EXELON CORPORATION
Debt Securities
Common Stock
Preferred Stock
Stock Purchase Contracts
Stock Purchase Units
FORM OF UNDERWRITING AGREEMENT
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1. Introductory. Exelon Corporation, a Pennsylvania corporation
("Company"), proposes to issue and sell from time to time certain of its
unsecured senior debt securities ("Debt Securities"), shares of its common
stock, no par value per share ("Common Stock"), shares of its preferred stock,
no par value per share ("Preferred Stock") and contracts to purchase Common
Stock (the "Stock Purchase Contracts"), which may be offered separately or as
part of units consisting of one or more such securities ("Units"), registered
under the registration statement referred to in Section 2(a) (such Debt
Securities, Common Stock, Preferred Stock and Stock Purchase Contracts and Units
are collectively referred to as the "Registered Securities"). The Registered
Securities constituting Debt Securities or Units containing Debt Securities will
be issued under an indenture, dated as of May 1, 2001 (the "Indenture"), between
the Company and Chase Manhattan Trust Company, N.A., as Trustee (the "Trustee"),
in one or more series, which series may vary as to interest rates, maturities,
redemption provisions, selling prices and other terms. The Stock Purchase
Contracts and Units containing the foregoing will be issued under one or more
purchase contract agreements (the "Purchase Contract Agreements") between the
Company and the Purchase Contract Agent identified in the Purchase Contract
Agreement. Particular series or offerings of Registered Securities will be sold
pursuant to a Terms Agreement referred to in Section 3 for resale in accordance
with terms of offering determined at the time of sale.
The Registered Securities involved in any such offering are hereinafter
referred to as the "Offered Securities." The firm or firms which agree to
purchase the Offered Securities are hereinafter referred to as the
"Underwriters" of such securities, and the representative or representatives of
the Underwriters, if any, specified in a Terms Agreement referred to in Section
3 are hereinafter referred to as the "Representatives"; provided, however, that
if the Terms Agreement does not specify any representative of the Underwriters,
the term "Representatives," as used in this Agreement (other than in Sections
2(b), the second sentence of Section 3, and Section 6), shall mean the
Underwriters.
2. Representations and Warranties of the Company. The Company, as of
the date of each Terms Agreement referred to in Section 3, represents and
warrants to, and agrees with, each Underwriter that:
(a) A registration statement (No. 333-______), including a
prospectus, relating to the Registered Securities has been filed with
the Securities and Exchange Commission ("Commission") and has become
effective, which registration statement also constitutes a
post-effective amendment to registration statement (No. 333-57640)
relating to the Debt Securities, which has been filed with the
Commission and has become effective. Such registration statements, as
amended at the time of any Terms Agreement referred to in Section 3,
are hereinafter referred to collectively as the "Registration
Statement," and the prospectuses included in such Registration
Statement, as supplemented as contemplated by Section 3 to reflect the
terms of the Offered Securities (if they are Debt Securities, Stock
Purchase Contracts or Units) and the terms of the offering of the
Offered Securities, as first filed with the Commission pursuant to and
in accordance with Rule 424(b) ("Rule 424(b)") under the Securities Act
of 1933 ("Act"), including all material incorporated by reference
therein, are hereinafter referred to collectively as the "Prospectus."
No document has been or will be prepared or distributed in reliance on
Rule 434 under the Act.
(b) On the effective date of the Registration Statement, such
Registration Statement conformed in all respects to the requirements of
(i) the Act, (ii) if applicable, the Trust Indenture Act of 1939
("Trust Indenture Act"), and (iii) the rules and regulations of the
Commission under said acts ("Rules and Regulations") and did not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and on the date of each Terms
Agreement referred to in Section 3, the Registration Statement and the
Prospectus will conform in all respects to the requirements of the Act,
the Trust Indenture Act, if applicable, and the Rules and Regulations,
and neither of such documents will include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except that
the foregoing does not apply to statements in or omissions from any of
such documents based upon written information furnished to the Company
by any Underwriter through the Representatives, if any, specifically
for use therein or, if applicable, to any statements in or omissions
from the Statement of Eligibility and Qualification of the Trustee
under the Indenture.
(c) PricewaterhouseCoopers, LLP are independent certified public
accountants as required by the Act and the Rules and Regulations.
(d) The Company's authorized capitalization is as set forth or
incorporated by reference in the Prospectus and all of the issued and
outstanding shares of capital stock of the Company have been duly
authorized and validly issued and are fully paid and non-assessable.
(e) The Company is a validly subsisting corporation in good standing
under the laws of the Commonwealth of Pennsylvania. Each of the
Company's subsidiaries which constitutes a "gas utility company" or an
"electric utility company," as defined in the Public Utility Holding
Company Act of 1935, as amended ("PUHCA"), is a validly existing
corporation or limited liability company under the laws of its
jurisdiction of incorporation or organization (each a "Utility
Subsidiary"). The Company and each Utility Subsidiary have all
requisite corporate or limited liability company power and authority to
own and occupy their respective properties and carry on their
respective businesses as presently conducted and as described in the
Prospectus and are duly qualified as foreign organizations to do
business and in good standing in every jurisdiction in which the nature
of the business conducted or property owned by them makes such
qualification necessary and in which the failure to so qualify would
have a materially adverse effect on the Company; and the capital stock
or membership interests of each Utility Subsidiary listed in Schedule I
that is owned directly or indirectly by the Company, is owned free from
liens, encumbrances and defects.
(f) If the Offered Securities are Debt Securities or Units
containing Debt Securities: the Offered Securities and the Indenture
have been duly authorized by the Company and will conform to the
description thereof in the Prospectus; the Indenture has been qualified
under the Trust Indenture Act; and when the Offered Securities are
delivered and paid for pursuant to the Terms Agreement on the Closing
Date (as defined below), the Indenture will have been duly executed and
delivered, such Offered Securities will have been duly executed,
authenticated, issued and delivered and the Indenture and such Offered
Securities will constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms, subject to
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bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
(g) If the Offered Securities are Common Stock, Preferred Stock or
Units containing shares of Common Stock: the Offered Securities and all
other outstanding shares of capital stock of the Company have been duly
authorized; all outstanding shares of capital stock of the Company are,
and, when the Offered Securities have been delivered and paid for in
accordance with the Terms Agreement on the Closing Date, such Offered
Securities will have been, validly issued, fully paid and nonassessable
and will conform to the description thereof contained in the
Prospectus; and the stockholders of the Company have no preemptive
rights with respect to its Common Stock and Preferred Stock.
(h) If the Offered Securities are convertible into or exercisable
for Common Stock: when the Offered Securities are delivered and paid
for pursuant to the Terms Agreement on the Closing Date, such Offered
Securities will be convertible into or exercisable for Common Stock of
the Company in accordance with the Indenture or the Purchase Agreement,
as the case may be; the shares of Common Stock initially issuable upon
conversion or exercise of such Offered Securities have been duly
authorized and reserved for issuance upon such conversion or exercise
and, when issued upon such conversion or exercise, will be validly
issued, fully paid and nonassessable; the outstanding shares of Common
Stock have been duly authorized and validly issued, are fully paid and
nonassessable and conform to the description thereof contained in the
Prospectus; and the stockholders of the Company have no preemptive
rights with respect to the Common Stock.
(i) If the Offered Securities are Stock Purchase Contracts or Units
containing Stock Purchase Contracts: the Offered Securities and the
Purchase Contract Agreement have been duly authorized by the Company
and will conform to the description thereof in the Prospectus; and when
the Offered Securities are delivered and paid for pursuant to the Terms
Agreement on the Closing Date, the Purchase Contract Agreement will
have been duly executed and delivered, such Offered Securities will
have been duly executed, authenticated, issued and delivered and the
Purchase Contract Agreement and such Offered Securities will constitute
valid and legally binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles.
(j) If the Offered Securities are Common Stock, convertible into
Common Stock, Stock Purchase Contracts or Units containing shares of
Common Stock or Stock Purchase Contracts: (i) except as disclosed in
the Prospectus, there are no contracts, agreements or understandings
between the Company and any person that would give rise to a valid
claim against the Company or any Underwriter for a brokerage
commission, finder's fee or other like payment; and (ii) the
outstanding shares of Common Stock are listed on the New York Stock
Exchange (the "Stock Exchange") and the Offered Securities (if they are
Common Stock), the Common Stock into which the Offered Securities are
convertible (if they are convertible), the Common Stock for which the
Offered Securities are exercisable (if they are Stock Purchase
Contracts) or the Common Stock underlying the Units has been approved
for listing on the Stock Exchange, subject to notice of issuance.
(k) If the Offered Securities are Debt Securities, they have been
approved for listing on the stock exchange indicated in the Terms
Agreement, subject to notice of issuance.
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(l) Except for (a) the orders of the Commission making the
Registration Statement effective, (b) the Order of the Commission under
PUHCA authorizing the Company to issue and sell the Offered Securities
as contemplated by the Terms Agreement (including the provisions of
this Agreement), (c) qualification under the Trust Indenture Act if the
Offered Securities are Debt Securities or Units containing Debt
Securities, (d) permits and similar authorizations required under the
securities or "Blue Sky" laws of any jurisdiction, and (e) such
undertakings, if any, required pursuant to the Undertakings set forth
in Part II of the Registration Statement, no consent, approval,
authorization or other order of any governmental authority is legally
required for the valid issuance and sale of the Offered Securities.
(m) The execution, delivery and performance of the Indenture (if the
Offered Securities are Debt Securities or Units containing Debt
Securities), the Purchase Contract Agreement (if the Offered Securities
are Stock Purchase Contracts or Units containing Stock Purchase
Contracts), the Terms Agreement (including the provisions of this
Agreement) and any Delayed Delivery Contracts and the issuance and sale
of the Offered Securities and, if the Offered Securities are Debt
Securities, Units containing Debt Securities, Stock Purchase Contracts
or Units containing Stock Purchase Contracts, compliance with the terms
and provisions thereof, will not result in a breach of any of the terms
or provisions of, or constitute a default under, the Company's Amended
and Restated Articles of Incorporation or Bylaws or those of any of the
subsidiaries listed in Schedule I or any indenture, mortgage, deed of
trust or other agreement or instrument to which the Company or any such
subsidiary is now a party, or any effective order of any court or
administrative agency entered in any proceedings to which the Company
was or is now a party or by which it is bound.
(n) The Terms Agreement (including the provisions of this Agreement)
and, if the Offered Securities are Debt Securities, any Delayed
Delivery Contracts (as defined below) have been duly authorized,
executed and delivered by the Company.
(o) The Company is not and, after giving effect to the offering and
sale of the Offered Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940.
3. Purchase and Offering of Offered Securities. The obligation of the
Underwriters to purchase the Offered Securities will be evidenced by an
agreement or exchange of other written communications ("Terms Agreement") at the
time the Company determines to sell the Offered Securities. The Terms Agreement
will incorporate by reference the provisions of this Agreement, except as
otherwise provided therein, and will specify the firm or firms which will be
Underwriters, the names of any Representatives, the principal amount or number
of shares to be purchased by each Underwriter, the purchase price to be paid by
the Underwriters and (if the Offered Securities are Debt Securities, Stock
Purchase Contracts or Units containing Debt Securities or Stock Purchase
Contracts) the terms of the Offered Securities not already specified (in the
Indenture, in the case of Offered Securities that are Debt Securities or Units
containing Debt Securities, or in the Purchase Contract Agreement, in the case
of Offered Securities that are Stock Purchase Contacts or Units containing Stock
Purchase Contracts), including, but not limited to, interest rate (if Debt
Securities or Units containing Debt Securities), maturity (if Debt Securities or
Units containing Debt Securities), any redemption provisions and any sinking
fund requirements and whether any of the Offered Securities may be sold to
institutional investors pursuant to Delayed Delivery Contracts (as defined
below). The Terms Agreement will also specify the time and date of delivery and
payment (such time and date, or such other time not later than seven full
business days thereafter as the Underwriter first named in the Terms Agreement
(the "Lead Underwriter") and the Company agree as the time for payment and
delivery, being herein and in the Terms Agreement referred to as the "Closing
Date"), the place of delivery and payment and any details of the terms of
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offering that should be reflected in the prospectus supplement relating to the
offering of the Offered Securities. For purposes of Rule 15c6-1 under the
Securities Exchange Act of 1934, the Closing Date (if later than the otherwise
applicable settlement date) shall be the date for payment of funds and delivery
of securities for all the Offered Securities sold pursuant to the offering,
other than Contract Securities (as defined below) for which payment of funds and
delivery of securities shall be as hereinafter provided. The obligations of the
Underwriters to purchase the Offered Securities will be several and not joint.
It is understood that the Underwriters propose to offer the Offered Securities
for sale as set forth in the Prospectus.
If the Terms Agreement provides for sales of Offered Securities
pursuant to delayed delivery contracts, the Company authorizes the Underwriters
to solicit offers to purchase Offered Securities pursuant to delayed delivery
contracts substantially in the form of Annex I attached hereto ("Delayed
Delivery Contracts") with such changes therein as the Company may authorize or
approve. Delayed Delivery Contracts are to be with institutional investors,
including commercial and savings banks, insurance companies, pension funds,
investment companies and educational and charitable institutions. On the Closing
Date the Company will pay, as compensation, to the Representatives for the
accounts of the Underwriters, the fee set forth in such Terms Agreement in
respect of the principal amount or number of shares of Offered Securities to be
sold pursuant to Delayed Delivery Contracts ("Contract Securities"). The
Underwriters will not have any responsibility in respect of the validity or the
performance of Delayed Delivery Contracts. If the Company executes and delivers
Delayed Delivery Contracts, the Contract Securities will be deducted from the
Offered Securities to be purchased by the several Underwriters and the aggregate
principal amount or number of shares of Offered Securities to be purchased by
each Underwriter will be reduced pro rata in proportion to the principal amount
or number of shares of Offered Securities set forth opposite each Underwriter's
name in such Terms Agreement, except to the extent that the Lead Underwriter
determines that such reduction shall be otherwise than pro rata and so advise
the Company. The Company will advise the Lead Underwriter not later than the
business day prior to the Closing Date of the principal amount or number of
shares of Contract Securities.
If the Offered Securities are Common Stock or Preferred Stock, the
certificates for the Offered Securities delivered to the Underwriters on the
Closing Date will be in definitive form, and if the Offered Securities are Debt
Securities, Stock Purchase Contracts or Units, the Offered Securities delivered
to the Underwriters on the Closing Date will be in definitive fully registered
form, in each case in such denominations and registered in such names as the
Lead Underwriter requests.
If the Offered Securities are Debt Securities, Stock Purchase Contracts
or Units and the Terms Agreement specifies "Book-Entry Only" settlement or
otherwise states that the provisions of this paragraph shall apply, the Company
will deliver against payment of the purchase price the Offered Securities in the
form of one or more permanent global securities in definitive form (the "Global
Securities") deposited with the Trustee as custodian for The Depository Trust
Company ("DTC") and registered in the name of Cede & Co., as nominee for DTC.
Interests in any permanent global securities will be held only in book-entry
form through DTC, except in the limited circumstances described in the
Prospectus. Payment for the Offered Securities shall be made by the Underwriters
in Federal (same day) funds by official check or checks or wire transfer to an
account previously designated by the Company at a bank acceptable to the Lead
Underwriter, in each case drawn to the order of at the place of payment
specified in the Terms Agreement on the Closing Date, against delivery to the
Trustee as custodian for DTC of the Global Securities representing all of the
Offered Securities.
4. Certain Agreements of the Company. The Company agrees with the
several Underwriters that it will furnish to counsel for the Underwriters, one
signed copy of the Registration Statement, including all exhibits, in the form
it became effective and of all amendments thereto and that, in connection with
each offering of Offered Securities:
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(a) The Company will file the Prospectus with the Commission
pursuant to and in accordance with Rule 424(b)(2) (or, if applicable
and if consented to by the Lead Underwriter, subparagraph (5) thereof)
not later than the second business day following the execution and
delivery of the Terms Agreement.
(b) The Company will advise the Lead Underwriter promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus and will afford the Lead Underwriter a reasonable
opportunity to comment on any such proposed amendment or supplement;
and the Company will also advise the Lead Underwriter promptly of the
filing of any such amendment or supplement and of the institution by
the Commission of any stop order proceedings in respect of the
Registration Statement or of any part thereof and will use its best
efforts to prevent the issuance of any such stop order and to obtain as
soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Company promptly will notify the Lead Underwriter of such event and
will promptly prepare and file with the Commission, at its own expense,
an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance. Neither the
Lead Underwriter's consent to, nor the Underwriters' delivery of, any
such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 5 hereof.
(d) As soon as practicable, but not later than 16 months after the
date of each Terms Agreement, the Company will make generally available
to its securityholders an earnings statement covering a period of at
least 12 months beginning after the later of (i) the effective date of
the Registration Statement, (ii) the effective date of the most recent
post-effective amendment to the Registration Statement to become
effective prior to the date of such Terms Agreement and (iii) the date
of the Company's most recent Annual Report on Form 10-K filed with the
Commission prior to the date of such Terms Agreement, which will
satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the
Prospectus and all amendments and supplements to such documents, in
each case as soon as available and in such quantities as the Lead
Underwriter reasonably requests. The Company will pay the expenses of
printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale and (if the Offered Securities are Debt Securities,
Stock Purchase Contracts or Units) the determination of their
eligibility for investment under the laws of such jurisdictions as the
Lead Underwriter designates and will continue such qualifications in
effect so long as required for the distribution; provided, however,
that the Company shall not be required to qualify as a foreign
corporation in any jurisdiction where it is not now so qualified or to
take any action which would subject it to general service of process in
any jurisdiction where it is not now so subject.
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(g) The Company will pay all expenses incident to the performance of
its obligations under the Terms Agreement (including the provisions of
this Agreement), including (i) any filing fees or other expenses
(including fees and disbursements of counsel) in connection with
qualification of the Registered Securities for sale, listing on the
Stock Exchange (if the Offered Securities are Common Stock, securities
convertible into or exercisable for Common Stock or Preferred Stock)
and (if the Offered Securities are Debt Securities, Stock Purchase
Contracts or Units) any determination of their eligibility for
investment under the laws of such jurisdictions as the Lead Underwriter
may designate and the printing of memoranda relating thereto, (ii) any
fees charged by investment rating agencies for the rating of the
Offered Securities (if they are Debt Securities), (iii) any applicable
filing fee incident to, the review by the National Association of
Securities Dealers, Inc. of the Registered Securities, (iv) any travel
expenses of the Company's officers and employees, (v) any other
expenses of the Company in connection with attending or hosting
meetings with prospective purchasers of Registered Securities and (vi)
expenses incurred in distributing the Prospectus, any preliminary
prospectuses, any preliminary prospectus supplements or any other
amendments or supplements to the Prospectus to the Underwriters.
(h) If the Offered Securities are Debt Securities or Units
containing Debt Securities, the Company will not offer, sell, contract
to sell, pledge or otherwise dispose of, directly or indirectly, or
file with the Commission a registration statement under the Act
relating to United States dollar-denominated debt securities issued or
guaranteed by the Company and having a maturity of more than one year
from the date of issue (if the Offered Securities are Debt Securities
or Units containing Debt Securities), or publicly disclose the
intention to make any such offer, sale, pledge, disposition or filing,
without the prior written consent of the Lead Underwriter for a period
beginning at the time of execution of the Terms Agreement and ending
the number of days after the Closing Date specified under "Blackout" in
the Terms Agreement.
(i) If the Offered Securities are Common Stock, Preferred Stock,
Stock Purchase Contracts, convertible into Common Stock or Units
containing Common Stock or Stock Purchase Contracts, the Company will
not offer, sell, contract to sell, pledge or otherwise dispose of,
directly or indirectly, or file with the Commission a registration
statement under the Act relating to, any additional shares of its
Common Stock, Preferred Stock, Stock Purchase Contracts, Units or
securities convertible into or exchangeable or exercisable for any
shares of its Common Stock, or publicly disclose the intention to make
any such offer, sale, pledge, disposition or filing, without the prior
written consent of the Lead Underwriter for a period beginning at the
time of execution of the Terms Agreement and ending the number of days
after the Closing Date specified under "Blackout" in the Terms
Agreement, except issuances of Common Stock pursuant to the conversion
or exchange of convertible or exchangeable securities or the exercise
of warrants or options, in each case outstanding on the date of the
Terms Agreement, grants of employee stock options pursuant to the terms
of a plan in effect on the date of the Terms Agreement, issuances of
Common Stock pursuant to the exercise of such options or issuances of
Common Stock pursuant to the Company's dividend reinvestment plan.
(j) The Company will use its best efforts to effect the listing of
(A) Offered Securities that are shares of Common Stock, (B) shares of
Common Stock issuable upon the conversion or exercise of the Offered
Securities, and (C) shares of Preferred Stock, as the case may be, on
the Stock Exchange, and to cause such Offered Securities to be
registered under the Securities Exchange Act of 1934, as amended ("1934
Act").
(k) In the case of the issuance of Offered Securities convertible
into or exercisable for Common Stock, the Company agrees to reserve and
keep available at all times, free of preemptive rights, shares of
Common Stock for the purpose of enabling the Company to satisfy any
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obligations to issue shares of Common Stock upon conversion or exercise
of the Offered Securities, as the case may be.
5. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Offered Securities will
be subject to the accuracy of the representations and warranties on the part of
the Company herein, to the accuracy of the statements of Company officers made
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions precedent:
(a) On the date of the Terms Agreement and the Closing Date, the
Representatives shall have requested and caused PricewaterhouseCoopers,
LLP to furnish to the Representatives letters, dated respectively the
date of the Terms Agreement and the Closing Date, in form and substance
satisfactory to the Representatives.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 4(a) of this
Agreement. No stop order suspending the effectiveness of the
Registration Statement or of any part thereof shall have been issued
and no proceedings for that purpose shall be pending before, or
threatened by, the Commission.
(c) Subsequent to the effective date of the Terms Agreement and
prior to the Closing Date, there shall have been no material adverse
change in the financial condition, business or results of operations of
the Company and its subsidiaries, considered as a whole, except as set
forth in the Registration Statement and the Prospectus, including the
documents incorporated by reference therein.
(d) The Representatives shall have received an opinion, dated the
Closing Date, of Ballard Spahr Andrews & Ingersoll, LLP, counsel for
the Company, to the effect that:
(i) The Company is a corporation duly incorporated and validly
subsisting under the laws of the Commonwealth of Pennsylvania and
has all requisite corporate power and authority to own its
properties and to conduct its business as described in the
Prospectus;
(ii) The Company's authorized capitalization is as set forth or
incorporated by reference in the Prospectus and all of the issued
and outstanding shares of capital stock of the Company have been
duly authorized and validly issued;
(iii) If the Offered Securities are Debt Securities or Units
containing Debt Securities: the Indenture has been duly authorized,
executed and delivered by the Company and has been qualified under
the Trust Indenture Act; the Offered Securities have been duly
authorized by the Company; the Offered Securities are in a form
contemplated by the Indenture; the Offered Securities have been duly
executed, issued and delivered by the Company; the Indenture and the
Offered Securities constitute valid and legally binding obligations
of the Company, enforceable in accordance with their respective
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general principles
of equity, including without limitation, concepts of materiality,
reasonableness, good faith and fair dealing; and the Indenture and
the Offered Securities conform to the descriptions thereof contained
in the Prospectus;
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(iv) If the Offered Securities are Common Stock, Preferred Stock
or Units containing Common Stock: the Offered Securities and all
outstanding shares of the Common Stock and Preferred Stock of the
Company have been duly authorized and validly issued, are fully paid
and nonassessable and conform to the description thereof contained
in the Prospectus; and the stockholders of the Company have no
preemptive rights with respect to the Offered Securities;
(v) If the Offered Securities are convertible into or exercisable
for Common Stock: the Offered Securities other than any Contract
Securities are, and any Contract Securities, when (if the Offered
Securities are Debt Securities) executed, authenticated, issued and
delivered in the manner provided in the Indenture and sold pursuant
to Delayed Delivery Contracts will be convertible into or
exercisable for Common Stock of the Company in accordance with the
Indenture or the Purchase Contract Agreement, as the case may be;
the shares of Common Stock initially issuable upon conversion or
exercise of the Offered Securities have been duly authorized and
reserved for issuance upon such conversion or exercise and, when
issued upon such conversion or exercise, will be validly issued,
fully paid and nonassessable; the outstanding shares of Common Stock
have been duly authorized and validly issued, are fully paid and
nonassessable and conform to the description thereof contained in
the Prospectus; and the stockholders of the Company have no
preemptive rights with respect to the Common Stock;
(vi) If the Offered Securities are Common Stock, Preferred Stock,
convertible into Common Stock, Stock Purchase Contracts or Units
containing Common Stock or Stock Purchase Contracts: there are no
contracts, agreements or understandings known to such counsel
between the Company and any person granting such person the right to
require the Company to file a registration statement under the Act
with respect to any securities of the Company owned or to be owned
by such person or to require the Company to include such securities
in the securities registered pursuant to the Registration Statement
or in any securities being registered pursuant to any other
registration statement filed by the Company under the Act;
(vii) If the Offered Securities are Stock Purchase Contracts or
Units containing Stock Purchase Contracts: the Offered Securities
and the Purchase Contract Agreement have been duly authorized by the
Company and will conform to the description thereof in the
Prospectus; and when the Offered Securities are delivered and paid
for pursuant to the Terms Agreement on the Closing Date, the
Purchase Contract Agreement will have been duly executed and
delivered, such Offered Securities will have been duly executed,
authenticated, issued and delivered and the Purchase Contract
Agreement and such Offered Securities will constitute valid and
legally binding obligations of the Company enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles;
(viii) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of
the proceeds thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act of
1940;
(ix) No consent, approval, authorization or order of, or filing
with, any state commission or regulatory authority or of any federal
commission or regulatory authority, or of any other governmental
9
agency or body or any court is required for the consummation of the
transactions contemplated by the Terms Agreement (including the
provisions of this Agreement) in connection with the issuance or
sale of the Offered Securities by the Company, except (A) such as
have been obtained and made under the Act, (B) the Order of the
Commission under PUHCA authorizing the Company to issue and sell the
Offered Securities, (C) if the Offered Securities are Debt
Securities or Units containing Debt Securities, the Trust Indenture
Act, (D) such as may be required under state securities laws, and
(E) to the extent, if any, required pursuant to the Undertakings set
forth in Part II of the Registration Statement;
(x) The execution, delivery and performance by the Company of the
Indenture (if the Offered Securities are Debt Securities or Units
containing Debt Securities), the Terms Agreement (including the
provisions of this Agreement) and, if the Offered Securities are
Debt Securities, any Delayed Delivery Contracts and the issuance and
sale of the Offered Securities and, if the Offered Securities are
Debt Securities or Units containing Debt Securities, compliance with
the terms and provisions thereof will not conflict with or result in
a breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, rule, regulation or order
of any governmental agency or body or any court having jurisdiction
over the Company or any of its properties, or, to our knowledge, any
agreement or instrument to which the Company is a party or by which
the Company is bound or to which any of the properties of the
Company is subject, or the Articles of Incorporation or By-Laws of
the Company, and the Company has full power and authority to
authorize, issue and sell the Offered Securities as contemplated by
the Terms Agreement (including the provisions of this Agreement);
(xi) The Registration Statement has become effective under the
Act, the Prospectus was filed with the Commission in the manner
specified in and within the time period required by Rule 424(b)
specified in such opinion on the date specified therein, and, to the
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or any part thereof has
been issued and no proceedings for that purpose have been instituted
or are pending or contemplated under the Act, and the Registration
Statement, as of its effective date, the Registration Statement and
the Prospectus, as of the date of the Terms Agreement, and any
amendment or supplement thereto, as of its date, complied as to form
in all material respects with the requirements of the Act, the Trust
Indenture Act and the Rules and Regulations; such counsel have no
reason to believe that such Registration Statement, as of its
effective date, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that such
Registration Statement, as of the date of the Terms Agreement or as
of the Closing Date, or any amendment thereto, as of its date or as
of the Closing Date, or the Prospectus, as of the date of the Terms
Agreement or as of such Closing Date, or any amendment or supplement
thereto, as of its date or as of the Closing Date, contained any
untrue statement of a material fact or omitted to state any material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; and
such counsel do not know of any contracts or documents of a
character required to be described in the Registration Statement or
Prospectus or to be filed as exhibits to the Registration Statement
which are not described and filed as required; it being understood
that such counsel need express no opinion as to the financial
statements or other financial data contained in the Registration
Statement or the Prospectus;
10
(xii) The Terms Agreement (including the provisions of this
Agreement) and, if the Offered Securities are Debt Securities, any
Delayed Delivery Contracts have been duly authorized, executed and
delivered by the Company; and
(xiii) To the knowledge of such counsel, there are no material
pending legal proceedings to which the Company or any subsidiary is
a party and which are required to be set forth in the Prospectus
other than those referred to in the Prospectus.
(e) The Representatives shall have received from Winston & Strawn,
counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the incorporation of the Company, the
validity of the Offered Securities, the Registration Statement, the
Prospectus and other related matters as the Representatives may
require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters. In rendering such opinion, Winston & Strawn may rely as
to the incorporation of the Company and all other matters governed by
Pennsylvania law upon the opinion of Ballard Spahr Andrews & Ingersoll,
LLP referred to above.
(f) The Representatives shall have received a certificate, dated the
Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company in which such officers,
to the best of their knowledge after reasonable investigation, shall
state that (i) the representations and warranties of the Company in
this Agreement are true and correct, (ii) the Company has complied with
all agreements and satisfied all conditions on its part to be performed
or satisfied hereunder at or prior to the Closing Date, (iii) no stop
order suspending the effectiveness of the Registration Statement or of
any part thereof has been issued and no proceedings for that purpose
have been instituted or are contemplated by the Commission and (iv)
subsequent to the date of the most recent financial statements in the
Prospectus, there has been no material adverse change in the financial
condition, business or results of operations of the Company and its
subsidiaries, considered as a whole, except as set forth in the
Registration Statement and the Prospectus, including the documents
incorporated by reference therein, as of the effective date of this
Agreement.
(g) At the Closing, there shall be in full force and effect an Order
issued by the Commission under PUHCA permitting the issuance and sale
of the Offered Securities and the transactions relating thereto
substantially in accordance with the terms and conditions set forth in
the Terms Agreement and containing no provision unacceptable to the
Representative.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
request. The Lead Underwriter may in its sole discretion waive on behalf of the
Underwriters compliance with any conditions to the obligations of the
Underwriters under this Agreement and the Terms Agreement.
6. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter, its partners, directors and officers and each
person, if any, who controls such Underwriter within the meaning of Section 15
of the Act, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon: (i) any untrue statement or
alleged untrue statement of any material fact, or an omission or alleged
omission to state a material fact required to be stated or necessary to make the
statements therein not misleading, contained in the Registration Statement or
the Prospectus at the time that the Registration Statement became effective; or
(ii) after the time that the Registration Statement became effective, any untrue
statement or alleged untrue statement of any material fact, or an omission or
alleged omission to state a material fact required to be stated or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, contained in any post-effective amendment to the
Registration Statement or the Prospectus as amended or supplemented after the
time that the Registration Statement became effective or any related preliminary
prospectus or preliminary prospectus supplement. The Company will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon (i) an untrue
statement or alleged untrue statement in or omission or alleged omission from
11
any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives, if any, specifically for use therein, it being understood and
agreed that the only such information furnished by any Underwriter consists of
the information described in such Terms Agreement, or (ii) the failure of any
Underwriter to send to any purchaser to whom it had sent a preliminary
prospectus an amended prospectus together with such summary of material changes,
if any, made therein since the date of such preliminary prospectus as shall have
been furnished by the Company for such purpose, or (iii) any use of the
Prospectus by any Underwriter after the expiration of that period, if any,
during which the Underwriter is required by law to deliver a prospectus, unless
the Company shall have been advised in writing of such intended use, or (iv) if
applicable, any statements or alleged statements in or omissions or alleged
omissions from the Statement of Eligibility and Qualification on Form T-1 of the
Trustee under the Indenture. The term "preliminary prospectus" as used in this
paragraph includes the prospectus first complying with Section 10(a) of the Act.
(b) Each Underwriter will severally and not jointly indemnify and
hold harmless the Company, its directors and officers and each person,
if any, who controls the Company within the meaning of Section 15 of
the Act, against any losses, claims, damages or liabilities to which
the Company may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or
any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the
Representatives, if any, specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred, it
being understood and agreed that the only such information furnished by
any Underwriter consists of the information described as such in the
Terms Agreement.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a) or (b) above, notify the
indemnifying party of the commencement thereof; but the failure to
notify the indemnifying party shall not relieve it from any liability
that it may have under subsection (a) or (b) above except to the extent
that it has been materially prejudiced (through the forfeiture of
substantive rights or defenses) by such failure; and provided further
that the failure to notify the indemnifying party shall not relieve it
from any liability that it may have to an indemnified party otherwise
than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party,
12
be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party will not be liable
to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
action in respect of which any indemnified party is or could have been
a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement (i) includes an unconditional
release of such indemnified party from all liability on any claims that
are the subject matter of such action and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to
act by or behalf of an indemnified party.
(d) If the indemnification provided for in this Section is held to
be unenforceable by the indemnified parties although applicable in
accordance with its terms (including the requirements of Section 6(c)),
then each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such
indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such
proportion as is equitable and appropriate to reflect both the relative
benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Offered Securities and the
relative fault of the Company on the one hand and the Underwriters on
the other in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by
the Company on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the
Underwriters. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company or the Underwriters
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission.
The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the
subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the
Offered Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each person, if
any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section shall be in
addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to
each director of the Company, to each officer of the Company who has
13
signed the Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act.
7. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities under the Terms Agreement
and the aggregate principal amount (if Debt Securities) or number of shares (if
Common Stock or Preferred Stock), number of units (if Units) or number of
contracts (if Stock Purchase Contracts) of Offered Securities that such
defaulting Underwriter or Underwriters agreed but failed to purchase does not
exceed 10% of the total principal amount (if Debt Securities) or number of
shares (if Common Stock or Preferred Stock), number of units (if Units) or
number of contracts (if Stock Purchase Contracts) of Offered Securities, the
Lead Underwriter may make arrangements satisfactory to the Company for the
purchase of such Offered Securities by other persons, including any of the
Underwriters, but if no such arrangements are made by the Closing Date, the
non-defaulting Underwriters shall be obligated severally, in proportion to their
respective commitments under the Terms Agreement (including the provisions of
this Agreement), to purchase the Offered Securities that such defaulting
Underwriters agreed but failed to purchase. If any Underwriter or Underwriters
so default and the aggregate principal amount (if Debt Securities) or number of
shares (if Common Stock or Preferred Stock), number of units (if Units) or
number of contracts (if Stock Purchase Contracts) of Offered Securities with
respect to which such default or defaults occur exceeds 10% of the total
principal amount (if Debt Securities) or number of shares (if Common Stock or
Preferred Stock), number of units (if Units) or number of contracts (if Stock
Purchase Contracts) of Offered Securities and arrangements satisfactory to the
Lead Underwriter and the Company for the purchase of such Offered Securities by
other persons are not made within 36 hours after such default, the Terms
Agreement will terminate without liability on the part of any non-defaulting
Underwriter or the Company, except as provided in Section 8. As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default. If the Offered Securities are Debt
Securities the respective commitments of the several Underwriters for the
purposes of this Section shall be determined without regard to reduction in the
respective Underwriters' obligations to purchase the principal amounts of the
Offered Securities set forth opposite their names in the Terms Agreement as a
result of Delayed Delivery Contracts entered into by the Company.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to the Terms Agreement (including the provisions of this Agreement)
will remain in full force and effect, regardless of any investigation, or
statement as to the results thereof, made by or on behalf of any Underwriter,
the Company or any of their respective representatives, officers or directors or
any controlling person, and will survive delivery of and payment for the Offered
Securities. If the Terms Agreement is terminated pursuant to Section 7 or if for
any reason the purchase of the Offered Securities by the Underwriters is not
consummated, the Company shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 4 and the respective obligations of the
Company and the Underwriters pursuant to Section 6 shall remain in effect. If
the purchase of the Offered Securities by the Underwriters is not consummated
for any reason other than solely because of the termination of the Terms
Agreement pursuant to Section 7, the Company will reimburse the Underwriters for
all out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by them in connection with the offering of the Offered
Securities.
9. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to them at their address furnished to the Company in writing for the purpose of
communications hereunder or, if sent to the Company, will be mailed, delivered
or telegraphed and confirmed to it at ______________, Attention: _____________.
14
10. Successors. The Terms Agreement (including the provisions of this
Agreement) will inure to the benefit of and be binding upon the Company and such
Underwriters as are identified in the Terms Agreement and their respective
successors and the officers and directors and controlling persons referred to in
Section 6, and no other person will have any right or obligation hereunder.
11. Representation of Underwriters. Any Representatives will act for
the several Underwriters in connection with the financing described in the Terms
Agreement, and any action under such Terms Agreement (including the provisions
of this Agreement) taken by the Representatives jointly or by the Lead
Underwriter will be binding upon all the Underwriters.
12. Counterparts. The Terms Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
13. Applicable Law. This Agreement and the Terms Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York, without regard to principles of conflicts of laws.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to the Terms Agreement
(including the provisions of this Agreement) or the transactions contemplated
thereby.
15
SCHEDULE I
SUBSIDIARIES
Commonwealth Edison Company
PECO Energy Company
Exelon Generation Company, LLC
16
ANNEX I
(Three copies of this Delayed Delivery Contract should be
signed and returned to the address shown below so as to
arrive not later than 9:00 A.M.,
New York time, on ........................ ............, .....(a))
DELAYED DELIVERY CONTRACT
-------------------------
[Insert date of initial public offering]
Exelon Corporation
c/o [Insert Name of Representative]
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Exelon Corporation, a
Pennsylvania corporation ("Company"), and the Company agrees to sell to the
undersigned, [If one delayed closing, insert--as of the date hereof, for
delivery on ________________________, ("Delivery Date"),]
[$]..............[shares]
--principal amount--of the Company's [Insert title of securities]
("Securities"), offered by the Company's Prospectus dated ____________, ____ and
a Prospectus Supplement dated _______________, ________ relating thereto,
receipt of copies of which is hereby acknowledged, at-- % of the principal
amount thereof plus accrued interest, if any,--$ per share plus accrued
dividends, if any,--and on the further terms and conditions set forth in this
Delayed Delivery Contract ("Contract").
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the date hereof,
for delivery on the dates set forth below, Securities in the--principal--amounts
set forth below:
Principal Amount
----------------
Number
Delivery Date of Shares
------------- ---------
......................................... ..........
......................................... ..........
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
- --------
(a) Insert date which is third full business day prior to Closing
Date under the Terms Agreement.
Payment for the Securities that the undersigned has agreed to purchase
for delivery on--the--each--Delivery Date shall be made to the Company or its
order in Federal (same day) funds by certified or official bank check or wire
transfer to an account designated by the Company, at the office of _____________
at _______ A.M. on--the--such--Delivery Date upon delivery to the undersigned of
the Securities to be purchased by the undersigned--for delivery on such Delivery
Date--in definitive [If debt issue, insert--fully registered] form and in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than five
full business days prior to--the--such--Delivery Date.
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the undersigned; that the purchase
hereunder of Securities is to be regarded in all respects as a purchase as of
the date of this Contract; that the obligation of the Company to make delivery
of and accept payment for, and the obligation of the undersigned to take
delivery of and make payment for, Securities on--the--each--Delivery Date shall
be subject only to the conditions that (1) investment in the Securities shall
not at--the--such--Delivery Date be prohibited under the laws of any
jurisdiction in the United States to which the undersigned is subject and (2)
the Company shall have sold to the Underwriters the total--principal
amount--number of shares--of the Securities less the--principal amount---number
of shares--thereof covered by this and other similar Contracts. The undersigned
represents that its investment in the Securities is not, as of the date hereof,
prohibited under the laws of any jurisdiction to which the undersigned is
subject and which governs such investment.
Promptly after completion of the sale to the Underwriters the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by--a copy--copies--of the opinion[s] of counsel for
the Company delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this Contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
...........................................
(Name of Purchaser)
By.........................................
...........................................
(Title of Signatory)
...........................................
...........................................
(Address of Purchaser)
Accepted, as of the above date.
EXELON CORPORATION
By........................................................
[Insert Title]
EXELON CORPORATION
("Company")
FORM OF TERMS AGREEMENT
-----------------------
To: The Representative[s] of the Underwriters identified herein
Ladies and Gentlemen:
The undersigned agrees to sell to the several Underwriters named in
Schedule A hereto for their respective accounts, and the Underwriters agree to
purchase from the Company, severally and not jointly, in the respective amounts
specified in Schedule A, on and subject to the terms and conditions of the
Underwriting Agreement filed as an exhibit to the Company's registration
statement on Form S-3 (No. 333-_______) ("Underwriting Agreement"), the
following securities ("Offered Securities") on the following terms:
Title: .
[Principal Amount] [Number of Shares] [Number of Contracts]
[Number of Units]:
Over-allotment: In addition, upon written notice from the
Representative[s] given to the Company from time to time not more than 30 days
subsequent to the date hereof, the Underwriters may purchase up to [$ additional
principal amount] [ additional shares] [ additional contracts] [ additional
units] of the Offered Securities (the "Optional Securities") at the purchase
price. The Company agrees to sell to the Underwriters the Optional Securities,
and the Underwriters agree, severally and not jointly, to purchase such Optional
Securities. Such Optional Securities shall be purchased for the account of each
Underwriter in the same proportion as the Principal Amount of Offered Securities
set forth opposite such Underwriter's name on Schedule A hereto (subject to
adjustment by the Representative[s] to eliminate fractions) and may be purchased
by the Underwriters only for the purpose of covering over-allotments made in
connection with the sale of the Offered Securities. No Optional Securities shall
be sold or delivered unless the Offered Securities previously have been, or
simultaneously are, sold and delivered. The right to purchase the Optional
Securities or any portion thereof may be exercised from time to time and to the
extent not previously exercised may be surrendered and terminated at any time
upon notice by the Representative[s] to the Company.
[Interest: [ % per annum, from _______________, ___, payable
semiannually on _____________ and _________________, commencing ______________,
___, to holders of record on the preceding _______________ or ____________, as
the case may be.] [Zero coupon.]]
[Maturity: , .]
[Optional Redemption: ]
[Sinking Fund: ]
Listing: [None.] [the New York Stock Exchange.]
Delayed Delivery Contracts: [None.] [Delivery Date[s] shall be
________________________, ____________. Underwriters' fee is[____________% of
the principal amount] [$________________________ per share]
[$________________________ per contract] [$____________ per unit] of the
Contract Securities.]
Purchase Price: [____________ % of principal amount, plus
accrued interest[, if any,] from ____________ ,____________.] [$____________ per
share.] [$____________ per contract.] [$____________ per unit.]
Expected Reoffering Price: [____________ % of principal
amount, ] [$____________ per share][$____________ per contract] [$____________
per unit] subject to change by the [Representative[s] [Underwriters].
Closing: ____________ A.M. on ____________ , ____________ , at
____________ , in Federal (same day) funds.
[Underwriter[s']['s] Compensation: $ ____________ payable to
the [Representative[s] for the proportionate amounts of the] Underwriter[s] on
the Closing Date.
Settlement and Trading: [Physical certificated form.]
[Book-Entry Only via DTC.]
Blackout: Until ____________ days after the Closing Date.
Names and Addresses of the Representatives:
The respective [principal amounts] [numbers of shares] [numbers of
contracts] [number of units] of the Offered Securities to be purchased by each
of the Underwriters are set forth opposite their names in Schedule A hereto.
The provisions of the Underwriting Agreement are incorporated herein by
reference.
The Offered Securities will be made available for checking and
packaging ____________ at the office of at least 24 hours prior to the Closing
Date.
For purposes of Section 6 of the Underwriting Agreement, the only
information furnished to the Company by any Underwriter for use in the
Prospectus consists of [(i)] the following information in the Prospectus
furnished on behalf of each Underwriter: the concession and reallowance figures
appearing in the ____________ paragraph under the caption "Underwriting" in the
prospectus supplement [If paragraph regarding passive market making is included,
insert--and the information contained in the ____________ paragraph under the
caption "Underwriting" in the prospectus supplement] [If applicable, insert--;
and (ii) the following information in the prospectus supplement furnished on
behalf of [insert name of Underwriter]: [insert description of information, such
as material relationship disclosure under the caption "Underwriting" in the
prospectus supplement].
2
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company one of the counterparts hereof,
whereupon it will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
EXELON CORPORATION
By:_______________________________________
Name:
Title:
The foregoing Terms Agreement is hereby confirmed and accepted as of the
date first above written.
[LEAD MANAGER]
_____________________
_____________________
Acting on behalf of themselves and as the Representatives of the several
Underwriters.
By: [LEAD MANAGER]
By:_______________________________________________________
Name:
Title:
3
SCHEDULE A
[Principal Amount]
[Number of Shares]
[Number of Units]
Underwriter [Number of Contracts]
----------- ---------------------
$
-------------
Total........................... [$]
=============
Exhibit 1-2
EXELON CAPITAL TRUST __
% Trust Preferred Securities (Liquidation Amount
of $ per Trust Preferred Security)
Underwriting Agreement
New York, New York
Tothe Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Ladies and Gentlemen:
Exelon Capital Trust __ (the "Trust"), a Delaware statutory trust
organized under the Statutory Trust Act (the "Delaware Act") of the State of
Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. ss.ss. 3801 et
seq.), and Exelon Corporation, a corporation organized under the laws of the
Commonwealth of Pennsylvania (the "Company" and, together with the Trust, the
"Offerors"), propose to sell to the several underwriters named in Schedule II
hereto (the "Underwriters"), for whom you (the "Representatives") are acting as
representatives, the ______% Trust Preferred Securities (liquidation amount of
$______ per security) issued by the Trust, with the terms specified in Schedule
I hereto, representing undivided beneficial interests in the assets of the Trust
(the "Preferred Securities"). The Preferred Securities will be guaranteed by the
Company (the "Guarantee" and, together with the Preferred Securities, the
"Offered Securities"), to the extent described in the Final Prospectus, with
respect to distributions and payments upon liquidation, redemption and otherwise
pursuant to the Guarantee Agreement (the "Preferred Securities Guarantee") to be
dated as of the Closing Date (as defined below) between the Company and Wachovia
Trust Company, National Association, as Trustee (the "Guarantee Trustee"). The
Offerors propose to sell to the Underwriters pursuant to this Agreement ______
Offered Securities as set forth in Schedule II hereto.
The entire proceeds from the sale of the Offered Securities will be
combined with the entire proceeds from the sale by the Trust to the Company of
its common securities (the "Common Securities"), and will be used by the Trust
to purchase $ in aggregate principal amount of the Company's % unsecured
subordinated debt securities (the "Debt Securities"). The Preferred Securities
and the Common Securities will be issued pursuant to the Amended and Restated
Declaration of Trust, to be dated as of the Closing Date (the "Declaration"),
among the Company, as sponsor, ____________, as administrative trustees (the
"Administrative Trustees"), Wachovia Trust Company, National Association, as
property trustee (the "Property Trustee") and as Delaware trustee (the "Delaware
Trustee," and together with the Property Trustee and the Administrative
Trustees, the "Trustees"). The Debt Securities will be issued
pursuant to an indenture, dated as of June 24, 2003 (the "Indenture"), between
the Company and Wachovia Bank, National Association, as trustee (the "Debenture
Trustee"). The Preferred Securities issued in book-entry form will be issued to
Cede & Co. as nominee of The Depository Trust Company ("DTC") pursuant to a
letter agreement, to be dated as of the Closing Date, among the Trust, the
Property Trustee and DTC. The Offered Securities and the Subordinated Notes are
hereinafter collectively referred to as the "Securities."
