1
EXHIBIT L
PECO ENERGY COMPANY
AND
MERIDIAN TRUST COMPANY, AS TRUSTEE
INDENTURE
DATED AS OF JULY 1, 1994
PROVIDING FOR THE ISSUANCE OF
DEFERRABLE INTEREST SUBORDINATED DEBENTURES IN SERIES
AND FOR
9% DEFERRABLE INTEREST SUBORDINATED DEBENTURES, SERIES A
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TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.02 Other Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 1.03 Incorporation by Reference of Trust
Indenture Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 1.04 Rules of Construction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 1.05. Acts of Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE 2 THE DEBENTURES; THE SERIES A DEBENTURES
SECTION 2.01 Issue of Debentures Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.02 Form of the Series A Debentures; Denominations. . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.03 Payment of Principal and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.04 Execution and Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.05 Registrar and Paying Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.06 Paying Agent to Hold Money in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.07 Debentureholder Lists. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.08 Transfer and Exchange. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.09 Replacement Debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 2.10 Outstanding Debentures; Determinations of Holders' Action . . . . . . . . . . . . . . . . . . 16
SECTION 2.11 Temporary Debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 2.12 Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.13 Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE 3 REDEMPTION
SECTION 3.01 Redemption; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 3.02 Selection of Debentures to be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 3.03 Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 3.04 Effect of Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 3.05 Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 3.06 Debentures Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE 4 COVENANTS
SECTION 4.01 Payment of Debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 4.02 Prohibition Against Dividends, etc.
During an Event of Default or an Extension Period . . . . . . . . . . . . . . . . . . 21
SECTION 4.03 SEC Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 4.04 Compliance Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 4.05 Relationship with PECO Energy Capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 4.06 Further Instruments and Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 4.07 Payments for Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE 5 SUCCESSOR CORPORATION
SECTION 5.01 When the Company May Merge, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
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ARTICLE 6 DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 6.02 Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 6.03 Other Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 6.04 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 6.05 Control by Majority or the Special Representative . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 6.06 Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 6.07 Rights of Holders to Receive Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 6.08 Collection Suit by the Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 6.09 The Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 6.10 Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 6.11 Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 6.12 Waiver of Stay, Extension or Usury Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE 7 THE TRUSTEE
SECTION 7.01 Duties of the Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 7.02 Rights of the Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 7.03 Individual Rights of the Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 7.04 The Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 7.05 Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 7.06 Reports by Trustee to Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 7.07 Compensation and Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 7.08 Replacement of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 7.09 Successor Trustee by Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 7.10 Eligibility; Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 7.11 Preferential Collection of Claims
Against the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE 8 SATISFACTION AND DISCHARGE OF INDENTURE;
DEFEASANCE OF CERTAIN OBLIGATIONS; UNCLAIMED MONEYS
SECTION 8.01 Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 8.02 Application by Trustee of Funds Deposited
for Payment of Debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 8.03 Repayment of Moneys Held by Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 8.04 Return of Moneys Held by the Trustee and Paying Agent Unclaimed for Three Years . . . . . . . 37
ARTICLE 9 AMENDMENTS
SECTION 9.01 Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 9.02 With Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 9.03 Compliance with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 9.04 Revocation and Effect Of Consents,
Waivers and Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 9.05 Notation on or Exchange of Debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 9.06 Trustee to Sign Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 9.07 Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE 10 SUBORDINATION
SECTION 10.01 Debentures Subordinated to Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . 40
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Page
SECTION 10.02 Priority and Payment of Proceeds in
Certain Events; Remedies Standstill . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 10.03 Payments which May Be Made Prior to
Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 10.04 Rights of Holders of Senior Indebtedness
Not to Be Impaired . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 10.05 Trustee May Take Action to Effectuate Subordination . . . . . . . . . . . . . . . . . . . . . 43
SECTION 10.06 Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 10.07 Obligations of Company Unconditional; Reinstatement . . . . . . . . . . . . . . . . . . . . . 44
SECTION 10.08 Trustee Entitled to Assume Payments Not Prohibited in Absence of Notice . . . . . . . . . . . 44
SECTION 10.09 Right of Trustee to Hold Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
ARTICLE 11 MISCELLANEOUS
SECTION 11.01 Trust Indenture Act Controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 11.02 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 11.03 Communication by Holders with Other
Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 11.04 Certificate and Opinion as to Conditions Precedent . . . . . . . . . . . . . . . . . . . . . 47
SECTION 11.05 Statements Required in Certificate or Opinion . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 11.06 Severability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 11.07 Rules by Trustee, Paying Agent and
Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 11.08 Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 11.09 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 11.10 No Recourse Against Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 11.11 Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 11.12 Multiple Original Copies of this
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 11.13 No Adverse Interpretation of Other Agreements . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 11.14 Table of Contents; Headings, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 11.15 Benefits of the Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
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CROSS-REFERENCE TABLE
of Provisions of the Indenture
Required by the Trust Indenture Act of 1939
TRUST INDENTURE PROVISION OF
ACT SECTION INDENTURE
-------------- ------------
Section 310 (a)(1) 7.10
(a)(2) 7.10
(a)(3) Not Applicable
(a)(4) Not Applicable
(a)(5) Not Applicable
(b) 7.08; 7.10; 11.01
(c) Not Applicable
Section 311 (a) 7.11
(b) 7.11
(c) Not Applicable
Section 312 (a) 2.07
(b) 11.03
(c) 11.03
Section 313 (a) 7.06
(b)(1) Not Applicable
(b)(2) 7.06
(c) 7.06; 11.02
(d) 7.06
Section 314 (a) 4.03; 11.02
(b) Not Applicable
(c)(1) 2.02; 11.04
(c)(2) 2.02; 11.04
(c)(3) Not Applicable
(d) Not Applicable
(e) 11.05
(f) Not Applicable
Section 315 (a) 7.01(2)
(b) 7.05; 11.02
(c) 7.01(1)
(d) 7.01(3)
(e) 6.11
Section 316 (a)(1)(A) 6.05
(a)(1)(B) 6.04
(a)(2) Not Applicable
(a)(last sentence) 2.10
(b) 6.07
Section 317 (a)(1) 6.08
(a)(2) 6.09
(b) 2.06
Section 318 (a) 11.01
-------------------
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of the Indenture.
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INDENTURE, dated as of July 1, 1994, by and between PECO
Energy Company, a Pennsylvania corporation (the "Company"), and Meridian Trust
Company, a Pennsylvania trust company, as trustee (the "Trustee).
WHEREAS, the Company has formed a wholly owned subsidiary,
PECO Energy Capital Corp., which is the general partner of PECO Energy Capital,
L.P., a Delaware limited partnership, which intends to issue in series from
time to time its limited partner interests and to loan the proceeds thereof,
together with the investment by PECO Energy Capital Corp. in PECO Energy
Capital, L.P., to the Company.
WHEREAS, in order to evidence its intention to make such loans
and to accept the Debentures as evidence of such loans, and its approval of the
terms of the Series A Debentures (as hereinafter defined), PECO Energy Capital,
L.P. has joined in this Indenture.
WHEREAS, the Company has authorized the issuance of the Series
A Debentures to evidence its obligations with respect to a loan from PECO
Energy Capital, L.P. of the proceeds of a series of its preferred limited
partner interests designated 9% Cumulative Monthly Income Preferred Securities,
Series A and the related investment by PECO Energy Capital Corp. in PECO Energy
Capital, L.P., and to provide therefor, the Company has duly authorized the
execution and delivery of this Indenture.
WHEREAS, all things necessary to make the Series A Debentures
when duly issued and executed by the Company and authenticated and delivered
hereunder, the valid obligations of the Company, and to make this Indenture a
valid and binding agreement of the Company, in accordance with its terms, have
been done.
NOW THEREFORE:
Each of the Company and the Trustee, intending to be legally
bound hereby, agrees as follows for the benefit of the other party and for the
equal and ratable benefit of the Holders of the securities issued hereunder,
including the Company's 9% Deferrable Interest Subordinated Debentures, Series
A (the "Series A Debentures"):
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ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 DEFINITIONS.
"Additional Interest", with respect to the Series A
Debentures, means an amount equal to and payable at the same time as, any
Additional Amounts payable on the Series A Preferred Securities as defined in
the action pursuant to the Limited Partnership Agreement creating the Series A
Preferred Securities plus amounts, if any, which PECO Energy Capital would be
required to pay as taxes, duties, assessments or governmental charges of
whatever nature (other than withholding taxes) imposed by the United States, or
any other taxing authority, with respect to the Series A Debentures. With
respect to any other series of Debentures, "Additional Amounts" shall have the
meaning set forth in the supplemental indenture creating such series.
"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. When used with respect to
any Person, "control" 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.
"Board of Directors" means the Board of Directors of the
Company or any committee thereof duly authorized to act on behalf of such
Board.
"Business Day" means any day that is not a Saturday, a Sunday
or a day on which banking institutions in The City of New York or Delaware are
authorized or required to close.
"Capital Lease Obligations" of a Person means any obligation
which is required to be classified and accounted for as a capital lease on the
face of a balance sheet of such Person prepared in accordance with GAAP.
"Capital Stock" means any and all shares, interests, rights to
purchase, warrants, options, participations or other equivalents of or
interests in (however designated) corporate stock, including any Preferred
Stock.
"Debentureholder" or "Holder" means a Person in whose name a
Debenture is registered on the Registrar's books.
"Debentures" shall mean any of the securities of any series
issued, authenticated and delivered under this Indenture.
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"Default" means any event which is, or after notice or passage
of time, or both, would be, an Event of Default pursuant to Section 6.01
hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Extension Period" means a period, up to 60 consecutive
months, in which the Company elects to extend the interest payment period on
the Debentures pursuant to Section 4.01(b) hereof; provided that no Extension
Period shall extend beyond the Stated Maturity date or Redemption Date of any
series of Subordinated Debentures.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board.
"General Partner" means PECO Energy Capital Corp., a Delaware
corporation and a wholly owned subsidiary of PECO Energy Company, as the
general partner of PECO Energy Capital, L.P., a Delaware limited partnership,
or any successor thereto that becomes a general partner of PECO Energy Capital
pursuant to the Limited Partnership Agreement.
"Guarantee Agreement" means that certain payment and guarantee
agreement issued by PECO Energy Company with respect to a series of Securities,
to irrevocably and nonconditionally agree to pay such Guarantee Payments (as
defined in the Guarantee Agreement) to the holders of the series of Preferred
Securities issued concurrently therewith.
"Holder" or "Debentureholder" means any Person in whose name a
Debenture is registered on the Registrar's books.
"Indebtedness" means without duplication, (i) the principal of
and premium (if any) in respect of (A) indebtedness of the Company for money
borrowed and (B) indebtedness evidenced by securities, debentures, bonds 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 the Company under any title
retention agreement (but excluding trade accounts payable arising in the
ordinary course of business); (iv) all obligations of the Company for the
reimbursement of any obligor on any letter of credit, banker's acceptance,
security purchase facility or similar credit transaction (other than
obligations
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with respect to letters of credit securing obligations (other than obligations
described in (i) through (iii) above) entered into in the ordinary course of
business of the Company to the extent such letters of credit are not drawn upon
or, if and to the extent drawn upon, such drawing is reimbursed no later than
the third Business Day following receipt by the Company of a demand for
reimbursement following payment on the letter of credit); (v) all obligations
of the type referred to in clauses (i) through (iv) of other Persons and all
dividends of other Persons (other than the Preferred Securities) for the
payment of which, in either case, 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
the Company), the amount of such obligation being deemed to be the lesser of
the value of such property or assets or the amount of the obligation so
secured; provided, however, that Indebtedness will not include endorsements of
negotiable instruments for collection in the ordinary course of business.
