Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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THE MONTANA POWER COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Montana 81-0170530
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
40 East Broadway
Butte, Montana 59701-9394
(406) 723-5421
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
DANIEL T. BERUBE JERROLD P. PEDERS0N ELLEN M. SENECHAL
Chairman of the Board Vice President and Treasurer
and Chief Executive Chief Financial and The Montana Power
Officer Information Officer Company
The Montana Power The Montana Power 40 East Broadway
Company Company Butte, Montana
40 East Broadway 40 East Broadway 59701-9394
Butte, Montana Butte, Montana (406) 723-5421
59701-9394 59701-9394
(406) 723-5421 (406) 723-5421
ROBERT G. SCHUUR, ESQ.
JOHN T. HOOD, ESQ.
Reid & Priest LLP
40 West 57th Street
New York, New York
10019
(212) 603-2000
(NAMES AND ADDRESSES, INCLUDING ZIP CODES, AND TELEPHONE NUMBERS, INCLUDING
AREA CODES, OF AGENTS FOR SERVICE)
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Copy to:
M. DOUGLAS DUNN, ESQ.
ROBERT B. WILLIAMS, ESQ.
Milbank, Tweed, Hadley & McCloy
1 Chase Manhattan Plaza
New York, New York 10005
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From
time to time after the registration statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
TITLE MAXIMUM MAXIMUM
OF EACH CLASS OF AMOUNT OFFERING AGGREGATE AMOUNT OF
SECURITIES TO BE TO BE PRICE OFFERING REGISTRATION
REGISTERED REGISTERED PER UNIT(1) PRICE(1) FEE
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Medium-Term
Notes,
Series B ........ $150,000,000 100% $150,000,000 $45,455
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(1) ESTIMATED SOLELY FOR THE PURPOSE OF CALCULATING THE
REGISTRATION FEE.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH
DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL
THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY
STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME
EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF
1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON
SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY
DETERMINE.
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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
JURISDICTION IN WHICH SUCH OFFER, SOLICITATION, OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE
SECURITIES LAWS OF ANY SUCH JURISDICTION.
SUBJECT TO COMPLETION, DATED DECEMBER , 1996
$150,000,000
THE MONTANA POWER COMPANY
MEDIUM-TERM NOTES, SERIES B
DUE FROM 9 MONTHS TO 40 YEARS FROM DATE OF ISSUE
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The Montana Power Company (the "Company") may offer from time to time
up to $150,000,000 aggregate principal amount of its unsecured Medium-Term
Notes, Series B (the "Notes"), on terms to be determined at the time of
sale. The principal amounts, issue prices, original issue and maturity
dates, interest rates and interest payment dates, redemption or repayment
provisions, if any, and other material terms of the Notes will be set forth
in Pricing Supplements hereto. Each Note will bear interest at a fixed
rate and will mature from nine months to 40 years from its date of issue,
as selected by the purchasers and agreed to by the Company.
The Notes will be represented by either Global Notes, representing
beneficial interests in the Notes, registered in the name of a nominee of
The Depository Trust Company, as Depositary, or certificates issued in
definitive form, as specified in the applicable Pricing Supplement.
Beneficial interests in the Notes will be shown on, and transfers thereof
will be effected only through, records maintained by The Depository Trust
Company and its participants. Beneficial interests will be exchanged for
Notes in definitive form only under the limited circumstances described
herein under "Book-Entry System."
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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.
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PRICE AGENTS' PROCEEDS TO
TO PUBLIC(1) COMMISSIONS(2) COMPANY(2)(3)
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Per Note . . 100% .125%-.750% 99.875%-99.250%
$187,500- $149,812,500-
Total . . . . $150,000,000 $1,125,000 $148,875,000
(1) Unless otherwise specified in the applicable Pricing
Supplement, the price to the public will be 100% of the
principal amount.
(2) The Company will pay to the Agents a commission of from
.125% to .750%, depending on maturity, of the principal
amount of any Note sold through them as agents. Unless
otherwise specified in the applicable Pricing Supplement,
any Note sold to an Agent as principal will be purchased by
such Agent at a price equal to 100% of the principal amount
thereof less a percentage equal to the applicable
commission, and may be resold by such Agent to investors or
other purchasers at varying prices related to prevailing
market prices at the time of resale to be determined by such
Agent or, if so agreed, at a fixed offering price. The
Company may also sell Notes directly to investors in which
case no commission will be payable. The Company has agreed
to indemnify the Agents against certain liabilities,
including liabilities under the Securities Act of 1933. See
"Plan of Distribution."
(3) Before deduction of expenses payable by the Company
estimated at $225,000, including reimbursement of certain
expenses of the Agents.
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Offers to purchase Notes are being solicited, on a reasonable
best efforts basis, from time to time by the Agents on behalf of the
Company. Notes may be sold to the Agents on their own behalf at negotiated
discounts. The Company reserves the right to sell Notes directly to
investors on its own behalf. The Company reserves the right to withdraw,
cancel or modify the offering contemplated hereby without notice. The
Company or an Agent may reject an offer as a whole or in part. See "Plan
of Distribution".
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GOLDMAN, SACHS & CO.
J. P. MORGAN & CO.
LEHMAN BROTHERS
MORGAN STANLEY & CO.
INCORPORATED
The date of this Prospectus is , 199 .
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IN CONNECTION WITH THE DISTRIBUTION OF NOTES UNDERWRITTEN BY AN AGENT
ACTING AS PRINCIPAL, SUCH AGENT MAY OVER-ALLOT OR EFFECT TRANSACTIONS WHICH
STABILIZE OR MAINTAIN THE MARKET PRICE OF THE NOTES OFFERED HEREBY AT
LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH
TRANSACTIONS MAY BE EFFECTED ON ANY OVER-THE-COUNTER MARKET OR OTHERWISE,
AND, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Securities and
Exchange Commission ("Commission") pursuant to the Securities Exchange Act
of 1934, as amended ("1934 Act"), are incorporated herein by reference:
1. Annual Report on Form 10-K for the year ended December 31,
1995 ("1995 10-K").
2. Quarterly Reports on Form 10-Q for the quarters ended March
31, June 30, and September 30, 1996.
3. Current Reports on Form 8-K, dated January 5, January 23,
April 10, April 23, July 24, and October 22, 1996.
All documents subsequently filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the 1934 Act prior to the termination of the
offering hereunder shall be deemed to be incorporated by reference in this
Prospectus and to be a part hereof from the date of filing of such
documents. The documents which are incorporated by reference in this
Prospectus are sometimes hereinafter referred to as the "Incorporated
Documents."
Any statement contained in an Incorporated Document 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 is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such 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
has been delivered, on the written or oral request of any such person, a
copy of any or all of the documents referred to above 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). Requests should be directed to Investor
Services, The Montana Power Company, 40 East Broadway, Butte, Montana
59701-9394, telephone (406) 496-5074.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the 1934
Act and in accordance therewith files reports and other information with
the Commission. Such reports and other information filed by the Company
can be inspected and copied at the public reference facilities maintained
by the Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C.
20549, and at the following Regional Offices of the Commission: Chicago
Regional Office, Citicorp Center, 500 West Madison, Suite 1400, Chicago,
Illinois 60661; and New York Regional Office, 7 World Trade Center, 13th
Floor, New York, New York 10048. Copies of such material can also be
obtained from the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549 at prescribed rates. The Commission
also maintains a web site (http://www.sec.gov.) that contains reports,
proxy statements and other information regarding the Company. The Common
Shares of the Company are listed on the New York and Pacific Stock
Exchanges, where reports and other information concerning the Company may
be inspected.
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THE COMPANY
The Company and its subsidiaries conduct a number of diversified, but
related businesses. The Company's principal business is its Montana
electric and natural gas utility operation, which is conducted through both
its Energy Supply Division and its Energy and Communications Services
Division. This activity includes regulated utility operations involved in
the generation, purchase, transmission, and distribution of electricity,
and the production, purchase, transportation and distribution of natural
gas. The Company's non-regulated businesses are involved principally in
the mining and sale of coal; exploration for, and the development,
production, processing and sale of oil and natural gas; the sale of
telecommunication equipment and services; and independent power activities
that include the management of long-term power sales, and the development
of and investment in nonutility power projects and other energy-related
businesses. The Company was incorporated in 1961 under the laws of the
State of Montana, where its principal business is conducted, as the
successor to a New Jersey corporation incorporated in 1912. The principal
executive offices of the Company are located at 40 East Broadway, Butte,
Montana 59701-9394. Its telephone number is (406) 723-5421.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the Company's historical ratio of
earnings to fixed charges for each of the periods presented:
Twelve
Months Ended
September 30, Years Ended December 31,
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1996 1995 1994 1993 1992 1991
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2.29(1) 1.96(1) 3.05 2.86 2.74 2.70
For purposes of computing the ratio of earnings to fixed charges,
earnings consist of net income plus current and deferred income taxes and
fixed charges. Fixed charges include interest and related amortization of
discount and premium on long-term debt and interest on short-term
borrowings. Fixed charges also include the implicit interest component of
the rental cost of the Company's share of
Colstrip Unit No. 4 and one-third of all rentals, excluding delay rentals
and rentals on joint-use property.
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(1) Excluding the effects of the implementation of SFAS No. 121 and the
writedown of a coal mining investment, effective October 1, 1995, the
ratio of earnings to fixed charges would have been 2.84x at December
31, 1995 and 3.16x at September 30, 1996.
USE OF PROCEEDS
Unless otherwise specified in the applicable Pricing Supplement, the
net proceeds received by the Company from the sale of the Notes offered
hereby will be used for general corporate purposes, including the
redemption, repayment or retirement of outstanding indebtedness of the
Company and the payment of expenditures relating to the Company's
construction program, including the repayment of short-term debt incurred
in connection with any of the foregoing. To the extent that the proceeds
from the sale of the Notes are not immediately so used, they will be
temporarily invested in short-term, interest-bearing obligations.
DESCRIPTION OF THE NOTES
The Notes will be issued under an Indenture, dated as of December 1,
1989 (such Indenture, originally executed and delivered and as thereafter
supplemented and amended, together with any constituent instruments
establishing the terms of particular Securities (as hereinafter defined),
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being herein called the "Indenture"), between the Company and Citibank,
N.A., as trustee (the "Trustee"). The statements under this heading do not
purport to be complete and are subject to the detailed provisions of the
Indenture, a copy of which has been filed as an exhibit to the Registration
Statement of which this Prospectus is a part. Wherever particular
provisions of the Indenture or terms defined therein are referred to, such
provisions or definitions are incorporated by reference as a part of the
statements made herein and such statements are qualified in their entirety
by such reference.
GENERAL
The Indenture provides that, in addition to the Notes offered hereby,
additional debt securities (including both interest-bearing and original
issue discount securities) may be issued thereunder without limitation as
to the aggregate principal amount (Indenture, Section 301). The Notes and
all other debt securities hereafter issued under the Indenture are
collectively referred to as the "Securities". The Indenture does not limit
the amount of other debt, secured or unsecured, which may be issued by the
Company.
THE NOTES
All of the Notes will be unsecured and will rank pari passu with all
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other unsecured and unsubordinated indebtedness of the Company.
Substantially all of the Company's utility assets are subject to the lien
of its Mortgage and Deed of Trust securing its First Mortgage Bonds now or
hereafter to be outstanding.
Unless otherwise indicated in the applicable Pricing Supplement and
except under the circumstances described under "Book-Entry System" herein,
the Notes will be issued as one or more global notes (each a "Global
Note"), each of which will represent beneficial interests in such Notes
(each such beneficial interest being referred to herein as a "Book-Entry
Note"). All Book-Entry Notes having the same Original Issue Date (as
hereinafter defined), maturity date, redemption and repayment provisions
and interest rate will be represented by a single Global Note. Each Global
Note will be deposited with, or on behalf of, The Depository Trust Company
("DTC"), or such other depository as may be subsequently designated (the
"Depository") and registered in the name of a nominee of the Depository.
Beneficial interests in the Notes will be shown on and transfers thereof
will be effected through the records maintained by the Depository and its
participants. Beneficial interests will be exchanged for Notes in
definitive form only under the limited circumstances described under "Book-
Entry System." Unless otherwise indicated in the applicable Pricing
Supplement, Notes will be issued in denominations of $1,000 or any integral
multiple thereof.
The Notes will be offered on a continuous basis, will mature from nine
months to 40 years from their date of issue, and may be subject to
redemption at the option of the Company or be repayable by the Company at
the option of the registered holder (the "Holder") prior to maturity.
The Pricing Supplement with respect to each Note will describe the
following terms: (1) the price (expressed as a percentage of the aggregate
principal amount thereof) at which such Note will be issued; (2) the date
on which such Note will be issued (the "Original Issue Date"); (3) the date
on which such Note will mature; (4) the rate per annum at which such Note
will bear interest; (5) the date or dates from which any such interest
shall accrue; (6) the dates on which such interest will be payable (each an
"Interest Payment Date"); (7) if such Note may be redeemed at the option of
the Company, or repaid at the option of the Holder, prior to its maturity
date, a description of the terms for such redemption or repayment; and (8)
any other material terms of such Note.
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PAYMENT OF NOTES
Each Note will bear interest from its Original Issue Date or from
the most recent Interest Payment Date to which interest has been paid
or duly provided for until the principal amount thereof shall have
been paid or made available for payment. Interest on each Note will be
payable semi-annually on each Interest Payment Date, and at maturity;
provided, however, that the first payment of interest on any Note with an
Original Issue Date between a Record Date (as hereinafter defined) and an
Interest Payment Date shall be made on the second Interest Payment Date
succeeding the Original Issue Date, as specified in the applicable Pricing
Supplement.
Interest in respect of Book-Entry Notes will be payable by the Company
to the Depository and by the Depository to its Direct Participants (as
hereinafter defined). Payments to the holders of Book-Entry Notes will be
the responsibility of Direct and Indirect Participants (as hereinafter
defined). See "Book-Entry System" herein.
Interest payable on certificated Notes will be payable to the person
in whose name such Notes are registered at the close of business on the
Record Date with respect to each Interest Payment Date; provided, however,
that interest payable at maturity will be payable to the person to whom
principal shall be payable.
Unless otherwise specified in the applicable Pricing Supplement, (i)
the Record Date shall be the fifteenth calendar day preceding an Interest
Payment Date and (ii) interest on each Note will be computed on the basis
of a 360-day year or twelve 30-day months.
In case any Interest Payment Date, redemption or repayment date or
maturity date is not a Business Day, payment of the amounts due on such
date may be made on the next succeeding Business Day, and no interest will
accrue on such amounts for the period from and after such Interest Payment
Date, redemption or repayment date or maturity date, as the case may be
(Indenture, Section 107).
REDEMPTION
Any terms for optional or mandatory redemptions of Notes, including
any sinking fund or analogous provisions for the retirement of the Notes,
will be set forth in the Pricing Supplement. If redeemable, such Notes
will be redeemed only upon notice, by mail, not less than 30 nor more than
60 days prior to the date fixed for redemption. Any notice of optional
redemption 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 principal of, and the premium, if any, and
interest on, such Notes and that if such money has not been so received,
such notice will be of no force or effect and the Company will not be
required to redeem such Notes (Indenture, Section 404).
REPAYMENT AT THE OPTION OF THE HOLDER
If so specified in the applicable Pricing Supplement, the Notes
will be repayable by the Company in whole or in part at the option of the
Holders thereof on the date or dates specified in such Pricing Supplement,
at 100% of their principal amount, together with accrued interest to the
date of repayment. For any Note to be repaid, the Company must receive such
Note at its office or agency in the Borough of Manhattan, The City of New
York (currently, the office of the Trustee), within the election period
specified in the Pricing Supplement, together with the form entitled
"Option to Elect Repayment" on the reverse of, or otherwise accompanying,
such Note duly completed. Any such election so received by the Company
within such period shall be irrevocable. The repayment option may be
exercised by the Holder of a Note for less than the entire principal amount
of such Note, provided that the principal amount to be repaid is equal to
$1,000 or an integral multiple of $1,000. All questions as to the
validity, eligibility (including time of receipt) and acceptance of any
Note for repayment will be determined by the Trustee and the Company, whose
determination will be final and binding.
So long as the Depository or the Depository's nominee is the Holder of
the Notes, the Depository or such nominee will be the only entity that can
exercise the repayment option, and repayment will be made in accordance
with the Depository's repayment procedures in effect at the time. See
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"Book-Entry System" herein. In order to ensure that the Depository or its
nominee will timely exercise a repayment option with respect to a
particular beneficial interest in the Notes, the Beneficial Owner of such
interest must instruct the broker or other Direct or Indirect Participant
through which it holds such interest to notify the Depository of its
election to exercise the repayment option. In addition, the Beneficial
Owner must effect delivery of such interest at the time such notice of
election is given to the Depository by causing the broker or other Direct
or Indirect Participant through which it holds such interest to transfer
such interest on the Depository's records to the Trustee. Different firms
have different deadlines for accepting instructions from their customers
and, accordingly, each Beneficial Owner should consult the broker or other
Direct or Indirect Participant through which it holds an interest in the
Notes in order to ascertain the deadline by which such instruction must be
given in order for timely notice to be delivered to the Depository.
EVENTS OF DEFAULT
The following constitute Events of Default under the Indenture with
respect to the Notes (which constitute a series of the Securities) and to
each other series of the Securities outstanding thereunder:
(a) failure to pay any interest on any Security of such series within
60 days after the same shall become due and payable;
(b) failure to pay the principal of or premium, if any, on any
Security of such series within 3 Business Days after the same
shall become due and payable, whether at a Maturity Date, upon
redemption (including redemptions pursuant to any sinking fund or
analogous provision for the retirement of any Security), by
declaration of acceleration or otherwise;
(c) failure to perform or a breach of any covenant or warranty of the
Company in the Indenture (other than a covenant or warranty
solely for the benefit of one or more series of Securities other
than such series) 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 25% in principal amount of the Securities of such
series outstanding under the Indenture as provided in the
Indenture;
(d) default under any bond, debenture, note or other evidence of
indebtedness of the Company for borrowed money (including
Securities of other series issued under the Indenture) or under
any mortgage, indenture or other instrument securing or
evidencing any indebtedness of the Company for borrowed money,
which default (1) shall constitute a failure to make any payment
in excess of $5,000,000 of the principal of, or interest on, such
indebtedness or (2) shall have resulted in such indebtedness in
an amount in excess of $10,000,000 becoming or being declared due
and payable prior to the date on which it would otherwise have
become due and payable, in either case without such payment
having been made, such indebtedness having been discharged, or
such acceleration having been rescinded or annulled, within a
period of 90 days after written notice to the Company by the
Trustee or to the Company and the Trustee by the Holders of at
least 25% in principal amount of the Securities of such series
outstanding under the Indenture as provided in the Indenture;
(e) certain events of bankruptcy, insolvency or reorganization; and
(f) any other Event of Default specified with respect to Securities
of such series (Indenture, Section 801).
No Event of Default with respect to any series of the Securities
necessarily will constitute an Event of Default with respect to any other
series.
REMEDIES
If an Event of Default with respect to any series of any Securities
shall have occurred and be continuing, then either the Trustee or the
Holders of not less than 33% in principal amount of the outstanding
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Securities of such series may declare the principal amount of all of the
Securities of such series to be due and payable immediately; provided,
however, that if any Event of Default occurs and is 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, shall have the right to make
such declaration of acceleration, and not the Holders of the Securities of
any one of such series (Indenture, Section 802).
At any time after the declaration of acceleration with respect to the
Securities of any series shall have been made and before a judgment or
decree for payment of the money due shall have been obtained, the Event 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 Securities
of such series; (2) the principal of and premium, if any, on any Securities
of such series which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates prescribed therefor
in such Securities; (3) interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, to the extent that payment of such
interest is lawful; and (4) all compensation and reimbursement due to the
Trustee under the Indenture; and (b) any other Event or Events of Default
with respect to the Securities of such series, other than the nonpayment of
the principal of Securities of such series which has become due solely by
such declaration of acceleration, have been cured or waived as provided in
the Indenture (Indenture, Section 802).
If an Event of Default with respect to the Securities of any series
shall have occurred and be continuing, the Holders of a majority in
principal amount of the outstanding Securities of such series will have the
right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, with respect to the Securities of such series;
provided, however, that if an Event of Default shall have occurred and be
continuing with respect to more than one 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) any such direction will not be in
conflict with any rule of law or with the Indenture and could not involve
the Trustee in personal liability in circumstances where indemnity would
not, in the Trustee's sole discretion, be adequate, and (b) the Trustee may
take any other action it deems proper which is not inconsistent with such
direction (Indenture, Section 812).
The right of a Holder of any Security of such series to institute a
proceeding with respect to the Indenture is subject to certain conditions
precedent, but each Holder has an absolute right to receive payment of
principal, premium, if any, and interest, if any, when due and to institute
suit for the enforcement of any such payment (Indenture, Sections 807 and
808).
The Indenture provides that the Trustee, within 90 days after the
occurrence of any default known to it thereunder with respect to the
Securities of a series, is required to give the Holders of the Securities
of such series notice of any default, unless cured or waived; provided,
however, that except in the case of a default in the payment of principal
of or premium or interest, if any, on any Securities of such series, the
Trustee may withhold such notice if the Trustee determines that it is in
the interest of such Holders to do so; and provided, further, that in the
case of an Event of Default of the character specified above in clause (c)
under "Events of Default", no such notice shall be given to such Holders
until at least 30 days after the occurrence thereof (Indenture, Section
902).
The Company will be required to furnish annually to the Trustee a
statement as to the performance by the Company of certain of its
obligations under the Indenture and as to any Event of Default thereunder
(Indenture, Section 605).
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
The Company will 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
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formed by such consolidation or into which the Company is merged or the
Person which acquires by conveyance or transfer, or which leases, the
property and assets of the Company substantially as an entirety is a Person
organized and existing under the laws of the United States of America, any
state thereof or the District of Columbia, and such Person shall expressly
assume, by a supplemental indenture, the due and punctual payment of the
principal of and premium and interest, if any, on all of the Securities
outstanding under the Indenture and the performance of all of the covenants
of the Company under the Indenture, (b) immediately after giving effect to
such transaction no Event of Default, and no event which after notice or
lapse of time or both would become an Event of Default, will have occurred
and be continuing, and (c) the Company shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel confirming that such
transaction is in compliance with the Indenture (Indenture, Section 1101).
MODIFICATION OF INDENTURE
Without the consent of any Holders, the Company and the Trustee may
enter into one or more supplemental indentures 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 in the Indenture and the Securities; or
(b) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities or tranche thereof or
to surrender any right or power conferred upon the Company by the
Indenture; or
(c) to add any additional Event of Default with respect to all or any
series of outstanding Securities; or
(d) to change or eliminate any provision of, or to add any new
provision to, the Indenture; provided that if such change,
elimination or addition will materially and adversely affect the
interests of the Holders of Securities of any series or tranche
thereof, such change, elimination or addition will become
effective with respect to such Securities only when they shall no
longer remain 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 thereof as contemplated by the Indenture; or
(g) to evidence and provide for acceptance of the appointment of a
separate or successor trustee under the Indenture with respect to
the Securities of one or more series and to add to or change any
of the provisions of the Indenture as shall be necessary to
provide for or to facilitate the administration of the trusts
under the Indenture by more than one Trustee; or
(h) to provide for the procedures required to permit the utilization
of a noncertificated system of registration for any Securities;
or
(i) to cure any ambiguity, defect or inconsistency or to make any
other provisions with respect to matters and questions arising
under the Indenture, provided such action or other provisions
shall not adversely affect the interests of the Holders of
Securities of any series or tranche thereof in any material
respect (Indenture, Section 1201).
Other than as stated in the preceding paragraph, the consent of the
Holders or not less than a majority in principal amount of the Securities
of all series then outstanding under the Indenture, considered as one
class, is required for the purpose of adding any provisions to, or changing
in any manner or eliminating any of the provisions of, the Indenture
pursuant to a supplemental indenture; provided, however, that if less than
all of the series of Securities outstanding under the Indenture are
directly affected by a supplemental indenture, 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,
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<PAGE>
will 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 directly affected thereby,
(a) change the stated maturity of, or any installment of principal of or
interest on, any Security, or reduce the principal thereof or the rate of
interest, or redemption premium thereon, or change the method of
calculating the rate of interest thereon, or otherwise change the terms of
the payment or place of payment of the principal thereof or interest or
redemption premium thereon, (b) reduce the percentage in principal amount
of the outstanding Securities of such series or tranche thereof required to
consent to any supplemental indenture or waiver under the Indenture or to
reduce the requirements for quorum and voting, (c) change any obligation of
the Company to maintain an office or agency at the place or places where
the principal of and premium and interest, if any, on the Securities of
such series are payable, or (d) modify certain of the provisions in the
Indenture relating to supplemental indentures and waivers of past defaults
(Indenture, Section 1202).
A supplemental indenture which changes or eliminates any covenant or
other provision of, or adds any new covenant or other provision to, the
Indenture which has expressly been included solely for the benefit of one
or more particular series of Securities or tranche thereof, or which
modifies the rights of the holders of Securities of such series or tranche
thereof with respect to such covenant or other provision, shall be deemed
not to affect the rights under the Indenture of the Holders of any
Securities of any other series or tranche thereof (Indenture, Section
1202).
DEFEASANCE
The Notes, or any portion of the principal amount thereof, will, at or
prior to the maturity thereof, be deemed to have been paid for purposes of
the Indenture (except as to any surviving rights such as rights of
registrations of transfer or exchange expressly provided for in the
Indenture), and the entire indebtedness of the Company in respect thereof
will 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 will be sufficient, or (b) Government Obligations (as defined
below), which do 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 monies which, together with the money, if any,
deposited with or held by the Trustee, will be sufficient, or (c) a
combination of (a) and (b) which will be sufficient, to pay when due the
principal of and premium and interest, if any, due and to become due on the
Notes or such portion thereof on and prior to the maturity thereof,
together with an opinion of counsel to the effect that such deposit and
satisfaction and discharge shall not be deemed to be, or result in, a
taxable event to the Holders of such Notes or portions thereof for purposes
of Federal income taxes. "Government Obligations" means direct obligations
of, or obligations unconditionally guaranteed by, the United States of
America entitled to the benefit of the full faith and credit thereof, and
certificates, depositary receipts or other instruments which evidence a
direct ownership interest in such obligations or in any specific interest
or principal payments due in respect thereof (Indenture, Sections 101 and
701).
CONCERNING THE TRUSTEE
The Indenture grants to the Trustee a lien, superior to the rights of
the Holders of the Securities, on funds and property held by the Trustee
under the Indenture (other than funds and property held for the payment of
Securities which shall have been defeased) as security for the payment of
its fees and expenses as Trustee.
Citibank, N.A., together with certain other banks, is a party to
certain Credit Agreements with the Company and with its subsidiary, Entech,
Inc., pursuant to which Citibank and such other banks have lent money to
the Company and such subsidiary.
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<PAGE>
LISTING
The Notes will not be listed on any national or regional securities
exchange.
BOOK-ENTRY SYSTEM
So long as the Depository, or its nominee, is the registered holder of
a Global Note, such Depository or its nominee, as the case may be, will be
considered the Holder of such Global Note for all purposes under the
Indenture, including notices and voting. Payments of principal of, and
premium, if any, and interest on, the Global Note will be made to the
Depository or its nominee, as the case may be. Accordingly, each person
owning a beneficial interest in a Global Note must rely on the procedures
of the Depository and if such person is not a Direct Participant, on
procedures of the Direct Participant through which such person holds its
interest, to exercise the rights of a Holder of such Note under the
Indenture.
The following is based solely on information furnished by DTC:
DTC will act a securities depositary for the Notes. The Notes
initially will be issued only as fully-registered securities registered in
the name of Cede & Co. (DTC's nominee).
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 1934 Act. DTC holds securities that its participants ("Participants")
deposit with DTC. DTC also facilitates the settlement among Participants
of securities transactions, such as transfers 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 NYSE, 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 transactions through or maintain a
direct or indirect custodial relationship with a Direct Participant either
directly or indirectly ("Indirect Participants"). The rules applicable to
DTC and its Direct Participants and Indirect Participants are on file with
the Commission.
Purchases of Notes within the DTC system must be made by or through
Direct Participants, which will receive a credit for the Notes on DTC's
records. The ownership interest of each actual purchaser of each Note (a
"Beneficial Owner") is in turn to be recorded on the Participants' records.
Beneficial Owners will not receive written confirmation from DTC of their
purchases, but Beneficial Owners are expected to receive written
confirmations providing details of the transactions, as well as periodic
statements of their holdings, from the Participants through which the
Beneficial Owners purchased Notes. Transfers of ownership interests in the
Notes 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 Notes, except in
the event that use of the book-entry system for the Notes is discontinued.
To facilitate subsequent transfers, all Global Notes deposited by
Direct Participants with DTC are registered in the name of DTC's nominee,
Cede & Co. The deposit of Global Notes 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 Notes. DTC's records
reflect only the identity of the Direct Participants to whose accounts such
Notes 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
Participants and Indirect Participants to Beneficial Owners will be
- 10 -
<PAGE>
governed by arrangements among them, subject to any statutory or regulatory
requirements that may be in effect from time to time.
Redemption notices shall be sent to Cede & Co. If less than all of
the Notes 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 itself consent or vote with respect to
Notes. Under its usual procedures, DTC would mail 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 Notes are credited on the record date
(identified in a listing attached to the Omnibus Proxy).
Principal and interest payments on the Notes will be made to DTC.
DTC's practice is to credit Direct Participants' accounts on the relevant
payment date in accordance with their respective holdings shown on DTC's
records unless DTC has reason to believe that it will not receive payments
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 account of customers in bearer form or
registered in "street name," and such payments will be the responsibility
of such Participant and not of DTC, the Agents or the Company, subject to
any statutory or regulatory requirements to the contrary that may be in
effect from time to time. Payment of principal and interest to DTC is the
responsibility of the Trustee, disbursement of such payments to Direct
Participants is the responsibility of DTC, and disbursement of such
payments to the Beneficial Owners is the responsibility of Participants.
DTC may discontinue providing its services as securities depositary
with respect to the Notes at any time by giving reasonable notice to the
Company and the Trustee. Additionally, the Company may decide to
discontinue use of the system of book-entry transfers through DTC with
respect to the Notes. Under such circumstances, in the event that a
successor securities depositary should not be obtained, Notes in
certificated form would be printed and delivered.
The information in this section concerning DTC and DTC's book-entry
system has been obtained from sources that the Company believes to be
reliable, but the Company takes no responsibility for the accuracy thereof.
- 11 -
<PAGE>
LEGAL MATTERS
The validity of the Notes offered hereby will be passed upon for the
Company by Michael E. Zimmerman, Esq., General Counsel of the Company and
by Reid & Priest LLP, New York, New York, and for the Agents by Milbank,
Tweed, Hadley & McCloy, New York, New York. However, all matters of
Montana law will be passed upon only by Mr. Zimmerman.
EXPERTS
The consolidated financial statements incorporated in this Prospectus
by reference to the Company's Annual Report on Form 10-K for the year ended
December 31, 1995, have been so incorporated in reliance on the report of
Price Waterhouse LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
The statements made as to matters of law and legal conclusions under
"Business Utility Division Regulation and Rates" and "Business Environment"
in the Company's Annual Report on Form 10-K incorporated herein by
reference have been reviewed by Michael E. Zimmerman, Esq., General Counsel
of the Company, and are set forth therein and herein upon the authority of
such Counsel as expert. As of September 30, 1996, Mr. Zimmerman owned
2,762 shares of the Company's common stock and held options to purchase
24,200 additional shares at the market price existing on the date of grant.
Mr. Zimmerman's shares of common stock, including the shares subject to
option, have a current fair market value of approximately $576,300.
PLAN OF DISTRIBUTION
Subject to the terms and conditions set forth in the Distribution
Agreement with respect to the Notes (the "Distribution Agreement"), the
Notes will be offered on a continuing basis by the Company through Goldman
Sachs & Co., J. P. Morgan Securities Inc., Lehman Brothers Inc. and Morgan
Stanley & Co. Incorporated (the "Agents") who have agreed to use reasonable
best efforts to solicit purchases of the Notes. The Company has reserved
the right to appoint other agents, dealers or underwriters as Agents under
the Distribution Agreement or as Agents with respect to a particular
issuance of Notes. Any such additional Agents will enjoy all the rights and
benefits, and be subject to all of the obligations, of an Agent as set
forth in the Distribution Agreement.
The Company will have the sole right to accept offers to purchase
Notes and may reject any proposed purchase of Notes in whole or in part.
The Agents shall have the right in their discretion reasonably exercised,
to reject any offer to purchase Notes, in whole or in part. The Company
will pay the Agents a commission of from .125% to .750% of the principal
amount of Notes, depending upon maturity, for sales made through them as
Agents (except that the Company and any Agent may agree to a higher
commission for sales of Notes with maturities in excess of 30 years).
The Company may also sell Notes to the Agents as principals for their
own accounts at a discount to be agreed upon at the time of sale, or the
purchasing Agents may receive from the Company a commission or discount
equivalent to that set forth on the cover page hereof in the case of any
such principal transaction in which no other discount is agreed upon. Such
Notes may be resold to investors and other purchasers at varying prices
related to prevailing market prices at the time of such resale, as
determined by the Agents or, if so agreed, at a fixed public offering
price. The Company reserves the right to sell Notes directly on its own
behalf. No commission will be payable on any Notes sold directly by the
Company.
In addition, the Agents may offer the Notes they have purchased as
principal to other dealers. The Agents may sell Notes to any dealer at a
discount and, unless otherwise specified in the applicable Pricing
Supplement, such discount allowed to any dealer may include all or part of
the discount to be received from the Company. Unless otherwise indicated in
the applicable Pricing Supplement, any Note sold to an Agent as principal
will be purchased by such Agent at a price equal to 100% of the principal
amount thereof less a percentage equal to the commission applicable to any
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<PAGE>
agency sale of a Note of identical maturity. After the initial public
offering of Notes to be resold to investors and other purchasers, the
public offering price (in the case of Notes to be resold at a fixed public
offering price), concession and discount may be changed.
The Agents, as agents or principals, may be deemed to be
"underwriters" within the meaning of the Securities Act of 1933 (the
"Act"). The Company has agreed to indemnify the Agents against certain
liabilities, including liabilities under the Act. The Company has agreed to
reimburse the Agents for certain expenses.
The Agents may sell Notes to or through dealers who may resell to
investors, and the Agents may pay all or part of their discount or
commission to such dealers. Such dealers may be deemed to be "underwriters"
within the meaning of the Act.
Unless otherwise indicated in the applicable Pricing Supplement,
payment of the purchase price of Notes will be required to be made in
immediately available funds in The City of New York.
Goldman, Sachs & Co., J. P. Morgan Securities Inc., Lehman Brothers
Inc. and Morgan Stanley & Co. Incorporated and other Agents, if any, may be
customers of, engage in transactions with, and perform services for the
Company in the ordinary course of business.
The Notes are a new issue of securities with no established trading
market and will not be listed on any securities exchange. It has not
presently been established whether any Agent acting as principal will make
a market in such securities. If a market in the Notes is made by an Agent,
such market making may be discontinued at any time without notice. No
assurance can be given as to the existence or liquidity of the secondary
market for the Notes.
DELAYED DELIVERY ARRANGEMENTS
If so indicated in a Prospectus Supplement relating to the Notes, the
Company will authorize dealers or other persons acting as the Company's
agents to solicit offers by certain institutions to purchase the Notes from
the Company pursuant to contracts providing for payment and delivery on a
future date. Institutions with which such contracts may be made include
commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions and others,
but in all cases such institutions must be approved by the Company. The
obligations of any purchaser under any such contract will not be subject to
any conditions except that the purchase of the Notes shall not at the time
of delivery be prohibited under the laws of the jurisdiction to which such
purchaser is subject. The dealers and such other persons will not have any
responsibility in respect of the validity or performance of such contracts.
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<PAGE>
=========================================================================
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS OR THE
DOCUMENTS INCORPORATED BY REFERENCE HEREIN IN CONNECTION WITH THE OFFER
CONTAINED HEREIN AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS
MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR THE
AGENTS. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE SECURITIES
DESCRIBED IN THIS PROSPECTUS OR AN OFFER TO SELL OR THE SOLICITATION OF ANY
OFFER TO BUY SUCH SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR
SOLICITATION IS UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY
SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION
THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE
HEREOF OR THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO ITS DATE.
---------------------------
TABLE OF CONTENTS
Prospectus
PAGE
----
Incorporation of Certain Documents
by Reference . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Available Information . . . . . . . . . . . . . . . . . . . . . . . 2
The Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Ratio of Earnings to Fixed Charges . . . . . . . . . . . . . . . . 3
Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Description of the Notes . . . . . . . . . . . . . . . . . . . . . 3
Book-Entry System . . . . . . . . . . . . . . . . . . . . . . . . . 10
Legal Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Plan of Distribution . . . . . . . . . . . . . . . . . . . . . . . 12
=========================================================================
=========================================================================
$150,000,000
THE MONTANA POWER
COMPANY
MEDIUM-TERM NOTES,
SERIES B
DUE FROM 9 MONTHS TO 40 YEARS
FROM DATE OF ISSUE
----------------
PROSPECTUS
----------------
GOLDMAN, SACHS & CO.
J.P. MORGAN & CO.
LEHMAN BROTHERS
MORGAN STANLEY & CO.
INCORPORATED
=========================================================================
<PAGE>
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses payable by the Company in
connection with the issuance and distribution of the securities to be
registered.
Filing fee Securities and Exchange Commission . . . . . . $45,455*
Fees of the Trustee . . . . . . . . . . . . . . . . . . . . 5,000
Legal fees . . . . . . . . . . . . . . . . . . . . . . . . 55,000
Auditors' fees . . . . . . . . . . . . . . . . . . . . . . . 20,000
Rating agencies' fees . . . . . . . . . . . . . . . . . . . 50,000
Printing fees . . . . . . . . . . . . . . . . . . . . . . . 8,000
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . 41,545
------
Total expenses . . . . . . . . . . . . . . . . . . . . . . $225,000
========
---------------------
* Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The By-laws of the Company provide for the indemnification of
directors and officers to the extent and in the manner provided in Sections
35-1-451 through 35-1-457, Montana Code Annotated, which Sections are as
follows:
35-1-451. Definitions. As used in 35-1-451 through 35-1-459, the
following definitions apply:
(1) "Corporation" includes any domestic or foreign predecessor entity
of a corporation in a merger or other transaction in which the
predecessor's existence ceased upon consummation of the transaction.
(2) (a) "Director" means an individual who is or was a director of a
corporation or an individual who, while a director of a corporation, is or
was serving at the corporation's request as a director, officer, partner,
trustee, employee, or agent of another foreign or domestic corporation,
partnership, joint venture, trust, employee benefit plan, or other
enterprise. A director is considered to be serving an employee benefit
plan at the corporation's request if the director's duties to the
corporation include duties or services by him to the plan or to
participants in or beneficiaries of the plan.
(b) Director includes, unless the context requires otherwise,
the estate or personal representative of a director.
(3) "Expenses" include attorneys' fees.
(4) "Liability" means the obligation to pay a judgment, settlement,
penalty, or fine, including an excise tax assessed with respect to an
employee benefit plan, or to pay reasonable expenses incurred with respect
to a proceeding.
(5) (a) "Official capacity" means:
(i) when used with respect to a director, the office of
director in a corporation; or
(ii) when used with respect to an individual other than
a director, as contemplated in 35-1-457, the office in a
corporation held by the officer or the employment or agency
relationship undertaken by the employee or agent on behalf
of the corporation.
(b) Official capacity does not include service for any other
foreign or domestic corporation or any partnership, joint venture, trust,
employee benefit plan, or other enterprise.
(6) "Party" includes an individual who was, is, or is threatened to
be made a named defendant or respondent in a proceeding.
II-1
<PAGE>
(7) "Proceeding" means any threatened, pending, or completed action,
suit, or proceeding, whether civil, criminal, administrative or
investigative and whether formal or informal.
35-1-452. Authority to indemnify.
(1) Except as provided in subsection (4), an individual made a party
to a proceeding because he is or was a director may be indemnified against
liability incurred in the proceeding if:
(a) he conducted himself in good faith;
(b) he reasonably believed:
(i) in the case of conduct in his official capacity with the
corporation, that his conduct was in the corporation's best
interests; and
(ii) in all other cases, that his conduct was at least not
opposed to the corporation's best interests; and
(c) in the case of any criminal procedure, he had no reasonable
cause to believe his conduct was unlawful.
(2) 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
requirement of subsection (1)(b)(ii).
(3) The termination of a proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, it not, of
itself, a determination that the director did not meet the standard of
conduct described in this section.
(4) A corporation may not indemnify a director under this section:
(a) in connection with a proceeding by or in the right of
the corporation in which the director was adjudged liable to the
corporation; or
(b) 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.
(5) 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.
35-1-453. Mandatory indemnification. 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 he is or was a director of the
corporation, against reasonable expenses incurred by the director in
connection with the proceeding.
35-1-454. Advance for expenses.
(1) A corporation may pay for or reimburse the reasonable expenses
incurred by a director who is a party to a proceeding in advance of final
disposition of the proceeding if:
(a) the director furnishes the corporation a written
affirmation of the director's good faith belief that the director
has met the standard of conduct described in 35-1-452;
(b) the director furnishes the corporation a written
undertaking, executed personally or on the director's behalf, to
repay the advance if it is ultimately determined that the
director did not meet the standard of conduct described in 35-1-
452; and
(c) a determination is made that the facts then known to
those making the determination would not preclude indemnification
under 35-1-451 through 35-1-459.
(2) The undertaking required by subsection (1)(b) must be an
unlimited general obligation of the director but need not be secured and
may be accepted without reference to financial ability to make repayment.
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<PAGE>
(3) Determinations and authorizations of payments under this section
must be made in the manner specified in 35-1-456.
35-1-455. Court-ordered indemnification. Unless a corporation's
articles of incorporation provide otherwise, 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 that the
director:
(1) is entitled to mandatory indemnification under 35-1-453, in which
case the court shall also order the corporation to pay the director's
reasonable expenses incurred in obtaining court-ordered indemnification; or
(2) 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 35-1-452 or was adjudged liable as
described in 35-1-452(4). If the director was adjudged liable as described
in 35-1-452(4), the director's indemnification is limited to reasonable
expenses incurred.
35-1-456. Determination and authorization of indemnification.
(1) A corporation may not indemnify a director under 35-1-452 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 35-1-452.
(2) The determination must be made:
(a) by the board of directors by majority vote of a
quorum consisting of directors not at the time parties to
the proceeding;
(b) if a quorum cannot be obtained under subsection
(2)(a), by majority vote of a committee designated by the
board of directors, in which designated directors who are
parties may participate, consisting solely of two or more
directors not at the time parties to the proceeding;
(c) by special legal counsel:
(i) selected by the board of directors or its
committee in the manner prescribed in subsection (2)(a)
or (2)(b); or
(ii) if a quorum of the board of directors cannot
be obtained under subsection (2)(a) and a committee
cannot be designated under subsection (2)(b), selected
by majority vote of the full board of directors in
which selected directors who are parties may
participate; or
(d) 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.
(3) Authorization of indemnification and evaluation as to
reasonableness of expenses must 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 must be
made by those entitled under subsection (2)(c) to select counsel.
35-1-457. Indemnification of officers, employees, and agents. Unless
a corporation's articles of incorporation provide otherwise:
(1) an officer of the corporation who is not a director is entitled
to mandatory indemnification under 35-1-453 and is entitled to apply for
court-ordered indemnification under 35-1-455 to the same extent as to a
director;
(2) the corporation may indemnify and advance expenses under 35-1-451
through 35-1-459 to an officer, employee, or agent of the corporation who
is not a director to the same extent as to a director; and
(3) a corporation may also indemnify and advance expenses to an
officer, employee, or agent who is not a director to the extent, consistent
with public policy, that may be provided by its articles of incorporation,
by-laws, general or specific action of its board of directors, or contract.
* * * * * *
II-3
<PAGE>
The By-laws of the Company further provide that the foregoing right of
indemnification shall not exclude or restrict any other rights or actions
which any director or officer may have, and shall be available whether or
not the director or officer continues to hold such office at the time of
incurring such expense or discharging Such liability.
The Company has insurance covering its expenditures which might arise
in connection with the lawful indemnification of its directors and officers
for their liabilities and expenses and insuring officers and directors of
the Company against certain other liabilities and expenses.
ITEM 16. EXHIBITS.
Previously Filed*
------------------
With
File As
Exhibit Number Exhibit
------- ------ -------
1(a) -- Form of Distribution Agreement.
4(a) -- Indenture, dated as of December 1, 1989,
from the Company to Citibank, N.A.,
Trustee.
4(b) -- Form of Officers' Certificate
establishing the Notes, including the
Form of Note as Exhibit 1 thereto.
4(c) -- Form of Note (See Exhibit 1 to Exhibit
4(b) filed herewith).
4(d) -- Indenture (For Unsecured Subordinated
Debt Securities relating to Trust
Securities), dated as of November 1,
1996, from the Company to the Bank of
New York, as trustee.
4(e) -- Officer's Certificate dated November 6,
1996 establishing the Company's Junior
Subordinated Deferrable Interest
Debentures, 8.45% Series due 2036.
4(f) -- Amended and Restated Trust Agreement,
dated as of November 1, 1996, among the
Company, as Depositor, the Bank of New
York, as Property Trustee, the Bank of
New York (Delaware), as Delaware
Trustee, and Ellen M. Senechal, Jerrold
P. Pederson and Pamela K. Merrell, as
Administrative Trustees, relating to
Montana Power Capital I.
4(g) -- Guaranty Agreement dated as of November
1, 1996, between the Company and The
Bank of New York, as Trustee.
4(h) -- Agreement as to Expenses and Liabilities
dated as of November 1, 1996, between
the Company and Montana Power Capital I.
5(a) -- Opinion of Michael E. Zimmerman, Esq.,
General Counsel for the Company.
5(b) -- Opinion of Reid & Priest LLP, Counsel to
the Company.
12(a) -- Computation of Ratio of Earnings to
Fixed Charges.
23(a) -- Independent Auditors' Consent (see page
II-8).
23(b) -- Consents of Michael E. Zimmerman, Esq.
and Reid & Priest LLP are contained in
Exhibits 5(a) and 5(b), respectively.
24 -- Power of Attorney (see page II-6).
25 -- Statement of Eligibility of Trustee.
__________________________________
*Incorporated herein by reference.
II-4
<PAGE>
ITEM 17. UNDERTAKINGS.
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, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
20 percent change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in this
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above
do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the registrants
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act") that are incorporated by
reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered
herein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(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.
(4) 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 Section 15(d) of the Securities Exchange
Act of 1934 that is incorporated by reference in this Registration
Statement shall be deemed to be a new registration statement relating
to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(5) That, 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 above, 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 Act 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 Act and will be governed by the final adjudication of
such issue.
II-5
<PAGE>
POWER OF ATTORNEY
EACH DIRECTOR AND/OR OFFICER OF THE REGISTRANT WHOSE SIGNATURE APPEARS
BELOW HEREBY APPOINTS THE AGENTS FOR SERVICE NAMED IN THIS REGISTRATION
STATEMENT, AND EACH OF THEM SEVERALLY, AS HIS OR HER ATTORNEY-IN-FACT TO
SIGN IN HIS OR HER NAME AND BEHALF, IN ANY AND ALL CAPACITIES STATED BELOW,
AND TO FILE WITH THE SECURITIES AND EXCHANGE COMMISSION, ANY AND ALL
AMENDMENTS, INCLUDING POST-EFFECTIVE AMENDMENTS, TO THIS REGISTRATION
STATEMENT, UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND THE REGISTRANT
HEREBY ALSO APPOINT EACH SUCH AGENT FOR SERVICE AS THEIR ATTORNEY-IN-FACT
WITH LIKE AUTHORITY TO SIGN AND FILE ANY SUCH AMENDMENTS OR REGISTRATION
STATEMENT IN THEIR NAMES AND ON THEIR BEHALF.
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 OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED
THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED,
THEREUNTO DULY AUTHORIZED, IN THE MUNICIPALITY OF BUTTE-SILVER BOW, AND
STATE OF MONTANA, ON THE 29TH DAY OF NOVEMBER, 1996.
THE MONTANA POWER COMPANY
BY: /S/ D.T. BERUBE
----------------------------------------
(D. T. BERUBE, CHAIRMAN OF THE BOARD
AND CHIEF EXECUTIVE OFFICER)
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN
THE CAPACITIES AND ON THE DATE INDICATED.
SIGNATURE TITLE DATE
---------- ------ ----
/S/ D.T. BERUBE CHAIRMAN OF November 29, 1996
------------------------------------- THE BOARD, CHIEF
D. T. BERUBE EXECUTIVE
(PRINCIPAL EXECUTIVE OFFICER) OFFICER AND
DIRECTOR
/S/ J.P. PEDERSON VICE PRESIDENT November 29, 1996
------------------------------------- AND CHIEF
J. P. PEDERSON FINANCIAL AND
(PRINCIPAL FINANCIAL AND INFORMATION
ACCOUNTING OFFICER) OFFICER
AND DIRECTOR
/S/ T.H. ADAMS DIRECTOR November 29, 1996
--------------------------------------
T. H. ADAMS
/S/ A.F. CAIN DIRECTOR November 29, 1996
--------------------------------------
A. F. CAIN
/S/ R.D. CORRETTE DIRECTOR November 29, 1996
-------------------------------------
R. D. CORRETTE
/S/ K. FOSTER DIRECTOR November 29, 1996
--------------------------------------
K. FOSTER
/S/ R.P. GANNON DIRECTOR November 29, 1996
--------------------------------------
R. P. GANNON
II-6
<PAGE>
SIGNATURE TITLE DATE
--------- ----- ----
DIRECTOR
-------------------------------------
B. D. HARRIS
/S/ C.T. HIBBARD DIRECTOR November 29, 1996
-------------------------------------
C. T. HIBBARD
/S/ D.P. LAMBROS DIRECTOR November 29, 1996
-------------------------------------
D. P. LAMBROS
/S/ J.R. JESTER DIRECTOR November 29, 1996
--------------------------------------
J. R. JESTER
/S/ C. LEHRKIND III DIRECTOR November 29, 1996
-------------------------------------
C. LEHRKIND III
/S/ J.P. LUCAS DIRECTOR November 29, 1996
-------------------------------------
J. P. LUCAS
/S/ A.K. NEILL DIRECTOR November 29, 1996
-------------------------------------
A. K. NEILL
/S/ N.E. VOSBURG DIRECTOR November 29, 1996
--------------------------------------
N. E. VOSBURG
II-7
<PAGE>
Exhibit 23(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of the Registration Statement on Form S-3 of our report
dated February 9, 1996 appearing on page 50 of The Montana Power Company's
Annual Report on Form 10-K for the year ended December 31, 1995. We also
consent to the reference to us under the heading "Experts" in such
Prospectus.
/s/ Price Waterhouse LLP
------------------------------
Price Waterhouse LLP
Portland, Oregon
November 29, 1996
II-8
<PAGE>
EXHIBIT INDEX
Exhibit Description
------- -----------
1(a) -- Form of Distribution
Agreement.
4(a) -- Indenture, dated as of
December 1, 1989, from the
Company to Citibank, N.A.,
Trustee.
4(b) -- Form of Officers' Certificate
establishing the Notes,
including the Form of Note as
Exhibit 1 thereto.
4(c) -- Form of Note (See Exhibit 1 to
Exhibit 4(b) filed herewith).
4(d) -- Indenture (For Unsecured
Subordinated Debt Securities
relating to Trust Securities),
dated as of November 1, 1996,
from the Company to the Bank
of New York, as trustee.
4(e) -- Officer's Certificate dated
November 6, 1996 establishing
the Company's Junior
Subordinated Deferrable
Interest Debentures, 8.45%
Series due 2036.
4(f) -- Amended and Restated Trust
Agreement, dated as of
November 1, 1996, among the
Company, as Depositor, the
Bank of New York, as Property
Trustee, the Bank of New York
(Delaware), as Delaware
Trustee, and Ellen M.
Senechal, Jerrold P. Pederson
and Pamela K. Merrell, as
Administrative Trustees,
relating to Montana Power
Capital I.
4(g) -- Guaranty Agreement dated as of
November 1, 1996, between the
Company and The Bank of New
York, as Trustee.
4(h) -- Agreement as to Expenses and
Liabilities dated as of
November 1, 1996, between the
Company and Montana Power
Capital I.
5(a) -- Opinion of Michael E.
Zimmerman, Esq., General
Counsel for the Company.
5(b) -- Opinion of Reid & Priest LLP,
Counsel to the Company.
12(a) -- Computation of Ratio of
Earnings to Fixed Charges.
23(a) -- Independent Auditors' Consent
(see page II-8).
23(b) -- Consents of Michael E.
Zimmerman, Esq. and Reid &
Priest LLP are contained in
Exhibits 5(a) and 5(b),
respectively.
24 -- Power of Attorney (see page
II-6).
25 -- Statement of Eligibility of
Trustee.
Exhibit 1(a)
The Montana Power Company
$150,000,000
Medium-Term Notes, Series B
Distribution Agreement
----------------------
______________, 1996
[Agents]
Ladies and Gentlemen:
The Montana Power Company, a Montana corporation (the "Company"),
proposes to issue and sell from time to time its Medium-Term Notes, Series
B (the "Securities") in an aggregate amount up to $150,000,000. The
Securities are to be issued from time to time under the Company's
Indenture, dated as of December 1, 1989, to Citibank, N.A., as Trustee (the
"Trustee") (the "Indenture"). The Securities shall have the maturities,
interest rates, if any, redemption provisions and other terms set forth in
the Prospectus referred to in Section 1(b), as it may be amended or
supplemented from time to time. The Securities will be issued, and the
terms thereof established, from time to time, by the Company in accordance
with the Indenture and, to the extent consistent therewith, the procedures
referred to below.
The Company represents, warrants, covenants and agrees with each
of you (individually, an "Agent", and collectively, the "Agents") and each
Agent, severally and not jointly, covenants and agrees with the Company as
follows:
1. Representations and Warranties of the Company. The Company
---------------------------------------------
represents and warrants to each Agent that:
(a) The Company and each of its principal subsidiaries
(currently, Entech, Inc., Western Energy Company, Northwestern
Resources Company, North American Resources Company and Continental
Energy Services, Inc.) (the "Subsidiaries") have been duly
incorporated and are validly existing as corporations in good standing
under the laws of the respective jurisdictions of their incorporation
with full corporate power and authority to own and operate their
properties and to conduct the businesses in which they are now
engaged, as described in the Prospectus; the Company and its
Subsidiaries are duly qualified to do business as foreign corporations
and are in good standing in all other jurisdictions in the United
States and in Canada in which such qualification is required; and all
of the outstanding shares of capital stock of each Subsidiary are
owned beneficially by the Company, subject to no mortgage, pledge,
lien, charge or other encumbrance.
(b) A registration statement on Form S-3 (Registration No. 333-
) with respect to the Securities, including a prospectus, has
been prepared by the Company in conformity with the requirements of
the Securities Act of 1933, as amended (the "Act"), the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
rules and regulations (the "Rules and Regulations") of the Securities
and Exchange Commission (the "Commission") thereunder, has been filed
with the Commission under the Act and has become effective, the
Indenture has been qualified under the Trust Indenture Act, and, to
the knowledge of the Company, no stop order suspending the
effectiveness of such registration statement has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission. Copies of said registration statement have heretofore
been delivered to each Agent. Such registration statement, including
all exhibits thereto, but excluding Form T-1, as amended at the time
it became effective, is hereinafter called the "Registration
Statement" (any preliminary prospectus included in such registration
statement being hereinafter called the "Preliminary Prospectus"); the
prospectus (including each prospectus supplement) relating to the
Securities, in the form in which it most recently has been filed with
the Commission on or prior to the date of this Agreement, is
hereinafter called the "Prospectus"; any reference herein to the
Registration Statement, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include the documents filed by the
Company under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and incorporated therein by reference (the
"Incorporated Documents") as of the date of such Registration
Statement, Preliminary Prospectus or Prospectus; any reference to any
amendment or supplement to any Preliminary Prospectus or Prospectus,
including any supplement to the Prospectus that sets forth only the
terms of a particular issue of the Securities (a "Pricing
Supplement"), shall be deemed to refer to and include the Incorporated
Documents as of the date of such amendment or supplement; and any
reference to the Prospectus as amended or supplemented shall be deemed
to refer to and include the Prospectus as then amended or supplemented
(including the applicable Pricing Supplement) in relation to a
particular issue of Securities, in the form filed with the Commission
pursuant to Rule 424(b) under the Act, including any Incorporated
Documents as of the date of such amendment or supplement.
(c) The Incorporated Documents, when filed with the Commission
or, if later, when they became effective, conformed in all material
respects with the requirements of the Exchange Act, and the applicable
rules and regulations of the Commission thereunder; none of such
Incorporated Documents when so filed or when they became effective, as
the case may be, included an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; any future
Incorporated Documents, or any amendment or supplement thereto, when
filed with the Commission or, if later, when effective, will conform
in all material respects with the applicable requirements of the
Exchange Act, and the rules and regulations of the Commission
thereunder and when such Incorporated Documents are filed or become
effective, as the case may be, 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, in the light of
the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or
-------- -------
warranties as to information contained in or omitted from the
Prospectus as amended or supplemented in reliance upon and in
conformity with information furnished in writing to the Company by any
Agent specifically for use in the preparation thereof.
(d) The Registration Statement when it became effective
conformed, and the Prospectus on the date hereof conforms, and any
amendment or supplement thereto will conform, in all material
respects, with the provisions of the Act and the Trust Indenture Act
and the rules and regulations of the Commission thereunder; and the
Registration Statement when it became effective and at the time of
each amendment thereof, if any, did not and, on the date hereof, does
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; and, the Prospectus does not, and
any amendment or supplement to the Prospectus, as of its 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, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Company makes
-------- -------
no representations or warranties as to information contained in or
omitted from any such document in reliance upon and in conformity with
information furnished in writing to the Company by any Agent
specifically for use in the preparation thereof.
(e) Subsequent to the respective dates as of which information
is given in the Registration Statement, except as contemplated in the
Prospectus as amended or supplemented, (i) neither the Company nor any
of its Subsidiaries has incurred any material liabilities or obliga-
tions, direct or contingent, or entered into any material transactions
not in the ordinary course of business, (ii) there has not been any
material change in the capital stock or long-term debt of the Company
or any of its Subsidiaries, or any material adverse change in the
condition (financial or other) of the Company and its Subsidiaries,
(iii) no material loss or damage (whether or not insured) to the
property of the Company or any of its Subsidiaries has been sustained,
and (iv) no material legal or governmental proceeding, domestic or
foreign, affecting the Company or any of its Subsidiaries or the
transactions contemplated by this Agreement, has been instituted or,
to the knowledge of the Company, threatened. For purposes of
determining materiality under this subparagraph (e), the Company and
its Subsidiaries shall be considered as one enterprise.
(f) Price Waterhouse LLP, which have certified the financial
statements filed with the Commission as a part of the Registration
Statement, are independent public accountants as required by the Act.
(g) The Company has filed with the Public Service Commission of
Montana an application (the "Application") seeking, among other
things, an appropriate order or orders authorizing the issuance from
time to time of the Securities; no other authorization, approval,
consent, registration or qualification or other order of any state or
Federal governmental authority or agency is required for the valid
authorization, issuance or sale of the Securities, except such as have
been obtained under the Act and the Trust Indenture Act or as may be
required under state securities laws in connection with the
solicitation by such Agent of offers to purchase Securities from the
Company and with purchases of Securities by such Agent as principal,
as the case may be, in each case in the manner contemplated hereby.
(h) The Securities have been duly and validly authorized and,
when duly and validly executed, authenticated and delivered as
provided in the Indenture and delivered pursuant to this Agreement and
any Terms Agreement (as hereinafter defined), will constitute legal,
binding and valid obligations of the Company entitled to the benefits
provided by the Indenture, and will conform to the description thereof
contained in the Prospectus as amended or supplemented with respect to
such issuance. The Indenture has been duly authorized and executed by
the Company and is a valid and legally binding instrument enforceable
in accordance with its terms, except as the same may be limited by
applicable bankruptcy, reorganization or other similar laws affecting
creditors' rights generally.
(i) The issuance and sale of the Securities and the performance
of this Agreement and any Terms Agreement and the consummation of the
transactions contemplated herein and therein and compliance by the
Company with all of the terms and provisions of the Indenture will not
result in a breach of any of the terms or provisions of, or constitute
a default under, the Company's charter or by-laws, 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
any order, rule or regulation applicable to the Company or any of its
Subsidiaries of any court or of any Federal or state regulatory body
or administrative agency or other governmental body having
jurisdiction over the Company or its property.
(j) Other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending to which the
Company or any of its Subsidiaries is a party or to which any property
of the Company or any of its Subsidiaries is subject, which, if
determined adversely to the Company or any of its Subsidiaries, would
individually or in the aggregate have a material adverse effect on the
consolidated financial position, stockholders' equity or results of
operations of the Company and its Subsidiaries as a whole, and, to the
best of the Company's knowledge, no such proceedings are threatened.
2. Obligations of the Agents and the Company.
-----------------------------------------
(a) Subject to the terms and conditions hereof and to the
reservation by the Company of the right to sell Securities directly on
its own behalf, the Company hereby appoints each Agent as an agent of
the Company for the purpose of soliciting and receiving offers to
purchase Securities from the Company.