To the extent there are no additional Underwriters listed on
Schedule I other than you, the term Representatives as used herein shall mean
you, as Underwriters, and the terms Representatives and Underwriters shall mean
either the singular or plural as the context requires. Any reference herein to
the Registration Statement, the Basic Prospectus, any Preliminary Prospectus or
the Final Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which were
filed under the Exchange Act on or before the Effective Date of the Registration
Statement or the issue date of the Basic Prospectus, any Preliminary Prospectus
or the Final Prospectus, as the case may be; and any reference herein to the
terms "amend," "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus or the Final
Prospectus shall be deemed to refer to and include the filing of any document
under the Exchange Act after the Effective Date of the Registration Statement or
the issue date of the Basic Prospectus, any Preliminary Prospectus or the Final
Prospectus, as the case may be, deemed to be incorporated therein by reference.
Certain terms used herein are defined in Section 17 hereof.
1. Representations and Warranties. The Offerors jointly and
severally represent and warrant to, and agree with, each Underwriter as set
forth below in this Section 1.
(a) The Offerors meet the requirements for use of Form S-3 under the
Act and have prepared and filed with the Commission a registration
statement (the file number of which is set forth in Schedule I hereto)
on Form S-3, including a related basic prospectus, for registration
under the Act of the offering and sale of the Securities. The Offerors
may have filed one or more amendments thereto, including a Preliminary
Prospectus, each of which has previously been furnished to you. The
Offerors will next file with the Commission one of the following: (1)
after the Effective Date of such registration statement, a final
prospectus supplement relating to the Securities in accordance with
Rules 430A and 424(b), (2) prior to the Effective Date of such
registration statement, an amendment to such registration statement
(including the form of final prospectus supplement) or (3) after the
Effective Date of such registration statement, a final prospectus in
accordance with Rules 415 and 424(b). In the case of clause (1), the
Offerors have included in such registration statement, as amended at
the Effective Date, all information (other than Rule 430A Information)
required by the Act and the rules thereunder to be included in such
registration statement and the Final Prospectus. As filed, such final
prospectus supplement or such amendment and form of final prospectus
supplement shall contain all Rule 430A Information, together with all
other such required information, and, except to the extent the
Representatives shall agree in writing to a modification, shall be in
all substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution Time,
shall contain only such specific additional information and other
changes (beyond that contained in the Basic Prospectus and any
Preliminary Prospectus) as the Offerors have advised you, prior to the
2
Execution Time, will be included or made therein. The Registration
Statement, at the Execution Time, meets the requirements set forth in
Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did or will,
and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date (as defined
herein), the Final Prospectus (and any supplement thereto) will, comply
in all material respects with the applicable requirements of the Act,
the Exchange Act and the Trust Indenture Act and the respective rules
thereunder; on the Effective Date and at the Execution Time, the
Registration Statement did not or will not contain any untrue statement
of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading; on the Effective Date and on the Closing Date the Indenture
did or will comply in all material respects with the applicable
requirements of the Trust Indenture Act and the rules thereunder; and,
on the Effective Date and at the Execution Time, the Final Prospectus,
if not filed pursuant to Rule 424(b), will not, and on the date of any
filing pursuant to Rule 424(b) and on the Closing Date, the Final
Prospectus (together with any supplement thereto) will not, include any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to
(i) that part of the Registration Statement which shall constitute the
Statements of Eligibility and Qualification (Forms T-1) under the Trust
Indenture Act of the Debenture Trustee, the Guaranty Trustee and the
Delaware Trustee and Property Trustee or (ii) the information contained
in or omitted from the Registration Statement or the Final Prospectus
(or any supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Offerors by or on behalf of any
Underwriter through the Representatives specifically for inclusion in
the Registration Statement or the Final Prospectus (or any supplement
thereto).
(c) Neither of the Company or the Trust is, and after giving effect
to the offering and sale of the Securities and the application of the
proceeds thereof as described in the Final Prospectus will be, an
"investment company" or an entity "controlled" by an investment company
within the meaning of the Investment Company Act.
(d) Neither of the Company or the Trust has taken, directly or
indirectly, any action designed to cause or which has constituted or
which might reasonably be expected to cause or result, under the
Exchange Act or otherwise, in the stabilization or manipulation of the
price of any security of the Company or the Trust to facilitate the
sale or resale of the Securities.
(e) The Company has been duly organized and is validly subsisting as
a corporation in good standing under the laws of the Commonwealth of
Pennsylvania with full power and authority under its articles of
incorporation and bylaws to own or lease, as the case may be, and to
operate its properties and conduct its business as described in the
Final Prospectus, and is duly qualified to do business as a foreign
entity and is in good standing under the laws of each jurisdiction
which requires such qualification.
3
(f) The Trust has been duly created and is validly existing in good
standing as a statutory trust under the Delaware Act with the power and
authority to own property and to conduct its business as described in
the Final Prospectus and to enter into and perform its obligations
under this Agreement, the Offered Securities, the Common Securities and
the Declaration; the Trust is duly qualified to transact business as a
foreign company and is in good standing in any other jurisdiction in
which such qualification is necessary, except to the extent that the
failure to so qualify or be in good standing would not have a material
adverse effect on the Trust; the Trust is not a party to or otherwise
bound by any agreement other than those described in the Final
Prospectus; the Trust is and will be classified for United States
federal income tax purposes as a grantor trust and not as an
association taxable as a corporation; and the Trust is and will be
treated as a consolidated subsidiary of the Company pursuant to
generally accepted accounting principles.
(g) Except as disclosed in the Company's Form 10-K for the fiscal
year ended December 31, 2002, the Company does not have any significant
subsidiaries (as such term is defined in Rule 1.02 of Regulation S-X
promulgated under the Act).
(h) The descriptions in the Final Prospectus of the Declaration, the
Preferred Securities, the Preferred Securities Guarantee, the Common
Securities, the Indenture and the Debt Securities fairly summarize the
matters therein described.
(i) This Agreement has been duly authorized, executed and delivered
by each of the Offerors; the Indenture has been duly authorized and
when executed and delivered by the Company, will constitute a legal,
valid, binding instrument enforceable against the Company in accordance
with its terms (subject, as to the enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium or other
laws affecting creditors' rights generally from time to time in effect
and to general principles of equity).
(j) At the Closing Date, the Preferred Securities will have been
duly authorized for issuance and sale by the Trust and, when issued and
delivered against payment of the consideration therefor as provided
herein, will be validly issued and (subject to the terms of the
Declaration) fully paid and non-assessable undivided beneficial
interests in the Trust, and will be entitled to the benefits of the
Declaration; the issuance of the Preferred Securities is not subject to
preemptive or other similar rights of any securityholder of the Company
or the Trust; and (subject to the terms of the Declaration) holders of
Preferred Securities will be entitled to the same limitation of
personal liability under Delaware law as extended to stockholders of
private corporations for profit organized under the Delaware General
Corporation Law; provided, that the holders of the Preferred Securities
may be obligated, pursuant to the Declaration, to (i) provide indemnity
and/or security in connection with, and pay taxes or governmental
charges arising from, transfers or exchanges of Preferred Securities
certificates and the issuance of replacement Preferred Securities
certificates and (ii) provide security and indemnity in connection with
requests of or directions to the Property Trustee to exercise its
rights and remedies under the Declaration.
4
(k) The Preferred Securities Guarantee, including the Guarantee, has
been duly authorized by the Company; at the Closing Date, the Preferred
Securities Guarantee will have been duly executed and delivered by the
Company and, assuming due authorization, execution and delivery of the
Preferred Securities Guarantee by the Guarantee Trustee, will
constitute a legal, valid, binding instrument, enforceable against the
Company in accordance with its terms (subject, as to the enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights generally from
time to time in effect and to general principles of equity).
(l) The Common Securities have been duly authorized by the Trust
and, when issued and delivered by the Trust to the Company against
payment therefor as described in the Final Prospectus, will be validly
issued and (subject to the terms of the Declaration) fully paid and
non-assessable undivided beneficial interests in the assets of the
Trust; the issuance of the Common Securities is not subject to
preemptive or other similar rights; and at the Closing Date all of the
issued and outstanding Common Securities of the Trust will be directly
owned by the Company free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity.
(m) The issuance and sale of the Debt Securities have been duly
authorized by the Company and, at the Closing Date, will have been duly
executed by the Company and, when authenticated in the manner provided
for in the Indenture and delivered against payment therefor as
described in the Final Prospectus, will constitute the legal, valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms (subject, as to the enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights generally from
time to time in effect and to general principles of equity); and the
Debt Securities will be in the form contemplated by, and entitled to
the benefits of, the Indenture.
(n) The Declaration has been duly authorized by the necessary
corporate action of the Offerors and, at the Closing Date, will have
been duly executed and delivered by the Company and the Trustees, and
assuming due authorization, execution and delivery of the Declaration
by the Property Trustee and the Delaware Trustee, the Declaration will,
at the Closing Date, constitute a legal, valid, binding instrument
enforceable against the Company, the Trust and the Trustees in
accordance with its terms, (subject, as to the enforcement of remedies,
to applicable bankruptcy, reorganization, insolvency, moratorium or
other laws affecting creditors' rights generally from time to time in
effect and to general principles of equity).
(o) No consent, approval, authorization, filing with or order of any
court or state or federal governmental agency or body, including the
Commission and any applicable state regulatory authority, is required
in connection with the transactions contemplated herein or in the
Indenture, except such as will be obtained under the Act and the Trust
Indenture Act, and such as may be required under the blue sky laws of
any jurisdiction in connection with the purchase and distribution of
the Offered Securities by the Underwriters in the manner contemplated
herein and in the Final Prospectus.
5
(p) Neither the execution and delivery of this Agreement, nor the
consummation of any of the transactions herein contemplated, nor the
fulfillment of the terms hereof will conflict with, result in a breach
or violation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or the Trust pursuant to, (i) the
charter or bylaws of the Company; (ii) the Certificate of Trust or the
Declaration; (iii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which
either the Company or the Trust is a party or bound or to which its
property is subject; or (iv) any statute, law, rule, regulation,
judgment, order or decree applicable to either Offeror of any court,
regulatory body, administrative agency, governmental body, arbitrator
or other authority having jurisdiction over either the Company or the
Trust or any of its respective subsidiaries or any of its or their
properties.
(q) The consolidated historical financial statements and schedules
of the Company and its consolidated subsidiaries incorporated by
reference in the Final Prospectus present fairly in all material
respects the financial condition, results of operations and cash flows
of the Company, as of the date and for the period indicated, comply as
to form with the applicable accounting requirements of the Act and have
been prepared in conformity with generally accepted accounting
principles, and the presentation of non-GAAP financial measures, if
any, complies in all material respects with Regulation G and Item 10 of
Regulation S-K promulgated by the Commission.
(r) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving
either the Company or the Trust or any of its subsidiaries or its or
their property is pending or, to the best knowledge of the Company,
threatened that (i) could reasonably be expected to have a material
adverse effect on the performance of this Agreement or the Indenture,
or the consummation of any of the transactions contemplated hereby or
thereby; or (ii) could reasonably be expected to have a material
adverse effect on the financial condition, business or properties of
either the Trust or the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Final
Prospectus (exclusive of any amendment or supplement thereto).
(s) PricewaterhouseCoopers, LLP, are independent public accountants
with respect to the Offerors within the meaning of the Act and the
applicable published rules and regulations thereunder.
(t) Each of the Administrative Trustees of the Trust is an employee
of the Company or an affiliate of the Company and has been duly
authorized by the Company to execute and deliver the Declaration; the
Declaration has been duly executed and delivered by the Administrative
Trustees and is a legal, valid, binding obligation of each
Administrative Trustee, enforceable against such Administrative Trustee
in accordance with its terms (subject, as to the enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights generally from
time to time in effect and to general principles of equity).
6
(u) The Company is a validly subsisting corporation in good standing
under the laws of the Commonwealth of Pennsylvania. Each of the
Company's subsidiaries which constitutes a "gas utility company" or an
"electric utility company," as defined in the Public Utility Holding
Company Act of 1935, as amended, is a validly existing corporation or
limited liability company under the laws of its jurisdiction of
incorporation or organization (each a "Utility Subsidiary"). The
Company and each Utility Subsidiary have all requisite corporate or
limited liability company power and authority to own and occupy their
respective properties and carry on their respective businesses as
presently conducted and as described in the Prospectus and are duly
qualified as foreign organizations to do business and in good standing
in every jurisdiction in which the nature of the business conducted or
property owned by them makes such qualification necessary and in which
the failure to so qualify would have a materially adverse effect on the
Company; and the capital stock or membership interests of each Utility
Subsidiary listed in Schedule I that is owned directly or indirectly by
the Company, is owned free from liens, encumbrances and defects.
Any certificate signed by any officer or other representative of the
Company or the Trust and delivered to the Representatives or counsel for the
Underwriters in connection with the offering of the Offered Securities shall be
deemed a representation and warranty by the Company, as to matters covered
thereby, to each Underwriter.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Trust
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Trust, at the purchase price set forth
opposite its name in Schedule II hereto, the principal amount of the Offered
Securities set forth opposite such Underwriter's name in Schedule II hereto.
3. Delivery and Payment. (a) Delivery of and payment for the Offered
Securities shall be made on the date and at the time specified in Schedule I
hereto or at such time on such later date not more than three Business Days
after the foregoing date as the Representatives shall designate, which date and
time may be postponed by agreement between the Representatives and the Company
or as provided in Section 9 hereof (such date and time of delivery and payment
for the Securities being herein called the "Closing Date"). Delivery of the
Securities shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by
the Company. Delivery of the Securities shall be made through the facilities of
DTC unless the Representatives shall otherwise instruct.
(b) As compensation to the Underwriters for their commitments
hereunder and in view of the fact that the proceeds of the sale of the
Offered Securities will be used to purchase Debt Securities of the
Company, the Company hereby agrees to pay at the Closing Date, or the
relevant date of delivery, as the case may be, to the Representatives
in immediately available funds, for the accounts of the several
Underwriters, $______ per Offered Security to be delivered by the Trust
hereunder at the Closing Date.
7
(c) In accordance with Rule 15c6-1(d) promulgated under the Exchange
Act, the Underwriters agree to the payment of funds and delivery of the
Offered Securities in accordance with this Section 3 in lieu of that
required by paragraphs (a) and (c) of Rule 15c6-1 under the Exchange
Act.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Final Prospectus.
5. Agreements. The Offerors agree with the several Underwriters
that:
(a) Each Offeror will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereof, to become effective. Prior to the termination of the offering
of the Offered Securities, the Offerors will not file any amendment of
the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Prospectus) to the Basic Prospectus or
any Rule 462(b) Registration Statement unless the Offerors have
furnished you a copy for your review prior to filing and will not file
any such proposed amendment or supplement to which you reasonably
object. Subject to the foregoing sentence, if the Registration
Statement has become or becomes effective pursuant to Rule 430A, or
filing of the Final Prospectus is otherwise required under Rule 424(b),
the Offerors will cause the Final Prospectus, properly completed, and
any supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed
and will provide evidence satisfactory to the Representatives of such
timely filing. The Offerors will promptly advise the Representatives
(1) when the Registration Statement, if not effective at the Execution
Time, shall have become effective, (2) when the Final Prospectus, and
any supplement thereto, shall have been filed (if required) with the
Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration
Statement shall have been filed with the Commission, (3) when, prior to
termination of the offering of the Offered Securities, any amendment to
the Registration Statement shall have been filed or become effective,
(4) of any request by the Commission or its staff for any amendment of
the Registration Statement, or any Rule 462(b) Registration Statement,
or for any supplement to the Final Prospectus or for any additional
information, (5) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (6)
of the receipt by the Offerors of any notification with respect to the
suspension of the qualification of the Offered Securities for sale in
any jurisdiction or the institution or threatening of any proceeding
for such purpose. Each Offeror will use its best efforts to prevent the
issuance of any such stop order or the suspension of any such
qualification and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or supplement
the Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Offerors promptly will (1) notify the
8
Representatives of such event, (2) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this
Section 5, an amendment or supplement which will correct such statement
or omission or effect such compliance and (3) supply any supplemented
Final Prospectus to you in such quantities as you may reasonably
request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its subsidiaries,
including the Trust, which will satisfy the provisions of Section 11(a)
of the Act and Rule 158 under the Act.
(d) The Offerors will furnish to the Representatives and counsel for
the Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a
copy of the Registration Statement (without exhibits thereto) and, so
long as delivery of a prospectus by an Underwriter or dealer may be
required by the Act, as many copies of each Preliminary Prospectus and
the Final Prospectus and any supplement thereto as the Representatives
may reasonably request. The Company will pay the expenses of printing
or other production of all documents relating to the offering.
(e) The Company will arrange, if necessary, for the qualification of
the Offered Securities for sale under the laws of such jurisdictions as
the Representatives may designate, will maintain such qualifications in
effect so long as required for the distribution of the Offered
Securities and will pay any fee of the NYSE, in connection with its
review of the offering; provided that in no event shall the Company or
the Trust be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action that would
subject it to service of process in suits, other than those arising out
of the offering or sale of the Offered Securities, in any jurisdiction
where it is not now so subject.
(f) Neither the Company nor the Trust will, without the prior
written consent of the Representatives, offer, sell, contract to sell,
pledge, or otherwise dispose of, (or enter into any transaction which
is designed to, or might reasonably be expected to, result in the
disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Company or the
Trust, directly or indirectly, or announce the offering of, capital
securities, or the Debt Securities or any debt securities substantially
similar (including provisions with respect to the deferral of interest)
to the Debt Securities or any equity security substantially similar to
the Preferred Securities (except for the Securities issued pursuant to
this Agreement) or enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Preferred
Securities or the Debt Securities; provided, however, that the
foregoing restrictions shall not apply to any disposal of the Debt
Securities following any liquidation of the Trust; provided, further,
that the foregoing period shall only extend until the Business Day set
forth on Schedule I hereto.
9
(g) The Offerors will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be
expected to cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the
Company or the Trust to facilitate the sale or resale of the Offered
Securities.
(h) The Company agrees to pay the costs and expenses relating to the
following matters: (i) the issuance of the Offered Securities and the
fees of the Trustee; (ii) the preparation, printing or reproduction of
the Registration Statement, Preliminary Prospectus and Final Prospectus
and each amendment or supplement to either of them; (iii) the printing
(or reproduction) and delivery (including postage, air freight charges
and charges for counting and packaging) of such copies of the
Preliminary Prospectus and Final Prospectus, and all amendments or
supplements to either of them, as may, in each case, be reasonably
requested for use in connection with the offering and sale of the
Offered Securities; (iv) the preparation, printing, authentication,
issuance and delivery of certificates for the Preferred Securities and
the Debt Securities, including any stamp or transfer taxes in
connection with the original issuance and sale of the Preferred
Securities and the Debt Securities; (v) the printing (or reproduction)
and delivery of this Agreement, any blue sky memorandum and all other
agreements or documents printed (or reproduced) and delivered in
connection with the offering of the Offered Securities; (vi) any
registration or qualification of the Offered Securities for offer and
sale under the securities or blue sky laws of the several states
(including filing fees and the reasonable fees and expenses of counsel
for the Underwriters relating to such registration and qualification);
(vii) the transportation and other expenses incurred by or on behalf of
Company or Trust representatives in connection with presentations to
prospective purchasers of the Offered Securities; (viii) the fees and
expenses of the Offerors' accountants and counsel (including local and
special counsel); (ix) the fees and expenses of any rating agencies
rating the Preferred Securities and, if applicable, the Debt
Securities; (x) the fees and expenses of the Property Trustee and the
Guarantee Trustee; (xi) the fees and expenses of the Debenture Trustee;
and (xii) all other costs and expenses incident to the performance by
the Company or the Trust of its obligations hereunder.
(i) Each of the Company and the Trust will, if requested by the
Representative, use its best efforts to cause the Preferred Securities
to be listed on the New York Stock Exchange.
(j) The Offerors will cooperate with the Underwriters and use their
reasonable commercial efforts to permit the Preferred Securities to be
eligible for clearance and settlement through the facilities of DTC.
(k) The Trust will use the net proceeds received by it from the sale
of the Preferred Securities and the Common Securities, and the Company
will use the proceeds received by it from the sale of the Debt
Securities, in the manner specified in the Final Prospectus under "Use
of Proceeds."
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Offered Securities shall be
subject to the accuracy of the representations and warranties on the part of the
Offerors contained herein as of the Execution Time and the Closing Date, to the
10
accuracy of the statements of the Offerors made in any certificates pursuant to
the provisions hereof, to the performance by the Offerors of their obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a
later time, the Registration Statement will become effective not later
than (i) 6:00 p.m. New York City time, on the date of determination of
the public offering price, if such determination occurred at or prior
to 3:00 p.m. New York City time on such date or (ii) 9:30 a.m. on the
Business Day following the day on which the public offering price was
determined, if such determination occurred after 3:00 p.m. New York
City time on such date; if filing of the Final Prospectus, or any
supplement thereto, is required pursuant to Rule 424(b), the Final
Prospectus, and any such supplement, will be filed in the manner and
within the time period required by Rule 424(b); and no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) Ballard Spahr Andrews & Ingersoll, LLP, counsel for the Company
and the Trust, shall have furnished to the Representatives its opinion,
dated the Closing Date and addressed to the Representatives, in form
and substance satisfactory to the Representatives and their counsel.
(c) The Offerors shall have furnished to the Representatives the
opinion of Richards, Layton & Finger, P.A., special Delaware counsel to
the Offerors, dated the Closing Date and addressed to the
Representatives, in form and substance satisfactory to the
Representatives and their counsel.
(d) The Offerors shall have furnished to the Representatives the
opinion of Richards, Layton & Finger, counsel to the Property Trustee
under the Declaration, the Debenture Trustee under the Indenture and
the Guarantee Trustee under the Preferred Securities Guarantee, dated
the Closing Date and addressed to the Representatives, in form and
substance satisfactory to the Representatives and their counsel.
(e) The Representatives shall have received from Winston & Strawn,
counsel for the Underwriters, such opinion or opinions, dated the
Closing Date and addressed to the Representatives, with respect to the
issuance and sale of the Preferred Securities, the Declaration, the
Indenture, the Preferred Securities Guaranty, this Agreement, the
Registration Statement, the Final Prospectus (together with any
supplement thereto) and other related matters as the Representatives
may reasonably require, and the Offerors shall have furnished to such
counsel such documents as they request for the purpose of enabling them
to pass upon such matters.
(f) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the
Company, and the Trust shall have furnished to the Representatives a
certificate of the Trust, signed by an Administrative Trustee of the
Trust, each dated the Closing Date, to the effect that the signers of
11
such certificates have carefully examined the Registration Statement,
the Final Prospectus, any supplements to the Final Prospectus and this
Agreement and that:
(i) the representations and warranties of the Company and the
Trust, respectively, in this Agreement are true and correct in all
material respects on and as of the Closing Date with the same effect
as if made on the Closing Date, and the Company and the Trust,
respectively, have complied with all the agreements and satisfied
all the conditions on their respective parts to be performed or
satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Final Prospectus
(exclusive of any supplement thereto), there has been no material
adverse effect on the financial condition, business or properties of
the Company and its subsidiaries, taken as a whole, or the Trust,
respectively, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated
in the Final Prospectus (exclusive of any supplement thereto).
(g) At the Execution Time and at the Closing Date, the Company shall
have requested and caused PricewaterhouseCoopers, LLP to furnish to the
Representatives letters, dated respectively as of the Execution Time
and as of the Closing Date, in form and substance satisfactory to the
Representatives.
(h) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of
any amendment thereof) and the Final Prospectus (exclusive of any
supplement thereto), there shall not have been (i) any change or
decrease specified in the letter or letters referred to in paragraph
(e) of this Section 6 or (ii) any change, or any development involving
a prospective change, in or affecting the financial condition, business
or properties of the Trust or the Company and its subsidiaries, taken
as a whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the Final
Prospectus (exclusive of any supplement thereto) the effect of which,
in any case referred to in clause (i) or (ii) above, is, in the sole
judgment of the Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of
the Offered Securities as contemplated by the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto).
(i) On the Closing Date, (i) the Preferred Securities shall be rated
by ________________________ and ____________ by __________________, and
the Offerors shall have delivered to the Representatives evidence
satisfactory to the Representatives confirming that the Preferred
Securities have such ratings, and (ii) since the Execution Time, there
shall not have occurred a downgrading in the rating assigned to the
Preferred Securities or any of the Company's first mortgage bonds or
commercial paper by any "nationally recognized statistical rating
12
agency," as that term is defined by the Commission for purposes of Rule
436(g)(2) under the Act, and no such securities rating agency shall
have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of the Preferred Securities
or any of the Company's debt securities.
(j) Contemporaneously with the purchase of the Offered Securities on
the Closing Date (i) the Company shall purchase the Common Securities
from the Trust and (ii) the Trust shall purchase the Debt Securities
from the Company.
(k) Prior to the Closing Date, the Offerors shall have furnished to
the Representatives such further information, certificates and
documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of such
cancelation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
The documents required to be delivered by this Section 6 will be
delivered at the office of counsel for the Company, at Ballard Spahr Andrews &
Ingersoll, LLP, 1735 Market Street, 51st Floor, Philadelphia, Pennsylvania
19103, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Offered Securities provided for herein is not consummated because any condition
to the obligations of the Underwriters set forth in Section 6 hereof is not
satisfied, because of any termination pursuant to Section 10 hereof or because
of any refusal, inability or failure on the part of either of the Offerors to
perform any agreement herein or comply with any provision hereof other than by
reason of a default by any of the Underwriters, the Company will reimburse the
Underwriters severally on demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of the Offered
Securities.
8. Indemnification and Contribution. (a) The Offerors jointly and
severally agree to indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of each Underwriter and each person who controls
any Underwriter within the meaning of either the Act or the Exchange Act against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) (i) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the registration statement for
the registration of the Offered Securities as originally filed or in any
amendment thereof, or arise out of or are based upon an omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or (ii) arise out of or
13
are based upon any untrue statement or alleged untrue statement of a material
fact, in light of the circumstances in which it was made, or an omission or
alleged omission to state a material fact required to be stated or necessary to
make the statements therein, in light of the circumstances in which they were
made, not misleading, in the Basic Prospectus, any Preliminary Prospectus or the
Final Prospectus (as amended or supplemented if the Offerors shall have made any
amendments or supplements thereto and if used within any period during which an
Underwriter may be required by law to deliver a prospectus), and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Offerors will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Offerors by or on behalf of any Underwriter through the
Representatives specifically for inclusion therein; provided, further, that the
foregoing indemnity with respect to any untrue statement contained in or
omission from the Basic Prospectus or the Preliminary Prospectus shall not inure
to the benefit of any Underwriter (or any of the directors, officers, employees
and agents of such Underwriter or any person controlling such Underwriter) (i)
from whom the person asserting any such loss, claim, damage or liability
purchased the Offered Securities which are the subject thereof if such person
did not receive a copy of the Final Prospectus (or the Final Prospectus as then
amended or supplemented if the Offerors shall have furnished any amendments or
supplements thereto) at or prior to the confirmation of the sale of such Offered
Securities to such person in any case where such delivery is required by the Act
and the untrue statement or omission of a material fact contained in such Basic
Prospectus or Preliminary Prospectus was corrected in the Final Prospectus (or
the Final Prospectus as so amended or supplemented if the Offerors shall have
furnished any amendments or supplements thereto), and it is finally judicially
determined that such delivery was required to be made under the Act and was not
so made, or (ii) that uses the Final Prospectus after the expiration of such
period, if any, during which the Underwriter is required by law to deliver a
prospectus, unless the Company shall have been advised in writing of such
intended use. This indemnity agreement will be in addition to any liability
which the Offerors may otherwise have. The Company agrees to indemnify the Trust
against all loss, liability claim, damage and expense whatsoever, as due from
the Trust under Section 8(a) hereunder.
(b) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Offerors, each of their respective directors and
officers, and each person who controls the Offerors within the meaning
of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Offerors to each Underwriter, but only
with reference to written information relating to such Underwriter
furnished to the Offerors by or on behalf of such Underwriter through
the Representatives specifically for inclusion in the documents
referred to in Section 8(a) above. This indemnity agreement will be in
addition to any liability which any Underwriter may otherwise have. The
Offerors acknowledge that (i) the statement set forth on the cover page
regarding delivery of the Securities and under the heading
"Underwriting," (ii) the list of Underwriters and their respective
participation in the sale of the Offered Securities, (iii) the
sentences related to concessions and reallowances and (iv) the
paragraph related to stabilization, syndicate covering transactions and
penalty bids in any Preliminary Prospectus and the Final Prospectus
14
constitute the only information furnished in writing by or on behalf of
the several Underwriters for inclusion in any Preliminary Prospectus or
the Final Prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party
in writing of the commencement thereof; but the failure so to notify
the indemnifying party (i) will not relieve it from liability under
paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying
party shall be entitled to appoint counsel of the indemnifying party's
choice at the indemnifying party's expense to represent the indemnified
party in any action for which indemnification is sought (in which case
the indemnifying party shall not thereafter be responsible for the fees
and expenses of any separate counsel retained by the indemnified party
or parties except as set forth below); provided, however, that such
counsel shall be satisfactory to the indemnified party. Notwithstanding
the indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the
right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses
of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present
such counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii)
the indemnifying party shall not have employed counsel satisfactory to
the indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action or (iv)
the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of
any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such
settlement, compromise or consent (i) includes an unconditional release
of each indemnified party from all liability arising out of such claim,
action, suit or proceeding and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on
behalf of any indemnified party.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is for any reason held to be unenforceable by an
indemnified party although applicable in accordance with its terms
(including the requirements of Section 8(c) above), the Offerors and
the Underwriters severally agree to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses
15
reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which the Offerors and one or more of the
Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand
and by the Underwriters on the other from the offering of the Offered
Securities; provided, however, that in no case shall any Underwriter
(except as may be provided in any agreement among underwriters relating
to the offering of the Offered Securities) be responsible for any
amount in excess of the underwriting discount or commission applicable
to the Offered Securities purchased by such Underwriter hereunder;
provided, further, that each Underwriter's obligation to contribute to
Losses hereunder shall be several and not joint. If the allocation
provided by the immediately preceding sentence is unavailable for any
reason, the Offerors and the Underwriters severally shall contribute in
such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Offerors on the one hand
and of the Underwriters on the other in connection with the statements
or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Offerors
shall be deemed to be equal to the total net proceeds from the offering
(before deducting expenses) received, and benefits received by the
Underwriters shall be deemed to be equal to the total underwriting
discounts and commissions, in each case as set forth on the cover page
of the Final Prospectus. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged
untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information provided by the
Offerors on the one hand or the Underwriters on the other, the intent
of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission.
The Offerors and the Underwriters agree that it would not be just and
equitable if contribution were determined by pro rata allocation or any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who
controls an Underwriter within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Offerors within the
meaning of either the Act or the Exchange Act, each officer and
director of the Company and each Trustee of the Trust shall have the
same rights to contribution as the Offerors, subject in each case to
the applicable terms and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Offered Securities agreed to be
purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the
principal amount of Offered Securities set forth opposite their names in
Schedule II hereto bears to the aggregate principal amount of Offered Securities
set forth opposite the names of all the remaining Underwriters) the Offered
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate principal
16
amount of Offered Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase shall exceed 10% of the aggregate principal amount
of Offered Securities set forth in Schedule II hereto, the remaining
Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Offered Securities, and if such nondefaulting
Underwriters do not purchase all the Offered Securities, this Agreement will
terminate without liability to any nondefaulting Underwriter or the Offerors. In
the event of a default by any Underwriter as set forth in this Section 9, the
Closing Date shall be postponed for such period, not exceeding five Business
Days, as the Representatives shall determine in order that the required changes
in the Registration Statement and the Final Prospectus or in any other documents
or arrangements may be effected. Nothing contained in this Agreement shall
relieve any defaulting Underwriter of its liability, if any, to either of the
Offerors and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
10. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the Offerors
prior to delivery of and payment for the Offered Securities, if at any time
prior to such time (i) trading in the common stock of Exelon Corporation shall
have been suspended by the Commission or the New York Stock Exchange, or trading
in securities generally on the New York Stock Exchange shall have been suspended
or limited or minimum prices shall have been established on such Exchange, (ii)
a banking moratorium shall have been declared either by Federal or New York
State authorities, (iii) a major disruption of settlements of securities or
clearance services in the United States shall have occurred, or (iv) there shall
have occurred any outbreak or escalation of hostilities, declaration by the
United States of a national emergency or war, or other calamity or crisis the
effect of which on financial markets is such as to make it, in the sole judgment
of the Representatives, impractical or inadvisable to proceed with the offering
or delivery of the Offered Securities as contemplated by the Final Prospectus
(exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Offerors or their officers and of the Underwriters set forth in or made pursuant
to this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Offerors or any of
the officers, directors, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Offered
Securities. The provisions of Sections 7 and 8 hereof shall survive the
termination or cancelation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to them at the address provided on Schedule I hereto; or,
if sent to the Company or the Trust, will be mailed, delivered or telefaxed to
Exelon Corporation, 10 South Dearborn Street, 37th Floor, P.O. Box 805379,
Chicago, Illinois 60680-5379, Attention: Vice President and Treasurer (fax no.:
(312) 394-5440) and confirmed to the General Counsel (fax no.: (215) 568-3389).
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
17
14. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Agreement" shall mean this Underwriting Agreement including all
schedules attached hereto and made a part hereof.
"Basic Prospectus" shall mean the prospectus referred to in
paragraph 1(a) above contained in the Registration Statement at the Effective
Date including any Preliminary Prospectus.
"Business Day" shall mean any day other than a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Certificate of Trust" shall mean the certificate of trust filed
with the State of Delaware on May 9, 2003.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement relating to
the Securities that was first filed pursuant to Rule 424(b) after the Execution
Time, together with the Basic Prospectus.
18
"Investment Company Act" shall mean the Investment Company Act of
1940, as amended, and the rules and regulations of the Commission promulgated
thereunder.
"NYSE" shall mean the New York Stock Exchange.
"Preliminary Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus, together
with the Basic Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration Statement,
as the case may be. Such term shall include any Rule 430A Information deemed to
be included therein at the Effective Date as provided by Rule 430A.
"Rule 415," "Rule 424," "Rule 430A" and "Rule 462" refer to such
rules under the Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating to
the offering covered by the registration statement referred to in Section 1(a)
hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended and the rules and regulations of the Commission promulgated thereunder.
[signature page follows]
19
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company, the Trust and the several Underwriters.
Very truly yours,
EXELON CORPORATION
By:_______________________________________
Name:
Title:
EXELON CAPITAL TRUST __
By:_______________________________________
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date
specified in Schedule I hereto.
[INSERT UNDERWRITER]
By:__________________________________________________
Name:
Title:
[INSERT UNDERWRITER]
By:__________________________________________________
Name:
Title:
For themselves and the other
several Underwriters named
in Schedule II to the
foregoing Agreement.
SCHEDULE I
Underwriting Agreement, dated _______________, 2003
Registration Statement No. 333-
Representatives:__[Insert Underwriters]
Number and Description of Offered Securities:
Number:
Purchase Price:
Interest Rate: %
Initial Public Offering
Price: $
Dealer Discount: $ per security
Reallowance to Dealers: $ per security
Sinking Fund Provisions: None
Other Provisions:
Time and Date of Delivery and Payment:
Time and Date --- :00AM EST
, 2003
Place of Delivery:
Delivery --- Ballard Spahr Andrews & Ingersoll, LLP
1735 Market Street, 51st Floor
Philadelphia, PA 19103-7599
Date referred to in Section 5(f) after which the Company may offer or sell
securities issued or guaranteed by the Company without the consent of the
Representative(s): _________________, 2003
Address for Notices to Representatives pursuant to Section 12 of Underwriting
Agreement:
c/o [Underwriter name & address]
Attention:
SCHEDULE II
Number of
Preferred
Securities to
Underwriters be Purchased
- ------------ --------------
................................................
................................................
................................................
................................................
Total........................
Exhibit 4-3
INDENTURE
by and between
EXELON CORPORATION
and
Chase Manhattan Trust Company, National Association
Dated as of May 1, 2001
TABLE OF CONTENTS
Page
ARTICLE I Definitions.............................................................................................1
SECTION 1.1. Certain Terms Defined.............................................................................1
ARTICLE II Securities.............................................................................................4
SECTION 2.1. Forms Generally...................................................................................4
SECTION 2.2. Form Of Trustee's Certificate Of Authentication...................................................4
SECTION 2.3. Amount Unlimited; Issuable In Series..............................................................5
SECTION 2.4. Authentication And Delivery Of Securities.........................................................6
SECTION 2.5. Execution Of Securities...........................................................................8
SECTION 2.6. Certificate Of Authentication.....................................................................8
SECTION 2.7. Denomination And Date Of Securities; Payment Of Interest..........................................8
SECTION 2.8. Registration, Transfer And Exchange...............................................................9
SECTION 2.9. Mutilated, Defaced, Destroyed, Lost And Stolen Securities........................................11
SECTION 2.10. Cancellation Of Securities; Destruction Thereof.................................................11
SECTION 2.11. Temporary Securities............................................................................12
ARTICLE III Covenants Of The Issuer..............................................................................12
SECTION 3.1. Payment Of Principal And Interest................................................................12
SECTION 3.2. Offices For Payments, Etc........................................................................12
SECTION 3.3. Appointment To Fill A Vacancy In Office Of Trustee...............................................13
SECTION 3.4. Paying Agents....................................................................................13
SECTION 3.5. Compliance Certificates..........................................................................13
SECTION 3.6. Corporate Existence..............................................................................14
SECTION 3.7. Payment Of Taxes And Other Claims................................................................14
SECTION 3.8. The Issuer May Not Merge.........................................................................14
ARTICLE IV Securityholder Lists And Reports By The Issuer And The Trustee........................................14
SECTION 4.1. Issuer To Furnish Trustee Information As To Names And Addresses Of Securityholders...............14
SECTION 4.2. Reports By The Issuer............................................................................15
SECTION 4.3. Reports By The Trustee...........................................................................15
ARTICLE V Remedies Of The Trustee And Securityholders On Event Of Default........................................16
SECTION 5.1. Event Of Default Defined, Acceleration Of Maturity; Waiver Of Default............................16
SECTION 5.2. Collection Of Indebtedness By Trustee; Trustee May Prove Debt....................................18
SECTION 5.3. Application Of Proceeds..........................................................................20
SECTION 5.4. Suits For Enforcement............................................................................20
SECTION 5.5. Restoration Of Rights On Abandonment Of Proceedings..............................................20
SECTION 5.6. Limitations On Suits By Securityholders..........................................................21
SECTION 5.7. Unconditional Right Of Securityholders To Institute Certain Suits................................21
SECTION 5.8. Powers And Remedies Cumulative; Delay Or Omission Not Waiver Of Default..........................21
SECTION 5.9. Control By Holders Of Securities.................................................................21
SECTION 5.10. Waiver Of Past Defaults.........................................................................22
SECTION 5.11. Trustee To Give Notice Of Default, But May Withhold In Certain Circumstances....................22
SECTION 5.12. Waiver of Stay or Extension Laws................................................................22
SECTION 5.13. Right Of Court To Require Filing Of Undertaking To Pay Costs....................................23
ARTICLE VI Concerning The Trustee................................................................................23
SECTION 6.1. Duties And Responsibilities Of The Trustee; During Default; Prior To Default.....................23
SECTION 6.2. Certain Rights Of The Trustee....................................................................24
SECTION 6.3. Trustee Not Responsible For Recitals, Disposition Of Securities Or Application Of Proceeds
Thereof.................................................................................................25
SECTION 6.4. Trustee And Agents May Hold Securities; Collections, Etc.........................................25
SECTION 6.5. Held By Trustee..................................................................................25
i
SECTION 6.6. Compensation And Indemnification Of Trustee And Its Prior Claim..................................25
SECTION 6.7. Right Of Trustee To Rely On Officer's Certificate, Etc...........................................26
SECTION 6.8. Indentures Not Creating Potential Conflicting Interests For The Trustee..........................26
SECTION 6.9. Qualification Of Trustee; Conflicting Interests..................................................26
SECTION 6.10. Persons Eligible For Appointment As Trustee.....................................................26
SECTION 6.11. Resignation And Removal; Appointment Of Successor Trustee.......................................26
SECTION 6.12. Acceptance Of Appointment By Successor Trustee..................................................27
SECTION 6.13. Merger, Conversion, Consolidation Or Succession To Business Of Trustee..........................28
SECTION 6.14. Preferential Collection Of Claims Against The Issuer............................................28
SECTION 6.15. Appointment Of Authenticating Agent.............................................................28
ARTICLE VII Concerning The Securityholders.......................................................................29
SECTION 7.1. Evidence Of Action Taken By Securityholders......................................................29
SECTION 7.2. Proof Of Execution Of Instruments And Of Holding Of Securities...................................30
SECTION 7.3. Holders To Be Treated As Owners..................................................................30
SECTION 7.4. Securities Owned By Issuer Deemed Not Outstanding................................................30
SECTION 7.5. Right Of Revocation Of Action Taken..............................................................31
ARTICLE VIII Supplemental Indentures.............................................................................31
SECTION 8.1. Supplemental Indentures Without Consent Of Securityholders.......................................31
SECTION 8.2. Supplemental Indentures With Consent Of Securityholders..........................................32
SECTION 8.3. Effect Of Supplemental Indenture.................................................................33
SECTION 8.4. Documents To Be Given To Trustee.................................................................33
SECTION 8.5. Notation On Securities In Respect Of Supplemental Indentures.....................................33
ARTICLE IX Satisfaction And Discharge Of Indenture; Unclaimed Moneys............................................33
SECTION 9.1. Satisfaction And Discharge Of Indenture..........................................................33
SECTION 9.2. Application By Trustee Of Funds Deposited For Payment Of Securities..............................36
SECTION 9.3. Repayment Of Moneys Held By Paying Agent.........................................................36
SECTION 9.4. Return Of Moneys Held By Trustee And Paying Agent Unclaimed For Two Years........................37
SECTION 9.5. Indemnity For U.S. Government Of Obligations.....................................................37
ARTICLE X Miscellaneous Provisions...............................................................................37
SECTION 10.1. Incorporators, Shareholders, Officers And Directors Of Issuer Exempt From Individual Liability..37
SECTION 10.2. Provisions Of Indenture For The Sole Benefit Of Parties And Holders Of Securities...............37
SECTION 10.3. Successors And Assigns Of Issuer Bound By Indenture.............................................37
SECTION 10.4. Notices And Demands On Issuer, Trustee And Holders Of Securities................................38
SECTION 10.5. Officer's Certificates And Opinions Of Counsel; Statements To Be Contained Therein..............38
SECTION 10.6. Payments Due On Saturdays, Sundays And Holidays.................................................39
SECTION 10.7. Conflict Of Any Provision Of Indenture With Trust Indenture Act.................................39
SECTION 10.8. PENNSYLVANIA LAW TO GOVERN......................................................................39
SECTION 10.9. Counterparts....................................................................................39
SECTION 10.10. Effect Of Headings.............................................................................39
ARTICLE XI Redemption Of Securities And Sinking Funds............................................................39
SECTION 11.1. Applicability Of Article........................................................................39
SECTION 11.2. Notice Of Redemption; Partial Redemptions.......................................................39
SECTION 11.3. Payment Of Securities Called For Redemption.....................................................40
SECTION 11.4. Exclusion Of Certain Securities From Eligibility For Selection For Redemption...................41
SECTION 11.5. Mandatory And Optional Sinking Funds............................................................41
ii
THIS INDENTURE, dated as of May 1, 2001, by and between EXELON
CORPORATION, a Pennsylvania corporation (the "Issuer"), and CHASE MANHATTAN
TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association, as trustee
(the "Trustee"),
W I T N E S S E T H:
WHEREAS, the Issuer has duly authorized the issue from time to time of
its unsecured debentures, notes or other evidences of indebtedness to be issued
in one or more series (the "Securities") up to such principal amount or amounts
as may from time to time be authorized in accordance with the terms of this
Indenture;
WHEREAS, the Issuer has duly authorized the execution and delivery of
this Indenture to provide, among other things, for the authentication, delivery
and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been done;
NOW, THEREFORE, in consideration of the premises and the purchases of
the Securities by the holders thereof, and intending to be legally bound hereby,
the Issuer and the Trustee mutually covenant and agree for the equal and
proportionate benefit of the respective holders from time to time of the
Securities and of the coupons, if any, appertaining thereto as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms
used in this Indenture that are defined in the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), or the definitions of which in the
Securities Act of 1933, as amended (the "Securities Act"), are referred to in
the Trust Indenture Act, including terms defined therein by reference to the
Securities Act (except as herein otherwise expressly provided or unless the
context otherwise requires), shall have the meaning assigned to such terms in
the Trust Indenture Act and in the Securities Act as in effect from time to
time. All accounting terms used herein and not expressly defined shall have the
meanings assigned to such terms in accordance with generally accepted accounting
principles, and the term "generally accepted accounting principles" means such
accounting principles as are generally accepted at the time of any computation
unless a different time shall be specified with respect to such series of
Securities as provided for in Section 2.3. The words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Indenture as a whole
and not to any particular Article, Section or other subdivision. The terms
defined in this Article have the meanings assigned to them in this Article and
include the plural as well as the singular.
"Affiliate" has the same meaning as given to that term in Rule 405 of
the Securities Act or any successor provision.
"Authenticating Agent" shall have the meaning set forth in Section
6.15.
"Board of Directors" means either the Board of Directors of the Issuer
or any committee of such Board duly authorized to act on its behalf.
"Board Resolution" means a copy of one or more resolutions, certified
by the secretary or an assistant secretary of the Issuer to have been duly
adopted or consented to by the Board of Directors and to be in full force and
effect, and delivered to the Trustee.
"Business Day" means, with respect to any Security, a day that is not a
day on which banking institutions in the city (or in any of the cities, if more
than one) in which amounts are payable, as specified in the form of such
1
Security, or in which the Corporate Trust Office of the Trustee is located, are
authorized or required by any applicable law or regulation to be closed.
"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 and delivery of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties on such date.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, as of the date of this Indenture,
located at 250 W. Huron Road, Suite 220, Cleveland, Ohio 44113.
"Covenant Defeasance" shall have the meaning set forth in Section
9.1(d).
"Depository" means, with respect to the Securities of any series
issuable or issued in the form of one or more Registered Global Securities, the
Person designated as Depository by the Issuer pursuant to Section 2.3 until a
successor Depository shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depository" shall mean or include
each Person who is then a Depository hereunder, and if at any time there is more
than one such Person, "Depository" as used with respect to the Securities of any
such series shall mean the Depository with respect to the Registered Global
Securities of that series.
"Dollar" or "$" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"Event of Default" means any event or condition specified as such in
Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Holder," "Holder of Securities," "Securityholder" or any other similar
term means the person in whose name such Security is registered in the security
register kept by the Issuer for that purpose in accordance with the terms
hereof.
"Indenture" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended or supplemented
or both, and shall include the forms and terms of particular series of
Securities established as contemplated hereunder.
"IRS" means the Internal Revenue Service of the United States
Department of the Treasury, or any successor entity.
"Issuer" means Exelon Corporation, a Pennsylvania corporation, and its
successors and assigns.
"Issuer Order" means a written statement, request or order of the
Issuer signed in its name by the chairman of the Board of Directors, the
president, any vice president or the treasurer of the Issuer.
"Non-U.S. Person" means any person that is not a "U.S. person" as such
term is defined in Rule 902 of the Securities Act.
"Officer's Certificate" means a certificate signed by the chairman of
the Board of Directors, the president or any vice president or the treasurer of
the Issuer and delivered to the Trustee. Each such certificate shall comply with
Section 314 of the Trust Indenture Act and include the statements provided for
in Section 10.5.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel who may be an employee of the Issuer or other counsel satisfactory to
the Trustee. Each such opinion shall comply with Section 314 of the Trust
Indenture Act and include the statements provided for in Section 10.5.
2
"Original Issue Date" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to Section 5.1.
