As filed with the Securities and Exchange Commission on July 28, 1995
Registration No. 33-59383
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 1
to
Form S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Green Mountain Power Corporation
(Exact name of registrant as specified in its charter)
Vermont 03-0127430
(State of incorporation) (I.R.S. Employer
Identification No.)
25 Green Mountain Drive
South Burlington, Vermont 05403
Telephone number: (802) 864-5731
(Address of principal executive offices)
Christopher L. Dutton Peter H. Zamore
Vice President, Chief Financial Officer General Counsel
and Treasurer Green Mountain Power Corporation
Green Mountain Power Corporation 25 Green Mountain Drive
25 Green Mountain Drive South Burlington, Vermont 05403
South Burlington, Vermont 05403 Telephone: (802) 864-5731
Telephone: (802) 864-5731
(Name, address, and telephone number, including area codes, of agents of
service)
SUBJECT TO COMPLETION, DATED , 1995
PROSPECTUS
GREEN MOUNTAIN POWER CORPORATION
First Mortgage Bonds
Unsecured Notes
Common Stock
Green Mountain Power Corporation (the Company) intends from time
to time to sell its First Mortgage Bonds (the New Bonds), Unsecured
Notes (the Notes) and/or Common Stock, $3.33 1/3 par value (the New
Common Stock) (the New Bonds and the Notes being collectively
referred to herein as the Debt Securities, and the Debt Securities
and the New Common Stock being collectively referred to herein as the
Securities) in any combination at an aggregate initial offering price
not to exceed $50,000,000. The Securities will be offered at prices
and on terms to be determined at the times of sale. For each issue
of the Debt Securities for which this Prospectus will be delivered,
there will be an accompanying Prospectus Supplement, together with
any accompanying Pricing Supplement, that will set forth, with
respect to the Debt Securities of such issue, (i) the series
designation and aggregate principal amount thereof, (ii) the initial
public offering price and other terms of their offering, (iii) the
date or dates on which they will mature, (iv) the rate or rates per
annum at which they will bear interest, (v) the times at which such
interest will be payable and the date from which it will accrue, (vi)
whether all or any portion thereof will be issued to a designated
depositary, (vii) any redemption or repayment provisions, and (viii)
other specific terms. For each issue of the New Common Stock for
which this Prospectus will be delivered, there will be an
accompanying Prospectus Supplement that will set forth the terms of
the offering. The Common Stock is traded on the New York Stock
Exchange. Its price and volume data are reported on the New York
Stock Exchange using the symbol "GMP". The sale of one of the
Securities will not be contingent upon the sale of any other.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR BY ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
The Securities may be sold directly by the Company or through
agents designated from time to time or through underwriters or
dealers. If any agents of the Company or any underwriters are
involved in the sale of the Securities in respect of which this
Prospectus will be delivered, the names of such agents or
underwriters, and the initial price to the public, any applicable
commissions or discounts and the net proceeds to the Company, or the
means of determining the same, will be set forth in an accompanying
Prospectus Supplement or Supplements. The Company may indemnify
agents and underwriters against certain civil liabilities, including
liabilities under the Securities Act of 1933, as amended. See "Plan
of Distribution".
The date of this Prospectus is , 1995.
Information contained herein is subject to completion or amendment.
A registration statement relating to these securities has been filed with
the Securities and Exchange Commission. These securities may not be sold
nor may offers to buy be accepted prior to the time the registration
statement becomes effective. This prospectus shall not constitute an
offer to sell or the solicitation of an offer to buy nor shall there be
any sale of these securities in any State in which such offer,
solicitation or sale would be unlawful prior to registration or
qualification under the securities laws of any such State.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the Exchange Act) and, in
accordance therewith, files reports, proxy statements and other
information with the Securities and Exchange Commission (the Commission).
The Registration Statement and such exhibits and schedules may be
inspected without charge at the public reference facilities maintained by
the Commission at 450 Fifth Street, N.W., Washington, D.C., and at the
regional offices of the Commission located at Seven World Trade Center,
Suite 1300, New York, New York 10048, and 500 West Madison Street, Suite
1400, Chicago, Illinois 60661, at prescribed rates. Copies of such
material may also be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549. The
Company's Common Stock is listed on the New York Stock Exchange. Such
reports, proxy statements and other information concerning the Company can
also be inspected at the offices of the New York Stock Exchange, 20 Broad
Street, New York, New York 10005.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, heretofore filed with the Commission (File
No. 1-8291) pursuant to the Exchange Act, are hereby incorporated by
reference:
(1) The Company's Annual Report on Form 10-K for the year ended
December 31, 1994.
(2) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1995.
All documents filed by the Company pursuant to Section 13(a) and (c),
14 or 15(d) of the Securities and Exchange Act after the date of this
Prospectus and prior to the termination of this offering shall be deemed
to be incorporated by reference into this Prospectus and to be a part
hereof from the date of filing of such documents. Any statement contained
in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded, for purposes of this
Prospectus, to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement.
Any statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
The Company hereby undertakes to provide, without charge, to each
person, including any beneficial owner, to whom a copy of this Prospectus
shall have been delivered, upon the written or oral request of any such
person, a copy of any or all of the documents which have been or may be
incorporated in this Prospectus by reference, other than exhibits to such
documents, unless such exhibits are specifically incorporated by reference
into such documents. Written or telephone requests for such copies should
be directed to the Corporate Secretary, Green Mountain Power Corporation,
25 Green Mountain Drive, P. O. Box 850, South Burlington, Vermont 05402-
0850 (Telephone 802-864-5731).
THE COMPANY
The Company is a public utility operating company engaged in
supplying electrical energy in the State of Vermont in a territory with an
estimated population of 195,000. The Company has its principal executive
office at 25 Green Mountain Drive, P. O. Box 850, South Burlington,
Vermont 05402-0850 (Telephone 802-864-5731.) It serves approximately
80,500 customers.
RATIO OF EARNINGS TO FIXED CHARGES
As computed in accordance with Regulation S-K of the Commission, the
Company's ratios of earnings to fixed charges for each of the years 1990
through 1994, and for the twelve months ended March 31, 1995, are as
follows:
Ratio of
Earnings to
Year Ended Fixed Charges (1)
December 31, 1990 2.47
December 31, 1991 2.73
December 31, 1992 3.01
December 31, 1993 2.78
December 31, 1994 2.74
Twelve Months Ended March 31, 1995 2.67
______
(1) Earnings consist of pretax income plus fixed charges as defined in
Item 503 paragraph (d)(3). Fixed charges computed pursuant to paragraph
(d)(4) of Item 503 consist of interest on all indebtedness, amortization
of debt expense and discount or premium relating to any indebtedness,
and the estimated interest portion of rentals charged to income.
USE OF PROCEEDS AND FINANCING PROGRAM
The net proceeds to be received by the Company from the sale of the
Securities will be applied to the refunding of long-term debt, the
financing of capital projects and the repayment of short-term bank
borrowings incurred for such purposes and for other general corporate
purposes.
The Company expects its capital expenditures in 1995 to be
approximately $22 million. The Company expects such expenditures for the
five-year period, 1995-99, to aggregate approximately $93.5 million.
The Company anticipates that for the period 1995 - 1999, internally
generated funds will provide approximately 90 percent of total capital
expenditure requirements. The remaining amount, plus funds required to
meet sinking fund requirements and debt maturities totaling approximately
$34.9 million, will be funded through short-term borrowings, which will be
refinanced periodically through the sale of long-term debt and equity
securities, in such amounts and at such times as the Company's cash
requirements and market conditions shall determine.
DESCRIPTION OF THE NEW BONDS
The statements under this caption are intended to summarize the New
Bonds and the Mortgage; they do not purport to be complete and are
qualified in their entirety by reference to the New Bonds and the
Mortgage, copies of which have been filed as exhibits to the Registration
Statement of which this Prospectus is a part.
General. The New Bonds are to be issued under the Company's
Indenture of First Mortgage and Deed of Trust, dated as of February 1,
1955, to the United States Trust Company of New York [successor to the
Chase Manhattan Bank (National Association), successor to the Chase
National Bank of the City of New York], as trustee, as supplemented by 15
supplemental indentures and as to be further supplemented by one or more
additional supplemental indentures providing for one or more series of the
New Bonds, all of which are collectively referred to as the Mortgage.
Reference is made to the Prospectus Supplement or Supplements for
each issue of the New Bonds for the following terms, among others, of the
New Bonds offered thereby: (i) the series designation and aggregate
principal amount thereof, (ii) the initial public offering price and other
terms of their offering, (iii) the date or dates on which they will
mature, (iv) the rate or rates per annum at which they will bear interest,
(v) the times at which such interest will be payable and the date from
which it will accrue, (vi) whether all or any portion thereof will be
issued to a designated depositary, (vii) any redemption or repayment
provisions, and (viii) other specific terms.
Form, Exchange and Payment. Unless otherwise indicated in the
Prospectus Supplement for an issue of the New Bonds, the New Bonds offered
thereby will be issued only in the form of a fully registered global bond,
interests in which will be transferable by a book-entry system in
denominations of $1,000 and any multiple thereof. If definitive New Bonds
are exchanged for a global bond, they will be issued in denominations of
$1,000 and integral multiples of $1,000. See "Book-Entry System."
Security. The New Bonds together with all other bonds (Bonds) now or
hereafter issued under the Mortgage will be secured by the Mortgage,
which, in the opinion of Peter H. Zamore, Esq., General Counsel of the
Company, subject only to permitted encumbrances as defined in the
Mortgage, constitutes a valid, direct first mortgage lien upon the real
and personal property described or referred to in the Mortgage as owned by
the Company (other than classes of property expressly excepted in the
Mortgage and property heretofore released from the lien of the Mortgage in
accordance with the terms thereof), which include all of the physical
properties and franchises of the Company used or useful in its public
utility business; and all physical properties and franchises of the
Company used or useful in its public utility business (other than those of
the character not subject to the lien of the Mortgage as aforesaid)
acquired by the Company after the respective dates of the Original
Indenture and each Supplemental Indenture have become, or will upon such
acquisition become, subject to the lien thereof, subject, however, to
permitted encumbrances and to liens, if any, existing or placed thereon by
the Company at the time of the acquisition thereof by the Company and,
subject, in the case of after acquired properties located in
municipalities or counties in which the Mortgage has not been recorded at
or prior to the time of acquisition, to the rights of holders or liens
perfected on such properties prior to the recording of the Mortgage in
such municipalities or counties. There are excepted from the lien of the
Mortgage certain specifically excepted properties; all cash on hand and in
banks, contracts, shares of stock, bonds, notes, evidences of indebtedness
and other securities, bills, notes and accounts receivable and other
choses in action, conditional sales agreements and appliance rental or
lease agreements other than those expressly subjected to the Mortgage; all
equipment, materials and supplies not installed as part of the fixed
property of the Company and which are held for use or consumption in its
business; all goods, wares, merchandise, appliances and supplies,
purchased, acquired or held for the purpose of sale, lease or
distribution; and gas, oil, coal, fissionable material and other minerals
and other products, fuel and other personal property which are consumable
in their use in the operation of the plants or systems of the Company;
office furniture, equipment and supplies; aircraft, automobiles, trucks
and similar vehicles; and certain other properties of the Company set
forth in the Mortgage. (See Mortgage, Granting Clauses.)
The Mortgage contains provisions subjecting after-acquired property
(subject to pre-existing liens) to the lien thereof, subject to
limitations in the case of consolidation, merger or sale of substantially
all of the Company's assets. (See Mortgage, Granting Clauses and Article
Fourteen.)
The Mortgage provides that the trustees shall have a lien upon the
mortgaged property, prior to that of the Bonds, for the payment of their
reasonable compensation and expenses, and for indemnity against certain
liabilities. (See Mortgage, Section 15.10.)
Issuance of Additional Bonds. Additional Bonds of any series may be
issued in an aggregate principal amount equal to:
(1) 60 percent of unfunded net property additions (the cost or
fair value at the time of acquisition, whichever is less, of
utility property charged to plant accounts of the Company after
December 31, 1954, less the minimum provision for depreciation
from said date);
(2) the principal amount of unfunded Bond credits for the
retirement of Bonds of any series; and /or
(3) cash deposited with the Trustee;
subject to the filing of an earnings certificate (except in the case of
certain refundings) showing net earnings available for interest (as
defined), for a period of 12 consecutive months within the 15 calendar
months preceding the date of application, to be at least two times annual
interest requirements on bonded debt then to be outstanding.
Property additions generally include the utility property, tangible
or intangible, of the Company, located in the United States of America,
which (except as provided below) is used by or useful to the Company in
the business of generating, manufacturing, storing, transmitting,
distributing, utilizing, purchasing, furnishing, supplying and/or
disposing of electricity and/or gas, for heat, light, power, or
refrigeration or other uses, or in any business which is incidental
thereto, including, without limiting the generality of the foregoing, all
properties necessary or appropriate for generating, manufacturing,
storing, transmitting, distributing, utilizing, purchasing, furnishing,
supplying and/or disposing of electricity and/or gas, together with
betterments, improvements, additions, replacements, or alterations of,
upon or to such property of the Company acquired after December 31, 1954.
Utility property shall not be deemed to include any property excepted
from the lien of the Mortgage. As of December 31, 1994, approximately
$17,000,000 of property additions and $15,100,000 of unfunded Bond Credits
were available for use as the basis for the issuance of Bonds.
The Mortgage contains certain restrictions upon the issuance of Bonds
against property subject to liens. The New Bonds will be issued against
property additions and/or unfunded Bond Credits for the retirement of
Bonds. (See Mortgage, Articles Two, Seven, Nine and Fourteen.)
The Mortgage provides that the Company and/or the Trustee may release
property from the lien of the Mortgage, so long as no default exists: (1)
in the ordinary course of the Company's business, with respect to property
which has become old or worn out, provided such property is replaced by
the Company, and in connection with a release, surrender, abandonment or
termination of any rights of the Company which is necessary, desirable or
advisable in connection with the conduct of the utility business of the
Company; (2) upon written request of the Company to the Trustee in
connection with the sale of any such property, provided that the Company
shall receive fair consideration therefor and provided that the release
will not impair the security of the Mortgage; (3) in connection with a
condemnation by any government entity of property of the Company, provided
the Company receives fair value therefor; (4) without any consent or
release by the Trustee, in connection with a sale of property by the
Company of property no longer used or useful in the conduct of the
Company's business, provided that the aggregate value of any such property
so disposed of in any one calendar year shall not exceed the greater of
$50,000 or 3/4 of 1% of the outstanding Bonds; or (5) in connection with
the taking, sale or release of all or substantially all of the Company's
property, upon the deposit of Government or purchase money securities with
the Trustee. (See Mortgage, Article Seven.)
Defaults and Notice Thereof. The Mortgage defines the following
events as "defaults":
(1) failure to pay principal of, or premium (if any) on, any Bond
when due;
(2) failure to pay interest on any Bond when due and continuance
of such failure for a period of 30 days;
(3) failure to discharge or satisfy any improvement, maintenance,
or depreciation fund obligation and continuance of such failure
for a period of 60 days;
(4) failure to discharge or satisfy any sinking fund obligation
and continuance of such failure for a period of 20 Business
Days;
(5) failure to perform or observe any of the other covenants,
agreements or conditions in the Mortgage and continuance of such
failure for a period of 90 days following written notice by the
Trustee or by holders of at least 15 percent in principal amount
of the Bonds;
(6) the entry of an order for reorganization or appointment of a
trustee or receiver of all or a substantial part of the
mortgaged property and continuance of such order or appointment
unstayed for a period of 90 days;
(7) certain adjudications, petitions or consents in bankruptcy,
insolvency or reorganization proceedings or an admission of
insolvency or an assignment for the benefit of creditors by the
Company; or
(8) the rendering of a judgment against the Company for the
payment of moneys in excess of the Judgment Amount (as herein
defined) and continuance of such judgment unsatisfied and
without stay of execution for a period of 90 days after (i) the
entry of such judgment or (ii) the termination of any stay of
execution entered during the initial 90-day grace period; but
only, in either case, if such judgment shall have been continued
unstayed or unsatisfied for a period of 10 days after the giving
of written notice of default to the Company by the Trustee or to
the Company and the Trustee by the holders of at least
15 percent in principal amount of the Bonds outstanding. As
used herein, "Judgment Amount" shall mean (a) $50,000 until the
earlier to occur of (i) all Bonds of any series established
prior to the execution of the Company's Tenth Supplemental
Indenture having ceased to be outstanding, whether at their
respective stated maturities or through a provision for
redemption prior to their stated maturities, or (ii) the
execution of a supplemental indenture with the written consent
of the holders of not less than 66 2/3 percent in principal
amount of all Bonds of any series heretofore created and issued
(and, if more than one such series of Bonds shall at the time be
outstanding, not less than 66 2/3 percent in principal amount
of the Bonds of each such series), and (b) thereafter
$1,000,000.
So long as one or more of such defaults shall continue to exist and
provided that the principal of all the Bonds shall not have already become
due and payable, either the Trustee (by notice in writing to the Company)
or the holders of not less than 25 percent in principal amount of the
Bonds outstanding (by notice in writing to the Company and the Trustee)
may declare the principal of and accrued interest on all Bonds then
outstanding to be immediately due and payable notwithstanding the
Company's right, following such declaration but prior to any sale of all
or a substantial part of the mortgaged property, to cure all defaults to
the satisfaction of the Trustee in accordance with the terms of the
Indenture.
(See Mortgage, Article Twelve.)
The Mortgage does not require the Company to give the Trustee or any
holders of any Bonds periodic reports as to the Company's compliance with
the provisions of the Mortgage. The Company and the Trustee are required
to provide the notices and reports to the holders of the Bonds required by
the Trust Indenture Act of 1939, as amended, and copies of the reports and
information required under the Securities Exchange Act of 1934, as
amended. (See Mortgage, Article Eleven.)
Evidence to be Furnished to the Trustee. Compliance with Mortgage
provisions is evidenced by written statements of the Company's officers or
persons selected by the Company. In certain major matters the accounting,
engineer, appraiser or other expert must be independent. Various
certificates and other papers, including a certificate with respect to
compliance with the terms of the Mortgage and the absence of defaults, are
required to be filed annually and upon the occurrence of certain events.
(See Mortgage, Sections 9.06, 9.07, 9.08.)
Modification of the Mortgage. The Mortgage may be amended and/or any
past default thereunder (except a default in the payment of the principal
of, premium, if any, or interest on any of the Bonds) and its consequences
may be waived with the consent of the holders of at least 66 2/3 percent
in principal amount of Bonds then outstanding, and of each series of Bonds
then outstanding and affected by the proposed modification or waiver.
Upon the earlier to occur of (i) all Bonds of any series established prior
to the execution of the Company's Tenth Supplemental Indenture having
ceased to be outstanding, whether at their respective stated maturities or
through a provision for redemption prior to their stated maturities, and
(ii) the execution of a supplemental indenture with the written consent of
the holders of all Bonds of any series created and issued prior to the
date of the Tenth Supplemental Indenture, the Mortgage may be amended
and/or any past default thereunder (except a default in the payment of the
principal of, premium, if any, or interest on any of the Bonds) and its
consequences may be waived with the consent of the holders, acting
together as a single class, of at least 66 2/3 percent in principal
amount then outstanding of all Bonds issued pursuant to the Indenture and
affected by the proposed modification or waiver. In no instance shall any
modification regarding the terms of payment of principal of, premium, if
any, and interest on the New Bonds or a waiver of any past default with
respect to payment of such principal, premium or interest or its
consequences be effected without the consent of the holders of the New
Bonds, nor may any modification affecting the lien of the Mortgage or
reducing the percentage in principal amount of Bonds required for
modification, be effected without the consent of the holders of all
outstanding Bonds. (See Mortgage, Article Eighteen and Tenth Supplemental
Indenture.)
Concerning the Trustee. United States Trust Company of New York,
successor to the Chase Manhattan Bank (National Association), successor to
the Chase National Bank of the City of New York, is the trustee under the
Mortgage.
DESCRIPTION OF THE NOTES
The statements under this caption are intended to summarize the Notes
and the Indenture; they do not purport to be complete and are qualified in
their entirety by reference to the Notes and Indenture, copies of which
have been filed as exhibits to the Registration Statement of which this
Prospectus is a part.
General. The Notes are to be issued under an Indenture, (Indenture)
between the Company and The Bank of New York, as trustee (Unsecured
Trustee).
The Indenture provides that debt securities (including the Notes and
including both interest bearing and original issue discount securities)
may be issued thereunder, without limitation as to aggregate principal
amount. (See Indenture, Sec. 301.) All debt securities issued under the
Indenture (including the Notes) are collectively referred to as the
"Indenture Securities". The Indenture does not limit the amount of other
debt, secured or unsecured, which may be issued by the Company. The Notes
will rank pari passu with all other unsecured indebtedness of the Company.
Substantially all of the materially important physical properties of the
Company are subject to the lien of the Mortgage securing the Bonds. (See
"Description of the New Bonds".)
Reference is made to the Prospectus Supplement or Supplements for
each issue of the Notes for the following terms, among others, of the
Notes offered thereby: (i) the series designation and aggregate principal
amount thereof, (ii) the initial public offering price and other terms of
their offering, (iii) the date or dates on which they will mature, (iv)
the rate or rates per annum at which they will bear interest, (v) the
times at which such interest will be payable and the date from which it
will accrue, (vi) whether all or any portion thereof will be issued to a
designated depositary, (vii) any redemption or repayment provisions, and
(viii) other specific terms.
Form, Exchange and Payment. Unless otherwise indicated in the
Prospectus Supplement for an issue of the Notes, the Notes offered thereby
will be issued only in the form of a fully registered global note,
interests in which will be transferable by a book-entry system in
denominations of $1,000 and any multiple thereof. If definitive Notes are
exchanged for a global note, they will be issued in denominations of
$1,000 and integral multiples of $1,000. See "Book-Entry System."
Events of Default and Notice Thereof. The Indenture defines the
following events as "defaults":
(1) failure to pay any installment of interest on any Note within 30
days after its stated maturity;
(2) failure to pay the principal of, or premium, if any, on any Note
within three business days after its maturity;
(3) failure to perform or breach of any covenant of the Company in the
Indenture (other than a covenant, a default in the performance of
which is elsewhere specifically dealt with or which has been included
in the Indenture solely for the benefit of one or more series of
Notes other than such series) for a period of 90 days after there has
been given, by registered or certified mail, to the Company by the
Unsecured Trustee, or to the Company and the Unsecured Trustee by the
holders of at least 33% in principal amount of the outstanding Notes
of such series a written notice specifying such default and requiring
it to be remedied and stating that such notice is a "Notice of
Default";
(4) either (a) the entry of an order approving a petition seeking
reorganization of the Company upon the basis of insolvency or
inability to pay debts as they mature under the Federal bankruptcy
laws or any other applicable law or statute of the United States of
America or any State thereof; or (b) the appointment in any judicial
proceeding upon the application of any creditor or creditors of a
trustee or a receiver of all or a substantial part of the trust
estate; and the continuance of such order or appointment unstayed and
in effect for a period of 90 days;
(5) the adjudication of the Company as a bankrupt by any court of
competent jurisdiction or the filing by the Company of a voluntary
petition in bankruptcy or the making by the Company of an assignment
for the benefit of creditors or the admission by the Company in
writing of its inability to pay its debts as they become due; the
consent by the Company to the appointment in any judicial proceeding
upon the application of any creditor or creditors of a receiver or
trustee of all or a substantial part of its properties; the filing by
the Company of a petition or answer seeking reorganization or
readjustment on the basis of insolvency or inability to pay debts as
they mature under the Federal bankruptcy laws or any other applicable
law or statute of the United States of America or of any State
thereof; or the filing by the Company of a petition to take advantage
of any insolvency act;
(6) any other Event of Default specified with respect to Notes of such
series;
(7) default by the Company in the payment of principal of, or interest
on, securities issued under the Mortgage in an aggregate amount
exceeding $5,000,000, and the continuation thereof for 90 days after
written notice to the Company by the Unsecured Trustee, or to the
Company and the Unsecured Trustee by the holders of at least 33% in
principal amount of the outstanding Notes of such series a written
notice specifying such default and requiring it to be remedied and
stating that such notice is a "Notice of Default".
No Event of Default with respect to a series of Indenture Securities
necessarily constitutes an Event of Default with respect to the Indenture
Securities of any other series. The Unsecured Trustee may withhold notice
of default (except in payment of principal, interest or any funds for the
retirement of Indenture Securities) if it, in good faith, determines that
withholding of such notice is in the interest of the Holders of the
Indenture Securities. (See Indenture, Secs. 801 and 903.)
Either the Unsecured Trustee or the Holders of not less than 33% in
principal amount (or such lesser amount as may be provided in the case of
discount Indenture Securities) of the outstanding Indenture Securities of
all defaulted series, considered as one class, may declare the principal
and interest on such series due on default, but the Company may annul such
default by effecting its cure and paying overdue interest and principal.
No Holder of Indenture Securities may enforce the Indenture without having
given the Unsecured Trustee written notice of default, and unless the
Holders of a majority of the Indenture Securities of all defaulted series,
considered as one class, shall have requested the Unsecured Trustee to act
and offered reasonable indemnity, and for 60 days the Unsecured Trustee
shall have failed to act, but each Holder has an absolute right to receive
payment of principal and interest when due and to institute suit for the
enforcement of such payment. The Unsecured Trustee is not required to
risk its funds or incur any financial liability if it shall have
reasonable grounds for believing that repayment is not reasonably assured.
The Holders of a majority of the Indenture Securities of all defaulted
series, considered as one class, may direct the time, method and place of
conducting any proceedings for any remedy available to the Unsecured
Trustee, or exercising any trust or power conferred on the Unsecured
Trustee, with respect to the Indenture Securities of such series, but the
Unsecured Trustee is not required to follow such direction if not
sufficiently indemnified and the Unsecured Trustee may take any other
action it deems proper which is not inconsistent with such direction.
(See Indenture, Secs. 802, 807, 808, 812 and 902.)
Evidence to be Furnished to the Unsecured Trustee. Compliance with
Indenture provisions will be evidenced by written statements of the
Company's officers. An annual certificate with reference to compliance
with the covenants and conditions of the Indenture and the absence of
defaults is required to be filed with the Unsecured Trustee. (See
Indenture, Sec. 1004.)
Modification of the Indenture. The rights of the Holders of the
Indenture Securities may be modified with the consent of the Holders of a
majority of the Indenture Securities of all series or Tranches, as defined
below, affected, considered as one class. However, certain specified
rights of the Holders of Indenture Securities may be modified without the
consent of the Holders if such modification would not be deemed to affect
their interests adversely in any material respect. In general, no
modification of the terms of payment of principal and interest, no
reduction of the percentage in principal amount of the Indenture
Securities outstanding under such series required to consent to any
supplemental indenture or waiver under the Indenture, no reduction of such
percentage necessary for quorum and voting, and no modification of certain
of the provisions in the Indenture relating to supplemental indentures,
waivers of certain covenants and waivers of past defaults is effective
against any Holder of Indenture Securities without his consent. "Tranche"
means a group of Indenture Securities which are of the same series and
have identical terms except as to principal amount and/or date of
issuance. (See Indenture, Art. Twelve.)
Concerning the Indenture Trustee. The Bank of New York, New York,
New York is the trustee under the Indenture.
BOOK-ENTRY SYSTEM
For each issue of Debt Securities subject to the book-entry system
hereinafter described, a global security representing all of such issue
will be issued to the Depository Trust Company, New York, New York (DTC)
or such other depository as may be subsequently designated (Depository),
and registered in the name of CEDE & Co. (DTC's partnership nominee), or
such other Depository or its nominee as may be subsequently designated.
So long as the Depository, or its nominee, is the registered owner of
an issue of the Debt Securities, such Depository or such nominee, as the
case may be, will be considered the owner of such Debt Securities for all
purposes under the Mortgage or the Indenture, as the case may be,
including notices and voting. Payments of principal of, and premium, if
any, and interest on, such Debt Securities will be made to the Depository
or its nominee, as the case may be, as the registered owner of such Debt
Securities. Except as set forth below, owners of beneficial interests in
such Debt Securities will not be entitled to have any such Debt Securities
registered in their names, will not receive or be entitled to receive
physical delivery of such Debt Securities and will not be considered the
owners of such Debt Securities under the Mortgage or the Indenture.
Accordingly, each person holding a beneficial interest in such Debt
Security must rely on the procedures of the Depository and, if such person
is not a Direct Participant (as hereinafter defined), on procedures of the
Direct Participant through which such person holds its interest, to
exercise any of the rights of the registered owner of such Debt Security.
The following nine paragraphs are based solely on information
furnished by DTC:
DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York
Banking Law, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the New York Uniform Commercial Code,
and a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act. DTC holds securities that its participants
(Participants) deposit with DTC. DTC also facilitates the settlement
among Participants of securities transactions, such as transfer and
pledges, in deposited securities through electronic computerized book-
entry changes in Participants' accounts, thereby eliminating the need for
physical movement of securities certificates.
Direct Participants include securities brokers and dealers, banks,
trust companies, clearing corporations, and certain other organizations
(Direct Participants). DTC is owned by a number of its Direct
Participants and by The New York Stock Exchange, Inc., the American Stock
Exchange, Inc., and the National Association of Securities Dealers, Inc.
Access to the DTC system is also available to others such as securities
brokers and dealers, banks, and trust companies that clear through or
maintain a custodial relationship with a Direct Participant, either
directly or indirectly (Indirect Participants). The rules applicable to
DTC and its Participants are on file with the Commission.
Purchases of the Debt Securities under the DTC system must be made by
or through Direct Participants, which will receive a credit for the Debt
Securities on DTC's records. The ownership interest of each actual
purchaser of each Debt Security (Beneficial Owner) is in turn to be
recorded on the Direct and Indirect Participants' records. Beneficial
Owners will not receive written confirmation from DTC of their purchase,
but Beneficial Owners are expected to receive written confirmation
providing details of the transaction, as well as periodic statements of
their holdings, from the Direct and Indirect Participant through which the
Beneficial Owner entered into the transaction. Transfers of ownership
interests in the Debt Securities are to be accomplished by entries made on
the books of Participants acting on behalf of Beneficial Owners.
Beneficial Owners will not receive certificates representing their
ownership interests in the Debt Securities, except in the event that use
of the book-entry system for the Debt Securities is discontinued.
To facilitate subsequent transfers, all Debt Securities deposited by
Participants with DTC are registered in the name of CEDE & Co. The
deposit of Debt Securities with DTC and their registration in the name of
CEDE & Co. effect no change in beneficial ownership. DTC has no knowledge
of the actual Beneficial Owners of the Debt Securities; DTC's records
reflect only the identity of the Direct Participants to whose accounts
such Debt Securities are credited, which may or may not be the Beneficial
Owners. The Participants will remain responsible for keeping account of
their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by
Direct Participants and Indirect Participants to Beneficial Owners will be
governed by arrangements among them, subject to any statutory or
regulatory requirements as may be in effect from time to time.