"Indenture" means this indenture, as amended or supplemented
from time to time in accordance with the terms hereof, including the provisions
of the TIA that are deemed to be a part hereof.
"Issue Date", with respect to a series of Debentures, means
the date on which the Debentures of such series are originally issued.
"Limited Partnership Agreement" means the Amended and Restated
Limited Partnership Agreement of PECO Energy Capital, L.P. dated July 25,
1994, as it may be amended from time to time.
"Officer" means, with respect to any corporation, the Chairman
of the Board, the Chief Executive Officer, the President, any Vice President,
the Treasurer, Assistant Treasurer or the Secretary of such corporation.
"Officer's Certificate" means a written certificate containing
the applicable information specified in Sections 11.04 and 11.05 hereof, signed
in the name of the Company by any one of its Officers, and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion containing the
applicable information specified in Sections 11.04 and 11.05 hereof, by legal
counsel who is reasonably acceptable to the Trustee.
"PECO Energy Capital" means PECO Energy Capital, L.P., a
Delaware limited partnership.
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"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
"Preferred Securities" means the limited partner interests
issued from time to time in series by PECO Energy Capital.
"Record date", with respect to any series of the Debentures,
means the date set to determine the holders of such series entitled to payment
of interest or principal or to vote, consent, make a request or exercise any
other right associated with such series.
"Redemption Date" or "redemption date", with respect to any
Debenture to be redeemed, means the date specified for the redemption of such
Debenture in accordance with the terms thereof and Article 3 of this Indenture.
"Redemption Price" or "redemption price", with respect to any
Debenture to be redeemed, means the price at which it is to be redeemed
pursuant to this Indenture and such Debenture.
"Regular record date", with respect to an interest payment on
the Debentures of a series, means the date set forth in paragraph 2 of the
Debentures of such series for the determination of Holders entitled to receive
payment of interest on the next succeeding interest payment date.
"SEC" or "Commission" means the Securities and Exchange
Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Indebtedness" means all Indebtedness, except for
Indebtedness that is by its terms subordinated to or pari passu with the
Debentures. Notwithstanding anything to the contrary in the foregoing, Senior
Indebtedness shall not include any Indebtedness between or among the Company
and any Affiliates.
"Series A Debentures" means any of the Company's 9% Deferrable
Interest Subordinated Debentures, Series A issued under this Indenture.
"Special Representative" means a special representative
appointed by the holders of the Preferred Securities pursuant to Section
13.02(d) of the Limited Partnership Agreement.
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"Stated Maturity", with respect to any Debenture, means, the
date specified for the Debentures as the fixed date on which the principal of
the Debentures is due and payable.
"Subsidiary" means any corporation, association, partnership
or other business entity of which more than 50% of the total voting power of
shares of Capital Stock or other interests (including partnership interests)
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by (i) the Company, (ii) the Company and
one or more Subsidiaries, or (iii) one or more Subsidiaries.
"TIA" means the Trust Indenture Act of 1939, as amended and as
in effect on the date of this Indenture; provided, however, that if the TIA is
amended after such date, TIA means, to the extent required by any such
amendment, the TIA as so amended.
"Trust Officer", when used with respect to the Trustee, means
the chairman or vice-chairman of the Board of Directors, the chairman or
vice-chairman of the executive committee of the Board of Directors, the
President, any vice president, any assistant vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any account officer or assistant account officer, the
controller and any assistant controller or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Trustee" means the party named as the "Trustee" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture and, thereafter, shall mean such
successor.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable at the issuer's option.
"Voting Stock" means, with respect to a corporation, all
classes of Capital Stock then outstanding of such corporation normally entitled
to vote in elections of directors.
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"Wholly Owned Subsidiary" means a Subsidiary all the Capital
Stock of which (other than directors' qualifying shares) is owned by the
Company or another Wholly Owned Subsidiary.
SECTION 1.02 OTHER DEFINITIONS.
TERM DEFINED IN SECTION
---- ------------------
"Act" . . . . . . . . . . . . . . . . . . 1.05
"Bankruptcy Law" . . . . . . . . . . . . 6.01
"Custodian" . . . . . . . . . . . . . . . 6.01
"Event of Default". . . . . . . . . . . . 6.01
"Legal Holiday" . . . . . . . . . . . . . 11.08
"Notice of Default" . . . . . . . . . . . 6.01
"Paying Agent" . . . . . . . . . . . . . 2.05
"Register" . . . . . . . . . . . . . . . 2.05
"Registrar" . . . . . . . . . . . . . . . 2.05
"Successor" . . . . . . . . . . . . . . . 5.01
SECTION 1.03 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Debentures.
"indenture security holder" means a Debentureholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company and
any other obligor on the Debentures.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule
have the meanings assigned to them by such definitions.
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SECTION 1.04 RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) A term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including, without limitation;
(5) words in the singular include the plural, and words
in the plural include the singular; and
(6) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
SECTION 1.05. ACTS OF HOLDERS.
(1) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
or taken by Holders, may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by an agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of Holders 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 Indenture and conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section.
(2) The fact and date of the execution by any Person of
any such instrument or writing may be proved in any manner which the Trustee
deems sufficient.
(3) The ownership of Debentures shall be proved by the
Register.
(4) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any Debenture shall bind
every future Holder of the same Debenture
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and the holder of every Debenture issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such Debenture.
(5) If the Company solicits from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to a resolution of its Board of
Directors, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do
so. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or after
such record date, but only Holders of record at the close of business on such
record date shall be deemed to be Holders for the purposes of determining
whether Holders of the requisite proportion of outstanding Debentures have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that purpose the
outstanding Debentures shall be computed as of such record date.
ARTICLE 2
THE DEBENTURES; THE SERIES A DEBENTURES
SECTION 2.01 ISSUE OF DEBENTURES GENERALLY.
The aggregate principal amount of the Debentures which may be
authenticated and delivered under this Indenture is limited to the sum of the
aggregate liquidation preference of the Preferred Securities and the aggregate
capital contribution of the General Partner to PECO Energy Capital.
The Debentures may be issued in one or more series as from
time to time shall be authorized by the Board of Directors.
The Debentures of each series and the Trustee's Certificate of
Authentication shall be substantially in the forms to be attached as exhibits
to the Indenture or supplemental indenture providing for their issuance, but in
the case of Debentures other than Series A Debentures, with such inclusions,
omissions and variations as are 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
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or with any rule or regulation of any securities exchange on which the
Debentures may be listed, or to conform to usage. Each Debenture shall be
dated the date of its authentication.
The several series of Debentures may differ from the Series A
Debentures, and as and between series, in respect of any or all of the
following matters:
(a) designation;
(b) date or dates of maturity, which may be serial;
(c) interest rate or method of determination of the
interest rate and whether Additional Interest will
be payable;
(d) interest payment dates and the regular record dates
therefor;
(e) Issue Date;
(f) authorized denominations;
(g) the place or places for the payment of principal (and
premium, if any) and for the payment of interest;
(h) limitation upon the aggregate principal amount of
Debentures of the series which may be issued;
(i) the optional and mandatory redemption provisions, if
any;
(j) provisions, if any, for any sinking or analogous fund
with respect to the Debentures of such series; and
(k) any other provisions expressing or referring to the
terms and conditions upon which the Debentures of
such series are to be issued under this Indenture
which are not in conflict with the provisions of this
Indenture;
in each case as determined and specified by the Board of Directors. The
Trustee shall not authenticate and deliver Debentures of any series (other than
the Series A Debentures) upon initial issue unless the terms and conditions of
such series shall have been set forth in a supplemental indenture entered into
between the Company and the Trustee as provided in Section 9.01.
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SECTION 2.02 FORM OF THE SERIES A DEBENTURES; DENOMINATIONS.
The Series A Debentures and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A attached hereto.
The terms and provisions contained in the Series A Debentures, a form of which
is annexed hereto as Exhibit A, shall constitute, and are hereby expressly
made, a part of this Indenture. The Company and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.
The Trustee shall authenticate and make available for delivery
Series A Debentures for original issue in the aggregate principal amount of
$206,185,567 (plus up to an additional $30,927,835 if the Underwriters for the
offering of the Series A Preferred Securities exercise their over-allotment
option to purchase additional Series A Preferred Securities) to evidence the
Company's obligation with respect to the loan from PECO Energy Capital, upon a
Board of Directors resolution and a written order of the Company signed by two
Officers of the Company, but without any further action by the Company. Such
order shall specify the amount of the Series A Debentures to be authenticated
and the date on which the original issue of Debentures is to be authenticated
and delivered. The aggregate principal amount of Series A Debentures
outstanding at any time may not exceed $237,113,402 except as provided in
Section 2.09 hereof.
The Series A Debentures shall be issuable only in registered
form without coupons and only in denominations of $25.00 and any integral
multiple thereof.
SECTION 2.03 PAYMENT OF PRINCIPAL AND INTEREST.
The principal of and interest on the Debentures of any series,
as well as any premium thereon in the case of redemption thereof prior to
maturity, shall be payable in the coin or currency of the United States of
America which at the time is legal tender for public and private debts at the
office of the Paying Agent. Each Debenture shall be dated its Issue Date.
Interest on the Debentures shall be computed on the basis of a 360-day year
composed of twelve 30-day months, and for any period shorter than a full
monthly distribution period, distributions will be computed on the basis of the
actual number of days elapsed in such period.
The interest on any Debenture which is payable and is
punctually paid or duly provided for, on any interest payment date for
Debentures of that series shall be paid to the person in whose name the
Debenture is registered at the close of business
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on the regular record date therefor. In the event that any Debenture of a
particular series or portion thereof is called for redemption, and the
redemption date is subsequent to the regular record date with respect to any
interest payment date and prior to such interest payment date, interest on such
Debenture will be paid upon presentation and surrender of such Debenture to the
Paying Agent.
SECTION 2.04 EXECUTION AND AUTHENTICATION.
The Debentures shall be executed on behalf of the Company by
its Chief Executive Officer, its President or one of its Vice Presidents, under
its corporate seal imprinted or reproduced thereon attested by its Secretary or
one of its Assistant Secretaries. The signature of any such Officer on the
Debentures may be manual or facsimile.
Debentures bearing the manual or facsimile signatures of
individuals who were at any time the proper Officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such
Debentures or did not hold such offices at the date of such Debentures.
No Debenture shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Debenture a certificate of authentication duly executed by the Trustee by
manual signature of an authorized officer, and such certificate upon any
Debenture shall be conclusive evidence, and the only evidence, that such
Debenture has been duly authenticated and made available for delivery
hereunder.
The Trustee shall act as the initial authenticating agent.
Thereafter, the Trustee may appoint an authenticating agent. An authenticating
agent may authenticate Debentures whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as a
Paying Agent to deal with the Company or an Affiliate of the Company.
SECTION 2.05 REGISTRAR AND PAYING AGENT.
The Company shall maintain or cause to be maintained, within
or outside the Commonwealth of Pennsylvania, an office or agency where the
Debentures may be presented for registration of transfer or for exchange
("Registrar"), an office or agency where Debentures may be presented or
surrendered for purchase or payment ("Paying Agent"), and an office or agency
where notices
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and demands to or upon the Company in respect of the Debentures and this
Indenture may be served. The Registrar shall keep a register (the "Register")
of the Debentures and of their transfer and exchange. The Company may have one
or more co-Registrars and one or more additional Paying Agents. The term
Paying Agent includes any additional paying agent. The corporate trust office
of the Trustee at Reading, Pennsylvania, Attention: Corporate Trust Department,
shall initially be the Registrar and agent for service of notice or demands on
the Company, and Delaware Trust Company, Wilmington, Delaware, shall initially
be the Paying Agent.
