such
trust in connection with the issuance of Trust Securities by such PECO Trust and
the Company shall have given notice of its election to defer payments of
interest on such Debt Securities by extending the interest payment period as
provided in any indenture supplemental hereto and such period, or any extension
thereof, shall be continuing, then the Company shall not declare or pay any
dividend, or make any distributions with respect to, or redeem, purchase or make
a liquidation payment with respect to, any of its capital stock.
SECTION 4.07. Covenants as to PECO Trust. In the event Debt Securities are
issued and sold to a PECO Trust in connection with the issuance of Trust
Securities by such trust, for so long as such Trust Securities remain
outstanding, the Company will (i) maintain 100% direct or indirect ownership of
the Common Securities of such trust; provided, however, that any permitted
successor of the Company under the Indenture may succeed to the Company's
ownership of the Common Securities, (ii) not cause, as sponsor of such trust, or
permit, as holder of Common Securities of such trust, the dissolution,
winding-up or termination of such trust, except in connection with a
distribution of Debt Securities as provided in the Declaration and in connection
with certain mergers, consolidations or amalgamations permitted by the
Declaration and (iii) use its reasonable efforts to cause such trust (a) to
remain a statutory trust, except in connection with a distribution of Debt
Securities, the redemption of all of the Trust Securities of such PECO Trust or
certain mergers, consolidations or amalgamations, each as permitted by the
Declaration of such PECO Trust, and (b) to otherwise continue to be classified
for United States federal income tax purposes as a grantor trust.
SECTION 4.08. Corporate Existence. The Company will, subject to the
provisions of Article X, at all times maintain its corporate existence and right
to carry on business and will duly procure all renewals and extensions thereof,
and, to the extent necessary or desirable in the operation of its business, will
use its best efforts to maintain, preserve and renew all of its rights, powers,
privileges and franchises.
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ARTICLE V
SECURITYHOLDERS, LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 5.01. Company to Furnish Trustee Names and Addresses of
Securityholders. The Company will furnish or cause to be furnished to the
Trustee (a) on a quarterly basis on each regular record date (as defined in
Section 2.03) a list, in such form as the Trustee may reasonably require, of the
names and addresses of the holders of each series of Debt Securities as of such
regular record date, provided that the Company shall not be obligated to furnish
or cause to furnish such list at any time that the list shall not differ in any
respect from the most recent List of Holders furnished to the Trustee by the
Company and (b) at such other times as the Trustee may request in writing within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished; provided, however, that in either case, no such list need be
furnished for any series for which the Trustee shall be the Security Registrar.
SECTION 5.02. Preservation Of Information; Communications With
Securityholders. (a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of the
holders of Debt Securities contained in the most recent List of Holders
furnished to it as provided in Section 5.01 and as to the names and addresses of
holders of Debt Securities received by the Trustee in its capacity as Security
Registrar (if acting in such capacity).
(b) The Trustee may destroy any List of Holders furnished to it as
provided in Section 5.01 upon receipt of a new List of Holders so furnished.
(c) Securityholders may communicate as provided in Section 312(b) of the
Trust Indenture Act with other Securityholders with respect to their rights
under this Indenture or under the Debt Securities.
(d) The Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under Section 312(b) of the Trust Indenture
Act.
SECTION 5.03. Reports By the Company. (a) The Company covenants and agrees
to file with the Trustee, within 15 days after the Company is required to file
the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and regulations
prescribe) that the Company may be required to file with the Commission pursuant
to Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not
required to file information, documents or reports pursuant to either of such
sections, then to file with the Trustee and the Commission, in accordance with
the rules and regulations prescribed from time to time by the Commission, such
of the supplementary and periodic information, documents and reports that may be
required pursuant to Section 13 of the Exchange Act, in respect of a Debt
Security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations.
(b) The Company covenants and agrees to file with the Trustee and the
Commission, in accordance with the rules and regulations prescribed from to time
by the Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants provided
for in this Indenture as may be required from time to time by such rules and
regulations.
(c) The Company covenants and agrees to transmit by mail, first class
postage prepaid, or reputable overnight delivery service that provides for
evidence of receipt, to the Securityholders, as their names and addresses appear
upon the Security Register, within 30 days after the filing thereof with the
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Trustee, such summaries of any information, documents and reports required to be
filed by the Company pursuant to subsections (a) and (b) of this Section as may
be required by rules and regulations prescribed from time to time by the
Commission.
(d) The Company covenants and agrees to furnish to the Trustee, not less
often than annually, a brief Certificate from the Company's principal executive
officer, principal financial officer or principal accounting officer as to his
or her knowledge of the Company's compliance with all conditions and covenants
under the Indenture.
SECTION 5.04. Reports by the Trustee. (a) On or before June 15 in each
year in which any of the Debt Securities are Outstanding, the Trustee shall
transmit by mail, first class postage prepaid, to the Securityholders, as their
names and addresses appear upon the Security Register, a brief report dated as
of the preceding April 15, if and to the extent required under Section 313(a) of
the Trust Indenture Act.
(b) The Trustee shall comply with Sections 313(b) and 313(c) of the Trust
Indenture Act.
(c) A copy of each such report shall, at the time of such transmission to
Securityholders, be filed by the Trustee with the Company, with each stock
exchange upon which any Debt Securities are listed (if so listed) and also with
the Commission. The Company agrees to notify the Trustee when any Debt
Securities become listed on any stock exchange.
ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 6.01. Events of Default. (a) Whenever used herein with respect to
Debt Securities of a particular series, "Event of Default" means any one or more
of the following events that has occurred and is continuing:
(1) the Company defaults in the payment of any installment of interest
upon any of the Debt Securities of that series, as and when the same shall
become due and payable, and continuance of such default for a period of 30 days;
provided, however, that a valid extension of an interest payment period by the
Company in accordance with the terms established for such Debt Securities under
Section 2.01, shall not constitute a default in the payment of interest for this
purpose;
(2) the Company defaults in the payment of the principal of (or premium,
if any, on) any of the Debt Securities of that series as and when the same shall
become due and payable whether at maturity, upon redemption, by declaration or
otherwise, or in any payment required by any sinking or analogous fund
established with respect to that series; provided, however, that a valid
extension of the maturity of such Debt Securities in accordance with the terms
established for such Debt Securities under Section 2.01 shall not constitute a
default in the payment of principal or premium, if any;
(3) the Company fails to observe or perform any other of its covenants or
agreements with respect to that series contained in this Indenture or otherwise
established with respect to that series of Debt Securities pursuant to Section
2.01 hereof (other than a covenant or agreement that has been expressly included
in this Indenture solely for the benefit of one or more series of Debt
Securities other than such series) for a period of 90 days after the date on
which written notice of such failure, requiring the same to be remedied and
stating that such notice is a "Notice of Default" hereunder, shall have been
given to the Company by the Trustee, by registered or certified mail, or to the
Company and the Trustee by the holders of at least 25% in principal amount of
the Debt Securities of that series at the time Outstanding;
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(4) the Company pursuant to or within the meaning of any Bankruptcy Law
(i) commences a voluntary case, (ii) consents to the entry of an order for
relief against it in an involuntary case, (iii) consents to the appointment of a
Custodian of it or for all or substantially all of its property or (iv) makes a
general assignment for the benefit of its creditors;
(5) a court of competent jurisdiction enters an order under any Bankruptcy
Law that (i) is for relief against the Company in an involuntary case, (ii)
appoints a Custodian of the Company for all or substantially all of its
property, or (iii) orders the liquidation of the Company, and the order or
decree remains unstayed and in effect for 90 days; or
(6) in the event Debt Securities are issued and sold to a PECO Trust or
other trust of the Company in connection with the issuance of Trust Securities
by such trust, such trust shall have voluntarily or involuntarily dissolved,
wound-up its business or otherwise terminated its existence except in connection
with (i) the distribution of Debt Securities to holders of Trust Securities in
liquidation of their interests in such trust, (ii) the redemption of all
outstanding Trust Securities of such trust, and (iii) mergers, consolidations or
amalgamations, each as permitted by the Declaration of such trust.
(b) If an Event of Default described in clauses 1, 2, 3 or 6 of Section
6.01(a) above with respect to Debt Securities of any series at the time
outstanding occurs and is continuing, unless the principal of all the Debt
Securities of that series shall have already become due and payable, either the
Trustee or the holders of not less than 25% in aggregate principal amount of the
Debt Securities of that series then Outstanding hereunder, by notice in writing
to the Company (and to the Trustee, if given by such Securityholders), may
declare the principal of all the Debt Securities of that series to be due and
payable immediately, and upon any such declaration the same shall become and
shall be immediately due and payable, notwithstanding anything contained in this
Indenture or in the Debt Securities of that series or established with respect
to that series pursuant to Section 2.01 to the contrary. If an Event of Default
specified in clause (4) or (5) of Section 6.01(a) above occurs or is continuing,
then the principal amount of all the Debt Securities shall ipso facto become and
be immediately due and payable without any declaration or other act on the part
of the Trustee or any Securityholder.
(c) At any time after the principal of the Securities of that series
shall have been so declared due and payable, and before any judgment or decree
for the payment of the moneys due shall have been obtained or entered as
hereinafter provided, the holders of a majority in aggregate principal amount of
the Securities of that series then Outstanding hereunder, by written notice to
the Company and the Trustee, may rescind and annul such declaration and its
consequences if: (i) the Company has paid or deposited with the Trustee a sum
sufficient to pay all matured installments of interest upon all the Securities
of that series and the principal of (and premium, if any, on) any and all
Securities of that series that shall have become due otherwise than by
acceleration (with interest upon such principal and premium, if any, and, to the
extent that such payment is enforceable under applicable law, upon overdue
installments of interest, at the rate per annum expressed in the Securities of
that series to the date of such payment or deposit) and the amount payable to
the Trustee under Section 7.06, and (ii) any and all Events of Default under the
Indenture with respect to such series, other than the nonpayment of principal on
Securities of that series that shall not have become due by their terms, shall
have been remedied or waived as provided in Section 6.06.
No such rescission and annulment shall extend to or shall affect any
subsequent default or impair any right consequent thereon.
(d) In case the Trustee shall have proceeded to enforce any right with
respect to Debt Securities of that series under this Indenture and such
proceedings shall have been discontinued or abandoned because of such rescission
or annulment or for any other reason or shall have been determined
20
adversely to the Trustee, then and in every such case the Company and the
Trustee shall be restored respectively to their former positions and rights
hereunder, and all rights, remedies and powers of the Company and the Trustee
shall continue as though no such proceedings had been taken.
(e) The Trustee shall provide Securityholders with notice of all Events
of Default actually known to the Trustee within 90 days after any such Event of
Default becomes actually known to the Trustee; provided, however, that, except
in the case of default in the payment of the principal of or interest on any
Debt Security, or in the payment of any sinking or purchase fund installment,
such notice may be withheld if and so long as the board of directors, the
executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interests of the Securityholders.
SECTION 6.02. Collection of Indebtedness and Suits for Enforcement by Trustee.
(a) The Company covenants that (1) in case it shall default in the payment
of any installment of interest on any of the Securities of a series, or any
payment required by any sinking or analogous fund established with respect to
that series as and when the same shall have become due and payable, and such
default shall have continued for a period of 90 days, or (2) in case it shall
default in the payment of the principal of (or premium, if any, on) any of the
Securities of a series when the same shall have become due and payable, whether
upon maturity of the Securities of a series or upon redemption or upon
declaration or otherwise, then, upon demand of the Trustee, the Company will pay
to the Trustee, for the benefit of the holders of the Securities of that series,
the whole amount that then shall have become due and payable on all such
Securities for principal (and premium, if any) or interest, or both, as the case
may be, with interest upon the overdue principal (and premium, if any) and (to
the extent that payment of such interest is enforceable under applicable law
and, if the Securities are held by a PECO Trust, without duplication of any
other amounts paid by such trust in respect thereof) upon overdue installments
of interest at the rate per annum expressed in the Securities of that series;
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection and the amount payable to the Trustee under
Section 7.06.
(b) If the Company shall fail to pay such amounts forthwith upon such
demand, the Trustee, in its own name or as trustee of an express trust, shall be
entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or other obligor upon the
Securities of that series and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the Company or
other obligor upon the Securities of that series, wherever situated.
(c) In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, readjustment, arrangement, composition or judicial proceedings
affecting the Company or its creditors or property, the Trustee shall have power
to intervene in such proceedings and take any action therein that may be
permitted by the court and shall (except as may be otherwise provided by law) be
entitled to file such proofs of claim and other papers and documents as may be
necessary or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents or counsel) and of the holders of Securities of such
series allowed for the entire amount due and payable by the Company under this
Indenture at the date of institution of such proceedings and for any additional
amount that may become due and payable by the Company after such date, and to
collect and receive any moneys or other property payable or deliverable on any
such claim, and to distribute the same after the deduction of the amount payable
to the Trustee under Section 7.06; and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of the holders of
Securities of such series to make such payments to the Trustee, and, in the
event that
21
the Trustee shall consent to the making of such payments directly to
such Securityholders, to pay to the Trustee any amount due it under Section
7.06.
(d) All rights of action and of asserting claims under this Indenture, or
under any of the terms established with respect to Securities of that series,
may be enforced by the Trustee without the possession of any of such Securities,
or the production thereof at any trial or other proceeding relative thereto, and
any such suit or proceeding instituted by the Trustee may be brought in its own
name or as trustee of an express trust, and any recovery of judgment shall,
after provision for payment to the Trustee of any amounts due under Section
7.06, be for the ratable benefit of the holders of the Securities of such
series.
In case of an Event of Default hereunder, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture, or to enforce any other legal or
equitable remedy available to the Trustee by this Indenture or by law.
Nothing contained herein shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Securities of that series or the rights of any holder thereof or to authorize
the Trustee to vote in respect of the claim of any Securityholder in any such
proceeding.
SECTION 6.03. Application of Moneys Collected. Any moneys collected by the
Trustee pursuant to this Article with respect to a particular series of
Securities shall be applied in the following order, at the date or dates fixed
by the Trustee and, in case of the distribution of such moneys on account of
principal (or premium, if any) or interest, upon presentation of the Securities
of that series, and notation thereon of the payment, if only partially paid, and
upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection and of all
amounts payable to the Trustee under Section 7.06;
SECOND: To the payment of all Senior Indebtedness of the Company if and to
the extent required by Article XIV; and
THIRD: To the payment of the amounts then due and unpaid upon Securities
of such series for principal (and premium, if any) and interest, in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal (and premium, if any) and interest, respectively.
SECTION 6.04. Limitation on Suits. No holder of any Security of any series
shall have any right by virtue or by availing of any provision of this Indenture
to institute any suit, action or proceeding in equity or at law upon or under or
with respect to this Indenture or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless (i) such holder previously shall have
given to the Trustee written notice of an Event of Default and of the
continuance thereof with respect to the Securities of such series specifying
such Event of Default, as hereinbefore provided; (ii) the holders of not less
than 25% in aggregate principal amount of the Securities of such series then
Outstanding shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name or as trustee hereunder; (iii) such
holder or holders shall have offered to the Trustee such reasonable security and
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby reasonably satisfactory to the Trustee; and (iv) the
Trustee for 60 days after its receipt of such notice,
22
request and offer of indemnity, shall have failed to institute any such action,
suit or proceeding; and (v) during such 60 day period, the holders of a majority
in principal amount of the Securities of that series do not give the Trustee a
direction inconsistent with the request.
Notwithstanding anything contained herein to the contrary, any other
provisions of this Indenture, the right of any holder of any Security to receive
payment of the principal of (and premium, if any) and interest on such Security,
as therein provided, on or after the respective due dates expressed in such
Security (or in the case of redemption, on the redemption date), or to institute
suit for the enforcement of any such payment on or after such respective dates
or redemption date, shall not be impaired or affected without the consent of
such holder, and by accepting a Security hereunder it is expressly understood,
intended and covenanted by the taker and holder of every Security of such series
with every other such taker and holder and the Trustee, that no one or more
holders of Securities of such series shall have any right in any manner
whatsoever by virtue or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of the holders of any other of such
Securities, or to obtain or seek to obtain priority over or preference to any
other such holder, or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all
holders of Securities of series. For the protection and enforcement of the
provisions of this Section, each and every Securityholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
SECTION 6.05. Rights and Remedies Cumulative; Delay or Omission Not
Waiver. (a) Except as otherwise provided in Section 2.07, all powers and
remedies given by this Article to the Trustee or to the Securityholders shall,
to the extent permitted by law, be deemed cumulative and not exclusive of any
other powers and remedies available to the Trustee or the holders of the
Securities, by judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this Indenture or
otherwise established with respect to such Securities.
(b) No delay or omission of the Trustee or of any holder of any of the
Securities to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power, or
shall be construed to be a waiver of any such default or an acquiescence
therein; and, subject to the provisions of Section 6.04, every power and remedy
given by this Article or by law to the Trustee or the Securityholders may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Securityholders.
SECTION 6.06. Control by Securityholders. The holders of a majority in
aggregate principal amount of the Securities of any series at the time
Outstanding, determined in accordance with Section 8.04, 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 such series; provided, however, that such direction
shall not be in conflict with any rule of law or with this Indenture or be
unduly prejudicial to the rights of holders of Securities of any other series at
the time Outstanding determined in accordance with Section 8.04. Subject to the
provisions of Section 7.01, the Trustee shall have the right to decline to
follow any such direction if the Trustee in good faith shall, by a Responsible
Officer or Officers of the Trustee, determine that such direction may involve
the Trustee in personal liability. The holders of a majority in aggregate
principal amount of the Securities of any series at the time Outstanding
affected thereby, determined in accordance with Section 8.04, may on behalf of
the holders of all of the Securities of such series waive any past default in
the performance of any of the covenants contained herein or established pursuant
to Section 2.01 with respect to such series and its consequences, except (i) a
default in the payment of the principal of, or premium, if any, or interest on,
any of the Securities of that series as and when the same shall become due by
the terms of such Securities otherwise than by acceleration (unless such default
has been cured and a sum sufficient to pay all matured installments of interest
and principal and any premium has been deposited with the Trustee (in accordance
with Section 6.01(c)) or (ii) a default in the covenants contained in Section
4.06(b). Upon any such
23
waiver, the default covered thereby shall deemed to be cured for all purposes of
this Indenture and the Company, the Trustee and the holders of the Securities of
such series shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other default
or impair any right consequent thereon.
SECTION 6.07. Undertaking to Pay Costs. All parties to this Indenture
agree, and each holder of any Securities by such holder's acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under this Indenture, or in
any suit against the Trustee for any action taken or omitted by it as Trustee,
the filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Securityholder, or
group of Securityholders, holding more than 10% in aggregate principal amount of
the Outstanding Securities of any series, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of (or
premium, if any) or interest on any Security of such series, on or after the
respective due dates expressed in such Security or established pursuant to this
Indenture.
ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.01. Certain Duties and Responsibilities of Trustee. (a) The
Trustee, prior to the occurrence of an Event of Default with respect to the Debt
Securities of a series and after the curing of all Events of Default with
respect to the Debt Securities of that series that may have occurred, (i) shall
undertake to perform with respect to the Debt Securities of such series only
such duties that are specifically required to be performed by it under this
Indenture or the Trust Indenture Act and no others, and (ii) in the absence of
bad faith on the part of the Trustee, the Trustee may with respect to the Debt
Securities of such series conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the requirements of this
Indenture; however, in the case of any such certificates or opinions that by any
provision hereof are specifically required to be furnished to the Trustee, the
Trustee shall examine the same to determine whether or not they conform to the
requirements of this Indenture (but shall not be required to confirm,
investigate or otherwise determine the accuracy of mathematical calculations or
other facts stated therein). In case an Event of Default with respect to the
Securities of a series has occurred (that has not been cured or waived), the
Trustee shall exercise with respect to Debt Securities of that 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.
(b) 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:
(1) this paragraph (b) does not limit the effect of the first
sentence of Section 7.01(a);
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer or Responsible Officers
of the Trustee, unless it shall be proved that the Trustee,
was negligent in ascertaining the pertinent facts; and
(3) 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 Company or the holders of not less
than a majority in principal amount of the Debt Securities of
any series at the time
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Outstanding (including such direction
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 Debt Securities of that
series).
(c) None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal liability in
the performance of any of its duties or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that the repayment of
such funds or liability is not reasonably assured to it under the terms of this
Indenture or indemnity reasonably satisfactory to the Trustee against such risk
is not reasonably assured to it.
(d) Every provision of this Indenture and any document pursuant to which
the Trustee acts that in any way relates to the Trustee is subject to Sections
7.01 and 7.02 hereof.
(e) In the event that the Trustee is unable to decide between alternative
courses of action permitted or required by it under this Indenture, or is unsure
as to the application of any provision of this Indenture, or any such provision
is ambiguous as to its application or in conflict with any other provision of
this Indenture, permits any determination by the Trustee, or is silent or
incomplete as to the course of action that the Trustee is required to take with
respect to a particular set of facts, the Trustee may give notice (in such form
as shall be appropriate under the circumstances) to the Company and/or the
Securityholders requesting instruction from any of them, and to the extent that
the Trustee acts or refrains from acting in good faith in accordance with any
such instruction received, the Trustee shall not be personally liable, on
account of such action or inaction, to any Person. If the Trustee shall not have
received appropriate instruction within 10 days after giving notice of its
request therefor (or within such reasonable shorter period of time as may be
specified in such notice or as may be necessary under the circumstances), the
Trustee may, but shall be under no duty to, take or refrain from taking action
and shall have no personal liability to any Person for such action or inaction.
SECTION 7.02. Certain Rights of Trustee. Except as otherwise provided in Section
7.01:
(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, consent, order, approval, bond, security or other paper
or document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) Any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by a Board Resolution or a Company Order
signed by the President, or any Vice President and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer thereof (unless
other evidence in respect thereof is specifically prescribed herein);
(c) 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 or suffered or omitted by it hereunder
in good faith and in reliance thereon;
(d) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request, order or direction of
any of the Securityholders, pursuant to the provisions of this Indenture, unless
such Securityholders shall have offered to the Trustee security or indemnity
reasonably satisfactory to the Trustee against the costs, expenses and
liabilities that may be incurred by it in compliance therewith; nothing
contained herein shall, however, relieve the Trustee of the obligation, upon the
occurrence of an Event of Default with respect to a series of the Debt
Securities (that has not been cured or waived) to exercise with respect to Debt
Securities of that series such of the rights and powers vested in it by this
Indenture, and to use the same degree of care and skill in their
25
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs;
(e) The Trustee shall not be liable for any action taken or omitted to be
taken by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture;
(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, consent, order, approval, bond, security, or
other papers or documents, but the Trustee, in its sole discretion, may make
such further inquiry or investigation into such facts or matters as it may see
fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine, during business hours and upon
reasonable notice, the books, records and premises of the Company, personally or
by agent or attorney and shall incur no personal liability to any Person by
reason of such inquiry or investigation. The reasonable expense of every such
examination shall be paid by the Company or, if paid by the Trustee, shall be
repaid by the Company upon demand;
(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) Whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
require and rely upon an Officers' Certificate.
SECTION 7.03. Trustee Not Responsible for Recitals or Issuance of Debt
Securities. (a) The recitals contained herein and in the Debt Securities shall
be taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same.
(b) The Trustee makes no representations as to the validity or sufficiency
of this Indenture or of the Debt Securities.
(c) The Trustee shall not be accountable for the use or application by the
Company of any of the Debt Securities or of the proceeds of such Debt
Securities, or for the use or application of any moneys paid over by the Trustee
in accordance with any provision of this Indenture or established pursuant to
Section 2.01, or for the use or application of any moneys received by any paying
agent other than the Trustee.
SECTION 7.04. May Hold Debt Securities. The Trustee or any paying agent or
Security Registrar, in its individual or any other capacity, may become the
owner or pledgee of Debt Securities with the same rights it would have if it
were not Trustee, paying agent or Security Registrar.
SECTION 7.05. Moneys Held in Trust. Subject to the provisions of Section
11.05, all moneys received by the Trustee shall, until used or applied as herein
provided, be held in trust for the purposes for which they were received, but
need not be segregated from other funds except to the extent required by law.
The Trustee shall not be liable for interest on any moneys held by it hereunder
except as it may otherwise agree with the Company.
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SECTION 7.06. Compensation and Reimbursement. (a) The Company covenants
and agrees to pay to the Trustee, and the Trustee shall be entitled to, such
reasonable compensation (which shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust), as the Company and
the Trustee may from time to time agree in writing, for all services rendered by
it in the execution of the trusts hereby created and in the exercise and
performance of any of the powers and duties hereunder of the Trustee, and,
except as otherwise expressly provided herein, the Company will pay or reimburse
the Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any of the
provisions of this Indenture (including the reasonable compensation and the
expenses and disbursements of its counsel and of all Persons not regularly in
its employ) except any such expense, disbursement or advance as may arise from
its negligence or bad faith. The Company also covenants and agrees to indemnify
the Trustee (and its officers, agents, directors and employees) for, and to hold
it harmless against, any loss, liability or expense, to the extent incurred
without negligence or bad faith on the part of the Trustee, arising out of or in
connection with the acceptance or administration of this trust, including the
costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.
(b) The obligations of the Company under this Section to compensate and
indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder
and shall survive the satisfaction and discharge of this Indenture and the
resignation or removal of the Trustee. Such additional indebtedness shall be
secured by a lien prior to that of the Debt Securities upon all property and
funds held or collected by the Trustee as such, except funds held in trust for
the benefit of the holders of particular Debt Securities.
(c) When the Trustee renders services or incurs expenses after the
occurrence of a Default specified in Section 6.01, the compensation for such
services and expenses of the Trustee hereunder are intended by the Company and
the Trustee to constitute expenses of administration under any Bankruptcy Law.
SECTION 7.07. Reliance on Officers' Certificate. Except as otherwise
provided in Section 7.01, whenever in the administration of the provisions of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting to take any
action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and established
by an Officers' Certificate delivered to the Trustee and such certificate, in
the absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted to be taken by
it under the provisions of this Indenture upon the faith thereof.
SECTION 7.08. Qualification; Conflicting Interests. If the Trustee has or
shall acquire any "conflicting interest" within the meaning of Section 310(b) of
the Trust Indenture Act, the Trustee and the Company shall in all respects
comply with the provisions of Section 310(b) of the Trust Indenture Act.
SECTION 7.09. Corporate Trustee Required; Eligibility. There shall at all
times be a Trustee with respect to the Debt Securities issued hereunder which
shall at all times be a corporation organized and doing business under the laws
of the United States of America or any State or Territory thereof or of the
District of Columbia, or a corporation or other Person permitted to act as
trustee by the Commission, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least Fifty Million
U.S. dollars ($50,000,000), and subject to supervision or examination by
Federal, State, Territorial or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
corporation shall be
27
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. The Company may not, nor may any Person
directly or indirectly controlling, controlled by, or under common control with
the Company, serve as Trustee. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 7.10.
SECTION 7.10. Resignation and Removal; Appointment of Successor. (a) The
Trustee or any successor hereafter appointed, may at any time resign with
respect to the Debt Securities of one or more series by giving written notice
thereof to the Company and the Guarantor and by transmitting notice of
resignation by mail, first class postage prepaid, to the Securityholders of such
series, as their names and addresses appear upon the Security Register. Upon
receiving such notice of resignation, the Company shall promptly appoint a
successor Trustee with respect to Debt Securities of such series by written
instrument, in duplicate, executed by order of the Board of Directors, one copy
of which instrument shall be delivered to the resigning Trustee and one copy to
the successor trustee. If no successor trustee shall have been so appointed and
have accepted appointment within 30 days after the mailing 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 Debt
Securities of such series, or any Securityholder of that series who has been a
bona fide holder of a Debt Security or Debt Securities for at least six months
may, subject to the provisions of Section 6.07, on behalf of himself and all
others similarly situated, petition any such court for the appointment of a
successor trustee. Such court may thereupon after such notice, if any, as it may
deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any one of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of
subsection (a) of Section 7.01 after written request therefor by the
Company or by any Securityholder who has been a bona fide holder of a
Debt Security or Debt Securities for at least six months; or
(2) the Trustee shall cease to be eligible in accordance with
the provisions of Section 7.09 and shall fail to resign after written
request therefor by the Company or by any such Securityholder; or
(3) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy
proceeding, or a receiver of the Trustee or of its property shall be
appointed or consented to, 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,
the Company may remove the Trustee with respect to all Debt Securities
and appoint a successor trustee by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which
instrument shall be delivered to the Trustee so removed and one copy to
the successor trustee, or, subject to the provisions of Section 6.07,
unless the Trustee's duty to resign is stayed as provided herein, any
Securityholder who has been a bona fide holder of a Debt Security or
Debt Securities for at least six months may, on behalf of that holder
and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a
successor trustee. Such court may thereupon after such notice, if any,
as it may deem proper and prescribe, remove the Trustee and appoint a
successor trustee.
(c) The holders of a majority in aggregate principal amount of the Debt
Securities of any series at the time Outstanding may at any time remove the
Trustee with respect to such series by so notifying the Trustee and the Company
and may appoint a successor Trustee for such series with the consent of the
Company.
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(d) Any resignation or removal of the Trustee and appointment of a
successor trustee with respect to the Debt Securities of a series pursuant to
any of the provisions of this Section shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 7.11.
(e) Any successor trustee appointed pursuant to this Section may be
appointed with respect to the Debt Securities of one or more series or all of
such series, and at any time there shall be only one Trustee with respect to the
Debt Securities of any particular series.
SECTION 7.11. Acceptance of Appointment By Successor. (a) In case of the
appointment hereunder of a successor trustee with respect to all Debt
Securities, every such successor trustee so appointed shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on the request of the Company or the
successor trustee, such retiring Trustee shall, upon payment of its charges,
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 Debt Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor trustee with respect to the Debt
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Debt Securities of that or those series to which the appointment of such
successor trustee relates, (2) 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 Debt Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust, 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 that no
Trustee shall be responsible for any act or failure to act on the part of any
other Trustee hereunder; 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, such retiring Trustee shall
with respect to the Debt Securities of that or those series to which the
appointment of such successor trustee relates have no further responsibility for
the exercise of rights and powers or for the performance of the duties and
obligations vested in the Trustee under this Indenture, and each such successor
trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Debt Securities of that or those series to which the appointment of such
successor trustee relates; but, on request of the Company or any successor
trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor trustee, to the extent contemplated by such supplemental indenture,
the property and money held by such retiring Trustee hereunder with respect to
the Debt Securities of that or those series to which the appointment of such
successor trustee relates.
(c) Upon request of any such successor trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor trustee all such rights,, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.
29
(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.
