Registration No. 333-______
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CONSOLIDATED EDISON, INC.
(Exact name of Registrant as specified in its charter)
New York 13-3965100
(State of incorporation) (I.R.S. Employer
Identification No.)
4 Irving Place
New York, New York 10003
(212) 460-4600
(Address, including zip code, and telephone number,
including area code, of Registrant's principal
executive offices)
JOAN S. FREILICH or JOHN D. McMAHON, ESQ.
Executive Vice Presidentand Senior Vice President
Chief Financial Officer and General Counsel
4 Irving Place
New York, New York 10003
(212) 460-4600
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copy to:
Steven R. Loeshelle, Esq.
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, New York 10019-6092
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Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this Registration Statement.
If the only securities registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box.__
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, please check the following box._X_
If this Form is filed to register additional securities for offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. __
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. __
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. __
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CALCULATION OF REGISTRATION FEE
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Title of Each Class Amount to be Proposed Maximum Proposed Maximum Amount of
of Securities to Registered Offering Aggregate Registration Fee
Be Registered Price Per Unit Offering Price (1)
(1)
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Debt Securities
Preferred Shares
($1.00 par value)
Common Shares
($.10 par value)
Total $500,000,000 (1) $500,000,000 $46,000
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(1) There are being registered hereunder not to exceed $500,000,000 of Debt
Securities, Preferred Shares ($1.00 par value) and Common Shares ($.10 par
value). Pursuant to Rule 457(o) under the Securities Act of 1933, the table
does not specify the amount to be registered, the proposed maximum offering
price per unit or the proposed maximum aggregate offering price. The
proposed maximum offering price per unit will be determined, from time to
time, by the Registrant in connection with the issuance by the Registrant
of the securities registered hereunder. In no event will the aggregate
initial offering price of all securities registered pursuant to this
Registration Statement exceed $500,000,000.
(2) Estimated solely for purposes of determining the registration fee.
(3) Exclusive of accrued interest and distributions, if any.
(4) The prospectus filed as part of this Registration Statement also relates to
$275,000,000 of Debt Securities remaining available to be offered pursuant
to Registration Statement No. 333-72264.
Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
Pursuant to Rule 429 under the Securities Act of 1933, the prospectus
filed as part of this Registration Statement may be used in connection with the
securities covered by Registration Statement No. 333-72264.
PROSPECTUS
Consolidated Edison, Inc.
Debt Securities
Preferred Shares ($1.00 par value)
Common Shares ($.10 par value)
Consolidated Edison, Inc. may offer and sell from time to time up to
an aggregate $775,000,000 of our unsecured debt securities ("Debt Securities"),
preferred shares ($1.00 par value) ("Preferred Shares") and common shares ($.10
par value) ("Common Shares"), of which not more than an aggregate of
$500,000,000 may be Preferred Shares or Common Shares. The Common Shares are
listed on the New York Stock Exchange under the symbol "ED".
We will establish the specific price and terms of the Debt
Securities, the Preferred Shares and the Common Shares we will offer
(collectively, the "Securities") and how they will be offered at the time we
offer them, and we will describe them in one or more supplements to this
prospectus. This prospectus may not be used to offer and sell our securities
unless accompanied by a prospectus supplement. You should read this prospectus
and the related supplement before you invest in the Securities.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
NOR HAVE THESE ORGANIZATIONS DETERMINED THAT THIS
PROSPECTUS IS ACCURATE OR COMPLETE.
ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
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We will offer and sell the Securities through one or more
underwriters. We will set forth in the related prospectus supplement the name of
the underwriters, the discount or commission received by the underwriters from
us as compensation, our other expenses for the offering and sale of the
Securities, and the net proceeds we receive from the sale. See "Plan of
Distribution."
The date of this Prospectus is __________ __, 200_.
TABLE OF CONTENTS
About This Prospectus ....................................................2
Where You Can Find More Information.......................................3
Con Edison ..............................................................4
Use of Proceeds...........................................................4
Earnings Ratios...........................................................5
Additional Financial Information..........................................5
Description of Debt Securities............................................6
Description of Preferred Shares..........................................15
Description of Common Shares.............................................15
Plan of Distribution.....................................................17
Legal Matters............................................................17
Experts..................................................................18
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement for the Offered
Securities that we have filed with the Securities and Exchange Commission using
a "shelf" registration process. This prospectus provides you with a general
description of the Securities. We will provide you with a supplement to this
prospectus that will describe the specific terms of the Securities that we will
offer. The prospectus supplement may also add, update or change the information
contained in this prospectus. Before you invest, you should carefully read this
prospectus, the applicable prospectus supplement and the information contained
in the documents we refer to in this prospectus under "Where You Can Find More
Information."
References in this prospectus to the terms "we," "us" or other similar
terms mean Consolidated Edison, Inc., unless the context clearly indicates
otherwise. We are also referred to in this prospectus as Con Edison.
You should rely only on the information contained or incorporated by
reference in this prospectus and any accompanying prospectus supplement. We have
not authorized anyone else to provide you with any different information. If
anyone provides you with different or inconsistent information, you should not
rely on it. We are not making an offer to sell securities in any jurisdiction
where the offer or sale is not permitted. The information contained in this
prospectus is current only as of the date of this prospectus.
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WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other
information with the Securities and Exchange Commission. We file such reports,
proxy statements and other information through the Commission's Electronic Data
Gathering, Analysis and Retrieval system and these filings are publicly
available through the Commission's Web site (http://www.sec.gov). You may read
and copy such material at the public reference facilities maintained by the
Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549
and at its Midwest Regional Office, 175 W. Jackson Boulevard, Suite 900,
Chicago, Illinois 60604. You may also obtain copies of such material at
prescribed rates from the Public Reference Section of the Commission, 450 Fifth
Street, N.W., Washington, D.C. 20549. You may obtain information on the
operation of the Public Reference Section by calling the Commission at
1-800-SEC-0330.
The Commission allows us to "incorporate by reference" into this prospectus
the information we file with them. This means that we can disclose important
information to you by referring you to the documents containing the information.
The information we incorporate by reference is considered to be an important
part of this prospectus and should be read with the same care. Information that
we file later with the Commission that is incorporated by reference into this
prospectus will automatically update and supercede this information. We are
incorporating by reference into this prospectus the following Con Edison
documents that we have filed with the Commission and any subsequent filings we
make with the Commission under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 until the offering of the Debt Securities
described in this prospectus is completed, provided, however, that we are not
incorporating any information furnished under Item 9 of any Current Report on
Form 8-K:
o Annual Report on Form 10-K for the year ended December 31,
2001 ("2001 Form 10-K").
o Quarterly Reports on Form 10-Q for the quarterly periods
ended March 31, June 30 and September 30, 2002.
o Current Reports on Form 8-K, dated March 8, 2002, April 3,
2002, May 13, 2002 and August 12, 2002.
This prospectus is part of a registration statement we have filed with the
Commission relating to the Securities. As permitted by the Commission's rules,
this prospectus does not contain all of the information included in the
registration statement and the accompanying exhibits and schedules we file with
the Commission. You should read the registration statement and the exhibits and
schedules for more information about us and the Securities. The registration
statement, exhibits and schedules are also available at the Commission's Public
Reference Section or through its Web site.
You may obtain a free copy of our filings with the Commission by writing or
telephoning us at our principal executive offices: Corporate Secretary,
Consolidated Edison, Inc., 4 Irving Place, New York, New York 10003 (Telephone
No.: 212-460-6066).
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CON EDISON
Con Edison is a holding company that operates only through its
subsidiaries. We were incorporated in New York State in 1997.
Our principal subsidiary is Consolidated Edison Company of New York, Inc.
("Con Edison of New York"), a regulated utility that provides electric service
to over three million customers and gas service to over one million customers in
New York City and Westchester County. It also provides steam service in parts of
Manhattan.
We also own Orange and Rockland Utilities, Inc., a regulated utility that,
along with its regulated utility subsidiaries, provides electric service to over
278,000 customers and gas service to over 118,000 customers in southeastern New
York and in adjacent sections of New Jersey and northeastern Pennsylvania.
We have four unregulated subsidiaries: Consolidated Edison Solutions, Inc.,
a retail energy services company that sells electricity and gas to delivery
customers of utilities; Consolidated Edison Energy, Inc., a wholesale energy
supply company that enters into financial and commodity instruments as part of
its energy trading activities; Consolidated Edison Development, Inc., a company
that acquires, develops and operates generating projects; and Con Edison
Communications, LLC, a company that builds and operates fiber optic networks to
provide wholesale telecommunications services.
Con Edison has no material assets other than the stock of its subsidiaries.
Our ability to pay interest on the Debt Securities and dividends on the
Preferred Shares and Common Shares is dependent on our receipt of dividends from
our subsidiaries or proceeds from the sale by us of additional securities or
assets. Our principal subsidiary, Con Edison of New York, is subject to certain
restrictions on the dividends that it may pay to us. See Note B to Con Edison's
consolidated financial statements in the 2001 Form 10-K.
USE OF PROCEEDS
Unless we inform you otherwise in a supplement to this prospectus, we
anticipate using any net proceeds received by us from the sale of the Securities
for general corporate purposes, including, among others, repayment of short-term
debt, repurchase, retirement or refinancing of other debt securities and
increasing our investment in our subsidiaries.
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EARNINGS RATIOS
The following table sets forth Con Edison's ratio of earnings
to fixed charges and ratio of earnings to fixed charges and preferred stock
dividend requirements for the periods indicated:
Year Ended December 31,
Nine Months Ended -----------------------
September 30, 2001 2001 2000 1999 1998 1997
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Ratio of Earnings to
Fixed Charges: 3.59 3.49 3.10 4.04 4.29 4.09
Ratio of Earnings to
Fixed Charges
and Preferred Stock
Dividend Requirements: 3.43 3.33 2.95 3.82 3.98 3.79
The earnings ratios have been computed as follows: (i) "Earnings" have been
calculated based upon net income plus preferred stock dividends, income tax,
income tax deferred, investment tax credits deferred and fixed charges, (ii)
"Fixed Charges" include interest on long-term debt and other interest (whether
expensed or capitalized) expense, amortization of debt expense, discount and
premium, and a reasonable approximation of the interest component of rentals,
and (iii) "Preferred Stock Dividend Requirements" represent an amount equal to
the income, before income taxes, that would be required to meet dividends on
preferred and preference stock.
ADDITIONAL FINANCIAL INFORMATION
In June 2001, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 142, Goodwill and Other Intangible Assets
("SFAS No. 142"). SFAS No. 142 addresses the financial accounting and reporting
for (1) intangible assets acquired individually or with a group of other assets
(but not those acquired in a business combination) at acquisition and (2)
goodwill and other intangible assets subsequent to their acquisition. Con Edison
adopted SFAS No. 142 effective January 1, 2002.
The following table includes selected financial information for Con Edison
for the years indicated (which was previously included in Con Edison's Annual
Report on Form 10-K for the year ended December 31, 2001) and selected financial
information for Con Edison for the interim periods indicated. For the prior year
periods, the table also includes what income and earnings per share would have
been had Con Edison been accounting for goodwill in accordance with SFAS No. 142
during the prior year periods. The following should be read in conjunction with
Con Edison's Management's Discussion and Analysis of Financial Condition and
Results of Operations and Con Edison's financial statements and the related
notes thereto incorporated by reference in this prospectus.
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For the nine months
ended September 30, For the years ended December 31,
(Millions of Dollars) 2002 2001 2001 2000 1999 1998 1997
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Operating revenues $ 6,424.8 $7,501.7 $ 9,634.0 $ 9,431.4 $ 7,491.3 $ 7,093.0 $7,196.2
Purchased power 2,413.1 2,739.6 3,630.5 3,644.7 1,824.0 1,253.8 1,349.6
Fuel 194.8 341.1 393.8 350.8 430.1 579.0 596.8
Gas purchased for resale 425.8 724.0 860.0 789.1 485.2 437.3 552.6
Operating income 843.9 888.7 1,127.5 1,016.1 1,019.8 1,053.3 1,035.3
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Net income for common stock
$527.7 $557.1 $682.2 $582.8 $700.6 $712.7 $694.5
Add back: goodwill amortization
(net of related tax benefit) - 8.3 11.0 11.9 5.5 - -
Add back: cumulative effect of
change in accounting principle 20.2 - - - - - -
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Adjusted net income $547.9 $565.4 $693.2 $594.7 $706.1 $712.7 $694.5
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Total assets $18,203.7 $17,037.3 $16,996.1 $16,767.2 $15,531.5 $14,381.4 $14,722.5
Long-term debt 5,945.6 5,508.5 5,501.2 5,415.4 4,524.6 4,050.1 4,188.9
Preferred stock subject to
mandatory redemption - 37.1 37.1 37.1 37.1 37.1 84.6
Common shareholders' equity 5,898.0 5,662.1 5,666.3 5,472.4 5,412.0 6,025.6 5,930.1
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Basic earnings per share $2.48 $2.63 $3.22 $2.75 $3.14 $3.04 $2.95
Add back: goodwill amortization
(net of related tax benefit) - 0.04 0.05 0.06 0.02 - -
Add back: cumulative effect of
change in accounting principle 0.10 - - - - - -
Adjusted basic earnings per share $2.58 $2.67 $3.27 $2.81 $3.16 $3.04 $2.95
Diluted earnings per share $2.47 $2.62 $3.21 $2.74 $3.13 $3.04 $2.95
Add back: goodwill amortization
(net of related tax benefit) - 0.04 0.05 0.06 0.02 - -
Add back: cumulative effect of
change in accounting principle 0.10 - - - - - -
Adjusted basic earnings per share $2.57 $2.66 $3.26 $2.80 $3.15 $3.04 $2.95
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Cash dividends per common share $1.665 $1.65 $2.20 $2.18 $2.14 $2.12 $2.10
Average common shares outstanding
(millions) 212.8 212.1 212.1 212.2 223.4 234.3 235.1
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DESCRIPTION OF DEBT SECURITIES
The Debt Securities are to be issued under an indenture (the
"Indenture"), dated as of April 1, 2002 between Con Edison and JPMorgan Chase
Bank (formerly known as The Chase Manhattan Bank), as Trustee ("Trustee"), a
copy of which is included as an exhibit to the registration statement of which
this prospectus is a part. Con Edison may also enter into one or more additional
indentures with other trustees with respect to certain of the Debt Securities.
Any such indenture would contain covenants and other provisions similar to those
described below. Reference is made to the prospectus supplement regarding any
additional indentures under which Debt Securities will be issued.
The Debt Securities will be unsecured general obligations of
Con Edison ranking equally and ratably in right of payment with the other
unsecured debt securities of Con Edison issued under the Indenture that are not
subordinated obligations of Con Edison ("Subordinated Securities"); provided,
however, that if so provided in the prospectus supplement relating to a series
of Debt Securities, the Debt Securities will be Subordinated Securities.
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There is no requirement that future issues of debt securities
of Con Edison be issued under the Indenture, and Con Edison will be free to
employ other indentures or documentation, containing provisions different from
those included in the Indenture or applicable to one or more issues of Debt
Securities, in connection with future issues of such other debt securities.
The Indenture does not specifically restrict the ability of
Con Edison to engage in transactions which could have the effect of increasing
the ratio of debt to equity capitalization of Con Edison or a successor
corporation. For example, the Indenture does not limit the amount of
indebtedness of Con Edison, the payment of dividends by Con Edison or the
acquisition by Con Edison of any of the equity securities of Con Edison or Con
Edison of New York. The Indenture also permits Con Edison to merge or
consolidate or to transfer its assets, subject to certain conditions (see
"Consolidation, Merger and Sale" below). Con Edison must obtain approvals from
state and/or federal regulatory bodies to merge or consolidate.
The following summary of the Indenture does not purport to be
complete and is subject to, and qualified in its entirety by reference to, the
Indenture, including the definitions therein of certain terms.
General: The Indenture provides that the Debt Securities
offered and other unsecured debt securities of Con Edison, without limitation as
to aggregate principal amount (collectively the "Indenture Securities"), may be
issued in one or more series, in each case as authorized from time to time by
Con Edison.
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Reference is made to the prospectus supplement relating to the
Debt Securities offered for the following terms:
(1) the title of the Debt Securities;
(2) the aggregate principal amount of the Debt Securities;
(3) the percentage of the principal amount representing the price
for which the Debt Securities shall be issued;
(4) the date or dates on which the principal of, and premium, if
any, on the Debt Securities shall be payable;
(5) the rate or rates (which may be fixed or variable) at which
the Debt Securities shall bear interest, if any, or the method
by which such rate or rates shall be determined;
(6) if the amount of payments of the principal of, premium, if
any, or interest, if any, on the Debt Securities may be
determined with reference to an index, formula or other
method, the manner in which such amounts shall be determined;
(7) the date or dates from which any such interest shall accrue,
or the method by which such date or dates shall be determined,
the dates on which any such interest shall be payable and any
record dates therefor;
(8) the place or places where the principal of, and premium, if
any, and interest, if any, on the Debt Securities shall
be payable;
(9) the period or periods, if any, within which, the price or
prices at which, and the terms and conditions upon which the
Debt Securities may be redeemed, in whole or in part, at the
option of Con Edison;
(10) the obligation, if any, of Con Edison to redeem, purchase or
repay the Debt Securities pursuant to any sinking fund or
analogous provision or at the option of a holder thereof and
the period or periods within which, the price or prices at
which, and the terms and conditions upon which the Debt
Securities shall be redeemed, purchased or repaid pursuant to
such obligation;
(11) whether the Debt Securities are to be issued in whole or in
part in the form of one or more Global Securities and, if so,
the identity of the Depositary for such Global Security or
Global Securities;
(12) if other than $1,000 or an integral multiple thereof, the
denominations in which the Debt Securities shall be issued;
(13) if other than the principal amount thereof, the portion of the
principal amount of the Debt Securities payable upon
declaration of acceleration of the maturity of the Debt
Securities;
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(14) any deletions from or modifications of or additions to the
Events of Default set forth in Section 6.01 of the
Indenture pertaining to the Debt Securities;
(15) the provisions, if any, relating to the cancellation and
satisfaction of the Indenture with respect to the Debt
Securities prior to the maturity thereof pursuant to Sections
12.01 and 12.02 of the Indenture (see "Satisfaction and
Discharge of Indenture; Defeasance");
(16) the terms, if any, upon which Con Edison may elect not to
pay interest on an interest payment date;
(17) the provisions, if any, relating to the subordination of the
Debt Securities pursuant to Article 15 of the Indenture
(see "Subordination"); and
(18) any other terms of the Debt Securities not inconsistent with
the provisions of the Indenture and not adversely affecting
the rights of any other series of Indenture Securities then
outstanding. (Section 2.03)
Con Edison may authorize the issuance and provide for the
terms of a series of Indenture Securities pursuant to a resolution of its Board
of Directors or any duly authorized committee thereof or pursuant to a
supplemental indenture. The provisions of the Indenture described above permit
Con Edison, in addition to issuing Indenture Securities with terms different
from those of Indenture Securities previously issued, to "reopen" a previous
issue of a series of Indenture Securities and to issue additional Indenture
Securities of such series.
The Indenture Securities will be issued only in registered
form without coupons and, unless otherwise provided with respect to a series of
Indenture Securities, in denominations of $1,000 and integral multiples thereof.
(Section 2.02) Indenture Securities of a series may be issued in whole or in
part in the form of one or more Global Securities (see "Global Securities").One
or more Global Securities will be issued in a denomination or aggregate
denominations equal to the aggregate principal amount of outstanding Indenture
Securities of the series to be represented by such Global Security or Global
Securities. (Section 2.01) No service charge will be made for any transfer or
exchange of Indenture Securities, but Con Edison may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. (Section 2.05)
One or more series of the Indenture Securities may be issued
with the same or various maturities at par or at a discount. Debt Securities
bearing no interest or interest at a rate which at the time of issuance is below
the market rate ("Original Issue Discount Securities") will be sold at a
discount (which may be substantial) below their stated principal amount. Federal
income tax consequences and other special considerations applicable to any such
Original Issue Discount Securities will be described in the prospectus
supplement relating thereto.
Subordination: If the prospectus supplement relating to a
particular series of Indenture Securities so provides, such securities will be
Subordinated Securities and the payment of the principal of, premium, if any,
and interest on the Subordinated Securities will be subordinate and junior in
right of payment to the prior payment in full of all Senior Indebtedness to the
extent set forth in the next paragraph. (Section 14.01)
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In the event (a) of any distribution of assets of Con Edison
in bankruptcy, reorganization or receivership proceedings, or upon an assignment
for the benefit of creditors, or any other marshalling of assets and liabilities
of Con Edison, except for a distribution in connection with a consolidation,
merger, sale, transfer or lease permitted under the Indenture (see
"Consolidation, Merger and Sale"), or (b) the principal of any Senior
Indebtedness shall have been declared due and payable by reason of an event of
default with respect thereto and such event of default shall not have been
rescinded, then the holders of Subordinated Securities will not be entitled to
receive or retain any payment, or distribution of assets of Con Edison, in
respect of the principal of, premium, if any, and interest on the Subordinated
Securities until the holders of all Senior Indebtedness receive payment of the
full amount due in respect of the principal of, premium, if any, and interest on
the Senior Indebtedness or provision for such payment on the Senior Indebtedness
shall have been made. (Section 14.02)
Subject to the payment in full of all Senior Indebtedness, the
holders of the Subordinated Securities shall be subrogated to the rights of the
holders of the Senior Indebtedness to receive payments or distributions
applicable to the Senior Indebtedness until all amounts owing on the
Subordinated Securities shall be paid in full. (Section 14.03)
"Senior Indebtedness" means all indebtedness of Con Edison for
the repayment of money borrowed (whether or not represented by bonds,
debentures, notes or other securities) other than the indebtedness evidenced by
the Subordinated Securities and any indebtedness subordinated to, or
subordinated on parity with, the Subordinated Securities. "Senior Indebtedness"
does not include customer deposits or other amounts securing obligations of
others to Con Edison. (Section 14.01)
The Indenture does not limit the aggregate amount of Senior
Indebtedness that Con Edison may issue. As of September 30, 2002, $445 million
of Senior Indebtedness was outstanding, not including as "Senior Indebtedness"
approximately $1 billion of guarantees by Con Edison of certain obligations of
its subsidiaries.
Redemption: If the prospectus supplement relating to a
particular series of Indenture Securities so provides, such securities will be
subject to redemption at the option of Con Edison. Notice of any redemption of
Indenture Securities shall be given to the registered holders of such securities
not less than 30 days nor more than 60 days prior to the date fixed for
redemption. If less than all of a series of Indenture Securities are to be
redeemed, the Trustee shall select, in such manner as in its sole discretion it
shall deem appropriate and fair, the Indenture Securities of such series or
portions thereof to be redeemed.
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Global Securities: The Indenture Securities of a series may be
issued in whole or in part in the form of one or more Global Securities that
will be deposited with, or on behalf of, the Depositary identified in the
prospectus supplement relating thereto. Unless and until it is exchanged in
whole or in part for Indenture Securities in definitive form, a Global Security
may not be transferred except as a whole by the Depositary for such Global
Security to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary or a nominee of such successor
Depositary. (Sections 2.01 and 2.05)
The specific terms of the depositary arrangement with respect
to any Indenture Securities of a series will be described in the prospectus
supplement relating thereto. Con Edison anticipates that the following
provisions will apply to all depositary arrangements.
Upon the issuance of a Global Security, the Depositary for
such Global Security will credit, on its book entry registration and transfer
system, the respective principal amounts of the Indenture Securities represented
by such Global Security to the accounts of institutions that have accounts with
such Depositary ("participants"). The accounts to be credited shall be
designated by the underwriters through which such Indenture Securities were
sold. Ownership of beneficial interests in a Global Security will be limited to
participants or persons that may hold interests through participants. Ownership
of beneficial interests in such Global Security will be shown on, and the
transfer of that ownership will be effected only through, records maintained by
the Depositary for such Global Security or by participants or persons that hold
through participants. The laws of some states require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to transfer beneficial interests in
a Global Security.