The Company shall enter into an appropriate agency agreement
with any Registrar, Paying Agent or co-Registrar (if not the Company or the
Trustee or an affiliate of the Trustee). The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall give
prompt written notice to the Trustee of any change of location of such office
or agency. If at any time the Company shall fail to maintain or cause to be
maintained any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the address of the Trustee set forth in
Section 11.02 hereof. The Company shall notify the Trustee of the name and
address of any such agent. If the Company fails to maintain a Registrar, Paying
Agent or agent for service of notices or demands, the Trustee shall act as such
and shall be entitled to appropriate compensation therefor pursuant to Section
7.07 hereof. The Company or any Affiliate of the Company may act as Paying
Agent, Registrar or co-Registrar or agent for service of notices and demands.
The Company may also from time to time designate one or more
other offices or agencies where the Debentures may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in location of any such other
office or agency.
SECTION 2.06 PAYING AGENT TO HOLD MONEY IN TRUST.
Except as otherwise provided herein, prior to each due date of
the principal and interest on any Debenture, the Company shall deposit with the
Paying Agent a sum of money sufficient to pay such principal, premium (if any)
and interest so becoming due. The Company shall require each Paying Agent
(other than the Trustee or the Company) to agree in writing that such Paying
Agent shall hold in trust for the benefit of Holders or the Trustee all money
held by the Paying Agent for the payment of principal and interest on the
Debentures and shall notify the
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Trustee of any default by the Company in making any such payment. At any time
during the continuance of any such default, the Paying Agent shall, upon the
request of the Trustee, forthwith pay to the Trustee all money so held in trust
and account for any money disbursed by it. The Company at any time may require
a Paying Agent to pay all money held by it to the Trustee and to account for
any money disbursed by it. Upon doing so, the Paying Agent shall have no
further liability for the money so paid over to the Trustee. If the Company, a
Subsidiary or an Affiliate of either of them acts as Paying Agent, it shall
segregate the money held by it as Paying Agent and hold it as a separate trust
fund.
SECTION 2.07 DEBENTUREHOLDER LISTS.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Debentureholders. If the Trustee is not the Registrar, the Company
shall cause to be furnished to the Trustee on or before the record date for
each interest payment date and at such other times as the Trustee may request
in writing, within five Business Days of such request, a list, in such form as
the Trustee may reasonably require of the names and addresses of
Debentureholders, provided that during any deferral period, such information
will be provided every six months or upon request of the Trustee.
SECTION 2.08 TRANSFER AND EXCHANGE.
When Debentures are presented to the Registrar or a
co-Registrar with a request to register the transfer or to exchange them for an
equal principal amount of Debentures of the same series of other authorized
denominations, the Registrar shall register the transfer or make the exchange
as requested if its requirements for such transactions are met. To permit
registrations of transfer and exchanges, the Company shall execute and the
Trustee shall authenticate Debentures, all at the Registrar's request.
Every Debenture presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee)
be duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Registrar duly executed by the Holder or
his attorney duly authorized in writing.
The Company shall not charge a service charge for any
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to pay all taxes, assessments or other governmental charges that
may be imposed in connection with
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the transfer or exchange of the Debentures from the Debentureholder requesting
such transfer or exchange (other than any exchange of a temporary Debenture for
a definitive Debenture not involving any change in ownership).
The Company shall not be required to make, and the Registrar
need not register, transfers or exchanges of (a) any Debenture for a period
beginning at the opening of business 15 days before the mailing of a notice of
redemption of Debentures and ending at the close of business on the day of such
mailing or (b) any Debenture selected, called or being called for redemption,
except, in the case of any Debenture to be redeemed in part, the portion
thereof not to be redeemed.
SECTION 2.09 REPLACEMENT DEBENTURES.
If (a) any mutilated Debenture is surrendered to the Company
or the Trustee, or (b) the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Debenture, and there is
delivered to the Company and the Trustee such Debenture or indemnity as may be
required by them to save each of them harmless, then, in the absence of notice
to the Company or the Trustee that such Debenture has been acquired by a bona
fide purchaser, the Company shall execute in exchange for any such mutilated
Debenture or in lieu of any such destroyed, lost or stolen Debenture, a new
Debenture of like tenor and principal amount, bearing a number not
contemporaneously outstanding, and the Trustee shall authenticate and make such
new Debenture available for delivery.
In case any such mutilated, destroyed, lost or stolen
Debenture has become or is about to become due and payable, or is about to be
redeemed by the Company pursuant to Article 3 hereof, the Company in its
discretion may, instead of issuing a new Debenture, pay or purchase such
Debenture, as the case may be.
Upon the issuance of any new Debentures under this Section
2.09, 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) in connection
therewith.
Every new Debenture issued pursuant to this Section 2.09 in
lieu of any mutilated, destroyed, lost or stolen Debenture shall constitute an
original additional contractual obligation of the Company whether or not the
mutilated, destroyed, lost or stolen Debenture shall be at any time enforceable
by anyone, and shall be entitled to all benefits of this Indenture equally and
ratably with any and all other Debentures duly issued hereunder.
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The provisions of this Section 2.09 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Debentures.
SECTION 2.10 OUTSTANDING DEBENTURES; DETERMINATIONS OF HOLDERS' ACTION.
Debentures outstanding at any time are all the Debentures
authenticated by the Trustee except for those canceled by it, those delivered
to it for cancellation, those mutilated, destroyed, lost or stolen Debentures
referred to in Section 2.09 hereof, those redeemed by the Company pursuant to
Article 3 hereof, and those described in this Section 2.10 as not outstanding.
A Debenture does not cease to be outstanding because the Company or a
Subsidiary or Affiliate thereof holds the Debenture; provided, however, that in
determining whether the Holders of the requisite principal amount of Debentures
have given or concurred in any request, demand, authorization, direction,
notice, consent or waiver hereunder, Debentures owned by the Company shall be
disregarded and deemed not to be outstanding.
Subject to the foregoing, only Debentures outstanding at the
time of such determination shall be considered in any such determination
(including determinations pursuant to Articles 3, 6 and 9).
If a Debenture is replaced pursuant to Section 2.09, it ceases
to be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Debenture is held by a bona fide purchaser.
If the Paying Agent (other than the Company) holds, in
accordance with this Indenture, at maturity or on a Redemption Date, money
sufficient to pay the Debentures payable on that date, then immediately on the
date of maturity or such Redemption Date, as the case may be, such Debentures
shall cease to be outstanding, and interest, if any, on such Debentures shall
cease to accrue.
SECTION 2.11 TEMPORARY DEBENTURES.
So long as PECO Energy Capital shall hold all of the
Debentures, the Company may execute temporary Debentures, and upon the
Company's written request, signed by two Officers of the Company, the Trustee
shall authenticate and make such temporary Debentures available for delivery.
Temporary Debentures shall be printed, lithographed, typewritten, mimeographed
or otherwise
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produced, in any authorized denomination, substantially of the tenor of the
definitive Debentures in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
Officers of the Company executing such Debentures may determine, as
conclusively evidenced by their execution of such Debentures.
After the preparation of definitive Debentures, the temporary
Debentures shall be exchangeable for definitive Debentures of the same series
upon surrender of the temporary Debentures at the office or agency of the
Company designated for such purpose pursuant to Section 2.05 hereof, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Debentures, the Company shall execute a like principal amount of
definitive Debentures of authorized denominations, and the Trustee, upon
written request of the Company signed by two Officers of the Company, shall
authenticate and make such Debentures available for delivery in exchange
therefor. Until so exchanged, the temporary Debentures shall in all respects be
entitled to the same benefits under this Indenture as definitive Debentures.
SECTION 2.12 CANCELLATION.
All Debentures surrendered for payment, redemption by the
Company pursuant to Article 3 hereof or registration of transfer or exchange
shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee and shall be promptly canceled by the Trustee. The Company may at any
time deliver to the Trustee for cancellation any Debentures previously
authenticated and made available for delivery hereunder which the Company may
have acquired in any manner whatsoever, and all Debentures so delivered shall
be promptly canceled by the Trustee. The Company may not reissue, or issue new
Debentures to replace Debentures it has paid or delivered to the Trustee for
cancellation. No Debentures shall be authenticated in lieu of or in exchange
for any Debentures canceled as provided in this Section 2.12, except as
expressly permitted by this Indenture. All canceled Debentures held by the
Trustee shall be destroyed by the Trustee, and the Trustee shall deliver a
certificate of destruction to the Company.
SECTION 2.13 DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the
Debentures, it shall pay the defaulted interest, plus (to the extent lawful)
any interest payable on the defaulted interest, to the Persons who are Holders
on a subsequent special record date, and such special record date, as used in
this Section 2.13 with
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respect to the payment of any defaulted interest, shall mean the 15th day next
preceding the date fixed by the Company for the payment of defaulted interest,
whether or not such day is a Business Day. At least 10 days before the
subsequent special record date, the Company shall mail to each Holder and to
the Trustee a notice that states the subsequent special record date, the
payment date and the amount of defaulted interest to be paid. The Company may
also pay defaulted interest in any other lawful manner.
ARTICLE 3
REDEMPTION
SECTION 3.01 REDEMPTION; NOTICE TO TRUSTEE.
(a) The Series A Debentures are subject to redemption
prior to maturity as provided in the form thereof.
(b) The redemption terms for any additional series of
Debentures shall be as specified in the supplemental indenture creating such
series of Debentures; provided that each series of Debentures shall be subject
to mandatory redemption upon the dissolution of PECO Energy Capital.
(c) If any or all of the Debentures are to be redeemed
pursuant to paragraphs (a) or (b) above, the Company shall give notice by first
class mail, postage prepaid, to the Trustee within 45 days prior to the date of
such redemption. Any such notice of redemption shall state the date and price
of redemption.
SECTION 3.02 SELECTION OF DEBENTURES TO BE REDEEMED.
If less than all the outstanding Debentures are to be redeemed
at any time, the Trustee shall select the Debentures to be redeemed on a pro
rata basis, by lot or any other method the Trustee considers fair and
appropriate. The Trustee shall make the selection at least 30 but not more than
60 days before the Redemption Date from outstanding Debentures not previously
called for redemption. Provisions of this Indenture that apply to Debentures
called for redemption also apply to portions of Debentures called for
redemption. The Trustee shall notify the Company promptly of the Debentures or
portions of Debentures to be redeemed.
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SECTION 3.03 NOTICE OF REDEMPTION.
So long as PECO Energy Capital remains the sole Holder of the
Debentures, no notice of any redemption of Debentures will be required. In the
event and at such time that PECO Energy Capital ceases to be the sole Holder of
the Debentures, at least 30 days but not more than 60 days before a Redemption
Date, the Trustee shall mail or cause to be mailed a notice of redemption by
first-class mail, postage prepaid, to each Holder of Debentures to be redeemed
at the Holder's last address, as it appears on the Register. At the Company's
written request, the Trustee shall give the notice of redemption in the
Company's name and at its expense.
The notice shall identify the Debentures to be redeemed, the
provision of the Debentures or this Indenture pursuant to which the Debentures
called for redemption are being redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the name and address of the Paying Agent;
(4) that Debentures called for redemption must be
surrendered to the Paying Agent to collect the Redemption Price;
(5) if fewer than all the outstanding Debentures are to
be redeemed, the identification and principal amounts of the particular
Debentures to be redeemed and that, on and after the Redemption Date, upon
surrender of such Debentures, a new Debenture or Debentures in principal amount
equal to the unredeemed portion thereof will be issued; and
(6) that, unless the Company defaults in making such
redemption payment, interest will cease to accrue on Debentures called for
redemption on and after the Redemption Date.