If the Debt Securities of any issue are redeemable prior to the
maturity date, redemption notices shall be sent to CEDE & Co. If less
than all of the Debt Securities of any issue are being redeemed, DTC's
practice is to determine by lot the amount of the interest of each Direct
Participant in such issue to be redeemed.
Neither DTC nor CEDE & Co. will consent or vote with respect to the
Debt Securities. Under its usual procedures, DTC mails an Omnibus Proxy
to the Company as soon as possible after the record date. The Omnibus
Proxy assigns CEDE & Co.'s consenting or voting rights to those Direct
Participants to whose accounts the Debt Securities are credited on the
record date (identified in a listing attached to the Omnibus Proxy).
Principal and interest payments on the Debt Securities will be made
to DTC. DTC's practice is to credit Direct Participants' accounts on the
date on which interest is payable in accordance with their respective
holdings shown on DTC's records, unless DTC has reason to believe that it
will not receive payment on such payment date. Payments by Participants
to Beneficial Owners will be governed by standing instructions and
customary practices, as is the case with securities held for the accounts
of customers in bearer form or registered in "street name", and will be
the responsibility of such Participant and not of DTC, the Trustee or the
Unsecured Trustee, as the case may be, or the Company, subject to any
statutory or regulatory requirements as may be in effect from time to
time. Payment of principal and interest to DTC is the responsibility of
the Company and the Trustee or the Unsecured Trustee, as the case may be.
Disbursement of such payments to Direct Participants shall be the
responsibility of DTC, and disbursement of such payments to the Beneficial
Owners shall be the responsibility of Direct and Indirect Participants.
DTC may discontinue providing services as securities depository with
respect to the Debt Securities at any time by giving notice to the Company
and the Trustee or the Unsecured Trustee, as the case may be. Under such
circumstances, in the event that a successor securities depository is not
obtained, Debt Securities in certificated form are required to be printed
and delivered.
The Company may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depository). In that
event, Debt Securities in certificated form will be printed and delivered.
None of the Company or the Trustee or the Unsecured Trustee will have
any responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial interests in the Debt Securities
or for maintaining, supervising or reviewing any records relating to such
beneficial interests.
DESCRIPTION OF NEW COMMON STOCK
The following is a summary of certain rights and privileges and
restrictions on the Common Stock. This summary does not purport to be
complete. Reference is made to the Restated Articles of Association and
the Bylaws of the Company and the Mortgage, filed as exhibits to the
Registration Statement, for complete statements. The following statements
are qualified in their entirety by such references.
General. The outstanding shares of Common Stock, $3.33 1/3 par
value, of the Company are fully paid and nonassessable. The shares of the
New Common Stock, upon payment of the purchase price, will be fully paid
and nonassessable.
Dividend Restrictions. No dividends may be paid on the Common Stock
nor may the Company purchase any Common Stock unless all cumulative
dividends on the Company's outstanding Preferred Stock have been paid or
provided for, all Preferred Stock purchase-fund requirements have been
satisfied, full dividends on any Preference Stock have been paid or
provided for and the other restrictions summarized below have been
complied with. In addition, so long as any shares of Preferred Stock are
outstanding, the Company shall not pay any dividends on any shares of
stock junior to the Preferred Stock or make any other distributions
thereon or any expenditures for the purchase, redemption or other
retirement for a consideration of such junior stock except from net income
of the Corporation available for dividends on such junior stock
accumulated subsequent to December 31, 1954 plus the sum of $150,000.
The Mortgage provides that the Company shall not declare or pay any
cash dividend on or make any other distribution in respect of its Common
Stock, or, with certain exceptions, repurchase any capital stock of the
Company if the aggregate amount so declared, paid, distributed or expended
after December 31, 1992 would exceed the aggregate amount of net income of
the Company available for dividends on its Common Stock accumulated after
December 31, 1992, plus $18,500,000. As of December 31, 1994, the amount
of retained earnings available for dividends on the Common Stock under
this provision was $19,900,000.
Voting Rights. The holders of the Common Stock have exclusive voting
rights except as referred to below and as otherwise provided by law.
Whenever dividends on any series of outstanding Preferred Stock shall
be in arrears in an amount equivalent to four or more quarterly dividends,
the holders of the Preferred Stock shall have the right, until no
dividends are in arrears and the current dividend is provided for, to
elect that number of directors, not exceeding the smallest number of
directors necessary to constitute a majority of the Board of Directors
equal to two times the number of full years that such arrearage shall
continue. Whenever an event of default occurs in payment of any purchase
or sinking-fund installment, the holders of Preferred Stock shall have the
right, until such default shall have been remedied, to elect two
directors. In addition, the votes or consent of the holders of specified
percentages of the Preferred Stock and any Preference Stock are required
as a condition to effecting various changes in the capital structure of
the Company and certain other transactions. The Company is prohibited,
without the consent of the holders of at least two-thirds of the aggregate
number of shares of all classes of Preferred Stock entitled to vote
thereon, from (x) creating or authorizing, or increasing the authorized
amount of, any shares of any class of stock ranking as to dividends or
assets prior to the Preferred Stock, or of any obligation or security
convertible into stock ranking as to dividends or assets prior to the
Preferred Stock; or (y) amending, changing or repealing any of the express
terms of the Preferred Stock outstanding in any manner adverse to the
holders thereof; or (z) issuing shares of Preferred Stock unless certain
income and asset tests are satisfied. The Company is prohibited, without
the consent of the holders of a majority of the aggregate number of shares
of Preferred Stock, from (x) issuing, creating, guaranteeing or permitting
to exist any unsecured securities evidencing indebtedness maturing more
than one year from the date of issuance, except for the purpose of
refunding or retiring the outstanding Preferred Stock if the principal
amount of such unsecured securities would exceed twenty percent (20%) of
(a) the total principal amount of all secured indebtedness then
outstanding and (b) the total of the capital and surplus; (y) merging or
consolidating with or into any other corporation, provided that such vote
is not required if such other corporation is a public utility principally
engaged in the distribution of gas or electricity in the State of Vermont
and if after such merger or consolidation certain financial tests with
respect to the Preferred Stock are satisfied; or (z) selling, leasing or
otherwise disposing of all or substantially all of its property.
Liquidation Rights. After satisfaction of the preferential
liquidation rights of the Preferred Stock and any Preference Stock, the
holders of Common Stock are entitled to share, ratably, in the
distribution of all remaining assets of the Company. Holders of the
Preferred Stock are entitled to receive $100 per share and accrued
dividends on involuntary liquidation.
Holders of any Preference Stock will be entitled to receive such
amounts as determined by the Board of Directors at the time of issuance of
such Stock.
Preemptive Rights. The holders of the Common Stock have no
preemptive rights.
Anti-Greenmail, Fair Price and Business Judgment Provisions. Section
7.05 of the Company's Restated Articles of Association is intended to
prevent so-called "greenmail". That Section prohibits the Company, in the
absence of a special shareholder approval, from purchasing any of its
outstanding shares of Common Stock at a price in excess of the fair market
value of such shares from a beneficial owner of more than five percent of
the Company's Common Stock (a "Related Person," as such term is more
specifically defined in Section 7.06 of the Restated Articles of
Association) who has owned such shares for less than two years, subject to
certain limited exceptions. The special shareholder approval required by
Section 7.05 is the greater of eighty percent of the voting power of the
Company, or the sum of the number of shares owned by the Related Person
plus a majority of the voting power of the Company not beneficially owned
by the Related Person.
Section 7.06 of the Company's Restated Articles of Association is a
fair-price provision that is designed to provide reasonable assurance that
any attempt to acquire the Company will be made only on terms that are
fair to all shareholders. That Section requires that mergers and certain
other Business Combinations (as defined below) involving the Company and a
Related Person, unless approved by a majority of the Directors who are
unaffiliated with such Related Person, must be approved by at least eighty
percent of the voting power of the Company, as compared to the two-thirds
vote required by Vermont law, and satisfy certain minimum-price, form-of-
consideration and procedural requirements.
Section 7.07 of the Company's Restated Articles of Association is a
business judgment provision that requires that the Board of Directors, in
evaluating any proposal for a merger or Business Combination involving the
Company, take into consideration certain relevant factors, including the
impact of any such transaction on the Company's suppliers, customers and
employees, that might not otherwise be considered. For the purposes of
Sections 7.06 and 7.07, a "Business Combination," in general, includes the
following transactions: (1) a merger or consolidation of the Company or
any subsidiary with a Related Person or certain affiliates or associates
of the Related Person; (2) the sale or other disposition by the Company or
a subsidiary of assets having an aggregate fair market value of $5,000,000
or more, or the use thereof in certain financial arrangements, if a
Related Person is a party to the transaction; (3) the issuance or transfer
(other than on a pro rata basis to all shareholders) of stock or other
securities of the Company or of a subsidiary to a Related Person or
affiliates or associates of the Related Person; (4) the adoption of any
plan or proposal for the liquidation or dissolution of the Company
proposed by or on behalf of or voted for or consented to by any Related
Person or any affiliates or associates thereof; (5) any reclassification
of securities, recapitalization, merger or consolidation with a subsidiary
or other transaction that has the effect, directly or indirectly, of
increasing the percentage of the outstanding stock of any class of the
Company or a subsidiary owned by a Related Person or any affiliate or
associate thereof; or (6) any similar transaction of similar purpose or
effect or any agreement, contract or other arrangement providing for any
one or more of the foregoing actions. The Restated Articles of
Association provide that any amendment to Sections 7.06 and 7.07 must be
approved by at least eighty percent of the voting power of the Company,
unless such amendment has been recommended by a majority of the members of
the Board of Directors who are not Related Persons, and who are
unaffiliated with a Related Person and became Directors of the Company
prior to the time that a Related Person became such.
Staggered Board of Directors. The Company's By-laws provide that the
members of the Company's Board of Directors are elected for three year
terms, with one-third of the members of the Board of Directors elected
each year.
Transfer Agent and Registrar. The Transfer Agent and Registrar is
Chemical Bank, New York, New York.
PLAN OF DISTRIBUTION
The Company may sell the Securities (i) through underwriters; (ii)
through dealers; (iii) directly to one or more institutional purchasers;
or (iv) through agents. Securities may be sold outside the United States.
An accompanying Prospectus Supplement or Supplements will set forth the
terms of each offering of the Securities including the name or names of
any underwriters, dealers, purchasers or agents, the purchase price of
such Securities and the proceeds to the Company from such sale, any
underwriting discounts and other items constituting underwriters' or
agents' compensation, any initial public offering price, any discounts or
concessions allowed or reallowed or paid to dealers and any securities
exchanges on which such Securities may be listed. Any initial public
offering price and any discounts or concessions allowed or reallowed or
paid to dealers may be changed from time to time. Only firms named in the
Prospectus Supplement are deemed to be underwriters, dealers or agents in
connection with the Securities offered thereby.
If underwriters are used in the sale, Securities will be acquired by
the underwriters for their own account and may be resold from time to time
in one or more transactions, including negotiated transactions, at a fixed
public offering price or at varying prices determined at the time of sale.
Unless otherwise set forth in the Prospectus Supplement, the obligations
of the underwriters to purchase the Securities will be subject to certain
conditions precedent, and the underwriters will be obligated to purchase
all such Securities if any are purchased.
Securities may be sold directly by the Company or through any firm
designated by the Company from time to time, acting as principal or as
agent. The Prospectus Supplement will set forth the name of any dealer or
agent involved in the offer or sale of the Securities in respect of which
the Prospectus Supplement is delivered and the price payable to the
Company by such dealer or any commissions payable by the Company to such
agent. Unless otherwise indicated in the Prospectus Supplement, any such
agent will be acting on a reasonable efforts basis for the period of its
appointment.
Underwriters, dealers and agents may be entitled under agreements
entered into with the Company to indemnification by the Company against
certain civil liabilities, including liabilities under the Securities Act
of 1933, or to contribution with respect to payments for such liabilities
which underwriters, dealers or agents may be required to make.
Underwriters, dealers and agents may engage in transactions with or
perform services for the Company in the ordinary course of business.
The anticipated date of delivery of Securities will be as set forth
in the Prospectus Supplement or Supplements relating to such offering.
LEGAL OPINIONS AND EXPERTS
The legality of the Securities offered hereby is being passed upon
for the Company by Hunton & Williams, 200 Park Avenue, 43rd Floor, New
York, New York 10166, special counsel for the Company, and by Peter H.
Zamore, Esq., General Counsel of the Company, and for the underwriters,
dealers or agents by Reid & Priest LLP, 40 West 57th Street, New York, New
York 10019. Hunton & Williams and Reid & Priest LLP will rely on the
opinion of Peter H. Zamore, Esq. as to matters of Vermont law.
The audited consolidated financial statements and schedules of the
Company for the period ended December 31, 1994, included in the Company's
Annual Report on Form 10-K for the year ended December 31, 1994, which are
incorporated in this Prospectus by reference, have been examined by Arthur
Andersen LLP, independent certified public accountants, as set forth in
their report dated January 31, 1995, with respect thereto, and are
included in this Prospectus, through incorporation by reference, in
reliance upon the report of such firm and their authority as experts in
accounting and auditing.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
Filing fee Securities and Exchange Commission . . . . . . $ 17,241
Rating agencies' fees* . . . . . . . . . . . . . . . . . 28,000
Trustees' fees* . . . . . . . . . . . . . . . . . . . . . 20,000
Legal Fees and expenses* . . . . . . . . . . . . . . . . 125,000
Accounting fees and expenses* . . . . . . . . . . . . . . 35,000
Printing and engraving* . . . . . . . . . . . . . . . . . 35,000
Miscellaneous expenses* . . . . . . . . . . . . . . . . . 34,759
Total expenses* . . . . . . . . . . . . . . . . . . 295,000
*Estimated
Item 15. Indemnification of Directors and Officers
The Vermont Business Corporation Act (11A Section 8.51, Section 8.52,
Section 8.54, Section 8.55 and Section 8.56) provides, in pertinent part,
as follows:
(8.51) (a) Except as provided in subsection (d) of this section, a
corporation may indemnify an individual made a party to a preceding
because the individual is or was a director against liability incurred
in the proceeding if: (1) the director conducted himself or herself in
good faith; and (2) the director reasonably believed: (A) in the case
of conduct in the director's official capacity with the corporation,
that the director's conduct was in its best interests; and (B) in all
other cases, that the director's conduct was at least not opposed to its
best interests; and (3) in the case of any proceeding brought by a
governmental entity, the director had no reasonable cause to believe his
or her conduct was unlawful, and the director is not finally found to
have engaged in a reckless or intentional unlawful act.
(b) A director's conduct with respect to an employee benefit plan for
a purpose the director reasonably believed to be in the interests of the
participants in and beneficiaries of the plan is conduct that satisfies
the requirements of subdivision (a)(2)(B) of this section.
(c) The termination of a proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent is not,
of itself, determinative that the director did not meet the standard of
conduct described in this section.
(d) A corporation may not indemnify a director under this section:
(1) in connection with a proceeding by or in the right of the
corporation in which the director was adjudged liable to the
corporation; or (2) in connection with any other proceeding charging
improper personal benefit to the director, whether or not involving
action in the director's official capacity, in which the director was
adjudged liable on the basis that personal benefit was improperly
received by the director.
(e) Indemnification permitted under this section in connection with a
proceeding by or in the right of the corporation is limited to
reasonable expenses incurred in connection with the proceeding.
(8.52) Unless limited by its articles of incorporation, a corporation
shall indemnify a director who was wholly successful, on the merits or
otherwise, in the defense of any proceeding to which the director was a
party because the director is or was a director of the corporation
against reasonable expenses incurred by the director in connection with
the proceeding.
(8.54) A director of the corporation who is a party to a proceeding
may apply for indemnification to the court conducting the proceeding or
to another court of competent jurisdiction. On receipt of an
application, the court after giving any notice the court considers
necessary may order indemnification if it determines: (1) the director
is entitled to mandatory indemnification under section 8.52 or this
title, in which case the court shall also order the corporation to pay
the director's reasonable expenses incurred to obtain court-ordered
indemnification; or (2) the director is fairly and reasonably entitled
to indemnification in view of all the relevant circumstances, whether or
not the director met the standard of conduct set forth in section 8.51,
of this title or was adjudged liable as described in 8.51(d), but if the
director was adjudged so liable the director's indemnification is
limited to reasonable expenses incurred.
(8.55) (a) Except as provided in section 8.53 of this title, a
corporation may not indemnify a director under section 8.51 of this
title prior to the final resolution of a proceeding, whether by
judgment, order, settlement, conviction, plea, or otherwise, and unless
authorized in the specific case after a determination has been made that
indemnification of the director is permissible in the circumstances
because the director has met the standard of conduct set forth in
section 8.51. (b) The determination required by subsection (a) of this
section, in accordance with the terms of section 8.51 of this title,
shall be made: (1) by the board of directors by majority vote of a
quorum consisting of directors not at the time parties to the
proceeding; (2) if a quorum cannot be obtained under subdivision (1) of
this subsection, by majority vote of a committee duly designated by the
board of directors (in which designation directors who are parties may
participate), consisting solely of two or more directors not at the time
parties to the proceedings; (3) by written opinion of special legal
counsel: (A) selected by the board of directors or its committee in the
manner prescribed in subdivision (1) or (2) of this subsection; or (B)
if a quorum of the board of directors cannot be obtained under
subdivision (1) and a committee cannot be designated under subdivision
(2), selected by majority vote of the full board of directors (in which
selection directors who are parties may participate); or (4) by the
shareholders, but shares owned by or voted under the control of
directors who are at the time parties to the proceeding may not be voted
on the determination. (c) Authorization of indemnification and
evaluation as to reasonableness of expenses shall be made in the same
manner as the determination that indemnification is permissible, except
that if the determination is made by special legal counsel,
authorization of indemnification and evaluation as to reasonableness of
expenses shall be made by those entitled under subdivision (b)(3) of
this section to select counsel.
(8.56) Unless a corporation's articles of incorporation limit
indemnification of an officer, employee, or agent of the corporation:
(1) an officer of the corporation who is not a director is entitled to
mandatory indemnification under section 8.52 of this title, and is
entitled to apply for court-ordered indemnification under section 8.54
of this title, in each case to the same extent as a director; (2) the
corporation may indemnify and advance expenses under this subchapter to
an officer, employee, or agent of the corporation who is not a director
to the same extent as a director.
Section 9 of Article IV of the Company's By-Laws, as amended, reads
as follows:
"Section 9. Indemnification. This Corporation shall indemnify any
persons threatened with or made a party to any action, suit or
proceeding, civil or criminal, by reason of the fact that he, his
testator or intestate, is or was a director or officer of this
Corporation or of any corporation which he served as such at the request
of this Corporation, against judgments, fines or penalties and the
reasonable cost and expenses, including but not restricted to attorney's
fees, actually and reasonably incurred by him in connection with the
defense of such action, suit or proceeding or in connection with any
appeal therein, except in relation to matters as to which it shall be
adjudged in such action, suit or proceeding that such director or
officer is liable for gross negligence or misconduct in the performance
of duty to the Corporation; provided, however, that as to any matter
disposed of by compromise by such person, pursuant to a consent decree
or otherwise, no indemnification either for a compromise payment or for
any other expenses shall be provided unless such compromise shall be
approved as in the best interests of the Corporation after notice that
it involves such indemnification: (a) by a disinterested majority of
the directors then in office; or (b) by a majority of the disinterested
directors then in office, provided that there has been obtained an
opinion in writing of independent legal counsel to the effect that such
person, his testator or intestate, as the case may be, appears not to be
liable for gross negligence or misconduct in the performance of duty to
the Corporation; or (c) by the holders of a majority of the outstanding
stock at the time entitled to vote for directors, voting as a single
class, exclusive of any stock owned by any interested director or
officer. Expenses reasonably incurred by any such person in connection
with the defense or disposition of any such action, suit or other
proceeding shall be paid from time to time by this Corporation in
advance of the final determination thereof upon receipt of a written
undertaking from such person to repay the amounts so paid by the
Corporation if it is ultimately determined that indemnification for such
expenses is not required under this section. The foregoing right to
indemnity shall not be deemed exclusive of any other rights to which
such director or officer may be entitled apart from the provisions of
this paragraph."
Subject to certain exceptions, the directors, all corporate officers
and any employee of the Company acting in the capacity of a director or
officer with the express authorization of a director or officer and the
heirs, assigns and estates of such directors, officers and employees of
the Corporation are insured to the extent of 100% of the loss, with an
overall limit of $35,000,000 (over certain underlying limits) because of
any claim or claims made against them, including claims arising under the
Securities Act of 1933, and caused by any negligent act, any error, any
omission or any breach of duty while acting in their capacities as such
directors or officers, and the Corporation is insured to the extent that
it shall have indemnified the directors and officers for such loss. The
premiums for such insurance are paid by the Corporation.
Item 16. Exhibits
EXHIBIT INDEX
Certain of the following exhibits are filed herewith. Certain other
of the following exhibits have heretofore been filed with the Securities
and Exchange Commission and are incorporated herein by reference.
Exhibit
<TABLE>
<CAPTION>
Number
<S> <C>
*1(a) -- Form of Distribution Agreement relating to the New Bonds.
*1(b) -- Form of Underwriting Agreement relating to the New Common Stock.
+1(c) -- Form of Distribution Agreement relating to the Notes.
3-a -- Articles of Association as restated (Exhibit 3-a, Form 10-K, 1993, File No. 1-8291).
3-a-1 -- Amendment to 3-a above, dated as of May 20, 1993 (Exhibit 3-a-1, Form 10-K 1993, File No. 1-
8291).
3-b -- By-laws, as amended (Exhibit 3-b, Form 10-K, 1993, File No. 1-8291).
4-a-1 -- Indenture of First Mortgage and Deed of Trust dated as of February 1, 1955 (Exhibit 4-b,
Registration No. 2-27300).
4-a-2 -- First Supplemental Indenture dated as of April 1, 1961 (Exhibit 4-b-2, Registration No. 2-
75293).
4-a-3 -- Second Supplemental Indenture dated as of January 1, 1966 (Exhibit 4-b-3, Registration No. 2-
75293).
4-a-4 -- Third Supplemental Indenture dated as of July 1, 1968 (Exhibit 4-b-4, Registration No. 2-
75293).
4-a-5 -- Fourth Supplemental Indenture dated as of October 1, 1969 (Exhibit 4-b-5, Registration No. 2-
75293).
4-a-6 -- Fifth Supplemental Indenture dated as of December 1, 1973 (Exhibit 4-b-6, Registration No. 2-
75293).
4-a-7 -- Seventh Supplemental Indenture dated as of August 1, 1976 (Exhibit 4-a-7, Registration No. 2-
99643).
4-a-8 -- Eighth Supplemental Indenture dated as of December 1, 1979 (Exhibit 4-a-8, Registration No.
2-99643).
4-a-9 -- Ninth Supplemental Indenture dated as of July 15, 1985 (Exhibit 4-a-9, Registration No. 2-
99643).
4-a-10 -- Tenth Supplemental Indenture dated as of June 15, 1989 (Exhibit 4-b-10, Form 10-K, 1989, File
No. 1-8291).
4-a-11 -- Eleventh Supplemental Indenture dated as of September 1, 1990 (Exhibit 4-b-11, Form 10-Q,
September 1990, File No. 1-8291).
4-a-12 -- Twelfth Supplemental Indenture dated as of March 1, 1992 (Exhibit 4-b-12, Form 10-K, 1991,
File No. 1-8291).
4-a-13 -- Thirteenth Supplemental Indenture dated as of March 1, 1992 (Exhibit 4-b-13, Form 10-K, 1991,
File No. 1-8291).
4-a-14 -- Fourteenth Supplement Indenture dated as of November 1, 1993 (Exhibit 4-b-14, Form 10-K 1993,
File No. 1-8291)
4-a-15 -- Fifteenth Supplemental Indenture dated as of November 1, 1993 (Exhibit 4-b-15, Form 10-K
1993, File No. 1-8291).
*4-a-16 -- Form of Sixteenth Supplemental Indenture .
+4-a-17 -- Form of Indenture.
+5-a-1 -- Opinion of Hunton & Williams.
+5-a-2 -- Opinion of Peter H. Zamore, Esq.
*12 -- Computation of Ratio of Earnings to Fixed Charges.
*23-a -- Consent of Hunton & Williams (included in their opinion filed as Exhibit 5-a-1).
*23-b -- Consent of Peter H. Zamore, Esq. (included in his opinion filed as Exhibit 5-a-2).
*23-d -- Consent of Arthur Andersen LLP (contained on Page 18 of this Registration Statement).
*24-a -- Power of Attorney (Contained on Page 16 of this Registration Statement).
*25 -- Statement of Eligibility of the Corporate Mortgage Trustee on Form T-1.
+25-b -- Statement of Eligibility of the Indenture Trustee on Form T-1.
*Previously filed as a part of this registration statement.
+Filed herewith.
</TABLE>
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, 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 clauses (1)(i) and (1)(ii)
do not apply if the registration statement is on Form S-3, Form S-8, or
Form F-3 and the information required to be included in a post-effective
amendment by those clauses is contained in periodic reports filed by the
registrant pursuant to Section 13 or 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 the registrant's annual report pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by
reference in the 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.
C. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the provisions described
under Item 15 of the registration statement, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in
the Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered,
the 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 Securities Act of 1933 and will be
governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
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
Amendment No. 1 to this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of South
Burlington, and State of Vermont on the 28th day of July, 1995.
GREEN MOUNTAIN POWER CORPORATION
(Registrant)
By: /s/Christopher L. Dutton
Christopher L. Dutton, Vice President,
Chief Financial Officer & Treasurer
Pursuant to the requirements of the Securities Act of 1933, this
amendment to the registration statement has been signed by the following
persons in the capacities and on the date indicated.
Signature Title Date
President and Director July 28, 1995
/s/Douglas G. Hyde (Principal Executive Officer)
Douglas G. Hyde
Vice President, Chief Financial July 28, 1995
/s/Christopher L. Dutton Office & Treasurer
Christopher L. Dutton (Principal Financial Officer)
/s/Glenn J. Purcell Controller July 28, 1995
Glenn J. Purcell (Principal Accounting Officer)
Thomas P. Salmon Chairman of the Board
Robert E. Boardman }
Nordahl L. Brue }
William H. Bruett }
Merrill O. Burns }
Lorraine E. Chickering }
Directors
John V. Cleary }
Richard I. Fricke }
Euclid A. Irving }
Martin L. Johnson }
Ruth W. Page }
By: /s/C. L. Dutton July 28, 1995
C. L. Dutton
(Attorney - in - Fact)
Exhibit 1(c)
GREEN MOUNTAIN POWER CORPORATION
Unsecured Notes Due Not Less Than
9 Months from Date of Issue
DISTRIBUTION AGREEMENT
[ DATE ]
Dear Sirs:
Green Mountain Power Corporation, a Vermont corporation (the
"Company"), confirms its agreement with _________________ (herein referred
to as the "Agent") with respect to the issue and sale by the Company of
its Unsecured Notes described herein (the "Notes"). The Notes are to be
issued under an Indenture, dated as of __________, 1995, between the
Company and the Bank of New York, as Trustee (the "Trustee") (said
Indenture, as it may be supplemented and amended, being hereinafter
referred to as the "Indenture"). As of the date hereof, the Company has
authorized the issuance and sale of up to $000,000,000 aggregate principal
amount of Notes through or to the Agent pursuant to the terms of this
Agreement. It is understood, however, that the Company may from time to
time authorize the issuance of additional Notes and that such additional
Notes may be sold through or to the Agent pursuant to the terms of this
Agreement, all as though the issuance of such Notes were authorized as of
the date hereof.
This Agreement provides both for the sale of Notes by the Company
directly to purchasers, in which case the Agent will act as the agent of
the Company in soliciting Note purchases, and (as may from time to time be
agreed to by the Company and the Agent) to the Agent as principal for
resale to purchasers.
The Company has filed with the Securities and Exchange Commission
(the "SEC") a registration statement on Form S-3 (No. 33-59383) for the
registration of equity and debt securities, including the Notes, under the
Securities Act of 1933 (the "1933 Act") and the offering thereof from time
to time in accordance with Rule 415 of the rules and regulations of the
SEC under the 1933 Act (the "1933 Act Regulations"). Such registration
statement has been declared effective by the SEC and the Indenture has
been qualified under the Trust Indenture Act of 1939, as amended (the
"1939 Act"). Such registration statement (and any further registration
statements which may be filed by the Company for the purpose of
registering additional Notes and in connection with which this Agreement
is included or incorporated by reference as an exhibit) and the prospectus
constituting a part thereof, and any prospectus supplements relating to
the Notes, including all documents incorporated therein by reference
pursuant to Item 12 of Form S-3 under the 1933 Act (the "Incorporated
Documents"), as from time to time amended or supplemented by the filing of
documents pursuant to the Securities Exchange Act of 1934 (the "1934 Act")
or the 1933 Act or otherwise, are referred to herein as the "Registration
Statement" and the "Prospectus", respectively, except that if any revised
prospectus shall be provided to the Agent by the Company for use in
connection with the offering of the Notes which is not required to be
filed by the Company pursuant to Rule 424(b) of the 1933 Act Regulations,
the term "Prospectus" shall refer to such revised prospectus from and
after the time it is first provided to the Agent for such use.
SECTION 1. Appointment as Agent.
(a) Appointment of Agent. Subject to the terms and conditions
stated herein and subject to the reservation by the Company of the right
to sell Notes directly on its own behalf, the Company hereby appoints the
Agent as its agent for the purpose of soliciting purchases of the Notes
from the Company by others and agrees that, except as otherwise
contemplated herein, whenever the Company determines to sell Notes
directly to the Agent as principal for resale to others, it will enter
into a Terms Agreement (hereafter defined) relating to such sale in
accordance with the provisions of Section 3(b) hereof. The Agent is
authorized to appoint sub-agents or to engage the services of any other
broker or dealer in connection with the offer or sale of the Notes. The
Company agrees that, during the period the Agent is acting as the
Company's agent hereunder, the Company will not contact or solicit
potential investors introduced to it by the Agent to purchase the Notes.
The Company may appoint, upon 10 days prior written notice to the Agent,
additional persons to serve as agent hereunder, but only if each such
additional person agrees to be bound by all of the terms of this Agreement
to the same extent as the Agent.