"Outstanding" (except as otherwise provided in Section 7.4), when used
with reference to Securities, means, subject to the provisions of Section 7.4,
as of any particular time, all Securities authenticated and delivered by the
Trustee under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of
which moneys or U.S. Government Obligations (as provided for in
Section 9.1) in the necessary amount shall have been deposited in
trust with the Trustee or with any paying agent (other than the
Issuer) or shall have been set aside, segregated and held in trust
by the Issuer for the Holders of such Securities (if the Issuer
shall act as its own paying agent), PROVIDED, that if such
Securities, or portions thereof, are to be redeemed prior to the
maturity thereof, notice of such redemption shall have been given as
herein provided, or provisions satisfactory to the Trustee shall
have been made for giving such notice; and
(c) Securities which shall have been paid or in substitution for which
other Securities shall have been authenticated and delivered
pursuant to the terms of Section 2.9 (except with respect to any
such Security as to which proof satisfactory to the Trustee is
presented that such Security is held by a person in whose hands such
Security is a legal, valid and binding obligation of the Issuer). In
determining whether the Holders of the requisite principal amount of
Outstanding Securities of any or all series have given any request,
demand, authorization, direction, notice, consent or waiver
hereunder, the principal amount of an Original Issue Discount
Security that shall be deemed to be Outstanding for such purposes
shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon a declaration of
acceleration of the maturity thereof pursuant to Section 5.1.
"Periodic Offering" means an offering of Securities of a series from
time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the stated maturity
or maturities thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Issuer or its agents upon the issuance of
such Securities.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Principal" whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and premium, if
any," PROVIDED, HOWEVER, that such inclusion of premium, if any, shall under no
circumstances result in the double counting of such premium for the purpose of
any calculation required hereunder.
"Record date" shall have the meaning set forth in Section 2.7.
"Registered Global Security" means a Security evidencing all or a part
of a series of Registered Securities, issued to the Depository for such series
in accordance with Section 2.4, and bearing the legend prescribed in Section 2.4
and any other legend required by the Depository for such series.
"Registered Security" means any Security registered on the Security
register of the Issuer.
3
"Responsible Officer" when used with respect to the Trustee means any
officer of the Trustee assigned to administer corporate trust matters to whom
any corporate trust matter is referred because of his or her knowledge of and
familiarity with the particular subject.
"Security" or "Securities" (except as otherwise provided in Section
7.4) has the meaning stated in the first recital of this Indenture, or, as the
case may be, Securities that have been authenticated and delivered under this
Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Subsidiary" means any corporation or other entity of which at least a
majority of the outstanding stock having the voting power to elect a majority of
the Board of Directors of such corporation (irrespective of whether or not at
the time stock of any other class or classes of such corporation shall have or
might have voting power by reason of the happening of any contingency) is at the
time of determination directly or indirectly owned by the Issuer, or by one or
more of its Subsidiaries, or by the Issuer and one or more of its Subsidiaries.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article VI, shall also
include any successor trustee. "Trustee" shall also mean or include each Person
who is then a trustee hereunder, and, if at any time there is more than one such
Person, "Trustee" as used with respect to the Securities of any series shall
mean the trustee with respect to the Securities of such series.
"U.S. Government Obligations" shall have the meaning set forth in
Section 9.1(A).
"Yield to Maturity" means the yield to maturity on a series of
securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
ARTICLE II
SECURITIES
SECTION 2.1. Forms Generally. The Securities of each series shall be
substantially in such form (not inconsistent with this Indenture) as shall be
established by or pursuant to one or more Board Resolutions (as set forth in a
Board Resolution or, to the extent established pursuant to but not set forth in
a Board Resolution, an Officer's Certificate detailing such establishment), in
each case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture and may have imprinted
or otherwise reproduced thereon such legend or legends or endorsements, not
inconsistent with the provisions of this Indenture, as may be required to comply
with any law or with any rules or regulations pursuant thereto, or with any
rules of any securities exchange or to conform to general usage, all as may be
determined by the officers executing such Securities, as evidenced by their
execution of such Securities. The definitive Securities shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities as
evidenced by their execution of such Securities.
SECTION 2.2. Form Of Trustee's Certificate Of Authentication. The
Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
"This is one of the Securities referred to in the within-mentioned
Indenture.
By
---------------------------
Authorized Signatory"
If at any time there shall be an Authenticating Agent appointed with
respect to any series of Securities, then the Trustee's Certificate of
Authentication to be borne by the Securities of each such series shall be
substantially as follows:
4
"This is one of the Securities referred to in the within-mentioned
Indenture.
--------------------------------
as Authenticating Agent
By
--------------------------------
Authorized Signatory"
SECTION 2.3. Amount Unlimited; Issuable In Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to one or more Board Resolutions (and to the extent
established pursuant to but not set forth in a Board Resolution, in an Officer's
Certificate detailing such establishment), prior to the initial issuance of
Securities of any series,
(1) the designation of the Securities of the series, which shall
distinguish the Securities of the series from the Securities of all
other series, and which may be part of a series of Securities
previously issued;
(2) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of,
other Securities of the series pursuant to Section 2.8, 2.9, 2.11,
8.5 or 11.3);
(3) the date or dates on which the principal of the Securities of the
series is payable which may range from nine months to 30 years for
medium term debt securities and 30 years or more for long term debt
securities;
(4) the rate or rates at which the Securities of the series shall bear
interest, if any, the date or dates from which such interest shall
accrue, on which such interest shall be payable, the terms and
conditions of any deferral of interest and the additional interest,
if any, thereon, the right, if any, of the Issuer to extend the
interest payment periods and the duration of the extensions and (in
the case of Registered Securities) the date or dates on which a
record shall be taken for the determination of Holders to whom
interest is payable and/or the method by which such rate or rates or
date or dates shall be determined;
(5) the place or places where and the manner in which, the principal of
and any interest on Securities of the series shall be payable, if
other than as provided in Section 3.2;
(6) the right, if any, of the Issuer to redeem Securities, in whole or
in part, at its option and the period or periods within which, or
the date or dates on which, the price or prices at which and any
terms and conditions upon which Securities of the series may be so
redeemed, pursuant to any sinking fund or otherwise;
(7) the obligation, if any, of the Issuer to redeem, purchase or repay
Securities of the series pursuant to any mandatory redemption,
sinking fund or analogous provisions or at the option of a Holder
thereof, and the price or prices at which and the period or periods
within which or the date or dates on which and any terms and
conditions upon which Securities of the series shall be redeemed,
purchased or repaid, in whole or in part, pursuant to such
obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof;
(9) the percentage of the principal amount at which the Securities will
be issued, and, if other than the principal amount thereof, the
portion of the principal amount of Securities of the series which
shall be payable upon declaration of acceleration of the maturity
thereof;
5
(10) whether the Securities of the series will be issuable as
unregistered securities (with or without coupons), any restrictions
applicable to the offer, sale or delivery of unregistered securities
or the payment of interest thereon and, the terms upon which
unregistered securities of any series may be exchanged for
Registered Securities of such series and vice versa;
(11) whether and under what circumstances the Issuer will pay additional
amounts on the Securities of the series held by a person who is not
a U.S. person in respect of any tax, assessment or governmental
charge withheld or deducted and, if so, whether the Issuer will have
the option to redeem the Securities of the series rather than pay
such additional amounts;
(12) if the Securities of the series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary
Security of such series) only upon receipt of certain certificates
or other documents or satisfaction of other conditions, the form and
terms of such certificates, documents or conditions;
(13) any trustees, depositories, authenticating or paying agents,
transfer agents or registrars of any other agents with respect to
the Securities of such series;
(14) any deletion from modification of or addition to the Events of
Default or covenants with respect to the Securities of such series;
and
(15) any other terms of the series (which terms shall not be inconsistent
with the provisions of this Indenture).
All Securities of any one series shall be substantially identical,
except in the case of Registered Securities as to denomination and except as may
otherwise be provided by or pursuant to the Board Resolution or Officer's
Certificate referred to above. All Securities of any one series need not be
issued at the same time and may be issued from time to time, consistent with the
terms of this Indenture, if so provided by or pursuant to such Board Resolution
or such Officer's Certificate.
SECTION 2.4. Authentication And Delivery Of Securities. The Issuer may
deliver Securities of any series executed by the Issuer to the Trustee for
authentication together with the applicable documents referred to below in this
Section 2.4, and the Trustee shall thereupon authenticate and deliver such
Securities to or upon the order of the Issuer (contained in the Issuer Order
referred to below in this Section) or pursuant to such procedures acceptable to
the Trustee and to such recipients as may be specified from time to time by an
Issuer Order. The maturity date, original issue date, interest rate and any
other terms of the Securities of such series shall be determined by or pursuant
to such Issuer Order and procedures. If provided for in such procedures, such
Issuer Order may authorize authentication and delivery pursuant to oral or
electronic instructions from the Issuer or its duly authorized agent or agents,
which instructions, if oral, shall be promptly confirmed in writing. In
authenticating such Securities and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive (in the case of subparagraphs (2), (3) and (4) below only at
or before the time of the first request of the Issuer to the Trustee to
authenticate Securities of such series) and (subject to Section 6.1) shall be
fully protected in relying upon, the following enumerated documents unless and
until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth
delivery instructions if the Securities are not to be delivered to the
Issuer, PROVIDED that, with respect to Securities of a series subject
to a Periodic Offering, (a) such Issuer Order may be delivered by the
Issuer to the Trustee prior to the delivery to the Trustee of such
Securities for authentication and delivery, (b) the Trustee shall
authenticate and deliver Securities of such series for original issue
from time to time, in an aggregate principal amount not exceeding the
aggregate principal amount established for such series, pursuant to an
Issuer Order or pursuant to procedures acceptable to the Trustee as
may be specified from time to time by an Issuer Order, (c) the
maturity date or dates, original issue date or dates, interest rate or
rates and any other terms of Securities of such series shall be
determined by an Issuer Order or pursuant to such procedures and (d)
if provided for in such procedures, such Issuer Order may authorize
authentication and delivery
6
pursuant to oral or electronic instructions from the Issuer or its
duly authorized agent or agents, which instructions, if oral, shall
be promptly confirmed in writing;
(2) any Board Resolution and/or Officer's Certificate referred to in
Section 2.1 and 2.3 by or pursuant to which the forms and terms of the
Securities were established;
(3) an Officer's Certificate setting forth the form or forms and terms of
the Securities stating that the form or forms and terms of the
Securities have been established pursuant to Sections 2.1 and 2.3 and
comply with this Indenture, and covering such other matters as the
Trustee may reasonably request; and
(4) At the option of the Issuer, either one or more Opinions of Counsel,
or a letter addressed to the Trustee permitting it to rely on one or
more Opinions of Counsel, substantially to the effect that:
(a) the form or forms of the Securities have been duly
authorized and established in conformity with the provisions
of this Indenture;
(b) in the case of an underwritten offering, the terms of the
Securities have been duly authorized and established in
conformity with the provisions of this Indenture, and, in
the case of an offering that is not underwritten, certain
terms of the Securities have been established pursuant to a
Board Resolution or an Officer's Certificate in accordance
with this Indenture, and when such other terms as are to be
established pursuant to procedures set forth in an Issuer
Order shall have been established, all such terms will have
been duly authorized by the Issuer and will have been
established in conformity with the provisions of this
Indenture; and
(c) such Securities when executed by the Issuer and
authenticated by the Trustee in accordance with the
provisions of this Indenture and delivered to and duly paid
for by the purchasers thereof, and subject to any conditions
specified in such Opinion of Counsel, will have been duly
issued under this Indenture, will be entitled to the
benefits of this Indenture, and will be valid and binding
obligations of the Issuer, enforceable in accordance with
their respective terms except as the enforceability thereof
may be limited by (i) bankruptcy, insolvency,
reorganization, liquidation, moratorium, fraudulent transfer
or similar laws affecting creditors' rights generally, (ii)
rights of acceleration, if any, and (iii) the availability
of equitable remedies may be limited by equitable principles
of general applicability and such counsel need express no
opinion with regard to the enforceability of Section 6.6.
In rendering such opinions, any counsel may qualify any opinions as to
enforceability by stating that such enforceability may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium, fraudulent transfer and
other similar laws affecting the rights and remedies of creditors and is subject
to general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law). Such counsel may rely upon
opinions of other counsel (copies of which shall be delivered to the Trustee)
reasonably satisfactory to the Trustee, in which case the opinion shall state
that such counsel believes he and the Trustee are entitled so to rely. Such
counsel may also state that, insofar as such opinion involves factual matters,
he has relied, to the extent he deems proper, upon certificates of officers of
the Issuer and its Subsidiaries and certificates of public officials.
The Trustee shall have the right to decline to authenticate and deliver
any Securities under this Section 2.4 if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken by the Issuer or if the
Trustee in good faith by its board of directors or board of trustees, executive
committee or a trust committee of directors or trustees shall determine that
such action would expose the Trustee to personal liability to existing Holders
or would affect the Trustee's own rights, duties or immunities under the
Securities, this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that the
Securities of a series are to be issued in the form of one or more Registered
Global Securities, then the Issuer shall execute and the Trustee shall, in
accordance with this Section and the Issuer Order with respect to such series,
authenticate and deliver one or more Registered Global Securities that (i) shall
represent and shall be denominated in an amount equal to the aggregate principal
amount
7
of all of the Securities of such series issued and not yet canceled, (ii) shall
be registered in the name of the Depository for such Registered Global Security
or Securities or the nominee of such Depository, (iii) shall be delivered by the
Trustee to such Depository or delivered or held pursuant to such Depository's
instructions and (iv) shall bear a legend substantially to the following effect:
"Unless and until it is exchanged in whole or in part for Securities in
definitive registered form, this Security may not be transferred except as a
whole by the Depository to the nominee of the Depository or by a nominee of the
Depository to the Depository or another nominee of the Depository or by the
Depository or any such nominee to a successor Depository or a nominee of such
successor Depository."
Each Depository designated pursuant to Section 2.3 must, at the time of
its designation and at all times while it serves as Depository, be a clearing
agency registered under the Exchange Act and any other applicable statute or
regulation.
SECTION 2.5. Execution Of Securities. The Securities shall be signed
on behalf of the Issuer by the chairman or vice chairman of its Board of
Directors or its president, or any executive (senior or other), a vice president
or its treasurer, under its corporate seal which may, but need not, be attested.
Such signatures may be the manual or facsimile signatures of the present or any
future such officers. The seal of the Issuer may be in the form of a facsimile
thereof and may be impressed, affixed, imprinted or otherwise reproduced on the
Securities. Typographical and other minor errors or defects in any such
reproduction of the seal or any such signature shall not affect the validity or
enforceability of any Security that has been duly authenticated and delivered by
the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall be
authenticated and delivered by the Trustee or disposed of by the Issuer, such
Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Issuer; and any Security may be signed on behalf of the Issuer by such
persons as, at the actual date of the execution of such Security shall be the
proper officers of the Issuer, although at the date of the execution and
delivery of this Indenture any such person was not such an officer.
SECTION 2.6. Certificate Of Authentication. Only such Securities as
shall bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee by the manual signature of one of
its authorized officers, shall be entitled to the benefits of this Indenture or
be valid or obligatory for any purpose. The execution of such certificate by the
Trustee upon any Security executed by the Issuer shall be conclusive evidence
that the Security so authenticated has been duly authenticated and delivered
hereunder and that the Holder is entitled to the benefits of this Indenture.
SECTION 2.7. Denomination And Date Of Securities; Payment Of Interest.
Unless otherwise provided in Section 2.3, the Securities of each series shall be
issuable as Registered Securities in denominations of $1,000 and any integral
multiple thereof. The Securities of each series shall be numbered, lettered or
otherwise distinguished in such manner or in accordance with such plan as the
officers of the Issuer executing the same may determine with the approval of the
Trustee, as evidenced by the execution and authentication thereof.
Each Registered Security shall be dated the date of its
authentication. The Securities of each series shall bear interest, if any, from
the date, and such interest shall be payable on the dates, established as
contemplated by Section 2.3.
The person in whose name any Registered Security of any series is
registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest payment date,
except if and to the extent the Issuer shall default in the payment of the
interest due on such interest payment date for such series, in which case such
defaulted interest shall be paid to the persons in whose names Outstanding
Registered Securities for such series are registered at the close of business on
a subsequent record date (which shall be not less than five Business Days prior
to the date of payment of such defaulted interest) established by notice given
by mail by or on behalf of the Issuer to the Holders of Registered Securities
not less than 15 days preceding such subsequent record date. The term "record
date" as used with respect to any interest payment date (except a date for
payment of defaulted interest) for the Securities of any series shall mean the
date specified as such in the terms of the Registered
8
Securities of such series established as contemplated by Section 2.3, or, if no
such date is so established, if such interest payment date is the first day of a
calendar month, the fifteenth day of the preceding calendar month or, if such
interest payment date is the fifteenth day of a calendar month, the first day of
such calendar month, whether or not such record date is a Business Day.
SECTION 2.8. Registration, Transfer And Exchange. The Issuer will keep
at each office or agency to be maintained for the purpose as provided in Section
3.2 for each series of Securities a register or registers in which, subject to
such reasonable regulations as the Issuer may prescribe, it will provide for the
registration of Registered Securities of such series and the registration of
transfer of Registered Securities of such series. Such register shall be in
written form in the English language or in any other form capable of being
converted into such form within a reasonable time. At all reasonable times such
register or registers shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of any Registered
Security of any series at any such office or agency to be maintained for the
purpose as provided in Section 3.2, the Issuer shall execute and the Trustee
shall authenticate and deliver in the name of the transferee or transferees a
new Registered Security or Registered Securities of the same series, maturity
date, interest rate and original issue date in authorized denominations for a
like aggregate principal amount.
At the option of the Holder thereof, Registered Securities of any
series (other than a Registered Global Security, except as set forth below) may
be exchanged for a Registered Security or Registered Securities of such series
having authorized denominations and an equal aggregate principal amount, upon
surrender of such Registered Securities to be exchanged at the agency of the
Issuer that shall be maintained for such purpose in accordance with Section 3.2
and upon payment, if the Issuer shall so require, of the charges hereinafter
provided. Whenever any Securities are so surrendered for exchange, the Issuer
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive. All Securities
surrendered upon any exchange or transfer provided for in this Indenture shall
be promptly cancelled and disposed of by the Trustee, and the Trustee shall
deliver a certificate of disposition thereof to the Issuer.
All Registered Securities presented for registration of transfer,
exchange, redemption or payment shall (if so required by the Issuer or the
Trustee) be duly endorsed, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Issuer and the Trustee duly
executed, by the Holder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any exchange or
registration of transfer of Securities. No service charge shall be made for any
such transaction.
The Issuer shall not be required to exchange or register a transfer of
(a) any Securities of any series for a period of 15 days preceding the first
mailing of notice of redemption of Securities of such series to be redeemed or
(b) any Securities selected, called or being called for redemption, in whole or
in part, except, in the case of any Security to be redeemed in part, the portion
thereof not so to be redeemed.
Notwithstanding any other provision of this Section 2.8, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Registered Global Security representing all or a portion of
the Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series or
a nominee of such successor Depositary.
If at any time the Depositary for any Registered Securities of a series
represented by one or more Registered Global Securities notifies the Issuer that
it is unwilling or unable to continue as Depositary for such Registered
Securities or if at any time the Depositary for such Registered Securities shall
no longer be eligible under Section 2.4, the Issuer shall appoint a successor
Depositary eligible under Section 2.4 with respect to such Registered
Securities. If a successor Depositary eligible under Section 2.4 for such
Registered Securities is not appointed by the Issuer within 90 days after the
Issuer receives such notice or becomes aware of such ineligibility,
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the Issuer's election pursuant to Section 2.3 that such Registered Securities be
represented by one or more Registered Global Securities shall no longer be
effective and the Issuer will execute, and the Trustee, upon receipt of an
Officer's Certificate for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver, Securities of such
series in definitive registered form in any authorized denominations, in an
aggregate principal amount equal to the principal amount of the Registered
Global Security or Securities representing such Registered Securities in
exchange for such Registered Global Security or Securities.
The Issuer may at any time and in its sole discretion determine that
the Registered Securities of any series issued in the form of one or more
Registered Global Securities shall no longer be represented by a Registered
Global Security or Securities. In such event the Issuer, will execute, and the
Trustee, upon receipt of any Officer's Certificate for the authentication and
delivery of definitive Securities of such series, will authenticate and deliver,
Securities of such series in definitive registered form in any authorized
denominations, in an aggregate principal amount equal to the principal amount of
the Registered Global Security or Securities representing such Registered
Securities, in exchange for such Registered Global Security or Securities.
If specified by the Issuer pursuant to Section 2.3 with respect to
Securities represented by a Registered Global Security, the Depositary for such
Registered Global Security may surrender such Registered Global Security in
exchange in whole or in part for Securities of the same series in definitive
registered form on such terms as are acceptable to the Issuer and such
Depositary. Thereupon, the Issuer shall execute, and the Trustee shall
authenticate and deliver, without service charge:
(i) to the Person specified by such Depositary a new Registered Security or
Securities of the same series, of any authorized denominations as
requested by such Person, in an aggregate principal amount equal to and
in exchange for such Person's beneficial interest in the Registered
Global Security; and
(ii) to such Depositary a new Registered Global Security in a denomination
equal to the difference, if any, between the principal amount of the
surrendered Registered Global Security and the aggregate principal
amount of Registered Securities authenticated and delivered pursuant to
clause (i) above.
Upon the exchange of a Registered Global Security for Securities in
definitive registered form in authorized denominations, such Registered Global
Security shall be cancelled by the Trustee or an agent of the Issuer or the
Trustee. Securities in definitive registered form issued in exchange for a
Registered Global Security pursuant to this Section 2.8 shall be registered in
such names and in such authorized denominations as the Depositary for such
Registered Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee or an agent of the Issuer
or the Trustee. The Trustee or such agent shall deliver such Securities to or as
directed by the Persons in whose names such Securities are so registered.
All Securities issued upon any transfer or exchange of Securities shall
be valid obligations of the Issuer, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Securities surrendered upon such
transfer or exchange.
SECTION 2.9. Mutilated, Defaced, Destroyed, Lost And Stolen
Securities. In case any temporary or definitive Security shall be mutilated,
defaced, destroyed, lost or stolen, the Issuer in its discretion may execute
and, upon the written request of any officer of the Issuer, the Trustee shall
authenticate and deliver, a new Security of the same series, maturity date,
interest rate and original issue date, bearing a number or other distinguishing
symbol not contemporaneously outstanding, in exchange and substitution for the
mutilated or defaced Security, or in lieu of and in substitution for the
Security so destroyed, lost or stolen. In every case, the applicant for a
substitute Security shall furnish to the Issuer and to the Trustee and any agent
of the Issuer or the Trustee such security or indemnity as may be required by
them to indemnify and defend and to save each of them harmless and, in every
case of destruction, loss or theft, evidence to their satisfaction of the
destruction, loss or theft of such Security and of the ownership thereof, and in
the case of mutilation or defacement shall surrender the Security to the Trustee
or such agent.
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Upon the issuance of any substitute Security, the Issuer 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) or its agent connected therewith. In case any
Security which has matured or is about to mature or has been called for
redemption in full shall become mutilated or defaced or be destroyed, lost or
stolen, the Issuer may, instead of issuing a substitute Security, pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated or defaced Security), if the applicant for such payment shall
furnish to the Issuer and to the Trustee and any agent of the Issuer or the
Trustee such security or indemnity as any of them may require to save each of
them harmless, and, in every case of destruction, loss or theft, the applicant
shall also furnish to the Issuer and the Trustee and any agent of the Issuer or
the Trustee evidence to their satisfaction of the destruction, loss or theft of
such Security and of the ownership thereof.
Every substitute Security of any series issued pursuant to the
provisions of this Section by virtue of the fact that any such Security is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Issuer, whether or not the destroyed, lost or stolen Security shall be at
any time enforceable by anyone and shall be entitled to all the benefits of (but
shall be subject to all the limitations of rights set forth in) this Indenture
equally and proportionately with any and all other Securities of such series
duly authenticated and delivered hereunder. All Securities shall be held and
owned upon the express condition that, to the extent permitted by law, the
foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, defaced or destroyed, lost or stolen Securities and shall preclude
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 2.10. Cancellation Of Securities; Destruction Thereof. All
Securities surrendered for payment, redemption, registration of transfer or
exchange, or for credit against any payment in respect of a sinking or analogous
fund, if any, if surrendered to the Issuer or any agent of the Issuer or the
Trustee or any agent of the Trustee, shall be delivered to the Trustee or its
agent for cancellation or, if surrendered to the Trustee, shall be canceled by
it; and no Securities shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Indenture. The Trustee or its agent
shall dispose of canceled Securities held by it and, upon written request
therefore, shall deliver a certificate of disposition to the Issuer. If the
Issuer or its agent shall acquire any of the Securities, such acquisition shall
not operate as a redemption or satisfaction of the indebtedness represented by
such Securities unless and until the same are delivered to the Trustee or its
agent for cancellation.
SECTION 2.11. Temporary Securities. Pending the preparation of
definitive Securities for any series, the Issuer may execute and the Trustee
shall authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable as Registered Securities without coupons of any authorized
denomination, and substantially in the form of the definitive Securities of such
series but with such omissions, insertions and variations as may be appropriate
for temporary Securities, all as may be determined by the Issuer with the
concurrence of the Trustee as evidenced by the execution and authentication
thereof. Temporary Securities may contain such references to any provisions of
this Indenture as may be appropriate. Every temporary Security shall be executed
by the Issuer and be authenticated by the Trustee upon the same conditions and
in substantially the same manner, and with like effect, as the definitive
Securities. Without unreasonable delay, the Issuer shall execute and shall
furnish definitive Securities of such series and thereupon temporary Registered
Securities of such series may be surrendered in exchange therefor without charge
at each office or agency to be maintained by the Issuer for that purpose
pursuant to Section 3.2 and the Trustee shall authenticate and deliver in
exchange for such temporary Securities of such series an equal aggregate
principal amount of definitive Securities of the same series having authorized
denominations. Until so exchanged, the temporary Securities of any series shall
be entitled to the same benefits under this Indenture as definitive Securities
of such series, unless otherwise established pursuant to Section 2.3.
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ARTICLE III
COVENANTS OF THE ISSUER
SECTION 3.1. Payment Of Principal And Interest. The Issuer covenants
and agrees for the benefit of each series of Securities that it will duly and
punctually pay or cause to be paid the principal of (and premium, if any), and
interest on, each of the Securities of such series (together with any additional
amounts payable pursuant to the terms of such Securities) at the place or
places, at the respective time or times and in the manner provided in such
Securities in this Indenture. The interest, if any, on Registered Securities
(together with any additional amounts payable pursuant to the terms of such
Securities) shall be payable only to or upon the written order of the Holders
thereof and, at the option of the Issuer, may be paid by wire transfer or by
mailing checks for such interest payable to or upon the written order of such
Holders at their last addresses as they appear on the Securities register of the
Issuer.
SECTION 3.2. Offices For Payments, Etc. So long as any Registered
Securities (other than Global Registered Securities) are authorized for issuance
pursuant to this Indenture or are outstanding hereunder, the Issuer will
maintain in New York, an office or agency where the Registered Securities of
each series may be presented for payment, where the Securities of each series
may be presented for exchange as is provided in this Indenture and, if
applicable, pursuant to Section 2.3 and where the Registered Securities of each
series may be presented for registration of transfer as in this Indenture
provided.
Notices and demands to or upon the Issuer in respect of the Securities
of any series or this Indenture may be served on the Issuer at the corporate
trust office of the Trustee.
The Issuer will give to the Trustee written notice of the location of
each such office or agency and of any change of location thereof. In case the
Issuer shall fail to maintain any agency required by this Section to be located
in New York, or shall fail to give such notice of the location or for any change
in the location of any of the above agencies, presentations and demands may be
made and notices may be served at the Corporate Trust Office of the Trustee.
The Issuer may from time to time designate one or more additional
offices or agencies where the Securities of a series may be presented for
payment, where the Securities of that series may be presented for exchange as
provided in this Indenture and pursuant to Section 2.3 and where the Registered
Securities of that series may be presented for registration of transfer as in
this Indenture provided, and the Issuer may from time to time rescind any such
designation, as the Issuer may deem desirable or expedient; PROVIDED, that no
such designation or rescission shall in any manner relieve the Issuer of its
obligations to maintain the agencies provided for in this Section. The Issuer
shall give to the Trustee prompt written notice of any such designation or
rescission thereof.
SECTION 3.3. Appointment To Fill A Vacancy In Office Of Trustee. The
Issuer, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 6.10, a Trustee, so that there
shall at all times be a Trustee with respect to each series of Securities
hereunder.
SECTION 3.4. Paying Agents. Whenever the Issuer shall appoint a paying
agent other than the Trustee with respect to the Securities of any series, it
will cause 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:
(a) that it will hold all sums received by it as such agent for the payment
of the principal of (and premium, if any) or interest on the Securities
of such series (whether such sums have been paid to it by the Issuer or
by any other obligor on the Securities of such series) in trust for the
benefit of the Holders of the Securities of such series or of the
Trustee;
(b) that it will give the Trustee notice of any failure by the Issuer (or
by any other obligor on the Securities of such series) to make any
payment of the principal of (and premium, if any) or interest on the
Securities of such series when the same shall be due and payable; and
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(c) that it will pay any such sums so held in trust by it to the Trustee
upon the Trustee's written request at any time during the continuance
of the failure referred to in the foregoing clause (b).
The Issuer will, on or prior to each due date of the principal of (and
premium, if any) or interest on the Securities of such series, deposit with the
paying agent a sum sufficient to pay such principal or interest so becoming due,
and (unless such paying agent is the Trustee) the Issuer will promptly notify
the Trustee of any failure to take such action.
If the Issuer shall act as its own paying agent with respect to the
Securities of any series, it will, on or before each due date of the principal
of (and premium, if any) or interest on the Securities of such series, set
aside, segregate and hold in trust for the benefit of the Holders of the
Securities of such series a sum sufficient to pay such principal (and premium,
if any) or interest so becoming due. The Issuer will promptly notify the Trustee
of any failure to take such action.
Anything in this Section to the contrary notwithstanding, but subject
to Section 9.1, the Issuer may at any time, for the purpose of obtaining a
satisfaction and discharge with respect to one or more or all series of
Securities hereunder, or for any other reason, pay or cause to be paid to the
Trustee all sums held in trust for any such series by the Issuer or any paying
agent hereunder, as required by this Section, such sums to be held by the
Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the agreement
to hold sums in trust as provided in this Section is subject to the provisions
of Sections 9.3 and 9.4.
SECTION 3.5. Compliance Certificates. The Issuer will furnish to the
Trustee on or before January 31 in each year (beginning with January 31, 2002) a
brief certificate (which need not comply with Section 10.5) from the principal
executive, financial or accounting officer of the Issuer stating that in the
course of the performance by the signer of his or her duties as an officer of
the Issuer he or she would normally have knowledge of any default or
non-compliance by the Issuer in the performance of any covenants or conditions
contained in this Indenture, stating whether or not he or she has knowledge of
any such default or non-compliance and, if so, describing each such default or
non-compliance of which the signer has knowledge and the nature of such default
or non-compliance.
SECTION 3.6. Corporate Existence. Except as provided in Section 3.8,
the Issuer will do or cause to be done all things necessary to preserve and keep
in full force and effect its corporate existence.
SECTION 3.7. Payment Of Taxes And Other Claims. The Issuer will pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent: (a) all taxes, assessments and governmental charges levied or
imposed upon the Issuer or any Subsidiary or upon the income, profits or
property of the Issuer or any Subsidiary; and (b) all lawful claims for labor,
materials and supplies, which, if unpaid, might by law become a lien upon the
property of the Issuer or any Subsidiary; PROVIDED, that the Issuer shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.
SECTION 3.8. The Issuer May Not Merge. The Issuer may not consolidate
with or merge with or into, or sell, convey, transfer or lease all or
substantially all of its assets (either in one transaction or a series of
transactions) to any Person unless:
(a) the Person formed by or surviving such consolidation or merger or to
which such sale, conveyance, transfer or lease shall have been made
(the "Successor") if other than the Issuer, (a) is organized and
existing under the laws of the United States of America or any State
thereof or the District of Columbia, and (b) shall expressly assume by
a supplemental indenture, executed and delivered to the Trustee, in
form satisfactory to the Trustee, all the obligations of the Issuer
under the Securities and this Indenture;
13
(b) immediately prior to and after giving effect to such transaction (and
treating any indebtedness which becomes an obligation of the Successor
or any Subsidiary as a result of such transaction as having been
incurred by such Successor or such Subsidiary at the time of such
transaction), no Event of Default shall have occurred and be
continuing; and
(c) the Issuer, delivers to the Trustee an Officer's Certificate and an
Opinion of Counsel, each stating that such consolidation, merger, sale,
conveyance, transfer or lease and such supplemental indenture comply
with this Indenture.
The Successor will be the successor to the Issuer, and will be
substituted for, and may exercise every right and power and become the obligor
on the Securities with the same effect as if the Successor had been named, as
the Issuer herein but, in the case of a sale, conveyance, transfer or lease of
all or substantially all of the assets of the Issuer, the predecessor Issuer
will not be released from its obligation to pay the principal of, premium, if
any, and interest on the Securities.
ARTICLE IV
SECURITYHOLDER LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1. Issuer To Furnish Trustee Information As To Names And
Addresses Of Securityholders. If and so long as the Trustee shall not be the
Security registrar for the Securities of any series, the Issuer and any other
obligor on the Securities will 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 of the Registered Securities of such series pursuant to
Section 312 of the Trust Indenture Act:
(a) semi-annually not more than 5 days after each record date for the
payment of interest on such Registered Securities, as hereinabove
specified, as of such record date and on dates to be determined
pursuant to Section 2.3 for non-interest bearing Registered Securities
in each year; and
(b) at such other times as the Trustee may reasonably request in writing,
within thirty days after receipt by the Issuer of any such request as
of a date not more than 15 days prior to the time such information is
furnished.
SECTION 4.2. Reports By The Issuer. The Issuer covenants to file with
the Trustee, within 15 days after the Issuer is required to file the same with
the Commission, copies of the annual reports and of the information, documents,
and other reports that the Issuer may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act or pursuant to
Section 314 of the Trust Indenture Act.
Upon the written request and at the expense of and payable in advance
by any Securityholder, the Trustee shall provide such reports, information or
documents as have been provided to it under this Section 4.2. The Trustee shall
not have any obligation to review any report, information or documents provided
to the Trustee by the Issuer pursuant to this Section 4.2, nor shall the Trustee
be deemed to have notice of any item contained therein or Event of Default which
may be disclosed therein in any manner. The Trustee's sole responsibility with
respect to such reports shall be to act as the depository for such report for
the Securityholders and to make such reports available to the Securityholders in
accordance with this Section 4.2. The Trustee shall have no duty to request
copies of any such reports, information or documents which are required to be
furnished to it hereunder.
SECTION 4.3. Reports By The Trustee.
(a) On or before the first July 15 which occurs not less than 60 days after
the earliest date of issuance of any Securities and on or before July
15 in each year thereafter, so long as any Securities are Outstanding
hereunder, the Trustee shall transmit by mail as provided below to the
Securityholders of each series of outstanding Securities, as
hereinafter in this Section provided, a brief report dated as of the
preceding May 15 with respect to:
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(i) its eligibility under Section 6.10 and its qualification under Section
6.9, or in lieu thereof, if to the best of its knowledge it has
continued to be eligible and qualified under such Sections, a written
statement to such effect;
(ii) the character and amount of any advances (and if the Trustee elects to
so state, the circumstances surrounding the making thereof) made by the
Trustee (as such) which remain unpaid on the date of such report and
for the reimbursement of which it claims or may claim a lien or charge,
prior to that of the Securities of such series, on any property or
funds held or collected by it as Trustee, except that the Trustee shall
not be required (but may elect) to report such advances if such
advances so remaining unpaid aggregate not more than 0.5% of the
principal of the Securities of such series outstanding on the date of
such report;
(iii) the amount, interest rate and maturity date of all other indebtedness
owing by the Issuer (or any other obligor on the Securities of such
series) to the Trustee in its individual capacity on the date of such
report, with a brief description of any property held as collateral
security therefor, except any indebtedness based upon a creditor
relationship;
(iv) the property and funds, if any, physically in the possession of the
Trustee (as such) in respect of the Securities of such series on the
date of such report;
(v) any additional issue of Securities of such series which the Trustee has
not previously reported; and
(vi) any action taken by the Trustee in the performance of its duties under
this Indenture which the Trustee has not previously reported and which
in the Trustee's opinion materially affects the Securities of such
series, except action in respect of a default, notice of which has been
or is to be withheld by it in accordance with the provisions of Section
5.11.
(b) The Trustee shall transmit to the Securityholders of each
series, as provided in subsection (c) of this Section, a brief
report with respect to the character and amount of any
advances (and if the Trustee elects so to state, the
circumstances surrounding the making thereof) made by the
Trustee (as such) in respect of the Securities of such series
since the date of the last report transmitted pursuant to the
provisions of subsection (a) of this Section (or if no such
report has yet been so transmitted, since the date of this
Indenture) for the reimbursement of which it claims or may
claim a lien or charge prior to that of the Securities of such
series on property or funds held or collected by it as Trustee
and which it has not previously reported pursuant to this
subsection (b), except that the Trustee shall not be required
(but may elect) to report such advances if such advances
remaining unpaid at any time aggregate 10% or less of the
principal amount of Securities of such series outstanding at
such time, such report to be transmitted within 90 days after
such time.
(c) Reports pursuant to this Section shall be transmitted by mail
to all Holders of Securities of such series, as the names and
addresses of such Holders appear upon the Securities register
as of a date not more than 15 days prior to the mailing
thereof.
(d) A copy of each such report shall, at the time of such
transmission to Securityholders, be furnished to the Issuer
and be filed by the Trustee with each stock exchange upon
which the Securities of such series are listed and also with
the Commission. The Issuer agrees to notify the Trustee when
and as Securities of any series become listed on any national
securities exchange.
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
15
SECTION 5.1. Event Of Default Defined, Acceleration Of Maturity;
Waiver Of Default. "Event of Default" with respect to Securities of any series,
wherever used herein, means any one of the following events which shall have
occurred and be continuing (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):
(a) default in the payment of any installment of interest upon any
of the Securities of such series as and when the same shall
become due and payable, and continuance of such default for a
period of 30 days; provided that, a valid extension of an
interest payment period by the Issuer in accordance with the
terms of such Securities shall not constitute a failure to pay
interest; or
(b) default in the payment of all or any part of the principal or
premium (if any) on any of the Securities of such series as
and when the same shall become due and payable either at
maturity, upon any redemption, by declaration or otherwise; or
(c) default in the payment of any sinking fund installment as and
when the same shall become due and payable by the terms of the
Securities of such series; or
(d) failure on the part of the Issuer duly to observe or perform
any other of the covenants or agreements on the part of the
Issuer in the Securities of such series or contained in this
Indenture (other than a covenant or agreement included in this
Indenture solely for the benefit of a series of Securities
other than such series) for a period of 60 days after the date
on which written notice specifying such failure, stating that
such notice is a "Notice of Default" hereunder and demanding
that the Issuer remedy the same, shall have been given by
registered or certified mail, return receipt requested, to the
Issuer by the Trustee, or to the Issuer and the Trustee by the
holders of at least 25% in aggregate principal amount of the
Outstanding Securities of the series to which such covenant or
agreement relates; or
(e) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Issuer in an
involuntary case under any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect, or appointing
a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Issuer for any
substantial part of its or their property or ordering the
winding up or liquidation of its or their affairs, and such
decree or order shall remain unstayed and in effect for a
period of 60 consecutive days; or
(f) the Issuer shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consent to the entry of an order for
relief in an involuntary case under any such law, or consent
to the appointment or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or
similar official) of the Issuer or for any substantial part of
its or their property, or make any general assignment for the
benefit of creditors; or
(g) any other Event of Default provided in the Board Resolution
under which such series of Securities is issued or in the form
of Security for such series.
If an Event of Default described in clause (a), (b) or (c) occurs and
is continuing, then, and in each and every such case, except for any series of
Securities the principal of which shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Securities of each such affected series then Outstanding hereunder
(each such series voting as a separate class) by notice in writing to the Issuer
(and to the Trustee if given by Securityholders), may declare the entire
principal (or, if the Securities of such series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series) of all Securities of such series, and the interest accrued
thereon, if any, to be due and payable immediately, and upon any such
declaration, the same shall become immediately due and payable.
Except as otherwise provided in the terms of any series of Securities
pursuant to Section 2.3, if an Event of Default described in clause (d) or (g)
above with respect to all series of the Securities then Outstanding, occurs and
is continuing, then, and in each and every such case, unless the Principal of
all of the Securities shall have already
16
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of all of the Securities then Outstanding
hereunder (treated as one class) by notice in writing to the Issuer (and to the
Trustee if given by Securityholders), may declare the entire principal (or, if
the Securities of any series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of such series)
of all of the Securities then Outstanding, and the interest accrued thereon, if
any, to be due and payable immediately, and upon such declaration, the same
shall become immediately due and payable.
If an Event of Default described in clause (e) or (f) above occurs and
is continuing, then the principal amount of all the Securities then Outstanding,
and the interest accrued thereon, if any, shall become and be immediately due
and payable without any declaration or other act on the part of the Trustee or
any Holder.
If an Event of Default described in clause (d) or (g) occurs and is
continuing, which Event of Default is with respect to less than all series of
Securities then Outstanding, then, and in each and every such case, except for
any series of Securities the principal of which shall have already become due
and payable, either the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Securities of each such affected series then Outstanding
hereunder (each such series voting as a separate class) by notice in writing to
the Issuer (and to the Trustee if given by Securityholders), may declare the
entire principal (or, if the Securities of such series are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of such series) of all Securities of such series, and the interest
accrued thereon, if any, to be due and payable immediately, and upon any such
declaration, the same shall become immediately due and payable.
The foregoing provisions are subject to the condition that if, at any
time after the principal (or, if the Securities are Original Issue Discount
Securities, such portion of the principal as may be specified in the terms
thereof) of the Securities of any series (or of all the Securities, as the case
may be) 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 Issuer shall pay or shall deposit with the Trustee a
sum sufficient to pay
(a) all matured installments of interest upon all the Securities of such
series (or all the Securities, as the case may be); and
(i) the principal of any and all Securities of such series (or of
all the Securities, as the case may be) which shall have
become due otherwise than by acceleration; and
(ii) interest upon such principal and, to the extent that payment
of such interest is enforceable under applicable law, on
overdue installments of interest, at the same rate as the rate
of interest or Yield to Maturity (in the case of Original
Issue Discount Securities) specified in the Securities of such
series (or at the respective rates of interest or Yields to
Maturity of all the Securities, as the case may be) to the
date of such payment or deposit; and
(iii) all amounts payable to the Trustee pursuant to Section 6.6;
and
(b) all Events of Default under the Indenture, other than the non-payment
of the principal of Securities which shall have become due by
acceleration, shall have been cured, waived or otherwise remedied as
provided herein,
then and in every such case the Holders of a majority, or any applicable
supermajority, in aggregate principal amount of all the Securities of such
series voting as a separate class (or all the Securities, as the case may be,
voting as a single class), then Outstanding, by written notice to the Issuer and
to the Trustee, may waive all defaults with respect to such series (or with
respect to all the Securities, as the case may be) and rescind and annul such
declaration and its consequences, but no such waiver or rescission and annulment
shall extend to or shall affect any subsequent default or shall impair any right
consequent thereon.
For all purposes under this Indenture, if a portion of the principal of
any Original Issue Discount Securities shall have been accelerated and declared
due and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original
17
Issue Discount Securities shall be deemed, for all purposes hereunder, to be
such portion of the principal thereof as shall be due and payable as a result of
such acceleration, and payment of such portion of the principal thereof as shall
be due and payable as a result of such acceleration, together with interest, if
any, thereon and all other amounts owing thereunder, shall constitute payment in
full of such Original Issue Discount Securities.
SECTION 5.2. Collection Of Indebtedness By Trustee; Trustee May Prove
Debt. The Issuer covenants that (a) in case default shall be made in the payment
of any installment of interest on any of the Securities of any series when such
interest shall have become due and payable, and such default shall have
continued for a period of 30 days, or (b) in case default shall be made in the
payment of all or any part of the principal of any of the Securities of any
series when the same shall have become due and payable, whether upon maturity of
the Securities of such series or upon any redemption or by declaration or
otherwise, then upon demand of the Trustee, the Issuer will pay to the Trustee
for the benefit of the Holders of the Securities of such series the whole amount
that then shall have become due and payable on all Securities of such series,
for principal and interest, as the case may be (with interest to the date of
such payment upon the overdue principal and, to the extent that payment of such
interest is enforceable under applicable law, on overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the Securities of such
series); and in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, and such other amount due the
Trustee under Section 6.6 in respect of Securities of such series.
Until such demand is made by the Trustee, the Issuer may pay the
principal of and interest on the Securities of any series to the registered
Holders, whether or not the Securities of such series be overdue.
In case the Issuer shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name 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 proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or other obligor upon the Securities
and collect in the manner provided by law out of the property of the Issuer or
other obligor upon the Securities, wherever situated, all the moneys adjudged or
decreed to be payable.
In case there shall be pending proceedings relative to the Issuer or
any other obligor upon the Securities under Title 11 of the United States Code
or any other applicable federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other obligor, or in case
of any other comparable judicial proceedings relative to the Issuer or other
obligor upon the Securities, or to the creditors or property of the Issuer or
such other obligor, the Trustee, irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
pursuant to the provisions of this Section, shall be entitled and empowered, by
intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal and interest (or, if the Securities of any series
are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of such
series) owing and unpaid in respect of the Securities of any
series, and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the
Trustee (including any claim for amounts payable to the
Trustee under Section 6.6) and of the Securityholders allowed
in any judicial proceedings relative to the Issuer or other
obligor upon the Securities, or to the creditors or property
of the Issuer or such other obligor; and
(b) unless prohibited by applicable law and regulations, to vote
on behalf of the holders of the Securities of any series in
any election of a receiver, assignee, trustee or a standby
trustee in arrangement, reorganization, liquidation or other
bankruptcy or insolvency proceedings, custodian or other
person performing similar functions in respect of any such
proceedings; and
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts
received with respect to the claims of the Securityholders and
of the Trustee on their behalf; and any trustee, receiver, or
liquidator, custodian or other similar official performing
18
similar functions in respect of any such proceedings is hereby
authorized by each of the Securityholders to make payments to
the Trustee, and, in the event that the Trustee shall consent
to the making of payments directly to the Securityholders, to
pay to the Trustee its costs and expenses of collection and
all other amounts due to it pursuant to Section 6.6.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any 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, except as aforesaid in clause (b).
All rights of action and of asserting claims under this Indenture, or
under any of the Securities of any series may be enforced by the Trustee without
the possession of any of the Securities of such series or the production thereof
in any trial or other proceedings relative thereto, and any such action or
proceedings instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall be awarded to
the Trustee for ratable distribution to the Holders of the Securities in respect
of which such action was taken, after payment of all sums due to the Trustee
under Section 6.6 in respect of such Securities.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the Holders
of the Securities in respect to which such action was taken, and it shall not be
necessary to make any Holders of such Securities parties to any such
proceedings.
SECTION 5.3. Application Of Proceeds. Any moneys collected by the
Trustee pursuant to this Article in respect of any series 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 interest, upon
presentation of the several Securities in respect of which monies have been
collected and stamping (or otherwise noting) thereon the payment, or issuing
Securities of such series in reduced principal amounts in exchange for the
presented Securities of like series if only partially paid, or upon surrender
thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such series
of Securities in respect of which monies have been collected, including all
amounts due to the Trustee and each predecessor Trustee pursuant to Section 6.6
in respect to such series of Securities;
SECOND: In case the principal of the Securities of such series in
respect of which moneys have been collected shall not have become and be then
due and payable, to the payment of interest on the Securities of such series in
default in the order of the maturity of the installments on such interest, with
interest (to the extent that such interest has been collected by the Trustee and
is permitted by applicable law) upon the overdue installments of interest at the
same rate as the rate of interest or Yield to Maturity (in the case of Original
Issue Discount Securities) specified in such Securities, such payments to be
made ratably to the persons entitled thereto, without discrimination or
preference;
THIRD: In case the principal of the Securities of such series in
respect of which moneys have been collected shall have become and shall be then
due and payable, to the payment of the whole amount then owing and unpaid upon
all the Securities of such series for principal and interest, with interest upon
the overdue principal, and (to the extent that such interest has been collected
by the Trustee and is permitted by applicable law) upon the overdue
installations of interest at the same rate as the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) specified in the
Securities of such series; and in case such moneys shall be insufficient to pay
in full the whole amount so due and unpaid upon the Securities of such series,
then to the payment of such principal and interest or Yield to Maturity, without
preference or priority of principal over interest or Yield to Maturity, or of
interest or Yield to Maturity over principal, or of any installment of interest
over any other installment of interest or of any Security of such series over
any other Security of such series, ratably to the aggregate of such principal
and accrued and unpaid interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the Issuer or any
other person lawfully entitled thereto.