SECTION 3.04 EFFECT OF NOTICE OF REDEMPTION.
If notice of redemption is required as set forth in Section
3.03, and after notice of redemption is given, Debentures called for redemption
become due and payable on the Redemption Date and at the Redemption Price. Upon
the later of the Redemption Date and the date such Debentures are surrendered
to the Paying Agent, such Debentures shall be paid at the Redemption Price,
plus accrued interest to the Redemption Date.
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SECTION 3.05 DEPOSIT OF REDEMPTION PRICE.
On or prior to a Redemption Date, the Company shall deposit
with the Paying Agent (or if the Company or an Affiliate is the Paying Agent,
shall segregate and hold in trust or cause such Affiliate to segregate and hold
in trust) money sufficient to pay the Redemption Price of, and accrued interest
on, all Debentures to be redeemed on that date. The Paying Agent shall return
to the Company any money not required for the purpose stated herein.
SECTION 3.06 DEBENTURES REDEEMED IN PART.
Upon surrender of a Debenture that is redeemed in part, the
Trustee shall authenticate for the Holder a new Debenture equal in principal
amount to the unredeemed portion of such Debenture.
ARTICLE 4
COVENANTS
SECTION 4.01 PAYMENT OF DEBENTURES.
(a) The Company shall pay the principal of and interest
(including interest accruing on or after the filing of a petition in bankruptcy
or reorganization relating to the Company, whether or not a claim for
post-filing interest is allowed in such proceeding) on the Debentures on (or
prior to) the dates and in the manner provided in the Debentures or pursuant to
this Indenture. An installment of principal or interest shall be considered
paid on the applicable date due if on such date the Trustee or the Paying Agent
holds, in accordance with this Indenture, money sufficient to pay all of such
installment then due. The Company shall pay interest on overdue principal and
interest on overdue installments of interest (including interest accruing
during an Extension Period and/or on or after the filing of a petition in
bankruptcy or reorganization relating to the Company, whether or not a claim
for post-filing interest is allowed in such proceeding), to the extent lawful,
at the rate per annum borne by the Debentures, which interest on overdue
interest shall accrue from the date such amounts became overdue.
(b) Notwithstanding paragraph (a) of this Section 4.01 or
any other provision herein to the contrary, the Company shall have the right in
its sole and absolute discretion at any time and from time to time while the
Debentures are outstanding, so long as an Event of Default has not occurred and
is continuing, to extend the interest payment period for up to 60 consecutive
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months, provided that such extended interest period shall not extend beyond the
stated maturity date or redemption date of the Series A Subordinated
Debentures, and provided further that at the end of each Extension Period the
Company shall pay all interest then accrued and unpaid (together with interest
thereon compounded daily to the extent permitted by applicable law at the rate
per annum borne by the Debentures). Prior to the termination of an Extension
Period, the Company may shorten or may further extend the interest payment
period, provided that such Extension Period together with all such further
extensions may not exceed 60 months. The Company shall give the Trustee notice
of its selection of such extended or shortened interest payment period at least
one Business Day prior to the earlier of (i) the date selected by the Company
to make the interest payment or (ii) the date PECO Energy Capital is required
to give notice of the record or payment date of such related distribution to
any national securities exchange on which the Preferred Securities are then
listed or other applicable self-regulatory organization, but in any event not
less than two Business Days prior to such record date fixed by the Company for
the payment of such interest. The Company shall give or cause the Trustee to
give such notice of the Company's selection of such extended interest payment
period to the Holders.
SECTION 4.02 PROHIBITION AGAINST DIVIDENDS, ETC. DURING AN EVENT OF DEFAULT
OR AN EXTENSION PERIOD.
Neither the Company nor any Subsidiary shall declare or pay
any dividend on, or redeem, purchase, acquire or make a liquidation payment
with respect to, any of its Capital Stock (other than dividends by a Wholly
Owned Subsidiary) during an Extension Period or if at such time there shall
have occurred any Default or Event of Default or if the Company shall be in
default with respect to its payment obligations under the Guarantee Agreement.
SECTION 4.03 SEC REPORTS.
The Company shall file with the Trustee, within 15 days after
it files them with the SEC, copies of its annual report and of the information,
documents and other reports (or copies of such portions of any of the foregoing
as the SEC may by rules and regulations prescribe) which the Company is
required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange
Act. If the Company is not subject to the reporting requirements of Section 13
or 15(d) of the Exchange Act, the Company shall file with the Trustee such
information, documents and other reports (or copies of such portions of any of
the foregoing as the SEC may by rules and regulations prescribe) which are
specified in
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Sections 13 or 15(d) of the Exchange Act. The Company shall also comply with
the provisions of Section 314(a) of the TIA.
SECTION 4.04 COMPLIANCE CERTIFICATES.
(a) The Company shall deliver to the Trustee within 90 days
after the end of each of the Company's fiscal years an Officer's Certificate,
stating whether or not the signer knows of any Default or Event of Default.
Such certificate shall contain a certification from the principal executive
officer, principal financial officer or principal accounting officer of the
Company as to his or her knowledge of the Company's compliance with all
conditions and covenants under this Indenture. For purposes of this Section
4.04(a), such compliance shall be determined without regard to any period of
grace or requirement of notice provided under this Indenture. If such Officer
does know of such a Default or Event of Default, the certificate shall describe
any such Default or Event of Default, and its status. Such Officer's
Certificate need not comply with Sections 11.04 and 11.05 hereof.
(b) The Company shall deliver to the Trustee any information
reasonably requested by the Trustee in connection with the compliance by the
Trustee or the Company with the TIA.
SECTION 4.05 RELATIONSHIP WITH PECO ENERGY CAPITAL.
The Company agrees (i) to maintain direct or indirect through
a wholly owned subsidiary 100% ownership of the General Partner and will cause
the General Partner to maintain 100% ownership of the general partnership
interests in PECO Energy Capital; (ii) to cause the General Partner to maintain
a fair market value net worth of at least 10% of the total contributions less
redemptions to PECO Energy Capital and to maintain general partner interests
representing 3% of all interests in the capital, income, gain, loss, deduction
and credit of PECO Energy Capital; (iii) to cause the General Partner to timely
perform all of its duties as General Partner of PECO Energy Capital (including
the duty to pay distributions on the Preferred Securities); and (iv) to use its
reasonable efforts to cause PECO Energy Capital to remain a limited partnership
and otherwise continue to be treated as a partnership for United States federal
income tax purposes.
SECTION 4.06 FURTHER INSTRUMENTS AND ACTS.
Upon request of the Trustee, the Company shall execute and
deliver such further instruments and do such further acts as
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may be reasonably necessary or proper to carry out more effectively the
purposes of this Indenture.
SECTION 4.07 PAYMENTS FOR CONSENTS.
Neither the Company nor any Subsidiary shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder of any Debentures for or as an
inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture or the Debentures unless such consideration is
offered to be paid or agreed to be paid to all Holders of the Debentures who so
consent, waive or agree to amend in the time frame set forth in the documents
soliciting such consent, waiver or agreement.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01 WHEN THE COMPANY MAY MERGE, ETC.
The Company 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:
(1) 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 Company, (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 Company under the Debentures and the
Indenture;
(2) immediately prior to and after giving effect to such
transaction (and treating any Indebtedness which becomes an obligation of the
Successor Person or any Subsidiary as a result of such transaction as having
been incurred by such Person or such Subsidiary at the time of such
transaction), no Default or Event of Default shall have occurred and be
continuing; and
(3) the Company, 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.
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The Successor will be the successor to the Company, and will
be substituted for, and may exercise every right and power and become the
obligor on the Debentures with the same effect as if the Successor had been
named as, the Company herein but, in the case of a sale, conveyance, transfer
or lease of all or substantially all of the assets of the Company, the
predecessor Company will not be released from its obligation to pay the
principal of, premium, if any, and interest on the Debentures.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 EVENTS OF DEFAULT.
An "Event of Default" occurs if one of the following shall
have occurred and be continuing:
(1) The Company defaults in the payment, when due and
payable, of (a) interest, including Additional Interest, on any Debenture and
the default continues for a period of 10 days; provided, that during an
Extension Period, failure to pay interest on the Debentures shall not
constitute a Default or Event of Default hereunder, or (b) the principal of, or
premium, if any, on any Debentures when the same becomes due and payable at
maturity, acceleration, on any Redemption Date, or otherwise;
(2) The Company defaults in the performance of, fails to
comply with any of its other covenants or agreements in the Debentures or this
Indenture and such failure continues for 60 days after receipt by the Company
of a "Notice of Default";
(3) The Company, pursuant to or within the meaning of any
Bankruptcy Law:
(a) commences a voluntary case or proceeding;
(b) consents to the entry of an order for relief
against it in an involuntary case or
proceeding;
(c) consents to the appointment of a Custodian of
it or for all or substantially all of its
property, and such Custodian is not
discharged within 60 days;
(d) makes a general assignment for the benefit of
its creditors; or
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(e) admits in writing its inability to pay its
debts generally as they become due; or
(4) A court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(a) is for relief against the Company in an
involuntary case or proceeding;
(b) appoints a Custodian of the Company for all
or substantially all of its properties;
(c) orders the liquidation of the Company;
(d) and in each case the order or decree remains
unstayed and in effect for 60 days.
The foregoing will constitute Events of Default whatever the
reason for any such Event of Default and whether it is voluntary or involuntary
or is 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.
The term "Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code,
or any similar Federal or state law for the relief of debtors. "Custodian"
means any receiver, trustee, assignee, liquidator, sequestrator, custodian or
similar official under any Bankruptcy Law.
A Default under clause (2) above is not an Event of Default
until the Trustee notifies the Company or the Holders of at least a majority in
aggregate principal amount of the Debentures at the time outstanding or the
Special Representative notifies the Company and the Trustee, of the Default and
the Company does not cure such Default within the time specified in clause (2)
above after receipt of such notice. Any such notice must specify the Default,
demand that it be remedied and state that such notice is a "Notice of Default."
SECTION 6.02 ACCELERATION.
If any Event of Default other than an Event of Default under
clauses (3) or (4) occurs and is continuing, the Trustee, the Holders of not
less than 25% in principal amount of the Debentures then outstanding or the
Special Representative may declare the principal of all such Debentures due and
payable. Upon such a declaration, such principal and interest shall be due and
payable immediately.
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If an Event of Default specified in clause (3) or (4) with
respect to the Company occurs, the principal of and interest on all the
Debentures shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any
Debentureholders.
The Special Representative or holders of a majority in
aggregate principal amount of the Debentures at the time outstanding by notice
to the Trustee may rescind an acceleration and its consequences if the
rescission would not conflict with any judgment or decree and if all existing
Events of Default have been cured or waived except nonpayment of principal or
interest that has become due solely because of acceleration. No such
rescission shall affect any subsequent Default or impair any right consequent
thereto.
SECTION 6.03 OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee
may, in its own name or as trustee of an express trust, institute, pursue and
prosecute any proceeding, including, without limitation, any action at law or
suit in equity or other judicial or administrative proceeding to collect the
payment of principal of, premium, if any, or interest on the Debentures, to
enforce the performance of any provision of the Debentures or this Indenture or
to obtain any other available remedy.
The Trustee may maintain a proceeding even if it does not
possess any of the Debentures or does not produce any of the Debentures in the
proceeding. A delay or omission by the Trustee, the Special Representative or
any Debentureholder in exercising any right or remedy accruing upon an Event of
Default shall not impair the right or remedy or constitute a waiver of, or
acquiescence in, the Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative.