(e) Upon acceptance of appointment by a successor trustee as provided in
this Section, the Company shall transmit notice of the succession of such
trustee hereunder by mail, first class postage prepaid, to the Securityholders,
as their names and addresses appear upon the Security Register. If the Company
fails to transmit such notice within ten days after acceptance of appointment by
the successor trustee, the successor trustee shall cause such notice to be
transmitted at the expense of the Company.
SECTION 7.12. 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 the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided that such corporation shall be
qualified under the provisions of Section 7.08 and eligible under the provisions
of Section 7.09, without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding. In case any Debt 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 permitted under this
Section 7.12 may adopt such authentication and deliver the Debt Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Debt Securities.
SECTION 7.13. Preferential Collection of Claims Against the Company. The
Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding
any creditor relationship described in Section 311(b) of the Trust Indenture
Act. A Trustee who has resigned or been removed shall be subject to Section
311(a) of the Trust Indenture Act to the extent included therein.
ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
SECTION 8.01. Evidence of Action by Securityholders. Whenever in this
Indenture it is provided that the holders of a majority or specified percentage
in aggregate principal amount of the Debt Securities of a particular series may
take any action (including the making of any demand or request, the giving of
any notice, consent or waiver or the taking of any other action), the fact that
at the time of taking any such action the holders of such majority or specified
percentage of that series have joined therein may be evidenced by any instrument
or any number of instruments of similar tenor executed by such holders of Debt
Securities of that series in Person or by agent or proxy appointed in writing.
If the Company shall solicit from the Securityholders of any series any
request, demand, authorization, direction, notice, consent, waiver or other
action, the Company may, at its option, as evidenced by an Officers'
Certificate, fix in advance a record date for such series for the determination
of Securityholders (entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other action) but the Company shall have
no obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action may be given
before or after the record date, but only the Securityholders of record as
provided by the Security Registrar at the close of business on the record date
shall be deemed to be Securityholders for the purposes of determining whether
Securityholders of the requisite proportion of Outstanding Debt Securities of
that series have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other action, and for that
purpose the Outstanding Debt Securities of that series shall be computed as of
the record date; provided, however, that no such authorization, request, demand,
agreement, consent, direction, notice, waiver or other action by such
Securityholders on the record date
30
shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record date.
SECTION 8.02. Proof of Execution by Securityholders. Subject to the
provisions of Section 8.01, proof of the execution of any instrument by a
Securityholder (such proof will not require notarization) or his agent or proxy
and proof of the holding by any Person of any of the Debt Securities shall be
sufficient if made in the following manner:
(a) The fact and date of the execution by any such Person of any
instrument may be proved in any reasonable manner acceptable to the
Trustee.
(b) The ownership of Debt Securities shall be proved by the Security
Register of such Debt Securities or by a certificate of the Security
Registrar thereof.
(c) The Trustee may require such additional proof of any matter referred
to in this Section as it shall deem necessary.
SECTION 8.03. Who May be Deemed Owners. Prior to the due presentment for
registration of transfer of any Debt Security, the Company, the Trustee, any
paying agent and any Security Registrar may deem and treat the Person in whose
name such Debt Security shall be registered upon the Security Register as the
absolute owner of such Debt Security (whether or not such Debt Security shall be
overdue and notwithstanding any notice of ownership or writing thereon made by
anyone other than the Security Registrar) for the purpose of receiving payment
of or on account of the principal of, premium, if any, and (subject to Section
2.03) interest on such Debt Security and for all other purposes; and neither the
Company nor Guarantor nor the Trustee nor any paying agent nor any Security
Registrar shall be affected by any notice to the contrary.
SECTION 8.04. Certain Debt Securities Owned by Company Disregarded. In
determining whether the holders of the requisite aggregate principal amount of
Debt Securities of a particular series have concurred in any direction, consent,
waiver or other action under this Indenture, the Debt Securities of that series
that are owned by the Company or any other obligor on the Debt Securities of
that series or by any Person directly or indirectly controlling or controlled by
or under common control with the Company or any other obligor (including any
Affiliate of the Company or such other obligor) on the Debt Securities of that
series shall be disregarded and deemed not to be outstanding for the purpose of
any such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent, waiver or
other action, only Debt Securities of such series that the Trustee actually
knows are so owned shall be so disregarded. The Debt Securities so owned that
have been pledged in good faith may be regarded as outstanding for the purposes
of this Section, if the pledgee shall establish to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Debt Securities and
that the pledgee is not a Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or the
Guarantor or any such other obligor (including any Affiliate of the Company or
such other obligor). In case of a dispute as to such right, any decision by the
Trustee taken upon the advice of counsel shall be full protection to the
Trustee.
SECTION 8.05. Actions Binding on Future Securityholders. At any time prior
to (but not after) the evidencing to the Trustee, as provided in Section 8.01,
of the taking of any action by the holders of a majority or specified percentage
in aggregate principal amount of the Debt Securities of a particular series in
connection with such action, any holder of a Debt Security of that series that
is shown by the evidence to be included in the Debt Securities the holders of
which have consented to such action may, by filing written notice with the
Trustee, and upon proof of holding as provided in Section 8.02, revoke such
action so far as concerns such Debt Security. Except as aforesaid, any such
action taken by the holder of any
31
Debt Security shall be conclusive and binding upon such holder and upon all
future holders and owners of such Debt Security, and of any Debt Security issued
in exchange therefor, on registration of transfer thereof or in place thereof,
irrespective of whether or not any notation in regard thereto is made upon such
Debt Security. Any action taken by the holders of a majority or specified
percentage in aggregate principal amount of the Debt Securities of a particular
series in connection with such action shall be conclusively binding upon the
Company, the Trustee and the holders of all the Debt Securities of that series.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without the Consent of
Securityholders. In addition to any supplemental indenture otherwise authorized
by this Indenture, the Company and the Guarantor and the Trustee may from time
to time and at any time enter into an indenture or indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act as then
in effect), without the consent of the Securityholders, for one or more of the
following purposes:
(a) to cure any ambiguity, defect or inconsistency herein or in the Debt
Securities of any series;
(b) to comply with Article X;
(c) to provide for uncertificated Debt Securities in addition to or in
place of certificated Debt Securities;
(d) to add to the covenants of the Company for the benefit of the holders
of all or any series of Debt Securities (and if such covenants are to be for the
benefit of less than all series of Debt Securities, stating that such covenants
are expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company;
(e) to add to, delete from, or revise the conditions, limitations and
restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of Debt Securities, as herein set forth;
(f) to make any change that does not adversely affect the rights of any
Securityholder in any material respect; or
(g) to provide for the issuance of and establish the form and terms and
conditions of the Debt Securities of any series as provided in Section 2.01, to
establish the form of any certifications required to be furnished pursuant to
the terms of this Indenture or any series of Debt Securities, or to add to the
rights of the holders of any series of Debt Securities.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, and to make any further
appropriate agreements and stipulations that may be therein contained, but the
Trustee shall not be obligated to enter into any such supplemental indenture
that affects the Trustee's own rights, duties or immunities under this Indenture
or otherwise.
Any supplemental indenture authorized by the provisions of this Section
may be executed by the Company and the Trustee without the consent of the
holders of any of the Debt Securities at the time Outstanding notwithstanding
any of the provisions of Section 9.02.
32
SECTION 9.02. Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Section 8.01) of the holders of not
less than a majority in aggregate principal amount of the Debt Securities of
each series affected by such supplemental indenture or indentures at the time
Outstanding, the Company, when authorized by a Board Resolution, and the Trustee
may from time to time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act as then in effect) for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of any supplemental indenture or of modifying in any manner not covered by
Section 9.01 the rights of the holders of the Debt Securities of such series
under this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the holders of each Debt Security then Outstanding
and affected thereby, (i) extend the fixed maturity of any Debt Securities of
any series, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any premium payable upon the
redemption thereof, without the consent of the holder of each Debt Security so
affected or (ii) reduce the aforesaid percentage of Debt Securities, the holders
of which are required to consent to any such supplemental indenture.
It shall not be necessary for the consent of the Securityholders of any
series affected thereby under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
SECTION 9.03. Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture pursuant to the provisions of this Article or of Section
10.01, this Indenture shall, with respect to such series, be and be deemed to be
modified and amended in accordance therewith and the respective rights,
limitations of rights, obligations, duties and immunities under this Indenture
of the Trustee, the Company and the holders of Debt Securities of the series
affected thereby shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and all
the terms and conditions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this Indenture for any and all
purposes.
SECTION 9.04. Debt Securities Affected by Supplemental Indentures. Debt
Securities of any series, affected by a supplemental indenture, authenticated
and delivered after the execution of such supplemental indenture pursuant to the
provisions of this Article or of Section 10.01, may bear a notation in form
approved by the Company, provided such form meets the requirements of any
exchange upon which such series may be listed, if any, as to any matter provided
for in such supplemental indenture. If the Company shall so determine, new Debt
Securities of that series so modified as to conform, in the opinion of the Board
of Directors of the Company, to any modification of this Indenture contained in
any, such supplemental indenture may be prepared by the Company, authenticated
by the Trustee and delivered in exchange for the Debt Securities of that series
then outstanding.
SECTION 9.05. Execution of Supplemental Indentures. Upon the request of
the Company, accompanied by a Board Resolution authorizing the execution of any
such supplemental indenture, and upon the filing with the Trustee of evidence of
the consent of Securityholders required to consent thereto as aforesaid, the
Trustee shall join with the Company in the execution of such supplemental
indenture unless such supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion but shall not be obligated to enter into such
supplemental indenture. The Trustee, subject to the provisions of Section 7.01,
may receive an Opinion of Counsel as conclusive evidence that any supplemental
indenture executed pursuant to this Article is authorized or permitted by, and
conforms to, the terms of this Article and that it is proper for the Trustee
under the provisions of this Article to join in the execution thereof.
33
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 9.05, the
Trustee shall transmit by mail, first class postage prepaid, a notice, setting
forth in general terms the substance of such supplemental indenture, to the
Securityholders of all series affected thereby as their names and addresses
appear upon the Security Register. Any failure of the Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
ARTICLE X
SUCCESSOR CORPORATION
SECTION 10.01. Company May Consolidate, Etc. Nothing contained in this
Indenture or in any of the Debt Securities shall prevent any consolidation or
merger of the Company with or into any other corporation or corporations
(whether or not affiliated with the Company), or successive consolidations or
mergers in which the Company or its successor or successors shall be a party or
parties, or shall prevent any sale, conveyance, transfer or other disposition of
the property of the Company or its successor or successors as an entirety, or
substantially as an entirety, to any other corporation (whether or not
affiliated with the Company or the Guarantor, as the case may be, or its
successor or successors) authorized to acquire and operate the same; provided,
however, the Company hereby covenants and agrees that, upon any such
consolidation, merger, sale, conveyance, transfer or other disposition, the due
and punctual payment of the principal of (premium, if any) and interest on all
of the Debt Securities of all series in accordance with the terms of each
series, according to their tenor and the due and punctual performance and
observance of all the covenants and conditions of this Indenture with respect to
each series or established with respect to such series pursuant to Section 2.01
to be kept or performed by the Company, shall be expressly assumed, by
supplemental indenture (which shall conform to the provisions of the Trust
Indenture Act, as then in effect) satisfactory in form to the Trustee executed
and delivered to the Trustee by the entity formed by such consolidation, or into
which the Company shall have been merged, or by the entity which shall have
acquired such property.
SECTION 10.02. Successor Corporation Substituted. (a) In case of any such
consolidation, merger, sale, conveyance, transfer or other disposition and upon
the assumption by the successor corporation, by supplemental indenture, executed
and delivered to the Trustee and satisfactory in form to the Trustee, of the due
and punctual payment of the principal of, premium, if any, and interest on all
of the Debt Securities of all series Outstanding and the due and punctual
performance of all of the covenants and conditions of this Indenture or
established with respect to each series of the Debt Securities pursuant to
Section 2.01 to be performed by the Company, with respect to each series, such
successor corporation shall succeed to and be substituted for the Company, with
the same effect as if it had been named as the Company herein.
(b) In case of any such consolidation, merger, sale, conveyance, transfer
or other disposition, such changes in phraseology and form (but not in
substance) may be made in the Debt Securities thereafter to be issued as may be
appropriate.
(c) Nothing contained in this Indenture or in any of the Debt Securities
shall prevent the Company from merging into itself or acquiring by purchase or
otherwise all or any part of the property of any other Person (whether or not
affiliated with the Company).
SECTION 10.03. Evidence of Consolidation, Etc. to Trustee. The Trustee,
subject to the provisions of Section 7.01, may receive an Opinion of Counsel as
conclusive evidence that any such consolidation, merger, sale, conveyance,
transfer or other disposition, and any such assumption, comply with the
provisions of this Article.
34
ARTICLE XI
SATISFACTION AND DISCHARGE
SECTION 11.01. Satisfaction and Discharge of Indenture. If at any time:
(a) the Company shall have delivered to the Trustee for cancellation all Debt
Securities of a series theretofore authenticated (other than any Debt Securities
that shall have been destroyed, lost or stolen and that shall have been replaced
or paid as provided in Section 2.07) and Debt Securities for whose payment money
or Governmental Obligations have theretofore been deposited in trust or
segregated and held in trust by the Company or the Guarantor (and thereupon
repaid to the Company or discharged from such trust, as provided in Section
11.05); or (b) all such Debt Securities of a particular series not theretofore
delivered to the Trustee for cancellation shall have become due and payable, or
are by their terms to become due and payable within one year or are to be called
for redemption within one year under arrangements satisfactory to the Trustee
for the giving of notice of redemption, and, in the case of (a) or (b) above,
the Company shall deposit or cause to be deposited with the Trustee as trust
funds the entire amount in moneys or Governmental Obligations or a combination
thereof, sufficient in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay at maturity or upon redemption all Debt
Securities of that series not theretofore delivered to the Trustee for
cancellation, including principal (and premium, if any) and interest due or to
become due to such date of maturity or date fixed for redemption, as the case
may be, and if the Company shall also pay or cause to be paid all other sums
payable hereunder with respect to such series by the Company; then if the
Company has delivered to the Trustee an Opinion of Counsel based on the fact
that (x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (y) since the date hereof, there has been a
change in the applicable United States federal income tax law, in either case to
the effect that, and such opinion shall confirm that, the holders of the Debt
Securities of such series will not recognize income, gain or loss for United
States federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to United States federal income tax on the same
amount and in the same manner and at the same times, as would have been the case
if such deposit, defeasance and discharge had not occurred, this Indenture shall
thereupon cease to be of further effect with respect to such series except for
the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03 and 7.10, that
shall survive until the date of maturity or redemption date, as the case may be,
and Sections 7.06 and 11.05, that shall survive to such date and thereafter, and
the Trustee, on demand of the Company and at the cost and expense of the Company
shall execute proper instruments acknowledging satisfaction of and discharging
this Indenture with respect to such series.
SECTION 11.02. Discharge of Obligations. If at any time all Debt
Securities of a particular series not heretofore delivered to the Trustee for
cancellation or that have not become due and payable as described in Section
11.01 shall have been paid by the Company by depositing irrevocably with the
Trustee as trust funds moneys or an amount of Governmental Obligations
sufficient to pay at maturity or upon redemption all such Debt Securities of
that series not theretofore delivered to the Trustee for cancellation, including
principal (and premium, if any) and interest due or to become due to such date
of maturity or date fixed for redemption, as the case may be, and if the Company
shall also pay or cause to be paid all other sums payable hereunder by the
Company with respect to such series, then after the date such moneys or
Governmental Obligations, as the case may be, are deposited with the Trustee
then, if the Company has delivered to the Trustee an Opinion of Counsel based on
the fact that (x) the Company has received from, or there has been published by,
the Internal Revenue Service a ruling or (y) since the date hereof, there has
been a change in the applicable United States federal income tax law, in either
case to the effect that, and such opinion shall confirm that, the holders of the
Debt Securities of such series will not recognize income, gain or loss for
United States federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to United States federal income tax
on the same amount and in the same manner and at the same times, as would have
been the case if such
35
deposit, defeasance and discharge had not occurred, the obligations of the
Company, under this Indenture with respect to such series shall cease to be of
further effect except for the provisions of Sections 2.03, 2.05, 2.07, 4.01,
4.02, 4.03, 7.06, 7.10 and 11.05 hereof that shall survive until such Debt
Securities shall mature and be paid. Thereafter, Sections 7.06 and 11.05 shall
survive.
SECTION 11.03. Deposited Moneys to be Held in Trust. All moneys or
Governmental Obligations deposited with the Trustee pursuant to Sections 2.11 or
11.02 shall be held in trust and shall be available for payment as due, either
directly or through any paying agent (including the Company acting as its own
paying agent), to the holders of the particular series of Debt Securities for
the payment or redemption of which such moneys or Governmental Obligations have
been deposited with the Trustee.
SECTION 11.04. Payment of Moneys Held by Paying Agents. In connection with
the satisfaction and discharge of this Indenture, all moneys or Governmental
Obligations then held by any paying agent under the provisions of this Indenture
shall, upon demand of the Company, be paid to the Trustee and thereupon such
paying agent shall be released from all further liability with respect to such
moneys or Governmental Obligations.
SECTION 11.05. Repayment to Company. Any moneys or Governmental
Obligations deposited with any paying agent or the Trustee, or then held by the
Company, in trust for payment of principal of or premium or interest on the Debt
Securities of a particular series that are not applied but remain unclaimed by
the holders of such Debt Securities for at least two years after the date upon
which the principal of (and premium, if any) or interest on such Debt Securities
shall have respectively become due and payable, shall be repaid to the Company
on May 31 of each year or (if then held by the Company) shall be discharged from
such trust; and thereupon the paying agent and the Trustee shall be released
from all further liability with respect to such moneys or Governmental
Obligations, and the holder of any of the Debt Securities entitled to receive
such payment shall thereafter, as an unsecured general creditor, look only to
the Company for the payment thereof.
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 12.01. No Recourse. No recourse under or upon any obligation,
covenant or agreement of this Indenture, or of any Debt Security, or for any
claim based thereon or otherwise in respect thereof, shall be had against any
incorporator, stockholder, officer or director, past, present or future as such,
of the Company or of any predecessor or successor corporation, either directly
or through the Company or any such predecessor or successor corporation, whether
by virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly understood that this
Indenture and the obligations issued hereunder are solely corporate obligations,
and that no such personal liability whatever shall attach to, or is or shall be
incurred by, the incorporators, stockholders, officers or directors as such, of
the Company or of any predecessor or successor corporation, or any of them,
because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Indenture
or in any of the Debt Securities or implied therefrom; and that any and all such
personal liability of every name and nature, either at common law or in equity
or by constitution or statute, of, and any and all such rights and claims
against, every such incorporator, stockholder, officer or director as such,
because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Indenture
or in any of the Debt Securities or implied therefrom, are hereby expressly
waived and released as a condition of, and as a consideration for, the execution
of this Indenture and the issuance of such Debt Securities.
36
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. Effect on Successors and Assigns. All the covenants,
stipulations, promises and agreements in this Indenture contained by or on
behalf of the Company shall bind successors and assigns, whether so expressed or
not.
SECTION 13.02. Actions by Successor. Any act or proceeding by any
provision of this Indenture authorized or required to be done or performed by
any board, committee or officer of the Company or the Guarantor shall and may be
done and performed with like force and effect by the corresponding board,
committee or officer of any corporation that shall at the time be the lawful
successor of the Company.
SECTION 13.03. Surrender of Company Powers. The Company by instrument in
writing executed by authority of 2/3 (two-thirds) of its Board of Directors and
delivered to the Trustee may surrender any of the powers reserved to the
Company, and thereupon such power so surrendered shall terminate both as to the
Company and as to any successor corporation.
SECTION 13.04. Notices. Except as otherwise expressly provided herein, any
notice or demand that by any provision of this Indenture is required or
permitted to be given or served by the Trustee or by the holders of Debt
Securities to or on the Company may be given or served by being deposited first
class postage prepaid in a post-office letterbox addressed (until another
address is filed in writing by the Company with the Trustee), as follows:
PECO Energy Company
2301 Market Street
Philadelphia, PA 19101
Attention: Treasurer
Any notice, election, request or demand by the Company or any Securityholder to
or upon the Trustee shall be deemed to have been sufficiently given or made, for
all purposes, if given or made in writing at the Corporate Trust Office of the
Trustee.
SECTION 13.05. Governing Law. This Indenture and each Debt Security shall
be deemed to be a contract made under the internal laws of the Commonwealth of
Pennsylvania, and for all purposes shall be construed in accordance with the
laws thereof.
SECTION 13.06. Treatment of the Debt Securities as Debt. It is intended
that the Debt Securities will be treated as indebtedness and not as equity for
federal income tax purposes. The provisions of this Indenture shall be
interpreted to further this intention.
SECTION 13.07. Compliance Certificates and Opinions. (a) Upon any
application, request or demand by the Company to the Trustee to take any action
under any of the provisions of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent 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 have been complied with, except that in the case of any
such application, request or demand as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application, request or demand, no additional certificate or opinion
need be furnished.
37
(b) Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
in this Indenture shall include (1) a statement that the Person making such
certificate or opinion has read such covenant or condition; (2) 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; (3) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
SECTION 13.08. Payments on Business Days. Except as provided pursuant to
Section 2.01 pursuant to a Board Resolution, and as set forth in an Officers'
Certificate, or established in one or more indentures supplemental to this
Indenture, in any case where the date of maturity of interest or principal of
any Debt Security or the date of redemption of any Debt Security shall not be a
Business Day, then payment of interest or principal (and premium, if any) may be
made on the next succeeding Business Day with the same force and effect as if
made on the nominal date of maturity or redemption, and no interest shall accrue
for the period after such nominal date.
SECTION 13.09. Conflict with Trust Indenture Act. If and to the extent
that any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act,
such imposed duties shall control.
SECTION 13.10. Counterparts. This Indenture may be executed in any number
of counterparts, each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
SECTION 13.11. Separability. In case any one or more of the provisions
contained in this Indenture or in the Debt Securities of any series shall for
any reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provisions
of this Indenture or of such Debt Securities, but this Indenture and such Debt
Securities shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
SECTION 13.12. Assignment. The Company will have the right at all times to
assign any of its respective rights or obligations under this Indenture to a
direct or indirect wholly-owned Subsidiary of the Company, provided that, in the
event of any such assignment, the Company will remain liable for all such
obligations. Subject to the foregoing, the Indenture is binding upon and inures
to the benefit of the parties thereto and their respective successors and
assigns. This Indenture may not otherwise be assigned by the parties thereto.
SECTION 13.13. Acknowledgment of Rights. The Company acknowledges that,
with respect to any Debt Securities held by a PECO Trust or a trustee of such
trust, if the Property Trustee of such Trust fails to enforce its rights under
this Indenture as the holder of the series of Debt Securities held as the assets
of such PECO Trust, any holder of Preferred Securities may, after a period of 30
days has elapsed from such holder's written request to such Property Trustee to
enforce such rights, institute legal proceedings directly against the Company to
enforce such Property Trustee's rights under this Indenture without first
instituting any legal proceedings against such Property Trustee or any other
person or entity.
38
ARTICLE XIV
SUBORDINATION OF DEBT SECURITIES
SECTION 14.01. Subordination Terms. The payment by the Company of the
principal of, premium, if any, and interest on any series of Debt Securities
issued hereunder shall be subordinated to the extent set forth in an indenture
supplemental hereto or Officers' Certificate pursuant to Section 2.01 above
relating to such Debt Securities.
39
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
PECO ENERGY COMPANY
Attest: __________________ By: /s/ J. Barry Mitchell
------------------------------------
Name: J. Barry Mitchell
Vice President and Treasurer
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
Attest: __________________ By: /s/ George J. Rayzis
------------------------------------
Name: George J. Rayzis
Vice President
40
Exhibit 4.2
PREFERRED SECURITIES GUARANTEE AGREEMENT
Between
PECO Energy Company
(as Guarantor)
and
Wachovia Trust Company, National Association
(as Trustee)
dated as of
June 24, 2003
TABLE OF CONTENTS
ARTICLE I DEFINITIONS............................................................................................1
SECTION 1.01. Definitions...............................................................................1
ARTICLE II TRUST INDENTURE ACT...................................................................................4
SECTION 2.01. Trust Indenture Act; Application..........................................................4
SECTION 2.02. Lists of Holders of Securities............................................................4
SECTION 2.03. Reports by the Trustee....................................................................4
SECTION 2.04. Periodic Reports to Trustee...............................................................4
SECTION 2.05. Evidence of Compliance with Conditions Precedent..........................................4
SECTION 2.06. Events of Default; Waiver.................................................................4
SECTION 2.07. Event of Default; Notice..................................................................5
SECTION 2.08. Conflicting Interests.....................................................................5
ARTICLE III POWERS, DUTIES AND RIGHTS OF TRUSTEE.................................................................5
SECTION 3.01. Powers and Duties of the Trustee..........................................................5
SECTION 3.02. Certain Rights of Trustee.................................................................6
SECTION 3.03. Not Responsible for Recitals or Issuance of Preferred Securities..........................8
ARTICLE IV TRUSTEE...............................................................................................8
SECTION 4.01. Trustee; Eligibility......................................................................8
SECTION 4.02. Appointment, Removal and Resignation of Trustee...........................................8
ARTICLE V GUARANTEE..............................................................................................9
SECTION 5.01. Guarantee.................................................................................9
SECTION 5.02. Waiver of Notice and Demand...............................................................9
SECTION 5.03. Obligations Not Affected..................................................................9
SECTION 5.04. Rights of Holders........................................................................10
SECTION 5.05. Guarantee of Payment.....................................................................11
SECTION 5.06. Subrogation..............................................................................11
SECTION 5.07. Independent Obligations..................................................................11
ARTICLE VI LIMITATION OF TRANSACTIONS; SUBORDINATION............................................................11
SECTION 6.01. Limitation of Transactions...............................................................11
SECTION 6.02. Subordination............................................................................11
ARTICLE VII TERMINATION.........................................................................................11
SECTION 7.01. Termination..............................................................................11
i
ARTICLE VIII INDEMNIFICATION....................................................................................12
SECTION 8.01. Exculpation..............................................................................12
SECTION 8.02. Indemnification..........................................................................12
SECTION 8.03. Compensation and Fees....................................................................12
ARTICLE IX MISCELLANEOUS........................................................................................13
SECTION 9.01. Successors and Assigns...................................................................13
SECTION 9.02. Amendments...............................................................................13
SECTION 9.03. Notices..................................................................................13
SECTION 9.04. Benefit..................................................................................14
SECTION 9.05. Interpretation...........................................................................14
SECTION 9.06. Governing Law............................................................................14
SECTION 9.07. Counterparts.............................................................................15
ii
CROSS-REFERENCE TABLE*
Section of Section of Guarantee Agreement
Trust Indenture Act of 1939, as amended
310(a) 4.01(a)
310(b) 4.01(c), 2.08
310(c) Inapplicable
311(a) 2.02(b)
311(b) 2.02(b)
311(c) Inapplicable
312(a) 2.02(a)
312(b) 2.02(b)
313 2.03
314(a) 2.04
314(b) Inapplicable
314(c) 2.05
314(d) Inapplicable
314(e) 1.01, 2.05, 3.02
314(f) 2.01, 3.02
315(a) 3.01(d)
315(b) 2.07
315(c) 3.01
315(d) 3.01(d)
316(a) 1.01, 2.06, 5.04
316(b) 5.03
316(c) 9.02
317(a) Inapplicable
317(b) Inapplicable
318(a) 2.01(b)
318(b) 2.01
318(c) 2.01(a)
___________________
* This Cross-Reference Table does not constitute part of the Preferred
Securities Guarantee Agreement and shall not affect the interpretation
of any of its terms or provisions.
PREFERRED SECURITIES GUARANTEE AGREEMENT
This PREFERRED SECURITIES GUARANTEE AGREEMENT ("Guarantee Agreement"),
dated as of June 24, 2003 between PECO ENERGY COMPANY, a Pennsylvania
corporation (the "Company"), as guarantor (the "Guarantor"), and WACHOVIA TRUST
COMPANY, NATIONAL ASSOCIATION, a national banking association, as trustee (the
"Trustee"), for the benefit of the Holders (as defined herein) from time to time
of the Preferred Securities (as defined herein) of PECO ENERGY CAPITAL TRUST IV,
a Delaware statutory trust (the "Trust").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration of Trust"), dated as of June 24, 2003, among Wachovia Trust
Company, National Association, as Delaware Trustee and Property Trustee, the
other Trustees named therein, the Company, as Sponsor, and the holders of
undivided beneficial interests in the assets of the Trust, the Trust is issuing
as of June 24, 2003 $100,000,000 aggregate liquidation amount of its 5.75% Trust
Preferred Securities (the "Preferred Securities") representing preferred
undivided beneficial interests in the assets of the Trust and having the terms
set forth in the Declaration of Trust;
WHEREAS, the Preferred Securities will be issued by the Trust and the
proceeds thereof will be used to purchase the Debentures of the Company, which
will be held by the Trust as trust assets; and
WHEREAS, as incentive for the Holders to purchase the Preferred
Securities, the Guarantor desires to irrevocably and unconditionally agree, to
the extent set forth herein, to pay to the Holders the Guarantee Payments (as
defined herein) and to make certain other payments on the terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of the payment for Preferred
Securities by each Holder thereof, which payment the Guarantor hereby agrees
shall benefit the Guarantor, the Guarantor executes and delivers this Guarantee
Agreement for the benefit of the Holders from time to time of the Preferred
Securities.
Article I
DEFINITIONS
Section 1.01 Definitions. As used in this Guarantee Agreement, the
terms set forth below shall, unless the context otherwise requires, have the
following meanings. Capitalized or otherwise defined terms used but not
otherwise defined herein shall have the meanings assigned to such terms in the
Declaration of Trust as in effect on the date hereof.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Common Securities" means the securities representing common
undivided beneficial interests in the assets of the Trust.
"Covered Person" means any Holder or beneficial owner of
Preferred Securities.
"Debentures" means the series of Deferrable Interest
Subordinated Debentures of the Guarantor designated the "5.75% Deferrable
Interest Subordinated Debentures due June 15, 2033" held by the Property Trustee
(as defined in the Declaration of Trust) of the Trust.