So long as the Depositary for a Global Security, or its
nominee, is the owner of such Global Security, such Depositary or such nominee,
as the case may be, will be considered the sole owner or holder of the Indenture
Securities represented by such Global Security for all purposes under the
Indenture. Except as set forth below, owners of beneficial interests in a Global
Security will not be entitled to have Indenture Securities of the series
represented by such Global Security registered in their names, will not receive
or be entitled to receive physical delivery of Indenture Securities of such
series in definitive form and will not be considered the owners or holders
thereof under the Indenture.
-11-
Payments of principal of, premium, if any, and interest, if
any, on Indenture Securities registered in the name of or held by a Depositary
or its nominee will be made to the Depositary or its nominee, as the case may
be, as the registered owner of the Global Security representing such Indenture
Securities. None of Con Edison, the Trustee or any paying agent for such
Indenture Securities will have any responsibility or liability for any aspect of
the records relating to, or payments made on account of, beneficial ownership
interests in a Global Security for such Indenture Securities or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
Con Edison expects that the Depositary for Indenture
Securities of a series, upon receipt of any payment of principal, premium, if
any, or interest, if any, in respect of a Global Security will immediately
credit participants' accounts with payments in amounts proportionate to their
respective beneficial interests in the principal amount of such Global Security
as shown on the records of such Depositary. Con Edison also expects that
payments by participants to owners of beneficial interests in such Global
Security held through such participants will be governed by standing
instructions and customary practices, as is now the case with securities
registered in "street name," and will be the responsibility of such
participants.
If a Depositary for Indenture Securities of a series is at any
time unwilling or unable to continue as Depositary and a successor depositary is
not appointed by Con Edison within 90 days, Con Edison will issue Indenture
Securities of such series in definitive form in exchange for the Global Security
or Global Securities representing the Indenture Securities of such series. In
addition, Con Edison may at any time and in its sole discretion determine not to
have any Indenture Securities of a series represented by one or more Global
Securities and, in such event, will issue Indenture Securities of such series in
definitive form in exchange for the Global Security or Global Securities
representing such Indenture Securities. Further, if Con Edison so specifies with
respect to the Indenture Securities of a series, each person specified by the
Depositary of the Global Security representing Indenture Securities of such
series may, on terms acceptable to Con Edison and the Depositary for such Global
Security, receive Indenture Securities of the series in definitive form. In any
such instance, each person so specified by the Depositary of the Global Security
will be entitled to physical delivery in definitive form of Indenture Securities
of the series represented by such Global Security equal in principal amount to
such person's beneficial interest in the Global Security.
Payments and Paying Agents: Payment of principal of and
premium, if any, on Indenture Securities will be made against surrender of such
Indenture Securities at The Bank of New York, Stock Transfer Administration, 385
Rifle Camp Road, West Patterson, NJ 07424. Unless otherwise indicated in the
prospectus supplement, payment of any installment of interest on Indenture
Securities will be made to the person in whose name such Indenture Security is
registered at the close of business on the record date for such interest. Unless
otherwise indicated in the prospectus supplement, payments of such interest will
be made at The Bank of New York, or by a check mailed to each holder of an
Indenture Security at such holder's registered address.
-12-
All moneys paid by Con Edison to a paying agent for the
payment of principal of, premium, if any, or interest, if any, on any Indenture
Security that remain unclaimed at the end of two years after such principal,
premium or interest shall have become due and payable will be repaid to Con
Edison and the holder of such Indenture Security entitled to receive such
payment will thereafter look only to Con Edison for payment thereof. (Section
12.05) However, any such payment shall be subject to escheat pursuant to state
abandoned property laws.
Consolidation, Merger and Sale: The Indenture permits Con
Edison, without the consent of the holders of any of the Indenture Securities,
to consolidate with or merge into any other corporation or sell, transfer or
lease its properties as an entirety or substantially as an entirety to any
person, provided that: (i) the Successor is a corporation organized under the
laws of the United States of America or any state thereof; (ii) the Successor
assumes Con Edison's obligations under the Indenture and the Indenture
Securities; (iii) immediately after giving effect to the transaction, no Event
of Default (see "Default and Certain Rights on Default") and no event that,
after notice or lapse of time, or both, would become an Event of Default, shall
have occurred and be continuing; and (iv) certain other conditions are met.
(Section 11.02) The Indenture does not restrict the merger of another
corporation into Con Edison.
Modification of the Indenture: The Indenture contains
provisions permitting Con Edison and the Trustee, without the consent of the
holders of the Indenture Securities, to establish, among other things, the form
and terms of any series of Indenture Securities issuable thereunder by one or
more supplemental indentures, and, with the consent of the holders of a majority
in aggregate principal amount of the Indenture Securities of any series at the
time outstanding, evidenced as in the Indenture provided, to execute
supplemental indentures adding any provisions to or changing in any manner or
eliminating any of the provisions of the Indenture or of any supplemental
indenture with respect to Indenture Securities of such series, or modifying in
any manner the rights of the holders of the Indenture Securities of such series;
provided, however, that no such supplemental indenture shall (i) extend the
fixed maturity, or the earlier optional date of maturity, if any, of any
Indenture Security of a particular series or reduce the principal amount thereof
or the premium thereon, if any, or reduce the rate or extend the time of payment
of interest thereon, or make the principal thereof or premium, if any, or
interest thereon payable in any coin or currency other than that provided in the
Indenture Security, without the consent of the holder of each Indenture Security
so affected, or (ii) reduce the principal amount of Indenture Securities of any
series, the holders of which are required to consent to any such supplemental
indenture, without the consent of the holders of all Indenture Securities of
such series outstanding thereunder. (Sections 10.01 and 10.02)
-13-
Default and Certain Rights on Default: The Indenture provides
that the Trustee or the holders of 25% or more in aggregate principal amount of
Indenture Securities of a series outstanding thereunder may declare the
principal of all Indenture Securities of such series to be due and payable
immediately, if any Event of Default with respect to such series of Indenture
Securities shall occur and be continuing. However, if all defaults with respect
to Indenture Securities of such series (other than non-payment of accelerated
principal) are cured, the holders of a majority in aggregate principal amount of
the Indenture Securities of such series outstanding thereunder may waive the
default and rescind the declaration and its consequences. Events of Default with
respect to a series of Indenture Securities include (unless specifically deleted
in the supplemental indenture or Board Resolution under which such series of
Indenture Securities is issued, or modified in any such supplemental indenture):
(i) failure to pay interest when due on any Indenture Security of
such series, continued for 30 days;
(ii) failure to pay principal or premium, if any, when due on any
Indenture Security of such series;
(iii) failure to perform any other covenant of Con Edison in the
Indenture or the Indenture Securities of such series (other
than a covenant included in the Indenture or the Indenture
Securities solely for the benefit of series of Indenture
Securities other than such series), continued for 60 days
after written notice from the Trustee or the holders of 25% or
more in aggregate principal amount of the Indenture Securities
of such series outstanding thereunder;
(iv) certain events of bankruptcy, insolvency or reorganization;
and
(v) any other Event of Default as may be specified for such
series. (Section 6.01)
The Indenture provides that the holders of a majority in
aggregate principal amount of the Indenture Securities of any series outstanding
thereunder may, subject to certain exceptions, direct the time, method and place
of conducting any proceeding for any remedy available to, or exercising any
power or trust conferred upon, the Trustee with respect to Indenture Securities
of such series and may on behalf of all holders of Indenture Securities of such
series waive any past default and its consequences with respect to Indenture
Securities of such series, except a default in the payment of the principal of
or premium, if any, or interest on any of the Indenture Securities of such
series. (Section 6.06)
Holders of Indenture Securities of any series may not
institute any proceeding to enforce the Indenture unless the Trustee thereunder
shall have refused or neglected to act for 60 days after a request and offer of
satisfactory indemnity by the holders of 25% or more in aggregate principal
amount of the Indenture Securities of such series outstanding thereunder, but
the right of any holder of Indenture Securities of any series to enforce payment
of principal of or premium, if any, or interest on the holder's Indenture
Securities when due shall not be impaired. (Section 6.04)
-14-
The Trustee is required to give the holders of Indenture
Securities of any series notice of defaults with respect to such series (Events
of Default summarized above, exclusive of any grace period and irrespective of
any requirement that notice of default be given) as to which it has received
written notice within 90 days after the happening thereof, unless cured before
the giving of such notice, but, except for defaults in payments of principal of,
premium, if any, or interest on the Indenture Securities of such series, the
Trustee may withhold notice if and so long as it determines in good faith that
the withholding of such notice is in the interests of such holders. (Section
6.07)
Con Edison is required to deliver to the Trustee each year an
Officers' Certificate stating whether such officers have obtained knowledge of
any default by Con Edison in the performance of certain covenants and, if so,
specifying the nature thereof. (Section 4.06)
Concerning the Trustee: The Indenture provides that the
Trustee shall, prior to the occurrence of any Event of Default with respect to
the Indenture Securities of any series and after the curing or waiving of all
Events of Default with respect to such series which have occurred, perform only
such duties as are specifically set forth in the Indenture and no implied
covenants or obligations shall be read into the Indenture against the Trustee.
During the existence of any Event of Default with respect to the Indenture
Securities of any series, the Trustee shall exercise such of the rights and
powers vested in it under the Indenture with respect to such series and use the
same degree of care and skill in their exercise as a prudent man would exercise
or use under the circumstances in the conduct of his own affairs. (Section 7.01)
-15-
The Trustee may acquire and hold Indenture Securities and,
subject to certain conditions, otherwise deal with Con Edison as if it were not
Trustee under the Indenture. (Section 7.04)
JPMorgan Chase Bank, which is the Trustee under the Indenture,
is a participating bank under Con Edison's revolving credit agreements, and is a
depository for funds and performs other services for, and transacts other
banking business with, Con Edison in the normal course of business.
Satisfaction and Discharge of Indenture; Defeasance: The
Indenture may be discharged upon payment of the principal of, premium, if any,
and interest on all the Indenture Securities and all other sums due under the
Indenture. In addition, the Indenture provides that if, at any time after the
date of the Indenture, Con Edison, if so permitted with respect to Indenture
Securities of a particular series, shall deposit with the Trustee, in trust for
the benefit of the holders thereof, (i) funds sufficient to pay, or (ii) such
amount of obligations issued or guaranteed by the United States of America as
will, or will together with the income thereon without consideration of any
reinvestment thereof, be sufficient to pay all sums due for principal of,
premium, if any, and interest on the Indenture Securities of such series, as
they shall become due from time to time, and certain other conditions are met,
the Trustee shall cancel and satisfy the Indenture with respect to such series
to the extent provided therein. (Sections 12.01 and 12.02) The prospectus
supplement describing the Indenture Securities of such series will more fully
describe the provisions, if any, relating to such cancellation and satisfaction
of the Indenture with respect to such series.
Reports Furnished Securityholders: Con Edison will furnish the
holders of Indenture Securities copies of all annual financial reports
distributed to its stockholders generally as soon as practicable after the
mailing of such material to the stockholders. (Section 4.07)
-16-
DESCRIPTION OF PREFERRED SHARES
Con Edison's authorized capital stock includes 6,000,000 Preferred Shares,
of which no shares have been issued. Con Edison's Board of Directors is
authorized from time to time to issue the Preferred Shares as Preferred Shares
of any series and, in connection with the creation of each such series, to fix
by the resolution or resolutions providing for the issuance thereof the number
of shares of such series and the designations, relative rights, preferences and
limitations (including dividend, liquidation and voting rights, preferences and
limitations) of such series to the full extent permitted by the law of the State
of New York, except that holders of the Preferred Shares shall not be entitled
to more than one vote for each Preferred Share held. Reference is made to the
prospectus supplement relating to the series of Preferred Shares offered for the
number of shares, designations, relative rights, preferences and limitations of
such series.
DESCRIPTION OF COMMON SHARES
Con Edison's authorized capital stock consists of 500,000,000 Common
Shares, of which 213,485,279 shares were issued and outstanding as of September
30, 2002, and the Preferred Shares discussed above under "Description of
Preferred Shares."
The following description of the Common Shares does not purport to
be complete and is subject to, and qualified in its entirety by reference to Con
Edison's Restated Certificate of Incorporation.
Dividends. Subject to any prior rights of Preferred
Shares (if any should become outstanding), Common Shares
are entitled to dividends when, as and if declared by Con Edison's Board of
Directors, and Con Edison may purchase or otherwise acquire outstanding Common
Shares out of funds legally available therefor.
Liquidation Rights. Subject to any prior rights of
Preferred Shares (if any should become outstanding), upon liquidation of Con
Edison, any remaining net assets of Con Edison are distributable pro rata to
the holders of Common Shares.
Voting Rights. Holders of Common Shares are entitled to
one vote for each share. There are no cumulative voting rights. Holders of
Preferred Shares shall have no voting rights unless, in connection with the
issuance of Preferred Shares, Con Edison's Board of Directors provides voting
rights (in which event the voting rights shall not be more than one vote for
each Preferred Share held) or unless otherwise required by law.
No Preemptive Rights. Holders of the Common Shares are
not entitled to preemptive rights.
Transfer Agent and Registrar. The transfer agent and
registrar for the Common Shares is The Bank of New York Investor Relations
Department, P.O. Box 11258, Church Street Station, New York, NY 10286-1258.
-17-
Certain provisions of Con Edison's Restated Certificate of
Incorporation and by-laws and New York law may have the effect of encouraging
persons considering unsolicited tender offers or unilateral takeover proposals
for Con Edison to negotiate with the Board of Directors and could thereby have
an effect of delaying, deferring or preventing a change in control of Con
Edison. These provisions include:
Authorized But Unissued Shares. As of September 30, 2002, 286,514,721
Common Shares and 6,000,000 Preferred Shares were authorized but unissued. Such
shares could be issued without stockholder approval in transactions that might
prevent or render more difficult or costly the completion of a takeover
transaction. In this regard, Con Edison's Restated Certificate of Incorporation
grants the Board of Directors, broad corporate power to establish the rights and
preferences of preferred stock, one or more classes or series of which could be
issued which would entitle holders to exercise rights which could have the
effect of impeding a takeover, including rights to convert or exchange the stock
into Common Shares or other securities or to demand redemption of the stock at a
specified price under prescribed circumstances related to a change of control.
Advance Notice By-law. Under Con Edison's by-laws, written notice of
any proposal to be presented by any stockholder or any person to be nominated by
any stockholder for election as a director must be received by Con Edison's
Secretary at Con Edison's principal executive offices not less than 70 nor more
than 90 days prior to the anniversary of the preceding year's annual meeting;
provided, however, that if the date of the annual meeting as first publicly
announced or disclosed (in a public filing or otherwise) is less than 80 days
prior to the date of the meeting, such notice shall be given not more than ten
days after such date is first so announced or disclosed.
Section 912. Con Edison is subject to Section 912 of the New York
Business Corporation Law. Accordingly, Con Edison may not engage in a business
combination, such as a merger, consolidation, recapitalization, asset sale or
disposition of stock, with any "interested shareholder" for a period of five
years from the date that the interested shareholder first became an interested
shareholder unless:
o the business combination, or the acquisition of stock that resulted in
the interested shareholder first becoming an interested shareholder,
was approved by Con Edison's Board of Directors prior to the interested
shareholder becoming an interested shareholder;
o the business combination is approved by the disinterested shareholders
at a meeting of Con Edison's shareholders called no earlier than five
years after the date that the interested shareholder first became an
interested shareholder; or
o the business combination meets certain "fair price" valuation
requirements.
An "interested shareholder" is any person that is the beneficial
owner of 20% or more of the outstanding voting stock of Con Edison or is an
affiliate or associate of Con Edison that at any time during the prior five
years was the beneficial owner, directly or indirectly, of 20% or more of the
then outstanding voting stock of Con Edison.
-18-
PLAN OF DISTRIBUTION
Con Edison will offer the Securities through one or more
underwriters. The names of the managing underwriter or underwriters and any
other underwriters, and the terms of the transaction, including compensation of
the underwriters and dealers, if any, will be set forth in the prospectus
supplement relating to the offering of the Securities. Only underwriters named
in a prospectus supplement will be deemed to be underwriters in connection with
the Securities described therein. Firms not so named will have no direct or
indirect participation in the underwriting of such Securities, although such a
firm may participate in the distribution of such Securities under circumstances
entitling it to a dealer's commission. It is anticipated that any underwriting
agreement pertaining to any Securities will (1) entitle the underwriters to
indemnification by Con Edison against certain civil liabilities under the
Securities Act of 1933, as amended, or to contribution for payments the
underwriters may be required to make in respect thereof, (2) provide that the
obligations of the underwriters will be subject to certain conditions precedent,
and (3) provide that the underwriters generally will be obligated to purchase
all such Securities if any are purchased. The underwriters or affiliated
companies may engage in transactions with, or perform services for, Con Edison
and its affiliates in the ordinary course of business.
In connection with an offering made hereby, the underwriters
may purchase and sell the Securities in the open market. These transactions may
include over-allotment and stabilizing transactions and purchases to cover short
positions created by the underwriters in connection with an offering.
Stabilizing transactions consist of certain bids or purchases for the purpose of
preventing or delaying a decline in the market price of the Securities, and
short positions created by the underwriters involve the sale by the underwriters
of more Securities than they are required to purchase from Con Edison. The
underwriters also may impose a penalty bid, whereby selling concessions allowed
to broker-dealers in respect of the Securities sold in the offering may be
reclaimed by the underwriters if such Securities are repurchased by the
underwriters in stabilizing or covering transactions. These activities may
stabilize, maintain or otherwise affect the market price of the Securities,
which may be higher than the price that might otherwise prevail in the open
market; and these activities, if commenced, may be discontinued at any time.
These transactions may be affected in the over-the-counter market or otherwise.
The anticipated date of delivery of the Securities will be as
set forth in the prospectus supplement relating to the offering of the
Securities.
LEGAL MATTERS
The validity of the Securities and certain other related legal
matters will be passed upon for Con Edison by Peter A. Irwin, Esq., Vice
President - Legal Services of Con Edison's principal subsidiary, Con Edison of
New York, acting as counsel for Con Edison. Certain legal matters in connection
with the Debt Securities will be passed upon for the underwriters by Dewey
Ballantine LLP, 1301 Avenue of the Americas, New York, New York 10019-6092.
Dewey Ballantine LLP has from time to time performed legal services for
affiliates of Con Edison.
-19-
EXPERTS
The consolidated financial statements incorporated in this
prospectus by reference to Con Edison 's Annual Report on Form 10-K for the year
ended December 31, 2001, have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
-20-
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Expenses payable by Registrant for the sale of the Securities
are estimated as follows:
Securities and Exchange Commission
registration fee..................................................... $46,000
Printing costs......................................................... 40,000
Services of independent accountants.................................... 80,000
Fees and expenses of Trustee .......................................... 40,000
Rating agency fees .................................................... 200,000
Stock exchange listing fees ........................................... 50,000
Miscellaneous.......................................................... 44,000
Total ...............................................................$500,000
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Item 15. Indemnification of Directors and Officers.
Reference is made to Sections 721 to 725 of the New York Business
Corporation Law ("NYBCL") which provide for indemnification of directors and
officers, subject to certain limitations, for liabilities and expenses in
connection with actions or proceedings involving them in such capacity .
Pursuant to Section 721 of the NYBCL, no indemnification shall be made to or on
behalf of a director or officer if a judgment or other final adjudication
adverse to the director or officer establishes that his or her acts were
committed in bad faith or were the results of active and deliberate dishonesty
and were material to the cause of action so adjudicated, or that he or she
personally gained in fact a financial profit or other advantage to which he or
she was not legally entitled. Section 402(b) of the NYBCL permits a certificate
of incorporation to set forth a provision limiting or eliminating the personal
liability of directors to a corporation or its shareholders for damages for any
breach of duty in such capacity, provided that no such provision shall eliminate
or limit the liability of a director (i) if a judgment or other final
adjudication adverse to him or her establishes that his or her acts were in bad
faith or involved intentional misconduct or a knowing violation of law or (ii)
that he or she personally gained in fact a financial profit or other advantage
to which he or she was not legally entitled, or (iii) in certain other cases
specified in Section 719 of the NYBCL.
II-1
Article SIXTH of Registrant's Restated Certificate of Incorporation
provides that, except to the extent limitation of liability or indemnification
is not permitted by applicable law: (i) a director or officer of the Registrant
shall not be liable to the Registrant or any of its shareholders for damages for
any breach of duty in such capacity, and (ii) the Registrant shall fully
indemnify any person made, or threatened to be made a party to an action or
proceeding, whether civil or criminal, including an investigative,
administrative or legislative proceeding, and including an action by or in the
right of the Registrant or any other enterprise, by reason of the fact that the
person is or was a director or officer of the Registrant, or is or was serving
at the request of the Registrant any other enterprise as a director, officer or
in any other capacity, against any and all damages incurred as a result of or in
connection with such action or proceeding or any appeal thereof and, except in
the case of an action or proceeding specifically approved by the Board of
Directors of the Registrant, the Registrant shall pay expenses incurred by or on
behalf of such person in defending such action or proceeding or any appeal
thereof in advance of the final disposition thereof promptly upon receipt by the
Registrant, from time to time, of a written demand of the person for the
advancement, together with an undertaking by or on behalf of the person to repay
any expenses so advanced to the extent that the person is ultimately found not
to be entitled to indemnification for the expenses.
As permitted by Section 726 of the NYBCL, Registrant has insurance
(a) to indemnify Registrant for obligations it incurs for indemnification of its
directors and officers, and (b) to indemnify directors and officers of
Registrant for losses, costs and expenses incurred by them in actions brought
against them in connection with their acts as directors or officers for which
they are not indemnified by Registrant. Pursuant to Section 726 of the NYBCL, no
insurance payment, other than cost of defense, may be made to any director or
officer if a judgment or other final adjudication adverse to the director or
officer establishes that his or her acts of active and deliberate dishonesty
were material to the cause of action so adjudicated, or that he or she
personally gained in fact a financial profit or other advantage to which he or
she was not legally entitled. Registrant may also purchase insurance coverage
insuring the directors and officers of Registrant against certain liabilities
that could arise in connection with administration of Registrant's employee
benefit plans.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "Act"), may be permitted to directors, officers and
controlling persons of Registrant pursuant to the foregoing provisions, or
otherwise, Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by Registrant
of expenses incurred or paid by a director, officer or controlling person of
Registrant in the successful defense of any action, suit or proceeding) is
asserted against Registrant by such director, officer or controlling person in
connection with the securities being registered, Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-2
Section 6 of Registrant's Underwriting Agreement Basic Provisions, dated
October 25, 2001 (Exhibit 1.2 to this Registration Statement) provides for
indemnification of the Registrant's directors and officers who signed the
Registration Statement by the underwriters against certain liabilities which
might arise under the Act or otherwise from certain written information
furnished to Registrant by or on behalf of the underwriters.
Item 16. List of Exhibits.
See "Index to Exhibits" on page II- 5.
II-3
Item 17. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement: (i) to include any
prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) to
reflect in the prospectus any facts or events arising after the effective date
of the Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the effective
registration statement; and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the Registration
Statement; provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement;
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(3) to remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(h) See the penultimate paragraph of Item 15.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York and State of New York on the 19th day of
December, 2002.
Consolidated Edison, Inc.