(b) Reasonable Efforts Solicitations; Right to Reject Offers. Upon
receipt of instructions from the Company, the Agent will use its
reasonable efforts to solicit purchases of such principal amount of the
Notes as the Company and such Agent shall agree upon from time to time
during the term of this Agreement, it being understood that the Company
shall not approve the solicitation of purchases of Notes in excess of the
amount which shall be authorized by the Company from time to time or in
excess of the principal amount of Notes registered pursuant to the
Registration Statement. The Agent will have no responsibility for
maintaining records with respect to the aggregate principal amount of
Notes sold, or of otherwise monitoring the availability of Notes for sale
under the Registration Statement. The Agent will communicate to the
Company, orally or in writing, each offer to purchase Notes, other than
those offers rejected by such Agent. The Agent shall have the right, in
its discretion reasonably exercised, to reject any proposed purchase of
Notes, as a whole or in part, and any such rejection shall not be deemed a
breach of such Agent's agreement contained herein. The Company may accept
or reject any proposed purchase of the Notes, in whole or in part. The
Agent will confirm in writing any offer accepted by the Company in
accordance with the Procedures established pursuant to Section 3(c)
hereof.
(c) Solicitations as Agent; Purchases as Principal. In soliciting
purchases of the Notes on behalf of the Company, the Agent shall act
solely as agent for the Company and not as principal. The Agent shall
make reasonable efforts to assist the Company in obtaining performance by
each purchaser whose offer to purchase Notes has been solicited by such
Agent and accepted by the Company. The Agent shall not have any liability
to the Company in the event any such purchase is not consummated for any
reason, other than the gross negligence or wilful misconduct of the Agent.
The Agent shall not have any obligation to purchase Notes from the Company
as principal, but the Agent may agree from time to time to purchase Notes
as principal. Any such purchase of Notes by the Agent as principal shall
be made pursuant to a Terms Agreement in accordance with Section 3(b)
hereof.
(d) Reliance. The Company and the Agent agree that any Notes the
placement of which the Agent arranges shall be placed by the Agent, and
any Notes purchased by the Agent shall be purchased by the Agent, in
reliance on the representations, warranties, covenants and agreements of
the Company contained herein and on the terms and conditions and in the
manner provided herein.
SECTION 2. Representations and Warranties.
(a) The Company represents and warrants to the Agent as of the date
hereof, as of the date of each acceptance by the Company of an offer for
the purchase of Notes (whether through the Agent as agent or to the Agent
as principal), as of the date of each delivery of Notes (whether through
the Agent as agent or to the Agent as principal) (the date of each such
delivery to the Agent as principal being hereafter referred to as a
"Settlement Date"), and as of any time that the Registration Statement or
the Prospectus shall be amended or supplemented (other than by an
amendment or supplement setting forth the price or prices, interest rate
or rates, redemption or repayment provisions and other terms of a
particular Note or Notes or relating solely to equity securities) or there
is filed with the SEC any document incorporated by reference into the
Prospectus (other than any Current Report on Form 8-K relating exclusively
to the issuance of debt securities under the Registration Statement,
unless the Agent shall otherwise specify) (each of the times referenced
above being referred to herein as a "Representation Date") as follows:
(i) Due Incorporation and Qualification. The Company is a
corporation duly organized and validly existing in good standing
under the laws of the State of Vermont, and has the corporate power
and authority to own the property and to conduct the business which
it now owns and conducts, and neither the character of the properties
owned by it nor the nature of the business it transacts makes
necessary its licensing or qualification as a foreign corporation in
any state or jurisdiction other than Maine and Massachusetts.
(ii) Subsidiaries. Each of Green Mountain Propane Gas Company
and Mountain Energy, Inc. (collectively, the "Subsidiaries") is a
wholly-owned subsidiary of the Company and is a corporation duly
organized and validly existing in good standing in the jurisdiction
of its incorporation and has the corporate power and authority to own
the property and to conduct the business which it now owns and
conducts.
(iii) Registration Statement and Prospectus. At the time the
Registration Statement became effective, the Registration Statement
complied, and as of the applicable Representation Date will comply,
in all material respects with the requirements of the 1933 Act and
the 1933 Act Regulations and the 1939 Act and the rules and
regulations of the SEC promulgated thereunder. The Registration
Statement, at the time it became effective, did not, and at each time
thereafter at which any amendment to the Registration Statement
becomes effective and as of each Representation Date, will not,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading. The Prospectus, as of the date
hereof does not, and as of each Representation Date will not, contain
an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
provided, however, that the representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by
the Agent expressly for use in the Registration Statement or
Prospectus.
(iv) Incorporated Documents. The Incorporated Documents
heretofore filed, when they were filed (or, if any amendment with
respect to any such document was filed, when such amendment was
filed), conformed in all material respects with the requirements of
the 1934 Act and the rules and regulations thereunder (the "1934 Act
Regulations"), any further Incorporated Documents so filed will, when
they are filed, conform in all material respects with the
requirements of the 1934 Act and the 1934 Act Regulations; no such
document when it was filed (or, if an amendment with respect to any
such document was filed, when such amendment was filed), contained an
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the
statements therein not misleading; and no such further document, when
it is filed, will contain an untrue statement of a material fact or
will omit to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading.
(v) Accountants. The accountants, Arthur Andersen LLP, who
have certified or shall certify the financial statements included or
incorporated by reference in the Registration Statement and the
Prospectus are independent public accountants within the meaning of
the 1933 Act and the 1933 Act Regulations.
(vi) Financial Statements. The financial statements, together
with their related notes, included or incorporated by reference in
the Registration Statement and the Prospectus, present fairly the
consolidated financial position and results of operations of the
Company and the Subsidiaries on the basis stated in the Registration
Statement at the respective dates or for the respective periods to
which they apply; such statements and related notes have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as
disclosed therein.
(vii) Authorization and Validity of this Agreement, the
Indenture and the Notes. This Agreement has been duly authorized and,
upon execution and delivery by the Agent, will be a valid and binding
agreement of the Company, subject, however, to applicable bankruptcy,
insolvency, reorganization and similar laws of general application
relating to or affecting the rights and remedies of creditors and by
general principles of equity (regardless of whether the Agreement is
considered in a proceeding at law or in equity); the Indenture has
been duly authorized and constitutes a valid and binding obligation
of the Company enforceable in accordance with its terms, except as
the enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization and similar laws of general application
relating to or affecting the rights and remedies of creditors and by
general principles of equity (regardless of whether the Indenture is
considered in a proceeding at law or in equity); the Notes have been
duly and validly authorized for issuance, offer and sale pursuant to
this Agreement and, when issued, authenticated and delivered pursuant
to the provisions of this Agreement and the Indenture against payment
of the consideration therefor specified in the Prospectus or pursuant
to any Terms Agreement, the Notes will constitute legal, valid and
legally binding obligations of the Company enforceable against the
Company in accordance with their terms, except as enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium
or other laws relating to or affecting enforcement of creditors'
rights generally or by general equity principles (regardless of
whether such enforceability is considered in a proceeding at law or
in equity); the Notes and the Indenture will conform in all material
respects to all statements relating thereto contained in the
Prospectus; and the Notes will be entitled to the benefits of the
Indenture.
(viii) Material Changes or Material Transactions. Except as
disclosed in the Registration Statement and the Prospectus,
subsequent to the respective dates as of which such information is
given in the Registration Statement and the Prospectus, neither the
Company nor either of the Subsidiaries has incurred or will have
incurred any material liability or obligation, direct or contingent,
or has entered into any material transaction, not in the ordinary
course of business, in either case which has resulted in a material
adverse change in the condition (financial or other), net worth or
results of operations of the Company and the Subsidiaries taken as a
whole and there has not been any material change in the capital stock
or long-term debt of the Company.
(ix) Legal Proceedings; Contracts. Except as set forth in the
Prospectus, there is not pending or, to the knowledge of the Company,
threatened, any action, suit or proceeding, to which the Company or
either of the Subsidiaries is a party, before or by any court or
governmental agency or body, which might result in any material
adverse change in the condition (financial or other), business,
prospects, net worth or results of operations of the Company and the
Subsidiaries taken as a whole, or might materially and adversely
affect the properties or assets of the Company and the Subsidiaries
taken as a whole; and there are no contracts or documents of the
Company which would be required to be filed as exhibits to the
Registration Statement or by the 1933 Act Regulations which have not
been so filed.
(x) No Conflict. The consummation of the transactions herein
contemplated and the fulfillment of the terms hereof will not result
in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust or
other agreement or instrument to which the Company is a party or by
which it or any of its property is bound, or of the Articles of
Association or by-laws of the Company, or any order, rule or
regulation applicable to the Company or any of its property of any
court or other governmental body.
(xi) Franchises, Permits, Easements and Consents. Each of the
Company and the Subsidiaries owns or possesses all franchises,
permits, patents, trademarks, service marks, trade names, copyrights,
licenses and authorizations, and all other operating rights,
consents, authorizations and orders (collectively, "Franchises"), and
all rights with respect to the foregoing, necessary for the conduct
of its business as now conducted; all of such Franchises are valid
and subsisting and contain no unduly burdensome restriction,
condition or limitation; and neither the Company nor either of the
Subsidiaries is in default in any material respect in respect
thereof.
(xii) Public Utility Holding Company Act. The Company has
timely filed in good faith with the SEC exemption statements under
Section 3(a)(2) of the Public Utility Holding Company Act of 1935 and
the SEC has not acted to terminate the exemption from such Act
thereby obtained.
(xiii) Governmental Consent. No consent, approval or
authorization of, or declaration or filing with, any governmental
authority is required for the valid execution and delivery of this
Agreement or the Indenture or the valid offer, issue, sale and
delivery of the Notes pursuant to this Agreement and the Indenture
except the issue of an order by the Public Service Board of the State
of Vermont (the "Board") consenting to the issuance and sale of the
Notes. An order in Docket No. 5820, dated ___________ (the "Order"),
consenting to the issuance and sale of the Notes has been issued by
the Board, the Company has delivered to you complete and correct
copies of such order and all supplements, amendments or other filings
to or with the Order, the Order is in full force and effect, no
proceeding has been instituted to review, suspend, limit, restrict or
revoke the Order and the Company has provided you with a copy of a
letter by the Department of Public Service of the State of Vermont
(the "VDPS") waiving the right of the VDPS to institute any such
proceeding.
(b) Additional Certifications. Any certificate signed by any
director or officer of the Company and delivered to the Agent or to
counsel for the Agent in connection with an offering of Notes or the sale
of Notes to the Agent as principal shall be deemed a representation and
warranty by the Company to the Agent as to the matters covered thereby on
the date of such certificate and at each Representation Date subsequent
thereto.
SECTION 3. Solicitations as Agent; Purchases as Principal.
(a) Solicitations as Agent. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions
herein set forth, the Agent agrees, as the agent of the Company, to use
its reasonable efforts to solicit offers to purchase the Notes upon the
terms and conditions set forth herein and in the Prospectus.
The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through the Agent, as agent,
commencing at any time for any period of time or permanently. Upon
receipt of instructions from the Company, such Agent will forthwith
suspend solicitation of purchases from the Company until such time as the
Company has advised such Agent that such solicitation may be resumed.
The Company agrees to pay the Agent a commission, in the form of a
discount, equal to the applicable percentage of the principal amount of
each Note sold by the Company as a result of a solicitation made by such
Agent as set forth in Schedule A hereto. The Agent may reallow any
portion of the commission payable pursuant hereto to dealers or purchasers
in connection with the offer and sale of any Notes.
The purchase price, interest rate, maturity date and other terms of
the Notes shall be agreed upon by the Company and the Agent and set forth
in a pricing supplement to the Prospectus to be prepared following each
acceptance by the Company of an offer for the purchase of Notes. Except
as may be otherwise provided in such supplement to the Prospectus, the
Notes will be issued in denominations of $1,000 and integral multiples
thereof. All Notes sold through the Agent as agent will be sold at 100%
of their principal amount unless otherwise agreed to by the Company and
such Agent.
(b) Purchases as Principal. Each sale of Notes to the Agent as
principal shall be made in accordance with the terms contained herein and
(unless the Company and such Agent shall otherwise agree) pursuant to a
separate agreement which will provide for the sale of such Notes to, and
the purchase and reoffering thereof by, such Agent. Each such separate
agreement (which may be an oral agreement, which shall be confirmed in
writing as soon as reasonably practicable thereafter) between such Agent
and the Company is herein referred to as a "Terms Agreement". Unless the
context otherwise requires, each reference contained herein to "this
Agreement" shall be deemed to include any applicable Terms Agreement
between the Company and the Agent. Each such Terms Agreement shall be
with respect to such information (as applicable) as is specified in
Exhibit A hereto. The Agent's commitment to purchase Notes as principal
pursuant to any Terms Agreement or otherwise shall be deemed to have been
made on the basis of the representations and warranties of the Company
herein contained and shall be subject to the terms and conditions herein
set forth. Each Terms Agreement shall specify the principal amount of
Notes to be purchased by the Agent pursuant thereto, the price to be paid
to the Company for such Notes (which, if not so specified in a Terms
Agreement, shall be at a discount equivalent to the applicable commission
set forth in Schedule A hereto), the time and place of delivery of and
payment for such Notes, any provisions relating to rights of, and default
by purchasers acting together with the Agent in the reoffering of the
Notes, and such other provisions (including further terms of the Notes) as
may be mutually agreed upon. The Agent may utilize a selling or dealer
group in connection with the resale of the Notes purchased. Such Terms
Agreement shall also specify the requirements for the officers'
certificate, opinions of counsel and comfort letter pursuant to Sections
7(b), 7(c) and 7(d) hereof and the stand-off agreement pursuant to Section
4(k) hereof.
(c) Administrative Procedures. Administrative procedures with
respect to the sale of Notes shall be agreed upon from time to time by the
Agent and the Company (the "Procedures"). The Agent and the Company agree
to perform the respective duties and obligations specifically provided to
be performed by them in the Procedures.
SECTION 4. Covenants of the Company.
The Company covenants with the Agent as follows:
(a) Notice of Certain Events. The Company will notify the Agent
immediately (i) of the effectiveness of any amendment to the Registration
Statement, (ii) of the transmittal to the SEC for filing of any supplement
to the Prospectus or any Incorporated Document, (iii) of the receipt of
any comments from the SEC with respect to the Registration Statement or
the Prospectus, (iv) of any request by the SEC for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or
for additional information, and (v) of the issuance by the SEC of any stop
order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Company will make
every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest
possible moment.
(b) Notice of Certain Proposed Filings. The Company will give the
Agent notice of its intention to file or prepare any additional
registration statement with respect to the registration of additional
Notes, any amendment to the Registration Statement or any amendment or
supplement to the Prospectus, whether by the filing of documents pursuant
to the 1934 Act, the 1933 Act or otherwise, and will furnish the Agent
with copies of any such amendment or supplement or other documents
proposed to be filed or prepared a reasonable time in advance of such
proposed filing or preparation, as the case may be, and will not file any
such amendment or supplement or other documents in a form to which the
Agent or counsel for the Agent shall reasonably object.
(c) Copies of the Registration Statement and the Prospectus. The
Company will furnish to the Agent, without charge (i) two signed copies of
the registration statement as originally filed with the Commission and of
each amendment thereto, including financial statements and all exhibits to
the registration statement, (ii) such number of conformed copies of the
registration statement as originally filed and of each amendment thereto,
but without exhibits, as the Agent reasonably may request, and (iii) two
copies of the Incorporated Documents and the exhibits to the Incorporated
Documents.
(d) Preparation of Pricing Supplements. The Company will prepare,
with respect to any Notes to be sold through or to the Agent pursuant to
this Agreement, a Pricing Supplement with respect to such Notes in a form
previously approved by such Agent and will file such Pricing Supplement
pursuant to Rule 424(b) under the 1933 Act as required for the
transaction.
(e) Revisions of Prospectus -- Material Changes. Except as
otherwise provided in subsection (l) of this Section, if at any time
during the term of this Agreement any event shall occur or condition exist
as a result of which it is necessary, in the reasonable opinion of
counsel for the Agent or counsel for the Company, to further amend or
supplement the Prospectus in order that the Prospectus will not include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein not misleading in the
light of the circumstances existing at the time the Prospectus is
delivered to a purchaser, or if it shall be necessary, in the reasonable
opinion of either such counsel, to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, immediate notice shall be given,
and confirmed in writing, to the Agent to cease the solicitation of offers
to purchase the Notes in the Agent's capacity as agent and to cease sales
of any Notes the Agent may then own as principal pursuant to a Terms
Agreement, and the Company will promptly prepare and file with the SEC
such amendment or supplement, whether by filing documents pursuant to the
1934 Act, the 1933 Act or otherwise, as may be necessary to correct such
untrue statement or omission or to make the Registration Statement and
Prospectus comply with such requirements.
(f) Prospectus Revisions -- Periodic Financial Information. Except
as otherwise provided in subsection (l) of this Section, on or prior to
the date on which there shall be released to the general public interim
financial statement information related to the Company with respect to
each of the first three quarters of any fiscal year or preliminary
financial statement information with respect to any fiscal year, the
Company shall furnish such information to the Agent.
(g) Prospectus Revisions -- Audited Financial Information. Except
as otherwise provided in subsection (l) of this Section, on or prior to
the date on which there shall be released to the general public financial
information included in or derived from the audited financial statements
of the Company for the preceding fiscal year, the Company shall cause the
Registration Statement and the Prospectus to be amended, whether by the
filing of documents pursuant to the 1934 Act, the 1933 Act or otherwise,
to include or incorporate by reference such audited financial statements
and the report or reports, and consent or consents to such inclusion or
incorporation by reference, of the independent accountants with respect
thereto, as well as such other information and explanations as shall be
necessary for an understanding of such financial statements or as shall be
required by the 1933 Act or the 1933 Act Regulations.
(h) Earnings Statements. The Company will make generally available
to its security holders a consolidated earnings statement, which need not
be audited, covering a twelve-month period commencing after the effective
date of the Registration Statement and ending not later than 15 months
thereafter, as soon as practicable after the end of such period, which
consolidated earnings statement shall satisfy the provisions of Section
11(a) of the 1933 Act.
(i) Blue Sky Qualifications. The Company will cooperate with the
Agent and with counsel for the Agent in connection with the registration
or qualification of the Notes for offering and sale by dealers under the
securities or Blue Sky laws of such jurisdictions as the Agent may
designate and will file such consents to service of process or other
documents necessary or appropriate in order to effect such registration or
qualification; provided that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so
qualified or to file any consent to service of process or to submit to any
requirements which it deems unduly burdensome.
(j) 1934 Act Filings. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file
promptly all documents required to be filed with the SEC pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act.
(k) Stand-Off Agreement. If required pursuant to the terms of a
Terms Agreement, between the date of any Terms Agreement and the
Settlement Date with respect to such Terms Agreement, the Company will
not, without the Agent's prior consent, which consent shall not be
unreasonably withheld, offer or sell, or enter into any agreement to sell,
any debt securities of the Company (other than the Notes that are to be
sold pursuant to such Terms Agreement, short-term debt incurred under the
Company's lines of credit or revolving credit arrangements and commercial
paper in the ordinary course of business).
(l) Suspension of Certain Obligations. The Company shall not be
required to comply with the provisions of subsections (e), (f) or (g) of
this Section or Section 7 during any period from the time (i) the Agent
shall have suspended solicitation of purchases of the Notes in their
capacity as agent pursuant to a request from the Company and (ii) the
Agent shall not then hold any Notes as principal purchased pursuant to a
Terms Agreement, to the time the Company shall determine that solicitation
of purchases of the Notes should be resumed or shall subsequently enter
into a new Terms Agreement with the Agent.
(m) Condition to Agency Transactions. Any person who has agreed to
purchase Notes as the result of an offer to purchase solicited by the
Agent shall have the right to refuse to purchase and pay for such Notes
if, on the related settlement date fixed pursuant to the Procedures, (i)
there has been, since the date on which such person agreed to purchase the
Notes (the "Trade Date"), or since the respective dates as of which
information is given in the Registration Statement, any material change in
the capital stock, short-term debt or long-term debt of the Company, or
any material adverse change in the condition (financial or other), net
worth or results of operations of the Company and the Subsidiaries taken
as a whole, or (ii) there shall have occurred any outbreak or escalation
of hostilities or other international or domestic calamity, crisis or
change in political, financial or economic conditions the effect of which
is such as to make it, in the judgment of such person, impracticable or
inadvisable to purchase the Notes, or (iii) if trading in securities
generally on the New York Stock Exchange shall have been suspended or
materially limited or if a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New
York authorities, or (iv) the rating assigned by any nationally recognized
securities rating agency to any debt securities of the Company as of the
Trade Date shall have been lowered since that date or if any such rating
agency shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any debt
securities of the Company.
SECTION 5. Conditions of Obligations.
The obligations of the Agent as agent to solicit offers to purchase
the Notes of the Company, the obligations of any purchasers of the Notes
sold through the Agent as agent, and any obligation of the Agent to
purchase Notes pursuant to a Terms Agreement or otherwise will be subject
to the accuracy of the representations and warranties on the part of the
Company herein and to the accuracy of the statements of the Company's
officers made in any certificate furnished pursuant to the provisions
hereof, to the performance and observance by the Company of all its
covenants and agreements herein contained and to the following additional
conditions precedent:
(a) Legal Opinions. On the date hereof, the Agent shall have
received the following legal opinions, dated as of the date hereof,
addressed to the Agent and in form and substance satisfactory to the
Agent:
(1) Opinion of Company Special Counsel. The opinion of Hunton
& Williams, Special Counsel to the Company, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Vermont, and has all corporate power and authority
necessary to own its properties and carry on the business which
it is presently conducting as described in the Registration
Statement.
(ii) The Registration Statement has become effective under
the Act, and, to the best of the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose
have been instituted or are pending or contemplated under the
1933 Act; the Indenture has been qualified under the 1939 Act;
any required filing of the Prospectus pursuant to Rule 424(b)
has been made in accordance with Rule 424(b); the Registration
Statement and the Prospectus and any amendment or supplement
thereto comply as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations
(except that such counsel need express no opinion as to the
financial statements and other financial and statistical data
contained therein); each of the Incorporated Documents comply as
to form in all material respects with the requirements of the
1934 Act and the 1934 Act Regulations of the SEC thereunder
(except that such counsel need express no opinion as to the
financial statements and other financial and statistical data
contained therein); and the statements set forth in the
Company's Annual Report of Form 10-K for the year ended December
31, 1994 with respect to the Public Utility Holding Company Act
of 1935 under "State and Federal Regulation", as to matters of
law and legal conclusions, are true and correct.
(iii) They do not know of any legal or governmental
proceedings pending or threatened to which the Company is a
party, or of which property of the Company is the subject, of a
character required to be disclosed in the Registration Statement
which are not disclosed and properly described therein; and they
do not know of any contracts or other documents of a character
required to be filed as exhibits to the Registration Statement
which are not so filed, or any contracts or other documents of a
character required to be disclosed in the Registration Statement
which are not disclosed and properly summarized therein.
(iv) This Agreement has been duly authorized, executed and
delivered by the Company; and the performance of this Agreement
and the Supplemental Indenture and the consummation of the
transactions herein and therein contemplated will not result in
a breach of any of the terms or provisions of, or constitute a
default under, the Articles of Association or by-laws of the
Company, or any indenture, mortgage, deed of trust or other
agreement or instrument known to such counsel to which the
Company is a party or by which it or its properties may be bound
or affected.
(v) The Indenture has been duly authorized by all
necessary corporate action on the part of the Company and has
been duly executed and delivered by the Company. The Indenture
constitutes a legal, valid and binding instrument, enforceable
in accordance with its terms, except as the enforceability
thereof may be limited as set forth in paragraph (vi) below.
(vi) The Notes have been duly authorized for issuance,
offer and sale pursuant to this Agreement and, when issued,
authenticated and delivered pursuant to the provisions of this
Agreement and the Indenture against payment of the consideration
therefor specified in the Prospectus or pursuant to any Terms
Agreement, will constitute legal, valid and binding obligations
of the Company, enforceable against the Company in accordance
with their terms, except that such enforceability may be limited
by applicable bankruptcy, insolvency, fraudulent transfer,
reorganization and similar laws of general application relating
to or affecting the rights and remedies of creditors and by
general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in
equity). The Notes will be entitled to the benefits of the
Indenture.
(vii) The Indenture and the Notes conform to the
statements concerning them in the Registration Statement and the
Prospectus.
(viii) No consent, approval or authorization of, or
declaration or filing with, any governmental authority is
required for the valid execution and delivery of this Agreement
or the Indenture or the valid offer, issue, sale and delivery of
the Notes pursuant to this Agreement and the Indenture except
the issue of an order by the Board consenting to the issuance
and sale of the Notes.
(2) Opinion of Company General Counsel. The opinion of Peter
H. Zamore, General Counsel of the Company, covering the matters
referred to in subparagraph (1) under the subheadings (iii) to (vii),
inclusive, and to the further effect:
(i) Each of the Company, Green Mountain Propane Gas
Company and Mountain Energy, Inc. has been duly incorporated and
is validly existing as a corporation in good standing under the
laws of the State of Vermont, and has all corporate and other
power and authority necessary to own its properties and carry on
the business which it is presently conducting as described in
the Registration Statement.
(ii) The statements set forth in the Prospectus under
"Description of the Notes", as to matters of law and legal
conclusions governed by Vermont law, are true and correct.
(iii) The statements set forth in the Company's Annual
Report on Form 10-K for the year ended December 31, 1994 under
"State and Federal Regulation" (other than statements made with
respect to the Public Utility Holding Company Act of 1935),
under "Recent Rate Developments" and under "Legal Proceedings",
as to matters of law and legal conclusions, are true and
correct.
(iv) No consent, approval or authorization of, or
declaration or filing with, any governmental authority is
required for the valid execution and delivery of this Agreement
or the Indenture or the valid offer, issue, sale and delivery of
the Notes pursuant to this Agreement and Indenture except the
issue of an order by the Board consenting to the issuance and
sale of the Notes. Such order has been issued by such Board,
such order is in full force and effect and no proceeding has
been instituted to review, suspend, limit, restrict or revoke
such order.
(3) Opinion of Counsel to the Agent. The opinion of Reid &
Priest LLP, Counsel to the Agent, covering the matters referred to in
subparagraph (1) under the subheadings (ii), (iv)(as to the first
clause thereof), (vi) and (vii) above and such other related matters
as the Agent may request.
(4) In giving their respective opinions required by subsection
(a)(1), (a)(2) and (a)(3) of this Section, Counsel shall each
additionally state that nothing has come to his or their attention
that would lead him or them to believe that the Registration
Statement, at the time it became effective, and if an amendment to
the Registration Statement or an Annual Report on Form 10-K has been
filed by the Company with the SEC subsequent to the effectiveness of
the Registration Statement, then at the time such amendment became
effective or at the time of the most recent such filing, and at the
date hereof, or (if such opinion is being delivered in connection
with a Terms Agreement pursuant to Section 3(b) hereof) at the date
of any Terms Agreement and at the Settlement Date with respect
thereto, as the case may be, contains or contained an untrue
statement of a material fact or omits or omitted to state a material
fact required to be stated therein or necessary in order to make the
statements therein not misleading or that the Prospectus, as amended
or supplemented at the date hereof, or (if such opinion is being
delivered in connection with a Terms Agreement pursuant to Section
3(b) hereof) at the date of any Terms Agreement and at the Settlement
Date with respect thereto, as the case may be, contains an untrue
statement of a material fact or omits to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading (it
being understood that such counsel need express no opinion with
respect to the financial statements and the notes thereto and the
schedules and other financial and statistical data included in the
Registration Statement or the Prospectus or any Incorporated
Document).
(5) As to matters of Vermont law, Hunton & Williams and Reid &
Priest LLP may rely upon the opinion of Peter H. Zamore, Esq.
(b) Officers' Certificate. At the date hereof the Agent shall have
received a certificate or certificates, of the Chairman of the Board or
the President or the Executive Vice President and the Vice President,
Chief Financial Officer and Treasurer, or the Secretary of the Company to
the effect that, to the best of their knowledge, based on a reasonable
investigation:
(i) No stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for the
purpose have been instituted or are pending or contemplated under the
Act;
(ii) Neither the Registration Statement nor the Prospectus, as
the same may have been amended or supplemented, contains any untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading; and, since the effective date of the
Registration Statement there has occurred no event required to be set
forth in an amended or supplemented Prospectus which has not been so
set forth;
(iii) Except as contemplated in the Prospectus, subsequent to
the respective dates as of which information is given in the
Registration Statement and the Prospectus, neither the Company or
either of the Subsidiaries has not incurred any material liabilities
or obligations, direct or contingent, or entered into any material
transaction, not in the ordinary course of business, in either case
which has resulted in a material adverse change in the condition
(financial or other) or results of operations of the Company and the
Subsidiaries taken as a whole and there has not been any material
change in the capital stock or long-term debt of the Company;
(iv) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, the
Company has not sustained any loss or damage to its properties which
(considering them as a whole) is material, whether or not insured;
and
(v) The representations and warranties of the Company in this
Agreement are true and correct, as if made at and as of the date of
such certificate; and the Company has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the date of such certificate.
(c) Comfort Letter. On the date hereof, the Agent shall have
received a letter from Arthur Andersen LLP dated as of the date hereof and
in form and substance satisfactory to the Agent, to the effect that:
(i) They are independent public accountants with respect to the
Company and its subsidiaries within the meaning of the 1933 Act and
the 1933 Act Regulations.
(ii) In their opinion, the consolidated financial statements
and supporting schedules of the Company and its subsidiaries examined
by them and included or incorporated by reference in the Registration
Statement comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations with respect to registration statements on Form S-3 and
the 1934 Act and the 1934 Act Regulations.
(iii) They have performed specified procedures, not
constituting an audit, including a reading of the latest available
interim consolidated financial statements of the Company and its
indicated subsidiaries, a reading of the minute books of the Company
and such subsidiaries since the end of the most recent fiscal year
with respect to which an audit report has been issued, inquiries of
and discussions with certain officials of the Company and such
subsidiaries responsible for financial and accounting matters with
respect to the unaudited consolidated financial statements included
in the Registration Statement and Prospectus and the latest available
interim unaudited consolidated financial statements of the Company
and its subsidiaries, and such other inquiries and procedures as may
be specified in such letter, and on the basis of such inquiries and
procedures nothing came to their attention that caused them to
believe that: (A) the unaudited consolidated financial statements of
the Company and its subsidiaries included in the Registration
Statement and Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the 1934 Act
and the 1934 Act Regulations or were not fairly presented in
conformity with generally accepted accounting principles in the
United States applied on a basis substantially consistent with that
of the audited consolidated financial statements included therein, or
(B) at a specified date not more than five days prior to the date of
such letter, there was any change in the consolidated capital stock
or any increase in consolidated long-term debt of the Company and its
subsidiaries or any decrease in the consolidated net assets of the
Company and its subsidiaries, in each case as compared with the
amounts shown on the most recent consolidated balance sheet of the
Company and its subsidiaries included in the Registration Statement
and Prospectus or, during the period from the date of such balance
sheet to a specified date not more than five days prior to the date
of such letter, there were any decreases, as compared with the
corresponding period in the preceding year, in consolidated revenues
or net income of the Company and its subsidiaries, except in each
such case as set forth in or contemplated by the Registration
Statement and Prospectus or except for such exceptions enumerated in
such letter as shall have been agreed to by the Agent and the
Company.