(b) On the basis of the representations and warranties herein,
and subject to the terms and conditions hereof, each of the Agents, as
agent of the Company, severally and not jointly, agrees to use its
reasonable efforts to solicit and receive offers to purchase
particular issues of the Securities from the Company upon the terms
and conditions set forth in the Prospectus as amended or supplemented
with respect thereto. The Company shall not, without the consent of
each Agent, which consent shall not unreasonably be withheld, solicit
or accept offers to purchase, or sell, any debt securities (other than
the Company's Secured Medium-Term Notes) with a maturity, at the time
of original issuance, of from nine months to 40 years, except (i)
pursuant to this Agreement, (ii) pursuant to a private placement not
constituting a public offering under the Act, or (iii) in connection
with a firm commitment underwriting pursuant to an underwriting
agreement that does not provide for a continuous offering. However,
the Company, subject to Section 5(f) hereof, reserves the right to
sell, and may solicit and accept offers to purchase, Securities
directly on its own behalf, and, in the case of any such sale not
resulting from a solicitation made by an Agent, no commission will be
payable with respect to such sale.
(c) Procedural details relating to the issue and delivery of
Securities, the solicitation of offers to purchase Securities and the
payment therefor, unless an Agent and the Company shall otherwise
agree, shall be as set forth in the Administrative Procedure attached
hereto as Annex I as it may be amended from time to time by written
Agreement between the Agents and the Company (the Administrative
Procedure"). The provisions of the Administrative Procedure shall
apply to all transactions contemplated hereunder other than those made
pursuant to a Terms Agreement. Each Agent and the Company shall
perform the respective duties and obligations specifically provided to
be performed by each of them in the Administrative Procedure. The
Company will furnish to the Trustee a copy of the Administrative
Procedure as from time to time in effect.
(d) The Company reserves the right, in its sole discretion, to
instruct the Agents to suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase the Securities.
As soon as practicable, but in any event not later than one business
day in New York City, after receipt of notice from the Company, the
Agents will suspend solicitation of offers to purchase Securities from
the Company until such time as the Company has advised the Agents that
such solicitation may be resumed.
(e) The Company agrees to pay each Agent a commission, at the
time of settlement (each a "Settlement Date") of any sale of a
Security by the Company as a result of a solicitation made by such
Agent, in an amount equal to the following applicable percentage of
the principal amount of such Security sold:
Commission
(percentage of
aggregate
principal amount
Range of Maturities of Securities sold)
-------------------- -------------------
From 9 months to less than 1 year .125%
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .675%
From 20 years to 30 years .750%
Over 30 years as negotiated
3. Sales to Agents as Principal. Each sale of Securities to an
----------------------------
Agent as principal shall be made in accordance with the terms of this
Agreement and (unless the Company and such Agent shall otherwise agree) a
separate agreement (each a "Terms Agreement") which will provide for the
sale of such Securities to, and the purchase thereof by, such Agent, as
principal. Each Terms Agreement will take the form of either (i) a written
agreement between such Agent and the Company, which may be substantially in
the form of Annex II hereto, or (ii) an oral agreement between such Agent
and the Company confirmed in writing by such Agent to the Company. A Terms
Agreement may also specify certain provisions relating to the reoffering of
such Securities by such Agent. Each Terms Agreement shall specify the
principal amount of Securities to be purchased by an Agent pursuant
thereto, the price to be paid to the Company for such Securities, any
provisions relating to the rights of, and defaults by, any underwriters
acting together with such Agent in the reoffering of the Securities, the
time and date of delivery of and payment for such Securities (each, a "Time
of Delivery") and place of delivery of such Securities, and any
requirements for opinions of counsel, accountants' letters and officers'
certificates pursuant to Section 5 hereof. The commitment of an Agent to
purchase Securities as principal, whether pursuant to a 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, to the
extent not otherwise agreed upon in a Terms Agreement or otherwise, shall
be subject to the terms and conditions herein set forth; provided, however,
that the commitment of an Agent to purchase Securities as principal
pursuant to a separate underwriting agreement shall be entirely governed by
the terms and conditions of that underwriting agreement and shall not be
governed by any of the provisions of this Agreement. Unless otherwise
specified in a Terms Agreement, if an Agent is purchasing Securities as
principal, such Agent may resell such Securities to other dealers. Any
such sales may be at a discount, which shall not exceed the amount set
forth in the Prospectus Supplement relating to such Securities.
4. Commencement. At 11:00 a.m., New York City time, on the
------------
date of this Agreement or at such later date and time as may be agreed upon
between the Agents and the Company not later than the day prior to the
earlier of the day on which the solicitation of offers to purchase
Securities is to commence or on which any Terms Agreement shall be executed
(such time and date being referred to herein as the "Commencement Date"),
the Agents shall be furnished at the offices of Reid & Priest LLP, 40 West
57th Street, New York, New York:
(a) An opinion of Milbank, Tweed, Hadley & McCloy, counsel to
the Agents, dated the Commencement Date, with respect to such matters
as the Agents may reasonably request, which opinion may rely, as to
all matters governed by Montana law, upon the opinion of Michael E.
Zimmerman, Esq., referred to in Section 4(b) hereof;
(b) An opinion of Michael E. Zimmerman, Esq., General Counsel
for the Company, dated the Commencement Date, in form and substance
reasonably satisfactory to the Agents, to the effect set forth in
Annex III, which opinion may rely as to all matters governed by New
York law upon the opinion of Reid & Priest LLP referred to in Section
4(c) hereof;
(c) An opinion of Reid & Priest LLP, dated the Commencement
Date, in form and substance reasonably satisfactory to the Agents, to
the effect set forth in Annex IV, which opinion may rely, as to all
matters governed by Montana law, upon the opinion of Michael E.
Zimmerman, Esq., referred to in Section 4(b) hereof;
(d) A letter from the Company's independent accountants, dated
the Commencement Date, in form and substance reasonably satisfactory
to the Agents, to the effect set forth in Annex V hereto; and
(e) A certificate of the President or any Vice President of the
Company, dated the Commencement Date, in form reasonably satisfactory
to the Agents, as to the accuracy of the representations and
warranties of the Company herein at and as of the Commencement Date,
as to the performance by the Company in all material respects of all
of its obligations hereunder to be performed at or prior to the
Commencement Date, as to the matters set forth in Sections 1(e) and
7(a) hereof and as to such other matters as the Agents may reasonably
request.
(f) Such further information, certificates and documents as the
Agents or counsel to the Agents may reasonably request.
5. Covenants of the Company. The Company covenants and agrees
------------------------
with each Agent:
(a) (i) To make no amendment or supplement to the Registration
Statement or the Prospectus (A) prior to the Commencement Date which
any Agent shall reasonably disapprove by notice to the Company
promptly after reasonable notice thereof or (B) after the date of any
Terms Agreement or other agreement by an Agent to purchase Securities
as principal and prior to the related Time of Delivery which any Agent
party to such Terms Agreement or such other agreement shall reasonably
disapprove by notice to the Company promptly after reasonable notice
thereof; (ii) to prepare, with respect to each particular issue of
Securities to be sold through or to such Agent pursuant to this
Agreement, a Pricing Supplement with respect to such Securities in a
form reasonably satisfactory to such Agent and to file such Pricing
Supplement in accordance with Rule 424(b) under the Act; (iii) to make
no amendment or supplement to the Registration Statement or
Prospectus, other than a Pricing Supplement, without affording each
Agent a reasonable opportunity for review thereof and comment thereon;
(iv) to timely file all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required
in connection with the offering or sale of the Securities, and during
such same period to advise such Agent, promptly after the Company
receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or has become effective or any
supplement to the Prospectus or any amended Prospectus (other than any
Pricing Supplement that relates to Securities not purchased through or
by such Agent) has been filed with the Commission, of the issuance by
the Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to the Securities, of
the suspension of the qualification of the Securities for offering or
sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission
for the amendment or supplement of the Registration Statement or
Prospectus or for additional information; (v) to promptly make every
reasonable effort to comply with all requests of the Commission for
additional information; and (vi) in the event of the issuance of any
such stop order or of any such order preventing or suspending the use
of any such prospectus or suspending any such qualification, to make
every reasonable effort to obtain its withdrawal;
(b) From time to time to take such action as such Agent
reasonably may request to qualify the Securities for offering and sale
under the securities laws of such jurisdictions as may be approved by
the Company and to comply with such laws so as to permit the
continuance of sales and dealings therein for as long as may be
necessary to complete the distribution or sale of the Securities;
provided, however, that in connection therewith the Company shall not
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be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction, or to comply with
any other requirement reasonably deemed by the Company to be unduly
burdensome;
(c) To furnish such Agent with copies of the Registration
Statement, each amendment thereto, the Prospectus and each amendment
or supplement thereto, other than any Pricing Supplement (except as
provided in the Administrative Procedure), in the form in which it is
filed with the Commission pursuant to Rule 424(b) under the Act, and
with copies of the documents incorporated by reference therein (other
than exhibits incorporated by reference in the Registration
Statement), each in such quantities as such Agent may reasonably
request from time to time; and, if the delivery of a prospectus is
required at any time in connection with the offering or sale of the
Securities to or through an Agent pursuant to this Agreement and if at
such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is to be
delivered, not misleading, or, if for any other reason it shall be
necessary during such period to amend or supplement the Prospectus or
to file under the Exchange Act any document incorporated by reference
in the Prospectus in order to comply with the Act, the Exchange Act or
the Trust Indenture Act, to notify such Agent and request such Agent,
in its capacity as agent of the Company, to suspend solicitation of
offers to purchase Securities from the Company (and, if so notified,
such Agent shall cease such solicitations as soon as practicable, but
in any event not later than one business day in New York City later);
and if the Company shall decide to amend or supplement the
Registration Statement or the Prospectus, to so advise such Agent
promptly by telephone (confirmed in writing) and to prepare and cause
to be filed promptly with the Commission an amendment or supplement to
the Registration Statement or the Prospectus or to file any document
incorporated by reference in the Prospectus that will correct such
statement or omission or effect such compliance; provided that, (i)
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should such event relate solely to activities of any Agent, such Agent
shall assume the expense of preparing and furnishing any such
amendment or supplement; (ii) if, during such period, such Agent shall
continue to own Securities purchased from the Company as principal or
such Agent otherwise shall be required to deliver a prospectus in
respect of transactions in the Securities, the Company shall promptly
prepare and file with the Commission such an amendment or supplement;
and (iii) if such Agent shall be required to deliver a prospectus in
connection with sales of any Securities purchased by it as principal
at any time nine months or more after the effective date of the
Registration Statement and (A) there shall be, as a result of such
purchase, no Securities remaining to be sold under the Registration
Statement or (B) the Company, pursuant to Section 2(d) hereof, shall
have instructed the Agents to suspend, during such nine month period,
the solicitation of offers to purchase the Securities, such Agent
shall assume the expense of preparing and furnishing any such
amendment or supplement in connection with the sales of any Securities
purchased by such Agent as principal. For the purposes of this
Section 5(c), the Company shall be entitled to assume that a
Prospectus shall no longer be required to be delivered under the Act
from and after the date six months from the date of the purchase by an
Agent as principal of the particular issuance of Securities to which
it relates, unless it shall have received notice from such Agent to
the contrary;
(d) To make generally available to its security holders as soon
as practicable, but in any event not later than eighteen months after
(i) the effective date of the Registration Statement, (ii) the
effective date of each post-effective amendment to the Registration
Statement, and (iii) the date of each filing by the Company with the
Commission of an Annual Report on Form 10-K that is incorporated by
reference in the Registration Statement, an earning statement of the
Company and its subsidiaries (which need not be audited) complying
with Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including, at the option of the Company, Rule
158);
(e) For the period ending five years from the date any
Securities are sold by the Company pursuant to an offer solicited by
such Agent under this Agreement, to furnish to such Agent copies of
all reports or other communications (financial or other) furnished to
stockholders, and deliver to such Agent (i) as soon as they are
available, copies of any reports and financial statements furnished to
or filed with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act, (ii) copies of all registration statements
filed under the Act (other than those in respect of customer,
shareholder or employee plans), and (iii) such additional information
concerning the business and financial condition of the Company as such
Agent may from time to time reasonably request (such financial
statements to be on a consolidated basis to the extent the accounts of
the Company and its subsidiaries are consolidated in reports furnished
to its stockholders generally or to the Commission);
(f) That, from the date of any Terms Agreement with such Agent
or other agreement with such Agent to purchase Securities as principal
and continuing to and including the earlier of (i) the termination of
the trading restrictions for the Securities purchased thereunder, as
notified to the Company by such Agent and (ii) the related Time of
Delivery, the Company will not, without the prior written consent of
such Agent, offer, sell, contract to sell or otherwise dispose of any
debt securities of the Company in a public offering which both have a
maturity of from nine months to 40 years and are substantially similar
to the Securities;
(g) That each acceptance by the Company of an offer to purchase
Securities hereunder procured by such Agent, as agent, and each
execution and delivery by the Company of a Terms Agreement or other
agreement with such Agent shall be deemed to be an affirmation to such
Agent that the representations and warranties of the Company contained
in or made pursuant to this Agreement are true and correct as of the
date of such acceptance or of such Terms Agreement or other agreement,
as the case may be, as though made as of such date, and an undertaking
that such representations and warranties will be true and correct as
of the Settlement Date for the Securities relating to such acceptance
or as of the Time of Delivery relating to such sale, as the case may
be, as though made as of such date (except that such representations
and warranties shall be deemed to relate to the Registration Statement
and the Prospectus as amended and supplemented relating to such
Securities);
(h) That (i) each time the Company's Annual Report on Form 10-K
shall be filed by it under the Exchange Act (unless waived by the
Agents), (ii) at such other times as reasonably may be requested by
the Agents, and (iii) each time the Company sells Securities to an
Agent as principal pursuant to a Terms Agreement or other agreement
with an Agent to purchase Securities as principal and such Terms
Agreement or other agreement specifies the delivery of an opinion or
opinions by Milbank, Tweed, Hadley & McCloy, counsel to the Agents, or
such other counsel to the Agents reasonably satisfactory to the
Company, as a condition to the purchase of Securities pursuant to such
Terms Agreement or other agreement, the Company shall furnish to such
counsel such papers and information as they may reasonably request to
enable them to furnish to such Agent a letter dated the date of such
filing, request or Time of Delivery relating to such sale, as the case
may be, in form reasonably satisfactory to such Agent, to the effect
that such Agent may rely on the opinion of such counsel referred to in
Section 4(a) hereof, to the same extent as though it was dated the
date of such letter (except that the statements in such opinion shall
be deemed to relate to the Registration Statement and the Prospectus
as amended and supplemented to the date of such letter), or in lieu of
such a letter, an opinion of the same tenor as the opinion of such
counsel referred to in Section 4(a) hereof, but modified to relate to
the Registration Statement and the Prospectus as amended and
supplemented to such date;
(i) That each time the Registration Statement or the Prospectus
shall be amended or supplemented (other than by a Pricing Supplement),
each time a document incorporated by reference in the Prospectus as
amended or supplemented shall be filed under the Act or Exchange Act
(unless waived by the Agents), and each time the Company sells
Securities to such Agent as principal pursuant to a Terms Agreement or
other agreement with an Agent to purchase Securities as principal and
such Terms Agreement or other agreement specifies the delivery of an
opinion, letter or certificate under this Section 5(i) as a condition
to the purchase of Securities pursuant to such Terms Agreement or
other agreement, the Company shall furnish or cause to be furnished to
such Agent:
(i) a letter from Michael E. Zimmerman, Esq., General Counsel
for the Company, or his successor, dated the date of such
amendment, supplement, incorporation or Time of Delivery
relating to such sale, as the case may be, in form
reasonably satisfactory to such Agent, to the effect that
such Agent may rely on the opinion of such counsel referred
to in Section 4(b) hereof to the same extent as though it
were dated the date of such letter (except that the
statements in such opinion shall be deemed to relate to the
Registration Statement and the Prospectus as amended and
supplemented to the date of such letter in accordance with
Rule 412 under the Act) or, in lieu of such a letter, an
opinion of the same tenor as the opinion of such counsel
referred to in Section 4(b) hereof, but modified to relate
to the Registration Statement and the Prospectus as amended
and supplemented to such date;
(ii) a letter of Reid & Priest LLP, New York, New York, counsel
for the Company, or other counsel for the Company
reasonably satisfactory to such Agent, dated the date of
such amendment, supplement, incorporation or Time of
Delivery relating to such sale, as the case may be, in form
reasonably satisfactory to such Agent, to the effect that
such Agent may rely on the opinion of such counsel referred
to in Section 4(c) hereof to the same extent as though it
were dated the date of such letter (except that the
statements in such opinion shall be deemed to relate to the
Registration Statement and the Prospectus as amended and
supplemented to the date of such letter in accordance with
Rule 412 under the Act) or, in lieu of such letter, an
opinion of the same tenor as the opinion of such counsel
referred to in Section 4(c) hereof, but modified to relate
to the Registration Statement and the Prospectus as amended
and supplemented to such date;
(iii) a letter of Price Waterhouse LLP or other independent
accountants for the Company reasonably satisfactory to the
Agent, dated the date of such amendment, supplement,
incorporation or Time of Delivery relating to such sale, as
the case may be, in form reasonably satisfactory to such
Agent, to the effect that such Agent may rely upon the
letter of such accountants referred to in Section 4(d)
hereof to the same extent as though it were dated the date
of such subsequent letter (except the statements in such
former letter shall be deemed to relate to the financial
statements included or incorporated in the Registration
Statement and Prospectus as amended and supplemented to the
date of such latter letter), or, in lieu of such latter
letter, a letter of the same tenor as the letter referred
to in Section 4(d) hereof, but modified to relate to the
Registration Statement and the Prospectus as amended or
supplemented to the date of such letter, 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, to the extent such
financial statements and other information are available as
of a date not more than five business days prior to the
date of such letter;
(iv) a certificate executed by the President or any Vice
President of the Company, dated the date of such
supplement, amendment, incorporation or Time of Delivery
relating to such sale, as the case may be, in such form as
shall be reasonably satisfactory to such Agent, to the
effect that the statements contained in the certificate
referred to in Section 4(e) hereof are true and correct at
such date as though made as of such date (except that such
statements shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to
such date) or, in lieu of such certificate, a certificate
of the same tenor as the certificate referred to in Section
4(e) hereof, but modified to relate to the Registration
Statement and the Prospectus as amended and supplemented to
such date; and
(j) To offer to any person who has agreed to purchase
Securities as the result of an offer to purchase solicited by such
Agent the right to refuse to purchase and pay for such Securities if,
at the Settlement Date for such Securities, any condition set forth in
Section 6 hereof shall not have been satisfied (it being understood
that the judgment of such person with respect to the impracticability
or inadvisability of such purchase of Securities shall be substituted,
for purposes of this Section 5(j), for the respective judgments of an
Agent with respect thereto); and
(k) To pay or cause to be paid the following: (i) the fees and
expenses of the Company's counsel and accountants in connection with
the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing of
the Registration Statement, any Preliminary Prospectus, the Prospectus
and any Pricing Supplements and all other amendments and supplements
thereto and the mailing and delivering of copies thereof to such
Agent; (ii) the fees and expenses of counsel for the Agents in
connection with the establishment of the program contemplated hereby,
any opinions to be rendered by such counsel hereunder and the
transactions contemplated hereunder; (iii) the cost of preparing this
Agreement, any Terms Agreement, and any other documents approved by
the Company in connection with the offering, purchase, sale and
delivery of the Securities; (iv) the fees and expenses of counsel for
the Agents in connection with the qualification of the Securities for
offering and sale under state securities laws as provided in Section
5(b) hereof and the preparation of any blue sky and legal investment
memoranda; (v) any fees charged by securities rating services for
rating the Securities; (vi) any filing fees incident to any required
review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Securities; (vii) the cost of preparing the
Securities; (viii) the fees and expenses of the Trustees and any agent
of any Trustee and any transfer or paying agent of the Company and the
fees and disbursements of counsel for the Trustees or any such agent
in connection with the Indenture and the Securities; (ix) any
advertising expenses connected with the solicitation of offers to
purchase and the sale of Securities so long as such advertising
expenses have been approved by the Company; (x) the out-of-pocket
expenses of each Agent in connection with such Agent's services
hereunder in an amount not to exceed $7,500; and (xi) all other costs
and expenses incident to the performance of the Company's obligations
hereunder which are not otherwise specifically provided for in this
Section. Except as provided in Sections 9 and 10 hereof, each Agent
shall pay all other expenses it incurs, including any expenses that
may be incurred by it or for its account pursuant to the proviso of
Section 5(c) hereof.
6. Conditions to Agents' Obligations. The obligation of
---------------------------------
an Agent, as agent of the Company, at any time (each a "Solicitation
Time") to solicit offers to purchase the Securities and the obligation
of an Agent to purchase Securities as principal, pursuant to any Terms
Agreement or otherwise, in each case, shall be subject, in such
Agent's discretion, to the conditions that: (i) all of the
representations and warranties of the Company herein (and, in the case
of an obligation of an Agent under a Terms Agreement or other
agreement with an Agent to purchase Securities as principal, in or
incorporated in such agreement by reference) were true and correct (A)
on the Commencement Date; (B) each time that the Registration
Statement or the Prospectus shall be amended or supplemented (other
than by a Pricing Supplement), (C) each time a document incorporated
by reference in the Prospectus as amended or supplemented shall be
filed by the Company under the Act or Exchange Act, and (D) on such
Solicitation Time or Time of Delivery, as the case may be, (ii) prior
to such Solicitation Time or Time of Delivery, as the case may be, the
Company shall have performed all of its obligations hereunder
theretofore to be performed, (iii) all requests for additional
information on the part of the Commission shall have been complied
with to the reasonable satisfaction of such Agent, and (iv) there
shall not have occurred: (A) any general suspension of trading in
securities on the New York Stock Exchange or the establishment by the
New York Stock Exchange or by the Commission or by any Federal or
State agency or by the decision of any court, any limitation on prices
for such trading or any restrictions on the distribution of
securities, all to such a degree as, in such Agent's judgment, would
restrict materially a free market for the Securities; (B) a general
moratorium on commercial banking activities in New York declared by
either Federal or New York State authorities; (C) an outbreak or
escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if
the effect of any such event, in the judgment of such Agent, makes it
impracticable or inadvisable to proceed with the solicitation of
offers to purchase Securities or the purchase of Securities from the
Company as principal on the terms and in the manner contemplated by
this Agreement and, if applicable, any Terms Agreement or other such
agreement; (D) a substantial loss, on the part of the Company or any
Subsidiary, by fire, explosion, flood, accident or other calamity
which renders it inadvisable to consummate the sale of the Securities
(regardless of whether or not such loss shall have been insured); or
(E) either (i) a downgrading shall have occurred in the rating
accorded the Company's long-term debt by Moody's Investors Service,
Inc. or Standard & Poor's Corporation or (ii) either of such
organizations shall have publicly announced that it has under
surveillance or review with a possibility of downgrading its rating of
any of the Company's long-term debt.
7. Conditions to Company's Obligations.
-----------------------------------
(a) The obligation of the Company to sell and deliver
Securities pursuant to a Terms Agreement or otherwise, in each case,
shall be subject to the conditions that, at the Time of Delivery, (i)
no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose
shall be pending before, or to the knowledge of the Company
contemplated by, the Commission and (ii) the order of the Public
Service Commission of the State of Montana with respect to the
Securities (the "Order") shall be in full force and effect and shall
permit the issuance and sale of the Securities on the terms herein set
forth or contemplated and shall contain no provision reasonably
unacceptable to the Company (it being understood that the Order in
effect on the date of this Agreement contains no such unacceptable
provision).
(b) If any of the conditions specified in Section 7(a) hereof
shall not have been fulfilled, the Terms Agreement or such other
agreement by an Agent to purchase Securities as principal may be
terminated by the Company and neither the Company nor any Agent shall
have any liability to the other, except for the obligation of the
Company to pay certain expenses to the extent provided for in Section
5(k) hereof and except for any liability under Section 8 hereof.
8. Indemnification.
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(a) The Company will indemnify and hold harmless each Agent and
each person, if any, who controls such Agent within the meaning of the
Act against any losses, claims, damages or liabilities, joint or
several, to which such Agent or such controlling person may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or the Prospectus as amended or
supplemented, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and will reimburse such Agent and each such controlling
person for any legal or other expenses reasonably incurred by such
Agent or such controlling person in connection with investigating or
defending any such loss, claim, damage, liability (or action in
respect thereof) as such expenses are incurred; provided, however,
that the Company will not be liable in any such case to the extent
that any such loss, claim, damage or liability (or action in respect
thereof) arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement, any Preliminary Prospectus, Prospectus or the
Prospectus as amended or supplemented with respect to the Securities
in reliance upon and in conformity with written information furnished
to the Company by, or on behalf of any Agent specifically for use in
the preparation thereof; and provided further, that the indemnity
agreement contained in this Section 8(a) shall not inure to the
benefit of any Agent (or of any person controlling such Agent) on
account of any losses, claims, damages or liabilities (or actions in
respect thereof) arising from the sale of Securities by or through
such Agent to any person if a copy of the Prospectus as it then may be
amended or supplemented (without the Incorporated Documents, unless
previously requested) shall not have been sent or given to such person
with or prior to the written confirmation of the sale involved to the
extent that the Prospectus as so amended or supplemented, if so sent
or delivered, would have cured the defect in the Prospectus giving
rise to such losses, claims, damages or liabilities and the Prospectus
as so amended or supplemented was made available to such Agent prior
to the sale of the Notes.
(b) Each Agent will indemnify and hold harmless the Company,
each of its directors, each of its officers who has signed the
Registration Statement and each person, if any, who controls the
Company within the meaning of the Act, against any losses, claims,
damages or liabilities to which the Company or any such director,
officer or controlling person may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained
in the Registration Statement, any Preliminary Prospectus, the
Prospectus or the Prospectus as amended or supplemented with respect
to the Securities or arise out of or are based upon the omission or
the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Registration Statement, any
Preliminary Prospectus, the Prospectus or the Prospectus as amended or
supplemented, in reliance upon and in conformity with written
information furnished to the Company by, or on behalf of such Agent
specifically for use in the preparation thereof; and will reimburse
the Company for any legal or other expenses reasonably incurred by the
Company or any such director, officer or controlling person in
connection with investigating or defending any such loss, claim,
damage, liability or action.
(c) Promptly after receipt by an indemnified party under
Section 8(a) or Section 8(b) of notice of the commencement of any
action, such indemnified party will, if a claim in respect thereof is
to be made against the indemnifying party under such Section, notify
the indemnifying party in writing of the commencement thereof, but the
omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise
than under such Section. In case any such action is brought against
any indemnified party, and such indemnified party notifies the
indemnifying party of the commencement thereof, the indemnifying party
will be entitled to participate therein, and, to the extent that such
indemnifying party may wish, jointly with any other indemnifying
party, similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, without the
consent of the indemnified party, be counsel to the indemnifying
party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof,
the indemnifying party will not be liable to such indemnified party
under this Section 8 for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided,
however, that in no event shall such indemnifying party be obligated
to retain more than one counsel, in addition to counsel for such
indemnifying party, to represent any or all indemnified parties. The
indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with
such consent or if there shall be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from
and against any loss or liability by reason of such settlement or
judgment.
(d) If the indemnification provided for in either Section 8(a)
or Section 8(b) is unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then
each indemnifying party shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims, damages
or liabilities (or actions in respect thereof) in such proportion as
is appropriate to reflect the relative benefits received by the
Company on the one hand and each Agent on the other from the offering
of the Securities to which such loss, claim, damage or liability (or
action in respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence should not be permitted
by applicable law, or if the indemnified party failed to give the
notice required under Section 8(c) hereof, then each indemnifying
party shall contribute to such amount paid or payable by such
indemnified party, in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company
on the one hand and each Agent on the other in connection with the
statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by
the Company on the one hand and each Agent on the other shall be
deemed to be in the same proportion as the total net proceeds from the
sale of the Securities (before deducting expenses) received by the
Company bear to the total commissions or discounts received by such
Agent in respect thereof. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to
state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading relates to
information supplied by the Company on the one hand or by any Agent on
the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company and each Agent agree that it would not be just
and equitable if contribution pursuant to this Section 8(d) were
determined by per capita allocation (even if all Agents were treated
as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred
to above in this Section 8(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this
Section 8(d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding
the provisions of this Section 8(d), no Agent shall be required to
contribute any amount in excess of the amount by which the total price
at which the Securities purchased by or through it or sold exceeds the
amount of any damages which such 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 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Agents' obligations in this Section 8(d) to
contribute are several in proportion to the respective purchases made
by or through it to which such loss, claim, damage or liability (or
action in respect thereof) relates and not joint.
(e) The obligations of the Company under this Section 8 shall
be in addition to any liability which the Company may otherwise have
and shall extend, upon the same terms and conditions, to each person,
if any, who controls any Agent within the meaning of the Act; and the
obligations of each Agent under this Section 8 shall be in addition to
any liability which such Agent may otherwise have and shall extend,
upon the same terms and conditions, to each director of the Company,
to each officer of the Company who has signed the Registration
Statement and to each person, if any, who controls the Company within
the meaning of the Act.
9. Nonperformance. Each Agent, in soliciting offers to
--------------
purchase Securities from the Company and in performing the other
obligations of such Agent hereunder (other than in respect of any purchase
by an Agent as principal pursuant to a Terms Agreement or otherwise), is
acting solely as agent for the Company and not as principal. Each Agent
will make reasonable efforts to assist the Company in obtaining performance
by each purchaser whose offer to purchase Securities from the Company was
solicited by such Agent and has been accepted by the Company, but such
Agent shall not have any liability to the Company in the event such
purchase is not consummated for any reason. If the Company shall default
on its obligation to deliver Securities to a purchaser whose offer it has
accepted, the Company shall (i) hold each Agent harmless against any loss,
claim or damage arising from or as a result of such default by the Company
and (ii) notwithstanding such default, pay to the Agent that solicited such
offer any commission to which it would be entitled in connection with such
sale.
10. Survival of Agreement. The respective indemnities,
---------------------
agreements, representations, warranties and other statements by any Agent
and the Company set forth in or made pursuant to this Agreement shall
remain in full force and effect regardless of any investigation (or any
statement as to the results thereof) made by or on behalf of any Agent or
any controlling person of any Agent or the Company, or any officer or
director or any controlling person of the Company, and shall survive each
delivery of and payment for any of the Securities.
11. Suspension or Termination. The provisions of this
-------------------------
Agreement relating to the solicitation of offers to purchase Securities
from the Company may be suspended or terminated at any time by the Company
as to any Agent or by any Agent as to such Agent upon the giving of written
notice of such suspension or termination to such Agent or the Company, as
the case may be. In the event of such suspension or termination with
respect to any Agent, this Agreement shall remain in full force and effect
with respect to (i) any Agent as to which such suspension or termination
has not occurred, (ii) the rights and obligations of any party which have
previously accrued or which relate to Securities which are already issued,
agreed to be issued or the subject of a pending offer at the time of such
suspension or termination and (iii) Sections 2(e), 5(d), (e) and (k), 8, 9
and 10 hereof.
12. Notices. Except as otherwise specifically provided herein
-------
or in the Administrative Procedure, all statements, requests, notices and
advices hereunder shall be in writing or by telephone, if promptly
confirmed in writing, and if to ________________, shall be sufficient in
all respects when delivered or sent by facsimile transmission or registered
mail to ______________________________________, Facsimile Transmission No.
________________, Attention: _____________________________; if to
_________________________, shall be sufficient in all respects when
delivered or sent by facsimile transmission or registered mail to
_____________________________________, Attention:
_______________________________, Facsimile Transmission No.
________________________; and if to _________________________, shall be
sufficient in all respects when delivered or sent by facsimile transmission
or registered mail to ________________________________________, Facsimile
Transmission No. ____________________________, Attention:
_________________________; and if to the Company, shall be sufficient in
all respects when delivered or sent by facsimile transmission or registered
mail to 40 East Broadway, Butte, Montana 59701, Facsimile Transmission No.
(406) 497-2150, Attention: Vice President and Chief Financial and
Information Officer, with copies to the General Counsel, Facsimile
Transmission No. 406-497-2451 and the Treasurer, Facsimile Transmission No.
406-496-5240.
13. Benefit of Agreement. This Agreement and any Terms
--------------------
Agreement shall be binding upon, and inure solely to the benefit of, each
Agent a party hereto and thereto and the Company, and to the extent
provided in Section 8 and Section 10 hereof, the officers and directors of
the Company and any person who controls any Agent or the Company, and their
respective personal representatives, successors and assigns, and no other
person shall acquire or have any right under or by virtue of this Agreement
or any Terms Agreement. No purchaser of any of the Securities through or
from any Agent hereunder shall be deemed a successor or assign by reason of
such purchase.
14. Timing. Time shall be of the essence in this Agreement and
------
any Terms Agreement. As used herein, the term "business day" shall mean
any day when Banks in New York City are not authorized or obligated by law
or executive order to remain closed.
15. Governing Law. This Agreement and any Terms Agreement
-------------
shall be governed by and construed in accordance with the laws of the State
of New York.
16. Descriptive Headings. The descriptive headings of the
--------------------
several paragraphs of this Agreement are inserted for convenience only and
do not constitute a part of this Agreement.
17. Execution in Counterparts. This Agreement and any Terms
-------------------------
Agreement may be executed by any one or more of the parties hereto and
thereto in any number of counterparts, each of which shall be an original,
but all of such respective counterparts shall together constitute one and
the same instrument.
<PAGE>
If the foregoing is in accordance with your understanding, please
sign and return to us four counterparts hereof, whereupon this letter and
the acceptance by each of you hereof shall constitute a binding agreement
between the Company and each of you in accordance with its terms.
Very truly yours,
THE MONTANA POWER COMPANY
By: ____________________________
Vice President and Chief
Financial and Information
Officer
Accepted in New York, New York,
as of the date hereof:
<PAGE>
ANNEX I
The Montana Power Company
Medium-Term Notes, Series B
Administrative Procedure
------------------------
This Administrative Procedure relates to the Securities defined
in the Distribution Agreement, dated ___________, 1996 the ("Distribution
Agreement"), amongst The Montana Power Company (the "Company"), on the one
hand, and _____________________________________________________(each, an
"Agent" and, together, the "Agents"), on the other, to which this
Administrative Procedure is attached as Annex I. Defined terms used herein
and not defined herein shall have the meanings given such terms in the
Distribution Agreement or the Indenture. An Agent in relation to a purchase
of a Security by a purchaser solicited by such Agent is referred to herein
as the "Selling Agent" and, in relation to a purchase of a Security by such
Agent as principal other than pursuant to a Terms Agreement, as the
"Purchasing Agent".
The procedures to be followed with respect to the settlement of
sales of Securities directly by the Company to purchasers solicited by an
Agent, as agent, are set forth below. The terms and settlement details
related to a purchase of Securities by an Agent, as principal, from the
Company will be set forth in a Terms Agreement pursuant to the Distribution
Agreement, unless the Company and such Agent otherwise shall agree as
provided in Section 3 of the Distribution Agreement, in which case the
procedures to be followed in respect of the settlement of such sale will be
as set forth below.
The Company will advise each Agent in writing of those persons
with whom such Agent is to communicate regarding offers to purchase
Securities and the related settlement details.
Each Security will be issued only in fully registered form and
will be represented by either a global security (a "Global Security")
delivered to the Trustee, as agent for The Depository Trust Company (the
"Depository") or its nominee and recorded in the book-entry system
maintained by the Depository (a "Book-Entry Security") or a certificate
issued in definitive form (a "Certificated Security") delivered to an
Agent. An owner of a Book-Entry Security will not be entitled to receive a
certificate representing such a Security, except under limited
circumstances as provided in the Book-Entry Security.
Certificated Securities will be issued in accordance with the
Administrative Procedures set forth in Part I hereof, and Book-Entry
Securities will be issued in accordance with the Administrative Procedures
set forth in Part II hereof.
PART I: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED SECURITIES
--------------------------------------------------------------
Posting Rates by Company:
------------------------
The Company and the Agents will discuss from time to time the
rates of interest per annum to be borne by and the maturity of Securities
that may be sold as a result of the solicitation of offers by an Agent.
The Company may establish a fixed set of interest rates and maturities for
an offering period ("posting") and, if it should do so, will promptly
advise the Agents thereof. If the Company decides to change a posting, it
will promptly advise the Agents to suspend solicitation of offers until a
new posting has been established.
Acceptance of Offers by Company:
-------------------------------
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Securities, other
than those rejected by such Agent. Each Agent, in its discretion
reasonably exercised, may reject any offer received by it in whole or in
part. Each Agent also may make offers to the Company to purchase
Securities as a Purchasing Agent. The Company, in its sole discretion, may
accept any offer to purchase Securities and may reject any such offer, in
whole or in part.
The Company will promptly notify the Selling Agent or Purchasing
Agent, as the case may be, of its acceptance or rejection of an offer to
purchase Securities. If the Company accepts an offer to purchase
Securities, it will confirm such acceptance in writing to the Selling Agent
or Purchasing Agent, as the case may be.
Communication of Sale Information to Company by Selling Agent:
-------------------------------------------------------------
After the acceptance of an offer by the Company, the Selling
Agent or Purchasing Agent, as the case may be, will communicate the
following details of the terms of such offer (the "Sale Information") to
the Company by telephone (confirmed in writing) or by facsimile
transmission or other acceptable written means:
(1) Principal amount of Securities to be purchased;
(2) Issue Price ("Issue Price" shall mean (i) in the case of a sale
in which an Agent shall act as agent of the Company, the price to
the purchaser or (ii) in the case of a sale to an Agent as
principal, that Agent's reoffering price);
(3) Selling Agent's commission or, if applicable, Purchasing Agent's
discount (spread between the offering price and Agent's purchase
price);
(4) Net proceeds to the Company ((2) minus (3));
(5) Interest Rate, Interest Payment Dates and Initial Interest
Payment Date;
(6) Trade Date (i.e., the date of acceptance of an offer by the
Company) and Settlement Date (as hereinafter defined);
(7) Date of issue, if different from Settlement Date;
(8) Maturity date;
(9) If a redeemable Security, such of the following as are
applicable:
(i) Whether redeemable in whole or in part,
(ii) Initial Redemption Date,
(iii) Redemption Limitation Price,
(iv) Initial Redemption Price, and
(v) Reduction Percentage;
(10) The name of the Selling Agent or Purchasing Agent, as the case
may be;
(11) Name, address and taxpayer identification number of party to be
the registered owner;
(12) Denominations of certificates to be delivered at settlement;
(13) The name of the Company's bank and the account number for payment
of the purchase price.
(14) If a Security is repayable at the option of the holder thereof,
such of the following as are applicable:
(i) Repayment Date(s),
(ii) Repayment Price(s),
(iii) Election Period(s).
(15) Any other applicable terms.
Preparation of Pricing Supplement by Company:
--------------------------------------------
If the Company accepts an offer to purchase a Security, it will
prepare a Pricing Supplement. The Company will arrange to file the Pricing
Supplement with the Commission in accordance with Rule 424(b) under the Act
and will supply at least ten copies of such Pricing Supplement to the
Selling Agent or Purchasing Agent, as the case may be, not later than 5:00
p.m., New York City time, on the business day following the Trade Date, or,
if the Company and the purchaser should agree to settlement on the Trade
Date, not later than noon, New York City time, on such date. In addition,
the Company will make any filings with the Montana Public Service
Commission required by the Order.
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
---------------------------------------------------------------------
The Selling Agent will deliver to the purchaser of a Security a
written confirmation of the sale and delivery and payment instructions. In
addition, the Selling Agent will deliver to such purchaser or its agent the
Prospectus as amended or supplemented (including the Pricing Supplement)
relating to such Security prior to or together with the earlier of the
delivery to such purchaser or its agent of (a) the confirmation of sale or
(b) the Security.
Record Date:
-----------
The Record Date with respect to each Interest Payment Date shall
be the 15th calendar day immediately preceding such Interest Payment Date,
whether or not such day is a business day.
Settlement Date:
---------------
All offers solicited by a Selling Agent or made by a Purchasing
Agent and accepted by the Company will be settled on a date (the
"Settlement Date") which shall be the third business day after the Trade
Date, unless the Company and the purchaser shall agree to settle (a) on any
other business day after the Trade Date or (b) with respect to an offer
accepted by the Company prior to 10:00 a.m., New York City time, on the
Trade Date.
Instruction from Company to Trustee for Preparation of Securities:
-----------------------------------------------------------------
After receiving the Sale Information from the Selling Agent or
Purchasing Agent, as the case may be, the Company will communicate such
Sale Information to the Trustee by means of facsimile transmission or by
such other means as may be agreed upon by the Company and the Trustee.
The Company will instruct the Trustee by means of facsimile
transmission or other acceptable written means to authenticate and deliver
the Securities no later than 2:15 p.m., New York City time, or as soon
thereafter as practicable, on the Settlement Date. Such instruction will
be given by the Company prior to 3:00 p.m., New York City time, on the
Trade Date, but in no event later than the business day prior to the
Settlement Date unless the Settlement Date is the Trade Date for the
Securities in which case such instruction will be given by the Company to
the Trustee by 10:00 a.m., New York City time on the Settlement Date or as
agreed to by the Trustee.
Preparation and Delivery of Securities by Trustee and Receipt of Payment
------------------------------------------------------------------------
Therefor:
--------
The Company will instruct the Trustee to:
(i) Prepare each Security and appropriate receipts that will
serve as the documentary control of the transaction.
(ii) In the case of a sale of Securities to a purchaser
solicited by an Agent, by 2:15 p.m., New York City time, on
the Settlement Date, deliver the Securities to the Selling
Agent, at the address listed below, for the benefit of the
purchaser of such Securities against delivery by the
Selling Agent of a receipt therefor. On the Settlement
Date, the Selling Agent will deliver payment for such
Securities in immediately available funds to the Company's
account at the bank designated on the Sales Information in
an amount equal to the Issue Price of the Securities less
the Selling Agent's commission; provided that the Selling
Agent reserves the right to withhold payment for which it
shall not have received funds from the purchaser. The
Company shall not use any proceeds advanced by a Selling
Agent to acquire securities.
(iii) In the case of a sale of Securities to a Purchasing Agent,
by 2:15 p.m., New York City time, on the Settlement Date,
deliver the Securities to the Purchasing Agent, at the
address listed below, against delivery of payment therefor.
Payment for such Securities shall be made in immediately
available funds to the account of the Company as designated
in the Sales Information in an amount equal to the Issue
Price of the Securities less the Purchasing Agent's
discount.
Failure of Purchaser to Pay Selling Agent:
-----------------------------------------
If a purchaser shall fail to make payment to the Selling Agent
for any Security, the net proceeds to the Company which, theretofore, shall
have been paid by the Selling Agent to the Company, the Selling Agent will
promptly notify the Trustee and the Company of such failure in writing or
by facsimile transmission or by other acceptable written means. The
Selling Agent promptly will return such Security to the Trustee. Promptly
upon receipt of such Security by the Trustee, the Company will return to
the Selling Agent an amount equal to the amount previously paid to the
Company in respect of such Security. The Company will pay interest at the
then-prevailing broker loan rate to the Agent on the funds so paid to it
and returned during the period of one day or more in which such funds were
held by the Company.
The Trustee will cancel any Security in respect of which such a
failure shall occur, make appropriate entries in its records and, unless
otherwise instructed by the Company, destroy such Security.
Delivery of the Securities:
--------------------------
The Company shall instruct the Trustee that, unless otherwise
notified by either Agent, the Trustee shall deliver the Securities in
accordance with the procedures set forth above to the appropriate Agent at
the following address:
If to
If to
If to
If to
PART II: ADMINISTRATIVE PROCEDURE FOR BOOK-ENTRY SECURITIES
------------------------------------------------------------
In connection with the qualification of the Book-Entry Securities
for eligibility in the book-entry system maintained by the Depository, the
Trustee will perform the custodial, document control and administrative
functions described below, in accordance with its respective obligations
under a Letter of Representation from the Company and the Trustee to the
Depository, dated December __, 1996, and a Medium-Term Note Certificate
Agreement between the Trustee and the Depository, dated as of October 31,
1988 (the "Certificate Agreement") and its obligations as a participant in
the Depository, including the Depository's Same-Day Funds Settlement System
("SDFS").
Identification Numbers:
----------------------
The Company will arrange on or prior to the commencement of a
program for the offering of Book-Entry Securities, with the CUSIP Service
Bureau of Standard & Poor's Corporation (the "CUSIP Service Bureau") for
the reservation of a series of CUSIP numbers (including tranche numbers),
such series consisting of approximately 900 CUSIP numbers and relating to
Global Securities representing Book-Entry Securities. The Company will
obtain from the CUSIP Service Bureau a written list of such reserved CUSIP
numbers and will deliver such list to the Trustee and the Depository. The
Trustee will assign CUSIP numbers serially to Global Securities as
described under Settlement Procedure "B". The Depository will notify the
CUSIP Service Bureau periodically of the CUSIP numbers that the Trustee has
assigned to Global Securities. At any time when fewer than 100 of the
reserved CUSIP numbers remain unassigned to Global Securities, the Trustee
shall so advise the Company and, if it deems necessary, the Company will
reserve additional CUSIP numbers for assignment to Global Securities
representing BookEntry Securities. Upon obtaining such additional CUSIP
numbers, the Company shall deliver a list of such additional CUSIP numbers
to the Trustee and the Depository.
Registration:
------------
Each Global Security will be registered in the name of CEDE &
Co., a nominee for the Depository, on the security register maintained
under the Indenture. The beneficial owner of a Book-Entry Security (or one
or more indirect participants in the Depository designated by such owner)
will designate one or more participants in the Depository (with respect to
such Security, the "Participants") to act as agent or agents for such owner
in connection with the book-entry system maintained by the Depository, and
the Depository will record in book-entry form, in accordance with
instructions provided by such Participants, a credit balance with respect
to such Book-Entry Security in the account of such Participants. The
ownership interest of such beneficial owner in such Book-Entry Security
will be recorded through the records of such Participants or through the
separate records of such Participants and one or more indirect participants
in the Depository. So long as CEDE & Co. is the registered owner of a
Global Security, the Depository will be considered the sole owner and
holder of the Book-Entry Securities represented by such Global Security for
all purposes under the Indenture.
Transfers:
---------
Transfers of a Book-Entry Security will be accomplished by book
entries made by the Depository and, in turn, by Participants (and, in
certain cases, one or more indirect participants in the Depository) acting
on behalf of beneficial transferors and transferees of such Security.
Exchanges:
---------
The Trustee may deliver to the Depository and the CUSIP Service
Bureau at any time a written notice of consolidation (a copy of which shall
be attached to the Global Security resulting from such consolidation)
specifying (i) the CUSIP numbers of two or more outstanding Global
Securities that represent Book-Entry Securities having the same interest
rate, maturity date and tenor, and for which interest has been paid to the
same date, (ii) a date, occurring at least thirty days after such written
notice is delivered and at least thirty days before the next interest
payment date for such Global Securities, on which such Global Securities
shall be exchanged for a single replacement Global Security and (iii) a new
CUSIP number to be assigned to such replacement Global Security. Upon
receipt of such notice, the Depository will send to its Participants
(including the Trustee) a written reorganization notice to the effect that
such exchange will occur on such date. Prior to the specified exchange
date, the Trustee will deliver to the CUSIP Service Bureau a written notice
setting forth such exchange date and the new CUSIP number and stating that,
as of such exchange date, the CUSIP numbers of the Global Securities to be
exchanged will no longer be valid. On the specified exchange date, the
Trustee will exchange such Global Securities for a single Global Security
bearing the new CUSIP number and a new Issue Date, which shall be the most
recent interest payment date to which interest has been paid or duly
provided for on the predecessor Global Securities, and the CUSIP numbers of
the exchanged Global Securities will, in accordance with CUSIP Service
Bureau procedures, be cancelled and not immediately reassigned.
Redemption:
----------
The Trustee will comply with the terms of the Letter of
Representations with regard to redemptions of the Book-Entry Securities. If
a Global Security is to be redeemed in part, the Trustee will cancel such
Global Security and issue a Global Security which shall represent the
remaining portion of such Global Security and shall bear the CUSIP number
of the cancelled Global Security.
Denominations:
-------------
Book-Entry Securities will be issued in principal amounts of
$1,000 or any amount in excess thereof that is an integral multiple of
$1,000. Global Securities will be denominated in principal amounts not in
excess of $150,000,000. If one or more Book-Entry Securities having an
aggregate principal amount in excess of $150,000,000 would, but for the
preceding sentence, be represented by a single Global Security, then one
Global Security will be issued to represent $150,000,000 principal amount
of such Book-Entry Security or Securities and an additional Global Security
will be issued to represent any remaining principal amount of such
Book-Entry Security or Securities. In such a case, each of the Global
Securities representing such Book-Entry Security or Securities shall be
assigned the same CUSIP number.
Interest:
--------
Standard & Poor's Corporation will use the information received
in the pending deposit message described under Settlement Procedure "C" to
include the amount of any interest payable and certain other information
regarding the related Global Security in the appropriate daily bond report
published by Standard & Poor's Corporation.
Record Date:
-----------
The Record Date with respect to each Interest Payment Date shall
be the 15th calendar day immediately preceding such Interest Payment Date,
whether or not such day is a business day.
Payments of Principal and Interest:
----------------------------------
(i) Payments of Interest Only. Promptly after each record
-------------------------
date, the Trustee will deliver to the Company and the Depository a written
notice specifying by CUSIP number the amount of interest to be paid on each
Global Security on the following interest payment date (other than an
interest payment date coinciding with the maturity date) and the total of
such amounts. Such information may be provided by means of facsimile
transmission. The Depository will confirm the amount payable on each
Global Security on such interest payment date by reference to the daily
bond reports published by Standard & Poor's Corporation. The Company will
pay to the Trustee the total amount of interest due on such interest
payment date, and the Trustee will pay such amount to the Depository at the
times and in the manner set forth below under "Manner of Payment". If any
interest payment date for a Book-Entry Security is not a business day, the
payment due on such day shall be made on the next succeeding business day
and no interest shall accrue on such payment for the period from and after
such interest payment date.
(ii) Payments at Maturity. On or about the first business day
--------------------
of each month, the Trustee will deliver to the Company and the Depository a
written list of principal and interest to be paid on each Global Security
maturing in the following month. The Company, the Trustee and the
Depository will confirm the amounts of such principal and interest payments
with respect to each such Global Security on or about the fifth business
day preceding the maturity of such Global Security. The Company will pay
to the Trustee, as the paying agent, the principal amount of such Global
Security, together with interest due at such maturity. Upon surrender of a
Global Security, the Trustee will pay such amounts to the Depository at the
times and in the manner set forth below under "Manner of Payment". If any
maturity of a Global Security representing Book-Entry Securities is not a
business day, the payment due on such day shall be made on the next
succeeding business day and no interest shall accrue on such payment for
the period from and after such maturity. Promptly after payment to the
Depository of the principal, interest and premium, if any, due at the
maturity of such Global Security, the Trustee will cancel and destroy such
Global Security.
(iii) Manner of Payment. The total amount of any principal and
-----------------
interest due on a Global Security on any interest payment date or at
maturity shall be paid by the Company to the Trustee in funds available for
use by the Trustee as of 9:30 a.m., New York City time, on such date. The
Company will make such payment on such Global Securities by instructing the
Trustee to withdraw funds from an account maintained by the Company at
Citibank, N. A., account number ____________. The Company will confirm
instructions regarding payment in writing to the Trustee. Prior to 10:00
a.m., New York City time, on each maturity date or as soon as possible
thereafter, following receipt of such funds from the Company, the Trustee
will pay by separate wire transfer (using Fedwire message entry
instructions in a form previously specified by the Depository) to an
account at the Federal Reserve Bank of New York previously specified by the
Depository, in funds available for immediate use by the Depository, each
payment of principal (together with interest thereon) due on Global
Securities on any maturity date. On each interest payment date, interest
payment shall be made to the Depository in accordance with existing
arrangements between the Trustee and the Depository. Thereafter, on each
such date, the Depository will pay, in accordance with its SDFS operating
procedures then in effect, such amounts in funds available for immediate
use to the respective Participants in whose names the Book-Entry Securities
represented by such Global Securities are recorded in the book-entry system
maintained by the Depository. NEITHER THE COMPANY NOR THE TRUSTEE SHALL
HAVE ANY DIRECT RESPONSIBILITY OR LIABILITY FOR THE PAYMENT BY THE
DEPOSITORY TO SUCH PARTICIPANTS OF THE PRINCIPAL OF AND INTEREST ON THE
BOOK-ENTRY SECURITIES.
(iv) Withholding Taxes. The amount of any taxes required under
-----------------
applicable law to be withheld from any interest payment on a Book-Entry
Security will be determined and withheld by the Participant, indirect
participant in the Depository or other person responsible for forwarding
payments and materials directly to the beneficial owner of such Security.
Posting Rates by Company:
------------------------
The Company and the Agents will discuss from time to time the
rates of interest per annum to be borne by and the maturity of Book-Entry
Securities that may be sold as a result of the solicitation of offers by an
Agent. The Company may establish a fixed set of interest rates and
maturities for a posting and, if it should do so, will promptly advise the
Agents thereof. If the Company decides to change a posting, it will
promptly advise the Agents to suspend solicitation of offers until a new
posting has been established.
Acceptance of Offers by Company:
-------------------------------
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Book-Entry
Securities, other than those rejected by such Agent. Each Agent, in its
discretion reasonably exercised, may reject any offer received by it in
whole or in part. Each Agent also may make offers to the Company to
purchase Book-Entry Securities as a Purchasing Agent. The Company, in its
sole discretion, may accept any offer to purchase Book-Entry Securities and
may reject any such offer, in whole or in part.
The Company will promptly notify the Selling Agent or Purchasing
Agent, as the case may be, of its acceptance or rejection of an offer to
purchase Book-Entry Securities. If the Company accepts an offer to
purchase Book-Entry Securities, it will confirm such acceptance in writing
to the Selling Agent or Purchasing Agent, as the case may be.
Communication of Sale Information to the Company by Selling Agent and
---------------------------------------------------------------------
Settlement Procedures:
---------------------
A. After the acceptance of an offer by the Company, the Selling
Agent or Purchasing Agent, as the case may be, will communicate promptly,
but in no event later than the time set forth under "Settlement Procedure
Timetable" below, the following Sale Information to the Company by
telephone (confirmed in writing) or by facsimile transmission or other
acceptable written means:
(1) Principal amount of Book-Entry Securities to be purchased;
(2) Issue Price;
(3) Selling Agent's commission or, if applicable, Purchasing Agent's
discount (spread between the offering price and Agent's purchase
price);
(4) Net proceeds to the Company ((2) minus (3));
(5) Interest Rate, Interest Payment Dates, and Initial Interest
Payment Date;
(6) Trade Date and Settlement Date;
(7) Date of issue, if different from Settlement Date;
(8) Maturity date;
(9) If a redeemable Book-Entry Security, such of the following as are
applicable:
(i) Whether redeemable in whole or in part,
(ii) Initial Redemption Date,
(iii) Redemption Limitation Date,
(iv) Initial Redemption Price, and
(v) Reduction Percentage;
(10) The name of the Selling Agent or Purchasing Agent, as the case
may be;
(11) If the Book-Entry Security is repayable at the option of the
holder thereof, such of the following as are applicable:
(i) Repayment Date(s),
(ii) Repayment Price(s),
(iii) Election Period(s).
(12) Any other applicable terms.
B. After receiving the Sale Information from the Selling Agent or
Purchasing Agent, the Company will communicate such Sale Information to the
Trustee by means of facsimile transmission (confirmed by telephone) or by
such other means as may be agreed upon by the Company and the Trustee. The
Trustee will assign a CUSIP number to the Global Security from a list of
CUSIP numbers previously delivered to the Trustee by the Company
representing such Book-Entry Security and then advise the Company and the
Selling Agent or Purchasing Agent, as the case may be, by telephone of such
CUSIP number.
C. The Trustee will enter a pending deposit message through the
Depository's Participant Terminal System, providing the following
settlement information to the Depository (which shall route such
information to Standard & Poor's Corporation and Interactive Data
Corporation) and the relevant Agent:
(1) The applicable Sale Information;
(2) CUSIP number of the Global Security representing such
Book-Entry Security;
(3) Whether such Global Security will represent any other
Book-Entry Security (to the extent known at such time);
(4) Number of Participant accounts maintained by the Depository
on behalf of the Selling Agent or Purchasing Agent, as the
case may be;
(5) The interest payment periods;
(6) Initial Interest Payment Date for such Book-Entry Security,
number of days by which such date succeeds the record date
for the Depository's purposes and, if calculable at that
time, the amount of interest payable on such Interest
Payment Date per $1,000 principal amount of BookEntry
Securities;
D. The Company will deliver to the Trustee from time to time an
inventory of Global Securities representing Book-Entry Securities.
E. The Trustee will complete and authenticate the Global Security
representing such Book-Entry Security.
F. The Depository will credit such Book-Entry Security to the
Trustee's participant account at the Depository.
G. The Trustee will enter an SDFS deliver order through the
Depository's Participant Terminal System, with respect to each Book-Entry
Security represented by the Global Security to be issued, instructing the
Depository to (i) debit such Book-Entry Security to the Trustee's
participant account and credit such Book-Entry Security to such Agent's
participant account and (ii) debit such Agent's settlement account and
credit the Trustee's settlement account for an amount equal to the price of
such Book-Entry Security less such Agent's commission. The entry of such a
deliver order shall constitute a representation and warranty by the Trustee
to the Depository that (a) the Global Security representing such Book-Entry
Security has been delivered and authenticated and (b) the Trustee is
holding such Global Security pursuant to the Certificate Agreement.
H. Such Agent will enter an SDFS deliver order through the
Depository's Participant Terminal System, with respect to each Book-Entry
Security represented by the Global Security to be issued, instructing the
Depository (i) to debit such Book-Entry Security to such Agent's
participant account and credit such Book-Entry Security to the participant
accounts of the Participant with respect to such Book-Entry Security and
(ii) to debit the settlement accounts of such Participant and credit the
settlement account of such Agent for an amount equal to the price of such
Book-Entry Security.
I. Transfers of funds in accordance with SDFS deliver orders
described in Settlement Procedures "G" and "H" will be settled in
accordance with SDFS operating procedures in effect on the settlement date.
J. Upon confirmation of receipt of funds, the Trustee will transfer
to the account of the Company maintained at Citibank, N. A., account number
______________, or such other account as the Company may have previously
specified to the Trustee, in funds available for immediate use in the
amount transferred to the Trustee in accordance with Settlement Procedure
"G".
K. Upon request, the Trustee will send to the Company a statement
setting forth the principal amount of Book-Entry Securities outstanding as
of that date under the Indenture. Such information may be provided by means
of facsimile transmission.
L. Such Agent will confirm the purchase of each Book-Entry Security
to the purchaser either by transmitting to the Participants with respect to
such Book-Entry Security a confirmation order or orders through the
Depository's institutional delivery system or by mailing a written
confirmation to such purchaser.
M. The Depository will, at any time upon request of the Company or
the Trustee, promptly furnish to the Company or the Trustee a list of the
names and addresses of the participants for whom the Depository has
credited Book-Entry Securities.
Preparation of Pricing Supplement by Company:
--------------------------------------------
If the Company accepts an offer to purchase a Book-Entry
Security, it will prepare a Pricing Supplement. The Company will file the
Pricing Supplement with the Commission in accordance with Rule 424(b) under
the Act and will supply at least ten copies of such Pricing Supplement to
the Selling Agent or Purchasing Agent, as the case may be, not later than
5:00 p.m., New York City time, on the business day following the Trade
Date, or, if the Company and the purchaser should agree to settlement on
the Trade Date, not later than noon, New York City time, on such date. In
addition, the Company will make any filings with the Montana Public Service
Commission required by the Order.
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
---------------------------------------------------------------------
The Selling Agent will deliver to the purchaser of a Book-Entry
Security a written confirmation of the sale and delivery and payment
instructions. In addition, the Selling Agent will deliver to such
purchaser or its agent the Prospectus as amended or supplemented (including
the Pricing Supplement) relating to such Book-Entry Security prior to or
together with the earlier of the delivery to such purchaser or its agent of
(a) the confirmation of sale or (b) the Book-Entry Security.
Settlement Date:
---------------
The receipt by the Company of immediately available funds in
payment for a Book-Entry Security and the authentication and issuance of
the Global Security or Global Securities representing such Book-Entry
Security shall constitute "settlement" with respect to such Book-Entry
Security. All orders accepted by the Company will be settled on the third
business day after the Trade Date pursuant to the timetable for settlement
set forth below unless the Company and the purchaser agree to settlement on
another day which shall be no earlier than the next business day following
the Trade Date.
Settlement Procedure Timetable:
------------------------------
For orders of Book-Entry Securities solicited by an Agent, as
agent, and accepted by the Company, Settlement Procedures "A" through "J"
set forth above shall be completed as soon as possible but not later than
the respective times (New York City time) set forth below:
Settlement
Procedure
---------
A 2:00 p.m. on the business day following Trade Date
B 2:00 p.m. on the business day following Trade Date
C 5:00 p.m. on the business day following Trade Date
D 3:00 p.m. on the business day before the
Settlement Date
E 9:00 a.m. on Settlement Date
F 10:00 a.m. on Settlement Date
G-H 2:00 p.m. on Settlement Date
I 4:45 p.m. on Settlement Date
J 5:00 p.m. on Settlement Date
If a sale is to be settled within one business day after the
Trade Date, Settlement Procedures "A," "B," "C" and "D" shall be completed
as soon as practicable but not later than 5:00 p.m. on the Trade Date.
Settlement Procedure "I" is subject to extension in accordance with any
extension of Fedwire closing deadlines and in the other events specified in
the SDFS operating procedures in effect on the Settlement Date.