By /s/ JOAN S. FREILICH
Joan S. Freilich
Executive Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Name Title
Eugene R. McGrath* Chairman of the Board of Directors,
President and Chief Executive Officer and
Director (Principal Executive Officer)
Joan S. Freilich* Executive Vice President and Chief
Financial Officer and Director
(Principal Financial Officer)
Edward J. Rasmussen* Vice President and Controller
(Principal Accounting Officer)
George Campbell, Jr.* Director
Vincent A. Calarco* Director
Gordon J. Davis* Director
Michael J. DelGiudice* Director
Ellen V. Futter* Director
Sally Hernandez-Pinero* Director
Peter W. Likins* Director
Frederic V. Salerno* Director
Richard A. Voell* Director
Stephen R. Volk* Director
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* Joan S. Freilich, pursuant to Powers of Attorney (executed by each of the
officers and Directors listed above, and filed as Exhibit 24 hereto), by signing
her name hereto does hereby sign and execute this Registration Statement on
behalf of each of the officers and Directors named above and indicated as
signing above in the capacities in which the name of each appears above.
/s/ JOAN S. FREILICH
December 19, 2002 Joan S. Freilich
INDEX TO EXHIBITS
EXHIBIT DESCRIPTION
1.1 - Form of Underwriting Agreement. (Incorporated by reference
to Exhibit 1.1 to Registration Statement No. 333-72264.)
1.2 - Underwriting Agreement Basic Provisions, dated October 25,
2001. (Incorporated by reference to Exhibit 1.2 to
Registration Statement No. 333-72264.)
4.1 - Indenture, dated as of April 1, 2002, between Consolidated
Edison, Inc. ("Con Edison ") and JPMorgan Chase Bank
(formerly known as The Chase Manhattan Bank), as Trustee.
4.2 - Restated Certificate of Incorporation of Con Edison.
(Incorporated by reference to Exhibit 3.1 to Registration
Statement No. 333-39165.)
5 - Opinion and consent of Peter A. Irwin, Esq.,
Vice President - Legal Services of Con Edison's
principal subsidiary, Con Edison of New York.
12.1 - Schedule of computation of ratio of earnings to fixed charges
for the years ended December 31, 2001, 2000, 1999,
1998 and 1997. (Incorporated by reference to Exhibit 12.1
to Con Edison's Annual Report on Form 10-K for the year
ended December 31, 2001 -- Commission File No. 1-14514.)
12.2 - Schedule of computation of ratio of earnings to fixed charges
for the nine and twelve month periods ended September
30, 2002. (Incorporated by reference to Exhibit 12.1 to
Con Edison's Quarterly Report on Form 10-Q for the quarter
ended September 30, 2002 -- Commission File No. 1-14514.)
12.3 Schedule of computation of ratio of earnings to fixed
charges and preferred stock dividend requirements for the nine
month period ended September 30, 2002 and the years ended
December 31, 2001, 2000, 1999, 1998, and 1997.
23.1 - Consent of PricewaterhouseCoopers LLP.
23.2 - Consent of Peter A. Irwin, Esq., Vice President - Legal
Services of Con Edison's principal subsidiary, Con Edison of
New York (included as part of Exhibit 5).
24 - Powers of Attorney.
25 - Form T-1 Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of JPMorgan Chase Bank
(formerly known as The Chase Manhattan Bank), as Trustee.
CONSOLIDATED EDISON, INC.
AND
JPMORGAN CHASE BANK,
Trustee
INDENTURE
Dated as of April 1, 2002
Providing for the Issuance of
Debt Securities
CROSS REFERENCE SHEET*
Between
Provisions of Trust Indenture Act of 1939,
As Amended.
and
Indenture dated as of April 1, 2002 between
Consolidated Edison, Inc.
and JPMorgan Chase Bank,
Trustee
Section of Act Section of Indenture
310 (a) (1) and (2) 4.04 and 7.08
310 (a) (3) and (4) Not Applicable
310 (b) 7.07 and 7.09(b)
310 (c) Not Applicable
311 (a) and (b) 7.12
311 (c) Not Applicable
312 (a) 5.01 and 5.02 (a)
312 (b) and (c) 5.02 (b) and (c)
313 (a) 5.04 (a)
313 (b) Not Applicable
313 (c) 5.04(a)
313 (d) 5.04(b)
314 (a) 5.03
314 (b) Not Applicable
314 (c) (1) and (2) 15.06
314 (c) (3) Not Applicable
314 (d) Not Applicable
314 (e) 15.06
314 (f) Not Applicable
315 (a), (c) and (d) 7.01
315 (b) 6.07
315 (e) 6.08
316 (a) (1) 6.06
316 (a) (2) Omitted
316 (a) last paragraph 8.04
316 (b) 6.04
317 (a) 6.02
317 (b) 4.05 and 7.05
318 (a) 15.07
* This Cross Reference Sheet is not part of the Indenture.
- i -
Page
TABLE OF CONTENTS*
PARTIES........................................................... 1
RECITALS......................................................... 1
ARTICLE ONE
Definitions
SECTION 1.01. Certain Terms Defined........................... 1
Board of Directors.............................. 1
Board Resolution................................ 2
Company......................................... 2
Company Order................................... 2
Corporation..................................... 2
Depositary...................................... 2
Event of Default................................ 2
Global Security................................. 2
Indenture....................................... 3
Interest........................................ 3
Interest Payment Date........................... 3
Officers' Certificate........................... 3
Opinion of Counsel.............................. 3
Original Issue Discount Security................ 3
Outstanding..................................... 3
Person.......................................... 4
Principal Office of the Company................. 4
Record Date..................................... 4
Registered Holder............................... 4
Responsible Officer............................. 5
Securityholder.................................. 5
Security Register............................... 5
Successor....................................... 5
Trustee......................................... 5
Trust Indenture Act of 1939..................... 5
Vice President.................................. 5
* The Table of Contents is not part of the Indenture.
- ii -
Page
ARTICLE TWO
Issue, Description, Execution, Exchange and
Registration of Transfer of Securities
SECTION 2.01. Authentication, Delivery and Dating............. 6
SECTION 2.02. Forms Generally................................. 7
SECTION 2.03. Amount; Terms of Series......................... 8
SECTION 2.04. Execution...................................... 10
SECTION 2.05. Exchange, Registration and Registration of Transfer 10
SECTION 2.06. Temporary Securities............................. 12
SECTION 2.07. Mutilated, Destroyed, Lost and Stolen Securities.. 13
SECTION 2.08. Cancellation of Surrendered Securities;
Destruction Thereof.............................. 13
SECTION 2.09. Extension of Interest Payment Period............. 14
ARTICLE THREE
Redemption of Securities and Sinking Funds
SECTION 3.01. Applicability of Right of Redemption............. 14
SECTION 3.02. Election to Redeem; Notice of Redemption;
Partial Redemption............................... 14
SECTION 3.03. Payment of Securities Called for Redemption...... 15
SECTION 3.04. Applicability of Sinking Fund.................... 16
SECTION 3.05. Satisfaction of Mandatory Sinking Fund Payments
with Securities.................................. 16
SECTION 3.06. Redemption of Securities for Sinking Funds....... 16
ARTICLE FOUR
Particular Covenants of the Company
SECTION 4.01. Payment of Principal, Premium, if any, and Interest 17
SECTION 4.02. Office or Agency for Certain Purposes.............. 17
SECTION 4.03. Maintenance of Corporate Existence................. 18
SECTION 4.04. Appointments to Fill Vacancies in Trustee's Office. 18
SECTION 4.05. Provisions as to Paying Agent...................... 18
SECTION 4.06. Annual Officers' Certificate to Trustee............ 19
SECTION 4.07. Reports to Be Furnished Securityholders............ 19
SECTION 4.08. Further Assurances................................. 19
ARTICLE FIVE
Securityholders' Lists, Communications to Securityholders,
and Reports by the Company and the Trustee
SECTION 5.01. Company to Furnish Trustee Information
as to Names and Addresses of Securityholders.. 19
SECTION 5.02. Preservation of Information;
Communications to Securityholders............. 20
- iii -
Page
SECTION 5.03. Reports by Company............................... 20
SECTION 5.04. Reports by Trustee............................... 20
ARTICLE SIX
Remedies of the Trustee and
Securityholders on Event of Default
SECTION 6.01. Events of Default Defined; Acceleration
of Maturity; Waiver of Default................. 21
SECTION 6.02. Collection of Indebtedness by Trustee;
Trustee May Prove Debt......................... 22
SECTION 6.03. Application of Proceeds.......................... 24
SECTION 6.04. Limitations on Suits by Securityholders.......... 24
SECTION 6.05. Powers and Remedies Cumulative; Delay or
Omission Not Waiver............................ 25
SECTION 6.06. Control by Securityholders; Waiver of Default.... 25
SECTION 6.07. Trustee to Give Notice of Defaults Known to It,
but May Withhold in Certain Circumstances...... 26
SECTION 6.08. Right of Court to Require Filing of Undertaking
to Pay Costs................................... 26
ARTICLE SEVEN
Concerning the Trustee
SECTION 7.01. Duties and Responsibilities of Trustee..............27
SECTION 7.02. Certain Rights of Trustee...........................28
SECTION 7.03. Trustee Not Responsible for Recitals, etc...........29
SECTION 7.04. Trustee and Others May Hold Securities..............29
SECTION 7.05. Moneys Held by Trustee or Paying Agent..............29
SECTION 7.06. Compensation of Trustee and Its Lien................30
SECTION 7.07. Disqualification; Conflicting Interests.............30
SECTION 7.08. Persons Eligible for Appointment as Trustee........ 31
SECTION 7.09. Resignation and Removal of Trustee;
Appointment of Successor......................... 31
SECTION 7.10. Acceptance of Appointment by Successor Trustee..... 32
SECTION 7.11. Merger, Conversion or Consolidation of Trustee..... 33
SECTION 7.12. Preferential Collection of Claims Against Company.. 33
ARTICLE EIGHT
Concerning the Securityholders
SECTION 8.01. Evidence of Action Taken by Securityholders..........33
SECTION 8.02. Proof of Execution of Instruments and of
Holding of Securities..............................34
SECTION 8.03 Registered Holders of Securities May Be
Treated As Owners..................................34
SECTION 8.04. Securities Owned by Company Deemed Not Outstanding...34
SECTION 8.05. Right of Revocation of Action Taken..................35
- iv -
Page
ARTICLE NINE
Securityholders' Meetings
SECTION 9.01. Purposes for Which Securityholders' Meetings
May Be Called.................................... 35
SECTION 9.02. Call of Meetings by Trustee........................ 36
SECTION 9.03. Company and Securityholders May Call Meeting....... 36
SECTION 9.04. Persons Entitled to Vote at Meeting................ 36
SECTION 9.05. Determination of Voting Rights; Conduct and
Adjournment of Meeting........................... 36
SECTION 9.06. Counting Vote and Recording Action of Meeting...... 37
ARTICLE TEN
Supplemental Indentures
SECTION 10.01. Supplemental Indentures Without Consent
of Securityholders............................... 38
SECTION 10.02. Supplemental Indentures With Consent
of Securityholders............................... 39
SECTION 10.03. Effect of Supplemental Indentures.................. 40
SECTION 10.04. Notation on Securities in Respect of
Supplemental Indentures.......................... 40
SECTION 10.05. Opinion of Counsel to Be Given Trustee............. 40
ARTICLE ELEVEN
Consolidation, Merger and Sale
SECTION 11.01. Company May Consolidate or Merge, etc............. 41
SECTION 11.02. Conditions to Consolidation or Merger, etc........ 41
SECTION 11.03. Documents and Opinion to Be Furnished
to the Trustee................................... 41
ARTICLE TWELVE
Satisfaction and Discharge of Indenture;
Defeasance; Unclaimed Moneys
SECTION 12.01. Satisfaction and Discharge of Indenture......... 42
SECTION 12.02. Defeasance...................................... 42
SECTION 12.03. Application by Trustee of Funds Deposited for
Payment of Securities.......................... 43
SECTION 12.04. Repayment of Moneys Held by Paying Agent......... 43
SECTION 12.05. Return of Unclaimed Moneys....................... 43
ARTICLE THIRTEEN
Immunity of Incorporators, Stockholders,
Officers and Directors
SECTION 13.01. Personal Immunity from Liability of Incorporators,
Stockholders, etc.................... 44
- v -
Page
ARTICLE FOURTEEN
Subordination
SECTION 14.01. Securities Subordinated to Senior Debt............. 44
SECTION 14.02. Events of Subordination............................ 44
SECTION 14.03. Subrogation........................................ 46
SECTION 14.04. Obligation of Company Unconditional................ 46
SECTION 14.05. Payments on Subordinated Securities Permitted...... 46
SECTION 14.06. Effectuation of Subordination by Trustee........... 47
SECTION 14.07. Knowledge of Trustee............................... 47
SECTION 14.08. Trustee's Relation to Senior Indebtedness.......... 47
SECTION 14.09. Rights of Holders of Senior Indebtedness
Not Impaired..................................... 48
ARTICLE FIFTEEN
Miscellaneous Provisions
SECTION 15.01. Successors....................................... 48
SECTION 15.02. Benefits of Indenture Restricted to Parties
and Securityholders............................ 48
SECTION 15.03. Payments Due on Sundays and Holidays............. 48
SECTION 15.04. Notices and Demands on Company and Trustee....... 48
SECTION 15.05. Law of New York to Govern........................ 49
SECTION 15.06. Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein............ 49
SECTION 15.07. Conflict of any Provision of Indenture with Trust
Indenture Act of 1939......................... 49
SECTION 15.08. Counterparts..................................... 49
SECTION 15.09. Severability..................................... 49
TESTIMONIUM........................................................ 50
SIGNATURES AND SEALS............................................... 50
ACKNOWLEDGMENTS.................................................... 51
THIS INDENTURE, dated as of April 1, 2002, between
CONSOLIDATED EDISON, INC., a corporation organized and existing under the laws
of the State of New York (herein called the "Company"), and JPMORGAN CHASE BANK,
a banking corporation organized and existing under the laws of the State of New
York (herein called the "Trustee"):
WHEREAS, the Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance in one or more series
from time to time of its unsecured debentures, notes or other evidences of
indebtedness (hereinafter called the "Securities") and to provide the general
terms and conditions upon which the Securities are to be authenticated, issued
and delivered;
WHEREAS, the Trustee has power to enter into this Indenture
and to accept and execute the trusts herein created; and
WHEREAS, the Company represents that all acts and things
necessary to make the Securities, when executed by the Company and authenticated
and delivered by the Trustee as in this Indenture provided, and duly issued by
the Company, the valid, binding and legal obligations of the Company will, at
the time of such execution, authentication and delivery, have been done and
performed; that all acts and things necessary to constitute these presents a
valid indenture and agreement according to its terms have been done and
performed; that the execution of this Indenture by the Company has in all
respects been duly authorized; and that the issue hereunder of the Securities
will, at the time of the issue thereof, have in all respects been duly
authorized; and the Company, in the exercise of each and every legal right and
power in it vested, executes this Indenture and proposes to make, execute, issue
and deliver the Securities;
NOW, THEREFORE:
In consideration of the premises, of the purchase and
acceptance of the Securities by the holders thereof and of the sum of $1 duly
paid by the Trustee at the execution of these presents, the receipt whereof is
hereby acknowledged, the Company covenants and agrees with the Trustee, for the
equal and proportionate benefit of the respective holders from time to time of
the Securities or of any series thereof, as follows:
ARTICLE ONE
Definitions
SECTION 1.01. Certain Terms Defined. The following terms
(except as herein otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section. All other
terms used in this Indenture which are defined (either directly or by reference)
in the Trust Indenture Act of 1939 (except as herein otherwise expressly
provided or unless the context otherwise requires) shall have the meanings so
assigned to such terms.
Board of Directors:
- ------------------
The term "Board of Directors" shall mean the Board of
Directors of the Company or any duly authorized committee of such Board.
- 2 -
Board Resolution:
- ------------------
The term "Board Resolution" means a copy of a resolution or
resolutions certified by the Secretary or an Assistant Secretary of the Company
to have been duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
Company:
- -------
The term "Company" shall mean the person named as the Company
in the first paragraph of this instrument until a successor corporation shall
have become such pursuant to Article Eleven of this Indenture, and thereafter
"Company" shall mean such successor corporation.
Company Order:
- -------------
The term "Company Order" shall mean the written order, request
or instruction of the Company signed on behalf of the Company by its Chairman of
the Board, Vice Chairman, President or a Vice President and by its Treasurer or
an Assistant Treasurer or its Secretary or an Assistant Secretary.
Corporation:
- -----------
The term "corporation" shall mean any corporation, voluntary
association, joint stock company, business trust, limited liability company or
other similar organization.
Depositary:
- ----------
The term "Depositary" shall mean, with respect to the
Securities of any series issuable or issued in whole or in part in the form of
one or more Global Securities, the person designated as Depositary by the
Company pursuant to Section 2.03 until a successor Depositary shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Depositary" shall mean or include each person who is then a Depositary
hereunder, and if at any time there is more than one such person, "Depositary"
as used with respect to the Securities of any such series shall mean the
Depositary with respect to the Securities of that series.
Event of Default:
- ----------------
The term "Event of Default" shall mean any event specified in
Section 6.01, continued for the period of time, if any, and after the giving of
the notice, if any, therein designated.
Global Security:
- ---------------
The term "Global Security" shall mean a Security evidencing
all or part of a series of Securities issued to a Depositary for such series in
accordance with Section 2.01.
- 3 -
Indenture:
- ---------
The term "Indenture" shall mean this instrument as originally
executed or as it may from time to time be supplemented and amended by one or
more indentures supplemental hereto pursuant to Article Ten hereof and shall
include the form and terms of particular series of Securities established as
contemplated in Section 2.03.
Interest:
- --------
The term "interest", when used with respect to an Original
Issue Discount Security which by its terms bears interest only after maturity,
shall mean interest payable after maturity.
Interest Payment Date:
- ---------------------
The term "interest payment date" when used with respect to any
Security or any installment of interest thereon shall mean the date specified in
such Security as the fixed date on which such installment of interest is due and
payable.
Officers' Certificate:
- ---------------------
The term "Officers' Certificate" shall mean a certificate
signed by the Chairman of the Board, Vice Chairman, President or any Vice
President and by the Treasurer or an Assistant Treasurer or the Secretary or an
Assistant Secretary of the Company.
Opinion of Counsel:
- ------------------
The term "Opinion of Counsel" shall mean an opinion in writing
signed by legal counsel, who may be an employee of or of counsel to the Company.
Original Issue Discount Security:
- --------------------------------
The term "Original Issue Discount Security" shall mean (i) any
Security that provides for an amount less than the principal thereof to be due
and payable upon a declaration of acceleration of the maturity thereof pursuant
to Section 6.01; and (ii) any other Security which is issued as "original issue
discount" within the meaning of Section 1273(a) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder.
Outstanding:
- -----------
The term "outstanding", when used with reference to
Securities, shall, subject to the provisions of Section 8.04, mean, as of any
particular time, all Securities theretofore authenticated and delivered by the
Trustee under this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
- 4 -
(b) Securities or portions thereof for the payment or
redemption of which moneys, or as provided in Section 12.02 hereof,
direct obligations of the United States of America, in the necessary
amount shall have been deposited in trust with the Trustee or with any
paying agent (other than the Company) or shall have been set aside and
segregated in trust by the Company (if the Company shall act as its own
paying agent), provided that if such Securities are to be redeemed
prior to the maturity thereof, notice of such redemption shall have
been given as in Article Three provided, or provision satisfactory to
the Trustee shall have been made for giving such notice); and
(c) Securities which have been paid pursuant to Section 2.07
or in exchange for or in lieu of which other Securities shall have been
authenticated and delivered pursuant to Section 2.07;
provided, however, that in determining whether the holders of the requisite
principal amount of Outstanding Securities have taken any action, given any
request, demand, authorization, direction, notice, consent or waiver hereunder
or whether a quorum is present at a meeting of Securityholders, the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the maturity
thereof pursuant to Section 6.01.
Person:
- ------
The term "person" shall mean an individual, a corporation, a
partnership, a trust, an unincorporated organization or a government or any
agency or political subdivision thereof.
Principal Office of the Company:
- -------------------------------
The term "principal office of the Company" shall mean the
principal office of the Company as shall be specified from time to time in a
Company Order delivered to the Trustee. Any such Company Order may specify a
principal office of the Company for one or more purposes under this Indenture
and such Company Order or one or more other Company Orders may specify one or
more other principal offices of the Company for one or more other purposes under
this Indenture.
Record Date:
- -----------
The term "record date" shall mean, with respect to any
interest payable on any Security on any interest payment date, the close of
business on the date specified in such Security or, in the case of defaulted
interest, the close of business on any subsequent record date established as
provided in Section 2.02 (in each case whether or not such day is a business
day).
Registered Holder:
- -----------------
The term "registered holder", "Securityholder", "holder" or
other similar term shall mean the person or persons in whose name or names a
particular Security shall be registered upon the Security Register.
- 5 -
Responsible Officer:
- -------------------
The term "responsible officer", when used with respect to the
Trustee, shall mean any officer of the Trustee assigned by the Trustee to
administer its corporate trust matters 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.
Securityholder:
- --------------
The term "Securityholder" shall have the meaning specified
under the term "registered holder".
Security Register:
- -----------------
The term "Security Register" shall have the meaning specified
in Section 2.05.
Successor:
- ---------
The term "Successor" shall have the meaning specified in
Section 11.02.
Trustee:
- -------
The term "Trustee" shall mean the person named as Trustee in
the first paragraph of this instrument and, subject to the provisions of Article
Seven of this Indenture, shall also include its successors and assigns, and if
at any time there is more than one trustee, "Trustee" as used with respect to
the Securities of any series shall mean the trustee with respect to Securities
of that series.
Trust Indenture Act of 1939:
- ---------------------------
The term "Trust Indenture Act of 1939" shall mean the Trust
Indenture Act of 1939 as in force at the date as of which this instrument was
executed, except as provided in Section 10.02; provided, however, that in the
event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
Vice President:
- --------------
The term "Vice President", when used with respect to the
Company, shall mean any Vice President, any Senior Vice President, any Executive
Vice President and any Senior Executive Vice President of the Company.
- 6 -
ARTICLE TWO
Issue, Description, Execution, Exchange and
Registration of Transfer of Securities
SECTION 2.01. Authentication, Delivery and Dating. At any time
and from time to time after the execution and delivery of this instrument, the
Company may deliver Securities of any series executed by the Company to the
Trustee for authentication. The Trustee shall thereupon authenticate and deliver
such Securities upon receipt of, and pursuant to, a Company Order, without any
further action by the Company. In authenticating such Securities, and accepting
the additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to Section
7.01) shall be fully protected in relying upon:
(a) a Board Resolution relating thereto and, if applicable, an
appropriate record of any action taken pursuant to such resolution,
certified by the Secretary or an Assistant Secretary of the Company;
(b) an executed supplemental indenture, if any;
(c) an Officers' Certificate, dated the date such
Officers' Certificate is delivered to the Trustee, prepared
in accordance with Section 15.06; and
(d) an Opinion of Counsel prepared in accordance with
Section 15.06, which shall also state:
(1) that the form and terms of such Securities have
been established by or pursuant to one or more Board
Resolutions, by a supplemental indenture as permitted by
Section 10.01(e), or by both such resolution or resolutions
and such supplemental indenture, in conformity with the
provisions of this Indenture;
(2) that the supplemental indenture, if any, when
executed and delivered by the Company and the Trustee, will
constitute a valid and legally binding obligation of the
Company; and
(3) that such Securities, when authenticated and
delivered by the Trustee and issued by the Company in the
manner and subject to any conditions specified in such Opinion
of Counsel, will constitute valid and legally binding
obligations of the Company, enforceable in accordance with
their terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general
applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles.