"Event of Default" means a failure by the Guarantor to perform
any of its payment or other obligations under this Guarantee Agreement.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Preferred Securities, to
the extent not paid or made by or on behalf of the Trust: (i) any accrued and
unpaid Distributions (as defined in the Declaration of Trust) that are required
to be paid on such Preferred Securities to the extent the Trust has funds
legally available therefor to make such payment; (ii) the redemption price,
including all accrued and unpaid Distributions to the date of redemption (the
"Redemption Price"), with respect to the Preferred Securities called for
redemption by the Trust to the extent that the Trust has funds legally available
therefor to make such payment; and (iii) upon a voluntary or involuntary
dissolution, winding-up or termination of the Trust (other than in connection
with the distribution of Debentures to the Holders), the lesser of (a) the
aggregate of the liquidation amount and all accrued and unpaid distributions on
the Preferred Securities to the date of payment, to the extent the Trust has
funds legally available therefor, and (b) the amount of assets of the Trust
remaining available for distribution to Holders in liquidation of the Trust (in
either case, the "Liquidation Distribution").
"Holder" means any holder, as registered on the books and
records of the Trust, of any Preferred Securities; provided, however, that in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Trustee, any Affiliate of the
Trustee, or any officers, directors, shareholders, members, partners, employees,
representatives, nominees, custodians or agents of the Trustee.
"Indenture" means the Indenture, dated as of June 24, 2003,
between the Company and Wachovia Bank, National Association, as trustee, as
heretofore supplemented and as supplemented by the Section 2.01 Certificate.
"Majority in liquidation amount of the Preferred Securities"
means, except as provided in the Trust Indenture Act, a vote by Holder(s) of
Preferred Securities of more than 50% of the aggregate liquidation amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accumulated and unpaid Distributions to the date upon which the
voting percentages are determined) of all Preferred Securities outstanding at
the time of determination.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary, of the
Guarantor, and delivered to the Trustee. Any Officers' Certificate delivered
with respect to compliance with a condition or covenant provided for in this
Guarantee Agreement (other than pursuant to Section 314(d)(4) of the Trust
Indenture Act) shall include:
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(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering
the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer 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
officer, such condition or covenant has been complied with.
"Other Guarantees" means all guarantees issued, or to be
issued, by the Guarantor with respect to the preferred or common securities
similar to the Preferred Securities and the Common Securities (as defined in the
Declaration of Trust), as the case may be, issued by other trusts established,
or to be established, by the Guarantor, in each case similar to the Trust.
"Other Guarantees" shall include: the Payment and Guarantee Agreement dated as
of April 6, 1998 executed by the Guarantor for the benefit of the holders of the
Series D Preferred Securities (as defined therein) of PECO Energy Capital, L.P.
"Other Indebtedness" means all subordinated debentures,
debentures or other indebtedness issued by the Guarantor from time to time and
sold to trusts established, or to be established, by the Guarantor, in each case
similar to the Trust. "Other Indebtedness" shall include the 7.38% Deferrable
Interest Subordinated Debentures due 2028.
"Person" means any individual, corporation, estate,
partnership, limited liability company, joint venture, association, trust,
unincorporated organization or government or any agency or political subdivision
thereof or any other entity of whatever nature.
"Responsible Officer" means, with respect to the Trustee, any
managing director, any vice president, any assistant vice president, any
assistant secretary, any assistant treasurer, or any other officer of the
Corporate Trust Office of the Trustee customarily performing functions similar
to those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of that officer's knowledge of and familiarity with
the particular subject.
"Section 2.01 Certificate" means the officers' certificate of
the Guarantor issued pursuant to Section 2.01 of the Indenture and establishing
the Debentures.
"Successor Trustee" means a successor Trustee possessing the
qualifications to act as Trustee under Section 4.01.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended.
"Trustee" means Wachovia Trust Company, National Association
until a Successor Trustee has been appointed and has accepted such appointment
pursuant to the terms of this Guarantee Agreement and thereafter means each such
Successor Trustee.
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ARTICLE II
TRUST INDENTURE ACT
Section 2.01 Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the provisions of the
Trust Indenture Act that are required to be part of this Guarantee Agreement and
shall, to the extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Guarantee
Agreement limits, qualifies or conflicts with the duties imposed by Sections 310
to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
Section 2.02 Lists of Holders of Securities.
(a) The Guarantor shall furnish or cause to be furnished to the
Trustee a list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders ("List of Holders") (i) semiannually, within 15
days before and not later than June 1 and December 1 in each year, and (ii) at
such other times as the Trustee may request in writing, within 30 days after the
receipt by the Guarantor of any such request, a List of Holders as of a date not
more than 15 days prior to the time such list is furnished; provided that, the
Guarantor shall not be obligated to provide such List of Holders at any time the
List of Holders does not differ from the most recent List of Holders given to
the Trustee by the Guarantor or at any time the Trustee is the Securities
Registrar under the Declaration of Trust. The Trustee may destroy any List of
Holders previously given to it on receipt of a new List of Holders.
(b) The Trustee shall comply with its obligations under Sections
311(a), 311(b) and 312(b) of the Trust Indenture Act.
Section 2.03 Reports by the Trustee. Within 60 days after May 15 of
each year commencing May 15, 2004, the Trustee shall provide to the Holders of
the Preferred Securities such reports as are required by Section 313(a) of the
Trust Indenture Act, if any, in the form and in the manner provided by Section
313 of the Trust Indenture Act. The Trustee shall also comply with the other
requirements of Section 313 of the Trust Indenture Act.
Section 2.04 Periodic Reports to Trustee. The Guarantor shall provide
to the Trustee such documents, reports and information as required by Section
314 of the Trust Indenture Act (if any) in the form, in the manner and at the
times required by Section 314 of the Trust Indenture Act, and shall provide,
within 120 days after the end of each of its fiscal years, the compliance
certificate required by Section 314(a)(4) of the Trust Indenture Act in the form
and in the manner required by such Section.
Section 2.05 Evidence of Compliance with Conditions Precedent. The
Guarantor shall provide to the Trustee such evidence of compliance with the
conditions precedent, if any, provided for in this Guarantee Agreement that
relate to any of the matters set forth in Section 314(c) of the Trust Indenture
Act. Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) may be given in the form of an Officers' Certificate.
Section 2.06 Events of Default; Waiver. The Holders of a Majority in
liquidation amount of the Preferred Securities may, by vote, on behalf of all of
the Holders, waive any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of this
Guarantee
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Agreement, but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
Section 2.07 Event of Default; Notice.
(a) The Trustee shall, within 90 days after the occurrence of an
Event of Default, transmit by mail, first class postage prepaid, to the Holders,
notices of all Events of Default actually known to a Responsible Officer of the
Trustee, unless such defaults have been cured before the giving of such notice,
provided that the Trustee shall be protected in withholding such notice if and
so long as the board of directors, the executive committee, or a trust committee
of directors and/or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interests of the Holders.
(b) The Trustee shall not be deemed to have knowledge of any Event
of Default unless the Trustee shall have received written notice thereof from
the Guarantor or a Holder, or a Responsible Officer charged with the
administration of the Declaration of Trust shall have obtained actual knowledge,
of such Event of Default.
Section 2.08 Conflicting Interests. The Declaration of Trust shall be
deemed to be specifically described in this Guarantee Agreement for the purposes
of clause (i) of the first proviso contained in Section 310(b) of the Trust
Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF TRUSTEE
Section 3.01 Powers and Duties of the Trustee.
(a) This Guarantee Agreement shall be held by the Trustee for the
benefit of the Holders, and the Trustee shall not transfer this Guarantee
Agreement to any Person except the Trustee may assign rights hereunder to a
Holder exercising his or her rights pursuant to Section 5.04(b) or to a
Successor Trustee upon acceptance by such Successor Trustee of its appointment
to act as Successor Trustee. The right, title and interest of the Trustee shall
automatically vest in any Successor Trustee, and such vesting and cessation of
title shall be effective whether or not conveyancing documents have been
executed and delivered pursuant to the appointment of such Successor Trustee.
(b) If an Event of Default actually known to a Responsible Officer
of the Trustee has occurred and is continuing, the Trustee shall enforce this
Guarantee Agreement for the benefit of the Holders.
(c) The Trustee, before the occurrence of any Event of Default and
after the curing or waiving of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Guarantee Agreement, and no implied covenants shall be read into this
Guarantee Agreement against the Trustee. In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section 2.06) and is
actually known to a Responsible Officer of the Trustee, the Trustee shall
exercise such of the rights and powers vested in it by this Guarantee Agreement,
and use the same degree of care and skill in its exercise thereof, as a prudent
person would exercise or use under the circumstances in the conduct of his or
her own affairs.
(d) No provision of this Guarantee Agreement 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:
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(i) prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Trustee shall
be determined solely by the express provisions of this
Guarantee Agreement, and the Trustee shall not be liable
except for the performance of such duties and obligations as
are specifically set forth in this Guarantee Agreement, and no
implied covenants or obligations shall be read into this
Guarantee Agreement against the Trustee; and
(B) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Guarantee
Agreement; but in the case of any such certificates or
opinions that by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not
on their face they conform to the requirements of this
Guarantee Agreement;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer of the Trustee, unless it
shall be proved that the Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(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 not less than a Majority in
liquidation amount of the Preferred Securities relating to the time,
method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the
Trustee under this Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement shall require
the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if the Trustee shall have
reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Guarantee Agreement or adequate indemnity against such risk or
liability is not reasonably assured to it.
Section 3.02 Certain Rights of Trustee.
(a) Subject to the provisions of Section 3.01:
(i) the Trustee may conclusively rely and shall be fully
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;
(ii) any direction or act of the Guarantor contemplated by
this Guarantee Agreement shall be sufficiently evidenced by an
Officers' Certificate;
(iii) whenever, in the administration of this Guarantee
Agreement, the Trustee shall deem it desirable that a matter be proved
or established before taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence is herein specifically
prescribed) may, in the
6
absence of bad faith on its part, request and conclusively rely upon
an Officers' Certificate which, upon receipt of such request, shall be
promptly delivered by the Guarantor;
(iv) the Trustee shall have no duty to see to any recording,
filing or registration of any instrument (or any rerecording, refiling
or registration thereof);
(v) the Trustee may consult with counsel of its choice, and
the advice or opinion of such counsel with respect to legal matters
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 accordance with such advice or opinion; such counsel may be counsel
to the Guarantor or any of its Affiliates and may include any of its
employees; the Trustee shall have the right at any time to seek
instructions concerning the administration of this Guarantee Agreement
from any court of competent jurisdiction;
(vi) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Guarantee Agreement at the
request or direction of any Holder, unless such Holder shall have
provided to the Trustee reasonable security and indemnity satisfactory
to the Trustee against the costs, expenses (including attorneys' fees
and expenses) and liabilities that might be incurred by it in complying
with such request or direction, including such reasonable advances as
may be requested by the Trustee; provided that nothing contained in
this Section 3.02(a)(vi) shall be taken to relieve the Trustee, upon
the occurrence of an Event of Default, of its obligation to exercise
the rights and powers vested in it by this Guarantee Agreement;
(vii) 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;
(viii) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents, nominees, custodians or attorneys, and the Trustee
shall not be responsible for any misconduct or negligence on the part
of any agent, nominee, custodian or attorney appointed with due care by
it hereunder;
(ix) any action taken by the Trustee or its agents, nominees,
custodians or attorneys hereunder shall bind the Holders, and the
signature of the Trustee or its agents, nominees, custodians or
attorneys alone shall be sufficient and effective to perform any such
action; no third party shall be required to inquire as to the authority
of the Trustee to so act or as to its compliance with any of the terms
and provisions of this Guarantee Agreement, both of which shall be
conclusively evidenced by the Trustee's or its agent's, nominee's,
custodian's or attorney's taking such action;
(x) whenever in the administration of this Guarantee Agreement
the Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Trustee (A) may request instructions from the Holders of
a Majority in liquidation amount of the Preferred Securities, (B) may
refrain from enforcing such remedy or right or taking such other action
until such instructions are received, and (C) shall be protected in
relying on or acting in accordance with such instructions; and
7
(xi) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith, without
negligence, and reasonably believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Guarantee
Agreement.
(b) No provision of this Guarantee Agreement shall be deemed to
impose any duty or obligation on the Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Trustee shall be construed to be
a duty.
Section 3.03 Not Responsible for Recitals or Issuance of Preferred
Securities. The recitals contained in this Guarantee Agreement shall be taken as
the statements of the Guarantor, and the Trustee does not assume any
responsibility for their correctness. The Trustee makes no representation as to
the validity or sufficiency of this Guarantee Agreement.
ARTICLE IV
TRUSTEE
Section 4.01 Trustee; Eligibility.
(a) There shall at all times be a Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory thereof
or of the District of Columbia, or a corporation or Person permitted by
the Securities and Exchange Commission to act as an institutional
trustee under the Trust Indenture Act, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus
of at least Fifty Million U.S. dollars ($50,000,000), and subject to
supervision or examination by Federal, State, Territorial or District
of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of
the supervising or examining authority referred to above, then, for the
purposes of this Section 4.01(a)(ii), 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.
(b) If at any time the Trustee shall cease to be eligible to so
act under Section 4.01(a), the Trustee shall immediately resign in the manner
and with the effect set out in Section 4.02(c).
(c) If the Trustee has or shall acquire any "conflicting interest"
within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and
Guarantor shall in all respects comply with the provisions of Section 310(b) of
the Trust Indenture Act, subject to the rights of the Trustee under the
penultimate paragraph thereof.
Section 4.02 Appointment, Removal and Resignation of Trustee.
(a) Subject to Section 4.02(b), the Trustee may be appointed or
removed without cause at any time by the Guarantor except during an Event of
Default.
8
(b) The Trustee shall not be removed in accordance with Section
4.02(a) until a Successor Trustee has been appointed and has accepted such
appointment by written instrument executed by such Successor Trustee and
delivered to the Guarantor.
(c) The Trustee appointed to office shall hold office until a
Successor Trustee shall have been appointed or until its removal or resignation.
The Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing executed by the Trustee and delivered to
the Guarantor, which resignation shall not take effect until a Successor Trustee
has been appointed and has accepted such appointment by instrument in writing
executed by such Successor Trustee and delivered to the Guarantor and the
resigning Trustee.
(d) If no Successor Trustee shall have been appointed and accepted
appointment as provided in this Section 4.02 within 60 days after delivery to
the Guarantor of an instrument of resignation, the resigning Trustee may
petition any court of competent jurisdiction for appointment of a Successor
Trustee. Such court may thereupon, after prescribing such notice, if any, as it
may deem proper, appoint a Successor Trustee.
(e) No Trustee shall be liable for the acts or omissions to act of
any Successor Trustee.
(f) Upon termination of this Guarantee Agreement or removal or
resignation of the Trustee pursuant to this Section 4.02, the Guarantor shall
pay to the Trustee all amounts due to the Trustee that have accrued to the date
of such termination, removal or resignation and all other amounts then due to
the Trustee hereunder.
ARTICLE V
GUARANTEE
Section 5.01 Guarantee. The Guarantor irrevocably and unconditionally
agrees to pay in full to the Holders the Guarantee Payments (without duplication
of amounts theretofore paid by or on behalf of the Trust), as and when due,
regardless of any defense, right of set-off or counterclaim which the Trust may
have or assert against any Person. The Guarantor's obligation to make a
Guarantee Payment may be satisfied by direct payment of the required amounts by
the Guarantor to the Holders or by causing the Trust to pay such amounts to the
Holders.
Section 5.02 Waiver of Notice and Demand. The Guarantor hereby waives
notice of acceptance of this Guarantee Agreement and of any liability to which
it applies or may apply, presentment, demand for payment, any right to require a
proceeding first against the Trust or any other Person before proceeding against
the Guarantor, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.
Section 5.03 Obligations Not Affected. The obligations, covenants,
agreements and duties of the Guarantor under this Guarantee Agreement shall in
no way be affected or impaired by reason of the happening from time to time of
any of the following:
(a) the release or waiver, by operation of law or otherwise, of
the performance or observance by the Trust of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be performed
or observed by the Trust;
(b) the extension of time for the payment by the Trust of all or
any portion of the Distributions, Redemption Price, Liquidation Distribution or
any other sums payable under the terms of the Preferred Securities or the
extension of time for the performance of any other obligation under, arising
9
out of, or in connection with, the Preferred Securities (other than an extension
of time for payment of Distributions, Redemption Price, Liquidation Distribution
or other sum payable that results from the extension of any interest payment
period on the Debentures permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part
of the Holders to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Holders pursuant to the terms of the Preferred
Securities, or any action on the part of the Trust granting indulgence or
extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the benefit
of creditors, reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Trust or any of the assets of
the Trust;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it being
the intent of this Section 5.03 that the obligations of the Guarantor hereunder
shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to,
or obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
Section 5.04 Rights of Holders. The Guarantor expressly acknowledges:
(a) The Guarantee Agreement will be deposited with the Trustee to
be held for the benefit of the Holders. The Trustee has the right to enforce
this Guarantee Agreement on behalf of the Holders. The Holders of a Majority in
liquidation amount of the Preferred Securities have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee in respect of this Guarantee Agreement or exercising any trust or
power conferred upon the Trustee under this Guarantee Agreement; provided,
however, that, subject to the duties and responsibilities of the Indenture
Trustee pursuant to the Indenture, the Trustee shall have the right to decline
to follow any such direction if the Trustee shall determine that the action so
directed would be unjustly prejudicial to the Holders not taking part in such
direction or if the Trustee being advised by counsel determines that the action
or proceeding so directed may not lawfully be taken or if the Trustee in good
faith by its board of directors or trustees, executive committee, or a trust
committee of directors or trustees and/or Responsible Officers shall determine
that the action or proceedings so directed would involve the Trustee in personal
liability.
(b) If the Trustee fails to enforce this Guarantee Agreement, any
Holder may institute a legal proceeding directly against the Guarantor to
enforce the Trustee's rights under this Guarantee Agreement, without first
instituting a legal proceeding against the Trust, the Trustee or any other
Person. The Guarantor waives any right or remedy to require that any action be
brought first against the Trust or any other Person before proceeding directly
against the Guarantor; it being understood and intended that no one or more of
such Holders shall have any right in any manner whatsoever by virtue of, or by
availing of, any provision of this Guarantee Agreement to affect, disturb or
prejudice the rights of any other of such Holders or to obtain or to seek to
obtain priority or preference over any other of such Holders or to enforce any
right under this Guarantee Agreement, except in the manner herein provided and
for the equal and ratable benefit of all such Holders.
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Section 5.05 Guarantee of Payment. This Guarantee Agreement creates a
guarantee of payment and not of collection.
Section 5.06 Subrogation. The Guarantor shall be subrogated to all (if
any) rights of the Holders against the Trust in respect of any amounts paid to
the Holders by the Guarantor under this Guarantee Agreement; provided, however,
that the Guarantor shall not (except to the extent required by mandatory
provisions of law) be entitled to enforce or exercise any rights which it may
acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Guarantee Agreement,
if, at the time of any such payment, any amounts of Guarantee Payments are due
and unpaid under this Guarantee Agreement. If any amount shall be paid to the
Guarantor in violation of the preceding sentence, the Guarantor agrees to hold
such amount in trust for the Holders and to pay over such amount to the Holders.
Section 5.07 Independent Obligations. The Guarantor acknowledges that
its obligations hereunder are independent of the obligations of the Trust with
respect to the Preferred Securities and that the Guarantor shall be liable as
principal and as debtor hereunder to make Guarantee Payments pursuant to the
terms of this Guarantee Agreement notwithstanding the occurrence of any event
referred to in subsections (a) through (g), inclusive, of Section 5.03 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
Section 6.01 Limitation of Transactions. So long as any Preferred
Securities remain outstanding, if the Guarantor shall be in default with respect
to its payment of any obligations under this Guarantee Agreement, then the
Guarantor shall not (i) declare or pay any dividend on, make any distributions
with respect to, or redeem, purchase or make a liquidation payment with respect
to, any of the Guarantor's capital stock, (ii) make any payment of principal,
interest or premium, if any, on or repay or repurchase or redeem any debt
securities (including guarantees) of the Guarantor that rank pari passu with or
junior in right of payment to the Debentures or (iii) make any guarantee
payments with respect to the foregoing (except with respect to this Guarantee
Agreement).
Section 6.02 Subordination. The obligations of the Guarantor under this
Guarantee Agreement will constitute unsecured obligations of the Guarantor and
will rank (i) subordinate and junior in right of payment to the Senior
Indebtedness (as defined in the Indenture) to the same extent and in the same
manner as the Debentures are subordinated to Senior Indebtedness pursuant to the
Section 2.01 Certificate, it being understood that the terms of Sections (o)
through (v) of the Section 2.01 Certificate shall apply to the obligations of
the Guarantor under this Guarantee Agreement as if such Sections (o) through (v)
of the Section 2.01 Certificate were set forth herein in full and such
obligations were substituted for the term "Debentures" appearing in such Article
VI, (ii) subordinate and junior in right of payment to the Debentures and any
Other Indebtedness, (iii) pari passu with any Other Guarantees and any guarantee
in respect of any preferred stock of any affiliate of the Guarantor and (iv)
senior to all preferred and common stock of the Guarantor.
ARTICLE VII
TERMINATION
Section 7.01 Termination. This Guarantee Agreement shall terminate and
be of no further force and effect upon: (i) full payment of the Redemption Price
of all Preferred Securities, (ii) the distribution of Debentures to the Holders
in exchange for all of the Preferred Securities, or (iii) full payment of the
amounts payable in accordance with the Declaration of Trust upon liquidation of
the Trust. Notwithstanding the foregoing, this Guarantee Agreement will continue
to be effective or will be
11
reinstated, as the case may be, if at any time any Holder must restore payment
of any sums paid with respect to Preferred Securities or under this Guarantee
Agreement.
ARTICLE VIII
INDEMNIFICATION
Section 8.01 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered Person for
any loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith in accordance with this
Guarantee Agreement and in a manner that such Indemnified Person reasonably
believed to be within the scope of the authority conferred on such Indemnified
Person by this Guarantee Agreement or by law, except that an Indemnified Person
shall be liable for any such loss, damage or claim to the extent incurred by
reason of such Indemnified Person's negligence or willful misconduct with
respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who, if selected by such
Indemnified Person, has been selected with reasonable care, including
information, opinions, reports or statements as to the value and amount of the
assets, liabilities, profits, losses, or any other facts pertinent to the
existence and amount of assets from which Distributions to Holders might
properly be paid.
Section 8.02 Indemnification. The Guarantor agrees to indemnify each
Indemnified Person for, and to hold each Indemnified Person harmless against,
any and all loss, liability, damage, claim or expense to the extent incurred
without negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of the trust or trusts hereunder,
including the costs and expenses (including reasonable legal fees and expenses)
of defending itself against, or investigating, any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The obligation to indemnify and hold harmless as set forth in this
Section 8.02 shall survive the termination of this Guarantee Agreement and the
resignation or removal of the Trustee.
Section 8.03 Compensation and Fees.
The Guarantor agrees:
(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by the Trustee hereunder in such amounts
as the Guarantor and the Trustee shall agree from time to time (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust); and
(b) except as otherwise expressly provided herein, to reimburse
the Trustee upon request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Guarantee Agreement (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance determined to be attributable to its negligence or bad faith.
The provisions of this Section 8.03 shall survive the
resignation or removal of the Trustee or the termination of this Guarantee
Agreement.
12
To secure the Guarantor's payment obligations in this Section
8.03 and in Section 8.02, the Guarantor and the Holders agree that the Trustee
shall have a lien prior to the Preferred Securities on all money or property
held or collected by the Trustee. Such lien shall survive the termination of
this Guarantee Agreement.
ARTICLE IX
MISCELLANEOUS
Section 9.01 Successors and Assigns. All guarantees and agreements
contained in this Guarantee Agreement shall bind the successors, assigns,
receivers, trustees and representatives of the Guarantor and shall inure to the
benefit of the Holders of the Preferred Securities then outstanding.
Section 9.02 Amendments. Except with respect to any changes which do
not materially and adversely affect the rights of Holders (in which case no
consent of Holders will be required), this Guarantee Agreement may only be
amended with the prior approval of the Holders of a Majority in liquidation
amount of the Preferred Securities. The provisions of Article 6 of the
Declaration of Trust concerning meetings of and voting by Holders shall apply to
the giving of such approval. No amendment of this Guarantee Agreement that
affects the rights, duties or immunities of the Trustee shall be binding on the
Trustee without its prior written consent thereto.
Section 9.03 Notices. Any notice, request or other communication
required or permitted to be given hereunder shall be in writing, duly signed by
the party giving such notice, and delivered, telecopied or mailed by first class
mail as follows:
(a) if given to the Trustee, to the address set forth below or
such other address as the Trustee may give notice of to the Guarantor and the
Holders:
Wachovia Trust Company, National Association
One Rodney Square
920 King Street, Suite 102
Wilmington, Delaware 19801
Attention: Rita Marie Ritrovato, Trust Officer
Telecopy: (302) 888-7544
(b) if given to the Guarantor, to the address set forth below or
such other address as the Guarantor may give notice of to the Trustee and the
Holders:
PECO Energy Company
2301 Market Street
Philadelphia, Pennsylvania 19101
Attention: Treasurer
Telecopy: (215) 841-4474
(c) if given to the Trust, in care of the Trustee, or to the
Trustee at the Trust's (and the Trustee's) address set forth below (above) or
such other address as the Trustee on behalf of the Trust may give notice to the
Holders:
13
PECO Energy Capital Trust IV
c/o PECO Energy Company
2301 Market Street
Philadelphia, Pennsylvania 19101
Attention: Treasurer
Telecopy: (215) 841-4474
with a copy, in the case of a notice to the Trust (other than a notice
from the Guarantor), to the Guarantor; and
(d) if given to any Holder, at the address set forth on the books and
records of the Trust.
All notices hereunder shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
Section 9.04 Benefit. This Guarantee Agreement is solely for the
benefit of the Holders and, subject to Section 3.01(a), is not separately
transferable from the Preferred Securities.
Section 9.05 Interpretation. In this Guarantee Agreement, unless the
context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement but not
defined in the preamble hereto have the respective meanings assigned to them in
Section 1.01;
(b) a term defined anywhere in this Guarantee Agreement has the
same meaning throughout; all references to "the Guarantee Agreement" or "this
Guarantee Agreement" are to this Guarantee Agreement as modified, supplemented
or amended from time to time;
(c) all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement unless
otherwise specified;
(d) a term defined in the Trust Indenture Act has the same meaning
when used in this Guarantee Agreement unless otherwise defined in this Guarantee
Agreement or unless the context otherwise requires;
(e) a reference to the singular includes the plural and vice versa;
and
(f) the masculine, feminine or neuter genders used herein shall
include the masculine, feminine and neuter genders.
Section 9.06 Governing Law. THIS GUARANTEE AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
COMMONWEALTH OF PENNSYLVANIA. THE GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
PENNSYLVANIA AND ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA LOCATED IN THE
CITY AND COUNTY OF PHILADELPHIA IN ANY ACTION, SUIT OR PROCEEDING BROUGHT
AGAINST IT AND
14
RELATED TO OR IN CONNECTION WITH THIS GUARANTEE AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED THEREBY, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE
GUARANTOR HEREBY WAIVES AND AGREES NOT TO ASSERT BY WAY OF MOTION, AS A DEFENSE
OR OTHERWISE IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT
PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH COURTS, THAT THE SUIT, ACTION OR
PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE OF THE SUIT,
ACTION OR PROCEEDING IS IMPROPER, OR THAT THIS GUARANTEE AGREEMENT OR ANY
DOCUMENT OR ANY INSTRUMENT REFERRED TO HEREIN OR THE SUBJECT MATTER HEREOF MAY
NOT BE LITIGATED IN OR BY SUCH COURTS. THE GUARANTOR AGREES THAT SERVICE OF
PROCESS MAY BE MADE UPON IT BY CERTIFIED OR REGISTERED MAIL TO THE ADDRESS FOR
NOTICES SET FORTH IN THIS GUARANTEE AGREEMENT OR ANY METHOD AUTHORIZED BY THE
LAWS OF PENNSYLVANIA.
Section 9.07 Counterparts. This instrument may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
15
THIS PREFERRED SECURITIES GUARANTEE AGREEMENT is executed as of the day
and year first above written.