SECTION 6.04 WAIVER OF PAST DEFAULTS.
The Special Representative or the Holders of 66 2/3% in
aggregate principal amount of the Debentures at the time outstanding, by notice
to the Trustee, the Company and PECO Energy Capital, may waive an existing
Default or Event of Default and its consequences. When a Default is waived, it
is deemed cured and shall cease to exist, but no such waiver shall extend to
any subsequent or other Default or impair any consequent right.
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SECTION 6.05 CONTROL BY MAJORITY OR THE SPECIAL REPRESENTATIVE.
The Holders of a majority in aggregate principal amount of the
Debentures then outstanding or the Special Representative may direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or of exercising any trust or power conferred on the Trustee. However,
the Trustee may refuse to follow any direction that conflicts with law or this
Indenture or that the Trustee determines in good faith is unduly prejudicial to
the rights of other Debentureholders or would involve the Trustee in personal
liability. The Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, including withholding notice to
the Holders of the Debentures of any series of continuing default (except in
the payment of the principal (other than any mandatory sinking fund payment) of
(or premium, if any) or interest on any Debentures of such series) if the
Trustee considers it in the interest of the holders of such series of
Debentures to do so.
SECTION 6.06 LIMITATION ON SUITS.
Except as provided in Section 6.07 hereof, the Special
Representative may not pursue any remedy with respect to this Indenture or the
Debentures unless:
(1) the Holders or the Special Representative gives to the
Trustee written notice stating that an Event of Default is continuing;
(2) the Holders or the Special Representative provides to
the Trustee reasonable security and indemnity against any loss, liability or
expense satisfactory to the Trustee;
(3) the Trustee does not comply with the request within 60
days after receipt of the notice, the request and the offer of security and
indemnity; and
SECTION 6.07 RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the
right of any Holder to receive payment of the principal amount of or interest
on the Debentures held by such Holder, on or after the respective due dates
expressed in the Debentures (in the case of interest, as the same may be
extended pursuant to Section 4.01(b)) or any Redemption Date, or to bring suit
for the enforcement of any such payment on or after such respective dates shall
not be impaired or affected adversely without the consent of each such Holder.
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SECTION 6.08 COLLECTION SUIT BY THE TRUSTEE.
If an Event of Default described in Section 6.01(1) hereof
occurs and is continuing, the Trustee may recover judgment in its own name and
as trustee of an express trust against the Company or any obligor on the
Debentures for the whole amount owing with respect to the Debentures and the
amounts provided for in Section 6.07 hereof.
SECTION 6.09 THE TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company or its properties or
assets, the Trustee shall be entitled and empowered, by intervention in such
proceeding or otherwise:
(1) to file and prove a claim for the whole amount of the
principal amount, premium, if any, and interest on the Debentures 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 the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and of the Holders allowed in such judicial proceeding; and
(2) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same; and any
Custodian in any such judicial proceeding is hereby authorized by each Holder
to make such payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 7.07 hereof.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Debentures or the rights of any Holder thereof, or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.
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SECTION 6.10 PRIORITIES.
If the Trustee collects any money pursuant to this Article 6,
it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07 hereof;
SECOND: to Debentureholders for amounts due and unpaid on the
Debentures for the principal amount, Redemption Price or
interest, if any, as the case may be, ratably, without
preference or priority of any kind, according to such amounts
due and payable on the Debentures; and
THIRD: the balance, if any, to the Company.
The Trustee may fix a record date and payment date for any
payment to Debentureholders pursuant to this Section 6.10.
SECTION 6.11 UNDERTAKING FOR COSTS.
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, a court in its discretion may require the filing by
any party litigant (other than the Trustee) in the suit of an undertaking to
pay the costs of the suit, and the court in its discretion may assess
reasonable costs, including reasonable attorneys' fees and expenses, against
any party litigant in the suit, having due regard to the merits and good faith
of the claims or defenses made by the party litigant. This Section 6.11 does
not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07
hereof or a suit by Holders of more than 10% in aggregate principal amount of
the Debentures at the time outstanding or a suit by the Special Representative.
SECTION 6.12 WAIVER OF STAY, EXTENSION OR USURY LAWS.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
or any usury or other law wherever enacted, now or at any time hereafter in
force, that would prohibit or forgive the Company from paying all or any
portion of the principal or premium, if any, or interest on the Debentures as
contemplated herein or affect the covenants or the performance by the Company
of its obligations under this Indenture; and the Company (to the extent that it
may lawfully do
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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.
ARTICLE 7
THE TRUSTEE
SECTION 7.01 DUTIES OF THE TRUSTEE.
(1) If an Event of Default has occurred and is continuing,
the Trustee shall exercise the rights and powers vested in it by this Indenture
and use the same degree of care and skill in its exercise as a prudent man
would exercise or use under the circumstances in the conduct of his own
affairs.
(2) Except during the continuance of an Event of Default,
(a) the Trustee need perform only those duties that are specifically set forth
in this Indenture and no others; and (b) in the absence of bad faith on its
part, the Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of this
Indenture. However, in the case of any certificates or opinions which by any
provision hereof are specifically required to be furnished to the Trustee, the
Trustee shall examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture.
(3) The Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(a) this paragraph (3) does not limit the effect
of paragraph (2) of this Section 7.01;
(b) the Trustee shall not be liable for any error
of judgment made in good faith by a Trust
Officer unless it is proved that the Trustee
was negligent in ascertaining the pertinent
facts; and
(c) the Trustee shall not be liable with respect
to any action it takes or omits to take in
good faith in accordance with a direction
received by it pursuant to Section 6.05
hereof.
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(4) Every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (1), (2), (3) and (5) of this
Section 7.01 and Section 7.02.
(5) The Trustee may refuse to perform any duty or exercise
any right or power or extend or risk its own funds or otherwise incur any
financial liability unless it receives security and indemnity reasonably
satisfactory to it against any loss, liability or expense.
(6) Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall not be liable for interest on any money held by it hereunder.
SECTION 7.02 RIGHTS OF THE TRUSTEE.
(1) The Trustee may rely on any document believed by it
to be genuine and to have been signed or presented by the proper person. The
Trustee need not investigate any fact or matter stated in the document;
(2) Before the Trustee acts or refrains from acting, it
may require an Officer's Certificate and, if appropriate, an Opinion of
Counsel. The Trustee shall not be liable for any action it takes or omits to
take in good faith in reliance on such Officer's Certificate and Opinion of
Counsel;
(3) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care;
(4) The Trustee shall not be liable for any action it
takes or omits to take in good faith which it reasonably believes to be
authorized or within its rights or powers;
(5) The 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; and
(6) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders or Special Representative pursuant to this
Indenture, unless such Holders shall have offered to the Trustee reasonable
security and indemnity against the costs, expenses and liabilities which might
be incurred by it in compliance with such request or direction.
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SECTION 7.03 INDIVIDUAL RIGHTS OF THE TRUSTEE.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Debentures and may otherwise deal with the Company or
its Affiliates with the same rights it would have if it were not Trustee. Any
Paying Agent, Registrar or co-registrar may do the same with like rights.
However, the Trustee must comply with Sections 7.10 and 7.11 hereof.
SECTION 7.04 THE TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Debentures, it shall not be accountable for
the Company's use of the proceeds from the Debentures, and it shall not be
responsible for any statement in this Indenture or the Debentures or any report
or certificate issued by the Company hereunder or any registration statement
relating to the Debentures (other than the Trustee's certificate of
authentication), or the determination as to which beneficial owners are
entitled to receive any notices hereunder.
SECTION 7.05 NOTICE OF DEFAULTS.
If a Default occurs and is continuing and if it is known to
the Trustee, the Trustee shall mail to each Debentureholder, as their names and
addresses appear on the Debenture Register, notice of the Default within 90
days after it becomes known to the Trustee unless such Default shall have been
cured or waived. Except in the case of a Default described in Section 6.01(1)
hereof, the Trustee may withhold such notice if and so long as a committee of
Trust Officers in good faith determines that the withholding of such notice is
in the interests of Debentureholders. The second sentence of this Section 7.05
shall be in lieu of the proviso to TIA Section 315(b). Said proviso is hereby
expressly excluded from this Indenture, as permitted by the TIA.
SECTION 7.06 REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each May 31, beginning with the May 31
next following the date of this Indenture, the Trustee shall mail to each
Debentureholder, and such other holders that have submitted their names to the
Trustee for such purpose, a brief report dated as of such May 31 in accordance
with and to the extent required under TIA Section 313.
A copy of each report at the time of its mailing to
Debentureholders shall be filed with the Company, the SEC and
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each securities exchange on which the Debentures are listed. The Company agrees
to promptly notify the Trustee whenever the Debentures become listed on any
securities exchange and of any listing thereof.
SECTION 7.07 COMPENSATION AND INDEMNITY.
The Company agrees:
(1) to pay to the Trustee from time to time such
compensation as shall be agreed in writing between the Company and the Trustee
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of
an express trust);
(2) to reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any provision of this Indenture (including the reasonable
compensation and the expenses, and advances of its agents and counsel),
including all reasonable expenses and advances incurred or made by the Trustee
in connection with any Event of Default or any membership on any creditors'
committee, except any such expense or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee, its officers, directors and
shareholders, for, and to hold it harmless against, any and all loss, liability
or expense, incurred without negligence or bad faith on its part, 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.
Before, after or during an Event of Default, the Trustee shall
have a claim and lien prior to the Debentures as to all property and funds held
by it hereunder for any amount owing it or any predecessor Trustee pursuant to
this Section 7.07, except with respect to funds held by the Trustee or any
Paying Agent in trust for the payment of principal of, premium, if any, or
interest on particular Debentures pursuant to Section 2.06 or Section 8.01.
The Company's payment obligations pursuant to this Section
7.07 are not subject to Article 10 of this Indenture and shall survive the
discharge of this Indenture. When the Trustee renders services or incurs
expenses after the occurrence of a Default specified in Section 6.01 hereof,
the compensation for services and expenses are intended to constitute expenses
of administration under any Bankruptcy Law.
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SECTION 7.08 REPLACEMENT OF TRUSTEE.
The Trustee may resign by so notifying the Company in writing
at least 30 days prior to the date of the proposed resignation; provided,
however, no such resignation shall be effective until a successor Trustee has
accepted its appointment pursuant to this Section 7.08. The Special
Representative or the Holders of a majority in aggregate principal amount of
the Debentures at the time outstanding, may remove the Trustee by so notifying
the Trustee in writing and may appoint a successor Trustee, which shall be
subject to the consent of the Company unless an Event of Default has occurred
and is continuing. The Trustee shall resign if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of
Trustee for any reason, the Company shall promptly appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to
the retiring Trustee and to the Company. Thereupon the resignation or removal
of the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to Debentureholders.
Subject to payment of all amounts owing to the Trustee under Section 7.07
hereof and subject further to its lien under Section 7.07, the retiring Trustee
shall promptly transfer all property held by it as Trustee to the successor
Trustee. If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, the
Special Representative or the Holders of a majority in aggregate principal
amount of the Debentures at the time outstanding, may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10 hereof, any
Debentureholder may petition any court of competent jurisdiction for its
removal and the appointment of a successor Trustee.
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SECTION 7.09 SUCCESSOR TRUSTEE BY MERGER.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all its corporate trust business or assets
(including this Trusteeship) to another corporation, the resulting, surviving
or transferee corporation without any further act shall be the successor
Trustee.
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION.