The Trustee shall have the right to decline to authenticate
and deliver any Securities under this Section if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
- 7 -
If the Company shall establish pursuant to Section 2.03 that
the Securities of a series are to be issued in whole or in part in the form of
one or more Global Securities, then the Company shall execute and the Trustee
upon receipt of, and pursuant to, a Company Order, shall, in accordance with
this Section, authenticate and deliver one or more Global Securities that (i)
shall represent and shall be denominated in an amount equal to the aggregate
principal amount of the Outstanding Securities of such series to be represented
by one or more Global Securities, (ii) shall be registered in the name of the
Depositary for such Global Security or Global Securities or the nominee of such
Depositary, and (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instruction.
Each Depositary designated pursuant to Section 2.03 for a
Global Security must, at the time of its designation and at all times while it
serves as Depositary, be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, and any other applicable statute or
regulation.
Each Security shall be dated the date of its authentication.
Notwithstanding the provisions of this Section and Section
2.03, if all Securities of a series are not to be originally issued at one time,
it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 2.03 or the Company Order, Board Resolution,
Officers' Certificate and Opinion of Counsel otherwise required pursuant to this
Section at or prior to the time of authentication of each Security of such
series if such documents are delivered at or prior to the authentication upon
original issuance of the first Security of such series to be issued. After any
such first delivery, any separate request by the Company that the Trustee
authenticate Securities of such series for original issue will be deemed to be a
certificate by the Company that all conditions precedent provided for in this
Indenture relating to the authentication and delivery of such Securities
continue to have been compiled with.
SECTION 2.02. Forms Generally. The Securities of each series
shall be issuable in registered form without coupons and shall be in
substantially the form as shall be established by or pursuant to one or more
Board Resolutions or in one or more indentures supplemental hereto, in each case
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification or designation and such legends or
endorsements printed, lithographed or engraved thereon as the officers of the
Company executing the same may approve (execution thereof to be conclusive
evidence of such approval) and as are not inconsistent with the provisions of
this Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which the Securities may be listed, or to conform to usage. The
Securities shall be issued, except as otherwise provided with respect to any
series of Securities pursuant to Section 2.03, in the denomination of $1,000 and
any larger denomination which is an integral multiple of $1,000 approved by the
Company, such approval to be evidenced by the execution thereof.
The person in whose name any Security is registered at the
close of business on any record date with respect to any interest payment date
shall be entitled to receive the interest payable on such interest payment date,
notwithstanding the cancellation of such Security upon any transfer or exchange
subsequent to such record date and prior to such interest payment date, unless
such Security is redeemed on a date fixed for redemption after such record date
and prior
- 8 -
to such interest payment date; provided, however, that if and to the
extent the Company shall fail to pay on any interest payment date the interest
due on such date, such defaulted interest shall be paid to the persons in whose
names outstanding Securities are registered at the close of business on the
tenth day preceding the date of payment of such defaulted interest or, at the
election of the Company, to the persons in whose names outstanding Securities
are registered on a subsequent record date established by notice given by mail
by or on behalf of the Company to the holders of such Securities not less than
10 days preceding such subsequent record date, which subsequent record date
shall precede by at least 10 days the date of payment of such defaulted
interest. Such notice shall be given to the persons in whose names such
outstanding Securities are registered at the close of business on the fifth
business day next preceding the date of the mailing of such notice.
Except as otherwise provided with respect to any series of
Securities pursuant to Section 2.03, interest on the Securities of each series
shall be computed on the basis of a 360-day year consisting of twelve 30-day
months.
The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
The Trustee's certificate of authentication on all Securities
shall be in substantially the following form:
This is one of the Securities of the series
designated herein issued under the Indenture described herein.
JPMORGAN CHASE BANK,
as Trustee
By________________________________
Authorized Officer
SECTION 2.03. Amount; Terms of Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is not limited.
The Securities may be issued in one or more series. There
shall be established by or pursuant to one or more Board Resolutions, and set
forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series:
(a) the title of the Securities of the series (which shall
distinguish the Securities of the series from the Securities of all
other series, except to the extent that additional Securities of an
existing series are being issued);
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(b) any limit upon the aggregate principal amount of the
Securities of the series which may be outstanding under this Indenture
(except as otherwise provided in Section 2.07);
(c) the date or dates on which the principal of and
premium, if any, on the Securities of the series is payable;
(d) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method by which such rate or rates
shall be determined, the date or dates from which such interest shall
accrue, or the method by which such date or dates shall be determined,
the interest payment dates on which any such interest shall be payable
and the record dates for the determination of holders to whom interest
of any interest payment date is payable and the basis of computation of
interest (if other than as provided in Section 2.02);
(e) if the amount of payments of the principal of, premium, if
any, or interest, if any, on the Securities of the series may be
determined with reference to an index, formula, or other method, the
manner in which such amounts shall be determined;
(f) the place or places where the principal of, premium,
if any, and interest on Securities of the series shall
be payable;
(g) the price or prices at which, the period or periods within
which and the terms and conditions upon which Securities of the series
may be redeemed, in whole or in part, at the option of the Company;
(h) the obligation, if any, of the Company to redeem, purchase
or repay Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a holder thereof and the price
or prices at which, the period or periods within which and the terms
and conditions upon which Securities of the series shall be redeemed,
purchased or repaid, in whole or in part, pursuant to such obligation;
(i) whether the Securities of the series shall be issued in
whole or in part in the form of one or more Global Securities and, in
such case, the Depositary for such Global Security or Global
Securities;
(j) if other than the principal amount thereof, the portion of
the principal amount of any Securities which shall be payable upon
declaration of acceleration of maturity thereof pursuant to Section
6.01 or provable in bankruptcy pursuant to Section 6.02;
(k) if other than denomination of $1,000 or any integral
multiple thereof, the denominations in which Securities of the
series shall be issuable;
(l) if the provisions of Section 12.02 are to apply to
the Securities of the series, a statement indicating the same;
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(m) if the provisions of Section 2.09 are to apply to
the Securities of the series, the terms upon which the Company may
elect to not pay interest on an interest payment date;
(n) if the provisions of Article Fourteen are to apply
to the Securities of the series, a statement indicating the same; and
(o) any other terms of the Securities of the series, including
additional covenants of the Company and specific deletions in the
Events of Default applicable to the series from those set forth in
Section 6.01 (which terms shall not be inconsistent with the provisions
of this Indenture or adversely affect the rights of the holders of any
other series of Securities then outstanding).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided by
or pursuant to any such Board Resolution, and set forth in such Officers'
Certificate, or in any such indenture supplemental hereto.
SECTION 2.04. Execution. The Securities shall be signed on
behalf of the Company by the Chairman or President or any Vice President and by
the Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary of the Company, under its corporate seal. Such signatures may be
manual or facsimile signatures of the present or any future such authorized
officers and may be imprinted or otherwise reproduced on the Securities. The
seal of the Company may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted or otherwise reproduced on the Securities.
Only such Securities as shall bear thereon a certificate of
authentication substantially in the form hereinbefore recited, executed by the
Trustee, shall be entitled to the benefits of this Indenture or be valid or
obligatory for any purpose. Such certificate by the Trustee upon any Security
executed by the Company shall be conclusive evidence that the Security so
authenticated has been duly authenticated and delivered hereunder.
In case any officer of the Company who shall have signed any
of the Securities either manually or by facsimile signature shall cease to be
such officer before the Securities so signed shall have been authenticated and
delivered by the Trustee, or disposed of by the Company, such Securities
nevertheless may be authenticated and delivered or disposed of as though the
person who signed such Securities had not ceased to be such officer of the
Company; and any Security may be signed on behalf of the Company by such person
as, at the actual date of the execution of such Security, shall be one of the
proper officers of the Company, although at the date of the execution of this
Indenture any such person was not such officer.
SECTION 2.05. Exchange, Registration and Registration of
Transfer. The Company shall keep, at the office or agency to be maintained by
the Company in accordance with Section 4.02, a register or registers (herein
sometimes referred to collectively as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of each series of the Securities and for the registration
of transfers of Securities of each series as in this Article provided. The
Security Register shall be in written form or convertible into written form
without unreasonable delay, and shall be open for inspection by the Trustee at
all reasonable times. Subject to the provisions of the last paragraph
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of this Section 2.05, upon surrender for registration of transfer of any
Security of any series at the office or agency maintained in accordance with
Section 4.02, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of the same series and of like tenor, in any authorized
denominations and of a like aggregate principal amount and maturity.
At the option of the holder thereof, Securities of any series
(except a Global Security) may be exchanged for other Securities of the same
series and of like tenor, of any authorized denominations and of a like
aggregate principal amount and maturity, upon surrender of the Securities to be
exchanged at the office or agency maintained in accordance with Section 4.02.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the holder making the exchange is entitled to receive.
Notwithstanding any other provision of this Section, unless
and until it is exchanged in whole or in part for Securities in definitive form,
a Global Security representing all or a portion of the Securities of a series
may not be transferred except as a whole by the Depositary for such series to a
nominee of such Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or any such nominee
to a successor Depositary for such series or a nominee of such successor
Depositary.
If at any time the Depositary for the Securities of a series
notifies the Company that it is unwilling or unable to continue as Depositary
for the Securities of such series or if at any time the Depositary for the
Securities of such series shall no longer be eligible under Section 2.01, the
Company shall appoint a successor Depositary with respect to the Securities of
such series. If a successor Depositary for the Securities of such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such ineligibility, the Company's election pursuant to
Section 2.03(i) shall no longer be effective with respect to the Securities of
such series and the Company will execute, and the Trustee, upon receipt of, and
pursuant to a Company Order will authenticate and deliver Securities of such
series in definitive form in an aggregate principal amount equal to the
principal amount of the Global Security or Global Securities representing such
series in exchange for such Global Security or Global Securities.
The Company may at any time in its sole discretion determine
that the Securities of any series issued in the form of one or more Global
Securities shall no longer be represented by such Global Security or Global
Securities. In such event the Company will execute, and the Trustee, upon
receipt of, and pursuant to, a Company Order will authenticate and deliver
Securities of such series in definitive form and in aggregate principal amount
equal to the principal amount of the Global Security or Global Securities
representing such series in exchange for such Global Security or Global
Securities.
If specified by the Company pursuant to Section 2.03 with
respect to a series of Securities, the Depositary for such series of Securities
may surrender a Global Security for such series of Securities in exchange in
whole or in part for Securities of such series in definitive form on such terms
as are acceptable to the Company and such Depositary. Thereupon, the Company
shall execute, and the Trustee shall authenticate and deliver, without service
charge,
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(i) to each person specified by such Depositary a new
Security or Securities of the same series, in definitive form,
of any authorized denomination as requested by such person in
aggregate principal amount equal to and in exchange for such
person's beneficial interest in the Global Security; and
(ii) to such Depositary a new Global Security in a
denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the
aggregate principal amount of Securities delivered to holders
thereof pursuant to the immediately preceding clause (i) of
this Section.
Upon exchange of a Global Security for Securities in
definitive form, such Global Security shall be cancelled by the Trustee.
Securities issued in exchange for a Global Security pursuant to this Section
shall be registered in such names and in such authorized denominations as the
Depositary for such Global Security shall instruct the Trustee. The Trustee
shall deliver such Securities to the persons in whose names such Securities are
so registered.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration or transfer or exchange.
All Securities presented or surrendered for registration of
transfer, exchange or payment shall (if so required by the Company or the
Trustee) be duly endorsed by, or be accompanied by a written instrument or
instruments of transfer, in form satisfactory to the Company and the Trustee,
duly executed by the registered holder or by his attorney duly authorized in
writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto.
The Company shall not be required (a) to issue, register the
transfer of or exchange Securities of any series for a period of 15 days next
preceding any selection of Securities of such series to be redeemed, or (b) to
register the transfer of or exchange any Security or portion thereof called or
selected for redemption.
SECTION 2.06. Temporary Securities. Pending the preparation of
definitive Securities of any series, the Company may execute and the Trustee
shall authenticate and deliver temporary Securities of such series (printed,
lithographed or typewritten) of any authorized denomination, and substantially
in the form of the definitive Securities of such series, but with such omission,
insertions and variations as may be appropriate for temporary Securities, all as
may be determined by the Company. Temporary Securities may be issued without a
recital of specific redemption prices and may contain such reference to any
provisions of this Indenture as may be appropriate. Every temporary Security
shall be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive
Securities of such series. Without unnecessary delay the Company will execute
and will furnish definitive Securities of each series and thereupon any or all
temporary Securities of such series
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may be surrendered in exchange therefor, at the principal office of the Company,
and, subject to Section 2.05 hereof, the Company shall execute and the Trustee
shall authenticate and deliver in exchange for such temporary Securities an
equal aggregate principal amount of definitive Securities of such series of
authorized denominations. Until so exchanged, the temporary Securities shall be
entitled to the same benefits under this Indenture, and shall be subject to the
same provisions hereof (except as provided in this Section), as definitive
Securities of such series authenticated and delivered hereunder.
SECTION 2.07. Mutilated, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security shall become mutilated
or be destroyed, lost or stolen, the Company in the case of a mutilated Security
shall, and in the case of a destroyed, lost or stolen Security in its discretion
may, execute, and upon the Company's request the Trustee shall authenticate and
deliver, a new Security of the same series and bearing a number not
contemporaneously outstanding, in exchange and in substitution for the mutilated
Security, or in lieu of and in substitution for the Security so destroyed, lost
or stolen. The applicant for a substitute Security shall first furnish to the
Company and to the Trustee such security or indemnity as may be required by them
to save each of them harmless, and, in every case of destruction, loss or theft,
the applicant shall also first furnish to the Company and to the Trustee
evidence to their satisfaction of the destruction, loss or theft of such
Security and of the ownership thereof. The Trustee may authenticate any such
substitute Security and deliver the same upon the written request or
authorization of the Company. Upon the issue of any substitute Security, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses connected therewith. If any Security that has become, or is about to
become, due and payable is mutilated, or is destroyed, lost or stolen, the
Company may, instead of issuing a substitute Security, pay or authorize the
payment of the same (without surrender thereof except in the case of a mutilated
Security) if the applicant for such payment shall furnish to the Company and to
the Trustee such security or indemnity as they may require to save each of them
harmless, and, in case of destruction, loss or theft, evidence to the
satisfaction of the Company and the Trustee of the destruction, loss or theft of
such Security and of the ownership thereof.
Every substitute Security issued pursuant to this Section
shall constitute an additional contractual obligation of the Company, whether or
not the destroyed, lost or stolen Security shall be found at any time, and shall
be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of the same series duly issued hereunder. All
Securities shall be held and owned upon the express condition that the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities, and shall preclude any and all
other rights or remedies, notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
SECTION 2.08. Cancellation of Surrendered Securities;
Destruction Thereof. All Securities surrendered for the purpose of payment,
redemption, exchange or registration of transfer or for credit against any
sinking fund payment, shall, if surrendered to the Company or any paying agent,
promptly be delivered to the Trustee for cancellation, or, if surrendered to the
Trustee, shall be cancelled by it, and no Securities shall be issued in lieu
thereof except as expressly permitted by any of the provisions of this
Indenture. Upon the request of the Company, the Trustee shall deliver to the
Company cancelled Securities held by the Trustee, or, in the absence of such
request, the Trustee shall dispose of same in accordance with its standard
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procedures and deliver a certificate of such disposition to the Company. If the
Company shall acquire any of the Securities, however, such acquisition shall not
operate as a satisfaction of the indebtedness represented by such Securities
unless and until the same are surrendered to the Trustee for cancellation.
SECTION 2.09. Extension of Interest Payment Period. With
respect to Securities of any series as to which, pursuant to Section 2.03(m), it
has been established that this Section 2.09 applies, subject to such terms as
may be established pursuant to Section 2.03(m), the Company may at any time and
from time to time, so long as the Company is not in default in the payment of
interest on such Securities as and when the same shall become due and payable,
elect to not pay interest on an interest payment date, and such election shall
not be an Event of Default with respect to the Securities of any series.
ARTICLE THREE
Redemption of Securities and Sinking Funds
SECTION 3.01. Applicability of Right of Redemption. Redemption
of Securities (other than pursuant to a sinking fund or analogous provision)
permitted by the terms of any series of Securities shall be made in accordance
with such terms and Sections 3.02 and 3.03; provided, however, that if any such
terms of a series of Securities shall conflict with any provision of this
Article, the terms of such series shall govern.
SECTION 3.02. Election to Redeem; Notice of Redemption;
Partial Redemption. The election of the Company to redeem any Securities of any
series shall be evidenced by or pursuant to a Board Resolution. In case the
Company shall desire to exercise such right to redeem all, or, as the case may
be, any part of the Securities of any series in accordance with the right
reserved so to do, it shall give notice of such redemption to holders of the
Securities to be redeemed as hereinafter in this Section provided.
Notice of redemption to the holders of Securities to be
redeemed as a whole or in part shall be given by mailing of a notice of such
redemption not less than 30 nor more than 60 days prior to the date fixed for
redemption to the registered holders of Securities to be redeemed in whole or in
part at their last addresses as they shall appear upon the Security Register.
Such mailing shall be by first-class mail postage prepaid. The notice if mailed
in the manner herein provided shall be conclusively presumed to have been duly
given whether or not the registered holder receives the notice. In any case, the
failure to give such notice by mail, or any defect in such notice, to the
registered holder of any Security designated for redemption in whole or in part
shall not affect the validity of the proceedings for redemption of any other
Security.
Each such notice of redemption shall specify the date fixed
for redemption and the price at which Securities are to be redeemed, shall state
that the conditions precedent to such redemption, if any, have occurred and
describe the same, and shall state that payment of the redemption price of the
Securities to be redeemed, together with accrued interest thereon to the date
fixed for redemption (except that if such redemption date is an interest payment
date, the interest due on such date with respect to a particular Security shall
be payable to the holder of such Security on the record date for such interest
payment date), will be made at the office or
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agency to be maintained by the Company in accordance with Section 4.02 upon
presentation and surrender of such Securities and that from and after said date
interest thereon will cease to accrue. If less than all the Securities of a
series are to be redeemed, the notice to each registered holder of Securities to
be redeemed shall identify such registered holder's Securities to be redeemed as
a whole or in part. In case any Security is to be redeemed in part only, the
notice which relates to such Securities shall state the portion of the principal
amount to be redeemed, and that on and after the redemption date, upon surrender
or such Security, a new Security or Securities of the same series in principal
amount equal to the unredeemed portion thereof will be issued.
To the extent that the Securities of any series have different terms, the
Company shall designate the Securities to be redeemed if less than all of the
series is to be redeemed. If less than all the Securities of a series having the
same terms are to be redeemed, the Company shall give the Trustee, not less than
45 days (or such lesser number of days as the Trustee shall approve) prior to
the date fixed by the Company for the redemption of Securities, written notice
of the aggregate amount of the Securities to be redeemed, and thereupon the
Trustee shall select, in such manner as in its sole discretion it shall deem
appropriate and fair, the Securities of such series or portions thereof to be
redeemed, and shall thereafter promptly notify the Company and any paying agent
in writing of the Securities of such series of portions thereof to be redeemed.
Unless otherwise provided in the terms of a particular series of Securities, the
portions of the principal of Securities so selected for partial redemption shall
be equal to the minimum authorized denomination of the Securities of such
series, or an integral multiple thereof, and the principal amount which remains
outstanding shall not be less than the minimum authorized denomination for
Securities of such series.
Any notice of redemption to be mailed by the Company pursuant
to this Section may be mailed, at the Company's direction, by the Trustee in the
name and at the expense of the Company.
SECTION 3.03. Payment of Securities Called for Redemption. If
notice of redemption shall have been given in the manner provided in Section
3.02, the Securities or portions of Securities specified in such notice shall
become due and payable on the date and at the place stated in such notice at the
applicable redemption price, together with interest accrued thereon to the date
fixed for redemption (except that if such redemption date is an interest payment
date the interest due on such date shall be payable to the holder of such
Security on the record date for such interest payment date), and on and after
such date of redemption (unless the Company shall default in the payment of such
Securities or portions thereof at the redemption price, together with interest
accrued thereon to the date fixed for redemption) interest on the Securities or
portions of Securities so called for redemption shall cease to accrue, and such
Securities and portions of Securities shall be deemed not to be outstanding
hereunder and shall not be entitled to any benefit under this Indenture except
to receive payment of the redemption price, together with accrued interest
thereon to the date fixed for redemption. On presentation and surrender of such
Securities on or after said date at said place of payment in said notice
specified, the said Securities or specified portions thereof shall be paid and
redeemed by the Company at the applicable redemption price, together (subject to
the right of the holder on the record date if such redemption date is an
interest payment date) with interest accrued thereon to the date fixed for
redemption.
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Upon presentation and surrender of any Security which is to be
redeemed in part only, the Company shall execute and the Trustee shall
authenticate and deliver to the holder thereof, at the expense of the Company, a
new Security or Securities of the same series of authorized denominations in
principal amount equal to the unredeemed portion of the Security so surrendered.
SECTION 3.04. Applicability of Sinking Fund. Redemption of
Securities permitted or required pursuant to a sinking fund for the retirement
of Securities of a series by the terms of such series of Securities shall be
made in accordance with such terms of such series of Securities and this
Article; provided, however, that if any such terms of a series of Securities
shall conflict with any provision of this Article, the terms of such series
shall govern.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for the by terms of Securities of any series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of Securities of
any series, the cash amount of any mandatory sinking fund payment may be subject
to reduction as provided in Section 3.05.
SECTION 3.05. Satisfaction of Mandatory Sinking Fund Payments
with Securities. Subject to Section 3.06, in lieu of making all or any part of
any mandatory sinking fund payment with respect to any Securities of a series in
cash, the Company may at its option (a) deliver to the Trustee Securities of
that series theretofore purchased or otherwise acquired by the Company, or (b)
receive credit for the principal amount of Securities of that series which have
been previously delivered to the Trustee by the Company or redeemed either at
the election of the Company pursuant to the terms of such Securities or through
the application of permitted optional sinking fund payments pursuant to the
terms of such Securities; provided that such Securities have not been previously
so credited. Such Securities shall be received and credited for such purpose by
the Trustee at the redemption price specified in such Securities for redemption
through operation of the sinking fund and the cash amount of such mandatory
sinking fund payment shall be reduced accordingly.
SECTION 3.06. Redemption of Securities for Sinking Funds. Not
less than 60 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee a Company Order specifying
the amount of the next ensuing sinking fund payment for that series pursuant to
the terms of that series, the portion thereof, if any, which is to be satisfied
by payment of cash and the portion thereof, if any, which is to be satisfied
through delivery and/or crediting of Securities of that series pursuant to
Section 3.05 (which Securities will, if not previously delivered, accompany such
Company Order) and whether the Company intends to exercise its right to make a
permitted optional sinking fund payment with respect to such series. Such
Company Order shall be irrevocable, and upon its delivery the Company shall be
obligated to make the cash payment or payments therein referred to, if any,
prior to such sinking fund payment date. In the case of the failure of the
Company to deliver such Company Order, the sinking fund payment due with respect
to the next sinking fund payment date for that series of Securities shall be
paid entirely in cash and shall be sufficient to redeem the principal amount of
such Securities subject to a mandatory sinking fund payment without the option
to deliver or credit Securities as provided in Section 3.05 and without the
right to make any optional sinking fund payment with respect to such series.
- 17 -
Any sinking fund payment or payments (mandatory or optional)
made in cash, plus any unused balance of any preceding sinking fund payments
made in cash, which shall equal or exceed $100,000 (or a lesser sum if the
Company shall so request) with respect to the Securities of any particular
series shall be applied by the Trustee, a paying agent or the Company, if it
acts as its own paying agent, on the sinking fund payment date next following
the date of such payment to the redemption of such Securities at the redemption
price specified in such Securities for operation of the sinking fund, together
with accrued interest to the sinking fund payment date. Any sinking fund moneys
not so applied or allocated to the redemption of Securities shall be added to
the next cash sinking fund payment received by the Trustee, such paying agent or
the Company for such series and, together with such payment, shall be applied in
accordance with the provisions of this Section. Any and all sinking fund moneys
with respect to the Securities of any particular series held by the Trustee,
such paying agent or the Company on the last sinking fund payment date with
respect to Securities of such series and not held for the payment or redemption
of particular Securities shall be applied by the Trustee, such paying agent or
the Company, together with other moneys, if necessary, to be deposited
sufficient for the purpose, to the payment of principal of such Securities at
maturity.