PECO ENERGY COMPANY
By: /s/ J. Barry Mitchell
-----------------------------
J. Barry Mitchell
Vice President and Treasurer
WACHOVIA TRUST COMPANY, NATIONAL
ASSOCIATION, as Trustee
By: /s/ Rita Marie Ritrovato
-----------------------------
Name: Rita M. Ritrovato
Title: Trust Officer
16
Exhibit 4.3
PECO ENERGY CAPITAL TRUST IV
AMENDED AND RESTATED DECLARATION OF TRUST
among
PECO ENERGY COMPANY, as Sponsor,
WACHOVIA TRUST COMPANY, NATIONAL ASSOCIATION,
as Delaware Trustee and Property Trustee,
and
J. Barry Mitchell, George R. Shicora and Charles S. Walls
as Administrative Trustees
Dated as of June 24, 2003
TABLE OF CONTENTS
Article 1 Defined Terms...........................................................................................1
Section 1.01 Definitions..........................................................................1
Article 2 Establishment of the Trust..............................................................................9
Section 2.01 Name.................................................................................9
Section 2.02 Offices of the Trustees; Principal Place of Business.................................9
Section 2.03 Organizational Expenses..............................................................9
Section 2.04 Issuance of the Preferred Securities.................................................9
Section 2.05 Purchase of Debentures; Issuance of the Common Securities...........................10
Section 2.06 Amended and Restated Declaration of Trust...........................................10
Section 2.07 Authorization to Enter into Certain Transactions....................................10
Section 2.08 Assets of Trust.....................................................................14
Section 2.09 Title to Trust Property.............................................................14
Section 2.10 Mergers and Consolidations of the Trust.............................................14
Article 3 Payment Account..................................................................... ..................15
Section 3.01 Payment Account.....................................................................15
Article 4 Distributions; Redemption..............................................................................15
Section 4.01 Distributions.......................................................................15
Section 4.02 Redemption..........................................................................17
Section 4.03 Subordination of Common Securities..................................................19
Section 4.04 Payment Procedures..................................................................19
Section 4.05 Tax Returns and Reports.............................................................19
Article 5 Trust Securities Certificates..........................................................................19
Section 5.01 Initial Ownership...................................................................19
Section 5.02 The Trust Securities Certificates...................................................20
Section 5.03 Authentication of Trust Securities Certificates.....................................20
Section 5.04 Registration of Transfer and Exchange of Preferred Securities
Certificates........................................................................20
Section 5.05 Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates..................21
Section 5.06 Persons Deemed Securityholders......................................................21
Section 5.07 Access to List of Securityholders' Names and Addresses..............................21
Section 5.08 Maintenance of Office or Agency.....................................................22
Section 5.09 Appointment of Paying Agent.........................................................22
Section 5.10 Ownership of Common Securities by Sponsor...........................................22
Section 5.11 Book-Entry Preferred Securities Certificates; Common Securities
Certificate.........................................................................23
Section 5.12 Notices to Clearing Agency..........................................................23
Section 5.13 Definitive Preferred Securities Certificates........................................23
Section 5.14 Rights of Securityholders...........................................................24
i
Article 6 Acts of Securityholders; Meetings; Voting..............................................................24
Section 6.01 Limitations on Voting Rights........................................................24
Section 6.02 Notice of Meetings..................................................................25
Section 6.03 Meetings of Preferred Securityholders...............................................25
Section 6.04 Voting Rights.......................................................................26
Section 6.05 Proxies, etc........................................................................26
Section 6.06 Securityholder Action by Written Consent............................................26
Section 6.07 Record Date for Voting and Other Purposes...........................................26
Section 6.08 Acts of Securityholders.............................................................26
Section 6.09 Inspection of Records...............................................................27
Article 7 Representations and Warranties of the Property Trustee and Delaware Trustee............................27
Section 7.01 Representations and Warranties of Property Trustee..................................27
Section 7.02 Representations and Warranties of Delaware Trustee..................................28
Article 8 The Trustees...........................................................................................28
Section 8.01 Certain Duties and Responsibilities.................................................28
Section 8.02 Notice of Defaults..................................................................30
Section 8.03 Certain Rights of Property Trustee..................................................30
Section 8.04 Not Responsible for Recitals or Issuance of Securities..............................32
Section 8.05 May Hold Securities.................................................................32
Section 8.06 Compensation; Fees; Indemnity.......................................................32
Section 8.07 Trustees Required; Eligibility......................................................33
Section 8.08 Conflicting Interests...............................................................33
Section 8.09 Co-Trustees and Separate Trustee....................................................33
Section 8.10 Resignation and Removal; Appointment of Successor...................................34
Section 8.11 Acceptance of Appointment by Successor..............................................35
Section 8.12 Merger, Conversion, Consolidation or Succession to Business.........................36
Section 8.13 Preferential Collection of Claims Against Sponsor or Trust..........................36
Section 8.14 Reports by Property Trustee.........................................................36
Section 8.15 Reports to the Property Trustee.....................................................37
Section 8.16 Evidence of Compliance with Conditions Precedent....................................37
Section 8.17 Number of Trustees..................................................................37
Section 8.18 Delegation of Power.................................................................37
Section 8.19 Enforcement of Rights of Property Trustee by Securityholders........................38
Article 9 Termination and Liquidation............................................................................38
Section 9.01 Termination Upon Expiration Date....................................................38
Section 9.02 Early Termination...................................................................38
Section 9.03 Termination.........................................................................39
Section 9.04 Liquidation.........................................................................39
Section 9.05 Bankruptcy..........................................................................40
ii
Article 10 Miscellaneous Provisions..............................................................................40
Section 10.01 Expense Agreement...................................................................40
Section 10.02 Limitation of Rights of Securityholders.............................................40
Section 10.03 Amendment...........................................................................41
Section 10.04 Separability........................................................................42
Section 10.05 Governing Law.......................................................................42
Section 10.06 Successors..........................................................................42
Section 10.07 Headings............................................................................42
Section 10.08 Notice and Demand...................................................................42
Section 10.09 Agreement Not to Petition...........................................................43
Section 10.10 Conflict with Trust Indenture Act...................................................43
Section 10.11 Counterparts........................................................................43
Section 10.12 No Preemptive Rights................................................................43
iii
CROSS-REFERENCE TABLE*
Section of Section of
Trust Indenture Act of 1939, as amended Amended and Restated Declaration of Trust
--------------------------------------- -----------------------------------------
310(a)(1) 8.07
310(a)(2) 8.07
310(a)(3) 8.09
310(a)(4) 2.07(B)
310(b) 8.08
311(a) 8.13
311(b) 8.13
312(a) 5.07
312(b) 5.07
312(c) 5.07
313(a) 8.14
313(b) 8.14
313(c) 8.14
313(d) 8.14
314(a) 8.15
314(b) Inapplicable
314(c)(1) 8.16, 1.01
314(c)(2) 8.16, 1.01
314(c)(3) Inapplicable
314(d) Inapplicable
314(e) 1.01
315(a) 8.01(a), 8.03(i)
315(b) 8.02, 10.08
315(c) 8.01(a)
315(d) 8.01, 8.03
315(e) Inapplicable
316(a) Inapplicable
316(a)(1)(A) Inapplicable
316(a)(1)(B) Inapplicable
316(a)(2) Inapplicable
316(b) Inapplicable
316(c) Inapplicable
317(a)(1) Inapplicable
317(a)(2) Inapplicable
____________________________
* This Cross-Reference Table does not constitute part of the Amended and Restated Declaration of
Trust and shall not affect the interpretation of any of its
AMENDED AND RESTATED DECLARATION OF TRUST
THIS AMENDED AND RESTATED DECLARATION OF TRUST is made as of
June 24, 2003, by and among (i) PECO Energy Company, a Pennsylvania corporation
(the "Sponsor" or the "Company"), (ii) Wachovia Trust Company, National
Association, a national banking association, as Delaware trustee and property
trustee (the "Delaware Trustee" and the "Property Trustee," respectively, and,
in its separate corporate capacity and not in its capacity as Delaware Trustee
or Property Trustee, the "Bank"), (iii) J. Barry Mitchell, an individual, George
R. Shicora, an individual, and Charles S. Walls, an individual, as
administrative trustees (each an "Administrative Trustee" and together the
"Administrative Trustees") (the Property Trustee, the Delaware Trustee and the
Administrative Trustees referred to collectively as the "Trustees") and (iv) the
several Holders, as hereinafter defined.
WITNESSETH:
WHEREAS, the Sponsor, the Delaware Trustee and J. Barry
Mitchell, as Administrative Trustee, have heretofore duly declared and
established a statutory trust pursuant to the Delaware Statutory Trust Act by
entering into that certain Declaration of Trust, dated as of May 9, 2003 (the
"Original Declaration of Trust"), and by the execution and filing by the
Delaware Trustee and J. Barry Mitchell, as Administrative Trustee, with the
Secretary of State of the State of Delaware of the Certificate of Trust, dated
May 8, 2003 and filed on May 9, 2003 (the "Certificate of Trust"); and
WHEREAS, the parties hereto desire to amend and restate the
Original Declaration of Trust in its entirety as set forth herein to provide
for, among other things, (i) the addition of the Bank, as Property Trustee, and
George R. Shicora and Charles S. Walls, as Administrative Trustees of the Trust,
(ii) the acquisition by the Trust from the Sponsor of all of the right, title
and interest in the Debentures, (iii) the issuance of the Common Securities by
the Trust to the Sponsor, and (iv) the issuance and sale of the Preferred
Securities by the Trust pursuant to the Underwriting Agreement.
NOW THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable consideration, the
sufficiency of which is hereby acknowledged, each party, for the benefit of the
other parties and for the benefit of the Securityholders, hereby amends and
restates the Original Declaration of Trust in its entirety and agrees as
follows:
Article 1
Defined Terms
Section 1.01 DefinitionsFor all purposes of this Amended and
Restated Declaration of Trust, except as otherwise expressly provided or unless
the context otherwise requires:
(a) the terms defined in this Article 1 have the meanings
assigned to them in this Article 1 and include the plural as well as
the singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case
may be, of this Amended and Restated Declaration of Trust; and
(d) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Amended and Restated Declaration
of Trust as a whole and not to any particular Article, Section or other
subdivision.
"Act" has the meaning specified in Section 6.08.
"Additional Amounts" has the meaning specified in Section
4.01(b).
"Administrative Trustee" means each of the individuals
identified as an "Administrative Trustee" in the preamble to this Amended and
Restated Declaration of Trust solely in their capacities as Administrative
Trustees of the Trust and not in their individual capacities, or such trustee's
successor(s) in interest in such capacity, or any successor "Administrative
Trustee" appointed as herein provided.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Amended and Restated Declaration of Trust" means this Amended
and Restated Declaration of Trust, as the same may be modified, amended or
supplemented in accordance with the applicable provisions hereof, including all
exhibits hereto, and including, for all purposes of this Amended and Restated
Declaration of Trust and any modification, amendment or supplement hereto, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this Amended and Restated Declaration of Trust and any such modification,
amendment or supplement, respectively.
"Bank" has the meaning specified in the preamble to this
Amended and Restated Declaration of Trust.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having
jurisdiction in the premises judging such Person a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjudication or composition of or in
respect of such Person under federal bankruptcy law or any other
applicable federal or state law, or appointing a receiver, liquidator,
assignee, trustee, sequestrator or other similar official of such
Person or of any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the continuance of such
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(b) the institution by such Person of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under federal bankruptcy law or any other applicable federal
or state law, or the consent by it to the filing of such petition or to
the appointment of a receiver, liquidator, assignee, trustee,
sequestrator or similar official of such Person or of any substantial
part of its property, or the making by it of an assignment for the
benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the taking
of action by such Person in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.09.
2
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Sponsor to have been duly adopted
by the Sponsor's Board of Directors or a duly authorized committee thereof and
to be in full force and effect on the date of such certification, and delivered
to the Trustees.
"Book-Entry Preferred Securities Certificates" means
certificates representing Preferred Securities issued in global, fully
registered form to the Clearing Agency as described in Section 5.11.
"Business Day" means a day other than a Saturday or a Sunday
or any other day on which banking institutions in Wilmington, Delaware or New
York, New York are authorized or obligated by law, executive order or regulation
to close, or a day on which the Corporate Trust Office is closed for business.
"Certificate Depository Agreement" means the Letter of
Representations among the Trust, the Property Trustee and The Depository Trust
Company, as the initial Clearing Agency, dated June 24, 2003, relating to the
Preferred Securities Certificates, as the same may be amended and supplemented
from time to time.
"Certificate of Trust" has the meaning specified in the
recitals to this Amended and Restated Declaration of Trust.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act. The Depository
Trust Company will be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities deposited
with the Clearing Agency.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Securities Certificate" means a certificate evidencing
ownership of a Common Security or Securities, substantially in the form attached
as Exhibit A.
"Common Security" means an undivided beneficial interest in
the assets of the Trust having a Liquidation Amount of $1,000 and having the
rights provided therefor in this Amended and Restated Declaration of Trust,
including the right to receive Distributions and a Liquidation Distribution as
provided herein.
"Corporate Trust Office" means the office of the Property
Trustee or the Delaware Trustee, as the case may be, at which its corporate
trust business shall be principally administered, which office as of the date
hereof, in each such case, is located at One Rodney Square, 920 King Street,
Suite 102, Wilmington, DE 19801, Attention: Corporate Trust
Administration/Delaware, Facsimile No.: (302) 888-7544.
"Debentures" means the $103,093,000 aggregate principal amount
of the Sponsor's 5.75% Deferrable Interest Subordinated Debentures due June 15,
2033 issued pursuant to the Subordinated Indenture.
3
"Definitive Preferred Securities Certificates" means either or
both (as the context requires) of (i) Preferred Securities Certificates issued
in certificated, fully registered form as provided in Section 5.11(a) and (ii)
Preferred Securities Certificates issued in certificated, fully registered form
as provided in Section 5.13.
"Delaware Statutory Trust Act" means Chapter 38 of Title 12 of
the Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from
time to time.
"Delaware Trustee" means the commercial bank or trust company
or any other Person identified as the "Delaware Trustee" and has the meaning
specified in the preamble to this Amended and Restated Declaration of Trust
solely in its capacity as Delaware Trustee of the Trust and not in its
individual capacity, or its successor in interest in such capacity, or any
successor Delaware Trustee appointed as herein provided.
"Distribution Date" has the meaning specified in Section
4.01(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.01.
"Early Termination Event" has the meaning specified in Section
9.02.
"Event of Default" means the occurrence of an Indenture Event
of Default (whatever the reason for such Event of Default and whether it shall
be voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Expense Agreement" means the Agreement as to Expenses and
Liabilities between the Guarantor and the Trust, substantially in the form
attached as Exhibit B, as amended from time to time.
"Extension Period" has the meaning specified in Section
4.01(b).
"Guarantee" means the Preferred Securities Guarantee Agreement
executed and delivered by the Guarantor and Wachovia Trust Company, National
Association, as Guarantee Trustee, contemporaneously with the execution and
delivery of this Amended and Restated Declaration of Trust, for the benefit of
the Holders of the Preferred Securities, as amended from time to time.
"Guarantor" means the Sponsor, its successors and assigns.
"Indenture Certificate" means the officer's certificate of the
Sponsor dated as of June 24, 2003 and issued pursuant to Section 2.01 of the
Subordinated Indenture.
"Indenture Event of Default" means an "Event of Default" as
defined in the Subordinated Indenture.
"Indenture Redemption Date" means a date on which Debentures
are redeemed by the Sponsor pursuant to the Subordinated Indenture, whether upon
repayment, in whole or part, at maturity or upon early redemption (either at the
Sponsor's option or pursuant to a Special Event).
"Indenture Trustee" means the trustee under the Subordinated
Indenture.
4
"Issue Date" means the date of the delivery of the Trust
Securities.
"Legal Action" has the meaning specified in Section
2.07(A)(iv).
"Lien" means any lien, pledge, charge, encumbrance, mortgage,
deed of trust, adverse ownership interest, hypothecation, assignment, security
interest or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever.
"Like Amount" means (i) Trust Securities having a Liquidation
Amount equal to the principal amount of Debentures to be contemporaneously
redeemed in accordance with the Subordinated Indenture and the proceeds of which
will be used to pay the applicable Redemption Price of such Trust Securities and
(ii) Debentures having a principal amount equal to the Liquidation Amount of the
Trust Securities of the Holder to whom such Debentures are distributed.
"Liquidation Amount" means the stated amount of $1,000 per
Trust Security.
"Liquidation Date" means the date on which Debentures are to
be distributed to Holders of Trust Securities in connection with a dissolution
and liquidation of the Trust pursuant to Section 9.04.
"Liquidation Distribution" has the meaning specified in
Section 9.05.
"Maturity Redemption Price" means, with respect to a
redemption of Trust Securities, an amount equal to the principal of and accrued
and unpaid interest on the Debentures as of the maturity date thereof.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman of the Board, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Sponsor, and delivered to the appropriate Trustee.
One of the officers signing an Officers' Certificate given pursuant to Section
8.16 shall be the principal executive, financial or accounting officer of the
Sponsor. An Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Amended and Restated Declaration of
Trust shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering
the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as is necessary, in such officer's
opinion, 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
officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Trust, the Trustees, the Guarantor or the Sponsor, but
not an employee of the Trust or the Trustees, and who shall be reasonably
acceptable to the Property Trustee. Any Opinion of Counsel pertaining to federal
income tax matters may rely on published rulings of the Internal Revenue
Service.
5
"Optional Redemption Price" means, with respect to a
redemption of Trust Securities, an amount equal to the greater of:
(a) 100% of the principal amount of the Debentures being
redeemed, or
(b) as determined by the Quotation Agent, the sum of the
present values of scheduled payments of principal and interest thereon
for the Remaining Life, discounted to the redemption date on a
semiannual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate plus .30%,
plus, in either case, accrued and unpaid interest on the Debentures being
redeemed, including any Compounded Interest and Additional Amounts (as such
terms are defined in the Indenture Certificate), to the redemption date.
"Original Declaration of Trust" has the meaning specified in
the recitals to this Amended and Restated Declaration of Trust.
"Outstanding", when used with respect to Preferred Securities,
means, as of the date of determination, all Preferred Securities theretofore
authenticated and delivered under this Amended and Restated Declaration of
Trust, except:
(a) Preferred Securities theretofore canceled by the
Securities Registrar or delivered to the Securities Registrar for
cancellation;
(b) Preferred Securities for whose payment or redemption money
in the necessary amount has been theretofore deposited with the
Property Trustee or any Paying Agent for the Holders of such Preferred
Securities; provided that if such Preferred Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Amended and Restated Declaration of Trust; and
(c) Preferred Securities in exchange for or in lieu of which
other Preferred Securities have been authenticated and delivered
pursuant to this Amended and Restated Declaration of Trust;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Preferred Securities owned by the Sponsor, the Holder of the Common Securities,
the Guarantor, any Administrative Trustee or any Affiliate of the Sponsor, the
Guarantor or any Administrative Trustee shall be disregarded and deemed not to
be Outstanding, except that (i) in determining whether any Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Preferred Securities which such Trustee knows to
be so owned shall be so disregarded and (ii) the foregoing shall not apply at
any time when all of the outstanding Preferred Securities are owned by the
Sponsor, the Holder of the Common Securities, the Guarantor, one or more
Administrative Trustees and/or any such Affiliate. Preferred Securities so owned
which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Administrative Trustees the
pledgee's right so to act with respect to such Preferred Securities and that the
pledgee is not the Sponsor, the Guarantor or any Affiliate of the Sponsor or the
Guarantor.
"Owner" means each Person who is the beneficial owner of a
Book-Entry Preferred Securities Certificate as reflected in the records of the
Clearing Agency or, if a Clearing Agency Participant is not the Owner, then as
reflected in the records of a Person maintaining an account with such Clearing
Agency (directly or indirectly, in accordance with the rules of such Clearing
Agency).
6
"Paying Agent" means any paying agent or co-paying agent
appointed pursuant to Section 5.09 and shall initially be the Property Trustee.
"Payment Account" means a segregated non-interest-bearing
corporate trust account maintained by the Property Trustee for the benefit of
the Securityholders in which all amounts paid in respect of the Debentures will
be held and from which the Property Trustee shall make payments to the
Securityholders in accordance with Sections 4.01 and 4.02.
"Person" means an individual, corporation, partnership, joint
venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.
"Preferred Security" means an undivided beneficial interest in
the assets of the Trust having a Liquidation Amount of $1,000 and having rights
provided therefor in this Amended and Restated Declaration of Trust, including
the right to receive Distributions and a Liquidation Distribution as provided
herein.
"Preferred Securities Certificate" means a certificate
evidencing ownership of a Preferred Security or Securities, substantially in the
form attached as Exhibit C.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee" in the preamble to this Amended and
Restated Declaration of Trust solely in its capacity as Property Trustee of the
Trust and not in its individual capacity, or its successor in interest in such
capacity, or any successor "Property Trustee" as herein provided.
"Quotation Agent" has the meaning specified in the Indenture
Certificate.
"Redemption Date" means, with respect to any Trust Security to
be redeemed, the date fixed for such redemption by or pursuant to this Amended
and Restated Declaration of Trust; provided that each Indenture Redemption Date
shall be a Redemption Date for a Like Amount of Trust Securities.
"Redemption Price" means:
(a) in the case of the repayment of the Trust Securities as a
result of the repayment of the Debentures at maturity, the Maturity
Redemption Price;
(b) in the case of the redemption of Trust Securities as a
result of the optional redemption of the Debentures upon the occurrence
of a Special Event, the Special Event Redemption Price; and
(c) in the case of the redemption of Trust Securities as a
result of the optional redemption of the Debentures other than as a
result of the occurrence of a Special Event, the Optional Redemption
Price.
"Relevant Trustee" has the meaning specified in Section 8.10.
"Remaining Life" has the meaning specified in the Indenture
Certificate.
"Responsible Officer" means, with respect to the Property
Trustee, any managing director, any vice president, any assistant vice
president, any assistant secretary, any assistant treasurer or any other officer
of the Corporate Trust Office of the Trustee customarily performing functions
similar to those
7
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of that officer's knowledge of and familiarity with the
particular subject.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, or any successor legislation.
"Securities Register" and "Securities Registrar" are described
in Section 5.04.
"Securityholder" or "Holder" means a Person in whose name a
Trust Security or Securities is registered in the Securities Register; any such
Person is a beneficial owner within the meaning of the Delaware Statutory Trust
Act.
"Special Event" has the meaning specified in the Indenture
Certificate.
"Special Event Redemption Price" means, with respect to a
redemption of Trust Securities, an amount equal to the greater of:
(a) 100% of the principal amount of the Debentures, or
(b) as determined by the Quotation Agent, the sum of the
present values of scheduled payments of principal and interest thereon
for the Remaining Life, discounted to the redemption date on a
semiannual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate plus .50%,
plus, in either case, accrued and unpaid interest on the Debentures, including
any Compounded Interest and Additional Amounts (as such terms are defined in the
Indenture Certificate), to the redemption date.
"Sponsor" has the meaning specified in the preamble to this
Amended and Restated Declaration of Trust, and includes its successors and
assigns.
"Subordinated Indenture" means the Indenture, dated as of June
24, 2003, between the Sponsor and the Indenture Trustee, as heretofore
supplemented and as supplemented by the Indenture Certificate.
"Successor Securities" has the meaning specified in Section
2.10.
"Treasury Rate" has the meaning specified in the Indenture
Certificate.
"Trust" means the Delaware statutory trust continued hereby
and identified on the cover page to this Amended and Restated Declaration of
Trust.
"Trustees" means the Persons identified as "Trustees" in the
preamble to this Amended and Restated Declaration of Trust solely in their
capacities as Trustees of the Trust and not in their individual capacities, or
their successor in interest in such capacity, or any successor trustee appointed
as herein provided.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act" shall mean, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
8
"Trust Property" means (i) the Debentures, (ii) any cash on
deposit in, or owing to, the Payment Account, and (iii) all proceeds and rights
in respect of the foregoing and any other property and assets for the time being
held or deemed to be held by the Property Trustee pursuant to this Amended and
Restated Declaration of Trust.
"Trust Securities Certificate" means any one of the Common
Securities Certificates or the Preferred Securities Certificates.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Underwriting Agreement" means the Underwriting Agreement,
dated June 17, 2003, among the Sponsor, the Trust and the Underwriters named
therein.
Article 2
Establishment of the Trust
Section 2.01 Name
The Trust continued hereby shall be known as "PECO Energy Capital Trust
IV," in which name the Trustees may conduct the business of the Trust, make and
execute contracts and other instruments on behalf of the Trust and sue and be
sued. The Administrative Trustees may change the name of the Trust from time to
time following written notice to the Holders and the other Trustees.
Section 2.02 Offices of the Trustees; Principal Place of Business
The address of the Property Trustee and the Delaware Trustee is c/o
Wachovia Trust Company, National Association, One Rodney Square, 920 King
Street, Suite 102, Wilmington, DE 19801, Attention: Corporate Trust
Administration/Delaware, or such other address as the Property Trustee or
Delaware Trustee may designate by written notice to the Securityholders, the
Sponsor and the Guarantor. The address of the Administrative Trustees is c/o
PECO Energy Company, 2301 Market Street, Philadelphia, PA 19101, Attention:
Secretary. The principal place of business of the Trust is c/o PECO Energy
Company, 2301 Market Street, Philadelphia, PA 19101. The Sponsor may change the
principal place of business of the Trust at any time by giving notice thereof to
the Trustees.
Section 2.03 Organizational Expenses
The Sponsor shall pay organizational expenses of the Trust as they
arise or shall, upon request of the Trustees, promptly reimburse the Trustees
for any such expenses paid by the Trustees. The Sponsor shall make no claim upon
the Trust Property for the payment of such expenses.
Section 2.04 Issuance of the Preferred Securities
Contemporaneously with the execution and delivery of this Amended and
Restated Declaration of Trust, the Administrative Trustees, on behalf of the
Trust, shall execute and deliver to the underwriters named in the Underwriting
Agreement Preferred Securities Certificates, registered in the name of the
nominee of the initial Clearing Agency, in an aggregate number of 100,000
Preferred Securities having an aggregate Liquidation Amount of $100,000,000,
against receipt of the aggregate purchase price of such Preferred Securities of
$99,394,000.
9
Section 2.05 Purchase of Debentures; Issuance of the Common
Securities
Contemporaneously with the execution and delivery of this Amended and
Restated Declaration of Trust, the Administrative Trustees, on behalf of the
Trust, shall execute and deliver to the Sponsor Common Securities Certificates,
registered in the name of the Sponsor, in an aggregate number of 3,093 Common
Securities having an aggregate Liquidation Amount of $3,093,000, against payment
by the Sponsor of $3,074,256. Contemporaneously therewith, the Administrative
Trustees, on behalf of the Trust, shall purchase from the Sponsor Debentures,
registered in the name of the Property Trustee, on behalf of the Trust and the
Holders, and having an aggregate principal amount equal to $103,093,000, and, in
satisfaction of the purchase price for such Debentures, the Administrative
Trustees, on behalf of the Trust, shall deliver to the Sponsor the sum of
$102,468,256.
Section 2.06 Amended and Restated Declaration of Trust
The exclusive purposes and functions of the Trust are (i) to issue and
sell the Trust Securities and use the proceeds from such sale to acquire the
Debentures, and (ii) to engage in those activities necessary, incidental,
appropriate or convenient thereto. The Sponsor hereby appoints the Trustees, as
trustees of the Trust, to have all the rights, powers and duties to the extent
set forth herein. The Property Trustee hereby declares that it will hold the
Trust Property in trust upon and subject to the conditions set forth herein for
the benefit of the Trust and the Securityholders. The Trustees shall have all
rights, powers and duties set forth herein and in accordance with applicable law
with respect to accomplishing the purposes of the Trust. The Delaware Trustee
shall not be entitled to exercise any powers, nor shall the Delaware Trustee
have any of the duties and responsibilities, of the Property Trustee or the
Administrative Trustees set forth herein. The Delaware Trustee shall be one of
the Trustees for the sole and limited purpose of fulfilling the requirements of
the Delaware Statutory Trust Act.
Section 2.07 Authorization to Enter into Certain Transactions
The Trustees shall conduct the affairs of the Trust in accordance with
the terms of this Amended and Restated Declaration of Trust. Subject to the
limitations set forth in paragraph C of this Section 2.07, Article 8, and in
accordance with the following paragraphs A and B, the Trustees shall have the
power and authority, and hereby are authorized, to enter into all transactions
and agreements determined by the Trustees to be appropriate in exercising the
authority, express (in the case of the Property Trustee) or implied, otherwise
granted to the Trustees under this Amended and Restated Declaration of Trust,
and to perform all acts in furtherance thereof, including without limitation,
the following:
A. As among the Trustees, the Administrative Trustees, acting singly or
jointly, shall have the exclusive power, duty and authority to act on behalf of
the Trust with respect to the following matters:
(i) establish and maintain a Payment Account pursuant to
Article III or otherwise in accordance with this Amended and Restated
Declaration of Trust;
(ii) engage in such ministerial activities as shall be
necessary or appropriate to effect the redemption of the Trust
Securities to the extent the Debentures are redeemed or mature;
(iii) upon notice of distribution issued by the Administrative
Trustees in accordance with the terms of this Amended and Restated
Declaration of Trust, engage in such ministerial activities as shall be
necessary or appropriate to effect the distribution pursuant to terms
of this Amended and Restated Declaration of Trust of Debentures to
Holders of Trust Securities;
10
(iv) subject to the terms hereof, take any Legal Action which
arises out of or in connection with an Event of Default of which a
Responsible Officer of the Property Trustee has actual knowledge or the
Property Trustee's duties and obligations under this Amended and
Restated Declaration of Trust or the Trust Indenture Act;
(v) take all actions and perform such duties as may be
specifically required of the Property Trustee pursuant to the terms of
this Amended and Restated Declaration of Trust;
(vi) to acquire the Debentures with the proceeds of the sale
of the Trust Securities; provided, however, the Administrative Trustees
shall cause legal title to all of the Debentures to be vested in, and
the Debentures to be held of record in the name of, the Property
Trustee for the benefit of the Holders of the Trust Securities;
(vii) to give the Sponsor and the Property Trustee prompt
written notice of the occurrence of any Special Event (as defined in
the Indenture Certificate) and to, at its option, take any ministerial
actions in connection therewith; provided, that the Administrative
Trustees shall consult with the Sponsor and the Property Trustee before
taking any ministerial action in relation to a Special Event;
(viii) to establish a record date with respect to all actions
to be taken hereunder that require a record date be established,
including for the purposes of ss. 316(c) of the Trust Indenture Act and
with respect to Distributions, voting rights, redemptions, and
exchanges, and to issue relevant notices to Holders of the Trust
Securities as to such actions and applicable record dates;
(ix) to bring or defend, pay, collect, compromise, arbitrate,
resort to legal action, or otherwise adjust claims or demands of or
against the Trust ("Legal Action"), unless pursuant to Section
2.07(B)(iv), the Property Trustee has the power to bring such Legal
Action;
(x) to employ or otherwise engage employees and agents (who
may be designated as officers with titles) and managers, contractors,
advisors, and consultants and pay reasonable compensation for such
services;
(xi) to cause the Trust to comply with the Trust's obligations
under the Trust Indenture Act;
(xii) to give the certificate on behalf of the Company, as
obligor (as defined in the Trust Indenture Act), to the Property
Trustee required by ss. 314(a)(4) of the Trust Indenture Act, which
certificate may be executed by any Administrative Trustee;
(xiii) to take all actions and perform such duties on behalf
of the Trust as may be required of the Administrative Trustees pursuant
to the terms of this Amended and Restated Declaration of Trust;
(xiv) to take all action that may be necessary or appropriate
for the preservation and the continuation of the Trust's valid
existence, rights, franchises and privileges as a statutory trust under
the laws of the State of Delaware and of each other jurisdiction in
which such existence is necessary to protect the limited liability of
the Holders of the Trust Securities or to enable the Trust to effect
the purposes for which the Trust has been created;
11
(xv) to take all action necessary to cause all applicable tax
returns and tax information reports that are required to be filed with
respect to the Trust to be duly prepared and filed by the
Administrative Trustees, on behalf of the Trust;
(xvi) to issue and sell the Trust Securities pursuant to the
terms of this Amended and Restated Declaration of Trust;
(xvii) to cause the Trust to enter into, and to execute,
deliver and perform on behalf of the Trust, the Underwriting Agreement
providing for the sale of the Preferred Securities, the Expense
Agreement and the Certificate Depository Agreement and such other
agreements as may be necessary or desirable in connection with the
consummation of the transactions contemplated hereby and thereby;
(xviii) to assist in the registration of the Preferred
Securities under the Securities Act and under state securities or blue
sky laws, and the qualification of this Amended and Restated
Declaration of Trust as a trust indenture under the Trust Indenture
Act;
(xix) to assist in the listing of the Preferred Securities
upon such securities exchanges or national trading markets, if any, as
shall be determined by the Sponsor and, if required, the registration
of the Preferred Securities under the Exchange Act, and the
preparation, execution and filing of all periodic and other reports and
other documents pursuant to the foregoing;
(xx) to send notices (other than notices of default) and other
information regarding the Trust Securities and the Debentures to the
Securityholders in accordance with this Amended and Restated
Declaration of Trust;
(xxi) to appoint a Paying Agent (subject to Section 5.09),
authenticating agent and Securities Registrar in accordance with this
Amended and Restated Declaration of Trust;
(xxii) to assist in, to the extent provided in this Amended
and Restated Declaration of Trust, the winding up of the affairs of and
termination of the Trust and the preparation, execution and filing of
the certificate of cancellation with the Secretary of State of the
State of Delaware; and
(xxiii) to take any action incidental to the foregoing as the
Administrative Trustees may from time to time determine is necessary,
appropriate, convenient or advisable to protect and conserve the Trust
Property for the benefit of the Securityholders (without consideration
of the effect of any such action on any particular Securityholder).