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SECTION 5.4. Suits For Enforcement. In case an Event of Default has
occurred, has not been waived and is continuing, 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 right vested in the Trustee by this Indenture or by law.
SECTION 5.5. Restoration Of Rights On Abandonment Of Proceedings. In
case the Trustee or any Holder of any Security shall have proceeded to enforce
any right under this Indenture and such proceedings shall have been discontinued
or abandoned for any reason, or shall have been determined adversely to the
Trustee or to such Holder, then and in every such case the Issuer, the Trustee
and the Holders of Securities shall be restored severally and respectively to
their former positions and rights hereunder, and all rights, remedies and powers
of the Issuer, the Trustee and the Securityholders shall continue as though no
such proceedings had been taken.
SECTION 5.6. Limitations On Suits By Securityholders. 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 action or proceeding at law or in
equity or in bankruptcy or otherwise upon or under or with respect to this
Indenture or such Security, or for the appointment of a trustee, receiver,
liquidator, custodian or other similar official or for any other remedy
hereunder or thereunder, unless (a) such Holder previously shall have given to
the Trustee written notice of an Event of Default with respect to Securities of
such series and of the continuance thereof, as hereinbefore provided, and (b)
the Holders of not less than 25% in aggregate principal amount of the Securities
of such series then Outstanding (treated as a single class) shall have made
written request upon the Trustee to institute such action or proceedings in its
own name as Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and (c) the Trustee for 60 days
after its receipt of such notice, request and offer of indemnity shall have
failed to institute any such action or proceeding, and (d) no direction
inconsistent with such written request shall have been given to the Trustee
pursuant to Section 5.9; it being understood and intended, and being expressly
covenanted by the taker and Holder of every Security with every other taker and
Holder and the Trustee, that no one or more Holders of Securities of any series
shall have any right in any manner whatever by virtue or by availing of any
provision of this Indenture or any Security to affect, disturb or prejudice the
rights of any other such taker or Holder of Securities or to obtain or seek to
obtain priority over or preference to any other such taker or Holder or to
enforce any right under this Indenture or any Security, except in the manner
herein provided and for the equal, ratable and common benefit of all Holders of
Securities of the applicable 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 5.7. Unconditional Right Of Securityholders To Institute
Certain Suits. Notwithstanding any other provision in this Indenture and any
provision of any Security, the right of any Holder of any Security to receive
payment of the principal of and interest on such Security on or after the
respective due dates expressed in such Security or the applicable redemption
dates provided for in such Security, or to institute suit for the enforcement of
any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
SECTION 5.8. Powers And Remedies Cumulative; Delay Or Omission Not
Waiver Of Default. Except as provided in Section 5.6, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders of Securities is
intended to be exclusive of any other right or remedy and every right and remedy
shall, to the extent permitted by law, be cumulative and in addition to every
other right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of 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 Event of Default or an acquiescence
therein. Every power and remedy given by this Indenture, any Security or law to
the Trustee or to the Holders of Securities may be exercised from time to time,
and as often as shall be deemed expedient, by the Trustee or, subject to Section
5.6, by the Holders of Securities.
20
SECTION 5.9. Control By Holders Of Securities. The Holders of a
majority in aggregate principal amount of the Securities of each series affected
(with each such series voting as a separate class) at the time Outstanding shall
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee with respect to the Securities of such series by this
Indenture; PROVIDED, that such Holders shall have offered to the Trustee such
reasonable indemnity as it may require against costs, expenses and liabilities
to be incurred therein or thereby, and PROVIDED FURTHER, that such direction
shall not be otherwise than in accordance with law and the provisions of this
Indenture; and PROVIDED, FURTHER, that (subject to the provisions of Section
6.1) the Trustee shall have the right to decline to follow any such direction if
(a) the Trustee, being advised by counsel, shall determine that the action or
proceeding so directed may not lawfully be taken; or (b) if the Trustee by its
board of directors, the executive committee or a trust committee of directors or
Responsible Officers of the Trustee shall determine in good faith that the
action or proceedings so directed would involve the Trustee in personal
liability; or (c) if the Trustee in good faith shall so determine that the
actions or forbearances specified in or pursuant to such direction would be
unduly prejudicial to the interests of Holders of the Securities of all affected
series not joining in the giving of said direction, it being understood that
(subject to Section 6.1) the Trustee shall have no duty to ascertain whether or
not such actions or forbearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Securityholders.
SECTION 5.10. Waiver Of Past Defaults. Prior to the declaration of
acceleration of the maturity of the Securities of any series as provided in
Section 5.1, the Holders of a majority in aggregate principal amount of the
Securities of such series at the time Outstanding (voting as a single class) may
on behalf of the Holders of all such Securities waive any past default or Event
of Default described in Section 5.1 and its consequences, except (i) in the
payment of the principal of or premium, if any, or interest if any, on or any
additional amounts payable in respect of any security of that Series or (ii) a
default in respect of a covenant or provision hereof which cannot be modified or
amended without the consent of the Holder of each Security affected. In the case
of any such waiver, the Issuer, the Trustee and the Holders of all such
Securities shall be restored to their former positions and rights hereunder,
respectively, and such default shall cease to exist and be deemed to have been
cured and not to have occurred for purposes of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
SECTION 5.11. Trustee To Give Notice Of Default, But May Withhold In
Certain Circumstances. The Trustee shall, within 90 days after the occurrence of
a default with respect to the Securities of any series, give notice of all
defaults with respect to that series known to the Trustee to all Holders of
Securities of such series in the manner and to the extent provided in Section
313(c) of the Trust Indenture Act, unless in each case such defaults shall have
been cured before the mailing or publication of such notice (the term "default"
for the purpose of this Section being hereby defined to mean any event or
condition which is, or with notice or lapse of time or both would become, an
Event of Default); PROVIDED, that, except in the case of default in the payment
of the principal of or interest on any of the Securities of such series, or in
the payment of any sinking fund installment on such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee, or a trust committee of directors or trustees and/or
Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Securityholders of such
series.
The Trustee shall not be required to take notice, and shall not be
deemed to have notice, of any default or Event of Default hereunder, except
Events of Default described in paragraphs (a), (b) and (c) of Section 5.1
hereof, unless the Trustee shall be notified specifically of the default or
Event of Default in a written instrument or document delivered to it by the
Issuer or by the Holders of at least 10% of the aggregate principal amount of
Securities (or the applicable series of Securities) than outstanding. In the
absence of delivery of notice satisfying those requirements, the Trustee may
assume conclusively that there is no default or Event of Default, except as
noted above.
SECTION 5.12. Waiver of Stay or Extension Laws. The Issuer covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force which
21
may affect the covenants or the performance of this Indenture; and the Issuer
(to the extent that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
SECTION 5.13. Right Of Court To Require Filing Of Undertaking To Pay
Costs. All parties to this Indenture agree, and each Holder of any Security by
his or her acceptance thereof shall be deemed to have agreed, that any court may
in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder or group of
Securityholders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such series, or, in the case of
any suit relating to or arising under clause (d) or (g) of Section 5.1 (if the
suit relates to Securities of more than one but less than all series), 10% in
aggregate principal amount of Securities then Outstanding and affected thereby,
or in the case of any suit relating to or arising under clause (d) or (g) (if
the suit under clause (d) or (g) relates to all the Securities then Outstanding)
or (e) or (f) of Section 5.1, 10% in aggregate principal amount of all
Securities then Outstanding, or to any suit instituted by any Securityholder for
the enforcement of the payment of the principal of or interest on any Security
on or after the due date expressed in such Security or any date fixed for
redemption.
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.1. Duties And Responsibilities Of The Trustee; During
Default; Prior To Default. Prior to the occurrence of an Event of Default with
respect to the Securities of a particular series and after the curing or waiving
of all Events of Default which may have occurred with respect to such series,
the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture with respect to such series of
Securities. In case an Event of Default with respect to the Securities of a
series has occurred and has not been cured or waived, the Trustee shall exercise
with respect to such series of Securities such of the rights and powers vested
in it by this Indenture with respect to such series of Securities, and use the
same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
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:
(a) prior to the occurrence of an Event of Default with respect to the
Securities of any series and after the curing or waiving of all such
Events of Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with respect to the
Securities of any series shall be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on 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 statements,
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such statements,
certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether or not they conform to
the requirements of this Indenture;
22
(b) 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
(c) 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 pursuant to Section 5.9 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.
None of the provisions contained in this Indenture 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 there shall be reasonable ground for believing that the
repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
The provisions of this Section 6.1 are in furtherance of and subject to
Section 315 of the Trust Indenture Act.
SECTION 6.2. Certain Rights Of The Trustee. In furtherance of and
subject to the Trust Indenture Act, and subject to Section 6.1:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, Officer's Certificate or any other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, bond, debenture, note, coupon, 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 Issuer mentioned herein
shall be sufficiently evidenced by an Officer's Certificate (unless
other evidence in respect thereof is specifically prescribed herein or
in the terms established in respect of any series); and any resolution
of the Board of Directors shall be evidenced to the Trustee by a copy
thereof certified by the secretary or an assistant secretary of the
Issuer;
(c) the Trustee may consult with counsel and any written advice or any
Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be
taken by it hereunder in good faith and in reliance thereon in
accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the trusts
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 reasonable security or indemnity against the costs, expenses
and liabilities which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by it
in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, 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,
appraisal, bond, debenture, note, coupon, security or other paper or
document unless (i) requested in writing so to do by the Holders of
not less than a majority in aggregate principal amount of the
Securities of all series affected then Outstanding (treated as one
class) or (ii) otherwise provided in the terms of any series of
Securities pursuant to Section 2.3; PROVIDED, that, if the payment
within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms
of this Indenture, the Trustee may require reasonable indemnity
against such expenses or liabilities as a condition to proceeding;
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the reasonable expenses of every such investigation shall be paid by
the Issuer or, if paid by the Trustee or any predecessor trustee,
shall be repaid by the Issuer upon demand; and
(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 not regularly in its employ and the Trustee shall not be
responsible for any misconduct or negligence on the part of any such
agent or attorney appointed with due care by it hereunder.
SECTION 6.3. Trustee Not Responsible For Recitals, Disposition Of
Securities Or Application Of Proceeds Thereof. The recitals contained herein and
in the Securities, except the Trustee's certificates of authentication, shall be
taken as the statements of the Issuer, and the Trustee assumes no responsibility
for the correctness of the same. The Trustee makes no representation as to the
validity or sufficiency of this Indenture or of the Securities. The Trustee
shall not be accountable for the use or application by the Issuer of any of the
Securities or of the proceeds thereof.
SECTION 6.4. Trustee And Agents May Hold Securities; Collections, Etc.
The Trustee or any agent of the Issuer or of the Trustee, in its individual or
any other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not the Trustee or such agent and may otherwise
deal with the Issuer and receive, collect, hold and retain collections from the
Issuer with the same rights it would have if it were not the Trustee or such
agent.
SECTION 6.5. Held By Trustee. Subject to the provisions of Section 9.4
hereof, 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
mandatory provisions of law. Neither the Trustee nor any agent of the Issuer or
the Trustee shall be under any liability for interest on any moneys received by
it hereunder.
SECTION 6.6. Compensation And Indemnification Of Trustee And Its Prior
Claim. The Issuer covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to reasonable compensation (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust) and the Issuer covenants and agrees to pay or reimburse the
Trustee and each predecessor trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by or on behalf of it 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 agents and other persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence or bad faith.
The Issuer also covenants to indemnify the Trustee and each predecessor trustee
(and their respective directors, officers, agents and employees) for, and to
hold them harmless against, any loss, liability, fine, penalty or expense
(including out-of-pocket and incidental expenses and legal fees) incurred
without negligence or bad faith on their part, arising out of or in connection
with the acceptance or administration of this Indenture or the trusts hereunder
and its duties hereunder, including, in each case, the costs and expenses of
defending itself against or investigating any claim of liability in the
premises. The obligations of the Issuer under this Section to compensate and
indemnify the Trustee and each predecessor trustee (and their respective
directors, officers, agents and employees) and to pay or reimburse the Trustee
and each predecessor 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 a senior claim to that of the 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 Securities and
the Securities are hereby subordinated to such senior claim.
SECTION 6.7. Right Of Trustee To Rely On Officer's Certificate, Etc.
Subject to Sections 6.1 and 6.2, whenever in the administration of the trusts 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 any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or wilfull misconduct
24
on the part of the Trustee, be deemed to be conclusively proved and established
by an Officer's Certificate delivered to the Trustee, and such certificate, in
the absence of negligence or wilfull misconduct on the part of the Trustee,
shall be full warrant to the Trustee for any action taken, suffered or omitted
by it under the provisions of this Indenture upon the faith thereof.
SECTION 6.8. Indentures Not Creating Potential Conflicting Interests
For The Trustee. This Indenture is hereby specifically described for the
purposes of Section 310(b)(1)(i) of the Trust Indenture Act with respect to
series of Securities that are of an equal priority.
SECTION 6.9. Qualification Of Trustee; Conflicting Interests. The
Trustee shall comply with Section 310(b) of the Trust Indenture Act.
SECTION 6.10. Persons Eligible For Appointment As Trustee. The Trustee
for each series of Securities hereunder shall at all times be a corporation or
banking association organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, having a
combined capital and surplus of at least $50,000,000, and which is authorized
under such laws to exercise corporate trust powers and is subject to supervision
or examination by Federal, state 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 deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. 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 6.11.
The provisions of this Section 6.10 are in furtherance of and subject
to Section 310(a) of the Trust Indenture Act.
SECTION 6.11. Resignation And Removal; Appointment Of Successor
Trustee.
(a) The Trustee, or any trustee or trustees hereafter appointed, may at
any time resign with respect to one or more or all series of
Securities by giving written notice of resignation to the Issuer and
by mailing notice of such resignation to the Holders of then
Outstanding Registered Securities of each series affected at their
addresses as they shall appear on the registry books. Upon receiving
such notice of resignation, the Issuer shall promptly appoint a
successor trustee or trustees with respect to the applicable series
by written instrument in duplicate, executed by authority of the
Board of Directors, one copy of which instrument shall be delivered
to the resigning Trustee and one copy to the successor trustee or
trustees. If no successor trustee shall have been so appointed with
respect to any series 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, or any Securityholder who has
been a bona fide Holder of a Security or Securities of the
applicable series for at least six months may, subject to the
provisions of Section 5.12, 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 of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act with respect to any
series of Securities after written request therefor by the
Issuer or by any Securityholder who has been a bona fide
Holder of a Security or Securities of such series for at least
six months; or
(ii) the Trustee shall cease to be eligible in accordance with the
provisions of Section 6.10 hereof and Section 310(a) of the
Trust Indenture Act and shall fail to resign after written
request therefor by the Issuer or by any Securityholder; or
(iii) the Trustee shall become incapable of acting with respect to
any series of Securities, or shall be adjudged bankrupt or
insolvent, or a receiver or liquidator of the Trustee or of
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its property shall be appointed, or any public officer shall
take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of Directors
of the Issuer, 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 315(e) of the Trust Indenture Act, any Securityholder who has been a
bona fide Holder of a Security or Securities of such series for at least six
months may on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor trustee with respect to such series. Such court may
thereupon, after such notice, if any, as it may deem proper and so prescribe,
remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of each series at the time outstanding may at any time
remove the Trustee with respect to Securities of such series and
appoint a successor trustee with respect to the Securities of such
series by delivering to the Trustee so removed, to the successor
trustee so appointed and to the Issuer the evidence as of the action in
that regard taken by the Securityholders as provided for in Section
7.1.
(d) Any resignation or removal of the Trustee with respect to any series
and any appointment of a successor trustee with respect to such series
pursuant to any of the provisions of this Section 6.11 shall become
effective upon acceptance of appointment by the successor trustee as
provided in Section 6.12.
SECTION 6.12. Acceptance Of Appointment By Successor Trustee. Any
successor trustee appointed as provided in Section 6.11 shall execute and
deliver to the Issuer and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like effect as if
originally named as trustee for such series hereunder; but, nevertheless, on the
written request of the Issuer or of the successor trustee, upon payment of its
charges then unpaid, the trustee ceasing to act shall, subject to Section 9.4,
pay over to the successor trustee all moneys at the time held by it hereunder
and shall execute and deliver an instrument transferring to such successor
trustee all such rights, powers, duties and obligations. Upon request of any
such successor trustee, the Issuer shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions of
Section 6.6.
If a successor trustee is appointed with respect to the Securities of
one or more (but not all) series, the Issuer, the predecessor trustee and each
successor trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor trustee with respect to the
Securities of any series as to which the predecessor trustee is not retiring
shall continue to be vested in the predecessor trustee, and 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 as co-trustees of the same trust and
that each such trustee shall be trustee of a trust or trusts under separate
indentures.
No successor trustee with respect to any series of Securities shall
accept appointment as provided in this Section 6.12 unless at the time of such
acceptance such successor trustee shall be qualified under Section 310(b) of the
Trust Indenture Act and eligible under the provisions of Section 6.10.
Upon acceptance of appointment by any successor trustee as provided in
this Section 6.12, the Issuer shall give notice thereof to the Holders of
Registered Securities of each series affected by mailing such notice to such
Holders at their addresses as they shall appear on the registry books. If the
acceptance of appointment is substantially contemporaneous with the resignation,
then the notice called for by the preceding sentence may be combined with the
notice called for by Section 6.11. If the Issuer fails to give such notice
within ten days after
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acceptance of appointment by the successor trustee, the successor trustee shall
cause such notice to be given at the expense of the Issuer.
SECTION 6.13. Merger, Conversion, Consolidation Or Succession To
Business Of Trustee. Any corporation, association or other entity into which the
Trustee may be merged or converted or with which it may be consolidated, or any
corporation, association or other entity resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation,
association or other entity succeeding to the corporate trust business of the
Trustee, (including by sale or transfer of all or substantially all of its
corporate trust assets) shall be the successor of the Trustee hereunder 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; PROVIDED,
that such corporation, association or other entity shall be qualified under
Section 310(b) of the Trust Indenture Act and eligible under the provisions of
Section 6.10.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture, any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any such successor
to the Trustee may authenticate such Securities either in the name of any
predecessor hereunder or in the name of the successor Trustee; and in all such
cases such certificate of authentication shall have the full force which under
this Indenture or the Securities of such series it is provided that the
certificate of authentication of the Trustee shall have; PROVIDED, that the
right to adopt the certificate of authentication of any predecessor trustee or
to authenticate Securities of any series in the name of any predecessor trustee
shall apply only to its successor or successors by merger, conversion or
consolidation.
SECTION 6.14. Preferential Collection Of Claims Against The Issuer.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act,
excluding any creditor relationship as provided 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 indicated therein.
SECTION 6.15. Appointment Of Authenticating Agent. As long as any
Securities of a series remain Outstanding, the Trustee may, by an instrument in
writing, appoint with the approval of the Issuer an authenticating agent (the
"Authenticating Agent") which shall be authorized to act on behalf of the
Trustee to authenticate Securities, including Securities issued upon exchange,
registration of transfer, partial redemption or pursuant to Section 2.9.
Securities of each such series authenticated by such Authenticating Agent shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee. Whenever reference is made
in this Indenture to the authentication and delivery of Securities of any series
by the Trustee or to the Trustee's Certificate of Authentication, such reference
shall be deemed to include authentication and delivery on behalf of the Trustee
by an Authenticating Agent for such series and a Certificate of Authentication
executed on behalf of the Trustee by such Authenticating Agent. Such
Authenticating Agent shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any State,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $45,000,000 (determined as provided in Section
6.10 with respect to the Trustee) and subject to supervision or examination by
federal or state authority.
Any corporation into which any Authenticating Agent may be merged or
converted, or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent with
respect to all series of Securities for which it served as Authenticating Agent
without the execution or filing of any paper or any further act on the part of
the Trustee or such Authenticating Agent. Any Authenticating Agent may at any
time, and if it shall cease to be eligible shall, resign by giving written
notice of resignation to the Trustee and to the Issuer.
Upon receiving such a notice of resignation or upon such a termination,
or in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.15 with respect to one or more
series of Securities, the Trustee shall, upon receipt of an Issuer Order,
appoint a successor
27
Authenticating Agent and the Issuer shall provide notice of such appointment to
all Holders of Securities of such series in the manner and to the extent
provided in Section 11.2. Any successor Authenticating Agent upon acceptance of
its appointment hereunder shall become vested with all rights, powers, duties
and responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent. The Issuer agrees to pay to the
Authenticating Agent for such series from time to time reasonable compensation.
The Authenticating Agent for the Securities of any series shall have no
responsibility or liability for any action taken by it as such at the direction
of the Trustee.
Sections 6.2, 6.3, 6.4, 6.6 and 7.3 shall be applicable to any
Authenticating Agent.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.1. Evidence Of Action Taken By Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by a specified percentage in
principal amount of the Securityholders of any or all series may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such specified percentage of Securityholders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee. Proof of execution of any instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Indenture, and
subject to the provisions of Sections 6.1 and 6.2, conclusive in favor of the
Trustee and the Issuer, if made in the manner provided in this Article.
Notwithstanding the foregoing, with respect to any Registered Global
Security, nothing herein shall prevent the Issuer, the Trustee, or any agent of
the Issuer or the Trustee, from giving effect to any request, demand,
authorization, direction, notice, consent, waiver or other action provided in
this Indenture to be given or taken by a Depositary or impair, as between a
Depositary and such holders of beneficial interest, the operation of customary
practices governing the exercise of the rights of the Depositary (or its
nominee) as Holder of any Security.
Without limiting the generality of this Section 7.1, unless otherwise
provided in or pursuant to this Indenture, a Holder, including a Depositary that
is a Holder of a Registered Global Security, may make, give or take, by a proxy
or proxies duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other action provided in or pursuant to
this Indenture to be made, given or taken by Holders, and a Depositary that is a
Holder of a Registered Global Security may give its proxy or proxies to the
Depositary's participants or the beneficial owners of interests in any such
Registered Global Security, as the case may be, through such Depositary's
standing instructions and customary practices.
The Trustee shall fix a record date for the purpose of determining the
Persons who are beneficial owners of interests in any permanent Registered
Global Security held by a Depositary and who are entitled under the procedures
of such Depositary to make, give or take, by a proxy or proxies duly appointed
in writing, any request, demand, authorization, direction, notice, consent,
waiver or other action provided in or pursuant to this Indenture to be made,
given or taken by Holders. If such a record date is fixed, the Holders on such
record date or their duly appointed proxy or proxies, and only such persons,
shall be entitled to make, give or take such request, demand, authorization,
direction, notice consent, waiver or other action, whether or not such Holders
remain Holders after such record date. No such request, demand, authorization,
direction notice, consent, waiver or other action shall be valid or effective if
made, given or taken more than 90 days after such record date.
SECTION 7.2. Proof Of Execution Of Instruments And Of Holding Of
Securities. Subject to the provisions of Sections 6.1 and 6.2, the execution of
any instrument by a Securityholder or his or her agent or proxy may be proved in
accordance with such reasonable rules and regulations as may be prescribed by
the Trustee or in such manner as shall be satisfactory to the Trustee. The
holding of Registered Securities shall be proved by the Security register or by
a certificate of the registrar thereof.
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SECTION 7.3. Holders To Be Treated As Owners. The Issuer, the Trustee
and any agent of the Issuer or the Trustee may deem and treat the person in
whose name any Security shall be registered upon the Security register for such
series as the absolute owner of such Security (whether or not such Security
shall be overdue and notwithstanding any notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the principal
of and, subject to the provisions of this Indenture, interest on such Security
and for all other purposes; and neither the Issuer nor the Trustee nor any agent
of the Issuer or the Trustee shall be affected by any notice to the contrary.
No holder of any beneficial interest in any Registered Global Security
held on its behalf by a Depositary (or its nominee) shall have any rights under
this Indenture with respect to such Registered Global Security or any Security
represented thereby, and such Depositary may be treated by the Issuer, the
Trustee, and any agent of the Issuer or the Trustee as the owner of such
Registered Global Security or any Security represented thereby for all purposes
whatsoever. None of the Issuer, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Registered Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
SECTION 7.4. Securities Owned By Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any request,
demand, authorization, direction, notice, consent, waiver or other action by
Securityholders under this Indenture, Securities which are owned by the Issuer
or any other obligor on the Securities with respect to which such determination
is being made or by any person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Issuer or any other
obligor on the Securities with respect to which such determination is being made
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 action only Securities which
the Trustee knows are so owned shall be so disregarded. Securities so owned
which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so to
act with respect to such Securities and that the pledgee is not the Issuer or
any other obligor upon the Securities or any person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Issuer or any other obligor on the Securities. In case of a dispute as to such
right, the advice of counsel shall be full protection in respect of any decision
made by the Trustee in accordance with such advice. Upon request of the Trustee,
the Issuer shall furnish to the Trustee promptly an Officer's Certificate
listing and identifying all Securities, if any, known by the Issuer to be owned
or held by or for the account of any of the above-described persons; and,
subject to the provisions of Sections 6.1 and 6.2, the Trustee shall be entitled
to accept such Officer's Certificate as conclusive evidence of the facts therein
set forth and of the fact that all Securities not listed therein are Outstanding
for the purpose of any such determination.
SECTION 7.5. Right Of Revocation Of Action Taken. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 7.1, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, revoke such action so far as concerns such
Security. Except as aforesaid, any such action taken by the Holder of any
Security shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Security and of any Securities issued in exchange or
substitution therefor or on registration of transfer thereof, irrespective of
whether or not any notation in regard thereto is made upon any such Security.
Any action taken by the Holders of the percentage in aggregate principal amount
of the Securities of any or all series, as the case may be, specified in this
Indenture in connection with such action shall be conclusively binding upon the
Issuer, the Trustee and the Holders of all the Securities affected by such
action.
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ARTICLE VIII
SUPPLEMENTAL INDENTURES
SECTION 8.1. Supplemental Indentures Without Consent Of
Securityholders. The Issuer, when authorized by a resolution of its Board of
Directors (which resolution may provide general terms or parameters for such
action and may provide that the specific terms of such action may be determined
in accordance with or pursuant to an Issuer Order), and the Trustee may from
time to time and at any time enter into an indenture or indentures supplemental
hereto for one or more of the following purposes:
(a) to evidence the succession of another corporation to the
Issuer, or successive successions, and the assumption by the
successor corporation of the covenants, agreements and
obligations of the Issuer pursuant to any applicable covenants
herein and pursuant to the terms of the Securities as set
forth in Section 2.3;
(b) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions as the Issuer and the
Trustee shall consider to be for the protection of the Holders
of Securities and to make the occurrence, or the occurrence
and continuance, of a default in any such additional
covenants, restrictions, conditions or provisions an Event of
Default permitting the enforcement of all or any of the
several remedies provided in this Indenture as herein set
forth; PROVIDED, that in respect of any such additional
covenant, restriction, condition or provision such
supplemental indenture may provide for a particular period of
grace after default (which period may be shorter or longer
than that allowed in the case of other defaults) or may
provide for an immediate enforcement upon such an Event of
Default or may limit the remedies available to the Trustee
upon such an Event of Default or may limit the right of the
Holders of a majority in aggregate principal amount of the
Securities of such series to waive such an Event of Default;
PROVIDED FURTHER, that any such addition, change or
elimination (i) shall neither (A) apply to any Security of any
series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision and
(ii) shall become effective only when there is no such
Security Outstanding.
(c) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture
which may be defective or inconsistent with any other
provision contained herein or in any supplemental indenture,
or to make any other provisions as the Issuer may deem
necessary or desirable, PROVIDED, that no such action shall
adversely affect the interests of the Holders of the
Securities in any material respect as determined by the
Trustee (which determination may be based on an Opinion of
Counsel); and
(d) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the
Securities of one or more series and to add to or change any
of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to the
requirements of Section 6.12.
The Trustee is hereby authorized to join with the Issuer in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee shall not be obligated to enter into any such supplemental
indenture which 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 without the consent of the Holders of any of the Securities at
the time outstanding, notwithstanding any of the provisions of Section 8.2.
SECTION 8.2. Supplemental Indentures With Consent Of Securityholders.
30
(a) Except as set forth in paragraph (b) below, with the consent (evidenced as
provided in Article VII) of the Holders of not less than a majority in
aggregate principal amount of the Securities at the time Outstanding of
all series of Securities affected by such supplemental indenture (voting
as one class), the Issuer, when authorized by a resolution of its Board of
Directors (which resolution may provide general terms or parameters for
such action and may provide that the specific terms of such action may be
determined in accordance with or pursuant to an Issuer Order), 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 in force and effect at the date of execution
thereof) 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 the rights of the
Holders of the Securities of each such series.
(b) No such supplemental indenture shall (i) extend the final maturity of any
Security, or reduce the principal amount thereof, or reduce the rate or
extend the time of payment of interest thereon, or reduce any amount
payable on redemption thereof, or make the principal thereof (including
any amount in respect of original issue discount), or interest thereon
payable in any coin or currency other than that provided in the Securities
or in accordance with the terms thereof, or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon an acceleration of the maturity thereof pursuant to Section
5.1 or the amount thereof provable in bankruptcy pursuant to Section 5.2,
or impair or affect the right of any Securityholder to institute suit for
the payment thereof when due or, if the Securities provide therefor, any
right of repayment at the option of the Securityholder, in each case
without the consent of the Holder of each Security so affected, or (ii)
reduce the aforesaid percentage of Securities of any series, the consent
of the Holders of which is required for any such supplemental indenture,
without the consent of the Holders of each Security so affected.
(c) A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which
modifies the rights of Holders of Securities of such series, with respect
to such covenant or provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of any other series.
(d) Upon the request of the Issuer, accompanied by a copy of a resolution of
the Board of Directors (which resolution may provide general terms or
parameters for such action and may provide that the specific terms of such
action may be determined in accordance with or pursuant to an Issuer
Order) certified by the secretary or an assistant secretary of the Issuer
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of the Holders of the
Securities as aforesaid and other documents, if any, required by Section
7.1, the Trustee shall join with the Issuer 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.
It shall not be necessary for the consent of the Securityholders 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.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 8.2, the
Trustee shall give notice thereof to the Holders of then Outstanding Registered
Securities of each series affected thereby, by mailing a notice thereof by
first-class mail to such Holders at their addresses as they shall appear on the
Security register, and such notice shall set forth in general terms the
substance of such supplemental indenture. Any failure of the Issuer to give such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
SECTION 8.3. Effect Of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall 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
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the Trustee, the Issuer and the Holders of Securities of each 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 8.4. Documents To Be Given To Trustee. The Trustee, subject to
the provisions of Sections 6.1 and 6.2, shall be entitled to receive, and shall
be fully protected in relying upon, an Officer's Certificate and an Opinion of
Counsel as conclusive evidence that any supplemental indenture executed pursuant
to this Article VIII complies with the applicable provisions of this Indenture.
SECTION 8.5. Notation On Securities In Respect Of Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Trustee for such series as
to any matter provided for by such supplemental indenture or as to any action
taken by Securityholders. If the Issuer or the Trustee shall so determine, new
Securities of any series so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Issuer,
authenticated by the Trustee and delivered in exchange for the Securities of
such series then Outstanding.
ARTICLE IX
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 9.1. Satisfaction And Discharge Of Indenture.
(a) The following provisions shall apply to the Securities of each series
unless specifically otherwise provided in a Board Resolution, Officer's
Certificate or supplemental indenture provided pursuant to Section 2.3. If
at any time (i) the Issuer shall have paid or caused to be paid the
principal of and interest on all the Securities of any series Outstanding
hereunder and (other than Securities of such series which have been
destroyed, lost or stolen and which have been replaced or paid as provided
in Section 2.9) as and when the same shall have become due and payable, or
(ii) the Issuer shall have delivered to the Trustee for cancellation all
Securities of any series theretofore authenticated (other than any
Securities of such series which shall have been destroyed, lost or stolen
and which shall have been replaced or paid as provided in Section 2.9) or
(iii) in the case of any series of Securities where the exact amount of
principal of and interest due on which can be determined at the time of
making the deposit referred to in clause (b) below, (a) all the Securities
of such 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 (b) the Issuer shall have irrevocably deposited or caused
to be deposited with the Trustee funds in trust the entire amount in (i)
cash (other than moneys repaid by the Trustee or any paying agent to the
Issuer in accordance with Section 9.4), (ii) direct obligations of the
United States of America or obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United
States, the payment of which is unconditionally guaranteed as a full faith
and credit obligation of the United States, which are not callable or
redeemable at the option of the issuer thereof ("U.S. Government
Obligations"), maturing as to principal and interest at such times and in
such amounts as will insure the availability of cash sufficient to pay at
such maturity or upon such redemption, as the case may be, or (iii) 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 (x) the principal
and interest on all Securities of such series on each date that such
principal or interest is due and payable and (y) any mandatory sinking
fund payments on the dates on which such payments are due and payable in
accordance with the terms of the Indenture and the Securities of such
series; and if, in any such case, the Issuer shall also pay or cause to be
paid all other sums payable hereunder by the Issuer, then this Indenture
shall cease to be of further effect (except as to (i) rights of
registration of transfer and exchange of Securities of such Series
pursuant to Section 2.8 and the Issuer's right of optional redemption, if
any, (ii) substitution of mutilated, defaced, destroyed, lost or stolen
Securities (iii) rights of holders of Securities
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pursuant to Section 2.8 to receive payments of principal thereof and
interest thereon, upon the original stated due dates therefor (but not
upon acceleration), and remaining rights of the Holders to receive
mandatory sinking fund payments, if any, (iv) the rights, obligations,
duties and immunities of the Trustee hereunder, including those under
Section 6.6, (v) the rights of the Holders of Securities of such series
as beneficiaries hereof with respect to the property so deposited with
the Trustee payable to all or any of them, and (vi) the obligations of
the Issuer under Section 3.2) and the Trustee, on demand of the Issuer
accompanied by an Officer's Certificate and an Opinion of Counsel and at
the cost and expense of the Issuer, shall execute proper instruments
acknowledging such satisfaction of and discharging this Indenture;
PROVIDED, that the rights of Holders of the Securities to receive
amounts in respect of principal of and interest on the Securities held
by them shall not be delayed longer than required by then-applicable
mandatory rules or policies of any securities exchange upon which the
Securities are listed. The Issuer agrees to reimburse the Trustee for
any costs or expenses thereafter reasonably and properly incurred and to
compensate the Trustee for any services thereafter reasonably and
properly rendered by the Trustee in connection with this Indenture or
the Securities of such series.
(b) The following provisions shall apply to the Securities of each series
unless specifically otherwise provided in a Board Resolution, Officer's
Certificate or supplemental indenture provided pursuant to Section 2.3. In
addition to discharge of the Indenture pursuant to the next preceding
paragraph, in the case of any series of Securities the exact amounts of
principal of and interest due on which can be determined at the time of
making the deposit referred to in clause (a) below, the Issuer shall be
deemed to have paid and discharged the entire indebtedness on all the
Securities of such a series on the date of the deposit referred to in
subparagraph (a) below, and the provisions of this Indenture with respect
to the Securities of such series shall no longer be in effect (except as
to (i) rights of registration of transfer and exchange of Securities of
such series pursuant to Section 2.8 and the Issuer's right of optional
redemption, if any, (ii) substitution of mutilated, defaced, destroyed,
lost or stolen Securities, (iii) rights of Holders of Securities to
receive payments of principal thereof and interest thereon, upon the
original stated due dates therefor (but not upon acceleration), and
remaining rights of the Holders to receive mandatory sinking fund
payments, if any, (iv) the rights, obligations, duties and immunities of
the Trustee hereunder, (v) the rights of the Holders of Securities of such
series as beneficiaries hereof with respect to the property so deposited
with the Trustee payable to all or any of them and (vi) the obligations of
the Issuer under Section 3.2) and the Trustee, at the expense of the
Issuer, shall at the Issuer's request, execute proper instruments
acknowledging the same, if:
(i) with reference to this provision the Issuer has irrevocably
deposited or caused to be irrevocably deposited with the Trustee as
funds in trust, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of the Securities of such
series: (x) cash in an amount, or (y) U.S. Government Obligations,
maturing as to principal and interest at such times and in such
amounts as will insure the availability of cash or (z) 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 (A) the
principal and interest on all Securities of such series on each date
that such principal or interest is due and payable and (B) any
mandatory sinking fund payments on the dates on which such payments
are due and payable in accordance with the terms of the Indenture
and the Securities of such series;
(ii) such deposit will not result in a breach or violation of, or
constitute a default under, any agreement or instrument to which the
Issuer is a party or by which it is bound;
(iii) the Issuer has delivered to the Trustee an opinion of counsel from a
nationally recognized law firm based on the fact that (x) the Issuer
has received from, or there has been published by, the IRS 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 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;
33
(iv) the Issuer has delivered to the Trustee an Opinion of Counsel to the
effect that after the 91st day following the deposit, the trust
funds will not be subject to avoidance as a preferential transfer
under Section 547(b) of the United States Bankruptcy Code (except
with respect to any Holder that is an "insider" of the Issuer within
the meaning of the United States Bankruptcy Code); and
(v) the Issuer has delivered to the Trustee an Officer's Certificate and
an Opinion of Counsel, each stating that all conditions precedent
provided for relating to the defeasance contemplated by this
provision have been complied with.
(c) If the trustee or any paying agent is unable to apply any money in
accordance with this Indenture by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise
prohibiting that application, then the Issuer's obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Indenture, until such time as the
Trustee or paying agent is permitted to apply all money in accordance with
this Indenture; provided, however, that if the Issuer makes any payment of
principal of (or premium, if any) or interest, if any, on any Security
following the reinstatement of such obligations, the Issuer will be
subrogated to the rights of the Holders to receive such payment from the
money held by the Trustee or paying agent.
(d) The Issuer shall be released from its obligations under Sections 3.6 and
3.7 and unless otherwise provided for in the Board Resolution and/or
Officer's Certificate establishing such series of Securities, from all
covenants and other obligations referred to in Section 2.3(14) or 2.3(15)
with respect to such series of Securities, outstanding on and after the
date the conditions set forth below are satisfied (hereinafter, "covenant
defeasance"). For this purpose, such covenant defeasance means that, with
respect to the Outstanding Securities of any series, the Issuer may omit
to comply with and shall have no liability in respect of any term,
condition or limitation set forth in such Section, whether directly or
indirectly by reason of any reference elsewhere herein to such Section or
by reason of any reference in such Section to any other provision herein
or in any other document and such omission to comply shall not constitute
an Event of Default under Section 5.1, but the remainder of this Indenture
and such Securities shall be unaffected thereby. The following shall be
the conditions to application of this subsection (d) of this Section 9.1,
unless otherwise provided for in the Board Resolution and/or Officer's
Certificate establishing such series of Securities:
(i) The Issuer has irrevocably deposited or caused to be deposited with
the Trustee as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the holders of the Securities of
such series, (i) cash in an amount, or (ii) U.S. Government
Obligations maturing as to principal and interest at such times and
in such amounts as will insure the availability of cash or (iii) 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 (A)
the principal and interest on all Securities of such series and (B)
any mandatory sinking fund payments on the day on which such
payments are due and payable in accordance with the terms of the
Indenture and the Securities of such series;
(ii) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to the Securities
shall have occurred and be continuing on the date of such deposit;
(iii) Such covenant defeasance shall not cause the Trustee to have a
conflicting interest as defined in Section 6.9 or for purposes of
the Trust Indenture Act with respect to any securities of the
Issuer;
(iv) Such covenant defeasance shall not result in a breach or violation
of, or constitute a default under any agreement or instrument to
which the Issuer is a party or by which it is bound;
34
(v) Such covenant defeasance shall not cause any Securities then listed
on any registered national securities exchange under the Exchange
Act to be delisted;
(vi) The Issuer shall have delivered to the Trustee an Officer's
Certificate and an opinion of counsel from a nationally recognized
law firm to the effect that the Holders of the Securities of such
series will not recognize income, gain or loss for United States
federal income tax purposes as a result of such covenant defeasance
and will be subject to United States federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such covenant defeasance had not occurred;
(vii) The Issuer has delivered to the Trustee an Opinion of Counsel to the
effect that after the 91st day following the deposit, the trust
funds will not be subject to avoidance as a preferential transfer
under Section 547(b) of the United States Bankruptcy Code (except
with respect to any Holder that is an "insider" of the Issuer within
the meaning of the United States Bankruptcy Code); and
(viii) The Issuer shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the covenant
defeasance contemplated by this provision have been complied with.
SECTION 9.2. Application By Trustee Of Funds Deposited For Payment Of
Securities. Subject to Section 9.4, all moneys deposited with the Trustee (or
other trustee) pursuant to Section 9.1 shall be held in trust and applied by it
to the payment, either directly or through any paying agent (including the
Issuer acting as its own paying agent), to the Holders of the particular
Securities of such series for the payment or redemption of which such moneys
have been deposited with the Trustee, of all sums due and to become due thereon
for principal and interest; but such money need not be segregated from other
funds except to the extent required by law.
SECTION 9.3. Repayment Of Moneys Held By Paying Agent. In connection with
the satisfaction and discharge of this Indenture with respect to Securities of
any series, all moneys then held by any paying agent under the provisions of
this Indenture with respect to such series of Securities shall, upon demand of
the Issuer, be repaid to it or paid to the Trustee and thereupon such paying
agent shall be released from all further liability with respect to such moneys.
SECTION 9.4. Return Of Moneys Held By Trustee And Paying Agent Unclaimed
For Two Years. Any moneys deposited with or paid to the Trustee or any paying
agent for the payment of the principal of or interest on any Security of any
series and not applied but remaining unclaimed for two years after the date upon
which such principal or interest shall have become due and payable, shall, upon
the written request of the Issuer and unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property law, be
repaid to the Issuer by the Trustee for such series or such paying agent, and
the Holder of the Securities of such series shall, unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property
laws, thereafter look only to the Issuer for any payment which such Holder may
be entitled to collect, and all liability of the Trustee or any paying agent
with respect to such moneys shall thereupon cease; PROVIDED, that the Trustee or
such paying agent, before being required to make any such repayment with respect
to moneys deposited with it for any payment shall at the expense of the Issuer,
mail by first-class mail to Holders of such Securities at their addresses as
they shall appear on the Security register, notice that such moneys remain and
that, after a date specified therein, which shall not be less than 30 days from
the date of such mailing or publication, any unclaimed balance of such money
then remaining will be repaid to the Issuer.
SECTION 9.5. Indemnity For U.S. Government Of Obligations. The Issuer
shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations deposited pursuant to
Section 9.1 or the principal or interest received in respect of such
obligations.
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ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Incorporators, Shareholders, Officers And Directors Of
Issuer Exempt From Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such, or against any past, present or future shareholder,
officer or director, as such, of the Issuer or of any successor, either directly
or through the Issuer or any successor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance of the Securities by the Holders thereof and as
part of the consideration for the issue of the Securities.
SECTION 10.2. Provisions Of Indenture For The Sole Benefit Of Parties And
Holders Of Securities. Nothing in this Indenture, in the Securities, expressed
or implied, shall give or be construed to give to any person, firm or
corporation, other than the parties thereto and their successors and the Holders
of the Securities any legal or equitable right, remedy or claim under this
Indenture or under any covenant or provision herein contained, all such
covenants and provisions being for the sole benefit of the parties hereto and
their successors and of the Holders of the Securities.
SECTION 10.3. Successors And Assigns Of Issuer Bound By Indenture. All the
covenants, stipulations, promises and agreements in this Indenture contained by
or in behalf of the Issuer shall bind its successors and assigns, whether so
expressed or not.
SECTION 10.4. Notices And Demands On Issuer, Trustee And Holders Of
Securities. Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the Holders of
Securities to or on the Issuer may be given or served by being deposited postage
prepaid, first-class mail (except as otherwise specifically provided herein)
addressed (until another address of the Issuer is filed by the Issuer with the
Trustee) to Exelon Corporation, 10 South Dearborn Street, 37th Floor, Post
Office Box A-3005, Chicago, Illinois 60690-3005, Attention: Secretary. Any
notice, direction, request or demand by the Issuer or any Holder of Securities
to or upon the Trustee shall be deemed to have been sufficiently given or served
by being deposited postage prepaid, first-class mail (except as otherwise
specifically provided herein) addressed (until another address of the Trustee is
filed by the Trustee with the Issuer) to, 250 W. Huron Road, Suite 220,
Cleveland, Ohio 44113 Attention: Corporate Trust Department.
Where this Indenture provides for notice to Holders of Registered
Securities, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class mail, postage prepaid,
to each Holder entitled thereto, at his or her last address as it appears in the
Security register.
In any case where notice to such Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Issuer when such
notice is required to the given pursuant to any provision of this Indenture,
then any manner of giving such notice as shall be reasonably satisfactory to the
Trustee shall be deemed to be a sufficient giving of such notice.
SECTION 10.5. Officer's Certificates And Opinions Of Counsel; Statements
To Be Contained Therein. Upon any application or demand by the Issuer to the
Trustee to take any action under any of the provisions of this Indenture, the
Issuer shall furnish to the Trustee an Officer's 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
36
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 or demand as
to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or demand,
no additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (a) a statement that the person
making such certificate or opinion has read such covenant or condition, (b) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based, (c) a statement that, in the opinion of such person, he or she has
made such examination or investigation as is necessary to enable him or her 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 or not, in the opinion of
such person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the certificate
or opinion or representations with respect to the matters upon which his or her
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters or information in the possession of the Issuer, upon the
certificate, statement or opinion of or representations by an officer or
officers of the Issuer, unless such counsel knows that the certificate,
statement or opinion or representations with respect to the matters upon which
his or her certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous.
Any certificate, statement or opinion of an officer of the Issuer or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion of or representations with
respect to the accounting matters upon which his or her certificate, statement
or opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a statement
that such firm is independent.
SECTION 10.6. Payments Due On Saturdays, Sundays And Holidays. If the date
of maturity of interest on or principal of the Securities of any series or the
date fixed for redemption or repayment of any such Security shall not be a
Business Day, then payment of interest or principal need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the date of maturity or the date fixed for redemption,
and no interest shall accrue for the period after such date.
SECTION 10.7. Conflict Of Any Provision Of Indenture With Trust Indenture
Act. If and to the extent that any provision of this Indenture limits, qualifies
or conflicts with duties imposed by, or with another provision (an "incorporated
provision") included in this Indenture by operation of Sections 310 to 318,
inclusive, of the Trust Indenture Act, such imposed duties or incorporated
provision shall control.
SECTION 10.8. PENNSYLVANIA LAW TO GOVERN. THIS INDENTURE AND EACH SECURITY
SHALL BE DEEMED TO BE A CONTRACT UNDER THE LAWS OF THE COMMONWEALTH OF
PENNSYLVANIA, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF SUCH COMMONWEALTH.
SECTION 10.9. 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 10.10. Effect Of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
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ARTICLE XI
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 11.1. Applicability Of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable before
their maturity or to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 2.3 for
Securities of such series.
SECTION 11.2. Notice Of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Registered Securities of any series to be redeemed
as a whole or in part at the option of the Issuer shall be given by mailing
notice of such redemption by first class mail, postage prepaid, at least 30 days
and not more than 60 days prior to the date fixed for redemption to such Holders
of Securities of such series at their last addresses as they shall appear upon
the registry books. Any notice which is mailed in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the
Holder receives the notice. Failure to give notice by mail, or any defect in the
notice to the Holder of any Security of a series designated for redemption as a
whole or in part shall not affect the validity of the proceedings for the
redemption of such Security of such series.