If settlement of a Book-Entry Security is rescheduled or
canceled, the Company shall notify the Trustee, upon receipt of such
notice, the Trustee will deliver to the Depository, through the
Depository's Participation Terminal System, a cancellation message to such
effect by no later than 2:00 p.m., New York City time, on the business day
immediately preceding the scheduled Settlement Date.
Failure to Settle
-----------------
If the Trustee fails to enter an SDFS deliver order with respect
to a Book-Entry Security pursuant to Settlement Procedure "G", then upon
written request (which may be evidenced by telecopy transmission) of the
Company the Trustee shall deliver to the Depository, through the
Depository's Participant Terminal System, as soon as practicable but no
later than 2:00 p.m. on any business day, a withdrawal message instructing
the Depository to debit such Book-Entry Security to the Trustee's
participant account, provided that the Trustee's participant account
contains a principal amount of the Global Security representing such
Book-Entry Security that is at least equal to the principal amount to be
debited. If a withdrawal message is processed with respect to all the
Book-Entry Securities represented by a Global Security, the Trustee will
mark such Global Security "canceled", make appropriate entries in the
Trustee's records and send such canceled Global Security to the Company.
The CUSIP number assigned to such Global Security shall, in accordance with
CUSIP Service Bureau procedures, be canceled and not immediately
reassigned. If a withdrawal message is processed with respect to one or
more, but not all, of the Book-Entry Securities represented by a Global
Security, the Trustee will exchange such Global Security for two Global
Securities, one of which shall represent such Book-Entry Security or
Securities and shall be canceled immediately after issuance and the other
of which shall represent the remaining Book-Entry Securities previously
represented by the surrendered Global Security and shall bear the CUSIP
number of the surrendered Global Security.
If the purchase price for any Book-Entry Security is not timely
paid to the participants with respect to such Book-Entry Security by the
beneficial purchaser thereof (or a person, including an indirect
participant in the Depository, acting on behalf of such purchaser), such
participants and, in turn, the Agent for such Book-Entry Security may enter
deliver orders through the Depository's Participant Terminal System
debiting such Book-Entry Security to such participant's account and
crediting such Book-Entry Security to such Agent's account and then
debiting such Book-Entry Security to such Agent's account and crediting
such Book Entry Security to the Trustee's participant account and shall
notify the Company and the Trustee thereof. Thereafter, the Trustee will
(i) immediately notify the Company, once the Trustee has confirmed that
such Book-Entry Security has been credited to its participant account, and
the Company shall immediately transfer to such Agent funds available for
immediate use in an amount equal to the price of such Book-Entry Security
which was credited to the account of the Company maintained at the Trustee
in accordance with Settlement Procedure J, and (ii) deliver the withdrawal
message and take the related actions described in the preceding paragraph.
If such failure shall have occurred for any reason other than default by
the applicable Agent to perform its obligations hereunder or under the
Distribution Agreement, the Company will pay interest at the
then-prevailing broker loan rate to such Agent on the funds so paid to it
and returned during the period of one day or more in which such funds were
held by the Company.
Notwithstanding the foregoing, upon any failure to settle with
respect to a Book-Entry Security, the Depository may take any actions in
accordance with its SDFS operating procedures then in effect. In the event
of a failure to settle with respect to one or more, but not all, of the
Book-Entry Securities to have been represented by a Global Security, the
Trustee will provide, in accordance with Settlement Procedure "D" and "E,"
for the authentication and issuance of a Global Security representing the
other Book-Entry Securities to have been represented by such Global
Security and will make appropriate entries in its records.
Trustee Not to Risk Funds:
-------------------------
Nothing herein shall be deemed to require the Trustee to risk or
expend its own funds in connection with any payment to the Company, or the
Agents or the Depository, it being understood by all parties that payments
made by the Trustee to either the Company, the Depository or the Agents
shall be made only to the extent that funds are provided to the Trustee for
such purpose.
<PAGE>
ANNEX II
The Montana Power Company
Medium-Term Notes, Series B
Terms Agreement
---------------
Ladies and Gentlemen:
Subject to the terms and conditions set forth herein and, to the
extent provided below, in the Distribution Agreement, dated _________ ,
19__ (the "Distribution Agreement"), amongst The Montana Power Company (the
"Company"), on the one hand, and ___________________(each an "Agent" and,
together, the "Agents"), on the other, the Company proposes to issue and
sell to ___________________________ the Securities (as defined in the
Distribution Agreement) specified in the Schedule hereto (the "Purchased
Securities"), at the time, place and purchase price and upon the terms and
conditions set forth in the Schedule hereto. Each of the provisions of the
Distribution Agreement not specifically related to the solicitation by the
Agents, as agents of the Company, of offers to purchase Securities is
incorporated herein by reference in its entirety, and shall be deemed to be
part of this Terms Agreement to the same extent as if such provisions had
been set forth in full herein.
Each of the representations and warranties set forth in the
Distribution Agreement shall be deemed to have been made by the Company at
and as of the date of this Terms Agreement, except that each such
representation and warranty which makes reference to the Prospectus shall
be deemed to be a representation and warranty as of the date of the
Distribution Agreement in relation to the Prospectus (as therein defined),
and also a representation and warranty as of the date of this Terms
Agreement in relation to the Prospectus as amended and supplemented to
relate to the Purchased Securities.
An amendment to the Registration Statement, or a supplement to
the Prospectus, as the case may be, relating to the Purchased Securities,
in the form heretofore delivered to and approved by you, is now proposed to
be filed with the Commission in accordance with Rule 424(b) under the Act.
Subject to the terms and conditions set forth herein and to those
of the Distribution Agreement incorporated herein by reference, the Company
agrees to issue and sell to _______________________________________ and
___________________________________________agrees to purchase from the
Company the Purchased Securities, at the time and place, in the principal
amount and at the purchase price set forth in the Schedule hereto.
If the foregoing is in accordance with your understanding, please
sign and return to us three counterparts hereof, whereupon this letter,
including those provisions of the Distribution Agreement incorporated
herein by reference, shall constitute a binding agreement between you and
the Company.
THE MONTANA POWER COMPANY
By:_________________________
Title:
Accepted in New York, New York,
as of the date hereof:
<PAGE>
Schedule to Annex II
Title of Purchased Securities: Medium-Term Notes, Series B
-----------------------------
Aggregate Principal Amount: $
--------------------------
Price to Public:
---------------
Purchase Price by _______________ : % of the principal amount of the
----------------------------------
Purchased Securities [, plus accrued interest from to ] [and
accrued amortization, if any, from to ] .-
Method of and Specified Funds for Payment of Purchase Price:
-----------------------------------------------------------
[By certified or official bank check or checks, payable to the
order of the Company, in [[New York Clearing House] [immediately available]
funds]
[By wire transfer to a bank account specified by the Company in
[next day] [immediately available] funds]
Time of Delivery:
----------------
Closing Location:
----------------
Maturity:
--------
Interest Rate:
-------------
Interest Payment Dates: [months and dates]
----------------------
Redemption, if any:
------------------
Documents to be Delivered as a Condition to the Closing:
-------------------------------------------------------
[(1) The opinion of counsel to the Agents referred to in Section
4(a).]
[(2) The opinion of counsel to the Company referred to in
Section 4(b).]
[(3) The opinion of counsel to the Company referred to in
Section 4(c).]
[(4) The accountants' letter referred to in Section 4(d).]
[(5) The officers' certificate referred to in Section 4(e).]
[(6) Such other documents required by the Agents or counsel to
the Agents referred to in Section 4(f).
Other Provisions (including Syndicate Provisions,
-------------------------------------------------
if applicable):
--------------
<PAGE>
ANNEX III
FORM OF OPINION OF
MICHAEL E. ZIMMERMANN, ESQ.
[DATE]
[AGENTS]
Ladies and Gentlemen:
I am General Counsel of The Montana Power Company (the "Company")
and have acted as such in connection with the proposed issuance and sale
from time to time by the Company of up to $150,000,000 in aggregate
principal amount of the Company's Medium-Term Notes, Series B (the
"Notes"), to be issued under the Company's Indenture, dated as of December
1, 1989, to Citibank, N.A., as Trustee (the "Trustee") (the "Indenture"),
and the appointment of each of you as agent of the Company pursuant to the
Distribution Agreement, dated __________, 19__ (the "Distribution
Agreement"), between the Company and each of you, for the purposes of
soliciting and receiving offers to purchase Notes and purchasing Notes, as
principals, from the Company.
In my capacity as General Counsel, I have examined and am
familiar with: (a) the Restated Articles of Incorporation, as amended, and
Bylaws, as amended, of the Company; (b) the Indenture; (c) the Distribution
Agreement; (d) the Registration Statement filed by the Company with the
Securities and Exchange Commission (the "Commission") for the registration
under the Securities Act of 1933, as amended (the "Act"), of the Notes; (e)
the Prospectus as amended and supplemented; (f) the proceedings before the
Montana Public Service Commission relating to the issuance and sale of the
Notes; and (g) the records of various corporate and other proceedings
relating to the authorization, issuance and sale of the Notes. I have also
examined or caused to be examined such other documents and satisfied myself
as to such other matters as I have deemed necessary in order to render this
opinion. I have not examined the Notes, except a specimen thereof. The
terms "Registration Statement" and "Prospectus as amended and supplemented"
as used herein have the respective meanings ascribed thereto in the
Distribution Agreement.
In my examination of the documents referred to above, I have
assumed the authenticity of all such documents submitted to me as
originals, the genuineness of all signatures, the due authority of the
persons executing such documents and the conformity to the originals of all
documents submitted to me as copies. I also have assumed that the Notes
will be delivered to you or in accordance with your instructions and that
the Company will receive payment of the purchase price thereof.
Based upon the foregoing and upon my familiarity with the
properties and affairs of the Company generally, I am of the opinion that:
(1) The Company and its Subsidiaries (as defined in the
Distribution Agreement) have been duly incorporated and are validly
existing as corporations in good standing under the laws of the
respective jurisdictions of their incorporation, with full corporate
power and authority to own and operate their properties and conduct
the businesses in which they are now engaged as described in the
Prospectus as amended and supplemented; and the Company and its
Subsidiaries are duly qualified to do business as foreign corporations
and are in good standing in all other jurisdictions in the United
States and in Canada in which such qualification is required; and all
of the outstanding shares of capital stock of each Subsidiary are
owned beneficially by the Company, subject to no mortgage, pledge,
lien, charge or other encumbrance.
(2) The Company and its Subsidiaries have valid and subsisting
franchise rights, licenses, permits, and other authorizations, free
from any restrictions or conditions which are unusual or unduly
burdensome, sufficient for the ownership of their properties and the
conduct of the businesses in which they are now engaged as described
in the Prospectus.
(3) The Registration Statement has become effective under the
Act, and, to the best of my knowledge, no stop order suspending the
effectiveness thereof has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission; the
Indenture has been duly qualified under the Trust Indenture Act of
1939 (the "Trust Indenture Act"); the Registration Statement, when it
became effective, complied, and the Prospectus (excluding the
documents incorporated therein by reference pursuant to Item 2 of Form
S-3), on the date hereof, complies as to form in all material respects
with the requirements of the Act, the rules and regulations thereunder
and the Trust Indenture Act; and such incorporated documents as of
their respective dates of filing complied as to form in all material
respects with the requirements of the Securities Exchange Act of 1934,
as amended, and the rules and regulations thereunder (except, in each
case, I express no opinion as to the financial statements and other
financial or statistical data contained therein).
(4) The Montana Public Service Commission has entered an order
(the "Order"), which, to the best of my knowledge, remains in full
force and effect, authorizing the issuance and sale by the Company of
the Notes in conformity with the Distribution Agreement; no other
authorization, approval, consent, registration, qualification or other
order of or with any governmental authority is required for the
authorization of the issuance and sale of the Notes in conformity with
the Order by the Company pursuant to the Distribution Agreement,
except such as have been obtained under the Act and the Trust
Indenture Act or as may be required under state securities laws in
connection with the purchase and distribution of the Notes; and the
Company is not a "holding company" or a "subsidiary company" of a
"holding company" within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
(5) The Notes have been duly authorized by the resolutions
adopted by the Board of Directors on October 22, 1996 (the "Board
Resolution"), and when the terms of the Notes shall have been
determined as contemplated by and in accordance with the Indenture and
the Board Resolution, such terms will have been duly authorized by the
Company and will have been established in conformity with the
Indenture.
(6) The Notes, when executed by the Company, completed and
authenticated by the Trustee, delivered by the Company and paid for by
the purchasers thereof, all as contemplated by and in accordance with
the Indenture, the Board Resolution and the Order, will have been duly
issued under the Indenture and will constitute valid and legally
binding obligations of the Company, entitled to the benefits provided
by the Indenture.
(7) The Indenture has been duly authorized, executed and
delivered by the Company and the Trustees (or their predecessors), and
is a valid and legally binding obligation of the Company enforceable
in accordance with its terms, except as the same may be limited by
applicable bankruptcy, reorganization or other similar laws affecting
creditors' rights generally.
(8) The Distribution Agreement [and any applicable Terms
Agreement (as defined in the Distribution Agreement)] has been duly
authorized, executed and delivered by the Company.
(9) The performance of the Distribution Agreement and the
consummation of the transactions therein contemplated will not result
in a breach of any the terms and provisions of, or constitute a
default under, the Company's Restated Articles of Incorporation, as
amended, or Bylaws, as amended, or any indenture, mortgage, deed of
trust or other agreement or instrument known to me to which the
Company is a party or by which it is bound or to which any of the
property of the Company is subject or any order, rule or regulation
known to me of any court or governmental agency or body having
jurisdiction over the Company or any of its properties.
(10) Except as described in the Prospectus, as amended and
supplemented, there are no pending material legal or governmental
proceedings and, to my knowledge, no material threatened legal or
governmental proceedings, to which the Company or any Subsidiary is a
party or of which any of the property of the Company or any Subsidiary
is subject, other than ordinary litigation incidental to the kinds of
businesses conducted by the Company or the Subsidiaries.
(11) The statements of Montana and Federal law, and legal
conclusions based thereon, contained in the documents incorporated by
reference pursuant to Item 2 of Form S-3 in the Prospectus as amended
and supplemented have been reviewed by me and are correct (except to
the extent that any statement contained in any such incorporated
document may be deemed to have been modified or superseded by any such
subsequently filed document).
In the course of the preparation by the Company of the
Registration Statement, the Prospectus as amended and supplemented and the
documents incorporated therein by reference pursuant to Item 2 of Form S-3,
I have participated in conferences with certain officers and employees of
the Company and representatives of Price Waterhouse, the independent
accountants who examined certain of the financial statements included in
the Registration Statement, but I have made no independent verification of
the accuracy or completeness of the representations and statements made to
me by such person or the information included by the Company in the
Registration Statement and the Prospectus as amended and supplemented, and
take no responsibility therefor, except as set forth in paragraph 11
hereof. However, my examination of the Registration Statement and the
Prospectus as amended and supplemented and my discussions in the
above-mentioned conferences did not disclose to me any information which
gives me reason to believe that, when the Registration Statement became
effective, it contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make
the statements therein not misleading, or that, as of the date of this
opinion, the Prospectus as amended and supplemented (including the
documents incorporated therein by reference pursuant to Item 2 of Form S-3)
includes 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;
provided, that I do not express any belief as to the financial statements
or other financial or statistical data contained in the Registration
Statement or the Prospectus as amended and supplemented, or as to any
information contained therein furnished to the Company in writing by either
of you expressly for use therein.
I am a member of the bar of the State of Montana and do not hold
myself out as an expert on the laws of the State of New York or Federal
securities laws. Accordingly, in rendering this opinion, I have relied,
with your consent, as to all matters governed by the laws of the State of
New York or by Federal securities laws upon the opinion of even date
herewith addressed to you by Reid & Priest LLP, New York, New York, special
counsel for the Company. I have read such opinion and concur in the
conclusions expressed therein insofar as such conclusions involve questions
of Montana law.
This opinion may be relied upon by you only in connection with
the issuance and sale of the Notes. This opinion also may be relied upon
by the Trustee and, as to matters governed by the laws of the State of
Montana, by Reid & Priest LLP and your counsel, Milbank, Tweed, Hadley &
McCloy, only in connection with the issuance and sale of the Notes, as if
they were named addressees of this opinion. This opinion may not be relied
upon by you, them or any other person for any other purpose whatsoever
without, in each instance, my prior written consent.
Very truly yours,
Michael E. Zimmermann, Esq.
<PAGE>
ANNEX IV
FORM OF OPINION OF Reid & Priest LLP
[DATE]
[AGENTS]
Ladies and Gentlemen:
We have acted as special counsel to The Montana Power Company
(the "Company") in connection with the proposed issuance and sale from time
to time by the Company of up to $150,000,000 in aggregate principal amount
of the Company's Medium-Term Notes, Series B (the "Notes"), to be issued
under the Company's Indenture, dated as of December 1, 1989 to Citibank,
N.A., as Trustee (the "Trustee") (the "Indenture"), and the appointment of
each of you as agents of the Company pursuant to the Distribution
Agreement, dated _________, 19__ (the "Distribution Agreement"), between
the Company and each of you, for the purpose of soliciting and receiving
offers to purchase Notes and purchasing Notes, as principals, from the
Company.
In our capacity as such counsel, we have examined and are
familiar with: (a) the Restated Articles of Incorporation, as amended, and
Bylaws, as amended, of the Company; (b) the Indenture; (c) the Distribution
Agreement; (d) the Registration Statement filed by the Company with the
Securities and Exchange Commission (the "SEC") for the registration under
the Securities Act of 1933, as amended (the "Act"), of the Notes; (e) the
Prospectus as amended and supplemented; and (f) the application to and
order of the Montana Public Service Commission relating to the issuance and
sale of the Notes. We have also examined such other documents and
satisfied ourselves as to such other matters as we have deemed necessary in
order to render this opinion. We have not examined the Notes, except a
specimen thereof. The terms "Registration Statement" and "Prospectus as
amended and supplemented" as used herein have the respective meanings
ascribed thereto in the Distribution Agreement.
In our examination of the documents referred to above, we have
assumed the authenticity of all such documents submitted to us as
originals, the genuineness of all signatures, the due authority of the
persons executing such documents and the conformity to the originals of all
documents submitted to us as copies. We also have assumed that the Notes
will be delivered to you or in accordance with your instructions and that
the Company will receive payment of the purchase price thereof.
Based upon the foregoing, we are of the opinion that:
(1) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Montana, with full corporate power and authority to own and operate its
properties and conduct the business in which it is now engaged as described
in the Prospectus as amended and supplemented.
(2) The Registration Statement has become effective under the
Act, and, to the best of our knowledge, no stop order suspending the
effectiveness thereof has been issued and no proceeding for that purpose
has been initiated or threatened by the SEC; the Indenture has been duly
qualified under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"); the Registration Statement, when it became effective,
complied, and the Prospectus (excluding the documents incorporated therein
by reference pursuant to Item 2 of Form S-3), on the date hereof, complies,
as to form in all material respects with the requirements of the Act, the
Trust Indenture Act and the rules and regulations of the SEC thereunder;
and such incorporated documents, as of their respective dates of filing,
complied as to form in all material respects with the requirements of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
of the SEC thereunder (except, in each case we express no opinion as to the
financial statements and other financial or statistical data contained
therein).
(3) The Montana Public Service Commission has entered an order
(the "Order"), which, to the best of our knowledge, remains in full force
and effect, authorizing the issuance and sale by the Company of the Notes
in conformity with the Distribution Agreement; no other authorization,
approval, consent, registration, qualification or other order of or with
any governmental authority is required for the authorization of the
issuance and sale of the Notes in conformity with the Order by the Company
pursuant to the terms of the Distribution Agreement, except such as have
been obtained under the Act and the Trust Indenture Act or as may be
required under state securities laws in connection with the purchase and
distribution of the Notes; and the Company is not a "holding company" or a
"subsidiary company" of a "holding company" within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
(4) The Notes have been duly authorized by the resolutions
adopted by the Board of Directors on October 22, 1996 (the "Board
Resolution"); when the terms of the Notes shall have been determined as
contemplated by and in accordance with the Indenture and the Board
Resolution, such terms will have been duly authorized by the Company and
will have been established in conformity with the Indenture; and the Notes
conform to the description thereof contained in the Prospectus as amended
and supplemented.
(5) The Notes, when executed by the Company, completed and
authenticated by the Trustee, delivered by the Company and paid for by the
purchasers thereof, all as contemplated by and in accordance with the
Indenture, the Board Resolution and the Order, will have been duly and
validly issued under the Indenture and will constitute valid and legally
binding obligations of the Company, entitled, equally and ratably with all
other securities issued and to be issued thereunder, to the benefits
provided by the Indenture.
(6) The Indenture has been duly authorized, executed and
delivered by the Company and the Trustee, and is a valid and legally
binding obligation of the Company enforceable in accordance with its terms,
except as the same may be limited by applicable bankruptcy, reorganization
or similar laws affecting creditors' rights generally, and conforms to the
description thereof contained in the Prospectus as amended and
supplemented.
(7) The Distribution Agreement [and any applicable Terms
Agreement (as defined in the Distribution Agreement)] has been duly
authorized, executed and delivered by the Company.
(8) The performance of the Distribution Agreement and the
consummation of the transactions therein contemplated will not result in a
breach of or violation of any of the terms and provisions of, or constitute
a default under, the Indenture, the Company's Debenture Agreement, dated as
of January 1, 1973, with respect to its 7 1/2% Sinking Fund Debentures, or
its Restated Articles of Incorporation, as amended, or Bylaws, as amended.
In the course of the preparation by the Company of the
Registration Statement and the Prospectus as amended and supplemented, we
had conferences with certain officers and employees of the Company, with
the General Counsel for the Company, with you and your counsel and with
representatives of Price Waterhouse, the independent accountants who
examined certain of the financial statements included in the Registration
Statement, but we made no independent verification of the accuracy or
completeness of the representations and statements made to us by such
persons or the information included by the Company in the Registration
Statement and the Prospectus as amended and supplemented, and take no
responsibility therefor, except insofar as set forth in paragraphs 4 and 6
hereof. In passing upon the forms of the Registration Statement and the
Prospectus as amended and supplemented, we have, therefore, assumed the
accuracy and completeness of such representations, statements and
information, except as aforesaid. However, our examination of the
Registration Statement and the Prospectus as amended and supplemented and
our discussions in the abovementioned conferences did not disclose to us
any information which gives us reason to believe that, when the
Registration Statement became effective, it contained an untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading,
or that, as of the date of this opinion, the Prospectus as amended and
supplemented (including the documents incorporated therein by reference
pursuant to Item 2 of Form S-3) includes 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; provided, that we do not express any belief as to the
financial statements or other financial or statistical data contained in
the Registration Statement or the Prospectus as amended and supplemented,
or as to any information contained therein furnished to the Company in
writing by either of you expressly for use therein.
We are members of the bar of the State of New York and do not
hold ourselves out as experts on the laws of the State of Montana.
Accordingly, in rendering this opinion, we have relied, with your consent,
as to all matters governed by the laws of the State of Montana upon the
opinion of even date herewith addressed to you by Michael E. Zimmerman,
Esq., General Counsel of the Company. That opinion is satisfactory to us
in form and scope. In our judgment, you and we are justified in relying
upon such opinion as to such matters.
This opinion may be relied upon by you only in connection with
the issuance and sale of the Notes. This opinion also may be relied upon
by the Trustees and, with respect to the laws of the State of New York and
Federal securities laws, by Michael E. Zimmerman, Esq., only in connection
with the issuance and sale of the Notes, as if they were named addressees
of this opinion. This opinion may not be relied upon by you, them or any
other person for any other purpose whatsoever without, in each instance,
our prior written consent.
Very truly yours,
Reid & Priest LLP
<PAGE>
ANNEX V
[Contents of Letter of Price Waterhouse LLP]
The letter of Price Waterhouse LLP will state in effect that:
(1) They are independent accountants with respect to the
Company within the meaning of the Act and the applicable
published rules and regulations thereunder;
(2) In their opinion, the financial statements and
financial statement schedules examined by them and included or
incorporated by reference in the Prospectus comply as to form in
all material respects with the applicable accounting requirements
of the Act and the Exchange Act and of the published rules and
regulations and instructions of the Commission thereunder;
(3) On the basis of procedures (but not an examination in
accordance with generally accepted auditing standards) consisting
of (A) a reading of (1) the unaudited interim consolidated
financial information of the Company and its Subsidiaries as of
March 31, June 30, and September 30, 1996, incorporated by
reference in the Prospectus, and (2) the most recent unaudited
consolidated financial statements of the Company and its
Subsidiaries available five business days prior to the date of
such letter, not included in the Prospectus, (B) a reading of the
minutes of the meetings of the stockholders and boards of
directors of the Company and its Subsidiaries for the period from
January 1, 1996, to a specified date not more than five business
days prior to the date of such letter, and (C) making inquiries
of certain officials of the Company responsible for financial and
accounting matters regarding the specific matters for which
representations are requested below, nothing came to their
attention which caused them to believe that (x) the unaudited
interim consolidated financial information of the Company and its
Subsidiaries as of March 31, June 30, 1996 and September 30,
1996, incorporated by reference in the Prospectus, was not
prepared on a basis substantially consistent with that of the
audited consolidated financial statements, incorporated by
reference in the Prospectus and in conformity with generally
accepted accounting principles, (y) the most recent unaudited
consolidated financial statements of the Company and its
Subsidiaries available five business days prior to the date of
such letter, not included in the Prospectus, were not prepared on
a basis substantially consistent, except that such unaudited
consolidated financial statements do not include a consolidated
statement of common shareholders' equity or notes to the
consolidated financial statements, with that of the audited
consolidated financial statements incorporated by reference in
the Prospectus, and (z) during the period from the date of the
most recent consolidated balance sheet of the Company and its
Subsidiaries included or incorporated by reference in the
Prospectus to a specified date not more than five business days
prior to the date of such letter, there has been any change in
the capital stock or long-term debt (other than the issuance of
shares of Common Stock under the Company's dividend reinvestment
and stock purchase plan, employees' plans, scheduled redemptions
of preferred stock or repayments of long-term debt and purchases
of debentures for sinking fund purposes) of the Company and its
Subsidiaries on a consolidated basis, or any decrease in common
shareholders' equity of the Company and its Subsidiaries on a
consolidated basis, as compared with amounts shown on said
balance sheet, or if unaudited consolidated financial statements
for any period subsequent to September 30, 1996 shall be
available five business days prior to the date of such letter,
during the period from September 30, 1996 to the date of the most
recent of such unaudited consolidated financial statements
available five business days prior to the date of such letter,
there has been any decrease, as compared with the corresponding
period in the preceding year, in utility operating revenues,
utility operating income, income from utility operations, Entech
sales, income from Entech operations, consolidated net income or
net income available for common stock, of the Company and its
Subsidiaries on a consolidated basis, except in all instances for
changes or decreases as set forth in such letter, identifying the
same and specifying the amounts thereof, or which the Prospectus
discloses have occurred or may occur; and
(4) They have performed certain other specified procedures
with respect to certain amounts and percentages set forth or
incorporated by reference in the Prospectus, as heretofore agreed
upon with the Agents, and have found them to be in agreement with
the records of the Company and the computations to be
arithmetically correct.
Exhibit 4(a)
=================================
THE MONTANA POWER COMPANY
to
CITIBANK, N.A., Trustee
____________
INDENTURE
Dated as of December 1, 1989
=================================
<PAGE>
THE MONTANA POWER COMPANY
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF DECEMBER 1, 1989
TRUST INDENTURE ACT SECTION INDENTURE SECTION
Section 310(a)(1) . . . . . . . . . 909
(a)(2) . . . . . . . . . 909
(a)(3) . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . Not Applicable
(b) . . . . . . . . . 908
910
Section 311(a) . . . . . . . . . 913(a)
(b) . . . . . . . . . 913(b)
(b)(2) . . . . . . . . . 1003(a)(2)
1003(b)
(c) . . . . . . . . . Not Applicable
Section 312(a) . . . . . . . . . 1001
1002(a)
(b) . . . . . . . . . 1002(b)
(c) . . . . . . . . . 1002(c)
Section 313(a) . . . . . . . . . 1003(a)
(b) . . . . . . . . . 1003(b)
(c) . . . . . . . . . 1003(c)
(c)(2) . . . . . . . . . Not Applicable
(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) . . . . . . . . . 901(a)
(b) . . . . . . . . . 902
1003(a)(6)
(c) . . . . . . . . . 901(b)
(d) . . . . . . . . . 901(c)
(d)(1) . . . . . . . . . 901(a)(1)
(d)(2) . . . . . . . . . 901(c)(2)
(d)(3) . . . . . . . . . 901(c)(3)
(e) . . . . . . . . . 814
Section 316(a) . . . . . . . . . 101
(a)(1)(A) . . . . . . . . 802
812
(a)(1)(B) . . . . . . . . 813
(a)(2) . . . . . . . . . Not Applicable
(b) . . . . . . . . . 808
Section 317(a)(1) . . . . . . . . . 803
(a)(2) . . . . . . . . . 804
(b) . . . . . . . . . 603
Section 318(a) . . . . . . . . . 108
<PAGE>
TABLE OF CONTENTS
PAGE
Parties. . . . . . . . . . . . . . . . . . . . . . . 1
Recital of the Company . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions:
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
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
Original Issue Discount Security . . . . 5
Outstanding . . . . . . . . . . . . . . 5
Paying Agent . . . . . . . . . . . . . . 6
Periodic Offering . . . . . . . . . . . 6
Person . . . . . . . . . . . . . . . . . 6
Place of Payment . . . . . . . . . . . . 6
________________________
Note: This table of contents shall not, for any purpose,
be deemed to be a part of the Indenture.
<PAGE>
Predecessor Security . . . . . . . . . . 6
Redemption Date . . . . . . . . . . . . 6
Redemption Price . . . . . . . . . . . . 7
Regular Record Date . . . . . . . . . . 7
Responsible Officer . . . . . . . . . . 7
Security; Securities . . . . . . . . . . 7
Security Register; Security Registrar . 7
Special Record Date . . . . . . . . . . 7
Stated Maturity . . . . . . . . . . . . 7
Tranche . . . . . . . . . . . . . . . . 7
Trustee . . . . . . . . . . . . . . . . 7
Trust Indenture Act . . . . . . . . . . 8
Section 102. Compliance Certificates and Opinions . 8
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. Legal Holidays . . . . . . . . . . . . 12
Section 108. Conflict with Trust Indenture Act . . 12
Section 109. Effect of Headings and Table of Contents 12
Section 110. Successors and Assigns . . . . . . . . 12
Section 111. Separability Clause . . . . . . . . . 12
Section 112. Benefits of Indenture . . . . . . . . 13
Section 113. Governing Law . . . . . . . . . . . . 13
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally . . . . . . . . . . . 14
Section 202. Form of Trustee's Certificate
of Authentication . . . . . . . . . . 14
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series . 15
Section 302. Denominations . . . . . . . . . . . . 17
Section 303. Execution, Authentication, Delivery
and Dating . . . . . . . . . . . . . 17
Section 304. Temporary Securities . . . . . . . . . 20
Section 305. Registration, Registration of Transfer
and Exchange. . . . . . . . . . . . . 21
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 . . . . . . . . . . . . . 24
Section 310. Computation of Interest . . . . . . . 25
ARTICLE FOUR
REDEMPTION OF SECURITIES
Section 401. Applicability of Article . . . . . . . 25
Section 402. Election to Redeem; Notice to Trustee 25
Section 403. Selection by Trustee 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 . . . . . 27
Section 407. Redemption upon Designated
Events and Rating Declines . . . . . 28
a) Definitions:
Board of Directors . . . . . . . 28
Capital Stock . . . . . . . . . . 28
Closing Price . . . . . . . . . . 28
Common Stock . . . . . . . . . . 28
Comparison Period . . . . . . . . 28
Designated Event . . . . . . . . 29
Event Redemption Date . . . . . . 31
Fair Market Value . . . . . . . . 31
Final Surrender Date . . . . . . 31
Full-Category-Lower Rating . . . 31
Investment Grade . . . . . . . . 31
Moody's . . . . . . . . . . . . . 32
Rating Agencies . . . . . . . . . 32
Rating Date . . . . . . . . . . . 32
Rating Decline . . . . . . . . . 32
Securities and Security . . . . . 32
Securities Exchange Act . . . . . 33
S&P . . . . . . . . . . . . . . . 33
Subsidiary . . . . . . . . . . . 33
Trigger Date . . . . . . . . . . 33
Trigger Event . . . . . . . . . . 33
Voting Shares . . . . . . . . . . 33
Wholly Owned Subsidiary . . . . . 33
b) Redemption at Election
of Holder . . . . . . . . . . . . 34
c) Notice of Redemption . . . . . . . 34
d) Exercise of Election and
Redemption . . . . . . . . . . . . 35
e) Redemption at Election
of Company . . . . . . . . . . . . 35
f) Section Not Applicable to
Paid Securities . . . . . . . . . 36
g) Trustee Not Responsible for
Determination of Designated
Event . . . . . . . . . . . . . . 36
ARTICLE FIVE
SINKING FUNDS
Section 501. Applicability of Article . . . . . . . 36
Section 502. Satisfaction of Sinking Fund
Payments with Securities . . . . . . 36
Section 503. Redemption of Securities
for Sinking Fund . . . . . . . . . . 37
ARTICLE SIX
COVENANTS
Section 601. Payment of Principal, Premium and Interest 37
Section 602. Maintenance of Office or Agency . . . 38
Section 603. Money for Securities Payments
to Be Held in Trust . . . . . . . . 39
Section 604. Corporate Existence . . . . . . . . . 40
Section 605. Statement as to Compliance . . . . . . 40
ARTICLE SEVEN
SATISFACTION AND DISCHARGE
Section 701. Satisfaction and Discharge of Securities 41
Section 702. Satisfaction and Discharge of Indenture 43
Section 703. Application of Trust Money . . . . . . 44
ARTICLE EIGHT
EVENTS OF DEFAULT; REMEDIES
Section 801. Events of Default . . . . . . . . . . 44
Section 802. Acceleration of Maturity;
Rescission and Annulment . . . . . . 46
Section 803. Collection of Indebtedness and
Suits for Enforcement by Trustee . . 48
Section 804. Trustee May File Proofs of Claim . . . 48
Section 805. Trustee May Enforce Claims
Without Possession of Securities . . 49
Section 806. Application of Money Collected . . . . 49
Section 807. Limitation on Suits . . . . . . . . . 50
Section 808. Unconditional Right of Holders
to Receive Principal, Premium and Interest 51
Section 809. Restoration of Rights and Remedies . . 51
Section 810. Rights and Remedies Cumulative . . . . 51
Section 811. Delay or Omission Not Waiver . . . . . 51
Section 812. Control by Holders of Securities . . . 52
Section 813. Waiver of Past Defaults . . . . . . . 52
Section 814. Undertaking for Costs . . . . . . . . 53
Section 815. Waiver of Stay or Extension Laws . . . 53
ARTICLE NINE
THE TRUSTEE
Section 901. Certain Duties and Responsibilities . 53
Section 902. Notice of Defaults . . . . . . . . . . 55
Section 903. Certain Rights of Trustee . . . . . . 55
Section 904. Not Responsible for Recitals
or Issuance of Securities . . . . . 57
Section 905. May Hold Securities . . . . . . . . . 57
Section 906. Money Held in Trust . . . . . . . . . 57
Section 907. Compensation and Reimbursement . . . . 57
Section 908. Disqualification; Conflicting Interests 58
(a) Elimination of Conflicting
Interest or Resignation . . . . 58
(b) Notice of Failure to Eliminate
Conflicting Interest or Resign . 58
(c) "Conflicting Interest" Defined . . 58
(d) Definitions of Certain Terms
Used in this Section . . . . . . 61
(e) Calculation of Percentages
of Securities . . . . . . . . . 62
Section 909. Corporate Trustee Required;
Eligibility . . . . . . . . . . . . 64
Section 910. Resignation and Removal;
Appointment of Successor . . . . . . 64
Section 911. Acceptance of Appointment by Successor 66
Section 912. Merger, Conversion, Consolidation
or Succession to Business . . . . . 67
Section 913. Preferential Collection of Claims
Against Company . . . . . . . . . . . 67
(a) Segregation and
Apportionment of Certain
Collections by Trustee,
Certain Exceptions . . . . . . . 67
(b) Certain Creditor Relationships Excluded
from Segregation and Apportionment 70
(c) Definitions of Certain Terms Used in this
Section . . . . . . . . . . . . 71
Section 914. Appointment of Authenticating Agent . 71
ARTICLE TEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 1001. Company to Furnish Trustee Names
and Addresses of Holders . . . . . . 74
Section 1002. Preservation of Information;
Communications to Holders . . . . . 74
Section 1003. Reports by Trustee . . . . . . . . . . 76
Section 1004. Reports by Company . . . . . . . . . . 77
ARTICLE ELEVEN
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
Section 1101. Company May Consolidate, Etc., Only
on Certain Terms . . . . . . . . . . 78
Section 1102. Successor Corporation Substituted . . 79
ARTICLE TWELVE
SUPPLEMENTAL INDENTURES
Section 1201. Supplemental Indentures Without Consent
of Holders . . . . . . . . . . . . . 79
Section 1202. Supplemental Indentures With
Consent of Holders . . . . . . . . . 80
Section 1203. Execution of Supplemental Indentures . 82
Section 1204. Effect of Supplemental Indentures . . 82
Section 1205. Conformity With Trust Indenture Act . 82
Section 1206. Reference in Securities to
Supplemental Indentures . . . . . . 82
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES;
ACTION WITHOUT MEETING
Section 1301. Purposes for Which Meetings May Be Called 83
Section 1302. Call, Notice and Place of Meetings . . 83
Section 1303. Persons Entitled to Vote at Meetings . 84
Section 1304. Quorum; Action . . . . . . . . . . . . 84
Section 1305. Attendance at Meetings; Determination of Voting
Rights; Conduct and Adjournment of Meetings 85
Section 1306. Counting Votes and Recording
Action of Meetings . . . . . . . . . 86
Section 1307. Action Without Meeting . . . . . . . . 86
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 1401. Liability Solely Corporate . . . . . . 87
Testimonium . . . . . . . . . . . . . . . . . . . 88
Signatures and Seals . . . . . . . . . . . . . . . . 88
Acknowledgments . . . . . . . . . . . . . . . . . . . 89
<PAGE>
INDENTURE, dated as of December 1, 19089, between THE
MONTANA POWER COMPANY, a corporation duly organized and existing
under the laws of the State of Montana (herein called the
"Company"), having its principal office at 40 East Broadway,
Butte, Montana 59701-9989, and CITIBANK, N.A., a national banking
association duly incorporated and existing under the laws of the
United States of America, having its principal corporate trust
office at 120 Wall Street, New York, New York 10043, 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
convenanted and agreed, for the equal and proportionate benefit
of all Holders of the Securities or of each series thereof, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
1
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 (in determining generally accepted
accounting principles applicable to the Company, the
Company may 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, 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 (except as otherwise
provided in Section 407(a)) either the board of directors of the
Company or any duly authorized committee thereof.
"BOARD RESOLUTION" means a copy of a resolution or
resolutions certified by the Secretary or an Assistant Secretary
of the Company to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"BUSINESS DAY", when used with respect to a Place of
Payment or any other particular location specified in the
Securities or this Indenture, means each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which
banking institutions and trust companies in such Place of Payment
or other location are generally authorized or obligated by law or
executive order to remain closed.
"COMMISSION" means the Securities and Exchange
Commission 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, Vice Chairman of the Board, Executive Vice
President and Chief Financial Officer or Corporate Secretary, and
by any Vice President (other than the Vice President and Chief
Financial Officer), its Treasurer, an Assistant Treasurer, its
Controller, an Assistant Controller, or an Assistant Secretary,
and delivered to the Trustee.
"CORPORATE TRUST OFFICE" means the office of the
Trustee at which at any particular time its corporate trust
business shall be principally administered, which office at the
date of execution of this Indenture is located at 120 Wall
Street, 13th Floor, New York, New York 10043; except that with
respect to presentation of Securities for payment or registration
of transfers and exchanges and the location of the Security
Registrar, such term means the office or agency of the Trustee in
said city at which at any particular time its corporate agency
business shall be conducted, which at the date of execution of
this Indenture is located at 111 Wall Street, New York, New York
10043.
"CORPORATION" means a corporation, association,
company, joint stock company or business trust.
"DEFAULTED INTEREST" has the meaning specified in
Section 307.
"EVENT OF DEFAULT" has the meaning specified in
Section 801.
"GOVERNMENT OBLIGATION" 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 550,000,000; 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 of Securities established
as contemplated by Section 301.
"INTEREST", when used with respect to an Original Issue
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 redemption (including redemptions pursuant
to any sinking fund or analogous provision for the retirement of
any Security) or otherwise.
"OFFICERS' CERTIFICATE" means a certificate signed by
the Chairman of the Board, the Vice Chairman of the Board, the
Executive Vice President and Chief Financial Officer, or the
Corporate Secretary, and by any Vice President (other than the
Vice President and Chief Financial Officer), the Treasurer, an
Assistant Treasurer, the Controller, an Assistant Controller 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
acceptable to the Trustee.
"ORIGINAL ISSUE 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.
"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 cancelled 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 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 any request, demand, authorization,
direction, notice, consent or waiver hereunder or whether or not
a quorum is present at a meeting of Holders,
(x) Securities 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 or 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 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 an Original Issue
Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of
the principal thereof that would be due and payable as
of the date of such determination upon a declaration of
acceleration of the Maturity thereof pursuant to
Section 802.
"PAYING AGENT" means any Person authorized by the
Company to pay the principal of, and premium, if any, and
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 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, 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 are payable.
"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 the chairman or any vice-chairman of the board of
directors, the chairman or any vice-chairman of the executive
committee of the board of directors, the chairman of the trust
committee, the president, any vice president, any assistant vice
president, the secretary, any assistant secretary, the treasurer,
any assistant treasurer, the cashier, any senior trust officer,
any assistant cashier, any trust officer or assistant trust
officer, the comptroller or any assistant comptroller 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 meaning 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 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 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 means 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 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, if requested by the Trustee, 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 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, 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 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 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 with respect to any or
all of such Securities 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.
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 if
made, given, furnished or filed in writing to or with
the Trustee at its Corporate Trust Office, Attention:
Corporate Trust Department;
(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, with a copy to its General Counsel, at 40 East
Broadway, Butte, Montana 59701-9989, 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 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. 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, Officers' Certificate or Company Order
which establishes the terms of such Securities or Tranche, which
specifically states that such provision shall apply in lieu of
this Section) payment of the principal of, or premium, if any, or
interest on, any Security 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; provided, that 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.
SECTION 108. CONFLICT WITH TRUST INDENTURE ACT.
If any provision of this Indenture limits, qualifies or
conflicts with another provision hereof which is required to be
included in this Indenture by any of the provisions of the Trust
Indenture Act, such required provision shall control.
SECTION 109. 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 110. 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 111. 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 112. 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 113. GOVERNING LAW.
This Indenture and the Securities shall be governed by
and construed in accordance with the laws of the State of New
York.
ARTICLE TWO
SECTION 201. FORMS GENERALLY.
The Securities of each series shall be in substantially
the forms thereof established in Board Resolutions, Officers'
Certificates pursuant to Board Resolutions or indentures
supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to
comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing
such Securities, as evidenced by their execution of the
Securities. If the forms of Securities of any series are
established in Board Resolutions or in Officers' Certificates
pursuant to Board Resolutions, such Board Resolutions and
Officers' Certificates, if any, shall be delivered to the Trustee
at or prior to the delivery of the Company Order contemplated by
the third paragraph of Section 303 for the authentication and
delivery of such Securities.
The Securities of each series shall be issuable in
registered form without coupons. The 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 form set forth below:
This is one of the Securities of the series
designated in accordance with, and referred to in, the
within-mentioned Indenture.
Citibank, N.A.,
as Trustee
By: __________________________
Authorized Signatory
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may
be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series.
Subject to the last paragraph of this Section, there shall be
established in a Board Resolution, an Officers' Certificate
pursuant to a Board Resolution, or an indenture supplemental
hereto, prior to the issuance of Securities of any series,
(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 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) the Person or Persons 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 in whose name that Security (or one or
more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such
interest;
(d) the date or dates on which and the manner in
which the principal of the Securities of such series
shall be payable;
(e) the rate or rates at which the Securities of
such series, or any Tranche thereof, shall bear
interest, if any, or any method or methods by which
such rate or rates shall be determined, the date or
dates from which such interest shall accrue, the manner
in which interest shall be payable, the Interest
Payment Dates on which such interest shall be payable
and the Regular Record Date for the interest payable on
Securities on any Interest Payment Date; and the basis
of computation of interest, if other than as provided
in Section 310;
(f) the place or places where (1) the principal
of and premium, if any, and interest, if any, on
Securities of such series, or any Tranche thereof,
shall be payable, (2) any Securities of such series, or
any Tranche thereof, may be surrendered for
registration of transfer, (3) Securities of such
series, or any Tranche thereof, may be surrendered for
exchange and (4) 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 other 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 pursuant to Section 407 or otherwise, 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, if
any, 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 additional Events of Default with respect
to the Securities of such series and any additional
covenants of the Company for the benefit of the Holders
of the Securities of such series, or any Tranche
thereof;
(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;
(n) any provisions for the reinstatement of the
Company's indebtedness in respect of such Securities
after the satisfaction and discharge thereof as
provided in Section 701;
(o) any exceptions to Section 107 with respect to
the Securities of such series, or any Tranche thereof;
(p) any other terms of the Securities of such
series, or any Tranche thereof, not inconsistent with
the provisions of this Indenture.
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise
be provided in such Board Resolution, Officers' Certificate or
indenture supplemental hereto.
If any of the terms of the series are established in a
Board Resolution or in an Officers' Certificate pursuant to a
Board Resolution, such Board Resolution and Officer's
Certificate, if any, shall be delivered to the Trustee at or
prior to the delivery of the Company Order contemplated by the
third paragraph of Section 303 for the authentication and
delivery of such securities. With respect to Securities of a
series subject to a Periodic Offering, such Board Resolution or
Officers' Certificate may provide general terms or parameters for
Securities of such series and provide either that the specific
terms of particular Securities of such series shall be specified
in a Company Order or that such terms shall be determined by the
Company or its agents in accordance with procedures specified in
a Company Order as contemplated by the third paragraph of Section
303.
SECTION 302. DENOMINATIONS.
Unless otherwise provided as contemplated by Section
301 with respect to any series of Securities, the Securities of
each series shall be issuable in denominations of $1,000 and any
integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the
Company by its Chairman of the Board, its President, one of its
Vice Presidents or any other duly authorized officer, under its
corporate seal affixed thereto or reproduced thereon, and
attested by its Corporate Secretary, one of its Assistant
Corporate Secretaries or any other duly authorized officer. 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 any time relevant to the
authorization thereof, the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication
and delivery of such Securities or did not hold such offices at
the date of such Securities.
At any time and from time to time after the execution
and delivery of this Indenture, the Company may deliver
Securities of any series executed by the Company to the Trustee
for authentication and delivery. Upon receipt of a Company Order
for the authentication and delivery of any of such Securities,
the Trustee, in accordance with such Company Order or, with
respect to Securities subject to a Periodic Offering, with such
procedures acceptable to the Trustee as may be specified therein,
shall authenticate and deliver such Securities for original
issue, from time to time, in an aggregate principal amount not
exceeding the aggregate principal amount established for such
series. With respect to Securities subject to a Periodic
Offering, the maturity date or dates, original issue date or
dates, interest rate or rates and any other terms thereof, to the
extent not theretofore established as provided herein, shall be
determined by a Company Order or Orders or pursuant to such
procedures, acceptable to the Trustee as may be specified therein
and, if provided for in such procedures, may be authorized,
authenticated and delivered pursuant to oral or electronic
instructions from the Company or its duly authorized agent or
agents, which oral instructions shall be promptly confirmed
electronically or in writing.
In authenticating Securities of any series, and
accepting its responsibilities under this Indenture in respect of
such Securities, the Trustee shall be entitled to receive, and
(subject to Section 901) shall be fully protected in relying
upon, an Opinion of Counsel stating
(a) that 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) that 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) that 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, subject, as to enforcement, to
laws and principles of equity relating to or affecting
generally the enforcement of creditors' rights, including
without limitation bankruptcy and insolvency laws;
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
the opinions described in clauses (b) and (c) above may state,
respectively,
(x) that, when the terms of such Securities shall have
been established pursuant to a Company Order or Orders or
pursuant to such procedures as may be specified from time to
time by a Company Order or Orders, all as contemplated by
and in accordance with a Board Resolution, an Officers'
Certificate pursuant to a Board Resolution or an indenture
supplemental hereto, as the case may be, 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) that such Securities, when authenticated and
delivered by the Trustee in accordance with this Indenture,
issued and delivered by the Company and paid for, as
contemplated by and in accordance with the aforesaid Company
Order or Orders or specified procedures, as the case may be,
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, as to enforcement, to laws and principles of equity
relating to or affecting generally the enforcement of
creditors' rights, including without limitation bankruptcy
and insolvency laws.
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 form
and terms thereof and the legality, validity, binding effect and
enforceability thereof, upon the Opinion of Counsel and other
documents delivered pursuant to Sections 201 and 301 and this
Section, as applicable, 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
rules, regulations or orders of any governmental agency or
commission having jurisdiction over the Company.
If the form or terms of the Securities of any series
have been established by or pursuant to a Board Resolution as
permitted by Section 201 or 301, the Trustee shall not be
required to authenticate such Securities if the issuance of such
Securities pursuant to this Indenture will affect the Trustee's
own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee.
Each Security shall be dated the date of its
authentication.
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 any 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.
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 deliver, 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 are issued, the
Company shall cause definitive Securities of such series to be
prepared without unreasonable delay. After the preparation of
definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such
series at the Place of Payment for such series, without charge to
the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor
definitive Securities of the same series, of authorized
denominations and of like tenor and aggregate principal amount.
Until so exchanged, the temporary Securities of any series shall
in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
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 a register (the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration. If 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 at the office or agency of the Company
maintained pursuant to Section 602 for such series, the Company
shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more
new Securities of the same series, of authorized denominations
and of like tenor and aggregate principal amount.
At the option of the Holder, Securities of any series
may be exchanged for other Securities of the same series, 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 deliver, 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 by, 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.
Unless otherwise provided in a Board Resolution or an
Officers' Certificate pursuant to a Board Resolution, or in an
indenture supplemental hereto, 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
during a period of 15 days immediately preceding the selection of
Securities to be 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 deliver in exchange therefor a new Security of
the same series, and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the
Trustee (a) evidence to their satisfaction of the ownership of
and the destruction, loss or theft of any Security and (b) such
security or indemnity as may be required by them to save each of
them and any agent of either of them 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 deliver, in
lieu of any such destroyed, lost or stolen Security, a new
Security of the same series, 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 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 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.
Unless otherwise provided as contemplated by Section
301 with respect to the Securities of any series, or any Tranche
thereof, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or
one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest.
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 either 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) shall have been 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 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) shall have been
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 Predecessor
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 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 already
canceled, shall be promptly canceled 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 canceled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for
any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. All canceled Securities
held by the Trustee shall be destroyed and certification of their
destruction delivered to the Company, unless prior to their
destruction, the Company shall direct that canceled Securities be
returned to it by a Company Order.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by
Section 301 for Securities of any series or Tranche thereof,
interest, if any, on the Securities of each series or Tranche
thereof shall be computed on the basis of a 360-day year
consisting of twelve 30-day months.
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, except Section 407.
Section 407 shall apply only to Securities of those series or
Tranches thereof which shall expressly be made subject to its
provisions as contemplated by Section 301 and, in such cases, to
the extent that the provisions of Section 407 are inconsistent
with those of the rest of this Article, the provisions of Section
407 shall govern.
SECTION 402. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities
shall be evidenced by a Board Resolution. The Company shall, at
least 60 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 BY TRUSTEE 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 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 pro-
vided in Section 106 to the Holders to be redeemed not less than
30 nor more than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Securities of any series or
any Tranche thereof 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 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 request, by the Trustee in the name
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
any installment of interest on any Security, the Stated Maturity
of which installment is on or prior to the Redemption Date shall
be payable to the Holder of such Security, or one or more
Predecessor Securities, registered as such at the close of
business on the related Regular Record Date according to the
terms of such Security and subject to the provisions of Section
307.
SECTION 406. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only 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 the Company shall
execute, and the Trustee shall authenticate and deliver to the
Holder of such Security, without service charge, a new Security
or Securities of the same series, of any authorized denomination
requested by such Holder and of like tenor and in aggregate
principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered.
SECTION 407. REDEMPTION UPON DESIGNATED EVENTS AND RATING
DECLINES.
(a) For purposes of this Section 407, except as
otherwise expressly provided or unless the context otherwise
requires:
"Board of Directors" means either the board of
directors of the Company or, except for purposes of the
definitions of "Designated Event" and "Voting Shares", any duly
authorized committee thereof.
"Capital Stock" means any and all shares, interests,
participations or other equivalents (however designated) of the
corporate stock of the Company.
"Closing Price" means, with respect to any security for
any day, the last reported sales price regular way, or in case no
such reported sale takes place on such day, the average of the
reported closing bid and asked prices regular way, in either case
on the principal national securities exchange on which such
security is listed or admitted to trading or, if not listed or
admitted to trading on any national securities exchange, on the
National Association of Securities Dealers Automated Quotations
National Market System or, if not quoted on such National Market
System, the average of the closing bid and asked prices in the
over-the-counter market as furnished by any New York Stock
Exchange member firm selected from time to time by the Company
for that purpose.
"Common Stock" of any Person means Capital Stock of
such Person that does not rank prior, as to the payment of
dividends or as to the distribution of assets upon any voluntary
or involuntary liquidation, dissolution or winding up of such
Person, to shares of Capital Stock of any other class of such
Person.
"Comparison Period", for any Designated Event, means
the period (i) commencing on (and including) the date of the
occurrence of such Designated Event and (ii) ending on (and
including) the date which is the later of (A) the 60th day after
the later of (I) the occurrence of such Designated Event and (II)
the first public announcement of such occurrence and (B) if, on
such 60th day, the rating of the Securities by Moody's shall be
listed on the "Watchlist" of Moody's (or its equivalent) with a
designation of "down" or "uncertain" (or the equivalent thereof)
or the rating of the Securities by S&P shall be listed on the
"Creditwatch" of S&P (or its equivalent) with a designation of
"negative implications" or "developing" (or the equivalent
thereof), the day 5 days after the first date thereafter on which
the rating of the Securities by each Rating Agency shall not be
so listed.
"Designated Event" means any of the following (if
occurring after the date of original issue of the Securities):
(i) a "person" or "group" (within the meaning of
Sections 13(d) and 14(d)(2) of the Securities Exchange Act)
shall become the "beneficial owner" (as defined in Rule
13d-3 under the Securities Exchange Act) of Voting Shares
entitled to exercise more that 33% of the total voting power
of all outstanding Voting Shares (any Voting Shares of which
such person or group is the beneficial owner that are not
then outstanding being deemed outstanding for purposes of
calculating such percentage); or
(ii) a change in the composition of the Board of
Directors in which individuals who at the beginning of the
two-year period immediately preceding such change
constituted the Board of Directors (together with any other
director whose election by the Board of Directors or whose
nomination for election by the shareholders of the Company
was approved by a vote of at least two-thirds of the
directors then in office who either were directors at the
beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to
constitute a majority of the directors then in office; or
(iii) a consolidation of the Company with, or merger of
the Company into, any other Person, any merger of another
Person into the Company, or any sale or transfer of all or
substantially all of the assets of the Company to another
Person (other than a merger (A) which does not result in any
reclassification, conversion, exchange or cancellation of
outstanding shares of Common Stock or (B) which is effected
solely to change the jurisdiction of incorporation of the
Company and results in a reclassification, conversion or
exchange of outstanding shares of Common Stock into solely
outstanding shares of Common Stock); or
(iv) the purchase, redemption, retirement, exchange or
other acquisition by the Company or any Subsidiary, directly
or indirectly, of beneficial ownership of Common Stock of
the Company if, after giving effect to such acquisition and
all other such acquisitions effected within the 12-month
period ending on (and including) the date of such
acquisition (or, if the date of such acquisition is within
the 12-month period commencing on (and including) the date
of original issue of the Securities, within the period
commencing on (and including) such date of original issue
and ending on (and including) the date of such acquisition),
the Company (together with its Subsidiaries) shall have
acquired beneficial ownership of 33% or more of the Common
Stock outstanding on the day before the first such
acquisition during such period (taking into account any
stock split, stock dividend or similar transaction effected
during such period); or
(v) a dividend or other distribution by the Company of
cash, securities or other property in respect of its Common
Stock (other than a dividend or distribution (or portion
thereof) paid on Common Stock solely in Common Stock or
rights to acquire Common Stock), or the acquisition by the
Company or any Subsidiary of the Company of any Common Stock
(other than an acquisition of Common Stock solely from the
Company or any Wholly Owned Subsidiary or solely in exchange
for or upon conversion of rights to acquire Common Stock),
if in the case of any such distribution or acquisition (the
"subject transaction") the sum of the Applicable Equity
Percentages for the subject transaction and all other such
distributions and acquisitions effected during the 12-month
period ending on (and including) the date on which the
subject transaction shall have been effected (or, if such
date shall have been within the 12 month period commencing
on (and including) the date of original issue of the
Securities, during the period commencing on such date of
original issue and ending on (and including) such date)
shall exceed 33%: or
(vi) so long as any Person (a "Holding Company") owns,
directly or indirectly, Voting Shares of the Company
entitled to exercise more than 50% of the total voting power
of all outstanding Voting Shares of the Company, any event
which would have been specified in any of clauses (i)
through (v) above if (A) any references to the "Company" in
such clauses (and in the definition of any capitalized term
contained therein) were changed to such Holding Company and
(B) any period referred to in such clauses commenced no
earlier than the date on which such Holding Company first
became such an owner of Voting Shares of the Company.
For purposes of this definition, "Applicable Equity
-----------------
Percentage" is defined to mean, for any distribution or
----------
acquisition, the quotient of (i) the Fair Market Value on the
Valuation Date for such distribution or acquisition of the
securities and other property distributed in respect of, or paid
or otherwise exchanged to acquire, Common Stock in such
distribution or acquisition divided by (ii) the Fair Market Value
on the Reference Date for such distribution or acquisition of the
Common Stock outstanding on such Reference Date; "Reference Date"
--------------
is defined to mean, (i) for any distribution, the day before the
earlier of the record date for such distribution and the first
date on which the Common Stock trades regular way without the
right to receive such distribution, or (ii) for any acquisition,
the day before the date of such acquisition; and "Valuation Date"
---------------
is defined to mean (i) for any distribution, the record date
therefor or (ii) for any acquisition, the date thereof.
"Event Redemption Date", with respect to any Trigger
Event, means such date selected by the Company that is not less
than 10 days or more than 20 days after, the Final Surrender Date
with respect to such Trigger Event.
"Fair Market Value", on any date, means (i) as to any
security which is listed or admitted to trading on any national
securities exchange or quoted on the National Association of
Securities Dealers Automated Quotations National Market System or
traded in the over-the-counter market on such date, the average
of the Closing Prices with respect to such security for the 10
consecutive Trading Days ending on such date (or, if such date is
not a Trading Day, on the next preceding Trading Day) and (ii) as
to any security not so listed, admitted, quoted or traded on such
date or any other property, the fair value thereof on such date
as determined in good faith by the Board of Directors and
evidenced by a Board Resolution. For purposes of this definition,
"Trading Day" means each Monday, Tuesday, Wednesday, Thursday and
------------
Friday, other than any day on which securities are not traded on
such exchange or in such market.
"Final Surrender Date", with respect to any Trigger
Event, means such date selected by the Company as shall be not
less than 60 nor more than 90 days after the Trigger Date with
respect to such Trigger Event.
"Full-Category-Lower Rating" means a rating of the
Securities by a Rating Agency that is (i) the Rating Category
next lower than the Rating Category (the "Original Rating
Category") of the rating of the Securities by such Rating Agency
on a Rating Date, and (ii) modified, if such next lower Rating
Category should be subject to modification by gradations within
such Rating Category, by the same gradation within such Rating
Category as the gradation by which the Original Rating Category
was modified. For purposes of this definition, "Rating Category"
----------------
means (from highest to lowest), with respect to a rating by S&P,
BB, B, CCC, CC, C and D (or their equivalents), or, with respect
to a rating by Moody's, Ba, B, Caa, Ca and C (or their
equivalents)); and "gradation" means + and - (or the equivalent
thereof) for S&P and 1, 2 and 3 (or the equivalent thereof) for
Moody's.
"Investment Grade" means a rating of at least Baa3 (or
the equivalent thereof), in the case of a rating by Moody's, and
a rating of at least BBB- (or the equivalent thereof), in the
case of a rating by S&P.
"Moody's" means Moody's Investors Service, Inc. or, if
Moody's Investors Service, Inc. shall cease rating the Securities
and securities similar to the Securities and its ratings business
with respect to such securities shall have been transferred to a
successor Person, such successor Person; provided, however, that
if Moody's Investors Service, Inc. ceases rating the Securities
and securities similar to the Securities and its rating business
with respect to such securities shall not have been transferred
to any successor Person, then "Moody's" shall mean any other
nationally recognized rating agency (other than S&P) that rates
securities similar to the Securities and that shall have been
designated by the Company to rate the Securities by a written
notice given to the Trustee.
"Rating Agencies" means Moody's and S&P.