B. The Property Trustee shall:
(i) establish and maintain the Payment Account pursuant to
Article III or otherwise in accordance with this Amended and Restated
Declaration of Trust;
(ii) engage in such ministerial activities as shall be
necessary or appropriate to effect the redemption of the Trust
Securities to the extent the Debentures are redeemed or mature;
(iii) upon notice of distribution issued by the Administrative
Trustees in accordance with the terms of this Amended and Restated
Declaration of Trust, engage in such ministerial activities as shall be
necessary or appropriate to effect the distribution pursuant to terms
of this Amended and Restated Declaration of Trust of Debentures to
Holders of Trust Securities;
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(iv) subject to the terms hereof, take any Legal Action which
arises out of or in connection with an Event of Default of which a
Responsible Officer of the Property Trustee has actual knowledge or the
Property Trustee's express duties and obligations under this Amended
and Restated Declaration of Trust or the Trust Indenture Act;
(v) take all actions and perform such duties as may be
specifically required of the Property Trustee pursuant to the terms of
this Amended and Restated Declaration of Trust;
(vi) to the extent that it is designated as the Securities
Registrar, to register transfers of the Trust Securities and otherwise
take action with respect to the Trust Securities in accordance with the
express provisions of this Amended and Restated Declaration of Trust;
and
(vii) except as otherwise provided in this Section 2.07B, the
Property Trustee shall have none of the powers, duties, authority or
liabilities of the Administrative Trustees set forth in Section 2.07A.
C. So long as this Amended and Restated Declaration of Trust remains in
effect, the Trust (or the Trustees acting on behalf of the Trust) shall not
undertake any business, activities or transaction except as expressly provided
herein or contemplated hereby. In particular, the Trustees shall not (i) acquire
any investments or engage in any activities not authorized by this Amended and
Restated Declaration of Trust, (ii) sell, assign, transfer, exchange, pledge,
set-off or otherwise dispose of any of the Trust Property or interests therein,
including to Securityholders, except as expressly provided herein, (iii) take or
consent to any action that would cause the Trust to fail or cease to qualify as
a grantor trust for United States federal income tax purposes, (iv) incur any
indebtedness for borrowed money, (v) take or consent to any action that would
result in the placement of a Lien on any of the Trust Property, (vi) issue any
securities other than the Trust Securities, or (vii) have any power to, or agree
to any action by the Sponsor that would, vary the investment (within the meaning
of Treasury Regulation Section 301.7701-4(c)) of the Trust or of the
Securityholders. The Trustees shall defend all claims and demands of all Persons
at any time claiming any Lien on any of the Trust Property adverse to the
interest of the Trust or the Securityholders in their capacity as
Securityholders.
D. In connection with the issue and sale of the Preferred Securities,
the Sponsor shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the Trust, the following (and any actions
taken by the Sponsor in furtherance of the following prior to the date of this
Amended and Restated Declaration of Trust are hereby ratified and confirmed in
all respects):
(i) if required, to prepare for filing by the Trust with the
Commission a registration statement on Form S-3 under the Securities
Act in relation to the Preferred Securities, including any amendments
thereto;
(ii) to determine the states in which to take appropriate
action to qualify or register for sale all or part of the Preferred
Securities and to do any and all such acts, other than actions which
must be taken by or on behalf of the Trust, and advise the Trustees of
actions they must take on behalf of the Trust, and prepare for
execution and filing any documents to be executed and filed by the
Trust or on behalf of the Trust, as the Sponsor deems necessary or
advisable in order to comply with the applicable laws of any such
states;
(iii) if deemed necessary or advisable by the Sponsor, to
prepare for filing by the Trust an application to the New York Stock
Exchange or any other national stock exchange or The Nasdaq National
Market for listing upon notice of issuance of any Preferred Securities;
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(iv) if required, to prepare for filing by the Trust with the
Commission a registration statement on Form 8-A relating to the
registration of the Preferred Securities under Section 12(b) of the
Exchange Act, including any amendments thereto;
(v) to negotiate the terms of the Underwriting Agreement
providing for the sale of the Preferred Securities; and
(vi) any other actions necessary, incidental, appropriate or
convenient to carry out any of the foregoing activities.
E. Notwithstanding anything herein to the contrary, the Administrative
Trustees are authorized and directed to conduct the affairs of the Trust and to
operate the Trust so that the Trust will not be deemed to be an "investment
company" required to be registered under the Investment Company Act of 1940, as
amended, or taxed as other than a grantor trust for United States federal income
tax purposes and so that the Debentures will be treated as indebtedness of the
Sponsor for United States federal income tax purposes. In this connection, the
Sponsor and the Administrative Trustees are authorized to take any action, not
inconsistent with applicable law, the Certificate of Trust or this Amended and
Restated Declaration of Trust, that each of the Sponsor and the Administrative
Trustees determines in its discretion to be necessary or desirable for such
purposes, as long as such action does not materially and adversely affect the
interests of the Holders of the Preferred Securities.
F. To the extent that Trust Property is deemed to be subject to the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), Holders
of Preferred Securities that are "employee benefit plans" within the meaning of
section 3(3) of ERISA shall be deemed to have directed the Trustees to invest in
the Debentures.
Section 2.08 Assets of Trust
The assets of the Trust shall consist of the Trust Property.
Section 2.09 Title to Trust Property
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered by
the Property Trustee for the benefit of the Securityholders and the Trust in
accordance with this Amended and Restated Declaration of Trust. The right, title
and interest of the Property Trustee to the Debentures shall vest automatically
in each Person who may thereafter be appointed as Property Trustee in accordance
with the terms hereof. Such vesting and cessation of title shall be effective
whether or not conveyancing documents have been executed and delivered.
Section 2.10 Mergers and Consolidations of the Trust
The Trust may not consolidate, amalgamate, merge with or into, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body, except as
described below or otherwise provided in this Amended and Restated Declaration
of Trust. The Trust may at the request of the Sponsor, with the consent of the
Administrative Trustees and without the consent of the Holders of the Trust
Securities, the Delaware Trustee or the Property Trustee, consolidate,
amalgamate, merge with or into, or be replaced by a trust organized as such
under the laws of any state; provided, that (i) such successor entity either (x)
expressly assumes all of the obligations of the Trust with respect to the Trust
Securities or (y) substitutes for the Preferred Securities other securities
having substantially the same terms as the Preferred Securities (herein referred
to as the "Successor Securities") so long as the Successor Securities rank the
same as the Preferred Securities rank in priority with respect to
14
Distributions and payments upon liquidation, redemption and otherwise, (ii) the
Sponsor expressly appoints a trustee of such successor entity possessing
substantially the same powers and duties as the Property Trustee as the holder
of legal title to the Debentures, (iii) the Preferred Securities or any
Successor Securities are listed, or any Successor Securities will be listed upon
notification of issuance, on any national securities exchange or other
organization, if any, on which the Preferred Securities are then listed, (iv)
such merger, consolidation, amalgamation or replacement does not cause the
Preferred Securities (including any Successor Securities) to be downgraded by
any nationally recognized statistical rating organization, (v) such merger,
consolidation, amalgamation or replacement does not adversely affect the rights,
preferences and privileges of the Holders of the Trust Securities (including any
Successor Securities) in any material respect, (vi) such successor entity has a
purpose substantially identical to that of the Trust, (vii) prior to such
merger, consolidation, amalgamation, or replacement, the Sponsor and the
Property Trustee have received an Opinion of Counsel to the effect that (A) such
merger, consolidation, amalgamation or replacement does not adversely affect the
rights, preferences and privileges of the Holders of the Trust Securities
(including any Successor Securities) in any material respect, (B) following such
merger, consolidation, amalgamation or replacement, neither the Trust nor such
successor entity will be required to register as an investment company under the
Investment Company Act of 1940 and (C) following such merger, consolidation,
amalgamation or replacement, the Trust (or the successor entity) will continue
to be classified as a grantor trust for United States federal income tax
purposes, and (viii) the Sponsor guarantees the obligations of such successor
entity under the Successor Securities at least to the extent provided by the
Guarantee. Notwithstanding the foregoing, the Trust shall not, except with the
consent of Holders of 100% in Liquidation Amount of the Trust Securities,
consolidate, amalgamate, merge with or into, or be replaced by any other entity
or permit any other entity to consolidate, amalgamate, merge with or into, or
replace it if such consolidation, amalgamation, merger or replacement would
cause the Trust or the successor entity to be classified as other than a grantor
trust for United States federal income tax purposes.
Article 3
Payment Account
Section 3.01 Payment Account.
(a) On or prior to the Issue Date, the Property Trustee shall
establish the Payment Account. The Property Trustee (and if deemed
necessary by the Property Trustee, an agent of the Property Trustee)
shall have exclusive control and sole right of withdrawal with respect
to the Payment Account for the purpose of making deposits in and
withdrawals from the Payment Account in accordance with this Amended
and Restated Declaration of Trust. All monies and other property
deposited or held from time to time in the Payment Account shall be
held by the Property Trustee in the Payment Account for the exclusive
benefit of the Securityholders and for distribution as herein provided,
including (and subject to) any priority of payments provided for
herein.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal or interest on, and
any other payments or proceeds with respect to, the Debentures. Amounts
held in the Payment Account shall not be invested by the Property
Trustee pending distribution thereof.
Article 4
Distributions; Redemption
Section 4.01 Distributions.
(a) Distributions on the Trust Securities shall be cumulative
and accrue from the Issue Date and, except in the event that the
Sponsor exercises its right to extend the interest payment
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period for the Debentures pursuant to Section (k) of the Indenture
Certificate, shall be payable semiannually in arrears on June 15 and
December 15 of each year, commencing on December 15, 2003. If any date
on which Distributions are otherwise payable on the Trust Securities
is not a Business Day, then the payment of such Distribution shall be
made on the next succeeding day which is a Business Day (and without
any interest or other payment in respect of any such delay) except
that, if such Business Day is in the next succeeding calendar year,
payment of such Distribution shall be made on the immediately
preceding Business Day, in each case, with the same force and effect
as if made on such date (each such date, a "Distribution Date").
(b) Distributions payable on the Trust Securities shall be
fixed at a rate of 5.75% per annum of the Liquidation Amount of the
Trust Securities, such rate being the rate of interest payable on the
Debentures to be held by the Property Trustee. Distributions in arrears
for more than one semiannual period will bear interest thereon
compounded semiannually at 5.75% per annum (to the extent permitted by
applicable law). The amount of Distributions payable for any full
semiannual period shall be computed on the basis of twelve 30-day
months and a 360-day year, and for any period shorter than a full month
for which Distributions are computed, Distributions will be computed on
the basis of the actual number of days elapsed in any such partial
month. If the interest payment period for the Debentures is extended by
the Sponsor pursuant to Section (k) of the Indenture Certificate (an
"Extension Period"), no interest shall be due and payable on the
Debentures. As a consequence of an Extension Period, Distributions will
also be deferred, provided that semiannual Distributions will continue
to accrue with interest thereon (to the extent permitted by applicable
law) at 5.75% per annum compounded semiannually ("Additional Amounts")
during any such Extension Period. Such deferred Distributions, together
with Additional Amounts, will be distributed to the Holders of the
Trust Securities as received at the end of any Extension Period;
provided, however, that the Trust may distribute such amounts earlier
if the Sponsor prepays interest accrued on the Debentures prior to the
end of any Extension Period as permitted by the Subordinated Indenture.
(c) Distributions on the Trust Securities shall be made and
shall be deemed payable on each Distribution Date only to the extent
that the Trust has legally and immediately available funds in the
Payment Account for the payment of such Distributions.
(d) Distributions, including Additional Amounts, if any, on
the Trust Securities on each Distribution Date shall be payable to the
Holders thereof as they appear on the Securities Register for the Trust
Securities on the relevant record date. While the Preferred Securities
are in book-entry only form, the relevant record dates shall be one
Business Day prior to the relevant payment dates which payment dates
correspond to the interest payment dates on the Debentures. If the
Preferred Securities shall not continue to remain in book-entry only
form, the relevant record dates for the Preferred Securities shall
conform to the rules of any securities exchange on which the Preferred
Securities are listed and, if none, shall be selected by the
Administrative Trustees, which dates shall be at least one Business Day
but not more than 60 Business Days before the relevant payment dates,
which payment dates correspond to the interest payment dates on the
Debentures. The relevant record dates for the Common Securities shall
be the same record date as for the Preferred Securities. Distributions
payable on the Trust Securities that are not punctually paid on any
Distribution Date as a result of the Sponsor having failed to make a
payment on the Debentures will cease to be payable to the Person in
whose name such Trust Securities are registered on the relevant record
date, and such defaulted Distribution will instead be payable to the
Person in whose name such Trust Securities are registered on the
special record date or other specified date determined in accordance
with the Subordinated Indenture.
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Each Trust Security upon registration of transfer of or in
exchange for or in lieu of any other Trust Security shall carry the rights of
Distributions accrued (including Additional Amounts, if any) and unpaid, and to
accrue (including Additional Amounts, if any), which were carried by such other
Trust Security.
Section 4.02 Redemption.
(a) On each Indenture Redemption Date with respect to the
Debentures (other than following the distribution of the Debentures to
the holders of Trust Securities pursuant to Section 9.04), the Trust
will be required to redeem a Like Amount of Trust Securities at the
applicable Redemption Price.
(b) Notice of redemption shall be given by the Property
Trustee by first-class mail, postage prepaid, mailed not less than 30
nor more than 60 days prior to the Redemption Date to each Holder of
Trust Securities to be redeemed, at such Holder's address appearing in
the Securities Register. All notices of redemption shall state:
(i) the Redemption Date;
(ii) the applicable Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are to
be redeemed, the total Liquidation Amount of the Trust Securities to be
redeemed; and
(v) that on the Redemption Date the applicable Redemption
Price will become due and payable upon each such Trust Security to be
redeemed and that Distributions thereon will cease to accrue on and
after such date.
(c) The Trust Securities redeemed on each Redemption Date
shall be redeemed at the applicable Redemption Price with the proceeds
from the contemporaneous redemption of Debentures. Redemptions of the
Trust Securities shall be made and the applicable Redemption Price
shall be deemed payable on each Redemption Date only to the extent that
the Trust has funds legally and immediately available in the Payment
Account for the payment of such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in
respect of any Preferred Securities, then, by 2:00 p.m. New York time,
on the Redemption Date, subject to Section 4.02(c), the Property
Trustee will, so long as the Preferred Securities are in book-entry
only form, irrevocably deposit with the Clearing Agency for the
Preferred Securities funds sufficient to pay the applicable Redemption
Price. If the Preferred Securities are not in book-entry only form, the
Property Trustee, subject to Section 4.02(c), shall irrevocably deposit
with the Paying Agent funds sufficient to pay the applicable Redemption
Price and will give the Paying Agent (if other than the Property
Trustee) irrevocable instructions to pay such Redemption Price to the
Holders thereof upon surrender of their Preferred Securities
Certificates. Notwithstanding the foregoing, Distributions payable on
or prior to the Redemption Date for any Trust Securities called for
redemption shall be payable to the Holders of such Trust Securities as
they appear on the Securities Register for the Trust Securities on the
relevant record dates for the related Distribution Dates. If notice of
redemption shall have been given and funds deposited as required, then
upon the date of such deposit, all rights of Securityholders holding
Trust Securities so called for redemption will cease, except the right
of such Securityholders to receive the applicable Redemption Price, but
without
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interest, and such Securities will cease to be outstanding. In the
event that any date on which any Redemption Price is payable is not a
Business Day, then payment of the applicable Redemption Price payable
on such date shall be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect of
any such delay) except that, if such Business Day is in the next
succeeding calendar year, payment of such Redemption Price shall be
made on the immediately preceding Business Day, in each case, with the
same force and effect as if made on such date. In the event that
payment of the applicable Redemption Price in respect of Trust
Securities is improperly withheld or refused and not paid either by
the Trust or by the Guarantor pursuant to the Guarantee, Distributions
on such Trust Securities will continue to accrue at the then
applicable rate, from such Redemption Date originally established by
the Trust for such Preferred Securities to the date such Redemption
Price is actually paid, and the actual payment date will be the
Redemption Date for purposes of calculating the applicable Redemption
Price.
(e) If less than all the Outstanding Trust Securities are to
be redeemed on a Redemption Date, then, subject to Section 4.03, the
aggregate Liquidation Amount of Trust Securities to be redeemed shall
be allocated pro rata to the Holders of the Trust Securities, with such
adjustments that each amount so allocated shall be divisible by $1,000.
The particular Preferred Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Property
Trustee from the Outstanding Preferred Securities not previously called
for redemption, by such method as the Property Trustee shall deem fair
and appropriate and which may provide for the selection for a
redemption of portions (equal to $1,000 or integral multiple thereof)
of the Liquidation Amount of Preferred Securities of a denomination
larger than $1,000. The Property Trustee shall promptly notify the
Securities Registrar (if other than the Property Trustee) in writing of
the Preferred Securities selected for redemption and, in the case of
any Preferred Securities selected for partial redemption, the
Liquidation Amount thereof to be redeemed. For all purposes of this
Amended and Restated Declaration of Trust, unless the context otherwise
requires, all provisions relating to the redemption of Preferred
Securities shall relate, in the case of any Preferred Securities
redeemed or to be redeemed only in part, to the portion of the
Liquidation Amount of Preferred Securities which has been or is to be
redeemed.
(f) Less than all the outstanding Trust Securities may not be
redeemed unless all accrued and unpaid Distributions have been paid on
all Trust Securities for all semiannual distribution periods
terminating on or before the date of redemption.
(g) Subject to the foregoing provisions of this Section 4.02
and to applicable law (including, without limitation, United States
federal securities laws), the Sponsor, the Guarantor or their
Affiliates may, at any time and from time to time, purchase outstanding
Preferred Securities by tender, in the open market or by private
agreement.
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Section 4.03 Subordination of Common Securities.
(a) Payment of Distributions (including Additional Amounts, if
applicable) on, and the applicable Redemption Price of, the Trust
Securities, as the case may be, shall be made pro rata based on the
Liquidation Amount of the Trust Securities; provided, however, that if
on any Distribution Date or Redemption Date an Indenture Event of
Default shall have occurred and be continuing, no payment of any
Distribution (including Additional Amounts, if applicable) on, or the
applicable Redemption Price of, any Common Security, and no other
payment on account of the redemption, liquidation or other acquisition
of Common Securities, shall be made unless payment in full in cash of
all accumulated and unpaid Distributions (including Additional Amounts,
if applicable) on all Outstanding Preferred Securities for all
distribution periods terminating on or prior thereto, or in the case of
payment of the applicable Redemption Price the full amount of such
Redemption Price on all Outstanding Preferred Securities, shall have
been made or provided for, and all funds immediately available to the
Property Trustee shall first be applied to the payment in full in cash
of all Distributions (including Additional Amounts, if applicable) on,
or the applicable Redemption Price of, Preferred Securities then due
and payable.
(b) In the case of the occurrence of any Indenture Event of
Default, the Holder of Common Securities will be deemed to have waived
any such Event of Default under this Amended and Restated Declaration
of Trust until the effect of all such Events of Default with respect to
the Preferred Securities have been cured, waived or otherwise
eliminated. Until any such Events of Default under this Amended and
Restated Declaration of Trust with respect to the Preferred Securities
have been so cured, waived or otherwise eliminated, the Property
Trustee shall act solely on behalf of the Holders of the Preferred
Securities and not the Holder of the Common Securities, and only the
Holders of the Preferred Securities will have the right to direct the
Property Trustee to act on their behalf.
Section 4.04 Payment Procedures
Payments in respect of the Preferred Securities shall be made by check
mailed to the address of the Person entitled thereto as such address shall
appear on the Securities Register or, if the Preferred Securities are held by a
Clearing Agency, such Distributions shall be made to the Clearing Agency, which
shall credit the relevant Persons' accounts at such Clearing Agency on the
applicable Distribution Dates. Payments in respect of the Common Securities
shall be made in such manner as shall be mutually agreed between the Property
Trustee and the Holder of the Common Securities.
Section 4.05 Tax Returns and Reports
The Administrative Trustee(s) shall prepare (or cause to be prepared),
at the Sponsor's expense, and file all United States federal, state and local
tax and information returns and reports required to be filed by or in respect of
the Trust. The Administrative Trustee(s) shall provide or cause to be provided
on a timely basis to each Holder any Internal Revenue Service form required to
be so provided in respect of the Trust Securities.
Article 5
Trust Securities Certificates
Section 5.01 Initial Ownership
Upon the creation of the Trust by the contribution by the Sponsor
pursuant to Section 2.03 and until the issuance of the Trust Securities, and at
any time during which no Trust Securities are outstanding, the
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Sponsor shall be the sole beneficial owner of the Trust.
Section 5.02 The Trust Securities Certificates
Each of the Trust Securities Certificates shall be issued in minimum
denominations of $1,000 and integral multiples in excess thereof. The Trust
Securities Certificates shall be executed on behalf of the Trust by manual or
facsimile signature of at least one Administrative Trustee. Trust Securities
Certificates bearing the manual or facsimile signatures of individuals who were,
at the time when such signatures shall have been affixed, authorized to sign on
behalf of the Trust, shall be validly issued and entitled to the benefits of
this Amended and Restated Declaration of Trust, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the
authentication and delivery of such Trust Securities Certificates or did not
hold such offices at the date of authentication and delivery of such Trust
Securities Certificates. A transferee of a Trust Securities Certificate shall
become a Securityholder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to Section 5.04.
Section 5.03 Authentication of Trust Securities Certificates
On the Issue Date, the Administrative Trustees shall cause Trust
Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.04 and 2.05, to be executed on behalf of the Trust, authenticated and
delivered to or upon the written order of the Sponsor signed by its Chairman of
the Board, its President or any Vice President, without further corporate action
by the Sponsor, in authorized denominations. No Trust Securities Certificate
shall entitle its holder to any benefit under this Amended and Restated
Declaration of Trust, or shall be valid for any purpose, unless there shall
appear on such Trust Securities Certificate a certificate of authentication
substantially in the form set forth in Exhibit A or Exhibit C, as applicable,
executed by the Property Trustee by manual signature; such authentication shall
constitute conclusive evidence that such Trust Securities Certificate shall have
been duly authenticated and delivered hereunder. All Trust Securities
Certificates shall be dated the date of their authentication. Upon the written
order of the Trust signed by the Administrative Trustees, the Property Trustee
shall authenticate and make available for delivery the Trust Security
Certificates.
Section 5.04 Registration of Transfer and Exchange of Preferred
Securities Certificates
The Securities Registrar shall keep or cause to be kept, at the office
or agency maintained pursuant to Section 5.08, a Securities Register in which,
subject to such reasonable regulations as it may prescribe, the Securities
Registrar shall provide for the registration of Preferred Securities
Certificates and the Common Securities Certificates (subject to Section 5.10 in
the case of the Common Securities Certificates) and registration of transfers
and exchanges of Preferred Securities Certificates as herein provided. The
Property Trustee shall be the initial Securities Registrar.
Upon surrender for registration of transfer of any Preferred
Securities Certificate at the office or agency maintained pursuant to Section
5.08, one or more of the Administrative Trustees shall execute and cause the
Property Trustee to authenticate and deliver in the name of the designated
transferee or transferees one or more new Preferred Securities Certificates in
authorized denominations of a like aggregate Liquidation Amount dated the date
of authentication by the Property Trustee. The Securities Registrar shall not be
required to register the transfer of any Preferred Securities that have been
called for redemption. At the option of a Holder, Preferred Securities
Certificates may be exchanged for other Preferred Securities Certificates in
authorized denominations of the same class and of a like aggregate Liquidation
Amount upon surrender of the Preferred Securities Certificates to be exchanged
at the office or agency maintained pursuant to Section 5.08.
20
Every Preferred Securities Certificate presented or
surrendered for registration of transfer or exchange shall be accompanied by a
written instrument of transfer in form satisfactory to the Administrative
Trustees and the Securities Registrar duly executed by the Holder or his
attorney duly authorized in writing. Each Preferred Securities Certificate
surrendered for registration of transfer or exchange shall be canceled and
subsequently disposed of by the Securities Registrar in accordance with its
customary practice.
No service charge shall be made for any registration of
transfer or exchange of Preferred Securities Certificates, but the Securities
Registrar or the Administrative Trustees may require payment of a sum sufficient
to cover any tax or governmental charge that may be imposed in connection with
any transfer or exchange of Preferred Securities Certificates.
Section 5.05 Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates
If (i) any mutilated Trust Securities Certificate shall be surrendered
to the Securities Registrar, or if the Securities Registrar shall receive
evidence to its satisfaction of the destruction, loss or theft of any Trust
Securities Certificate and (ii) there shall be delivered to the Securities
Registrar, the Property Trustee and the Administrative Trustees such security or
indemnity as may be required by them to save each of them harmless, then in the
absence of notice that such Trust Securities Certificate shall have been
acquired by a protected purchaser, the Administrative Trustees or any one of
them on behalf of the Trust shall execute and cause the Property Trustee to
authenticate and make available for delivery, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Trust Securities Certificate, a new
Trust Securities Certificate of like class, tenor and denomination. In
connection with the issuance of any new Trust Securities Certificate under this
Section 5.05, the Administrative Trustees or the Securities Registrar may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith. Any duplicate Trust
Securities Certificate issued pursuant to this Section 5.05 shall constitute
conclusive evidence of an ownership interest in the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.
Section 5.06 Persons Deemed Securityholders
Prior to due presentation of a Trust Securities Certificate for
registration of transfer, the Trustees or the Securities Registrar shall treat
the Person in whose name any Trust Securities Certificate shall be registered in
the Securities Register as the owner of such Trust Securities Certificate for
the purpose of receiving Distributions (subject to Section 4.01(d)) and for all
other purposes whatsoever, and neither the Trustees nor the Securities Registrar
shall be bound by any notice to the contrary.
Section 5.07 Access to List of Securityholders' Names and Addresses
The Administrative Trustees shall furnish or cause to be furnished to
(i) the Sponsor and the Property Trustee semi-annually, not later than June 1
and December 1 in each year, and (ii) the Sponsor or the Property Trustee, as
the case may be, within 30 days after receipt by any Administrative Trustee of a
request therefor from the Sponsor or the Property Trustee, as the case may be,
in writing, a list, in such form as the Sponsor or the Property Trustee, as the
case may be, may reasonably require, of the names and addresses of the
Securityholders as of a date not more than 15 days prior to the time such list
is furnished; provided, that the Administrative Trustees shall not be obligated
to provide such list at any time such list does not differ from the most recent
list given to the Sponsor and the Property Trustee by the Administrative
Trustees or at any time the Property Trustee is the Securities Registrar. If
three or more Securityholders or one or more Holders of Trust Securities
Certificates evidencing not less than 25% of the outstanding Liquidation Amount
apply in writing to the Administrative Trustees, and such application states
that the applicants desire to communicate with other Securityholders with
respect to their rights under this Amended and Restated Declaration of Trust or
under the Trust Securities Certificates and such application is
21
accompanied by a copy of the communication that such applicants propose to
transmit, then the Administrative Trustees shall, within five Business Days
after the receipt of such application, afford such applicants access during
normal business hours to the current list of Securityholders. Each Holder, by
receiving and holding a Trust Securities Certificate, shall be deemed to have
agreed not to hold the Sponsor, the Property Trustee or the Administrative
Trustees accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.
Section 5.08 Maintenance of Office or Agency
The Administrative Trustees shall maintain in the Borough of Manhattan,
New York, or Wilmington, Delaware, an office or offices or agency or agencies
where Preferred Securities Certificates may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Trustees in
respect of the Trust Securities Certificates may be served. The Administrative
Trustees initially designate the Corporate Trust Office of the Property Trustee,
Wachovia Trust Company, National Association, as its office for such purposes.
The Administrative Trustees shall give prompt written notice to the Sponsor and
to the Securityholders of any change in the location of the Securities Register
or any such office or agency.
Section 5.09 Appointment of Paying Agent
The Paying Agent shall make Distributions and other payments provided
hereby to Securityholders from the Payment Account and shall report the amounts
of such Distributions and payments to the Property Trustee and the
Administrative Trustees. Any Paying Agent shall have the revocable power to
withdraw funds from the Payment Account for the purpose of making the
Distributions and payments provided hereby. The Administrative Trustees may
revoke such power and remove the Paying Agent if such Trustees determine in
their sole discretion that the Paying Agent shall have failed to perform its
obligations under this Agreement in any material respect. The Paying Agent shall
initially be the Property Trustee, and it may choose any co-paying agent that is
acceptable to the Administrative Trustees and the Sponsor. Any Person acting as
Paying Agent shall be permitted to resign as Paying Agent upon 30 days written
notice to the Administrative Trustees and the Sponsor. In the event that a
Paying Agent shall resign or be removed, the Administrative Trustees shall
appoint a successor that is acceptable to the Sponsor to act as Paying Agent
(which shall be a bank or trust company). The Administrative Trustees shall
cause such successor Paying Agent or any additional Paying Agent appointed by
the Administrative Trustees to execute and deliver to the Trustees an instrument
in which such successor Paying Agent or additional Paying Agent shall agree with
the Trustees that as Paying Agent, such successor Paying Agent or additional
Paying Agent will hold all sums, if any, held by it for payment to the
Securityholders in trust for the benefit of the Securityholders entitled thereto
until such sums shall be paid to such Securityholders. The Paying Agent shall
return all unclaimed funds to the Property Trustee and upon removal of a Paying
Agent such Paying Agent shall also return all funds in its possession to the
Property Trustee. The provisions of Sections 8.01, 8.03 and 8.06 shall apply to
the Property Trustee also in its role as Paying Agent, for so long as the
Property Trustee shall act as Paying Agent and, to the extent applicable, to any
other paying agent appointed hereunder. Any reference in this Agreement to the
Paying Agent shall include any co-paying agent unless the context requires
otherwise.