(iv) In addition to the examination referred to in their report
included or incorporated by reference in the Registration Statement
and the Prospectus, and the limited procedures referred to in clause
(iii) above, they have carried out certain other specified
procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information which are included or
incorporated by reference in the Registration Statement and
Prospectus and which are specified by the Agent, and have found such
amounts, percentages and financial information to be in agreement
with the relevant accounting, financial and other records of the
Company and its subsidiaries identified in such letter.
(d) Other Documents. On the date hereof and on each Settlement Date
with respect to any applicable Terms Agreement, Counsel to the Agent shall
have been furnished with such documents and opinions as such counsel may
reasonably require for the purpose of enabling such Counsel to pass upon
the issuance and sale of Notes as herein contemplated and related
proceedings, or in order to evidence the accuracy and completeness of any
of the representations and warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of Notes as herein contemplated
shall be satisfactory in form and substance to the Agent and to Counsel to
the Agent.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement (or, at the
option of the Agent, any applicable Terms Agreement) may be terminated by
the Agent by notice to the Company at any time and any such termination
shall be without liability of any party to any other party, except that
the covenant regarding provision of an earnings statement set forth in
Section 4(h) hereof, the indemnity and contribution agreement set forth in
Sections 8 and 9 hereof, the provisions concerning payment of expenses
under Section 10 hereof, the provisions concerning the representations,
warranties and agreements to survive delivery of Section 11 hereof and the
provisions set forth in Section 15 hereof shall remain in effect.
SECTION 6. Delivery of and Payment for Notes Sold through the Agent.
Delivery of Notes sold through the Agent as agent shall be made by
the Company to such Agent for the account of any purchaser only against
payment therefor in immediately available funds. In the event that a
purchaser shall fail either to accept delivery of or to make payment for a
Note on the date fixed for settlement, the Agent shall promptly notify the
Company and deliver the Note to the Company, and, if the Agent has
theretofore paid the Company for such Note, the Company will promptly
return such funds to the Agent. If such failure occurred for any reason
other than default by the Agent in the performance of its obligations
hereunder, the Company will reimburse the Agent on an equitable basis for
its loss of the use of the funds for the period such funds were credited
to the Company's account.
SECTION 7. Additional Covenants of the Company.
The Company covenants and agrees with the Agent that:
(a) Reaffirmation of Representations and Warranties. Each
acceptance by the Company of an offer for the purchase of Notes, and each
delivery of Notes to the applicable Agent pursuant to a Terms Agreement,
shall be deemed to be an affirmation that the representations and
warranties of the Company contained in this Agreement and in any
certificate theretofore delivered to the Agent pursuant hereto are true
and correct at the time of such acceptance or sale, as the case may be,
and an undertaking that such representations and warranties will be true
and correct at the time of delivery to the purchaser or his agent, or to
the Agent, of the Note or Notes relating to such acceptance or sale, as
the case may be, as though made at and as of each such time (and it is
understood that such representations and warranties shall relate to the
Registration Statement and Prospectus as amended and supplemented to each
such time).
(b) Subsequent Delivery of Certificates. Each time that the
Registration Statement or the Prospectus shall be amended or supplemented
(other than by an amendment or supplement setting forth the price or
prices, interest rate or rates, redemption or repayment provisions and
other terms of a particular Note or Notes, and, unless the Agent shall
otherwise specify, other than by an amendment or supplement which relates
exclusively to an offering of debt securities other than the Notes or an
offering of equity securities) or there is filed with the SEC any document
incorporated by reference into the Prospectus (other than any Current
Report on Form 8-K relating exclusively to the issuance of debt securities
under the Registration Statement, unless the Agent shall otherwise
specify) or (if required pursuant to the terms of a Terms Agreement) the
Company sells Notes to the Agent pursuant to a Terms Agreement, the
Company shall furnish or cause to be furnished to the Agent forthwith a
certificate dated the date of filing with the SEC of such supplement or
document, the date of effectiveness of such amendment, or the date of
delivery of Notes pursuant to a Terms Agreement, as the case may be, in
form reasonably satisfactory to the Agent to the effect that the
statements contained in the certificate referred to in Section 5(b) hereof
which was last furnished to the Agent is true and correct in all material
respects at the time of such amendment, supplement, filing or delivery, as
the case may be, as though made at and as of such time (except that such
statements shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such time) or, in lieu of such
certificate, a certificate of the same tenor as the certificate referred
to in said Section 5(b), modified as necessary to relate to the
Registration Statement and the Prospectus as amended and supplemented to
the time of delivery of such certificate.
(c) Subsequent Delivery of Legal Opinions. Each time that the
Registration Statement or the Prospectus shall be amended or supplemented
(other than by an amendment or supplement setting forth the price or
prices, interest rate or rates, redemption or repayment provisions and
other terms of a particular Note or Notes or solely for the inclusion of
additional financial information, and, unless the Agent shall otherwise
specify, other than by an amendment or supplement which relates
exclusively to an offering of debt securities other than the Notes or an
offering of equity securities) or there is filed with the SEC any document
incorporated by reference into the Prospectus (other than any Current
Report on Form 8-K or Quarterly Report on Form 10-Q, unless the Agent
shall otherwise specify), or (if required pursuant to the terms of a Terms
Agreement) the Company sells Notes to the Agent pursuant to a Terms
Agreement, the Company shall furnish or cause to be furnished forthwith to
the Agent and to Counsel to the Agent the written opinions of Counsel to
the Company referred to in Sections 5(a)(1) and (2) hereof, or other
counsel reasonably satisfactory to the Agent dated the date of filing with
the SEC of such supplement or document, the date of effectiveness of such
amendment, or the date of delivery of Notes pursuant to a Terms Agreement,
as the case may be, in form and substance reasonably satisfactory to the
Agent, of the same tenor as the opinions referred to in Section 5(a)(1)
and (2) hereof, but modified, as necessary, to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of
delivery of such opinion; or, in lieu of such opinion, Counsel last
furnishing such opinions to the Agent shall furnish the Agent with letters
to the effect that the Agent may rely on such last opinion to the same
extent as though it was dated the date of such letter authorizing reliance
(except that statements in such last opinion shall be deemed to relate to
the Registration Statement and the Prospectus as amended and supplemented
to the time of delivery of such letter authorizing reliance).
(d) Subsequent Delivery of Comfort Letters. Each time that the
Registration Statement or the Prospectus shall be amended or supplemented
to include additional financial information or there is filed with the SEC
any document incorporated by reference into the Prospectus which contains
additional financial information or (if required pursuant to the terms of
a Terms Agreement) the Company sells Notes to the agent pursuant to a
Terms Agreement, the Company shall cause Arthur Andersen LLP forthwith to
furnish the Agent a letter, dated the date of the effectiveness of such
amendment or supplement or the date of the filing of such document with
the SEC , or the date of such sale, as the case may be, in form
satisfactory to the Agent, of the same tenor as the portions of the letter
referred to in clauses (i) and (ii) of Section 5(c) hereof but modified to
relate to the Registration Statement and Prospectus, as amended and
supplemented to the date of such letter, and of the same general tenor as
the portions of the letter referred to in clauses (iii) and (iv) of said
Section 5(c) with such changes as may be necessary to reflect changes in
the financial statements and other information derived from the accounting
records of the Company; provided, however, that if the Registration
Statement or the Prospectus is amended or supplemented solely to include
financial information as of and for a fiscal quarter, Arthur Andersen
L.L.P. may limit the scope of such letter to the unaudited financial
statements included in such amendment or supplement unless any other
information included therein of an accounting, financial or statistical
nature is of such a nature that, in the reasonable judgment of the Agent,
such letter should cover such other information.
SECTION 8. Indemnification.
(a) The Company agrees to indemnify and hold harmless the Agent and
each person, if any, who controls any Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act from and against
any and all losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation) arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus or in any amendment or supplement
thereto, or arising out of or based upon any omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages, liabilities or expenses arise out of or are
based upon any untrue statement or omission or alleged untrue statement or
omission which has been made therein or omitted therefrom in reliance upon
and in conformity with the information relating to the Agent furnished in
writing to the Company by the Agent expressly for use in connection
therewith.
(b) If any action, suit or proceeding shall be brought against the
Agent or any person controlling the Agent in respect of which indemnity
may be sought against the Company, the Agent or such controlling person
shall promptly notify the Company and the Company shall assume the defense
thereof, including the employment of counsel and payment of all fees and
expenses. The Agent or any such controlling person shall have the right
to employ separate counsel in any such action, suit or proceeding and to
participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of the Agent or such controlling person
unless (i) the Company has agreed in writing to pay such fees and
expenses, (ii) the Company has failed to assume the defense and employ
counsel, or (iii) the named parties to any such action, suit or proceeding
(including any impleaded parties) include both the Agent or such
controlling person and the Company and the Agent or such controlling
person shall have been advised by its counsel that representation of such
indemnified party and the Company by the same counsel would be
inappropriate under applicable standards of professional conduct (whether
or not such representation by the same counsel has been proposed) due to
actual or potential differing interests between them (in which case the
Company shall not have the right to assume the defense of such action,
suit or proceeding on behalf of such Underwriter or such controlling
person). It is understood, however, that the Company shall, in connection
with any one such action, suit or proceeding or separate but substantially
similar or related actions, suits or proceedings in the same jurisdiction
arising out of the same general allegations or circumstances, be liable
for the reasonable fees and expenses of only one separate firm of
attorneys (in addition to any local counsel) at any time for the Agent and
such controlling persons not having actual or potential differing
interests among themselves, which firm shall be designated in writing by
the Agent, and that all such fees and expenses shall be reimbursed as they
are incurred. The Company shall not be liable for any settlement of any
such action, suit or proceeding effected without its written consent, but
if settled with such written consent, or if there be a final judgment for
the plaintiff in any such action, suit or proceeding, the Company agrees
to indemnify and hold harmless the Agent, to the extent provided in the
preceding paragraph, and any such controlling person from and against any
loss, claim, damage, liability or expense by reason of such settlement or
judgment.
(c) The Agent agrees to indemnify and hold harmless the Company, its
directors, its officers who sign the Registration Statement, and any
person who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, to the same extent as the
foregoing indemnity from the Company to the Agent, but only with respect
to information relating to the Agent furnished in writing by or on behalf
of the Agent expressly for use in the Registration Statement, the
Prospectus or any amendment or supplement thereto. If any action, suit or
proceeding shall be brought against the Company, any of its directors, any
such officer, or any such controlling person based on the Registration
Statement, the Prospectus or any amendment or supplement thereto, and in
respect of which indemnity may be sought against the Agent pursuant to
this paragraph (c), the Agent shall have the rights and duties given to
the Company by paragraph (b) above (except that if the Company shall have
assumed the defense thereof the Agent shall not be required to do so, but
may employ separate counsel therein and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the Agent's
expense), and the Company, its directors, any such officer, and any such
controlling person shall have the rights and duties given to the Agent by
paragraph (b) above. The foregoing indemnity agreement shall be in
addition to any liability which the Agent may otherwise have.
SECTION 9. Contribution; General.
(a) If the indemnification provided for in Section 8 is unavailable
to an indemnified party under paragraphs (a) or (c) thereof in respect of
any losses, claims, damages, liabilities or expenses referred to therein,
then an indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages, liabilities or expenses
(i) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Agent on the other hand
from the offering of the Notes, as well as other relevant equitable
considerations, or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and the Agent on
the other in connection with the statements or omissions that resulted in
such losses, claims, damages, liabilities or expenses, as well as any
other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Agent on the other shall be
determined by reference to, among other things, the total net proceeds
from the offering (before deducting expenses) received by the Company and
the total commissions received by the Agent, in each case as set forth in
the table on the cover page of the Prospectus. The relative fault of the
Company on the one hand and the Agent on the other hand shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company on the one hand or by the Agent on the other hand and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(b) The Company and the Agent agree that it would not be just and
equitable if contribution pursuant to this Section 9 were determined by a
pro rata allocation or by any other method of allocation that does not
take account of the equitable considerations referred to in paragraph (a)
above. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages, liabilities and expenses referred to in
paragraph (a) above shall be deemed to include, subject to the limitations
set forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating any claim or defending
any such action, suit or proceeding. Notwithstanding the provisions of
this Section 9, the Agent shall not be required to contribute any amount
in excess of the amount by which the total price of the Notes sold through
it exceeds the amount of any damages which the Agent has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act)
shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
(c) No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or
threatened action, suit or proceeding in respect of which any indemnified
party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on
claims that are the subject matter of such action, suit or proceeding.
(d) All representations and warranties of the Company contained
herein and in the certificate or certificates delivered pursuant to
Section 5 and the indemnity agreements contained in Section 8 and this
Section 9 shall remain operative and in full force and effect regardless
of any investigation made by or on behalf of the Agent or controlling
person, or by or on behalf of the Company or any officer, director or
controlling person, or of any termination of this Agreement, and shall
survive delivery of and payment for the Notes.
SECTION 10. Payment of Expenses.
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) The preparation and filing of the Registration Statement
and all amendments thereto and the Prospectus and any amendments or
supplements thereto;
(b) The cost of reproducing this Agreement;
(c) The preparation, printing, issuance and delivery of the
Notes, including any fees and expenses relating to the use of
book-entry notes;
(d) The fees and disbursements of the Company's accountants and
counsel, of the Trustee and its counsel and of the calculation agent,
if any;
(e) The reasonable fees and disbursements of counsel to the
Agent incurred from time to time in connection with the transactions
contemplated hereby;
(f) The qualification of the Notes under state securities laws
in accordance with the provisions of Section 4(i) hereof, including
filing fees and the reasonable fees and disbursements of counsel for
the Agent in connection therewith and in connection with the
preparation of any Blue Sky Survey and any Legal Investment Survey;
(g) The printing and delivery to the Agent in quantities as
hereinabove stated of copies of the Registration Statement and any
amendments thereto, and of the Prospectus and any amendments or
supplements thereto, and the delivery by the Agent of the Prospectus
and any amendments or supplements thereto in connection with
solicitations or confirmations of sales of the Notes;
(h) The preparation, printing, reproducing and delivery to the
Agent of copies of the Indenture and all supplements and amendments
thereto;
(i) Any fees charged by rating agencies for the rating of the
Notes;
(j) The fees and expenses, if any, incurred with respect to any
filing with the National Association of Securities Dealers, Inc.;
(k) Any advertising and other out-of-pocket expenses of the
Agent incurred with the prior written approval of the Company;
(l) The cost of preparing, and providing any CUSIP or other
identification numbers for, the Notes;
(m) The fees and expenses of any depositary and any nominees
thereof in connection with the Notes; and
(n) The fees and expenses, if any, incurred in connection with
any filing with or approval by the VPSB in connection with the
issuance of the Note.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company submitted pursuant
hereto or thereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Agent or any
controlling person of the Agent, or by or on behalf of the Company, and
shall survive each delivery of and payment for any of the Notes.
SECTION 12. Termination.
(a) Termination of this Agreement. This Agreement (excluding any
Terms Agreement) may be terminated for any reason, at any time by either
the Company or the Agent upon the giving of 10 days' written notice of
such termination to the other party hereto.
(b) Termination of a Terms Agreement. The Agent may terminate any
Terms Agreement, immediately upon notice to the Company, at any time prior
to the Settlement Date relating thereto if (i) trading in securities
generally on the New York Stock Exchange shall have been suspended or
materially limited, (ii) a general moratorium on commercial banking
activities in New York shall have been declared by either federal or state
authorities, (iii) there shall have occurred any outbreak or escalation of
hostilities or other international or domestic calamity, crisis or change
in political, financial or economic conditions, the effect of which on the
financial markets of the United States is such as to make it, in the
judgment of the Agent, impracticable or inadvisable to commence or
continue the offering of the Notes at the offering price to the public set
forth on the cover page of the Prospectus or to enforce contracts for the
resale of the Notes or (iv) if the rating assigned by any nationally
recognized securities rating agency to any debt securities of the Company
as of the date of any applicable Terms Agreement shall have been lowered
since that date or if any such rating agency shall have publicly announced
that it has under surveillance or review, with possible negative
implications, its rating of any debt securities of the Company.
(c) General. In the event of any such termination, neither party
will have any liability to the other party hereto, except that (i) the
Agent shall be entitled to any commission earned in accordance with the
third paragraph of Section 3(a) hereof, (ii) if at the time of termination
(a) the Agent shall own any Notes purchased pursuant to a Terms Agreement
with the intention of reselling them or (b) an offer to purchase any of
the Notes has been accepted by the Company but the time of delivery to the
purchaser or his agent of the Note or Notes relating thereto has not
occurred, the covenants set forth in Sections 4 and 7 hereof shall remain
in effect until such Notes are so resold or delivered, as the case may be,
and (iii) the covenant set forth in Section 4(h) hereof, the provisions of
Section 5 hereof, the indemnity and contribution agreements set forth in
Sections 8 and 9 hereof, and the provisions of Sections 11 and 15 hereof
shall remain in effect.
SECTION 13. Notices.
Unless otherwise provided herein, all notices required under the
terms and provisions hereof shall be in writing, either delivered by hand,
by mail or by telex, telecopier or telegram, and any such notice shall be
effective when received at the address specified below.
If to the Company:
Green Mountain Power Corporation
25 Green Mountain Drive
P.O. Box 850
South Burlington, Vermont 05402-0850
Attention: Christopher Dutton, Chief Financial Officer
If to the Agent:
or at such other address as such party may designate from time to time by
notice duly given in accordance with the terms of this Section 13.
SECTION 14. Governing Law.
This Agreement and all the rights and obligations of the parties
shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed in the
State of New York.
SECTION 15. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Agent and the Company and their respective successors. Nothing expressed
or mentioned in this Agreement is intended or shall be construed to give
any person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons and officers and
directors referred to in Sections 8 and 9 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for
the sole and exclusive benefit of the parties hereto and respective
successors and said controlling persons and officers and directors and
their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Notes shall be deemed to be
a successor by reason merely of such purchase.
If the foregoing is in accordance with the Agent's understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument along with all counterparts will become a
binding agreement between the Agent and the Company in accordance with its
terms.
Very truly yours,
GREEN MOUNTAIN POWER CORPORATION
By:
Name:
Title:
Accepted:
NAME OF AGENT
By: ________________________________
Name:
Title:
EXHIBIT A
The following terms, if applicable, shall be agreed to by the
applicable Agent and the Company pursuant to each Terms Agreement:
Principal Amount: $_______
(or principal amount of foreign currency)
Interest Rate:
If Fixed Rate Note, Interest Rate:
If Floating Rate Note:
Interest Rate Basis:
Initial Interest Rate:
Initial Interest Reset Date:
Spread or Spread Multiplier, if any:
Interest Rate Reset Month(s):
Interest Payment Month(s):
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Rate Reset Period:
Interest Payment Period:
Interest Payment Date:
Calculation Agent:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
If Repayable at the Option of the Holder:
Repayment Date(s):
Repayment Price(s):
Repayment Notice Period(s):
Date of Maturity:
Purchase Price: ___%
Settlement Date and Time:
Stand-off Period (if any):
Additional Terms:
Also, agreement as to whether the following will be required:
Officer's Certificate pursuant to Section 7(b)
of the Distribution Agreement.
Legal Opinion pursuant to Section 7(c)of the
Distribution Agreement.
Comfort Letter pursuant to Section 7(d) of the
Distribution Agreement.
Stand-off Agreement pursuant to Section 4(k) of the
Distribution Agreement.
SCHEDULE A
As compensation for the services of the Agent hereunder, the Company
shall pay the Agent, on a discount basis, a commission for the sale of
each Note equal to the principal amount of such Note multiplied by the
appropriate percentage set forth below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
From 9 months but less than 1 year .125%
From 1 year but less than 18 months .150
From 18 months but less than 2 years .200
From 2 years but less than 3 years .250
From 3 years but less than 4 years .350
From 4 years but less than 5 years .450
From 5 years but less than 6 years .500
From 6 years but less than 7 years .550
From 7 years but less than 10 years .600
From 10 years but less than 15 years .625
From 15 years but less than 20 years .700
From 20 years to and including 30 years .750
greater than 30 years *
* Commission on Notes with maturities of 30 years or more shall be agreed
to by the Company and the applicable Agent at the time of such
transaction.
Exhibit 4-a-17
GREEN MOUNTAIN POWER CORPORATION
TO
THE BANK OF NEW YORK
Trustee
INDENTURE
Dated as of , 199
TABLE OF CONTENTS
Parties ................................................ 1
Recital of the Company ................................. 1
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101. Definitions ............................. 1
Act ..................................... 2
Affiliate; control ...................... 2
Authenticating Agent .................... 2
Board of Directors ...................... 2
Board Resolution ........................ 2
Business Day ............................ 3
Commission .............................. 3
Company ................................. 3
Company Request; Company Order .......... 3
Corporate Trust Office .................. 3
Corporation ............................. 3
Defaulted Interest ...................... 3
Discount Security ....................... 3
Event of Default ........................ 3
Government Obligations .................. 4
Holder .................................. 4
Indenture ............................... 4
Interest ................................ 4
Interest Payment Date ................... 4
Maturity ................................ 4
Officers' Certificate ................... 4
Opinion of Counsel ...................... 5
Outstanding ............................. 5
Paying Agent ............................ 6
Periodic Offering ....................... 6
Person .................................. 6
Place of Payment ........................ 6
Predecessor Security .................... 6
Redemption Date ......................... 6
Redemption Price ........................ 6
Regular Record Date ..................... 6
Responsible Officer ..................... 7
Security; Securities .................... 7
Security Register;
Security Registrar .................... 7
___________
Note: This table of contents shall not, for any purpose,
be deemed to be a part of the Indenture.
Special Record Date ..................... 7
Stated Maturity ......................... 7
Tranche ................................. 7
Trustee ................................. 7
Trust Indenture Act ..................... 7
Section 102. Compliance Certificates
and Opinions ........................... 7
Section 103. Form of Documents
Delivered to Trustee ................... 8
Section 104. Acts of Holders ........................... 9
Section 105. Notices, Etc. to Trustee
and Company ............................ 11
Section 106. Notice to Holders of
Securities; Waiver ..................... 11
Section 107. Conflict with Trust
Indenture Act .......................... 12
Section 108. Effect of Headings and
Table of Contents ...................... 12
Section 109. Successors and Assigns .................... 12
Section 110. Separability Clause ....................... 12
Section 111. Benefits of Indenture ..................... 12
Section 112. Governing Law ............................. 12
Section 113. Legal Holidays ............................ 12
Section 114. Counterparts .............................. 13
ARTICLE TWO
Security Forms
Section 201. Forms Generally ........................... 13
Section 202. Form of Trustee's
Certificate of Authentication .......... 13
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable
in Series and in Tranches
thereof; Establishment
of Series and of Tranches
thereof ................................ 14
Section 302. Denominations ............................. 17
Section 303. Execution; Authentication
and Delivery; Dating ................... 17
Section 304. Temporary Securities ...................... 20
Section 305. Registration, Registration of
Transfer and Exchange .................. 20
Section 306. Mutilated, Destroyed, Lost
and Stolen Securities .................. 22
Section 307. Payment of Interest; Interest
Rights Preserved ....................... 23
Section 308. Persons Deemed Owners ..................... 24
Section 309. Cancellation .............................. 25
Section 310. Computation of Interest ................... 25
Section 311. CUSIP Numbers ............................. 25
ARTICLE FOUR
Redemption of Securities
Section 401. Applicability of Article .................. 25
Section 402. Election to Redeem; Notice
to Trustee ............................. 26
Section 403. Selection of Securities
to Be Redeemed ......................... 26
Section 404. Notice of Redemption ...................... 26
Section 405. Securities Payable on
Redemption Date ........................ 27
Section 406. Securities Redeemed in Part ............... 28
ARTICLE FIVE
Sinking Funds
Section 501. Applicability of Article .................. 28
Section 502. Satisfaction of Sinking Fund
Payments with Securities .............. 29
Section 503. Redemption of Securities
for Sinking Fund ...................... 29
ARTICLE SIX
Covenants
Section 601. Payment of Principal, Premium
and Interest .......................... 30
Section 602. Maintenance of Office or
Agency ................................ 30
Section 603. Money for Securities Payments
to Be Held in Trust ................... 31
Section 604. Corporate Existence ....................... 32
Section 605. Calculation of Original Issue Discount .... 33
ARTICLE SEVEN
Satisfaction and Discharge
Section 701. Satisfaction and Discharge
of Securities ......................... 33
Section 702. Satisfaction and Discharge
of Indenture .......................... 34
Section 703. Application of Trust Money ................ 35
ARTICLE EIGHT
Events of Default; Remedies
Section 801. Events of Default ......................... 36
Section 802. Acceleration of Maturity;
Rescission and Annulment .............. 37
Section 803. Collection of Indebtedness and
Suits for Enforcement
by Trustee ............................ 39
Section 804. Trustee May File Proofs
of Claim .............................. 39
Section 805. Trustee May Enforce Claims
Without Possession of
Securities ............................ 40
Section 806. Application of Money Collected ............ 40
Section 807. Limitation on Suits ....................... 41
Section 808. Unconditional Right of Holders
to Receive Principal,
Premium and Interest .................. 42
Section 809. Restoration of Rights and
Remedies .............................. 42
Section 810. Rights and Remedies Cumulative ............ 42
Section 811. Delay or Omission Not Waiver .............. 42
Section 812. Control by Holders of
Securities ............................ 43
Section 813. Waiver of Past Defaults ................... 43
Section 814. Undertaking for Costs ...................... 44
ARTICLE NINE
The Trustee
Section 901. Corporate Trustee Required;
Eligibility ........................... 44
Section 902. Certain Duties and
Responsibilities ...................... 45
Section 903. Notice of Defaults ........................ 46
Section 904. Certain Rights of Trustee ................. 47
Section 905. Not Responsible for Recitals
or Issuance of Securities ............. 48
Section 906. May Hold Securities ....................... 48
Section 907. Preferential Collection of
Claims Against Company ................ 48
Section 908. Money Held in Trust ....................... 53
Section 909. Compensation and Reimbursement ............ 53
Section 910. Disqualification; Conflicting
Interests ............................. 54
Section 911. Resignation and Removals
Appointment of Successor .............. 61
Section 912. Acceptance of Appointment
by Successor .......................... 63
Section 913. Merger, Conversion, Consolidation
or Succession to Business ............. 64
Section 914. Appointment of Authenticating
Agent ................................. 64
ARTICLE TEN
Holders' Lists and Reports by Trustee and Company
Section 1001. Company to Furnish Trustee Names
and Addresses of Holders .............. 66
Section 1002. Preservation of Information;
Communications to Holders ............. 67
Section 1003. Reports by Trustee ....................... 68
Section 1004. Reports by Company ....................... 70
ARTICLE ELEVEN
Consolidation, Merger, Conveyance,
Transfer or Lease
Section 1101. Company May Consolidate, Etc.,
Only on Certain Terms ................. 71
Section 1102. Successor Corporation
Substituted ........................... 72
ARTICLE TWELVE
Supplemental Indentures
Section 1201. Supplemental Indentures Without
Consent of Holders .................... 72
Section 1202. Supplemental Indentures With
Consent of Holders .................... 74
Section 1203. Execution of Supplemental
Indentures ............................ 76
Section 1204. Effect of Supplemental
Indentures ............................ 76
Section 1205. Conformity With Trust
Indenture Act ......................... 76
Section 1206. Reference in Securities to
Supplemental Indentures ............... 76
Section 1207. Modification Without Sup-
plemental Indenture ................... 77
ARTICLE THIRTEEN
Meetings of Holders;
Action Without Meeting
Section 1301. Purposes for Which Meetings May
Be Called ............................. 77
Section 1302. Call, Notice and Place of
Meetings .............................. 77
Section 1303. Persons Entitled to Vote at
Meetings .............................. 78
Section 1304. Quorum; Action ........................... 78
Section 1305. Attendance at Meetings;
Determination of Voting Rights;
Conduct and Adjournment
of Meetings ........................... 80
Section 1306. Counting Votes and Recording
Action of Meetings .................... 81
Section 1307. Action Without Meeting ................... 81
Section 1308. Record Date .............................. 81
ARTICLE FOURTEEN
Immunity of Incorporators, Stockholders,
Officers and Directors
Section 1401. Liability Solely Corporate ............... 82
Testimonium ............................................. 83
Signatures and Seals .................................... 83
Acknowledgments ......................................... 84
INDENTURE, dated as of , from GREEN MOUNTAIN POWER
CORPORATION, a corporation duly organized and existing under the laws of
the State of Vermont (herein called the "Company"), having its principal
office at 25 Green Mountain Drive, South Burlington, Vermont 05403, to The
Bank of New York, a New York banking corporation, having its principal
corporate trust office at 101 Barclay Street, New York, New York 10286, as
Trustee (herein called the "Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its
unsecured debentures, notes or other evidences of indebtedness to be
issued in one or more series as in this Indenture provided (all of such
securities authenticated and delivered under this Indenture being herein
collectively referred to as the "Securities" and each of such Securities
being herein individually referred to as a "Security"); and all other
things necessary to make this Indenture a valid agreement of the Company,
in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of the Securities
or of series or Tranches thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as
the singular;
(b) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have
the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted
accounting principles in the United States of America, and, except as
otherwise herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are
generally accepted in the United States of America at the date of
such computation; provided, however, that in determining generally
accepted accounting principles applicable to the Company, such
principles shall, to the extent required, conform to any order, rule
or regulation of any administrative agency, regulatory authority or
other governmental body having jurisdiction over the Company; and
(d) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
Certain terms, used principally in Article Nine, are defined in
that Article.
"Act", when used with respect to any Holder of a Security, has
the meaning specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of
this definition, "control" when used with respect to any specified Person
means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Authenticating Agent" means any Person or Persons authorized by
the Trustee to act on behalf of the Trustee to authenticate one or more
series of Securities.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee thereof.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on
the date of such certification, and delivered to the Trustee.
"Business Day", when used with respect to a Place of Payment or
any other particular location specified in the Securities or this
Indenture, means any day, other than a Saturday or Sunday, which is not a
day on which banking institutions or trust companies in such Place of
Payment or other location are generally authorized or required by law,
regulation or executive order to remain closed, except as may be otherwise
specified for any series of the Securities, or Tranche thereof, as
contemplated by Section 301.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act
of 1934, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties at
such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman of the Board, its
President, a Vice President or an Assistant Vice President, and by its
Treasurer, an Assistant Treasurer, its Controller, its Secretary or an
Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the principal corporate trust
office of the Trustee in the Borough of Manhattan, The City of New York,
New York at which at any particular time its corporate trust business
shall be administered, which at the date of this Indenture is at 101
Barclay Street, Floor 21 West, New York, New York 10286.