"Rating Date", for any Designated Event, means the
later of (i) the date of original issue of the Securities and
(ii) either (A) the date which is 90 days prior to the date of
the earliest of (I) the occurrence of such Designated Event, (II)
the first public notice of an intention to effect such Designated
Event and (III) the first public notice of the occurrence of such
Designated Event or (B) if the Securities should not be rated by
both Rating Agencies on the date referred to in clause (ii)(A),
the next preceding day on which the Securities were so rated.
A "Rating Decline" shall be deemed to exist with
respect to any Designated Event if either (i) on any date within
the Comparison Period for such Designated Event:
(A) in the event the Securities were rated Investment
Grade by one or both Rating Agencies on the Rating Date for
such Designated Event, the rating of the Securities by both
Rating Agencies shall be below Investment Grade, or
(B) in the event the Securities were rated below
Investment Grade by both Rating Agencies on the Rating Date
for such Designated Event, the rating of the Securities by
each Rating Agency either (I) shall be (or be lower than) a
Full-Category-Lower Rating or (II) shall be D (or its
equivalent) in the case of S&P or C (or its equivalent) in
the case of Moody's, or
(ii) on the last day of such Comparison Period,
the Securities shall not be rated by both Rating Agencies.
"Securities" and "Security" shall mean, collectively,
all of the Securities authenticated and delivered under this
Indenture and expressly entitled to the benefit of this Section
407, as contemplated by Section 301 and, individually, each of
such Securities.
"Securities Exchange Act" means the Securities Exchange
Act of 1934, as amended and in force on the date of original
issue of the Securities.
"S&P" means Standard & Poor's Corporation or, if
Standard & Poor's Corporation shall cease rating the Securities
and securities similar to the Securities and its ratings business
with respect to such securities shall have been transferred to a
successor Person, such successor Person; provided, however, that
if Standard & Poor's Corporation ceases rating the Securities and
securities similar to the Securities and its rating business with
respect to such securities shall not have been transferred to any
successor Person, then "S&P" means any other nationally
recognized rating agency (other than Moody's) that rates
securities similar to the Securities and that shall have been
designated by the Company to rate the Securities by a written
notice given to the Trustee.
"Subsidiary" of any Person means a corporation, the
outstanding Voting Shares of which that are entitled to exercise
more than 50% of the total voting power of all such outstanding
Voting Shares are owned, directly or indirectly, by such Person
or by one or more other Subsidiaries of such Person or by such
Person and one or more Subsidiaries of such Person.
"Trigger Date", with respect to any Trigger Event,
means the later of either (i) if a Rating Decline described in
clause (i) of the definition of "Rating Decline" shall be deemed
to exist with respect to any Designated Event, the first day
during the Comparison Period with respect to such Designated
Event on which such Rating Decline shall be deemed to exist, or
(ii) if a Rating Decline described in clause (i) of the
definition of "Rating Decline" shall not be deemed to exist, and
the Securities shall not be rated by both Rating Agencies on the
last day of such Comparison Period, such last day.
"Trigger Event" means any Designated Event that shall
occur after the date of original issue of the Securities, if (but
only if) a Rating Decline shall be deemed to exist with respect
to such Designated Event.
"Voting Shares" of any Person means all outstanding
shares of any class or classes (however designated) of Capital
Stock of such Person entitled to vote generally in the election
of members of the Board of Directors of such Person.
"Wholly Owned Subsidiary" of any Person means a
Subsidiary of such Person all of the outstanding capital stock of
which (other than directors' qualifying shares) shall be owned by
such Person or by one or more Wholly Owned Subsidiaries of such
Person or by such Person and one or more Wholly Owned
Subsidiaries of such Person.
(b) In the event of any Trigger Event, the Company, in
the manner provided in this Section 407, shall redeem on the
Event Redemption Date with respect to such Trigger Event, such of
the Securities or portions thereof as the Holders thereof have
duly elected to have redeemed in accordance with the terms of
Section 407(c), at a Redemption Price equal to 100% of their
principal amount (or, if any of the Securities of such series are
Original Issue Discount Securities, such portion of the principal
amount of such Securities as may be specified in the terms
thereof as contemplated by Section 301), together with accrued
interest to such Event Redemption Date; provided, however, that
any installment of interest on any Security, the Stated Maturity
of which installment is on or prior to such Event Redemption
Date, shall be payable to the Holder of such Security or one or
more Predecessor Securities, registered as such at the close of
business on the related Regular Record Date in accordance with
the terms of such Security and the provisions of Section 307.
(c) Not later than the tenth day following each
Trigger Date, the Company shall furnish to the Trustee an
Officers' Certificate evidencing the occurrence of the related
Trigger Event (including a brief description of the Designated
Event and the related Rating Decline) and a schedule with respect
to the related redemption right pursuant to this Section 407 and
a form of notice of redemption. On or before the date 30 days
after such Trigger Date, the Company, or, at the Company's
request, the Trustee, in the name of the Company, shall give
notice in the manner provided in Section 106 to the Holders of
the Securities of such Trigger Event and of such redemption
right. Each such notice shall state:
(i) a brief description of the Designated Event and
the related Rating Decline,
(ii) the Event Redemption Date,
(iii) the Final Surrender Date,
(iv) the Redemption Price,
(v) that the redemption right may be exercised as to
all of the Security or to any portion of a Security that is
an integral multiple of $1,000; provided, however, after
redemption as to any portion of a Security, the remaining
principal amount of such Security would be an authorized
denomination,
(vi) that on the Event Redemption Date, the Redemption
Price will become due and payable upon each such Security or
portion thereof that is surrendered for payment of the
Redemption Price and that, if applicable, interest thereon
will cease to accrue on and after said Date,
(vii) the place or places where such Security shall be
surrendered for payment of the Redemption Price, and
(viii) a description of the procedure which a Holder
must follow to elect redemption.
No failure of the Company to give such notice shall limit the
right of the Holder of any Security to elect redemption by the
Company.
(d) In order to elect redemption with respect to any
Trigger Event, the Holder of any Security shall surrender such
Security on or before the Final Surrender Date with respect to
such Trigger Event, endorsed or assigned to the Company or in
blank at any Place of Payment for the Securities, accompanied by
written notice to the Company that states the name of the Holder
and that the Holder elects to have the Company redeem such
Security or, if less than the entire principal amount thereof
redeemed, such portion thereof that is to be redeemed. Election
of redemption shall be irrevocable.
Redemption of Securities having been elected by the
Holders thereof as aforesaid, the Securities so to be redeemed,
on the Event Redemption Date, shall become due and payable at the
Redemption Price and, from and after such date (unless the
Company shall default in the payment of the Redemption Price and
accrued interest), such Securities shall cease to bear interest.
Upon surrender of any such Security for redemption in accordance
with the terms of this Section, such Security shall be paid by
the Company at the Redemption Price, together with accrued
interest to the Event Redemption Date.
(e) In the event the aggregate principal amount of the
Securities (or portions thereof) of any series that are
surrendered for redemption on the Event Redemption Date with
respect to any Trigger Event is at least 80% of the aggregate
principal amount of the Outstanding Securities of such series and
eligible for redemption at the close of business on the day next
preceding such Event Redemption Date, the remaining Securities
(or portions thereof) not so redeemed shall be subject to
redemption on any date prior to the 91st day after such Event
Redemption Date, as a whole, at the election of the Company, in
accordance with the provisions of Article IV of this Indenture,
at a Redemption Price equal to 100% of the principal amount (or,
if any of the Securities of such Series are Original Discount
Securities, such portion of the principal amount of such
Securities as may be specified in the terms thereof as
contemplated by Section 301), together with accrued interest to
the date of redemption.
(f) This Section shall not be applicable to any
Security, or any portion of the principal amount thereof, which,
prior to any Trigger Date, shall be deemed to have been paid for
all purposes of this Indenture pursuant to Section 701.
The Trustee shall not be responsible for determining
whether or not a Designated Event or a Trigger Event has occurred
and shall be entitled to rely solely on the Officers' Certificate
delivered to the Trustee pursuant to Section 407(c) hereof.
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". If provided for by the terms of Securities of any
series, or any Tranche thereof, the cash amount of any sinking
fund payment may be subject to reduction as provided in Section
502. 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.
The Company (a) may deliver Outstanding Securities
(other than any previously called for redemption) of a series or
Tranche in respect of which a mandatory sinking fund payment is
to be made 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 is satisfactory to the Trustees,
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 and
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 shall also 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 and
at the expense 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.
Except as otherwise specified as contemplated by
Section 301 for Securities of any series or Tranche thereof, 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) at the office or agency of the Company
maintained for such purpose in the Borough of Manhattan and 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 may, from time to time, designate one or
more substitute or 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.
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 and premium, if any, or interest, if any, 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 and 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, if any, or interest, if any, on such Securities, deposit
with such Paying Agents a sum sufficient to pay the principal,
premium or interest so becoming due, such sum to be held in trust
for the benefit of the Persons entitled to such principal,
premium or interest, and (unless such Paying Agent is the
Trustee) the Company 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, if any, or interest, if
any, 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) in the making of any payment of principal
of and premium, if any, or interest, if any, 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 and premium, if any, or interest, if any, on any
Security and remaining unclaimed for two years after such
principal and premium, if any, or interest, if any, has become
due and payable shall be paid to the Company on 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, how-
ever, 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 Board of Directors, the preservation
thereof is no longer desirable in the conduct of the business of
the Company.
SECTION 605. STATEMENT AS TO COMPLIANCE.
The Company shall deliver to the Trustee, within 120
days after the end of each fiscal year, a written statement,
which need not comply with Section 102, signed by the Chairman of
the Board, the President, or a Vice President and by the
Treasurer, an Assistant Treasurer, the Controller or an Assistant
Controller of the Company, stating, as to each signer thereof,
that
(a) a review of the activities of the Company during
such year and of performance under this Indenture has been
made under his supervision, and
(b) to the best of his knowledge, based on such
review, no Event of Default has occurred and is continuing,
or if an Event of Default has occurred and is continuing,
specifying each such Event of Default known to him and the
nature and status thereof.
ARTICLE SEVEN
SATISFACTION AND DISCHARGE
SECTION 701. SATISFACTION AND DISCHARGE OF SECURITIES.
Any Security or Securities, or any portion of the
principal amount thereof, shall, at or prior to the Maturity
thereof, 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,
(b) Government Obligations, which shall not con-
tain provisions permitting the redemption or other pre-
payment 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, due and to become due on such Securities or
portions thereof on and prior to the Maturity thereof; provided,
however, that in the case of the redemption of Securities 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, under arrangements
satisfactory to the Trustee; and provided, further, that the
Company shall have delivered to the Trustee:
(x) 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;
(y) an Officers' Certificate and an Opinion of
Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with;
and
(z) an Opinion of Counsel to the effect that such
deposit and satisfaction and discharge of the indebted-
ness of the Company with respect to such Securities
shall not be deemed to be, or result in, a taxable
event with respect to the Holders of such Securities
for purposes of United States Federal income taxation
and, with regard to the treatment of such Holders for
Federal income tax purposes, there will be no material
change in the amount of tax, or in the manner or the
time of its payment resulting from such deposit and
satisfaction and discharge, except for any such change
that has been disclosed to, and consented to by, such
Holders (it being understood that if any such change is
disclosed in offering materials relating to the
original issuance and sale of any Securities, any
Holder of such Securities shall be deemed to have
consented thereto).
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, upon receipt of a Company Request, 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 at Stated Maturity of less than all of the
Securities of any series, or any Tranche thereof, is to be
provided for in the manner and with the effect provided in this
Section, the Trustee shall select such Securities, or portions of
principal amount thereof, in the manner specified by Section 403
for selection for redemption of less than all the Securities of a
series or Tranche.
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, as promptly as
practicable, shall 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 in
respect of such Securities under Sections 304, 305, 306, 602, 603
and 907 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.
Anything herein to the contrary notwithstanding, if, at
any time after a Security would be deemed to have been satisfied
or discharged pursuant to this Section (without regard to the
provisions of this paragraph), the Trustee shall be required to
return the money or Government Obligations, or combination
thereof, deposited with it as aforesaid to the Company or its
representative under any applicable Federal or State bankruptcy,
insolvency or other similar law, the indebtedness of the Company
in respect of such Security shall thereupon be deemed
retroactively not to have been satisfied and discharged, as
aforesaid, and to remain outstanding.
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, 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 all conditions precedent herein provided for
relating to the satisfaction and discharge of this Indenture
have been complied with.
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 under
Sections 304, 305, 306, 602, 603 and 907 and this Article Seven
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 for the benefit of the Holders of the Securities
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 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, due
and to become due 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, then due 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 interest on any Security of
such series within 60 days after the same becomes due and
payable; or
(b) failure to pay the principal of or premium, if
any, on any Security of such series within three Business
Days after its Maturity; or
(c) failure to perform or a breach of any covenant or
warranty of the Company in this Indenture (other than a
covenant or warranty a default in the performance of which
or breach 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 25% in principal amount
of the Outstanding Securities of such series, a written
notice specifying such default or breach and requiring it to
be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(d) a default under any bond, debenture, note or other
evidence of indebtedness for money borrowed by the Company
(including a default with.respect to Securities of any
series other than such series) or under any mortgage,
indenture or other instrument under which there may be
issued or by which there may be secured or evidenced any
indebtedness for money borrowed by the Company (including
this Indenture), whether such indebtedness now exists or
shall hereafter be created, which default (1) shall
constitute a failure to make any payment in excess of
$5,000,000 of the principal of or interest on such
indebtedness when due and payable after the expiration of
any applicable grace period with respect thereto or (2)
shall have resulted in such indebtedness in an amount in
excess of $10,000,000 becoming or being declared due and
payable prior to the date on which it would otherwise have
become due and payable, in either case without such payment
having been made, such indebtedness having been discharged,
or such acceleration having been rescinded or annulled, as
the case may be, within a period of 90 days after there
shall have 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 25% in principal amount of the
Outstanding Securities of such series a written notice
specifying such default and requiring the Company to cause
such payment to be made, such indebtedness to be discharged
or such acceleration to be rescinded or annulled, as the
case may be, and stating that such notice is a "Notice of
Default" hereunder; provided, however, that, subject to the
provisions of Sections 901 and 902, the Trustee shall not be
deemed to have knowledge of such default unless either (1) a
Responsible Officer of the Corporate Trust Department of the
Trustee shall have actual knowledge of such default or (2)
the Trustee shall have received written notice thereof from
the Company, from any Holder, from the holder of any such
indebtedness or from the trustee under any such mortgage,
indenture or other instrument; or
(e) the entry by a court having jurisdiction in the
premises of (1) a decree or order for relief in respect of
the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (2) a decree or order
adjudging the Company a bankrupt or insolvent, or approving
as properly filed a petition by one or more Persons other
than the Company seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company
under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official for the Company or
for any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and any such
decree or order for relief or any such other decree or order
shall have remained unstayed and in effect for a period of
90 consecutive days; or
(f) the commencement by the Company of a voluntary
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law
or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of
a decree or order for relief in respect of the Company in a
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law
or to the commencement of any bankruptcy or insolvency case
or proceeding against it, or the filing by it of a petition
or answer or consent seeking reorganization or relief under
any applicable Federal or State law, or the consent by it to
the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of the
Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors,
or the admission by it in writing of its inability to pay
its debts generally as they become due, or the authorization
of such action by the Board of Directors; 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, then in every such case 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 the Securities of such series are Original Issue
Discount Securities, such portion of the principal amount of such
Securities as may be specified in the terms thereof as
contemplated by Section 301) of all of the Securities of such
series to be due and payable immediately, by a notice in writing
to the Company (and to the Trustee if given by Holders), and upon
any such declaration such principal amount (or specified amount)
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, shall have the right to 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 Securities
on such series,
(2) the principal of and premium, if any, on
any Securities of such series which have become
due otherwise than by such declaration of
acceleration and interest thereon at the rate or
rates prescribed therefor in such Securities,
(3) to the extent that payment of such
interest is lawful, interest upon overdue interest
at the rate or rates prescribed therefor in such
Securities; and
(4) all amounts due to the Trustee under
Section 907;
and
(b) any other Event or Events of Default with
respect to Securities of such series, 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 of the series with respect to which
such Event of Default shall have occurred, the whole amount then
due and payable on such Securities for principal and premium, if
any, and interest, if any, and, to the extent permitted by law,
interest on premium, if any, and on any overdue principal and
interest, at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as
shall be sufficient to cover any amounts due to the Trustee under
Section 907.
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 Securities of
any series 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 Securities of such series 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 907) 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 907.
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 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 907;
SECOND: To the payment of the amounts then due and un-
paid 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 the Outstanding Securities of all series
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 (subject to Section 307) interest, if
any, on such Security on the Stated Maturity or Maturities
expressed in such Security (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 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 a series of Securities, 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, with respect to the Securities of such series; provided,
however, that if an Event of Default shall have occurred and be
continuing with respect to more than one 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 could not
involve the Trustee in personal liability in
circumstances where indemnity would not, in the
Trustee's sole discretion, 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 aggregate
principal amount of the Outstanding Securities of any series 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 any Security
of such series, or
(b) in respect of a covenant or provision hereof
which under Section 1202 cannot be modified or amended
without the consent of the Holder of each Outstanding
Security of such series affected.
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 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, 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 redemption, on or after the
Redemption Date).
SECTION 815. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or
at any time hereafter in force, which may affect the covenants or
the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
ARTICLE NINE
THE TRUSTEE
SECTION 901. 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 subsection shall not be construed to limit
the effect of subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, 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 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 the Outstanding Securities
of any one or more series, as provided herein, relating to
the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust
or power conferred upon the Trustee, under this Indenture
with respect to the Securities of such series; 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 902. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default
hereunder with respect to the Securities of any series, the
Trustee shall transmit by mail to all Holders of Securities of
such series entitled to receive reports pursuant to Section
1003(c), notice of any default hereunder known to the Trustee,
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 fund
instalment 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 30 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 903. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 901:
(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 resolution 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 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; and
(h) except as otherwise provided in Section 801(d),
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 Corporate
Trustee Administration Department and agency group of the
Trustee (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.
SECTION 904. 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 the Trustee or any
Authenticating Agent assumes no responsibility for their
correctness. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Securities.
The Trustee or any Authenticating Agent shall not be accountable
for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 905. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying
Agent, any Security Registrar or any other agent of the Company,
in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 908 and 913, may
otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 906. 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 with
the Company.
SECTION 907. COMPENSATION AND REIMBURSEMENT.
The Company shall
(a) pay to the Trustee from time to time reasonable
compensation 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 (including the
reasonable compensation, expenses and disbursements of its
agents and counsel) reasonably incurred or made by the
Trustee in accordance with any provision of this Indenture,
except any such expense, disbursement or advance as may be
attributable to its negligence, willful misconduct or bad
faith; and
(c) indemnify the Trustee and hold it harmless from
and against, any loss, liability or expense 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 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.
SECTION 908. DISQUALIFICATION; CONFLICTING INTERESTS.
(a) If the Trustee shall have or acquire any
conflicting interest, as defined in this Section, with respect to
the Securities of any series, it shall, within 90 days after
ascertaining that it has such conflicting interest, either
eliminate such conflicting interest or resign with respect to the
Securities of such series in the manner and with the effect
hereinafter specified in this Article.
(b) In the event that the Trustee shall fail to comply
with the provisions of subsection (a) of this Section with
respect to the Securities of any series, the Trustee shall,
within 10 days after the expiration of such 90-day period,
transmit, in the manner and to the extent provided in Section
1003(c), to all Holders of Securities of such series notice of
such failure.
(c) For the purposes of this Section, the Trustee
shall be deemed to have a conflicting interest with respect to
the Securities of any series if
(1) the Trustee 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 such other indenture is a
collateral trust indenture under which the only collateral
consists of Securities issued under this Indenture;
provided, however, that there shall be excluded from the
operation of this paragraph the Indenture dated as of
January 1, 1973, under which the Company's 7 1/2% Sinking
Fund Debentures Due 1998 are outstanding and any other
indenture or indentures under which any other securities, or
certificates of interest or participation in any other
securities, of the Company are outstanding, if
(A) this Indenture and such other indenture or
indentures are wholly unsecured and such other
indenture or indentures are 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 Securities of such series and
one or more other series or the provisions of such
other indenture or indentures 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
Securities of such series and such other series or
under such other indenture or indentures, 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 Securities of such
series and such other series or such other indenture or
indentures is not so likely to involve a material con-
flict 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 Securities of such series
and such other series or under such other indenture or
indentures;
(2) the Trustee or any of its directors or executive
officers is an obligor upon the Securities or an underwriter
for the Company;
(3) the Trustee directly or indirectly controls or is
directly or indirectly controlled by or is under direct or
indirect common control with the Company or an underwriter
for the Company;
(4) the 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 the Trustee itself) for the Company
who is currently engaged in the business of underwriting,
except that (A) one individual may be a director or an
executive officer, or both, of the 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 the Trustee
and the Company; (B) if and so long as the number of
directors of the Trustee in office is more than nine, one
additional individual may be a director or an executive
officer, or both, of the Trustee and a director of the
Company; and (C) the 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 subsection, to act as trustee, whether
under an indenture or otherwise;
(5) 10% or more of the voting securities of the
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 the 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) the Trustee is the beneficial owner of, or holds
as collateral security for an obligation which is in default
(as hereinafter in this subsection defined), (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
issued under this Indenture and securities issued under any
other indenture under which the Trustee is also trustee or
(B) 10% or more of any class of security of an underwriter
for the Company;
(7) the Trustee is the beneficial owner of, or holds
as collateral security for an obligation which is in default
(as hereinafter in this subsection defined), 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) the Trustee is the beneficial owner of, or holds
as collateral security for an obligation which is in default
(as hereinafter in this subsection defined), 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; or
(9) the Trustee owns, on May 15 in any calendar year,
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 subsection.
As to any such securities of which the 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 May 15 in each calendar
year, the Trustee shall make a check of its holdings of such
securities in any of the above-mentioned capacities as of
such May 15. 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 becomes
due and payable, and such failure shall continue for 30 days
thereafter, the 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
the Trustee, with sole or joint control over such securities
vested in it, shall, but only so long as such failure shall
continue, be considered as though beneficially owned by the
Trustee for the purposes of paragraphs (6), (7) and (8) of
this subsection.
The specification of percentages in paragraphs (5) to
(9), inclusive, of this subsection 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 subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of
this subsection only, (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; (b)
an obligation shall be deemed to be "in default" when a default
in payment of principal shall have continued for 30 days or more
and shall not have been cured; and (c) the Trustee shall not be
deemed to be the owner or holder of (1) any security which it
holds as collateral security, as trustee or otherwise, for an
obligation which is not in default as defined in clause (b)
above, (2) any security which it holds as collateral security
under this Indenture, irrespective of any default hereunder or
(3) any security which it holds as agent for collection, or as
custodian, escrow agent or depositary, or in any similar
representative capacity.
(d) For the purpose of this Section:
(1) the term "underwriter", when used with reference
to the Company, means every person who, within three years
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;
(2) the term "director" means any director of a
corporation or any individual performing similar functions
with respect to any organization, whether incorporated or
unincorporated;
(3) the term "person" means an individual, a corpora-
tion, 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;
(4) 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;
(5) the term "Company" means any obligor upon the
Securities; and
(6) 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.
(e) The percentages of voting securities and other
securities specified in this Section 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
this 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 securi-
ties, 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 Article,
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 sink-
ing fund relating to securities of the issuer of
the same class;
(B) securities of an issuer held in a sink-
ing 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.
SECTION 909. 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, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of
at least $25,000,000 and subject to supervision or examination by
Federal or State authority and 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. 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 910. 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 the applicable requirements
of Section 911.
(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 911 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
908(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 909 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) subject
to Section 814, 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 911. 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 911, 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 911. 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, upon payment of all sums owed to it, 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.
(c) Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts referred to in 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 912. 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 913. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
(a) Subject to subsection (b) of this Section, if the
Trustee shall be or shall become a creditor, directly or
indirectly, secured or unsecured, of the Company within four
months prior to a default, as defined in subsection (c) of this
Section, 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 subsection (c) of this Section:
(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 four 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 paragraph, 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 claims as such creditor, either as security therefor, or
in satisfaction or composition thereof, or otherwise, after
the beginning of such four 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:
(1) to retain for its own account (A) payments made on
account of any such claim by any Person (other than the
Company) who is liable thereon, and (B) the proceeds of the
bona fide sale of any such claim by the Trustee to a third
Person and (C) 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;
(2) 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 four months'
period;
(3) 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 four 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 has no reasonable cause
to believe that a default, as defined in subsection (c) of
this Section, would occur within four months; or
(4) to receive payment on any claim referred to in
clause (2) or (3) of this paragraph, against the release of
any property held as security for such claim as provided in
such clause (2) or (3), as the case may be, to the extent of
the fair value of such property.
For the purposes of clauses (2), (3) and (4) of this paragraph,
property substituted after the beginning of such four month's
period for property held as security at the time of such
substitution shall, to the extent of the fair value of the
property released, have the same status as the property released,
and, to the extent that any claim referred to in any of such
paragraphs is 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 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 is 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 is 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 and 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 to the provisions of this paragraph as a
mathematical formula.
Any Trustee which has resigned or been removed after
the beginning of such four months' period shall be subject to the
provisions of this subsection as though such resignation or
removal had not occurred. If any Trustee has resigned or been
removed prior to the beginning of such four months' period, it
shall be subject to the provisions of this subsection if and only
if the following conditions 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 four months' period; and
(2) such receipt of property or reduction of claim
occurred within four months after such resignation or
removal.
(b) There shall be excluded from the operation of sub-
section (a) of this Section 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 of
encumbrances thereon, if notice of such advances and of the
circumstances surrounding the making thereof is given to the
Holders at the time and in the manner provided in this
Indenture;
(3) disbursements made in the ordinary course of busi-
ness 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 subsection (c) of this Section;
(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 negotia-
tion of any drafts, bills of exchange, acceptances or
obligations which fall within the classification of
self-liquidating paper, as defined in subsection (c) of this
Section.
(c) For the purposes of this Section only:
(1) the term "default" means any failure to make
payment in full of the principal of or interest on any of
the Securities or upon the 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 other indenture (A) under which the Trustee is
also trustee, (B) which contains provisions substantially
similar to the provisions of this Section and (C) under
which a default exists at the time of the apportionment of
the funds and property held in such special account:
(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, ship-
ment, 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 Bank-
ruptcy Act or Title 11 of the United States Code.
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 or the Commonwealth of Puerto Rico, authorized under
such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $25,000,000 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. 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.
The provisions of Sections 308, 904 and 905 shall be
applicable to each Authenticating Agent.
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.
________________________
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) semi-annually, 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;
excluding from any such list names and addresses received by 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 is 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 its
capacity as Security Registrar. The Trustee may (1) destroy any
list furnished to it as provided in Section 1001 upon receipt of
a new list so furnished, (2) destroy any information received by
it as Paying Agent (if so acting) hereunder upon delivering to
itself as Trustee, not earlier than August 15 or February 14, a
list containing the names and addresses of the Holders obtained
from such information since the delivery of the next previous
list, if any, and (3) 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") 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 states 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
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; 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 December 1 of each year com-
mencing with the year 1990, if there are Securities of any series
or Tranche thereof Outstanding hereunder, the Trustee shall
transmit by mail to the Holders, as provided in subsection (c) of
this Section, a brief report dated as of such December 1 with
respect to:
(1) its eligibility under Section 909 and its
qualifications under Section 908, or in lieu thereof, if to
the best of its knowledge it has continued to be eligible
and qualified under said Sections, a written statement to
such effect;
(2) 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, except that the
Trustee shall not be required (but may elect) to report such
advances if such advances so remaining unpaid aggregate not
more than 1/2 of 1% of the principal amount of the
Securities Outstanding on the date of such report;
(3) 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 Section
913(b)(2), (3), (4) or (6);
(4) the property and funds, if any, physically in the
possession of the Trustee as such on the date of such
report;
(5) any additional issue of Securities which the
Trustee has not previously reported; and
(6) 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
or the Securities of any series, except action in respect of
a default, notice of which has been or is to be withheld by
the Trustee in accordance with Section 902.
(b) The Trustee shall transmit to the Holders, as
provided in subsection (c) of this Section, a brief report with
respect to the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the
making thereof) made by the Trustee (as such) since the date of
the last report transmitted pursuant to subsection (a) of this
Section (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 subsection, 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 this Section shall be trans-
mitted by mail:
(1) to all Holders, as their names and addresses
appear in the Security Register; and
(2) except in the case of reports pursuant to
subsection (b) of this Section, to each Holder whose name
and address is preserved at the time by the Trustee, as
provided in Section 1002(a).
(d) A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Trustee with each
stock exchange upon which any Securities are listed, with the
Commission and with the Company. The Company will 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 15 days after the
Company is required to file the same with the Commission,
copies of the annual reports and of the information,
documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time
by rules and regulations prescribe) 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 said Sections,
then it shall file with the Trustee and the Commission, in
accordance with the rules and regulations prescribed from 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; and
(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) with respect to reports
pursuant to Section 1003(a), such summaries of any
information, documents and reports required to be filed by
the Company pursuant to paragraphs (a) and (b) of this
Section as may be required by rules and regulations
prescribed from time to time by the Commission.
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 organized and existing under the
laws of the United States of America, any state thereof or
the District of Columbia, 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;
(b) immediately after giving effect to such
transaction and treating any indebtedness for borrowed money
which becomes an obligation of the Company as a result of
such transaction as having been incurred by the Company at
the time of such transaction, no Event of Default, and no
event which, after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be
continuing; and
(c) 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, except in
the case of a lease, 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, when
authorized by a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures
supplemental hereto, in form 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; 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 Outstanding
hereunder; or
(d) to change or eliminate any provision of this
Indenture or to add any new provisions to this Indenture;
provided, however, that if such change, elimination or
addition shall materially and adversely affect the interests
of the Holders of Securities of any series or Tranche, 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;
(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 911(b); or
(h) to provide for the procedures required to permit
the Company to utilize, at its option, a non-certificated
system of registration for all, or any series or Tranche of,
the Securities; or
(i) 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 such action or other
provisions shall not adversely affect the interests of the
Holders of Securities of any series or Tranche in any
material respect.
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 any premium payable upon the
redemption thereof, or change the method of calculating the
rate of interest thereon, or reduce the amount of the
principal of an Original Issue Discount Security that would
be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 802, or change any
Place of Payment where, or the coin or currency in which,
any Security or any premium or the interest thereon is
payable, 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 whose Holders is required for any such
supplemental indenture, or the consent of whose Holders 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) change any obligation of the Company to maintain
an office or agency in each Place of Payment, or
(d) modify any of the provisions of this Section or
Section 813, except to increase any such percentage 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 911(b) and 1201(g).
A supplemental indenture which changes or eliminates any covenant
or other provision of, or adds any new covenant or other
provision to, 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 901) 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, and 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.
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.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES; ACTION WITHOUT MEETING
SECTION 1301. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of one or more, or
all, series, or any Tranche or 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, or all, series, or any
Tranche or 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, or all,
series, or any Tranche or 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, then 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
as provided in subsection (a) of this Section.
(c) Any meeting of Holders of Securities of one or
more, or all, series, or any Tranche or Tranches thereof, shall
be valid without notice if the Holders of all Outstanding
Securities of such series or Tranche 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 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, or all, series, or any Tranche or
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 a
period of not less than 10 days as 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 a period of not less than 10
days as 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 adjourned
meeting shall be given as provided in Section 1302(a) not less
than five 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 pre-
sented 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 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. 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 of the series and Tranches 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 of Securities or proxy
shall be entitled to one vote for each $1,000 principal amount of
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
hereinbefore contemplated 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.
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 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.
---------------------------
<PAGE>
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.
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.
THE MONTANA POWER COMPANY
By:/s/F.V. Woy
--------------------------------
Executive Vice President
Finance and Chief Financial
Officer
ATTEST:
[CORPORATE SEAL]
/s/ John Carl
--------------------
Secretary
CITIBANK, N.A.
Trustee
By:/s/ O. Bohachewsky
-------------------------------
Vice President
ATTEST:
[CORPORATE SEAL]
/s/Carol Ng
-------------------------
Trust Officer
<PAGE>
STATE OF MONTANA )
) SS.:
COUNTY OF SILVER BOW )
On the 1st day of December, 1989, before me personally
came John Carl, to me known, who, being by me duly sworn, did
depose and say that he is Vice President and Secretary of The
Montana Power Company, one of the corporations described in and
which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his
name thereto by like authority.
/s/ Linda G. Galloway
-------------------------
Notary Public
[Notarial Seal]
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
On the 4th day of December, 1989, before me personally
came O. Bahachewsky, to me known, who, being by me duly sworn,
did depose and say that he is a Vice President of Citibank, N.A.,
one of the parties described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it
was so affixed by authority of the Board of Directors of said
party, and that he signed his name thereto by like authority.
/s/ Enzo L. Carbocci
-------------------------
Notary Public
[Notarial Seal]
Exhibit 4(b)
OFFICERS' CERTIFICATE
(Under Section 301 of the Indenture
referred to herein of The Montana
Power Company)
Pursuant to Section 301 of the Indenture, dated as of December 1,
1989 (the "Indenture"), of The Montana Power Company (the "Company") to
Citibank, N.A., as trustee (the "Trustee"), and pursuant to the resolutions
of the Company's Board of Directors, dated October 22, 1996, we, P.K.
Merrell and E. M. Senechal, Corporate Secretary and Treasurer,
respectively, of the Company do hereby certify that:
1. The Company's Medium-Term Notes, Series B (the "Notes"),
heretofore established by the Board of Directors shall be in
substantially the form set forth in Exhibit 1 hereto and
shall have the following terms and characteristics (the
lettered clauses set forth below corresponding to the
lettered subsections of Section 301 of the Indenture, with
terms used and not defined herein having the meaning
specified in the Indenture):
(a) the title of the Securities of such series shall
be "Medium-Term Notes, Series B";
(b) the aggregate principal amount of Notes which may
be authenticated and delivered under the Indenture
shall be unlimited;
(c) not applicable;
(d) (i) the date or dates on which the principal of
the Notes shall be payable shall be determined by the
officers of the Company and communicated to the Trustee
by Company Order or determined by the officers of the
Company and communicated to the Trustee in accordance
with procedures specified in a Company Order; provided,
however, that no Note shall have a term of less than
nine months or more than 40 years and (ii) the
principal of the Notes shall be paid at maturity or
upon redemption or repayment at the request of the
Holder, at the office or agency of the Company
maintained for such purpose in the City of New York in
immediately available funds upon presentation of the
Note;
(e) the rate or rates at which the Notes, or any
Tranche thereof, shall bear interest shall be
determined by the officers of the Company and
communicated to the Trustee by Company Order, or
determined by the officers of the Company and
communicated to the Trustee in accordance with
procedures specified in a Company Order; interest shall
accrue on any Note from the date of original issue or
from the last date to which interest has been paid or
duly provided for; the payment of interest on the
Notes, except at maturity or upon redemption or
repayment at the request of the Holder, will be made at
the office or agency of the Company maintained for such
purpose in The City of New York or, at the option of
the Company, by checks mailed to the Holders of the
Notes at the addresses shown in the Security Register
as of the close of business on the Regular Record Date;
provided, however, that, if the original issue date of
a Note is after the Regular Record Date and before the
corresponding Interest Payment Date, interest payable
on such Interest Payment Date will be payable to the
person in whose name the Note was initially registered
on the original issue date; and provided, further, that
interest payable at the maturity or upon redemption,
will be payable to the person to whom the principal is
payable; the Interest Payment Dates for the Notes shall
be determined by the officers of the Company and
communicated to the Trustee by Company Order, or
determined by the officers of the Company and
communicated to the Trustee in accordance with
procedures specified in a Company Order, and the
Regular Record Dates with respect to such Interest
Payment Dates shall be the fifteenth calendar day
immediately preceding each of such Interest Payment
Dates (whether or not a Business Day);
(f) the principal Corporate Trust Office of Citibank,
N.A. in the Borough of Manhattan, The City of New York,
New York shall be the office or agency of the Company
at which the principal of and premium, if any, and
interest, if any, on the Notes shall be payable, at
which Notes may be surrendered for registration of
transfer and exchange and at which notices and demands
to or upon the Company in respect of the Notes and the
Indenture may be served;
(g) the Notes, or any Tranche thereof, shall be
redeemable, in whole or in part, at the option of the
Company, as and to the extent so determined by the
officers of the Company and communicated to the Trustee
by Company Order or determined by the officers of the
Company and communicated to the Trustee in accordance
with procedures specified in a Company Order and
specified in a particular Note;
(h) the Notes shall not be redeemable pursuant to
Section 407 of the Indenture; the Company shall be
obligated to redeem or purchase the Notes, or any
Tranche thereof, (i) at the option of the Holders
thereof and (ii) pursuant to any sinking fund or
analogous provisions, in each case, as and to the
extent so determined by the officers of the Company and
communicated to the Trustee by Company Order or
determined by the officers of the Company and
communicated to the Trustee in accordance with
procedures specified in a Company Order and specified
in a particular Note;
(i) the Notes shall be issued in denominations of
$1,000 or any integral multiple thereof;
(j) not applicable;
(k) not applicable;
(l) additional Events of Default with respect to, and
additional covenants of the Company for the benefit of
the Holders of, the Notes, or any Tranche thereof, may
be determined by the officers of the Company and
communicated to the Trustee by Company Order or
determined by the officers of the Company and
communicated to the Trustee in accordance with
procedures specified in a Company Order;
(m) not applicable;
(n) not applicable;
(o) not applicable;
(p) the Notes, or any Tranche thereof, may be issued
in global form (the "Global Notes") and the depositary
for the Global Notes shall be The Depository Trust
Company ("DTC"); beneficial interests in Notes issued
in global form may not be exchanged for individual
certificated Notes, except that (i) if DTC elects to
discontinue providing its services as depositary or
(ii) the Company elects to discontinue use of the
system of book-entry transfers through DTC, and a
successor depositary is not appointed, the Company
will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of
definitive Notes, will authenticate and deliver, Notes
in definitive certificated form in an aggregate
principal amount equal to the principal amount of
the Global Note representing such Notes in exchange
for such Global Note; each Global Note (i) shall
represent and shall be denominated in an amount equal
to the aggregate principal amount of the outstanding
Notes or Tranche thereof to be represented by such
Global Note, (ii) shall be registered in the name
of DTC or its nominee, (iii) shall be delivered by
the Trustee to DTC or pursuant to DTC's instruction
and (iv) shall bear a legend restricting the transfer
of such Global Note to any person other than DTC or
its nominee; neither the Company, the Trustee nor
any Authenticating Agent will have any responsibility
or liability for any aspect of the records relating
to, or payments made on account of, beneficial
ownership interests in a Global Note or for
maintaining, supervising or reviewing any records
relating to such beneficial ownership interests;
(q) the Notes shall have such further terms not
inconsistent with the terms of the Indenture as are set
forth in the form of Note attached hereto as Exhibit 1;
2. Pursuant to Sections 301 and 303 of the Indenture, the
maturity dates, original issue dates, interest rates and
other terms of the Notes, to the extent not established
herein, shall be determined by the officers of the Company
and communicated to the Trustee by a Company Order
substantially in the form attached hereto as Exhibit 2, or
determined by the appropriate officers of the Company and
communicated to the Trustee in accordance with procedures
specified in a Company Order.
3. The officers of the Company who are authorized to execute
and deliver Company Orders from time to time are listed on
the Incumbency Certificate of the Company, dated the date
hereof, attached hereto as Exhibit 3.
<PAGE>
IN WITNESS WHEREOF, we have hereunto signed our names this ___ day of
December, 1996.
__________________________________
Corporate Secretary
__________________________________
Treasurer
<PAGE>
Exhibit 1
[Form of Face]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE TO BE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
Registered No. Registered Principal Amount
$
THE MONTANA POWER COMPANY
Medium-Term Note, Series B
CUSIP: Redeemable: Yes___ No___
Original Issue Date: Initial Redemption Date:
Interest Rate: Redemption Limitation Date:
Stated Maturity Date: Initial Redemption Price:
Issue Price: % Reduction Percentage:
Interest Payment Dates: Repayable at Option
of Holder: Yes___ No___
Initial Interest Payment Date: Repayment Date(s):
Repayment Price(s):
Election Period: from
_________________________to
_________________________
<PAGE>
THE MONTANA POWER COMPANY, a corporation duly organized and
existing under the laws of the State of Montana (herein called the
"Company", which term includes any successor corporation under the
Indenture referred to on the reverse hereof), for value received, hereby
promises to pay to _________________________, or registered assigns, the
principal sum of ______________________________ Dollars on the Stated
Maturity Date specified above, and to pay interest thereon from the
Original Issue Date specified above or from the most recent Interest
Payment Date to which interest has been paid or duly provided for,
semi-annually in arrears on the Interest Payment Dates specified above in
each year, commencing with the Interest Payment Date next succeeding the
Original Issue Date specified above, at the Interest Rate per annum
specified above, until the principal hereof is paid or duly provided for.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date shall, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities)
is registered at the close of business on the Regular Record Date for such
interest, which shall be the 15th calendar day immediately preceding such
Interest Payment Date (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date; provided, however, that, if the
Original Issue Date of this Security is after a Regular Record Date and
before the corresponding Interest Payment Date, interest payable on such
Interest Payment Date shall be paid to the Person in whose name this
Security was initially registered on the Original Issue Date; and provided,
further, that interest payable at Maturity shall be paid to the Person to
whom principal shall be paid. Any such interest not so punctually paid or
duly provided for shall forthwith cease to be payable to the Holder on such
Regular Record Date and shall be paid as provided in said Indenture.
Payment of the principal of and premium, if any, and interest, if
any, on this Security shall be made at the office or agency of the Company
maintained for such purpose in the Borough of Manhattan, The City of New
York, New York, in such coins or currency of the United States of America
as at the time of payment shall be legal tender for payment of public and
private debts; provided, however, that, at the option of the Company,
payment of interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security
Register; and provided further, that payment of principal and premium, if
any, and interest, if any, payable on the Stated Maturity Date specified
above or upon redemption, at the request of the Holder, will be made at
said office or agency in immediately available funds upon presentation of
this Security.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by the Trustee by manual signature, this Security shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal as of the date of authentication set
forth below.
THE MONTANA POWER COMPANY
By________________________________
[SEAL]
Attest:
_________________________
This is one of the Securities of the Series designated in
accordance with, and referred to in, the within-mentioned Indenture.
Date of Authentication:
CITIBANK, N.A.,
as Trustee
By: _______________________________
Authorized Signatory
<PAGE>
[Form of Reverse]
This Security is one of a duly authorized issue of securities of
the Company (herein called the "Securities"), issued and issuable in one or
more series under an Indenture, dated as of December 1, 1989 (such
Indenture, as originally executed and delivered and as thereafter
supplemented and amended, together with any constituent instruments
establishing the terms of particular Securities, being herein called the
"Indenture"), between the Company and Citibank, N.A., trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Securities
and of the terms upon which the Securities have been, and will be,
authenticated and delivered.
If any Interest Payment Date, any Redemption Date or the Stated
Maturity shall not be a Business Day, payment of the amounts due on this
Security on such date may be made on the next succeeding Business Day; and
no interest shall accrue on such amounts for the period from and after such
Interest Payment Date, Redemption Date or Stated Maturity, as the case may
be.
If so specified on the face hereof, this Security is subject to
redemption at any time on or after the Initial Redemption Date specified on
the face hereof, as a whole or in part, at the election of the Company, at
the applicable redemption price (as described below) plus accrued interest
to the date fixed for redemption. Such redemption price shall be the
Initial Redemption Price specified on the face hereof for the twelve-month
period commencing on the Initial Redemption Date and shall decline for the
twelve-month period commencing on each anniversary of the Initial
Redemption Date by a percentage of principal amount equal to the Reduction
Percentage specified on the face hereof until such redemption price is 100%
of the principal amount of this Security to be redeemed.
Notwithstanding the foregoing, the Company may not, prior to the
Redemption Limitation Date, if any, specified on the face hereof, redeem
any Securities of this series as contemplated above as a part of, or in
anticipation of, any refunding operation by the application, directly or
indirectly, of moneys borrowed having an effective interest cost to the
Company (calculated in accordance with generally accepted financial
practice) less than the effective interest cost to the Company (similarly
calculated) of this Security.
Notice of redemption shall be given by mail to Holders of
Securities, not less than 30 days nor more than 60 days prior to the date
fixed for redemption, all as provided in the Indenture. As provided in the
Indenture, notice of redemption as aforesaid may state that such redemption
shall be conditional upon the receipt by the Trustee of money sufficient to
pay the principal of and premium, if any, and interest, if any, on this
Security on or prior to the date fixed for such redemption. A notice of
redemption so conditioned shall be of no force or effect if such money is
not so received; and, in such event, the Company shall not be required to
redeem this Security.
If so specified on the face hereof, this Security is repayable by
the Company at the option of the registered owner hereof on the Repayment
Date or Dates and at the Repayment Price or Prices specified on the face
hereof, plus accrued interest to the date of repayment. The repayment
option may be exercised by the registered owner of this Security for less
than the entire principal amount of this Security, provided that the
principal amount to be repaid is equal to $1,000 or an integral multiple
thereof. For this Security to be repaid at the option of the registered
owner hereof, the Company must receive this Security at its office or
agency in the Borough of Manhattan, The City of New York, within the
Election Period specified on the face hereof, together with the form
entitled "Option to Elect Repayment" on the reverse of, or otherwise
accompanying, this Security, duly completed. Any such election so received
by the Company within such Period shall be irrevocable.
The Company shall not be required to (a) register the transfer of
or exchange Securities of this series during a period of 15 days
immediately preceding the selection of such Securities to be 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.
In the event of redemption of this Security in part only, a new
Security or Securities of this series, of like tenor, for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
surrender of this Security.
If an Event of Default with respect to Securities of this series
shall occur and be continuing, the principal of the Securities of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the Trustee to enter into one or more supplemental indentures for
the purpose of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, the Indenture 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 the Indenture, considered
as one class; provided, however, that if there shall be Securities of more
than one series Outstanding under the Indenture 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. The Indenture also
contains provisions permitting the Holders of specified percentages in
principal amount of the Securities then Outstanding, on behalf of the
holders of all Securities, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the Holder of this
Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange therefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest, if any, on this Security at the times, place
and rate, in the coin or currency, and in the manner, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the
Security Register, upon surrender of this Security for registration of
transfer at the Corporate Trust Office of the Trustee or such other office
or agency as may be designated by the Company for such purpose in the
Borough of Manhattan, The City of New York, New York, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or
his attorney duly authorized in writing, and, thereupon, one or more new
Securities of this series of authorized denominations and of like tenor and
aggregate principal amount will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only as Registered
Securities, without coupons, in denominations of $1,000 and integral
multiples thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are exchangeable
for a like aggregate principal amount of Securities of this series, of any
authorized denominations, as requested by the Holder surrendering the same,
and of like tenor upon surrender of the Security or Securities to be
exchanged at the Corporate Trust Office of the Trustee or such other office
or agency as may be designated by the Company for such purpose in the
Borough of Manhattan, The City of New York, New York.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Security is registered as
the absolute owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be
affected by notice to the contrary.
The Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
As provided in the Indenture, no recourse shall be had for the
payment of the principal of or premium, if any, or interest 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 the 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 the 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, 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), because of
the indebtedness thereby authorized or under or by reason of any of the
obligations, covenants or agreements contained in the 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 the Indenture
and the issuance of the Securities.
<PAGE>
---------------------------------------------------
ABBREVIATIONS
The following abbreviations, when used in this Security, shall be
construed as through they were written out in full according to applicable
laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT-____ Custodian _____
TEN ENT - as tenants by the (Cust) (Minor)
entireties
JT TEN - as joint tenants with under Uniform Gifts to Minors Act
right of survivorship
and not as tenants ___________________________________
in common (State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF TRANSFEREE
___________________________________
Name and address of transferee must be printed or typewritten
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
the within Security of The Montana Power Company and does hereby
irrevocably constitute and appoint
---------------------------------------------------------------------------
Attorney to transfer the said Security on the books of the within-named
Company, with full power of substitution in the premises.
Dated:________________________
_________________________
<PAGE>
OPTION TO ELECT PAYMENT
PLEASE TAKE NOTICE that the registered owner(s) of this Security elect
to cause $_______________________,000 in principal amount of this Security
to be repaid on __________ (a Repayment Date specified on the face of this
Security) at the Repayment Price specified on the face of this Security,
plus accrued interest to the Repayment Date.
If payment by check is desired, give name and mailing address of the
registered owner:
___________________________________________________________________________
___________________________________________________________________________
If payment by wire transfer is desired, provide the following
information:
___________________________________________________________________________
___________________________________________________________________________
(name of registered owner, account number, ABA number,
name and address of bank)
Dated:___________________ ___________________________________
Signature of registered owner(s) or
duly authorized agent or attorney
(If an agent or attorney signs, attach the power of attorney or other proof
of appointment or authority. All signatures must be guaranteed by a member
firm of a registered national securities exchange or of the National
Association of Securities Dealer, Inc. or a commercial bank or trust
company having an office in the United States of America. Addresses and
account information must be printed or typewritten.)
<PAGE>
Exhibit 2
Company Order for Authentication of
Medium-Term Notes, Series B
December __, 1996
Citibank, N.A., as Trustee
120 Wall Street
13th Floor
New York, New York 10043
Attention: Corporate Agency & Trust
Gentlemen:
Pursuant to Section 301 and 303 of the Indenture, dated as of
December 1, 1989 ( the "Indenture"), of The Montana Power Company (the
"Company") to Citibank, N.A., as trustee (the "Trustee"), you are hereby
requested to authenticate from time to time after the date hereof, in the
manner provided by the Indenture, such aggregate principal amount of the
Company's Medium-Term Notes, Series B (the "Notes") as shall be set forth
from time to time in Instructions (the "Instructions") in substantially the
form attached hereto as Schedule I; provided, however, that the aggregate
principal amount of Notes which you are hereby authorized to authenticate
under the Indenture is $150,000,000. Such Notes will contain (i) the terms
and conditions set forth in the Officers' Certificate delivered to you on
the date hereof, pursuant to Section 301 of the Indenture and (ii) such
further terms, including but not limited to the denomination(s), original
issue date(s), interest rate(s) and maturity date(s), as are set forth in
the Instructions delivered to the Trustee from time to time.
You are hereby further instructed to deliver the Notes
authenticated pursuant to each particular Instruction to the party or
parties named in such Instruction in accordance with the Administrative
Procedures attached as Annex I to the Distribution Agreement, dated the
date hereof, between the Company and each of the Agents named therein.
Concurrently with this Company Order the following documents are
being delivered to you:
(i) Officers' Certificate under Section 102 of the Indenture;
(ii) Opinion of Counsel under Section 102 of the Indenture;
(3) Certified copy of Resolutions duly adopted by the Company's
Board of Directors on October 22, 1996;
(4) Officers' Certificate under Section 301 of the Indenture;
and
(5) Opinion of Counsel under Section 303 of the Indenture.
<PAGE>
Kindly acknowledge receipt of this Company Order, including the
documents listed herein and confirm the arrangements outlined herein by
signing and returning the copy of this letter attached hereto.
Very truly yours,
THE MONTANA POWER COMPANY
By: __________________________________
Corporate Secretary
__________________________________
Treasurer
We hereby acknowledge receipt of
the foregoing Company Order,
including the documents listed
therein and note the instructions
set forth therein.
CITIBANK, N.A., as Trustee
By: _______________________________
Date: ______________________________
<PAGE>
SCHEDULE I
The Montana Power Company
Medium-Term Notes, Series B
Form of
Instructions
------------
To: Citibank, N.A., as Trustee
Pursuant to Company Order dated: December __, 1996
Agent's Name:
Exact name, address and taxpayer identification number of registered owner,
if other than Cede & Co.:
Principal amount of each Note:
Original Issue Date (settlement date for Notes):
Interest Rate:
Stated Maturity Date:
Issue Price:
Interest Payment Dates:
Initial Interest Payment Date:
Redeemable: Yes ___ No ___
Initial Redemption Date:
Redemption Limitation Date:
Initial Redemption Price:
Reduction Percentage:
Repayable at the Option of the Holder: Yes ___ No___
Repayment Date(s):
Repayment Price(s):
Election Period:
Agent's commission (discount %):
Net proceeds to the Company:
Note Transaction Number:
The Montana Power Company
By: _____________________
Authorized Signatory
_____________________
Authorized Signatory
<PAGE>
Exhibit 3
[Incumbency Certificate]
Exhibit 4(d)
__________________________________________
THE MONTANA POWER COMPANY
TO
THE BANK OF NEW YORK
Trustee
_________
INDENTURE
(FOR UNSECURED SUBORDINATED DEBT SECURITIES
RELATING TO TRUST SECURITIES)
DATED AS OF NOVEMBER 1, 1996
__________________________________________
<PAGE>
TABLE OF CONTENTS
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITAL OF THE COMPANY . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE . . . . . . . . . . . . . . . . . . . . . . . . . 1
Definitions and Other Provisions of General Application . . . 1
SECTION 101. Definitions . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . 2
Additional Interest . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . 2
Authorized Officer . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . 3
Company Request or Company Order . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . 3
corporation . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . . 3
Dollar or $ . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . 3
Government Obligations . . . . . . . . . . . . . . 3
Governmental Authority . . . . . . . . . . . . . . 4
Guarantee . . . . . . . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . . . . 4
Maturity . . . . . . . . . . . . . . . . . . . . . 4
Officer's Certificate . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . 4
Outstanding . . . . . . . . . . . . . . . . . . . . 4
Paying Agent . . . . . . . . . . . . . . . . . . . 5
Person . . . . . . . . . . . . . . . . . . . . . . 6
Place of Payment . . . . . . . . . . . . . . . . . 6
Predecessor Security . . . . . . . . . . . . . . . 6
Preferred Securities . . . . . . . . . . . . . . . 6
Property Trustee . . . . . . . . . . . . . . . . . 6
Redemption Date . . . . . . . . . . . . . . . . . . 6
Redemption Price . . . . . . . . . . . . . . . . . 6
Regular Record Date . . . . . . . . . . . . . . . . 6
Required Currency . . . . . . . . . . . . . . . . . 6
Note:This table of contents shall not, for any purpose, be deemed
to be part of the Indenture.
<PAGE>
Responsible Officer . . . . . . . . . . . . . . . . 6
Securities . . . . . . . . . . . . . . . . . . . . 6
Security Register and Security Registrar . . . . . 6
Senior Indebtedness . . . . . . . . . . . . . . . . 7
Special Record Date . . . . . . . . . . . . . . . . 7
Stated Maturity . . . . . . . . . . . . . . . . . . 7
Successor Corporation . . . . . . . . . . . . . . . 7
Trust . . . . . . . . . . . . . . . . . . . . . . . 7
Trust Agreement . . . . . . . . . . . . . . . . . . 7
Trust Indenture Act . . . . . . . . . . . . . . . . 7
Trustee . . . . . . . . . . . . . . . . . . . . . . 7
United States . . . . . . . . . . . . . . . . . . . 8
SECTION 102. Compliance Certificates and Opinions . . . 8
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 . 12
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 . . . . . . . . . . . 13
SECTION 111. Benefits of Indenture . . . . . . . . . . 13
SECTION 112. Governing Law . . . . . . . . . . . . . . 13
SECTION 113. Legal Holidays . . . . . . . . . . . . . . 13
ARTICLE TWO . . . . . . . . . . . . . . . . . . . . . . . . . 14
Security Forms . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 201. Forms Generally . . . . . . . . . . . . . 14
SECTION 202. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . . . . . 14
ARTICLE THREE . . . . . . . . . . . . . . . . . . . . . . . . 15
The Securities . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 301. Amount Unlimited; Issuable in Series . . . 15
SECTION 302. Denominations . . . . . . . . . . . . . . 18
SECTION 303. Execution, Authentication, Delivery and
Dating . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 304. Temporary Securities . . . . . . . . . . . 20
SECTION 305. Registration, Registration of Transfer
and Exchange . . . . . . . . . . . . . . . . . . . 21
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 by Security Registrar . . . . 24
SECTION 310. Computation of Interest . . . . . . . . . 24
SECTION 311. Payment to Be in Proper Currency . . . . . 25
SECTION 312. Extension of Interest Payment . . . . . . 25
SECTION 313. Additional Interest. . . . . . . . . . . . 25
ARTICLE FOUR . . . . . . . . . . . . . . . . . . . . . . . . 26
Redemption of Securities . . . . . . . . . . . . . . . . . . 26
SECTION 401. Applicability of Article . . . . . . . . . 26
SECTION 402. Election to Redeem; Notice to Trustee . . 26
SECTION 403. Selection of Securities to Be Redeemed . . 26
SECTION 404. Notice of Redemption . . . . . . . . . . . 27
SECTION 405. Securities Payable on Redemption Date . . 28
SECTION 406. Securities Redeemed in Part . . . . . . . 28
ARTICLE FIVE . . . . . . . . . . . . . . . . . . . . . . . . 28
Sinking Funds . . . . . . . . . . . . . . . . . . . . . . . . 28
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 . . . . . . . . . . . . . . . . . . . . . . . . . 30
Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . 30
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. Maintenance of Properties . . . . . . . . 32
SECTION 606. Annual Officer's Certificate as to
Compliance. . . . . . . . . . . . . . . . . . . . . 33
SECTION 607. Waiver of Certain Covenants . . . . . . . 33
SECTION 608. Restriction on Payment of Dividends . . . 33
SECTION 609. Maintenance of Trust Existence . . . . . . 34
SECTION 610. Rights of Holders of Preferred
Securities . . . . . . . . . . . . . . . . . . . . 34
ARTICLE SEVEN . . . . . . . . . . . . . . . . . . . . . . . . 35
Satisfaction and Discharge . . . . . . . . . . . . . . . . . 35
SECTION 701. Satisfaction and Discharge of Securities . 35
SECTION 702. Satisfaction and Discharge of Indenture . 37
SECTION 703. Application of Trust Money . . . . . . . . 38
ARTICLE EIGHT . . . . . . . . . . . . . . . . . . . . . . . . 38
Events of Default; Remedies . . . . . . . . . . . . . . . . . 38
SECTION 801. Events of Default . . . . . . . . . . . . 38
SECTION 802. Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . . . . . . . 40
SECTION 803. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . . 41
SECTION 804. Trustee May File Proofs of Claim . . . . . 42
SECTION 805. Trustee May Enforce Claims Without
Possession of Securities . . . . . . . . . . . . . 42
SECTION 806. Application of Money Collected . . . . . . 43
SECTION 807. Limitation on Suits . . . . . . . . . . . 43
SECTION 808. Unconditional Right of Holders to Receive
Principal, Premium and Interest . . . . . . . . . . 44
SECTION 809. Restoration of Rights and Remedies . . . . 44
SECTION 810. Rights and Remedies Cumulative . . . . . . 44
SECTION 811. Delay or Omission Not Waiver . . . . . . . 45
SECTION 812. Control by Holders of Securities . . . . . 45
SECTION 813. Waiver of Past Defaults . . . . . . . . . 45
SECTION 814. Undertaking for Costs . . . . . . . . . . 46
SECTION 815. Waiver of Stay or Extension Laws . . . . . 46
ARTICLE NINE . . . . . . . . . . . . . . . . . . . . . . . . 46
The Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 901. Certain Duties and Responsibilities . . . 46
SECTION 902. Notice of Defaults . . . . . . . . . . . . 47
SECTION 903. Certain Rights of Trustee . . . . . . . . 47
SECTION 904. Not Responsible for Recitals or Issuance
of Securities . . . . . . . . . . . . . . . . . . . 48
SECTION 905. May Hold Securities . . . . . . . . . . . 49
SECTION 906. Money Held in Trust . . . . . . . . . . . 49
SECTION 907. Compensation and Reimbursement . . . . . . 49
SECTION 908. Disqualification; Conflicting Interests. . 50
SECTION 909. Corporate Trustee Required; Eligibility . 50
SECTION 910. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . . . . . . 51
SECTION 911. Acceptance of Appointment by Successor . . 53
SECTION 912. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . . . . 54
SECTION 913. Preferential Collection of Claims Against
Company . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 914. Co-trustees and Separate Trustees. . . . . 55
SECTION 915. Appointment of Authenticating Agent . . . 56
ARTICLE TEN . . . . . . . . . . . . . . . . . . . . . . . . . 58
Holders' Lists and Reports by Trustee and Company . . . . . . 58
SECTION 1001. Lists of Holders . . . . . . . . . . . . 58
SECTION 1002. Reports by Trustee and Company . . . . . 58
ARTICLE ELEVEN . . . . . . . . . . . . . . . . . . . . . . . 59
Consolidation, Merger, Conveyance or Other Transfer . . . . 59
SECTION 1101. Company May Consolidate, etc., Only on
Certain Terms . . . . . . . . . . . . . . . . . . . 59
SECTION 1102. Successor Corporation Substituted . . . . 59
ARTICLE TWELVE . . . . . . . . . . . . . . . . . . . . . . . 60
Supplemental Indentures . . . . . . . . . . . . . . . . . . . 60
SECTION 1201. Supplemental Indentures Without Consent
of Holders . . . . . . . . . . . . . . . . . . . . 60
SECTION 1202. Supplemental Indentures With Consent of
Holders . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 1203. Execution of Supplemental Indentures . . 63
SECTION 1204. Effect of Supplemental Indentures . . . . 63
SECTION 1205. Conformity With Trust Indenture Act . . . 63
SECTION 1206. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . . . . . . 64
SECTION 1207. Modification Without Supplemental
Indenture . . . . . . . . . . . . . . . . . . . . . 64
ARTICLE THIRTEEN . . . . . . . . . . . . . . . . . . . . . . 64
Meetings of Holders; Action Without Meeting . . . . . . . . . 64
SECTION 1301. Purposes for Which Meetings May Be
Called . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 1302. Call, Notice and Place of Meetings . . . 64
SECTION 1303. Persons Entitled to Vote at Meetings . . 65
SECTION 1304. Quorum; Action . . . . . . . . . . . . . 65
SECTION 1305. Attendance at Meetings; Determination of
Voting Rights; Conduct and Adjournment of
Meetings . . . . . . . . . . . . . . . . . . . . . 66
SECTION 1306. Counting Votes and Recording Action of
Meetings . . . . . . . . . . . . . . . . . . . . . 67
SECTION 1307. Action Without Meeting . . . . . . . . . 68
ARTICLE FOURTEEN . . . . . . . . . . . . . . . . . . . . . . 68
Immunity of Incorporators, Stockholders, Officers and
Directors . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 1401. Liability Solely Corporate . . . . . . . 68
ARTICLE FIFTEEN . . . . . . . . . . . . . . . . . . . . . . . 68
Subordination of Securities . . . . . . . . . . . . . . . . . 68
SECTION 1501. Securities Subordinate to Senior
Indebtedness. . . . . . . . . . . . . . . . . . . . 68
SECTION 1502. Payment Over of Proceeds of Securities . 69
SECTION 1503. Disputes with Holders of Certain Senior
Indebtedness . . . . . . . . . . . . . . . . . . . 71
SECTION 1504. Subrogation . . . . . . . . . . . . . . . 71
SECTION 1505. Obligation of the Company Unconditional . 71
SECTION 1506. Priority of Senior Indebtedness Upon
Maturity . . . . . . . . . . . . . . . . . . . . . 72
SECTION 1507. Trustee as Holder of Senior
Indebtedness . . . . . . . . . . . . . . . . . . . 72
SECTION 1508. Notice to Trustee to Effectuate
Subordination . . . . . . . . . . . . . . . . . . . 72
SECTION 1509. Modification, Extension, etc. of Senior
Indebtedness . . . . . . . . . . . . . 73
SECTION 1510. Trustee Has No Fiduciary Duty to Holders
of Senior Indebtedness . . . . . . . . . . . . . . 73
SECTION 1511. Paying Agents Other Than the Trustee . . 73
SECTION 1512. Rights of Holders of Senior Indebtedness
Not Impaired . . . . . . . . . . . . . . . . . . . 74
SECTION 1513. Effect of Subordination Provisions;
Termination . . . . . . . . . . . . . . . . . . . . 74
Testimonium . . . . . . . . . . . . . . . . . . . . . . . . . 75
Signatures and Seals . . . . . . . . . . . . . . . . . . . . 75
Acknowledgements . . . . . . . . . . . . . . . . . . . . . . 76
<PAGE>
THE MONTANA POWER COMPANY
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF ______________________, ____
TRUST INDENTURE ACT SECTION INDENTURE SECTION
Section 310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 909
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 909
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . 914
(a)(4) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 908
910
Section 311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . 913
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 913
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 913
Section 312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . 1001
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 1001
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 1001
Section 313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . 1002
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 1002
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 1002
Section 314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . 1002
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . 606
(b) . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Section 315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . 901
903
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 902
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 901
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 901
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . 814
Section 316 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . 812
813
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . 802
812
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . 813
(a)(2) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 808
Section 317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 803
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 804
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 603
Section 318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . 107
<PAGE>
INDENTURE, dated as of November 1, 1996, between THE
MONTANA POWER COMPANY, a corporation duly organized and existing
under the laws of the State of Montana (herein called the
"Company"), having its principal office at 40 East Broadway,
Butte, Montana 59701, and THE BANK OF NEW YORK, a corporation
duly organized and existing under the laws of the State of New
York, 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 subordinated debentures, notes or other
evidences of indebtedness (herein called the "Securities"), in an
unlimited aggregate principal amount to be issued in one or more
series as contemplated herein; and all acts necessary to make
this Indenture a valid agreement of the Company have been
performed.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires,
capitalized terms used herein shall have the meanings assigned to
them in Article One of this Indenture.