The notice of redemption to each such Registered Holder shall specify the
principal amount of each Security of such series held by such Registered Holder
to be redeemed, the date fixed for redemption, the redemption price, the place
or places of payment, that payment will be made upon presentation and surrender
of such Securities, that such redemption is pursuant to the mandatory or
optional sinking fund, or both, if such be the case, that interest accrued to
the date fixed for redemption will be paid as specified in such notice and that
on and after said date interest thereon or on the portions thereof to be
redeemed will cease to accrue. In case any Security of a series is to be
redeemed in part only, the notice of redemption to Registered Holders of
Securities of the series shall state the portion of the principal amount thereof
to be redeemed and shall state that on and after the date fixed for redemption,
upon surrender of such Security, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at the
option of the Issuer shall be given by the Issuer or, at the Issuer's request,
by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the notice of redemption
given as provided in this Section, the Issuer will deposit with the Trustee or
with one or more paying agents (or, if the Issuer is acting as its own paying
agent, set aside, segregate and hold in trust as provided in Section 3.4) an
amount of money sufficient to redeem on the redemption date all the Securities
of such series so called for redemption at the appropriate redemption price,
together with accrued interest to the date fixed for redemption. The Issuer will
deliver to the Trustee at least 70 days prior to the date fixed for redemption,
or such shorter period as shall be acceptable to the Trustee, an Officer's
Certificate stating the aggregate principal amount of Securities to be redeemed.
In case of a redemption at the election of the Issuer prior to the expiration of
any restriction on such redemption, the Issuer shall deliver to the Trustee,
prior to the giving of any notice of redemption to Holders pursuant to this
Section, an Officer's Certificate stating that such restriction has been
complied with.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, in such manner as it shall deemed appropriate and fair, in
its sole discretion, Securities of such series to be redeemed in whole or in
part. Securities may be redeemed in part in multiples equal to the minimum
authorized denomination for Securities of such series or any multiple thereof.
The Trustee shall promptly notify the Issuer in writing of the Securities of
such series selected for redemption and, in the case of any Securities of such
series selected for partial redemption, the principal amount thereof to be
redeemed. For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities of any series
shall relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been or
is to be redeemed.
SECTION 11.3. Payment Of Securities Called For Redemption. If notice of
redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and
38
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 on and after said date (unless the Issuer shall default in the
payment of such Securities at the redemption price, together with interest
accrued to said date) interest on the Securities or portions of Securities so
called for redemption shall cease to accrue, and, except as provided in Sections
6.5 and 9.4, such Securities shall cease from and after the date fixed for
redemption to be entitled to any benefit or security under this Indenture, and
the Holders thereof shall have no right in respect of such Securities except the
right to receive the redemption price thereof and unpaid interest to the date
fixed for redemption. On presentation and surrender of such Securities at a
place of payment specified in said notice, said Securities or the specified
portions thereof shall be paid and redeemed by the Issuer at the applicable
redemption price, together with interest accrued thereon to the date fixed for
redemption; PROVIDED, that payment of interest becoming due on or prior to the
date fixed for redemption shall be payable to the Holder of such Registered
Securities registered as such on the relevant record date, subject to the terms
and provisions of Section 2.3 and 2.7 hereof.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid or duly provided for,
bear interest from the date fixed for redemption at the rate of interest or
Yield to Maturity (in the case of an Original Issue Discount Security) borne by
such Security.
Upon presentation of any Security redeemed in part only, the Issuer shall
execute and the Trustee shall authenticate and deliver to or on the order of the
Holder thereof, at the expense of the Issuer, a new Security or Securities of
such series, of authorized denominations, in principal amount equal to the
unredeemed portion of the Security so presented.
SECTION 11.4. Exclusion Of Certain Securities From Eligibility For
Selection For Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in an Officer's Certificate delivered to the Trustee at least 40 days
prior to the last date on which notice of redemption may be given as being owned
of record and beneficially by, and not pledged or hypothecated by, either (a)
the Issuer or (b) an entity specifically identified in such written statement as
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer.
SECTION 11.5. Mandatory And Optional Sinking Funds. The minimum amount of
any sinking fund payment provided for by the terms of the 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 the
Securities of any series is herein referred to as an "optional sinking fund
payment." The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date."
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Securities in cash, the Issuer may at its option
(a) deliver to the Trustee Securities of such series theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Issuer or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Issuer and delivered to the Trustee for cancellation pursuant
to Section 2.10, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, or (c) receive credit for
Securities of such series (not previously so credited) redeemed by the Issuer
through any optional redemption provision contained in the terms of such series.
Securities so delivered or credited shall be received or credited by the Trustee
at the sinking fund redemption price specified in such Securities.
On or before the 60th day next preceding each sinking fund payment date
for any series, the Issuer will deliver to the Trustee an Officer's Certificate
(which need not contain the statements required by Section 10.5) (a) specifying
the portion of the mandatory sinking fund payment to be satisfied by payment of
cash and the portion to be satisfied by credit of Securities of such series and
the basis for such credit, (b) stating that none of the Securities of such
series has theretofore been so credited, (c) stating that no defaults in the
payment of interest or Events of Default with respect to such series have
occurred (which have not been waived or cured) and are continuing and (d)
stating whether or not the Issuer intends to exercise its right to make an
optional sinking fund payment with respect to such series and, if so, specifying
the amount of such optional sinking fund payment which the Issuer intends to pay
on or before the next succeeding sinking fund payment date. Any Securities of
such series to be credited and required to be delivered to the Trustee in order
for the Issuer to be entitled to credit therefor as aforesaid which have
39
not theretofore been delivered to the Trustee shall be delivered for
cancellation pursuant to Section 2.10 to the Trustee with such Officer's
Certificate (or reasonably promptly thereafter if acceptable to the Trustee).
Such Officer's Certificate shall be irrevocable and upon its receipt by the
Trustee, the Issuer shall become unconditionally obligated to make all the cash
payments or payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. Failure of the Issuer, on or before any
such 60th day, to deliver such Officer's Certificate and Securities specified in
this paragraph, if any, shall not constitute a default but shall constitute, on
and as of such date, the irrevocable election of the Issuer (i) that the
mandatory sinking fund payment for such series due on the next succeeding
sinking fund payment date shall be paid entirely in cash without the option to
deliver or credit Securities of such series in respect thereof and (ii) that the
Issuer will make no optional sinking fund payment with respect to such series as
provided in this Section.
If the sinking fund payment or payments (mandatory or optional or both)
to be made in cash on the next succeeding sinking fund payment date plus any
unused balance of any preceding sinking fund payments made in cash shall exceed
$50,000 or a lesser sum in Dollars if the Issuer shall so request with respect
to the Securities of any particular series, such cash shall be applied on the
next succeeding sinking fund payment date to the redemption of Securities of
such series at the sinking fund redemption price together with accrued interest
to the date fixed for redemption. If such amount shall be $50,000 or less and
the Issuer makes no such request then it shall be carried over until a sum in
excess of $50,000 is available. The Trustee shall select, in the manner provided
in Section 11.2, for redemption on such sinking fund payment date a sufficient
principal amount of Securities of such series to absorb said cash, as nearly as
may be, and shall (if requested in writing by the Issuer) inform the Issuer of
the serial numbers of the Securities of such series (or portions thereof) so
selected. Securities shall be excluded from eligibility for redemption under
this Section if they are identified by registration and certificate number in an
Officer's Certificate delivered to the Trustee at least 60 days prior to the
sinking fund payment date as being owned of record and beneficially by, and not
pledged or hypothecated by, either (a) the Issuer or (b) an entity specifically
identified in such Officer's Certificate as directly or indirectly controlling
or controlled by or under direct or indirect common control with the Issuer. The
Trustee, in the name and at the expense of the Issuer (or the Issuer, if it
shall so request the Trustee in writing) shall cause notice of redemption of the
Securities of such series to be given in substantially the manner provided in
Section 11.2 (and with the effect provided in Section 11.3) for the redemption
of Securities of such series in part at the option of the Issuer. The amount of
any sinking fund payments not so applied or allocated to the redemption of
Securities of such series shall be added to the next cash sinking fund payment
for such series and, together with such payment, shall be applied in accordance
with the provisions of this Section. Any and all sinking fund moneys held on the
stated maturity date of the Securities of any particular series (or earlier, if
such maturity is accelerated), which are not held for the payment or redemption
of particular Securities of such series shall be applied, together with other
moneys, if necessary, sufficient for the purpose, to the payment of the
principal of, and interest on, the Securities of such series at maturity.
On or before each sinking fund payment date, the Issuer shall pay to the
Trustee in cash or shall otherwise provide for the payment of all interest
accrued to the date fixed for redemption on Securities to be redeemed on the
next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of a
series with sinking fund moneys or give any notice of redemption of Securities
for such series by operation of the sinking fund during the continuance of a
default in payment of interest on such Securities or of any Event of Default
except that, where the giving of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed
such Securities, provided that it shall have received from the Issuer a sum
sufficient for such redemption. Except as aforesaid, any moneys in the sinking
fund for such series at the time when any such default or Event of Default shall
occur, and any moneys thereafter paid into the sinking fund, shall, during the
continuance of such default or Event of Default be deemed to have been collected
under Article V and held for the payment of all such Securities. In case such
Event of Default shall have been waived as provided in Section 5.10 or the
default cured on or before the 60th day preceding the sinking fund payment date
in any year, such moneys shall thereafter be applied on the next succeeding
sinking fund payment date in accordance with this Section to the redemption of
such Securities.
[Remainder of Page Intentionally Left Blank]
40
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed and attested as of the date first written above.
EXELON CORPORATION
By: /s/ J. Barry Mitchell
-----------------------
Name: J. Barry Mitchell
Title: Vice President
Attest:
By: /s/ Todd D. Cutler
-----------------------
Todd. D. Cutler
Chase Manhattan Trust Company,
National Association
as Trustee
By: /s/ D. Kovach
-------------------------------
Name: D. Kovach
Title: Assistant Vice President
Attest:
By:
- -----------------------------
Exhibit 4-4
EXELON CORPORATION,
Issuer
AND
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
INDENTURE
Dated as of ____________
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 Exelon 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............................................................41
ARTICLE XIV SUBORDINATION OF DEBT SECURITIES.....................................................................41
SECTION 14.01. Subordination Terms.................................................................41
iii
THIS INDENTURE, dated as of ____________, between EXELON CORPORATION, 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
Exelon 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 Exelon 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 Exelon Trust or other Persons that operate directly or
indirectly for the benefit of holders of Common Securities of such trust.
"Company" means Exelon Corporation, 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 Exelon Trust, the amended and
restated declaration of trust of such Exelon Trust or any other governing
instrument of such Exelon 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.
"Exelon Trust" means a Delaware statutory trust formed by the Company
for the purpose of purchasing Debt Securities of the Company.
"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.
3
"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.
"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.
"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 Exelon 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 Exelon 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 Exelon Trust under the applicable Declaration of such
Exelon 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; (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 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.
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"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;
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(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
8
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.
9
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 Exelon Trust or a trustee of such trust in
connection with the issuance of Trust Securities by such Exelon 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 Exelon Trust or a trustee of such trust
in connection with the issuance of Trust Securities by such Exelon 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 Exelon Trust. In the event Debt Securities
are issued and sold to a Exelon 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 Exelon Trust
or certain mergers, consolidations or amalgamations, each as permitted by the
Declaration of such Exelon 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
18
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 Exelon 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 Exelon 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 the
21
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
24
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.
26
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.
28
(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.
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(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
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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
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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.
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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 66 2/3 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.
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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.
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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.
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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:
Exelon Corporation
10 South Dearborn Street - 37th Floor
P.O. Box 805379
Chicago, Illinois 60680
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.
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(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 Exelon 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 Exelon 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.
EXELON CORPORATION
By: /s/
-------------------------------
Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
By: /s/ George J. Rayzis
-------------------------------
George J. Rayzis
Vice President
40
Exhibit 4-5
CERTIFICATE OF TRUST
OF
EXELON CAPITAL TRUST I
The undersigned, the trustees of Exelon Capital Trust I, desiring to
form a statutory trust pursuant to Delaware Statutory Trust Act, 12 Del. C.
Section 3801 et seq., hereby certify as follows:
1. Name. The name of the trust (the "Trust") formed hereby is Exelon
Capital Trust I.
2. Delaware Trustee. The name and business address of the trustee of
the Trust which has its principal place of business in the State of Delaware is
as follows:
Wachovia Trust Company, National Association
One Rodney Square
920 King Street, Suite 102
Wilmington, DE 19801
Attn: Rita Marie Ritrovato, Trust Officer
3. Effective Date. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned have executed this Certificate
of Trust as of August 25, 2003.
/s/ Thomas R. Miller
---------------------------------------------
Thomas R. Miller, as Administrative Trustee
WACHOVIA TRUST COMPANY, NATIONAL
ASSOCIATION, as Trustee
By: /s/ Rita Marie Ritrovato
---------------------------------
Name: Rita Marie Ritrovato
Title: Trust Officer
Exhibit 4-6
CERTIFICATE OF TRUST
OF
EXELON CAPITAL TRUST II
The undersigned, the trustees of Exelon Capital Trust II, desiring
to form a statutory trust pursuant to Delaware Statutory Trust Act, 12 Del. C.
Section 3801 et seq., hereby certify as follows:
1. Name. The name of the trust (the "Trust") formed hereby is Exelon
Capital Trust II.
2. Delaware Trustee. The name and business address of the trustee of
the Trust which has its principal place of business in the State of Delaware is
as follows:
Wachovia Trust Company, National Association
One Rodney Square
920 King Street, Suite 102
Wilmington, DE 19801
Attn: Rita Marie Ritrovato, Trust Officer
3. Effective Date. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned have executed this Certificate
of Trust as of August 25, 2003.
/s/ Thomas R. Miller
----------------------------------------------
Thomas R. Miller, as Administrative Trustee
WACHOVIA TRUST COMPANY, NATIONAL
ASSOCIATION, as Trustee
By: /s/ Rita Marie Ritrovato
---------------------------------
Name: Rita Marie Ritrovato
Title: Trust Officer
Exhibit 4-7
CERTIFICATE OF TRUST
OF
EXELON CAPITAL TRUST III
The undersigned, the trustees of Exelon Capital Trust III, desiring
to form a statutory trust pursuant to Delaware Statutory Trust Act, 12 Del. C.
Section 3801 et seq., hereby certify as follows:
1. Name. The name of the trust (the "Trust") formed hereby is Exelon
Capital Trust III.
2. Delaware Trustee. The name and business address of the trustee of
the Trust which has its principal place of business in the State of Delaware is
as follows:
Wachovia Trust Company, National Association
One Rodney Square
920 King Street, Suite 102
Wilmington, DE 19801
Attn: Rita Marie Ritrovato, Trust Officer
3. Effective Date. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned have executed this Certificate
of Trust as of August 25, 2003.
/s/ Thomas R. Miller
----------------------------------------------
Thomas R. Miller, as Administrative Trustee
WACHOVIA TRUST COMPANY, NATIONAL
ASSOCIATION, as Trustee
By: /s/ Rita Marie Ritrovato
---------------------------------
Name: Rita Marie Ritrovato
Title: Trust Officer
Exhibit 4-8
DECLARATION OF TRUST
OF
EXELON CAPITAL TRUST I
THIS DECLARATION OF TRUST (this "Declaration"), dated and effective
as of August 25, 2003, by the undersigned trustees (together with all other
Persons from time to time duly appointed and serving as trustees in accordance
with the provisions of this Declaration, the "Trustees"), Exelon Corporation, a
Pennsylvania corporation, as trust sponsor (the "Sponsor"), and by the holders,
from time to time, of undivided beneficial interests in the Trust to be issued
pursuant to this Declaration;
W I T N E S S E T H:
WHEREAS, the parties hereto desire to establish a trust (the
"Trust") pursuant to the Delaware Statutory Trust Act for the sole purpose of
issuing and selling certain securities representing undivided beneficial
interests in the assets of the Trust and investing the proceeds thereof in
certain Debt Securities (as hereinafter defined) of the Debt Issuer (as
hereinafter defined);
NOW, THEREFORE, it being the intention of the parties hereto that
the Trust constitute a statutory trust under the Delaware Statutory Trust Act
and that this Declaration constitute the governing instrument of such statutory
trust, the Trustees declare that all assets contributed to the Trust will be
held in trust for the benefit of the holders, from time to time, of the
securities representing undivided beneficial interests in the assets of the
Trust issued hereunder, subject to the provisions of this Declaration.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. Definitions. Capitalized terms used in this Declaration
but not defined in the preamble above have the respective meanings assigned to
them in this Section 1.1. A term defined anywhere in this Declaration has the
same meaning throughout.
"Administrative Trustee" means any Trustee other than the Delaware
Trustee, acting in its capacity as Delaware Trustee.
"Affiliate" has the same meaning as given to that term in Rule 405 of
the Securities Act or any successor rule thereunder.
"Business Day" means any day other than a day on which banking
institutions in New York, New York are authorized or required by law to close.
"Certificate" means a Common Security Certificate or a Preferred
Security Certificate.
"Common Security" means a security representing an undivided
beneficial interest in the assets of the Trust with such terms as may be set out
in any amendment to this Declaration.
"Common Security Certificate" means a certificate representing a
Common Security.
"Covered Person" means any officer, director, shareholder, partner,
member, representative, employee or agent of the Trust or its Affiliates.
"Debt Issuer" means Exelon Corporation, a Pennsylvania corporation,
in its capacity as the issuer of the Debt Securities.
"Debt Securities" means the series of Debt Securities to be issued
by the Debt Issuer.
"Delaware Trustee" has the meaning set forth in Section 3.1.
"Exchange Act" means the Securities and Exchange Act of 1934, as
amended.
"Holder" means the Person in whose name a Certificate representing a
Security is registered.
"Indemnified Person" means any Trustee, any Affiliate of any
Trustee, or any officers, directors, shareholders, members, partners, employees,
representatives or agents of any Trustee, or any employee or agent of the Trust
or its Affiliates.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Security" means a security representing an undivided
beneficial interest in the assets of the Trust with such terms as may be set out
in any amendment to this Declaration.
"Preferred Security Certificate" means a certificate representing a
Preferred Security.
"Securities" mean the Common Securities and the Preferred
Securities.
"Securities Act" means the Securities Act of 1933, as amended.
"Sponsor" means Exelon Corporation, a Pennsylvania corporation, in its
capacity as sponsor of the Trust.
"Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12
Del. C. Sections 3801 et seq., as the same may be amended from time to time.
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
SECTION 1.2. Interpretation. Each definition in this Declaration
includes the singular and the plural, and references to the neuter gender
include the masculine and feminine where appropriate. Terms which relate to
accounting matters shall be interpreted in accordance with generally accepted
accounting principles in effect from time to time. References to any statute
mean such statute as amended at the time and include any successor legislation.
The word "or" is not exclusive, and the words "herein," "hereof" and "hereunder"
refer to this Declaration as a whole. The headings to the Articles and Sections
are for convenience of reference and shall not affect the meaning or
interpretation of this Declaration. References to Articles, Sections and
Exhibits mean the Articles, Sections and Exhibits of this Declaration. The
Exhibits are hereby incorporated by reference into, and shall be deemed a part
of, this Declaration.
2
ARTICLE II
ORGANIZATION
SECTION 2.1. Name. The Trust created by this Declaration is named
"Exelon Capital Trust I." The Trust's activities may be conducted under the name
of the Trust or any other name deemed advisable by the Administrative Trustees.
SECTION 2.2. Office. The address of the principal office of the
Trust is c/o Exelon Corporation, 10 South Dearborn Street - 37th Floor, P.O. Box
805379, Chicago, Illinois 60680. At any time, the Administrative Trustees may
designate another principal office.
SECTION 2.3. Purpose. The exclusive purposes and functions of the
Trust are (a) to issue and sell Securities and use the proceeds from such sale
to acquire the Debt Securities and (b) except as otherwise limited herein, to
engage in only those other activities necessary, or incidental thereto. The
Trust shall not borrow money, issue debt or reinvest proceeds derived from
investments or pledge any of its assets.
SECTION 2.4. Authority. Subject to the limitations provided in this
Declaration, the Administrative Trustees shall have exclusive and complete
authority to carry out the purposes of the Trust. An action taken by the
Administrative Trustees in accordance with their powers shall constitute the act
of, and serve to bind, the Trust. In dealing with the Administrative Trustees
acting on behalf of the Trust, no Person shall be required to inquire into the
authority of the Administrative Trustees to bind the Trust. Persons dealing with
the Trust are entitled to rely conclusively on the power and authority of the
Administrative Trustees as set forth in this Declaration.
SECTION 2.5. Powers of the Administrative Trustees. The
Administrative Trustees shall have the exclusive power and authority to cause
the Trust to engage in the following activities:
(a) to issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however, that the
Trust may issue no more than one series of Preferred Securities and no more than
one series of Common Securities, and, provided further, there shall be no
interests in the Trust other than the Securities;
(b) in connection with the issue and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) execute and file with the Securities and Exchange
Commission a registration statement on Form S-3 prepared by the Sponsor in
relation to the Preferred Securities, including any amendments thereto prepared
by the Sponsor;
(ii) determine the states in which to take appropriate action
to qualify or register for sale all or part of the Preferred Securities and to
take any and all such acts as they deem necessary or advisable to comply with
the applicable laws of any of those states;
(iii) execute and file an application prepared by the Sponsor
to the New York Stock Exchange, Inc. or any other national stock exchange or the
NASDAQ Stock Market's National Market for listing upon notice of issuance of any
Preferred Securities; and
(iv) execute and file with the Securities and Exchange
Commission a registration statement on Form 8-A prepared by the Sponsor relating
to the registration of the Preferred Securities under Section 12(b) of the
Exchange Act, including any amendments thereto;
3
(c) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors, and
consultants and provide for reasonable compensation for such services;
(d) to incur expenses which are necessary or incidental to carry on
any of the purposes of this Declaration;
(e) to negotiate the terms of, and enter into, an underwriting
agreement with one or more underwriters with respect to the sale of the
Preferred Securities of the Trust; and
(f) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing.
SECTION 2.6. Filing of Certificate of Trust. On or after the date of
execution of this Declaration, the Trustees shall cause the Certificate of Trust
for the Trust in the form attached hereto as Exhibit A to be filed with the
Secretary of State of the State of Delaware.
SECTION 2.7. Duration of Trust. The Trust, absent dissolution
pursuant to the provisions of Section 5.2, shall have existence for thirty years
from the date hereof.
ARTICLE III
TRUSTEES
SECTION 3.1. Trustees. The number of Trustees shall initially be
two, and thereafter the number of Trustees shall be such number as shall be
fixed from time to time by a written instrument signed by the Sponsor. The
Sponsor is entitled to appoint or remove without cause any Trustee at any time;
provided, that the number of Trustees shall in no event be less than two; and
provided further that one Trustee, in the case of a natural person, shall be a
person who is a resident of the State of Delaware or which, if not a natural
person, has its principal place of business in the State of Delaware (the
"Delaware Trustee"). Any Trustee may resign upon the giving of thirty (30) days
prior written notice to the Sponsor.
Except as expressly set forth in this Declaration, any power of the
Administrative Trustees may be exercised by, or with the consent of, a majority
of the Administrative Trustees; provided that if there is only one
Administrative Trustee, all powers of the Administrative Trustees shall be
exercised by such one Administrative Trustee.
The initial Administrative Trustee shall be:
Thomas R. Miller of Exelon Corporation
The initial Delaware Trustee shall be:
Wachovia Trust Company, National Association
One Rodney Square
920 King Street, Suite 102
Wilmington, DE 19801
Attn: Rita Marie Ritrovato, Trust Officer
4
SECTION 3.2. Delaware Trustee. Notwithstanding any other provisions
of this Declaration, the Delaware Trustee, in its capacity as Delaware Trustee,
shall not be entitled to exercise any of the powers, nor shall the Delaware
Trustee have any of the duties and responsibilities, of the Administrative
Trustees described in this Declaration. The Delaware Trustee shall be a Trustee
for the sole and limited purpose of fulfilling the requirements of Section 3807
of the Trust Act.
SECTION 3.3. Execution of Documents. (a) Any one of the
Administrative Trustees is each authorized to execute on behalf of the Trust any
documents that the Administrative Trustees have the power and authority to cause
the Trust to execute pursuant to Section 2.5.
(b) The Administrative Trustees may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21
their power for the purposes of signing any documents which the Administrative
Trustees have power and authority to cause the Trust to execute pursuant to
Section 2.5.
ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1. Exculpation. (a) No Indemnified Person shall be liable,
responsible or accountable in damages or otherwise to the Trust 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 on behalf of the
Trust and in a manner such Indemnified Person reasonably believed to be within
the scope of the authority conferred on such Indemnified Person by this
Declaration or by law, except that an Indemnified Person shall be liable for any
such loss, damage or claim incurred by reason of such Indemnified Person's gross
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 Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Trust, 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 4.2. Fiduciary Duty. (a) To the extent that, at law or in
equity, an Indemnified Person has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to any other Covered Person, an
Indemnified Person acting under this Declaration shall not be liable to the
Trust or to any other Covered Person for its good faith reliance on the
provisions of this Declaration. The provisions of this Declaration, to the
extent that they restrict the duties and liabilities of an Indemnified Person
otherwise existing at law or in equity, are agreed by the parties hereto to
replace such other duties and liabilities of such Indemnified Person.
(b) Unless otherwise expressly provide herein:
(i) whenever a conflict or interest exists or arises between
an Indemnified Person and a Covered Person, or
5
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified Person shall act in
a manner that is, or provides terms that are, fair and reasonable to the Trust
or any Holder,
then the Indemnified Person shall resolve such conflict of interest,
take such action or provide such terms, considering in each case the relative
interest of each party (including its own interest) to such conflict, agreement,
transaction or situation and the benefits and burdens relating to such
interests, any customary or accepted industry practices, and any applicable
generally accepted accounting practices or principles. In the absence of bad
faith by the Indemnified Person, the resolution, action or term so made, taken
or provided by the Indemnified Person shall not constitute a breach of this
Declaration or any other agreement contemplated herein or of any duty or
obligation of the Indemnified Person at law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is permitted
or required to make a decision:
(i) in its "discretion" or under a grant of similar authority,
the Indemnified Person shall be entitled to consider such interest and factors
as it desires, including its own interests, and shall have no duty or obligation
to give any consideration to any interest of, or factors affecting, the Trust or
any other Person; or
(ii) in its "good faith" or under another express standard,
the Indemnified Person shall act under such express standard and shall not be
subject to any other or different standard imposed by this Declaration or by
applicable law.
SECTION 4.3 Indemnification. (a) To the fullest extent permitted by
applicable law, the Sponsor shall indemnify and hold harmless each Indemnified
Person from and against any loss, damage or claim incurred by such Indemnified
Person by reason of any act or omission performed or omitted by such Indemnified
Person in good faith on behalf of the Trust and in a manner such Indemnified
Person reasonably believed to be within the scope of authority conferred on such
Indemnified Person by this Declaration, except that no Indemnified Person shall
be entitled to be indemnified in respect of any loss, damage or claim incurred
by such Indemnified Person by reason of gross negligence or willful misconduct
with respect to such acts or omissions.
(b) To the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by an Indemnified Person in defending any claim,
demand, action, suit or proceeding shall, from time to time, be advanced by the
Sponsor 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 the
Indemnified Person to repay such amount if it shall be determined that the
Indemnified Person is not entitled to be indemnified as authorized in Section
4.3(a).
(c) The provisions of this Section shall survive the termination of
this Declaration and the Trust or the earlier resignation or removal of the
Indemnified Persons.
SECTION 4.4. Other Businesses. Any Covered Person, the Sponsor and
the Delaware Trustee may engage in or possess an interest in other business
ventures of any nature or description, independently or with others, similar or
dissimilar to the business of the Trust, and the Trust and the Holders shall
have no rights by virtue of this Declaration in and to such independent ventures
or the income or profits derived therefrom and the pursuit of any such venture,
even if competitive with the business of the Trust, shall not be deemed wrongful
or improper. No Covered Person, the Sponsor or the Delaware Trustee shall be
obligated to present any particular investment or other opportunity to the Trust
6
even if such opportunity is of a character that, if presented to the Trust,
could be taken by the Trust, and any Covered Person, the Sponsor and the
Delaware Trustee shall have the right to take for its own account (individually
or as a partner or fiduciary) or to recommend to others any such particular
investment or other opportunity. Any Covered Person and the Delaware Trustee may
engage or be interested in any financial or other transaction with the Sponsor
or any Affiliate of the Sponsor, or may act on any committee or body of holders
of securities or other obligations of the Sponsor or its Affiliates.
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1. Amendments. At any time before the issue of any
Securities, this Declaration may be amended by, and only by, a written
instrument executed by a majority of the Administrative Trustees, the Delaware
Trustee and the Sponsor.
SECTION 5.2 Termination of Trust. (a) The Trust shall dissolve:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor or the revocation of the Sponsor's
charter;
(iii) upon the entry of a decree of judicial dissolution of
the Sponsor or the Trust; or
(iv) before the issue of any Securities, with the consent of
at least a majority of the Administrative Trustees and the Sponsor.
(b) Upon dissolution, the Delaware Trustee shall apply any funds
deposited with it to reimburse the Delaware Trustee for any filing fees or other
expenses in connection with the termination of the Trust. Any remaining funds
shall, after payment of any other expenses of the Trust, be returned to the
Sponsor.
(c) As soon as is practicable after the occurrence of an event
referred to in Section 5.2(a), the Trustees shall execute and the Delaware
Trustee shall file a certificate of cancellation with the Secretary of State of
the State of Delaware. Thereupon, the Trust shall terminate and this Declaration
shall be of no further force or effect (except Section 4.3, which shall
survive).
SECTION 5.3. Governing Law. This Declaration and the rights of the
parties hereunder shall be governed by and interpreted in accordance with the
laws of the State of Delaware and all rights and remedies shall be governed by
such laws without regard to principles of conflict of laws.
SECTION 5.4. Successors and Assigns. Whenever in this Declaration
any of the parties hereto is named or referred to, the successors and assigns of
such party shall be deemed to be included, and all covenants and agreements in
this Declaration by the Sponsor and the Trustees shall bind and inure to the
benefit of their respective successors and assigns, whether so expressed.
SECTION 5.5. Partial Enforceability. If any provisions of this
Declaration, or the application of such provision to any Person or circumstance,
shall be held invalid, the remainder of this Declaration, or the application of
such provision to persons or circumstances other than those to which it is held
invalid, shall not be affected thereby.
7
SECTION 5.6. Counterparts. This Declaration may contain more than
one counterpart of the signature page and this Declaration 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.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
8
IN WITNESS WHEREOF, the undersigned have caused this Declaration of
Trust of Exelon Capital Trust I to be executed as of the day and year first
above written.
TRUSTEES:
/s/ Thomas R. Miller
--------------------------------------------------
Name: Thomas R. Miller, as Administrative Trustee
WACHOVIA TRUST COMPANY, NATIONAL
ASSOCIATION, as Delaware Trustee
By: /s/ Rita Marie Ritrovato
--------------------------------------------------
Name: Rita Marie Ritrovato
Title: Trust Officer
SPONSOR:
EXELON CORPORATION, as Sponsor
By: /s/ Thomas R. Miller
--------------------------------------------------
Name: Thomas R. Miller
Title: Vice President
9
EXHIBIT A
CERTIFICATE OF TRUST
OF
EXELON CAPITAL TRUST I
The undersigned, the trustees of Exelon Capital Trust I, desiring to
form a statutory trust pursuant to Delaware Statutory Trust Act, 12 Del. C.
Section 3801 et seq., hereby certify as follows:
1. Name. The name of the trust (the "Trust") formed hereby is Exelon
Capital Trust I.
2. Delaware Trustee. The name and business address of the trustee of
the Trust which has its principal place of business in the State of Delaware is
as follows:
Wachovia Trust Company, National Association
One Rodney Square
920 King Street, Suite 102
Wilmington, DE 19801
Attn: Rita Marie Ritrovato, Trust Officer
3. Effective Date. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned have executed this Certificate
of Trust as of August 25, 2003.
/s/ Thomas R. Miller
------------------------------------------------
Thomas R. Miller, as Administrative Trustee
WACHOVIA TRUST COMPANY, NATIONAL
ASSOCIATION, as Trustee
By: /s/ Rita Marie Ritrovato
------------------------------------------------
Name: Rita Marie Ritrovato
Title: Trust Officer
Exhibit 4-9
DECLARATION OF TRUST
OF
EXELON CAPITAL TRUST II
THIS DECLARATION OF TRUST (this "Declaration"), dated and effective
as of August 25, 2003, by the undersigned trustees (together with all other
Persons from time to time duly appointed and serving as trustees in accordance
with the provisions of this Declaration, the "Trustees"), Exelon Corporation, a
Pennsylvania corporation, as trust sponsor (the "Sponsor"), and by the holders,
from time to time, of undivided beneficial interests in the Trust to be issued
pursuant to this Declaration;
W I T N E S S E T H:
WHEREAS, the parties hereto desire to establish a trust (the
"Trust") pursuant to the Delaware Statutory Trust Act for the sole purpose of
issuing and selling certain securities representing undivided beneficial
interests in the assets of the Trust and investing the proceeds thereof in
certain Debt Securities (as hereinafter defined) of the Debt Issuer (as
hereinafter defined);
NOW, THEREFORE, it being the intention of the parties hereto that
the Trust constitute a statutory trust under the Delaware Statutory Trust Act
and that this Declaration constitute the governing instrument of such statutory
trust, the Trustees declare that all assets contributed to the Trust will be
held in trust for the benefit of the holders, from time to time, of the
securities representing undivided beneficial interests in the assets of the
Trust issued hereunder, subject to the provisions of this Declaration.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. Definitions. Capitalized terms used in this Declaration
but not defined in the preamble above have the respective meanings assigned to
them in this Section 1.1. A term defined anywhere in this Declaration has the
same meaning throughout.
"Administrative Trustee" means any Trustee other than the Delaware
Trustee, acting in its capacity as Delaware Trustee.
"Affiliate" has the same meaning as given to that term in Rule 405
of the Securities Act or any successor rule thereunder.
"Business Day" means any day other than a day on which banking
institutions in New York, New York are authorized or required by law to close.
"Certificate" means a Common Security Certificate or a Preferred
Security Certificate.
"Common Security" means a security representing an undivided
beneficial interest in the assets of the Trust with such terms as may be set out
in any amendment to this Declaration.
"Common Security Certificate" means a certificate representing a
Common Security.
"Covered Person" means any officer, director, shareholder, partner,
member, representative, employee or agent of the Trust or its Affiliates.
"Debt Issuer" means Exelon Corporation, a Pennsylvania corporation,
in its capacity as the issuer of the Debt Securities.
"Debt Securities" means the series of Debt Securities to be issued
by the Debt Issuer.
"Delaware Trustee" has the meaning set forth in Section 3.1.
"Exchange Act" means the Securities and Exchange Act of 1934, as
amended.
"Holder" means the Person in whose name a Certificate representing a
Security is registered.
"Indemnified Person" means any Trustee, any Affiliate of any
Trustee, or any officers, directors, shareholders, members, partners, employees,
representatives or agents of any Trustee, or any employee or agent of the Trust
or its Affiliates.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Security" means a security representing an undivided
beneficial interest in the assets of the Trust with such terms as may be set out
in any amendment to this Declaration.
"Preferred Security Certificate" means a certificate representing a
Preferred Security.
"Securities" mean the Common Securities and the Preferred
Securities.
"Securities Act" means the Securities Act of 1933, as amended.
"Sponsor" means Exelon Corporation, a Pennsylvania corporation, in its
capacity as sponsor of the Trust.
"Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12
Del. C. Sections 3801 et seq., as the same may be amended from time to time.
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
SECTION 1.2. Interpretation. Each definition in this Declaration
includes the singular and the plural, and references to the neuter gender
include the masculine and feminine where appropriate. Terms which relate to
accounting matters shall be interpreted in accordance with generally accepted
accounting principles in effect from time to time. References to any statute
mean such statute as amended at the time and include any successor legislation.
The word "or" is not exclusive, and the words "herein," "hereof" and "hereunder"
refer to this Declaration as a whole. The headings to the Articles and Sections
are for convenience of reference and shall not affect the meaning or
interpretation of this Declaration. References to Articles, Sections and
Exhibits mean the Articles, Sections and Exhibits of this Declaration. The
Exhibits are hereby incorporated by reference into, and shall be deemed a part
of, this Declaration.
2
ARTICLE II
ORGANIZATION
SECTION 2.1. Name. The Trust created by this Declaration is named
"Exelon Capital Trust II." The Trust's activities may be conducted under the
name of the Trust or any other name deemed advisable by the Administrative
Trustees.
SECTION 2.2. Office. The address of the principal office of the
Trust is c/o Exelon Corporation, 10 South Dearborn Street - 37th Floor, P.O. Box
805379, Chicago, Illinois 60680. At any time, the Administrative Trustees may
designate another principal office.
SECTION 2.3. Purpose. The exclusive purposes and functions of the
Trust are (a) to issue and sell Securities and use the proceeds from such sale
to acquire the Debt Securities and (b) except as otherwise limited herein, to
engage in only those other activities necessary, or incidental thereto. The
Trust shall not borrow money, issue debt or reinvest proceeds derived from
investments or pledge any of its assets.
SECTION 2.4. Authority. Subject to the limitations provided in this
Declaration, the Administrative Trustees shall have exclusive and complete
authority to carry out the purposes of the Trust. An action taken by the
Administrative Trustees in accordance with their powers shall constitute the act
of, and serve to bind, the Trust. In dealing with the Administrative Trustees
acting on behalf of the Trust, no Person shall be required to inquire into the
authority of the Administrative Trustees to bind the Trust. Persons dealing with
the Trust are entitled to rely conclusively on the power and authority of the
Administrative Trustees as set forth in this Declaration.
SECTION 2.5. Powers of the Administrative Trustees. The
Administrative Trustees shall have the exclusive power and authority to cause
the Trust to engage in the following activities:
(a) to issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however, that the
Trust may issue no more than one series of Preferred Securities and no more than
one series of Common Securities, and, provided further, there shall be no
interests in the Trust other than the Securities;
(b) in connection with the issue and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) execute and file with the Securities and Exchange
Commission a registration statement on Form S-3 prepared by the Sponsor in
relation to the Preferred Securities, including any amendments thereto prepared
by the Sponsor;
(ii) determine the states in which to take appropriate action
to qualify or register for sale all or part of the Preferred Securities and to
take any and all such acts as they deem necessary or advisable to comply with
the applicable laws of any of those states;
(iii) execute and file an application prepared by the Sponsor
to the New York Stock Exchange, Inc. or any other national stock exchange or the
NASDAQ Stock Market's National Market for listing upon notice of issuance of any
Preferred Securities; and
(iv) execute and file with the Securities and Exchange
Commission a registration statement on Form 8-A prepared by the Sponsor relating
to the registration of the Preferred Securities under Section 12(b) of the
Exchange Act, including any amendments thereto;
3
(c) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors, and
consultants and provide for reasonable compensation for such services;
(d) to incur expenses which are necessary or incidental to carry on
any of the purposes of this Declaration;
(e) to negotiate the terms of, and enter into, an underwriting
agreement with one or more underwriters with respect to the sale of the
Preferred Securities of the Trust; and
(f) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing.
SECTION 2.6. Filing of Certificate of Trust. On or after the date of
execution of this Declaration, the Trustees shall cause the Certificate of Trust
for the Trust in the form attached hereto as Exhibit A to be filed with the
Secretary of State of the State of Delaware.
SECTION 2.7. Duration of Trust. The Trust, absent dissolution
pursuant to the provisions of Section 5.2, shall have existence for thirty years
from the date hereof.
ARTICLE III
TRUSTEES
SECTION 3.1. Trustees. The number of Trustees shall initially be
two, and thereafter the number of Trustees shall be such number as shall be
fixed from time to time by a written instrument signed by the Sponsor. The
Sponsor is entitled to appoint or remove without cause any Trustee at any time;
provided, that the number of Trustees shall in no event be less than two; and
provided further that one Trustee, in the case of a natural person, shall be a
person who is a resident of the State of Delaware or which, if not a natural
person, has its principal place of business in the State of Delaware (the
"Delaware Trustee"). Any Trustee may resign upon the giving of thirty (30) days
prior written notice to the Sponsor.
Except as expressly set forth in this Declaration, any power of the
Administrative Trustees may be exercised by, or with the consent of, a majority
of the Administrative Trustees; provided that if there is only one
Administrative Trustee, all powers of the Administrative Trustees shall be
exercised by such one Administrative Trustee.
The initial Administrative Trustee shall be:
Thomas R. Miller of Exelon Corporation
The initial Delaware Trustee shall be:
Wachovia Trust Company, National Association
One Rodney Square
920 King Street, Suite 102
Wilmington, DE 19801
Attn: Rita Marie Ritrovato, Trust Officer
4
SECTION 3.2. Delaware Trustee. Notwithstanding any other provisions
of this Declaration, the Delaware Trustee, in its capacity as Delaware Trustee,
shall not be entitled to exercise any of the powers, nor shall the Delaware
Trustee have any of the duties and responsibilities, of the Administrative
Trustees described in this Declaration. The Delaware Trustee shall be a Trustee
for the sole and limited purpose of fulfilling the requirements of Section 3807
of the Trust Act.
SECTION 3.3. Execution of Documents. (a) Any one of the
Administrative Trustees is each authorized to execute on behalf of the Trust any
documents that the Administrative Trustees have the power and authority to cause
the Trust to execute pursuant to Section 2.5.
(b) The Administrative Trustees may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21
their power for the purposes of signing any documents which the Administrative
Trustees have power and authority to cause the Trust to execute pursuant to
Section 2.5.
ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1. Exculpation. (a) No Indemnified Person shall be liable,
responsible or accountable in damages or otherwise to the Trust 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 on behalf of the
Trust and in a manner such Indemnified Person reasonably believed to be within
the scope of the authority conferred on such Indemnified Person by this
Declaration or by law, except that an Indemnified Person shall be liable for any
such loss, damage or claim incurred by reason of such Indemnified Person's gross
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 Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Trust, 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 4.2. Fiduciary Duty. (a) To the extent that, at law or in
equity, an Indemnified Person has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to any other Covered Person, an
Indemnified Person acting under this Declaration shall not be liable to the
Trust or to any other Covered Person for its good faith reliance on the
provisions of this Declaration. The provisions of this Declaration, to the
extent that they restrict the duties and liabilities of an Indemnified Person
otherwise existing at law or in equity, are agreed by the parties hereto to
replace such other duties and liabilities of such Indemnified Person.
(b) Unless otherwise expressly provide herein:
(i) whenever a conflict or interest exists or arises between
an Indemnified Person and a Covered Person, or
5
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified Person shall act in
a manner that is, or provides terms that are, fair and reasonable to the Trust
or any Holder,
then the Indemnified Person shall resolve such conflict of interest,
take such action or provide such terms, considering in each case the relative
interest of each party (including its own interest) to such conflict, agreement,
transaction or situation and the benefits and burdens relating to such
interests, any customary or accepted industry practices, and any applicable
generally accepted accounting practices or principles. In the absence of bad
faith by the Indemnified Person, the resolution, action or term so made, taken
or provided by the Indemnified Person shall not constitute a breach of this
Declaration or any other agreement contemplated herein or of any duty or
obligation of the Indemnified Person at law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is permitted
or required to make a decision:
(i) in its "discretion" or under a grant of similar authority,
the Indemnified Person shall be entitled to consider such interest and factors
as it desires, including its own interests, and shall have no duty or obligation
to give any consideration to any interest of, or factors affecting, the Trust or
any other Person; or
(ii) in its "good faith" or under another express standard,
the Indemnified Person shall act under such express standard and shall not be
subject to any other or different standard imposed by this Declaration or by
applicable law.
SECTION 4.3 Indemnification. (a) To the fullest extent permitted by
applicable law, the Sponsor shall indemnify and hold harmless each Indemnified
Person from and against any loss, damage or claim incurred by such Indemnified
Person by reason of any act or omission performed or omitted by such Indemnified
Person in good faith on behalf of the Trust and in a manner such Indemnified
Person reasonably believed to be within the scope of authority conferred on such
Indemnified Person by this Declaration, except that no Indemnified Person shall
be entitled to be indemnified in respect of any loss, damage or claim incurred
by such Indemnified Person by reason of gross negligence or willful misconduct
with respect to such acts or omissions.
(b) To the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by an Indemnified Person in defending any claim,
demand, action, suit or proceeding shall, from time to time, be advanced by the
Sponsor 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 the
Indemnified Person to repay such amount if it shall be determined that the
Indemnified Person is not entitled to be indemnified as authorized in Section
4.3(a).
(c) The provisions of this Section shall survive the termination of
this Declaration and the Trust or the earlier resignation or removal of the
Indemnified Persons.
SECTION 4.4. Other Businesses. Any Covered Person, the Sponsor and
the Delaware Trustee may engage in or possess an interest in other business
ventures of any nature or description, independently or with others, similar or
dissimilar to the business of the Trust, and the Trust and the Holders shall
have no rights by virtue of this Declaration in and to such independent ventures
or the income or profits derived therefrom and the pursuit of any such venture,
even if competitive with the business of the Trust, shall not be deemed wrongful
or improper. No Covered Person, the Sponsor or the Delaware Trustee shall be
obligated to present any particular investment or other opportunity to the Trust
6
even if such opportunity is of a character that, if presented to the Trust,
could be taken by the Trust, and any Covered Person, the Sponsor and the
Delaware Trustee shall have the right to take for its own account (individually
or as a partner or fiduciary) or to recommend to others any such particular
investment or other opportunity. Any Covered Person and the Delaware Trustee may
engage or be interested in any financial or other transaction with the Sponsor
or any Affiliate of the Sponsor, or may act on any committee or body of holders
of securities or other obligations of the Sponsor or its Affiliates.
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1. Amendments. At any time before the issue of any
Securities, this Declaration may be amended by, and only by, a written
instrument executed by a majority of the Administrative Trustees, the Delaware
Trustee and the Sponsor.
SECTION 5.2 Termination of Trust. (a) The Trust shall dissolve:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor or the revocation of the Sponsor's
charter;
(iii) upon the entry of a decree of judicial dissolution of
the Sponsor or the Trust; or
(iv) before the issue of any Securities, with the consent of
at least a majority of the Administrative Trustees and the Sponsor.
(b) Upon dissolution, the Delaware Trustee shall apply any funds
deposited with it to reimburse the Delaware Trustee for any filing fees or other
expenses in connection with the termination of the Trust. Any remaining funds
shall, after payment of any other expenses of the Trust, be returned to the
Sponsor.
(c) As soon as is practicable after the occurrence of an event
referred to in Section 5.2(a), the Trustees shall execute and the Delaware
Trustee shall file a certificate of cancellation with the Secretary of State of
the State of Delaware. Thereupon, the Trust shall terminate and this Declaration
shall be of no further force or effect (except Section 4.3, which shall
survive).
SECTION 5.3. Governing Law. This Declaration and the rights of the
parties hereunder shall be governed by and interpreted in accordance with the
laws of the State of Delaware and all rights and remedies shall be governed by
such laws without regard to principles of conflict of laws.
SECTION 5.4. Successors and Assigns. Whenever in this Declaration
any of the parties hereto is named or referred to, the successors and assigns of
such party shall be deemed to be included, and all covenants and agreements in
this Declaration by the Sponsor and the Trustees shall bind and inure to the
benefit of their respective successors and assigns, whether so expressed.
SECTION 5.5. Partial Enforceability. If any provisions of this
Declaration, or the application of such provision to any Person or circumstance,
shall be held invalid, the remainder of this Declaration, or the application of
such provision to persons or circumstances other than those to which it is held
invalid, shall not be affected thereby.
7
SECTION 5.6. Counterparts. This Declaration may contain more than
one counterpart of the signature page and this Declaration 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.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
8
IN WITNESS WHEREOF, the undersigned have caused this Declaration of
Trust of Exelon Capital Trust II to be executed as of the day and year first
above written.