Not more than 60 days and not less than 45 days prior to each
sinking fund payment date the Trustee shall select the Securities to be redeemed
upon such sinking fund payment date in accordance with Section 3.02. The Company
shall cause notice of the redemption thereof to be given not less than 30 nor
more than 60 days prior to the sinking fund payment date in the manner provided
in Section 3.02, except that the notice of redemption shall also state that the
Securities of such series are being redeemed by operation of the sinking fund
and the sinking fund payment date. Such notice having been duly given, the
redemption of such Securities shall be made on the sinking fund payment date
upon the terms and in the manner stated in Section 3.03.
ARTICLE FOUR
Particular Covenants of the Company
SECTION 4.01. Payment of Principal, Premium, if any, and
Interest. The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay or cause to be paid the
principal of and premium, if any, and interest, if any, on each of the
Securities of that series at the times and places and in the manner provided
herein and in the Securities of that series.
SECTION 4.02. Office or Agency for Certain Purposes. The
Company will maintain an office or agency (or offices or agencies) where the
Securities may be presented for registration of transfer and exchange as in this
Indenture provided, and where notices and demands to or upon the Company in
respect of the Securities or of this Indenture may be served and where the
Securities may be presented for payment. The principal office of the Company
shall be such office or agency unless the Company shall maintain some other
office or agency for such purposes and shall give the Trustee and the registered
holders of the Securities written notice of the location thereof.
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SECTION 4.03. Maintenance of Corporate Existence. The Company
will preserve its corporate existence, but this covenant shall not require the
Company to continue its corporate existence in the event of a consolidation or
merger of the Company in accordance with the provisions of Article Eleven hereof
as a result of which the Company shall lose its corporate identity, or in the
event of a sale or conveyance of the property of the Company as an entirety or
substantially as an entirety in accordance with the provisions of said Article
Eleven.
SECTION 4.04. Appointments to Fill Vacancies in Trustee's
Office. The Company, whenever necessary to avoid or fill a vacancy in the office
of Trustee, will appoint, in the manner provided in Section 7.09, a Trustee, so
that there shall at all times be a Trustee hereunder.
SECTION 4.05. Provisions as to Paying Agent. (a) If the
Company shall act as its own paying agent with respect to any series of
Securities, it will, on or before each due date of the principal of or premium,
if any, or interest, if any, on the Securities of that series, set aside,
segregate and hold in trust for the benefit of the holders of such Securities or
of the Trustee, as the case may be, a sum sufficient to pay such principal or
premium, if any, or interest so becoming due and will notify the Trustee of any
failure to take such action and of any failure by the Company (or by any other
obligor on the Securities of that series) to make any payment of the principal
of or premium, if any, or interest on the Securities of such series when the
same shall be due and payable.
(b) Whenever the Company shall have one or more paying agents,
other than the Company, for any series of Securities, it will, on or before each
due date of the principal of or premium, if any, or interest, if any, on any
Securities of that series, deposit with a paying agent a sum sufficient to pay
the principal and premium, if any, or interest so becoming due, such sum to be
held in trust for the benefit of the holders of such Securities, and (unless
such paying agent is the Trustee) the Company will notify the Trustee of such
action or the failure to take such action.
(c) If the Company shall appoint a paying agent other than the
Trustee or the Company with respect to any series of Securities, it will cause
such paying agent to execute and deliver to the Trustee an instrument in which
such agent shall agree with the Trustee, subject to this Section that such agent
will:
(1) hold all sums held by it as such agent for the
payment of the principal of or premium, if any, or interest on the
Securities of such series (whether such sums have been paid to it by
the Company or by any other obligor on the Securities of such series)
in trust for the benefit of the holders of the Securities of such
series or of the Trustee, as the case may be;
(2) give the Trustee notice of any default by the
Company (or by any other obligor on the Securities of such series) in
the making of any payment of the principal of or premium, if any, or
interest on the Securities of such series when the same shall be due
and payable; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such paying agent.
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(d) Anything in this Section to the contrary notwithstanding,
the Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by it, or by any paying agent hereunder, as
required by this Section, such sums to be held by the Trustee upon the trusts
herein contained.
(e) Anything in this Section to the contrary notwithstanding,
the agreement to hold sums in trust as provided in this Section is subject to
Sections 12.04 and 12.05.
SECTION 4.06. Annual Officers' Certificate to Trustee. The
Company will deliver to the Trustee prior to November 1 in each year, an
Officers' Certificate stating that in the course of the performance by the
signers of their duties as officers of the Company they would normally obtain
knowledge of any default by the Company in the performance of any covenants
contained in Sections 4.03 and 11.02, stating whether or not they have obtained
knowledge of any such default and, if so, specifying each such default of which
the signers have knowledge and the nature thereof.
SECTION 4.07. Reports to Be Furnished Securityholders. The
Company will transmit or cause to be transmitted to the Securityholders, as soon
as practicable after the mailing of such material to its stockholders, copies of
all annual financial reports distributed to its stockholders generally. Reports
pursuant to this Section shall be transmitted by mail to all registered holders
of Securities, as the names and addresses of such holders appear upon the
Security Register.
SECTION 4.08. Further Assurances. From time to time whenever
reasonably demanded by the Trustee, the Company will make, execute and deliver
or cause to be made, executed and delivered any and all such further and other
instruments and assurances as may be reasonably necessary or proper to carry out
the intention or facilitate the performance of the terms of this Indenture.
ARTICLE FIVE
Securityholders' Lists, Communications to Securityholders,
and Reports by the Company and the Trustee
SECTION 5.01. Company to Furnish Trustee Information as
to Names and Addresses of Securityholders. The Company shall furnish or cause
to be furnished to the Trustee:
(a) on June 15 and December 15 in each year (beginning with
June 15, 2002), a list in such form as the Trustee may reasonably require of the
names and addresses of the holders of each series of Securities as of a date not
more than 15 days prior to the time such list is furnished, and
(b) at such other times as the Trustee may request in writing
within 30 days after receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished, provided that, if and so long as the Trustee is the sole
Security registrar, no such list need be furnished.
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SECTION 5.02. Preservation of Information; Communications to
Securityholders. (a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the holders of each series of
Securities received by it in the capacity of Security registrar and the names
and addresses of holders of each series of Securities contained in the most
recent list furnished to it under Section 5.01. The Trustee may destroy any such
list upon receipt of a new list so furnished.
(b) The rights of Securityholders to communicate with other
Securityholders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the Trustee, shall be
as provided by the Trust Indenture Act of 1939.
(c) Each and every holder of Securities, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any paying agent or other agent of either of them
shall be held accountable by reason of the disclosure of any such information as
to the names and addresses of the holders of Securities made pursuant to the
Trust Indenture Act of 1939, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made pursuant to the Trust
Indenture Act of 1939.
SECTION 5.03. Reports by Company. The Company shall file with
the Trustee and the Securities and Exchange Commission, and transmit to
Securityholders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act of
1939 at the times and in the manner provided pursuant to such Act; provided that
any such information, documents or reports required to be filed with said
Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended, shall be filed with the Trustee within 15 days after the same
is so required to be filed with said Commission. Delivery of any information,
documents and reports by the Company to the Trustee pursuant to the provisions
of this Section 5.03 is for informational purposes only and the Trustee's
receipt of same shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
SECTION 5.04. Reports by Trustee. (a) The Trustee shall
transmit to Securityholders such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust Indenture Act of
1939 at the times and in the manner provided pursuant thereto. If required by
Section 313(a) of the Trust Indenture Act of 1939, the Trustee shall, within
sixty days after each October 15 following the execution and delivery of this
instrument deliver to Securityholders a brief report, dated as of such October
15, which complies with the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Trustee with each stock
exchange upon which any Securities are listed and also with the Securities and
Exchange Commission. If the Company lists the Securities of any series on any
stock exchange, it will promptly so notify the Trustee.
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ARTICLE SIX
Remedies of the Trustee and Securityholders on Event of Default
SECTION 6.01. Events of Default Defined; Acceleration of
Maturity; Waiver of Default. In case one or more of the following shall have
occurred and be continuing with respect to the Securities of any series, it
shall be an event of default of such series (unless it is specifically deleted
in a supplemental indenture or Board Resolution under which such series of
Securities is issued or has been modified in any such supplemental indenture),
that is to say:
(a) default in the payment of any installment of interest upon
any Security of such series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of or premium, if
any, on any Security of such series as and when the same shall become
due and payable either at maturity, upon redemption, by declaration or
otherwise; or
(c) failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of the
Company contained in the Securities of such series or in this Indenture
(other than a covenant or agreement which has been expressly included
in the Securities or in this Indenture solely for the benefit of a
series of Securities other than that series) for a period of 60 days
after the date on which written notice of such failure, requiring the
Company to remedy the same and stating that such notice is a "Notice of
Default" hereunder, shall have been given to the Company by the
Trustee, or to the Company and the Trustee by the holders of a least
25% in aggregate principal amount of the Securities of such series at
the time outstanding; or
(d) if a decree or order for relief shall be entered by a
court of competent jurisdiction in respect of the Company in an
involuntary case under any applicable bankruptcy, insolvency or other
similar law nor or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Company or of a major part of its property, or
ordering the winding up or liquidation of the Company's affairs, and
such decree or order shall remain unstayed and in effect for a period
of 60 consecutive days; or
(e) if the Company shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law nor or hereafter
in effect, or the Company shall consent to the entry by order of a
court of competent jurisdiction of a decree or order in respect of the
Company in an involuntary case or proceeding under any applicable
bankruptcy, insolvency or other similar law nor or hereafter in effect
or to the commencement of any bankruptcy or insolvency proceeding
against the Company; or
(f) if the Company shall make an assignment for the benefit of
its creditors, or shall admit in writing its inability to pay its debts
generally as they become due, or shall consent to the appointment of a
receiver or liquidator or trustee or assignee in bankruptcy or
insolvency of it or of a major part of its property; or
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(g) the occurrence of any other Event of Default with respect
to Securities of such series as provided in a supplemental indenture
applicable to such series of Securities pursuant to Section 10.01(d);
then and in each and every such case, unless the principal of the Securities of
such series shall have already become due and payable, either the Trustee or the
holders of not less than 25% in aggregate principal amount of the Securities of
such series then outstanding hereunder, by notice in writing to the Company (and
to the Trustee if given by Securityholders), may declare the principal (or, if
the Securities of such series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of that series)
of all the Securities of such series to be due and payable immediately, and upon
any such declaration the same shall become and shall be immediately due and
payable, anything in this Indenture or in the Securities of such series
contained to the contrary notwithstanding. This provision, however, is subject
to the condition that if, at any time after the principal of the Securities of
such series shall have been so declared due and payable, and before any judgment
or decree for the payment of the moneys due shall have been obtained or entered
as hereinafter provided, the Company shall pay or shall deposit with the Trustee
a sum sufficient to pay all matured installments of interest upon all the
Securities of such series and the principal of and premium, if any, on any and
all Securities of such series which shall have become due otherwise than by
declaration (with interest on overdue installments of interest, to the extent
legally enforceable under applicable law, and on such principal of and premium,
if any, on each Security of such series at the rate borne by such Security to
the date of such payment or deposit) and the expenses of the Trustee, and
reasonable compensation to the Trustee, its agents, attorneys and counsel, and
all other amounts due the Trustee under Section 7.06, and any and all defaults
under this Indenture, other than the nonpayment of principal on Securities of
such series which shall have become due by declaration, shall have been remedied
- -- then, and in every such case the holders of a majority in aggregate principal
amount of the Securities of such series then outstanding, by written notice to
the Company and to the Trustee, may on behalf of the holders of all of the
Securities of such series waive all defaults and rescind and annul such
declaration and its consequences; but no such waiver or rescission and annulment
shall extend to or shall affect any subsequent default, or shall impair any
right consequent thereon.
In case the Trustee shall have proceeded to enforce any right
under this Indenture for the holders of Securities of any series and such
proceedings shall have been discontinued or abandoned because of such rescission
or annulment or for any other reason or shall have been determined adversely to
the Trustee, then and in every such case the Company, the Trustee and the
holders of the Securities of such series shall be restored respectively to their
several positions and rights hereunder, and all rights, remedies and powers of
the Company, the Trustee and the holders of the Securities of such series shall
continue as though no such proceedings had been taken.
The Company and the Trustee may, to the extent provided in
Section 10.01, enter into one or more indentures supplemental hereto with
respect to any series of the Securities which may provide for additional,
different or fewer Events of Default with respect to such series of Securities.
SECTION 6.02. Collection of Indebtedness by Trustee; Trustee
May Prove Debt. The Company covenants that (1) in case default shall be made in
the payment of any installment of interest on any of the Securities, as and when
the same shall become due and
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payable, and such default shall have continued for
a period of 30 days, or (2) in case default shall be made in the payment of the
principal of or premium, if any, on any of the Securities when and as the same
shall have become due and payable, whether upon maturity of the Securities or
upon redemption or upon declaration or otherwise -- then, upon demand of the
Trustee, the Company will pay to the Trustee, for the benefit of holders of such
Securities, the whole amount that then shall have become due and payable on such
Securities for principal and premium, if any, and interest, with interest upon
the overdue principal and premium, if any, of each such Security and (to the
extent legally enforceable under applicable law) upon installments of interest,
at the rate borne by such Security; and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including a reasonable compensation to the Trustee, its agents, attorneys and
counsel, and any expenses or liabilities incurred by the Trustee hereunder other
than through its negligence or bad faith and all other amounts due the Trustee
under Section 7.06.
In case the Company shall fail forthwith to pay such amounts
upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or proceedings at
law or in equity against the Company or other obligor on such Securities for the
collection of the sums so due and unpaid, and may prosecute any such action or
proceeding to judgment or final decree, and may enforce any such judgment or
final decree against the Company or such other obligor upon such Securities and
collect in the manner provided by law out of the property of the Company or such
other obligor upon such Securities, wherever situated, the moneys adjudged or
decreed to be payable.
In case there shall be pending proceedings for the bankruptcy
or for the reorganization of the Company or any other obligor upon the
Securities of any series under Title 11 of the United States Code or any other
applicable Federal or state bankruptcy, insolvency or other similar law relative
to the Company or such other obligor, its creditors or its property, or in case
a receiver or trustee shall have been appointed for its property or in case of
any other judicial proceedings relative to the Company or other obligor upon the
Securities of any series, its creditors or its property, the Trustee,
irrespective of whether the principal of the Securities of any series shall then
be due and payable as therein expressed, upon redemption or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand
pursuant to this Section, shall be entitled and empowered, by intervention in
such proceedings or otherwise, to file and prove a claim or claims for the whole
amount of principal (or portion thereof determined pursuant to Section 2.03(j)
to be provable in bankruptcy), premium, if any, and interest owing and unpaid in
respect of the Securities of any series, and to file such other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and all other
amounts due the Trustee under Section 7.06) and of the Securityholders of any
series allowed in any judicial proceeding relative to the Company or other
obligor upon the Securities of any series, its creditors, or its property, and
to collect and receive any moneys or other property payable or deliverable on
any such claims, and to distribute the same after the deduction of its charges
and expenses; and any receiver, assignee or trustee in bankruptcy or
reorganization is hereby authorized by each of the Securityholders 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 Securityholders, to pay to the Trustee
any amount due it for compensation and expenses, including counsel fees incurred
by it and any other amounts due the Trustee under Section 7.06 up to the date of
such distribution.
- 24 -
All rights of action and of asserting claims under this
Indenture, or under any of the Securities of any series, may be enforced by the
Trustee without the possession of any of the Securities of such series, or the
production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall be for the ratable benefit of
the holders of the Securities of such series. In any proceedings brought by the
Trustee (and also any proceedings involving the interpretation of any provision
of this Indenture to which the Trustee shall be a party), the Trustee shall be
held to represent all the holders of the Securities of a series, and it shall
not be necessary to make any holders of the Securities of such series parties to
any such proceedings.
In case of an Event of Default hereunder with respect to
Securities of a particular series, the Trustee may, but unless first requested
so to do by the holders of at least a majority in aggregate principal amount of
the Securities of such series at the time outstanding and furnished with
reasonable indemnity against all costs, expenses and liabilities shall not
(subject to the provisions of Section 7.01) be under any obligation to, proceed
to protect and enforce its rights and the rights of the holders vested in it by
this Indenture by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any of such rights, either by suit in
equity or by action at law or by proceedings in bankruptcy or otherwise, whether
for the specific enforcement of any covenant or agreement contained in this
Indenture or in aid of the exercise of any power granted in this Indenture, or
to enforce any other legal or equitable right vested in the Trustee by this
Indenture or by law. Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of the holder of
any Security any plan of reorganization, arrangement, adjustment or composition
affecting the Securities of any series or the rights of any holder thereof, or
to authorize the Trustee to vote in respect of the claim of any holder of any
Security in any such proceeding.
SECTION 6.03. Application of Proceeds. Any moneys collected by
the Trustee with respect to a series of Securities pursuant to Section 6.02
shall be applied in the order following, at the date or dates fixed by the
Trustee for the distribution of such moneys:
FIRST: To the payment of all costs and expenses in
connection with the collection of such moneys, and
all amounts payable to the Trustee under Section 7.06;
SECOND: To the payment of the entire amounts then due and
unpaid upon the Securities in respect of which or for the benefit of
which such moneys shall have been collected, without any preference or
priority, ratably according to the amounts due and payable upon such
Securities upon presentation of the several Securities and notation of
such payment thereon, if partly paid, and upon surrender thereof, if
fully paid.
Any surplus then remaining shall be paid to the Company or to such other person
as shall be entitled to receive it.
SECTION 6.04. Limitations on Suits by Securityholders. No
holder of any Security of any series shall have any right by virtue or by
availing of any provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Indenture
or for the appointment of a receiver or trustee, or for any other remedy
- 25 -
hereunder, unless such holder previously shall have given to the Trustee written
notice of default and of the continuance thereof with respect to the Securities
of that series, and unless also the holders of not less than 25% in aggregate
principal amount of the Securities of that series then outstanding shall have
made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
failed to institute any such action, suit or proceeding and no direction
inconsistent with such written request shall have been given to the Trustee
pursuant to Section 6.06, it being understood and intended, and being expressly
covenanted by the holder of every Security of such series with every other
holder of Securities of such series and the Trustee, that no one or more holders
of Securities of such series shall have any right in any manner whatever by
virtue or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of the holders of any other of such Securities or to obtain
or seek to obtain priority over or preference to any other such holder, or to
enforce any right under this Indenture, except in the manner herein provided and
for the equal, ratable and common benefit of all holders of Securities of such
series. For the protection and enforcement of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
Notwithstanding any other provision of this Indenture,
however, the right of any holder of any Security to receive payment of the
principal of and premium, if any, and interest on such Security, on or after the
respective due dates expressed in such Security, or to institute suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such holder.
SECTION 6.05. Powers and Remedies Cumulative; Delay or
Omission Not Waiver. All powers and remedies given by this Article to the
Trustee or to the holders of Securities of any series shall, to the extent
permitted by law and subject to Section 6.04, be deemed cumulative and not
exclusive of any thereof or of any other powers and remedies available to the
Trustee or such Securityholders by judicial proceedings or otherwise, to enforce
the performance or observance of the covenants and agreements contained in this
indenture, and no delay or omission of the Trustee or of any holder of the
Securities of any series to exercise any right or power accruing upon any
default occurring and continuing as aforesaid, shall impair any such right or
power, or shall be construed to be a waiver of any such default or an
acquiescence therein; and, subject to Section 6.04, every power and remedy given
by this Article or by law to the Trustee or to such Securityholders may be
exercised from time to time, and as often as shall be deemed expedient by the
Trustee or by such Securityholders.
SECTION 6.06. Control by Securityholders; Waiver of Default.
The holders of a majority in aggregate principal amount of the Securities of any
series at the time outstanding shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the Trustee with respect to
Securities of such series; provided, however, that such direction shall not be
otherwise than in accordance with law and the provisions of this Indenture; and
provided further, that the Trustee shall have the right to decline to follow any
such direction if the Trustee in good faith shall, by a Responsible Officer,
determine that the proceedings so directed would involve it in personal
liability for which the Trustee has not received a satisfactory indemnity, or be
unjustly prejudicial to the holders not taking part in such direction, and
furthermore, nothing in this Indenture shall impair the right of the Trustee to
take any action deemed proper by the Trustee
- 26 -
and which is not inconsistent with such direction by such Securityholders. The
holders of at least a majority in aggregate principal amount of the Securities
of any series at the time outstanding may on behalf of the holders of all of the
Securities of such series waive any past default hereunder with respect to the
Securities of such series and its consequences, except a default in the payment
of the principal of or premium, if any, or interest on any of the Securities of
such series. In the case of any such waiver, the Company, the Trustee and the
holders of the Securities of such series shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend to
any subsequent or other default or impair any right consequent thereon.
SECTION 6.07. Trustee to Give Notice of Defaults Known to It,
but May Withhold in Certain Circumstances. The Trustee shall, within 90 days
after the occurrence of a default with respect to the Securities of any series,
give to the Securityholders of such series, in the manner and to the extent
required to do so by the Trust Indenture Act of 1939, notice of all defaults
known to the Trustee, unless such defaults shall have been cured before the
giving of such notice (the term "defaults" for the purposes of this Section
being hereby defined to be the events specified in Sections 6.01(a), (b), (c),
(d), (e), (f) and (g) with respect to Securities of such series not including
periods of grace, if any, provided for therein and irrespective of the giving of
the written notice specified in subparagraph (c) of Section 6.01); provided,
however, that in case of any default of the character specified in subparagraph
(c) of Section 6.01 no such notice shall be given until at least sixty (60) days
after the occurrence thereof; and provided further, that, except in the case of
default in the payment of the principal of or premium, if any, or interest on
any of the Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee, or a trust committee of directors and/or responsible officers of the
Trustee in good faith determine that the withholding of such notice is in the
interests of the Securityholders of such series.
SECTION 6.08. Right of Court to Require Filing of Undertaking
to Pay Costs. All parties to this Indenture agree, and each holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but this
Section shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Securityholder, or group of Securityholders, holding in the
aggregate more than 10% in principal amount of the Securities of any series
outstanding, or to any suit instituted by any Securityholder of any series for
the enforcement of the payment of the principal of or premium, if any, or
interest on any Security of such series, on or after the due dates expressed in
such Security.
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ARTICLE SEVEN
Concerning the Trustee
SECTION 7.01. Duties and Responsibilities of Trustee. With
respect to the holders of any series of Securities issued hereunder, the
Trustee, prior to the occurrence of an Event of Default with respect to the
Securities of that series and after the curing or waiving of all Events of
Default which may have occurred with respect to such series, undertakes to
perform such duties and only such duties as are specifically set forth in this
Indenture and no implied covenants or obligations shall be read into this
Indenture against the Trustee. In case an Event of Default with respect to
Securities of any series has occurred (which has not been cured or waived) the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture with respect to such series, and use the same degree of care and skill
in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(a) prior to the occurrence of an Event of Default with
respect to the Securities of any series and after the curing or waiving
of all such Events of Default with respect to such series which may
have occurred:
(1) the duties and obligations of the Trustee with
respect to the Securities of that series shall be determined
solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a responsible officer or officers of the Trustee,
unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the registered holders given as provided in Section 6.06
relating to the time, method and place of conducting
- 28 -
any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers if there is reasonable ground for believing that
the repayment of such funds or liability is not reasonably assured to it.