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 any series 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 terms used herein without definition 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,
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 at the date of such computation or, at the election of
the Company from time to time, at the date of the execution
and delivery of this Indenture; provided, however, that in
determining generally accepted accounting principles
applicable to the Company, the Company shall, to the extent
required, conform to any order, rule or regulation of any
administrative agency, regulatory authority or other govern-
mental body having jurisdiction over the Company;
(d) unless the context otherwise requires, any reference
to an "Article" or a "Section" refers to an Article or
Section, as the case may be, of this Indenture; and
(e) 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 de-
fined in that Article.
"ACT", when used with respect to any Holder of a
Security, has the meaning specified in Section 104.
"ADDITIONAL INTEREST" has the meaning specified in
Section 313.
"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 through
one or more intermediaries, 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 (other than the
Company or an Affiliate of the Company) authorized by the Trustee
pursuant to Section 915 to act on behalf of the Trustee to
authenticate one or more series of Securities.
"AUTHORIZED OFFICER" means the Chairman of the Board, the
President, any Vice President, the Treasurer, any Assistant
Treasurer, or any other officer or agent of the Company duly
authorized by the Board of Directors to act in respect of matters
relating to this Indenture.
"BOARD OF DIRECTORS" means either the board of directors
of the Company or any committee thereof duly authorized to act in
respect of matters relating to this Indenture.
"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 as contemplated by Section 301.
"COMMISSION" means the Securities and Exchange Commis-
sion, as from time to time constituted, created under the
Securities Exchange Act of 1934, as amended, or, if at any time
after the date of execution and delivery of this Indenture such
Commission is not existing and performing the duties now assigned
to it under the Trust Indenture Act, then the body, if any, per-
forming such duties at such time.
"COMPANY" means the Person named as the "Company" in the
first paragraph of this Indenture 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 re-
quest or order signed in the name of the Company by an Authorized
Officer and delivered to the Trustee.
"CORPORATE TRUST OFFICE" means the office of the Trustee
at which at any particular time its corporate trust business
shall be principally administered, which office at the date of
execution and delivery of this Indenture is located at 101
Barclay Street, 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.
"DOLLAR" or "$" means a dollar or other equivalent unit
in such coin or currency of the United States as at the time
shall be legal tender for the payment of public and private
debts.
"EVENT OF DEFAULT" with respect to Securities of a
particular series 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 and entitled to the benefit of the full
faith and credit thereof; and
(b) certificates, depositary receipts or other in-
struments which evidence a direct ownership interest in obli-
gations 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 (which may include the Trustee or any Paying
Agent) 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.
"GOVERNMENTAL AUTHORITY" means the government of the United
States or of any State or Territory thereof or of the District of
Columbia or of any county, municipality or other political
subdivision of any of the foregoing, or any department, agency,
authority or other instrumentality of any of the foregoing.
"GUARANTEE" means the guarantee agreement delivered from the
Company to a Trust, for the benefit of the holders of Preferred
Securities issued by such Trust.
"HOLDER" means a Person in whose name a Security is registered
in the Security Register.
"INDENTURE" means this instrument as originally executed and
delivered 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 a particular series of Securities
established as contemplated by Section 301.
"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 provided in such Security or
in this Indenture, whether at the Stated Maturity, by declaration
of acceleration, upon call for redemption or otherwise.
"OFFICER'S CERTIFICATE" means a certificate signed by an
Authorized Officer and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who
may be counsel for the Company or other counsel 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 which 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 or purchasers 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, have given 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
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 (except for purposes of
actions to be taken by Holders of more than one series voting as
a class under Section 812) all Outstanding Securities of each
such series, as the case may be, determined without regard to
this provision) shall be disregarded and deemed not to be Out-
standing, except that, in determining whether the Trustee shall
be protected in relying upon any such request, demand, authoriza-
tion, direction, notice, consent or waiver or upon any such
determination as to the presence of a quorum, only Securities
which the Trustee 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; (y) the principal amount of any Security which is
denominated in a currency other than Dollars or in a composite
currency that shall be deemed to be Outstanding for such purposes
shall be the amount of Dollars which could have been purchased by
the principal amount of such currency or composite currency
evidenced by such Security, in each such case certified to the
Trustee in an Officer's Certificate, based (i) on the average of
the mean of the buying and selling spot rates quoted by three
banks which are members of the New York Clearing House
Association selected by the Company in effect at 11:00 A.M. (New
York time) in The City of New York on the fifth Business Day
preceding any such determination or (ii) if on such fifth
Business Day it shall not be possible or practicable to obtain
such quotations from such three banks, on such other quotations
or alternative methods of determination which shall be as
consistent as practicable with the method set forth in (i) above;
provided, further, that, in the case of any Security the
principal of which is payable from time to time without
presentment or surrender, the principal amount of such Security
that shall be deemed to be Outstanding at any time for all
purposes of this Indenture shall be the original principal amount
thereof less the aggregate amount of principal thereof
theretofore paid.
"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.
"PERSON" means any individual, corporation, partnership, joint
venture, trust or unincorporated organization or any Governmental
Authority.
"PLACE OF PAYMENT", when used with respect to the Securities
of any series, means the place or places, specified as contem-
plated by Section 301, at which, subject to Section 602, prin-
cipal of and premium, if any, and interest, if any, on the
Securities of such series are payable.
"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 the extent
lawful) to evidence the same debt as the mutilated, destroyed,
lost or stolen Security, and any Security authenticated and
delivered in exchange pursuant to Sections 304, 406 or 1206 but
not involving any transfer shall be deemed (to the extent lawful)
to evidence the same debt as the Security for which the exchange
was made.
"PREFERRED SECURITIES" means any preferred trust interests
issued by a Trust or similar securities issued by permitted
successors to such Trust in accordance with the Trust Agreement
pertaining to such Trust.
"PROPERTY TRUSTEE" has the meaning specified in Section 610.
"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.
"REQUIRED CURRENCY" has the meaning specified in Section 311.
"RESPONSIBLE OFFICER", when used with respect to the Trustee,
means any officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"SECURITIES" has the meaning stated in the first recital of
this Indenture and more particularly means any securities authen-
ticated and delivered under this Indenture.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the
respective meanings specified in Section 305.
"SENIOR INDEBTEDNESS" means all obligations (other than non-
recourse obligations and the indebtedness issued under this
Indenture) of, or guaranteed or assumed by, the Company for
borrowed money, including both senior and subordinated
indebtedness for borrowed money (other than the Securities), or
for the payment of money relating to any lease which is
capitalized on the consolidated balance sheet of the Company and
its subsidiaries in accordance with generally accepted accounting
principles as in effect from time to time, or evidenced by bonds,
debentures, notes or other similar instruments, and in each case,
amendments, renewals, extensions, modifications and refundings of
any such indebtedness or obligations, whether existing as of the
date of this Indenture or subsequently incurred by the Company
unless, in the case of any particular indebtedness, obligation,
renewal, extension or refunding, the instrument creating or
evidencing the same or the assumption or guarantee of the same
expressly provides that such indebtedness, obligation, renewal,
extension or refunding is not superior in right of payment to or
is pari passu with the Securities; provided that the Company's
obligations under any Guarantee shall not be deemed to be Senior
Indebtedness.
"SPECIAL RECORD DATE" for the payment of any Defaulted
Interest on the Securities of any series means a date fixed by
the Trustee pursuant to Section 307.
"STATED MATURITY", when used with respect to any obligation or
any installment of principal thereof or interest thereon, means
the date on which the principal of such obligation or such
installment of principal or interest is stated to be due and
payable (without regard to any provisions for redemption,
prepayment, acceleration, purchase or extension).
"SUCCESSOR CORPORATION" has the meaning set forth in Section
1101.
"TRUST" means Montana Power Capital I, a statutory business
trust formed under the laws of the State of Delaware, or any
other trust designated pursuant to Section 301 hereof or any
permitted successor under the Trust Agreement pertaining to such
Trust.
"TRUST AGREEMENT" means the Amended and Restated Trust
Agreement, dated as of November 1, 1996, relating to Montana
Power Capital I or a trust agreement relating to a Trust
designated pursuant to Section 301 hereof, in each case, among
the Company, as Depositor and the trustees named therein as they
may be amended from time to time.
"TRUST INDENTURE ACT" means, as of any time, the Trust
Indenture Act of 1939, or any successor statute, as in effect at
such time.
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this Indenture 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.
"UNITED STATES" means the United States of America, its
Territories, its possessions and other areas subject to its
political jurisdiction.
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, if requested by the Trustee, furnish to the
Trustee an Officer's Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the
proposed action (including any covenants compliance with which
constitutes a condition precedent) 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 or opinion with respect to compliance
with a condition or covenant provided for in this Indenture shall
include:
(a) a statement that each Person signing such cer-
tificate 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
Person, such Person has made such examination or investigation
as is necessary to enable such Person 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 Person, 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 such Officer's Certificate or
opinion are 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.
Whenever, subsequent to the receipt by the Trustee of any
Board Resolution, Officer's Certificate, Opinion of Counsel or
other document or instrument, a clerical, typographical or other
inadvertent or unintentional error or omission shall be
discovered therein, a new document or instrument may be
substituted therefor in corrected form with the same force and
effect as if originally filed in the corrected form and,
irrespective of the date or dates of the actual execution and/or
delivery thereof, such substitute document or instrument shall be
deemed to have been executed and/or delivered as of the date or
dates required with respect to the document or instrument for
which it is substituted. Anything in this Indenture to the
contrary notwithstanding, if any such corrective document or
instrument indicates that action has been taken by or at the
request of the Company which could not have been taken had the
original document or instrument not contained such error or
omission, the action so taken shall not be invalidated or
otherwise rendered ineffective but shall be and remain in full
force and effect, except to the extent that such action was a
result of willful misconduct or bad faith. Without limiting the
generality of the foregoing, any Securities issued under the
authority of such defective document or instrument shall
nevertheless be the valid obligations of the Company entitled to
the benefits of this Indenture equally and ratably with all other
Outstanding Securities, except as aforesaid.
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 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, no-
tice, 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 with
respect to any or all of such Securities 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 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 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.
(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, 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 (i) 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, or (ii) determining which
Holders may revoke any such Act (notwithstanding Section
104(e)).
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, the Trustee by any Holder or by the
Company, or 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 delivered personally to an
officer or other responsible employee of the addressee, or
transmitted by facsimile transmission or other direct written
electronic means to such telephone number or other electronic
communications address as the parties hereto shall from time to
time designate, or transmitted by certified or registered mail,
charges prepaid, to the applicable address set opposite such
party's name below or to such other address as either party
hereto may from time to time designate:
If to the Trustee, to:
The Bank of New York
101 Barclay Street, 21 West
New York, New York 10286
Attention: Vice President, Corporate Trust
Administration
Telephone: (212) 815-3806
Telecopy: (212) 815-5915
If to the Company, to:
The Montana Power Company
40 East Broadway
Butte, Montana 59701
Attention: Treasurer
Telephone: (406) 497-2374
Telecopy:(406) 497-3018
Any communication contemplated herein shall be deemed to
have been made, given, furnished and filed if personally
delivered, on the date of delivery, if transmitted by facsimile
transmission or other direct written electronic means, on the
date of transmission, and if transmitted by registered mail, on
the date of receipt.
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, if any, and not earlier than the earliest date, if any,
prescribed for the giving of such notice.
In case by reason of the suspension of regular mail serv-
ice 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 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.
If any provision of this Indenture limits, qualifies or
conflicts with another provision hereof which is required or
deemed to be included in this Indenture by, or is otherwise
governed by, any of the provisions of the Trust Indenture Act,
such other provision shall control; and if any provision hereof
otherwise conflicts with the Trust Indenture Act, the Trust
Indenture Act 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 and Trustee shall bind their respective successors and
assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the
Securities shall for any reason be held to be invalid, illegal or
unenforceable in any respect, 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, the Holders and, so long as the
notice described in Section 1513 hereof has not been given, the
holders of Senior Indebtedness, and the holders of Preferred
Securities in accordance with Section 610 hereof) 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, except to the extent that the law of any other jurisdiction
shall be mandatorily applicable.
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 in the Board Resolution
or Officer's Certificate which establishes the terms of the
Securities of such series, 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, except that if
such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day,
in each case with the same force and effect, and in the same
amount, as if made on the Interest Payment Date or Redemption
Date, or at the Stated Maturity, as the case may be, and, if such
payment is made or duly provided for on such Business Day, 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.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The definitive Securities of each series shall be in
substantially the form or forms thereof established in the
indenture supplemental hereto establishing such series or in a
Board Resolution establishing such series, or in an Officer's
Certificate pursuant to such supplemental indenture or Board
Resolution, 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 may, consistently herewith, be
determined by the officers executing such Securities, as
evidenced by their execution of the Securities. If the form or
forms of Securities of any series are established in a Board
Resolution or in an Officer's Certificate pursuant to a Board
Resolution, such Board Resolution and Officer's Certificate, if
any, shall be delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
Unless otherwise specified as contemplated by Section
301, 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 form set forth below:
This is one of the Securities of the series desig-
nated therein referred to in the within-mentioned
Indenture.
Dated: _________________________________
as Trustee
By: _____________________________
Authorized Signatory
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited;
provided, however, that all Securities shall be issued to a Trust
in exchange for securities of the Company or to evidence loans by
a Trust of the proceeds of the issuance of Preferred Securities
of such Trust plus the amount deposited by the Company with such
Trust from time to time.
The Securities may be issued in one or more series.
Prior to the authentication and delivery of Securities of any
series there shall be established by specification in a
supplemental indenture or in a Board Resolution, or in an
Officer's Certificate pursuant to a supplemental indenture or a
Board Resolution:
(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 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 such
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) if other than as provided in Section 307, the Person
or Persons (without specific identification) to whom interest
on Securities of such series shall be payable on any Interest
Payment Date;
(d) the date or dates on which the principal of the
Securities of such series is payable or any formula or other
method or other means by which such date or dates shall be
determined, by reference to an index or other fact or event
ascertainable outside this Indenture or otherwise (without
regard to any provisions for redemption, prepayment,
acceleration, purchase or extension);
(e) the rate or rates at which the Securities of such
series shall bear interest, if any (including the rate or
rates at which overdue principal shall bear interest, if
different from the rate or rates at which such Securities
shall bear interest prior to Maturity, and, if applicable, the
rate or rates at which overdue premium or interest shall bear
interest, if any), or any formula or other method or other
means by which such rate or rates shall be determined, by
reference to an index or other fact or event ascertainable
outside this Indenture or otherwise; the date or dates from
which such interest shall accrue; the Interest Payment Dates
on which such interest shall be payable and the Regular Record
Date, if any, for the interest payable on such Securities on
any Interest Payment Date; the right of the Company, if any,
to extend the interest payment periods and the duration of any
such extension as contemplated by Section 312; and the basis
of computation of interest, if other than as provided in
Section 310;
(f) the place or places at which or methods by which (1)
the principal of and premium, if any, and interest, if any, on
Securities of such series shall be payable, (2) registration
of transfer of Securities of such series may be effected, (3)
exchanges of Securities of such series may be effected and (4)
notices and demands to or upon the Company in respect of the
Securities of such series and this Indenture may be served;
the initial Security Registrar and Paying Agent or Agents for
such series; and if such is the case, and the Trustee does not
object, that the principal of such Securities shall be payable
without presentment or surrender thereof;
(g) the period or periods within which, or the date or
dates on which, the price or prices at which and the terms and
conditions, if other than as provided in Article Four, upon
which the Securities of such series may be redeemed, in whole
or in part, at the option of the Company and any restrictions
on such redemptions, including but not limited to a
restriction on a partial redemption by the Company of the
Securities of any series that would result in the delisting of
such Securities from any national exchange;
(h) the obligation or obligations, if any, of the
Company to redeem or purchase the Securities of such series
pursuant to any sinking fund or other mandatory redemption
provisions or at the option of a Holder thereof and the period
or periods within which or the date or dates on 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, and applicable
exceptions to the requirements of Section 404 in the case of
mandatory redemption or redemption at the option of the
Holder;
(i) the denominations in which Securities of such series
shall be issuable if other than denominations of $25 and any
integral multiple thereof;
(j) the currency or currencies, including composite
currencies, in which payment of the principal of and premium,
if any, and interest, if any, on the Securities of such series
shall be payable (if other than in Dollars);
(k) if the principal of or premium, if any, or interest,
if any, on the Securities of such series are to be payable, at
the election of the Company or a Holder thereof, in a coin or
currency other than that in which the Securities are stated to
be payable, the period or periods within which and the terms
and conditions upon which, such election may be made;
(l) if the principal of or premium, if any, or interest,
if any, on the Securities of such series are to be payable, or
are to be payable at the election of the Company or a Holder
thereof, in securities or other property, the type and amount
of such securities or other property, or the formula or other
method or other means by which such amount shall be
determined, and the period or periods within which, and the
terms and conditions upon which, any such election may be
made;
(m) if the amount payable in respect of principal of or
premium, if any, or interest, if any, on the Securities of
such series may be determined with reference to an index or
other fact or event ascertainable outside this Indenture or
otherwise, the formula or other method or other means by which
such amounts shall be determined to the extent not established
pursuant to clause (e) of this paragraph;
(n) if other than the principal amount thereof, the
portion of the principal amount of Securities of such series
which shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 802;
(o) any Events of Default, in addition to those
specified in Section 801, with respect to the Securities of
such series, and any covenants of the Company for the benefit
of the Holders of the Securities of such series, in addition
to those set forth in Article Six, and whether such covenants
may be waived pursuant to Section 607;
(p) the terms, if any, pursuant to which the Securities
of such series may be converted into or exchanged for shares
of capital stock or other securities of the Company or any
other Person;
(q) the obligations or instruments, if any, which shall
be considered to be Government Obligations in respect of the
Securities of such series denominated in a currency other than
Dollars or in a composite currency, and any additional or
alternative provisions for the reinstatement of the Company's
indebtedness in respect of such Securities after the
satisfaction and discharge thereof as provided in Section 701;
(r) if the Securities of such series are to be issued in
global form, (i) any limitations on the rights of the Holder
or Holders of such Securities to transfer or exchange the same
or to obtain the registration of transfer thereof, (ii) any
limitations on the rights of the Holder or Holders thereof to
obtain certificates therefor in definitive form in lieu of
global form and (iii) any and all other matters incidental to
such Securities;
(s) if the Securities of such series are to be issuable
as bearer securities, any and all matters incidental thereto
which are not specifically addressed in a supplemental
indenture as contemplated by clause (g) of Section 1201;
(t) to the extent not established pursuant to clause (r)
of this paragraph, any limitations on the rights of the
Holders of the Securities of such Series to transfer or
exchange such Securities or to obtain the registration of
transfer thereof; and if a service charge will be made for the
registration of transfer or exchange of Securities of such
series the amount or terms thereof;
(u) any exceptions to Section 113, or variation in the
definition of Business Day, with respect to the Securities of
such series;
(v) the designation of the Trust to which Securities of
such series are to be issued; and
(w) any other terms of the Securities of such series not
inconsistent with the provisions of this Indenture.
The Securities of each series shall be subordinated in
right of payment to Senior Indebtedness as provided in Article
Fifteen.
SECTION 302. DENOMINATIONS.
Unless otherwise provided as contemplated by Section 301
with respect to any series of Securities, the Securities of each
series shall be issuable in denominations of $25 and any integral
multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
Unless otherwise provided as contemplated by Section 301
with respect to any series of Securities, the Securities shall be
executed on behalf of the Company by an Authorized Officer and
may have the corporate seal of the Company affixed thereto or
reproduced thereon attested by any other Authorized Officer or by
the Secretary or an Assistant Secretary of the Company. 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 of execution Authorized Officers
or the Secretary or an Assistant Secretary of the Company shall
bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication
and delivery of such Securities or did not hold such offices at
the date of such Securities.
The Trustee shall authenticate and deliver Securities of
a series, for original issue, at one time or from time to time in
accordance with the Company Order referred to below, upon receipt
by the Trustee of:
(a) the instrument or instruments establishing the form
or forms and terms of such series, as provided in Sections 201
and 301;
(b) a Company Order requesting the authentication and
delivery of such Securities and, to the extent that the terms
of such Securities shall not have been established in an
indenture supplemental hereto or in a Board Resolution, or in
an Officer's Certificate pursuant to a supplemental indenture
or Board Resolution, all as contemplated by Sections 201 and
301, establishing such terms;
(c) the Securities of such series, executed on behalf of
the Company by an Authorized Officer;
(d) an Opinion of Counsel to the effect that:
(i) the form or forms of such Securities have been
duly authorized by the Company and have been established
in conformity with the provisions of this Indenture;
(ii) 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
(iii) 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, subject, as to
enforcement, to laws relating to or affecting generally
the enforcement of creditors' rights, including, without
limitation, bankruptcy and insolvency laws and to general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or
at law).
If the form or terms of the Securities of any series have
been established by or pursuant to a Board Resolution or an
Officer's Certificate as permitted by Sections 201 or 301, the
Trustee shall not be required to authenticate such Securities if
the issuance of such Securities pursuant to this Indenture will
materially or adversely affect the Trustee's own rights, duties
or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the
Trustee.
Unless otherwise specified as contemplated by Section 301
with respect to any series of Securities, each Security shall be
dated the date of its authentication.
Unless otherwise specified as contemplated by Section 301
with respect to any series of Securities, 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 an Authenticating
Agent by manual signature of an authorized officer or other
authorized signatory thereof, and such certificate upon any
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 to the Company, or any
Person acting on its behalf, but shall never have been 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.
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 deliver, 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; provided, however, that temporary Securities need not
recite specific redemption, sinking fund, conversion or exchange
provisions.
Unless otherwise specified as contemplated by Section 301
with respect to the Securities of any series, after the
preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable,
without charge to the Holder thereof, for definitive Securities
of such series 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 Securities. Upon such
surrender of temporary Securities for such exchange, the Company
shall, except as aforesaid, execute and the Trustee shall
authenticate and deliver in exchange therefor definitive Securi-
ties of the same series, 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 of like tenor authenticated and
delivered hereunder.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND
EXCHANGE.
The Company shall cause to be kept in each office
designated pursuant to Section 602, with respect to the
Securities of each series, a register (all registers kept in
accordance with this Section being collectively referred to as
the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for
the registration of Securities of such series and the
registration of transfer thereof. The Company shall designate
one Person to maintain the Security Register for the Securities
of each series on a consolidated basis, and such Person is
referred to herein, with respect to such series, as the "Security
Registrar." Anything herein to the contrary notwithstanding, the
Company may designate one or more of its offices as an office in
which a register with respect to the Securities of one or more
series shall be maintained, and the Company may designate itself
the Security Registrar with respect to one or more of such
series. The Security Register shall be open for inspection by
the Trustee and the Company at all reasonable times.
Except as otherwise specified as contemplated by Section
301 with respect to the Securities of any series, upon surrender
for registration of transfer of any Security of such series at
the office or agency of the Company maintained pursuant to
Section 602 in a Place of Payment for such series, the Company
shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more
new Securities of the same series, of authorized denominations
and of like tenor and aggregate principal amount.
Except as otherwise specified as contemplated by Section
301 with respect to the Securities of any series, any Security of
such series may be exchanged at the option of the Holder, for one
or more new Securities of the same series, 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 deliver, the Securities which the Holder making
the exchange is entitled to receive.
All Securities delivered upon any registration of
transfer or exchange of Securities shall be 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,
the Trustee or the Security Registrar) be duly endorsed or shall
be accompanied by a written instrument of transfer in form sat-
isfactory to the Company, the Trustee or the Security Registrar,
as the case may be, duly executed by the Holder thereof or his
attorney duly authorized in writing.
Unless otherwise specified as contemplated by Section 301
with respect to Securities of any series, 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 to execute or to
provide for the registration of transfer of or the exchange of
(a) Securities of any series during a period of 15 days
immediately preceding the date of the mailing of any notice of
redemption of the Securities of such series called for redemption
or (b) 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
deliver in exchange therefor a new Security of the same series,
and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Trus-
tee (a) evidence to their satisfaction of the ownership of and
the destruction, loss or theft of any Security and (b) such
security or indemnity as may be reasonably required by them to
save each of them and any agent of either of them harmless, then,
in the absence of notice to the Company or the Trustee that such
Security is held by a Person purporting to be the owner of such
Security, the Company shall execute and the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or
stolen Security, a new Security of the same series, 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 reasonable expenses (including the
fees and expenses of the Trustee) connected therewith.
Every new Security of any series 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 other than the Holder
of such new Security, 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 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.
Unless otherwise specified as contemplated by Section 301
with respect to the Securities of any series, (i) interest on any
Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular
Record Date for such interest; and (ii) subject to Section 312,
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 Secu-
rities of such series (or their respective Predecessor
Securities) are registered at the close of business on a date
(herein called 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 on or 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 pro-
posed 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 Secu-
rities of such series (or their respective Predecessor
Securities) are registered at the close of business on such
Special Record Date.
(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.
Prior to due presentment of a Security for registration
of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name such
Security is registered 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 BY SECURITY REGISTRAR.
All Securities surrendered for payment, redemption,
registration of transfer or exchange shall, if surrendered to any
Person other than the Security Registrar, be delivered to the
Security Registrar and, if not theretofore canceled, shall be
promptly canceled by the Security Registrar. The Company may at
any time deliver to the Security Registrar 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 canceled by the Security Registrar.
No Securities shall be authenticated in lieu of or in exchange
for any Securities canceled as provided in this Section, except
as expressly permitted by this Indenture. All canceled
Securities held by the Security Registrar shall be disposed of in
accordance with a Company Order delivered to the Security
Registrar and the Trustee, and the Security Registrar shall
promptly deliver a certificate of disposition to the Trustee and
the Company unless, by a Company Order, similarly delivered, the
Company shall direct that canceled Securities be returned to it.
The Security Registrar shall promptly deliver evidence of any
cancellation of a Security in accordance with this Section 309 to
the Trustee and the Company.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section
301 for Securities of any series, interest on the Securities of
each series shall be computed on the basis of a 360-day year
consisting of twelve 30-day months and, for any period shorter
than a full month, on the basis of the actual number of days
elapsed in such period.
SECTION 311. PAYMENT TO BE IN PROPER CURRENCY.
In the case of the Securities of any series denominated
in any currency other than Dollars or in a composite currency
(the "Required Currency"), except as otherwise specified with
respect to such Securities as contemplated by Section 301, the
obligation of the Company to make any payment of the principal
thereof, or the premium or interest thereon, shall not be
discharged or satisfied by any tender by the Company, or recovery
by the Trustee, in any currency other than the Required Currency,
except to the extent that such tender or recovery shall result in
the Trustee timely holding the full amount of the Required Cur-
rency then due and payable. If any such tender or recovery is in
a currency other than the Required Currency, the Trustee may take
such actions as it considers appropriate to exchange such
currency for the Required Currency. The costs and risks of any
such exchange, including without limitation the risks of delay
and exchange rate fluctuation, shall be borne by the Company, the
Company shall remain fully liable for any shortfall or
delinquency in the full amount of Required Currency then due and
payable, and in no circumstances shall the Trustee be liable
therefor except in the case of its negligence or willful
misconduct.
SECTION 312. EXTENSION OF INTEREST PAYMENT.
The Company shall have the right at any time, so long as no
Event of Default shall have occurred and be continuing with
respect to the Securities of any series, to extend and re-extend
interest payment periods on all Securities of one or more series,
if so specified as contemplated by Section 301 with respect to
such Securities and upon such terms as may be specified as
contemplated by Section 301 with respect to such Securities.
SECTION 313. ADDITIONAL INTEREST.
So long as any Preferred Securities remain outstanding,
if the Trust which issued such Preferred Securities shall be
required to pay, with respect to its income derived from the
interest payments on the Securities of any series, any amounts
for or on account of any taxes, duties, assessments or
governmental charges of whatever nature imposed by the United
States, or any other taxing authority, then, in any such case,
the Company will pay as interest on such series such additional
interest ("Additional Interest") as may be necessary in order
that the net amounts received and retained by such Trust after
the payment of such taxes, duties, assessments or governmental
charges shall result in such Trust's having such funds as it
would have had in the absence of the payment of such taxes,
duties, assessments or governmental charges.
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 401. APPLICABILITY OF ARTICLE.
Securities of any series 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) 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 Officer's
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 which is subject to a restriction or condition
specified in the terms of such Securities, the Company shall
furnish the Trustee with an Officer's 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 are to be
redeemed, the particular Securities to be redeemed shall be
selected by the Trustee from the Outstanding Securities of such
series not previously called for redemption, by such method as
shall be provided for any particular series, or, in the absence
of any such provision, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized
denomination for Securities of such series or any integral
multiple thereof) of the principal amount of Securities of such
series of a denomination larger than the minimum authorized
denomination for Securities of such series; provided, however,
that if, as indicated in an Officer's Certificate, the Company
shall have offered to purchase all or any principal amount of the
Securities then Outstanding of any series, and less than all of
such Securities as to which such offer was made shall have been
tendered to the Company for such purchase, the Trustee, if so
directed by Company Order, shall select for redemption all or any
principal amount of such Securities which have not been so
tendered.
The Trustee shall promptly notify the Company and the
Security Registrar 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 pro-
vided in Section 106 to the Holders of the Securities to be
redeemed not less than 30 nor more than 60 days prior to the
Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Securities of any series 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,
together with accrued interest, if any, to the Redemption
Date, 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 accrued
interest, if any, unless it shall have been specified as
contemplated by Section 301 with respect to such Securities
that such surrender shall not be required,
(f) that the redemption is for a sinking or other fund,
if such is the case, and
(g) such other matters as the Company shall deem
desirable or appropriate.
Unless otherwise specified with respect to any Securities
in accordance with Section 301, 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 Paying Agent or Agents for such Securities, on or prior to
the date fixed for such redemption, of money sufficient to pay
the principal of and premium, if any, and 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, and the Paying Agent or Agents for the
Securities otherwise to have been redeemed shall promptly return
to the Holders thereof any of such Securities which had been
surrendered for payment upon such redemption.
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 request, by the Trustee in the name
and at the expense of the Company. Notice of mandatory
redemption of Securities shall be given 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 sat-
isfied, 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
no such surrender shall be a condition to such payment if so
specified as contemplated by Section 301 with respect to such
Security; and provided, further, that except as otherwise
specified as contemplated by Section 301 with respect to such
Security, any installment of interest on any Security the Stated
Maturity of which installment is on or prior to the Redemption
Date shall be payable to the Holder of such Security, or one or
more Predecessor Securities, registered as such at the close of
business on the related Regular Record Date according to the
terms of such Security and subject to the provisions of Section
307.
SECTION 406. SECURITIES REDEEMED IN PART.
Upon the surrender of any Security which is to be
redeemed only in part 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), the Company shall
execute, and the Trustee shall authenticate and deliver to the
Holder of such Security, without service charge, a new Security
or Securities of the same series, of any authorized denomination
requested by such Holder and of like tenor and in aggregate
principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered.
ARTICLE FIVE
SINKING FUNDS
SECTION 501. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of the Securities of any series,
except as otherwise specified as contemplated by Section 301 for
Securities of such series.
The minimum amount of any sinking fund payment provided
for by the terms of Securities of any series is herein referred
to as a "mandatory sinking fund payment", and any payment in
excess of such minimum amount provided for by the terms of
Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of
Securities of any series, the cash amount of any mandatory
sinking fund payment may be subject to reduction as provided in
Section 502. Each sinking fund payment shall be applied to the
redemption of Securities of the series 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.
The Company (a) may deliver to the Trustee Outstanding
Securities (other than any previously called for redemption) of a
series in respect of which a mandatory sinking fund payment is to
be made and (b) may apply as a credit Securities of such series
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 with
respect to the Securities of such series; 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 45 days prior to each sinking fund payment
date for the Securities of any series, the Company shall deliver
to the Trustee an Officer's Certificate specifying:
(a) the amount of the next succeeding mandatory sinking
fund payment for such series;
(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 mandatory sinking fund
payment which is to be satisfied by delivering and crediting
Securities of such series pursuant to Section 502 and stating
the basis for such credit and that such Securities have not
previously been so credited, and the Company shall also
deliver to the Trustee any Securities to be so delivered. If
the Company shall not deliver such Officer's Certificate, the
next succeeding mandatory sinking fund payment for such series
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 and at the
expense 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 pay the principal of and premium, if
any, and interest, if any (including Additional Interest), on the
Securities of each series in accordance with the terms of such
Securities and this Indenture.
SECTION 602. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in each Place of Payment for
the Securities of each series an office or agency where payment
of such Securities shall be made, where the registration of
transfer or exchange of such Securities may be effected and where
notices to and demands 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 each 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 shall fail to furnish the Trustee
with the address thereof, payment of such Securities shall be
made, registration of transfer or exchange thereof may be
effected and notices and demands in respect thereof may be served
at the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent for all such purposes in
any such event.
The Company may also from time to time designate one or
more other offices or agencies with respect to the Securities of
one or more series, for any or all of the foregoing purposes, and
may from time to time rescind such designations; provided,
however, that, unless otherwise specified as contemplated by
Section 301 with respect to the Securities of such series, 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, it shall, on
or before each due date of the principal of and premium, if any,
and interest, if any, 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 and premium or interest so
becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided. The Company shall
promptly notify the Trustee of any failure by the Company (or any
other obligor on such Securities) to make any payment of
principal of or premium, if any, or interest, if any, on such
Securities.
Whenever the Company shall have one or more Paying Agents
for the Securities of any series, it shall, on or before each due
date of the principal of and premium, if any, and interest, if
any, on such Securities, deposit with such Paying Agents sums
sufficient (without duplication) to pay the principal and premium
or interest so becoming due, such sums to be held in trust for
the benefit of the Persons entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) the
Company shall promptly notify the Trustee of any failure by it so
to act.
The Company shall cause each Paying Agent for the
Securities of any series, other than the Company or 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, if any, or interest, if any, on such
Securities 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 failure by the
Company (or any other obligor upon such Securities) to make
any payment of principal of or premium, if any, or interest,
if any, on such Securities; and
(c) at any time during the continuance of any such
failure, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such Paying
Agent and furnish to the Trustee such information as it
possesses regarding the names and addresses of the Persons
entitled to such sums.
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, if so stated
in a Company Order delivered to the Trustee, in accordance with
the provisions of Article Seven; 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 and premium, if any, or interest, if any, on any
Security and remaining unclaimed for two years after such
principal and premium, if any, or interest has become due and
payable shall be paid to the Company on Company Request, or, if
then held by the Company, shall be discharged from such trust;
and, upon such payment or discharge, the Holder of such Security
shall, as an unsecured general creditor and not as a Holder of an
Outstanding Security, look only to the Company for payment of the
amount so due and payable and remaining unpaid, 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.
SECTION 605. MAINTENANCE OF PROPERTIES.
The Company shall cause (or, with respect to property
owned in common with others, make reasonable effort to cause) all
its properties used or useful in the conduct of its business to
be maintained and kept in good condition, repair and working
order and shall cause (or, with respect to property owned in
common with others, make reasonable effort to cause) to be made
all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as, in the judgment of the Company, may
be necessary so that the business carried on in connection
therewith may be properly conducted; provided, however, that
nothing in this Section shall prevent the Company from
discontinuing, or causing the discontinuance of, the operation
and maintenance of any of its properties if such discontinuance
is, in the judgment of the Company, desirable in the conduct of
its business.
SECTION 606. ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE.
Not later than September 15 in each year, commencing
September 15, 1997, the Company shall deliver to the Trustee an
Officer's Certificate which need not comply with Section 102,
executed by the principal executive officer, the principal
financial officer or the principal accounting officer of the
Company, as to such officer's knowledge of the Company's
compliance with all conditions and covenants under this
Indenture, such compliance to be determined without regard to any
period of grace or requirement of notice under this Indenture.
SECTION 607. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply
with any term, provision or condition set forth in (a) any
covenant or restriction specified with respect to the Securities
of any series, as contemplated by Section 301 as being subject to
waiver pursuant to this Section 607, if before the time for such
compliance the Holders of at least a majority in aggregate
principal amount of the Outstanding Securities of all series with
respect to which compliance with such covenant or restriction is
to be omitted, considered as one class, shall, by Act of such
Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition
and (b) Section 604, 605 or Article Eleven if before the time for
such compliance the Holders of at least a majority in principal
amount of Securities Outstanding under this Indenture shall, by
Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision
or condition; but, in the case of (a) or (b), no such waiver
shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver
shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect; provided,
however, so long as a Trust holds Securities of any series, such
Trust may not waive compliance or waive any default in compliance
by the Company with any covenant or other term contained in this
Indenture or the Securities of such series without the approval
of the holders of at least a majority in aggregate liquidation
preference of the outstanding Preferred Securities issued by such
Trust affected, obtained as provided in the Trust Agreement
pertaining to such Trust.
SECTION 608. RESTRICTION ON PAYMENT OF DIVIDENDS.
The Company shall not, and shall not permit any
subsidiary to, (a) declare or pay any dividends or distributions
on, or redeem, purchase, acquire or make a liquidation payment
with respect to, any of the Company's capital stock (other than
dividends or distributions in common stock of the Company), or
(b) make any payment of principal of or, interest or premium, if
any, on or repay or repurchase or redeem any debt securities
(including other Securities) that rank pari passu with or junior
in interest to the Securities or make any guarantee payments with
respect to such indebtedness if at such time (i) there shall have
occurred and be continuing a payment default pursuant to Section
801(a) or 801(b) (whether before or after expiration of any
period of grace), or (ii) the Company shall have elected to
extend any interest payment period as provided in Section 312,
and any such period, or any extension thereof, shall be
continuing.
SECTION 609. MAINTENANCE OF TRUST EXISTENCE.
So long as Preferred Securities of any series remain
outstanding, the Company shall (i) maintain direct or indirect
ownership of all interests in the Trust which issued such
Preferred Securities, other than such Preferred Securities, (ii)
not voluntarily (to the extent permitted by law) dissolve,
terminate, liquidate or wind up such Trust, except in connection
with a distribution of the Securities to the holders of the
Preferred Securities in liquidation of such Trust or in
connection with certain mergers, consolidations or amalgamations
permitted by the Trust Agreement, (iii) remain the sole Depositor
under the Trust Agreement (the "Depositor") of such Trust and
timely perform in all material respects all of its duties as
Depositor of such Trust, and (iv) use reasonable efforts to cause
such Trust to remain a business trust and otherwise continue to
be treated as a grantor trust for Federal income tax purposes
provided that any permitted successor to the Company under this
Indenture may succeed to the Company's duties as Depositor of
such Trust; and provided further that the Company may permit such
Trust to consolidate or merge with or into another business trust
or other permitted successor under the Trust Agreement pertaining
to such Trust so long as the Company agrees to comply with this
Section 609 with respect to such successor business trust or
other permitted successor.
SECTION 610. RIGHTS OF HOLDERS OF PREFERRED SECURITIES.
The Company agrees that, for so long as any Preferred
Securities remain outstanding, its obligations under this
Indenture will also be for the benefit of the holders from time
to time of Preferred Securities, and the Company acknowledges and
agrees that if the property trustee under the related Trust
Agreement (the "Property Trustee") fails to enforce its rights
with respect to the Securities or the related Trust Agreement, a
holder of Preferred Securities may institute a legal proceeding
directly against the Company to enforce the Property Trustee's
rights with respect to the Securities or such Trust Agreement, to
the fullest extent permitted by law, without first instituting
any legal proceeding against the Property Trustee or any other
person or entity.
ARTICLE SEVEN
SATISFACTION AND DISCHARGE
SECTION 701. SATISFACTION AND DISCHARGE OF SECURITIES.
Any Security or 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 or any Paying Agent (other than the
Company), 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 or such Paying Agent,
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, due and to become due on such Securities or
portions thereof on or prior to Maturity; provided, however, that
in the case of the provision for payment or redemption of less
than all the Securities of any series, such Securities or
portions thereof shall have been selected by the Trustee as
provided herein and, 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, under arrangements
satisfactory to the Trustee; and provided, further, that the
Company shall have delivered to the Trustee and such Paying
Agent:
(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 in
accordance with this Section shall be held in trust, as
provided in Section 703; and
(y) if such deposit shall have been made prior to
the Maturity of such Securities, an Opinion of Counsel to
the effect that the Holders of such Securities will not
recognize income, gain or loss for Federal income tax
purposes as a result of the satisfaction and discharge of
the Company's indebtedness in respect of such Securities,
and such Holders will be subject to Federal income
taxation on the same amounts and in the same manner and
at the same times as if such satisfaction and discharge
had not occurred.
Upon the deposit 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, upon receipt of a Company Request, 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 has been satisfied and
discharged as contemplated in this Section. In the event that
all of the conditions set forth in the preceding paragraph shall
have been satisfied in respect of any Securities or portions
thereof except that, for any reason, the Opinion of Counsel
specified in clause (y) shall not have been delivered, such
Securities or portions thereof shall nevertheless be deemed to
have been paid for all purposes of this Indenture, and the
Holders of such Securities or portions thereof shall nevertheless
be no longer entitled to the benefits of this Indenture or of any
of the covenants of the Company under Article Six (except the
covenants contained in Sections 602, 603, 604 and 609) or any
other covenants made in respect of such Securities or portions
thereof as contemplated by Section 301, but the indebtedness of
the Company in respect of such Securities or portions thereof
shall not be deemed to have been satisfied and discharged prior
to Maturity for any other purpose, and the Holders of such
Securities or portions thereof shall continue to be entitled to
look to the Company for payment of the indebtedness represented
thereby; and, upon Company Request, the Trustee shall acknowledge
in writing that such Securities or portions thereof are deemed to
have been paid for all purposes of this Indenture.
If payment at Stated Maturity of less than all of the
Securities of any series 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 amount
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 for purposes of this Indenture, and, if such is
the case, in respect of which the Company's indebtedness shall
have been satisfied and discharged, all as provided in this
Section, do not mature and are not to be redeemed within the 60
day period commencing with the date of the deposit 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 that any Securities shall be deemed to
have been paid for purposes of this Indenture, as aforesaid, the
obligations of the Company and the Trustee in respect of such
Securities under Sections 304, 305, 306, 404, 503 (as to notice
of redemption), 602, 603, 604, 609, 907 and 915 and this Article
Seven shall survive.
The Company shall pay, and shall indemnify the Trustee or
any Paying Agent with which Government Obligations shall have
been deposited as provided in this Section against, any tax, fee
or other charge imposed on or assessed against such Government
Obligations or the principal or interest received in respect of
such Government Obligations, including, but not limited to, any
such tax payable by any entity deemed, for tax purposes, to have
been created as a result of such deposit.
Anything herein to the contrary notwithstanding, (a) if,
at any time after a Security would be deemed to have been paid
for purposes of this Indenture, and, if such is the case, the
Company's indebtedness in respect thereof would be deemed to have
been satisfied or discharged, pursuant to this Section (without
regard to the provisions of this paragraph), the Trustee or any
Paying Agent, as the case may be, shall be required to return the
money or Government Obligations, or combination thereof,
deposited with it as aforesaid to the Company or its
representative under any applicable Federal or State bankruptcy,
insolvency or other similar law, such Security shall thereupon be
deemed retroactively not to have been paid and any satisfaction
and discharge of the Company's indebtedness in respect thereof
shall retroactively be deemed not to have been effected, and such
Security shall be deemed to remain Outstanding and (b) any
satisfaction and discharge of the Company's indebtedness in
respect of any Security shall be subject to the provisions of the
last paragraph of Section 603.
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, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this
Indenture, when
(a) no Securities remain Outstanding hereunder; and
(b) the Company has paid or caused to be paid all other
sums payable hereunder by the Company;
provided, however, that if, in accordance with the last paragraph
of Section 701, any Security, previously deemed to have been paid
for purposes of this Indenture, shall be deemed retroactively not
to have been so paid, this Indenture shall thereupon be deemed
retroactively not to have been satisfied and discharged, as
aforesaid, and to remain in full force and effect, and the
Company shall execute and deliver such instruments as the Trustee
shall reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge of this
Indenture as aforesaid, the obligations of the Company and the
Trustee under Sections 304, 305, 306, 404, 503 (as to notice of
redemption), 602, 603, 604, 609, 907 and 915 and this Article
Seven shall survive.
Upon satisfaction and discharge of this Indenture as pro-
vided 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 for the benefit of the Holders of the Securities
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 deposit-
ed 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, if
not then needed for such purpose, shall, to the extent prac-
ticable, 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, together with any other moneys and the principal of
and interest on any other Governmental Obligations then held by
the Trustee, to pay when due the principal of and premium, if
any, and interest, if any, due and to become due 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, 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 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, then due
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; and provided, further, that if
an Event of Default shall have occurred and be continuing, moneys
to be paid over to the Company pursuant to this Section shall be
held until such Event of Default shall have been waived or cured.
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 or more of the following
events which has occurred and is continuing:
(a) failure to pay interest, if any, including any
Additional Interest, on any Security of such series within 30
days after the same becomes due and payable (whether or not
payment is prohibited by the provisions of Article Fifteen
hereof); provided, however, that a valid extension of the
interest payment period by the Company as contemplated in
Section 312 of this Indenture shall not constitute a failure
to pay interest for this purpose; or
(b) failure to pay the principal of or premium, if any,
on any Security of such series at its Maturity; or
(c) failure to perform or breach of any covenant or
warranty of the Company in this Indenture (other than a
covenant or warranty a default in the performance of which or
breach 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 60 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 or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder, unless the Trustee, or the Trustee and the Holders
of a principal amount of Securities of such series not less
than the principal amount of Securities the Holders of which
gave such notice, as the case may be, shall agree in writing
to an extension of such period prior to its expiration;
provided, however, that the Trustee, or the Trustee and the
Holders of such principal amount of Securities of such series,
as the case may be, shall be deemed to have agreed to an
extension of such period if corrective action shall have been
initiated by the Company within such period and is being
diligently pursued; or
(d) the entry by a court having jurisdiction in the
premises of (1) a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any appli-
cable Federal or State bankruptcy, insolvency, reorganization
or other similar law or (2) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly
filed a petition by one or more Persons other than the Company
seeking reorganization, arrangement, adjustment or composition
of or in respect of the Company under any applicable Federal
or State law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official for
the Company or for any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and any
such decree or order for relief or any such other decree or
order shall have remained unstayed and in effect for a period
of 90 consecutive days; or
(e) the commencement by the Company of a voluntary case
or proceeding under any applicable Federal or State bank-
ruptcy, insolvency, reorganization or other similar law or of
any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a decree or
order for relief in respect of the Company in a case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Company or of
any substantial part of its property, or the making by it of
an assignment for the benefit of creditors, or the admission
by it in writing of its inability to pay its debts generally
as they become due, or the authorization of such action by the
Board of Directors; or
(f) any other Event of Default specified with respect to
Securities of such series as contemplated by Section 301.
SECTION 802. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default due to the default in payment of
principal of, or interest on, any series of Securities or due to
the default in the performance or breach of any other covenant or
warranty of the Company applicable to the Securities of such
series but not applicable to all Outstanding Securities shall
have occurred and be continuing, (i) the Trustee, (ii) the
Holders of not less than 33% in principal amount of the
Securities of such series, and (iii) if the Trustee or Holders of
not less than 33% in principal amount of the Securities of such
series shall fail to make such declaration and the Preferred
Securities issued by the Trust to which such series of Securities
relate are still outstanding, the holders of not less than 33% in
aggregate liquidation preference of such series of Preferred
Securities may declare the principal of all Securities of such
series and interest accrued thereon to be due and payable
immediately. If an Event of Default due to default in the
performance of any other of the covenants or agreements herein
applicable to all Outstanding Securities (including an Event of
Default specified in Section 801(d) or (e)) shall have occurred
and be continuing, either the Trustee or the Holders of not less
than 33% in principal amount of all Securities then Outstanding
(considered as one class), and not the Holders of the Securities
of any one of such series, may declare the principal of all
Securities and interest accrued thereon to be due and payable
immediately. Upon any such declaration, the principal (and
premium, if any) of all Securities and interest accrued thereon
(including Additional Interest, if any) shall immediately become
due and payable.
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 Securities of such
series;
(2) the principal of and premium, if any, on any
Securities of such series which have become due otherwise
than by such declaration of acceleration and interest
thereon at the rate or rates prescribed therefor in such
Securities;
(3) to the extent that payment of such interest is
lawful, interest upon overdue interest, if any, at the
rate or rates prescribed therefor in such Securities;
(4) all amounts then due to the Trustee under
Section 907;
and
(b) any other Event or Events of Default with respect to
Securities of such series, other than the nonpayment 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 of the series with respect to which
such Event of Default shall have occurred, the whole amount then
due and payable on such Securities for principal and premium, if
any, and interest, if any, and, to the extent permitted by law,
interest on premium, if any, and on any overdue principal and in-
terest, at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as
shall be sufficient to cover any amounts due to the Trustee under
Section 907.
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 Securities of any
series 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 Securities of such series 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 907) 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 907.
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.
Subject to the provisions of Article Fifteen, any money
collected by the Trustee with respect to a particular series of
Securities 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 907;
SECOND: To the payment of the amounts then due and un-
paid 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 payment of the remainder, if any, to the
Company or to whomsoever may be lawfully entitled to receive
the same or as a court of competent jurisdiction may direct.
SECTION 807. LIMITATION ON SUITS.
No Holder shall have any right to institute any proceed-
ing, 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 at least 33% 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
the Outstanding Securities of all series 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 (subject to Section 307 and 312)
interest, if any, on such Security on the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemp-
tion, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder. Any holder of
related Preferred Securities shall have the right to institute
suit for the enforcement of any such payment to such holder with
respect to Securities relating to such Preferred Securities
having a principal amount equal to the aggregate liquidation
preference amount of the related Preferred Securities held by
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 a series of Securities, 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, with respect to the Securities of such series; provided,
however, that if an Event of Default shall have occurred and be
continuing with respect to more than one 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 such direction shall not be in conflict
with any rule of law or with this Indenture. The Trustee may
take any other action, deemed proper by the Trustee, which is not
inconsistent with any such direction. Before proceeding to
exercise any right or power hereunder at the direction of such
Holders, the Trustee shall be entitled to receive from such
Holders reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in
compliance with any 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 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 any Security of such series, or
(b) in respect of a covenant or provision hereof which
under Section 1202 cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such
series affected;
provided, however, that so long as a Trust holds the Securities
of any series, such Trust may not waive any past default without
the consent of at least a majority in aggregate liquidation
preference of the outstanding Preferred Securities issued by such
Trust affected, obtained as provided in the Trust Agreement
pertaining to such Trust.
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 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 reason-
able attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the 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 redemption, on or after the Redemption Date).
SECTION 815. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully
do so) that it will not at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
ARTICLE NINE
THE TRUSTEE
SECTION 901. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The Trustee shall have and be subject to all the
duties and responsibilities specified with respect to an
indenture trustee in the Trust Indenture Act, and no implied
covenants or obligations shall be read into this Indenture
against the Trustee.
(b) 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.
(c) Notwithstanding anything contained in this Indenture
to the contrary, the duties and responsibilities of the
Trustee under this Indenture shall be subject to the
protections, exculpations and limitations on liability
afforded to the Trustee under the provisions of the Trust
Indenture Act, including those deemed by the Trust Indenture
Act to be included herein.
(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 902. NOTICE OF DEFAULTS.
The Trustee shall give notice of any default hereunder
with respect to the Securities of any series to the Holders of
Securities of such series in the manner and to the extent
required to do so by the Trust Indenture Act, unless such default
shall have been cured or waived; provided, however, that in the
case of any default of the character specified in Section 801(c),
no such notice to Holders shall be given until at least 45 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.
SECTION 903. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 901 and to the
applicable provisions of the Trust Indenture Act:
(a) the Trustee may conclusively rely and shall be
protected in acting or refraining from acting in good faith
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 reasonably 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 resolution 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, conclusively rely upon an Officer's 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 (subject to
applicable legal requirements) be entitled to examine, during
normal business hours, 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;
and
(h) the Trustee shall not be charged with knowledge of
any default or Event of Default, as the case may be, with
respect to the Securities of any series for which it is acting
as Trustee unless either (1) a Responsible Officer of the
Trustee shall have actual knowledge of the default or Event of
Default, as the case may be, or (2) written notice of such
default or Event of Default, as the case may be, shall have
been given to the Trustee by the Company, any other obligor on
such Securities or by any Holder of such Securities.
SECTION 904. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.
The recitals contained herein and in the Securities (ex-
cept the Trustee's certificates of authentication) shall be taken
as the statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes responsibility for their correct-
ness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the
use or application by the Company of Securities or the proceeds
thereof.
SECTION 905. MAY HOLD SECURITIES.
Each of the Trustee, any Authenticating Agent, any Paying
Agent, any Security Registrar or any other agent of the Company,
in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 908 and 913, may
otherwise deal with the Company with the same rights it would
have if it were not the Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
SECTION 906. 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 expressly provided
herein or otherwise agreed with, and for the sole benefit of, the
Company.
SECTION 907. COMPENSATION AND REIMBURSEMENT.
The Company shall
(a) pay to the Trustee from time to time reasonable
compensation 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 reasonably 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
to the extent that any such expense, disbursement or advance
may be attributable to the Trustee's negligence, wilful
misconduct or bad faith; and
(c) indemnify the Trustee for, and hold it harmless from
and against, any loss, liability or expense reasonably
incurred by it arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder
or the performance of its duties hereunder, including the
reasonable 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, except
to the extent any such loss, liability or expense may be
attributable to its negligence, wilful misconduct or bad
faith.
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 other than property and funds held in
trust under Section 703 (except as otherwise provided in Section
703). "Trustee" for purposes of this Section shall include any
predecessor Trustee; provided, however, that the negligence,
wilful misconduct or bad faith of any Trustee hereunder shall not
affect the rights of any other Trustee hereunder.
In addition to the rights provided to the Trustee
pursuant to the provisions of the immediately preceding paragraph
of this Section 907, 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.
SECTION 908. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee shall have or acquire any conflicting
interest within the meaning of the Trust Indenture Act, it shall
either eliminate such conflicting interest or resign to the
extent, in the manner and with the effect, and subject to the
conditions, provided in the Trust Indenture Act and this
Indenture. For purposes of Section 310(b)(1) of the Trust
Indenture Act and to the extent permitted thereby, the Trustee,
in its capacity as trustee in respect of the Securities of any
series, shall not be deemed to have a conflicting interest
arising from its capacity as trustee in respect of the Securities
of any other series. The Trust Agreement and the Guarantee
Agreement pertaining to each Trust shall be deemed to be
specifically described in this Indenture for the purposes of
clause (i) of the first proviso contained in Section 310(b) of
the Trust Indenture Act.
SECTION 909. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which
shall be
(a) a corporation organized and doing business under the
laws of the United States, any State or Territory thereof or
the District of Columbia, authorized under such laws to
exercise corporate trust powers, having a combined capital and
surplus of at least $50,000,000 and subject to supervision or
examination by Federal or State authority, or
(b) if and to the extent permitted by the Commission by
rule, regulation or order upon application, a corporation or
other Person organized and doing business under the laws of a
foreign government, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus
of at least $50,000,000 or the Dollar equivalent of the
applicable foreign currency and subject to supervision or
examination by authority of such foreign government or a
political subdivision thereof substantially equivalent to
supervision or examination applicable to United States
institutional trustees,
and, in either case, qualified and eligible under this Article
and the Trust Indenture Act. 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. 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 910. 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 the applicable
requirements of Section 911.
(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 911 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;
provided that so long as any Preferred Securities remain
outstanding, the Trust which issued such Preferred Securities
shall not execute any Act to remove the Trustee without the
consent of the holders of a majority in aggregate liquidation
preference of Preferred Securities issued by such Trust
outstanding, obtained as provided in the Trust Agreement
pertaining to such Trust.
(d) If at any time:
(1) the Trustee shall fail to comply with Section
908 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 909 and shall fail to resign after written re-
quest 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) subject to Section 814, 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 (other than as contemplated in clause
(y) in subsection (d) of this Section), 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 911. 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 succes-
sor 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 911, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf
of itself 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) So long as no event which is, or after notice or
lapse of time, or both, would become, an Event of Default
shall have occurred and be continuing, and except with respect
to a Trustee appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities pursuant to
subsection (e) of this Section, if the Company shall have
delivered to the Trustee (i) a Board Resolution appointing a
successor Trustee, effective as of a date specified therein,
and (ii) an instrument of acceptance of such appointment,
effective as of such date, by such successor Trustee in
accordance with Section 911, the Trustee shall be deemed to
have resigned as contemplated in subsection (b) of this
Section, the successor Trustee shall be deemed to have been
appointed by the Company pursuant to subsection (e) of this
Section and such appointment shall be deemed to have been
accepted as contemplated in Section 911, all as of such date,
and all other provisions of this Section and Section 911 shall
be applicable to such resignation, appointment and acceptance
except to the extent inconsistent with this subsection (f).
(g) The Company (or, should the Company fail so to act
promptly, the successor trustee at the expense of 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 911. 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, upon payment of all sums owed to it, 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 succes-
sor 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.
(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 912. 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 913. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If the Trustee shall be or become a creditor of the
Company or any other obligor upon the Securities (other than by
reason of a relationship described in Section 311(b) of the Trust
Indenture Act), the Trustee shall be subject to any and all
applicable provisions of the Trust Indenture Act regarding the
collection of claims against the Company or such other obligor.
For purposes of Section 311(b) of the Trust Indenture Act:
(a) 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;
(b) 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
obligation.
SECTION 914. CO-TRUSTEES AND SEPARATE TRUSTEES.