TRUSTEES:
/s/ Thomas R. Miller
--------------------------------------------------
Name: Thomas R. Miller, as Administrative Trustee
WACHOVIA TRUST COMPANY, NATIONAL
ASSOCIATION, as Delaware Trustee
By: /s/ Rita Marie Ritrovato
--------------------------------------------------
Name: Rita Marie Ritrovato
Title: Trust Officer
SPONSOR:
EXELON CORPORATION, as Sponsor
By: /s/ Thomas R. Miller
--------------------------------------------------
Name: Thomas R. Miller
Title: Vice President
9
EXHIBIT A
CERTIFICATE OF TRUST
OF
EXELON CAPITAL TRUST II
The undersigned, the trustees of Exelon Capital Trust II, desiring
to form a statutory trust pursuant to Delaware Statutory Trust Act, 12 Del. C.
Section 3801 et seq., hereby certify as follows:
1. Name. The name of the trust (the "Trust") formed hereby is Exelon
Capital Trust II.
2. Delaware Trustee. The name and business address of the trustee of
the Trust which has its principal place of business in the State of Delaware is
as follows:
Wachovia Trust Company, National Association
One Rodney Square
920 King Street, Suite 102
Wilmington, DE 19801
Attn: Rita Marie Ritrovato, Trust Officer
3. Effective Date. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned have executed this Certificate
of Trust as of August 25, 2003.
/s/ Thomas R. Miller
-----------------------------------------------
Thomas R. Miller, as Administrative Trustee
WACHOVIA TRUST COMPANY, NATIONAL
ASSOCIATION, as Trustee
By: /s/ Rita Marie Ritrovato
-----------------------------------------------
Name: Rita Marie Ritrovato
Title: Trust Officer
Exhibit 4-10
DECLARATION OF TRUST
OF
EXELON CAPITAL TRUST III
THIS DECLARATION OF TRUST (this "Declaration"), dated and effective
as of August 25, 2003, by the undersigned trustees (together with all other
Persons from time to time duly appointed and serving as trustees in accordance
with the provisions of this Declaration, the "Trustees"), Exelon Corporation, a
Pennsylvania corporation, as trust sponsor (the "Sponsor"), and by the holders,
from time to time, of undivided beneficial interests in the Trust to be issued
pursuant to this Declaration;
W I T N E S S E T H:
WHEREAS, the parties hereto desire to establish a trust (the
"Trust") pursuant to the Delaware Statutory Trust Act for the sole purpose of
issuing and selling certain securities representing undivided beneficial
interests in the assets of the Trust and investing the proceeds thereof in
certain Debt Securities (as hereinafter defined) of the Debt Issuer (as
hereinafter defined);
NOW, THEREFORE, it being the intention of the parties hereto that
the Trust constitute a statutory trust under the Delaware Statutory Trust Act
and that this Declaration constitute the governing instrument of such statutory
trust, the Trustees declare that all assets contributed to the Trust will be
held in trust for the benefit of the holders, from time to time, of the
securities representing undivided beneficial interests in the assets of the
Trust issued hereunder, subject to the provisions of this Declaration.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. Definitions. Capitalized terms used in this Declaration
but not defined in the preamble above have the respective meanings assigned to
them in this Section 1.1. A term defined anywhere in this Declaration has the
same meaning throughout.
"Administrative Trustee" means any Trustee other than the Delaware
Trustee, acting in its capacity as Delaware Trustee.
"Affiliate" has the same meaning as given to that term in Rule 405
of the Securities Act or any successor rule thereunder.
"Business Day" means any day other than a day on which banking
institutions in New York, New York are authorized or required by law to close.
"Certificate" means a Common Security Certificate or a Preferred
Security Certificate.
"Common Security" means a security representing an undivided
beneficial interest in the assets of the Trust with such terms as may be set out
in any amendment to this Declaration.
"Common Security Certificate" means a certificate representing a
Common Security.
"Covered Person" means any officer, director, shareholder, partner,
member, representative, employee or agent of the Trust or its Affiliates.
"Debt Issuer" means Exelon Corporation, a Pennsylvania corporation,
in its capacity as the issuer of the Debt Securities.
"Debt Securities" means the series of Debt Securities to be issued
by the Debt Issuer.
"Delaware Trustee" has the meaning set forth in Section 3.1.
"Exchange Act" means the Securities and Exchange Act of 1934, as
amended.
"Holder" means the Person in whose name a Certificate representing a
Security is registered.
"Indemnified Person" means any Trustee, any Affiliate of any
Trustee, or any officers, directors, shareholders, members, partners, employees,
representatives or agents of any Trustee, or any employee or agent of the Trust
or its Affiliates.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Security" means a security representing an undivided
beneficial interest in the assets of the Trust with such terms as may be set out
in any amendment to this Declaration.
"Preferred Security Certificate" means a certificate representing a
Preferred Security.
"Securities" mean the Common Securities and the Preferred
Securities.
"Securities Act" means the Securities Act of 1933, as amended.
"Sponsor" means Exelon Corporation, a Pennsylvania corporation, in its
capacity as sponsor of the Trust.
"Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12
Del. C. Sections 3801 et seq., as the same may be amended from time to time.
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
SECTION 1.2. Interpretation. Each definition in this Declaration
includes the singular and the plural, and references to the neuter gender
include the masculine and feminine where appropriate. Terms which relate to
accounting matters shall be interpreted in accordance with generally accepted
accounting principles in effect from time to time. References to any statute
mean such statute as amended at the time and include any successor legislation.
The word "or" is not exclusive, and the words "herein," "hereof" and "hereunder"
refer to this Declaration as a whole. The headings to the Articles and Sections
are for convenience of reference and shall not affect the meaning or
interpretation of this Declaration. References to Articles, Sections and
Exhibits mean the Articles, Sections and Exhibits of this Declaration. The
Exhibits are hereby incorporated by reference into, and shall be deemed a part
of, this Declaration.
2
ARTICLE II
ORGANIZATION
SECTION 2.1. Name. The Trust created by this Declaration is named
"Exelon Capital Trust III." The Trust's activities may be conducted under the
name of the Trust or any other name deemed advisable by the Administrative
Trustees.
SECTION 2.2. Office. The address of the principal office of the
Trust is c/o Exelon Corporation, 10 South Dearborn Street - 37th Floor, P.O. Box
805379, Chicago, Illinois 60680. At any time, the Administrative Trustees may
designate another principal office.
SECTION 2.3. Purpose. The exclusive purposes and functions of the
Trust are (a) to issue and sell Securities and use the proceeds from such sale
to acquire the Debt Securities and (b) except as otherwise limited herein, to
engage in only those other activities necessary, or incidental thereto. The
Trust shall not borrow money, issue debt or reinvest proceeds derived from
investments or pledge any of its assets.
SECTION 2.4. Authority. Subject to the limitations provided in this
Declaration, the Administrative Trustees shall have exclusive and complete
authority to carry out the purposes of the Trust. An action taken by the
Administrative Trustees in accordance with their powers shall constitute the act
of, and serve to bind, the Trust. In dealing with the Administrative Trustees
acting on behalf of the Trust, no Person shall be required to inquire into the
authority of the Administrative Trustees to bind the Trust. Persons dealing with
the Trust are entitled to rely conclusively on the power and authority of the
Administrative Trustees as set forth in this Declaration.
SECTION 2.5. Powers of the Administrative Trustees. The
Administrative Trustees shall have the exclusive power and authority to cause
the Trust to engage in the following activities:
(a) to issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however, that the
Trust may issue no more than one series of Preferred Securities and no more than
one series of Common Securities, and, provided further, there shall be no
interests in the Trust other than the Securities;
(b) in connection with the issue and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) execute and file with the Securities and Exchange
Commission a registration statement on Form S-3 prepared by the Sponsor in
relation to the Preferred Securities, including any amendments thereto prepared
by the Sponsor;
(ii) determine the states in which to take appropriate action
to qualify or register for sale all or part of the Preferred Securities and to
take any and all such acts as they deem necessary or advisable to comply with
the applicable laws of any of those states;
(iii) execute and file an application prepared by the Sponsor
to the New York Stock Exchange, Inc. or any other national stock exchange or the
NASDAQ Stock Market's National Market for listing upon notice of issuance of any
Preferred Securities; and
(iv) execute and file with the Securities and Exchange
Commission a registration statement on Form 8-A prepared by the Sponsor relating
to the registration of the Preferred Securities under Section 12(b) of the
Exchange Act, including any amendments thereto;
3
(c) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors, and
consultants and provide for reasonable compensation for such services;
(d) to incur expenses which are necessary or incidental to carry on
any of the purposes of this Declaration;
(e) to negotiate the terms of, and enter into, an underwriting
agreement with one or more underwriters with respect to the sale of the
Preferred Securities of the Trust; and
(f) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing.
SECTION 2.6. Filing of Certificate of Trust. On or after the date of
execution of this Declaration, the Trustees shall cause the Certificate of Trust
for the Trust in the form attached hereto as Exhibit A to be filed with the
Secretary of State of the State of Delaware.
SECTION 2.7. Duration of Trust. The Trust, absent dissolution
pursuant to the provisions of Section 5.2, shall have existence for thirty years
from the date hereof.
ARTICLE III
TRUSTEES
SECTION 3.1. Trustees. The number of Trustees shall initially be
two, and thereafter the number of Trustees shall be such number as shall be
fixed from time to time by a written instrument signed by the Sponsor. The
Sponsor is entitled to appoint or remove without cause any Trustee at any time;
provided, that the number of Trustees shall in no event be less than two; and
provided further that one Trustee, in the case of a natural person, shall be a
person who is a resident of the State of Delaware or which, if not a natural
person, has its principal place of business in the State of Delaware (the
"Delaware Trustee"). Any Trustee may resign upon the giving of thirty (30) days
prior written notice to the Sponsor.
Except as expressly set forth in this Declaration, any power of the
Administrative Trustees may be exercised by, or with the consent of, a majority
of the Administrative Trustees; provided that if there is only one
Administrative Trustee, all powers of the Administrative Trustees shall be
exercised by such one Administrative Trustee.
The initial Administrative Trustee shall be:
Thomas R. Miller of Exelon Corporation
The initial Delaware Trustee shall be:
Wachovia Trust Company, National Association
One Rodney Square
920 King Street, Suite 102
Wilmington, DE 19801
Attn: Rita Marie Ritrovato, Trust Officer
4
SECTION 3.2. Delaware Trustee. Notwithstanding any other provisions
of this Declaration, the Delaware Trustee, in its capacity as Delaware Trustee,
shall not be entitled to exercise any of the powers, nor shall the Delaware
Trustee have any of the duties and responsibilities, of the Administrative
Trustees described in this Declaration. The Delaware Trustee shall be a Trustee
for the sole and limited purpose of fulfilling the requirements of Section 3807
of the Trust Act.
SECTION 3.3. Execution of Documents. (a) Any one of the
Administrative Trustees is each authorized to execute on behalf of the Trust any
documents that the Administrative Trustees have the power and authority to cause
the Trust to execute pursuant to Section 2.5.
(b) The Administrative Trustees may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21
their power for the purposes of signing any documents which the Administrative
Trustees have power and authority to cause the Trust to execute pursuant to
Section 2.5.
ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1. Exculpation. (a) No Indemnified Person shall be liable,
responsible or accountable in damages or otherwise to the Trust 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 on behalf of the
Trust and in a manner such Indemnified Person reasonably believed to be within
the scope of the authority conferred on such Indemnified Person by this
Declaration or by law, except that an Indemnified Person shall be liable for any
such loss, damage or claim incurred by reason of such Indemnified Person's gross
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 Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Trust, 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 4.2. Fiduciary Duty. (a) To the extent that, at law or in
equity, an Indemnified Person has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to any other Covered Person, an
Indemnified Person acting under this Declaration shall not be liable to the
Trust or to any other Covered Person for its good faith reliance on the
provisions of this Declaration. The provisions of this Declaration, to the
extent that they restrict the duties and liabilities of an Indemnified Person
otherwise existing at law or in equity, are agreed by the parties hereto to
replace such other duties and liabilities of such Indemnified Person.
(b) Unless otherwise expressly provide herein:
(i) whenever a conflict or interest exists or arises between
an Indemnified Person and a Covered Person, or
5
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified Person shall act in
a manner that is, or provides terms that are, fair and reasonable to the Trust
or any Holder,
then the Indemnified Person shall resolve such conflict of interest,
take such action or provide such terms, considering in each case the relative
interest of each party (including its own interest) to such conflict, agreement,
transaction or situation and the benefits and burdens relating to such
interests, any customary or accepted industry practices, and any applicable
generally accepted accounting practices or principles. In the absence of bad
faith by the Indemnified Person, the resolution, action or term so made, taken
or provided by the Indemnified Person shall not constitute a breach of this
Declaration or any other agreement contemplated herein or of any duty or
obligation of the Indemnified Person at law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is permitted
or required to make a decision:
(i) in its "discretion" or under a grant of similar authority,
the Indemnified Person shall be entitled to consider such interest and factors
as it desires, including its own interests, and shall have no duty or obligation
to give any consideration to any interest of, or factors affecting, the Trust or
any other Person; or
(ii) in its "good faith" or under another express standard,
the Indemnified Person shall act under such express standard and shall not be
subject to any other or different standard imposed by this Declaration or by
applicable law.
SECTION 4.3 Indemnification. (a) To the fullest extent permitted by
applicable law, the Sponsor shall indemnify and hold harmless each Indemnified
Person from and against any loss, damage or claim incurred by such Indemnified
Person by reason of any act or omission performed or omitted by such Indemnified
Person in good faith on behalf of the Trust and in a manner such Indemnified
Person reasonably believed to be within the scope of authority conferred on such
Indemnified Person by this Declaration, except that no Indemnified Person shall
be entitled to be indemnified in respect of any loss, damage or claim incurred
by such Indemnified Person by reason of gross negligence or willful misconduct
with respect to such acts or omissions.
(b) To the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by an Indemnified Person in defending any claim,
demand, action, suit or proceeding shall, from time to time, be advanced by the
Sponsor 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 the
Indemnified Person to repay such amount if it shall be determined that the
Indemnified Person is not entitled to be indemnified as authorized in Section
4.3(a).
(c) The provisions of this Section shall survive the termination of
this Declaration and the Trust or the earlier resignation or removal of the
Indemnified Persons.
SECTION 4.4. Other Businesses. Any Covered Person, the Sponsor and
the Delaware Trustee may engage in or possess an interest in other business
ventures of any nature or description, independently or with others, similar or
dissimilar to the business of the Trust, and the Trust and the Holders shall
have no rights by virtue of this Declaration in and to such independent ventures
or the income or profits derived therefrom and the pursuit of any such venture,
even if competitive with the business of the Trust, shall not be deemed wrongful
or improper. No Covered Person, the Sponsor or the Delaware Trustee shall be
obligated to present any particular investment or other opportunity to the Trust
6
even if such opportunity is of a character that, if presented to the Trust,
could be taken by the Trust, and any Covered Person, the Sponsor and the
Delaware Trustee shall have the right to take for its own account (individually
or as a partner or fiduciary) or to recommend to others any such particular
investment or other opportunity. Any Covered Person and the Delaware Trustee may
engage or be interested in any financial or other transaction with the Sponsor
or any Affiliate of the Sponsor, or may act on any committee or body of holders
of securities or other obligations of the Sponsor or its Affiliates.
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1. Amendments. At any time before the issue of any
Securities, this Declaration may be amended by, and only by, a written
instrument executed by a majority of the Administrative Trustees, the Delaware
Trustee and the Sponsor.
SECTION 5.2 Termination of Trust. (a) The Trust shall dissolve:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor or the revocation of the Sponsor's
charter;
(iii) upon the entry of a decree of judicial dissolution of
the Sponsor or the Trust; or
(iv) before the issue of any Securities, with the consent of
at least a majority of the Administrative Trustees and the Sponsor.
(b) Upon dissolution, the Delaware Trustee shall apply any funds
deposited with it to reimburse the Delaware Trustee for any filing fees or other
expenses in connection with the termination of the Trust. Any remaining funds
shall, after payment of any other expenses of the Trust, be returned to the
Sponsor.
(c) As soon as is practicable after the occurrence of an event
referred to in Section 5.2(a), the Trustees shall execute and the Delaware
Trustee shall file a certificate of cancellation with the Secretary of State of
the State of Delaware. Thereupon, the Trust shall terminate and this Declaration
shall be of no further force or effect (except Section 4.3, which shall
survive).
SECTION 5.3. Governing Law. This Declaration and the rights of the
parties hereunder shall be governed by and interpreted in accordance with the
laws of the State of Delaware and all rights and remedies shall be governed by
such laws without regard to principles of conflict of laws.
SECTION 5.4. Successors and Assigns. Whenever in this Declaration
any of the parties hereto is named or referred to, the successors and assigns of
such party shall be deemed to be included, and all covenants and agreements in
this Declaration by the Sponsor and the Trustees shall bind and inure to the
benefit of their respective successors and assigns, whether so expressed.
SECTION 5.5. Partial Enforceability. If any provisions of this
Declaration, or the application of such provision to any Person or circumstance,
shall be held invalid, the remainder of this Declaration, or the application of
such provision to persons or circumstances other than those to which it is held
invalid, shall not be affected thereby.
7
SECTION 5.6. Counterparts. This Declaration may contain more than
one counterpart of the signature page and this Declaration 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.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
8
IN WITNESS WHEREOF, the undersigned have caused this Declaration of
Trust of Exelon Capital Trust III to be executed as of the day and year first
above written.
TRUSTEES:
/s/ Thomas R. Miller
---------------------------------------------------
Name: Thomas R. Miller, as Administrative Trustee
WACHOVIA TRUST COMPANY, NATIONAL
ASSOCIATION, as Delaware Trustee
By: /s/ Rita Marie Ritrovato
---------------------------------------------------
Name: Rita Marie Ritrovato
Title: Trust Officer
SPONSOR:
EXELON CORPORATION, as Sponsor
By: /s/ Thomas R. Miller
---------------------------------------------------
Name: Thomas R. Miller
Title: Vice President
9
EXHIBIT A
CERTIFICATE OF TRUST
OF
EXELON CAPITAL TRUST III
The undersigned, the trustees of Exelon Capital Trust II, desiring
to form a statutory trust pursuant to Delaware Statutory Trust Act, 12 Del. C.
Section 3801 et seq., hereby certify as follows:
1. Name. The name of the trust (the "Trust") formed hereby is Exelon
Capital Trust III.
2. Delaware Trustee. The name and business address of the trustee of
the Trust which has its principal place of business in the State of Delaware is
as follows:
Wachovia Trust Company, National Association
One Rodney Square
920 King Street, Suite 102
Wilmington, DE 19801
Attn: Rita Marie Ritrovato, Trust Officer
3. Effective Date. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned have executed this Certificate
of Trust as of August 25, 2003.
/s/ Thomas R. Miller
-------------------------------------------
Thomas R. Miller, as Administrative Trustee
WACHOVIA TRUST COMPANY, NATIONAL
ASSOCIATION, as Trustee
By: /s/ Rita Marie Ritrovato
-------------------------------------------
Name: Rita Marie Ritrovato
Title: Trust Officer
Exhibit 4-11
EXELON CAPITAL TRUST __
AMENDED AND RESTATED DECLARATION OF TRUST
among
EXELON CORPORATION, as Sponsor,
WACHOVIA TRUST COMPANY, NATIONAL ASSOCIATION,
as Delaware Trustee and Property Trustee,
and
__________________, __________________ and ___________________
as Administrative Trustees
Dated as of ________, 200_
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..................................................18
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...................................................19
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.....................................................21
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.........................................................................22
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.......................................................................25
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..............................31
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...........................................................................40
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...........................................................42
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
_________, 200_, by and among (i) Exelon Corporation, 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) ________________, an individual,
_______________, an individual, and _______________, 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
_______________, 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 August __, 2003
(the "Original Declaration of Trust"), and by the execution and filing by the
Delaware Trustee and _____________, as Administrative Trustee, with the
Secretary of State of the State of Delaware of the Certificate of Trust, dated
and filed on August __, 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
_____________ and _____________, 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 _________, 200_, 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 $______ 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 $__________ aggregate principal amount
of the Sponsor's ___% Deferrable Interest Subordinated Debentures due
____________ 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 $_____ 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
____________ basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate plus __%,
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).
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"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 $_____ 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
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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.
"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
____________ basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate plus __%,
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
_____________, 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 __________, 200_, 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 "Exelon Capital Trust __,"
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
Exelon Corporation, 10 South Dearborn Street - 37th Floor, P.O. Box 805379,
Chicago, IL 60680, Attention: Secretary. The principal place of business of the
Trust is c/o Exelon Corporation, 10 South Dearborn Street - 37th Floor, P.O. Box
805379, Chicago, IL 60680. 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 _______
Preferred Securities having an aggregate Liquidation Amount of $__________,
against receipt of the aggregate purchase price of such Preferred Securities of
$__________.
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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 _______ Common
Securities having an aggregate Liquidation Amount of $__________, against
payment by the Sponsor of $__________. 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
$__________, 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 $____________.
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;
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(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 Distributions
14
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 period for
15
the Debentures pursuant to Section __ of the Indenture Certificate,
shall be payable _____________ in arrears on ____________ and
____________ of each year, commencing on ____________, 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 ___% 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 ___________ period will bear interest thereon
compounded _____________ at ___% per annum (to the extent permitted by
applicable law). The amount of Distributions payable for any full
___________ 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 __ 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 ___________ Distributions will continue
to accrue with interest thereon (to the extent permitted by applicable
law) at ___% per annum compounded _____________ ("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
17
without 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 $_____.
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 $_____ or integral multiple thereof)
of the Liquidation Amount of Preferred Securities of a denomination
larger than $_____. 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 ___________ 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.
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
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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 and until the issuance of the Trust
Securities, and at any time during which no Trust Securities are outstanding,
the 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 $_____ 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
19
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.
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.
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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 ____________, not later than
____________ and ____________ 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 __% 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 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
21
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, at 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 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
22
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 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
23
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 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
24
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 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 $_____ of
Liquidation Amount represented by their Trust Securities in respect of any
matter as to which such Securityholders are entitled to vote.
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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 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.
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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.
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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' 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 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
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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 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;
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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, 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
30
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.
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.
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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.
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.
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(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.
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
33
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.
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 Outstanding
Preferred Securities, 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,
34
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.
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.
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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, ____, 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.
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
36
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.
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 ___ consecutive ___________ 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,
37
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 ____________, ____ (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
(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,
38
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 satisfaction 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 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
39
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 or the other
Trustees, (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 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, and provided further, that any such
admendment shall not adversely affect in any material respect the
rights, duties, immunities or liabilities of the other Trustees
(without the consent of such 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
40
Securityholders. Except as provided in Section 10.03(c), any provision
in this Amended and Restated Declaration of Trust may be amended by the
Sponsor and the Administrative 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, provided that any such
amendment shall not adversely affect in any material respect the
rights, duties, immunitiies or liabilities of the other Trustees
(without the consent of such Trustees). The Sponsor and the
Administrative Trustees shall provide the other Trustees with notice of
any amendment made pursuant to this Section 10.03(a) without their
consent.
(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 and the other Trustees a copy of
such amendment.
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
41
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 Exelon
Corporation, 10 South Dearborn Street - 37th Floor, P.O. Box 805379, Chicago, IL
60680, Attention: Treasurer, Facsimile No. (312) ___-____. 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, 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 Exelon Capital Trust __, 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 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.
42
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.
43
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.
EXELON CORPORATION,
as Sponsor
By: ________________________________
Name:
Title:
WACHOVIA TRUST COMPANY, NATIONAL
ASSOCIATION,
as Property Trustee and Delaware Trustee
By: ________________________________
Name:
Title:
_____________________________________
, as Administrative Trustee
_____________________________________
, as Administrative Trustee
_____________________________________
, 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 _______
Certificate Evidencing Common Securities
of
Exelon Capital Trust __
___% Common Securities
(Liquidation amount $_____ per Common Security)
Exelon Capital Trust __, a statutory trust created under the
laws of the State of Delaware (the "Trust"), hereby certifies that Exelon
Corporation, a Pennsylvania corporation (the "Holder"), is the registered owner
of ____________________ (_______) common securities of the Trust representing
undivided beneficial interests in the assets of the Trust and designated the
___% Common Securities (liquidation amount $_____ 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 _________, 200_, 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 __ day of ______, 200_.
EXELON CAPITAL TRUST __
By: _____________________________________
, 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: ________, 200_ 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 ___% per annum applied to the stated liquidation
amount of $_____ 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 ___________ period will bear interest thereon
compounded _____________ at a rate of ___% 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 ___________ 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 _____________ in arrears
on ____________ and ____________ of each year, commencing on ____________, 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 __
consecutive ___________ periods or extend beyond the maturity date of the
Debentures. As a consequence of an Extension Period, Distributions will also be
deferred, provided that ___________ Distributions will continue to accrue with
interest thereon (to the extent permitted by applicable law) at a rate of ___%
per annum, compounded _____________ ("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
A-3
cause, after the satisfaction of liabilities to creditors of the Trust, 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 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 __________, 200_, between Exelon Corporation, a
Pennsylvania corporation (the "Company"), and Exelon Capital Trust __, 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 ___% 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 _________, 200_, 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:
Exelon Corporation
10 South Dearborn Street - 37th Floor
P.O. Box 805379
Chicago, Illinois 60680
Attention: Treasurer
If to the Trust:
Exelon Capital Trust __
c/o Exelon Corporation
P.O. Box 805379
Chicago, Illinois 60680
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.
EXELON CORPORATION
By: ________________________________
Name:
Title:
EXELON CAPITAL TRUST __
By: ____________________________________
, 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 _______
CUSIP NO. _______________
Certificate Evidencing Preferred Securities
of
Exelon Capital Trust __
___% Trust Preferred Securities
(Liquidation amount $_____ per Preferred Security)
Exelon Capital Trust __, 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 (_______)
preferred securities of the Trust representing undivided beneficial interests in
the assets of the Trust and designated the Exelon Capital Trust __ ___% Trust
Preferred Securities (liquidation amount $_____ 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 _______, 200_, 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 __ day of __________, 200_.
EXELON CAPITAL TRUST __
By: ____________________________________
, 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: ________, 200_ 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 ___% per annum applied to the stated liquidation
amount of $_____ 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 ___________ period will bear interest thereon
compounded _____________ at a rate of ___% 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 ___________ 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 _____________ in arrears
on ____________ and ____________ of each year, commencing on ____________, 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 _______ consecutive ___________ periods or extend beyond
the maturity date of the Debentures. As a consequence of an Extension Period,
Distributions will also be deferred, provided that ___________ Distributions
will continue to accrue with interest thereon (to the extent permitted by
applicable law) at a rate of ___% per annum, compounded _____________
("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.
C-4
The Preferred Securities shall be redeemable as provided in
the Amended and Restated Declaration of Trust.
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 4-12
PREFERRED SECURITIES GUARANTEE AGREEMENT
Between
Exelon Corporation
(as Guarantor)
and
Wachovia Trust Company, National Association
(as Trustee)
dated as of
_________, 200_
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 _________, 200_ between EXELON CORPORATION, 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 EXELON CAPITAL TRUST __, a
Delaware statutory trust (the "Trust").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration of Trust"), dated as of _________, 200_, 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 _________, 200_ $___________ aggregate liquidation amount of its ___%
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 "___% Deferrable
Interest Subordinated Debentures due ___________, 20__" 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 _________, 200_,
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: ____________________________________.
"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
____________________________________.
"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, 200_, 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
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Guarantee 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 absence of bad faith on its part, request and
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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
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(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.
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(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 out
9
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 reinstated, as the case may be, if at any time any
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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 66-2/3 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:
Exelon Corporation
10 South Dearborn Street -37th Floor
P.O. Box 805379
Chicago, Illinois 60680
Attention: Treasurer
Telecopy: (312) ___-____
(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
Exelon Capital Trust __
c/o Exelon Corporation
10 South Dearborn Street -37th Floor
P.O. Box 805379
Chicago, Illinois 60680
Attention: Treasurer
Telecopy: (312) ___-____
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
14
AGAINST IT AND 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.
EXELON CORPORATION
By: ________________________________
Name:
Title:
WACHOVIA TRUST COMPANY, NATIONAL
ASSOCIATION, as Trustee
By: ________________________________
Name:
Title:
16
Exhibit 4-13
- --------------------------------------------------------------------------------
PENNSYLVANIA DEPARTMENT OF STATE
CORPORATION BUREAU
- --------------------------------------------------------------------------------
Entity Number: ______ Statement with Respect to Shares
Domestic Business Corporation
(15 Pa.C.S.ss.1522)
Name
Exelon Corporation
- -----------------------------------------
Address
- ----------------------------------------- Document will be returned to the
10 South Dearborn Street - 37th Floor, name and address you enter to
P.O. Box 805379 the left.
- ----------------------------------------- <==
City State Zip Code
- ----------------------------------------
Chicago IL 60680
- -----------------------------------------
Fee: $52
Filed in the Department of State on ______________________
---------------------------------------
Secretary of the Commonwealth
In compliance with the requirements of 15 Pa.C.S. ss. 1522(b) (relating to
statement with respect to shares), the undersigned corporation, desiring to
state the designation and voting rights, preferences, limitations, and special
rights, if any, of a class or series of its shares, hereby states that:
1. The name of the corporation is:
Exelon Corporation
- --------------------------------------------------------------------------------
2. Check and complete one of the following:
___ The resolution amending the Articles under 15 Pa.C.S. ss. 1522(b) (relating
to divisions and determinations by the board), set forth in full, is as
follows:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
_X_ The resolution amending the Articles under 15 Pa.C.S. ss. 1522(b) is set
forth in full in Exhibit A attached hereto and made a part hereof.
- --------------------------------------------------------------------------------
3. The aggregate number of shares of such class or series established and
designated by (a) such resolution, (b) all prior statements, if any, filed
under 15 Pa.C.S. ss. 1522 or corresponding provisions of prior law with
respect thereto, and (c) any other provision of the Articles is
_______________ shares.
- --------------------------------------------------------------------------------
4. The resolution was adopted by the Board of Directors or an authorized
committee thereon on:
- --------------------------------------------------------------------------------
5. Check, and if appropriate complete, one of the following:
___ The resolution shall be effective upon the filing of this statement with
respect to shares in the Department of State.
___ The resolution shall be effective on: ___________ at _______________.
Date Hour
- --------------------------------------------------------------------------------
IN TESTIMONY WHEREOF, the undersigned corporation has caused this statement to
be signed by a duly authorized officer thereof this
___________ day of ______________, _______.
Exelon Corporation
- --------------------------------------------------------------------------------
Name of Corporation
- --------------------------------------------------------------------------------
Signature
- --------------------------------------------------------------------------------
Title
[OBJECT OMITTED]
Department of State
Corporation Bureau
P.O. Box 8722
Harrisburg, PA 17105-8722
(717) 787-1057
web site: www.dos.state.pa.us/corp.htm
Instructions for Completion of Form:
A. Typewritten is preferred. If not, the form shall be completed in black or
blue-black ink in order to permit reproduction. The filing fee for this
form is $52 made payable to the Department of State.
B. A separate form shall be submitted for each class or series of shares
affected. If a number of classes or series of shares are affected at the
same time, consideration should be given to filing form DSCB:15-1915/5915
(Articles of Amendment-Domestic Corporation).
C. The effective date in Paragraph 5 may not be prior to the filing date, but
the resolution may state a prior effective date "for accounting purposes
only."
D. If the corporation was incorporated on or after October 1, 1989, the words
"or corresponding provisions of prior law" may be omitted from Paragraph 3.
E. This form and all accompanying documents shall be mailed to the address
stated above.
F. To receive confirmation of the file date prior to receiving the microfilmed
original, send either a self-addressed, stamped postcard with the filing
information noted or a self-addressed, stamped envelope with a copy of the
filing document.
EXHIBIT A
RESOLUTIONS OF BOARD OF DIRECTORS
---------------------------------
RESOLVED, that the Company hereby establishes a series of Preferred
Stock which shall be designated as "___ % Preferred Stock", consisting of
_______________ shares without par value.
RESOLVED, that the terms of the ___% Preferred Stock, in the respect in
which the shares of such series may vary from shares of the other series of the
Preferred Stock shall be as follows:
(a) The dividend rate of ___% Preferred Stock shall be ___% per
annum, and shall be the date from which dividends shall be cumulative on all
shares issued prior to the record date for the dividend payable .
(b) The redemption price of the ___% Preferred Stock shall be
$___ per share if redeemed on or before ____________, $___ per share if redeemed
thereafter, but on or before , $ if redeemed thereafter but on or before ______,
and $___ per share if redeemed on or after ____________, together, in each case,
with a sum equal to accumulated and unpaid dividends, computed as provided in
Section __ of Article __ of the Company's Articles of Incorporation.
(c) The amount per share for the ___% Preferred Stock payable to
the holders thereof upon any voluntary or involuntary liquidation, dissolution
or winding-up of the Company, to which shall be added a sum equal to accumulated
and unpaid dividends, computed as provided in Section __ of the Company's
Articles of Incorporation, shall be $ ______.
LAW OFFICES
Ballard Spahr Andrews & Ingersoll, LLP BALTIMORE, MD
1735 MARKET STREET, 51ST FLOOR DENVER, CO
PHILADELPHIA, PENNSYLVANIA 19103-7599 SALT LAKE CITY, UT
215-665-8500 VOORHEES, NJ
FAX: 215-864-8999 WASHINGTON, DC
LAWYERS@BALLARDSPAHR.COM WILMINGTON, DE
Exhibit 5-1
September 5, 2003
Exelon Corporation
Exelon Capital Trust I
Exelon Capital Trust II
Exelon Capital Trust III
10 South Dearborn Street - 37th Floor
P.O. Box 805379
Chicago, Illinois 60680
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-3 (the "Registration
Statement") being filed by Exelon Corporation, a Pennsylvania corporation (the
"Company"), and Exelon Capital Trust I, Exelon Capital Trust II, and Exelon
Capital Trust III, each a statutory trust created under the laws of the State of
Delaware (each, a "Trust" and, collectively, the "Trusts"), with the Securities
and Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Act"), relating to: (i) shares of common stock, no par value (the
"Common Stock"), of the Company, (ii) Stock Purchase Contracts of the Company,
(iii) Stock Purchase Units of the Company, (iv) unsecured debt securities of the
Company (the "Debt Securities"), (v) unsecured subordinated debt securities of
the Company (the "Subordinated Indebtedness"), (vi) shares of preferred stock,
no par value (the "Preferred Stock"), of the Company, and (vii) trust preferred
securities (the "Trust Preferred Securities") of the Trusts and the related
guarantees (each, a "Guarantee" and, collectively, the "Guarantees") by the
Company with respect to the obligations of the Trusts with respect to any issue
of Trust Preferred Securities, in each case in amounts, at prices and on terms
to be determined at the time of an offering (collectively, the "Securities").
The Debt Securities will be issued under an Indenture (the "Debt
Indenture") between the Company and J.P. Morgan Trust Company, National
Association, formerly Chase Manhattan Trust Company, N.A., as trustee (the "Debt
Trustee"). The Subordinated Indebtedness will be issued under an Indenture (the
"Subordinated Indenture") between the Company and Wachovia Bank, National
Association, as trustee (the "Subordinated Trustee").
In rendering the opinions expressed below, we have examined originals
or copies, certified or otherwise identified to our satisfaction, of the
Registration Statement and all exhibits thereto and such corporate records and
other agreements, documents and instruments, and such certificates or comparable
documents of public officials and officers and representatives of the Company
and have made such inquiries of such officers and representatives and have
Exelon Capital Trust I
Exelon Capital Trust II
Exelon Capital Trust III
September 5, 2003
Page 2 of 5
considered such matters of law as we have deemed appropriate as the basis for
the opinion hereinafter set forth, including the Company's Restated Articles of
Incorporation, Bylaws, as amended, certain resolutions adopted by the Board of
Directors of the Company relating to the issuance of the Securities and
statements from certain officers of the Company. We have also assumed the
authenticity of all documents submitted to us as originals, the genuineness of
all signatures, the legal capacity of all persons and the conformity with the
original documents of any copies thereof submitted to us for examination.
Based on the foregoing, and subject to the qualifications and
limitations hereinafter set forth, we are of the opinion that:
1. When (a) the Registration Statement has become effective under the
Act, (b) the shares of Common Stock have been duly and properly authorized for
issuance, and (c) the shares of Common Stock have been duly and properly issued,
sold and delivered as contemplated in the Registration Statement and any
prospectus supplement relating thereto, the shares of Common Stock (including
any Common Stock duly issued pursuant to Stock Purchase Contracts), will be
legally issued, fully paid and non-assessable.
2. When (a) the Registration Statement has become effective under the
Act, (b) a Stock Purchase Contract Agreement relating to the Stock Purchase
Contracts (the "Stock Purchase Contract Agreement") and such Stock Purchase
Contracts have been duly and properly authorized, (c) the Stock Purchase
Contract Agreement has been duly and properly executed and delivered, (d) the
terms of the Stock Purchase Contracts and of their issuance and sale have been
duly and properly established in conformity with the Stock Purchase Contract
Agreement so as not to violate any applicable law or result in a default under
or breach of any agreement or instrument binding upon the Company and so as to
comply with any requirement or restriction imposed by any court or governmental
or regulatory body having jurisdiction over the Company, and (e) the Stock
Purchase Contracts have been duly and properly executed and issued in accordance
with the Stock Purchase Contract Agreement relating to such Stock Purchase
Contracts and issued and sold in the form and in the manner contemplated in the
Registration Statement and any prospectus supplement relating thereto, such
Stock Purchase Contracts will constitute valid and binding obligations of the
Company, enforceable in accordance with their terms, subject to (i) bankruptcy,
insolvency, reorganization, fraudulent transfer, moratorium and other similar
laws now or hereafter in effect relating to or affecting creditors' rights
generally and (ii) general principles of equity (regardless of whether
considered in a proceeding at law or in equity).
3. When (a) the Registration Statement has become effective under the
Act, (b) the Stock Purchase Units, a Stock Purchase Contract Agreement relating
to the Stock Purchase Contracts comprising a part of the Stock Purchase Units
and such Stock Purchase Contracts have been duly and properly authorized, (c)
the Stock Purchase Contract Agreement has been duly and properly executed and
delivered, (d) the terms of the Stock Purchase Contracts and of their issuance
and sale have been duly and properly established in conformity with the Stock
Purchase Contract Agreement so as not to violate any applicable law or result in
a default under or breach of any agreement or instrument binding upon the
Company and so as to comply with any requirement or restriction imposed by any
court or governmental or regulatory body having jurisdiction over the Company,
(e) the terms of the collateral arrangements relating to such Stock Purchase
Units have been duly and properly established and the agreement(s) relating
thereto has been duly and properly executed and delivered, in each case so as
not to violate any applicable law or result in a default under or breach of any
Exelon Capital Trust I
Exelon Capital Trust II
Exelon Capital Trust III
September 5, 2003
Page 3 of 5
agreement or instrument binding upon the Company and so as to comply with any
requirement or restriction imposed by any court or governmental or regulatory
body having jurisdiction over the Company, and the collateral has been deposited
with the collateral agent in accordance with such arrangements, and (f) the
Stock Purchase Contracts have been duly and properly executed and issued in
accordance with the Stock Purchase Contract Agreement relating to such Stock
Purchase Contracts, and issued and sold in the form and in the manner
contemplated in the Registration Statement and any prospectus supplement
relating thereto, such Stock Purchase Units will constitute valid and binding
obligations of the Company, enforceable in accordance with their terms, subject
to (i) bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium
and other similar laws now or hereafter in effect relating to or affecting
creditors' rights generally and (ii) general principles of equity (regardless of
whether considered in a proceeding at law or in equity).
4. When (a) the Registration Statement has become effective under the
Act, (b) a series of Preferred Stock has been duly and properly authorized for
issuance and a Statement with Respect to Shares of the Company classifying the
Preferred Stock and setting forth the terms thereof substantially in the form
filed as an exhibit to the Registration Statement has been duly and properly
authorized, executed and filed with the Secretary of the Commonwealth of
Pennsylvania, Department of State, (c) a prospectus supplement with respect to
such series of Preferred Stock shall have been filed with the Commission in
compliance with the Act and the rules and regulations thereunder, and (d) the
shares of Preferred Stock have been duly and properly issued and paid for in the
manner contemplated in the Registration Statement and any prospectus supplement
relating thereto, the shares of Preferred Stock will be legally issued, fully
paid and non-assessable.
5. When (a) the Registration Statement has become effective under the
Act, (b) a supplemental indenture, if utilized, has been duly and properly
authorized, executed and delivered by the Company and the Debt Trustee and
qualified under the Trust Indenture Act of 1939, as amended, (c) the terms of
the Debt Securities and of their issuance and sale have been duly established in
accordance with the Debt Indenture so as not to violate any applicable law or
result in a default under or breach of any agreement or instrument binding upon
the Company and so as to comply with any requirement or restriction imposed by
any court or governmental or regulatory body having jurisdiction over the
Company, (d) a prospectus supplement with respect to such series of Debt
Securities shall have been filed with the Commission in compliance with the Act
and the rules and regulations thereunder, and (e) such series of Debt Securities
shall have been duly and properly executed and authenticated in accordance with
the Debt Indenture and duly and properly issued and delivered by the Company in
the manner contemplated in the Registration Statement and any prospectus
supplement relating thereto to the purchasers thereof against payment of the
agreed consideration therefor, each series of Debt Securities will constitute
valid and binding obligations of the Company, enforceable in accordance with
their terms, subject to (i) bankruptcy, insolvency, reorganization, fraudulent
transfer, moratorium and other similar laws now or hereafter in effect relating
to or affecting creditors' rights generally and (ii) general principles of
equity (regardless of whether considered in a proceeding at law or in equity).
6. When (a) the Registration Statement has become effective under the
Act, (b) a supplemental indenture, if utilized, has been duly and properly
authorized, executed and delivered by the Company and the Subordinated Trustee
and qualified under the Trust Indenture Act of 1939, as amended, (c) the terms
of the Subordinated Indebtedness and of their issuance and sale have been duly
established in accordance with the Subordinated Indenture so as not to violate
any applicable law or result in a default under or breach of any agreement or
Exelon Capital Trust I
Exelon Capital Trust II
Exelon Capital Trust III
September 5, 2003
Page 4 of 5
instrument binding upon the Company and so as to comply with any requirement or
restriction imposed by any court or governmental or regulatory body having
jurisdiction over the Company, (d) a prospectus supplement with respect to such
series of Subordinated Indebtedness shall have been filed with the Commission in
compliance with the Act and the rules and regulations thereunder, and (e) such
series of Subordinated Indebtedness shall have been duly and properly executed
and authenticated in accordance with the Subordinated Indenture and duly and
properly issued and delivered by the Company in the manner contemplated in the
Registration Statement and any prospectus supplement relating thereto to the
purchasers thereof against payment of the agreed consideration therefor, each
series of Subordinated Indebtedness will constitute valid and binding
obligations of the Company, enforceable in accordance with their terms, subject
to (i) bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium
and other similar laws now or hereafter in effect relating to or affecting
creditors' rights generally and (ii) general principles of equity (regardless of
whether considered in a proceeding at law or in equity).
7. When (a) the Registration Statement has become effective under the
Act, (b) a Guarantee Agreement between the Company and Wachovia Trust Company,
National Association, as guarantee trustee (the "Guarantee Trustee"),
substantially in the form filed as an exhibit to the Registration Statement has
been duly and properly authorized, executed and delivered by the Company and the
Guarantee Trustee and qualified under the Trust Indenture Act of 1939, as
amended, (c) a prospectus supplement with respect to a Guarantee shall have been
filed with the Commission in compliance with the Act and the rules and
regulations thereunder, and (d) the Trust Preferred Securities in respect of
which such Guarantee Agreement shall have been executed and delivered shall have
been duly and properly authorized, issued and delivered to the purchasers
thereof, as contemplated in the Registration Statement and such resolutions,
against payment of the agreed consideration therefor, each Guarantee will
constitute the valid and binding obligation of the Company, enforceable in
accordance with its terms, subject to (i) bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium and other similar laws now or
hereafter in effect relating to or affecting creditors' rights generally and
(ii) general principles of equity (regardless of whether considered in a
proceeding at law or in equity).
For the purposes of this opinion letter, we have assumed that, at the
time of the issuance, sale and delivery of the Securities at issue: (a) the
authorization thereof by the Company will not have been modified or rescinded,
and there will not have occurred any change in law affecting the validity,
legally binding character or enforceability thereof; (b) in the case of the
issue of the Debt Securities, Subordinated Indebtedness or a Guarantee, the Debt
Indenture, the Subordinated Indenture or the Guarantee Agreement, as applicable,
will not have been modified or amended; (c) the Amended and Restated Articles of
Incorporation of the Company, as currently in effect, will not have been
modified or amended and will be in full force and effect; and (d) the Company
will have any approval required under the Public Utility Holding Company Act of
1935.
We note that an opinion letter of Richards, Layton & Finger, P.A.,
Delaware counsel to the Company, dated and delivered to you concurrently
herewith, addresses, among other things, the legality of the Trust Preferred
Securities covered by the Registration Statement.
We express no opinion as to the law of any jurisdiction other than the
law of the Commonwealth of Pennsylvania.
Exelon Capital Trust I
Exelon Capital Trust II
Exelon Capital Trust III
September 5, 2003
Page 5 of 5
We consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the references to this firm under the heading
"Legal Matters" in the Prospectus included in the Registration Statement. This
opinion is not to be used, circulated, quoted, referred to or relied upon by any
other person or for any other purpose without our prior written consent.
Very truly yours,
/s/ Ballard Spahr Andrews & Ingersoll, LLP
Exhibit 5.2
[Letterhead of Richards, Layton & Finger, P.A.]
September 5, 2003
Exelon Corporation
Exelon Capital Trust I
Exelon Capital Trust II
Exelon Capital Trust III
10 South Dearborn Street - 37th Floor
P.O. Box 805379
Chicago, IL 60680-5379
Re: Exelon Capital Trust I, Exelon Capital Trust II
and Exelon Capital Trust III
-------------------------------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for Exelon Corporation, a
Pennsylvania corporation (the "Company"), and Exelon Capital Trust I, Exelon
Capital Trust II and Exelon Capital Trust III, each a Delaware statutory trust
(each, a "Trust," and collectively, the "Trusts"), in connection with the
matters set forth herein. At your request, this opinion is being furnished to
you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of each Trust, each dated August 25, 2003
(collectively, the "Certificates"), as filed with the office of the Secretary of
State of the State of Delaware (the "Secretary of State") on August 25, 2003;
(b) The Declaration of Trust of each Trust, each dated as of August 25,
2003, among the Company and the trustees of the Trust named therein;
(c) The Registration Statement (the "Registration Statement") on Form
S-3, including a preliminary prospectus (the "Prospectus"), relating to, among
Exelon Capital Trust I
Exelon Capital Trust II
Exelon Capital Trust III
September 5, 2003
Page 2 of 3
other things, the trust preferred securities of the Trusts representing
undivided beneficial interests in the assets of each Trust (each, a "Preferred
Security" and collectively, the "Preferred Securities"), as proposed to be filed
by the Company and the Trusts with the Securities and Exchange Commission on or
about September 5, 2003;
(d) A form of Amended and Restated Declaration of Trust for the Trusts
(including Exhibits A and C thereto) (each, a "Declaration," and collectively,
the "Declarations"), to be entered into with respect to each Trust among the
Company, as sponsor, the trustees of such Trust named therein, and the holders,
from time to time, of undivided beneficial interests in the assets of such
Trust, attached as an exhibit to the Registration Statement; and
(e) A Certificate of Good Standing for each Trust, each dated September
4, 2003, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Declarations.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (e) above. In particular, we
have not reviewed any document (other than the documents listed in paragraphs
(a) through (e) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our own
but rather have relied solely upon the foregoing documents, the statements and
information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Declarations
and the Certificates are in full force and effect and have not been amended,
(ii) except to the extent provided in paragraph 1 below, that each of the
parties to the documents examined by us has been duly created, organized or
formed, as the case may be, and is validly existing in good standing under the
laws of the jurisdiction governing its creation, organization or formation,
(iii) the legal capacity of natural persons who are parties to the documents
examined by us, (iv) that each of the parties to the documents examined by us
has the power and authority to execute and deliver, and to perform its
obligations under, such documents, (v) that each of the parties to the documents
examined by us has duly authorized, executed and delivered such documents, (vi)
the receipt by each Person to whom a Preferred Security is to be issued by a
Trust (collectively, the "Preferred Security Holders") of a Preferred Securities
Exelon Capital Trust I
Exelon Capital Trust II
Exelon Capital Trust III
September 5, 2003
Page 3 of 3
Certificate for such Preferred Security and the payment for the Preferred
Security acquired by it, in accordance with the applicable Declaration and the
Registration Statement, and (vii) that the Preferred Securities are issued and
sold to the Preferred Security Holders in accordance with the applicable
Declaration and the Registration Statement. We have not participated in the
preparation of the Registration Statement and assume no responsibility for its
contents.
