CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.
AND
THE CHASE MANHATTAN BANK
(National Association), Trustee
__________
FIRST SUPPLEMENTAL INDENTURE
Dated as of March 6, 1996
__________
Providing for the Issuance of Debt Securities
This First Supplemental Indenture, dated as of March 6,
1996, between CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., a
corporation organized and existing under the laws of the State of
New York (herein called the "Company") and THE CHASE MANHATTAN
BANK (National Association), a national banking association
(herein called the "Trustee"):
WHEREAS, the Company has executed and delivered to the
Trustee an Indenture, dated as of December 1, 1990, (the
"Indenture") to provide for the issuance in one or more series of
its unsecured debentures, notes or other evidences of
indebtedness (herein called the "Securities") and to provide for
the general terms and conditions upon which the Securities are to
be authenticated, issued and delivered; and
WHEREAS, in accordance with Section 10.01(b) of the
Indenture, the Company and the Trustee, without the consent of
Securityholders, may enter into indentures supplemental to the
Indenture for the purpose of adding to the covenants and
agreements contained therein such further covenants and
agreements for the protection of the holders of the Securities of
all or any series as the Company's Board of Trustees and the
Trustee shall consider to be for the protection of such series;
and
WHEREAS, in accordance with Section 10.01(e) of the
Indenture, the Company and the Trustee, without the consent of
Securityholders, may enter into indentures supplemental to the
Indenture for the purpose of adding to the terms under which the
Securities of any series may be issued; and
WHEREAS, the Company has duly authorized the execution and
delivery of this First Supplemental Indenture to amend and
supplement the Indenture to provide for the issuance in one or
more series of Subordinated Securities (as defined in Exhibit A
hereto) that are subordinate in the right of payment to the prior
payment in full of all Senior Indebtedness (as defined in Exhibit
A hereto); and
WHEREAS, the Trustee has power to enter into this First
Supplemental Indenture; and
WHEREAS, all conditions and requirements necessary to make
this First Supplemental Indenture a valid, binding and legal
instrument in accordance with its terms have been done, performed
and fulfilled, and the execution and delivery of this First
Supplemental Indenture has been authorized in accordance with the
resolution of the Company's Board of Trustees;
NOW, THEREFORE, in consideration of the premises and of the
sum of $1 duly paid by the Trustee at the execution of these
presents, the receipt of which is hereby acknowledged, the
Company covenants and agrees with the Trustee as follows:
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ARTICLE ONE
Amendments to the Indenture
Section 1.01. Amendment to Section 2.03 of the Indenture.
Section 2.03 of the Indenture is hereby amended by changing the
designation of subsection "(m)" to subsection "(o)", and Section
2.03 is further amended by adding the following as subsections
"(m)" and "(n)":
"(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 15 are to apply to the
Securities of the series, a statement indicating the same; and"
Section 1.02. Addition of Section 2.09. The Indenture is
hereby amended by adding the following as Section 2.09:
"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."
Section 1.03. Addition of Article 15. The Indenture is
hereby amended by adding Exhibit A hereto as Section 15 of the
Indenture.
ARTICLE TWO
Miscellaneous
Section 2.01. Definitions. Unless the context shall
otherwise require and except as to terms otherwise defined
herein, all terms used herein which are defined in the Indenture
are used herein as defined therein.
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IN WITNESS WHEREOF, the parties hereto have caused this
First Supplemental 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 COMPANY
OF NEW YORK, INC.
By RAYMOND J. MCCANN
Executive Vice President and
Chief Financial Officer
[CORPORATE SEAL]
Attest:
PETER A. IRWIN
Assistant Secretary
THE CHASE MANHATTAN BANK
(National Association), Trustee
By VALERIE DUNBAR
Vice President
[CORPORATE SEAL]
Attest:
JOHN J. NEEDHAM, JR.
Assistant Secretary
EXHIBIT A
ARTICLE FIFTEEN
Subordination
Section 15.01. 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 15
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 15.02. 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 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;
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(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
of 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 15.03. 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 15.04. 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
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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 15.05. Payments on Subordinated Securities Permitted.
Nothing contained in this Article or elsewhere in this Indenture,
or in any of the Subordinated Securities, 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 15.06. 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 15.07. 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 responsibility for the
administration of the trust established by this Indenture shall
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
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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, a 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 15.07, 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 15.08. 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 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 15.09. 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.