At any time or times, for the purpose of meeting the
legal requirements of any applicable jurisdiction, the Company
and the Trustee shall have power to appoint, and, upon the
written request of the Trustee or of the Holders of at least 33%
in principal amount of the Securities then Outstanding, the
Company shall for such purpose join with the Trustee in the
execution and delivery of all instruments and agreements
necessary or proper to appoint, one or more Persons approved by
the Trustee either to act as co-trustee, jointly with the
Trustee, or to act as separate trustee, in either case with such
powers as may be provided in the instrument of appointment, and
to vest in such Person or Persons, in the capacity aforesaid, any
property, title, right or power deemed necessary or desirable,
subject to the other provisions of this Section. If the Company
does not join in such appointment within 15 days after the
receipt by it of a request so to do, or if an Event of Default
shall have occurred and be continuing, the Trustee alone shall
have power to make such appointment.
Should any written instrument or instruments from the
Company be required by any co-trustee or separate trustee so
appointed to more fully confirm to such co-trustee or separate
trustee such property, title, right or power, any and all such
instruments shall, on request, be executed, acknowledged and
delivered by the Company.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject
to the following conditions:
(a) the Securities shall be authenticated and delivered,
and all rights, powers, duties and obligations hereunder in
respect of the custody of securities, cash and other personal
property held by, or required to be deposited or pledged with,
the Trustee hereunder shall be exercised solely, by the
Trustee;
(b) the rights, powers, duties and obligations hereby
conferred or imposed upon the Trustee in respect of any
property covered by such appointment shall be conferred or
imposed upon and exercised or performed either by the Trustee
or by the Trustee and such co-trustee or separate trustee
jointly, as shall be provided in the instrument appointing
such co-trustee or separate trustee, except to the extent that
under any law of any jurisdiction in which any particular act
is to be performed, the Trustee shall be incompetent or
unqualified to perform such act, in which event such rights,
powers, duties and obligations shall be exercised and
performed by such co-trustee or separate trustee;
(c) the Trustee at any time, by an instrument in writing
executed by it, with the concurrence of the Company, may
accept the resignation of or remove any co-trustee or separate
trustee appointed under this Section, and, if an Event of
Default shall have occurred and be continuing, the Trustee
shall have power to accept the resignation of, or remove, any
such co-trustee or separate trustee without the concurrence of
the Company. Upon the written request of the Trustee, the
Company shall join with the Trustee in the execution and
delivery of all instruments and agreements necessary or proper
to effectuate such resignation or removal. A successor to any
co-trustee or separate trustee so resigned or removed may be
appointed in the manner provided in this Section;
(d) no co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the
Trustee, or any other such trustee hereunder; and
(e) any Act of Holders delivered to the Trustee shall be
deemed to have been delivered to each such co-trustee and
separate trustee.
SECTION 915. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents
with respect to the Securities of one or more series, which shall
be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon original issuance and upon
exchange, registration of transfer or partial redemption thereof
or pursuant to Section 304, 306 or 1206, 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, 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 $50,000,000 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. 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 Trustee agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its services under
this Section, and the Trustee shall be entitled to be reimbursed
for such payments, in accordance with, and subject to the
provisions of, Section 907.
The provisions of Sections 308, 904 and 905 shall be ap-
plicable to each Authenticating Agent.
If an appointment with respect to the Securities of one
or more series shall be made pursuant to this Section, the
Securities of such series may have endorsed thereon, in lieu of
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.
Dated: ________________________
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 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. LISTS OF HOLDERS.
Semiannually, not later than June 1 and December 1 in
each year, commencing June 1, 1997, and at such other times as
the Trustee may request in writing, the Company shall furnish or
cause to be furnished to the Trustee information as to the names
and addresses of the Holders, and the Trustee shall preserve such
information and similar information received by it in any other
capacity and afford to the Holders access to information so
preserved by it, all to such extent, if any, and in such manner
as shall be required by the Trust Indenture Act; provided,
however, that no such list need be furnished so long as the
Trustee shall be the Security Registrar.
SECTION 1002. REPORTS BY TRUSTEE AND COMPANY.
Not later than July 30 in each year, commencing July 30,
1997, the Trustee shall transmit to the Holders and the
Commission a report, dated as of the next preceding May 31, with
respect to any events and other matters described in Section
313(a) of the Trust Indenture Act, in such manner and to the
extent required by the Trust Indenture Act. The Trustee shall
transmit to the Holders and the Commission, and the Company shall
file with the Trustee (within 30 days after filing with the
Commission in the case of reports which pursuant to the Trust
Indenture Act must be filed with the Commission and furnished to
the Trustee) and transmit to the Holders, such other information,
reports and other documents, if any, at such times and in such
manner, as shall be required by the Trust Indenture Act.
ARTICLE ELEVEN
CONSOLIDATION, MERGER, CONVEYANCE OR OTHER TRANSFER
SECTION 1101. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS.
The Company shall not consolidate with or merge into any
other corporation, or convey or otherwise 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 (for a term extending
beyond the last Stated Maturity of the Securities then
Outstanding), the properties and assets of the Company
substantially as an entirety shall be a Person organized and
validly existing under the laws of the United States, any
State thereof, or any other jurisdiction, provided that in the
latter case such Person shall be subject to the laws of the
United States and the States thereof in substantially the same
manner as a Person organized and validly existing under any of
such laws (such corporation being hereinafter sometimes called
the "Successor Corporation"), and shall assume, either by the
operation of applicable law or by an indenture supplemental
hereto, executed and delivered to the Trustee, in form sat-
isfactory 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 per-
formed or observed;
(b) immediately after giving effect to such transaction
no Event of Default with respect to Securities of any series,
and no event which, after notice or lapse of time or both,
would become an Event of Default with respect to Securities of
any series, shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, conveyance, or other transfer
or lease and such supplemental indenture comply 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 or other
transfer of the properties and assets of the Company
substantially as an entirety in accordance with Section 1101, the
Successor Corporation 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 Corporation
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. All Securities so executed by the Successor
Corporation, and authenticated and delivered by the Trustee,
shall in all respects be entitled to the benefits provided by
this Indenture equally and ratably with all Securities executed,
authenticated and delivered prior to the time such consideration,
merger, conveyance or other transfer became effective.
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 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 one or more covenants of the Company or other
provisions for the benefit of all Holders or for the benefit
of the Holders of, or to remain in effect only so long as
there shall be Outstanding, Securities of one or more
specified series, 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 Outstanding hereunder; or
(d) to change or eliminate any provision of this Inden-
ture or to add any new provision to this Indenture; provided,
however, that if such change, elimination or addition shall
adversely affect the interests of any Holder of Securities of
any series Outstanding on the date of such indenture
supplemental hereto in any material respect, such change,
elimination or addition shall become effective with respect to
such series only pursuant to the provisions of Section 1202
hereof or when no Security of such series remains Outstanding;
or
(e) to provide collateral security for all of the
Securities; or
(f) to establish the form or terms of Securities of any
series as contemplated by Sections 201 and 301; or
(g) to provide for the authentication and delivery of
bearer securities and coupons appertaining thereto
representing interest, if any, thereon and for the procedures
for the registration, exchange and replacement thereof and for
the giving of notice to, and the solicitation of the vote or
consent of, the holders thereof, and for any and all other
matters incidental thereto; or
(h) to evidence and provide for the acceptance of
appointment hereunder by a separate or successor Trustee or
co-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 911(b); or
(i) to provide for the procedures required to permit the
Company to utilize, at its option, a noncertificated system of
registration for all, or any series of, the Securities; or
(j) 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 shall be payable, (2) all or any
series of Securities may be surrendered for registration of
transfer, (3) all or any series of Securities may be
surrendered for exchange and (4) notices and demands to or
upon the Company in respect of all or any series of Securities
and this Indenture may be served; or
(k) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with
any other provision herein, provided that any such cure,
correction or supplement shall not adversely affect the
interests of any Holder of Securities of any Series
Outstanding 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, the Company and the
Trustee may, without the consent of any Holders, enter
into an indenture supplemental hereto to evidence such
amendment hereof.
SECTION 1202. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a major-
ity 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 or modifying in any manner the rights of the Holders of
Securities of such series under the 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 no such supplemental indenture shall:
(a) change the Stated Maturity of the principal of, or
any installment of principal of or interest on (except as
provided in Section 312 hereof), any Security, or reduce the
principal amount thereof or the rate of interest thereon (or
the amount of any installment of interest thereon) or change
the method of calculating such rate or reduce any premium
payable upon the redemption thereof, or change the coin or
currency (or other property), in which any Security or any
premium or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such
payment on or after the Stated Maturity of any payment on any
Security (or, in the case of redemption, on or after the
Redemption Date), without, in any such case, the consent of
the Holder of such Security, or
(b) reduce the percentage in principal amount of the
Outstanding Securities of any series (or, if applicable, in
liquidation preference of any series of Preferred Securities),
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 conse-
quences, or reduce the requirements of Section 1304 for quorum
or voting, without, in any such case, the consent of the
Holder of each Outstanding Security of such series, or
(c) modify any of the provisions of this Section,
Section 607 or Section 813 with respect to the Securities of
any series, 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 911(b), 914 and 1201(h).
Notwithstanding the foregoing, so long as any of the Preferred
Securities remain outstanding, the Trustee may not consent to a
supplemental indenture under this Section 1202 without the prior
consent, obtained as provided in the Trust Agreement pertaining
to the Trust which issued such Preferred Securities, of the
holders of not less than a majority in aggregate liquidation
preference of all Preferred Securities issued by such Trust then
Outstanding which would be affected thereby or, in the case of
changes described in clauses (a), (b) and (c) above, 100% in
aggregate liquidation preference of all such Preferred
Securities. A supplemental indenture which changes or eliminates
any covenant or other provision of this Indenture which has
expressly been included solely for the benefit of one or more
particular series of Securities, or which modifies the rights of
the Holders of Securities of such series 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.
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. A waiver by a Holder of
such Holder's right to consent under this Section shall be deemed
to be a consent of such Holder.
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
901) 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, and 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 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 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.
SECTION 1207. MODIFICATION WITHOUT SUPPLEMENTAL INDENTURE.
If the terms of any particular series of Securities shall
have been established in a Board Resolution or an Officer's
Certificate 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
supplemental Board Resolution or Officer's Certificate, as the
case may be, delivered to, and accepted by, the Trustee;
provided, however, that such supplemental Board Resolution or
Officer's 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 supplemental
Board Resolution or Officer's Certificate shall be deemed to be a
"supplemental indenture" for purposes of this Article Twelve.
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, or
all, series 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.
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, or all, series 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 180 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, or all,
series by the Company or by the Holders of 33% in aggregate
principal amount of all of such series, 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, then the Company or the
Holders of Securities of such series 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 as provided in subsection
(a) of this Section.
(c) Any meeting of Holders of Securities of one or more,
or all, series shall be valid without notice if the Holders of
all Outstanding Securities of such series 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 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, or all, series a Person shall be (a) a
Holder of one or more Outstanding Securities of such series, 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 by such Holder or Holders. The only Persons who shall be
entitled to attend any meeting of Holders of Securities of any
series 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 any series 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; 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,
considered as one class, the Persons entitled to vote such
specified percentage in principal amount of the Outstanding Secu-
rities of such series, 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, 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 as provided in Section 1302(a) not less than 10
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
which shall constitute a quorum.
Except as limited by Section 1202, any resolution pre-
sented 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 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, 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,
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
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 (except as
provided in Section 104(g)).
(b) Notwithstanding any other provisions of this Inden-
ture, 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 appropriate. Except as otherwise
permitted or required by any such regulations, the holding of
Securities and the appointment of any proxy shall be proved in
the manner specified in Section 104. 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 of the series 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 represented at the meet-
ing, considered as one class.
(d) At any meeting each Holder or proxy shall be
entitled to one vote for each $1 principal amount of
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 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 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 hereinbefore
contemplated 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.
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.
ARTICLE FIFTEEN
SUBORDINATION OF SECURITIES
SECTION 1501. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS.
The Company, for itself, its successors and assigns,
covenants and agrees, and each Holder of the Securities of each
series, by its acceptance thereof, likewise covenants and agrees,
that the payment of the principal of and premium, if any, and
interest, if any, on each and all of the Securities is hereby
expressly subordinated to the extent and in the manner set forth
in this Article, in right of payment to the prior payment in full
of all Senior Indebtedness.
Each Holder of the Securities of each series, by its
acceptance thereof, authorizes and directs the Trustee on its
behalf to take such action as may be necessary or appropriate to
effectuate the subordination as provided in this Article, and
appoints the Trustee its attorney-in-fact for any and all such
purposes.
SECTION 1502. PAYMENT OVER OF PROCEEDS OF SECURITIES.
In the event (a) of any insolvency or bankruptcy
proceedings or any receivership, liquidation, reorganization or
other similar proceedings in respect of the Company or a
substantial part of its property, or of any proceedings for
liquidation, dissolution or other winding up of the Company,
whether or not involving insolvency or bankruptcy, or (b) subject
to the provisions of Section 1503, that (i) a default shall have
occurred with respect to the payment of principal of or interest
on or other monetary amounts due and payable on any Senior
Indebtedness, or (ii) there shall have occurred a default (other
than a default in the payment of principal or interest or other
monetary amounts due and payable) in respect of any Senior
Indebtedness, as defined therein or in the instrument under which
the same is outstanding, permitting the holder or holders thereof
to accelerate the maturity thereof (with notice or lapse of time,
or both), and such default shall have continued beyond the period
of grace, if any, in respect thereof, and, in the cases of
subclauses (i) and (ii) of this clause (b), such default shall
not have been cured or waived or shall not have ceased to exist,
or (c) that the principal of and accrued interest on the
Securities of any series shall have been declared due and payable
pursuant to Section 802 and such declaration shall not have been
rescinded and annulled as provided in Section 802, then:
(1) the holders of all Senior Indebtedness
shall first be entitled to receive payment of the
full amount due thereon, or provision shall be made
for such payment in money or money's worth, before
the Holders of any of the Securities are entitled to
receive a payment on account of the principal of or
interest on the indebtedness evidenced by the
Securities, including, without limitation, any
payments made pursuant to Articles Four and Five;
(2) any payment by, or distribution of assets
of, the Company of any kind or character, whether in
cash, property or securities, to which any Holder or
the Trustee would be entitled except for the
provisions of this Article, shall be paid or
delivered by the person making such payment or
distribution, whether a trustee in bankruptcy, a
receiver or liquidating trustee or otherwise,
directly to the holders of such Senior Indebtedness
or their representative or representatives or to the
trustee or trustees under any indenture under which
any instruments evidencing any of such Senior
Indebtedness may have been issued, ratably according
to the aggregate amounts remaining unpaid on account
of such Senior Indebtedness held or represented by
each, to the extent necessary to make payment in
full of all Senior Indebtedness remaining unpaid
after giving effect to any concurrent payment or
distribution (or provision therefor) to the holders
of such Senior Indebtedness, before any payment or
distribution is made to the Holders of the
indebtedness evidenced by the Securities or to the
Trustee under this Indenture; and
(3) in the event that, notwithstanding the
foregoing, any payment by, or distribution of assets
of, the Company of any kind or character, whether in
cash, property or securities, in respect of
principal of or interest on the Securities or in
connection with any repurchase by the Company of the
Securities, shall be received by the Trustee or any
Holder before all Senior Indebtedness is paid in
full, or provision is made for such payment in money
or money's worth, such payment or distribution in
respect of principal of or interest on the
Securities or in connection with any repurchase by
the Company of the Securities shall be paid over to
the holders of such Senior Indebtedness or their
representative or representatives or to the trustee
or trustees under any indenture under which any
instruments evidencing any such Senior Indebtedness
may have been issued, ratably as aforesaid, for
application to the payment of all Senior
Indebtedness remaining unpaid until all such Senior
Indebtedness shall have been paid in full, after
giving effect to any concurrent payment or
distribution (or provision therefor) to the holders
of such Senior Indebtedness.
Notwithstanding the foregoing, at any time after the
123rd day following the date of deposit of cash or Government
Obligations pursuant to Section 701 (provided all conditions set
out in such Section shall have been satisfied), the funds so
deposited and any interest thereon will not be subject to any
rights of holders of Senior Indebtedness including, without
limitation, those arising under this Article Fifteen; provided
that no event described in clauses (d) and (e) of Section 801
with respect to the Company has occurred during such 123-day
period.
For purposes of this Article only, the words "cash,
property or securities" shall not be deemed to include shares of
stock of the Company as reorganized or readjusted, or securities
of the Company or any other corporation provided for by a plan of
reorganization or readjustment that are subordinate in right of
payment to all Senior Indebtedness that may at the time be
outstanding to the same extent as, or to a greater extent than,
the Securities are so subordinated as provided in this Article.
The consolidation of the Company with, or the merger of the
Company into, another corporation or the liquidation or
dissolution of the Company following the conveyance or transfer
of its property as an entirety, or substantially as an entirety,
to another corporation upon the terms and conditions provided for
in Article Eleven hereof shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of
this Section 1502 if such other corporation shall, as a part of
such consolidation, merger, conveyance or transfer, comply with
the conditions stated in Article Eleven hereof. Nothing in
Section 1501 or in this Section 1502 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 907.
SECTION 1503. DISPUTES WITH HOLDERS OF CERTAIN SENIOR
INDEBTEDNESS.
Any failure by the Company to make any payment on or
perform any other obligation in respect of Senior Indebtedness,
other than any indebtedness incurred by the Company or assumed or
guaranteed, directly or indirectly, by the Company for money
borrowed (or any deferral, renewal, extension or refunding
thereof) or any other obligation as to which the provisions of
this Section shall have been waived by the Company in the
instrument or instruments by which the Company incurred, assumed,
guaranteed or otherwise created such indebtedness or obligation,
shall not be deemed a default under clause (b) of Section 1502 if
(i) the Company shall be disputing its obligation to make such
payment or perform such obligation and (ii) either (A) no final
judgment relating to such dispute shall have been issued against
the Company which is in full force and effect and is not subject
to further review, including a judgment that has become final by
reason of the expiration of the time within which a party may
seek further appeal or review, or (B) in the event that a
judgment that is subject to further review or appeal has been
issued, the Company shall in good faith be prosecuting an appeal
or other proceeding for review and a stay of execution shall have
been obtained pending such appeal or review.
SECTION 1504. SUBROGATION.
Senior Indebtedness shall not be deemed to have been paid
in full unless the holders thereof shall have received cash (or
securities or other property satisfactory to such holders) in
full payment of such Senior Indebtedness then outstanding.
Subject to the prior payment in full of all Senior Indebtedness,
the rights of the Holders of the Securities shall be subrogated
to the rights of the holders of Senior Indebtedness to receive
any further payments or distributions of cash, property or
securities of the Company applicable to the holders of the Senior
Indebtedness until all amounts owing on the Securities shall be
paid in full; and such payments or distributions of cash,
property or securities received by the Holders of the Securities,
by reason of such subrogation, which otherwise would be paid or
distributed to the holders of such Senior Indebtedness shall, as
between the Company, its creditors (other than the holders of
Senior Indebtedness, and the Holders) be deemed to be a payment
by the Company to or on account of Senior Indebtedness, it being
understood that the provisions of this Article are and are
intended solely for the purpose of defining the relative rights
of the Holders, on the one hand, and the holders of the Senior
Indebtedness, on the other hand.
SECTION 1505. OBLIGATION OF THE COMPANY UNCONDITIONAL.
Nothing contained in this Article or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as
among the Company, its creditors other than the holders of Senior
Indebtedness and the Holders, the obligation of the Company,
which is absolute and unconditional, to pay to the Holders the
principal of and interest on the Securities as and when the same
shall become due and payable in accordance with their terms, or
is intended to or shall affect the relative rights of the Holders
and creditors of the Company (other than the holders of Senior
Indebtedness), nor shall anything herein or therein prevent the
Trustee or any Holder from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture,
subject to the rights, if any, under this Article of the holders
of Senior Indebtedness in respect of cash, property or securities
of the Company received upon the exercise of any such remedy.
Upon any payment or distribution of assets or securities
of the Company referred to in this Article, the Trustee and the
Holders shall be entitled to rely upon any order or decree of a
court of competent jurisdiction in which such dissolution,
winding up, liquidation or reorganization proceedings are pending
for the purpose of ascertaining the persons entitled to
participate in such distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to
this Article.
SECTION 1506. PRIORITY OF SENIOR INDEBTEDNESS UPON MATURITY.
Upon the maturity of the principal of any Senior
Indebtedness by lapse of time, acceleration or otherwise, all
matured principal of Senior Indebtedness and interest and
premium, if any, thereon shall first be paid in full before any
payment of principal or premium, if any, or interest, if any, is
made upon the Securities or before any Securities can be acquired
by the Company or any sinking fund payment is made with respect
to the Securities (except that required sinking fund payments may
be reduced by Securities acquired before such maturity of such
Senior Indebtedness).
SECTION 1507. TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS.
The Trustee shall be entitled to all rights set forth in
this Article with respect to any Senior Indebtedness at any time
held by it to the same extent as any other holder of Senior
Indebtedness. Nothing in this Article shall deprive the Trustee
of any of its rights as such holder.
SECTION 1508. NOTICE TO TRUSTEE TO EFFECTUATE SUBORDINATION.
Notwithstanding the provisions of this Article or any
other provision of the Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would
prohibit the making of any payment of moneys to or by the Trustee
unless and until the Trustee shall have received written notice
thereof from the Company, from a Holder or from a holder of any
Senior Indebtedness or from any representative or representatives
of such holder, and, prior to the receipt of any such written
notice, the Trustee shall be entitled, subject to Section 901, in
all respects to assume that no such facts exist; provided,
however, that (i) if prior to the fifth Business Day preceding
the date upon which by the terms hereof any such moneys may
become payable for any purpose, or (ii) in the event of the
execution of an instrument pursuant to Section 702 acknowledging
satisfaction and discharge of this Indenture, if prior to the
second Business Day preceding the date of such execution, the
Trustee shall not have received with respect to such moneys the
notice provided for in this Section, then, anything herein
contained to the contrary notwithstanding, the Trustee may, in
its discretion, receive such moneys and/or apply the same to the
purpose for which they were received, and shall not be affected
by any notice to the contrary that may be received by it on or
after such date; provided, however, that no such application
shall affect the obligations under this Article of the persons
receiving such moneys from the Trustee.
SECTION 1509. MODIFICATION, EXTENSION, ETC. OF SENIOR
INDEBTEDNESS.
The holders of Senior Indebtedness may, without affecting
in any manner the subordination of the payment of the principal
of and premium, if any, and interest, if any, on the Securities,
at any time or from time to time and in their absolute
discretion, agree with the Company to change the manner, place or
terms of payment, change or extend the time of payment of, or
renew or alter, any Senior Indebtedness, or amend or supplement
any instrument pursuant to which any Senior Indebtedness is
issued, or exercise or refrain from exercising any other of their
rights under the Senior Indebtedness including, without
limitation, the waiver of default thereunder, all without notice
to or assent from the Holders or the Trustee.
SECTION 1510. TRUSTEE HAS NO FIDUCIARY DUTY TO HOLDERS OF
SENIOR INDEBTEDNESS.
With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its
covenants and objectives as are specifically set forth in this
Indenture, and no implied covenants or obligations with respect
to the holders of Senior Indebtedness shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed
to owe any fiduciary duty to the holders of Senior Indebtedness
and shall not be liable to any such holders if it shall
mistakenly pay over or deliver, to the Holders or the Company or
any other Person, money or assets to which any holders of Senior
Indebtedness shall be entitled by virtue of this Article or
otherwise.
SECTION 1511. PAYING AGENTS OTHER THAN THE TRUSTEE.
In case at any time any Paying Agent other than the
Trustee shall have been appointed by the Company and be then
acting hereunder, the term "Trustee" as used in this Article
shall in such case (unless the context shall otherwise require)
be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if
such Paying Agent were named in this Article in addition to or in
place of the Trustee; provided, however, that Sections 1507, 1508
and 1510 shall not apply to the Company if it acts as Paying
Agent.
SECTION 1512. RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS NOT
IMPAIRED.
No right of any present or future holder of Senior
Indebtedness to enforce the subordination herein shall at any
time or in any way be prejudiced or impaired by any act or
failure to act on the part of the Company or by any noncompliance
by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder
may have or be otherwise charged with.
SECTION 1513. EFFECT OF SUBORDINATION PROVISIONS; TERMINATION.
Notwithstanding anything contained herein to the
contrary, other than as provided in the immediately succeeding
sentence, all the provisions of this Indenture shall be subject
to the provisions of this Article, so far as the same may be
applicable thereto. Notwithstanding anything contained herein to
the contrary, the provisions of this Article Fifteen shall be of
no further effect, and the Securities shall no longer be
subordinated in right of payment to the prior payment of Senior
Indebtedness, if the Company shall have delivered to the Trustee
a notice to such effect. Any such notice delivered by the
Company shall not be deemed to be a supplemental indenture for
purposes of Article Twelve.
_________________________
This instrument may be executed in any number of counter-
parts, 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.
<PAGE>
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.
THE MONTANA POWER COMPANY
By: /s/ J.P. Pederson
------------------------------------
J.P. Pederson
Vice President and Chief Financial
and Information Officer
ATTEST:
/s/ P.K. Merrell
-------------------------------
P.K. Merrell
Vice President, Human Resources
and Corporate Secretary
THE BANK OF NEW YORK, Trustee
By: /s/ Robert E. Patterson III
------------------------------------
ROBERT E. PATTERSON III
Assistant Vice President
ATTEST:
/s/ Illegible
------------------------------
<PAGE>
STATE OF MONTANA )
) ss.:
COUNTY OF SILVER BOW )
On the 6th day of November, 1996, before me personally
came J.P. Pederson, to me known, who, being by me duly sworn,
did depose and say that he is Vice President and Chief Financial
and Information Officer of The Montana Power Company, one of the
corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it
was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
/s/ Susan Hawke
--------------------------------
Notary Public
[Notarial Seal]
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 5th day of November, 1996, before me personally
came Robert E. Patterson III, to me known, who, being by me duly
sworn, did depose and say that he is an Assistant Vice President
of The Bank of New York, one of the corporations described in and
which executed the foregoing instrument; that he knows the seal of
said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board
of Directors of said corporation, and that he signed his name
thereto by like authority.
/s/ William J. Cassels
---------------------------------
Notary Public
[Notarial Seal]
Exhibit 4(e)
THE MONTANA POWER COMPANY
OFFICER'S CERTIFICATE
J.P Pederson, the Vice President and Chief Financial Officer of
The Montana Power Company (the "Company"), pursuant to the authority
granted in the Board Resolutions of the Company dated August 27, and
November 1, 1996, and Sections 102, 201 and 301 of the Indenture
defined herein, does hereby certify to The Bank of New York (the
"Trustee"), as Trustee under the Indenture of the Company (For Unsecured
Subordinated Debt Securities relating to Trust Securities) dated
as of November 1, 1996 (the "Indenture") that:
1. The securities of the first series to be issued under the
Indenture shall be designated "Junior Subordinated Deferrable
Interest Debentures, 8.45% Series due 2036" (the "Debentures of
the First Series"). The Debentures of the First Series are to be
issued in the name of The Bank of New York, as property trustee
(the "Property Trustee"), pursuant to the Amended and Restated
Trust Agreement dated as of November 1, 1996 (the "Trust
Agreement") relating to Montana Power Capital I, a Delaware
statutory business trust (the "Trust"), on behalf of the Trust;
2. The aggregate principal amount of the Debentures of the First
Series shall be limited to $67,010,325 at any time Outstanding,
except as contemplated in Section 301(b) of the Indenture;
3. The Stated Maturity of the principal of the Debentures of the
First Series shall be December 31, 2036;
4. The Debentures of the First Series shall bear interest until the
principal thereof shall be paid or made available for payment at
the rate of 8.45% per annum payable quarterly in arrears on March
31, June 30, September 30 and December 31 of each year (each, an
"Interest Payment Date"), commencing December 31, 1996. Interest
on the Debentures of the First Series will accrue from, and
including, the date of original issuance and will accrue to, and
including, the first Interest Payment Date, and, for each
subsequent Interest Payment Date, will accrue from, and
excluding, the last Interest Payment Date through which interest
has been paid or duly provided for to, and including, such
Interest Payment Date;
5. The Regular Record Date for the payment of each installment of
interest on the Debentures of the First Series shall be the
Business Day next preceding the corresponding Interest Payment
Date; provided, however, that if the Debentures of the First
Series are held neither by the Trust nor by a securities
depositary, the Company shall have the right to change the
Regular Record Date by an Officer's Certificate;
6. In accordance with Section 312 of the Indenture, the Company, by
written notice given as provided below, may extend and re-extend
the duration of any interest payment period to a maximum duration
of the lesser of 20 consecutive quarters or the period ending on
the Maturity of the Debentures of the First Series (an "Extension
Period"), during which period interest will be compounded
quarterly. Prior to the termination of the Extension Period, the
Company may, and at the end of the Extension Period the Company
shall, pay all interest accrued and unpaid (together with
interest thereon at the annual rate of 8.45% to the extent
permitted by applicable law). Upon such payment in full, such
extension period shall terminate. However, during any such
Extension Period, the Company may not (i) declare or pay any
dividends or distributions, on, or redeem, purchase, acquire or
make a liquidation payment with respect to, any of its capital
stock (other than dividends or distributions in common stock of
the Company), or (ii) make any payment of principal, interest or
premium, if any, on or repay, repurchase or redeem, or make any
sinking fund payment with respect to, any indebtedness that is
pari passu with or junior in interest to the Debentures of the
First Series, or make any guarantee payments with respect to such
indebtedness. At least one Business Day prior to the earlier of
(i) any date on which distributions on the 8.45% Cumulative
Quarterly Income Preferred Securities, Series A of the Trust
("Preferred Securities") shall be payable or (ii) any date on
which an Administrative Trustee (as defined in the Trust
Agreement) shall be required to give notice to the New York
Stock Exchange or other applicable self-regulatory organization
or to holders of the Preferred Securities of the record date or
the date such distribution shall be payable, but in any event
not less than one Business Day prior to such date, the Company
shall give the Property Trustee, the Administrative Trustees
and the Trustee written notice of each election by the Company
to extend or re-extend the duration of any interest payment
period and the duration of such extension or re-extension;
7. (i) The principal and each installment of interest on the
Debentures of the First Series shall be payable, (ii)
registration of transfers and exchanges in respect of the
Debentures of the First Series may be effected, and (iii) notices
and demands to or upon the Company in respect of the Debentures
of the First Series and the Indenture may be served, at the
office or agency of the Company in The City of New York; provided
that payment of interest may be made at the option of the Company
by check mailed to the address of the persons entitled thereto
or, with respect to a registered holder of $1,000,000 or more
aggregate principal amount of the Debentures of the First Series
who had delivered a written request to the Trustee at least 14
days prior to the relevant Interest Payment Date electing to have
payments by wire transfer to a designated account in the United
States, by wire transfer of immediately available funds to such
designated account. The Trustee initially will be the agency of
the Company for such service of notices and demands. The Company
initially will be the Security Registrar and the Paying Agent for
the Debentures of the First Series;
8. The Debentures of the First Series will be redeemable on or after
November 6, 2001 at the option of the Company, at any time and
from time to time, in whole or in part, at a redemption price
equal to 100% of the principal amount of the Debentures of the
First Series being redeemed, together with any accrued and
unpaid interest, including Additional Interest, if any, to the
redemption date; provided, however, that the Company may not
redeem less than all the Debentures of the First Series
Outstanding unless all accrued and unpaid interest, including
Additional Interest, if any, has been paid in full (or duly
provided for) on all Debentures of the First Series for all
quarterly interest periods terminating on or prior to the date
of redemption;
9. The Debentures of the First Series also will be redeemable at the
option of the Company upon the occurrence and during the
continuation of a Tax Event or an Investment Company Event, in
whole, but not in part, on any date within 90 days of the
occurrence of such Tax Event or an Investment Company Event, at a
redemption price equal to 100% of the principal amount of the
Debentures of the First Series then Outstanding, together with
any accrued and unpaid interest, including Additional Interest,
if any, to the redemption date. "Tax Event" means the receipt by
the Trust or the Company of an opinion of counsel experienced in
such matters to the effect that, as a result of any amendment to,
or change (including any announced prospective change) in, the
laws (or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein
affecting taxation, or as a result of any official administrative
or judicial pronouncement or decision interpreting or applying
such laws or regulations, which amendment or change shall become
effective or which pronouncement or decision shall be announced
on or after the date of original issuance of the Preferred
Securities, there is more than an insubstantial risk that (i) the
Trust is, or within 90 days of the date thereof, will be, subject
to Federal income tax with respect to income received or accrued
on the Debentures of the First Series, (ii) interest payable by
the Company on the Debentures of the First Series is not, or
within 90 days of the date thereof, will not be, fully deductible
by the Company for Federal income tax purposes, or (iii) the
Trust is, or within 90 days of the date thereof, will be, subject
to more than a de minimis amount of other taxes, duties or other
governmental charges. "Investment Company Event" means the
receipt by the Trust of an opinion of counsel, rendered by a law
firm having a recognized national tax and securities practice, to
the effect that as a result of the occurrence of a change in law
or regulation or a change in interpretation or application of law
or regulation by any legislative body, court, governmental agency
or regulatory authority, the Trust is or will be considered an
"investment company" that is required to be registered under the
Investment Company Act of 1940, as amended, which change in law,
regulation, interpretation or application shall become effective
on or after the date of original issuance of the Preferred
Securities.
10. In the event that, at any time subsequent to their initial
authentication and delivery, the Debentures of the First Series
are to be held by a securities depositary, the Company, at such
time, may establish the matters contemplated in clause (r) in the
second paragraph of Section 301 of the Indenture in an Officer's
Certificate supplemental to this Certificate;
11. No service charge shall be made for the registration of transfer
or exchange of the Debentures of the First Series; provided,
however, that the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed
in connection with their exchange or transfer;
12. The Debentures of the First Series shall have such other terms
and provisions as are provided in the form set forth in Exhibit A
hereto, and shall be issued in substantially such form;
13. The undersigned has read all of the covenants and conditions
contained in the Indenture relating to the issuance of the
Debentures of the First Series and the definitions in the
Indenture relating thereto and in respect of which this
certificate is made;
14. The statements contained in this certificate are based upon the
familiarity of the undersigned with the Indenture, the documents
accompanying this certificate, and upon discussions by the
undersigned with officers and employees of the Company familiar
with the matters set forth herein;
15. In the opinion of the undersigned, he has made such examination
or investigation as is necessary to enable the undersigned to
express an informed opinion whether or not such covenants and
conditions have been complied with; and
16. In the opinion of the undersigned, such conditions and covenants
and conditions precedent, if any (including any covenants
compliance with which constitutes a condition precedent) to the
authentication and delivery of the Debentures of the First Series
requested in the accompanying Company Order have been complied
with.
All capitalized terms used in this Certificate which are not
defined herein but are defined in the Indenture shall have the meanings set
forth in the Indenture.
IN WITNESS WHEREOF, I have executed this Officer's Certificate this
6th day of November, 1996.
/s/ J.P. Pederson
--------------------------------------
Name: J.P. Pederson
Title: Vice President and Chief
Financial and Information
Officer
<PAGE>
NO. R-1
EXHIBIT A
[FORM OF FACE OF DEFERRABLE INTEREST JUNIOR SUBORDINATED DEBENTURE]
THE MONTANA POWER COMPANY
JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES,
8.45% SERIES DUE 2036
THE MONTANA POWER COMPANY, a corporation duly organized and existing
under the laws of the State of Montana (herein referred to as the
"Company"), for value received, hereby promises to pay to The Bank of
New York, as Property Trustee of Montana Power Capital I, or registered
assigns, the principal sum of Sixty-Seven Million Ten Thousand Three
Hundred Twenty-Five Dollars on December 31, 2036, and, except as
hereinafter provided, to pay interest on said principal sum from, and
including, November 6, 1996 or from, and excluding, the most recent
Interest Payment Date through which interest has been paid or duly
provided for, quarterly on March 31, June 30, September 30 and December
31 of each year, commencing December 31, 1996, at the rate of 8.45% per
annum, plus Additional Interest, if any, until the principal hereof shall
be paid or made available for payment. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will,
as provided in such Indenture, be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which,
unless changed as provided in the Indenture, shall be the Business Day
next preceding such Interest Payment Date.
Payment of the principal of, and premium, if any, and interest
on, this Security will be made at the office or agency of the Company
maintained for that purpose in The City of New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that, at
the option of the Company, interest on this Security may be paid by check
mailed to the address of the person entitled thereto, as such address shall
appear on the Security Register or, with respect to a registered holder of
$1,000,000 or more aggregate principal amount of the Securities of this
series who had delivered a written request to the Trustee at least 14 days
prior to the relevant Interest Payment Date electing to have payments by
wire transfer to a designated account in the United States, by wire
transfer of immediately available funds to such designated account.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed.
THE MONTANA POWER COMPANY
By:_______________________________________
ATTEST:
____________________________
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities of a series designated pursuant to
the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By:_______________________________________
Authorized Signatory
<PAGE>
[FORM OF REVERSE OF
JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE]
This Security is one of a duly authorized issue of securities of
the Company (herein called the "Securities"), issued and to be issued in
one or more series under an Indenture, dated as of November 1, 1996
(herein, together with any amendments thereto, called the "Indenture"),
between the Company and The Bank of New York, as Trustee (herein called the
"Trustee"), and reference is hereby made to the Indenture, including any
supplemental indenture, Board Resolutions and Officer's Certificate filed
with the Trustee creating the Securities for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the
Company, the Trustee and the Holders of the Securities and of the terms
upon which the Securities have been, and are to be, authenticated and
delivered. These Securities are limited in aggregate principal amount to
$67,010,325.
The Securities of this series are subject to redemption upon not
less than 30 nor more than 60 days' notice by mail, at any time on or after
November 6, 2001 as a whole or in part, at the election of the Company, at
a Redemption Price equal to 100% of the principal amount, together with
accrued and unpaid interest, including Additional Interest, to the
Redemption Date.
The Securities of this series also will be redeemable at the
option of the Company if a Tax Event or an Investment Company Event, each
as defined in the Indenture, shall occur and be continuing, in whole, but
not in part, on any date within 90 days of the occurrence of such Tax Event
or Investment Company Event, at a redemption price equal to 100% of the
principal amount of the Securities of this series then Outstanding plus any
accrued and unpaid interest, including Additional Interest, if any, to the
Redemption Date, upon not less than 30 nor more than 60 days' notice given
as provided in the Indenture.
In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
The indebtedness evidenced by this Security is, to the extent
provided in the Indenture, subordinated and subject in right of payment to
the prior payment in full of all Senior Indebtedness, and this Security is
issued subject to the provisions of the Indenture with respect thereto.
Each Holder of this Security, by accepting the same, (a) agrees to and
shall be bound by such provisions, (b) authorizes and directs the Trustee
on his behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination so provided, and (c) appoints
the Trustee his attorney-in-fact for any and all such purposes. Each
Holder hereof, by his acceptance hereof, hereby waives all notice of the
acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such Holder upon said
provisions.
If an Event of Default with respect to Securities of this series
shall occur and be continuing, the principal of the Securities of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture.
So long as no Event of Default under the Indenture with respect
to the Securities shall have occurred and be continuing, the Company, by
written notice given as provided below, may extend and re-extend the
duration of any interest payment period to a maximum duration of the lesser
of 20 consecutive quarters or the period ending on the Maturity of the
Debentures (an "Extended Interest Payment Period") during which period
interest will be compounded quarterly. Prior to the termination of the
Extension Period, the Company may, and at the end of the Extension Period
the Company shall, pay all interest accrued and unpaid (together with
interest thereon at the annual rate of 8.45% to the extent permitted by
applicable law). Upon such payment in full, such extension period shall
terminate. However, during such Extended Interest Payment Period the
Company shall not declare or pay any dividends or distributions on, or
redeem, purchase, acquire or make a liquidation payment with respect to,
any of its capital stock (other than dividends or distributions in common
stock of the Company), or make any payment of principal, interest or
premium, if any, on or repay, repurchase or redeem, or make any sinking
fund payment with respect to, any indebtedness that is pari passu with or
junior in interest to the Securities of this series, or make any guarantee
payments with respect to such indebtedness. At least one Business Day
prior to the earlier of (i) the date distributions on the Preferred
Securities are payable and (ii) the date an administrative trustee named in
the Trust Agreement shall be required to give notice to the New York Stock
Exchange or other applicable self-regulatory organization or to holders of
the Preferred Securities of the record date or the date such distributions
are payable, but in any event not less than one Business Day prior to such
record date, the Company shall give the Property Trustee, the
administrative trustees named in the Trust and the Trustee written notice
of each election by the Company to extend or re-extend the duration of
any interest payment period and the duration of such extension or re-
extension.
The Securities of this series are issuable only in registered
form without coupons in denominations of $25 and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor
and of authorized denominations, as requested by the Holder surrendering
the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Security is registered as
the absolute owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be
affected by notice to the contrary.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
Exhibit 4(f)
=========================================================================
AMENDED AND RESTATED
TRUST AGREEMENT
among
THE MONTANA POWER COMPANY, as Depositor
and
THE BANK OF NEW YORK,
as Property Trustee,
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
and
Ellen M. Senechal
Jerrold P. Pederson
and
Pamela K. Merrell, as Administrative Trustees
Dated as of November 1, 1996
MONTANA POWER CAPITAL I
=========================================================================
<PAGE>
MONTANA POWER CAPITAL I
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
--------------- ---------------
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . . . 8.07
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 8.07
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . 8.09
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 8.08
Section 311(a) . . . . . . . . . . . . . . . . . . . . . . 8.13
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 8.13
Section 312(a) . . . . . . . . . . . . . . . . . . . . . . 5.07
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 5.07
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 5.07
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . 8.14
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . 8.14
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 8.14
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 8.14
(d) . . . . . . . . . . . . . . . . . . . . . . . . . 8.14
Section 314(a) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . 8.01
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 8.02, 8.14
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 8.01(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . 8.01, 8.03
(e) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 316(a) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 5.09
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . 1.06
--------------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Trust Agreement.
<PAGE>
TABLE OF CONTENTS
ARTICLE I.
Definitions and Other Provisions of General Application
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . . 2
Section 1.02. Compliance Certificates and Opinions . . . . . . . 10
Section 1.03. Form of Documents Delivered to Trustee . . . . . . 10
Section 1.04. Acts of Securityholders . . . . . . . . . . . . . . 11
Section 1.05. Notices, etc. to the Trustees and the Depositor. . 13
Section 1.06. Notice to Securityholders; Waiver . . . . . . . . . 14
Section 1.07. Conflict with Trust Indenture Act . . . . . . . . . 15
Section 1.08. Effect of Headings and Table of Contents . . . . . 15
Section 1.09. Successors . . . . . . . . . . . . . . . . . . . . 15
Section 1.10. Separability . . . . . . . . . . . . . . . . . . . 15
Section 1.11. Governing Law . . . . . . . . . . . . . . . . . . . 15
ARTICLE II.
Establishment of the Trust; Issuance of Trust Securities; Rights of
Securityholders
Section 2.01. Name . . . . . . . . . . . . . . . . . . . . . . . 16
Section 2.02. Office of the Delaware Trustee; Principal Place of
Business . . . . . . . . . . . . . . . . . . . . . 16
Section 2.03. Initial Contribution of Trust Property; Initial
Ownership; Organizational Expenses. . . . . . . . . 16
Section 2.04. Declaration of Trust; Appointment of Additional
Administrative Trustees . . . . . . . . . . . . . . 16
Section 2.05. Authorization to Enter into Certain Transactions . 17
Section 2.06. Assets of Trust . . . . . . . . . . . . . . . . . . 20
Section 2.07. Title to Trust Property . . . . . . . . . . . . . . 20
Section 2.08. Issuance of the Preferred Securities . . . . . . . 20
Section 2.09. Subscription and Purchase of Debentures; Issuance
of the Common Securities . . . . . . . . . . . . . 21
Section 2.10. Rights of Securityholders. . . . . . . . . . . . . 21
ARTICLE III.
Payment Account
Section 3.01. Payment Account . . . . . . . . . . . . . . . . . . 21
ARTICLE IV.
Distributions; Redemption
Section 4.01. Distributions . . . . . . . . . . . . . . . . . . . 22
Section 4.02. Redemption . . . . . . . . . . . . . . . . . . . . 23
Section 4.03. Subordination of Common Securities . . . . . . . . 24
Section 4.04. Tax Returns and Reports . . . . . . . . . . . . . . 25
Section 4.05. Payments under Subordinated Indenture . . . . . . . 25
ARTICLE V.
Trust Securities Certificates
Section 5.01. The Trust Securities Certificates . . . . . . . . . 25
Section 5.02. Ownership of Common Securities by Depositor . . . . 26
Section 5.03. Registration of Transfer and Exchange of Preferred
Securities Certificates . . . . . . . . . . . . . . 26
Section 5.04. Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates . . . . . . . . . . . . . . 27
Section 5.05. Cancellation by Registrar . . . . . . . . . . . . . 27
Section 5.06. Persons Deemed Securityholders . . . . . . . . . . 27
Section 5.07. List of Securityholders . . . . . . . . . . . . . . 28
Section 5.08. Maintenance of Office or Agency . . . . . . . . . . 28
Section 5.09. Appointment of Paying Agent . . . . . . . . . . . . 28
Section 5.10. Book-Entry System . . . . . . . . . . . . . . . . . 29
ARTICLE VI.
Voting; Meetings; Actions to Enforce Rights
Section 6.01. Voting Rights; Limitations Thereof . . . . . . . . 29
Section 6.02. Purpose for Which Meetings May Be Called . . . . . 30
Section 6.03. Call, Notice and Place of Meetings . . . . . . . . 30
Section 6.04. Persons Entitled to Vote at Meetings . . . . . . . 31
Section 6.05. Quorum; Action . . . . . . . . . . . . . . . . . . 31
Section 6.06. Attendance at Meetings; Determination of Voting
Rights; Conduct and Adjournment of Meetings . . . . 32
Section 6.07. Counting Votes and Recording Action of Meetings . . 33
Section 6.08. Action Without Meeting . . . . . . . . . . . . . . 33
Section 6.09. Inspection of Records . . . . . . . . . . . . . . . 33
Section 6.10. Actions to Enforce Rights. . . . . . . . . . . . . 33
ARTICLE VII.
Representations and Warranties of the Property Trustee and the Delaware
Trustee
Section 7.01. Property Trustee . . . . . . . . . . . . . . . . . 34
Section 7.02. Delaware Trustee . . . . . . . . . . . . . . . . . 35
ARTICLE VIII.
The Trustees
Section 8.01. Certain Duties and Responsibilities . . . . . . . . 36
Section 8.02. Certain Notices . . . . . . . . . . . . . . . . . . 37
Section 8.03. Certain Rights of Property Trustee . . . . . . . . 37
Section 8.04. Not Responsible for Recitals or Issuance of
Securities . . . . . . . . . . . . . . . . . . . . 40
Section 8.05. May Hold Securities . . . . . . . . . . . . . . . . 40
Section 8.06. Compensation; Fees; Indemnity . . . . . . . . . . . 40
Section 8.07. Certain Trustees Required; Eligibility . . . . . . 41
Section 8.08. Conflicting Interests . . . . . . . . . . . . . . . 41
Section 8.09. Co-Trustees and Separate Trustee . . . . . . . . . 41
Section 8.10. Resignation and Removal; Appointment of Successor . 43
Section 8.11. Acceptance of Appointment by Successor . . . . . . 44
Section 8.12. Merger, Conversion, Consolidation or Succession to
Business . . . . . . . . . . . . . . . . . . . . . 45
Section 8.13. Preferential Collection of Claims Against
Depositor or Trust . . . . . . . . . . . . . . . . 45
Section 8.14. Reports by Property Trustee, Trust and Depositor . 46
Section 8.15. Number of Trustees. . . . . . . . . . . . . . . . . 46
Section 8.16. Delegation of Power. . . . . . . . . . . . . . . . 46
Section 8.17. Fiduciary Duty . . . . . . . . . . . . . . . . . . 46
ARTICLE IX.
Termination and Liquidation
Section 9.01. Termination Upon Expiration Date . . . . . . . . . 48
Section 9.02. Early Termination . . . . . . . . . . . . . . . . . 48
Section 9.03. Termination . . . . . . . . . . . . . . . . . . . . 48
Section 9.04. Liquidation . . . . . . . . . . . . . . . . . . . . 48
ARTICLE X.
Miscellaneous Provisions
Section 10.01. Guarantee by the Depositor and Assumption of
Obligations . . . . . . . . . . . . . . . . . . . . 50
Section 10.02. Limitation of Rights of Securityholders . . . . . . 50
Section 10.03. Amendment . . . . . . . . . . . . . . . . . . . . . 50
Section 10.04. Agreement Not to Petition . . . . . . . . . . . . . 52
EXHIBITS
A. Certificate of Trust . . . . . . . . . . . . . . . . . . . . A-1
B. Certificate Evidencing Common Securities . . . . . . . . . . B-1
C. Agreement as to Expenses and Liabilities . . . . . . . . . . C-1
D. Certificate Evidencing Preferred Securities . . . . . . . . . D-1
<PAGE>
AMENDED AND RESTATED TRUST AGREEMENT, dated as of November 1,
1996, among (i) The Montana Power Company, a Montana corporation (the
"Depositor"), (ii) The Bank of New York, a banking corporation duly
organized and existing under the laws of New York, as trustee (in such
capacity, the "Property Trustee"), (iii) The Bank of New York (Delaware), a
banking corporation duly organized and existing under the laws of Delaware,
as Delaware trustee (in such capacity, the "Delaware Trustee"), and (iv)
Ellen M. Senechal, Jerrold P. Pederson, and Pamela K. Merrell, each an
individual, whose address is c/o The Montana Power Company, 40 East
Broadway, Butte, Montana 59701-9989 (each, in such capacity an
"Administrative Trustee" and collectively the "Administrative Trustees")
(the Property Trustee, the Delaware Trustee and the Administrative Trustees
being hereinafter referred to collectively as the "Trustees").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Depositor, the Property Trustee, the Delaware
Trustee and Ellen M. Senechal, as Administrative Trustee, have heretofore
duly declared and established a business trust by the name of Montana
Power Capital I (the "Trust") pursuant to the Delaware Business Trust Act
(as hereinafter defined) by the entering into of that certain Trust
Agreement, dated as of October 15, 1996 (the "Original Trust Agreement"),
and by the execution by the Property Trustee, the Delaware Trustee and
Ellen M. Senechal, as Administrative Trustee, and filing with the
Secretary of State of the State of Delaware of the Certificate of Trust,
dated October 15, 1996 (the "Certificate of Trust"), a copy of which is
attached as Exhibit A; and
WHEREAS, the Depositor, the Property Trustee, the Delaware
Trustee and Ellen M. Senechal, as Administrative Trustee, desire to
amend and restate the Original Trust Agreement in its entirety as set
forth herein to provide for, among other things, (i) the acquisition by
the Trust from the Depositor of all of the right, title and interest in
the Debentures (as hereinafter defined), (ii) the issuance of the Common
Securities (as hereinafter defined) by the Trust to the Depositor, (iii)
the issuance of the Preferred Securities (as hereinafter defined) by
the Trust and (iv) the appointment of the additional Administrative
Trustees;
NOW THEREFORE, in consideration of the agreements and obligations
set forth herein and for other good and valuable consideration, the
sufficiency of which is hereby acknowledged, each party, for the benefit of
the other parties and for the benefit of the Securityholders (as
hereinafter defined), hereby amends and restates the Original Trust
Agreement in its entirety and agrees as follows:
ARTICLE I.
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. DEFINITIONS. For all purposes of this Trust
Agreement, 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 that are defined in the
Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein;
(c) unless the context otherwise requires, any reference to
an "Article" or a "Section" refers to an Article or a Section, as
the case may be, of this Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Trust Agreement as a whole
and not to any particular Article, Section or other subdivision.
"Act," when used with respect to any Securityholder, has the
meaning specified in Section 1.04.
"Additional Amount" means, with respect to Trust Securities of a
given Liquidation Amount and for a given period, the amount of Additional
Interest (as defined in the Subordinated Indenture) paid by the Depositor
on a like principal amount of Debentures for such period.
"Administrative Trustee" means each of the individuals identified
as an "Administrative Trustee" in the preamble to this Trust Agreement,
solely in their capacities as Administrative Trustees of the Trust formed
hereunder and not in their individual capacities, or any successor trustee
appointed as herein provided.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of
this definition, "control" when used with respect to any specified Person
means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Authorized Officer" means, with respect to the Depositor, the
Chairman of the Board, the President, any Vice President, the Treasurer,
any Assistant Treasurer, or any other officer or agent of the Depositor
duly authorized by the Board of Directors to act in respect of matters
relating to this Trust Agreement.
"Bankruptcy Event" means, with respect to any Person:
(i) the entry of a decree or order by a court having
jurisdiction in the premises judging such Person a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjudication or composition of or in
respect of such Person under Bankruptcy Laws, or appointing a
receiver, liquidator, assignee, trustee sequestrator or other
similar official of such Person or of any substantial part of its
property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order unstayed
and in effect for a period of 60 consecutive days; or
(ii) the institution by such Person of proceedings to be
adjudicated a bankrupt or insolvent, or of the consent by it to
the institution of bankruptcy or insolvency proceedings against
it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under Bankruptcy Laws, or the
consent by it to the filing of such petition or to the
appointment of a receiver, liquidator, assignee, trustee,
sequestrator or similar official of such Person or of any
substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by it
in writing of its inability to pay its debts generally as they
become due.
"Bankruptcy Laws" has the meaning specified in Section 10.04.
"Board of Directors" means either the board of directors of the
Depositor or any committee thereof duly authorized to act in respect of
matters relating to this Trust Agreement.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor 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 appropriate Trustee.
"Business Day" means any day other than a Saturday or a Sunday,
which is not (i) a day on which banking institutions or trust companies in
New York, New York are generally authorized or required by law, regulation
or executive order to remain closed and (ii) a day on which either the
Corporate Trust Office or the Debenture Trustee's principal corporate trust
office or the office of the Paying Agent is closed for business.
"Certificate of Trust" has the meaning specified in the preamble
to this Trust Agreement.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act. The Depository Trust
Company will be the initial Clearing Agency.
"Closing Date" means November 6, 1996.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at
any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body, if any, performing such duties at such time.
"Common Security" means an undivided beneficial interest in the
assets of the Trust having a Liquidation Amount of $25 and having the
rights provided therefor in this Trust Agreement, including the right to
receive Distributions and a Liquidation Distribution as provided herein.
"Common Securityholder" means the Person in whose name a Common
Security is registered in the Securities Register.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as
Exhibit B.
"Corporate Trust Office" means the office of the Property Trustee
at which at any particular time its corporate trust business shall be
principally administered, which office at the date of execution and
delivery of this Trust Agreement is located at 101 Barclay Street, New
York, New York 10286.
"Covered Person" means (a) any officer, director, shareholder,
partner, beneficial owner, member, representative, employee or agent of the
Trust or the Trust's Affiliates; and (b) any Securityholder.
"Debenture Event of Default" means an "Event of Default" with
respect to the Debentures under the Subordinated Indenture.
"Debenture Issuer" means The Montana Power Company, a Montana
corporation, in its capacity as issuer of the Debentures.
"Debenture Redemption Date" means "Redemption Date" as defined in
the Subordinated Indenture.
"Debenture Trustee" means The Bank of New York, as trustee under
the Subordinated Indenture, and any duly appointed successor trustee or co-
trustee thereto.
"Debentures" means $67,010,325 aggregate principal amount of
the Debenture Issuer's Junior Subordinated Deferrable Interest Debentures,
8.45% series due 2036, issued pursuant to the Subordinated Indenture.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from
time to time.
"Delaware Trustee" means the banking corporation identified as
the "Delaware Trustee" in the preamble to this Trust Agreement solely in
its capacity as Delaware Trustee of the Trust formed hereunder and not in
its individual capacity, or its successor in interest in such capacity, or
any successor trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this
Trust Agreement.
"Distribution Date" has the meaning specified in Section 4.01(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.01.
"Early Termination Event" has the meaning specified in Section
9.02.
"Event of Default" means any one of the following events
(whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(i) the occurrence of a Debenture Event of Default; or
(ii) default by the Trust in the payment of any Distribution
when it becomes due and payable, and continuation of such default
for a period of 30 days; or
(iii) default by the Trust in the payment of any
Redemption Price of any Trust Security when it becomes due and
payable; or
(iv) default in the performance, or breach, in any material
respect, of any covenant or warranty of the Trustees in this
Trust Agreement (other than a covenant or warranty a default in
whose performance or breach is specifically dealt with in clause
(ii) or (iii), above) and continuation of such default or breach
for a period of 60 days after there has been given, by registered
or certified mail, to the Property Trustee by the Holders of at
least 33% in Liquidation Amount of the Outstanding Preferred
Securities a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(v) the occurrence of a Bankruptcy Event with respect to
the Trust.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Expense Agreement" means the Agreement as to Expenses and
Liabilities between the Depositor and the Trust, substantially in the form
attached as Exhibit C, as amended from time to time.
"Expiration Date" means December 31, 2041.
"Guarantee" means the Guarantee Agreement executed and delivered
by the Depositor and The Bank of New York, a New York banking corporation,
as trustee, contemporaneously with the execution and delivery of this Trust
Agreement, for the benefit of the Holders of the Preferred Securities, as
amended from time to time.
"Holder" has the meaning specified in the definition of
"Securityholder".
"Indemnified Person" means any Trustee, any Affiliate of any
Trustee, any officer, director, shareholder, member, partner, employee,
representative or agent of any Trustee, or any employee or agent of the
Trust or its Affiliates.
"Investment Company Act" means the Investment Company Act of
1940, as amended.
"Lien" means any lien, pledge, charge, encumbrance, mortgage,
deed of trust, adverse ownership interest, hypothecation, assignment,
security interest or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever.
"Like Amount" means, as the context requires, (i) Trust
Securities having a Liquidation Amount equal to the principal amount of
Debentures at any time to be repaid, whether at stated maturity or upon
maturity by earlier acceleration, redemption or otherwise, and (ii)
Debentures having a principal amount equal to the Liquidation Amount of the
Trust Securities with respect to which such Debentures are to be
distributed.
"Liquidation Amount" means the stated amount of $25 per Trust
Security.
"Liquidation Date" means the date on which Debentures are to be
distributed to Securityholders in connection with a termination and
liquidation of the Trust pursuant to Section 9.04(d).
"Liquidation Distribution" has the meaning specified in
Section 9.04(d).
"Officer's Certificate" means a certificate signed by an
Authorized Officer.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Depositor (but not an employee thereof) or other counsel
acceptable to the Property Trustee.
"Original Trust Agreement" has the meaning specified in the
recitals to this Trust Agreement.
"Outstanding," when used with respect to Preferred Securities,
means, as of the date of determination, all Preferred Securities
theretofore delivered under this Trust Agreement, except:
(i) Preferred Securities theretofore canceled by the
Registrar or delivered to the Registrar for cancellation;
(ii) Preferred Securities for whose payment or redemption
money in the necessary amount shall have been theretofore deposited
with the Property Trustee or any Paying Agent for the Holders of such
Preferred Securities; provided that, if such Preferred Securities are
to be redeemed, notice of such redemption shall have been duly given
pursuant to this Trust Agreement; and
(iii) Preferred Securities in exchange for or in lieu of
which other Preferred Securities have been delivered pursuant to this
Trust Agreement, including pursuant to Sections 5.03 or 5.04;
provided, however, that in determining whether the Holders of the requisite
amount of the Outstanding Preferred Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, or
whether or not a quorum is present at a meeting of Securityholders,
Preferred Securities owned by the Depositor, any Trustee or any Affiliate
of the Depositor or any Trustee (unless the Depositor, such Trustee, or
such Affiliate of the Depositor or such Trustee owns all of the Outstanding
Preferred Securities, determined without regard to this provision) shall be
disregarded and deemed not to be Outstanding, except that (a) in
determining whether any 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 Preferred
Securities which such Trustee knows to be so owned shall be so disregarded;
provided, however, that Preferred Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Administrative Trustees the
pledgee's right so to act with respect to such Preferred Securities and
that the pledgee is not the Depositor or any Affiliate of the Depositor.
"Paying Agent" means any paying agent or co-paying agent
appointed pursuant to Section 5.09 and initially shall be The Bank of New
York.
"Payment Account" means a segregated non-interest-bearing
corporate trust account maintained by the Property Trustee with The Bank of
New York, or such other banking institution as the Depositor shall select,
in its trust department for the benefit of the Securityholders in which all
amounts paid in respect of the Debentures will be held and from which the
Paying Agent, pursuant to Section 5.09, shall make payments to the
Securityholders in accordance with Sections 4.01 and 4.02.
"Person" means any individual, corporation, partnership, joint
venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.
"Preferred Security" means an undivided beneficial interest in
the assets of the Trust, designated as "8.45% Cumulative Quarterly Income
Preferred Securities, Series A", having a Liquidation Amount of $25 and
having rights provided therefor in this Trust Agreement.
"Preferred Securityholder" means a Person in whose name a
Preferred Security is registered in the Securities Register.
"Preferred Securities Certificate" means a certificate evidencing
ownership of Preferred Securities, substantially in the form attached as
Exhibit D.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee" in the preamble to this Trust
Agreement solely in its capacity as Property Trustee of the Trust formed
hereunder and not in its individual capacity, or its successor in interest
in such capacity, or any successor trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by Section 4.02.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions thereon to the Redemption Date.
"Registrar" shall mean the registrar for the Trust Securities
appointed pursuant to Section 2.05(a)(i)(G) and shall be initially The Bank
of New York.
"Securities Depository" shall be a Person having the
qualifications and appointed by the Depositor to perform the duties set
forth in Section 5.10. The initial Securities Depository shall be The
Depository Trust Company.
"Securities Register" shall mean the Securities Register
described in Section 5.03.