The Trustee shall at all times satisfy the requirements of TIA
Sections 310(a)(1) and 310(a)(2). The Trustee (or any Affiliate thereof which
has unconditionally guaranteed the obligations of the Trustee hereunder) shall
have a combined capital and surplus of at least $50,000,000 as set forth in its
most recent published annual report of condition. The Trustee shall comply with
TIA Section 310(b). In determining whether the Trustee has conflicting
interests as defined in TIA Section 310(b)(1), the provisions contained in the
proviso to TIA Section 310(b)(1) shall be deemed incorporated herein.
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE COMPANY.
If and when the Trustee shall be or become a creditor of the
Company, the Trustee shall be subject to the provisions of the TIA regarding
the collection of claims against the Company.
ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE;
DEFEASANCE OF CERTAIN OBLIGATIONS; UNCLAIMED MONEYS
SECTION 8.01 SATISFACTION AND DISCHARGE OF INDENTURE.
The Company shall be deemed to have paid and discharged the
entire indebtedness on any series of the Debentures outstanding on the date the
Company has irrevocably deposited or caused to be irrevocably deposited with
the Trustee or any Paying Agent as trust funds in trust, specifically pledged
as security for, and dedicated solely to, the benefit the Holders (1) cash in
an amount, or (2) U.S. Government Obligations, maturing as to principal and
interest at such times and in such amounts as will ensure the availability of
cash, or (3) a combination thereof, sufficient to pay the principal of,
premium, if any, and interest on, all Debentures then outstanding, and on such
date; the provisions of this Indenture with respect to the Debentures shall no
longer be in effect (except as to (1) the rights of
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registration of transfer, substitution and exchange of Debentures, (2) the
replacement of apparently mutilated, defaced, destroyed, lost or stolen
Debentures, (3) the rights of the Holders to receive payments of principal
thereof and interest thereon, (4) the rights of the Holders as beneficiaries
hereof with respect to the property so deposited with the Trustee payable to
all or any of them, (5) the obligation of the Company to maintain an office or
agency for payments on and registration of transfer of the Debentures, and (6)
the rights, obligations and immunities of the Trustee hereunder); and the
Trustee shall, at the request and expense of the Company, execute proper
instruments acknowledging the same; provided that if the Company deposits U.S.
Government Obligations with the Trustee:
(A) no Default or Event of Default with respect to the
Debentures has occurred and is continuing on the date of such deposit
or occurs as a result of such deposit;
(B) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all
conditions precedent relating to the defeasance contemplated by this
provision have been complied with; and
(C) the Company has delivered to the Trustee (i) either a
private Internal Revenue Service ruling or an Opinion of Counsel based
on a ruling of the Internal Revenue Service or other change in Federal
income tax law to the effect that the Holders will not recognize
income, gain or loss for federal income tax purposes as a result of
such deposit, defeasance and discharge and will be subject to federal
income tax on the same amount and in the manner and at the same times
as would have been the case if such deposit, defeasance and discharge
had not occurred, and (ii) an Opinion of Counsel to the effect that
(A) the deposit shall not result in the Company, the Trustee or the
trust being deemed to be an "investment company" under the Investment
Company Act of 1940, as amended, and (B) such deposit creates a valid
trust in which such Holders of the Debentures have the sole beneficial
ownership interest or that such Holders of the Debentures have a
nonavoidable first priority security interest in such trust.
SECTION 8.02 APPLICATION BY TRUSTEE OF FUNDS DEPOSITED FOR PAYMENT OF
DEBENTURES.
Subject to Section 8.04, and Article 10 of this Indenture, all
moneys deposited with the Trustee pursuant to Section 8.01 hereof shall be held
in trust and applied by it to the payment, either directly or through any
Paying Agent
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(including the Company acting as its own Paying Agent), to the Holders 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 8.03 REPAYMENT OF MONEYS HELD BY PAYING AGENT.
In connection with the satisfaction and discharge of this
Indenture, all moneys then held by any Paying Agent under this Indenture shall,
upon demand of the Company, 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 8.04 RETURN OF MONEYS HELD BY THE TRUSTEE AND PAYING AGENT
UNCLAIMED FOR THREE YEARS.
Any moneys deposited with or paid to the Trustee or any Paying
Agent for the payment of the principal, premium, if any, or interest on any
Debenture and not applied but remaining unclaimed for three years after the
date when such principal, premium, if any, or interest shall have become due
and payable shall unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property law, be repaid to the
Company by the Trustee or such Paying Agent, and the Holder of such Debenture
shall, unless otherwise required by mandatory provisions of applicable escheat
or abandoned or unclaimed property laws, thereafter look only to the Company
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.
ARTICLE 9
AMENDMENTS
SECTION 9.01 WITHOUT CONSENT OF HOLDERS.
From time to time, when authorized by a resolution of the
Board of Directors, the Company and the Trustee, without notice to or the
consent of any holders of the Debentures or their Special Representative issued
hereunder, may amend or supplement this Indenture or the Debentures:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article 5 hereof;
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(3) to provide for uncertificated Debentures in addition
to or in place of certificated Debentures;
(4) to make any other change that does not adversely
affect the rights of any Debentureholder; or
(5) to comply with any requirement of the SEC in
connection with the qualification of this Indenture under the TIA; and
(6) to set forth the terms and conditions, which shall
not be inconsistent with this Indenture, of the series of Debentures (other
than the Series A Debentures) that are to be issued hereunder and the form of
Debentures of such series.
SECTION 9.02 WITH CONSENT OF HOLDERS.
With written consent of the Special Representative or the
Holders of at least 66 2/3% in aggregate principal amount of the series of
Debentures at the time outstanding, the Company and the Trustee may amend this
Indenture or the Debentures or may waive future compliance by the Company with
any provisions of this Indenture or the Debentures. However, without the
consent of each Debentureholder affected, such an amendment or waiver may not:
(1) reduce the principal amount of the Debentures the
Holders of which must consent to an amendment of the Indenture or a waiver;
(2) change the Stated Maturity of the principal of, or
the interest or rate of interest on the Debentures, change adversely to the
Holders the redemption provisions of Article 3 hereof, or impair the right to
institute suit for the enforcement of any such payment or make any Debenture
payable in money or securities other than that stated in the Debenture;
(3) make any change in Article 10 hereof that adversely
affects the rights of the Holders of the Debentures or any change to any other
section hereof that adversely affects their rights under Article 10 hereof;
(4) waive a Default in the payment of the principal of,
premium, if any, or interest on, any Debenture; or
(5) change Section 6.07 hereof.
It shall not be necessary for the consent of the Holders under
this Section 9.02 to approve the particular form of
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any proposed amendment, but it shall be sufficient if such consent approves the
substance thereof.
If certain Holders agree to defer or waive certain obligations
of the Company hereunder with respect to Debentures held by them, such deferral
or waiver shall not affect the rights of any other Holder to receive the
payment or performance required hereunder in a timely manner.
After an amendment or waiver under this Section 9.02 becomes
effective, the Company shall mail to the Special Representative and to each
Holder a notice briefly describing the amendment or waiver. Any failure of the
Company to mail such notices, or any defect therein, shall not, however, in any
way impair or affect the validity of such amendment or waiver.
SECTION 9.03 COMPLIANCE WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article
9 shall comply with the TIA.
SECTION 9.04 REVOCATION AND EFFECT OF CONSENTS, WAIVERS AND ACTIONS.
Until an amendment, waiver or other action by Holders becomes
effective, a consent to it or any other action by a Holder of a Debenture
hereunder is a continuing consent by the Holder and every subsequent Holder of
that Debenture or portion of the Debenture that evidences the same obligation
as the consenting Holder's Debenture, even if notation of the consent, waiver
or action is not made on the Debenture. However, any such Holder or subsequent
Holder may revoke the consent, waiver or action as to such Holder's Debenture
or portion of the Debenture if the Trustee receives the notice of revocation
before the consent of the requisite aggregate principal amount of the
Debentures then outstanding has been obtained and not revoked. After an
amendment, waiver or action becomes effective, it shall bind every
Debentureholder, except as provided in Section 9.02 hereof.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to consent to any
amendment or waiver. If a record date is fixed, then, notwithstanding the first
two sentences of the immediately preceding paragraph, those Persons who were
Holders at such record date or their duly designated proxies, and only those
Persons, shall be entitled to consent to such amendment, supplement or waiver
or to revoke any consent previously given, whether or not such Persons continue
to be Holders after such record date. No such consent shall be valid or
effective for more than 90 days after such record date.
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SECTION 9.05 NOTATION ON OR EXCHANGE OF DEBENTURES.
Debentures authenticated and made available for delivery after
the execution of any supplemental indenture pursuant to this Article 9 may, and
shall, if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Debentures so modified as to conform, in the
opinion of the Trustee and the Board of Directors, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
made available for delivery by the Trustee in exchange for outstanding
Debentures.
SECTION 9.06 TRUSTEE TO SIGN SUPPLEMENTAL INDENTURES.
The Trustee shall sign any supplemental indenture authorized
pursuant to this Article 9 if the supplemental indenture does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. If it
does, the Trustee may, but need not, sign it. In signing such amendment the
Trustee shall be entitled to receive, and shall be fully protected in relying
upon, an Officer's Certificate and Opinion of Counsel stating that such
supplemental indenture is authorized or permitted by this Indenture.
SECTION 9.07 EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this
Article 9, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes and
every Holder of Debentures theretofore or thereafter authenticated and made
available for delivery hereunder shall be bound thereby.
ARTICLE 10
SUBORDINATION
SECTION 10.01 DEBENTURES SUBORDINATED TO SENIOR INDEBTEDNESS.
Notwithstanding the provisions of Section 6.01 hereof or any
other provision herein or in the Debentures, the Company and the Trustee or
Holder by his acceptance thereof (a) covenants and agrees, that all payments by
the Company of the principal of, premium, if any, and interest on the
Debentures shall be subordinated in accordance with the provisions of this
Article 10 to the prior payment in full, in cash or cash equivalents, of all
amounts payable on, under or in connection with Senior
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Indebtedness, and (b) acknowledges that holders of Senior Indebtedness are or
shall be relying on this Article 10.
SECTION 10.02 PRIORITY AND PAYMENT OF PROCEEDS IN CERTAIN EVENTS; REMEDIES
STANDSTILL.
(a) Upon any payment or distribution of assets or securities
of the Company, as the case may be, of any kind or character, whether in cash,
property or securities, upon any dissolution or winding up or total or partial
liquidation or reorganization of the Company, whether voluntary or involuntary,
or in bankruptcy, insolvency, receivership or other proceedings, all amounts
payable on, under or in connection with Senior Indebtedness (including any
interest accruing on such Senior Indebtedness subsequent to the commencement of
a bankruptcy, insolvency or similar proceeding) shall first be paid in full in
cash, or payment provided for in cash or cash equivalents, before the Holders
or the Trustee on behalf of the Holders shall be entitled to receive from the
Company any payment of principal of or interest on or any other amounts in
respect of the Debentures or distribution of any assets or securities.
(b) No direct or indirect payment by or on behalf of the
Company of principal of or interest on the Debentures whether pursuant to the
terms of the Debentures or upon acceleration or otherwise shall be made if, at
the time of such payment there exists (i) a default in the payment of all or
any portion of any Senior Indebtedness (and the Trustee has received written
notice thereof from the Company, one or more holders of Senior Indebtedness or
from any trustee, representative or agent therefor), or (ii) any other default
affecting Senior Indebtedness permitting its acceleration, as the result of
which the maturity of Senior Indebtedness has been accelerated, and the Trustee
has received written notice from any trustee, representative or agent for the
holders of the Senior Indebtedness or the holders of at least a majority in
principal amount of the Senior Indebtedness then outstanding of such default
and acceleration, and such default shall not have been cured or waived by or on
behalf of the holders of such Senior Indebtedness.