SECTION 7.02. Certain Rights of Trustee. Except as
otherwise provided in Section 7.01:
(a) the Trustee may rely and shall be protected in acting, or
refraining from acting, upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, Security, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced to the Trustee by a
Company Order (unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of Directors
shall be sufficiently evidenced to the Trustee by a Board Resolution;
(c) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(d) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Securityholders, pursuant to the
provisions of this Indenture, unless such Securityholders shall have
offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which may be incurred by the Trustee in
complying with such request, order or direction;
(e) whenever in the administration of the provisions of this
Indenture the Trustee shall deem it necessary or desirable that a
matter be proved or established prior to taking, suffering or omitting
any action hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of bad
faith on the part of the Trustee, be deemed to be conclusively proved
and established by an Officers' Certificate delivered to the Trustee
and such certificate, in the absence of bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted by it under the provisions of this Indenture in
good faith and in reliance thereon;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, approval, appraisal, bond, debenture, Security, other
evidence of indebtedness or other paper or document, but the Trustee,
in its discretion, may make such inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall determine
to make such inquiry or investigation, it shall be entitled to
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examine the books, records and premises of the Company, personally or
by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys, and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed by it with due care hereunder;
(h) the Trustee shall not be charged with knowledge of any
default (as defined in Section 6.07) or Event of Default with respect
to the Securities of any series for which it is acting as Trustee
unless written notice of such default or Event of Default, as the case
may be, shall have been received by the Trustee from the Company, from
any other obligor on such Securities or from any holder of such
Securities and such notice references the Company, such Securities or
this Indenture; and
(i) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture; and
(j) the rights, privileges, protections, immunities and
benefits given to the Trustee hereunder, including, without limitation,
its rights to compensation, reimbursement and indemnification under
Section 7.06, are hereby extended and also made applicable to, and
shall be enforceable by, the Trustee in each of its other capacities
hereunder.
SECTION 7.03. Trustee Not Responsible for Recitals, etc. The
recitals contained herein and in the Securities, except the Trustee's
certificate of authentication and the representation as to the power of the
Trustee to enter into this Indenture and accept and execute the trusts hereby
created, shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee shall not be accountable for the use or application by
the Company of any of the Securities or of the proceeds of such Securities.
SECTION 7.04. Trustee and Others May Hold Securities. Subject
to Sections 7.07 and 7.12, the Trustee or any paying agent or Security registrar
or any other agent of the Company or the Trustee, in its individual or any other
capacity, may become the owner or pledgee of Securities and may otherwise deal
with the Company or other obligor on the Securities with the same rights it
would have if it were not Trustee, paying agent, Security registrar or such
other agent.
SECTION 7.05. Moneys Held by Trustee or Paying Agent. Subject
to Sections 12.04 and 12.05, all moneys received by the Trustee or any paying
agent shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received, but any paying agent that is a bank need
not segregate such moneys from other funds except to the extent required by law,
and shall not be invested. Neither the Trustee nor any paying agent shall be
under any liability for interest on any moneys received by it hereunder except
such as it may agree with the Company to pay thereon. So long as no Event of
Default with respect to Securities of any series, other than an Event of Default
under subparagraph (c) of Section 6.01,
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shall have occurred and be continuing, all interest allowed on any such moneys
shall be paid from time to time upon the written order of the Company, signed by
its President, or any Vice President or its Treasurer or an Assistant Treasurer.
SECTION 7.06. Compensation of Trustee and Its Lien. The
Company covenants and agrees to pay to the Trustee from time to time, and the
Trustee shall be entitled to, reasonable compensation (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust), and, except as herein otherwise expressly provided, the Company
will pay or reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel and of all persons not
regularly in its employ) except any such expense, disbursement or advance as may
arise from its negligence or bad faith. If any property other than cash shall at
any time be subject to the lien of this Indenture, the Trustee, if and to the
extent authorized by a receivership or bankruptcy court of competent
jurisdiction or by the supplemental instrument subjecting such property to such
lien, shall be entitled to make advances for the purpose of preserving such
property or of discharging tax liens or other prior liens or encumbrances
thereon. The Company also covenants and agrees to indemnify the Trustee for, and
to hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Trustee, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, 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. The obligations of the Company under this Section
shall constitute additional indebtedness hereunder. Such additional indebtedness
shall be secured by a lien prior to that of the Securities upon all property and
funds held or collected by the Trustee as such, except funds held in trust for
the benefit of the holders of particular Securities. "Trustee" for purposes of
this Section shall include (i) the Trustee in each of its other capacities
hereunder and (ii) any predecessor Trustee; provided, however, that the
negligence, willful misconduct or bad faith of any Trustee hereunder shall not
affect the rights of any other Trustee hereunder.
In addition and without prejudice to the rights provided to
the Trusee under any of the provisions of the Indenture, when the Trustee incurs
expenses or renders services in connection with an Event of Default specified in
Section 6.01, the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any bankruptcy law.
The provisions of this Section 7.06 shall survive the
termination for any reason of this Indenture and the resignation or removal of
the Trustee.
SECTION 7.07. Disqualification; Conflicting Interests. If the
Trustee shall have or acquire any conflicting interest within the meaning of the
Trust Indenture Act of 1939, it shall either eliminate such conflicting interest
or resign to the extent, in the manner and with the effect, and subject to the
conditions, provided in the Trust Indenture Act of 1939 and this Indenture. To
the extent permitted by such Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under this Indenture with
respect to Securities of more than one series. Nothing herein shall prevent the
Trustee from filing with the Securities and Exchange Commission the application
referred to in the second to last paragraph of Section 310(b) of the Trust
Indenture Act of 1939.
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SECTION 7.08. Persons Eligible for Appointment as Trustee. The
Trustee hereunder shall at all times be a corporation organized and doing
business under the laws of the United States or any State or territory thereof
or of the District of Columbia authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by Federal, state, territorial, or
District of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Trustee shall cease to be
eligible in accordance with this Section, the Trustee shall resign immediately
in the manner and with the effect specified in Section 7.09.
SECTION 7.09. Resignation and Removal of Trustee; Appointment
of Successor. (a) The Trustee, or any trustee or trustees hereafter appointed,
may at any time resign with respect to any one or more or all series of
Securities by giving written notice to the Company and by mailing notice of such
resignation, to the holders of Securities of that or those series at their last
addresses as they shall appear on the Security Register. Upon receiving such
notice of resignation, the Company shall promptly appoint a successor trustee or
trustees with respect to the applicable series by written instrument executed by
order of the Board of Directors, one copy of which instrument shall be delivered
to the resigning trustee and one copy to the successor trustee. If no successor
trustee shall have been so appointed with respect to a particular series and
have accepted appointment within 30 days after the mailing of such notice of
resignation, the resigning trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any Securityholder
who has been a bona fide holder of a Security or Securities of the applicable
series for at least 6 months may, subject to Section 6.08, on behalf of himself
and all others similarly situated, petition any such court for the appointment
of a successor trustee. Such court may thereupon after such notice, if any, as
it may deem proper and prescribe, appoint a successor trustee.
(b) If at any time:
(1) the Trustee shall fail to comply with Section
7.07 after written request therefor by the Company or by any
Securityholder who has been a bona fide holder of a Security
or Securities for at least 6 months, or
(2) the Trustee shall cease to be eligible under
Section 7.08 and shall fail to resign after written request
therefor by the Company or by any such Securityholder, or
(3) the Trustee shall become incapable of acting, or
shall be adjudged bankrupt or insolvent, or a receiver of the
Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation;
then, in any such case, the Company may remove the Trustee with respect to the
applicable series of Securities, and appoint a successor trustee by written
instrument, in duplicate, executed by order of the Board of Directors of the
Company, one copy of which instrument shall be delivered to the trustee so
removed and one copy to the successor trustee, or, subject to Section 6.08, any
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Securityholder who has been a bona fide holder of a Security or Securities of
any such series for at least 6 months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor trustee with respect to such
series. Such court may thereupon after such notice, if any, as it may deem
proper and prescribe, remove the Trustee and appoint a successor trustee with
respect to such series.
(c) The holders of a majority in aggregate principal amount of
the Securities of any series at the time outstanding may at any time remove the
Trustee with respect to that series and appoint with respect to such series a
successor trustee by delivering to the trustee so removed, to the successor
trustee so appointed and to the Company, the evidence provided for in Section
8.01 of the action taken by the Securityholders.
(d) Any resignation or removal of the Trustee and any
appointment of a successor trustee pursuant to this Section shall become
effective upon acceptance of appointment by the successor trustee as provided in
Section 7.10.
SECTION 7.10. Acceptance of Appointment by Successor Trustee.
Any successor trustee appointed under Section 7.09 shall execute, acknowledge
and deliver to the Company and to its predecessor trustee with respect to any or
all applicable series an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor trustee shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts, duties and
obligations with respect to such series of its predecessor hereunder, with like
effect as if originally named as trustee herein; but, nevertheless, on the
written request of the Company or of the successor trustee, the trustee ceasing
to act shall, upon payment of any amounts then due it pursuant to the provisions
of Section 7.06, execute and deliver an instrument transferring to such
successor trustee all the rights, powers and trusts with respect to such series
of the trustee so ceasing to act. Upon request of any such successor trustee,
the Company shall execute any and all instruments in writing for more fully and
certainly vesting in and confirming to such successor trustee all such rights
and powers. Any trustee ceasing to act shall, nevertheless, retain a lien upon
all property or funds held or collected by such trustee to secure any amounts
then due it pursuant to Section 7.06.
In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the Company,
the predecessor Trustee and each successor Trustee with respect to the
Securities of any applicable series shall execute and deliver an indenture
supplemental hereto which shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of the predecessor Trustee with respect to the Securities of any series as to
which the predecessor Trustee is not retiring shall continue to be vested in the
predecessor Trustee, and shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee.
No successor Trustee with respect to any series of Securities
shall accept appointment as provided in this Section unless at the time of such
acceptance such successor
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Trustee shall with respect to such series be qualified under Section 7.07 and
eligible under Section 7.08.
Upon acceptance of appointment by a successor Trustee with
respect to the Securities of any series, the Company shall mail notice of the
succession of such Trustee hereunder to the holders of Securities of such series
at their last addresses as they shall appear on the Security Register. If the
Company fails to mail such notice within 10 days after acceptance of appointment
by the successor Trustee, the successor Trustee shall cause such notice to be
mailed at the expense of the Company.
SECTION 7.11. Merger, Conversion or Consolidation of Trustee.
Any person into which the Trustee may be merged or converted or with which it
may be consolidated, or any person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any person succeeding to
all or substantially all the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder, provided such person shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto.
SECTION 7.12. Preferential Collection of Claims Against
Company. If the Trustee shall be or become a creditor of the Company or any
other obligor upon the Securities (other than by reason of a relationship
described in Section 311(b) of the Trust Indenture Act of 1939), the Trustee
shall be subject to any and all applicable provisions of the Trust Indenture Act
of 1939 regarding the collection of claims against the Company or such other
obligor. For purposes of Section 311(b) of the Trust Indenture Act of 1939:
(a) The term "cash transaction" shall mean any
transaction in which full payment for goods or securities sold is made
within 7 days after delivery of the goods or securities in currency or
in checks or other orders drawn upon banks or bankers and payable upon
demand.
(b) The term "self-liquidating paper" shall mean any
draft, bill of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Company for the purpose of financing the
purchase, processing, manufacture, shipment, storage or sale of goods,
wares or merchandise and which is secured by documents evidencing title
to, possession of, or a lien upon, the goods, wares or merchandise or
the receivables or proceeds arising from the sale of the goods, wares
or merchandise previously constituting the security, provided the
security is received by the Trustee simultaneously with the creation of
the creditor relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation.
ARTICLE EIGHT
Concerning the Securityholders
SECTION 8.01. Evidence of Action Taken by Securityholders.
Whenever in this Indenture it is provided that the holders of a specified
percentage or a majority in aggregate
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principal amount of the Securities or of any series of Securities may take any
action (including the making of any demand or request, the giving of any notice,
consent or waiver or the taking of any other action) the fact that at the time
of taking any such action the holders of such specified percentage or majority
have joined therein may be evidenced (a) by any instrument or any number of
instruments of similar tenor executed by Securityholders in person or by agent
or proxy appointed in writing, or (b) by the record of the holders of Securities
voting in favor thereof at any meeting of Securityholders duly called and held
in accordance with the provisions of Article Nine, or (c) by a combination of
such instrument or instruments and any such record of such a meeting of
Securityholders.
SECTION 8.02. Proof of Execution of Instruments and of Holding
of Securities. Subject to the provisions of Sections 7.01, 7.02 and 9.05, proof
of the execution of any instrument by a Securityholder or his agent or proxy and
proof of the holding by any person of any of the Securities shall be sufficient
if made in the following manner:
The fact and date of the execution by any such person of any
instrument may be proved by the certificate of any notary public or other
officer authorized to take acknowledgments of deeds to be recorded in any State
within the United States, that the person executing such instrument acknowledged
to him the execution thereof, or by an affidavit of a witness to such execution
sworn to before any such notary or other such officer. Where such execution is
by an officer of a corporation or association or a member of a partnership on
behalf of such corporation, association or partnership, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and
the date of the execution of any such instrument may also be proved in any other
manner which the Trustee may deem sufficient.
The ownership of Securities may be proved by the Security
Register or by a certificate of the Security registrar.
The Trustee may require such additional proof, if any, of any
matter referred to in this Section as it shall deem necessary.
The record of any Securityholders' meeting shall be proved as
provided in Section 9.06.
SECTION 8.03. Registered Holders of Securities May Be Treated
as Owners. The Company, the Trustee, any paying agent, and any Security
registrar may deem and treat the person in whose name any Security shall be
registered upon the Security Register as the absolute owner of such Security
(whether or not such Security shall be overdue and notwithstanding any notice of
ownership or writing thereon made by anyone other than the Security registrar)
for the purpose of receiving payment thereof or on account thereof and of
interest thereon as herein provided and for all other purposes, and neither the
Company nor the Trustee nor any paying agent nor any Security registrar shall be
affected by any notice to the contrary. All such payments so made to any such
registered holder for the time being, or upon his order, shall be valid, and, to
the extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Security.
SECTION 8.04. Securities Owned by Company Deemed Not
Outstanding. In determining whether the holders of the requisite aggregate
principal amount of Securities have concurred in any direction, consent or
waiver under this Indenture, Securities which are owned
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by the Company or any other obligor on the Securities or by any person directly
or indirectly controlling or controlled by or under direct or indirect common
control with the Company or any other obligor on the Securities shall be
disregarded and deemed not to be outstanding for the purpose of any such
determination, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, consent or waiver, only
Securities which a responsible officer of the Trustee with direct responsibility
for the administration of this Indenture assigned to the Corporate Trust
Department of the Trustee (or any successor division or department of the
Trustee) located at the office of the Trustee specified in or pursuant to
Section 15.04 actually knows are so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as outstanding for
the purposes of this Section, if the pledgee shall establish to the satisfaction
of the Trustee that the pledgee has the right to vote such Securities and that
the pledgee is not a person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Company or any such other
obligor. Subject to the provisions of Section 7.01, in case of a dispute as to
such right, any decision by the Trustee, taken upon the advice of counsel, shall
be full protection to the Trustee.
SECTION 8.05. Right of Revocation of Action Taken. At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section
8.01, of the taking of any action by the holders of the percentage in aggregate
principal amount of the Securities or of any series of Securities specified in
this Indenture in connection with such action, any holder of a Security the
serial number of which is shown by the evidence to be included in the Securities
the holders of which have consented to such action may, by filing written notice
with the Trustee at its office specified in or pursuant to Section 15.04 and
upon proof of holding as provided in Section 8.02, revoke such action so far as
concerns such Security. Except as aforesaid, any such action taken by the holder
of any Security shall be conclusive and binding upon such holder and upon all
future holders and owners of such Security, and of any Security issued in
exchange therefor or in place thereof, irrespective of whether or not any
notation in regard thereto is made upon such Security or any Security issued in
exchange therefor or in place thereof. Any action taken by the holders of the
percentage in aggregate principal amount of the Securities specified in this
Indenture in connection with such action shall be conclusively binding upon the
Company, the Trustee and the holders of all the Securities.
ARTICLE NINE
Securityholders' Meetings
SECTION 9.01. Purposes for Which Securityholders' Meetings
May Be Called. A meeting of Securityholders may be called at any time and from
time to time pursuant to this Article for any of the following purposes:
(1) to give any notice to the Company or to the
Trustee, or to give any directions to the Trustee, or to waive or to
consent to the waiving of any default hereunder and its consequences,
or to take any other action authorized to be taken by Securityholders
pursuant to Article Six;
(2) to remove the Trustee and appoint a
successor trustee pursuant to Article Seven;
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(3) to consent to the execution of an indenture
or indentures supplemental hereto pursuant to Section 10.02; or
(4) to take any other action authorized to be taken
by or on behalf of the holders of any specified aggregate principal
amount of the Securities under any other provision of this Indenture or
under applicable law.
SECTION 9.02. Call of Meetings by Trustee. The Trustee may at
any time call a meeting of Securityholders of any series to be held at any such
time and at such place in the Borough of Manhattan, The City of New York, as the
Trustee shall determine. Notice of every meeting of Securityholders, setting
forth the time and the place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be mailed by the Trustee,
first-class postage prepaid, not less than 20 nor more than 180 days prior to
the date fixed for the meeting, to the holders of Securities of such series at
their last addresses as they shall appear upon the Security Register.
SECTION 9.03. Company and Securityholders May Call Meeting. In
case the Company, pursuant to a resolution of its Board of Directors, or the
holders of at least 10% in aggregate principal amount of the Securities of any
series then outstanding, shall have requested the Trustee to call a meeting of
Securityholders of such series, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall not
have made the mailing of the notice of such meeting within 20 days after receipt
of such request, then the Company or the holders of such Securities in the
amount above specified may determine the time and the place in said Borough of
Manhattan for such meeting and may call such meeting to take any action
authorized in Section 9.01, by mailing notice thereof as provided in Section
9.02.
SECTION 9.04. Persons Entitled to Vote at Meeting. To be
entitled to vote at any meeting of Securityholders of a series a person shall be
(a) a registered holder of one or more Securities of such series or (b) a person
appointed by an instrument in writing as proxy for the holder or holders of such
Securities by a registered holder of one or more such Securities. The only
persons who shall be entitled to be present or to speak at any meeting of
Securityholders shall be the persons entitled to vote at such meeting and their
counsel and any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 9.05. Determination of Voting Rights; Conduct and
Adjournment of Meeting. Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Securityholders, in regard to proof of the holding of Securities
and of the appointment of proxies, and in regard to the appointment and duties
of inspectors of votes, the submission and examination of proxies, certificates
and other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 8.02 or other proof.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 8.02 and the
appointment of any proxy shall be proved in the manner specified in said Section
8.02 or by having the signature of the person executing the proxy witnessed or
guaranteed by any bank, banker, trust company or firm satisfactory to the
Trustee.
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The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Securityholders as provided in Section 9.03, in which case the
Company or the Securityholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the holders of a majority
in principal amount of the Securities represented at the meeting and entitled to
vote.
Subject to the provisions of Section 8.04, at any meeting any
Securityholder of a series or proxy shall be entitled to one vote for each
$1,000 principal amount of Securities of such series held or represented by him
(in the case of Original Issue Discount Securities, such principal amount is the
amount that would be due and payable upon the acceleration of the maturity
thereof pursuant to Section 6.01) provided, however, that no vote shall be cast
or counted at any meeting in respect of any Security challenged as not
outstanding and ruled by the chairman of the meeting to be not outstanding. The
chairman of the meeting shall have no right to vote other than by virtue of
Securities of such series held by him or instruments in writing as aforesaid
duly designating him as the person to vote on behalf of other Securityholders of
such series. Any meeting of Securityholders duly called pursuant to Section 9.02
or 9.03 may be adjourned from time to time, and the meeting may be held as so
adjourned without further notice.
At any meeting, the presence of persons holding or
representing Securities in an aggregate principal amount sufficient to take
action upon the business for the transaction of which such meeting was called
shall be necessary to constitute a quorum; but, if less than a quorum be
present, the persons holding or representing a majority of the Securities
represented at the meeting may adjourn such meeting with the same effect, for
all intents and purposes, as though a quorum had been present.
SECTION 9.06. Counting Vote and Recording Action of Meeting.
The vote upon any resolution submitted to any meeting of Securityholders of a
series shall be by written ballots on which shall be subscribed the signatures
of the holders of Securities of such series or of their representatives by proxy
and the serial number or numbers of the Securities of such series held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Securityholders shall
be prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was mailed as provided in Sections 9.02 and 9.03. The record shall show
the serial numbers of the Securities voting in favor of or against any
resolution. The record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one of the duplicates shall
be delivered to the Company and the other to the Trustee to be preserved by the
Trustee, the latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
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ARTICLE TEN
Supplemental Indentures
SECTION 10.01. Supplemental Indentures Without Consent of
Securityholders. The Company, when authorized by a resolution of its Board of
Directors, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act of 1939 as it shall be in force at the
date of execution of such indenture or indentures) for one or more of the
following purposes:
(a) to evidence the succession of another
corporation to the Company, or successive successions, and
the assumption by the Successor of the covenants, agreements and
obligations of the Company pursuant to Article Eleven;
(b) to add to the covenants and agreements of the
Company such further covenants, agreements, restrictions or conditions
for the protection of the holders of the Securities of all or any
series as its Board of Directors and the Trustee shall consider to be
for the protection of the holders of Securities of such series (and if
such covenants, agreements, restrictions or conditions are to be for
the benefit of less than all series of Securities, stating that such
covenants, agreements, restrictions or conditions are expressly being
included for the benefit of such series), and to make the occurrence,
or the occurrence and continuance, of a default in any of such
additional covenants, agreements, restrictions or conditions a default
or an Event of Default permitting the enforcement of all or any of the
several remedies provided in this Indenture as herein set forth;
provided, however, that in respect of any such additional covenant,
agreement, restriction or condition such supplemental indenture may
provide for a particular period of grace after default (which period
may be shorter or longer than that allowed in the case of other
defaults) or may provide for an immediate enforcement upon such default
or may limit the remedies available to the Trustee upon such default or
may limit the right of the holders of Securities to waive such default;
(c) to add, delete or modify any Events of Default
with respect to all or any series of the Securities, the form and terms
of which are being established pursuant to such supplemental indenture
as permitted in Sections 2.01, 2.02 and 2.03 (and, if any such event of
default is applicable to fewer than all such series of the Securities,
specifying the series to which such event of default is applicable),
and to specify the rights and remedies of the Trustee and the holders
of such Securities in connection therewith;
(d) to prohibit the authentication and delivery of
additional series of Securities, to cure any ambiguity or to correct or
supplement any provision contained herein or in any supplemental
indenture which may be defective or inconsistent with any other
provisions contained herein or in any supplemental indenture, or to
make such other provisions in regard to matters or questions arising
under this Indenture as shall not be inconsistent with the provisions
of this Indenture or any supplemental indenture and shall not adversely
affect the interests of the holders of the Securities;
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(e) to establish the form and terms of the Securities
of any series as permitted in Sections 2.01, 2.02 and 2.03, or to
authorize the issuance of additional Securities of a series previously
authorized or to add to the conditions, limitations or restrictions on
the authorized amount, terms or purposes of issue, authentication or
delivery of the Securities of any series, as herein set forth, or other
conditions, limitations or restrictions thereafter to be observed; and
(f) to evidence and provide for the acceptance of
appointment hereunder by a successor trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
trustee, pursuant to the requirements of Section 7.10.