"Securityholder" or "Holder" means a Person in whose name a Trust
Security is registered in the Securities Register. Any such Person shall
be deemed to be a beneficial owner of such security within the meaning of
the Delaware Business Trust Act.
"Subordinated Indenture" means the Indenture, dated as of
November 1, 1996, between the Depositor and the Debenture Trustee, as
amended or supplemented from time to time.
"Transfer Agent" means one or more transfer agents for the Trust
Securities appointed pursuant to Section 2.05(a)(i)(G) and shall be
initially The Bank of New York.
"Trust" means Montana Power Capital I, a statutory business trust
formed under the laws of the State of Delaware, initially established under
the Original Trust Agreement and continued hereby, or any permitted
successor hereunder.
"Trust Agreement" means this Amended and Restated Trust
Agreement, as the same may be modified, amended or supplemented in
accordance with the applicable provisions hereof.
"Trust Indenture Act" means, as of any time, the Trust Indenture
Act of 1939, or any successor statute, as in effect at such time.
"Trust Property" means (i) the Debentures, (ii) any cash on
deposit in, or owing to, the Payment Account and (iii) all proceeds and
rights in respect of the foregoing and any other property and assets for
the time being held by the Property Trustee pursuant to the trusts of this
Trust Agreement.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Trust Securities Certificate" means any one of the Common
Securities Certificates or the Preferred Securities Certificates.
"Trustee" means any of the Administrative Trustees, the Property
Trustee or the Delaware Trustee.
"Underwriting Agreement" means the Underwriting Agreement,
dated as of November 1, 1996, among the Trust, the Depositor and the
underwriters named therein.
SECTION 1.02. COMPLIANCE CERTIFICATES AND OPINIONS. (a) Except
as otherwise expressly provided in this Trust Agreement, upon any
application or request by the Depositor to any Trustee to take any action
under any provision of this Trust Agreement, the Depositor shall, if
requested by such Trustee, furnish to such Trustee an Officer's Certificate
stating that all conditions precedent, if any, provided for in this Trust
Agreement relating to the proposed action (including any covenants
compliance with which constitutes a condition precedent) 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 Trust
Agreement relating to such particular application or request, no additional
certificate or opinion need be furnished.
(b) Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Trust Agreement shall include:
(i) a statement that each Person signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(ii) 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;
(iii) a statement that, in the opinion of each such
Person, such Person has made such examination or investigation as is
necessary to enable such Person to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
Person, such condition or covenant has been complied with.
SECTION 1.03. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. (a) 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.
(b) Any Officer's Certificate 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 such Officer's
Certificate are based are erroneous. Any 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 Depositor stating that
the information with respect to such factual matters is in the possession
of the Depositor, 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.
(c) Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions
or other instruments under this Trust Agreement, they may, but need not, be
consolidated and form one instrument.
(d) Whenever, subsequent to the receipt by any Trustee of any
Board Resolution, Officer's Certificate, Opinion of Counsel or other
document or instrument, a clerical, typographical or other inadvertent or
unintentional error or omission shall be discovered therein, a new document
or instrument may be substituted therefor in corrected form with the same
force and effect as if originally filed in the corrected form and,
irrespective of the date or dates of the actual execution and/or delivery
thereof, such substitute document or instrument shall be deemed to have
been executed and/or delivered as of the date or dates required with
respect to the document or instrument for which it is substituted.
Anything in this Trust Agreement to the contrary notwithstanding, if any
such corrective document or instrument indicates that action has been taken
by or at the request of the Depositor which could not have been taken had
the original document or instrument not contained such error or omission,
the action so taken shall not be invalidated or otherwise rendered
ineffective but shall be and remain in full force and effect, except to the
extent that such action was a result of willful misconduct or bad faith.
SECTION 1.04. ACTS OF SECURITYHOLDERS. (a) Any request,
demand, authorization, direction, notice, consent, election, waiver or
other action provided by this Trust Agreement to be made, given or taken by
Securityholders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Securityholders in person or
by an agent duly appointed in writing or, alternatively, may be embodied in
and evidenced by the record of Securityholders voting in favor thereof,
either in person or by proxies duly appointed in writing, at any meeting of
Securityholders duly called and held in accordance with the provisions of
Article VI, 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 Administrative Trustees. 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 Securityholders
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 Trust Security, shall be
sufficient for any purpose of this Trust Agreement and (subject to Section
8.01) conclusive in favor of the Administrative Trustees, if made in the
manner provided in this Section. The record of any meeting of
Securityholders shall be proved in the manner provided in Section 6.07.
(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
appropriate Trustee and the Depositor 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 aggregate Liquidation Amount and serial numbers of Trust
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 Securityholder shall bind every
future Holder of the same Trust Security and the Holder of every Trust
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by any Trustee or the Depositor in reliance thereon,
whether or not notation of such action is made upon such Trust Security.
(e) Until such time as written instruments shall have been
delivered to the appropriate Trustee representing the requisite proportion
of Outstanding Trust Securities for the action contemplated by such
instruments, any such instrument executed and delivered by or on behalf of
a Securityholder may be revoked with respect to any or all of such Trust
Securities by written notice by such Securityholder or any subsequent
Securityholder, proven in the manner in which such instrument was proven.
(f) Trust Securities delivered after any Act of Securityholders
may, and shall if required by the Property Trustee, bear a notation in form
approved by the Property Trustee as to any action taken by such Act of
Securityholders. If the Depositor shall so determine, new Trust Securities
so modified as to conform, in the opinion of the Property Trustee and the
Depositor, to such action may be prepared and executed by an Administrative
Trustee on behalf of the Trust and delivered in exchange for Outstanding
Preferred Securities.
(g) If the Trustees shall solicit from Securityholders any
request, demand, authorization, direction, notice, consent, waiver or other
Act, the Trustees may fix in advance a record date for the determination of
Securityholders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act, but the Trustees 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 Securityholders of
record at the close of business on the record date shall be deemed to be
Securityholders for the purposes of determining whether Securityholders of
the requisite proportion of the Outstanding Preferred 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 Preferred Securities shall be computed as of the record date.
SECTION 1.05. NOTICES, ETC. TO THE TRUSTEES AND THE DEPOSITOR.
(a) Any request, demand, authorization, direction, notice,
consent, election, waiver or Act of Securityholder or other document
provided or permitted by this Trust Agreement to be made upon, given or
furnished to, or filed with, any Trustee by any Holder or by the Depositor,
or the Depositor by any Trustee or by any Holder, shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and delivered personally to the individual or an officer or other
responsible employee of the addressee, or transmitted by facsimile
transmission or other direct written electronic means to such telephone
number or other electronic communications address as the parties hereto
shall from time to time designate, or transmitted by certified or
registered mail, charges prepaid, to the applicable address set opposite
such party's name below or to such other address as either party hereto may
from time to time designate:
If to the Property Trustee, to:
The Bank of New York
101 Barclay Street, 21 West
New York, New York 10286
Attention: Assistant Vice President,
Corporate Trust Administration
Telephone: (212) 815-3806
Telecopy: (212) 815-5915
If to the Delaware Trustee, to:
The Bank of New York (Delaware)
White Clay Center, Route 273
Newark, Delaware 19711
Attention: Corporate Trust Department
Telephone: (302) 451-2551
Telecopy: (302) 451-2540
with a copy to:
The Bank of New York
101 Barclay Street, 21 West
New York, New York 10286
Attention: Assistant Vice President,
Corporate Trust Administration
Telephone: (212) 815-3806
Telecopy: (212) 815-5915
If to the Trust or the Administrative Trustees, to:
The Montana Power Company
40 East Broadway
Butte, Montana 59701
Attention: Administrative Trustees For Montana Power Capital I
Telephone: (406) 497-2374
Telecopy: (406) 497-3018
If to the Depositor, to:
The Montana Power Company
40 East Broadway
Butte, Montana 59701-9394
Attention: Treasurer
Telephone: (406) 497-2374
Telecopy: (406) 497-3018
(b) Any communication contemplated herein shall be deemed to
have been made, given, furnished and filed if personally delivered, on the
date of delivery, if transmitted by facsimile transmission or other direct
written electronic means, on the date of transmission, and if transmitted
by registered mail, on the date of receipt.
SECTION 1.06. NOTICE TO SECURITYHOLDERS; WAIVER. (a) Except as
otherwise expressly provided herein, where this Trust Agreement 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 Securities Register, not later
than the latest date, if any, and not earlier than the earliest date, if
any, prescribed for the giving of such notice. Any notice received by any
Trustee, on behalf of the Trust in its capacity as a holder of Debentures,
shall be given to the Securityholders.
(b) 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
approval of the Administrative Trustees 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.
(c) Any notice required by this Trust Agreement 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 Administrative Trustees, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
SECTION 1.07. CONFLICT WITH TRUST INDENTURE ACT. If any
provision of this Trust Agreement limits, qualifies or conflicts with
another provision hereof which is required or deemed to be included in this
Trust Agreement by, or is otherwise governed by, any of the provisions of
the Trust Indenture Act, such other provision shall control; and if any
provision hereof otherwise conflicts with the Trust Indenture Act, the
Trust Indenture Act shall control.
SECTION 1.08. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The
Article and Section headings in this Trust Agreement and the Table of
Contents are for convenience only and shall not affect the construction
hereof.
SECTION 1.09. SUCCESSORS. This Trust Agreement shall be binding
upon and shall inure to the benefit of any successor to the Trust or any
Trustees, including any successor by operation of law.
SECTION 1.10. SEPARABILITY. In case any provision in this Trust
Agreement or in the Trust Securities Certificates shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1.11. GOVERNING LAW. THIS TRUST AGREEMENT AND THE
RIGHTS AND OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE TRUST AND THE
TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT AND THE TRUST SECURITIES
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE
OF DELAWARE (WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES).
ARTICLE II.
ESTABLISHMENT OF THE TRUST; ISSUANCE OF TRUST SECURITIES; RIGHTS OF
SECURITYHOLDERS
SECTION 2.01. NAME. The Trust created hereby shall be known as
"Montana Power Capital I," in which name the Trustees may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and sue and be sued.
SECTION 2.02. OFFICE OF THE DELAWARE TRUSTEE; PRINCIPAL PLACE OF
BUSINESS. The office of the Delaware Trustee in the State of Delaware is
White Clay Center, Route 273, Newark, Delaware 19711, or at such other
address in Delaware as the Delaware Trustee may designate by written notice
to the Securityholders and the Depositor. The principal place of business
of the Trust is c/o The Montana Power Company, 40 East Broadway, Butte,
Montana 59701-9989.
SECTION 2.03. INITIAL CONTRIBUTION OF TRUST PROPERTY; INITIAL
OWNERSHIP; ORGANIZATIONAL EXPENSES. The Property Trustee acknowledges
receipt in trust from the Depositor in connection with the Original Trust
Agreement of the sum of $10, which constituted the initial contribution of
Trust Property. Upon the formation of the Trust by such contribution and
until the issuance of the Trust Securities, and at any time during which no
Trust Securities are outstanding, the Depositor shall be the sole
beneficial owner (within the meaning of the Delaware Business Trust Act) of
the Trust. The Depositor shall pay organizational expenses of the Trust as
they arise or shall, upon request of any Trustee, promptly reimburse such
Trustee for any such expenses paid by such Trustee. The Depositor shall
make no claim upon the Trust Property for the payment of such expenses.
SECTION 2.04. DECLARATION OF TRUST; APPOINTMENT OF ADDITIONAL
ADMINISTRATIVE TRUSTEES. (a) The exclusive purposes and functions of the
Trust are (i) to issue and sell Trust Securities and invest the proceeds
thereof in Debentures, (ii) to receive payments to be made with respect to
the Debentures and disburse such payments in accordance with the terms
hereof, and (iii) to engage in those activities necessary, convenient or
incidental thereto. The Depositor hereby appoints the Trustees as trustees
of the Trust, to have all the rights, powers and duties to the extent set
forth herein. The Property Trustee hereby declares that it will hold the
Trust Property in trust upon and subject to the conditions set forth herein
for the benefit of the Securityholders. The Trustees shall have all
rights, powers and duties set forth herein and in accordance with
applicable law with respect to accomplishing the purposes and functions of
the Trust. Anything in this Trust Agreement to the contrary
notwithstanding, the Delaware Trustee shall not be entitled to exercise any
powers, nor shall the Delaware Trustee have any of the duties and
responsibilities, of the Property Trustee or the Administrative Trustees
set forth herein. The Delaware Trustee shall be one of the Trustees of the
Trust for the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Delaware Business Trust Act.
(b) The Depositor, the Property Trustee, the Delaware Trustee
and Ellen M. Senechal, as Administrative Trustee, hereby appoint Jerrold
P. Pederson and Pamela K. Merrell as additional Administrative Trustees,
each of which persons by execution of this Trust Agreement accepts such
appointment.
SECTION 2.05. AUTHORIZATION TO ENTER INTO CERTAIN TRANSACTIONS.
(a) The Trustees shall conduct the affairs of the Trust in accordance with
the terms of this Trust Agreement. Subject to the limitations set forth in
paragraph (b) of this Section 2.05 and Article VIII and in accordance with
the following provisions (i) and (ii), the Trustees shall have the
authority to enter into all transactions and agreements determined by the
Trustees to be appropriate in exercising the authority, express or implied,
otherwise granted to the Trustees under this Trust Agreement, and to
perform all acts in furtherance thereof, including without limitation, the
following:
(i) As among the Trustees, the Administrative Trustees, acting singly
or jointly, shall have the power, duty and authority to act on behalf of
the Trust with respect to the following matters:
(A) the issuance and sale of the Trust Securities;
(B) the execution, delivery and performance of the Expense
Agreement, the Underwriting Agreement and such other agreements,
certificates and documents as may be necessary or desirable in
connection with the purposes and functions of the Trust;
(C) the qualification of the Trust to do business in any
jurisdiction as may be necessary or desirable;
(D) the collection of interest, principal and any other
payments made in respect of the Debentures in the Payment
Account;
(E) the registration of the Preferred Securities under the
Securities Act of 1933, as amended, and under state securities or
blue sky laws, and the qualification of this Trust Agreement as a
trust indenture under the Trust Indenture Act;
(F) the listing of the Preferred Securities upon such
securities exchange or exchanges as shall be determined by the
Depositor and the registration of the Preferred Securities under
the Exchange Act, and the preparation and filing of all notices
and periodic and other reports and other documents pursuant to
the foregoing;
(G) the appointment of a Paying Agent, a Transfer Agent and
a Registrar in accordance with this Trust Agreement;
(H) the registration of transfers of the Trust Securities
in accordance with this Trust Agreement;
(I) the winding up of the affairs of and liquidation of the
Trust and the preparation, execution and filing of the
certificate of cancellation with the Secretary of State of the
State of Delaware in accordance with this Trust Agreement;
(J) the performance of their obligations under this Trust
Agreement; and
(K) the taking of any action incidental to the foregoing as
the Administrative Trustees may from time to time determine is
necessary or advisable to protect and conserve the Trust Property
for the benefit of the Securityholders (without consideration of
the effect of any such action on any particular Securityholder).
(ii) As among the Trustees, the Property Trustee shall have the
power, duty and authority to act on behalf of the Trust with respect to the
following ministerial matters:
(A) the establishment and maintenance of the Payment
Account;
(B) the receipt of the Debentures;
(C) the deposit of interest, principal and any other
payments made in respect of the Debentures in the Payment
Account;
(D) the distribution of amounts owed to the Securityholders
in respect of the Trust Securities in accordance with the terms
of this Trust Agreement;
(E) the sending of notices of default and other information
regarding the Trust Securities and the Debentures to the
Securityholders in accordance with the terms of this Trust
Agreement;
(F) the distribution of the Trust Property in accordance
with this Trust Agreement;
(G) the winding up of the affairs of and liquidation of the
Trust and the execution of the certificate of cancellation to be
prepared and filed by the Administrative Trustees with the
Secretary of State of the State of Delaware in accordance with
this Trust Agreement;
(H) the performance of its obligations under this Trust
Agreement; and
(I) the taking of any ministerial action incidental to the
foregoing as the Property Trustee may from time to time determine
is necessary or advisable to protect and conserve the Trust
Property for the benefit of the Securityholders (without
consideration of the effect of any such action on any particular
Securityholder).
Subject to this Section 2.05(a)(ii), the Property Trustee shall have none
of the duties, powers or authority of the Administrative Trustee set forth
in Section 2.05(a)(i) or the Depositor set forth in Section 2.05(c). The
Property Trustee shall have the power and authority to exercise all of the
rights, powers and privileges of a holder of Debentures under the
Subordinated Indenture, and, if an Event of Default occurs and is
continuing, the Property Trustee may, for the benefit of Holders of the
Trust Securities, in its discretion proceed to protect and enforce its
rights as holder of the Debentures subject to the rights of the Holders
pursuant to the terms of this Trust Agreement.
(b) Neither the Trust nor any Trustee acting on behalf of the
Trust shall undertake any business, activities or transaction except as
expressly provided herein or contemplated hereby. In particular, the
Trustees shall not (i) acquire any investments or engage in any activities
not authorized by this Trust Agreement, (ii) sell, assign, transfer,
exchange, pledge, set-off or otherwise dispose of any of the Trust Property
or interests therein, including to Securityholders, except as expressly
provided herein, (iii) take any action that would cause the Trust to fail
or cease to qualify as a "grantor trust" for United States Federal income
tax purposes, (iv) incur any indebtedness for borrowed money or (v) take or
consent to any action that would result in the placement of a Lien on any
of the Trust Property. The Trustees shall defend all claims and demands of
all Persons at any time claiming any Lien on any of the Trust Property
adverse to the interest of the Trust or the Securityholders in their
capacity as Securityholders.
(c) In connection with the issuance of the Preferred Securities,
the Depositor shall have the right and responsibility to assist the Trust
with respect to, or effect on behalf of the Trust, the following (and any
actions taken by the Depositor in furtherance of the following prior to the
Closing Date are hereby ratified and confirmed in all respects):
(i) the preparation, execution and the filing by the Trust
with the Commission of a registration statement on Form S-3 in
relation to the Preferred Securities, including any amendments
thereto;
(ii) the determination of the states or jurisdictions in
which to take appropriate action to qualify or register for sale
all or part of the Preferred Securities and the performance of
any and all such acts, other than actions which must be taken by
or on behalf of the Trust, and the advising of the Trustees of
actions they must take on behalf of the Trust, and the
preparation, execution and filing of any documents to be executed
and filed by the Trust or on behalf of the Trust, as the
Depositor deems necessary or advisable in order to comply with
the applicable laws of any such state or jurisdiction;
(iii) the preparation, execution and the filing by the
Trust of an application to The New York Stock Exchange, any other
national stock exchange or the Nasdaq National Market for listing
upon notice of issuance of the Preferred Securities and the
filing thereafter of such notifications and documents as may be
necessary from time to time to maintain such listing;
(iv) the preparation, execution and the filing by the Trust
with the Commission of a registration statement on Form 8-A, and
any amendments thereto, relating to the registration of the
Preferred Securities under Section 12(b) of the Exchange Act;
(v) the selection of the investment banker or bankers to
act as underwriters with respect to the offer and sale by the
Trust of the Preferred Securities and the negotiation of the
terms of the Underwriting Agreement providing for such offer; and
(vi) any other actions necessary or desirable to carry out
any of the foregoing activities;
(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the affairs
of the Trust and to operate the Trust so that the Trust will not be deemed
to be an "investment company" required to be registered under the
Investment Company Act, or classified other than as a "grantor trust" for
United States Federal income tax purposes and so that the Debentures will
be treated as indebtedness of the Depositor for United States Federal
income tax purposes. In this connection, the Depositor and the
Administrative Trustees are authorized to take any action, not inconsistent
with applicable law or this Trust Agreement, that each of the Depositor and
the Administrative Trustees determines in its discretion to be necessary or
desirable for such purposes, as long as such action does not materially and
adversely affect the interests of the Holders of the Preferred Securities.
SECTION 2.06. ASSETS OF TRUST. The assets of the Trust shall
consist of the Trust Property.
SECTION 2.07. TITLE TO TRUST PROPERTY. Legal title to all Trust
Property shall be vested at all times in the Property Trustee and shall be
held and administered by the Property Trustee for the benefit of the
Securityholders in accordance with this Trust Agreement.
SECTION 2.08. ISSUANCE OF THE PREFERRED SECURITIES. On the
Closing Date, one of the Administrative Trustees, on behalf of the Trust,
shall execute and deliver in accordance with Section 5.01 and deliver in
accordance with the Underwriting Agreement Preferred Securities
Certificates, registered in the name of the nominee of The Depository Trust
Company, evidencing 2,600,000 Preferred Securities having an aggregate
Liquidation Amount of $65,000,000 against receipt of the purchase price of
such Preferred Securities of $65,000,000, which amount such Administrative
Trustee shall promptly deliver to the Property Trustee.
SECTION 2.09. SUBSCRIPTION AND PURCHASE OF DEBENTURES; ISSUANCE
OF THE COMMON SECURITIES. On the Closing Date, the Administrative
Trustees, on behalf of the Trust, shall subscribe to and purchase from the
Depositor Debentures, registered in the name of the Property Trustee on
behalf of the Trust, in an aggregate principal amount of $67,010,325,
and, in satisfaction of the purchase price for such Debentures, (i) one of
the Administrative Trustees, on behalf of the Trust, shall execute and
deliver to the Depositor Common Securities Certificates, registered in the
name of the Depositor, evidencing 80,413 Common Securities having an
aggregate Liquidation Amount of $2,010,325, and (ii) the Property Trustee,
on behalf of the Trust, shall deliver to the Depositor the sum of
$65,000,000, representing the proceeds from the sale of the Preferred
Securities pursuant to the Underwriting Agreement.
SECTION 2.10. RIGHTS OF SECURITYHOLDERS. The legal title to the
Trust Property is vested exclusively in the Property Trustee in accordance
with Section 2.07, and the Securityholders shall have neither right or
title therein other than an undivided beneficial interest in the assets of
the Trust conferred by their Trust Securities nor any right to call for any
partition or division of property, profits or rights of the Trust, except
as described below. The Trust Securities shall be personal property giving
only the rights specifically set forth therein and in this Trust Agreement.
The Preferred Securities shall have no preemptive rights. When issued and
delivered to Securityholders against payment of the purchase price
therefor, they will be fully paid and nonassessable by the Trust.
ARTICLE III.
PAYMENT ACCOUNT
SECTION 3.01. PAYMENT ACCOUNT. (a) On or prior to the Closing
Date, the Property Trustee shall establish the Payment Account. The
Property Trustee and the Paying Agent shall have exclusive control of the
Payment Account. All monies and other property deposited or held from time
to time in the Payment Account shall be held by the Property Trustee in the
Payment Account for the exclusive benefit of the Securityholders and for
distribution as herein provided.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal or interest on, and any
other payments or proceeds with respect to, the Debentures. Amounts held
in the Payment Account shall not be invested by the Property Trustee
pending distribution thereof.
ARTICLE IV.
DISTRIBUTIONS; REDEMPTION
SECTION 4.01. DISTRIBUTIONS. (a) Distributions on the Trust
Securities shall be cumulative, and will accumulate whether or not there
are funds of the Trust available for the payment of Distributions.
Distributions shall accrue from and including November 6, 1996, and, unless
the interest payment period for the Debentures is extended pursuant to the
Subordinated Indenture, shall be payable quarterly in arrears on March 31,
June 30, September 30 and December 31 of each year, commencing on December
31, 1996. If any date on which Distributions are otherwise payable on
the Trust Securities is not a Business Day, then the payment of such
Distribution shall be made on the next succeeding day that is a Business
Day, except that, if such Business Day is in the next succeeding calendar
year, payment of such distribution shall be made on the immediately
preceding Business Day, in each case, with the same force and effect as if
made on such date (each date on which distributions are payable in
accordance with this Section 4.01(a) being herein referred to as a
"Distribution Date").
(b) Distributions payable on the Trust Securities shall be at
the fixed rate of 8.45% per annum of the Liquidation Amount of the Trust
Securities. Distributions on the Trust Securities will accrue from, and
including, the date of original issuance and will accrue to, and including
the first Distribution Date, and for each subsequent Distribution Date,
will accrue from, and excluding, the last Distribution Date through which
Distributions shall have been paid or duly provided for to, and including,
such Distribution Date. The amount of Distributions payable for any full
quarterly period shall be computed on the basis of twelve 30-day months and
a 360-day year and, for any period shorter than a full month, on the basis
of the actual number of days elapsed in such period. If the interest
payment period for the Debentures is extended pursuant to the Subordinated
Indenture, (i) Distributions on the Trust Securities will be deferred for
the period equal to the extension of the interest payment period for the
Debentures and (ii) Distributions on the Trust Securities shall be
increased by an amount such that the aggregate amount of Distributions that
accumulate on all Trust Securities during any such extended payment period
shall be equal to the aggregate amount of interest that accrues during any
such extended interest payment period on the Debentures. The amount of
Distributions payable for any period also shall include the Additional
Amounts, if any.
(c) Distributions on the Trust Securities shall be made and
shall be deemed payable on each Distribution Date only if the Trust has
funds immediately available in the Payment Account for the payment of such
Distributions.
(d) Subject to Section 5.10, (i) Distributions on the Trust
Securities with respect to a Distribution Date shall be payable to the
Holders thereof as they appear on the Securities Register on the record
date therefor, which shall be 15 days prior to such Distribution Date and
(ii) payments of Distributions in respect of the Preferred Securities shall
be made by check mailed to the address of the Person entitled thereto as
such address shall appear on the Securities Register. Payments in respect
of the Common Securities shall be made in such manner as shall be mutually
agreed between the Administrative Trustees and the Holder of the Common
Securities.
SECTION 4.02. REDEMPTION. (a) On each Debenture Redemption
Date and at the stated maturity of the Debentures, the Property Trustee
will be required to redeem a Like Amount of Trust Securities at the
Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee
by first-class mail, postage prepaid, mailed not less than 30 nor more than
60 days prior to the Redemption Date to each Holder of Trust Securities to
be redeemed, at such Holder's address appearing in the Security Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price to be paid on the Redemption Date;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are
to be redeemed, the identification and the total Liquidation
Amount of the particular Trust Securities to be redeemed; and
(v) that on the Redemption Date the Redemption Price will
become due and payable upon each such Trust Security to be
redeemed and that Distributions thereon will cease to accrue on
and after said date.
(c) The Trust Securities to be redeemed on each Redemption Date
shall be redeemed with the proceeds from the contemporaneous redemption or
payment of Debentures. Redemptions of the Trust Securities shall be made
only if the Trust has funds immediately available in the Payment Account
for such payment.
(d) By 12:00 noon, New York time, on each Redemption Date, the
Property Trustee shall irrevocably deposit in the Payment Account
immediately available funds sufficient to pay the applicable Redemption
Price and shall give to the Paying Agent irrevocable instructions to pay
the Redemption Price to the Holders of the Trust Securities to be redeemed
on such date upon surrender of their Trust Securities Certificates.
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date for any Trust Securities called for redemption shall be
payable to the Holders of such Trust Securities as they appear on the
Securities Register for the Trust Securities on the relevant record dates
for the related Distribution Dates. If notice of redemption shall have
been given and funds deposited as required, then on the Redemption Date all
rights of the Holders of the Trust Securities so called for redemption will
cease, except the right of such Holders to receive the Redemption Price,
but without interest thereon, and such Trust Securities will cease to be
outstanding. In the event that any Redemption Date is not a Business Day,
then payment of the Redemption Price payable on such date shall be made on
the next succeeding day which is a Business Day, except that if such
Business Day is in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day, in each case with the same
force and effect as if made on such Redemption Date. In the event that
payment of the Redemption Price in respect of any Trust Security called for
redemption is not paid either by the Trust or by the Depositor pursuant to
the Guarantee, Distributions on such Trust Security will continue to
accrue, at the then applicable rate, from the Redemption Date originally
established to the date on which such Redemption Price shall actually be
paid.
(e) Subject to Section 4.03(a), if less than all of the
Outstanding Trust Securities are to be redeemed on a Redemption Date, then
the aggregate Liquidation Amount of Trust Securities to be redeemed shall
be allocated 3% to the Common Securities and 97% to the Preferred
Securities. The particular Preferred Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Property
Trustee from the Outstanding Preferred Securities not previously called for
redemption, by such method as the Property Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of less
than all of the Preferred Securities represented by a Preferred Securities
Certificate. The Property Trustee shall promptly notify the Transfer Agent
and Registrar of the Preferred Securities Certificates representing
Preferred Securities selected for redemption and, in the case of any
Preferred Securities Certificate selected for partial redemption, the
number of Preferred Securities to be redeemed. For all purposes of this
Trust Agreement, unless the context otherwise requires, all provisions
relating to the redemption of Preferred Securities shall relate, in the
case of any Preferred Securities Certificates redeemed or to be redeemed
only in part, to those Preferred Securities which have been or are to be
redeemed.
SECTION 4.03. SUBORDINATION OF COMMON SECURITIES. (a) If on
any Distribution Date or Redemption Date any Event of Default resulting
from a Debenture Event of Default shall have occurred and be continuing, no
payment of any Distribution on, or of the Redemption Price of, any Common
Security shall be made.
(b) In the case of the occurrence of an Event of Default
resulting from a Debenture Event of Default, the Common Securityholder will
be deemed to have waived such Event of Default until the effect of such
Event of Default with respect to the Preferred Securities has been cured,
waived or otherwise eliminated. Until each such Event of Default with
respect to the Preferred Securities has been so cured, waived or otherwise
eliminated, the Property Trustee shall act solely on behalf of the Holders
of the Preferred Securities, and only the Holders of the Preferred
Securities will have the right to direct the Property Trustee to act.
SECTION 4.04. TAX RETURNS AND REPORTS. The Administrative
Trustees shall prepare (or cause to be prepared), at the Depositor's
expense and direction, and file all United States Federal, state and local
tax and information returns and reports required to be filed by or in
respect of the Trust. The Administrative Trustees shall (a) prepare and
file (or cause to be prepared and filed) the Internal Revenue Service Form
1041 (or any successor form) required to be filed in respect of the Trust
in each taxable year of the Trust and (b) prepare and furnish (or cause to
be prepared and furnished) to each Securityholder the related Internal
Revenue Service Form 1099, or any successor form or the information
required to be provided on such form. The Administrative Trustees shall
provide the Depositor and the Property Trustee with a copy of all such
returns, reports and schedules promptly after such filing or furnishing.
The Trustees shall comply with United States Federal withholding and backup
withholding tax laws and information reporting requirements with respect to
any payments to Securityholders under the Trust Securities.
SECTION 4.05. PAYMENTS UNDER SUBORDINATED INDENTURE. Any amount
payable hereunder to any Holder of Preferred Securities shall be reduced by
the amount of any corresponding payment such Holder has directly received
pursuant to Section 808 of the Subordinated Indenture. The acceptance of a
Preferred Security or any interest therein by or on behalf of a Preferred
Securityholder shall be deemed to be an acknowledgment that any Holder of
Preferred Securities that receives payment under Section 808 of the
Subordinated Indenture may receive amounts greater than the amount such
Holder may be entitled to receive pursuant to the provisions of this Trust
Agreement.
ARTICLE V.
TRUST SECURITIES CERTIFICATES
SECTION 5.01. THE TRUST SECURITIES CERTIFICATES. The Trust
Securities Certificates shall be issued in denominations of $25 Liquidation
Amount and integral multiples thereof. The Trust Securities Certificates
shall be executed on behalf of the Trust by manual or facsimile signature
of at least one Administrative Trustee and, if executed on behalf of the
Trust by facsimile signature, countersigned by the Transfer Agent or its
agent. Trust Securities Certificates bearing the signatures of individuals
who were, at the time when such signatures shall have been affixed,
Administrative Trustees of the Trust, shall be validly issued and entitled
to the benefits of this Trust Agreement, notwithstanding that such
individuals or any of them shall have ceased to be Administrative Trustees
prior to the delivery of such Trust Securities Certificates. Certificates
evidencing Trust Securities may be typewritten, printed, lithographed or
engraved or may be produced in any other manner as is reasonably acceptable
to the Administrative Trustees, as evidenced by the execution thereof by
the Administrative Trustees, or any one of them, and may have such letters,
numbers or other marks of identification or designation and such legends or
endorsements as the Administrative Trustees may deem appropriate, or as may
be required to comply with any law or with any rule or regulation of any
stock exchange on which the Preferred Securities may be listed, or to
conform to usage.
SECTION 5.02. OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR. On
the Closing Date, the Depositor shall acquire, and thereafter retain,
beneficial and record ownership of the Common Securities. Any attempted
transfer of the Common Securities (other than a transfer in connection with
a merger or consolidation of the Depositor pursuant to Section 1101 of the
Subordinated Indenture) shall be void. The Administrative Trustees shall
cause each Common Securities Certificate issued to the Depositor to contain
a legend stating "THIS CERTIFICATE IS NOT TRANSFERABLE".
SECTION 5.03. REGISTRATION OF TRANSFER AND EXCHANGE OF PREFERRED
SECURITIES CERTIFICATES. (a) The Registrar shall keep or cause to be
kept, at the office or agency maintained pursuant to Section 5.08, a
Securities Register in which, subject to such reasonable regulations as it
may prescribe, the Registrar shall provide for the registration of
Preferred Securities Certificates and the registration of transfers and
exchanges of Preferred Securities Certificates as herein provided. The
Bank of New York shall be the initial Registrar. The Securities Register
shall be open for inspection by the Administrative Trustees and the
Depositor at all reasonable times.
(b) Upon surrender for registration of transfer of any Preferred
Securities Certificate at the office or agency maintained pursuant to
Section 5.08, any one of the Administrative Trustees, on behalf of the
Trust, shall execute by manual or facsimile signature, cause the Transfer
Agent or its agent to countersign (if executed on behalf of the Trust by
facsimile signature) and deliver (or cause the Transfer Agent to deliver),
in the name of the designated transferee or transferees, one or more new
Preferred Securities Certificates in authorized denominations of a like
aggregate Liquidation Amount. At the option of a Holder, any Preferred
Securities Certificate may be exchanged for one or more new Preferred
Securities Certificates in authorized denominations and of a like aggregate
Liquidation Amount upon surrender of the Preferred Securities Certificates
to be exchanged at the office or agency maintained pursuant to Section
5.08.
(c) Every Preferred Securities Certificate presented or
surrendered for registration of transfer or exchange shall be accompanied
by a written instrument of transfer in form satisfactory to the
Administrative Trustees and the Transfer Agent duly executed by the Holder
or such Holder's attorney duly authorized in writing. The Trust shall not
be required to (i) issue, register the transfer of, or exchange any
Preferred Securities Certificate during a period beginning at the opening
of business 15 calendar days before the day of mailing of a notice of
redemption of any Preferred Securities called for redemption and ending at
the close of business on the day of such mailing or (ii) register the
transfer of or exchange any Preferred Securities Certificate so selected
for redemption, in whole or in part, except the unredeemed portion of any
such Preferred Securities Certificate being redeemed in part.
(d) No service charge shall be made for any registration of
transfer or exchange of Preferred Securities Certificates, but the Transfer
Agent may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Preferred Securities Certificates.
SECTION 5.04. MUTILATED, DESTROYED, LOST OR STOLEN TRUST
SECURITIES CERTIFICATES. If any mutilated Trust Securities Certificate
shall be surrendered to the Transfer Agent, the Administrative Trustees or
any one of them shall execute by manual or facsimile signature, cause the
Transfer Agent to countersign and deliver (or cause the Transfer Agent to
deliver), in exchange for such mutilated Trust Security Certificate, a new
Trust Securities Certificate of like class, tenor and denomination. If (i)
the Transfer Agent shall receive evidence to its satisfaction of the
destruction, loss or theft of any Trust Securities Certificate and (ii)
there shall be delivered to the Transfer Agent and the Administrative
Trustees such security or indemnity as may be required by them to save each
of them and the Depositor harmless, then in the absence of notice that such
Trust Securities Certificate shall have been acquired by a bona fide
purchaser, any one of the Administrative Trustees, on behalf of the Trust,
shall execute by manual or facsimile signature, cause the Transfer Agent to
countersign (if executed on behalf of the Trust by facsimile signature) and
deliver (or cause the Transfer Agent to deliver), in exchange for or in
lieu of any such destroyed, lost or stolen Trust Securities Certificate, a
new Trust Securities Certificate of like class, tenor and denomination. In
connection with the issuance of any new Trust Securities Certificate under
this Section, the Administrative Trustees or the Transfer Agent may require
the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith. Any duplicate Trust
Securities Certificate issued pursuant to this Section shall constitute
conclusive evidence of an ownership interest in the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.
SECTION 5.05. CANCELLATION BY REGISTRAR. All Trust Securities
Certificates surrendered for payment, redemption, registration of transfer
or exchange shall, if surrendered to any Person other than the Registrar,
be delivered to the Registrar and, if not theretofore canceled, shall be
promptly canceled by the Registrar. No Trust Securities Certificates shall
be issued in lieu of or in exchange for any Trust Securities Certificates
canceled as provided in this Section, except as expressly permitted by this
Trust Agreement. All canceled Trust Securities Certificates held by the
Registrar shall be disposed of in accordance with customary practices.
SECTION 5.06. PERSONS DEEMED SECURITYHOLDERS. Prior to due
presentation of a Preferred Securities Certificate for registration of
transfer, the Trustees and the Registrar shall be entitled to treat the
Person in whose name any Preferred Securities Certificate shall be
registered in the Securities Register as the Holder of such Preferred
Securities Certificate for the purpose of receiving Distributions and for
all other purposes whatsoever, and neither the Trustee nor the Registrar
shall be bound by any notice to the contrary.
SECTION 5.07. LIST OF SECURITYHOLDERS. Semiannually, not later
than June 1 and December 1 in each year, commencing June 1, 1997, and at
such other times as the Property Trustee may request in writing, the
Depositor or the Administrative Trustees shall furnish or cause to be
furnished to the Property Trustee information as to the names and addresses
of the Holders, and the Property Trustee shall preserve such information
and similar information received by it in any other capacity and afford to
the Holders access to information so preserved by it, all to such extent,
if any, and in such manner as shall be required by the Trust Indenture Act;
provided, however, that no such list need be furnished so long as the
Property Trustee shall be the Registrar.
SECTION 5.08. MAINTENANCE OF OFFICE OR AGENCY. The
Administrative Trustees shall maintain in the Borough of Manhattan, The
City of New York, an office or offices or agency or agencies where
Preferred Securities Certificates may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Trustees
in respect of the Trust Securities Certificates may be served. The
Administrative Trustees initially designate The Bank of New York, 101
Barclay Street, Floor 21 West, New York, New York 10286 at its principal
corporate trust office for such purposes. The Administrative Trustees
shall give prompt written notice to the Depositor and to the
Securityholders of any change in the location of the Securities Register or
any such office or agency.
SECTION 5.09. APPOINTMENT OF PAYING AGENT. The Paying Agent
shall make Distributions to Securityholders from the Payment Account and
shall report the amounts of such Distributions to the Administrative
Trustees and the Property Trustee. Any Paying Agent shall have the
revocable power to withdraw funds from the Payment Account for the purpose
of making the Distributions. The Property Trustee shall be entitled to
rely upon a certificate of the Paying Agent stating in effect the amount of
such funds so to be withdrawn and that same are to be applied by the Paying
Agent in accordance with this Section 5.09. The Administrative Trustees or
any one of them may revoke such power and remove the Paying Agent in their
or its sole discretion. The Paying Agent shall initially be The Bank of
New York, and it may choose any co-Paying Agent that is acceptable to the
Administrative Trustees and the Depositor. Any Paying Agent may resign
upon 30 days' written notice to the Administrative Trustees and the
Depositor. In the event that The Bank of New York shall no longer be the
Paying Agent, the Administrative Trustees or any one of them shall appoint
a successor (which shall be a bank or trust company) that is acceptable to
the Property Trustee and the Depositor to act as Paying Agent. The
Administrative Trustees or any one of them shall cause such successor
Paying Agent or any co-Paying Agent appointed to execute and deliver to the
Trustees an instrument in which such Paying Agent shall agree with the
Trustees that such Paying Agent will hold all sums, if any, held by it for
payment to the Securityholders in trust for the benefit of the
Securityholders entitled thereto until such sums shall be paid to such
Securityholders. Each Paying Agent shall return all unclaimed funds to the
Property Trustee, and upon resignation or removal of a Paying Agent such
Paying Agent shall also return all other funds in its possession to the
Property Trustee. The provisions of Sections 8.01 through 8.06 shall apply
to each Paying Agent appointed hereunder.
SECTION 5.10. BOOK-ENTRY SYSTEM. (a) The Administrative
Trustees, at the direction and expense of the Depositor, may from time to
time appoint a Securities Depository or a successor thereto and enter into
a letter of representations or other agreement with such Securities
Depository to establish procedures with respect to the Preferred
Securities. Any Securities Depository shall be a Clearing Agency.
(b) The Depositor and the Trustees covenant and agree to meet
the requirements of a Securities Depository for the Preferred Securities
with respect to required notices and other provisions of the letter of
representations or agreement executed with respect to such Preferred
Securities, including the establishment of record dates for voting
purposes.
(c) Whenever the beneficial ownership of any Preferred
Securities is determined through the books of a Securities Depository, the
requirements in this Trust Agreement of holding, delivering or
transferring, and making payments in respect of, such Preferred Securities
shall be deemed modified with respect to such Preferred Securities to meet
the requirements of the Securities Depository with respect to actions of
the Trustees, the Depositor and the Paying Agent. Any provisions hereof
permitting or requiring delivery of such Preferred Securities shall, while
such Preferred Securities are in a book-entry system, be satisfied by the
notation on the books of the Securities Depository in accordance with
applicable state law.
(d) After a Debenture Event of Default, the Holders of a
majority in Liquidation Preference of the Preferred Securities may
determine to discontinue the use of the book-entry system for the Preferred
Securities.
ARTICLE VI.
VOTING; MEETINGS; ACTIONS TO ENFORCE RIGHTS
SECTION 6.01. VOTING RIGHTS; LIMITATIONS THEREOF. (a)
Securityholders shall be entitled to one vote for each $25 of Liquidation
Amount represented by their Trust Securities in respect of any matter as to
which such Securityholders are entitled to vote.
(b) Except as provided in this Section 6.01, Section 10.03 and
as otherwise required by law, no Holder of Preferred Securities shall have
any right to vote or in any manner otherwise control the administration,
operation and management of the Trust or the obligations of the parties
hereto, nor shall anything herein set forth, or contained in the terms of
the Trust Securities Certificates, be construed so as to constitute the
Securityholders from time to time as partners or members of an association.
(c) So long as any of the Debentures are held by the Property
Trustee, the Property Trustee shall not (i) direct the time, method and
place of conducting any proceeding for, or taking any other action relating
to, any remedy available to the Debenture Trustee, or executing any trust
or power conferred on the Debenture Trustee with respect to such
Debentures, (ii) waive any past default which is waivable under Section 813
of the Subordinated Indenture, (iii) exercise any right to rescind or annul
a declaration that the principal of all the Debentures shall be due and
payable or (iv) consent to any amendment, modification or termination of
the Subordinated Indenture or the Debentures, where such consent shall be
required, without, in each case, obtaining the prior approval of the
Holders of at least 33% in aggregate Liquidation Amount of the Outstanding
Preferred Securities; provided, however, that where a consent under the
Subordinated Indenture would require the consent of each holder of
Debentures affected thereby, no such consent shall be given by the Property
Trustee without the prior written consent of each Holder of Preferred
Securities. The Property Trustee shall not revoke any action previously
authorized or approved by a vote of the Preferred Securities, except
pursuant to a subsequent vote of the Preferred Securities. The Property
Trustee shall notify all Holders of the Preferred Securities of any notice
of default received from the Debenture Trustee with respect to the
Debentures. In addition to obtaining the foregoing approvals of the
Preferred Securities, prior to taking any of the foregoing actions, the
Property Trustee shall, at the expense of the Depositor, obtain an Opinion
of Counsel experienced in such matters to the effect that the contemplated
action will not cause the Trust to fail to be classified as a "grantor
trust" for United States Federal income tax purposes on account of such
action.
SECTION 6.02. PURPOSE FOR WHICH MEETINGS MAY BE CALLED. A
meeting of Securityholders of one or more, or all, series 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 Trust Agreement to be made, given or taken
by Securityholders. No annual meeting of Securityholders is required to be
held.
SECTION 6.03. CALL, NOTICE AND PLACE OF MEETINGS. (a) The
Administrative Trustees may at any time call a meeting of Securityholders
for any purpose specified in Section 6.02, to be held at such time and at
such place in the Borough of Manhattan, The City of New York, or any other
place, as the Administrative Trustees shall determine. 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 1.06, not less than 21 nor more
than 180 days prior to the date fixed for the meeting.
(b) If the Administrative Trustees shall have been requested to
call a meeting of the Securityholders by the Common Securityholder or by
the Holders of 33% in aggregate Liquidation Amount of Preferred Securities
for any purpose specified in Section 6.02, by written request setting forth
in reasonable detail the action proposed to be taken at the meeting, and
the Administrative Trustees 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, then the Common
Securityholder or the Holders of Preferred Securities of 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 Administrative Trustees, for such meeting
and may call such meeting for such purposes by giving notice thereof as
provided in subsection (a) of this Section.
(c) Any meeting of Securityholders shall be valid without notice
if the Holders of all Outstanding Trust Securities are present in person or
by proxy and the Administrative Trustees are present, or if notice is
waived in writing before or after the meeting by the Holders of all
Outstanding Trust Securities, or by such of them as are not present at the
meeting in person or by proxy, and by the Administrative Trustees.
SECTION 6.04. PERSONS ENTITLED TO VOTE AT MEETINGS. To be
entitled to vote at any meeting of Securityholders a Person shall be (a)
subject to Section 5.10(b) hereof, a Holder of one or more Outstanding
Preferred Securities, or (b) a Person appointed by an instrument in
writing as proxy for a Holder or Holders of one or more Outstanding
Preferred Securities by such Holder or Holders. The only Persons who
shall be entitled to attend any meeting of Securityholders shall be the
Persons entitled to vote at such meeting and their counsel, the
Administrative Trustees, any representatives of the Property Trustee
and its counsel and any representatives of the Depositor and its counsel.
SECTION 6.05. QUORUM; ACTION. (a) The Persons entitled to vote
a majority in aggregate Liquidation Amount of the Outstanding Preferred
Securities shall constitute a quorum for a meeting of Securityholders;
provided, however, that if any action is to be taken at such meeting which
this Trust Agreement expressly provides may be taken by the Holders of a
specified percentage, which is less than a majority in aggregate
Liquidation Amount of the Outstanding Preferred Securities, the Persons
entitled to vote such specified percentage in Liquidation Amount of the
Outstanding Preferred Securities 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 Preferred
Securities, 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
6.06(e), notice of the reconvening of any meeting adjourned for more than
30 days shall be given as provided in Section 6.03(a) not less than 10 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 aggregate Liquidation Amount of the
Outstanding Preferred Securities which shall constitute a quorum.
(b) Except as limited by Section 10.03, 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 Liquidation Amount of the Outstanding
Preferred Securities; 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 aggregate Liquidation Amount of the Outstanding
Preferred Securities, 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 aggregate
Liquidation Amount of the Outstanding Preferred Securities.
(c) Any resolution passed or decision taken at any meeting of
Securityholders duly held in accordance with this Section shall be binding
on all Securityholders, whether or not present or represented at the
meeting.
SECTION 6.06. ATTENDANCE AT MEETINGS; DETERMINATION OF VOTING
RIGHTS; CONDUCT AND ADJOURNMENT OF MEETINGS. (a) Attendance at meetings
of Securityholders 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 Trust 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 (except as provided in Section
104(g)).
(b) Notwithstanding any other provisions of this Trust
Agreement, the Administrative Trustees may make such reasonable regulations
as they may deem advisable for any meeting of Securityholders in regard to
proof of the holding of such Preferred 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 appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Trust Securities and the
appointment of any proxy shall be proved in the manner specified in Section
1.04. 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 1.04 or other proof.
(c) The Administrative Trustees shall, by an instrument in
writing, appoint a temporary chairman of the meeting, unless the meeting
shall have been called by the Common Securityholder or by Preferred
Securityholders as provided in Section 6.03, in which case the Common
Securityholder or the Preferred Securityholders calling the meeting, as the
case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be
elected by vote of the Persons entitled to vote a majority in aggregate
Liquidation Amount of the Outstanding Preferred Securities represented at
the meeting.
(d) No vote shall be cast or counted at any meeting in respect
of any Preferred 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 Trust Security or
proxy.
(e) Any meeting duly called pursuant to Section 6.03 at which a
quorum is present may be adjourned from time to time by Persons entitled to
vote a majority in aggregate Liquidation Amount of the Outstanding
Preferred Securities; and the meeting may be held as so adjourned without
further notice.
SECTION 6.07. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Securityholders
shall be by written ballots on which shall be subscribed the signatures of
the Securityholders or of their representatives by proxy and the
Liquidation Amounts and serial numbers of the Outstanding Trust Securities
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
Securityholders shall be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or more
persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was given as provided in Section
6.03. 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 Depositor, and another to the Property Trustee to be
preserved by the Property 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 6.08. ACTION WITHOUT MEETING. In lieu of a vote of
Securityholders at a meeting as hereinbefore contemplated in this Article,
any request, demand, authorization, direction, notice, consent, waiver or
other action may be made, given or taken by Securityholders by written
instruments as provided in Section 1.04.
SECTION 6.09. INSPECTION OF RECORDS. Subject to Section 5.07
concerning access to the list of Securityholders, upon reasonable notice to
the Administrative Trustees and the Property Trustee, the records of the
Trust shall be open to inspection by any Securityholder during normal
business hours for any purpose reasonably related to such Securityholder's
interest as a Securityholder.
SECTION 6.10. ACTIONS TO ENFORCE RIGHTS. (a) If the Property
Trustee should fail to enforce its rights against the Depositor under the
Debentures or this Trust Agreement, a Holder of Preferred Securities may
institute a legal proceeding, to the fullest extent permitted by law,
directly against the Depositor to enforce the Property Trustee's rights
under the Debentures or this Trust Agreement, without first instituting any
legal proceeding against the Property Trustee or any other person. A
Holder of Preferred Securities also may directly institute a proceeding for
enforcement of payment to such Holder directly of principal of or interest
on the Debentures having a principal amount equal to the aggregate
Liquidation Amount of the Preferred Securities of such Holder on or after
the due dates specified in the Debentures. In connection with any such
proceeding, the Depositor will be subrogated to the rights of any Holder of
Preferred Securities to the extent of any payment made by the Depositor to
such Holder.
(b) So long as any Preferred Securities remain Outstanding, if,
upon a Debenture Event of Default, the Debenture Trustee fails, or the
holders of not less than 33% in principal amount of the outstanding
Debentures fail, to declare the principal of all of the Debentures to be
immediately due and payable, the Holders of at least 33% in Liquidation
Amount of the Preferred Securities then Outstanding shall have such right
by a notice in writing to the Depositor and the Debenture Trustee; and upon
any such declaration such principal amount of and the accrued interest on
all of the Debentures shall become immediately due and payable.
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES OF THE PROPERTY
TRUSTEE AND THE DELAWARE TRUSTEE
SECTION 7.01. PROPERTY TRUSTEE. The Property Trustee hereby
represents and warrants for the benefit of the Depositor and the
Securityholders that:
(i) the Property Trustee is a banking corporation or trust
company duly organized, validly existing and in good standing under the
laws of the State of New York;
(ii) the Property Trustee has full corporate power, authority
and legal right to execute, deliver and perform its obligations under this
Trust Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Agreement;
(iii) this Trust Agreement has been duly authorized, executed
and delivered by the Property Trustee and constitutes the valid and legally
binding agreement of the Property Trustee enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles;
(iv) the execution, delivery and performance by the Property
Trustee of this Trust Agreement will not violate, conflict with or
constitute a breach of the Property Trustee's charter or by-laws; and
(v) neither the authorization, execution or delivery by the
Property Trustee of this Trust Agreement nor the consummation of any of the
transactions by the Property Trustee contemplated herein require the
consent or approval of, the giving of notice to, the registration with or
the taking of any other action with respect to any governmental authority
or agency under any existing Federal or New York law governing the banking
or trust powers of the Property Trustee.
SECTION 7.02. DELAWARE TRUSTEE. The Delaware Trustee represents
and warrants for the benefit of the Depositor and the Securityholders that:
(i) the Delaware Trustee is a banking corporation or trust
company duly organized, validly existing and in good standing under the
laws of the State of Delaware;
(ii) the Delaware Trustee has full corporate power, authority
and legal right to execute, deliver and perform its obligations under this
Trust Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Agreement;
(iii) this Trust Agreement has been duly authorized, executed
and delivered by the Delaware Trustee and constitutes the valid and legally
binding agreement of the Delaware Trustee enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles;
(iv) the execution, delivery and performance by the Delaware
Trustee of this Trust Agreement will not violate the Delaware Trustee's
charter or by-laws; and
(v) neither the authorization, execution or delivery by the
Delaware Trustee of this Trust Agreement nor the consummation of any of the
transactions by the Delaware Trustee contemplated herein require the
consent or approval of, the giving of notice to, the registration with or
the taking of any other action with respect to any governmental authority
or agency under any existing Federal or Delaware law governing the banking
or trust powers of the Delaware Trustee.
ARTICLE VIII.
THE TRUSTEES
SECTION 8.01. CERTAIN DUTIES AND RESPONSIBILITIES. (a) The
duties and responsibilities of the Trustees shall be restricted to those
set forth in the express provisions of this Trust Agreement and, in the
case of the Property Trustee, as provided in the Trust Indenture Act, and
no implied covenants or obligations shall be read into this Trust Agreement
against any of the Trustees. No provision of this Trust Agreement shall
require any of the Trustees 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. Notwithstanding anything contained in this Trust Agreement to the
contrary, the duties and responsibilities of the Property Trustee under
this Trust Agreement shall be subject to the protections, exculpations and
limitations on liability afforded to the Property Trustee under this Trust
Agreement, the Trust Indenture Act, the Delaware Business Trust Act and, to
the extent applicable, Rule 3a-7 under the Investment Company Act, or any
successor rule thereunder. Whether or not therein expressly so provided,
every provision of this Trust Agreement relating to the conduct or
affecting the liability of or affording protection to the Trustees shall be
subject to the provisions of this Section.
(b) All payments made by the Property Trustee or a Paying Agent
in respect of the Trust Securities shall be made only from the income and
proceeds from the Trust Property and only to the extent that there shall be
sufficient income or proceeds from the Trust Property to enable the
Property Trustee or Paying Agent to make payments in accordance with the
terms hereof. Each Securityholder, by its acceptance of a Trust Security,
agrees that it will look solely to the income and proceeds from the Trust
Property to the extent available for distribution to it as herein provided
and that the Trustees are not personally liable to it for any amount
distributable in respect of any Trust Security or for any other liability
in respect of any Trust Security. This Section 8.01(b) does not limit the
liability of the Trustees expressly set forth elsewhere in this Trust
Agreement or, in the case of the Property Trustee, in the Trust Indenture
Act.
(c) All duties and responsibilities of the Property Trustee
contained in this Trust Agreement are subject to the following:
(i) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Trust
Property shall be to deal with such property in a similar manner
as the Property Trustee deals with similar property for its own
account, subject to the protections and limitations on liability
afforded to the Property Trustee under this Trust Agreement, the
Trust Indenture Act, the Delaware Business Trust Act and, to the
extent applicable, Rule 3a-7 under the Investment Company Act;
(ii) the Property Trustee shall have no duty or liability
for or with respect to the value, genuineness, existence or
sufficiency of the Trust Property or the payment of any taxes or
assessments levied thereon or in connection therewith;
(iii) the Property Trustee shall not be liable for any
interest on any money received by it except as it may otherwise
agree with the Depositor. Money held by the Property Trustee
need not be segregated from other funds held by it except in
relation to the Payment Account established by the Property
Trustee pursuant to this Trust Agreement and except to the extent
otherwise required by law; and
(iv) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the
Depositor with their respective duties under this Trust
Agreement, nor shall the Property Trustee be liable for the
default or misconduct of the Administrative Trustees or the
Depositor.
(d) No Administrative Trustee shall be liable for any act or
omission to act hereunder, except for his or her own gross negligence or
willful misconduct.
SECTION 8.02. CERTAIN NOTICES. (a) Within five Business Days
after the occurrence of any Event of Default known to the Property Trustee,
the Property Trustee shall give notice of such Event of Default to the
Securityholders in the manner and to the extent provided in Section 1.06,
unless such Event of Default shall have been cured or waived; provided,
however, that in the case of any default of the character specified in
clause (iv) of the definition of Event of Default, no such notice to
Holders shall be given until at least 45 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.
(b) Within Five Business Days after receipt of notice of the
Depositor's exercise of its right to defer the payment of interest on the
Debentures pursuant to the Subordinated Indenture, an Administrative
Trustee shall transmit, in the manner and to the extent provided in
Sections 1.05 and 1.06, notice of such exercise to the Securityholders and
the Property Trustee.
SECTION 8.03. CERTAIN RIGHTS OF PROPERTY TRUSTEE. Subject to
the provisions of Section 8.01 and to the applicable provisions of the
Trust Indenture Act:
(i) the Property Trustee may rely and shall be protected in
acting or refraining from acting in good faith upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, appraisal, bond,
debenture, note, other evidence of indebtedness or other paper or
document reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(ii) any request or direction of the Depositor mentioned
herein shall be sufficiently evidenced by a written request or
order signed with the name of the Depositor by an Authorized
Officer and delivered to the Property Trustee, or as otherwise
expressly provided herein, and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution;
(iii) whenever in the administration of this Trust
Agreement the Property Trustee shall deem it desirable that a
matter be proved or established prior to taking, suffering or
omitting any action hereunder, the Property Trustee (unless other
evidence be herein specifically prescribed) may, in the absence
of bad faith on its part, rely upon an Officer's Certificate;
(iv) the Property Trustee may consult with counsel, and the
written advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon;
(v) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Trust
Agreement at the request or direction of any Securityholder
pursuant to this Trust Agreement, unless such Securityholder
shall have offered to the Property Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might
be incurred by it in compliance with such request or direction;
(vi) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note or
other evidence of indebtedness or other paper or document, but
the Property Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see
fit, and, if the Property Trustee shall determine to make such
further inquiry or investigation, it shall (subject to applicable
legal requirements) be entitled to examine, during normal
business hours, the books, records and premises of the Depositor,
personally or by agent or attorney;
(vii) the Property 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 Property
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;
(viii) the Property 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
Trust Agreement, except for any such action taken, suffered or
omitted to be taken due to the gross negligence or willful
misconduct of the Property Trustee;
(ix) the Property Trustee shall not be charged with
knowledge of any default or Event of Default with respect to the
Trust Securities unless either (A) a responsible officer of the
Property Trustee shall have actual knowledge of the default or
Event of Default or (B) written notice of such default or Event
of Default shall have been given to the Property Trustee by the
Depositor, the Administrative Trustees or by any Securityholder;
(x) no provision of this Trust Agreement shall be deemed to
impose any duty or obligation on the Property Trustee to perform
any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it in any jurisdiction in which it shall
be illegal, or in which the Property Trustee shall be unqualified
or incompetent in accordance with applicable law, to perform any
such act or acts or to exercise any such right, power, duty or
obligation; and no permissive or discretionary power or authority
available to the Property Trustee shall be construed to be a
duty;
(xi) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including
any financing or continuation statement or any securities) (or
any rerecording, refiling or reregistration thereof);
(xii) the Property Trustee shall have the right at any
time to seek instructions concerning the administration of this
Trust Agreement from any court of competent jurisdiction; and
(xiii) whenever in the administration of this Trust
Agreement the Property Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or
taking any other action hereunder the Property Trustee (a) may
request instructions from the Securityholders, which instructions
may only be given by the Holders of the same amount of the Trust
Securities as would be entitled to direct the Property Trustee
under the terms of this Trust Agreement in respect of such
remedies, rights or actions, (b) may refrain from enforcing such
remedy or right or taking such other action until such
instructions are received, and (c) shall be protected in acting
in accordance with such instructions.
SECTION 8.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES. The recitals contained herein and in the Trust Securities
Certificates shall be taken as the statements of the Trust, and the
Trustees do not assume any responsibility for their correctness. The
Trustees make no representations as to the title to, or value or condition
of, the property of the Trust or any part thereof, nor as to the validity
or sufficiency of this Trust Agreement or the Trust Securities. The
Trustees shall not be accountable for the use or application by the Trust
of the proceeds of the sale of the Trust Securities in accordance with
Section 2.09.
SECTION 8.05. MAY HOLD SECURITIES. Any Trustee or any agent of
any Trustee or the Trust, in its individual or any other capacity, may
become the owner or pledgee of Trust Securities and, subject to Sections
8.08 and 8.13, may otherwise deal with the Trust with the same rights it
would have if it were not a Trustee or such agent.
SECTION 8.06. COMPENSATION; FEES; INDEMNITY. (a) The Depositor
shall:
(i) pay to the Trustees from time to time reasonable
compensation for all services rendered by the Trustees hereunder
(which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(ii) except as otherwise expressly provided herein, reimburse
the Trustees upon request for all reasonable expenses, disbursements
and advances reasonably incurred or made by the Trustees in accordance
with any provision of this Trust Agreement (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except to the extent that any such expense, disbursement or
advance as may be attributable to its negligence (gross negligence, in
the case of any Administrative Trustee), bad faith or willful
misconduct; and
(iii) indemnify each Trustee for, and to hold each Trustee
harmless against, any and all loss, damage, claims, liability or
expense incurred by it, arising out of or in connection with the
acceptance or administration of this Trust Agreement, including the
reasonable 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, except to the extent that any such
expense, disbursement or advance as may be attributable to its
negligence (gross negligence, in the case of any Administrative
Trustee), bad faith or willful misconduct; and
(b) As security for the performance of the obligations of the
Depositor under this Section, each of the Trustees shall have a lien prior
to the Trust Securities upon all property and funds held or collected by
such Trustee as such, except funds held in trust for the payment of
Distributions on the Trust Securities.