Section 5.10 Ownership of Common Securities by Sponsor
On the Issue Date, the Sponsor shall acquire, and thereafter retain,
beneficial and record ownership of the Common Securities. To the fullest extent
permitted by law, any attempted transfer of the Common Securities, except for
transfers by operation of law or to an Affiliate of the Guarantor or the Sponsor
or a permitted successor under the Subordinated Indenture, shall be void. The
Administrative Trustees shall cause each Common Securities Certificate issued to
the Sponsor to contain a legend stating "THIS CERTIFICATE IS NOT TRANSFERABLE
EXCEPT AS PROVIDED IN THE AMENDED AND
22
RESTATED DECLARATION OF TRUST REFERRED TO HEREIN".
Section 5.11 Book-Entry Preferred Securities Certificates; Common
Securities Certificate.
(a) The Preferred Securities Certificates, upon original
issuance, will be issued in the form of a typewritten Preferred
Securities Certificate or Certificates representing Book-Entry
Preferred Securities Certificates, to be delivered to The Depository
Trust Company, the initial Clearing Agency, by, or on behalf of, the
Trust. Such Preferred Securities Certificate or Certificates shall
initially be registered on the Securities Register in the name of Cede
& Co., the nominee of the initial Clearing Agency, and no Owner will
receive a definitive Preferred Securities Certificate representing such
beneficial owner's interest in such Preferred Securities, except as
provided in Section 5.13. Unless and until Definitive Preferred
Securities Certificates have been issued to Owners pursuant to Section
5.13:
(i) the provisions of this Section 5.11(a) shall be in full
force and effect;
(ii) the Securities Registrar and the Trustees shall be
entitled to deal with the Clearing Agency for all purposes of this
Amended and Restated Declaration of Trust relating to the Book-Entry
Preferred Securities Certificates (including the payment of principal
of and interest on the Book-Entry Preferred Securities and the giving
of instructions or directions to Owners of Book-Entry Preferred
Securities) as the sole Holder of Book-Entry Preferred Securities and
shall have no obligations to the Owners thereof;
(iii) to the extent that the provisions of this Section 5.11
conflict with any other provisions of this Amended and Restated
Declaration of Trust, the provisions of this Section 5.11 shall
control; and
(iv) the rights of the Owners of the Book-Entry Preferred
Securities Certificates shall be exercised only through the Clearing
Agency and shall be limited to those established by law and agreements
between such Owners and the Clearing Agency and/or the Clearing Agency
Participants. Pursuant to the Certificate Depository Agreement, unless
and until Definitive Preferred Securities Certificates are issued
pursuant to Section 5.13, the Clearing Agency will make book-entry
transfers among the Clearing Agency Participants and receive and
transmit payments on the Preferred Securities to such Clearing Agency
Participants.
(b) A Common Securities Certificate representing the Common
Securities shall be issued to the Sponsor in the form of a definitive
Common Securities Certificate.
Section 5.12 Notices to Clearing Agency
To the extent a notice or other communication to the Owners is required
under this Amended and Restated Declaration of Trust, unless and until
Definitive Preferred Securities Certificates shall have been issued to Owners
pursuant to Section 5.13, the Trustees shall give all such notices and
communications specified herein to be given to Holders to the Clearing Agency,
and shall have no obligations to provide notice to the Owners.
Section 5.13 Definitive Preferred Securities Certificates
If (i) the Sponsor advises the Trustees in writing that the Clearing
Agency is no longer willing or able to properly discharge its responsibilities
with respect to the Preferred Securities Certificates, and the Sponsor is unable
to locate a qualified successor, or (ii) the Sponsor at its option advises the
Trustees
23
in writing that it elects to terminate the book-entry system through the
Clearing Agency, then the Administrative Trustees shall notify the Clearing
Agency and Holders of the Preferred Securities. Upon surrender to the
Administrative Trustees of the typewritten Preferred Securities Certificate or
Certificates representing the Book-Entry Preferred Securities Certificates by
the Clearing Agency, accompanied by registration instructions, the
Administrative Trustees or any one of them shall execute and cause the Property
Trustee to authenticate and deliver the Definitive Preferred Securities
Certificates in accordance with the instructions of the Clearing Agency. Neither
the Securities Registrar nor the Trustees shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Preferred Securities Certificates, the Trustees shall recognize the Holders of
the Definitive Preferred Securities Certificates as Securityholders. The
Definitive Preferred Securities Certificates shall be printed, lithographed or
engraved or may be produced in any other manner as is reasonably acceptable to
the Administrative Trustees, as evidenced by the execution thereof by the
Administrative Trustees or any one of them.
Section 5.14 Rights of Securityholders
The legal title to the Trust Property is vested exclusively in the
Property Trustee (in its capacity as such) in accordance with Section 2.09, and
the Securityholders shall not have any right or title therein other than an
undivided beneficial interest in the assets of the Trust conferred by their
Trust Securities, and they shall have no right to call for any partition or
division of property, profits or rights of the Trust except as described below.
The Trust Securities shall be personal property giving only the rights
specifically set forth therein and in this Amended and Restated Declaration of
Trust. The Trust Securities shall have no preemptive or other similar rights and
when issued and delivered to Securityholders against payment of the purchase
price therefor, except as otherwise provided in the Expense Agreement and
Section 10.01, will be fully paid and nonassessable by the Trust and will be
entitled to the benefits of this Amended and Restated Declaration of Trust.
Except as otherwise provided in the Expense Agreement and Section 10.01 with
respect to the Holder of the Common Securities, the Holders of the Trust
Securities shall be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware.
Article 6
Acts of Securityholders; Meetings; Voting
Section 6.01 Limitations on Voting Rights.
(a) Except as provided in this Section 6.01, in Sections 8.10
or 10.03, in the Subordinated Indenture, and as otherwise required by
law, no Holder of Preferred Securities shall have any right to vote or
in any manner otherwise control the administration, operation and
management of the Trust or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Trust
Securities Certificates, be construed so as to constitute the
Securityholders from time to time as partners or members of an
association.
(b) So long as any Debentures are held by the Property
Trustee, the Trustees shall not (i) direct the time, method and place
of conducting any proceeding for any remedy available to the Indenture
Trustee, or executing any trust or power conferred on the Indenture
Trustee with respect to such Debentures, (ii) waive any past default
which is waivable under the Subordinated Indenture, (iii) exercise any
right to rescind or annul a declaration that the principal of all the
Debentures shall be due and payable or (iv) consent to any amendment,
modification or termination of the Subordinated Indenture or the
Debentures, where such consent shall be required, or to any other
action, as holder of the Debentures, under the Subordinated Indenture,
without, in each case, obtaining the prior approval of the Holders of
at least 66-2/3% in Liquidation Amount of the
24
Preferred Securities; provided, however, that where a consent under
the Subordinated Indenture would require the consent of each holder of
Debentures affected thereby, no such consent shall be given by the
Trustees without the prior written consent of each Holder of Preferred
Securities. The Trustees shall not revoke any action previously
authorized or approved by a vote of the Holders of Preferred
Securities, except pursuant to a subsequent vote of the Holders of
Preferred Securities. The Property Trustee shall notify all Holders of
the Preferred Securities of any notice of default received from the
Indenture Trustee with respect to the Debentures. In addition to
obtaining the foregoing approvals of the Holders of the Preferred
Securities, prior to taking any of the foregoing actions, the
Administrative Trustees and the Property Trustee shall, at the expense
of the Sponsor, obtain an Opinion of Counsel experienced in such
matters to the effect that the Trust will not be classified as other
than a grantor trust for United States federal income tax purposes on
account of such action.
(c) If any proposed amendment to this Amended and Restated
Declaration of Trust provides for, or the Trustees otherwise propose to
effect, (i) any action that would adversely affect the powers,
preferences or special rights of the Preferred Securities, whether by
way of amendment to this Amended and Restated Declaration of Trust or
otherwise, or (ii) the dissolution, winding-up or termination of the
Trust, other than pursuant to the terms of this Amended and Restated
Declaration of Trust, then the Holders of Outstanding Preferred
Securities as a class will be entitled to vote on such amendment or
proposal and such amendment or proposal shall not be effective except
with the approval of the Holders of at least 66-2/3% in the Outstanding
Preferred Securities (based upon their Liquidation Amount). In addition
to obtaining the foregoing approvals of the Holders of the Preferred
Securities, prior to taking any of the foregoing actions, the
Administrative Trustees and the Property Trustee shall, at the expense
of the Sponsor, obtain an Opinion of Counsel experienced in such
matters to the effect that the Trust will not be classified as other
than a grantor trust for United States federal income tax purposes on
account of such action.
Section 6.02 Notice of Meetings
Notice of all meetings of the Preferred Securityholders, stating the
time, place and purpose of the meeting, shall be given by the Administrative
Trustees pursuant to Section 10.08 to each Preferred Securityholder of record,
at his registered address, at least 15 days and not more than 90 days before the
meeting. At any such meeting, any business properly before the meeting may be so
considered whether or not stated in the notice of the meeting. Any adjourned
meeting may be held as adjourned without further notice.
Section 6.03 Meetings of Preferred Securityholders
No annual meeting of Securityholders is required to be held. The
Administrative Trustees, however, shall call a meeting of Securityholders to
vote on any matter upon the written request of the Preferred Securityholders of
record of 25% of the Outstanding Preferred Securities (based upon their
Liquidation Amount) and the Administrative Trustees or the Property Trustee may,
at any time in their discretion, call a meeting of Preferred Securityholders to
vote on any matters as to which Preferred Securityholders are entitled to vote.
Preferred Securityholders of record of 50% of the Outstanding Preferred
Securities (based upon their Liquidation Amount) present in person or by proxy,
shall constitute a quorum at any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by the
Preferred Securityholders of record present, in person or by proxy, holding more
than 66-2/3% of the Outstanding Preferred Securities (based
25
upon their Liquidation Amount) held by the Preferred Securityholders of record
present, either in person or by proxy, at such meeting shall constitute the
action of the Securityholders, unless this Amended and Restated Declaration of
Trust requires a greater number of affirmative votes.
Section 6.04 Voting Rights
Securityholders shall be entitled to one vote for each $1,000 of
Liquidation Amount represented by their Trust Securities in respect of any
matter as to which such Securityholders are entitled to vote.
Section 6.05 Proxies, etc.
At any meeting of Securityholders, any Securityholder entitled to vote
may vote by proxy, provided that no proxy shall be voted at any meeting unless
it shall have been placed on file with the Administrative Trustees, or with such
other officer or agent of the Trust as the Administrative Trustees may direct,
for verification prior to the time at which such vote shall be taken. A
Securityholder may grant a proxy by any means permitted by the General
Corporation Law of the State of Delaware. Only Securityholders of record shall
be entitled to vote. When Trust Securities are held jointly by several Persons,
any one of them may vote at any meeting in person or by proxy in respect of such
Trust Securities, but if more than one of them shall be present at such meeting
in person or by proxy, and such joint owners or their proxies so present
disagree as to any vote to be cast, such vote shall not be received in respect
of such Trust Securities. A proxy purporting to be executed by or on behalf of a
Securityholder shall be deemed valid unless challenged at or prior to its
exercise, and the burden of proving invalidity shall rest on the challenger. No
proxy shall be valid more than three years after its date of execution.
Section 6.06 Securityholder Action by Written Consent
Any action which may be taken by Securityholders at a meeting may be
taken without a meeting if Securityholders holding at least 66-2/3% of all
Outstanding Trust Securities (based upon their Liquidation Amount) entitled to
vote in respect of such action (or such other proportion thereof as shall be
required by any express provision of this Amended and Restated Declaration of
Trust) shall consent to the action in writing.
Section 6.07 Record Date for Voting and Other Purposes
For the purposes of determining the Securityholders who are entitled to
notice of and to vote at any meeting or by written consent, or to participate in
any Distribution on the Trust Securities in respect of which a record date is
not otherwise provided for in this Amended and Restated Declaration of Trust, or
for the purpose of any other action, the Administrative Trustees may from time
to time fix a date, not more than 60 days prior to the date of any meeting of
Securityholders or the payment of a Distribution or other action, as the case
may be, as a record date for the determination of the identity of the
Securityholders of record for such purposes.
Section 6.08 Acts of Securityholders
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Amended and Restated Declaration
of Trust to be given, made or taken by Securityholders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Securityholders in person or by an agent appointed in writing; and, except
as otherwise expressly provided herein, such action shall become effective when
such instrument or instruments are delivered to the Administrative Trustees.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Securityholders
signing such instrument or
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instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Amended
and Restated Declaration of Trust and (subject to Section 8.01) conclusive in
favor of the Trustees, if made in the manner provided in this Section 6.08.
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. 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. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustees deem sufficient.
The ownership of Preferred Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Securityholder of any Trust Security shall bind every future
Securityholder of the same Trust Security and the Securityholder of every Trust
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 Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled hereunder to
take any action hereunder with regard to any particular Trust Security may do so
with regard to all or any part of the Liquidation Amount of such Trust Security
or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such Liquidation Amount.
Section 6.09 Inspection of Records
Upon reasonable notice to the Trustees, the records of the Trust, and
the records of any Trustee as such records relate to the Trust, shall be open to
inspection by Securityholders during normal business hours for any purpose
reasonably related to such Securityholder's interest as a Securityholder.
Article 7
Representations and Warranties of the Property Trustee and Delaware Trustee
Section 7.01 Representations and Warranties of Property Trustee
The Trustee that acts as initial Property Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Amended and
Restated Declaration of Trust, and each Successor Property Trustee represents
and warrants to the Trust and the Sponsor at the time of the Successor Property
Trustee's acceptance of its appointment as Property Trustee that:
(a) The Property Trustee is a national bank with trust powers
and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Amended and Restated Declaration
of Trust;
(b) The execution, delivery and performance by the Property
Trustee of this Amended and Restated Declaration of Trust have been
duly authorized by all necessary corporate action on the part of the
Property Trustee. This Amended and Restated Declaration of Trust has
been duly executed and delivered by the Property Trustee and
constitutes a legal, valid and binding obligation of the Property
Trustee, enforceable against it in accordance with its terms, subject
to applicable bankruptcy, reorganization, moratorium, insolvency, and
other similar laws affecting creditors' rights generally and to general
principles of equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a proceeding
in equity or at law);
(c) The execution, delivery and performance of this Amended
and Restated Declaration of Trust by the Property Trustee do not
conflict with or constitute a breach of the charter or by-laws of the
Property Trustee; and
(d) No consent, approval or authorization of, or registration
with or notice to, any Delaware or federal banking authority is
required for the execution, delivery or performance by the Property
Trustee of this Amended and Restated Declaration of Trust.
Section 7.02 Representations and Warranties of Delaware Trustee
The Trustee that acts as initial Delaware Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Amended and
Restated Declaration of Trust, and each Successor Delaware Trustee represents
and warrants to the Trust and the Sponsor at the time of the Successor Delaware
Trustee's acceptance of its appointment as Delaware Trustee that:
(a) The Delaware Trustee is duly organized, validly existing
and in good standing under the laws of the State of Delaware, with
trust power and authority to execute and deliver, and to carry out and
perform its obligations under the terms of, this Amended and Restated
Declaration of Trust;
(b) The execution, delivery and performance by the Delaware
Trustee of this Amended and Restated Declaration of Trust have been
duly authorized by all necessary corporate action on the part of the
Delaware Trustee. This Amended and Restated Declaration of Trust has
been duly executed and delivered by the Delaware Trustee and
constitutes a legal, valid and binding obligation of the Delaware
Trustee, enforceable against it in accordance with its terms, subject
to applicable bankruptcy, reorganization, moratorium, insolvency, and
other similar laws affecting creditors'
27
rights generally and to general principles of equity and the
discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law);
(c) No consent, approval or authorization of, or registration
with or notice to, any Delaware or federal banking authority is
required for the execution, delivery or performance by the Delaware
Trustee of this Amended and Restated Declaration of Trust; and
(d) The Delaware Trustee is a natural person who is a resident
of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware.
Article 8
The Trustees
Section 8.01 Certain Duties and Responsibilities.
(a) The rights, duties and responsibilities of the Trustees
shall be as provided by this Amended and Restated Declaration of Trust
and, in the case of the Property Trustee, the Trust Indenture Act.
Notwithstanding the foregoing, no provision of this Amended and
Restated Declaration of Trust shall require the Trustees to expend or
risk their own funds or otherwise incur any financial liability in the
performance of any of their duties hereunder, or in the exercise of any
of their rights or powers, if they shall have reasonable grounds for
believing that repayment of such
28
funds or adequate indemnity against such risk or liability is not
reasonably assured to them. Whether or not therein expressly so
provided, every provision of this Amended and Restated Declaration of
Trust relating to the conduct or affecting the liability of or
affording protection to the Trustees shall be subject to the
provisions of this Section 8.01.
(b) All payments made by the Property Trustee or a Paying
Agent in respect of the Trust Securities shall be made only from the
income and proceeds from the Trust Property and only to the extent that
there shall be sufficient income or proceeds from the Trust Property to
enable the Property Trustee or a Paying Agent to make payments in
accordance with the terms hereof. Each Securityholder, by its
acceptance of a Trust Security, agrees that it will look solely to the
income and proceeds from the Trust Property to the extent available for
distribution to it as herein provided and that the Trustees are not
personally liable to it for any amount distributable in respect of any
Trust Security or for any other liability in respect of any Trust
Security. This Section 8.01(b) does not limit the liability of the
Trustees expressly set forth elsewhere in this Amended and Restated
Declaration of Trust and, in the case of the Property Trustee, in the
Trust Indenture Act.
(c) No Trustee shall be liable for its acts or omissions
hereunder except as a result of its own gross negligence (or ordinary
negligence in the case of the Property Trustee), willful misconduct or
bad faith. To the extent that, at law or in equity, a Trustee has
duties (including fiduciary duties) and liabilities relating thereto to
the Trust or to the Securityholders, such Trustee shall not be liable
to the Trust or to any Securityholder for such Trustee's good faith
reliance on the provisions of this Amended and Restated Declaration of
Trust. The provisions of this Amended and Restated Declaration of
Trust, to the extent that they restrict the duties and liabilities of
the Trustees otherwise existing at law or in equity, are agreed by the
Sponsor and the Securityholders to replace such other duties and
liabilities of the Trustees (other than the mandatory duties and
liabilities of the Property Trustee under the Trust Indenture Act).
(d) No provision of this Amended and Restated Declaration of
Trust shall be construed to relieve the Property Trustee from liability
for its own negligent action, its own negligent failure to act, or its
own willful misconduct, except that:
(i) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
(ii) the Property 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 not less than a
majority in Liquidation Amount of the Trust Securities relating to the
time, method and place of conducting any proceeding for any remedy
available to the Property Trustee, or exercising any trust or power
conferred upon the Property Trustee under this Amended and Restated
Declaration of Trust;
(iii) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and
the Payment Account shall be to deal with such Property in a similar
manner as the Property Trustee deals with similar property for its own
account, subject to the protections and limitation on liability
afforded to the Property Trustee under this Amended and Restated
Declaration of Trust and the Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any interest
on any money received by it except as it may otherwise agree in writing
with the Sponsor, and money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the
Payment
29
Account maintained by the Property Trustee pursuant to Section 3.01
and except to the extent otherwise required by law; and
(v) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the Sponsor
with their respective duties under this Amended and Restated
Declaration of Trust, nor shall the Property Trustee be liable for the
negligence, default or misconduct of the Administrative Trustees or the
Sponsor.
(e) Any direction or act of the Sponsor or the Administrative
Trustees contemplated by this Amended and Restated Declaration of Trust
shall be sufficiently evidenced by an Officers' Certificate;
The Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement) or any filing under tax or
securities laws or any rerecording, refiling, or reregistration
thereof;
(f) Whenever in the administration of this Amended and
Restated Declaration of Trust the Property Trustee shall deem it
desirable to receive instructions with respect to enforcing any remedy
or right or taking any other action hereunder as to which the Preferred
Securityholders are entitled to vote under the terms of this Amended
and Restated Declaration of Trust, the Property Trustee (i) may request
instructions from the Holders of the Trust Securities which
instructions may only be given by the Holders of the same proportion in
Liquidation Amount of the Trust Securities as would be entitled to
direct the Property Trustee under the terms of the Trust Securities in
respect of such remedy, right or action; (ii) may refrain from
enforcing such remedy or right or taking such other action until such
instructions are received; and (iii) shall be protected in acting in
accordance with such instructions; and
(g) Except as otherwise expressly provided by this Amended and
Restated Declaration of Trust, the Property Trustee shall not be under
any obligation to take any action that is discretionary under the
provisions of this Amended and Restated Declaration of Trust. No
provision of this Amended and Restated Declaration of Trust shall be
deemed to impose any duty or obligations on the Property Trustee to
perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it, in any jurisdiction in which it
shall be illegal, or in which the Property Trustee shall be unqualified
or incompetent in accordance with applicable law, to perform any such
act or acts, or to exercise any such right, power, duty or obligation.
No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
Section 8.02 Notice of Defaults
Within 90 days after the occurrence of any Event of Default, the
Property Trustee shall transmit, in the manner and to the extent provided in
Section 10.08, notice of any Event of Default known to the Property Trustee to
the Securityholders, the Administrative Trustees, the Guarantor and the Sponsor,
unless such Event of Default shall have been cured or waived.
Section 8.03 Certain Rights of Property Trustee.
Subject to the provisions of Section 8.01:
(i) the Property Trustee may conclusively rely and shall be
protected in acting or refraining from acting in good faith upon any
resolution, Opinion of Counsel, Officer's Certificate, written
representation of a Holder or transferee, certificate of auditors or
any other certificate,
30
statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond, note or other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(ii) if (A) in performing its duties under this Amended and
Restated Declaration of Trust the Property Trustee is required to
decide between alternative courses of action, or (B) in construing any
of the provisions in this Amended and Restated Declaration of Trust the
Property Trustee finds the same ambiguous or inconsistent with any
other provisions contained herein, or (C) the Property Trustee is
unsure of the application of any provision of this Amended and Restated
Declaration of Trust, then, except as to any matter as to which the
Preferred Securityholders are entitled to vote under the terms of this
Amended and Restated Declaration of Trust, the Property Trustee shall
deliver a notice to the Sponsor requesting written instructions of the
Sponsor as to the course of action to be taken. The Property Trustee
shall take such action, or refrain from taking such action, as the
Property Trustee shall be instructed in writing to take, or to refrain
from taking, by the Sponsor; provided, however, that if the Property
Trustee does not receive such instructions of the Sponsor within ten
Business Days after it has delivered such notice, or such reasonably
shorter period of time set forth in such notice (which to the extent
practicable shall not be less than two Business Days), it may, but
shall be under no duty to, take or refrain from taking such action not
inconsistent with this Amended and Restated Declaration of Trust as it
shall deem advisable and in the best interests of the Securityholders,
in which event the Property Trustee shall have no liability except for
its own bad faith, negligence or willful misconduct;
(iii) the Property Trustee may consult with counsel of its
selection and the advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and
in reliance thereon;
(iv) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Amended and
Restated Declaration of Trust at the request or direction of any of the
Securityholders pursuant to this Amended and Restated Declaration of
Trust, unless such Securityholders shall have offered to the Property
Trustee security or indemnity reasonably satisfactory to it against the
costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(v) the Property 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,
consent, order, approval, bond, note or other evidence of indebtedness
or other document, unless requested in writing to do so by one or more
Securityholders;
(vi) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through its agents or attorneys, and the Property Trustee shall not
be liable for the action, default or misconduct of such agents or
attorneys, provided that the Property Trustee shall be responsible for
its own negligence or recklessness with respect to selection of any
agent or attorney appointed by it hereunder; and
(vii) whenever in the administration of this Amended and
Restated Declaration of Trust the Property Trustee shall deem it
desirable that a matter, including the compliance of any covenant in
connection therewith or condition thereto, be established before
undertaking, suffering or omitting to take any action hereunder, the
Property Trustee may (unless other evidence thereof is herein
specifically prescribed), in the absence of bad faith on its part,
request and conclusively rely upon an Officer's Certificate which, upon
receipt of such request, shall be promptly delivered by the Sponsor or
the Administrative Trustees.
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Section 8.04 Not Responsible for Recitals or Issuance of Securities
The recitals contained herein and in the Trust Securities Certificates
shall be taken as the statements of the Trust, and the Trustees do not assume
any responsibility for their correctness. The Trustees shall not be accountable
for the use or application by the Trust of the proceeds of the Trust Securities
in accordance with Section 2.05.
The Property Trustee may conclusively assume that any funds held by it
hereunder are legally available unless a Responsible Officer shall have received
written notice from the Sponsor, any Holder or any other Trustee that such funds
are not legally available.
Section 8.05 May Hold Securities
Except as provided in the definition of the term "Outstanding" in
Article 1, any Trustee or any other agent of the Trustees or the Trust, in its
individual or any other capacity, may become the owner or pledgee of Trust
Securities and may otherwise deal with the Trust with the same rights it would
have if it were not a Trustee or such other agent.
Section 8.06 Compensation; Fees; Indemnity.
The Sponsor agrees:
(1) to pay to the Trustees from time to time reasonable
compensation for all services rendered by the Trustees hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable expenses,
disbursements and advances incurred or made by the Trustees in
accordance with any provision of this Amended and Restated Declaration
of Trust (including the reasonable compensation and the expenses and
disbursements of their agents and counsel), except to the extent any
such expense, disbursement or advance is attributable to their willful
misconduct, gross negligence (ordinary negligence in the case of the
Property Trustee) or bad faith;
(3) to indemnify each of the Trustees and the Bank for, and to
hold each of the Trustees and the Bank harmless against, any and all
loss, damage, claims, liability or expense of any kind whatsoever to
the extent incurred without willful misconduct, gross negligence
(ordinary negligence in the case of the Property Trustee) or bad faith
on their part, arising out of or in connection with the acceptance or
administration of this Amended and Restated Declaration of Trust,
including the costs and expenses of defending themselves against any
claim or liability in connection with the exercise or performance of
any of their powers or duties hereunder; and
(4) to advance expenses (including legal fees) incurred by
each of the Trustees and the Bank in defending any claim, demand,
action, suit or proceeding, from time to time, prior to the final
disposition of such claim, demand, action, suit or proceeding, upon
receipt by the Sponsor of an undertaking by or on behalf of such
Trustee or the Bank, as the case may be, to repay such amount if it
shall be determined such Trustee or the Bank, as the case may be, is
not entitled to be indemnified as authorized in this Section 8.06.
The provisions of this Section 8.06 shall survive the
resignation or removal of any Trustee or the termination of this Amended and
Restated Declaration of Trust.
32
Section 8.07 Trustees Required; Eligibility.
(a) There shall at all times be a Property Trustee hereunder
with respect to the Trust Securities. The Property Trustee shall be a
Person that has a combined capital and surplus of at least $50,000,000.
If any such Person publishes reports of condition at least annually,
pursuant to law or to the requirements of its supervising or examining
authority, then for the purposes of this Section 8.07, the combined
capital and surplus of such Person 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 Property Trustee with respect to the
Trust Securities shall cease to be eligible in accordance with the
provisions of this Section 8.07, it shall resign immediately in the
manner and with the effect hereinafter specified in this Article 8.
(b) There shall at all times be one or more Administrative
Trustees hereunder with respect to the Trust Securities. Each
Administrative Trustee shall be either a natural person who is at least
21 years of age or a legal entity that shall act through one or more
persons authorized to bind such entity.
(c) There shall at all times be a Delaware Trustee with
respect to the Trust Securities. The Delaware Trustee shall either be
(i) a natural person who is at least 21 years of age and a resident of
the State of Delaware or (ii) a legal entity authorized to conduct a
trust business and with its principal place of business in the State of
Delaware that shall act through one or more persons authorized to bind
such entity.
Section 8.08 Conflicting Interests.
If the Property Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Property Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Amended and
Restated Declaration of Trust. To the extent permitted by the Trust Indenture
Act, the Property Trustee shall not be deemed to have a conflicting interest by
virtue of being trustee under the Guarantee.
Section 8.09 Co-Trustees and Separate Trustee.
At any time or times, for the purpose of meeting the legal requirements
of the Trust Indenture Act or of any jurisdiction in which any part of the Trust
Property may at the time be located, the Holder of the Common Securities and the
Property Trustee shall have power to appoint, and upon the written request of
the Property Trustee, the Sponsor shall for such purpose join with the Property
Trustee in the execution, delivery and performance of all instruments and
agreements necessary or proper to appoint, one or more Persons approved by the
Property Trustee either to act as co-trustee, jointly with the Property Trustee,
of all or any part of such Trust Property, or to act as separate trustee of any
such Trust Property, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or Persons in the capacity
aforesaid, any property, title, right or power deemed necessary or desirable,
subject to the other provisions of this Section 8.09. If the Sponsor does not
join in such appointment within 15 days after the receipt by it of a request so
to do, or in case an Indenture Event of Default has occurred and is continuing,
the Property Trustee alone shall have power to make such appointment. Any
co-trustee or separate trustee appointed pursuant to this Section 8.09 shall
satisfy the requirements of Section 8.07.
Should any written instrument from the Sponsor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged, and delivered
by the Sponsor.
33
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms,
namely:
(i) The Trust Securities shall be executed, authenticated and
delivered and all rights, powers, duties, and obligations hereunder in
respect of the custody of securities, cash and other personal property
held by, or required to be deposited or pledged with, the Trustees
hereunder, shall be exercised, solely by the Trustees.
(ii) The rights, powers, duties, and obligations hereby
conferred or imposed upon the Property Trustee in respect of any
property covered by such appointment shall be conferred or imposed upon
and exercised or performed by the Property Trustee or by the Property
Trustee and such co-trustee or separate trustee jointly, as shall be
provided in the instrument appointing such co-trustee or separate
trustee, except to the extent that under any law of any jurisdiction in
which any particular act is to be performed, the Property Trustee shall
be incompetent or unqualified to perform such act, in which event such
rights, powers, duties, and obligations shall be exercised and
performed by such co-trustee or separate trustee.
(iii) The Property Trustee at any time, by an instrument in
writing executed by it, with the written concurrence of the Sponsor,
may accept the resignation of or remove any co-trustee or separate
trustee appointed under this Section 8.09, and, in case an Indenture
Event of Default has occurred and is continuing, the Property Trustee
shall have power to accept the resignation of, or remove, any such
co-trustee or separate trustee without the concurrence of the Sponsor.
Upon the written request of the Property Trustee, the Sponsor shall
join with the Property Trustee in the execution, delivery, and
performance of all instruments and agreements necessary or proper to
effectuate such resignation or removal. A successor to any co-trustee
or separate trustee so resigned or removed may be appointed in the
manner provided in this Section 8.09.
(iv) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Property
Trustee, or any other such trustee hereunder.
(v) The Trustees shall not be liable by reason of any act of a
co-trustee or separate trustee.