(c) If, notwithstanding the foregoing provision
prohibiting such payment or distribution, the Trustee or any Holder shall have
received any payment on account of the principal of or interest on the
Debentures (other than as permitted by subsections (a) and (b) of this Section
10.02) when such payment is prohibited by this Section 10.02 and before all
amounts payable on, under or in connection with Senior Indebtedness are paid in
full in cash or cash equivalents, then and in such event (subject to the
provisions of Section 10.08)
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such payment or distribution shall be received and held in trust for the
holders of Senior Indebtedness and shall be paid over or delivered first to the
holders of the Senior Indebtedness remaining unpaid to the extent necessary to
pay such Senior Indebtedness in full in cash or cash equivalents.
Upon any payment or distribution of assets or securities
referred to in this Article 10, the Trustee and the Holders shall be entitled
to rely upon any order or decree of a court of competent jurisdiction in which
such dissolution, winding up, liquidation or reorganization proceedings are
pending, and upon a certificate of the receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making any such payment or
distribution, delivered to the Trustee for the purpose of ascertaining the
Persons entitled to participate in such distribution, the holders of Senior
Indebtedness and other Indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article 10.
SECTION 10.03 PAYMENTS WHICH MAY BE MADE PRIOR TO NOTICE.
Nothing in this Article 10 or elsewhere in this Indenture
shall prevent (i) the Company, except under the conditions described in Section
10.02 hereof, from making payments of principal of and interest on the
Debentures or from depositing with the Trustee any monies for such payments, or
(ii) the application by the Trustee of any monies deposited with it for the
purpose of making such payments of principal of and interest on the Debentures,
to the Holders entitled thereto, unless at least one day prior to the date when
such payment would otherwise (except for the prohibitions contained in Section
10.02 hereof) become due and payable, the Trustee shall have received the
written notice provided for in Section 10.02(b)(ii) hereof.
SECTION 10.04 RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS NOT TO BE IMPAIRED.
No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time or
in any way be prejudiced or impaired by any act or failure to act in good faith
by any such holder, or by any noncompliance by the Company with the terms and
provisions and covenants herein regardless of any knowledge thereof any such
holder may have or otherwise be charged with.
The provisions of this Article 10 are intended to be for the
benefit of, and shall be enforceable directly by, the holders of Senior
Indebtedness.
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Notwithstanding anything to the contrary in this Article 10,
to the extent any Holders or the Trustee have paid over or delivered to any
holder of Senior Indebtedness any payment or distribution received on account
of the principal of, or interest on the Debentures to which any other holder of
Senior Indebtedness shall be entitled to share in accordance with Section 10.02
hereof, no holder of Senior Indebtedness shall have a claim or right against
any Holders or the Trustee with respect to any such payment or distribution or
as a result of the failure to make payments or distributions to such other
holder of Senior Indebtedness.
SECTION 10.05 TRUSTEE MAY TAKE ACTION TO EFFECTUATE SUBORDINATION.
Each Holder by his acceptance thereof authorizes and directs
the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate, as between the holders of Senior Indebtedness and
such Holders, the subordination as provided in this Article 10 and appoints the
Trustee his attorney-in-fact for any and all such purposes.
SECTION 10.06 SUBROGATION.
Upon the payment in full, in cash or cash equivalents, of all
Senior Indebtedness, any Holder shall be subrogated to the rights of the
holders of such Senior Indebtedness to receive payments or distributions of
assets of the Company made on such Senior Indebtedness until the Debentures
shall be paid in full; and for the purposes of such subrogation, no payments or
distributions to holders of such Senior Indebtedness of any cash, property or
securities to which such Holders of the Debentures would be entitled except for
this Article 10, and no payment pursuant to this Article 10 to holders of such
Senior Indebtedness by such Holders of the Debentures, shall, as between the
Company, its creditors other than holders of such Senior Indebtedness and such
Holders of the Debentures, be deemed to be a payment by the Company to or on
account of such Senior Indebtedness, it being understood that the provisions of
this Article 10 are solely for the purpose of defining the relative rights of
the holders of such Senior Indebtedness, on the one hand, and such Holders of
the Debentures, on the other hand.
If any payment or distribution to which such Holders of the
Debentures would otherwise have been entitled but for the provisions of this
Article 10 shall have been applied, pursuant to this Article 10, to the payment
of all Senior Indebtedness, then and in such case, such Holders of the
Debentures shall be entitled to receive from the holders of such Senior
Indebtedness
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at the time outstanding any payments or distributions received by such holders
of Senior Indebtedness in excess of the amount sufficient to pay, in cash or
cash equivalents, all such Senior Indebtedness in full.
SECTION 10.07 OBLIGATIONS OF COMPANY UNCONDITIONAL; REINSTATEMENT.
Nothing in this Article 10, or elsewhere in this Indenture or
in any Debenture, is intended to or shall impair, as between the Company and
Holders of the Debentures, the obligations of the Company, which are absolute
and unconditional, to pay to such Holders the principal of, and interest on,
the Debentures as and when the same shall become due and payable in accordance
with their terms, or is intended to or shall affect the relative rights of such
Holders of the Debentures and creditors of the Company other than the holders
of the Senior Indebtedness, nor shall anything herein or therein prevent the
Trustee, the Special Representative or any Holder from exercising all remedies
otherwise permitted by applicable law upon Default under this Indenture,
subject to the rights, if any, under this Article 10 of the holders of such
Senior Indebtedness in respect of cash, property or securities of the Company
received upon the exercise of any such remedy.
The failure to make a scheduled payment of principal of, or
interest on, the Debentures by reason of Section 10.02 shall not be construed
as preventing the occurrence of an Event of Default under Section 6.01 hereof;
provided, however, that if (i) the conditions preventing the making of such
payment no longer exist, and (ii) such Holders of the Debentures are made whole
with respect to such omitted payments, the Event of Default relating thereto
(including any failure to pay any accelerated amounts) shall be automatically
waived, and the provisions of the Indenture shall be reinstated as if no such
Event of Default had occurred.
SECTION 10.08 TRUSTEE ENTITLED TO ASSUME PAYMENTS NOT PROHIBITED IN ABSENCE
OF NOTICE.
The Trustee or Paying Agent shall not be charged with the
knowledge of the existence of any facts which would prohibit the making of any
payment to or by the Trustee or Paying Agent, unless and until the Trustee or
Paying Agent shall have received written notice thereof from the Company or one
or more holders of Senior Indebtedness or from any trustee or agent therefor or
unless the Trustee or Paying Agent otherwise had actual knowledge thereof; and,
prior to the receipt of any such written notice or
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actual knowledge, the Trustee or Paying Agent may conclusively assume that no
such facts exist.
Unless at least one day prior to the date when by the terms of
this Indenture any monies are to be deposited by the Company with the Trustee
or any Paying Agent for any purpose (including, without limitation, the payment
of the principal or the interest on any Debenture), the Trustee or Paying Agent
shall, except where no notice is necessary or where notice is deemed given in
Sections 10.02 and 10.03 hereof, have received with respect to such monies the
notice provided for in the preceding sentence, the Trustee or Paying Agent
shall have full power and authority to receive and apply such monies to the
purpose for which they were received. Neither of them shall be affected by any
notice to the contrary, which may be received by either on or after such date.
The foregoing shall not apply to the Paying Agent if the Company is acting as
Paying Agent. Nothing in this Section 10.08 shall limit the right of the
holders of Senior Indebtedness to recover payments as contemplated by Section
10.02 hereof. The Trustee or Paying Agent shall be entitled to rely on the
delivery to it of a written notice by a Person representing himself or itself
to be a holder of such Senior Indebtedness (or a trustee on behalf of, or other
representative of, such holder) to establish that such notice has been given by
a holder of such Senior Indebtedness or a trustee or representative on behalf
of any such holder. The Trustee shall not be deemed to have any duty to the
holders of Senior Indebtedness.
SECTION 10.09 RIGHT OF TRUSTEE TO HOLD SENIOR INDEBTEDNESS.
The Trustee and any Paying Agent shall be entitled to all of
the rights set forth in this Article 10 in respect of any Senior Indebtedness
at any time held by them to the same extent as any other holder of such Senior
Indebtedness, and nothing in this Indenture shall be construed to deprive the
Trustee or any Paying Agent of any of its rights as such holder.
ARTICLE 11
MISCELLANEOUS
SECTION 11.01 TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by operation of subsection (c) of Section 318
of the TIA, the imposed duties shall control. The provisions of Sections 310 to
317, inclusive, of the TIA that impose duties on any Person (including
provisions automatically
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deemed included in an indenture unless the indenture provides that such
provisions are excluded) are a part of and govern this Indenture, except as,
and to the extent, they are expressly excluded from this Indenture, as
permitted by the TIA.
SECTION 11.02 NOTICES.
Any notice or communication shall be in writing and delivered
in person or mailed by first-class mail, postage prepaid, addressed as follows:
if to the Company:
PECO Energy Company
0000 Xxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
if to the Trustee:
Meridian Trust Company
00 Xxxxx 0xx Xxxxxx
P.O. Box 15111
Reading, Pennsylvania 19612-5111
Attn: Corporate Trust Administration
The Company or the Trustee, by giving notice to the other, may
designate additional or different addresses for subsequent notices of
communications. The Company shall notify the holder, if any, of Senior
Indebtedness of any such additional or different addresses of which the Company
receives notice from the Trustee.
Any notice or communication given to a Debentureholder other
than PECO Energy Capital shall be mailed to the Debentureholder at the
Debentureholder's address as it appears on the Register of the Registrar and
shall be sufficiently given if mailed within the time prescribed.
Failure to mail a notice or communication to a Debentureholder
or any defect in it shall not affect its sufficiency with respect to other
Debentureholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not received by the addressee.
If the Company mails a notice or communication to the
Debentureholders, it shall mail a copy to the Trustee and each Registrar,
Paying Agent or co-Registrar.
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SECTION 11.03 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Debentureholders may communicate, pursuant to TIA Section
312(b), with other Debentureholders with respect to their rights under this
Indenture or the Debentures. The Company, the Trustee, the Registrar, the
Paying Agent and anyone else shall have the protection of TIA Section 312(c).
SECTION 11.04 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Company shall furnish to the
Trustee:
(1) an Officer's Certificate (complying with Section
11.05 hereof) stating that, in the opinion of such Officer, all conditions
precedent to the taking of such action have been complied with; and
(2) if appropriate, an Opinion of Counsel (complying with
Section 11.05 hereof) stating that, in the opinion of such counsel, all such
conditions precedent to the taking of such action have been complied with.
SECTION 11.05 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each Officer's Certificate and Opinion of Counsel with respect
to compliance with a covenant or condition provided for in this Indenture shall
include:
(1) a statement that each Person making such Officer's
Certificate or Opinion of Counsel 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 Officer's Certificate or Opinion of Counsel are based;
(3) a statement that, in the opinion of each 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 that, in the opinion of such Person, such
covenant or condition has been complied with; provided, however, that with
respect to matters of fact not involving any
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legal conclusion, an Opinion of Counsel may rely on an Officer's Certificate or
certificates of public officials.
SECTION 11.06 SEVERABILITY CLAUSE.
If any provision in this Indenture or in the Debentures 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 11.07 RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR.
The Trustee may make reasonable rules for action by or a
meeting of Debentureholders. The Registrar and Paying Agent may make
reasonable rules for their functions.
SECTION 11.08 LEGAL HOLIDAYS.