This opinion is limited to the laws of the State of Delaware (excluding
the securities laws of the State of Delaware), and we have not considered and
express no opinion on the laws of any other jurisdiction, including federal laws
and rules and regulations relating thereto. Our opinions are rendered only with
respect to Delaware laws and rules, regulations and orders thereunder that are
currently in effect.
Based upon the foregoing, and upon our examination of such questions of
law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. Each Trust has been duly created and is validly existing in good
standing as a statutory trust under the Delaware Statutory Trust Act (12 Del.C.
ss. 3801, et seq.).
2. The Preferred Securities of each Trust will represent valid and,
subject to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of such Trust.
3. The Preferred Security Holders of a Trust, as beneficial owners of
such Trust, will 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. We note that the Preferred
Security Holders of a Trust may be obligated to make payments as set forth in
the Declaration of such Trust.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. We hereby
consent to the use of our name under the heading "Legal Matters" in the
Prospectus. In giving the foregoing consents, we do not thereby admit that we
come within the category of Persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Richards, Layton & Finger, P.A.
BJK/EJE
Exhibit 8-1
September 5, 2003
Exelon Corporation
Exelon Capital Trust I
Exelon Capital Trust II
Exelon Capital Trust III
10 South Dearborn Street - 37th Floor
P.O. Box 805379
Chicago, Illinois 60680
Dear Ladies and Gentlemen:
We have acted as United States tax counsel to Exelon Corporation, a
Pennsylvania corporation (the "Company"), and Exelon Capital Trust I, Exelon
Capital Trust II and Exelon Capital Trust III, each a statutory trust formed
under the laws of the State of Delaware (each a "Trust" and, collectively, the
"Trusts"), in connection with the preparation of a Registration Statement on
Form S-3 (such Registration Statement, including the prospectus supplement
relating to the Trusts' trust preferred securities that was a part thereof, is
referred to herein as the "Registration Statement") which was filed by the
Company and the Trust with the Securities and Exchange Commission (the
"Commission") on September 5, 2003, under the Securities Act of 1933, as amended
(the "Securities Act"), relating to the registration of (i) debt securities,
common stock, stock purchase contracts and stock purchase units, preferred stock
and subordinated debt securities of the Company and (ii) trust preferred
securities of the Trusts and related guarantees of the Company.
We are familiar with the proceedings to date with respect to the
Registration Statement and have examined such records, documents and questions
of law, and satisfied ourselves as to such matters of fact, as we have
considered relevant and necessary as a basis for this opinion. In addition, we
have assumed that there will be no change in the laws currently applicable to
the Company and the Trusts and that such laws will be the only laws applicable
to the Company and the Trusts.
Based upon and subject to the foregoing, the statements set forth in
the Registration Statement under the headings "Description of Trust Preferred
Securities - Certain United States Federal Income Tax Consequences," to the
extent they constitute matters of federal income tax law or legal conclusions
with respect thereto, represent our opinion.
In giving the foregoing opinion, we express no opinion as to the laws
of any jurisdiction other than the law of the United States of America.
This opinion letter is limited to the matters stated herein and no
opinion is implied or may be inferred beyond the matters expressly stated
herein. This opinion is rendered as of the date hereof based on the law and
facts in existence on the date hereof, and we do not undertake, and hereby
Exelon Capital Trust I
Exelon Capital Trust II
Exelon Capital Trust III
September 5, 2003
Page 2 of 2
disclaim, any obligation to advise you of any changes in law or fact, whether or
not material, which may be brought to our attention at a later date.
We hereby consent to the filing of this opinion with the Commission as
Exhibit 8-1 to the Registration Statement. We also consent to the use of our
name under the heading "Legal Matters" in the Registration Statement. In giving
this consent, we do not hereby admit that we are within the category of persons
whose consent is required under Section 7 of the Securities Act of 1933, as
amended, or the rules or regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ Ballard Spahr Andrews & Ingersoll, LLP
Exhibit 12-1
Exelon Corporation
Ratio of Earnings to Fixed Charges
(amounts in million of dollars)
Six Months Ended
Years Ended December 31, June 30,
1998 1999 2000 2001 2002 2003
---- ---- ---- ---- ---- ----
Pre-tax income from continuing
operations before adjustment for income
or loss from equity investees and minority interest 840 965 901 2,347 2,668 991
Plus: Amortization of capitalized interest (a) - - - - - -
(Income) or loss from equity investees 54 38 41 (62) (79) (33)
Minority interest - - - - 5 3
Less: Interest capitalized (15) (8) (6) (25) (30) (14)
Preference security dividend
requirements of consolidated
subsidiaries (22) (20) (17) (16) (14) (6)
--------------------------------------------------------------
Pre-tax income from continuing
operations after adjustment for income or loss
from equity investees, minority interest, capitalized
interest and preference security dividend requirements 857 975 919 2,244 2,550 941
--------------------------------------------------------------
Fixed charges:
Interest expensed and capitalized,
amortization of debt discount and
premium on all indebtedness 338 402 616 1,124 986 457
Interest component of rental expense 23 18 14 25 28 11
Distributions on mandatorily redeemable preferred securities 31 21 14 39 37 19
Preference security dividend requirements
of consolidated subsidiaries 22 20 17 16 14 6
--------------------------------------------------------------
Total fixed charges 414 461 661 1,204 1,065 493
--------------------------------------------------------------
Pre-tax income from continuing operations
after adjustment for income or loss from equity investees,
minority interest, capitalized interest and preference
security dividend requirements plus fixed charges 1,271 1,436 1,580 3,448 3,615 1,434
--------------------------------------------------------------
Ratio of earnings to fixed charges 3.07 3.11 2.39 2.86 3.39 2.91
==============================================================
(a) Not included pursuant to Section 503(d)1(C) of Regulation S-K.
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated January 29, 2003, except for Note 23
for which the date is February 20, 2003, relating to the financial statements,
which appears in the 2002 Annual Report to Shareholders, which is incorporated
by reference in Exelon Corporation's Annual Report on Form 10-K for the year
ended December 31, 2002. We also consent to the incorporation by reference of
our report dated January 29, 2003, except for Note 23 for which the date is
February 20, 2003, relating to the financial statement schedule, which appears
in such Annual Report on Form 10-K. We also consent to the references to us
under the hearing "Experts" in such Registration Statement.
PricewaterhouseCoopers LLP
September 4, 2003
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
J. P. MORGAN TRUST COMPANY, NATIONAL
ASSOCIATION (Exact name of trustee as
specified in its charter)
95-4655078
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
101 California Street, Floor 38
San Francisco, California 94111
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
--------------------------------------------
EXELON CORPORATION
(Exact name of obligor as specified in its charter)
PENNSYLVANIA 23-2990190
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
10 South Dearborn Street - 37th Floor
P.O. Box 805379
Chicago, IL 60680-5379
(Address of principal executive offices) (Zip Code)
% UNSECURED SENIOR DEBT SECURITIES DUE
(Title of the indenture securities)
----------------------------------------------------------------
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Comptroller of the Currency, Washington, D.C. Board of Governors of
the Federal Reserve System, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the Obligor is an affiliate of the trustee, describe each such
affiliation.
None.
No responses are included for Items 3 through 15 of this form T-1 because the
Obligor is not in default as provided under Item 13.
Item 16. List of Exhibits.
List below all exhibits filed as part of this statement of eligibility.
Exhibit 1. Articles of Association of the Trustee as Now in Effect (see
Exhibit 1 to Form T-1 filed in connection with Form 8K of
the Southern California Water Company filing, dated December
7, 2001, which is incorporated by reference).
Exhibit 2. Certificate of Authority of the Trustee to Commence Business
(see Exhibit 2 to Form T-1 filed in connection with
Registration Statement No. 333-41329, which is incorporated
by reference).
Exhibit 3. Authorization of the Trustee to Exercise Corporate Trust
Powers (contained in Exhibit 2).
Exhibit 4. Existing By-Laws of the Trustee (see Exhibit 4 to Form T-1
filed in connection with Form 8K of the Southern California
Water Company filing, dated December 7, 2001, which is
incorporated by reference).
Exhibit 5. Not Applicable
Exhibit 6. The consent of the Trustee required by Section 321 (b) of
the Act (see Exhibit 6 to Form T-1 filed in connection with
Registration Statement No. 333-41329, which is incorporated
by reference).
Exhibit 7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its
supervising or examining authority.
Exhibit 8. Not Applicable
Exhibit 9. Not Applicable
2
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, J. P. Morgan Trust Company, National Association, has duly caused this
statement of eligibility and qualification to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Cleveland, and State
of Ohio, on the 5th day of September, 2003.
J. P. Morgan Trust Company, National
Association
By /s/ :Lisa J. Garrett
-------------------------------
Lisa J. Garrett
Vice President
3
Exhibit 7. Report of Condition of the Trustee.
- --------------------------------------------------------------------------------
Consolidated Report of Condition of J.P. Morgan Trust Company, N.A.,
--------------------------------
(formerly Chase Manhattan Bank and Trust Company, N.A.)
- ------------------------------------------------------
(Legal Title)
Located at 1800 Century Park East, Ste. 400 Los Angeles, CA 90067
---------------------------------------------------------------------
(Street) (City) (State) (Zip)
as of close of business on June 30, 2003
-----------------------------------
================================================================================
================================================================================
ASSETS DOLLAR AMOUNTS IN THOUSANDS
J. P. Morgan Trust Company, National Association
Statement of Condition
June 30, 2003
($000)
------
Assets
Cash and Due From Banks $ 30,669
Securities 106,073
Loans and Leases 41,488
Premises and Fixed Assets 9,168
Intangible Assets 162,542
Other Assets 17,245
-------------------
Total Assets $ 367,185
===================
4
Liabilities
Deposits $ 97,653
Other Liabilities 47,491
-------------------
Total Liabilities 145,144
Equity Capital
Common Stock 600
Surplus 181,587
Retained Earnings 39,854
-------------------
Total Equity Capital 222,041
-------------------
Total Liabilities and Equity Capital $ 367,185
===================
5
Exhibit 25.2
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [ ]
WACHOVIA TRUST COMPANY, NATIONAL ASSOCIATION
(Exact Name of Trustee as Specified in its Charter)
56-1989961
(I.R.S. Employer Identification No.)
One Rodney Square, 920 King Street, Suite 102, Wilmington, Delaware
(Address of Principal Executive Offices)
19801
(Zip Code)
WACHOVIA TRUST COMPANY, NATIONAL ASSOCIATION
ONE RODNEY SQUARE
920 KING STREET, SUITE 102
WILMINGTON, DE 19801
ATTENTION: CORPORATE TRUST ADMINISTRATION
(302) 888-7539
(Name, address and telephone number of Agent for Service)
EXELON CAPITAL TRUST I
(Exact Name of Obligor as Specified in its Charter)
Delaware
(State or other jurisdiction of Incorporation or Organization)
[ ]
(I.R.S. Employer Identification
No.)
10 South Dearborn Street
37th Floor
P.O. Box 805379
Chicago, IL 60680
(Address of Principal Executive Offices)
60680
(Zip Code)
Trust Preferred Securities of
Exelon Capital Trust I
(Title of Indenture Securities)
1. General information.
Furnish the following information as to the trustee:
a) Name and address of each examining or supervisory authority to which it is
subject:
Comptroller of the Currency
United States Department of the Treasury
Washington, D.C. 20219
Federal Reserve Bank
Richmond, Virginia 23219
Federal Deposit Insurance Corporation
Washington, D.C. 20429
b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with obligor.
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
3. Voting securities of the trustee.
Furnish the following information as to each class of voting securities of the
trustee:
Not applicable - see answer to Item 13.
4. Trusteeships under other indentures.
If the trustee is a trustee under another indenture under which any other
securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, furnish the following information:
(a) Title of the securities outstanding under each such other indenture.
Trust Preferred Securities
(b) A brief statement of the facts relied upon as a basis for the claim
that no conflicting interest within the meaning of Section 310(b)(1)
of the Act arises as a result of the trusteeship under any such other
indenture, including a statement as to how the indenture securities
will rank as compared with the securities issued under such other
indenture.
The indenture securities are not in default. The indenture
securities rank equal to the securities named in Item 4(a).
5. Interlocking directorates and similar relationships with the obligor or
underwriters.
If the trustee or any of the directors or executive officers of the trustee is a
director, officer, partner, employee, appointee, or representative of the
obligor or of any underwriter for the obligor, identify each such person having
any such connection and state the nature of each such connection.
Not applicable - see answer to Item 13.
6. Voting securities of the trustee owned by the obligor or its officials.
Furnish the following information as to the voting securities of the trustee
owned beneficially by the obligor and each director, partner, and executive
officer of the obligor:
Not applicable - see answer to Item 13.
7. Voting securities of the trustee owned by underwriters or their officials.
Furnish the following information as to the voting securities of the trustee
owned beneficially by each underwriter for the obligor and each director,
partner, and executive officer of each such underwriter:
Not applicable - see answer to Item 13.
8. Securities of the obligor owned or held by the trustee.
Furnish the following information as to securities of the obligor owned
beneficially or held as collateral security for obligations in default by the
trustee:
Not applicable - see answer to Item 13.
9. Securities of underwriters owned or held by the trustee.
If the trustee owns beneficially or holds as collateral security for obligations
in default any securities of an underwriter for the obligor, furnish the
following information as to each class of securities of such underwriter any of
which are so owned or held by the trustee:
Not applicable - see answer to Item 13.
10. Ownership or holdings by the trustee of
voting securities of certain affiliates or security holders of the obligor.
If the trustee owns beneficially or holds as collateral security for obligations
in default voting securities of a person who, to the knowledge of the trustee
(1) owns 10 percent or more of the
voting stock of the obligor or (2) is an affiliate, other than a subsidiary, of
the obligor, furnish the following information as to the voting securities of
such person:
Not applicable - see answer to Item 13.
11. Ownership or holdings by the trustee of any securities of a person owning 50
percent or more of the voting securities of the obligor.
If the trustee owns beneficially or holds as collateral security for obligations
in default any securities of a person who, to the knowledge of the trustee, owns
50 percent or more of the voting securities of the obligor, furnish the
following information as to each class of securities of such person any of which
are so owned or held by the trustee:
Not applicable - see answer to Item 13.
12. Indebtedness of the obligor to the trustee.
Except as noted in the instructions, if the obligor is indebted to the trustee,
furnish the following information:
Not applicable - see answer to Item 13.
13. Defaults by the obligor.
a) State whether there is or has been a default with respect to the securities
under this indenture. Explain the nature of any such default.
None.
b) If the trustee is a trustee under another indenture under which any other
securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, or is trustee for more than one
outstanding series of securities under the indenture, state whether there has
been a default under any such indenture or series, identify the indenture or
series affected, and explain the nature of any such default.
None
14. Affiliations with the underwriters.
If any underwriter is an affiliate of the trustee, describe each such
affiliation.
Not applicable - see answer to Item 13.
3
15. Foreign trustee.
Identify the order or rule pursuant to which the trustee is authorized to act as
sole trustee under indentures qualified or to be qualified under the Act.
Not applicable - trustee is a national banking association organized
under the laws of the United States.
16. List of Exhibits.
List below all exhibits filed as part of this statement of eligibility.
X 1. Copy of Articles of Association of the trustee as now in effect.
- --
X 2. Copy of the Certificate of the Comptroller of the Currency dated April 4,
- --2002, evidencing the authority of the trustee to transact business.
X 3. Copy of the Certification of Fiduciary Powers of the trustee by the Office
- --of the Comptroller of the Currency dated April 4, 2002.
X 4. Copy of existing by-laws of the trustee.
- --
__5. Copy of each indenture referred to in Item 4, if the obligor is in default.
Not Applicable.
X 6. Consent of the trustee required by Section 321(b) of the Act.
- --
X 7. Copy of report of condition of the trustee at the close of business on
- --December 31, 2002, published pursuant to the requirements of its supervising
authority.
__ 8. Copy of any order pursuant to which the foreign trustee is authorized to
act as sole trustee under indentures qualified or to be qualified under the Act.
Not Applicable
__ 9. Consent to service of process required of foreign trustees pursuant to
Rule 10a-4 under the Act.
Not Applicable
- ------------------------
4
NOTE
The trustee disclaims responsibility for the accuracy or completeness
of information contained in this Statement of Eligibility and Qualification not
known to the trustee and not obtainable by it through reasonable investigation
and as to which information it has obtained from the obligor and has had to rely
or will obtain from the principal underwriters and will have to rely.
5
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, Wachovia Trust Company, National Association, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this Statement of Eligibility and Qualification to be
signed on its behalf by the undersigned, thereunto duly authorized, all in the
City of Wilmington and the State of Delaware, on the 5th day of September, 2003.
Wachovia Trust Company, National
Association
By: /s/ Rita Marie Ritrovato
-------------------------
Rita Marie Ritrovato
Trust Officer
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939, and in connection with the proposed issue of Exelon Capital Trust
I, II, and III Trust Preferred Securities, Wachovia Trust Company, National
Association, hereby consents that reports of examinations by Federal, State,
Territorial or District authorities may be furnished by such authorities to the
Securities and Exchange Commission upon request therefor.
WACHOVIA TRUST COMPANY,
NATIONAL ASSOCIATION
By: /s/ Rita Marie Ritrovato
--------------------------
Rita Marie Ritrovato
Trust Officer
Wilmington, Delaware
September 5, 2003
EXHIBIT T-7
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of Wachovia Trust Company, N.A.,
at the close of business on March 31, 2003, published in response to call made
by Comptroller of the Currency, under title 12, United States Code, Section 161.
Charter Number 1 Comptroller of the Currency.
Statement of Resources and Liabilities
ASSETS
Thousand of Dollars
-------------------
Cash and balance due from depository institutions:
Noninterest-bearing balances and currency and coin................................... 14,130,000
Interest-bearing balances............................................................ 2,142,000
Securities................................................................................ ////////
Held-to-maturity securities (from Schedule RC-B, column A)........................... 0
Available-for-sale securities (from schedule RC-B, column D)......................... 69,552,000
Federal funds sold and securities purchased under agreements to resell.................... 0
Federal funds sold in domestic offices.................................................... 1,833,000
Securities purchased under agreements to resell(3)........................................ 4,293,000
Loans and lease financing receivables (from Schedule RC-C):
Loan and leases held for sale........................................................ 8,101,000
Loan and leases, net of unearned income.............................................. 161,553,000
LESS: Allowance for loan and lease losses............................................ 2,716,000
LESS: Allocated transfer risk reserve................................................ 0
Loans and leases, net of unearned income and allowance (item.4.b misus 4.c).......... 158,837,000
Trading assets (from Schedule RC-D)....................................................... 26,199,000
Premises and fixed assets (including capitalized leases).................................. 4,255,000
Other real estate owned (from Schedule RC-M).............................................. 143,000
Investment in unconsolidated subsidiaries and associated companies (from Schedule RC-M)... 669,000
Customer's liability to this bank on acceptances outstanding.............................. 1,485,000
Intangible assets......................................................................... 9,499,000
Goodwill.............................................................................
Other intangible assets (from Schedule RC-M).............................................. 1,698,000
Other assets (from Schedule RC-F)......................................................... 20,947,000
Total assets.......................................... 323,783,000
LIABILITIES
Deposits:
In domestic offices.................................................................. 188,964,000
Noninterest-bearing................................................................ 32,609,000
Interest-bearing................................................................... 156,355,000
In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule
RC-E, partII)........................................................................ 12,591,000
Noninterest-bearing................................................................ 21,000
Interest-bearing................................................................... 12,570,000
Federal funds purchased in domestic offices(2)............................................ 3,342,000
Securities sold under agreements to repurchase(3)......................................... 26,168,000
Trading liabilities(from Schedule RC-D)................................................... 18,156,000
Other borrowed money (includes mortgage indebtedness and obligations under Capitalized
leases)(from Schedule RC-M)............................................................. 21,041,000
Bank's liability on acceptances executed and outstanding.................................. 1,492,000
Subordinated notes and debentures......................................................... 8,149,000
Other liabilities......................................................................... 11,156,000
Total liabilities......................................................................... 291,059,000
Minority Interest in consolidated subsidiaries............................................ 1,327,000
EQUITY CAPITAL
Perpetual preferred stock and related surplus........................................... 0
Common Stock.............................................................................. 455,000
Surplus................................................................................... 24,194,000
Retained Earnings......................................................................... 4,660,000
Accumulated other comprehensive income.................................................... 2,088,000
Other Equity Capital components........................................................... 0
Total equity capital (sum of item 23 through 27).......................................... 31,397,000
Total liabilities and equity capital (sum of items 21,22, and 28.......................... 323,783,000
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE CHECK IF AN
APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT
TO SECTION 305(b)(2) [ ]
WACHOVIA TRUST COMPANY, NATIONAL ASSOCIATION
(Exact Name of Trustee as Specified in its Charter)
56-1989961
(I.R.S. Employer Identification No.)
One Rodney Square, 920 King Street, Suite 102, Wilmington, Delaware
(Address of Principal Executive Offices)
19801
(Zip Code)
WACHOVIA TRUST COMPANY, NATIONAL ASSOCIATION
ONE RODNEY SQUARE
920 KING STREET, SUITE 102
WILMINGTON, DE 19801
ATTENTION: CORPORATE TRUST ADMINISTRATION
(302) 888-7539
(Name, address and telephone number of Agent for Service)
EXELON CAPITAL TRUST II
(Exact Name of Obligor as Specified in its Charter)
Delaware
(State or other jurisdiction of Incorporation or Organization)
[ ]
(I.R.S. Employer Identification No.)
10 South Dearborn Street
37th Floor
P.O. Box 805379
Chicago, IL 60680
(Address of Principal Executive Offices)
60680
(Zip Code)
Trust Preferred Securities of
Exelon Capital Trust II
(Title of Indenture Securities)
1. General information.
Furnish the following information as to the trustee:
a) Name and address of each examining or supervisory authority to which it is
subject:
Comptroller of the Currency
United States Department of the Treasury
Washington, D.C. 20219
Federal Reserve Bank
Richmond, Virginia 23219
Federal Deposit Insurance Corporation
Washington, D.C. 20429
b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with obligor.
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
3. Voting securities of the trustee.
Furnish the following information as to each class of voting securities of the
trustee:
Not applicable - see answer to Item 13.
4. Trusteeships under other indentures.
If the trustee is a trustee under another indenture under which any other
securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, furnish the following information:
a) Title of the securities outstanding under each such other indenture.
Trust Preferred Securities
b) A brief statement of the facts relied upon as a basis for the claim that no
conflicting interest within the meaning of Section 310(b)(1) of the Act arises
as a result of the trusteeship under any such other indenture, including a
statement as to how the indenture securities will rank as compared with the
securities issued under such other indenture.
The indenture securities are not in default. The indenture securities
rank equal to the securities named in Item 4(a).
5. Interlocking directorates and similar relationships with the obligor or
underwriters.
If the trustee or any of the directors or executive officers of the trustee is a
director, officer, partner, employee, appointee, or representative of the
obligor or of any underwriter for the obligor, identify each such person having
any such connection and state the nature of each such connection.
Not applicable - see answer to Item 13.
1
6. Voting securities of the trustee owned by the obligor or its officials.
Furnish the following information as to the voting securities of the trustee
owned beneficially by the obligor and each director, partner, and executive
officer of the obligor:
Not applicable - see answer to Item 13.
7. Voting securities of the trustee owned by underwriters or their officials.
Furnish the following information as to the voting securities of the trustee
owned beneficially by each underwriter for the obligor and each director,
partner, and executive officer of each such underwriter:
Not applicable - see answer to Item 13.
8. Securities of the obligor owned or held by the trustee.
Furnish the following information as to securities of the obligor owned
beneficially or held as collateral security for obligations in default by the
trustee:
Not applicable - see answer to Item 13.
9. Securities of underwriters owned or held by the trustee.
If the trustee owns beneficially or holds as collateral security for obligations
in default any securities of an underwriter for the obligor, furnish the
following information as to each class of securities of such underwriter any of
which are so owned or held by the trustee:
Not applicable - see answer to Item 13.
10. Ownership or holdings by the trustee of voting securities of certain
affiliates or security holders of the obligor.
If the trustee owns beneficially or holds as collateral security for obligations
in default voting securities of a person who, to the knowledge of the trustee
(1) owns 10 percent or more of the voting stock of the obligor or (2) is an
affiliate, other than a subsidiary, of the obligor, furnish the following
information as to the voting securities of such person:
Not applicable - see answer to Item 13.
11. Ownership or holdings by the trustee of any securities of a person owning 50
percent or more of the voting securities of the obligor.
If the trustee owns beneficially or holds as collateral security for obligations
in default any securities of a person who, to the knowledge of the trustee, owns
50 percent or more of the voting securities of the obligor, furnish the
following information as to each class of securities of such person any of which
are so owned or held by the trustee:
Not applicable - see answer to Item 13.
2
12. Indebtedness of the obligor to the trustee.
Except as noted in the instructions, if the obligor is indebted to the trustee,
furnish the following information:
Not applicable - see answer to Item 13.
13. Defaults by the obligor.
a) State whether there is or has been a default with respect to the securities
under this indenture. Explain the nature of any such default.
None.
b) If the trustee is a trustee under another indenture under which any other
securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, or is trustee for more than one
outstanding series of securities under the indenture, state whether there has
been a default under any such indenture or series, identify the indenture or
series affected, and explain the nature of any such default.
None
14. Affiliations with the underwriters.
If any underwriter is an affiliate of the trustee, describe each such
affiliation.
Not applicable - see answer to Item 13.
15. Foreign trustee.
Identify the order or rule pursuant to which the trustee is authorized to act as
sole trustee under indentures qualified or to be qualified under the Act.
Not applicable - trustee is a national banking association organized
under the laws of the United States.
16. List of Exhibits.
3
List below all exhibits filed as part of this statement of eligibility.
[X] (a) Copy of Articles of Association of the trustee as now in
effect.
[X] (b) Copy of the Certificate of the Comptroller of the Currency
dated April 4, 2002, evidencing the authority of the trustee
to transact business.
[X] (c) Copy of the Certification of Fiduciary Powers of the trustee
by the Office of the Comptroller of the Currency dated April
4, 2002.
[X] (d) Copy of existing by-laws of the trustee.
[ ] (e) Copy of each indenture referred to in Item 4, if the obligor
is in default.
- Not Applicable.
[X] (f) Consent of the trustee required by Section 321(b) of the
Act.
[X] (g) Copy of report of condition of the trustee at the close of
business on December 31, 2002, published pursuant to the
requirements of its supervising authority.
[ ] (h) Copy of any order pursuant to which the foreign trustee is
authorized to act as sole trustee under indentures qualified
or to be qualified under the Act.
- Not Applicable
[ ] (i) Consent to service of process required of foreign trustees
pursuant to Rule 10a-4 under the Act.
- Not Applicable
- -----------------------------
NOTE
The trustee disclaims responsibility for the accuracy or completeness
of information contained in this Statement of Eligibility and Qualification not
known to the trustee and not obtainable by it through reasonable investigation
and as to which information it has obtained from the obligor and has had to rely
or will obtain from the principal underwriters and will have to rely.
4
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, Wachovia Trust Company, National Association, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this Statement of Eligibility and Qualification to be
signed on its behalf by the undersigned, thereunto duly authorized, all in the
City of Wilmington and the State of Delaware, on the 5th day of September, 2003.
WACHOVIA TRUST COMPANY,
NATIONAL ASSOCIATION
By: /s/ Rita Marie Ritrovato
------------------------------
Rita Marie Ritrovato
Trust Officer
5
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939, and in connection with the proposed issue of Exelon Capital Trust
I, II, and III Trust Preferred Securities, Wachovia Trust Company, National
Association, hereby consents that reports of examinations by Federal, State,
Territorial or District authorities may be furnished by such authorities to the
Securities and Exchange Commission upon request therefor.
WACHOVIA TRUST COMPANY,
NATIONAL ASSOCIATION
By: /s/ Rita Marie Ritrovato
----------------------------
Rita Marie Ritrovato
Trust Officer
Wilmington, Delaware
September 5, 2003
6
EXHIBIT T-7
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of Wachovia Trust Company, N.A.,
at the close of business on March 31, 2003, published in response to call made
by Comptroller of the Currency, under title 12, United States Code, Section 161.
Charter Number 1 Comptroller of the Currency.
Statement of Resources and Liabilities
ASSETS
Thousand of Dollars
-------------------
Cash and balance due from depository institutions:
Noninterest-bearing balances and currency and coin................................... 14,130,000
Interest-bearing balances............................................................ 2,142,000
Securities................................................................................ ////////
Held-to-maturity securities (from Schedule RC-B, column A)........................... 0
Available-for-sale securities (from schedule RC-B, column D)......................... 69,552,000
Federal funds sold and securities purchased under agreements to resell.................... 0
Federal funds sold in domestic offices.................................................... 1,833,000
Securities purchased under agreements to resell(3)........................................ 4,293,000
Loans and lease financing receivables (from Schedule RC-C):
Loan and leases held for sale........................................................ 8,101,000
Loan and leases, net of unearned income.............................................. 161,553,000
LESS: Allowance for loan and lease losses............................................ 2,716,000
LESS: Allocated transfer risk reserve................................................ 0
Loans and leases, net of unearned income and allowance (item.4.b misus 4.c).......... 158,837,000
Trading assets (from Schedule RC-D)....................................................... 26,199,000
Premises and fixed assets (including capitalized leases).................................. 4,255,000
Other real estate owned (from Schedule RC-M).............................................. 143,000
Investment in unconsolidated subsidiaries and associated companies (from Schedule RC-M)... 669,000
Customer's liability to this bank on acceptances outstanding.............................. 1,485,000
Intangible assets......................................................................... 9,499,000
Goodwill.............................................................................
Other intangible assets (from Schedule RC-M).............................................. 1,698,000
Other assets (from Schedule RC-F)......................................................... 20,947,000
Total assets.......................................... 323,783,000
LIABILITIES
Deposits:
In domestic offices.................................................................. 188,964,000
Noninterest-bearing................................................................ 32,609,000
Interest-bearing................................................................... 156,355,000
In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E,
partII).............................................................................. 12,591,000
Noninterest-bearing................................................................ 21,000
Interest-bearing................................................................... 12,570,000
Federal funds purchased in domestic offices(2)............................................ 3,342,000
Securities sold under agreements to repurchase(3)......................................... 26,168,000
Trading liabilities(from Schedule RC-D)................................................... 18,156,000
Other borrowed money (includes mortgage indebtedness and obligations under Capitalized
leases)(from Schedule RC-M)............................................................. 21,041,000
Bank's liability on acceptances executed and outstanding.................................. 1,492,000
Subordinated notes and debentures......................................................... 8,149,000
Other liabilities......................................................................... 11,156,000
Total liabilities......................................................................... 291,059,000
Minority Interest in consolidated subsidiaries............................................ 1,327,000
EQUITY CAPITAL
Perpetual preferred stock and related surplus........................................... 0
Common Stock.............................................................................. 455,000
Surplus................................................................................... 24,194,000
Retained Earnings......................................................................... 4,660,000
Accumulated other comprehensive income.................................................... 2,088,000
Other Equity Capital components........................................................... 0
Total equity capital (sum of item 23 through 27).......................................... 31,397,000
Total liabilities and equity capital (sum of items 21,22, and 28.......................... 323,783,000
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [ ]
WACHOVIA TRUST COMPANY, NATIONAL ASSOCIATION
(Exact Name of Trustee as Specified in its Charter)
56-1989961
(I.R.S. Employer Identification No.)
One Rodney Square, 920 King Street, Suite 102, Wilmington, Delaware
(Address of Principal Executive Offices)
19801
(Zip Code)
WACHOVIA TRUST COMPANY, NATIONAL ASSOCIATION
ONE RODNEY SQUARE
920 KING STREET, SUITE 102
WILMINGTON, DE 19801
ATTENTION: CORPORATE TRUST ADMINISTRATION
(302) 888-7539
(Name, address and telephone number of Agent for Service)
EXELON CAPITAL TRUST III
(Exact Name of Obligor as Specified in its Charter)
Delaware
(State or other jurisdiction of Incorporation or Organization)
[ ]
(I.R.S. Employer Identification No.)
10 South Dearborn Street
37th Floor
P.O. Box 805379
Chicago, IL 60680
(Address of Principal Executive Offices)
60680
(Zip Code)
Trust Preferred Securities of
Exelon Capital Trust III
(Title of Indenture Securities)
1. General information.
Furnish the following information as to the trustee:
a) Name and address of each examining or supervisory authority to which it is
subject:
Comptroller of the Currency
United States Department of the Treasury
Washington, D.C. 20219
Federal Reserve Bank
Richmond, Virginia 23219
Federal Deposit Insurance Corporation
Washington, D.C. 20429
b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with obligor.
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
3. Voting securities of the trustee.
Furnish the following information as to each class of voting securities of the
trustee:
Not applicable - see answer to Item 13.
4. Trusteeships under other indentures.
If the trustee is a trustee under another indenture under which any other
securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, furnish the following information:
a) Title of the securities outstanding under each such other indenture.
Trust Preferred Securities
b) A brief statement of the facts relied upon as a basis for the claim that no
conflicting interest within the meaning of Section 310(b)(1) of the Act arises
as a result of the trusteeship under any such other indenture, including a
statement as to how the indenture securities will rank as compared with the
securities issued under such other indenture.
The indenture securities are not in default. The
indenture securities rank equal to the securities
named in Item 4(a).
5. Interlocking directorates and similar relationships with the obligor or
underwriters.
If the trustee or any of the directors or executive officers of the trustee is a
director, officer, partner, employee, appointee, or representative of the
obligor or of any underwriter for the obligor, identify each such person having
any such connection and state the nature of each such connection.
Not applicable - see answer to Item 13.
6. Voting securities of the trustee owned by the obligor or its officials.
Furnish the following information as to the voting securities of the trustee
owned beneficially by the obligor and each director, partner, and executive
officer of the obligor:
Not applicable - see answer to Item 13.
7. Voting securities of the trustee owned by underwriters or their officials.
Furnish the following information as to the voting securities of the trustee
owned beneficially by each underwriter for the obligor and each director,
partner, and executive officer of each such underwriter:
Not applicable - see answer to Item 13.
8. Securities of the obligor owned or held by the trustee.
Furnish the following information as to securities of the obligor owned
beneficially or held as collateral security for obligations in default by the
trustee:
Not applicable - see answer to Item 13.
9. Securities of underwriters owned or held by the trustee.
If the trustee owns beneficially or holds as collateral security for obligations
in default any securities of an underwriter for the obligor, furnish the
following information as to each class of securities of such underwriter any of
which are so owned or held by the trustee:
Not applicable - see answer to Item 13.
10. Ownership or holdings by the trustee of
voting securities of certain affiliates or security holders of the obligor.
If the trustee owns beneficially or holds as collateral security for obligations
in default voting securities of a person who, to the knowledge of the trustee
(1) owns 10 percent or more of the voting stock of the obligor or (2) is an
affiliate, other than a subsidiary, of the obligor, furnish the following
information as to the voting securities of such person:
Not applicable - see answer to Item 13.
2
11. Ownership or holdings by the trustee of any securities of a person owning 50
percent or more of the voting securities of the obligor.
If the trustee owns beneficially or holds as collateral security for obligations
in default any securities of a person who, to the knowledge of the trustee, owns
50 percent or more of the voting securities of the obligor, furnish the
following information as to each class of securities of such person any of which
are so owned or held by the trustee:
Not applicable - see answer to Item 13.
12. Indebtedness of the obligor to the trustee.
Except as noted in the instructions, if the obligor is indebted to the trustee,
furnish the following information:
Not applicable - see answer to Item 13.
13. Defaults by the obligor.
a) State whether there is or has been a default with respect to the securities
under this indenture. Explain the nature of any such default.
None.
b) If the trustee is a trustee under another indenture under which any other
securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, or is trustee for more than one
outstanding series of securities under the indenture, state whether there has
been a default under any such indenture or series, identify the indenture or
series affected, and explain the nature of any such default.
None
14. Affiliations with the underwriters.
If any underwriter is an affiliate of the trustee, describe each such
affiliation.
Not applicable - see answer to Item 13.
15. Foreign trustee.
Identify the order or rule pursuant to which the trustee is authorized to act as
sole trustee under indentures qualified or to be qualified under the Act.
Not applicable - trustee is a national banking association organized
under the laws of the United States.
16. List of Exhibits.
3
List below all exhibits filed as part of this statement of eligibility.
[X] (a) Copy of Articles of Association of the trustee as now in
effect.
[X] (b) Copy of the Certificate of the Comptroller of the Currency
dated April 4, 2002, evidencing the authority of the trustee
to transact business.
[X] (c) Copy of the Certification of Fiduciary Powers of the trustee
by the Office of the Comptroller of the Currency dated April
4, 2002.
[X] (d) Copy of existing by-laws of the trustee.
[ ] (e) Copy of each indenture referred to in Item 4, if the obligor
is in default.
- Not Applicable.
[X] (f) Consent of the trustee required by Section 321(b) of the
Act.
[X] (g) Copy of report of condition of the trustee at the close of
business on December 31, 2002, published pursuant to the
requirements of its supervising authority.
[ ] (h) Copy of any order pursuant to which the foreign trustee is
authorized to act as sole trustee under indentures qualified
or to be qualified under the Act.
- Not Applicable
[ ] (i) Consent to service of process required of foreign trustees
pursuant to Rule 10a-4 under the Act.
- Not Applicable
- -----------------------------
NOTE
The trustee disclaims responsibility for the accuracy or completeness
of information contained in this Statement of Eligibility and Qualification not
known to the trustee and not obtainable by it through reasonable investigation
and as to which information it has obtained from the obligor and has had to rely
or will obtain from the principal underwriters and will have to rely.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, Wachovia Trust Company, National Association, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this Statement of Eligibility and Qualification to be
signed on its behalf by the undersigned, thereunto duly authorized, all in the
City of Wilmington and the State of Delaware, on the 5th day of September, 2003.
WACHOVIA TRUST COMPANY,
NATIONAL ASSOCIATION
By: /s/ Rita Marie Ritrovato
-----------------------------
Rita Marie Ritrovato
Trust Officer
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939, and in connection with the proposed issue of Exelon Capital Trust
I, II, and III Trust Preferred Securities, Wachovia Trust Company, National
Association, hereby consents that reports of examinations by Federal, State,
Territorial or District authorities may be furnished by such authorities to the
Securities and Exchange Commission upon request therefor.
WACHOVIA TRUST COMPANY,
NATIONAL ASSOCIATION
By: /s/ Rita Marie Ritrovato
-----------------------------
Rita Marie Ritrovato
Trust Officer
Wilmington, Delaware
September 5, 2003
EXHIBIT T-7
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of Wachovia Trust Company, N.A.,
at the close of business on March 31, 2003, published in response to call made
by Comptroller of the Currency, under title 12, United States Code, Section 161.
Charter Number 1 Comptroller of the Currency.
Statement of Resources and Liabilities
ASSETS
Thousand of Dollars
-------------------
Cash and balance due from depository institutions:
Noninterest-bearing balances and currency and coin................................... 14,130,000
Interest-bearing balances............................................................ 2,142,000
Securities................................................................................ ////////
Held-to-maturity securities (from Schedule RC-B, column A)........................... 0
Available-for-sale securities (from schedule RC-B, column D)......................... 69,552,000
Federal funds sold and securities purchased under agreements to resell.................... 0
Federal funds sold in domestic offices.................................................... 1,833,000
Securities purchased under agreements to resell(3)........................................ 4,293,000
Loans and lease financing receivables (from Schedule RC-C):
Loan and leases held for sale........................................................ 8,101,000
Loan and leases, net of unearned income.............................................. 161,553,000
LESS: Allowance for loan and lease losses............................................ 2,716,000
LESS: Allocated transfer risk reserve................................................ 0
Loans and leases, net of unearned income and allowance (item.4.b misus 4.c).......... 158,837,000
Trading assets (from Schedule RC-D)....................................................... 26,199,000
Premises and fixed assets (including capitalized leases).................................. 4,255,000
Other real estate owned (from Schedule RC-M).............................................. 143,000
Investment in unconsolidated subsidiaries and associated companies (from Schedule RC-M)... 669,000
Customer's liability to this bank on acceptances outstanding.............................. 1,485,000
Intangible assets......................................................................... 9,499,000
Goodwill.............................................................................
Other intangible assets (from Schedule RC-M).............................................. 1,698,000
Other assets (from Schedule RC-F)......................................................... 20,947,000
Total assets.......................................... 323,783,000
LIABILITIES
Deposits:
In domestic offices.................................................................. 188,964,000
Noninterest-bearing................................................................ 32,609,000
Interest-bearing................................................................... 156,355,000
In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E,
partII).............................................................................. 12,591,000
Noninterest-bearing................................................................ 21,000
Interest-bearing................................................................... 12,570,000
Federal funds purchased in domestic offices(2)............................................ 3,342,000
Securities sold under agreements to repurchase(3)......................................... 26,168,000
Trading liabilities(from Schedule RC-D)................................................... 18,156,000
Other borrowed money (includes mortgage indebtedness and obligations under Capitalized
leases)(from Schedule RC-M)............................................................. 21,041,000
Bank's liability on acceptances executed and outstanding.................................. 1,492,000
Subordinated notes and debentures......................................................... 8,149,000
Other liabilities......................................................................... 11,156,000
Total liabilities......................................................................... 291,059,000
Minority Interest in consolidated subsidiaries............................................ 1,327,000
EQUITY CAPITAL
Perpetual preferred stock and related surplus........................................... 0
Common Stock.............................................................................. 455,000
Surplus................................................................................... 24,194,000
Retained Earnings......................................................................... 4,660,000
Accumulated other comprehensive income.................................................... 2,088,000
Other Equity Capital components........................................................... 0
Total equity capital (sum of item 23 through 27).......................................... 31,397,000
Total liabilities and equity capital (sum of items 21,22, and 28.......................... 323,783,000
Charter No. 23201
WACHOVIA TRUST COMPANY, NATIONAL ASSOCIATION
ARTICLES OF ASSOCIATION
-----------------------
AMENDED AND RESTATED AS OF APRIL 1, 2002
For the purpose of organizing an association to carry on the business
of banking under the laws of the United States, the undersigned do enter into
the following Articles of Association:
FIRST. The title of this association shall be WACHOVIA TRUST COMPANY,
NATIONAL ASSOCIATION.
SECOND. The main office of this association shall be in Wilmington,
Delaware. The business, of this association will be limited to that of a
national trust bank. This association must obtain the prior written approval of
the Office of the Comptroller of the Currency ("OCC") before amending its
Articles of Association to expand the scope of its activities and services.
Transfers of this association's stock are subject to prior approval of a federal
depository institution regulatory agency. If no other agency approval is
required, the OCC's approval must be obtained before the transfers. In such
cases where OCC approval is required, the OCC will apply the definitions and
standards of the Change in Bank Control Act and the OCC's implementing
regulation to ownership changes in this association.
THIRD. The Board of Directors of this association shall consist of not
less than five nor more than twenty-five shareholders, the exact number to be
fixed and determined from time to time by resolution of a majority of the full
Board of Directors or by resolution of the shareholders at any annual or special
meeting thereof Each director, during the full term of his directorship, shall
own a minimum of $1,000 aggregate par value of stock of this association or a
minimum par market value or equity interest of $1,000 of stock in the bank
holding company controlling this association. Any vacancy in the Board of
Directors may be filled by action of the Board of Directors.
FOURTH. There shall be an annual meeting of the shareholders to elect
directors and transact whatever other business may be brought before the
meeting. It shall be held at the main office or any other convenient place the
Board of Directors may designate, on the day of each year specified thereby in
the bylaws, but if no election is held on that day, it may be held on any
subsequent day according to such lawful rules as may be prescribed by the Board
of Directors.
Nominations for election to the Board of Directors may be made by the
Board of Directors or by any shareholder of any outstanding class of capital
stock of this association entitled to vote for election of directors.
Nominations other than those made by or on behalf of the existing bank
management shall be made in writing and be delivered or mailed to the president
of this association and to the OCC, Washington, D.C., not less than 14 days nor
more than 50 days prior to any meeting of shareholders called for the election
of directors, provided, however, that if less than 21 days notice of the meeting
is given to shareholders, such nomination shall be mailed or delivered to the
president of this association and to the Comptroller of the Currency not later
than the close of business on the seventh day following the day on which the
notice of meeting was mailed.
Such notification shall contain the following information to the extent
known to the notifying shareholder:
o The name and address of each proposed nominee.
o The principal occupation of each proposed nominee.
o The total number of shares of capital stock of this association
that will be voted for each proposed nominee.
o The name and residence address of the notifying shareholder.
o The number of shares of capital stock of this association owned
by the notifying shareholder. Nominations not made in accordance
herewith may, in his discretion, be disregarded by the
chairperson of the meeting, and upon his instructions, the vote
tellers may disregard all votes cast for each such nominee.
FIFTH. The authorized amount of capital stock of this association shall
be 2,000 shares of common stock of the par value of one hundred dollars
($100.00) each; but said capital stock may be increased or decreased from time
to time, according to the provisions of the laws of the United States.
If the capital stock is increased by the sale of additional shares
thereof, each shareholder shall be entitled to subscribe for such additional
shares in proportion to the number of shares of said capital stock owned by him
at the time the increase is authorized by the shareholders, unless another time
subsequent to the date of the shareholders' meeting is specified in a resolution
by the shareholders at the time the increase is authorized. The Board of
Directors will have the power to prescribe a reasonable period of time within
which the preemptive rights to subscribe to the new shares of capital stock must
be exercised.
This association, at any time and from time to time, may authorize and
issue debt obligations, whether or not subordinated, without the approval of the
shareholders.
SIXTH. The Board of Directors shall appoint one of its members
president of this association, who shall be chairperson of the Board of
Directors, unless the Board of Directors appoints in other director to be the
chairperson. The Board of Directors shall have the power to appoint one or more
vice presidents and to appoint a cashier and such other officers and employees
as may be required to transact the business of this association.
The Board of Directors shall have the power to:
o Define the duties of the officers and employees of this
association.
o Fix the salaries to be paid to the officers and employees.
2
o Dismiss officers and employees.
o Require bonds from officers and employees and to fix the penalty
thereof.
o Regulate the manner in which any increase of the capital of this
association shall be made.
o Manage and administer the business and affairs of this
association.
o Make all bylaws that it may be lawful for the Board of Directors
to make.
o Generally to perform all acts that are legal for a Board of
Directors to perform.
SEVENTH. The Board of Directors shall have the power to change the
location of the main office to any other place within the limits of Wilmington,
Delaware, without the approval of the shareholders, and shall have the power to
establish or change the location of any branch or branches of the association to
any other location, without the approval of the shareholders.
EIGHTH. The corporate existence of this association shall continue
until terminated according to the laws of the United States.
NINTH. The Board of Directors of this association, or any three or more
shareholders owning, in the aggregate, not less than 10 percent of the stock of
this association, may call a special meeting if shareholders at any time. Unless
otherwise provided by the laws of the United States, a notice of the time, place
and purpose of every annual and special meeting of the shareholders shall be
given by first-class mail, postage prepaid, mailed at least 10 days prior to the
date of the meeting to each shareholder of record at his address as shown upon
the books of this association.