"Corporation" means a corporation, association, company, joint
stock company or business trust.
"Defaulted Interest" has the meaning specified in Section 307.
"Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
802.
"Event of Default" has the meaning specified in Section 801.
"Government Obligations" means:
(a) direct obligations of, or obligations the principal of
and interest on which are unconditionally guaranteed by, the
United States of America entitled to the benefit of the full
faith and credit thereof; and
(b) certificates, depositary receipts or other instruments
which evidence a direct ownership interest in obligations
described in clause (a) above or in any specific interest or
principal payments due in respect thereof; provided, however,
that the custodian of such obligations or specific interest or
principal payments shall be a bank or trust company subject to
Federal or state supervision or examination with a combined
capital and surplus of at least $50,000,000; and provided,
further, that except as may be otherwise required by law, such
custodian shall be obligated to pay to the holders of such
certificates, depositary receipts or other instruments the full
amount received by such custodian in respect of such obligations
or specific payments and shall not be permitted to make any
deduction therefrom.
"Holder" means a Person in whose name a Security is registered in
the Security Register.
"Indenture" means this instrument as originally executed and as
it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of particular series or
Tranche of Securities established as contemplated by Section 301.
"Interest", when used with respect to a Discount Security which
by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of
principal becomes due and payable as therein or herein provided, whether
at the Stated Maturity, by declaration of acceleration, upon call for
redemption or otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President, a Vice President or an Assistant
Vice President, and by the Treasurer, an Assistant Treasurer, the
Controller, the Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Company, and who shall be reasonably acceptable to the
Trustee.
"Outstanding", when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities deemed to have been paid in accordance with
Section 701; and
(c) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have
been authenticated and delivered pursuant to this Indenture,
other than any such Securities in respect of which there shall
have been presented to the Trustee proof satisfactory to it and
the Company that such Securities are held by a bona fide
purchaser in whose hands such Securities are valid obligations
of the Company;
provided, however, that in determining whether or not the Holders of the
requisite principal amount of the Securities Outstanding under this
Indenture, or the Outstanding Securities of any series or Tranche, have
given or concurred in any request, demand, authorization, direction,
notice, consent or waiver hereunder or whether or not a quorum is present
at a meeting of Holders of Securities,
(x) Securities beneficially owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or of
such other obligor (unless the Company, such Affiliate or such
obligor owns all Securities Outstanding under this Indenture, or all
Outstanding Securities of each such series and each such Tranche, as
the case may be, determined without regard to this clause (x)) shall
be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon
any such request, demand, authorization, direction, notice, consent
or waiver or upon any such determination as to the presence of a
quorum, only Securities which the Trustee actually knows to be so
owned shall be so disregarded; provided, however, that Securities so
owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes, to the satisfaction of the
Trustee, the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other
obligor upon the Securities or any Affiliate of the Company or of
such other obligor; and
(y) the principal amount of a Discount Security that shall be
deemed to be Outstanding for such purposes shall be the amount of the
principal thereof that would be due and payable as of the date of
such determination upon a declaration of acceleration of the Maturity
thereof pursuant to Section 802.
"Paying Agent" means any Person, including the Company,
authorized by the Company to pay the principal of, and premium, if any, or
interest, if any, on any Securities on behalf of the Company.
"Periodic Offering" means an offering of Securities of a series
from time to time, the specific terms of which Securities, including
without limitation the rate or rates of interest, if any, thereon, the
Stated Maturity or Stated Maturities thereof and the redemption
provisions, if any, with respect thereto, are to be determined by the
Company or its agents upon the issuance of such Securities.
"Person" means any individual, corporation, partnership, joint
venture, trust or unincorporated organization or any government or any
political subdivision, instrumentality or agency thereof.
"Place of Payment", when used with respect to the Securities of
any series, or tranche thereof, means the place or places, specified as
contemplated by Section 301, at which, subject to Section 602, the
principal of, and premium, if any, and interest, if any, on, the
Securities of such series or tranche are payable upon presentation.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed,
lost or stolen Security.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for
that purpose as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee,
means an officer of the Trustee assigned to the Corporate Trust Office,
including any vice president, any assistant vice president, the secretary,
any assistant secretary, any trust officer or assistant trust officer or
any other officer of the Trustee customarily performing functions similar
to those performed by any of the above designated officers and also means,
with respect to a particular corporate trust matter, any other officer of
the Trustee to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Security" and "Securities" have the meanings stated in the first
recital of this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest
on the Securities of any series or Tranche means a date fixed by the
Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of
such Security or such installment of principal or interest is due and
payable.
"Tranche" means a group of Securities which (a) are of the same
series and (b) have identical terms except as to principal amount and/or
date of issuance.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become
such with respect to one or more series of Securities pursuant to the
applicable provisions of this Indenture, and thereafter, "Trustee" shall
mean or include each Person who is then a Trustee hereunder, and if at any
time there is more than one such Person, "Trustee" as used with respect to
the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as
contemplated by Section 1201 or as provided in Section 1205.
SECTION 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided in this Indenture, upon
any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions
precedent, if any, 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, if any, have
been complied with, except that in the case of any such application or
request as to which the furnishing of such documents is specifically
required by any provision of this Indenture relating to such particular
application or request, no additional certificate or opinion need be
furnished.
Every certificate (other than certificates pursuant to clause (d)
of Section 1004) or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such
individual, 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
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only
one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect
to some matters and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to such matters in
one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or
in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or
Opinion of Counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, election, waiver or other action provided by this Indenture to be
made, given or taken by Holders may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Holders in
person or by an agent duly appointed in writing or, alternatively, may be
embodied in and evidenced by the record of Holders voting in favor
thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders duly called and held in accordance with the provisions
of Article Thirteen, or a combination of such instruments and any such
record. Except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments or record or both are
delivered to the Trustee and, where it is hereby expressly required, to
the Company. Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or
instruments and so voting at any such meeting. Proof of execution of any
such instrument or of a writing appointing any such agent, or of the
holding by any Person of a Security, shall be sufficient for any purpose
of this Indenture and (subject to Section 901) conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section.
The record of any meeting of Holders shall be proved in the manner
provided in Section 1306.
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved by the affidavit of a witness
of such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof or may be proved in any other manner which the Trustee
and the Company deem sufficient. Where such execution is by a signer
acting in a capacity other than his individual capacity, such certificate
or affidavit shall also constitute sufficient proof of his authority.
(c) The principal amount (except as otherwise contemplated
in clause (y) of the proviso to the definition of Outstanding) and serial
numbers of Securities held by any Person, and the date of holding the
same, shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice,
consent, election, waiver or other Act of a Holder shall bind every future
Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of
such action is made upon such Security.
(e) Until such time as written instruments shall have been
delivered to the Trustee with respect to the requisite percentage of
principal amount of Securities for the action contemplated by such
instruments, any such instrument executed and delivered by or on behalf of
a Holder may be revoked by written notice by such Holder or any subsequent
Holder, proven in the manner in which such instrument was proven.
(f) Securities of any series, or any Tranche thereof,
authenticated and delivered after any Act of Holders may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee
as to any action taken by such Act of Holders. If the Company shall so
determine, new Securities of any series, or any Tranche thereof, so
modified as to conform, in the opinion of the Trustee and the Company, to
such action may be prepared and executed by the Company and authenticated
and delivered by the Trustee in exchange for Outstanding Securities of
such series or Tranche.
(g) If the Company shall solicit from Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act,
the Company may, at its option, by Board Resolution, fix in advance a
record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or
other Act, but the Company shall have no obligation to do so. If such a
record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other Act may be given before or after such
record date, but only the Holders of record at the close of business on
the record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of the Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities shall be computed as of the record
date; provided that no such authorization, agreement or consent by the
Holders on such record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture not later
than six months after the record date.
SECTION 105 Notices, Etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
election, waiver or Act of Holders or other document provided or permitted
by this Indenture to be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Trustee addressed to the attention of its corporate
trust department at the address set forth in the introductory
paragraph hereof, or at any other address previously furnished in
writing to the Company by the Trustee, or
(b) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to the attention of its Chief
Financial Officer at the address set forth in the introductory
paragraph hereof, or at any other address previously furnished in
writing to the Trustee by the Company.
SECTION 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein, where this
Indenture provides for notice to Holders of any event, such notice shall
be sufficiently given, and shall be deemed given, to Holders if in writing
and mailed, first-class postage prepaid, to each Holder affected by such
event, at the address of such Holder as it appears in the Security
Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such Notice.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice to
Holders by mail, then such notification as shall be made with the
reasonable approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders.
Any notice required by this Indenture may be waived in writing by
the Person entitled to receive such notice, either before or after the
event otherwise to be specified therein, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed
with the Trustee, but such filing shall not be a condition precedent to
the validity of any action taken in reliance upon such waiver.
SECTION 107. Conflict with Trust Indenture Act.
This Indenture is intended to comply with the Trust Indenture
Act. If any provision of this Indenture limits, qualifies, extends or
conflicts with the duties imposed by such Act, such imposed duties shall
control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings in this Indenture and the Table
of Contents are for convenience only and shall not affect the construction
hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or the Securities shall
be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or the Securities, express or implied,
shall give to any Person, other than the parties hereto, their successors
hereunder and the Holders, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York, without
regard to conflicts of laws principles thereof.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security shall not be a Business Day at any Place
of Payment, then (notwithstanding any other provision of this Indenture or
of the Securities other than a provision in Securities of any series, or
any Tranche thereof, or in the Board Resolution or Officers' Certificate
which establishes the terms of such Securities or Tranche, which
specifically states that such provision shall apply in lieu of this
Section) payment of interest or principal and premium, if any, need not be
made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and
effect as if made on the Interest Payment Date or Redemption Date, or at
the Stated Maturity, and, if such payment is made or duly provided for on
such Business Day, then no interest shall accrue on the amount so payable
for the period from and after such Interest Payment Date, Redemption Date
or Stated Maturity, as the case may be, to such Business Day.
SECTION 114 Counterparts.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
The definitive Securities of each series shall be in
substantially the form or forms thereof established (i) in indentures
supplemental hereto, Board Resolutions or Officers' Certificates pursuant
to Board Resolutions, or (ii) with respect to any Tranche of Securities of
a series subject to Periodic Offering, to the extent permitted by any of
the documents referred to in (i) above, in a Company Order or Orders or by
procedures, reasonably acceptable to the Trustee, specified in such
Company Order or Orders, 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 and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as, to the
extent not inconsistent herewith, may be determined by the officers
executing such Securities, as evidenced by their execution thereof.
The Securities of each series shall be issuable in registered
form without coupons. The definitive Securities shall be produced in such
manner as shall be determined by the officers executing such Securities,
as evidenced by their execution thereof.
SECTION 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in
substantially the following form:
"This is one of the Securities of the series designated in
accordance with, and referred to in, the within-mentioned
Indenture.
THE BANK OF NEW YORK
as Trustee
By: "
Authorized Signatory
ARTICLE THREE
The Securities
SECTION 301. Amount Unlimited; Issuable in Series and in Tranches
thereof; Establishment of Series and of Tranches thereof.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series and in one or
more Tranches thereof. Each series shall be established by an indenture
supplemental hereto, a Board Resolution or an Officers' Certificate
pursuant to a Board Resolution, which shall specify whether the Securities
of such series shall be subject to a Periodic Offering. With respect to
each series so established, there shall be determined (i) by such
indenture supplemental hereto, Board Resolution or Officers' Certificate
pursuant to a Board Resolution, and (ii) with respect to any Tranche of
Securities of a series subject to Periodic Offering, to the extent that
any of the documents specified in (i) above both does not establish all of
the terms of Securities of such Tranche and provides that such terms may
be determined in a Company Order or by an officer or officers of the
Company or its agent or agents in accordance with procedures, reasonably
acceptable to the Trustee, specified in such Company Order, then either by
a Company Order or by such specified procedures:
(a) the title of the Securities of such series (which
shall distinguish the Securities of such series from Securities of
all other series);
(b) any limit upon the aggregate principal amount of the
Securities of such series, or any Tranche thereof, which may be
authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of the series
pursuant to Section 304, 305, 306, 406 or 1206 and, except for any
Securities which, pursuant to Section 303, are deemed never to have
been authenticated and delivered hereunder);
(c) whether the Securities of such series shall be subject
to Periodic Offering;
(d) the date or dates on which, and the manner in which
(if other than as provided in Section 601), the principal of the
Securities of such series, or any Tranche thereof, is payable;
(e) the rate or rates at which the Securities of such
series, or any Tranche thereof, shall bear interest, if any
(including the rate or rates at which overdue principal, premium or
interest shall bear interest, if any), or the method or methods by
which such rate or rates shall be determined, the date or dates from
which interest, if any, on the Securities of such series, or any
Tranche thereof, shall accrue, the Interest Payment Dates for the
payment of such interest, the record date for each such Interest
Payment Date (the "Regular Record Date"), the manner in which such
interest shall be payable (if other than as provided in Sections 307
and 601), and the basis of computation of interest (if other than as
provided in Section 310);
(f) if other than as provided in Section 602, the place or
places where (1) any Securities of such series, or any Tranche
thereof, may be surrendered for registration of transfer, (2)
Securities of such series, or any Tranche thereof, may be surrendered
for exchange and (3) notices and demands to or upon the Company in
respect of the Securities of such series, or any Tranche thereof, and
this Indenture may be served;
(g) the period or periods within which, the price or
prices at which and the terms and conditions upon which the
Securities of such series, or any Tranche thereof, may be redeemed,
in whole or in part, at the option of the Company;
(h) the obligation, if any, of the Company to redeem or
purchase the Securities of such series, or any Tranche thereof,
pursuant to any sinking fund or analogous provisions 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 such
Securities shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(i) the denominations in which Securities of such series,
or any Tranche thereof, shall be issuable if other than denominations
of $1,000 and any integral multiple thereof;
(j) if the amount of payments of principal of, or premium,
if any, or interest, if any, on, the Securities of such series, or
any Tranche thereof, may be determined with reference to an index,
the manner in which such amounts shall be determined;
(k) if other than the principal amount thereof, the
portion of the principal amount of Securities of such series, or any
Tranche thereof, which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to Section 802;
(l) any Events of Default, in addition to those specified
in Section 801, with respect to the Securities of such series, or any
Tranche thereof, and any covenants of the Company for the benefit of
the Holders of the Securities of such series, or any Tranche thereof,
in addition to those set forth in Article Six;
(m) the terms, if any, pursuant to which the Securities of
such series, or any Tranche thereof, may be converted into or
exchanged for shares of capital stock or other securities of the
Company or any other Person;
(n) the Person or Persons (without specific
identification) to whom interest on Securities of such series, or any
Tranche thereof, shall be payable on any Interest Payment Date, if
other than the Person or Persons specified in Section 307;
(o) if a service charge will be made for the registration
of transfer or exchange of Securities of such series, or any Tranche
thereof, the amount and terms thereof;
(p) any exceptions to Section 113, or variation in the
definition of Business Day, with respect to the Securities of such
series, or any Tranche thereof;
(q) the terms, if any, required to permit the Securities
of such series, or any Tranche thereof, to be registered pursuant to
a non-certificated system of registration; and
(r) any other terms of the Securities of such series, or
any Tranche thereof, not inconsistent with the provisions of this
Indenture.
Except as to denominations and except as may otherwise be
determined pursuant to this Section, all Securities of any series shall be
substantially identical.
SECTION 302. Denominations.
Except as otherwise specified as contemplated by Section 301
with respect to any series or Tranche of Securities, the Securities of
each series, or Tranche thereof, shall be issuable in denominations of
$1,000 and any integral multiple thereof.
SECTION 303. Execution; Authentication and Delivery; Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President, one of its Vice Presidents, its
Treasurer or any other of its duly authorized officers, under its
corporate seal affixed thereto or reproduced thereon, and attested by its
Secretary, one of its Assistant Secretaries or any other of its duly
authorized officers. The signature of any or all of these officers on the
Securities may be manual or facsimile. Securities bearing the manual or
facsimile signatures of individuals who were, at the time that their
signatures were affixed thereto, the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them
have ceased to hold such offices prior to the dates of such Securities or
the dates of their authentication and delivery.
From time to time, the Company may deliver Securities of any
series executed on behalf of the Company and with its corporate seal
affixed thereto to the Trustee for authentication and delivery.
Thereafter, upon receipt of (i) an indenture supplemental hereto, a Board
Resolution or a Board Resolution and an Officers' Certificate pursuant
thereto, in each case establishing such series, (ii) a Company Order
requesting the authentication and delivery of any of such Securities and,
to the extent permitted by any of the documents referred to in (i) above,
establishing the terms of any Tranche of such series or specifying
procedures, acceptable to the Trustee, for doing so, and (iii) an Opinion
of Counsel with respect to the matters set forth in the following
paragraph, the Trustee, in accordance with such documents and, in the case
of Securities subject to a Periodic Offering, with such procedures,
reasonably acceptable to the Trustee, as may be specified in such Company
Order, shall authenticate and make available for delivery such Securities
for original issue, from time to time, in an aggregate principal amount
not exceeding the aggregate principal amount, if any, established for such
series or Tranche thereof. If such procedures so provide, such Securities
may be authorized, authenticated and delivered pursuant to oral or
electronic instructions from the Company or its agent or agents, which
oral instructions shall be promptly confirmed electronically or in
writing.
In authenticating and delivering Securities of any series, the
Trustee shall be entitled to receive, and (subject to Section 902) shall
be fully protected in relying upon, an Opinion of Counsel stating that:
(a) the forms of such Securities have been duly authorized
by the Company and have been established in conformity with the
provisions of this Indenture;
(b) the terms of such Securities have been duly authorized
by the Company and have been established in conformity with the
provisions of this Indenture; and
(c) such Securities, when authenticated and delivered by
the Trustee and issued and delivered by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel, will
have been duly issued under this Indenture and will constitute valid
and legally binding obligations of the Company, entitled to the
benefits provided by this Indenture, and enforceable in accordance
with their terms, except as the enforceability thereof may be limited
by applicable bankruptcy, insolvency, reorganization and similar laws
of general application relating to or affecting the rights and
remedies of creditors and by general principles of equity (regardless
of whether considered in a proceeding at law or in equity);
provided, however, that, with respect to Securities of a series subject to
a Periodic Offering, the Trustee shall be entitled to receive such Opinion
of Counsel only once at or prior to the time of the first authentication
of Securities of such series and that, in such opinion, the opinions
described in clauses (b) and (c) above may state, respectively, that:
(x) when the terms of such Securities, or each Tranche thereof,
shall have been established pursuant to a Company Order or Orders or
pursuant to such procedures, acceptable to the Trustee, as may be
specified by a Company Order or Orders, all as contemplated by and in
accordance with a supplemental indenture hereto, a Board Resolution
or an Officers' Certificate pursuant to a Board Resolution, such
terms will have been duly authorized by the Company and will have
been established in conformity with the provisions of this Indenture;
and
(y) such Securities, or each Tranche thereof, when
authenticated and delivered by the Trustee in accordance with this
Indenture and any supplemental indenture hereto, Board Resolution,
Officers' Certificate pursuant to a Board Resolution, Company Order
or Company Orders and specified procedures referred to in paragraph
(x) above and issued and delivered by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel, will
have been duly issued under this Indenture and will constitute valid
and legally binding obligations of the Company, entitled to the
benefits provided by this Indenture and enforceable in accordance
with their terms, subject, except as the enforceability thereof may
be limited by applicable bankruptcy, insolvency, reorganization and
similar laws of general application relating to or affecting the
rights and remedies of creditors and by general principles of equity
(regardless of whether considered in a proceeding at law or in
equity).
The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken or if the
Trustee in good faith shall determine that such action would expose the
Trustee to personal liability to existing Holders.
With respect to Securities of a series subject to a Periodic
Offering, the Trustee may conclusively rely, as to the authorization by
the Company of any of such Securities, the forms and terms thereof and the
legality, validity, binding effect and enforceability thereof, upon the
Opinion of Counsel and other documents delivered pursuant to this Section
at or prior to the time of the first authentication of Securities of such
series unless and until such opinion or other documents have been
superseded or revoked. In connection with the authentication and delivery
of Securities of a series subject to a Periodic Offering, the Trustee
shall be entitled to assume that the Company's instructions to
authenticate and deliver such Securities do not violate any laws with
respect to, or any rules, regulations or orders of, any governmental
agency or commission having jurisdiction over the Company.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears
on such Security a certificate of authentication substantially in the form
provided for herein executed by the Trustee or its agent by manual
signature, and such certificate upon such Security shall be conclusive
evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled to the benefits of
this Indenture. Notwithstanding the foregoing, if any Security shall have
been authenticated and delivered hereunder but never issued and sold by
the Company and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309, together with a written statement
(which need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel) stating that such Security has never been issued and
sold by the Company, for all purposes of this Indenture such Security
shall be deemed never to have been authenticated and delivered hereunder
and shall never be entitled to the benefits hereof.
Each Security shall be dated the date of its original issue and
shall have the date of its authentication noted thereon.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series,
the Company may execute, and upon Company Order the Trustee shall
authenticate and make available for delivery, temporary Securities which
are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of
the definitive Securities in lieu of which they are issued, with such
appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by
their execution of such Securities.
If temporary Securities of any series, or any Tranche thereof,
are issued, the Company shall cause definitive Securities of such series
or Tranche to be prepared without unreasonable delay. After the
preparation of such definitive Securities, such temporary Securities shall
be exchangeable for such definitive Securities upon surrender of such
temporary Securities at the office or agency of the Company maintained
pursuant to Section 602 in a Place of Payment for such series or Tranche,
without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series, or any Tranche thereof, the
Company shall execute and the Trustee shall authenticate and make
available for delivery in exchange therefor definitive Securities of the
same series or Tranche, of authorized denominations and of like tenor and
aggregate principal amount.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of the same series
and Tranche and of like tenor authenticated and delivered hereunder.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall appoint a Security registrar (the "Security
Registrar") and cause to be kept at the office of the Security Registrar
(which, except as otherwise specified as contemplated by Section 301 for
Securities of any series, or Tranche thereof, shall be located in the
Borough of Manhattan, The City of New York) a register (the "Security
Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities
and the registration of transfer thereof. If, at any time, there shall
not be a Security Registrar acting pursuant to appointment by the Company,
the Trustee shall be deemed to be, and shall act as, Security Registrar.
The Trustee is hereby initially appointed Security Registrar for the
purpose of registration and registration of transfer as herein provided.
Upon surrender for registration of transfer of any Security of
any series, or any Tranche thereof, at the office or agency of the Company
maintained pursuant to Section 602 in a Place of Payment for such series
or Tranche, the Company shall execute, and the Trustee shall authenticate
and make available for delivery, in the name of the designated transferee
or transferees, one or more new Securities of the same series and Tranche,
of authorized denominations and of like tenor and aggregate principal
amount.
At the option of the Holder, Securities of any series, or any
Tranche thereof, may be exchanged for other Securities of the same series
and Tranche, of authorized denominations and of like tenor and aggregate
principal amount, upon surrender of the Securities to be exchanged at any
such office or agency. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate
and make available for delivery, the Securities which the Holder making
the exchange is entitled to receive.
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 of
transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the
Trustee or any transfer agent) be duly endorsed or shall be accompanied by
a written instrument of transfer in form satisfactory to the Company and
the Security Registrar or any transfer agent duly executed by the Holder
thereof or his attorney duly authorized in writing.
Except as otherwise specified as contemplated by Section 301
with respect to Securities of any series, or any Tranche thereof, 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
connection with any registration of transfer or exchange of Securities,
other than exchanges pursuant to Section 304, 406 or 1206 not involving
any transfer.
The Company shall not be required (a) to issue, to register the
transfer of or to exchange Securities of any series, or any Tranche
thereof, during a period of 15 days immediately preceding the date notice
is given identifying the serial numbers of the Securities of such series
or Tranche called for redemption or (b) to issue, to register the transfer
of or to exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in
part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and make
available for delivery in exchange therefor a new Security of the same
series and Tranche, and of like tenor and principal amount and bearing a
number not contemporaneously outstanding.
If there shall be delivered to the Trustee (a) evidence to its
satisfaction of the ownership of and the destruction, loss or theft of any
Security and (b) such security or indemnity as it may reasonably require
to save it, the Company and their respective agent or agents harmless,
then, in the absence of notice to the Company or the Trustee that such
Security has been acquired by a bona fide purchaser, the Company shall
execute and the Trustee shall authenticate and make available for
delivery, in lieu of any such destroyed, lost or stolen Security, a new
Security of the same series and Tranche, and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
Notwithstanding the foregoing, in case any such mutilated,
destroyed, lost or stolen Security has become or is about to become due
and payable, the Company in its discretion may, instead of issuing a new
Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any series, or any Tranche thereof, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security
shall constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security shall be at
any time enforceable by anyone, and any such new Security shall be
entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of such series or Tranche duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise specified as contemplated by Section 301
with respect to the Securities of any series, or any Tranche thereof:
(a) interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date
(except the Interest Payment Date, if any, which coincides with the
Stated Maturity of the final payment of the principal of such
Security) shall be paid to the Person in whose name that Security (or
one or more Predecessor Securities) shall be registered at the close
of business on the Regular Record Date for such interest; provided,
however, that, if the date of original issue of such Security shall
be after a Regular Record Date and before the corresponding Interest
Payment Date, payment of interest shall commence on the second
Interest Payment Date succeeding such date of original issue and
shall be paid to the Person in whose name such Security shall have
been registered on the Regular Record Date for such second Interest
Payment Date; and
(b) Interest on any Security which is payable, and is
punctually paid or duly provided for, on the Interest Payment Date
which coincides with the Stated Maturity of the final payment of the
principal of such Security shall be paid to the person to whom such
final payment of principal shall be paid.
Any interest on any Security of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable
to the Holder on the related Regular Record Date by virtue of having been
such Holder, and such Defaulted Interest may be paid by the Company, at
its election in each case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security of such
series and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to
the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and
not less than 10 days prior to the date of the proposed payment and
not less than 10 days after the receipt by the Trustee of the notice
of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the
expense of the Company, shall promptly cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder of
Securities of such series at the address of such Holder as it appears
in the Security Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names
the Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special
Record Date; or
(b) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which such Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section
305, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall
carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
SECTION 308. Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name any Security is registered in
the Security Register as the absolute owner of such Security for the
purpose of receiving payment of principal of, and premium, if any, and
(subject to Sections 305 and 307) interest, if any, on, such Security and
for all other purposes whatsoever, whether or not such Security be
overdue, and neither the Company, the Trustee nor any agent of the Company
or the Trustee shall be affected by notice to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration
of transfer or exchange or for credit against any sinking fund payment
shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee and, if not theretofore cancelled, shall be promptly
cancelled by the Trustee. The Company may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever or which the Company shall not have issued and sold, and all
Securities so delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee
shall be delivered to the Company.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, or Tranche thereof, interest on the Securities
of each series shall be computed on the basis of a 360-day year consisting
of twelve 30-day months.
SECTION 311. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Trustee shall use "CUSIP"
numbers in notices of redemption as a convenience to Holders; provided
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as
contained in any notice of a redemption and that reliance may be placed
only on the other identification numbers printed on the Securities, and
any such redemption shall not be affected by any defect in or omission of
such numbers.
ARTICLE FOUR
Redemption of Securities
SECTION 401. Applicability of Article.
Securities of any series, or any Tranche thereof, which are
redeemable before their Stated Maturity shall be redeemable in accordance
with their terms and (except as otherwise specified as contemplated by
Section 301 for Securities of such series or Tranche) in accordance with
this Article.
SECTION 402. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution or an Officers' Certificate. The Company
shall, at least 45 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee in writing of such Redemption Date and of the principal amount of
such Securities to be redeemed. In the case of any redemption of
Securities (a) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture or (b) pursuant to an election of the Company which is subject
to a condition specified in the terms of such Securities, the Company
shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction or condition.
SECTION 403. Selection of Securities to Be Redeemed.
If less than all the Securities of any series, or any Tranche
thereof, are to be redeemed, the particular Securities to be redeemed
shall be selected by the Trustee from the Outstanding Securities of such
series or Tranche not previously called for redemption, by such method as
the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions; provided, however, that no such
partial redemption shall reduce the portion of the principal amount of a
Security of such series not redeemed to less than the minimum authorized
denomination for Securities of such series, if any, established pursuant
to Section 301.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities
selected to be redeemed in part, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has
been or is to be redeemed.
SECTION 404. Notice of Redemption.
Notice of redemption shall be given in the manner provided in
Section 106 to the Holders of Securities to be redeemed not less than 30
nor more than 90 days prior to the Redemption Date.
All notices of redemption shall identify the Securities to be
redeemed (including CUSIP numbers, if any) and shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Securities of any series or
Tranche are to be redeemed, the identification of the particular
Securities to be redeemed and the portion of the principal amount of
any Security to be redeemed in part,
(d) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after
said date,
(e) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(f) that the redemption is for a sinking fund or analogous
provisions, if such is the case.
With respect to any notice of redemption of Securities at the
election of the Company, unless, upon the giving of such notice, such
Securities shall be deemed to have been paid in accordance with Section
701, such notice may state that such redemption shall be conditional upon
the receipt by the Trustee, on or prior to the date fixed for such
redemption, of money sufficient to pay the Redemption Price of, and
accrued interest, if any, on, such Securities and that if such money shall
not have been so received such notice shall be of no force or effect and
the Company shall not be required to redeem such Securities. In the event
that such notice of redemption contains such a condition and such money is
not so received, the redemption shall not be made and within a reasonable
time thereafter notice shall be given, in the manner in which the notice
of redemption was given, that such money was not so received and such
redemption was not required to be made.
Notice of redemption of Securities to be redeemed at the
election of the Company, and any notice of non-satisfaction of a condition
for redemption as aforesaid, shall be given by the Company or, at the
Company's written request, by the Trustee in the name and at the expense
of the Company.
SECTION 405. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, and the
conditions, if any, set forth in such notice having been satisfied, the
Securities or portions thereof so to be redeemed shall, on the Redemption
Date, become due and payable at the Redemption Price therein specified,
and from and after such date (unless, in the case of an unconditional
notice of redemption, the Company shall default in the payment of the
Redemption Price and accrued interest, if any) such Securities or portions
thereof, if interest-bearing, shall cease to bear interest. Upon
surrender of any such Security for redemption in accordance with such
notice, such Security or portion thereof shall be paid by the Company at
the Redemption Price, together with accrued interest, if any, to the
Redemption Date; provided, however, that, except as otherwise specified as
contemplated by Section 301 with respect to Securities of any series, or
Tranche thereof, any installment of interest on any Security the Stated
Maturity of which installment is on or prior to the Redemption Date shall
be payable in accordance with Section 601.