(vi) Any Act of Holders delivered to the Property Trustee
shall be deemed to have been delivered to each such co-trustee and
separate trustee.
Section 8.10 Resignation and Removal; Appointment of Successor
No resignation or removal of any Trustee (the "Relevant Trustee") and
no appointment of a successor Relevant Trustee pursuant to this Article 8 shall
become effective until the acceptance of appointment by the successor Relevant
Trustee in accordance with the applicable requirements of Section 8.11.
If the Relevant Trustee is an Administrative Trustee, such Relevant
Trustee may resign at any time by giving written notice thereof to the other
Trustees and to the Sponsor. If the Relevant Trustee is a Trustee other than an
Administrative Trustee, such Relevant Trustee may resign at any time by giving
written notice thereof to the Securityholders. If the instrument of acceptance
by a successor Relevant Trustee required by Section 8.11 shall not have been
delivered to the Relevant Trustee within 30 days after the giving of such notice
of resignation, the resigning Relevant Trustee may petition any court of
competent jurisdiction for the appointment of a successor Relevant Trustee.
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Unless an Indenture Event of Default shall have occurred and be
continuing, the Relevant Trustee may be removed at any time by Act of the Holder
of the Common Securities. If an Indenture Event of Default shall have occurred
and be continuing, the Relevant Trustee may be removed at such time by Act of
the Securityholders of a majority in Liquidation Amount of the Preferred
Securities Certificates, delivered to the Relevant Trustee (in its individual
capacity and on behalf of the Trust); provided, however, that an Administrative
Trustee may be appointed, removed or replaced only by an Act of the Holders of a
majority in Liquidation Amount of the Common Securities.
If the Relevant Trustee shall resign, be removed or become incapable of
continuing to act as Trustee at a time when no Indenture Event of Default shall
have occurred and be continuing, the Holder of the Common Securities, by Act of
the Holder of the Common Securities delivered to the retiring Relevant Trustee,
shall promptly appoint a successor Relevant Trustee or Trustees, and the
retiring Relevant Trustee shall comply with the applicable requirements of
Section 8.11. If the Relevant Trustee (other than an Administrative Trustee)
shall resign, be removed or become incapable of continuing to act as the
Relevant Trustee at a time when an Indenture Event of Default shall have
occurred and be continuing, the Holders of Preferred Securities, by Act of the
Securityholders of a majority in Liquidation Amount of the Preferred Securities
then outstanding delivered to the retiring Relevant Trustee, shall promptly
appoint a successor Relevant Trustee or Trustees, and the Relevant Trustee shall
comply with the applicable requirements of Section 8.11. If no successor
Relevant Trustee shall have been so appointed in accordance with this Section
8.10 and accepted appointment in the manner required by Section 8.11, any
Securityholder who has been a Securityholder of Trust Securities for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Relevant
Trustee.
The retiring Relevant Trustee shall give notice of each resignation and
each removal of the Relevant Trustee, and each appointment of a successor
Trustee to all Securityholders in the manner provided in Section 10.08 and shall
give notice to the Sponsor. Each notice shall include the name of the successor
Relevant Trustee and the address of its Corporate Trust Office if it is the
Property Trustee.
Notwithstanding the foregoing or any other provision of this Amended
and Restated Declaration of Trust, in the event any Administrative Trustee or a
Delaware Trustee who is a natural person dies or becomes incompetent or
incapacitated or resigns, the vacancy created by such death, incompetence or
incapacity or resignation may be filled by (i) the act of the remaining
Administrative Trustee or (ii) otherwise by the Sponsor (with the successor in
each case being an individual who satisfies the eligibility requirement for
Administrative Trustees set forth in Section 8.07). Additionally,
notwithstanding the foregoing or any other provision of this Amended and
Restated Declaration of Trust, in the event the Sponsor believes that any
Administrative Trustee has become incompetent or incapacitated, the Sponsor, by
notice to the remaining Trustees, may terminate the status of such Person as an
Administrative Trustee (in which case the vacancy so created will be filled in
accordance with the preceding sentence).
Section 8.11 Acceptance of Appointment by Successor
In case of the appointment hereunder of a successor Relevant Trustee,
every such successor Relevant Trustee so appointed shall execute, acknowledge
and deliver to the Trust and to the retiring Relevant Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Relevant Trustee shall become effective and such successor Relevant
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Relevant Trustee; but,
on the request of the Sponsor or the successor Relevant Trustee, such retiring
Relevant Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Relevant Trustee all the rights,
powers and trusts of the retiring Relevant Trustee and shall duly assign,
transfer and deliver to such successor Relevant Trustee all property and money
held by such retiring Relevant Trustee hereunder.
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Upon request of any such successor Relevant Trustee, the Trust shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights, powers and trusts
referred to in the preceding paragraph.
No successor Relevant Trustee shall accept its appointment unless at
the time of such acceptance such successor Relevant Trustee shall be qualified
and eligible under this Article 8.
Section 8.12 Merger, Conversion, Consolidation or Succession to
Business
Any Person into which the Property Trustee, Delaware Trustee or any
Administrative Trustee which is not a natural person may be merged or converted
or with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Relevant Trustee shall be a party, or
any Person succeeding to all or substantially all the corporate trust business
of such Relevant Trustee, shall be the successor of such Relevant Trustee
hereunder, provided such Person shall be otherwise qualified and eligible under
this Article 8, without the execution or filing of any paper or any further act
on the part of any of the parties hereto.
Section 8.13 Preferential Collection of Claims Against Sponsor or
Trust
If and when the Property Trustee shall be or become a creditor of the
Sponsor or the Trust (or any other obligor upon the Debentures or the Trust
Securities), the Property Trustee shall be subject to the provisions of the
Trust Indenture Act regarding the collection of claims against the Sponsor or
Trust (or any such other obligor). For purposes of Section 311(b)(4) and (6) of
the Trust Indenture Act:
(a) "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand; and
(b) "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Sponsor or the Trust (or any such obligor) for the
purpose of financing the purchase, processing, manufacturing, shipment,
storage or sale of goods, wares or merchandise and which is secured by
documents evidencing title to, possession of, or a lien upon, the
goods, wares or merchandise or the receivables or proceeds arising from
the sale of the goods, wares or merchandise previously constituting the
security, provided the security is received by the Property Trustee
simultaneously with the creation of the creditor relationship with the
Sponsor or the Trust (or any such obligor) arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation.
Section 8.14 Reports by Property Trustee.
(a) Within 60 days after May 15 of each year commencing with
May 15, 2004, if required by Section 313(a) of the Trust Indenture Act,
the Property Trustee shall transmit a brief report dated as of such May
15 with respect to any of the events specified in such Section 313(a)
that may have occurred since the later of the date of this Amended and
Restated Declaration of Trust or the preceding May 15.
(b) The Property Trustee shall transmit to Securityholders the
reports required by Section 313(b) of the Trust Indenture Act at the
times specified therein.
(c) Reports pursuant to this Section 8.14 shall be transmitted
in the manner and to the Persons required by Sections 313(c) and (d) of
the Trust Indenture Act.
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Section 8.15 Reports to the Property Trustee
The Sponsor and the Administrative Trustees on behalf of the Trust
shall provide to the Property Trustee such documents, reports and information as
required by Section 314 of the Trust Indenture Act (if any) and, within 120 days
after the end of each fiscal year of the Sponsor, the compliance certificate
required by Section 314(a)(4) of the Trust Indenture Act in the form and in the
manner required by Section 314 of the Trust Indenture Act.
Section 8.16 Evidence of Compliance with Conditions Precedent
Each of the Sponsor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Amended and Restated
Declaration of Trust that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given pursuant to Section 314(c)(1) of the Trust Indenture Act shall comply with
Section 314(e) of the Trust Indenture Act.
Section 8.17 Number of Trustees.
(a) The number of Trustees shall initially be five, provided
that the Sponsor by written instrument may increase or decrease the
number of Administrative Trustees.
(b) If a Trustee ceases to hold office for any reason and the
number of Administrative Trustees is not reduced pursuant to Section
8.17(a), or if the number of Trustees is increased pursuant to Section
8.17(a), a vacancy shall occur. The vacancy shall be filled with a
Trustee appointed in accordance with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not
operate to annul, dissolve or terminate the Trust. Whenever a vacancy
in the number of Administrative Trustees shall occur, until such
vacancy is filled by the appointment of an Administrative Trustee in
accordance with Section 8.10, the Administrative Trustees in office,
regardless of their number (and notwithstanding any other provision of
this Amended and Restated Declaration of Trust), shall have all powers
granted to the Administrative Trustees and shall discharge the duties
imposed upon the Administrative Trustees by this Amended and Restated
Declaration of Trust.
Section 8.18 Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural person
over the age of 21 his or her power for the purpose of executing any
documents contemplated in Section 2.07(A), including any registration
statement or amendment thereto filed with the Commission, or making any
other governmental filing; and
(b) The Administrative Trustees shall have power to delegate
from time to time to such of their number the doing of such things and
the execution of such instruments either in the name of the Trust or
the names of the Administrative Trustees or otherwise as the
Administrative Trustees may deem expedient, to the extent such
delegation is not prohibited by applicable law or contrary to the
provisions of the Trust, as set forth herein.
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Section 8.19 Enforcement of Rights of Property Trustee by
Securityholders
If (i) the Trust fails to pay Distributions in full on the Preferred
Securities for more than ten consecutive semiannual distribution periods, or
(ii) an Event of Default occurs and is continuing, then the Holders of Preferred
Securities will rely on the enforcement by the Property Trustee of its rights
against the Sponsor as the holder of the Debentures. In addition, the Holders of
a majority in aggregate Liquidation Amount of the Preferred Securities will have
the right to direct the time, method, and place of conducting any proceeding for
any remedy available to the Property Trustee or to direct the exercise of any
trust or power conferred upon the Property Trustee under this Amended and
Restated Declaration of Trust, including the right to direct the Property
Trustee to exercise the remedies available to it as a holder of the Debentures,
provided that such direction shall not be in conflict with any rule of law or
with this Amended and Restated Declaration of Trust, and could not involve the
Property Trustee in personal liability in circumstances where reasonable
indemnity would not be adequate. If the Property Trustee fails to enforce its
rights under the Debentures, a Holder of Preferred Securities may, to the
fullest extent permitted by applicable law, institute a legal proceeding against
the Sponsor to enforce such Holder's rights under this Amended and Restated
Declaration of Trust without first instituting any legal proceeding against the
Property Trustee or any other Person, including the Trust; it being understood
and intended that no one or more of such Holders shall have any right in any
manner whatsoever by virtue of, or by availing of, any provision of this Amended
and Restated Declaration of Trust to affect, disturb or prejudice the rights of
any other of such Holders or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Amended and Restated Declaration of Trust, except in the manner herein provided
and for the equal and ratable benefit of all such Holders. Notwithstanding the
foregoing, to the fullest extent permitted by applicable law, a Holder of
Preferred Securities may institute a legal proceeding directly against the
Sponsor without first instituting a legal proceeding against or requesting or
directing that action be taken by the Property Trustee or any other Person, for
enforcement of payment to such Holder of principal of or interest on the
Debentures having a principal amount equal to the aggregate stated Liquidation
Amount of the Preferred Securities of such Holder on or after the due dates
therefor specified or provided for in the Debentures. The Sponsor shall be
subrogated to all rights of the Holders of Preferred Securities in respect of
any amounts paid to such Holders by the Sponsor pursuant to this Section 8.19.
Article 9
Termination and Liquidation
Section 9.01 Termination Upon Expiration Date
The Trust shall automatically dissolve on June 15, 2034 (the
"Expiration Date") or earlier pursuant to Section 9.02.
Section 9.02 Early Termination
Upon the first to occur of any of the following events (such first
occurrence, an "Early Termination Event"), the Trust shall be dissolved in
accordance with the terms hereof:
(i) the occurrence of a Bankruptcy Event in respect of the
Sponsor, dissolution or liquidation of the Sponsor, or the dissolution
of the Trust pursuant to judicial decree;
(ii) the delivery of written direction to the Property Trustee
by the Sponsor at any time (which direction is optional and wholly
within the discretion of the Sponsor) to dissolve the Trust and
distribute the Debentures to Securityholders as provided in Section
9.04; and
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(iii) the payment at maturity or redemption of all of the
Debentures, and the consequent payment of the Preferred Securities.
Section 9.03 Termination
The respective obligations and responsibilities of the Trust and the
Trustees created hereby shall terminate upon the latest to occur of the
following: (a) the distribution of the Debentures by the Property Trustee to
Securityholders upon the liquidation of the Trust pursuant to Section 9.04, or,
upon the redemption of all of the Trust Securities pursuant to Section 4.02, the
distribution of all amounts or instruments required to be distributed hereunder
upon the final payment of the Trust Securities; (b) the payment of any expenses
owed by the Trust; (c) the discharge of all administrative duties of the
Administrative Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders; and (d) the filing
of a certificate of cancellation pursuant to the Delaware Statutory Trust Act.
Section 9.04 Liquidation.
(a) If any Early Termination Event specified in clause (ii) of
Section 9.02 occurs, the Trust shall be liquidated and the Property
Trustee shall distribute the Debentures to the Securityholders as
provided in this Section 9.04.
(b) In connection with a distribution of the Debentures, each
Holder of Trust Securities shall be entitled to receive, after the
satisfaction (whether by payment or reasonable provision for payment)
of liabilities to creditors of the Trust (as evidenced by a certificate
of the Administrative Trustees), a Like Amount of Debentures. Notice of
liquidation shall be given by the Trustees by first-class mail, postage
prepaid, mailed not later than 30 nor more than 60 days prior to the
Liquidation Date to each Holder of Trust Securities at such Holder's
address appearing in the Securities Register. All notices of
liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Debentures; and
(iii) provide such information with respect to the mechanics
by which Holders may exchange Trust Securities Certificates for
Debentures as the Administrative Trustees or the Property Trustee shall
deem appropriate.
(c) In order to effect the winding up of the Trust and
distribution of the Debentures to Securityholders, the Property Trustee
shall establish a record date for such distribution (which shall be not
more than 45 days prior to the Liquidation Date) and, either itself
acting as exchange agent or through the appointment of a separate
exchange agent, shall establish such procedures as it shall deem
appropriate to effect the distribution of Debentures in exchange for
the Outstanding Trust Securities Certificates.
(d) After the Liquidation Date, (i) the Trust Securities will
no longer be deemed to be Outstanding, (ii) certificates representing a
Like Amount of Debentures will be issued to Holders of Trust Securities
Certificates, upon surrender of such certificates to the Administrative
Trustees or their agent for exchange, (iii) any Trust Securities
Certificates not so surrendered for exchange will be deemed to
represent a Like Amount of Debentures, accruing interest at the rate
provided for in
39
the Debentures from the last Distribution Date on which a Distribution
was made on such Trust Certificates until such certificates are so
surrendered (and until such certificates are so surrendered, no
payments of interest or principal will be made to Holders of Trust
Securities Certificates with respect to such Debentures) and (iv) all
rights of Securityholders holding Trust Securities will cease, except
the right of such Securityholders to receive Debentures upon surrender
of Trust Securities Certificates.
(e) The Sponsor will use its commercially reasonable best
efforts to have the Debentures that are distributed in exchange for the
Preferred Securities listed on such securities exchange as the
Preferred Securities are then listed. The Sponsor may elect to have the
Debentures issued in book-entry form to the Clearing Agency or its
nominee.
Section 9.05 Bankruptcy
If an Early Termination Event specified in clause (i) of Section 9.02
has occurred, the Trust shall be liquidated. The Property Trustee shall
distribute the Debentures to the Securityholders as provided in Section 9.04,
unless such distribution is determined by the Administrative Trustees not to be
practical, in which event the Holders will be entitled to receive out of the
assets of the Trust available for distribution to Securityholders, after
satisfaction of liabilities to creditors, an amount equal to the Liquidation
Amount per Trust Security plus accrued and unpaid Distributions thereon to the
date of payment (such amount being the "Liquidation Distribution"). If such
Liquidation Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then, subject to the next succeeding sentence, the amounts payable
by the Trust on the Trust Securities shall be paid on a pro rata basis (based
upon Liquidation Amounts). The Holder of the Common Securities will be entitled
to receive Liquidation Distributions upon any such winding-up pro rata
(determined as aforesaid) with Holders of Preferred Securities, except that, if
an Indenture Event of Default has occurred and is continuing, the Preferred
Securities shall have a priority over the Common Securities.
Article 10
Miscellaneous Provisions
Section 10.01 Expense Agreement
The Sponsor shall, contemporaneously with the execution and delivery of
this Amended and Restated Declaration of Trust, execute and deliver the Expense
Agreement.
Section 10.02 Limitation of Rights of Securityholders
The death or incapacity of any Person having an interest, beneficial or
otherwise, in a Trust Security shall not operate to terminate this Amended and
Restated Declaration of Trust, nor dissolve, terminate or annul the Trust, nor
entitle the legal representatives or heirs of such Person or any Securityholder
for such Person, to claim an accounting, take any action or bring any proceeding
in and for a partition or winding up of the arrangements contemplated hereby,
nor otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them.
Section 10.03 Amendment.
(a) This Amended and Restated Declaration of Trust may be
amended from time to time by the Administrative Trustees and the
Sponsor, without the consent of any Securityholders, (i) to cure any
ambiguity, correct or supplement any provision herein which may be
inconsistent with any other provision herein, or to make any other
provisions with respect to matters or questions
40
arising under this Amended and Restated Declaration of Trust, which
shall not be inconsistent with the other provisions of this Amended
and Restated Declaration of Trust, provided, however, that any such
amendment shall not adversely affect in any material respect the
interests of any Securityholder or the rights, duties, immunities or
liabilities of the other Trustees, or (ii) to modify, eliminate or add
to any provisions of this Amended and Restated Declaration of Trust to
such extent as shall be necessary to ensure that the Trust will not be
classified as other than a grantor trust for United States federal
income tax purposes at any time that any Trust Securities are
outstanding. Any amendments of this Amended and Restated Declaration
of Trust pursuant to this Section 10.03(a) shall become effective when
notice thereof is given to the Securityholders. Except as provided in
Section 10.03(c), any provision in this Amended and Restated
Declaration of Trust may be amended by the Trust or the Trustees with
(i) the consent of Trust Securityholders representing not less than
66-2/3% (based upon Liquidation Amounts) of the Outstanding Trust
Securities (such consent being obtained in accordance with Section
6.03 or 6.06) and (ii) receipt by the Trustees of an Opinion of
Counsel to the effect that such amendment or the exercise of any power
granted to the Trustees in accordance with such amendment will not
affect the Trust's status as a grantor trust for United States federal
income tax purposes or the Trust's exemption from status of an
"investment company" under the Investment Company Act of 1940, as
amended.
(b) In addition to and notwithstanding any other provision in
this Amended and Restated Declaration of Trust, without the consent of
each affected Securityholder, this Amended and Restated Declaration of
Trust may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the
amount of any Distribution required to be made in respect of the Trust
Securities as of a specified date, (ii) restrict the right of a
Securityholder to institute suit for the enforcement of any such
payment on or after such date, or (iii) change the consent required
pursuant to this Section 10.03.
(c) Notwithstanding any other provisions of this Amended and
Restated Declaration of Trust, the Trustees shall not enter into or
consent to any amendment to this Amended and Restated Declaration of
Trust which would cause the Trust (i) to fail or cease to qualify for
exemption from status of an "investment company" under the Investment
Company Act of 1940, as amended or (ii) not to be characterized for
United States federal income tax purposes as a grantor trust and each
Securityholder not to be treated as owning an undivided beneficial
ownership interest in the Debentures.
(d) Without the consent of the Sponsor, this Amended and
Restated Declaration of Trust may not be amended in a manner which
imposes any additional obligation on the Sponsor. In executing any
amendment permitted by this Amended and Restated Declaration of Trust,
the Trustees shall be entitled to receive, and (subject to Section
8.03) shall be fully protected in relying upon an Opinion of Counsel
and an Officer's Certificate stating that the execution of such
amendment is authorized or permitted by this Amended and Restated
Declaration of Trust. Any Trustee may, but shall not be obligated to,
enter into any such amendment which affects such Trustee's own rights,
duties, immunities or liabilities under this Amended and Restated
Declaration of Trust or otherwise.
(e) In the event that any amendment to this Amended and
Restated Declaration of Trust is made, the Administrative Trustees
shall promptly provide to the Sponsor a copy of such amendment.
41
Section 10.04 Separability
In case any provision in this Amended and Restated Declaration of Trust
or in the Trust Securities Certificates shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 10.05 Governing Law
THIS AMENDED AND RESTATED DECLARATION OF TRUST AND THE RIGHTS AND
OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH
RESPECT TO THIS AMENDED AND RESTATED DECLARATION OF TRUST AND THE TRUST
SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL
LAWS OF THE STATE OF DELAWARE.
Section 10.06 Successors
This Amended and Restated Declaration of Trust shall be binding upon
and shall inure to the benefit of any successor to the Trust, the Trustees and
the Sponsor, including any successor by operation of law.
Section 10.07 Headings
The Article and Section headings are for convenience only and shall not
affect the construction of this Amended and Restated Declaration of Trust.
Section 10.08 Notice and Demand
Any notice, demand or other communication which by any provision of
this Amended and Restated Declaration of Trust is required or permitted to be
given or served to or upon any Securityholder or the Sponsor may be given or
served in writing by deposit thereof, first-class postage prepaid, in the United
States mail, hand delivery or facsimile transmission, in each case, addressed,
(i) in the case of a Preferred Securityholder, to such Preferred Securityholder
as such Securityholder's name and address appear on the Securities Register and
(ii) in the case of the Common Securityholder or the Sponsor, to PECO Energy
Company, 2301 Market Street, Philadelphia, PA 19101, Attention: Treasurer,
Facsimile No. (215) 841-4474. Such notice, demand or other communication to or
upon a Securityholder shall be deemed to have been sufficiently given or made,
for all purposes, upon hand delivery, mailing or transmission.
Any notice, demand or other communication which by any provision of
this Amended and Restated Declaration of Trust is required or permitted to be
given or served to or upon the Trust or the Trustees shall be given in writing
addressed (until another address is published by the Trust) as follows: (i) with
respect to the Property Trustee and the Delaware Trustee, Wachovia Trust
Company, National Association, Wachovia Trust Company, National Association, One
Rodney Square, 920 King Street, Suite 102, Wilmington, DE 19801, Attention:
Corporate Trust Administration/Delaware, Facsimile No: (302) 888-7544; and (ii)
with respect to the Administrative Trustees, to them at the address above for
notices to the Sponsor, marked Attention: Administrative Trustees of PECO Energy
Capital Trust IV, c/o Secretary. Such notice, demand or other communication to
or upon the Trust or the Trustees shall be deemed to have been sufficiently
given or made only upon actual receipt of the writing by the applicable Trustee.
Section 10.09 Agreement Not to Petition
Each of the Trustees and the Sponsor agrees for the benefit of the
Securityholders that, until at least one year and one day after the Trust has
been terminated in accordance with Article 9, it shall not file, or
42
join in the filing of, a petition against the Trust under any bankruptcy,
reorganization, arrangement, insolvency, liquidation or other similar law
(including, without limitation, the United States Bankruptcy Code)
(collectively, "Bankruptcy Laws") or otherwise join in the commencement of any
proceeding against the Trust under any Bankruptcy Law. In the event the Sponsor
takes action in violation of this Section 10.09, the Property Trustee agrees,
for the benefit of Securityholders, that it shall file an answer with the
bankruptcy court or otherwise properly contest the filing of such petition by
the Sponsor against the Trust or the commencement of such action and raise the
defense that the Sponsor has agreed in writing not to take such action and
should be stopped and precluded therefrom and such other defenses, if any, as
counsel for the Trustees or the Trust may assert. The provisions of this Section
10.09 shall survive the termination of this Amended and Restated Declaration of
Trust.
Section 10.10 Conflict with Trust Indenture Act.
(a) This Amended and Restated Declaration of Trust is subject
to the provisions of the Trust Indenture Act that are required to be
part of this Amended and Restated Declaration of Trust and shall, to
the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts
with another provision hereof which is required to be included in this
Amended and Restated Declaration of Trust by any of the provisions of
the Trust Indenture Act, such required provision shall control.
(d) The application of the Trust Indenture Act to this Amended
and Restated Declaration of Trust shall not affect the nature of the
Trust Securities as equity securities representing undivided beneficial
interests in the assets of the Trust.
Section 10.11 Counterparts
This Amended and Restated Declaration of Trust may contain more than
one counterpart of the signature page and this Amended and Restated Declaration
of Trust may be executed by the affixing of the signature of each of the
Trustees to one of such counterpart signature pages. All of such counterpart
signature pages shall be read as though one, and they shall have the same force
and effect as though all of the signers had signed a single signature page.
Section 10.12 No Preemptive Rights
Holders of Trust Securities shall have no preemptive or similar rights
to subscribe for any additional securities of the Trust.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN
BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS AMENDED AND RESTATED
DECLARATION OF TRUST AND AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER
TERMS OF THE GUARANTEE AND THE SUBORDINATED INDENTURE AND THE AGREEMENT OF THE
TRUST, SUCH SECURITYHOLDER AND SUCH OTHERS THAT THOSE TERMS AND PROVISIONS SHALL
BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER
AND SUCH OTHERS.
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IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Declaration of Trust or have caused this Amended and Restated
Declaration of Trust to be executed on their behalf, all as of the day and year
first above written.
PECO ENERGY COMPANY,
as Sponsor
By: /s/ J. Barry Mitchell
--------------------------------------------
Name: J. Barry Mitchell
Title: Vice President and Treasurer
WACHOVIA TRUST COMPANY, NATIONAL
ASSOCIATION,
as Property Trustee and Delaware Trustee
By: /s/ Rita Marie Ritrovato
--------------------------------------------
Name: Rita M. Ritrovato
Title: Trust Officer
/s/ J. Barry Mitchell
--------------------------------------------
J. Barry Mitchell, as Administrative Trustee
/s/ George R. Shicora
--------------------------------------------
George R. Shicora, as Administrative Trustee
/s/ Charles Walls
--------------------------------------------
Charles S. Walls, as Administrative Trustee
44
EXHIBIT A
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS PROVIDED
IN THE AMENDED AND RESTATED DECLARATION OF TRUST REFERRED TO HEREIN
Certificate Number Number of Common Securities
C-1 3,093
Certificate Evidencing Common Securities
of
PECO Energy Capital Trust IV
5.75% Common Securities
(Liquidation amount $1,000 per Common Security)
PECO Energy Capital Trust IV, a statutory trust created under
the laws of the State of Delaware (the "Trust"), hereby certifies that PECO
Energy Company, a Pennsylvania corporation (the "Holder"), is the registered
owner of Three Thousand Ninety Three (3,093) common securities of the Trust
representing undivided beneficial interests in the assets of the Trust and
designated the 5.75% Common Securities (liquidation amount $1,000 per Common
Security) (the "Common Securities"). In accordance with Section 5.10 of the
Amended and Restated Declaration of Trust (as defined below), the Common
Securities are not transferable, except by operation of law, and any, to the
fullest extent permitted by law, attempted transfer hereof shall be void. The
designation, rights, privileges, restrictions, preferences and other terms and
provisions of the Common Securities are set forth in, and this certificate and
the Common Securities represented hereby are issued and shall in all respects be
subject to the terms and provisions of, the Amended and Restated Declaration of
Trust of the Trust dated as of June 24, 2003, as the same may be amended from
time to time (the "Amended and Restated Declaration of Trust"), including the
designation of the terms of the Common Securities as set forth therein.
Capitalized terms used herein but not defined shall have the meaning given to
them in the Amended and Restated Declaration of Trust. The Trust will furnish a
copy of the Amended and Restated Declaration of Trust and the Subordinated
Indenture to the Holder without charge upon written request to the Trust at its
principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Amended and Restated Declaration of Trust and is entitled to the benefits
thereunder.
By acceptance, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Common
Securities as evidence of indirect beneficial ownership in the Debentures.
A-1
IN WITNESS WHEREOF, the Trust has executed this certificate
this 24th day of June, 2003.
PECO Energy Capital Trust IV
By: _____________________________________
J. Barry Mitchell, as Administrative Trustee
CERTIFICATE OF AUTHENTICATION
This is one of the Common Securities referred to in the
within-mentioned Amended and Restated Declaration of Trust.
Dated: June 24, 2003 WACHOVIA TRUST COMPANY, NATIONAL
ASSOCIATION,
Not in its individual capacity but solely
as Property Trustee
By: ____________________________
Authorized Signatory
A-2
[FORM OF REVERSE OF SECURITY]
Each Common Security will be entitled to receive cumulative
Distributions at a rate of 5.75% per annum applied to the stated liquidation
amount of $1,000 per Common Security, such rate being the rate of interest
payable on the Debentures to be held by the Property Trustee. Distributions in
arrears for more than one semiannual period will bear interest thereon
compounded semiannually at a rate of 5.75% per annum (to the extent permitted by
applicable law). Distributions shall be made and shall be deemed payable on each
Distribution Date only to the extent that the Trust has legally and immediately
available funds in the Payment Account for the payment of such Distributions.
The amount of Distributions payable for any full semiannual period will be
computed on the basis of a 360-day year of twelve 30-day months, and for any
period shorter than a full month for which Distributions are computed,
Distributions will be computed on the basis of the actual number of days elapsed
in such month.
Distributions on the Common Securities will be cumulative,
will accrue from the Issue Date and, except in the event that the Sponsor
exercises its right to extend the interest payment period for the Debentures
pursuant to the Subordinated Indenture, will be payable semiannually in arrears
on June 15 and December 15 of each year, commencing on December 15, 2003.
Distributions, including Additional Amounts (as defined below), if any, on the
Common Securities on each Distribution Date will be payable to the Holders
thereof as they appear on the Securities Register for the Trust Securities on
the relevant record dates. The relevant record dates for the Common Securities
shall be the same record date as for the Preferred Securities, which shall be
one Business Day prior to the relevant payment dates which payment dates
correspond to the interest payment dates on the Debentures. If the interest
payment period for the Debentures is extended by the Sponsor pursuant to the
Subordinated Indenture (an "Extension Period"), no interest will be due and
payable on the Debentures. Before the termination of any such Extension Period,
the Sponsor may further defer payments of interest on the Debentures by further
extending such Extension Period, provided, that such Extension Period, together
with all such further extensions of such Extension Period, may not exceed ten
consecutive semiannual periods or extend beyond the maturity date of the
Debentures. As a consequence of an Extension Period, Distributions will also be
deferred, provided that semiannual Distributions will continue to accrue with
interest thereon (to the extent permitted by applicable law) at a rate of 5.75%
per annum, compounded semiannually ("Additional Amounts") during any such
Extension Period. The payment of such deferred interest, together with
Additional Amounts, will be distributed to the Holders of the Trust Securities
as received at the end of any Extension Period; provided, however, that the
Trust may distribute such amounts earlier if the Sponsor prepays interest
accrued on the Debentures prior to the end of any Extension Period as permitted
by the Subordinated Indenture.