A "Legal Holiday" is any day other than a Business Day. If any
specified date (including a date for giving notice) is a Legal Holiday, the
action to be taken on such date shall be taken on the next succeeding day that
is not a Legal Holiday, and if such action is a payment in respect of the
Debentures, no principal or interest installment shall accrue for the
intervening period; except that if any interest payment is due on a Legal
Holiday and the next succeeding day is in the next succeeding calendar year,
such payment shall be made on the Business Day immediately preceding such Legal
Holiday.
SECTION 11.09 GOVERNING LAW.
This Indenture and the Debentures shall be governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania as
applied to contracts made and performed within the Commonwealth of
Pennsylvania, without regard to its principles of conflicts of laws.
SECTION 11.10 NO RECOURSE AGAINST OTHERS.
No director, officer, employee or stockholder, as such, of the
Company shall have any liability for any obligations of the Company under the
Debentures or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Debenture, each
Debentureholder shall waive and release all such liability. The waiver and
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release shall be part of the consideration for the issue of the Debentures.
SECTION 11.11 SUCCESSORS.
All agreements of the Company in this Indenture and the
Debentures shall bind its successors and assigns. All agreements of the Trustee
in this Indenture shall bind its successors and assigns.
SECTION 11.12 MULTIPLE ORIGINAL COPIES OF THIS INDENTURE.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement. Any signed copy shall be sufficient proof of this Indenture.
SECTION 11.13 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or any Subsidiary. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
SECTION 11.14 TABLE OF CONTENTS; HEADINGS, ETC.
The Table of Contents, Cross-Reference Table, and headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
SECTION 11.15 BENEFITS OF THE INDENTURE.
Except as expressly provided in Article 10 hereof, nothing in
this Indenture or in the Debentures, express or implied, shall give to any
person, other than the parties hereto and their successors hereunder, the
Holders and the Special Representative, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
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SIGNATURES
IN WITNESS WHEREOF, the undersigned, being duly authorized,
have executed this Indenture on behalf of the respective parties hereto as of
the date first above written.
PECO ENERGY COMPANY
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxxx
-----------------------------
Title: Vice-President-Finance and
Treasurer
----------------------------
MERIDIAN TRUST COMPANY,
AS TRUSTEE
By: /s/ Xxx X. Xxxxx
-------------------------------
Name: Xxx X. Xxxxx
-----------------------------
Title: Assistant Vice President
----------------------------
PECO Energy Capital, L.P.
By its General Partner,
PECO Energy Capital Corp.
By /s/ J. Xxxxx Xxxxxxxx
---------------------
Solely for the purposes stated
in the recitals hereto.
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EXHIBIT A
9% DEFERRABLE INTEREST SUBORDINATED DEBENTURES,
SERIES A DUE 2043
No. 1
PECO Energy Company, a Pennsylvania corporation (the "Company"), which term
includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to PECO Energy Capital, L.P. or
registered assigns, the principal sum of______________________________________
________________________________________ Dollars on July 27, 2043, and to pay
interest on said principal sum from July 27, 1994 or from the most recent
interest payment date (each such date, an "Interest Payment Date") to which
interest has been paid or duly provided for, monthly in arrears on the last day
of each calendar month of each year commencing August 1, 1994 at the rate of 9%
per annum plus Additional Interest, if any, until the principal hereof shall
have become due and payable, and on any overdue principal and premium, if any,
and (to the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at the same rate per
annum. The amount of interest payable on any Interest Payment Date shall be
computed on the basis of a 360-day year of twelve 30-day months. In the event
that any date on which interest is payable on the Series A Debentures is not a
Business Day, then payment of interest payable on such date will 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, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date. The interest installment so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
the Indenture, be paid to the person in whose name this Debenture is registered
at the close of business on the regular record date for such interest
installment, which shall be the close of business on the Business Day next
preceding such Interest Payment Date. Any such interest installment not
punctually paid or duly provided for shall forthwith cease to be payable to the
registered holders on such regular record date, and may be paid to the person
in whose name this Debenture is registered at the close of business on a
special record date to be fixed by the Trustee for the payment of such
defaulted interest, notice whereof shall be given to the registered holders of
this series of Debentures not less than 10 days prior to such special record
date, as more fully provided in the Indenture hereinafter referred to. The
principal of (and premium, if any) and the interest on this Debenture shall be
payable at the office
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or agency of the Company maintained for that purpose in Wilmington, Delaware in
any coin or currency of the United States of America which at the time of
payment is legal tender for payment of public and private debts; provided
however, that payment of interest may be made at the option of the Company by
check mailed to the registered holder at such address as shall appear in the
Debenture Register. Notwithstanding the foregoing, so long as the holder of
this Debenture is PECO Energy Capital, the payment of the principal of (and
premium, if any) and interest (including Additional Interest, if any) in this
Debenture will be made at such place and to such account as may be designated
by PECO Energy Capital.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and subject in right of payment to the
prior payment in full of all Senior Indebtedness, and this Debenture is issued
subject to the provisions of the Indenture with respect thereto. Each Holder
of this Debenture, by accepting the same, (a) agrees to and shall be bound by
such provisions, (b) authorizes and directs the Trustee on his behalf to take
such action as may be necessary or appropriate to acknowledge or effectuate the
subordination so provided and (c) appoints the Trustee his attorney-in-fact for
any and all such purposes. Each Holder hereof, by his acceptance hereof,
hereby waives all notice of the acceptance of the subordination provisions
contained herein and in the Indenture by each holder of Senior Indebtedness,
whether now outstanding or hereafter incurred, and waives reliance by each such
Holder upon said provisions.
This Debenture is one of a duly authorized series of
Debentures of the Company (herein sometimes referred to as the "Series A
Debentures"), specified in the Indenture, limited in aggregate principal amount
as specified in the Indenture, issued under and pursuant to an Indenture dated
as of July 1, 1994 (the "Indenture") executed and delivered between the Company
and Meridian Trust Company, as trustee (the "Trustee") to which reference is
made to the Indenture for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Company and
the holders of the Debentures. By the terms of the Indenture, debentures (the
"Debentures") are issuable in series which may vary as to amount, date of
maturity, rate of interest and in other respects as in the Indenture provided.
The Series A Debentures are subject to mandatory redemption
prior to maturity at 100% of the principal amount thereof plus accrued interest
to the redemption date as follows:
(i) in whole upon the dissolution of PECO Energy Capital; and
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(ii) in whole or in part upon a redemption of the Series A
Preferred Securities (as defined in the Indenture),
but if in part, in an aggregate principal amount
equal to the aggregate stated liquidation preference
of the Series A Preferred Securities redeemed.
The Series A Debentures are subject to redemption prior to
maturity at any time on or after July 27, 1999 at the option of the Company, in
whole or in part, at 100% of the principal amount thereof plus accrued interest
to the redemption date.
In the event of redemption of this Debenture in part only, a
new Debenture or Debentures of this series for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture,
shall have occurred and be continuing, the principal of all of the Debentures
may be declared, and upon such declaration shall become, due and payable, in
the manner, with the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions for defeasance at any time
of the entire indebtedness of this Debenture upon compliance by the Company
with certain conditions set forth therein.
Subject to certain exceptions in the Indenture which require
the consent of every Holder, (i) the Indenture or the Series A Debentures may
be amended with the written consent of the Holders of a majority in aggregate
principal amount of the Series A Debentures at the time outstanding, and (ii)
certain defaults or noncompliance with certain provisions may be waived by the
written consent of the Holders of a majority in aggregate principal amount of
the Series A Debentures at the time outstanding. Subject to certain exceptions
in the Indenture, without the consent of any Debentureholder, the Company and
the Trustee may amend the Indenture or the Debentures to cure any ambiguity,
defect or inconsistency, to bind a successor to the obligations of the
Indenture, to provide for uncertificated Debentures in addition to certificated
Debentures, to comply with any requirements of the Debentures and Exchange
Commission in connection with the qualification of the Indenture under the TIA,
or to make any change that does not adversely affect the rights of any
Debentureholder. Amendments bind all Holders and subsequent Holders.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional,
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to pay the principal of and premium, if any, and interest on this Debenture at
the time and place and at the rate and in the money herein prescribed.
The Company shall have the right at any time during the term
of the Series A Debentures, from time to time to extend the interest payment
period of such Debentures to up to 60 consecutive months (the "Extended
Interest Payment Period"), at the end of which period the Company shall pay all
interest then accrued and unpaid (together with interest thereon at the rate
specified for the Series A Debentures to the extent that payment of such
interest is enforceable under applicable law); provided that, during such
Extended Interest Payment Period the Company shall not declare or pay any
dividend on, redeem or purchase any of its capital stock. Prior to the
termination of any such Extended Interest Payment Period, the Company may
further extend such Extended Interest Payment Period, provided that such Period
together with all such further extensions thereof shall not exceed 60
consecutive months. At the termination of any such Extended Interest Payment
Period and upon the payment of all accrued and unpaid interest and any
additional amounts then due, the Company may select a new Extended Interest
Payment period.
As provided in the Indenture and subject to certain
limitations therein set forth, this Debenture is transferable by the registered
holder hereof on the Debenture Register of the Company, upon surrender of this
Debenture for registration of transfer at the office or agency of the Registrar
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company or the Trustee duly executed by the registered
holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Debentures of authorized denominations and for the same aggregate
principal amount and series will be issued to the designated transferee or
transferees. No service charge will be made for any such transfer, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in relation thereto.
Prior to presentment for registration of transfer of this
Debenture, the Company, the Trustee, any paying agent and any Debenture
Registrar may deem and treat the registered holder hereof as the absolute owner
hereof (whether or not this Debenture shall be overdue and notwithstanding any
notice of ownership or writing hereon made by anyone other than the Debenture
Registrar) for the purpose of receiving payment of or on account of the
principal hereof and premium, if any, and interest due hereon and for all other
purposes, and neither the Company nor the Trustee nor any payment agent nor any
Debenture Registrar shall be affected by any notice to the contrary.
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No recourse shall be had for the payment of the principal of
or the interest on this Debenture, or for any claim based hereon, or otherwise
in respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any 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, all such liability being, by the
acceptance hereof and as part of the consideration for the issuance hereof,
expressly waived and released. Debentures of this series so issued are
issuable only in registered form without coupons in denominations of $25 and
any integral multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, Debentures of this series are
exchangeable for a like aggregate principal amount of Debentures of this
series of a different authorized denomination, as requested by the Holder
surrendering the same.
All terms used in this Debenture which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
This Debenture shall not be valid until an authorized officer
of the Trustee manually signs the Trustee's Certificate of Authentication
below.
IN WITNESS WHEREOF, the Company has caused this Debenture to
be signed manually or by facsimile by its duly authorized officers and a
facsimile of its corporate seal to be affixed hereto or imprinted hereon.
PECO ENERGY COMPANY
By:
--------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President -
Finance and Treasurer
Dated: July 27, 1994
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE DEBENTURES REFERRED
TO IN THE WITHIN-MENTIONED INDENTURE.
MERIDIAN TRUST COMPANY, as Trustee
By:
--------------------------
Name
------------------------------
Authorized Signatory
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ASSIGNMENT FORM
To assign this Debenture, fill in the form below: (I) or (we)
assign and transfer this Debenture to:
---------------------------------------------------------------
(Insert assignee's social security or tax I.D. number)
---------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ______________________________ agent to transfer this
Debenture on the books of the Debenture Register. The agent may substitute
another to act for him.
Dated: Signature:
---------------- ------------------------
(Sign exactly as your name
appears on the other side of
this Debenture)
Signature Guaranty:
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