TENTH. Each director and executive officer of this association shall be
indemnified by the association against liability in any proceeding (including
without limitation a proceeding brought by or on behalf of this association
itself) arising out of his status as such or his activities in either of the
foregoing capacities, except for any liability incurred on account of activities
which were at the time taken known or believed by such person to be clearly in
conflict with the best interests of this association. Liabilities incurred by a
director or executive officer of this association in defending a proceeding
shall be paid by this association in advance of the final disposition of such
proceeding upon receipt of an undertaking by the director or executive officer
to repay such amount if it shall be determined, as provided in the last
paragraph of this Article Tenth, that he is not entitled to be indemnified by
this association against such liabilities.
The indemnity against liability in the preceding paragraph of this
Article Tenth, including liabilities incurred in defending a proceeding, shall
be automatic and self-operative.
Any director, officer or employee of this association who serves at the
request of this association as a director, officer, employee or agent of a
charitable, not-for-profit, religious, educational or hospital corporation,
partnership, joint venture, trust or other enterprise, or a trade association,
or as a trustee or administrator under an employee benefit plan, or who serves
at the request of this association as a director, officer or employee of a
business corporation in connection with the administration of an estate or trust
3
by this association, shall have the right to be indemnified by this association,
subject to the provisions set forth in the following paragraph of this Article
Tenth, against liabilities in any manner arising out of or attributable to such
status or activities in any such capacity, except for any liability incurred on
account of activities which were at the time taken known or believed by such
person to be clearly in conflict with the best interests of this association, or
of the corporation, partnership, joint venture, trust, enterprise, association
or plan being served by such person.
In the case of all persons except the directors and executive officers
of this association, the determination of whether a person is entitled to
indemnification under the preceding paragraph of this Article Tenth shall be
made by and in the sole discretion of the Chief Executive Officer of this
association. In the case of the directors and executive officers of this
association, the indemnity against liability in the preceding paragraph of this
Article Tenth shall be automatic and self-operative.
For purposes of this Article Tenth of these Articles of Association
only, the following terms shall have the meanings indicated:
(a) "association" means Wachovia Trust Company, National Association
and its direct and indirect wholly-owned subsidiaries.
(b) "director" means an individual who is or was a director of this
association.
(c) "executive officer" means an officer of this association who by
resolution of the Board of Directors of this association has been
determined to be an executive officer of this association for
purposes of Regulation 0 of the Federal Reserve Board.
(d) "liability" means the obligation to pay a judgment, settlement,
penalty, fine (including an excise tax assessed with respect to
an employee benefit plan), or reasonable expenses, including
counsel fees and expenses, incurred with respect to a proceeding.
(e) "party" includes an individual who was, is, or is threatened to
be made a named defendant or respondent in a proceeding.
(f) "proceeding" means any threatened, pending, or completed claim,
action, suit, or proceeding, whether civil, criminal,
administrative, or investigative and whether formal or informal.
This association shall have no obligation to indemnify any person for
an amount paid in settlement of a proceeding unless this association consents in
writing to such settlement.
The right to indemnification herein provided for shall apply to persons
who are directors, officers, or employees of banks or other entities that are
hereafter merged or otherwise combined with this association only after the
effective date of such merger or other combination and only as to their status
and activities after such date.
4
The right to indemnification herein provided for shall inure to the
benefit of the heirs and legal representatives of any person entitled to such
right.
No revocation of, change in, or adoption of any resolution or provision
in the Articles of Association or Bylaws of this association inconsistent with,
this Article Tenth shall adversely affect the rights of any director, officer,
or employee of this association with respect to (i) any proceeding commenced or
threatened prior to such revocation, change, or adoption, or (ii) any proceeding
arising out of any act or omission occurring prior to such revocation, change,
or adoption, in either case, without the written consent of such director,
officer, or employee.
The rights hereunder shall be in addition to and not exclusive of any
other rights to which a director, officer, or employee of this association may
be entitled under any statute, agreement, insurance policy, or otherwise.
This association shall have the power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, or employee
of this association, or is or was serving at the request of this association as
a director, officer, employee, or agent of another corporation, partnership,
joint venture, trust, trade association, employee benefit plan, or other
enterprise, against any liability asserted against such director, officer, or
employee in any such capacity, or arising out of their status as such, whether
or not this association would have the power to indemnify such director,
officer, or employee against such liability, excluding insurance coverage for a
formal order assessing civil money penalties against a director, officer or
employee of this association.
Notwithstanding anything to the contrary provided herein, no person
shall have a right to indemnification with respect to any liability (i) incurred
in an administrative proceeding or action instituted by an appropriate bank
regulatory agency which proceeding or action results in a final order assessing
civil money penalties or requiring affirmative action by an individual or
individuals in the form of payments to this association, (ii) to the extent such
person is entitled to receive payment therefor under any insurance policy or
from any corporation, partnership, joint venture, trust, trade association,
employee benefit plan, or other enterprise other than this association, or (iii)
to the extent that a court of competent jurisdiction determines that such
indemnification is void or prohibited under state or federal law.
ELEVENTH. These Articles of Association may be amended at any regular
or special meeting of the shareholders by the affirmative vote of the holders of
a majority of the stock of this association, unless the vote of the holders of a
greater amount of stock is required by law, and in that case by the vote of the
holders of such greater amount.
5
CHARTER CERTIFICATE
Whereas, satisfactory evidence has been presented to the Office of the
Comptroller of the Currency that First Union Trust Company, National
Association, located in Wilmington, State of Delaware, has complied with all
provisions of the statutes of the United States required to be complied with
before being authorized to commence the business of banking as a National
Banking Association;
Now, therefore, I hereby certify that the above-named association is
authorized to commence the business of banking as a National Banking
Association.
In testimony whereof witness my signature
and seal of office this fifteenth day of January 1997.
___________________________________________
Deputy Comptroller for Multinational Banking
Charter Number 23201
CERTIFICATE OF FIDUCIARY POWERS
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq.,
as amended, 12 U.S.C. 1, et seq., as amended, has possession , custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "Wachovia Trust Company, National Association," Wilmington, Delaware,
(Charter No. 23201) was granted, under the hand and seal of the Comptroller, the
right to act in all fiduciary capacities authorized under the provisions of the
Act of Congress approved September 28, 1962, 76 Stat. 668, 12 U.S.C. 92a, and
that the authority so granted remains in full force and effect on the date of
this Certificate.
IN TESTIMONY WHEREOF, I have
hereunto subscribed my name and
caused my seal of office to be
affixed to these presents at the
Treasury Department in the City of
Washington and District of Columbia,
this June 19, 2003
/s/ John D. Hawke, Jr.
---------------------------
Comptroller of the Currency
WACHOVIA TRUST COMPANY, NATIONAL ASSOCIATION
BYLAWS
------
AS AMENDED AND RESTATED APRIL 1, 2002
AS AMENDED OCTOBER 24, 2002
ARTICLE I
---------
Meetings of Shareholders
------------------------
Section 1.1 Annual Meeting. The regular annual meeting of the shareholders
for the election of directors and transaction of whatever other business may
properly come before the meeting, shall be held at the Main Office of the
Association, or such other place as the Board of Directors may designate, at
10:00 A.M. on the third Tuesday of April in each year, or such other time within
90 days as may be set by the Board of Directors. If, from any cause, an election
of directors is not made on the said day, the Board of Directors shall order the
election to be held on some subsequent day, as soon thereafter as practicable,
according to the provisions of the law; and notice thereof shall be given in the
manner herein.
Section 1.2 Special Meetings. Except as otherwise specifically provided by
statute, special meetings of the shareholders may be called for any purpose at
any time by the Board of Directors or by any one or more shareholders owning, in
the aggregate, not less than twenty-five percent of the stock of the
Association.
Section 1.3 Notice of Meetings. Notice of Annual and Special meetings shall
be mailed, postage prepaid, at least ten days prior to the date thereof provided
for the annual meeting, addressed to each shareholder at his address appearing
on the books of the Association; but any failure to mail such notice, or any
irregularity therein, shall not affect the validity of such meeting, or of any
of the proceedings thereat. A shareholder may waive any such notice.
Section 1.4 Organization of Meetings. The Chairman shall preside at all
meetings of shareholders. In his absence, the President, or a director
designated by the Chairman shall preside at such meeting.
Section 1.5 Proxies. Shareholders may vote at any meeting of the
shareholders by proxies duly authorized in writing. Proxies shall be valid only
for one meeting to be specified therein, and any adjournments of such meeting.
Proxies shall be dated and shall be filed with the records of the meeting.
Section 1.6 Quorum. A majority of the outstanding capital stock,
represented in person or by proxy, shall constitute a quorum at any meeting of
shareholders, unless otherwise provided by law. A majority of the votes cast
shall decide every question or matter submitted to the shareholders at any
meeting, unless otherwise provided by law or by the Articles of Association.
ARTICLE II
----------
Directors
---------
Section 2.1 Board of Directors. The Board of Directors (hereinafter
referred to as the "Board"), shall have power to manage and administer the
business and affairs of the Association. Except as expressly limited by law, all
corporate powers of the Association shall be vested in and may be exercised by
said Board.
Section 2.2 Number. The Board shall consist of not less than five nor more
than twenty-five persons, the exact number within such minimum and maximum
limits to be fixed and determined from time to time by resolution of a majority
of the full Board or by resolution of the shareholders at any meeting thereof;
provided, however, that a majority of the full Board may not increase the number
of directors to a number which: (a) exceeds by more than two the number of
directors last elected by shareholders where such number was fifteen or less;
and (b) to a number which exceeds by more than four the number of directors last
2
elected by shareholders where such number was sixteen or more, but in no event
shall the number of directors exceed twenty-five.
Section 2.3 Organization Meeting. A meeting shall be held for the purpose
of organizing the new Board and electing and appointing officers of the
Association for the succeeding year on the day of the Annual Meeting of
Shareholders or as soon thereafter as practicable, and, in any event, within
thirty days thereof. If, at the time fixed for such meeting, there shall not be
a quorum present, the directors present may adjourn the meeting, from time to
time, until a quorum is obtained.
Section 2.4 Regular Meetings. The regular meetings of the Board shall be
held on such days and time as the directors may, by resolution, designate; and
written notice of any change thereof shall be sent to each member. When any
regular meeting of the Board falls upon a legal holiday, the meeting shall be
held on such other day as the Board may designate.
Section 2.5 Special Meetings. Special meetings of the Board may be called
by the Chairman of the Board, or President, or at the request of three or more
directors. Each director shall be given notice of each special meeting, except
the organization meeting, at least one day before it is to be held by facsimile,
telephone, telegram, letter or in person. Any director may waive any such
notice.
Section 2.6 Quorum. A majority of the directors shall constitute a quorum
at any meeting, except when otherwise provided by law; but a less number may
adjourn any meeting, from time to time, and the meeting may be held, as
adjourned without further notice.
Section 2.7 Term of Office and Vacancy. Directors shall hold office for one
year and until their successors are elected and have qualified. No person shall
stand for election as a director of this Association if at the date of his
election he will have passed his seventieth birthday; provided, however, this
prohibition shall not apply to persons who are active officers of this
Association, an affiliate bank, or its parent corporation, or a former chief
executive officer of the Association. No person, who is not an officer or former
3
officer of this Association, an affiliate bank, or its parent corporation and
who has discontinued the principal position or activity the person held when
initially elected, shall be recommended to the shareholders for reelection;
provided, however, that exceptions may be made because of a change in principal
position or activity which would be compatible with continued service to this
Association. No person elected as a director may exercise any of the powers of
his office until he has taken the oath of office as prescribed by law. When any
vacancy occurs among the directors, the remaining members of the Board, in
accordance with the laws of the United States, may appoint a director to fill
such vacancy at any regular meeting of the Board, or at a special meeting called
for that purpose.
Section 2.8 Nominations. Nominations for election to the Board may be made
by the Executive Committee or by any stockholder of any outstanding class of
capital stock of the Association entitled to vote for the election of directors.
Section 2.9 Communications Equipment. Any or all directors may participate
in a meeting of the Board by means of conference telephone or any means of
communication by which all persons participating in the meeting are able to hear
each other.
Section 2.10 Action Without Meeting. Any action required or permitted to be
taken by the Board or committee thereof by law, the Association's Articles of
Association, or these Bylaws may be taken without a meeting, if, prior or
subsequent to the action, all members of the Board or committee shall
individually or collectively consent in writing to the action. Each written
consent or consents shall be filed with the minutes of the proceedings of the
Board or committee. Action by written consent shall have the same force and
effect as a unanimous vote of the directors, for all purposes. Any certificate
or other documents that relates to action so taken shall state that the action
was taken by unanimous written consent of the Board or committee without a
meeting.
4
ARTICLE III
-----------
Committees of the Board
-----------------------
Section 3.1 Executive Committee. The Board may by resolution adopted by a
majority of the entire Board designate an Executive Committee consisting of the
Chairman of the Board, the President, and not less than two other directors.
Subject to the national banking laws and the Association's Articles of
Association, the Executive Committee may exercise all the powers of the Board of
Directors with respect to the affairs of the Association, except that the
Executive Committee may not:
1. (a) exercise such powers while a quorum of the Board of Directors is
actually convened for the conduct of business,
(b) exercise any power specifically required to be exercised by at
least a majority of all the directors,
(c) act on matters committed by the Bylaws or resolution of the Board
of Directors to another committee of the board, or
(d) amend or repeal any resolution theretofore adopted by the Board
of Directors which by its terms is amendable or repealable only
by the Board;
2. amend the Articles of Association or make, alter or repeal any
Bylaw of the Association;
3. elect or appoint any director, create or fill any vacancies in
the Board of Directors or remove any director, or authorize or
approve any change in the compensation of any officer of the
Association who is also a director of the Association;
5
4. authorize or approve issuance or sale or contract for sale of
shares of stock of the Association, or determine the designation
and relative rights, preferences and limitations of a class or
series of shares;
5. adopt an agreement of merger or consolidation, or submit to
shareholders any action that requires shareholder approval,
including any recommendation to the shareholders concerning the
sale, lease or exchange of all or substantially all the
Association's property and assets, a dissolution of the
Association or a revocation of a previously approved dissolution;
or
6. authorize an expenditure by the Association in excess of $ 10
million for any one item or group of related items.
The committee shall hold regular meetings at such times as the members shall
agree and whenever called by the chairman of the committee. A majority of the
committee shall constitute a quorum for the transaction of business. The
committee shall keep a record of its proceedings and shall report these
proceedings to the Board at the regular meetings thereof. The committee shall
serve as the nominating committee for nominations to the Board.
Section 3.2 Chairman of the Executive Committee. The Board may designate
one of its members to be Chairman of the Executive Committee who shall preside
at the meetings thereof and shall perform such duties as the Board shall assign
to him from time to time.
Section 3.3 Audit Committee. The Board shall appoint a committee of three
or more persons exclusive of the officers of this Association which committee
shall be known as the Audit Committee. It shall be the duty of this committee at
least once in every twelve months to examine the affairs of the Association, and
determine whether it is in a sound and solvent condition and to recommend to the
Board such changes in the manner of doing business, etc., as may seem to be
6
desirable. The committee may cause such examination to be made in its behalf and
under its supervision by outside accountants and may also use the services of
any other persons either inside or outside the Association to assist in its
work. The results of each examination shall be reported in writing to the Board.
Section 3.4 Audit of Trust Department. The Audit Committee shall, at least
once during each calendar year and within fifteen months of the last such audit
make suitable audits of the Trust Department or cause suitable audits to be made
by auditors responsible only to the Board, and at such time shall ascertain
whether the department has been administered in accordance with law, Part 9 of
the Regulations of the Comptroller of the Currency, and sound fiduciary
principles. In lieu of such periodic audit the Audit Committee, at the election
of the Board, may conduct or cause to be conducted by auditors responsible only
to the Board an adequate continuous audit system adopted by the Board. A written
report of such periodic or continuous audit shall be made to the Board.
Section 3.5 Other Committees. The Board may appoint from time to time other
committees composed of one or more persons each, for such purposes and with such
powers as the Board may determine. The Chairman of the Board shall have the
power to designate another person to serve on any committee during the absence
or inability of any member thereof so to serve.
Section 3.6 Directors' Emeritus. The Board may designate one or more
persons to serve as Director Emeritus. Such Director Emeritus shall have the
right to attend any and all meetings of the Board, but shall have no vote at
such meetings. A person designated as Director Emeritus may serve in that
capacity for a period of three years.
Section 3.7 Alternate Committee Members. The Board may, from time to time,
appoint one or more, but no more than three persons to serve as alternate
members of a committee, each of whom shall be empowered to serve an that
committee in place of a regular committee member in the event of the absence or
7
disability of that committee member. An alternate committee member shall, when
serving on a committee, have all of the powers of a regular committee member.
Alternate committee members shall be notified of, and requested to serve at, a
particular meeting or meetings, or for particular periods of time, by or at the
direction of the chairman of the committee or the Chairman of the Board.
ARTICLE IV
----------
Officers
--------
Section 4.1 Officers. The officers of the Association may be a Chairman of
the Board, a Vice Chairman of the Board, one or more Chairmen or Vice Chairmen
(who shall not be required to be directors of the Association), a President, one
or more Vice Presidents, a Secretary, a Cashier or Treasurer, and such other
officers, including officers holding similar or equivalent titles to the above
in regions, divisions or functional units of the Association, as may be
appointed by the Board of Directors. The Chairman of the Board and the President
shall be members of the Board of Directors. Any two or more offices may be held
by one person, but no officer shall sign or execute any document in more than
one capacity.
Section 4.2 Term of Office. The officers who are required by the articles
of association or the bylaws to be members of the Board shall hold their
respective offices until the Organization meeting of the Board following the
annual meeting of shareholders or until their respective successors shall have
been elected, unless they shall resign, become disqualified or be removed from
office. Each other officer shall hold office at the pleasure of the Board. Any
officer may be removed at any time by the Board.
Section 4.3 Chairman of the Board. The chairman of the board shall be
designated as Chairman of the Board. He shall preside at all meetings of the
stockholders and directors and he shall be a member of all committees of the
Board except the Audit Committee. He shall have such other powers and perform
8
such other duties as may be prescribed from time to time by the Board. He shall
be subject only to the direction and control of the Board.
Section 4.4 President. The president shall be the chief executive officer
of the Association and he shall be designated as President and Chief Executive
Officer. In the absence of the Chairman the President shall preside at all
meetings of the Board. The President shall be a member of each committee of the
Board except the Audit Committee. He shall have the powers and perform the
duties conferred or imposed upon the President by the national banking laws, and
he shall have such other powers and perform such other duties as may from time
to time be imposed upon or assigned to him by the Board.
Section 4.5 Chief Financial Officer. The Chief Financial officer shall have
such title as may be designated by the Board and he shall be responsible for all
monies, funds and valuables of this Association, provide for the keeping of
proper records of all transactions of the Association, report to the Board at
each regular meeting the condition of the Association, submit to the Board, when
requested, a detailed statement of the income and expenses, be responsible for
the conduct and efficiency of all persons employed under him, and perform such
other duties as may be from time to time assigned to him by the Board.
Section 4.6 Other Officers. All other officers shall respectively exercise
such powers and perform such duties as generally pertain to their several
offices, or as may be conferred upon or assigned to them by the Board, the
Chairman of the Board or the President.
Section 4.7 Bond. Each officer and employee, if so required by the Board,
shall give bond with surety to be approved by the Board, conditioning for the
honest discharge of his duties as such officer or employee. In the discretion of
the Board, such bonds may be individual, schedule or blanket form, and the
premiums may be paid by the Association.
9
Section 4.8 Officers Acting as Assistant Secretary. Notwithstanding Section
4.1 of this Article IV, any Senior Vice President, Vice President or Assistant
Vice President shall have, by virtue of his office, and by authority of the
Bylaws, the authority from time to time to act as an Assistant Secretary of the
Association, and to such extent, said officers are appointed to the office of
Assistant Secretary.
ARTICLE V
---------
Fiduciary Powers
----------------
Section 5.1 Trust Services Division. There shall be divisions of this
Association known as the Capital Management Group and the Wealth Management
Group which shall be responsible for the exercise of the fiduciary activities of
this Association.
Section 5.2 Trust Officers. There shall be one or more Officers of this
Association whose duties in Delaware shall be to manage, supervise and direct
all the fiduciary activities of the Capital Management and Wealth Management
Groups in Delaware. Further, there shall be one or more Senior Trust Officers
designated to assist the Officers in the performance of their duties. They shall
do or cause to be done all things necessary or proper in carrying out the
business of the Capital Management and Wealth Management Groups in accordance
with provisions of applicable laws and regulations.
Section 5.3 General Trust Committee. The Association appoints, as its
General Trust Committee, the General Trust Committee of Wachovia Bank, National
Association. The General Trust Committee is composed of not fewer than four (4)
members of the Wachovia Bank, National Association Board of Directors or
officers of that Association who shall be appointed annually, or from time to
time, by the Board of Directors of that Association. Each member shall serve
until his successor is appointed. The Board of Directors or the Chairman of the
10
Board may change the membership of the General Trust Committee at any time, fill
any vacancies therein, or discharge any member thereof with or without cause at
any time. The General Trust Committee shall counsel and advise on all matters
relating to the fiduciary business or affairs of the Capital Management and
Wealth Management Groups and shall adopt overall policies for the conduct of the
fiduciary business of the Capital Management and Wealth Management Groups,
including, but not limited to: general administration, investment policies, new
business development, and review for approval of major assignments of functional
responsibilities. The General Trust Committee shall assign the administration
and performance of any of its fiduciary powers or duties to any subcommittee as
it may designate such subcommittee to consist of officers of this Association.
The General Trust Committee shall appoint the members of any such subcommittees
and shall determine the number of members which constitutes a quorum at meetings
of such subcommittees. The General Trust Committee shall meet at least quarterly
or as called for by its Chairman or any three (3) members of the Committee. A
quorum shall consist of three (3) members. In carrying out its responsibilities,
the General Trust Committee shall review the actions of all officers, employees
and committees utilized by this Association in connection with the fiduciary
activities of the Capital Management and Wealth Management Groups and may assign
the administration and performance of any fiduciary powers or duties to any
officers or employees of the Capital Management Group or Wealth Management Group
or to any committee it may designate. One of the methods to be used in the
review process will be the scrutiny of the Reports of Examination by the Office
of the Comptroller of the Currency and the reports of the Audit Division of
Wachovia Corporation, as they relate to the activities of the Capital Management
and Wealth Management Groups. These reviews shall be in addition to reviews of
such reports by the Audit Committee of the Board of Directors. The General Trust
Committee shall make its minutes available to the Board of Directors at its next
regularly scheduled meeting following a meeting of the General Trust Committee.
11
As required by Section 9.4 of Regulation 9 of the Comptroller of the Currency,
the Board of Directors retains responsibility for the proper exercise of this
Association's fiduciary powers.
Members of the General Trust Committee will abide by the Association's
Code of Conduct as it applies to the Capital Management and Wealth Management
Groups.
ARTICLE VI
----------
Stock Certificates and Transfers
--------------------------------
Section 6.1 Stock Certificates. Ownership of capital stock of the
Association shall be evidenced by certificates of stock signed by the Chairman
or President, and the Secretary, or an Assistant Secretary. Each certificate
shall state upon its face that the stock is transferable only upon the books of
the Association by the holder thereof, or by duly authorized attorney, upon the
surrender of such certificate, and shall meet the requirements of Section 5139,
United States Revised Statutes, as amended.
Section 6.2 Transfers. The stock of this Association shall be assignable
and transferable only on the books of this Association, subject to the
restrictions and provisions of the national banking laws; and a transfer book
shall be provided in which all assignments and transfers of stock shall be made.
When stock is transferred, the certificates thereof shall be returned to the
Association, canceled, preserved and new certificates issued.
Section 6.3 Dividends. Dividends shall be paid to the shareholders in whose
names the stock shall stand at the close of business on the day next preceding
the date when the dividends are payable, provided, however, that the directors
may fix another date as a record date for the determination of the shareholders
entitled to receive payment thereof.
12
ARTICLE VII
-----------
Increase of Stock
-----------------
Section 7.1 Capital Stock. Shares of the capital stock of the Association,
which have been authorized but not issued, may be issued from time to time for
such consideration, not less than the par value thereof, as may be determined by
the Board.
ARTICLE VIII
------------
Corporate Seal
--------------
Section 8.1 Seal. The seal, an impression of which appears below, is the
seal of the Association adopted by the Board of Directors:
[Seal]
The Chairman of the Board, the Vice Chairman, the President, Senior
Executive Vice President, Executive Vice President, Senior Vice President, Vice
President, each Assistant Vice President, the Chief Financial Officer, the
Secretary, each Assistant Secretary, each Trust Officer, each Assistant Trust
Officer or each Assistant Cashier, shall have the authority to affix the
corporate seal of this Association and to attest to the same.
ARTICLE IX
----------
Miscellaneous Provisions
------------------------
Section 9.1 Fiscal Year. The fiscal year of the Association shall be the
calendar year.
Section 9.2 Execution of Instruments. All agreements, indentures,
mortgages, deeds, conveyances, transfers, certificates, declarations, receipts,
13
discharges, releases, satisfactions, settlements, petitions, notices,
applications, schedules, accounts, affidavits, bonds, undertakings, proxies, and
other instruments or documents may be signed, executed, acknowledged, verified,
delivered or accepted in behalf of the Association by the Chairman of the Board,
the Vice Chairman of the Board, any Chairman or Vice Chairman, the President,
any Senior Executive Vice President, Executive Vice President, Vice President or
Assistant Vice President, the Secretary, the Cashier or Treasurer, or any
officer holding similar or equivalent titles to the above in any regions,
divisions or functional units of the Association, or, if in connection with the
exercise of fiduciary powers of the Association, by any of said officers or by
any Trust Officer or Assistant Trust Officer (or equivalent titles), and if so
required by applicable law or regulation, attested or countersigned by the
Secretary or Assistant Secretary; provided, however, that were required, any
such instrument shall be attested by one of said officers other than the officer
executing such instrument. Any such instruments may also be executed,
acknowledged, verified, delivered, or accepted in behalf of the Association in
such other manner and by such other officers as the Board of Directors may from
time to time direct. The provisions of this Section 9.2 are supplementary to any
other provision of these By-laws.
Section 9.3 Records. The organization papers of this Association, the
articles of association, the bylaws and any amendments thereto, the proceedings
of all regular and special meetings of the shareholders and of the directors,
the returns of the judges of elections, and the reports of the committees of
directors shall be recorded in an appropriate minute book, and the minutes of
each meeting shall be signed by the Secretary or any other officer appointed to
act as secretary of the meeting.
Section 9.4 Banking Hours. This Association and its branch offices shall be
open on such days and during such hours as shall be fixed from time to time by
the Board.
14
Section 9.5 Voting Shares of Other Corporations. The Chairman, any Vice
Chairman, the President, or any Vice President is authorized to vote, represent
and exercise on behalf of this Association all rights incident to any and all
shares of stock of any other corporation standing in the name of the
Association. The authority granted herein may be exercised by such officers in
person or by proxy or by power of attorney duly executed by said officer.
ARTICLE X
---------
Bylaws
------
Section 10.1 Inspection. A copy of the Bylaws, with all amendments thereto,
shall at all times be kept in a convenient place at the Head Office of the
Association, and shall be open for inspection to all shareholders, during
banking hours.
Section 10.2 Amendments. These Bylaws may be changed or amended at any
regular or special meeting of the Board by the vote of a majority of the
Directors.
15
Exhibit 25-3
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
WACHOVIA BANK, NATIONAL ASSOCIATION
(Exact Name of Trustee as Specified in its Charter)
22-1147033
(I.R.S. Employer Identification No.)
301 S. COLLEGE STREET, CHARLOTTE, NORTH CAROLINA
(Address of Principal Executive Offices)
28288-0630
(Zip Code)
WACHOVIA BANK, NATIONAL ASSOCIATION
123 SOUTH BROAD STREET
PHILADELPHIA, PA 19109
ATTENTION: CORPORATE TRUST ADMINISTRATION
(215) 670-6300
(Name, address and telephone number of Agent for Service)
EXELON CORPORATION
(Exact Name of Obligor as Specified in its Charter)
PENNSYLVANIA
State or other jurisdiction of Incorporation or Organization)
23-2990190
(I.R.S. Employer Identification No.)
10 SOUTH DEARBORN STREET-37th FLOOR
P.O. BOX 805379
CHICAGO, ILLINOIS
(Address of Principal Executive Offices)
60680-5379
(Zip Code)
% SUBORDINATED DEBT SECURITIES DUE
(Title of Indenture Securities)
1. General information.
Furnish the following information as to the trustee:
a) Name and address of each examining or supervisory authority to which it is
subject: Comptroller of the Currency United States Department of the Treasury
Washington, D.C. 20219
Federal Reserve Bank
Richmond, Virginia 23219
Federal Deposit Insurance Corporation
Washington, D.C. 20429
b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
3. Voting securities of the trustee.
Furnish the following information as to each class of voting securities of
the trustee:
Not applicable - see answer to Item 13.
4. Trusteeships under other indentures.
If the trustee is a trustee under another indenture under which any other
securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, furnish the following information:
Not applicable - see answer to Item 13.
5. Interlocking directorates and similar relationships with the obligor or
underwriters.
If the trustee or any of the directors or executive officers of the trustee
is a director, officer, partner, employee, appointee, or representative of the
obligor or of any underwriter for the obligor, identify each such person having
any such connection and state the nature of each such connection.
2
Not applicable - see answer to Item 13.
6. Voting securities of the trustee owned by the obligor or its
officials.
Furnish the following information as to the voting securities of the trustee
owned beneficially by the obligor and each director, partner, and executive
officer of the obligor:
Not applicable - see answer to Item 13.
7. Voting securities of the trustee owned by underwriters or their officials.
Furnish the following information as to the voting securities of the trustee
owned beneficially by each underwriter for the obligor and each director,
partner, and executive officer of each such underwriter:
Not applicable - see answer to Item 13.
8. Securities of the obligor owned or held by the trustee.
Furnish the following information as to securities of the obligor owned
beneficially or held as collateral security for obligations in default by the
trustee:
Not applicable - see answer to Item 13.
9. Securities of underwriters owned or held by the trustee.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of an underwriter for the obligor, furnish
the following information as to each class of securities of such underwriter any
of which are so owned or held by the trustee:
Not applicable - see answer to Item 13.
10. Ownership or holdings by the trustee of voting securities of certain
affiliates or security holders of the obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default voting securities of a person who, to the knowledge of
the trustee (1) owns 10 percent or more of the voting stock of the obligor or
(2) is an affiliate, other than a subsidiary, of the obligor, furnish the
following information as to the voting securities of such person:
Not applicable - see answer to Item 13.
11. Ownership or holdings by the trustee of any securities of a person owning
3
50 percent or more of the voting securities of the obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of a person who, to the knowledge of the
trustee, owns 50 percent or more of the voting securities of the obligor,
furnish the following information as to each class of securities of such person
any of which are so owned or held by the trustee:
Not applicable - see answer to Item 13.
12. Indebtedness of the obligor to the trustee.
Except as noted in the instructions, if the obligor is indebted to the
trustee, furnish the following information:
Not applicable - see answer to Item 13.
13. Defaults by the obligor.
(a) State whether there is or has been a default with respect to the
securities under this indenture. Explain the nature of any such default.
None.
(b) If the trustee is a trustee under another indenture under which any other
securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, or is trustee for more than one
outstanding series of securities under the indenture, state whether there has
been a default under any such indenture or series, identify the indenture or
series affected, and explain the nature of any such default. None 14.
Affiliations with the underwriters.
If any underwriter is an affiliate of the trustee, describe each such
affiliation.
Not applicable - see answer to Item 13.
15. Foreign trustee.
Identify the order or rule pursuant to which the trustee is authorized to act
as sole trustee under indentures qualified or to be qualified under the Act.
Not applicable - trustee is a national banking association organized under
the laws of the United States.
16. List of Exhibits.
4
List below all exhibits filed as part of this statement of eligibility.
__ 1. Copy of Articles of Association of the trustee as now in effect*
__ 2. Copy of the Certificate of the Comptroller of the Currency dated March 27,
2002, evidencing the authority of the trustee to transact business*
__ 3. Copy of the Certification of Fiduciary Powers of the trustee by the Office
of the Comptroller of the Currency dated March 27,2002*
__ 4. Copy of existing by-laws of the trustee**
__ 5. Copy of each indenture referred to in Item 4, if the obligor is in
default. -Not Applicable.
X 6. Consent of the trustee required by Section 321(b) of the Act.
- --
X 7. Copy of report of condition of the trustee published pursuant to the
- -- requirements of its supervising authority
__ 8. Copy of any order pursuant to which the foreign trustee is authorized to
act as sole trustee under indentures qualified or to be qualified under the Act.
- Not Applicable
__ 9. Consent to service of process required of foreign trustees pursuant to
Rule 10a-4 under the Act.
- Not Applicable
- ------------------------
*Previously filed with the Securities and Exchange Commission on April 11, 2002
as an Exhibit to Form T-1 in connection with Registration Statement Number
333-86036. **Previously filed with the Securities and Exchange Commission on May
13, 2003 as an Exhibit to Form T-1 (in connection with Registration Statement
File No. 333-105207) and is incorporated by reference herein.
5
NOTE
The trustee disclaims responsibility for the accuracy or completeness of
information contained in this Statement of Eligibility and Qualification not
known to the trustee and not obtainable by it through reasonable investigation
and as to which information it has obtained from the obligor and has had to rely
or will obtain from the principal underwriters and will have to rely.
6
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939,the trustee,
Wachovia Bank, National Association, a national banking association organized
and existing under the laws of the United States of America, has duly caused
this Statement of Eligibility and Qualification to be signed on its behalf by
the undersigned, thereunto duly authorized, all in the City of Philadelphia and
the Commonwealth of Pennsylvania, on the 5th day of September, 2003.
Wachovia Bank, National Association
By:/s/George J. Rayzis
---------------------
George J. Rayzis
Vice President
7
Exhibit T-6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act of
1939, and in connection with the proposed issue of Exelon Corporation
Subordinated Debt Securities, Wachovia Bank, National Association, hereby
consents that reports of examinations by Federal, State, Territorial or District
authorities may be furnished by such authorities to the Securities and Exchange
Commission upon request therefore.
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ George J. Rayzis
---------------------
George J. Rayzis
Vice President
Philadelphia, Pennsylvania
September 5, 2003
2
EXHIBIT T-7
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of Wachovia Bank, N.A., at the
close of business on June 30, 2003, published in response to call made by
Comptroller of the Currency, under title 12, United States Code, Section 161.
Charter Number 1 Comptroller of the Currency.
Statement of Resources and Liabilities
ASSETS
Thousand of Dollars
-------------------
Cash and balance due from depository institutions:
Noninterest-bearing balances and currency and coin................................... 14,108,000
Interest-bearing balances............................................................ 4,283,000
Securities................................................................................ ////////
Held-to-maturity securities (from Schedule RC-B, column A)........................... 0
Available-for-sale securities (from schedule RC-B, column D)......................... 70,107,000
Federal funds sold and securities purchased under agreements to resell.................... 0
Federal funds sold in domestic offices.................................................... 2,060,000
Securities purchased under agreements to resell........................................... 4,782,000
Loans and lease financing receivables (from Schedule RC-C):
Loan and leases held for sale........................................................ 10,391,000
Loan and leases, net of unearned income.............................................. 160,238,000
LESS: Allowance for loan and lease losses............................................ 2,655,000
LESS: Allocated transfer risk reserve................................................ 0
Loans and leases, net of unearned income and allowance (item.4.b misus 4.c).......... 157,583,000
Trading assets (from Schedule RC-D)....................................................... 26,931,000
Premises and fixed assets (including capitalized leases).................................. 3,823,000
Other real estate owned (from Schedule RC-M).............................................. 163,000
Investment in unconsolidated subsidiaries and associated companies (from Schedule RC-M)... 689,000
Customer's liability to this bank on acceptances outstanding.............................. 1,074,000
Intangible assets.........................................................................
Goodwill............................................................................. 9,519,000
Other intangible assets (from Schedule RC-M).............................................. 1,608,000
Other assets (from Schedule RC-F)......................................................... 24,500,000
Total assets.......................................... 331,621,000
LIABILITIES
Deposits:
In domestic offices.................................................................. 195,313,000
Noninterest-bearing................................................................ 29,821,000
Interest-bearing................................................................... 165,492,000
In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E,
partII).............................................................................. 11,457,000
3
Noninterest-bearing................................................................ 21,000
Interest-bearing................................................................... 11,436,000
Federal funds purchased in domestic offices(2)............................................ 3,871,000
Securities sold under agreements to repurchase(3)......................................... 25,005,000
Trading liabilities(from Schedule RC-D)................................................... 20,648,000
Other borrowed money (includes mortgage indebtedness and obligations under Capitalized
leases)(from Schedule RC-M)............................................................. 19,665,000
Bank's liability on acceptances executed and outstanding.................................. 1,078,000
Subordinated notes and debentures......................................................... 8,049,000
Other liabilities......................................................................... 13,250,000
Total liabilities......................................................................... 298,336,000
Minority Interest in consolidated subsidiaries............................................ 1,658,000
EQUITY CAPITAL
Perpetual preferred stock and related surplus........................................... 0
Common Stock.............................................................................. 455,000
Surplus................................................................................... 24,184,000
Retained Earnings......................................................................... 4,879,000
Accumulated other comprehensive income.................................................... 2,109,000
Other Equity Capital components........................................................... 0
Total equity capital (sum of item 23 through 27).......................................... 31,627,000
Total liabilities and equity capital (sum of items 21,22, and 28.......................... 331,621,000
4
Exhibit 25.4
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT
TO SECTION 305(b)(2) [ ]
WACHOVIA TRUST COMPANY, NATIONAL ASSOCIATION
(Exact Name of Trustee as Specified in its Charter)
56-1989961
(I.R.S. Employer Identification No.)
One Rodney Square, 920 King Street, Suite 102, Wilmington, Delaware
(Address of Principal Executive Offices)
19801
(Zip Code)
WACHOVIA TRUST COMPANY, NATIONAL ASSOCIATION
ONE RODNEY SQUARE
920 KING STREET, SUITE 102
WILMINGTON, DE 19801
ATTENTION: CORPORATE TRUST ADMINISTRATION
(302) 888-7539
(Name, address and telephone number of Agent for Service)
EXELON CORPORATION
(Exact Name of Obligor as Specified in its Charter)
Pennsylvania
(State or other jurisdiction of Incorporation or Organization)
23-2990190
(I.R.S. Employer Identification No.)
10 South Dearborn Street
37th Floor
P.O. Box 805379
Chicago, IL
(Address of Principal Executive Offices)
60680-5379
(Zip Code)
Guarantee of Trust Preferred Securities of
Exelon Capital Trust [ ]
(Title of Indenture Securities)
1. General information.
Furnish the following information as to the trustee:
a) Name and address of each examining or supervisory authority to which it
is subject:
Comptroller of the Currency
United States Department of the Treasury
Washington, D.C. 20219
Federal Reserve Bank
Richmond, Virginia 23219
Federal Deposit Insurance Corporation
Washington, D.C. 20429
b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with obligor.
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
3. Voting securities of the trustee.
Furnish the following information as to each class of voting securities of the
trustee:
Not applicable - see answer to Item 13.
4. Trusteeships under other indentures.
If the trustee is a trustee under another indenture under which any other
securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, furnish the following information:
a)
Title of the securities outstanding under each such other indenture.
Trust Preferred Securities
(b)
A brief statement of the facts relied upon as a basis for the claim
that no conflicting interest within the meaning of Section 310(b)(1) of
the Act arises as a result of the trusteeship under any such other
indenture, including a statement as to how the indenture securities
will rank as compared with the securities issued under such other
indenture.
The indenture securities are not in default. The indenture
securities rank equal to the securities named in Item 4(a).
5. Interlocking directorates and similar relationships with the obligor or
underwriters.
If the trustee or any of the directors or executive officers of the trustee is a
director, officer, partner, employee, appointee, or representative of the
obligor or of any underwriter for the obligor, identify each such person having
any such connection and state the nature of each such connection.
Not applicable - see answer to Item 13.
6. Voting securities of the trustee owned by the obligor or its officials.
Furnish the following information as to the voting securities of the trustee
owned beneficially by the obligor and each director, partner, and executive
officer of the obligor:
Not applicable - see answer to Item 13.
7. Voting securities of the trustee owned by underwriters or their officials.
Furnish the following information as to the voting securities of the trustee
owned beneficially by each underwriter for the obligor and each director,
partner, and executive officer of each such underwriter:
Not applicable - see answer to Item 13.
8. Securities of the obligor owned or held by the trustee.
Furnish the following information as to securities of the obligor owned
beneficially or held as collateral security for obligations in default by the
trustee:
Not applicable - see answer to Item 13.
9. Securities of underwriters owned or held by the trustee.
If the trustee owns beneficially or holds as collateral security for obligations
in default any securities of an underwriter for the obligor, furnish the
following information as to each class of securities of such underwriter any of
which are so owned or held by the trustee:
Not applicable - see answer to Item 13.
10. Ownership or holdings by the trustee of voting securities of certain
affiliates or security holders of the obligor.
If the trustee owns beneficially or holds as collateral security for obligations
in default voting securities of a person who, to the knowledge of the trustee
(1) owns 10 percent or more of the voting stock of the obligor or (2) is an
affiliate, other than a subsidiary, of the obligor, furnish the following
information as to the voting securities of such person:
Not applicable - see answer to Item 13.
11. Ownership or holdings by the trustee of any securities of a person owning 50
percent or more of the voting securities of the obligor.
If the trustee owns beneficially or holds as collateral security for obligations
in default any securities of a person who, to the knowledge of the trustee, owns
50 percent or more of the voting securities of the obligor, furnish the
following information as to each class of securities of such person any of which
are so owned or held by the trustee:
Not applicable - see answer to Item 13.
12. Indebtedness of the obligor to the trustee.
Except as noted in the instructions, if the obligor is indebted to the trustee,
furnish the following information:
Not applicable - see answer to Item 13.
13. Defaults by the obligor.
a) State whether there is or has been a default with respect to the securities
under this indenture. Explain the nature of any such default.
None.
b) If the trustee is a trustee under another indenture under which any other
securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, or is trustee for more than one
outstanding series of securities under the indenture, state whether there has
been a default under any such indenture or series, identify the indenture or
series affected, and explain the nature of any such default.
None
14. Affiliations with the underwriters.
If any underwriter is an affiliate of the trustee, describe each such
affiliation.
Not applicable - see answer to Item 13.
15. Foreign trustee.
Identify the order or rule pursuant to which the trustee is authorized to act as
sole trustee under indentures qualified or to be qualified under the Act.
Not applicable - trustee is a national banking association organized
under the laws of the United States.
16. List of Exhibits.
List below all exhibits filed as part of this statement of eligibility.
X 1. Copy of Articles of Association of the trustee as now in effect.*
- --
X 2. Copy of the Certificate of the Comptroller of the Currency dated April 4,
- --2002, evidencing the authority of the trustee to transact business.*
X 3. Copy of the Certification of Fiduciary Powers of the trustee by the Office
- --of the Comptroller of the Currency dated April 4, 2002.*
X 4. Copy of existing by-laws of the trustee.*
- --
__5. Copy of each indenture referred to in Item 4, if the obligor is in default.
-Not Applicable.
X 6. Consent of the trustee required by Section 321(b) of the Act.
- --
X 7. Copy of report of condition of the trustee at the close of business on
- --December 31, 2002, published pursuant to the requirements of its supervising
authority.
__ 8. Copy of any order pursuant to which the foreign trustee is authorized to
act as sole trustee under indentures qualified or to be qualified under the Act.
Not Applicable
__ 9. Consent to service of process required of foreign trustees pursuant to
Rule 10a-4 under the Act.
Not Applicable
- ------------------------------
* Previously filed with Exhibit 25.2 to the Registration Statement of Exelon
Corporation to which this Form T-1 is an exhibit.
NOTE
The trustee disclaims responsibility for the accuracy or completeness
of information contained in this Statement of Eligibility and Qualification not
known to the trustee and not obtainable by it through reasonable investigation
and as to which information it has obtained from the obligor and has had to rely
or will obtain from the principal underwriters and will have to rely.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, Wachovia Trust Company, National Association, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this Statement of Eligibility and Qualification to be
signed on its behalf by the undersigned, thereunto duly authorized, all in the
City of Wilmington and the State of Delaware, on the 5th day of September, 2003.
Wachovia Trust company,
National Association
By: /s/ Rita Marie Ritrovato
-----------------------------
Rita Marie Ritrovato
Trust Officer
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939, and in connection with the proposed issue of Exelon Capital Trust
I, II, and III, Wachovia Trust Company, National Association, hereby consents
that reports of examinations by Federal, State, Territorial or District
authorities may be furnished by such authorities to the Securities and Exchange
Commission upon request therefor.
WACHOVIA TRUST COMPANY,
NATIONAL ASSOCIATION
By: /s/ Rita Marie Ritrovato
---------------------------
Rita Marie Ritrovato
Trust Officer
Wilmington, Delaware
September 5, 2003
EXHIBIT T-7
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of Wachovia Trust Company, N.A.,
at the close of business on March 31, 2003, published in response to call made
by Comptroller of the Currency, under title 12, United States Code, Section 161.
Charter Number 1 Comptroller of the Currency.
Statement of Resources and Liabilities
ASSETS
Thousand of Dollars
-------------------
Cash and balance due from depository institutions:
Noninterest-bearing balances and currency and coin................................... 14,130,000
Interest-bearing balances............................................................ 2,142,000
Securities................................................................................ ////////
Held-to-maturity securities (from Schedule RC-B, column A)........................... 0
Available-for-sale securities (from schedule RC-B, column D)......................... 69,552,000
Federal funds sold and securities purchased under agreements to resell.................... 0
Federal funds sold in domestic offices.................................................... 1,833,000
Securities purchased under agreements to resell(3)........................................ 4,293,000
Loans and lease financing receivables (from Schedule RC-C):
Loan and leases held for sale........................................................ 8,101,000
Loan and leases, net of unearned income.............................................. 161,553,000
LESS: Allowance for loan and lease losses............................................ 2,716,000
LESS: Allocated transfer risk reserve................................................ 0
Loans and leases, net of unearned income and allowance (item.4.b misus 4.c).......... 158,837,000
Trading assets (from Schedule RC-D)....................................................... 26,199,000
Premises and fixed assets (including capitalized leases).................................. 4,255,000
Other real estate owned (from Schedule RC-M).............................................. 143,000
Investment in unconsolidated subsidiaries and associated companies (from Schedule RC-M)... 669,000
Customer's liability to this bank on acceptances outstanding.............................. 1,485,000
Intangible assets......................................................................... 9,499,000
Goodwill.............................................................................
Other intangible assets (from Schedule RC-M).............................................. 1,698,000
Other assets (from Schedule RC-F)......................................................... 20,947,000
Total assets.......................................... 323,783,000
LIABILITIES
Deposits:
In domestic offices.................................................................. 188,964,000
Noninterest-bearing................................................................ 32,609,000
Interest-bearing................................................................... 156,355,000
In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E, 12,591,000
partII)..............................................................................
Noninterest-bearing................................................................ 21,000
Interest-bearing................................................................... 12,570,000
Federal funds purchased in domestic offices(2)............................................ 3,342,000
Securities sold under agreements to repurchase(3)......................................... 26,168,000
Trading liabilities(from Schedule RC-D)................................................... 18,156,000
Other borrowed money (includes mortgage indebtedness and obligations under Capitalized 21,041,000
leases)(from Schedule RC-M).............................................................
Bank's liability on acceptances executed and outstanding.................................. 1,492,000
Subordinated notes and debentures......................................................... 8,149,000
Other liabilities......................................................................... 11,156,000
Total liabilities......................................................................... 291,059,000
Minority Interest in consolidated subsidiaries............................................ 1,327,000
EQUITY CAPITAL
Perpetual preferred stock and related surplus........................................... 0
Common Stock.............................................................................. 455,000
Surplus................................................................................... 24,194,000
Retained Earnings......................................................................... 4,660,000
Accumulated other comprehensive income.................................................... 2,088,000
Other Equity Capital components........................................................... 0
Total equity capital (sum of item 23 through 27).......................................... 31,397,000
Total liabilities and equity capital (sum of items 21,22, and 28.......................... 323,783,000