SECTION 406. Securities Redeemed in Part.
Any Security which is to be redeemed in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing), and,
in exchange therefor, the Company shall execute, and the Trustee shall
authenticate and make available for delivery to the Holder of such
Security, without service charge, a new Security or Securities of like
tenor of the same series and Tranche, of any authorized denomination
requested by such Holder, and in aggregate principal amount equal to the
unredeemed portion of the principal of the Security so surrendered.
If less than all the Securities of any series with differing
issue dates, interest rates and stated maturities are to be redeemed, the
Company in its sole discretion shall select the particular Securities to
be redeemed and shall notify the Trustee in writing thereof at least 45
days prior to the relevant redemption date.
ARTICLE FIVE
Sinking Funds
SECTION 501. Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund or analogous provisions for the retirement of the Securities
of any series, or any Tranche thereof, except as otherwise specified as
contemplated by Section 301 for Securities of such series or Tranche.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series, or any Tranche thereof, is herein
referred to as a "mandatory sinking fund payment", and any payment in
excess of such minimum amount provided for by the terms of Securities of
any series, or any Tranche thereof, is herein referred to as an "optional
sinking fund payment". Each sinking fund payment shall be applied to the
redemption of Securities of the series or Tranche in respect of which it
was made as provided for by the terms of such Securities.
SECTION 502. Satisfaction of Sinking Fund Payments with Securities.
Unless otherwise provided by the terms of Securities of any
series, or any Tranche thereof, in respect of which a mandatory sinking
fund payment is to be made, the Company (a) may deliver Outstanding
Securities (other than those previously called for redemption) of such
series or Tranche and (b) may apply as a credit Securities of such series
or Tranche which have been 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, in each case in satisfaction of all or any part of such
mandatory sinking fund payment; provided, however, that no Securities
shall be applied in satisfaction of a mandatory sinking fund payment if
such Securities shall have been previously so applied. Securities so
applied 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 amount of such mandatory sinking
fund payment shall be reduced accordingly.
SECTION 503. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date
for the Securities of any series, or any Tranche thereof (unless shorter
notice shall be satisfactory to the Trustee), the Company shall deliver to
the Trustee an Officers' Certificate specifying:
(a) the amount of the next succeeding mandatory sinking
fund payment for such series or Tranche;
(b) the amount, if any, of the optional sinking fund
payment to be made together with such mandatory sinking fund payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate sinking fund
payment which is to be satisfied by the payment of cash;
(e) the portion, if any, of such aggregate sinking fund
payment which is to be satisfied by delivering or crediting
Securities of such series or Tranche pursuant to Section 502 and
stating the basis for such credit and that such Securities have not
previously been so credited,
and the Company also shall deliver to the Trustee any Securities to be so
delivered. If the Company shall not deliver such Officers' Certificate,
the next succeeding sinking fund payment for such series or Tranche shall
be made entirely in cash in the amount of the mandatory sinking fund
payment. Not less than 30 days before each such sinking fund payment date
the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 403 and cause notice
of the redemption thereof to be given in the name of the Company in the
manner provided in Section 404. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 405 and 406.
ARTICLE SIX
Covenants
SECTION 601. Payment of Principal, Premium and Interest.
The Company shall duly and punctually pay the principal of, and
premium, if any, and interest, if any, on, the Securities of each series
in accordance with the terms of such Securities and this Indenture.
All payments of the principal of, and premium, if any, and
interest, if any, on, each Security will be made (i) in such coin or
currency of the United States of America as, at the time of payment, shall
be legal tender for the payment of public and private debts, and (ii)
except as otherwise specified as contemplated by Section 301 for
Securities of any series or Tranche thereof, at the office or agency of
the Company maintained for such purpose in the Borough of Manhattan, The
City of New York; provided, however, that, at the option of the Company,
interest on such Security at any Stated Maturity may be paid by check
mailed to the Holder thereof at such Holder's address as shown on the
Security Register.
SECTION 602. Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for the
Securities of any series, or any Tranche thereof, an office or agency
where such Securities may be presented or surrendered for payment, where
such Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect
of such Securities and this Indenture may be served. The Company shall
give prompt written notice to the Trustee of the location, and any change
in the location, of such office or agency and prompt notice to the Holders
of any such change in the manner specified in Section 106. If at any time
the Company shall fail to maintain any such required office or agency in
respect of Securities of any series, or any Tranche thereof, or shall fail
to furnish the Trustee with the address thereof, such presentations and
surrenders of such Securities may be made and notices and demands may be
made or served at the Corporate Trust Office of the Trustee. The Company
hereby appoints the Trustee as its initial agent to receive such
respective presentations, surrenders, notices and demands.
The Company also may from time to time designate one or more
other offices or agencies where the Securities of one or more series, or
any Tranche thereof, may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency for
such purposes in each Place of Payment for such Securities in accordance
with the requirements set forth above. The Company shall give prompt
written notice to the Trustee, and prompt notice to the Holders in the
manner specified in Section 106, of any such designation or rescission and
of any change in the location of any such other office or agency.
Anything herein to the contrary notwithstanding, any office or
agency required by this Section may be maintained at an office of the
Company, in which event the Company shall perform all functions to be
performed at such office or agency.
SECTION 603. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent
with respect to the Securities of any series, or any Tranche thereof, it
shall, on or before each due date of the principal of, or premium or
interest on, any of such Securities, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the
principal, premium or interest so becoming due until such sums shall be
paid to such Persons or otherwise disposed of as herein provided and shall
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
the Securities of any series, or any Tranche thereof, it shall, prior to
each due date of the principal of, and premium and interest on, such
Securities, deposit with such Paying Agents sums sufficient (without
duplication) to pay the principal, premium and interest so becoming due,
such sum to be held in trust for the benefit of the Persons entitled to
such principal, premium and interest, and (unless such Paying Agent is the
Trustee) the Company shall promptly notify the Trustee of its action or
failure so to act.
The Company shall cause each Paying Agent for the Securities of
any series, or any Tranche thereof, other than the Trustee, to execute and
deliver to the Trustee an instrument in which such Paying Agent shall
agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent shall:
(a) hold all sums held by it for the payment of the
principal of, and premium and interest on, Securities of such series
or Tranche in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise disposed
of as herein provided;
(b) give the Trustee notice of any default by the Company
(or any other obligor upon the Securities of such series or Tranche)
in the making of any payment of principal of, or premium or interest
on, the Securities of such series or Tranche; and
(c) 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.
The Company may at any time pay, or by Company Order direct any
Paying Agent to pay, to the Trustee all sums held in trust by the Company
or such Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of, or
premium or interest on, any Security and remaining unclaimed for two years
after such principal, premium, or interest shall have become due and
payable shall be paid to the Company pursuant to a Company Request, or, if
then held by the Company, shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability
of the Trustee or such Paying Agent with respect to such trust money, and
all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being
required to make any such payment to the Company, may at the expense of
the Company cause to be mailed, on one occasion only, notice to such
Holder that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such
mailing, any unclaimed balance of such money then remaining will be paid
to the Company.
SECTION 604. Corporate Existence.
Subject to the rights of the Company under Article Eleven, the
Company shall do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence and the rights
(charter and statutory) and franchises of the Company; provided, however,
that the Company shall not be required to preserve any such right or
franchise if, in the judgment of the Company, the preservation thereof is
no longer desirable in the conduct of the business of the Company.
SECTION 605. Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end of
each calendar year a written notice specifying the amount of the original
issue discount (including daily rates and accrual periods) accrued on
Outstanding Securities as of the end of such year.
ARTICLE SEVEN
Satisfaction and Discharge
SECTION 701. Satisfaction and Discharge of Securities.
Any Securities, or any portion of the principal amount thereof,
shall be deemed to have been paid for all purposes of this Indenture, and
the entire indebtedness of the Company in respect thereof shall be deemed
to have been satisfied and discharged, if there shall have been
irrevocably deposited with the Trustee, in trust:
(a) money in an amount which shall be sufficient, or
(b) in the case of a deposit made prior to the Maturity of
such Securities or portions thereof, Government Obligations, which
shall not contain provisions permitting the redemption or other
prepayment thereof at the option of the issuer thereof, the principal
of and the interest on which when due, without any regard to
reinvestment thereof, will provide moneys which, together with the
money, if any, deposited with or held by the Trustee, shall be
sufficient, or
(c) a combination of (a) or (b) which shall be sufficient,
to pay when due the principal of, and premium, if any, and interest, if
any, on, such Securities or portions thereof; provided, however, that (i)
in the case of the provision for payment of less than all of the
Securities, such Securities or portions of the principal amounts thereof
shall have been selected by the Security Registrar as provided herein;
(ii) in the case of a redemption, the notice requisite to the validity of
such redemption shall have been given or irrevocable authority shall have
been given by the Company to the Trustee to give such notice; and (iii)
the Company shall have delivered to the Trustee:
(x) if such deposit shall have been made prior to the Maturity
of such Securities, a Company Order stating that the money and
Government Obligations deposited with the Trustee in accordance with
this Section shall be held by the Trustee, in trust, as provided in
Section 703; and
(y) if Government Obligations shall have been deposited with
the Trustee, an Officers' Certificate to the effect that the
requirements set forth in clause (b) above have been satisfied.
Upon receipt by the Trustee of money or Government Obligations,
or both, in accordance with this Section, together with the documents
required by clauses (x) and (y) above, the Trustee shall acknowledge in
writing that the Security or Securities or portions thereof with respect
to which such deposit was made are deemed to have been paid for all
purposes of this Indenture and that the entire indebtedness of the Company
in respect thereof is deemed to have been satisfied and discharged.
If payment of less than all of the Securities is to be provided
for in the manner and with the effect provided in this Section, the
Security Registrar shall select such Securities, or portions of principal
amounts thereof, in the manner specified by Section 403 for selection for
redemption of less than all the Securities of a series.
In the event that Securities which shall be deemed to have been
paid as provided in this Section do not mature and are not to be redeemed
within the sixty (60) day period commencing with the date of the deposit
with the Trustee of moneys or Government Obligations, as aforesaid, the
Company shall, as promptly as practicable, give a notice, in the same
manner as a notice of redemption with respect to such Securities, to the
Holders of such Securities to the effect that such deposit has been made
and the effect thereof.
Notwithstanding the satisfaction and discharge of any Securities
as aforesaid, the obligations of the Company and the Trustee in respect of
such Securities under Sections 305, 306, 602 and 603 and this Article
Seven shall survive.
The Company shall pay, and shall indemnify the Trustee and each
Holder of Securities which are deemed to have been paid as provided in
this Section against, any tax, fee or other charge imposed on or assessed
against the Government Obligations deposited with the Trustee or the
principal or interest received by the Trustee in respect of such
Government Obligations.
SECTION 702. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect (except as hereinafter expressly provided), and the Trustee, upon
Company Request and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture,
when
(a) both
(1) all Securities theretofore authenticated and delivered
(other than Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 306)
have been delivered to the Trustee for cancellation; and
(2) all Securities not theretofore delivered to the
Trustee for cancellation shall be deemed to have been paid in
accordance with Section 701;
(b) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that there has
been compliance with all conditions precedent herein provided for
relating to the satisfaction and discharge of this Indenture.
In the event there shall be Securities of two or more series
Outstanding hereunder, the Trustee shall be required to execute an
instrument acknowledging satisfaction and discharge of this Indenture only
if requested to do so with respect to Securities of all series as to which
it is Trustee and if the other conditions thereto are met. In the event
there shall be two or more Trustees hereunder, then the effectiveness of
each such instrument from each Trustee hereunder shall be conditioned upon
receipt of such instruments from each other Trustee hereunder.
Notwithstanding the satisfaction and discharge of this Indenture
as aforesaid, the obligations of the Company to the Trustee under Section
909 shall survive.
Upon satisfaction and discharge of this Indenture as provided in
this Section, the Trustee shall assign, transfer and turn over to the
Company, subject to the lien provided by Section 907, any and all money,
securities and other property then held by the Trustee under this
Indenture, other than money and Government Obligations held by the Trustee
pursuant to Section 703.
SECTION 703. Application of Trust Money.
Neither the Government Obligations nor the money deposited with
the Trustee pursuant to Section 701, nor the principal or interest
payments on any such Government Obligations, shall be withdrawn or used
for any purpose other than, and shall be held in trust for, the payment of
the principal of, and premium, if any, and interest, if any, on, the
Securities or portions of principal amount thereof in respect of which
such deposit was made, all subject, however, to the provisions of Section
603; provided, however, that, so long as there shall not have occurred and
be continuing an Event of Default, any cash received from such principal
or interest payments on such Government Obligations deposited with the
Trustee, if not then needed for such purpose, shall, to the extent
practicable, be invested in Government Obligations of the type described
in clause (b) in the first paragraph of Section 701 maturing at such times
and in such amounts as shall be sufficient to pay when due the principal
of, and premium, if any, and interest, if any, on, such Securities or
portions thereof on and prior to the Maturity thereof, and interest earned
from such reinvestment shall be paid over to the Company as received by
the Trustee, free and clear of any trust, lien or pledge under this
Indenture except the lien provided by Section 907; and provided, further,
that, so long as there shall not have occurred and be continuing an Event
of Default, any moneys held by the Trustee in accordance with this Section
on the Maturity of all such Securities in excess of the amount required to
pay the principal of, and premium, if any, and interest, if any, on, such
Securities shall be paid over to the Company free and clear of any trust,
lien or pledge under this Indenture except the lien provided by Section
907.
ARTICLE EIGHT
Events of Default; Remedies
SECTION 801. Events of Default.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events:
(a) failure to pay any installment of interest on any such
Security within 30 days after its Stated Maturity; or
(b) failure to pay the principal of, or premium, if any,
on, any such Security within three Business Days after its Maturity;
or
(c) failure to perform or breach of any covenant of the
Company in this Indenture (other than a covenant a default in the
performance of which is elsewhere in this Section specifically dealt
with or which has expressly been included in this Indenture solely
for the benefit of one or more series of Securities other than such
series) for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee, or to
the Company and the Trustee by the Holders of at least 33% in
principal amount of the Outstanding Securities of such series a
written notice specifying such default and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(d) either (a) the entry of an order approving a petition
seeking reorganization of the Company upon the basis of insolvency or
inability to pay debts as they mature under the Federal bankruptcy
laws or any other applicable law or statute of the United States of
America or any State thereof; or (b) the appointment in any judicial
proceeding upon the application of any creditor or creditors of a
trustee or a receiver of all or a substantial part of the trust; and
the continuance of such order or appointment unstayed and in effect
for a period of 90 days; or
(e) the adjudication of the Company as a bankrupt by any
court of competent jurisdiction or the filing by the Company of a
voluntary petition in bankruptcy or the making by the Company of an
assignment for the benefit of creditors or the admission by the
Company in writing of its inability to pay its debts as they become
due; the consent by the Company to the appointment in any judicial
proceeding upon the application of any creditor or creditors of a
receiver or trustee of all or a substantial part of its properties;
the filing by the Company of a petition or answer seeking
reorganization or readjustment on the basis of insolvency or
inability to pay debts as they mature under the Federal bankruptcy
laws or any other applicable law or statute of the United States of
America or of any State thereof; or the filing by the Company of a
petition to take advantage of any insolvency act; or
(f) default by the Company in the payment of principal of,
or interest on, securities issued under the Indenture of First
Mortgage and Deed of Trust, dated as of February 1, 1955, between the
Company and United States Trust Company of New York [successor to The
Chase Manhattan Bank (National Association), successor to The Chase
National Bank of the City of New York], as amended and supplemented,
in an aggregate amount exceeding $5,000,000, and the continuation
thereof for 90 days after written notice to the Company by the
Trustee, or to the Company and the Trustee by the Holders of at least
33% in principal amount of the Outstanding Securities of such series
a written notice specifying such default and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(g) any other Event of Default specified with respect to
Securities of such series.
SECTION 802. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default shall have occurred and be continuing
with respect to Securities of any series at the time Outstanding, either
the Trustee or the Holders of not less than 33% in principal amount of the
Outstanding Securities of such series may declare the principal amount
(or, if any of such Securities are Discount Securities, such portion of
the principal amount thereof as may be specified by their terms as
contemplated by Section 301) of all of such Securities to be due and
payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon receipt by the Company of notice of
such declaration, such principal amount (or specified amount thereof)
shall become immediately due and payable; provided, however, that if an
Event of Default shall have occurred and be continuing with respect to
more than one series of Securities, the Trustee or the Holders of not less
than 33% in aggregate principal amount of the Outstanding Securities of
all such series, considered as one class, may make such declaration of
acceleration, and not the Holders of the Securities of any one of such
series.
At any time after such a declaration of acceleration with
respect to Securities of any series shall have been made and before a
judgment or decree for payment of the money due shall have been obtained
by the Trustee as hereinafter in this Article provided, the Event or
Events of Default giving rise to such declaration of acceleration shall,
without further act, be deemed to have been waived, and such declaration
and its consequences shall, without further act, be deemed to have been
rescinded and annulled, if
(a) the Company shall have paid or deposited with the
Trustee a sum sufficient to pay
(1) all overdue interest on all such Securities;
(2) the principal of, and premium, if any, on, all such
Securities which have become due, otherwise than by such
declaration of acceleration, and interest thereon at the rate or
rates prescribed therefor;
(3) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor;
(4) all amounts reasonably due to the Trustee under
Section 909;
and
(b) any other Event or Events of Default with respect to
such Securities, other than the non-payment of the principal of
Securities of such series which shall have become due solely by such
declaration of acceleration, shall have been cured or waived as
provided in Section 813.
No such rescission shall affect any subsequent Event of Default or impair
any right consequent thereon.
SECTION 803 Collection of Indebtedness and Suits for Enforcement by
Trustee.
If an Event of Default described in clause (a) or (b) of Section
801 shall have occurred and be continuing, the Company shall, upon demand
of the Trustee, pay to it, for the benefit of the Holders of the
Securities with respect to which such Event of Default shall have
occurred, the whole amount then due and payable on such Securities for
principal, premium, if any, and interest, if any, and, to the extent per-
mitted by law, interest on premium, if any, and on any overdue principal
and interest, at the rate or rates prescribed therefor in such Securities
or, if no such rate or rates shall be prescribed, at the rate or rates
borne by such Securities at the time of such Event of Default, and, in
addition thereto, such further amount as shall be sufficient to cover any
amounts reasonably due to the Trustee under Section 909.
If the Company shall fail to pay such amounts forthwith upon
such demand, the Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of the sums
so due and unpaid, may prosecute such proceeding to judgment or final
decree and may enforce the same against the Company or any other obligor
upon such Securities and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the Company
or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to any Securities shall have
occurred and be continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of such
Securities by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or
in aid of the exercise of any power granted herein, or to enforce any
other proper remedy.
SECTION 804. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company or any
other obligor upon the Securities or the property of the Company or of
such other obligor or their creditors, the Trustee (irrespective of
whether the principal of the Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company for the
payment of overdue principal or interest) shall be entitled and empowered,
by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of
principal, premium, if any, and interest, if any, owing and unpaid in
respect of the Securities and to file such other papers or documents
as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for amounts due to the Trustee under
Section 909) and of the Holders allowed in such judicial proceeding,
and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee and, in the
event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amounts due it under
Section 909.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.
SECTION 805. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities 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, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the Holders
in respect of which such judgment has been recovered.
SECTION 806. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of
principal or premium, if any, or interest, if any, upon presentation of
the Securities in respect of which or for the benefit of which such money
shall have been collected and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under
Section 909;
Second: To the payment of the amounts then due and unpaid upon
the Securities for principal of and premium, if any, and interest, if
any, in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal, premium, if any, and interest, if any, respectively; and
Third: To the Company.
SECTION 807. Limitation on Suits.
No Holder shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder,
unless:
(a) such Holder shall have previously given written notice
to the Trustee of a continuing Event of Default with respect to the
Securities of such series;
(b) the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of all series in
respect of which an Event of Default shall have occurred and be
continuing, considered as one class, shall have made written request
to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(c) such Holder or Holders shall have offered to the
Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity shall have failed to institute
any such proceeding; and
(e) no direction inconsistent with such written request
shall have been given to the Trustee during such 60-day period by the
Holders of a majority in aggregate principal amount of all
Outstanding Securities in respect of which an Event of Default shall
have occurred and be continuing, considered as one class;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of
any other of such Holders or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under
this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all of such Holders.
SECTION 808. Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of, and premium, if
any, and interest, if any, on, such Security on the Stated Maturity or
Maturities therefor (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and
such rights shall not be impaired or affected without the consent of such
Holder.
SECTION 809. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding shall
have been discontinued or abandoned for any reason, or shall have been
determined adversely to the Trustee or to such Holder, then and in every
such case, subject to any determination in such proceeding, the Company,
and Trustee and such Holder shall be restored severally and respectively
to their former positions hereunder and thereafter all rights and remedies
of the Trustee and such Holder shall continue as though no such proceeding
had been instituted.
SECTION 810. Rights and Remedies Cumulative.
Except as otherwise provided in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law,
be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.
SECTION 811. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder to exercise
any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default
or an acquiescence therein. Every right and remedy given by this Article
or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 812. Control by Holders of Securities.
If an Event of Default shall have occurred and be continuing in
respect of Securities of any series (determined as provided in Section
910(d)), the Holders of a majority in principal amount of the Outstanding
Securities of such series 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 hereby,
with respect to such Securities; provided, however, that if an Event of
Default shall have occurred and be continuing with respect to more than
one such series of Securities, the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all such series,
considered as one class, shall have the right to make such direction, and
not the Holders of the Securities of any one of such series; and provided,
further, that
(a) such direction shall not be in conflict with any rule
of law or with this Indenture, and would not involve the Trustee in
personal liability in circumstances where indemnity, in the Trustee's
sole discretion, would not be adequate, and
(b) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
SECTION 813. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of
the Outstanding Securities of any series (determined as provided in
Section 910(d)) may on behalf of the Holders of all the Securities of such
series waive any past default hereunder with respect to such series and
its consequences, except a default
(a) in the payment of the principal of, or premium, if
any, or interest, if any, on, such Securities, or
(b) in respect of a covenant or provision hereof which
under Section 1202 cannot be modified or amended without the consent
of each such Holder;
provided, however, that if any such default shall have occurred and be
continuing with respect to more than one such series of Securities, the
Holders of a majority in aggregate principal amount of the Outstanding
Securities of all such series, considered as one class, shall have the
right to waive such default, and not the Holders of the Securities of any
one such series.
Upon any such waiver, such default shall cease to exist, and any
and all Events of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other default or impair any right consequent
thereon.
SECTION 814. Undertaking for Costs.
The Company and the Trustee agree, and each Holder of each
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, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the
costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees and expenses,
against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section shall not apply to any suit instituted by
the Company, to any suit instituted by the Trustee, to any suit instituted
by any Holder, or group of Holders, holding in the aggregate more than 10%
in aggregate principal amount of the Outstanding Securities of all series
in respect of which such suit may be brought, considered as one class, or
to any suit instituted by any Holder for the enforcement of the payment of
the principal of, or premium, if any, or interest, if any, on, any
Security on or after the Stated Maturity or Maturities expressed in such
Security (or, in the case of the redemption of any Security, on or after
its Redemption Date).
ARTICLE NINE
The Trustee
SECTION 901. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia or such
other corporation or person permitted to act as Trustee by the Commission,
which (i) shall be authorized under such laws to exercise corporate trust
powers, (ii) shall have a combined capital and surplus of at least
$10,000,000, (iii) shall be subject to supervision or examination by
Federal, state or District of Columbia authority or such other authority
as the Commission shall permit, and (iv) shall be qualified and eligible
under this Article. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of such 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. Neither the Company nor any Person directly or
indirectly controlling, controlled by, or under common control with the
Company shall serve as Trustee. If at any time the Trustee shall cease to
be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified
in this Article.
SECTION 902. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default
with respect to Securities of any series,
(1) the Trustee undertakes to perform, with respect to
Securities of such series, 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;
and
(2) in the absence of bad faith on its part, the Trustee may,
with respect to Securities of such series, conclusively rely, as to
the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; 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) In case an Event of Default with respect to Securities
of any series shall have occurred and be continuing, the Trustee shall
exercise, with respect to Securities of such series, such of the rights
and powers vested in it by this Indenture, and use the same degree of care
and skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
(c) 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 wilful misconduct, except that
(1) this Section 902(c) shall not be construed to limit the
effect of Section 902(a);
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Officers, unless it
shall be proved that the Trustee was negligent in ascertaining the
pertinent facts;
(3) the Trustee shall not be liable with respect to any action
affecting Outstanding Securities of one or more series taken or
omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of such
Outstanding Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to such Outstanding Securities; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to
the provisions of this Section.
SECTION 903. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder
known to the Trustee with respect to the Securities of any series, the
Trustee shall give to all Holders of Securities of such series, in the
manner and to the extent provided by Section 1003(c), notice of such
default, unless such default shall have been cured and waived; provided,
however, that, except in the case of a default in the payment of the
principal of, or premium, if any, or interest, if any, on, any Security of
such series or in the payment of any sinking or analogous fund installment
with respect to 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 or Responsible
Officers of the Trustee in good faith determine that the withholding of
such notice is in the interest of the Holders of Securities of such
series; and provided, further, that in the case of any default of the
character specified in Section 801(c) with respect to Securities of such
series, no such notice to Holders shall be given until at least 120 days
after the occurrence thereof. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Securities of such
series.
SECTION 904. Certain Rights of Trustee.
Subject to the provisions of Section 902:
(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, note, 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 or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or
Company Order, or as otherwise expressly provided herein, and any
action of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection
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;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any Holder pursuant to this Indenture, unless
such Holder shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(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, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled to 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 with due care by it hereunder;
(h) the Trustee shall not be charged with knowledge of any
Event of Default with respect to the Securities of any series for
which it is acting as Trustee unless either (1) a Responsible Officer
of the Trustee assigned to the group of the Trustee responsible for
corporate trustee administration (or any successor division or
department of the Trustee) shall have actual knowledge of the Event
of Default or (2) written notice of such Event of Default shall have
been given to the Trustee by the Company, any other obligor on such
Securities or by any Holder of such Securities; and
(i) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture.
SECTION 905 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities (except the
Trustee's certificates of authentication) shall be taken as the statements
of the Company, and neither the Trustee nor any other agent appointed
hereunder assumes any responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. Neither the Trustee nor any other agent
appointed hereunder shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 906. May Hold Securities.
The Trustee and any other agent appointed hereunder, in its
individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 907 and 910, may otherwise deal with
the Company with the same rights it would have if it were not either the
Trustee or such agent.
SECTION 907. Preferential Collection of Claims Against Company.
(a) Subject to Section 907(b), if the Trustee shall be or
shall become a creditor, directly or indirectly, secured or unsecured, of
the Company within three months prior to a default, as defined in Section
907(c), or subsequent to such a default, then, unless and until such
default shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the Trustee individually, the Holders and the
holders of other indenture securities (as defined in Section 907(c)):
(1) an amount equal to any and all reductions in the amount due
and owing upon any claim as such creditor in respect of principal or
interest, effected after the beginning of such three months' period
and valid as against the Company and its other creditors, except any
such reduction resulting from the receipt or disposition of any
property described in clause (2) of this Section 907(a), or from the
exercise of any right of set-off which the Trustee could have
exercised if a petition in bankruptcy had been filed by or against
the Company upon the date of such default; and
(2) all property received by the Trustee in respect of any
claim as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise, after the
beginning of such three months' period, or an amount equal to the
proceeds of any such property, if disposed of, subject, however, to
the rights, if any, of the Company and its other creditors in such
property or such proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee:
(A) to retain for its own account (i) payments made on
account of any such claim by any Person (other than the Company) who
is liable thereon, (ii) the proceeds of the bona fide sale of any
such claim by the Trustee to a third Person, and (iii) distributions
made in cash, securities or other property in respect of claims filed
against the Company in bankruptcy or receivership or in proceedings
for reorganization pursuant to the Federal Bankruptcy Act or
applicable state law;
(B) to realize, for its own account, upon any property
held by it as security for any such claim, if such property was so
held prior to the beginning of such three months' period;
(C) to realize, for its own account, but only to the
extent of the claim hereinafter mentioned, upon any property held by
it as security for any such claim, if such claim was created after
the beginning of such three months' period and such property was
received as security therefor simultaneously with the creation
thereof, and if the Trustee shall sustain the burden of proving that,
at the time such property was so received, the Trustee had no
reasonable cause to believe that a default, as defined in Section
907(c), would occur within three months; or
(D) to receive payment on any claim referred to in
paragraph (B) or (C) of this Section 907(a), against the release of
any property held as security for such claim as provided in such
paragraph (B) or (C), as the case may be, to the extent of the fair
value of such property.
For the purposes of clauses (B), (C) and (D) of this Section 907(a), pro-
perty substituted after the beginning of such three months' period for
property held as security at the time of such substitution, to the extent
of the fair value of the property released, shall have the same status as
the property released, and, to the extent that any claim referred to in
any of such clauses shall be created in renewal of or in substitution for
or for the purpose of repaying or refunding any pre-existing claim of the
Trustee as such creditor, such claim shall have the same status as such
pre-existing claim.
If the Trustee shall be required to account, the funds and
property held in such special account and the proceeds thereof shall be
apportioned among the Trustee, the Holders and the holders of other
indenture securities in such manner that the Trustee, the Holders and the
holders of other indenture securities shall realize, as a result of
payments from such special account and payments of dividends on claims
filed against the Company in bankruptcy or receivership or in proceedings
for reorganization pursuant to the Federal Bankruptcy Act or applicable
state law, the same percentage of their respective claims, figured before
crediting to the claim of the Trustee anything on account of the receipt
by it from the Company of the funds and property in such special account
and before crediting to the respective claims of the Trustee and the
Holders and the holders of other indenture securities dividends on claims
filed against the Company in bankruptcy or receivership or in proceedings
for reorganization pursuant to the Federal Bankruptcy Act or applicable
state law, but after crediting thereon receipts on account of the
indebtedness represented by their respective claims from all sources other
than from such dividends and from the funds and property so held in such
special account. As used in this paragraph, with respect to any claim,
the term "dividends" shall include any distribution with respect to such
claim, in bankruptcy or receivership or proceedings for reorganization
pursuant to the Federal Bankruptcy Act or applicable state law, whether
such distribution shall be made in cash, securities or other property, but
shall not include any such distribution with respect to the secured
portion, if any, of such claim. The court in which such bankruptcy,
receivership or proceedings for reorganization shall be pending shall have
jurisdiction (1) to apportion among the Trustee, the Holders and the
holders of other indenture securities, in accordance with the provisions
of this paragraph, the funds and property held in such special account and
proceeds thereof, or (2) in lieu of such apportionment, in whole or in
part, to give to the provisions of this paragraph due consideration in
determining the fairness of the distributions to be made to the Trustee,
the Holders and the holders of other indenture securities with respect to
their respective claims, in which event, it shall not be necessary to
liquidate or to appraise the value of any securities or other property
held in such special account or as security for any such claim, or to make
a specific allocation of such distributions as between the secured and
unsecured portions of such claims, or otherwise to apply the provisions of
this paragraph as a mathematical formula.