The Trustee is hereby authorized to join with the Company in
the execution of any such supplemental indenture, to make any further
appropriate agreements and stipulations which may be therein contained but the
Trustee shall not be obligated to enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Any supplemental indenture authorized by the provisions of
this Section shall be executed by the Company and the Trustee and shall not
require the consent of the holders of any of the Securities at the time
outstanding, notwithstanding Section 10.02.
SECTION 10.02. Supplemental Indentures With Consent of
Securityholders. With the consent (evidenced as provided in Section 8.01) of the
holders of not less than a majority in aggregate principal amount of the
Securities of any series at the time outstanding, the Company, when authorized
by a resolution of its Board of Directors, and the Trustee may from time to time
and at any time enter into an indenture or indentures supplemental hereto (which
shall conform to the provisions of the Trust Indenture Act of 1939 as it shall
be in force at the date of execution of such indenture or indentures) for the
purpose, with respect to Securities of such series, of adding any provisions to
or changing in any manner or eliminating any of the provisions of this Indenture
or of any supplemental indenture or of modifying in any manner the rights of the
holders of the Securities of such series; provided, however, that no such
supplemental indenture shall (i) extend the fixed maturity, or the earlier
optional date of maturity, if any, of any Security, or reduce the principal
amount thereof or the premium thereon, if any, or reduce the rate or extend the
time of payment of interest thereon, or make the principal thereof or premium,
if any, or interest thereon payable in any coin or currency other than that
provided in such Security without the consent of the holder of each Security so
affected, or (ii) reduce the principal amount of Securities of any series, the
holders of which are required to consent to any such supplemental indenture,
without the consent of the holders of all Securities of such series then
outstanding.
Upon the request of the Company, accompanied by a Board
Resolution authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of the
Securityholders as aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
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otherwise, in which case the Trustee may in its discretion but shall not be
obligated to enter into such supplemental indenture.
A supplemental indenture which changes or eliminates any
provision of this Indenture or of any series of Securities which has expressly
been included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of holders of Securities of such series
with respect to such provision, shall be deemed not to affect the rights under
this Indenture of the holders of Securities of any other series.
It shall not be necessary for the consent of the
Securityholders under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
Promptly after the execution by the Company and the Trustee of
any supplemental indenture under this Section, the Company shall mail a notice,
setting forth in general terms the substance of such supplemental indenture, to
the holders of Securities at their last addresses as they shall appear on the
Security Register. Any failure of the Company to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such supplemental indenture.
SECTION 10.03. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture pursuant to the provisions of this
Article, this Indenture shall be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitation of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Company and the holders of Securities shall thereafter be determined, exercised
and enforced hereunder subject in all respects to such modifications and
amendments, and all the terms and conditions of any such supplemental indenture
shall be and be deemed to be part of the terms and conditions of this Indenture
for any and all purposes.
SECTION 10.04. Notation on Securities in Respect of
Supplemental Indentures. Securities authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article or after any action taken at a Securityholders' meeting pursuant to the
provisions of Article Nine may, and if required by the Trustee shall, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture or as to any such action. If the Company and the Trustee
shall so determine, new Securities of any series so modified as to conform, in
the opinion of the Company and the Trustee, to any modification of this
Indenture contained in any such supplemental indenture may be prepared by the
Company, authenticated by the Trustee and delivered in exchange for the
Securities of such series then outstanding.
SECTION 10.05. Opinion of Counsel to Be Given Trustee. The
Trustee, subject to Sections 7.01 and 7.02, may receive an Opinion of Counsel as
conclusive evidence that any such supplemental indenture is authorized by the
terms of this Indenture and that it is proper for the Trustee under the
provisions of this Article to join in the execution thereof.
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ARTICLE ELEVEN
Consolidation, Merger and Sale
SECTION 11.01. Company May Consolidate or Merge, etc. Subject
to the provisions of Section 11.02, nothing contained in this Indenture shall
prevent any consolidation of the Company with or the merger of the Company into
any other corporation, or any merger of any other corporation into the Company,
or successive consolidations or mergers to which the Company or its successor or
successors shall be a party or parties, or shall prevent any sale, transfer or
lease of the properties of the Company as an entirety or substantially as an
entirety to any other corporation lawfully entitled to acquire the same.
SECTION 11.02. Conditions to Consolidation or Merger, etc. The
Company covenants and agrees that it will not consolidate with or merge into any
other corporation, or sell, transfer or lease its properties as an entirety or
substantially as an entirety to any person unless, and the Company covenants and
agrees that any such consolidation, merger, sale, transfer or lease shall be
upon the conditions that (i) the successor corporation formed by or surviving
any such consolidation or merger or the person to which such sale, transfer or
lease shall have been made ("the Successor") shall be a corporation organized
and existing under the laws of the United States of America or a state thereof,
(ii) the due and punctual payment of the principal of and premium, if any, and
interest on the Securities according to their tenor, and the due and punctual
performance and observance of all the terms, covenants and conditions of this
Indenture, the Securities and all indentures supplemental hereto to be performed
or observed by the Company shall, by an indenture supplemental hereto, executed
and delivered to the Trustee, be expressly assumed by the Successor, as fully
and effectually as if such Successor had been an original party hereto, and
(iii) immediately after such merger, consolidation, sale, transfer or lease, no
Event of Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have occurred and be continuing.
The Successor, other than a Successor by reason of a lease of
the Company's properties, upon executing such indenture supplemental hereto, in
form satisfactory to the Trustee, shall succeed to and be substituted for the
Company with the same effect as if it had been an original party hereto, thus
relieving the Company of all liabilities hereunder and under the Securities, and
the Successor shall possess and from time to time may exercise each and every
power hereunder of the Company, and may execute and deliver Securities
hereunder, either in the name of the Company or the Successor, and any act or
proceeding required by this Indenture to be done or performed by any board or
officer of the Company may be done or performed with like force and effect by
the like board or officer of the Successor.
SECTION 11.03. Documents and Opinion to Be Furnished to the
Trustee. The Company covenants and agrees that if it shall consolidate with or
merge into any other corporation or if it shall sell, transfer or lease its
properties, as an entirety or substantially as an entirety, the Company will
promptly furnish to the Trustee:
(1) A certificate signed by the President or a Vice
President and by the Treasurer or an Assistant Treasurer or the
Secretary or an Assistant Secretary of the
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Successor stating that the covenants of the Company contained in
Section 11.02 have been complied with;
(2) An executed counterpart of any instrument
or instruments executed by the Company or the Successor
in the performance of such covenants; and
(3) An Opinion of Counsel stating that in the opinion
of such counsel such covenants have been complied with and that any
instrument or instruments executed by the Company or the Successor in
the performance of such covenants comply with the requirements of such
covenants.
Each certificate, instrument and opinion furnished to the
Trustee pursuant to the provisions of this Section shall conform to the
requirements of Section 15.06.
Subject to the provisions of Sections 7.01 and 7.02, the
Trustee may receive an Opinion of Counsel conforming to the requirements of
Section 15.06 as conclusive evidence that any such consolidation, merger, sale,
transfer or lease, any such assumption and any such supplemental indenture or
other instrument or instruments comply with the provisions of this Article.
ARTICLE TWELVE
Satisfaction and Discharge of Indenture;
Defeasance; Unclaimed Moneys
SECTION 12.01. Satisfaction and Discharge of Indenture. If (a)
the Company shall deliver to the Trustee for cancellation all outstanding
Securities, or (b) all outstanding Securities not delivered to the Trustee for
cancellation shall have become due and payable, or are by their terms to become
due and payable within one year or are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving of notice of
redemption and the Company shall deposit with the Trustee as trust funds the
entire amount sufficient to pay at maturity or upon redemption all such
Securities not delivered to the Trustee for cancellation, including principal
and premium, if any, and interest due or to become due to such date of maturity
or redemption, and if in either case the Company shall also pay or cause to be
paid all other sums payable hereunder by the Company, then this Indenture shall
cease to be of further effect, and the Trustee, on demand of the Company and at
the cost and expense of the Company, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture. The Company agrees
to reimburse the Trustee for any costs or expenses thereafter reasonably and
properly incurred by the Trustee without negligence or bad faith in connection
with this Indenture or the Securities.
SECTION 12.02. Defeasance. Provided that the same has been
duly authorized with respect to Securities of a particular series pursuant to
Section 2.03(1), if, at any time after the date hereof, the Company shall
deposit with the Trustee, in trust for the benefit of the holders thereof, (i)
funds sufficient to pay, or (ii) such amount of direct noncallable obligations
of, or noncallable obligations the payment of principal of and interest on which
is fully guaranteed by, the United States of America, or to the payment of which
obligations or guarantees the full faith
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and credit of the United States of America is pledged, as will, or will together
with the income thereon without consideration of any reinvestment thereof, be
sufficient to pay all sums due for principal of, premium, if any, and interest
on the Securities of such series, as they shall become due from time to time,
and shall pay all costs, charges and expenses incurred or to be incurred by the
Trustee in relation thereto or in carrying out the provisions of this Indenture,
this Indenture shall cease to be of further effect with respect to Securities of
such series (except as to (i) rights of registration of transfer, substitution
and exchange of Securities of such series, (ii) rights of holders to receive
payments of, principal of, premium, if any, and interest on the Securities of
such series as they shall become due from time to time and other rights, duties
and obligations of Securityholders as beneficiaries hereof with respect to the
amounts so deposited with the Trustee, and (iii) the rights, obligations and
immunities of the Trustee hereunder (for which purposes the Securities of such
series shall be deemed outstanding)), and the Trustee, on the written request of
the Company, accompanied by the Officers' Certificate and Opinion of Counsel
required by Section 15.06, shall execute and deliver to the Company such
instruments as shall be requisite to evidence the satisfaction thereof with
respect to Securities of such series.
SECTION 12.03. Application by Trustee of Funds Deposited for
Payment of Securities. All moneys deposited with the Trustee pursuant to
Sections 12.01 and 12.02, or received by the Trustee in respect of obligations
deposited with the Trustee pursuant to Section 12.02 shall be held in trust and
applied by it to the payment, either directly or through any paying agent
(including the Company acting as its own paying agent), to the holders of the
particular Securities, for the payment of which such moneys have been deposited
with the Trustee, of all sums due and to become due thereon for principal,
premium, if any, and interest.
SECTION 12.04. 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, other than the Trustee, under this Indenture shall,
upon and in accordance with demand of the Company, be paid to the Trustee and
thereupon such paying agent shall be released from all further liability with
respect to such moneys.
SECTION 12.05. Return of Unclaimed Moneys. Any moneys
deposited with the Trustee or any paying agent not applied but remaining
unclaimed by the holders of Securities for 2 years after the date upon which the
principal of and premium, if any, or interest on such Securities shall have
become due and payable shall be repaid to the Company by the Trustee or such
paying agent on written demand; and the holder of any of the Securities entitled
to receive such payment shall thereafter look only to the Company for the
payment thereof and all liability of the Trustee or any such paying agent with
respect to such moneys shall thereupon cease. In the absence of any such Company
Order, the Trustee or any such paying agent shall from time to time deliver such
unclaimed funds to, or as directed by, the pertinent escheat authority, as
identified by the Trustee or such paying agent in its sole discretion, pursuant
to and in accordance with applicable unclaimed property laws, rules or
regulations. Any such delivery shall be in accordance with the customary
practices and procedures of the Trustee or such paying agent and the escheat
authority and, upon any such delivery, all liability of the Trustee and such
paying agent with respect to such unclaimed funds shall thereupon cease.
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ARTICLE THIRTEEN
Immunity of Incorporators, Stockholders, Officers and Directors
SECTION 13.01. Personal Immunity from Liability of
Incorporators, Stockholders, etc. No recourse under or upon any obligation,
covenant or agreement of this Indenture or any indenture supplemental hereto, or
of any Security, or for any claim based thereon or otherwise in respect thereof,
shall be had against any incorporator or against any past, present or future
stockholder, officer or member of the Board of Directors, as such, of the
Company or of any successor corporation, either directly or through the Company
or any 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 and any and all such claims being hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issue of the Securities.
ARTICLE FOURTEEN
Subordination
SECTION 14.01. Securities Subordinated to Senior Debt. With
respect to Securities of any series as to which, pursuant to Section 2.03(n), it
has been established that this Article Fourteen applies (herein called the
"Subordinated Securities"), the Company covenants and agrees, and each holder of
Subordinated Securities, by his acceptance thereof, likewise covenants and
agrees, that the indebtedness represented by the Subordinated Securities and the
payment of the principal of, premium, if any, and interest on each and all of
the Subordinated Securities are hereby expressly subordinate and junior to the
extent and in the manner hereinafter set forth, in right of payment to the prior
payment in full of all Senior Indebtedness. "Senior Indebtedness" means all
indebtedness of the Company for the repayment of money borrowed (whether or not
represented by bonds, debentures, notes or other securities) other than the
indebtedness evidenced by the Subordinated Securities and any indebtedness
subordinated to, or subordinated on parity with, the Subordinated Securities.
"Senior Indebtedness" does not include customer deposits or other amounts
securing obligations of others to the Company.
SECTION 14.02. Events of Subordination. In the event (a) of
any distribution of assets of the Company upon any dissolution, winding up,
liquidation or reorganization of the Company, whether in bankruptcy, insolvency,
reorganization or receivership proceedings or upon an assignment for the benefit
of creditors or any other marshalling of the assets and liabilities of the
Company or otherwise, except a distribution in connection with a consolidation,
merger or sale, transfer or lease of the properties of the Company which
complies with the requirements of Section 11.02, or (b) the principal of any
Senior Indebtedness shall have been declared due and payable by reason of an
event of default with respect thereto and such event of default shall not have
been rescinded, then:
(1) in the circumstance described in the
foregoing clause (a) the holders of all Senior Indebtedness,
and in the circumstance described in the
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foregoing clause (b) the holders of all Senior Indebtedness
outstanding at the time the principal of such Senior
Indebtedness shall have been so declared due and payable,
shall first be entitled to receive payment of
the full amount due thereon in respect of
principal, premium, if any, and interest, or provision shall
be made for such amount in money or money's worth, before the
holders of any of the Subordinated Securities are entitled to
receive any payment on account of the principal of, premium,
if any, or interest on the indebtedness evidenced by the
Subordinated Securities;
(2) any payment by, or distribution of
assets of, the Company of any kind or character, whether in
cash, property or securities (other than securities of the
Company as reorganized or readjusted or securities of the
Company or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in this Article
with respect to the Subordinated Securities, to the payment of
all Senior Indebtedness, provided that the rights of the
holders of the Senior Indebtedness are not altered by such
reorganization or readjustment), to which the holders of any
of the Subordinated Securities or the Trustee would be
entitled except for the provisions of this Article shall be
paid or delivered by the person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of
such Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such
Senior Indebtedness may have been issued, ratably according to
the aggregate amounts remaining unpaid on account of such
Senior Indebtedness held or represented by each, to the extent
necessary to make payment in full of all Senior Indebtedness
remaining unpaid after giving effect to any concurrent payment
or distribution (or provision therefor) to the holders of such
Senior Indebtedness, before any payment or distribution is
made to the holders of the indebtedness evidenced by the
Subordinated Securities or to the Trustee under this
Indenture; and
(3) in the event that, notwithstanding the
foregoing, any payment by, or distribution of assets of, the
Company of any kind or character, whether in cash, property or
securities (other than securities of the Company as
reorganized or readjusted or securities of the Company or any
other corporation provided for by a plan of reorganization or
readjustment the payment of which is subordinate, at least to
the extent provided in this Article with respect to the
Subordinated Securities, to the payment of all Senior
Indebtedness, provided that the rights of the holders of
Senior Indebtedness are not altered by such reorganization or
readjustment), shall be received by the Trustee or the holders
of any of the Subordinated Securities before all Senior
Indebtedness is paid in full, such payment or distribution
shall be paid over to the holders of such Senior Indebtedness
or their representative or representatives or to the trustee
or trustees under any indenture under which any instruments
evidencing any of such Senior Indebtedness may have been
issued, ratably as aforesaid, for application to the payment
of all Senior Indebtedness remaining unpaid until all such
Senior Indebtedness shall have been paid in full, after giving
effect to any concurrent payment or distribution (or provision
therefor) to the holders of such Senior Indebtedness.
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SECTION 14.03. Subrogation. Subject to the payment in full of
all Senior Indebtedness, the holders of the Subordinated Securities shall be
subrogated to the rights of the holders of such Senior Indebtedness to receive
payments or distribution of cash, property or securities of the Company
applicable to such Senior Indebtedness until all amounts owing on the
Subordinated Securities shall be paid in full, and, as among the Company, its
creditors other than holders of such Senior Indebtedness, and the holders of the
Subordinated Securities, no such payment or distribution made to the holders of
Senior Indebtedness by virtue of this Article which otherwise would have been
made to the holders of the Subordinated Securities shall be deemed to be a
payment by the Company on account of such Senior Indebtedness, it being
understood that the provisions of this Article are and are intended solely for
the purpose of defining the relative rights of the holders of the Subordinated
Securities, on the one hand, and the holders of Senior Indebtedness, on the
other hand.
SECTION 14.04. Obligation of Company Unconditional. Nothing
contained in this Article or elsewhere in this Indenture or in the Subordinated
Securities is intended to or shall impair, as among the Company, its creditors
other than the holders of Senior Indebtedness, and the holders of the
Subordinated Securities the obligation of the Company, which is absolute and
unconditional to pay to the holders of the Subordinated Securities the principal
of, premium, if any, and interest on the Subordinated Securities 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 the holders of the Subordinated
Securities and creditors of the Company other than the holders of Senior
Indebtedness, nor shall anything herein or therein prevent the Trustee or the
holder of any Subordinated Security from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article of the holders of Senior Indebtedness in
respect of cash, property or securities of the Company received upon the
exercise of any such remedy.
Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee and the holders of the Subordinated
Securities shall be entitled to rely upon any order or decree made by any court
of competent jurisdiction in which any such dissolution, winding up, liquidation
or reorganization proceeding affecting the affairs of the Company is pending or
upon a certificate of the trustee in bankruptcy, receiver, assignee for the
benefit of creditors, liquidating trustee or agent or other Person making any
payment or distribution, delivered to the Trustee or to the holders of the
Subordinated Securities, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount paid or distributed thereon and all other facts
pertinent thereto or to this Article. In the event that the Trustee determines,
in good faith, that further evidence is required with respect to the right of
any person as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Section, the Trustee may request such person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Indebtedness held by such Person, as to the extent to which such
Person is entitled to participate in such payment or distribution, and as to
other facts pertinent to the right of such Person under this Section, and if
such evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
SECTION 14.05. Payments on Subordinated Securities Permitted.
Nothing contained in this Article or elsewhere in this Indenture, or in any of
the Subordinated Securities,
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shall affect the obligation of the Company to make, or prevent the Company from
making, payments of the principal of, premium, if any, or interest on the
Subordinated Securities in accordance with the provision hereof and thereof, or
shall prevent the Trustee or any paying agent of the Company from applying any
moneys deposited with it hereunder to the payment of the principal of, premium,
if any, or interest on the Subordinated Securities, in each case except as
otherwise provided in this Article.
SECTION 14.06. Effectuation of Subordination by Trustee. Each
holder of Subordinated Securities, by his acceptance thereof, authorizes and
directs the Trustee in his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 14.07. Knowledge of Trustee. Notwithstanding the
provisions of this Article or any other provisions of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts which
would prohibit the making of any payment of moneys to or by the Trustee, or the
taking of any other action by the Trustee (and shall not be liable for making
such payment or taking such action), unless and until a responsible officer of
the Trustee having direct responsibility for the administration of this
Indenture assigned to the Corporate Trust Department of the Trustee (or any
successor division or department of the Trustee) located at the office of the
Trustee specified in or pursuant to Section 15.04shall have received written
notice thereof from the Company, any holder of Subordinated Securities, any
paying agent of the Company or any holder or representative of any class of
Senior Indebtedness, and, prior to the receipt of any such written notice, the
Trustee shall be entitled in all respects to assume that no such facts exist;
provided that, if prior to the third business day preceding the date upon which
by the terms hereof any monies become payable for any purpose (including,
without limitation, the payment of either the principal of or interest on any
Subordinated Security), or the date of the execution of an instrument pursuant
to Section 12.02 acknowledging satisfaction and discharge of this Indenture,
such responsible officer of the Trustee shall not have received with respect to
such monies or to such funds or obligations deposited pursuant to Section 12.02,
the notice provided for in this Section 14.07, then, anything herein contained
to the contrary notwithstanding, the Trustee shall have full power and authority
to receive such monies or such funds or obligations and apply the same to the
purpose for which they were received and shall not be affected by any notice to
the contrary which may be received by it on or after such date.
SECTION 14.08. Trustee's Relation to Senior Indebtedness. The
Trustee shall be entitled to all the rights set forth in this Article with
respect to any Senior Indebtedness at the time held by it, to the same extent as
any other holder of Senior Indebtedness, and nothing in Section 7.12 or
elsewhere in this Indenture shall deprive the Trustee of any of its rights as
such holder. Nothing in this Article shall apply to claims of or payments to the
Trustee under or pursuant to Section 7.06.
With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article, and no implied
covenants or obligations with respect to the holders of Senior Indebtedness
shall be read into this Indenture against the Trustee. The Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness, and the
Trustee shall not be liable to any holder of Senior Indebtedness, if it shall
mistakenly pay over or deliver to holders
- 48 -
of Subordinated Securities, the Company or any other Person monies or assets to
which any holder of Senior Indebtedness shall be entitled by virtue of this
Article or otherwise.
SECTION 14.09. Rights of Holders of Senior Indebtedness Not
Impaired. No right of any present or future holder of any Senior Indebtedness to
enforce the subordination herein shall at any time or in any way be prejudiced
or impaired by any act or failure to act on the part of the Company or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
ARTICLE FIFTEEN
Miscellaneous Provisions
SECTION 15.01. Successors. All the covenants,
stipulations, promises and agreements in this Indenture contained by or in
behalf of the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 15.02. Benefits of Indenture Restricted to Parties and
Securityholders. Nothing in this Indenture or in the Securities, expressed or
implied, shall give or be construed to give to any person, other than the
Company, the Trustee and the Securityholders, any legal or equitable right,
remedy or claim under or in respect of this Indenture.
SECTION 15.03. Payments Due on Sundays and Holidays. In any
case where the date of maturity of principal of or interest on any Securities or
the date fixed for redemption of any Securities shall be a Sunday or legal
holiday or a day on which banking institutions in the City of New York are
authorized by law to close, then payment of interest or principal and premium,
if any, may be made on the next succeeding business day with the same force and
effect as if made on the date of maturity or the date fixed for redemption and
no interest shall accrue for the period after such date.
SECTION 15.04. Notices and Demands on Company and Trustee. Any
notice or demand which by any provision of this Indenture is required or
permitted to be given or served by the Trustee or by the holders of Securities
on the Company shall be in writing and shall be deemed to have been sufficiently
given or served, for all purposes, if given or served at, or sent by registered
mail to, the principal office of the Company (until another address is filed in
writing by the Company with the Trustee). Any notice, direction, request or
demand by the Company or by any Securityholder to or upon the Trustee shall be
in writing and shall be deemed to have been sufficiently given or made, for all
purposes, if given or made at, or sent by registered mail to and received at,
the office of the Trustee located at 450 West 33rd Street, 15th Floor, New York,
New York 10001, Attention: Institutional Trust Services, or at any other address
previously furnished in writing to the Company by the Trustee. Any notice
required or permitted to be mailed to a Securityholder by the Company or the
Trustee pursuant to the provisions of this Indenture shall be in writing and
shall be deemed to be properly mailed by being deposited, first class mail
postage prepaid, in a post office letter box in the United States addressed to
such Securityholder at the address of such holder as shown on the Security
Register.