If on any Distribution Date or Redemption Date an Indenture
Event of Default shall have occurred and be continuing, no payment of any
Distribution (including Additional Amounts, if applicable) on, or the applicable
Redemption Price of, any Common Security, and no other payment on account of the
redemption, liquidation or other acquisition of Common Securities, shall be made
unless payment in full in cash of all accumulated and unpaid Distributions
(including Additional Amounts, if applicable) on all Outstanding Preferred
Securities for all distribution periods terminating on or prior thereto, or in
the case of payment of the applicable Redemption Price the full amount of such
Redemption Price on all Outstanding Preferred Securities, shall have been made
or provided for, and all funds immediately available to the Property Trustee
shall first be applied to the payment in full in cash of all Distributions
(including Additional Amounts, if applicable) on, or the applicable Redemption
Price of, Preferred Securities then due and payable.
Subject to certain conditions set forth in the Amended and
Restated Declaration of Trust and the Subordinated Indenture, the Property
Trustee may, at the direction of the Sponsor, at any time dissolve the Trust and
cause, after the satisfaction of liabilities to creditors of the Trust, the
Debentures to be
A-3
distributed to the holders of the Trust Securities in liquidation of the Trust
or, simultaneously with any redemption of the Debentures, cause a Like Amount of
the Trust Securities to be redeemed by the Trust.
The Common Securities shall be redeemable as provided in the
Amended and Restated Declaration of Trust.
A-4
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common Security
to:
__________________________________________________________________________
__________________________________________________________________________
(Insert assignee's social security or tax identification number)
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
__________________________________________________________________________
__________________________________________________________________________
agent to transfer this Common Securities Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date: ______________________
Signature: __________________
(Sign exactly as your name appears on the other side of this Common Security
Certificate)
A-5
EXHIBIT B
AGREEMENT AS TO EXPENSES AND LIABILITIES
THIS AGREEMENT AS TO EXPENSES AND LIABILITIES (this
"Agreement") is made as of June 24, 2003, between PECO Energy Company, a
Pennsylvania corporation (the "Company"), and PECO Energy Capital Trust IV, a
Delaware statutory trust (the "Trust").
WHEREAS, the Trust intends to issue its Common Securities (the
"Common Securities") to and receive Debentures from the Company, and to issue
and sell to the public its 5.75% Preferred Securities (the "Preferred
Securities") with such powers, preferences and special rights and restrictions
as are set forth in the Amended and Restated Declaration of Trust of the Trust
dated as of June 24, 2003, as the same may be amended from time to time (the
"Amended and Restated Declaration of Trust"); and
WHEREAS, the Company is the guarantor of the Preferred
Securities.
NOW, THEREFORE, in consideration of the purchase by each
holder of the Preferred Securities, which purchase the Company hereby agrees
shall benefit the Company and which purchase the Company acknowledges will be
made in reliance upon the execution and delivery of this Agreement, the Company
and the Trust hereby agree as follows:
ARTICLE I
Section 1.01. Guarantee by the Company. Subject to the terms
and conditions hereof, the Company hereby irrevocably and unconditionally
guarantees to each person or entity to whom the Trust is now or hereafter
becomes indebted or liable (the "Beneficiaries") the full payment, when and as
due, of any and all Obligations (as hereinafter defined) to such Beneficiaries.
As used herein, "Obligations" means any indebtedness, expenses or liabilities of
the Trust, other than obligations of the Trust to pay to holders of any
Preferred Securities or other similar interests in the Trust the amounts due
such holders pursuant to the terms of the Preferred Securities or such other
similar interests, as the case may be. This Agreement is intended to be for the
benefit of, and to be enforceable by, all such Beneficiaries, whether or not
such Beneficiaries have received notice hereof.
Section 1.02. Term of Agreement. This Agreement shall
terminate and be of no further force and effect upon the date on which there are
no Beneficiaries remaining; provided, however, that this Agreement shall
continue to be effective or shall be reinstated, as the case may be, if at any
time any holder of Preferred Securities or any Beneficiary must restore payment
of any sums paid under the Preferred Securities, under any Obligation, under the
Preferred Securities Guarantee Agreement dated the date hereof between the
Company and Wachovia Trust Company, National Association, as guarantee trustee,
or under this Agreement for any reason whatsoever. This Agreement is continuing,
irrevocable, unconditional and absolute.
Section 1.03. Waiver of Notice. The Company hereby waives
notice of acceptance of this Agreement and of any Obligation to which it applies
or may apply, and the Company hereby waives presentment, demand for payment,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
Section 1.04. No Impairment. The obligations, covenants,
agreements and duties of the Company under this Agreement shall in no way be
affected or impaired by reason of the happening from time to time of any of the
following:
B-1
(a) the extension of time for the payment by the
Trust of all or any portion of the Obligations or for the performance
of any other obligation under, arising out of, or in connection with,
the Obligations;
(b) any failure, omission, delay or lack of diligence
on the part of the Beneficiaries to enforce, assert or exercise any
right, privilege, power or remedy conferred on the Beneficiaries with
respect to the Obligations or any action on the part of the Trust
granting indulgence or extension of any kind; or
(c) the voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of debt of, or other similar
proceedings affecting, the Trust or any of the assets of the Trust.
There shall be no obligation of the Beneficiaries to give
notice to, or obtain the consent of, the Company with respect to the happening
of any of the foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce this
Agreement directly against the Company and the Company waives any right or
remedy to require that any action be brought against the Trust or any other
person or entity before proceeding against the Company.
ARTICLE II
Section 2.01. Binding Effect. All guarantees and agreements
contained in this Agreement shall bind the successors, assigns, receivers,
trustees and representatives of the Company and shall inure to the benefit of
the Beneficiaries.
Section 2.02. Amendment. So long as there remains any
Beneficiary or any Preferred Securities of any series are outstanding, this
Agreement shall not be modified or amended in any manner adverse to such
Beneficiary or to the holders of the Preferred Securities.
Section 2.03. Notices. Any notice, request or other
communication required or permitted to be given hereunder shall be given in
writing by delivering the same against receipt therefor by facsimile
transmission (confirmed by mail), telex or by registered or certified mail,
addressed as follows (and if so given, shall be deemed given when mailed or upon
receipt of an answer-back, if sent by telex):
If to the Company:
PECO Energy Company
2301 Market Street
Philadelphia, PA 19101
Attention: Treasurer
If to the Trust:
PECO Energy Capital Trust IV
c/o PECO Energy Company
2301 Market Street
Philadelphia, PA 19101
Attention: Treasurer
B-2
Section 2.04. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF
PENNSYLVANIA.
THIS AGREEMENT is executed as of the date and year first above
written.
PECO ENERGY COMPANY
By: ________________________________
Name:
Title:
PECO Energy Capital Trust IV
By: ____________________________________
J. Barry Mitchell, as Administrative Trustee
B-3
EXHIBIT C
This Preferred Security is a Book-Entry Preferred Securities
Certificate within the meaning of the Amended and Restated Declaration of Trust
hereinafter referred to and is registered in the name of The Depository Trust
Company (the "Depository") or a nominee of the Depository. This Preferred
Security is exchangeable for Preferred Securities registered in the name of a
person other than the Depository or its nominee only in the limited
circumstances described in the Amended and Restated Declaration of Trust and no
transfer of this Preferred Security (other than a transfer of this Preferred
Security as a whole by the Depository to a nominee of the Depository or by a
nominee of the Depository to the Depository or another nominee of the
Depository) may be registered except in limited circumstances.
Unless this Preferred Security is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to the Trust or its agent for registration of transfer, exchange or
payment, and any Preferred Security issued is registered in the name of Cede &
Co. or in such other name as is requested by an authorized representative of The
Depository Trust Company and any payment hereon is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE IS WRONGFUL since
the registered owner hereof, Cede & Co., has an interest herein.
Certificate Number Number of Preferred Securities
P-1 100,000
CUSIP NO. 69335G AA 3
Certificate Evidencing Preferred Securities
of
PECO Energy Capital Trust IV
5.75% Trust Preferred Securities
(Liquidation amount $1,000 per Preferred Security)
PECO Energy Capital Trust IV, a statutory trust created under
the laws of the State of Delaware (the "Trust"), hereby certifies that Cede &
Co. (the "Holder") is the registered owner of One Hundred Thousand (100,000)
preferred securities of the Trust representing undivided beneficial interests in
the assets of the Trust and designated the PECO Energy Capital Trust IV 5.75%
Trust Preferred Securities (liquidation amount $1,000 per Preferred Security)
(the "Preferred Securities"). The Preferred Securities are transferable on the
books and records of the Trust, in person or by a duly authorized attorney, upon
surrender of this certificate duly endorsed and in proper form for transfer as
provided in Section 5.04 of the Amended and Restated Declaration of Trust (as
defined below). The designation, rights, privileges, restrictions, preferences
and other terms and provisions of the Preferred Securities are set forth in, and
this certificate and the Preferred Securities represented hereby are issued and
shall in all respects be subject to the terms and provisions of, the Amended and
Restated Declaration of Trust of the Trust, dated as of June 24, 2003, as the
same may be amended from time to time (the "Amended and Restated Declaration of
Trust"), including the designation of the terms of Preferred Securities as set
forth therein. Capitalized terms used herein but not defined shall have the
meaning given them in the Amended and Restated Declaration of Trust. The holder
of this certificate is entitled to the benefits of the Guarantee to the extent
provided therein. The Trust will furnish a copy of the Amended and Restated
Declaration of Trust, the Guarantee and the Subordinated Indenture to the holder
of this certificate without charge upon written request to the Trust at its
principal place of business.
C-1
Upon receipt of this certificate, the holder of this
certificate is bound by the Amended and Restated Declaration of Trust and is
entitled to the benefits thereunder.
By acceptance, the holder of this certificate agrees to treat,
for United States federal income tax purposes, the Debentures as indebtedness
and the Preferred Securities as evidence of indirect beneficial ownership in the
Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate
this 24th day of June, 2003.
PECO Energy Capital Trust IV
By: ____________________________________
J. Barry Mitchell, as Administrative Trustee
C-2
CERTIFICATE OF AUTHENTICATION
This is one of the Preferred Securities referred to in the
within-mentioned Amended and Restated Declaration of Trust.
Dated: June 24, 2003 WACHOVIA TRUST COMPANY, NATIONAL
ASSOCIATION,
Not in its individual capacity but solely
as Property Trustee
By: ___________________________
Name:
Title:
C-3
[FORM OF REVERSE OF SECURITY]
Each Preferred Security will be entitled to receive cumulative
Distributions at a rate of 5.75% per annum applied to the stated liquidation
amount of $1,000 per Preferred Security, such rate being the rate of interest
payable on the Debentures to be held by the Property Trustee. Distributions in
arrears for more than one semiannual period will bear interest thereon
compounded semiannually at a rate of 5.75% per annum (to the extent permitted by
applicable law). Distributions shall be made and shall be deemed payable on each
Distribution Date only to the extent that the Trust has legally and immediately
available funds in the Payment Account for the payment of such Distributions.
The amount of Distributions payable for any full semiannual period will be
computed on the basis of a 360-day year of twelve 30-day months, and for any
period shorter than a full month for which Distributions are computed,
Distributions will be computed on the basis of the actual number of days elapsed
in such month.
Distributions on the Preferred Securities will be cumulative,
will accrue from the Issue Date and, except in the event that the Sponsor
exercises its right to extend the interest payment period for the Debentures
pursuant to the Subordinated Indenture, will be payable semiannually in arrears
on June 15 and December 15 of each year, commencing on December 15, 2003.
Distributions, including Additional Amounts (as defined below), if any, on the
Preferred Securities on each Distribution Date will be payable to the Holders
thereof as they appear on the Securities Register for the Trust Securities on
the relevant record dates, which shall be one Business Day prior to the relevant
payment dates which payment dates correspond to the interest payment dates on
the Debentures. If the interest payment period for the Debentures is extended by
the Sponsor pursuant to the Subordinated Indenture (an "Extension Period"), no
interest will be due and payable on the Debentures. Before the termination of
any such Extension Period, the Sponsor may further defer payments of interest on
the Debentures by further extending such Extension Period, provided, that such
Extension Period, together with all such further extensions of such Extension
Period, may not exceed ten consecutive semiannual periods or extend beyond the
maturity date of the Debentures. As a consequence of an Extension Period,
Distributions will also be deferred, provided that semiannual Distributions will
continue to accrue with interest thereon (to the extent permitted by applicable
law) at a rate of 5.75% per annum, compounded semiannually ("Additional
Amounts") during any such Extension Period. The payment of such deferred
interest, together with Additional Amounts, will be distributed to the Holders
of the Trust Securities as received at the end of any Extension Period;
provided, however, that the Trust may distribute such amounts earlier if the
Sponsor prepays interest accrued on the Debentures prior to the end of any
Extension Period as permitted by the Subordinated Indenture.
Subject to certain conditions set forth in the Amended and
Restated Declaration of Trust and the Subordinated Indenture, the Property
Trustee may, at the direction of the Sponsor, at any time dissolve the Trust
and, after the satisfaction of the liabilities to creditors of the Trust, cause
the Debentures to be distributed to the holders of the Trust Securities in
liquidation of the Trust or, simultaneously with any redemption of the
Debentures, cause a Like Amount of the Trust Securities to be redeemed by the
Trust.
The Preferred Securities shall be redeemable as provided in
the Amended and Restated Declaration of Trust.
C-4
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security to:
__________________________________________________________________________
__________________________________________________________________________
(Insert assignee's social security or tax identification number)
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
__________________________________________________________________________
__________________________________________________________________________
agent to transfer this Preferred Securities Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date: ______________________
Signature: __________________
(Sign exactly as your name appears on the other side of this Preferred Security
Certificate)
C-5
Exhibit 31.1
CERTIFICATION PURSUANT TO RULE 13a-14(a) AND 15d-14(a) OF THE SECURITIES
AND EXCHANGE ACT OF 1934
I, John W. Rowe, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Exelon Corporation;
2. Based on my knowledge, this report does not contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this
report;
3. Based on my knowledge, the financial statements, and other financial
information included in this report, fairly present in all material
respects the financial condition, results of operations and cash flows of
the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officer and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined
in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such
disclosure controls and procedures to be designed under our
supervision, to ensure that material information relating to the
registrant, including its consolidated subsidiaries, is made known to
us by others within those entities, particularly during the period in
which this report is being prepared;
(b) Evaluated the effectiveness of the registrant's disclosure controls
and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end
of the period covered by this report based on such evaluation; and
(c) Disclosed in this report any change in the registrant's internal
control over financial reporting that occurred during the registrant's
most recent fiscal quarter that has materially affected, or is
reasonably likely to materially affect, the registrant's internal
control over financial reporting; and
5. The registrant's other certifying officer and I have disclosed, based on
our most recent evaluation of internal control over financial reporting, to
the registrant's auditors and the audit committee of the registrant's board
of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or
operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant's ability to
record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal
control over financial reporting.
Date: July 30, 2003 /s/ John W. Rowe
------------------------------------
Chairman and Chief Executive Officer
(Principal Executive Officer)
Exhibit 31.2
CERTIFICATION PURSUANT TO RULE 13a-14(a) AND 15d-14(a) OF THE SECURITIES
AND EXCHANGE ACT OF 1934
I, Robert S. Shapard, certify that:
1. I have reviewed this report on Form 10-Q of Exelon Corporation;
2. Based on my knowledge, this report does not contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this
report;
3. Based on my knowledge, the financial statements, and other financial
information included in this report, fairly present in all material
respects the financial condition, results of operations and cash flows of
the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officer and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined
in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such
disclosure controls and procedures to be designed under our
supervision, to ensure that material information relating to the
registrant, including its consolidated subsidiaries, is made known to
us by others within those entities, particularly during the period in
which this report is being prepared;
(b) Evaluated the effectiveness of the registrant's disclosure controls
and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end
of the period covered by this report based on such evaluation; and
(c) Disclosed in this report any change in the registrant's internal
control over financial reporting that occurred during the registrant's
most recent fiscal quarter that has materially affected, or is
reasonably likely to materially affect, the registrant's internal
control over financial reporting; and
5. The registrant's other certifying officer and I have disclosed, based on
our most recent evaluation of internal control over financial reporting, to
the registrant's auditors and the audit committee of the registrant's board
of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or
operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant's ability to
record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal
control over financial reporting.
Date: July 30, 2003 /s/ Robert S. Shapard
------------------------------
Executive Vice President and Chief
Financial Officer
(Principal Financial Officer)
Exhibit 31.3
CERTIFICATION PURSUANT TO RULE 13a-14(a) AND 15d-14(a) OF THE SECURITIES
AND EXCHANGE ACT OF 1934
I, Michael B. Bemis, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Commonwealth Edison
Company;
2. Based on my knowledge, this report does not contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this
report;
3. Based on my knowledge, the financial statements, and other financial
information included in this report, fairly present in all material
respects the financial condition, results of operations and cash flows of
the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officer and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined
in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such
disclosure controls and procedures to be designed under our
supervision, to ensure that material information relating to the
registrant, including its consolidated subsidiaries, is made known to
us by others within those entities, particularly during the period in
which this report is being prepared;
(b) Evaluated the effectiveness of the registrant's disclosure controls
and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end
of the period covered by this report based on such evaluation; and
(c) Disclosed in this report any change in the registrant's internal
control over financial reporting that occurred during the registrant's
most recent fiscal quarter that has materially affected, or is
reasonably likely to materially affect, the registrant's internal
control over financial reporting; and
5. The registrant's other certifying officer and I have disclosed, based on
our most recent evaluation of internal control over financial reporting, to
the registrant's auditors and the audit committee of the registrant's board
of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or
operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant's ability to
record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal
control over financial reporting.
Date: July 30, 2003 /s/ Michael B. Bemis
--------------------
President, Exelon Energy Delivery
(Principal Executive Officer)
Exhibit 31.4
CERTIFICATION PURSUANT TO RULE 13a-14(a) AND 15d-14(a) OF THE SECURITIES AND
EXCHANGE ACT OF 1934
I, Robert S. Shapard, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Commonwealth Edison
Company;
2. Based on my knowledge, this report does not contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this
report;
3. Based on my knowledge, the financial statements, and other financial
information included in this report, fairly present in all material
respects the financial condition, results of operations and cash flows of
the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officer and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined
in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such
disclosure controls and procedures to be designed under our
supervision, to ensure that material information relating to the
registrant, including its consolidated subsidiaries, is made known to
us by others within those entities, particularly during the period in
which this report is being prepared;
(b) Evaluated the effectiveness of the registrant's disclosure controls
and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end
of the period covered by this report based on such evaluation; and
(c) Disclosed in this report any change in the registrant's internal
control over financial reporting that occurred during the registrant's
most recent fiscal quarter that has materially affected, or is
reasonably likely to materially affect, the registrant's internal
control over financial reporting; and
5. The registrant's other certifying officer and I have disclosed, based on
our most recent evaluation of internal control over financial reporting, to
the registrant's auditors and the audit committee of the registrant's board
of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or
operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant's ability to
record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal
control over financial reporting.
Date: July 30, 2003 /s/ Robert S. Shapard
---------------------
Executive Vice President and Chief
Financial Officer, Exelon
(Principal Financial Officer)
Exhibit 31.5
CERTIFICATION PURSUANT TO RULE 13a-14(a) AND 15d-14(a) OF THE SECURITIES
AND EXCHANGE ACT OF 1934
I, Michael B. Bemis, certify that:
1. I have reviewed this quarterly report on Form 10-Q of PECO Energy Company;
2. Based on my knowledge, this report does not contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this
report;
3. Based on my knowledge, the financial statements, and other financial
information included in this report, fairly present in all material
respects the financial condition, results of operations and cash flows of
the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officer and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined
in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such
disclosure controls and procedures to be designed under our
supervision, to ensure that material information relating to the
registrant, including its consolidated subsidiaries, is made known to
us by others within those entities, particularly during the period in
which this report is being prepared;
(b) Evaluated the effectiveness of the registrant's disclosure controls
and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end
of the period covered by this report based on such evaluation; and
(c) Disclosed in this report any change in the registrant's internal
control over financial reporting that occurred during the registrant's
most recent fiscal quarter that has materially affected, or is
reasonably likely to materially affect, the registrant's internal
control over financial reporting; and
5. The registrant's other certifying officer and I have disclosed, based on
our most recent evaluation of internal control over financial reporting, to
the registrant's auditors and the audit committee of the registrant's board
of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or
operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant's ability to
record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal
control over financial reporting.
Date: July 30, 2003 /s/ Michael B. Bemis
--------------------
President, Exelon Energy Delivery
(Principal Executive Officer)
Exhibit 31.6
CERTIFICATION PURSUANT TO RULE 13a-14(a) AND 15d-14(a) OF THE SECURITIES
AND EXCHANGE ACT OF 1934
I, Robert S. Shapard, certify that:
1. I have reviewed this quarterly report on Form 10-Q of PECO Energy Company;
2. Based on my knowledge, this report does not contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this
report;
3. Based on my knowledge, the financial statements, and other financial
information included in this report, fairly present in all material
respects the financial condition, results of operations and cash flows of
the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officer and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined
in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such
disclosure controls and procedures to be designed under our
supervision, to ensure that material information relating to the
registrant, including its consolidated subsidiaries, is made known to
us by others within those entities, particularly during the period in
which this report is being prepared;
(b) Evaluated the effectiveness of the registrant's disclosure controls
and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end
of the period covered by this report based on such evaluation; and
(c) Disclosed in this report any change in the registrant's internal
control over financial reporting that occurred during the registrant's
most recent fiscal quarter that has materially affected, or is
reasonably likely to materially affect, the registrant's internal
control over financial reporting; and
5. The registrant's other certifying officer and I have disclosed, based on
our most recent evaluation of internal control over financial reporting, to
the registrant's auditors and the audit committee of the registrant's board
of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or
operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant's ability to
record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal
control over financial reporting.
Date: July 30, 2003 /s/ Robert S. Shapard
---------------------
Executive Vice President and Chief
Financial Officer, Exelon
(Principal Financial Officer)
Exhibit 31.7
CERTIFICATION PURSUANT TO RULE 13a-14(a) AND 15d-14(a) OF THE SECURITIES AND
EXCHANGE ACT OF 1934
I, Oliver D. Kingsley Jr., certify that:
1. I have reviewed this quarterly report on Form 10-Q of Exelon Generation
Company, LLC;
2. Based on my knowledge, this report does not contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this
report;
3. Based on my knowledge, the financial statements, and other financial
information included in this report, fairly present in all material
respects the financial condition, results of operations and cash flows of
the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officer and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined
in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such
disclosure controls and procedures to be designed under our
supervision, to ensure that material information relating to the
registrant, including its consolidated subsidiaries, is made known to
us by others within those entities, particularly during the period in
which this report is being prepared;
(b) Evaluated the effectiveness of the registrant's disclosure controls
and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end
of the period covered by this report based on such evaluation; and
(c) Disclosed in this report any change in the registrant's internal
control over financial reporting that occurred during the registrant's
most recent fiscal quarter that has materially affected, or is
reasonably likely to materially affect, the registrant's internal
control over financial reporting; and
5. The registrant's other certifying officer and I have disclosed, based on
our most recent evaluation of internal control over financial reporting, to
the registrant's auditors and the audit committee of the registrant's board
of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or
operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant's ability to
record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal
control over financial reporting.
Date: July 30, 2003 /s/ Oliver D. Kingsley Jr.
--------------------------
Chief Executive Officer and President
(Principal Executive Officer)
Exhibit 31.8
CERTIFICATION PURSUANT TO RULE 13a-14(a) AND 15d-14(a) OF THE SECURITIES
AND EXCHANGE ACT OF 1934
I, Robert S. Shapard, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Exelon Generation
Company, LLC;
2. Based on my knowledge, this report does not contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this
report;
3. Based on my knowledge, the financial statements, and other financial
information included in this report, fairly present in all material
respects the financial condition, results of operations and cash flows of
the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officer and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined
in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such
disclosure controls and procedures to be designed under our
supervision, to ensure that material information relating to the
registrant, including its consolidated subsidiaries, is made known to
us by others within those entities, particularly during the period in
which this report is being prepared;
(b) Evaluated the effectiveness of the registrant's disclosure controls
and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end
of the period covered by this report based on such evaluation; and
(c) Disclosed in this report any change in the registrant's internal
control over financial reporting that occurred during the registrant's
most recent fiscal quarter that has materially affected, or is
reasonably likely to materially affect, the registrant's internal
control over financial reporting; and
5. The registrant's other certifying officer and I have disclosed, based on
our most recent evaluation of internal control over financial reporting, to
the registrant's auditors and the audit committee of the registrant's board
of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or
operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant's ability to
record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal
control over financial reporting.
Date: July 30, 2003 /s/ Robert S. Shapard
---------------------
Executive Vice President and Chief
Financial Officer, Exelon
(Principal Financial Officer)
Exhibit 32.1
Certificate Pursuant to Section 1350 of Chapter 63 of Title 18
--------------------------------------------------------------
United States Code
------------------
The undersigned officer hereby certifies, as to the Quarterly Report on
Form 10-Q of Exelon Corporation for the quarterly period ended June 30,
2003, that (i) the report fully complies with the requirements of section
13(a) or 15(d) of the Securities Exchange Act of 1934, and (ii) the
information contained in the report fairly presents, in all material
respects, the financial condition and results of operations of Exelon
Corporation.
Date: July 30, 2003 /s/ John W. Rowe
------------------------------------
John W. Rowe
Chairman and Chief Executive Officer
Exhibit 32.2
Certificate Pursuant to Section 1350 of Chapter 63 of Title 18
--------------------------------------------------------------
United States Code
------------------
The undersigned officer hereby certifies, as to the Quarterly Report on
Form 10-Q of Exelon Corporation for the quarterly period ended June 30,
2003, that (i) the report fully complies with the requirements of section
13(a) or 15(d) of the Securities Exchange Act of 1934, and (ii) the
information contained in the report fairly presents, in all material
respects, the financial condition and results of operations of Exelon
Corporation.
Date: July 30, 2003 /s/ Robert S. Shapard
------------------------------------
Robert S. Shapard
Executive Vice President and
Chief Financial Officer
Exhibit 32.3
Certificate Pursuant to Section 1350 of Chapter 63 of Title 18
--------------------------------------------------------------
United States Code
------------------
The undersigned officer hereby certifies, as to the Quarterly Report on
Form 10-Q of Commonwealth Edison Company for the quarterly period ended
June 30, 2003, that (i) the report fully complies with the requirements of
section 13(a) or 15(d) of the Securities Exchange Act of 1934, and (ii) the
information contained in the report fairly presents, in all material
respects, the financial condition and results of operations of Commonwealth
Edison Company.
Date: July 30, 2003 /s/ Michael B. Bemis
------------------------------------
Michael B. Bemis
President
Exelon Energy Delivery
Exhibit 32.4
Certificate Pursuant to Section 1350 of Chapter 63 of Title 18
--------------------------------------------------------------
United States Code
------------------
The undersigned officer hereby certifies, as to the Quarterly Report on
Form 10-Q of Commonwealth Edison Company for the quarterly period ended
June 30, 2003, that (i) the report fully complies with the requirements of
section 13(a) or 15(d) of the Securities Exchange Act of 1934, and (ii) the
information contained in the report fairly presents, in all material
respects, the financial condition and results of operations of Commonwealth
Edison Company.
Date: July 30, 2003 /s/ Robert S. Shapard
------------------------------------
Robert S. Shapard
Executive Vice President and
Chief Financial Officer
Exelon Corporation
Exhibit 32.5
Certificate Pursuant to Section 1350 of Chapter 63 of Title 18
--------------------------------------------------------------
United States Code
------------------
The undersigned officer hereby certifies, as to the Quarterly Report on
Form 10-Q of PECO Energy Company for the quarterly period ended June 30,
2003, that (i) the report fully complies with the requirements of section
13(a) or 15(d) of the Securities Exchange Act of 1934, and (ii) the
information contained in the report fairly presents, in all material
respects, the financial condition and results of operations of PECO Energy
Company.
Date: July 30, 2003 /s/ Michael B. Bemis
------------------------------------
Michael B. Bemis
President
Exelon Energy Delivery
Exhibit 32.6
Certificate Pursuant to Section 1350 of Chapter 63 of Title 18
--------------------------------------------------------------
United States Code
------------------
The undersigned officer hereby certifies, as to the Quarterly Report on
Form 10-Q of PECO Energy Company for the quarterly period ended June 30,
2003, that (i) the report fully complies with the requirements of section
13(a) or 15(d) of the Securities Exchange Act of 1934, and (ii) the
information contained in the report fairly presents, in all material
respects, the financial condition and results of operations of PECO Energy
Company.
Date: July 30, 2003 /s/ Robert S. Shapard
------------------------------------
Robert S. Shapard
Executive Vice President and
Chief Financial Officer
Exelon Corporation
Exhibit 32.7
Certificate Pursuant to Section 1350 of Chapter 63 of Title 18
--------------------------------------------------------------
United States Code
------------------
The undersigned officer hereby certifies, as to the Quarterly Report on
Form 10-Q of Exelon Generation Company, LLC for the quarterly period ended
June 30, 2003, that (i) the report fully complies with the requirements of
section 13(a) or 15(d) of the Securities Exchange Act of 1934, and (ii) the
information contained in the report fairly presents, in all material
respects, the financial condition and results of operations of Exelon
Generation Company, LLC.
Date: July 30, 2003 /s/ Oliver D. Kingsley Jr.
------------------------------------
Oliver D. Kingsley Jr.
Chief Executive Officer and
President
Exhibit 32.8
Certificate Pursuant to Section 1350 of Chapter 63 of Title 18
--------------------------------------------------------------
United States Code
------------------
The undersigned officer hereby certifies, as to the Quarterly Report on
Form 10-Q of Exelon Generation Company, LLC for the quarterly period ended
June 30, 2003, that (i) the report fully complies with the requirements of
section 13(a) or 15(d) of the Securities Exchange Act of 1934, and (ii) the
information contained in the report fairly presents, in all material
respects, the financial condition and results of operations of Exelon
Generation Company, LLC.
Date: July 30, 2003 /s/ Robert S. Shapard
------------------------------------
Robert S. Shapard
Executive Vice President and
Chief Financial Officer
Exelon Corporation