Any Trustee which shall have resigned or been removed after the
beginning of such three months' period shall be subject to the provisions
of this subsection as though such resignation or removal had not occurred.
Any Trustee which shall have resigned or been removed prior to the
beginning of such three months' period shall be subject to the provisions
of this Section 907(a) if, and only if, the following conditions shall
exist:
(1) the receipt of property or reduction of claim which would
have given rise to the obligation to account, if such Trustee had
continued as Trustee, occurred after the beginning of such three
months' period; and
(2) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(b) There shall be excluded from the operation of Section
907(a) a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one
year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court
of competent jurisdiction or by this Indenture, for the purpose of
preserving any property which shall at any time be subject to the
lien of this Indenture or of discharging tax liens or other prior
liens or encumbrances thereon, if notice of such advances and of the
circumstances surrounding the making thereof shall have been given to
the Holders at the time and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in
the capacity of trustee under an indenture, transfer agent,
registrar, custodian, paying agent, fiscal agent or depositary, or
other similar capacity;
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction (as defined in Section 907(c));
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Company; and
(6) the acquisition, ownership, acceptance or negotiation of
any drafts, bills of exchange, acceptances or obligations which fall
within the classification of self-liquidating paper (as defined in
Section 907(c)).
(c) For the purposes of Section 907:
(1) the term "default" means any failure to make payment in
full of the principal of or interest on any of the Securities or
other indenture securities when and as such principal or interest
becomes due and payable;
(2) the term "other indenture securities" means securities upon
which the Company is an obligor outstanding under any indenture,
other than this Indenture, (A) under which the Trustee is also
trustee, (B) which contains provisions substantially similar to the
provisions of Section 907 and (C) under which a default exists at the
time of the apportionment of the funds and property held in the
special account created pursuant to Section 907(a);
(3) the term "cash transaction" means any transaction in which
full payment for goods or securities sold is made within seven days
after delivery of the goods or securities in currency or in checks or
other orders drawn upon banks or bankers and payable upon demand;
(4) the term "self-liquidating paper" means 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, manufacturing, shipment, storage or sale of goods, wares
or merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the
security is received by the 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 obligations;
(5) the term "Company" means any obligor upon the Securities;
and
(6) the term "Federal Bankruptcy Act" means the Bankruptcy Act
or Title 11 of the United States Code.
SECTION 908. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds, except to the extent required by law. The
Trustee shall be under no liability for interest on any money received by
it hereunder except as otherwise agreed in writing with the Company.
SECTION 909. Compensation and Reimbursement.
The Company shall
(a) pay to the Trustee from time to time such
compensation as the Company and the Trustee shall from time to time
agree in writing for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein,
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence, willful misconduct or bad
faith; and
(c) indemnify each of the Trustee or any predecessor
Trustee for, and hold it harmless from and against, any and all loss,
damage, claim, liability or expense, including taxes imposed on the
trust created by this Indenture (other than taxes based on the income
of the Trustee), reasonably incurred without negligence, willful
misconduct or bad faith on its part, arising out of or in connection
with the acceptance or administration of the trust or trusts
hereunder, including liability which the Trustee may incur as a
result of failure to withhold, pay or report any tax, assessment or
other governmental charges and 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.
As security for the performance of the obligations of the
Company under this Section, the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the Trustee as
such, except as otherwise provided in Section 703.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 801(d) or Section
801(e), 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 applicable Federal or state
bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the termination of
this Indenture.
SECTION 910. Disqualification; Conflicting Interests.
(a) If a Trustee shall have or acquire any conflicting
interest as defined in Section 910(d), then, within 90 days after
ascertaining that it has such conflicting interest, and if the Default to
which such conflicting interest relates has not been cured or duly waived
or otherwise eliminated before the end of such 90-day period, it shall
either eliminate such conflicting interest or, except as provided in this
Section 910, resign; and the Company shall take prompt steps to have a
successor appointed in the manner provided in this Article.
(b) In the event that a Trustee shall fail to comply with
the provisions of Section 910(a), it shall, within 10 days after the
expiration of such 90-day period, transmit notice of such failure to the
Holders of the Conflicted Securities (as hereinafter defined), in the
manner and to the extent provided in Section 1003(c).
(c) Subject to the provisions of Section 814, any Holder
of any Conflicted Securities who shall have been a bona fide Holder of
such Securities for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee with respect to such Securities, and the
appointment of a successor, if such Trustee shall have failed, after
written request thereof by such Holder, to comply with Section 910(a).
(d) For the purposes of Section 910(a), a Trustee shall be
deemed to have a conflicting interest with respect to the Securities of
each series for which it shall act as trustee, if any of the Securities of
such series shall be in Default (the Securities of each such series being
referred to in this Section 910 as the "Conflicted Securities") and
(1) such Trustee is trustee under this Indenture with respect
to any Securities other than the Conflicted Securities or is trustee
under another indenture under which any other securities, or
certificates of interest or participation in any other securities, of
the Company are outstanding, unless (i) the Conflicted Securities are
collateral trust notes for which the only collateral consists of
Securities other than the Conflicted Securities or securities issued
under such other indenture, or (ii) such other indenture is a
collateral trust indenture under which the only collateral consists
of Conflicted Securities; provided, however, that there shall be
excluded from the operation of this Section 910(d) all Securities,
other than the Conflicted Securities, and any other securities, or
certificates of interest or participation in any other securities, of
the Company which shall be outstanding under any other indenture, if
(A) this Indenture and such other indenture (and all
series of securities issuable thereunder) are wholly unsecured
and rank equally, and such other indenture (and such series) is
specifically described in this Indenture or is hereafter
qualified under the Trust Indenture Act, unless the Commission
shall have found and declared by order pursuant to Section
305(b) or Section 307(c) of the Trust Indenture Act that
differences exist between the provisions of this Indenture with
respect to the Conflicted Securities and the Securities of any
other series or the provisions of such other indenture (or such
series) which are so likely to involve a material conflict of
interest as to make it necessary in the public interest or for
the protection of investors to disqualify the Trustee from
acting as such under this Indenture with respect to the
Conflicted Securities and such other Securities or under such
other indenture, or
(B) the Company shall have sustained the burden of
proving, on application to the Commission and after opportunity
for hearing thereon, that trusteeship under this Indenture with
respect to the Conflicted Securities and any other Securities or
such other indenture is not so likely to involve a material
conflict of interest as to make it necessary in the public
interest or for the protection of investors to disqualify such
Trustee from acting as such under this Indenture with respect to
the Conflicted Securities and any other Securities or under such
other indenture;
(2) such Trustee or any of its directors or executive officers
is an underwriter for the Company;
(3) such Trustee directly or indirectly controls or is directly
or indirectly controlled by or is under direct or indirect common
control with an underwriter for the Company;
(4) such Trustee or any of its directors or executive officers
is a director, officer, partner, employee, appointee or
representative of the Company, or of an underwriter (other than such
Trustee itself) for the Company which is currently engaged in the
business of underwriting, except that (A) one individual may be a
director or an executive officer, or both, of such Trustee and a
director or an executive officer, or both, of the Company, but may
not be at the same time an executive officer of both such Trustee and
the Company; (B) if and so long as the number of directors of such
Trustee in office is more than nine, one additional individual may be
a director or an executive officer, or both, of such Trustee and a
director of the Company; and (C) such Trustee may be designated by
the Company or by any underwriter for the Company to act in the
capacity of transfer agent, registrar, custodian, paying agent,
fiscal agent, escrow agent or depositary, or in any other similar
capacity, or, subject to the provisions of paragraph (1) of this
Section, to act as trustee, whether under an indenture or otherwise;
(5) 10% or more of the voting securities of such Trustee is
beneficially owned either by the Company or by any director, partner
or executive officer thereof, or 20% or more of such voting
securities is beneficially owned, collectively, by any two or more of
such persons; or 10% or more of the voting securities of such Trustee
is beneficially owned either by an underwriter for the Company or by
any director, partner or executive officer thereof, or is
beneficially owned, collectively, by any two or more such persons;
(6) such Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in Default, (A) 5% or
more of the voting securities, or 10% or more of any other class of
security, of the Company, not including the Securities and securities
issued under any other indenture under which such Trustee is also
trustee or (B) 10% or more of any class of security of an underwriter
for the Company;
(7) such Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in Default, 5% or more
of the voting securities of any person who, to the knowledge of the
Trustee, owns 10% or more of the voting securities of, or controls
directly or indirectly or is under direct or indirect common control
with, the Company;
(8) such Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in Default, 10% or
more of any class of security of any person who, to the knowledge of
the Trustee, owns 50% or more of the voting securities of the
Company;
(9) such Trustee owns, on the date of Default upon the
Conflicted Securities or any anniversary of such Default while such
Default remains outstanding, in the capacity of executor,
administrator, testamentary or inter vivos trustee, guardian,
committee or conservator, or in any other similar capacity, an
aggregate of 25% or more of the voting securities, or of any class of
security, of any person, the beneficial ownership of a specified
percentage of which would have constituted a conflicting interest
under paragraph (6), (7) or (8) of this Section 910(d). As to any
such securities of which such Trustee acquired ownership through
becoming executor, administrator or testamentary trustee of an estate
which included them, the provisions of the preceding sentence shall
not apply, for a period of two years from the date of such
acquisition, to the extent that such securities included in such
estate do not exceed 25% of such voting securities or 25% of any such
class of security. Promptly after the date of any such Default and
annually in each succeeding year in which such Default shall be
continuing, such Trustee shall make a check of its holdings of such
securities in any of the above-mentioned capacities as of such date.
If the Company shall fail to make payment in full of the principal
of, or premium, if any, or interest, if any, on, any of the
Securities when and as the same shall become due and payable, and
such failure shall continue for 30 days thereafter, such Trustee
shall make a prompt check of its holdings of such securities in any
of the above-mentioned capacities as of the date of the expiration of
such 30-day period, and after such date, notwithstanding the
foregoing provisions of this paragraph, all such securities so held
by such Trustee, with sole or joint control over such securities
vested in it, shall be considered as though beneficially owned by
such Trustee for the purposes of paragraphs (6), (7) and (8) of this
Section; or
(10) except under the circumstances described in paragraph (1),
(3), (4), (5) or (6) of Section 907(b), such Trustee shall be or
become a creditor of the Company.
The specification of percentages in paragraphs (5) through (9)
of this Section 910(d) shall not be construed as indicating that the
ownership of such percentages of the securities of a person is or is not
necessary or sufficient to constitute direct or indirect control for the
purposes of paragraph (3) or (7) of this Section 910(d).
For the purposes of paragraph (1) of this Section 910(d) and
Sections 812 and 813, the terms "series of securities" or "series" means a
series, class or group of securities issued under an indenture pursuant to
the terms of which the Holders of one such series may vote to direct the
indenture trustee therefor, or otherwise take action pursuant to a vote of
such Holders, separately from the Holders of another such series, class or
group; provided, that neither of such terms shall include any such series,
class or group if all of such series, classes and groups rank equally and
are wholly unsecured.
For the purposes of paragraphs (6) through (9) of this Section
910(d), (a) the terms "security" and "securities" shall include only such
securities as are generally known as corporate securities, but shall not
include any note or other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a person by one or more banks, trust
companies or banking firms, or any certificate of interest or
participation in any such note or evidence of indebtedness; and (b) the
Trustee shall not be deemed to be the owner or holder of (i) any security
which it holds as collateral security, as trustee or otherwise, for an
obligation which is not in default as to payment of principal for 30 days
or more, (ii) any security which it holds as collateral security under
this Indenture, irrespective of any Default hereunder or (iii) any
security which it holds as agent for collection, or as custodian, escrow
agent or depositary, or in any similar representative capacity.
(e) For the purpose of this Section 910:
(1) the term "Company" means any obligor upon the Securities;
(2) the term "Conflicted Securities" means the Securities of
any series with respect to which the Trustee shall be deemed by
virtue of Section 910(d) to have a conflicting interest for purposes
of Section 910(a);
(3) the term "Default" means an Event of Default exclusive of
any period of grace or requirement of notice, except that, for the
purposes of paragraphs (6) through (9) of Section 910(d), the term
"Default", when used with respect to a failure to pay the principal
of any Security, or any installment thereof, at its Stated Maturity,
means a failure to pay such principal or installment, at its Stated
Maturity, which failure shall have continued for 30 days or more and
shall not have been cured;
(4) the term "director" means any director of a corporation or
any individual performing similar functions with respect to any
organization, whether incorporated or unincorporated;
(5) the term "executive officer" means the president, every
vice president, every trust officer, the cashier, the secretary and
the treasurer of a corporation, and any individual customarily
performing similar functions with respect to any organization whether
incorporated or unincorporated, but shall not include the chairman of
the board of directors;
(6) the term "person" means an individual, a corporation, a
partnership, an association, a joint-stock company, a trust, an
unincorporated organization or a government or political subdivision
thereof; and as used in this paragraph, the term "trust" shall
include only a trust where the interest or interests of the
beneficiary or beneficiaries are evidenced by a security;
(7) the term "underwriter", when used with reference to the
Company, means every person who, within one year prior to the time as
of which the determination is made, has purchased from the Company
with a view to, or has offered or sold for the Company in connection
with, the distribution of any security of the Company outstanding at
such time, or has participated or has had a direct or indirect
participation in any such undertaking, or has participated or has had
a participation in the direct or indirect underwriting of any such
undertaking, but such term shall not include a person whose interest
was limited to a commission from an underwriter or dealer not in
excess of the usual and customary distributors' or sellers'
commission; and
(8) the term "voting security" means any security presently
entitling the owner or holder thereof to vote in the direction or
management of the affairs of a person, or any security issued under
or pursuant to any trust, agreement or arrangement whereby a trustee
or trustees or agent or agents for the owner or holder of such
security are presently entitled to vote in the direction or
management of the affairs of a person;
(f) The percentages of voting securities and other
securities specified in Section 910(d) shall be calculated in accordance
with the following provisions:
(1) a specified percentage of the voting securities of the
Trustee, the Company or any other person referred to in such Section
(each of whom is referred to as a "person" in this paragraph) means
such amount of the outstanding voting securities of such person as
entitles the holder or holders thereof to cast such specified
percentage of the aggregate votes which the holders of all the
outstanding voting securities of such person are entitled to cast in
the direction or management of the affairs of such person;
(2) a specified percentage of a class of securities of a person
means such percentage of the aggregate amount of securities of the
class outstanding;
(3) the term "amount", when used in regard to securities, means
the principal amount if relating to evidences of indebtedness, the
number of shares if relating to capital shares and the number of
units if relating to any other kind of security;
(4) the term "outstanding", as used in this Section 910(f),
means issued and not held by or for the account of the issuer; the
following securities shall not be deemed outstanding within the
meaning of this definition:
(A) securities of an issuer held in a sinking fund
relating to securities of the issuer of the same class;
(B) securities of an issuer held in a sinking fund
relating to another class of securities of the issuer, if the
obligation evidenced by such other class of securities is not in
default as to principal or interest or otherwise;
(C) securities pledged by the issuer thereof as security
for an obligation of the issuer not in default as to principal
or interest or otherwise; and
(D) securities held in escrow if placed in escrow by the
issuer thereof;
provided, however, that any voting securities of an issuer shall be
deemed outstanding if any person other than the issuer is entitled to
exercise the voting rights thereof; and
(5) a security shall be deemed to be of the same class as
another security if both securities confer upon the holder or holders
thereof substantially the same rights and privileges; provided,
however, that, in the case of secured evidences of indebtedness, all
of which are issued under a single indenture, differences in the
interest rates or maturity dates of various series thereof shall not
be deemed sufficient to constitute such series different classes; and
provided, further, that, in the case of unsecured evidences of
indebtedness, differences in the interest rates or maturity dates
thereof shall not be deemed sufficient to constitute them securities
of different classes, whether or not they are issued under a single
indenture.
(g) Except in the case of an Event of Default involving
the failure to pay principal of or interest on any Security, the Trustee
shall not be required to resign as provided by this Section if the
Commission declares that the Trustee has sustained the burden of proving,
on application to such Commission and after opportunity for hearing
thereon, that:
(i) such Event of Default may be cured or waived during a
reasonable period and under the procedures described in such
application; and
(ii) a stay of the Trustee's duty to resign will not be
inconsistent with the interests of holders of the Securities.
The filing of such an application shall automatically stay the performance
of the duty to resign until the Commission shall have ordered otherwise.
SECTION 911. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with Section 912.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required
by Section 912 shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to
the Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to
the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 910(a) after
written request therefor by the Company or by any Holder who has been
a bona fide Holder for at least six months, or
(2) the Trustee shall cease to be eligible under Section 901
and shall fail to resign after written request therefor by the
Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a 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, (x) the Company by a Board Resolution may remove
the Trustee with respect to all Securities or (y) any Holder who has been
a bona fide Holder for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities
and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee
for any cause, with respect to the Securities of one or more series, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee
or Trustees with respect to the Securities of that or those series (it
being understood that any such successor Trustee may be appointed with
respect to the Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the Securities of
any particular series) and shall comply with the applicable requirements
of Section 912. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of
such series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of
such appointment in accordance with the applicable requirements of Section
911, become the successor Trustee with respect to the Securities of such
series and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the Holders and
accepted appointment in the manner required by Section 912, any Holder who
has been a bona fide Holder of a Security of such series for at least six
months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any series
and each appointment of a successor Trustee with respect to the Securities
of any series by mailing written notice of such event by first-class mail,
postage prepaid, to all Holders of Securities of such series as their
names and addresses appear in the Security Register. Each notice shall
include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
SECTION 912. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of all series, every such successor
Trustee so appointed shall execute, acknowledge and deliver to the Company
and to the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall execute and deliver an
instrument transferring to such successor Trustee all the rights, powers
and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall execute and deliver
an indenture supplemental hereto wherein each successor Trustee shall
accept such appointment and which (1) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and to vest
in, each successor Trustee all the rights, powers, trusts and duties of
the retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates, (2) if
the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series as to which
the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee and (3) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust 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;
and upon the execution and delivery of such supplemental indenture the
resignation or removal of the retiring Trustee shall become effective to
the extent provided therein and each such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee, upon payment of all sums owed to it, shall
duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates; provided, however, that the retiring Trustee
shall not be required to indemnify the successor Trustee against any
liability and expense incurred as a result of the appointment of the
successor Trustee.
(c) Upon request of any such successor Trustee, the
Company shall execute any instruments which fully vest in and confirm to
such successor Trustee all such rights, powers and trusts referred to in
subsection (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article.
SECTION 913. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder, provided such corporation 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. In case any Securities shall have been authenticated, but
not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such
Securities.
SECTION 914. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with
respect to the Securities of one or more series, or any Tranche thereof,
which shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series or Tranche issued upon original issuance,
exchange, registration of transfer or partial redemption thereof or
pursuant to Section 306, and Securities so authenticated shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Wherever
reference is made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and delivery on
behalf of the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an Authenticating
Agent. Each Authenticating Agent shall be acceptable to the Company and
shall at all times be a corporation organized and doing business under the
laws of the United States of America, any State or territory thereof or
the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less
than $10,000,000 and subject to supervision or examination by Federal or
state authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of
said supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to
the corporate agency or corporate trust business of an Authenticating
Agent, shall continue to be an Authenticating Agent, provided such
corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the
Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in
case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the Company
and shall make written notice at such appointment by first-class mail,
postage prepaid, to all Holders. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect
as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent, from
time to time, reasonable compensation for its services under this Section
and to reimburse each Authenticating Agent, from time to time, for its
reasonable out-of-pocket expenses incurred under this Section.
If an appointment with respect to the Securities of one or more
series, or any Tranche thereof, shall be made pursuant to this Section,
the Securities of such series or Tranche may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication substantially in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
As Trustee
By:
As Authenticating Agent
By:
Authorized Signatory
If all of the Securities of a series may not be originally
issued at one time, and if the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place of
Payment where the Company wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so requested by the
Company in writing (which writing need not comply with Section 102 and
need not be accompanied by an Opinion of Counsel), shall appoint, in
accordance with this Section and in accordance with such procedures as
shall be acceptable to the Trustee, an Authenticating Agent (which, if so
requested by the Company, may be an Affiliate of the Company) having an
office in a Place of Payment designated by the Company with respect to
such series of Securities.
ARTICLE TEN
Holders' Lists and Reports by Trustee and Company
SECTION 1001. Company to Furnish Trustee Names and Addresses of Holders.
The Company shall furnish or cause to be furnished to the
Trustee
(a) semiannually, not later than June 1 and December 1, in
each year, a list, in such form as the Trustee may reasonably
require, containing all the information in the possession or control
of the Company, or any of its Paying Agents other than the Trustee,
as to the names and addresses of the Holders as of the preceding May
15 or November 15, as the case may be, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more
than 15 days prior to the time such list is furnished;
provided, however, the Company may exclude from any such list names and
addresses provided by it to the Trustee in its capacity as Security
Registrar.
SECTION 1002. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as
shall be reasonably practicable, the names and addresses of Holders
(1) contained in the most recent list furnished to the Trustee as provided
in Section 1001 and (2) received by the Trustee in the capacity of Paying
Agent. The Trustee may (A) destroy any list furnished to it as provided
in Section 1001 upon receipt of a new list so furnished, (B) destroy any
information received by it as Paying Agent (if so acting) hereunder with
respect to the Securities of any series upon delivering to itself as
Trustee, not earlier than forty-five days after the then most recent
Interest Payment Date for such Securities, a list containing the names and
addresses of the Holders of such Securities obtained from such information
since the delivery of the next previous list, if any, and (C) destroy any
list delivered to itself as Trustee which was compiled from information
received by it as Paying Agent (if so acting) hereunder upon the receipt
of a new list so delivered.
(b) If three or more Holders (herein referred to as
"applicants") shall apply in writing to the Trustee, and furnish to the
Trustee reasonable proof that each such applicant has owned a Security for
a period of at least six months preceding the date of such application,
and such application shall state that the applicants desire to communicate
with other Holders with respect to their rights under this Indenture or
under the Securities and is accompanied by a copy of the form of proxy or
other communication which such applicants propose to transmit, then the
Trustee shall, within five business days after the receipt of such
application, at its election, either
(1) afford such applicants access to the information preserved
at the time by the Trustee in accordance with Section 1002(a), or
(2) inform such applicants as to the approximate number of
Holders whose names and addresses appear in the information preserved
at the time by the Trustee in accordance with Section 1002(a), and as
to the approximate cost of mailing to such Holders the form of proxy
or other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such
applicants, mail to each Holder whose name and address appear in the
information preserved at the time by the Trustee in accordance with
Section 1002(a) a copy of the form of proxy or other communication which
is specified in such request, with reasonable promptness after a tender to
the Trustee by such applicants of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of
mailing, unless within five days after such tender, the Trustee shall mail
to such applicants and file with the Commission, together with a copy of
the material to be mailed, a written statement to the effect that, in the
opinion of the Trustee, such mailing would be contrary to the best
interest of the Holders or would be in violation of applicable law. Such
written statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections specified
in the written statement so filed, shall enter an order refusing to
sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find,
after notice and opportunity for hearing, that all the objections so
sustained have been met and shall enter an order so declaring, the Trustee
shall mail copies of such material to all such Holders with reasonable
promptness after the entry of such order and the renewal of such tender by
such applicants as aforesaid. Otherwise the Trustee shall be relieved of
any obligation or duty to such applicants respecting their application.
(c) Every Holder of Securities, by receiving and holding
the same, shall be deemed to have agreed with the Company and the Trustee
that neither the Company nor the Trustee, nor any 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 in accordance
with Section 1002(b), 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 under Section 1002(b).
SECTION 1003. Reports by Trustee.
(a) Within 60 days after March 1 of each year commencing with
the year 199__, the Trustee, if any of the following events shall have
occurred during the twelve-months ended on such March 1, shall transmit by
mail to the Holders, as provided in subsection (c) of this Section, a
brief report dated as of such March 1 with respect to:
(1) any change to its eligibility under Section 901;
(2) the creation of or any material change to a relationship
specified in clauses (1) through (10) of Section 910(d);
(3) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the
date of such report, and for the reimbursement of which it claims or
may claim a lien or charge, prior to that of the Securities, on any
property or funds held or collected by it as Trustee, if such
advances so remaining unpaid aggregate more than 1/2 of 1% of the
principal amount of the Securities Outstanding on the date of such
report;
(4) any change to the amount, interest rate and maturity date
of all other indebtedness owing by the Company (or by any other
obligor on the Securities) to the Trustee in its individual capacity,
on the date of such report, with a brief description of any property
held as collateral security therefor, except an indebtedness based
upon a creditor relationship arising in any manner described in
clauses (2), (3), (4) or (6) of Section 907(b);
(5) any change to the property and funds, if any, physically in
the possession of the Trustee as such on the date of such report;
(6) any additional issue of Securities which the Trustee has
not previously reported; and
(7) any action taken by the Trustee in the performance of its
duties hereunder which it has not previously reported and which, in
its opinion, materially affects the Securities, except action in
respect of a default, notice of which has been or is to be withheld
by the Trustee in accordance with Section 903.
(b) The Trustee shall transmit to the Holders, as provided
in Section 1003(c), a brief report with respect to the character and
amount of any advances (and if the Trustee elects so to state, the
circumstances surrounding the making thereof) made by the Trustee (as
such) since the date of the last report transmitted pursuant to Section
1003(a) (or if no such report has yet been so transmitted, since the date
of execution of this instrument) for the reimbursement of which it claims
or may claim a lien or charge, prior to that of the Securities, on
property or funds held or collected by it as Trustee and which it has not
previously reported pursuant to this Section, except that the Trustee
shall not be required (but may elect) to report such advances if such
advances remaining unpaid at any time aggregate 10% or less of the
principal amount of the Securities Outstanding at such time, such report
to be transmitted within 90 days after such time.
(c) Reports pursuant to Section 1003 shall be transmitted
by mail:
(1) to all Holders, as their names and addresses appear in the
Security Register;
(2) to such Holders as have, within the two years preceding
such transmission, filed their names and addresses with the Trustee
for that purpose; and
(3) except in the case of reports pursuant to Section 1003(b),
to all Holders whose names and addresses shall be preserved, at the
time by the Trustee, as provided in Section 1002(a).
(d) A copy of each such report, at the time of such
transmission to Holders, shall be filed by the Trustee with each stock
exchange upon which any Securities with respect to which it relates are
listed, the Commission and the Company. The Company will promptly notify
the Trustee when any Securities are listed on any stock exchange.
SECTION 1004. Reports by Company.
The Company shall:
(a) file with the Trustee, within 30 days after the
Company is required to file the same with the Commission, copies of
the annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe)
which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934; or, if the Company is not required to file information,
documents or reports pursuant to either of such Sections, then it
shall file with the Trustee and the Commission, in accordance with
the rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of
the Securities Exchange Act of 1934 in respect of a security listed
and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(b) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such additional information, documents and reports
with respect to compliance by the Company with the conditions and
covenants of this Indenture as may be required, from time-to-time, by
such rules and regulations;
(c) transmit, within 30 days after the filing thereof with
the Trustee, to the Holders, in the manner and to the extent provided
in Section 1003(c), such summaries of any information, documents and
reports required to be filed by the Company pursuant to clauses (a)
or (b) of this Section as may be required by rules and regulations
prescribed, from time-to-time, by the Commission;
(d) furnish to the Trustee, not less often than annually,
within 120 days after the end of the Company's fiscal year, a brief
certificate from its principal executive officer, principal financial
officer or principal accounting officer as to his knowledge of the
Company's compliance with all of the conditions and covenants of this
Indenture, such compliance to be determined without regard to any
period of grace or requirement of notice; and
(e) file with the Trustee written notice of the occurrence
of any Event of Default or event which with the giving of notice or
passage of time would become an Event of Default within five Business
Days of a Responsible Officer of the Company having actual knowledge
of any such default or Event of Default.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such 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 convenants hereunder (as to which the Trustee
is entitled to rely exclusively on Officers' Certificates).
ARTICLE ELEVEN
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 1101. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, unless
(a) the corporation formed by such consolidation or into
which the Company is merged or the Person which acquires by
conveyance or transfer, or which leases, the properties and assets of
the Company substantially as an entirety shall be a Person duly
organized and validly existing under the laws of the jurisdiction of
its organization, and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the
principal of, and premium, if any, and interest, if any, on, all
Outstanding Securities and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed; and
(b) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, conveyance, transfer or lease and such
indenture supplemental hereto complies with this Article and that all
conditions precedent herein provided for relating to such
transactions have been complied with.
SECTION 1102. Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by the
Company into any other corporation or any conveyance, transfer or lease of
the properties and assets of the Company substantially as an entirety in
accordance with Section 1101, the successor corporation formed by such
consolidation or into which the Company is merged or the Person to which
such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person had
been named as the Company herein, and thereafter, the predecessor Person
shall be relieved of all obligations and covenants under this Indenture
and the Securities Outstanding hereunder.
ARTICLE TWELVE
Supplemental Indentures
SECTION 1201. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company and the Trustee,
at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form reasonably satisfactory to the Trustee, for
any of the following purposes:
(a) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities, all as provided in Article
Eleven; or
(b) to add to the covenants of the Company for the benefit
of the Holders of all or any series of Securities, or any Tranche
thereof (and if such covenants are to be for the benefit of less than
all Securities, stating that such covenants are expressly being
included solely for the benefit of such series or Tranche) or to
surrender any right or power herein conferred upon the Company; or
(c) to add any additional Events of Default with respect
to all or any series of Securities; or
(d) to change or eliminate any provision of this Indenture
or to add any new provision to this Indenture; provided, however,
that if such change, elimination or addition shall adversely affect
the interests of the Holders of Securities of any series, or a
Tranche thereof, in any material respect, such change, elimination or
addition shall become effective with respect to such series or
Tranche only when no Security of such series or Tranche remains
Outstanding; or
(e) to provide collateral security for the Securities; or
(f) to establish the form or terms of Securities of any
series or Tranche as contemplated by Sections 201 and 301; or
(g) to evidence and provide for the acceptance of
appointment hereunder by a separate or 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 912(b); or
(h) to provide for the procedures required to permit the
Company to issue, at its option, the Securities of any series or
Tranche thereof, in non-certificated form; or
(i) to change any place or places where (1) the principal
of, and premium, if any, and interest, if any, on, all or any series
of Securities, or any Tranche thereof, shall be payable, (2) all or
any series of Securities, or any Tranche thereof, may be surrendered
for registration of transfer, (3) all or any series of Securities, or
any Tranche thereof, may be surrendered for exchange and (4) notices
and demands to or upon the Company in respect of all or any series of
Securities, or any Tranche thereof, and this Indenture may be served;
provided, however, that any such place shall be located in New York,
New York or in the city specified pursuant to Section 301; or
(j) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any
other provision herein, or to make any other provisions with respect
to matters or questions arising under this Indenture, provided that
such other provisions shall not adversely affect the interests of the
Holders of Securities of any series, or Tranche thereof, in any
material respect.