- 49 -
SECTION 15.05. Law of New York to Govern. This Indenture and
each Security shall be deemed to be a contract made under the law of the State
of New York, and for all purposes shall be governed by and construed in
accordance with the law of said State.
SECTION 15.06. Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the
Company to the Trustee to take any action under any of the provisions of this
Indenture, the Company shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent provided for in this Indenture relating to
the proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent have been
complied with, except that in the case of any such application or demand as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relative to such particular application or demand, no
additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture,
and delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture, shall include (1) a statement that the
person making such certificate or opinion has read such covenant or condition
and the definitions herein relating thereto; (2) a brief statement as to the
nature and scope of the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are based; (3) a statement
that, in the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with; and (4) a
statement as to whether or not, in the opinion of such person, such condition or
covenant has been complied with.
SECTION 15.07. Conflict of any Provision of Indenture with
Trust Indenture Act of 1939. If and to the extent that any provision of this
Indenture (or any provision of the terms of a series of Securities) limits,
qualifies or conflicts with another provision included in this Indenture which
is required to be included in this Indenture by any of sections 310 to 317,
inclusive, of the Trust Indenture Act of 1939, such required provision shall
control.
SECTION 15.08. Counterparts. This Indenture may be
executed in any number of counterparts, each of which shall be an original; but
such counterparts shall together constitute but one and the same instrument.
SECTION 15.09. Severability. If any provision of this
Indenture shall be held or deemed to be or shall, in fact, be inoperative or
unenforceable as applied in any particular case in any jurisdiction or
jurisdictions or in all jurisdictions, or in all cases because it conflicts with
any other provision or provisions hereof or any constitution or statute or rule
of public policy or for any other reason, such circumstances shall not have the
effect of rendering the provision in question inoperative or unenforceable in
any other case or circumstance, or of rendering any other provision or
provisions herein contained invalid, inoperative, or unenforceable to any extent
whatever.
- 50 -
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
CONSOLIDATED EDISON, INC.
By /s/ Joan S. Freilich
Joan S. Freilich
Executive Vice President and Chief
Financial Officer
[CORPORATE SEAL]
ATTEST:
/s/ Saddie L. Smith
Saddie L. Smith
Secretary
JPMORGAN CHASE BANK,
Trustee
By /s/ James P. Freeman
James P. Freeman
Vice President
[CORPORATE SEAL]
ATTEST:
/s/ Natalie B. Pesce
Natalie B. Pesce
Trust Officer
- 51 -
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
On the 3rd day of April, 2002 before me personally came Joan S.
Freilich, to me known, who, being by me duly sworn, did depose and say that she
is an Executive Vice President and Chief Financial Officer of CONSOLIDATED
EDISON, INC., one of the corporations described in and which executed the above
instrument; that he knows the corporate seal of said corporation; that the seal
affixed to the said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation; and that he signed his
name thereto by like authority.
[NOTORIAL SEAL]
/s/ Kathy Williams
Kathy Williams
Notary Public, State of New York
No. 01WI6046458
Qualified in Westchester County
Commission Expires August 14, 2002
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
On the 3rd day of April, 2002 before me personally came James P.
Freeman, to me known, who, being by me duly sworn, did depose and say that he is
a Vice President of JPMORGAN CHASE BANK, one of the corporations described in
and which executed the above instrument; that he knows the corporate seal of
said corporation; that the seal affixed to the said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
[NOTORIAL SEAL]
/s/ Kathy Williams
Kathy Williams
Notary Public, State of New York
No. 01WI6046458
Qualified in Westchester County
Commission Expires August 14, 2002
CONSOLIDATED EDISON, INC.
Combined Ratio
Periods Ending
(Thousands of Dollars)
DECEMBER DECEMBER DECEMBER DECEMBER DECEMBER SEPTEMBER
1997 1998 1999 2000 2001 2002
-------------- --------- ---------- --------- ---------- ---------
Earnings
Net Income for Common Stock $694,479 $712,742 $700,615 $582,835 $682,242 $527,715
Preferred Dividends 18,344 17,007 13,593 13,593 13,593 9,627
State Income Tax - - - 23,636 134,562 77,462
Federal Income Tax 357,100 318,980 838,213 92,464 332,142 113,504
Federal Income Tax Deferred 31,450 95,140 (428,008) 199,146 (16,938) 139,167
Investment Tax Credits Deferred (8,830) (8,710) (37,380) (8,078) (7,135) (4,231)
-------------- --------- ---------- --------- ---------- ---------
Total Earnings Before Income Tax 1,092,543 1,135,159 1,087,033 903,596 1,138,466 863,244
Fixed Charges* 353,689 345,513 357,178 431,217 457,554 333,507
-------------- --------- ---------- --------- ---------- ---------
Total Earnings Before Income Tax
and Fixed Charges $1,446,232 $1,480,672 $1,444,211 $1,334,813 $1,596,020 $1,196,751
============== ========= ========== ========= ========== =========
* Fixed Charges
Interest on Long-Term Debt $306,109 $294,894 $305,879 $351,410 $384,422 $286,499
Amortization of Debt Discount,
Premium and Expense 12,049 13,777 13,514 12,584 12,526 9,311
Interest on Component of Rentals 18,448 18,442 17,720 17,697 18,783 10,445
Other Interest 17,083 18,400 20,065 49,526 41,823 27,252
-------------- --------- ---------- --------- ---------- ---------
Total Fixed Charges $353,689 $345,513 $357,178 $431,217 $457,554 $333,507
Preferred Stock Dividend Requirements 28,222 26,573 20,595 20,595 22,284 15,527
-------------- --------- ---------- --------- ---------- ---------
Total Fixed Charges + Pref
Stock Div Requirements $381,911 $372,086 $377,773 $451,813 $479,838 $349,034
============== ========= ========== ========= ========== =========
Ratio of Earnings to Fixed Charges 3.79 3.98 3.82 2.95 3.33 3.43
December 19, 2002
Consolidated Edison, Inc.
4 Irving Place
New York, New York 10003
Re: Securities Being Registered Under the Securities Act of 1933
Ladies and Gentlemen:
I am the Vice President - Legal Services of Consolidated
Edison, Inc.'s ("Con Edison ") principal subsidiary, Consolidated Edison Company
of New York, Inc. ("Con Edison of New York"), acting as counsel to Con Edison. I
and other members of Con Edison of New York's Law Department have represented
Con Edison in connection with the filing by Con Edison with the Securities and
Exchange Commission of a Registration Statement on Form S-3 registering
$500,000,000 of Con Edison's unsecured debt securities, Preferred Shares ($1.00
par value) and Common Shares ($.10 par value) (the "Securities") for issuance
from time to time pursuant to Rule 415 under the Securities Act of 1933 (the
"Registration Statement").
I have examined such documents as I have deemed necessary for the
purpose of this opinion, including (a) the Restated Certificate of Incorporation
and the By-Laws of Con Edison; (b) the Indenture included as Exhibit 4.1 to the
Registration Statement (the "Indenture") pursuant to which Securities that are
debt securities are to be issued; and (c) minutes of meetings of the Board of
Directors of Con Edison. It is my opinion that the Securities, if issued as debt
securities, will be the legal, valid and binding obligations of Con Edison in
accordance with their terms and, if issued as Preferred Shares or Common Shares,
will be legally issued, fully paid and non-assessable, upon:
1. the due authorization and execution of the Securities by Con
Edison;
2. if the Securities are debt securities, the due authentication
and delivery of the Securities in accordance with the
Indenture; and
3. the receipt by Con Edison of payment for the Securities at the
price and in accordance with the terms set forth in the
Registration Statement and the supplement or supplements to
the prospectus constituting a part thereof.
I consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to me under the caption "Legal
Matters" in the prospectus constituting a part of the Registration Statement.
However, in giving such consent, I do not thereby admit that I come within the
category of persons whose consent is required under Section 7 of the Securities
Act of 1933, as amended, or the rules and regulations thereunder.
Very truly yours,
/s/ PETER A. IRWIN
Peter A. Irwin
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated February 21, 2002 relating to the
financial statements and financial statement schedule of Consolidated Edison,
Inc., which appears in the combined Annual Report on Form 10-K of Consolidated
Edison, Inc., Consolidated Edison Company of New York, Inc. and Orange and
Rockland Utilities, Inc. for the year ended December 31, 2001. We also consent
to the reference to us under the heading "Experts" in such Registration
Statement.
PRICEWATERHOUSECOOPERS LLP
New York, New York
December 19, 2002
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Eugene R. McGrath, Joan S.
Freilich, Edward J. Rasmussen, Robert P. Stelben and Peter A. Irwin, and each of
them (with full power to act without the others), the true and lawful
attorneys-in-fact and agents for and on behalf of the undersigned, and in the
undersigned's name, place and stead, in the undersigned's capacity as a Director
or Officer or both, as the case may be, of Consolidated Edison, Inc. ("Con
Edison") to sign one or more Registration Statements under the Securities Act of
1933 to be filed by Con Edison with the Securities and Exchange Commission with
respect to $500 million of debt, equity or other securities and exchange offers
relating to such securities, and any and all amendments of such Registration
Statements.
IN WITNESS WHEREOF, the undersigned has executed this instrument this 17th day
of October 2002.
Vincent A. Calarco
Vincent A. Calarco
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Eugene R. McGrath, Joan S.
Freilich, Edward J. Rasmussen, Robert P. Stelben and Peter A. Irwin, and each of
them (with full power to act without the others), the true and lawful
attorneys-in-fact and agents for and on behalf of the undersigned, and in the
undersigned's name, place and stead, in the undersigned's capacity as a Director
or Officer or both, as the case may be, of Consolidated Edison, Inc. ("Con
Edison") to sign one or more Registration Statements under the Securities Act of
1933 to be filed by Con Edison with the Securities and Exchange Commission with
respect to $500 million of debt, equity or other securities and exchange offers
relating to such securities, and any and all amendments of such Registration
Statements.
IN WITNESS WHEREOF, the undersigned has executed this instrument this 17th day
of October 2002.
George Campbell, Jr.
George Campbell, Jr.
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Eugene R. McGrath, Joan S.
Freilich, Edward J. Rasmussen, Robert P. Stelben and Peter A. Irwin, and each of
them (with full power to act without the others), the true and lawful
attorneys-in-fact and agents for and on behalf of the undersigned, and in the
undersigned's name, place and stead, in the undersigned's capacity as a Director
or Officer or both, as the case may be, of Consolidated Edison, Inc. ("Con
Edison") to sign one or more Registration Statements under the Securities Act of
1933 to be filed by Con Edison with the Securities and Exchange Commission with
respect to $500 million of debt, equity or other securities and exchange offers
relating to such securities, and any and all amendments of such Registration
Statements.
IN WITNESS WHEREOF, the undersigned has executed this instrument this 15th day
of October 2002.
Gordon J. Davis
Gordon J. Davis
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Eugene R. McGrath, Joan S.
Freilich, Edward J. Rasmussen, Robert P. Stelben and Peter A. Irwin, and each of
them (with full power to act without the others), the true and lawful
attorneys-in-fact and agents for and on behalf of the undersigned, and in the
undersigned's name, place and stead, in the undersigned's capacity as a Director
or Officer or both, as the case may be, of Consolidated Edison, Inc. ("Con
Edison") to sign one or more Registration Statements under the Securities Act of
1933 to be filed by Con Edison with the Securities and Exchange Commission with
respect to $500 million of debt, equity or other securities and exchange offers
relating to such securities, and any and all amendments of such Registration
Statements.
IN WITNESS WHEREOF, the undersigned has executed this instrument this 16th day
of October 2002.
Michael J. Del Giudice
Michael J. Del Giudice
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Eugene R. McGrath, Joan S.
Freilich, Edward J. Rasmussen, Robert P. Stelben and Peter A. Irwin, and each of
them (with full power to act without the others), the true and lawful
attorneys-in-fact and agents for and on behalf of the undersigned, and in the
undersigned's name, place and stead, in the undersigned's capacity as a Director
or Officer or both, as the case may be, of Consolidated Edison, Inc. ("Con
Edison") to sign one or more Registration Statements under the Securities Act of
1933 to be filed by Con Edison with the Securities and Exchange Commission with
respect to $500 million of debt, equity or other securities and exchange offers
relating to such securities, and any and all amendments of such Registration
Statements.
IN WITNESS WHEREOF, the undersigned has executed this instrument this 17th day
of October 2002.
Joan S. Freilich
Joan S. Freilich
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Eugene R. McGrath, Joan S.
Freilich, Edward J. Rasmussen, Robert P. Stelben and Peter A. Irwin, and each of
them (with full power to act without the others), the true and lawful
attorneys-in-fact and agents for and on behalf of the undersigned, and in the
undersigned's name, place and stead, in the undersigned's capacity as a Director
or Officer or both, as the case may be, of Consolidated Edison, Inc. ("Con
Edison") to sign one or more Registration Statements under the Securities Act of
1933 to be filed by Con Edison with the Securities and Exchange Commission with
respect to $500 million of debt, equity or other securities and exchange offers
relating to such securities, and any and all amendments of such Registration
Statements.
IN WITNESS WHEREOF, the undersigned has executed this instrument this 17th day
of October 2002.
Ellen V. Futter
Ellen V. Futter
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Eugene R. McGrath, Joan S.
Freilich, Edward J. Rasmussen, Robert P. Stelben and Peter A. Irwin, and each of
them (with full power to act without the others), the true and lawful
attorneys-in-fact and agents for and on behalf of the undersigned, and in the
undersigned's name, place and stead, in the undersigned's capacity as a Director
or Officer or both, as the case may be, of Consolidated Edison, Inc. ("Con
Edison") to sign one or more Registration Statements under the Securities Act of
1933 to be filed by Con Edison with the Securities and Exchange Commission with
respect to $500 million of debt, equity or other securities and exchange offers
relating to such securities, and any and all amendments of such Registration
Statements.
IN WITNESS WHEREOF, the undersigned has executed this instrument this 17th day
of October 2002.
Sally Hernandez-Pinero
Sally Hernandez-Pinero
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Eugene R. McGrath, Joan S.
Freilich, Edward J. Rasmussen, Robert P. Stelben and Peter A. Irwin, and each of
them (with full power to act without the others), the true and lawful
attorneys-in-fact and agents for and on behalf of the undersigned, and in the
undersigned's name, place and stead, in the undersigned's capacity as a Director
or Officer or both, as the case may be, of Consolidated Edison, Inc. ("Con
Edison") to sign one or more Registration Statements under the Securities Act of
1933 to be filed by Con Edison with the Securities and Exchange Commission with
respect to $500 million of debt, equity or other securities and exchange offers
relating to such securities, and any and all amendments of such Registration
Statements.
IN WITNESS WHEREOF, the undersigned has executed this instrument this 16th day
of October 2002.
Peter W. Likins
Peter W. Likins
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Eugene R. McGrath, Joan S.
Freilich, Edward J. Rasmussen, Robert P. Stelben and Peter A. Irwin, and each of
them (with full power to act without the others), the true and lawful
attorneys-in-fact and agents for and on behalf of the undersigned, and in the
undersigned's name, place and stead, in the undersigned's capacity as a Director
or Officer or both, as the case may be, of Consolidated Edison, Inc. ("Con
Edison") to sign one or more Registration Statements under the Securities Act of
1933 to be filed by Con Edison with the Securities and Exchange Commission with
respect to $500 million of debt, equity or other securities and exchange offers
relating to such securities, and any and all amendments of such Registration
Statements.
IN WITNESS WHEREOF, the undersigned has executed this instrument this 17th day
of October 2002.
Eugene R. McGrath
Eugene R. McGrath
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Eugene R. McGrath, Joan S.
Freilich, Edward J. Rasmussen, Robert P. Stelben and Peter A. Irwin, and each of
them (with full power to act without the others), the true and lawful
attorneys-in-fact and agents for and on behalf of the undersigned, and in the
undersigned's name, place and stead, in the undersigned's capacity as a Director
or Officer or both, as the case may be, of Consolidated Edison, Inc. ("Con
Edison") to sign one or more Registration Statements under the Securities Act of
1933 to be filed by Con Edison with the Securities and Exchange Commission with
respect to $500 million of debt, equity or other securities and exchange offers
relating to such securities, and any and all amendments of such Registration
Statements.
IN WITNESS WHEREOF, the undersigned has executed this instrument this 17th day
of October 2002.
Edward J. Rasmussen
Edward J. Rasmussen
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Eugene R. McGrath, Joan S.
Freilich, Edward J. Rasmussen, Robert P. Stelben and Peter A. Irwin, and each of
them (with full power to act without the others), the true and lawful
attorneys-in-fact and agents for and on behalf of the undersigned, and in the
undersigned's name, place and stead, in the undersigned's capacity as a Director
or Officer or both, as the case may be, of Consolidated Edison, Inc. ("Con
Edison") to sign one or more Registration Statements under the Securities Act of
1933 to be filed by Con Edison with the Securities and Exchange Commission with
respect to $500 million of debt, equity or other securities and exchange offers
relating to such securities, and any and all amendments of such Registration
Statements.
IN WITNESS WHEREOF, the undersigned has executed this instrument this 17th day
of October 2002.
Frederic V. Salerno
Frederic V. Salerno
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Eugene R. McGrath, Joan S.
Freilich, Edward J. Rasmussen, Robert P. Stelben and Peter A. Irwin, and each of
them (with full power to act without the others), the true and lawful
attorneys-in-fact and agents for and on behalf of the undersigned, and in the
undersigned's name, place and stead, in the undersigned's capacity as a Director
or Officer or both, as the case may be, of Consolidated Edison, Inc. ("Con
Edison") to sign one or more Registration Statements under the Securities Act of
1933 to be filed by Con Edison with the Securities and Exchange Commission with
respect to $500 million of debt, equity or other securities and exchange offers
relating to such securities, and any and all amendments of such Registration
Statements.
IN WITNESS WHEREOF, the undersigned has executed this instrument this 17th day
of October 2002.
Richard A. Voell
Richard A. Voell
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Eugene R. McGrath, Joan S.
Freilich, Edward J. Rasmussen, Robert P. Stelben and Peter A. Irwin, and each of
them (with full power to act without the others), the true and lawful
attorneys-in-fact and agents for and on behalf of the undersigned, and in the
undersigned's name, place and stead, in the undersigned's capacity as a Director
or Officer or both, as the case may be, of Consolidated Edison, Inc. ("Con
Edison") to sign one or more Registration Statements under the Securities Act of
1933 to be filed by Con Edison with the Securities and Exchange Commission with
respect to $500 million of debt, equity or other securities and exchange offers
relating to such securities, and any and all amendments of such Registration
Statements.
IN WITNESS WHEREOF, the undersigned has executed this instrument this 17th day
of October 2002.
Stephen R. Volk
Stephen R. Volk
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
JPMorgan Chase Bank
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
CONSOLIDATED EDISON, INC.
(Exact name of obligor as specified in its charter)
New York 13-3965100
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
4 Irving Place
New York, New York 10003
(Address of principal executive offices) (Zip Code)
Debt Securities
(Title of the indenture securities)
-2-
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House,
Albany, New York 12110.
Board of Governors of the Federal Reserve System,
Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2,
33 Liberty Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 3 -
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Restated Organization Certificate of the Trustee dated
March 25, 1997 and the Certificate of Amendment dated October 22, 2001 (see
Exhibit 1 to Form T-1 filed in connection with Registration Statement No.
333-76894, which is incorporated by reference.)
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference). On November 11,
2001, in connection with the merger of The Chase Manhattan Bank and Morgan
Guaranty Trust Company of New York, the surviving corporation was renamed
JPMorgan Chase Bank.
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 333-76894, which is
incorporated by reference.)
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference). On November 11, 2001, in
connection with the merger of The Chase Manhattan Bank and Morgan Guaranty Trust
Company of New York, the surviving corporation was renamed JPMorgan Chase Bank.
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, JPMorgan Chase Bank, a corporation organized and existing under the
laws of the State of New York, has duly caused this statement of eligibility to
be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 5th day of December, 2002.
JPMORGAN CHASE BANK
By /S/ Larry O'Brien
Larry O'Brien
Vice President
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Restated Organization Certificate of the Trustee dated
March 25, 1997 and the Certificate of Amendment dated October 22, 2001 (see
Exhibit 1 to Form T-1 filed in connections with Registration Statement No.
333-76894, which is incorporated by reference.)
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference). On November 11,
2001, in connection with the merger of The Chase Manhattan Bank and Morgan
Guaranty Trust Company of New York, the surviving corporation was renamed
JPMorgan Chase Bank.
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement 333-76894, which is
incorporated by reference.)
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference). On November 11, 2001, in
connection with the merger of The Chase Manhattan Bank and Morgan Guaranty Trust
Company of New York, the surviving corporation was renamed JPMorgan Chase Bank.
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, JPMorgan Chase Bank, a corporation organized and existing under the
laws of the State of New York, has duly caused this statement of eligibility to
be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 5th day of December, 2002.
JPMORGAN CHASE BANK
By /S/ Larry O'Brien
Larry O'Brien
Vice President
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
JPMorgan Chase Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30, 2002,
in accordance with a call made by the Federal Reserve
Bank of this District pursuant to the provisions of
the Federal Reserve Act.
Dollar Amounts
ASSETS in Millions
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ........................................... $ 17,141
Interest-bearing balances ................................... 13,564
Securities:
Held to maturity securities........................................ 408
Available for sale securities...................................... 74,344
Federal funds sold and securities purchased under
agreements to resell ..........................................
Federal funds sold in domestic offices 7,094
Securities purchased under agreements to resell 72,512
Loans and lease financing receivables:
Loans and leases held for sale................................. 17,153
Loans and leases, net of unearned income $161,915
Less: Allowance for loan and lease losses 3,458
Loans and leases, net of unearned income and
allowance ..................................................... 158,457
Trading Assets..................................................... 186,290
Premises and fixed assets (including capitalized leases)........... 6,177
Other real estate owned............................................ 57
Investments in unconsolidated subsidiaries and
associated companies........................................... 326
Customers' liability to this bank on acceptances
outstanding ................................................... 281
Intangible assets
Goodwill.................................................. 2,168
Other Intangible assets.......................................... 3,696
Other assets ..................................................... 45,403
TOTAL ASSETS ..................................................... $605,071
- 4 -
LIABILITIES
Deposits
In domestic offices .......................................... $167,400
Noninterest-bearing ..................... $66,691
Interest-bearing ........................ 100,709
In foreign offices, Edge and Agreement
subsidiaries and IBF's ........................................ 118,273
Noninterest-bearing..................... $ 8,445
Interest-bearing ....................... 109,828
Federal funds purchased and securities sold under agree- ments to repurchase:
Federal funds purchased in domestic offices.................... 6,317
Securities sold under agreements to repurchase................. 105,558
Trading liabilities ............................................... 126,199
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases)...................... 11,025
Bank's liability on acceptances executed and outstanding........... 304
Subordinated notes and debentures ................................. 7,895
Other liabilities ................................................. 25,977
TOTAL LIABILITIES ................................................. 568,948
Minority Interest in consolidated subsidiaries..................... 91
EQUITY CAPITAL
Perpetual preferred stock and related surplus...................... 0
Common stock ...................................................... 1,785
Surplus (exclude all surplus related to preferred stock).......... 16,304
Retained earnings.................................................. 16,560
Accumulated other comprehensive income............................. 1,383
Other equity capital components.................................... 0
TOTAL EQUITY CAPITAL .............................................. 36,032
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TOTAL LIABILITIES, MINORITY INTEREST, AND EQUITY CAPITAL $605,071
==========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the in- structions
issued by the appropriate Federal regulatory authority and is true and correct.
WILLIAM B. HARRISON, JR.)
HANS W. BECHERER ) DIRECTORS
LAWRENCE A. BOSSIDY )