Without limiting the generality of the foregoing, if the Trust
Indenture Act as in effect at the date of the execution and delivery of
this Indenture or at any time thereafter shall be amended and
(x) if any such amendment shall require one or more
changes to any provisions hereof or the inclusion herein of any
additional provisions, or shall by operation of law be deemed to
effect such changes or incorporate such provisions by reference or
otherwise, this Indenture shall be deemed to have been amended so as
to conform to such amendment to the Trust Indenture Act, and the
Company and the Trustee may, without the consent of any Holders,
enter into an indenture supplemental hereto to effect or evidence
such changes or additional provisions; or
(y) if any such amendment shall permit one or more changes
to, or the elimination of, any provisions hereof which, at the date
of the execution and delivery hereof or at any time thereafter, are
required by the Trust Indenture Act to be contained herein, this
Indenture shall be deemed to have been amended to effect such changes
or elimination, and the Company and the Trustee may, without the
consent of any Holders, enter into an indenture supplemental hereto
to effect such changes or elimination; or
(z) if, by reason of any such amendment, one or more
provisions which, at the date of the execution and delivery hereof or
at any time thereafter, are required by the Trust Indenture Act to be
deemed to be incorporated herein by reference or otherwise, or
otherwise made applicable hereto, shall no longer be required to be
deemed to be so incorporated herein or otherwise made applicable
hereto, the Company and the Trustee may, without the consent of any
Holders, enter into an indenture supplemental hereto to effect the
elimination of such provisions.
SECTION 1202. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Securities of all series then
Outstanding under this Indenture, considered as one class, by Act of said
Holders delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to, or changing in any manner or eliminating any of the
provisions of, this Indenture; provided, however, that if there shall be
Securities of more than one series Outstanding hereunder and if a proposed
supplemental indenture shall directly affect the rights of the Holders of
Securities of one or more, but less than all, of such series, then the
consent only of the Holders of a majority in aggregate principal amount of
the Outstanding Securities of all series so directly affected, considered
as one class, shall be required; and provided, further, that if the
Securities of any series shall have been issued in more than one Tranche
and if the proposed supplemental indenture shall directly affect the
rights of the Holders of Securities of one or more, but less than all, of
such Tranches, then the consent only of the Holders of a majority in
aggregate principal amount of the Outstanding Securities of all Tranches
so directly affected, considered as one class, shall be required; and
provided, further, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security of each series or
Tranche so directly affected,
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce
the principal amount thereof or the rate of interest thereon or the
method of calculating such rate (or the amount of any installment of
interest thereon) or any premium payable upon the redemption thereof,
or reduce the amount of the principal of a Discount Security that
would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 802, or impair the right to
institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or, in the case of redemption, on or
after the Redemption Date), or
(b) reduce the percentage in principal amount of the
Outstanding Securities of such series or Tranche, the consent of the
Holders of which is required for any such supplemental indenture, or
the consent of the Holders of which is required for any waiver of
compliance with any provision of this Indenture or of any default
hereunder and its consequences, or reduce the requirements of Section
1304 for quorum or voting, or
(c) modify any of the provisions of this Section or
Section 813, except to increase the percentages in principal amount
referred to in this Section or such other Sections or to provide that
other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes
in the references to "the Trustee" and concomitant changes in this
Section, or the deletion of this proviso, in accordance with the
requirements of Sections 912(b) and 1201(g).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or of one or
more Tranches thereof, or which modifies the rights of the Holders of
Securities of such series or Tranches with respect to such covenant or
other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series or Tranche.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
SECTION 1203. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Section 902) shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties,
immunities or liabilities under this Indenture or otherwise.
SECTION 1204. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, such
supplemental indenture shall form a part of this Indenture for all
purposes, and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby. Any
supplemental indenture permitted by this Article may restate this
Indenture in its entirety, and, upon the execution and delivery thereof,
any such restatement shall supersede this Indenture as theretofore in
effect for all purposes.
SECTION 1205. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in
effect.
SECTION 1206. Reference in Securities to Supplemental Indentures.
Securities of any series, or any Tranche thereof, authenticated
and delivered after the execution of any supplemental indenture pursuant
to this Article may, and shall if required by the Trustee, bear a notation
in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities
of any series, or any Tranche thereof, so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture
may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of such
series or Tranche.
SECTION 1207. Modification Without Supplemental Indenture.
If the terms of any particular series, or any Tranche thereof,
of Securities shall have been established by a Board Resolution, an
Officers' Certificate pursuant to a Board Resolution, a Company Order or
procedures, acceptable to the Trustee, specified in a Company Order as
contemplated by Section 301, and not in an indenture supplemental hereto,
additions to, changes in or the elimination of any of such terms may be
effected by means of a further Board Resolution or further Officers'
Certificate pursuant to a Board Resolution, as the case may be, delivered
to, and accepted by, the Trustee; provided, however, that such Board
Resolution or Officers' Certificate shall not be accepted by the Trustee
or otherwise be effective unless all conditions set forth in this
Indenture which would be required to be satisfied if such additions,
changes or elimination were contained in a supplemental indenture shall
have been appropriately satisfied. Upon the acceptance thereof by the
Trustee, any such Board Resolution or Officers' Certificate shall be
deemed to be a "supplemental indenture" for purposes of Section 1204 and
1206.
ARTICLE THIRTEEN
Meetings of Holders; Action Without Meeting
SECTION 1301. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of one or more series, or one
or more Tranches thereof, may be called, at any time and from time-to-
time, pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided
by this Indenture to be made, given or taken by Holders of Securities of
such series or Tranches.
SECTION 1302. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders
of Securities of one or more series, or one or more Tranches thereof, for
any purpose specified in Section 1301, to be held at such time and at such
place in the Borough of Manhattan, The City of New York, as the Trustee
shall determine, or, with the approval of the Company, at any other place.
Notice of every such meeting, 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 given, in the manner provided in Section 106, not less
than 21 nor more than 360 days prior to the date fixed for the meeting.
(b) If the Trustee shall have been requested to call a
meeting of the Holders of Securities of one or more series, or one or more
Tranches thereof, by the Company or by the Holders of 33% in aggregate
principal amount of all of such series and Tranches, considered as one
class, for any purpose specified in Section 1301, by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have given the notice of such meeting
within 21 days after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein, the Company or
the Holders of Securities of such series and Tranches in the amount above
specified, as the case may be, may determine the time and the place in the
Borough of Manhattan, The City of New York, or in such other place as
shall be determined or approved by the Company, for such meeting and may
call such meeting for such purposes by giving notice thereof in the manner
provided in Section 106.
(c) Any meeting of Holders of Securities of one or more
series, or one or more Tranches thereof, shall be valid without notice if
the Holders of all Outstanding Securities of such series or Tranches are
present in person or by proxy and if representatives of the Company and
the Trustee are present, or if notice is waived in writing before or after
the meeting by the Holders of all Outstanding Securities of such series or
Tranches, or by such of them as are not present at the meeting in person
or by proxy, and by the Company and the Trustee.
SECTION 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities
of one or more series, or one or more Tranches thereof, a Person shall be
(a) a Holder of one or more Outstanding Securities of such series or
Tranches, or (b) a Person appointed by an instrument in writing as proxy
for a Holder or Holders of one or more Outstanding Securities of such
series or Tranches by such Holder or Holders. The only Persons who shall
be entitled to attend any meeting of Holders of Securities of any series
or Tranche shall be the Persons entitled to vote at such meeting and their
counsel, any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 1304. Quorum; Action.
The Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of the series and Tranches with
respect to which a meeting shall have been called as hereinbefore
provided, considered as one class, shall constitute a quorum for a meeting
of Holders of Securities of such series and Tranches; provided, however,
that if any action is to be taken at such meeting which this Indenture
expressly provides may be taken by the Holders of a specified percentage,
which is less than a majority in principal amount of the Outstanding
Securities of such series and Tranches, considered as one class, the
Persons entitled to vote such specified percentage in principal amount of
the Outstanding Securities of such series and Tranches, considered as one
class, shall constitute a quorum. In the absence of a quorum within one
hour of the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series and
Tranches, be dissolved. In any other case the meeting may be adjourned
for such period as may be determined by the chairman of the meeting prior
to the adjournment of such meeting. In the absence of a quorum at any
such adjourned meeting, such adjourned meeting may be further adjourned
for such period as may be determined by the chairman of the meeting prior
to the adjournment of such adjourned meeting. Except as provided by
Section 1305(e), notice of the reconvening of any meeting adjourned for
more than 30 days shall be given in the manner provided in Section 106 not
less than ten days prior to the date on which the meeting is scheduled to
be reconvened. Notice of the reconvening of an adjourned meeting shall
state expressly the percentage, as provided above, of the principal amount
of the Outstanding Securities of such series and Tranches which shall
constitute a quorum.
Except as limited by Section 1202, any resolution presented to a
meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted only by the affirmative vote of the Holders of
a majority in aggregate principal amount of the Outstanding Securities of
the series and Tranches with respect to which such meeting shall have been
called, considered as one class; provided, however, that, except as so
limited, any resolution with respect to any action which this Indenture
expressly provides may be taken by the Holders of a specified percentage,
which is less than a majority, in principal amount of the Outstanding
Securities of such series and Tranches, considered as one class, may be
adopted at a meeting or an adjourned meeting duly reconvened and at which
a quorum is present as aforesaid by the affirmative vote of the Holders of
such specified percentage in principal amount of the Outstanding
Securities of such series and Tranches, considered as one class.
Any resolution passed or decision taken at any meeting of
Holders of Securities duly held in accordance with this Section shall be
binding on all the Holders of Securities of the series and Tranches with
respect to which such meeting shall have been held, whether or not present
or represented at the meeting.
SECTION 1305. Attendance at Meetings; Determination of Voting Rights;
Conduct and Adjournment of Meetings.
(a) Attendance at meetings of Holders of Securities may be
in person or by proxy; and, to the extent permitted by law, any such proxy
shall remain in effect and be binding upon any future Holder of the
Securities with respect to which it was given unless and until
specifically revoked by the Holder or future Holder of such Securities
before being voted.
(b) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities in regard to proof of
the holding of such 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 deem to be appropriate. Except as otherwise permitted
or required by any such regulations, the holding of Securities shall be
proved in the manner specified in Section 104 and the appointment of any
proxy shall be proved in the manner specified in Section 104. With the
consent of the Company, 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 104 or other
proof.
(c) 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 Holders as provided in Section 1302(b),
in which case the Company or the Holders of Securities 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 Persons entitled to vote a majority in
aggregate principal amount of the Outstanding Securities of all series and
Tranches represented at the meeting, considered as one class.
(d) At any meeting each Holder or proxy shall be entitled
to one vote for each $1,000 principal amount of Outstanding Securities
held or represented by him; 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,
except as a Holder of a Security or proxy.
(e) Any meeting duly called pursuant to Section 1302 at
which a quorum is present may be adjourned, from time to time, by Persons
entitled to vote a majority in aggregate principal amount of the
Outstanding Securities of all series and Tranches represented at the
meeting, considered as one class; and the meeting may be held as so
adjourned without further notice.
SECTION 1306. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders
shall be by written ballots on which shall be subscribed the signatures of
the Holders or of their representatives by proxy and the principal amounts
and serial numbers of the Outstanding Securities, of the series and
Tranches with respect to which the meeting shall have been called, 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 of all votes cast at the
meeting. A record of the proceedings of each meeting of Holders 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 given as provided in Section 1302 and, if
applicable, Section 1304. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one
such copy shall be delivered to the Company, and another 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.
SECTION 1307. Action Without Meeting.
In lieu of a vote of Holders at a meeting as provided in this
Article, any request, demand, authorization, direction, notice, consent,
waiver or other action may be made, given or taken by Holders by written
instruments as provided in Section 104.
SECTION 1308. Record Date.
The Company may set a record date for the purpose of determining
the Holders of the Securities entitled to vote or consent, whether at a
meeting thereof or otherwise, to any action authorized or permitted by the
Indenture. If the Company should set a record date, that date shall be no
less than 15 nor more than 30 days preceding the first solicitation of
such vote or consent or notice of such meeting.
ARTICLE FOURTEEN
Immunity of Incorporators, Stockholders, Officers and
Directors
SECTION 1401. Liability Solely Corporate.
No recourse shall be had for the payment of the principal of, or
premium, if any, or interest, if any, on, any Securities, or any part
thereof, or for any claim based thereon or otherwise in respect thereof,
or of the indebtedness represented thereby, or upon any obligation,
covenant or agreement under this Indenture, against any incorporator,
stockholder, officer or director, as such, past, present or future of the
Company or of any predecessor or successor corporation (either directly or
through the Company or a predecessor or successor corporation), whether by
virtue of any constitutional provision, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
agreed and understood that this Indenture and all the Securities are
solely corporate obligations, and that no personal liability whatsoever
shall attach to, or be incurred by, any incorporator, stockholder, officer
or director, past, present or future, of the Company or of any predecessor
or successor corporation, either directly or indirectly through the
Company or any predecessor or successor corporation, because of the
indebtedness hereby authorized or under or by reason of any of the
obligations, covenants or agreements contained in this Indenture or in any
of the Securities or to be implied herefrom or therefrom, and that any
such personal liability is hereby expressly waived and released as a
condition of, and as part of the consideration for, the execution of this
Indenture and the issuance of the Securities.
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.
GREEN MOUNTAIN POWER CORPORATION
By:/s/Christopher L. Dutton
Vice President,
Chief Financial Officer & Treasurer
[SEAL]
ATTEST:
/s/Donna S. Laffan
Secretary
THE BANK OF NEW YORK , Trustee
By:
[TITLE]
[SEAL]
ATTEST:
[TITLE]
GREEN MOUNTAIN POWER CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939 and Indenture,
dated as of
Trust Indenture Act Section Indenture Section
Section 310 (a)(1) ..................................... 901
(a)(2) ..................................... 901
(a)(3) ..................................... Not Applicable
(a)(4) ..................................... Not Applicable
(a)(5) ..................................... 901
(b) ........................................ 910
911
Section 311 (a) ....................................... 907(a)
(b) ....................................... 907(b)
(b)(2) ..................................... 1003(c)
(c) ....................................... Not Applicable
Section 312 (a) ....................................... 1001
1002(a)
(b) ....................................... 1002(b)
(c) ....................................... 1002(c)
Section 313 (a)(except (6) ............................. 1003(a)
(a)(6) ..................................... Not Applicable
(b)(1) ..................................... Not Applicable
(b)(2) ..................................... 1003(b)
(c) ........................................ 1003(c)
(d) ........................................ 1003(d)
Section 314 (a) ........................................ 1004
(b) ........................................ Not Applicable
(c)(1) ..................................... 102
(c)(2) ..................................... 102
(c)(3) ..................................... Not Applicable
(d) ........................................ Not Applicable
(e) ........................................ 102
Section 315 (a) ........................................ 902(a)
(b) ........................................ 903
1003(a)(7)
(c) ........................................ 902(b)
(d) ........................................ 902(c)
(d)(1) ..................................... 902(a)
(d)(2) ..................................... 902(c)(2)
(d)(3) ..................................... 902(c)(3)
(e) ........................................ 814
Section 316 (a) ........................................ 101-"Outstanding"
(a)(1)(A) .................................. 812
(a)(1)(B) .................................. 813
(a)(2) ..................................... Not Applicable
(b) ........................................ 808
(c) ........................................ 1308
Section 317 (a)(1) ..................................... 803
(a)(2) ..................................... 804
(b) ........................................ 603
Section 318 (a) ........................................ 107
Exhibit 5-a-1
[LETTERHEAD OF HUNTON & WILLIAMS]
July 28, 1995
Green Mountain Power Corporation
25 Green Mountain Drive
South Burlington VT 05403
Green Mountain Power Corporation
$50,000,000 Shelf Registration Statement
Common Stock, $3.33 1/3 Par Value, First Mortgage Bonds, Unsecured Notes
Dear Sirs:
We are acting as special counsel for Green Mountain Power Corporation, a
Vermont corporation (the "Company"), in connection with the preparation
and filing with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended (the "Act"), of a
Registration Statement on Form S-3 (the "Registration Statement") relating
to up to an aggregate amount of $50,000,000 of Common Stock, $3.33 1/3 par
value (the "Common Stock"), and/or First Mortgage Bonds (the "Bonds")
and/or Unsecured Notes (the "Notes"), and, together with the Bonds, the
"Debt Securities") to be issued by the Company.
As such counsel, we have:
(a) reviewed the action heretofore taken by the Board of Directors of the
Company in connection with the authorization of the issuance and sale of
the Common Stock and the Debt Securities and related matters;
(b) reviewed the Registration Statement, including Amendment No. 1
thereto, which we understand you propose to file with the Securities and
Exchange Commission under the Securities Act of 1933 on the date hereof;
(c) examined the opinion, dated the date hereof, addressed to you, of
Peter H. Zamore, General Counsel for the Company, relating to the Common
Stock and the Debt Securities; and
(d) made such examination of law and examined originals, or copies,
certified or otherwise authenticated to our satisfaction, of all such
other corporate records, instruments, certificates of public officials
and/or bodies, certificates of officers and representatives of the
Company, and such other documents, and discussed with officers and
representatives of the Company such questions of fact, as we have deemed
necessary in order to render the opinion hereinafter expressed.
Based on the foregoing, we are pleased to advise you that, in our opinion:
1. The Company is a corporation duly organized, incorporated and validly
existing under the laws of the State of Vermont.
2. When (i) the Registration Statement has become effective, (ii) the
Public Service Board of the State of Vermont has issued an order
consenting to and approving the issue and sale of the Common Stock, (iii)
the Common Stock has been duly listed on the New York Stock Exchange, (iv)
the issuance and sale of the Common Stock have been duly authorized by
appropriate corporate action, (v) the Common Stock has been duly issued
and sold and delivered and paid for as contemplated by the underwriting
agreement to be executed by the Company with respect thereto, then the
Common Stock will be validly issued, fully-paid and nonassessable.
3. When (i) the Registration Statement has become effective, (ii) the
Public Service Board of the State of Vermont has issued an order
consenting to and approving the issue and sale of the Bonds, (iii) the
Indenture dated as of February 1, 1955 between the Company and United
States Trust Company of New York (successor to The Chase Manhattan Bank
(National Association), successor to the Chase National Bank of the City
of New York) (as heretofore amended and supplemented by fifteen
supplemental indentures, the "Indenture" and as to be supplemented by the
proposed supplemental indenture relating to the Bonds (the "Sixteenth
Supplemental Indenture")), has been qualified under the Trust Indenture
Act of 1939, as amended, (iv) the Sixteenth Supplemental Indenture to the
Indenture has been duly executed and delivered by the Company and the
Trustee, (v) the issuance and sale of the Bonds have been duly authorized
by appropriate corporate action, and (vi) the Bonds have been duly issued
and authenticated in accordance with the terms of the Indenture and such
Sixteenth Supplemental Indenture and delivered and paid for as
contemplated by the distribution agreement to be executed by the Company
with respect thereto, the Bonds will be legally issued by the Company and
will be valid and binding obligations of the Company except as may be
limited by applicable bankruptcy, insolvency, moratorium, fraudulent
conveyance and transfer, reorganization and other laws affecting
enforcement of creditors' rights generally.
4. When (i) the Registration Statement has become effective, (ii) the
Public Service Board of the State of Vermont has issued an order
consenting to and approving the issue and sale of the Notes, (iii) the
indenture relating to the Notes (the "Notes Indenture") has been duly
executed and delivered by the Company and the trustee thereunder, (iv) the
Notes Indenture has been qualified under the Trust Indenture Act of 1939,
as amended, (v) the issuance and sale of the Notes have been duly
authorized by appropriate corporate action, and (vi) the Notes have been
duly issued and authenticated in accordance with the terms of the Notes
Indenture and delivered and paid for as contemplated by the distribution
agreement to be executed by the Company with respect thereto, the Notes
will be legally issued by the Company and will be valid and binding
obligations of the Company except as may be limited by applicable
bankruptcy, insolvency, moratorium, fraudulent conveyance and transfer,
reorganization and other laws affecting enforcement of creditors' rights
generally.
We hereby consent to:
A. being named in the Registration Statement and in any amendment thereto
under the heading "Legal Opinions and Experts";
B. the making in said Registration Statement and in any amendments
thereto of the statements now appearing in said Registration Statement
under the heading "Legal Opinions and Experts" insofar as they are
applicable to us; and
C. the filing of this opinion as an exhibit to the Registration
Statement.
We are members of the Bar of the State of New York and not of the State of
Vermont and, in giving the foregoing opinion, we have relied upon the
above-mentioned opinion of Peter H. Zamore as to all matters of Vermont
law involved in the conclusions stated in our opinions.
Very truly yours,
/s/HUNTON & WILLIAMS
Exhibit 5-a-2
July 28, 1995
Green Mountain Power Corporation
25 Green Mountain Drive
South Burlington VT 05403
Green Mountain Power Corporation
$50,000,000 Shelf Registration Statement
Common Stock, $3.33 1/3 Par Value, First Mortgage Bonds, Unsecured Notes
Dear Sirs:
I am the General Counsel for Green Mountain Power Corporation, a Vermont
corporation (the "Company"), in connection with the preparation and filing
with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Act"), of a Registration
Statement on Form S-3 (the "Registration Statement") relating to up to an
aggregate amount of $50,000,000 of Common Stock, $3.33 1/3 par value (the
"Common Stock"), and/or First Mortgage Bonds (the "Bonds"), and/or
Unsecured Notes (the "Notes", and, together with the Bonds, the "Debt
Securities") to be issued by the Company.
As such counsel, I have:
(a) reviewed the action heretofore taken by the Board of Directors of the
Company in connection with the authorization of the issuance and sale of
the Common Stock and the Debt Securities and related matters;
(b) reviewed the Registration Statement, including Amendment No. 1
thereto, which I understand you propose to file with the Securities and
Exchange Commission under the Securities Act of 1933 on the date hereof;
and
(c) made such examination of law and examined originals, or copies,
certified or otherwise authenticated to our satisfaction, of all such
other corporate records, instruments, certificates of public officials
and/or bodies, certificates or officers and representatives of the
Company, and such other documents, and discussed with officers and
representatives of the Company such questions of fact, as I have deemed
necessary in order to render the opinion hereinafter expressed.
Based on the foregoing, I am pleased to advise you that, in my opinion:
1. The Company is a corporation duly organized, incorporated and validly
existing under the laws of the State of Vermont, and has all corporate and
other power and authority necessary to own its properties and carry on the
business which it is presently conducting.
2. When (i) the Registration Statement has become effective, (ii) the
Public Service Board of the State of Vermont has issued an order
consenting to and approving the issue and sale of the Common Stock, (iii)
the Common Stock has been duly listed on the New York Stock Exchange, (iv)
the issuance and sale of the Common Stock have been duly authorized by
appropriate corporate action, (v) the Common Stock has been duly issued
and sold and delivered and paid for as contemplated by the underwriting
agreement to be executed by the Company with respect thereto, then the
Common Stock will be validly issued, fully-paid and nonassessable.
3. When (i) the Registration Statement has become effective, (ii) the
Public Service Board of the State of Vermont has issued an order
consenting to and approving the issue and sale of the Bonds, (iii) the
Indenture dated as of February 1, 1955 between the Company and United
States Trust Company of New York (successor to The Chase Manhattan Bank
(National Association), successor to the Chase National Bank of the City
of New York) (as heretofore amended and supplemented by fifteen
supplemental indentures, the "Indenture" and as to be supplemented by the
proposed supplemental indenture relating to the Bonds (the "Sixteenth
Supplemental Indenture")), has been qualified under the Trust Indenture
Act of 1939, as amended, (iv) the Sixteenth Supplemental Indenture to the
Indenture has been duly executed and delivered by the Company and the
Trustee, (v) the issuance and sale of the Bonds have been duly authorized
by appropriate corporate action, and (vi) the Bonds have been duly issued
and authenticated in accordance with the terms of the Indenture and such
Sixteenth Supplemental Indenture and delivered and paid for as
contemplated by the distribution agreement to be executed by the Company
with respect thereto, the Bonds will be legally issued by the Company and
will be valid and binding obligations of the Company except as may be
limited by applicable bankruptcy, insolvency, moratorium, fraudulent
conveyance and transfer, reorganization and other laws affecting
enforcement of creditors' rights generally.
4. When (i) the Registration Statement has become effective, (ii) the
Public Service Board of the State of Vermont has issued an order
consenting to and approving the issue and sale of the Notes, (iii) the
indenture relating to the Notes (the "Notes Indenture") has been duly
executed and delivered by the Company and the trustee thereunder, (iv) the
Notes Indenture has been qualified under the Trust Indenture Act of 1939,
as amended, (v) the issuance and sale of the Notes have been duly
authorized by appropriate corporate action, and (vi) the Notes have been
duly issued and authenticated in accordance with the terms of the Notes
Indenture and delivered and paid for as contemplated by the distribution
agreement to be executed by the Company with respect thereto, the Notes
will be legally issued by the Company and will be valid and binding
obligations of the Company except as may be limited by applicable
bankruptcy, insolvency, moratorium, fraudulent conveyance and transfer,
reorganization and other laws affecting enforcement of creditors' rights
generally.
I hereby consent to:
A. being named in the Registration Statement and in any amendment thereto
under the heading "Legal Opinions and Experts";
B. the making in said Registration Statement and in any amendments
thereto of the statements now appearing in said Registration Statement
under the heading "Legal Opinions and Experts" insofar as they are
applicable to me; and
C. the filing of this opinion as an exhibit to the Registration
Statement.
I understand that a copy of this opinion is being delivered to Hunton &
Williams, special counsel to the Company in connection with the
registration of the Common Stock and the Bonds, who are also rendering an
opinion to the Company relating to the matters referred to herein and that
their opinion will be filed as an exhibit to the Registration Statement.
In rendering their opinion, Hunton & Williams are authorized to rely upon
this opinion as to all matters of Vermont law involved in the conclusions
expressed in their opinion.
Very truly yours,
/s/Peter H. Zamore
General Counsel
Exhibit 25(b)
FORM T-1
_
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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) |__|
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
GREEN MOUNTAIN POWER CORPORATION
(Exact name of obligor as specified in its charter)
Vermont 03-0127430
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
25 Green Mountain Drive
South Burlington, Vermont 05403
(Address of principal executive offices) (Zip code)
Unsecured Notes
(Title of the indenture securities)
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.
Name Address
Superintendent of Banks of the 2 Rector Street, New York,
State of New York N.Y. 10006, and Albany,
N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Washington, D.C. 20429
Corporation
New York Clearing House Association New York, New York
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 3.)
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as an exhibit hereto, pursuant to
Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and Rule
24 of the Commission's Rules of Practice.
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to
exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to
Form T-1 filed with Registration Statement No. 33-6215, Exhibits
1a and 1b to Form T-1 filed with Registration Statement No. 33-
21672 and Exhibit 1 to Form T-1 filed with Registration Statement
No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-
44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the
answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, 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 26th day of July, 1995.
THE BANK OF NEW YORK
By: /S/ Robert F. McIntyre
Name: Robert F. McIntyre
Title: Assistant Vice President
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business March
31, 1995, published 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 Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin . . . . . . . . . $ 3,575,856
Interest-bearing balances . . . . . 747,540
Securities:
Held-to-maturity securities . . . . 1,283,688
Available-for-sale securities . . . 1,615,292
Federal funds sold in domestic
offices of the bank . . . . . . . . 5,577,896
Loans and lease financing
receivables:
Loans and leases, net of unearned
income . . . . . . . . . . . . . 24,763,265
LESS: Allowance for loan and
lease losses . . . . . . . . . . 532,411
LESS: Allocated transfer risk
reserve . . . . . . . . . . . . . 28,558
Loans and leases, net of unearned
income, allowance, and reserve . 24,202,296
Assets held in trading accounts . . . 1,502,750
Premises and fixed assets (including
capitalized leases) . . . . . . . . 618,958
Other real estate owned . . . . . . . 47,755
Investments in unconsolidated
subsidiaries and associated
companies . . . . . . . . . . . . . 184,149
Customers' liability to this bank on
acceptances outstanding . . . . . . 1,018,696
Intangible assets . . . . . . . . . . 101,149
Other assets . . . . . . . . . . . . 1,227,291
Total assets . . . . . . . . . . . . $41,703,316
LIABILITIES
Deposits:
In domestic offices . . . . . . . . $18,543,633
Noninterest-bearing . . . . . . . . 6,949,896
Interest-bearing . . . . . . . . . 11,593,737
In foreign offices, Edge and
Agreement subsidiaries, and IBFs . 11,303,075
Noninterest-bearing . . . . . . . . 65,927
Interest-bearing . . . . . . . . . 11,237,148
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased . . . . . . 1,327,537
Securities sold under agreements
to repurchase . . . . . . . . . . 37,400
Demand notes issued to the U.S.
Treasury . . . . . . . . . . . . . 97,827
Trading liabilities . . . . . . . . . 1,349,293
Other borrowed money:
With original maturity of one year
or less . . . . . . . . . . . . . 2,027,148
With original maturity of more than
one year . . . . . . . . . . . . 313,877
Bank's liability on acceptances exe-
cuted and outstanding . . . . . . . 1,018,848
Subordinated notes and debentures . . 1,056,320
Other liabilities . . . . . . . . . . 1,435,093
Total liabilities . . . . . . . . . . 38,510,051
EQUITY CAPITAL
Common stock . . . . . . . . . . . . 942,284
Surplus . . . . . . . . . . . . . . . 525,666
Undivided profits and capital
reserves . . . . . . . . . . . . . 1,753,592
Net unrealized holding gains
(losses) on available-for-sale
securities . . . . . . . . . . . . ( 22,501)
Cumulative foreign currency transla-
tion adjustments . . . . . . . . . ( 5,776)
Total equity capital . . . . . . . . 3,193,265
Total liabilities and equity
capital . . . . . . . . . . . . . . $41,703,316
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition
has been prepared in conformance with the instructions issued by the
Board of Governors of the Federal Reserve System and is true to the best
of my knowledge and belief.
Robert E.
Keilman
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
instructions issued by the Board of Governors of the Federal Reserve
System and is true and correct.
J. Carter Bacot }
Thomas A. Renyi } Directors
Alan R. Griffith }