(c) In addition to the rights provided to each Trustee pursuant
to the provisions of the paragraph (b) of this Section 806, when a Trustee
incurs expenses or renders services in connection with an Event of Default
resulting from a Bankruptcy Event with respect to the Trust, 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.
(d) The provisions of this Section shall survive the termination
of this Trust Agreement.
SECTION 8.07. CERTAIN TRUSTEES REQUIRED; ELIGIBILITY. (a) There
shall at all times be a Property Trustee hereunder with respect to the
Trust Securities. The Property Trustee shall be a Person that has a
combined capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. If at any time the Property
Trustee with respect to the Trust Securities shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article
VIII.
(b) There shall at all times be one or more Administrative
Trustees hereunder with respect to the Trust Securities. Each
Administrative Trustee shall be either a natural person who is at least 21
years of age or a legal entity that shall act through one or more persons
authorized to bind such entity.
(c) There shall at all times be a Delaware Trustee with respect
to the Trust Securities. The Delaware Trustee shall either be (i) a
natural person who is at least 21 years of age and a resident of the State
of Delaware or (ii) a legal entity with its principal place of business in
the State of Delaware that otherwise meets the requirements of applicable
Delaware law and that shall act through one or more persons authorized to
bind such entity.
SECTION 8.08. CONFLICTING INTERESTS. If the Property Trustee
shall have or shall acquire a conflicting interest within the meaning of
the Trust Indenture Act, it shall either eliminate such conflicting
interest or resign to the extent, in the manner and with the effect, and
subject to the conditions, provided in the Trust Indenture Act and this
Trust Agreement. The Subordinated Indenture and the Guarantee Agreement
shall be deemed to be specifically described in this Trust Agreement for
the purposes of clause (i) of the first proviso contained in Section 310(b)
of the Trust Indenture Act.
SECTION 8.09. CO-TRUSTEES AND SEPARATE TRUSTEE. (a) Unless an
Event of Default shall have occurred and be continuing, at any time or
times, for the purpose of meeting the legal requirements of the Trust
Indenture Act or of any jurisdiction in which any part of the Trust
Property may at the time be located, the Depositor and the Property Trustee
shall have power to appoint, and upon the written request of the Property
Trustee or the Holders of at least 33% of the aggregate Liquidation Amount
of Outstanding Preferred Securities, the Depositor shall for such purpose
join with the Property Trustee in the execution, delivery, and performance
of all instruments and agreements necessary or proper to appoint, one or
more Persons approved by the Property Trustee either to act as co-trustee,
jointly with the Property Trustee, of all or any part of such Trust
Property, or to act as separate trustee of any such property, in either
case with such powers as may be provided in the instrument of appointment,
and to vest in such Person or Persons in the capacity aforesaid, any
property, title, right or power deemed necessary or desirable, subject to
the other provisions of this Section. If the Depositor does not join in
such appointment within 15 days after the receipt by it of a request so to
do, or in case a Debenture Event of Default has occurred and is continuing,
the Property Trustee alone shall have power to make such appointment.
(b) Should any written instrument from the Depositor be required
by any co-trustee or separate trustee so appointed for more fully
confirming to such co-trustee or separate trustee such property, title,
right, or power, any and all such instruments shall, on request, be
executed, acknowledged, and delivered by the Depositor.
(c) Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the
following terms, namely:
(i) The Trust Securities shall be executed and delivered
and all rights, powers, duties, and obligations hereunder in
respect of the custody of securities, cash and other personal
property held by, or required to be deposited or pledged with,
the Trustees designated for such purpose hereunder, shall be
exercised, solely by such Trustees.
(ii) The rights, powers, duties, and obligations hereby
conferred or imposed upon the Property Trustee in respect of any
property covered by such appointment shall be conferred or
imposed upon and exercised or performed by the Property Trustee
or by the Property Trustee and such co-trustee or separate
trustee jointly, as shall be provided in the instrument
appointing such co-trustee or separate trustee, except to the
extent that under any law of any jurisdiction in which any
particular act is to be performed, the Property Trustee shall be
incompetent or unqualified to perform such Act, in which event
such rights, powers, duties, and obligations shall be exercised
and performed by such co-trustee or separate trustee.
(iii) The Property Trustee at any time, by an instrument
in writing executed by it, with the written concurrence of the
Depositor, may accept the resignation of or remove any co-trustee
or separate trustee appointed under this Section 8.09, and, in
case a Debenture Event of Default has occurred and is continuing,
the Property Trustee shall have power to accept the resignation
of, or remove, any such co-trustee or separate trustee without
the concurrence of the Depositor. Upon the written request of
the Property Trustee, the Depositor shall join with the Property
Trustee in the execution, delivery, and performance of all
instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or
separate trustee so resigned or removed may be appointed in the
manner provided in this Section.
(iv) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the
Trustee, or any other such trustee hereunder.
(v) The Property Trustee shall not be liable by reason of
any act of a co-trustee or separate trustee.
(vi) Any Act of Holders delivered to the Property Trustee
shall be deemed to have been delivered to each such co-trustee
and separate trustee.
SECTION 8.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of any 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 the
requirements of Section 8.11.
(b) Any Trustee may resign at any time with respect to the Trust
Securities by giving written notice thereof to the Securityholders. If the
instrument of acceptance by a successor Trustee required by Section 8.11
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 Trust Securities.
(c) Unless an Event of Default shall have occurred and be
continuing, any Trustee may be removed at any time by Act of the Common
Securityholder. If an Event of Default shall have occurred and be
continuing, any Trustee may be removed at such time by Act of the Holders
of a majority in aggregate Liquidation Amount of the Outstanding Preferred
Securities, delivered to such Trustee (in its individual capacity and on
behalf of the Trust).
(d) If a Trustee shall resign, be removed or become incapable of
continuing to act as Trustee at a time when no Event of Default shall have
occurred and be continuing, the Common Securityholder, by Act of the Common
Securityholder delivered to such Trustee, shall promptly appoint a
successor Trustee, and the Trustee so succeeded shall comply with the
applicable requirements of Section 8.11. If any Trustee shall resign, be
removed or become incapable of continuing to act as Trustee at a time when
an Event of Default shall have occurred and be continuing, the Preferred
Securityholders, by Act of the Holders of a majority in aggregate
Liquidation Amount of the Outstanding Preferred Securities delivered to
such Trustee, shall promptly appoint a successor Trustee, and the Trustee
so succeeded shall comply with the applicable requirements of Section 8.11.
If no successor Trustee shall have been so appointed by the Securityholders
and accepted appointment in the manner required by Section 8.11, any
Securityholder who has been a Securityholder 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.
(e) A retiring Trustee shall give notice thereof and of the
appointment of its successor Trustee to all Securityholders in the manner
provided in Section 1.06 and shall give notice to the Depositor. Each
notice shall include the name and address of the successor Trustee with
respect to the Trust Securities and the Trust and, in the case of the
Property Trustee, the address of its Corporate Trust Office.
(f) Notwithstanding the foregoing or any other provision of this
Trust Agreement, (i) in the event any Administrative Trustee or a Delaware
Trustee who is a natural person dies or becomes incompetent or
incapacitated, the vacancy created by such death, incompetence or
incapacity may be filled by (A) the unanimous act of remaining
Administrative Trustees if there are at least two of them or (B) otherwise
by the Depositor (with the successor in each case being an individual or a
corporation which satisfies the eligibility requirement for Administrative
Trustees or Delaware Trustee, as the case may be, set forth in Section
8.07); and (ii), in the event the Depositor reasonably believes that any
Administrative Trustee who is a natural person has become incompetent or
incapacitated, the Depositor, by notice to the remaining Trustees, may
terminate the status of such person as an Administrative Trustee (in which
case the vacancy so created will be filled in accordance with the preceding
clause).
SECTION 8.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. (a) In
case of the appointment hereunder of a successor Trustee, the successor
Trustee shall execute, acknowledge and deliver to the Trust and to the
retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective
and the 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 Depositor or the successor
Trustee, the retiring Trustee shall, upon payment of its expenses by the
Depositor, execute and deliver an instrument transferring to the successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall
duly assign, transfer and deliver to the successor Trustee all property and
money held by the retiring Trustee hereunder, subject, nevertheless, to the
retiring Trustee's prior lien provided for in Section 8.06.
(b) In case of the appointment hereunder of a successor Trustee,
the retiring Trustee and the successor Trustee shall execute and deliver an
amendment hereto wherein the successor Trustee shall accept such
appointment and which shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, the successor
Trustee all the rights, powers, trusts and duties of the retiring Trustee.
(c) Upon request of any successor Trustee, the retiring Trustee
shall execute any and all instruments for more fully and certainly vesting
in and confirming to the successor Trustee all such rights, powers and
trusts referred to in the first or second preceding paragraph, as the case
may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance the successor Trustee shall be qualified and
eligible under this Article VIII.
SECTION 8.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS. Any Person into which the Property Trustee or the Delaware
Trustee or any Trustee that is not a natural person may be merged or
converted or with which it may be consolidated, or any Person resulting
from any merger, conversion or consolidation to which such Trustee shall be
a party, or any Person succeeding to all or substantially all the corporate
trust business of such Trustee, shall be the successor of such Trustee
hereunder, provided such Person shall be otherwise qualified and eligible
under this Article VIII, without the execution or filing of any paper or
any further act on the part of any of the parties hereto.
SECTION 8.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
DEPOSITOR OR TRUST. If the Property Trustee shall be or become a creditor
of the Trust, the Depositor or any other obligor upon the Trust Securities
or the Debentures (other than by reason of a relationship described in
Section 311(b) of the Trust Indenture Act), the Property Trustee shall be
subject to any and all applicable provisions of the Trust Indenture Act
regarding the collection of claims against the Trust, the Depositor or such
other obligor. For purposes of Section 311(b) of the Trust Indenture Act:
(a) 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;
(b) the term "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Depositor 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 Depositor arising from the making, drawing,
negotiating or incurring of the draft, bill of exchange, acceptance or
obligation.
SECTION 8.14. REPORTS BY PROPERTY TRUSTEE, TRUST AND DEPOSITOR.
Not later than July 31 in each year, commencing July 31, 1997, the Property
Trustee shall transmit to the Holders and the Commission a report, dated as
of the next preceding May 31 with respect to any events and other matters
described in Section 313(a) of the Trust Indenture Act, in such manner and
to the extent required by the Trust Indenture Act. The Property Trustee
shall transmit to the Holders and the Commission, and the Depositor and the
Administrative Trustees, on behalf of the Trust, shall file with the
Property Trustee (within 30 days after filing with the Commission in the
case of reports which pursuant to the Trust Indenture Act must be filed
with the Commission and furnished to the Property Trustee) and transmit to
the Holders, such other information, reports and other documents, if any,
at such times and in such manner, as shall be required by the Trust
Indenture Act.
SECTION 8.15. NUMBER OF TRUSTEES. (a) The number of Trustees
shall be five, provided that the Depositor, by written instrument, may
increase or decrease the number of Administrative Trustees.
(b) If a Trustee ceases to hold office for any reason and the
number of Administrative Trustees is not reduced pursuant to this Section
8.15, or if the number of Trustees is increased pursuant to this Section
8.15, the vacancy shall be filled with a Trustee appointed in accordance
with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not
operate to annul the Trust. Whenever a vacancy in the number of
Administrative Trustees shall occur, until such vacancy is filled by the
appointment of an Administrative Trustee in accordance with Section 8.10,
the Administrative Trustees in office, regardless of their number (and
notwithstanding any other provision of this Agreement), shall have all the
powers granted to the Administrative Trustees and shall discharge all the
duties imposed upon the Administrative Trustees by this Trust Agreement.
SECTION 8.16. DELEGATION OF POWER. (a) Any Administrative
Trustee may, by power of attorney consistent with applicable law, delegate
to any other natural person over the age of 21 his or her power for the
purpose of executing any documents contemplated in Section 2.05(a),
including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing; and
(b) the Administrative Trustees shall have power to delegate
from time to time to such of their number the doing of such things and the
execution of such instruments either in the name of the Trust or the names
of the Administrative Trustees or otherwise as the Administrative Trustees
may deem expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of the Trust, as set forth
herein.
SECTION 8.17. FIDUCIARY DUTY. (a) To the extent that, at law
or in equity, an Indemnified Person has duties (including fiduciary duties)
and liabilities relating thereto to the Trust or to any other Covered
Person, an Indemnified Person acting under this Trust Agreement shall not
be liable to the Trust or to any other Covered Person for its good faith
reliance on the provisions of this Trust Agreement. The provisions of this
Trust Agreement, to the extent that they restrict the duties and
liabilities of an Indemnified Person otherwise existing at law or in equity
(other than the duties imposed on the Property Trustee under the Trust
Indenture Act), are agreed by the parties hereto to replace such other
duties and liabilities of such Indemnified Person;
(b) Unless otherwise expressly provided herein, and subject to
the provisions of the Trust Indenture Act:
(i) whenever a conflict of interest exists or arises
between an Indemnified Person and the Trust or any Covered
Person; or
(ii) whenever this Trust Agreement or any other agreement
contemplated herein provides that an Indemnified Person shall act
in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any Securityholder, the Indemnified
Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative
interest of each party (including its own interest) to such
conflict, agreement, transaction or situation and the benefits
and burdens relating to such interests, any customary or accepted
industry practices, and any applicable generally accepted
accounting practices or principles. In the absence of bad faith
by the Indemnified Person, the resolution, action or terms so
made, taken or provided by the Indemnified Person shall not
constitute a breach of this Trust Agreement or any other
agreement contemplated herein or of any duty or obligation of the
Indemnified Person at law or in equity or otherwise; and
(c) Unless otherwise expressly provided herein, and subject to
the provisions of the Trust Indenture Act, whenever in this Trust Agreement
an Indemnified Person is permitted or required to make a decision
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to consider
such interests and factors as it desires, including its own
interests, and shall have no duty or obligation to give any
consideration to any interest of or factors affecting the Trust
or any other Person; or
(ii) in its "good faith" or under another express standard,
the Indemnified Person shall act under such express standard and,
to the extent permitted by applicable law, shall not be subject
to any other or different standard.
ARTICLE IX.
TERMINATION AND LIQUIDATION
SECTION 9.01. TERMINATION UPON EXPIRATION DATE. The Trust shall
automatically terminate on the Expiration Date, if not terminated prior to
such date pursuant to Section 9.02, and, thereupon, the Property Trustee
shall liquidate the Trust in accordance with Section 9.04.
SECTION 9.02. EARLY TERMINATION. Upon the first to occur of
(such first occurrence an "Early Termination Event"):
(i) a Bankruptcy Event or the dissolution or liquidation of
the Depositor;
(ii) the redemption of all of the Preferred Securities;
(iii) the receipt by the Property Trustee of a written
direction from the Depositor to terminate the Trust (which
direction may be given at any time and is wholly within the
discretion of the Depositor); and
(iv) the entrance by a court of competent jurisdiction of an
order for judicial termination of the Trust;
the Trust shall terminate and the Property Trustee shall liquidate the
Trust in accordance with Section 9.04.
SECTION 9.03. TERMINATION. The respective obligations and
responsibilities of the Trust and the Trustees created hereby shall
terminate upon the latest to occur of the following: (i) the distribution
by the Property Trustee to Securityholders of (A) Debentures upon the
liquidation of the Trust pursuant to Section 9.04, or (B) of all amounts
required to be distributed hereunder upon the final payment of the Trust
Securities upon the redemption of all of the Trust Securities pursuant to
Section 4.02; (ii) the payment of all amounts due to creditors of the
Trust; and (iii) the discharge of all administrative duties of the
Administrative Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders.
SECTION 9.04. LIQUIDATION. (a) If an Early Termination Event
specified in clause (i), (iii) or (iv) of Section 9.02 shall occur, subject
to Section 9.04(d), after satisfaction of all amounts due to creditors of
the Trust, the Trust shall be liquidated by the Property Trustee by
promptly distributing to each Securityholder a Like Amount of Debentures.
Notice of liquidation shall be given by the Administrative Trustees by
first-class mail, postage prepaid, mailed not later than 30 nor more than
60 days prior to the Liquidation Date to each Holder of Trust Securities at
such Holder's address appearing in the Securities Register. All notices of
liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the
Trust Securities will no longer be deemed to be outstanding and
any Trust Securities Certificates not surrendered for exchange
will be deemed to represent a Like Amount of Debentures; and
(iii) provide such information with respect to the
mechanics by which Holders may exchange Trust Securities
Certificates for Debentures, or, in the case of a liquidation
under Section 9.04(d), receive a Liquidation Distribution, as the
Property Trustee shall deem appropriate.
(b) In order to effect the distribution of the Debentures to
Securityholders, the Property Trustee shall establish a record date for
such distribution (which shall be not more than 45 days prior to the
Liquidation Date) and, either itself acting as exchange agent or through
the appointment of a separate exchange agent, shall establish such
procedures as it shall deem appropriate to effect the distribution of
Debentures in exchange for the outstanding Trust Securities Certificates.
(c) After the Liquidation Date, (i) the Trust Securities will no
longer be deemed to be outstanding, (ii) certificates representing a Like
Amount of Debentures will be issued to Holders of Trust Securities
Certificates, upon surrender of Trust Securities certificates to the
Property Trustee or its agent for exchange, (iii) the Depositor shall use
best efforts to have the Debentures listed on The New York Stock Exchange
or on such other stock exchange or other organization as the Preferred
Securities are then listed or traded, (iv) any Trust Securities Certificate
not so surrendered for exchange will be deemed to represent a Like Amount
of Debentures, accruing interest at the rate provided for in the Debentures
from the last Distribution Date on which a Distribution was made on such
Trust Securities Certificate until such Certificate shall be so surrendered
(and until such Certificate shall be so surrendered, no payments of
interest and principal received by the Property Trust with respect to a
Like Amount of Debentures represented by such Certificate will be made to
the Holder of such Certificate), and (v) all rights of Securityholders will
cease, except the right to receive Debentures and payments of interest and
principal received by the Trustee with respect to the Debentures
represented by Trust Securities Certificates not surrendered for exchange
upon surrender of Trust Securities Certificates.
(d) In the event that, notwithstanding the other provisions of
this Section 9.04, whether because of an order for termination entered by a
court of competent jurisdiction or otherwise, distribution of the
Debentures in the manner provided herein is determined by the Property
Trustee not to be practical, the Trust Property shall be liquidated, and
the Trust shall be dissolved, woundup or terminated, by the Property
Trustee in such manner as the Property Trustee shall determine. In such
event, on the date of the dissolution, windingup or other termination of
the Trust, Securityholders will be entitled to receive out of the assets of
the Trust available for distribution to Securityholders, after satisfaction
of all amounts due to creditors of the Trust, an amount equal to the
Liquidation Amount per Trust Security plus accumulated and unpaid
Distributions thereon to the date of payment (such amount being the
"Liquidation Distribution"). If, upon any such dissolution, winding up or
termination, the Liquidation Distribution can be paid only in part because
the Trust has insufficient assets available to pay in full the aggregate
Liquidation Distribution, the amounts payable by the Trust on the Trust
Securities shall be paid on a pro rata basis (based upon Liquidation
Amounts); provided, however, that if an Event of Default has occurred and
is continuing or if an Event of Default has not occurred solely by reason
of a requirement that time lapse or notice be given, the Liquidation
Distribution with respect to the Preferred Securities shall be made in full
prior to the making of any distribution with respect to the Common
Securities.
ARTICLE X.
MISCELLANEOUS PROVISIONS
SECTION 10.01. GUARANTEE BY THE DEPOSITOR AND ASSUMPTION OF
OBLIGATIONS. Subject to the terms and conditions hereof, the Depositor
irrevocably and unconditionally guarantees to each Person to whom the Trust
is now or hereafter becomes indebted or liable (the "Beneficiaries"), and
agrees to assume liability for, the full payment, when and as due, of any
and all Obligations (as hereinafter defined) to such Beneficiaries. As
used herein, "Obligations" means any indebtedness, expenses or liabilities
of the Trust, other than (i) obligations of the Trust to pay to Holders the
amounts due such Holders pursuant to the terms of the Trust Securities.
This guarantee and assumption is intended to be for the benefit of, and to
be enforceable by, all such Beneficiaries, whether or not such
Beneficiaries have received notice hereof.
SECTION 10.02. LIMITATION OF RIGHTS OF SECURITYHOLDERS. The
death or incapacity of any person having an interest, beneficial or
otherwise, in a Trust Security shall not operate to terminate this Trust
Agreement, nor entitle the legal representatives or heirs of such person or
any Securityholder for such person, to claim an accounting, take any action
or bring any proceeding in any court for a partition or winding up of the
arrangements contemplated hereby, nor otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
SECTION 10.03. AMENDMENT. (a) This Trust Agreement may be
amended from time to time by a majority of the Administrative Trustees and
the Depositor, without the consent of any Securityholders, (i) to cure any
ambiguity, correct or supplement any provision herein or therein which may
be inconsistent with any other provision herein or therein, or to make any
other provisions with respect to matters or questions arising under this
Trust Agreement, (ii) to modify, eliminate or add to any provisions of this
Trust Agreement to such extent as shall be necessary to ensure that the
Trust will not be classified for United States Federal income tax purposes
other than as a "grantor trust" at any time that any Trust Securities are
outstanding or to ensure the Trust's exemption from the status of an
"investment company" under the Investment Company Act or (iii) to effect
the acceptance of a successor Trustee's appointment; provided, however,
that, except in the case of clause (ii), such action shall not adversely
affect in any material respect the interests of any Securityholder and, in
the case of clause (i), any amendments of this Trust Agreement shall become
effective when notice thereof is given to the Securityholders.
(b) Except as provided in Section 10.03(c), any provision of
this Trust Agreement may be amended by a majority of the Administrative
Trustees and the Depositor with the consent of a majority of the aggregate
Liquidation Amount of Trust Securities then outstanding and receipt by the
Trustees of an Opinion of Counsel to the effect that such amendment or the
exercise of any power granted to the Trustees in accordance with such
amendment will not affect the Trust's status as a grantor trust for United
States Federal income tax purposes or the Trust's exemption from status of
an "investment company" under the Investment Company Act.
(c) In addition to and notwithstanding any other provision in
this Trust Agreement, without the consent of each affected Securityholder
(such consent being obtained in accordance with Article VI), this Trust
Agreement may not be amended to (i) reduce the Liquidation Amount of any
Trust Security, (ii) change the amount or timing of any Distribution on the
Trust Securities or otherwise adversely affect the amount of any
Distribution required to be made in respect of the Trust Securities as of a
specified date, (iii) restrict the right of a Securityholder to institute
suit for the enforcement of any such payment on or after such date, (iv)
reduce the percentage in Liquidation Amount of the Outstanding Preferred
Securities, the consent of whose Holder is required for any amendment of
this Trust Agreement or any waiver of compliance with any provision of this
Trust Agreement and any default hereunder and its consequences, or (v)
change the provisions of this subsection.
(d) Notwithstanding any other provisions of this Trust
Agreement, no Trustee shall enter into or consent to any amendment to this
Trust Agreement which would cause the Trust to fail or cease to qualify for
the exemption from status of an "investment company" under the Investment
Company Act, afforded by Rule 3a-5 thereunder.
(e) Notwithstanding anything in this Trust Agreement to the
contrary, without the consent of the affected party, this Trust Agreement
may not be amended in a manner which imposes any additional obligation on
the Depositor or any Trustee.
(f) In the event that there shall be any amendment to this Trust
Agreement the Administrative Trustees shall promptly provide to the
Depositor a copy of such amendment.
(g) The Trustees are entitled to receive an Opinion of Counsel
as conclusive evidence that any amendment to this Trust Agreement executed
pursuant to this Section 10.03 is authorized or permitted by, and conforms
to, the terms of this Section 10.03, has been duly authorized by and
lawfully executed and delivered on behalf of the other requisite parties,
that it is proper for the Trustees under the provisions of this Section
10.03 to join in the execution thereof, and that such amendment or the
exercise of any power granted to the Trustees in accordance with such
amendment will not affect the Trust's status as a grantor trust for United
States Federal income tax purposes.
SECTION 10.04. AGREEMENT NOT TO PETITION. Each of the Trustees
and the Depositor agrees for the benefit of the Securityholders that, until
at least one year and one day after the Trust has been terminated in
accordance with Article IX, it shall not file, or join in the filing of, a
petition against the Trust under any bankruptcy, reorganization,
arrangement, insolvency, liquidation or other similar law (including,
without limitation, the United States Bankruptcy Code) (collectively,
"Bankruptcy Laws") or otherwise join in the commencement of any proceeding
against the Trust under any Bankruptcy Law. In the event the Depositor
takes action in violation of this Section 10.04, the Property Trustee
agrees, for the benefit of Securityholders, that it shall file an answer
with the bankruptcy court or otherwise properly contest the filing of such
petition by the Depositor against the Trust or the commencement of such
action and raise the defense that the Depositor has agreed in writing not
to take such action and should be stopped and precluded therefrom and such
other defenses, if any, as counsel for the Property Trustee or the Trust
may assert. The provisions of this Section 10.04 shall survive the
termination of this Trust Agreement.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY
OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE
UNCONDITIONAL ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A
BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS
OF THIS TRUST AGREEMENT AND THE SUBORDINATION PROVISIONS AND OTHER TERMS OF
THE GUARANTEE AND THE INDENTURE AND SHALL CONSTITUTE THE AGREEMENT OF THE
TRUST, SUCH SECURITYHOLDER AND SUCH OTHERS THAT THOSE TERMS AND PROVISIONS
SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH
SECURITYHOLDER AND SUCH OTHERS.
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Amended and Restated Trust
Agreement to be duly executed, all as of the day and year first above
written.
THE MONTANA POWER COMPANY
By: /s/ J. P. Pederson
---------------------------------------
Vice President and Chief Financial
and Information Officer
THE BANK OF NEW YORK,
as Property Trustee
By: /s/ Robert E. Patterson III
---------------------------------------
Title: ROBERT E. PATTERSON III
Assistant Vice President
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By: /s/ Catherine Marsh
----------------------------------------
Title: CATHERINE MARSH, PRESIDENT & COO
/s/ J. P. Pederson
----------------------------------------
J. P. Pederson, solely in his capacity
as Administrative Trustee
/s/ E. M. Senechal
----------------------------------------
E. M. Senechal, solely in her capacity
as Administrative Trustee
/s/ P. K. Merrell
------------------------------------------
P. K. Merrell, solely in her capacity
as Administrative Trustee
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST
OF
MONTANA POWER CAPITAL I
THIS CERTIFICATE OF TRUST of Montana Power Capital I (the
"Trust"), dated as of October 15, 1996, is being duly executed and filed
by the undersigned, as trustees, to form a business trust under the
Delaware Business Trust Act (12 Del. C. Section 3801, et seq.).
------- ------
1. Name. The name of the business trust being formed hereby is
Montana Power Capital I.
2. Delaware Trustee. The name and business address of the
trustee of the Trust with a principal place of business in the State of
Delaware is The Bank of New York (Delaware), White Clay Center, Newark,
New Castle County, Delaware 19711.
3. Effective Date. This Certificate of Trust shall be effective
as of its filing.
IN WITNESS WHEREOF, the undersigned, being the only trustees of
the Trust, have executed this Certificate of Trust as of the date first
above written.
THE BANK OF NEW YORK (DELAWARE), /s/ Ellen M. Senechal,
not in its individual capacity ----------------------------------
but solely as Trustee not in his individual
but solely as Trustee
By: /s/ Melissa J. Bieneduce
----------------------------
Name: Melissa J. Bieneduce
Title: Assistant Vice President
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Trustee
By: /s/ Robert E. Patterson III
----------------------------
Name: ROBERT E. PATTERSON III
Title: Assistant Vice President
<PAGE>
EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number: Number of Common Securities:
Certificate Evidencing Common Securities
of
Montana Power Capital I
Common Securities
(liquidation amount $25 per Common Security)
Montana Power Capital I, a statutory business trust formed under
the laws of the State of Delaware (the "Trust"), hereby certifies that The
Montana Power Company (the "Holder") is the registered owner of the number
set forth above of the common securities of the Trust, representing
undivided beneficial interests in the assets of the Trust and designated
the Common Securities (liquidation amount $25 per Common Security) (the
"Common Securities"). Except as provided in Section 5.02 of the Trust
Agreement (as defined below) the Common Securities are not transferable
and any attempted transfer hereof shall be void. The designations,
rights, privileges, restrictions, preferences and other terms and
provisions of the Common Securities are set forth in, and this
certificate and the Common Securities represented hereby are issued and
shall in all respects be subject to the terms and provisions of, the
Amended and Restated Trust Agreement of the Trust, dated as of November 1,
1996, as the same may be amended from time to time (the "Trust
Agreement"), including the designation of the terms of the Common
Securities as set forth therein. The Trust will furnish a copy of the
Trust Agreement to the holder of this certificate without charge upon
written request to the Trust at its principal place of business or
registered office.
Upon receipt of this certificate, the holder of this certificate
is bound by the Trust Agreement and is entitled to the benefits thereunder.
<PAGE>
IN WITNESS WHEREOF, an Administrative Trustee of the Trust has
executed this certificate for and on behalf of the Trust on this ___ day
of ________ , 199_ .
Montana Power Capital I
By:
------------------------------------------
not in his (her) individual capacity
but solely as Administrative Trustee
<PAGE>
EXHIBIT C
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of ________ __ , 199_, between The Montana
Power Company, a Montana corporation ("Montana Power"), and Montana Power
Capital I, a Delaware business trust (the "Trust").
WHEREAS, the Trust intends to issue and sell its preferred
securities (the "Preferred Securities") and to apply the proceeds of such
sale to the purchase from Montana Power of Montana Power's Junior
Subordinated Debentures;
NOW, THEREFORE, in consideration of the acceptance of the
Preferred Securities by each holder thereof, which acceptance Montana Power
acknowledges shall benefit Montana Power and which acceptance Montana Power
acknowledges will be made in reliance upon the execution and delivery of
this Agreement, Montana Power, and the Trust hereby agree as follows:
ARTICLE I
Section 1.01. Assumption by Montana Power. Subject to the terms
---------------------------
and conditions hereof, Montana Power hereby irrevocably and unconditionally
assumes the full payment, when and as due, of any and all Obligations (as
hereinafter defined) to each person or entity to whom the Trust is now or
hereafter becomes indebted or liable (the "Beneficiaries"). As used
herein, "Obligations" means any indebtedness, expenses or liabilities of
the Trust, other than obligations of the Trust to pay to holders of any
Trust Securities the amounts due such holders pursuant to the terms of the
Trust Securities. This Agreement is intended to be for the benefit of,
and to be enforceable by, all such Beneficiaries, whether or not such
Beneficiaries have received notice hereof.
Section 1.02. Term of Agreement. This Agreement shall terminate
-----------------
and be of no further force and effect upon the date on which there are no
Beneficiaries remaining; provided, however, that this Agreement shall
continue to be effective or shall be reinstated, as the case may be, if at
any time any Beneficiary must restore payment of any sum paid on account of
any Obligation, under this Agreement for any reason whatsoever. This
Agreement is continuing, irrevocable, unconditional and absolute.
Section 1.03. Waiver of Notice. Montana Power hereby waives (i)
----------------
notice of acceptance of this Agreement and of any Obligation to which it
may apply, and (ii) presentment, demand for payment, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices
and demands.
Section 1.04. No Impairment. The obligations, covenants,
-------------
agreements and duties of Montana Power under this Agreement shall in no way
be affected or impaired by reason of the happening from time to time of any
of the following:
(a) the extension of time for the payment by the Trust of all or
any portion of the Obligations or for the performance of any other
obligation under, arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part
of the Beneficiaries to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Beneficiaries with respect to the
Obligations or any action on the part of the Trust granting indulgence or
extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale
of any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the Trust
or any of the assets of the Trust.
Neither the Trust nor any Beneficiary shall have any obligation to give
notice to, or obtain the consent of, Montana Power with respect to the
happening of any of the foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce this
-----------
Agreement directly against Montana Power, and Montana Power waives any
right or remedy to require that any action be brought against the Trust or
any other person or entity before proceeding against Montana Power.
ARTICLE II
Section 2.01. Binding Effect. All of the obligations,
--------------
covenants, agreements and duties contained in this Agreement shall bind the
successors, assigns, receivers, trustees and representatives of Montana
Power.
Section 2.02. Amendment. So long as there shall remain any
---------
Beneficiary or any Preferred Securities shall be outstanding, this
Agreement shall not be modified or amended in any manner adverse to such
Beneficiary or to the holders of the Preferred Securities.
Section 2.03. Notices. Any notice, request or other
-------
communication required or permitted to be given hereunder shall be given in
writing by delivering the same against receipt therefor by facsimile
transmission (confirmed by mail), telex or by registered or certified mail,
addressed as follows (and if so given, shall be deemed given when mailed or
upon receipt of an answer-back, if sent by telex), to wit:
Montana Power Capital I
c/o The Montana Power Company
40 East Broadway
Butte, Montana 59701-9989
Facsimile No.: (406) 497-3018
Attention: Administrative Trustees
The Montana Power Company
40 East Broadway
Butte, Montana 59701-9989
Facsimile No.: (406 497-3018
Attention: Treasurer
Section 2.04 THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
(WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES).
THIS AGREEMENT is executed as of the day and year first above
written.
THE MONTANA POWER COMPANY
By:
---------------------------------------------
Name:
Title:
MONTANA POWER CAPITAL I
By:
--------------------------------------------
not in his individual capacity, but solely
as Administrative Trustee
---------------------------------------------
not in her individual capacity, but solely
as Administrative Trustee
---------------------------------------------
not in his individual capacity, but solely
as Administrative Trustee
<PAGE>
EXHIBIT D
[Clearing Agency Legend]
Certificate Number: Number of Preferred Securities:
CUSIP NO.
Certificate Evidencing Preferred Securities
of
Montana Power Capital I
8.45% Cumulative Quarterly Income Preferred Securities, Series A
(liquidation amount $25 per Preferred Security)
Montana Power Capital I, a statutory business trust formed under
the laws of the State of Delaware (the "Trust"), hereby certifies that
____________ (the "Holder") is the registered owner of the number set forth
above of the preferred securities of the Trust representing an undivided
beneficial interests in the assets of the Trust and designated as 8.45%
Cumulative Quarterly Income Preferred Securities, Series A (liquidation
amount $25 per Preferred Security) (the "Preferred Securities"). The
Preferred Securities are transferable on the books and records of the
Trust, in person or by a duly authorized attorney, upon surrender of
this certificate duly endorsed and in proper form for transfer as
provided in the Trust Agreement (as defined below). The designations,
rights, privileges, restrictions, preferences and other terms and
provisions of the Preferred Securities are set forth in, and this
certificate and the Preferred Securities represented hereby are issued
and shall in all respects be subject to the terms and provisions of,
the Amended and Restated Trust Agreement of the Trust, dated as of
November 1, 1996, as the same may be amended from time to time (the "Trust
Agreement"). The holder of this certificate is entitled to the benefits of
the Guarantee Agreement of The Montana Power Company, a Montana
corporation, and The Bank of New York, as guarantee trustee, dated as of
November 1, 1996 (the "Guarantee"), to the extent provided therein. The
Trust will furnish a copy of the Trust Agreement and the Guarantee to the
holder of this certificate without charge upon written request to the Trust
at its principal place of business or registered office.
Upon receipt of this certificate, the holder of this certificate
is bound by the Trust Agreement and is entitled to the benefits thereunder.
[If not manually signed by the Administrative Trustee -- This certificate
is not valid unless countersigned by the Transfer Agent and registered by
the Registrar.]
IN WITNESS WHEREOF, one of the Administrative Trustees of the
Trust has executed this certificate for and on behalf of the Trust on this
__ day of _________, 199_.
MONTANA POWER CAPITAL I
By:
----------------------------------------
not in his (her) individual capacity, but
solely as Administrative Trustee
Countersigned by:
-----------------------------------
Transfer Agent
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security to:
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
--------------------------------------------------------------------------
-------------------------------------------------------------------------
------------------------------------------------------------------------
agent to transfer this Preferred Securities Certificate on the books of
the Trust. The agent may substitute another to act for him or her.
Date:
-------------------
Signature:
------------------------------
(Sign exactly as your name appears on the other side of this Preferred
Securities Certificate)
Exhibit 4(g)
GUARANTEE AGREEMENT
Between
The Montana Power Company
(as Guarantor)
and
The Bank of New York
(as Guarantee Trustee)
dated as of
November 1, 1996
<PAGE>
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.01 Definitions . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II TRUST INDENTURE ACT . . . . . . . . . . . . . . . . . . . 4
SECTION 2.01 Conflict With Trust Indenture Act . . . . . . . . . 4
SECTION 2.02 Lists of Holders of Preferred Securities . . . . . . 4
SECTION 2.03 Reports by the Guarantee Trustee and the
Guarantor . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.04 Preferential Collection of Claims Against the
Guarantor . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.05 Compliance Certificates and Opinions . . . . . . . . 5
SECTION 2.06 Events of Default; Waiver . . . . . . . . . . . . . 6
SECTION 2.07 Notice of Event of Default . . . . . . . . . . . . . 6
SECTION 2.08 Conflicting Interests . . . . . . . . . . . . . . . 6
ARTICLE III POWERS, DUTIES, RESPONSIBILITIES AND RIGHTS OF
THE GUARANTEE TRUSTEE . . . . . . . . . . . . . . . . . . 6
SECTION 3.01 Certain Powers, Duties and Responsibilities
of the Guarantee Trustee . . . . . . . . . . . . . 6
SECTION 3.02 Certain Rights of the Guarantee Trustee . . . . . . 7
ARTICLE IV GUARANTEE TRUSTEE . . . . . . . . . . . . . . . . . . . . 9
SECTION 4.01 Guarantee Trustee; Eligibility . . . . . . . . . . . 9
SECTION 4.02 Compensation and Reimbursement . . . . . . . . . . . 10
SECTION 4.03 Appointment, Removal and Resignation of the
Guarantee Trustee . . . . . . . . . . . . . . . . . 10
ARTICLE V GUARANTEE . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 5.01 Guarantee . . . . . . . . . . . . . . . . . . . . . 11
SECTION 5.02 Waiver of Notice and Demand . . . . . . . . . . . . 11
SECTION 5.03 Obligations Not Affected . . . . . . . . . . . . . . 12
SECTION 5.04 Rights of Holders . . . . . . . . . . . . . . . . . 13
SECTION 5.05 Guarantee of Payment . . . . . . . . . . . . . . . . 13
SECTION 5.06 Subrogation . . . . . . . . . . . . . . . . . . . . 13
SECTION 5.07 Independent Obligations . . . . . . . . . . . . . . 13
ARTICLE VI SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 6.01 Subordination . . . . . . . . . . . . . . . . . . . 14
ARTICLE VII TERMINATION . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 7.01 Termination . . . . . . . . . . . . . . . . . . . . 14
ARTICLE VIII MISCELLANEOUS . . . . . . . . . . . . . . . . . . . 14
SECTION 8.01 Successors and Assigns . . . . . . . . . . . . . . . 14
SECTION 8.02 Amendments . . . . . . . . . . . . . . . . . . . . . 15
SECTION 8.03 Notices . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 8.04 Benefit . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 8.05 Interpretation . . . . . . . . . . . . . . . . . . . 16
SECTION 8.06 Governing Law . . . . . . . . . . . . . . . . . . . 17
<PAGE>
CROSS-REFERENCE TABLE
---------------------
Section of Section of
Trust Indenture Act Guarantee
of 1939, as amended Agreement
------------------- ---------
310(a) . . . . . . . . . . . . . . . . . . . . . . . . . 4.01
310(b) . . . . . . . . . . . . . . . . . . . . . . . . . 4.01, 2.08
310(c) . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . 2.04
311(b) . . . . . . . . . . . . . . . . . . . . . . . . . 2.04
311(c) . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . 2.02
312(b) . . . . . . . . . . . . . . . . . . . . . . . . . 2.02
313 . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.03
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . 2.03
314(b) . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(c) . . . . . . . . . . . . . . . . . . . . . . . . . 2.05
314(d) . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(e) . . . . . . . . . . . . . . . . . . . . . . . . . 2.05
314(f) . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . 3.01, 3.02
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . 2.07
315(c) . . . . . . . . . . . . . . . . . . . . . . . . . 3.01
315(d) . . . . . . . . . . . . . . . . . . . . . . . . . 3.01
316(a) . . . . . . . . . . . . . . . . . . . . . . . . . 5.04, 2.06
316(b) . . . . . . . . . . . . . . . . . . . . . . . . . 5.03
317(a) . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
317(b) . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . 2.01
318(b) . . . . . . . . . . . . . . . . . . . . . . . . . 2.01
318(c) . . . . . . . . . . . . . . . . . . . . . . . . . 2.01
_____________
* This Cross-Reference Table does not constitute part of the Guarantee
Agreement and shall not affect the interpretation of any of its terms
or provisions.
<PAGE>
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT ("Guarantee Agreement"), dated as of
November 1, 1996, is executed and delivered by The Montana Power
Company, a Montana corporation (the "Guarantor"), and The Bank of New York,
as trustee (the "Guarantee Trustee"), for the benefit of the Holders (as
defined herein) from time to time of the Preferred Securities (as defined
herein) of Montana Power Capital I, a Delaware statutory business trust
(the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the
"Trust Agreement"), dated as of November 1, 1996 among the Trustees of
the Issuer named therein and The Montana Power Company, as Depositor, the
Issuer is issuing as of the date hereof $65,000,000 aggregate liquidation
amount of its 8.45% Cumulative Quarterly Income Preferred Securities,
Series A (the "Preferred Securities") representing preferred undivided
beneficial ownership interests in the Issuer and having the terms set
forth in the Trust Agreement;
WHEREAS, the Preferred Securities are to be issued for sale by
the Issuer and the proceeds are to be invested in $65,000,000 principal
amount of Debentures (as defined in the Trust Agreement); and
WHEREAS, in order to enhance the value of the Preferred
Securities, the Guarantor desires to irrevocably and unconditionally agree,
to the extent set forth herein, to pay to the Holders (as defined herein)
the Guarantee Payments (as defined herein) and to make certain other
payments on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the purchase of Debentures,
which purchase the Guarantor hereby agrees shall benefit the Guarantor, the
Guarantor executes and delivers this Guarantee Agreement for the benefit of
the Holders from time to time.
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINITIONS.
As used in this Guarantee Agreement, the terms set forth below
shall, unless the context otherwise requires, have the following meanings.
Capitalized or otherwise defined terms used but not otherwise defined
herein shall have the meanings assigned to such terms in the Trust
Agreement as in effect on the date hereof.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of
this definition, "control" when used with respect to any specified Person
means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the
foregoing.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the date of execution and
delivery of this Guarantee Agreement such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act,
then the body, if any, performing such duties at such time.
"Common Securities" means the securities representing common
undivided beneficial ownership interests in the assets of the Issuer.
"Dollar" or "$" means a dollar or other equivalent unit in such
coin or currency of the United States as at the time shall be legal tender
for the payment of public and private debts.
"Event of Default" means a failure by the Guarantor to perform
any of its payment or other obligations under this Guarantee Agreement.
"Guarantee Payments" shall mean the following payments or
distributions, without duplication, with respect to the Preferred
Securities, to the extent not paid or made by or on behalf of the Issuer:
(i) any accrued and unpaid Distributions that are required to be paid on
such Preferred Securities but only if and to the extent that the Property
Trustee has available in the Payment Account funds sufficient to make such
payment, (ii) the Redemption Price with respect to the Preferred Securities
called for redemption by the Issuer but only if and to the extent that the
Property Trustee has available in the Payment Account funds sufficient to
make such payment, (iii) upon a voluntary or involuntary dissolution,
winding-up or termination of the Issuer (unless Debentures are distributed
to the Holders), the lesser of (a) the aggregate of the Liquidation Amount
and all accrued and unpaid Distributions on the Preferred Securities to the
date of payment, and (b) the amount of assets of the Issuer remaining
available for distribution to Holders in liquidation of the Issuer (in
either case, the "Liquidation Distribution").
"Guarantee Trustee" means The Bank of New York until a Successor
Guarantee Trustee has been appointed and has accepted such appointment
pursuant to the terms of this Guarantee Agreement and thereafter means each
such Successor Guarantee Trustee.
"Guarantor Request" means a written request or order signed in
the name of the Guarantor by an Authorized Officer and delivered to the
Guarantee Trustee.
"Holder" shall mean any holder, as registered on the books and
records of the Issuer, of any Preferred Securities then outstanding;
provided, however, that in determining whether the holders of the requisite
percentage of Preferred Securities have given any request, notice, consent
or waiver hereunder, "Holder" shall not include the Guarantor or any
Affiliate of the Guarantor.
"Indenture" means the Indenture dated as of November 1, 1996,
among the Guarantor (the "Debenture Issuer") and The Bank of New York, as
trustee pursuant to which the Debentures are issued.
"Majority in liquidation amount of the Preferred Securities"
means a vote by Holders, voting separately as a class, of more than 50% of
the aggregate liquidation amount of all Preferred Securities.
"Officer's Certificate" means a certificate signed by the
Chairman of the Board, the President, any Vice President, the Treasurer,
any Assistant Treasurer, or any other officer or agent of the Guarantor
duly authorized by the Board of Directors of the Guarantor to act in
respect of matters relating to this Guarantee Agreement, delivered to the
Guarantee Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Guarantor, or other counsel acceptable to the Guarantee
Trustee.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Responsible Officer" means, with respect to the Guarantee
Trustee, any vice-president, any assistant vice-president, the secretary,
any assistant secretary, the treasurer, any assistant treasurer, any trust
officer or assistant trust officer or any other officer of the Corporate
Trust Department of the Guarantee Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer's knowledge
of and familiarity with the particular subject.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section
4.01.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01 CONFLICT WITH TRUST INDENTURE ACT.
If any provision of this Guarantee Agreement limits, qualifies or
conflicts with another provision hereof which is required or deemed to be
included in this Guarantee Agreement by, or is otherwise governed by, any
of the provisions of the Trust Indenture Act, such other provision shall
control; and if any provision hereof otherwise conflicts with the Trust
Indenture Act, the Trust Indenture Act shall control.
SECTION 2.02 LISTS OF HOLDERS OF PREFERRED SECURITIES.
Semiannually, not later than June 1 and December 1 in each year,
commencing June 1, 1997, and at such other times as the Guarantee Trustee
may request in writing, the Guarantor shall furnish or cause to be
furnished to the Guarantee Trustee information as to the names and
addresses of the Holders, and the Guarantee Trustee shall preserve such
information and similar information received by it in any other capacity
and afford to the Holders access to information so preserved by it, all to
such extent, if any, and in such manner as shall be required by the Trust
Indenture Act.
SECTION 2.03 REPORTS BY THE GUARANTEE TRUSTEE AND THE GUARANTOR.
Not later than July 31 in each year, commencing July 31, 1997,
the Guarantee Trustee shall transmit to the Holders and the Commission a
report, dated as of the next preceding May 31, with respect to any events
and other matters described in Section 313(a) of the Trust Indenture Act,
in such manner and to the extent required by the Trust Indenture Act. The
Guarantee Trustee shall transmit to the Holders and the Commission, and the
Guarantor shall file with the Guarantee Trustee (within 30 days after
filing with the Commission in the case of reports which pursuant to the
Trust Indenture Act must be filed with the Commission and furnished to the
Guarantee Trustee) and transmit to the Holders, such other information,
reports and other documents, if any, at such times and in such manner, as
shall be required by the Trust Indenture Act.
SECTION 2.04 PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE
GUARANTOR.
If the Guarantee Trustee shall be or become a creditor of the
Guarantor or any other obligor upon the Preferred Securities (other than by
reason of a relationship described in Section 311(b) of the Trust Indenture
Act), the Guarantee Trustee shall be subject to any and all applicable
provisions of the Trust Indenture Act regarding the collection of claims
against the Guarantor or such other obligor. For purposes of Section
311(b) of the Trust Indenture Act:
(a) 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;
(b) the term "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Guarantor 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 Guarantee Trustee simultaneously with the
creation of the creditor relationship with the Guarantor arising from
the making, drawing, negotiating or incurring of the draft, bill of
exchange, acceptance or obligation.
SECTION 2.05 COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided in this Guarantee
Agreement, upon any application or request by the Guarantor to the
Guarantee Trustee to take any action under any provision of this Guarantee
Agreement, the Guarantor shall, if requested by the Guarantee Trustee,
furnish to the Guarantee Trustee an Officer's Certificate stating that all
conditions precedent, if any, provided for in this Guarantee Agreement
relating to the proposed action (including any covenants compliance with
which constitutes a condition precedent) 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 Guarantee
Agreement relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Guarantee Agreement shall
include:
(a) a statement that each Person 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 Person,
such Person has made such examination or investigation as is
necessary to enable such Person 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
Person, such condition or covenant has been complied with.
SECTION 2.06 EVENTS OF DEFAULT; WAIVER.
The Holders of a Majority in liquidation amount of the Preferred
Securities may, by vote, on behalf of all of the Holders, waive any past
Event of Default and its consequences. Upon such waiver, any such Event of
Default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured, for every purpose of this Guarantee
Agreement, but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
SECTION 2.07 NOTICE OF EVENT OF DEFAULT.
The Guarantee Trustee shall give notice of any Event of Default
hereunder to the Holders of Preferred Securities in the manner and to the
extent required to do so by the Trust Indenture Act, unless such Event of
Default shall have been cured or waived.
SECTION 2.08 CONFLICTING INTERESTS.
If the Guarantee Trustee shall have or acquire any conflicting
interest within the meaning of the Trust Indenture Act, it shall either
eliminate such conflicting interest or resign to the extent, in the manner
and with the effect, and subject to the conditions, provided in the Trust
Indenture Act and this Guarantee Agreement. The Trust Agreement and the
Indenture shall be deemed to be specifically described in this Guarantee
Agreement for the purposes of clause (i) of the first proviso contained in
Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES, RESPONSIBILITIES AND
RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 3.01 CERTAIN POWERS, DUTIES AND RESPONSIBILITIES OF THE
GUARANTEE TRUSTEE.
(a) This Guarantee Agreement shall be held by the Guarantee
Trustee for the benefit of the Holders, and the Guarantee Trustee
shall not transfer this Guarantee Agreement or any rights hereunder to
any Person except a Holder exercising his or her rights pursuant to
Section 5.04 or to a Successor Guarantee Trustee on acceptance by such
Successor Guarantee Trustee of its appointment to act as Successor
Guarantee Trustee. The right, title and interest of the Guarantee
Trustee shall automatically vest in any Successor Guarantee Trustee,
and such vesting and cessation of title shall be effective whether or
not conveyancing documents have been executed and delivered pursuant
to the appointment of such Successor Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the
Guarantee Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders by such appropriate judicial
proceedings as it shall deem most effectual to protect and enforce any
such rights, whether for the specific enforcement of any covenant or
agreement in this Guaranty Agreement or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
(c) The Guarantee Trustee shall have and be subject to all the
duties and responsibilities specified with respect to an indenture
trustee in the Trust Indenture Act and no implied covenants or
obligations shall be read into this Guarantee Agreement against the
Guarantee Trustee.
(d) No provision of this Guarantee Agreement shall require the
Guarantee 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.
(e) Notwithstanding anything contained in this Guarantee
Agreement to the contrary, the duties and responsibilities of the
Guarantee Trustee under this Guarantee Agreement shall be subject to
the protections, exculpations and limitations on liability afforded to
the Guarantee Trustee under this Guarantee Agreement and the Trust
Indenture Act, including those deemed by the Trust Indenture Act to be
included herein.
(f) Whether or not therein expressly so provided, every
provision of this Guarantee Agreement 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 3.02 CERTAIN RIGHTS OF THE GUARANTEE TRUSTEE.
Subject to the provisions of Section 3.01 and to the applicable
provisions of the Trust Indenture Act:
(a) the Guarantee Trustee may rely and shall be protected in
acting or refraining from acting in good faith 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 reasonably 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 Guarantor shall be
sufficiently evidenced by a Guarantor Request, or as otherwise
expressly provided herein, and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Guarantee Agreement
the Guarantee Trustee shall deem it desirable that a matter be proved
or established prior to taking, suffering or omitting any action
hereunder, the Guarantee Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officer's Certificate;
(d) the Guarantee Trustee may consult with counsel and the
written advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(e) the Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Guarantee
Agreement at the request or direction of any Holder pursuant to this
Guarantee Agreement, unless such Holder shall have offered to the
Guarantee 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 Guarantee 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 Guarantee Trustee, in
its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Guarantee Trustee
shall determine to make such further inquiry or investigation, it
shall (subject to applicable legal requirements) be entitled to
examine, during normal business hours, the books, records and premises
of the Guarantor, personally or by agent or attorney;
(g) the Guarantee 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 Guarantee 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 Guarantee Trustee shall not be charged with knowledge of
any Event of Default unless either (1) a Responsible Officer 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
Guarantee Trustee by the Guarantor, any other obligor on the Preferred
Securities or by any Holder of the Preferred Securities; and
(i) no provision of this Guarantee Agreement shall be deemed to
impose any duty or obligation on the Guarantee Trustee to perform any
act or acts or exercise any right, power, duty or obligation conferred
or imposed on it in any jurisdiction in which it shall be illegal, or
in which the Guarantee Trustee shall be unqualified or incompetent in
accordance with applicable law, to perform any such act or acts or to
exercise any such right, power, duty or obligation.
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.01 GUARANTEE TRUSTEE; ELIGIBILITY.
There shall at all times be a Guarantee Trustee hereunder which
shall be
(a) a corporation organized and doing business under the laws
of the United States, any State or Territory thereof or the
District of Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at
least $50,000,000 and subject to supervision or examination by
Federal or State authority, or
(b) if and to the extent permitted by the Commission by rule,
regulation or order upon application, a corporation or other Person
organized and doing business under the laws of a foreign
government, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least
$50,000,000 or the Dollar equivalent of the applicable foreign
currency and subject to supervision or examination by authority of
such foreign government or a political subdivision thereof
substantially equivalent to supervision or examination applicable
to United States institutional trustees,
and, in either case, qualified and eligible under this Article and the
Trust Indenture Act. 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. 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 4.02 COMPENSATION AND REIMBURSEMENT.
The Guarantor agrees:
(a) to pay the Guarantee Trustee from time to time such
reasonable compensation as the Guarantor and the Guarantee 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, to reimburse
the Guarantee Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Guarantee Trustee in
accordance with the provisions of this Guarantee (including the reasonable
compensation and expenses of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence
or bad faith; and
(c) to indemnify each of the Guarantee Trustee and any
predecessor Guarantee Trustee for, and to hold it harmless from and
against, any and all loss, damage, claim, liability or expense, including
taxes (other than taxes based upon the income of the Guarantee Trustee)
incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance of the trust created by, or the
administration of, this Guarantee Agreement, including the costs and
expenses of defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the
Guarantor under this Section, the Guarantee Trustee shall have a lien prior
to the Preferred Securities upon all the property and funds held or
collected by the Guarantee Trustee as such, except funds held in trust for
the payment of principal of, and premium (if any) or interest on,
particular obligations of the Guarantor under this Guarantee Agreement.
The provisions of this Section shall survive the termination of
this Guarantee Agreement.
SECTION 4.03 APPOINTMENT, REMOVAL AND RESIGNATION OF THE
GUARANTEE TRUSTEE.
(a) Subject to Section 4.03(b), unless an Event of Default shall
have occurred and be continuing, the Guarantee Trustee may be appointed or
removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed until a Successor
Guarantee Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Guarantee Trustee and
delivered to the Guarantor.
(c) The Guarantee Trustee appointed to office shall hold office
until a Successor Guarantee Trustee shall have been appointed or until its
removal or resignation. The Guarantee Trustee may resign from office
(without need for prior or subsequent accounting) by an instrument in
writing executed by the Guarantee Trustee and delivered to the Guarantor,
which resignation shall not take effect until a Successor Guarantee Trustee
has been appointed and has accepted such appointment by instrument in
writing executed by such Successor Guarantee Trustee and delivered to the
Guarantor and the resigning Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed
and accepted appointment as provided in this Section 4.03 within 60 days
after delivery to the Guarantor of an instrument of resignation, the
resigning Guarantee Trustee may petition any court of competent
jurisdiction for appointment of a Successor Guarantee Trustee. Such court
may thereupon, after prescribing such notice, if any, as it may deem
proper, appoint a Successor Guarantee Trustee.
(e) The Guarantor shall give notice of each resignation and each
removal of the Guarantee Trustee and each appointment of a successor
Guarantee Trustee to all Holders in the manner provided in Section 8.03
hereof. Each notice shall include the name of the successor Guarantee
Trustee and the address of its Corporate Trust Office.
ARTICLE V
GUARANTEE
SECTION 5.01 GUARANTEE.
The Guarantor irrevocably and unconditionally agrees to pay in
full to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by the Issuer), as and when due, regardless of any
defense, right of set-off or counterclaim which the Issuer may have or
assert. The Guarantor's obligation to make a Guarantee Payment may be
satisfied by direct payment of the required amounts by the Guarantor to the
Holders or by causing the Issuer to pay such amounts to the Holders.
SECTION 5.02 WAIVER OF NOTICE AND DEMAND.
The Guarantor hereby waives notice of acceptance of this
Guarantee Agreement and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first
against the Issuer or any other Person before proceeding against the
Guarantor, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.
SECTION 5.03 OBLIGATIONS NOT AFFECTED.
The obligations, covenants, agreements and duties of the
Guarantor under this Guarantee Agreement shall in no way be affected or
impaired by reason of the happening from time to time of any of the
following:
(a) the release or waiver, by operation of law or otherwise, of
the performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the Preferred
Securities to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all
or any portion of the Distributions, Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the
Preferred Securities or the extension of time for the performance of
any other obligation under, arising out of, or in connection with, the
Preferred Securities (other than an extension of time for payment of
Distributions, Redemption Price, Liquidation Distribution or other sum
payable that results from the extension of any interest payment period
on the Debentures permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders pursuant to the
terms of the Preferred Securities, or any action on the part of the
Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale
of any collateral, receivership, insolvency, bankruptcy, assignment
for the benefit of creditors, reorganization, arrangement, composition
or readjustment of debt of, or other similar proceedings affecting,
the Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor,
it being the intent of this Section 5.03 that the obligations of the
Guarantor hereunder shall be absolute and unconditional under any and
all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain
consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.04 RIGHTS OF HOLDERS.
The Guarantor expressly acknowledges that: (i) this Guarantee
Agreement will be deposited with the Guarantee Trustee to be held for the
benefit of the Holders; (ii) if an Event of Default has occurred and is
continuing, the Guarantee Trustee has the right to enforce this Guarantee
Agreement on behalf of the Holders; (iii) the Holders of a Majority in
liquidation amount of the Preferred Securities have the right to direct the
time, method and place of conducting any proceeding for any remedy
available to the Guarantee Trustee in respect of this Guarantee Agreement
or exercising any trust or power conferred upon the Guarantee Trustee under
this Guarantee Agreement; and (iv) any Holder may institute a legal
proceeding directly against the Guarantor to enforce its rights under this
Guarantee Agreement without first instituting a legal proceeding against
the Issuer or any other person or entity.
SECTION 5.05 GUARANTEE OF PAYMENT.
This Guarantee Agreement creates a guarantee of payment and not
of collection. This Guarantee Agreement will not be discharged except by
payment of the Guarantee Payments in full (without duplication).
SECTION 5.06 SUBROGATION.
The Guarantor shall be subrogated to all (if any) rights of the
Holders against the Issuer in respect of any amounts paid to the Holders by
the Guarantor under this Guarantee Agreement; provided, however, that the
Guarantor shall not (except to the extent required by mandatory provisions
of law) be entitled to enforce or exercise any rights which it may acquire
by way of subrogation or any indemnity, reimbursement or other agreement,
in all cases as a result of payment under this Guarantee Agreement, if, at
the time of any such payment, any amounts of Guarantee Payments are due and
unpaid under this Guarantee Agreement. If any amount shall be paid to the
Guarantor in violation of the preceding sentence, the Guarantor agrees to
hold such amount in trust for the Holders and to pay over such amount to
the Holders.
SECTION 5.07 INDEPENDENT OBLIGATIONS.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Preferred
Securities and that the Guarantor shall be liable as principal and as
debtor hereunder to make Guarantee Payments pursuant to the terms of this
Guarantee Agreement notwithstanding the occurrence of any event referred to
in subsections (a) through (g), inclusive, of Section 5.03.
ARTICLE VI
SUBORDINATION
SECTION 6.01 SUBORDINATION.
This Guarantee Agreement will constitute an unsecured obligation
of the Guarantor and will rank subordinate and junior in right of payment
to all Senior Indebtedness (as defined in the Indenture) of the Guarantor
to the same extent as the Debentures. Nothing in this Section 6.01 shall
apply to claims of, or payments to, the Guarantee Trustee under or pursuant
to Section 4.02 hereof.
ARTICLE VII
TERMINATION
SECTION 7.01 TERMINATION.
This Guarantee Agreement shall terminate and be of no further
force and effect upon: (i) full payment of the Redemption Price of all
Preferred Securities, and all accrued and unpaid Distributions to the date
of redemption, (ii) the distribution of Debentures to Holders in exchange
for all of the Preferred Securities or (iii) full payment of the amounts
payable in accordance with the Trust Agreement upon liquidation of the
Issuer. Notwithstanding the foregoing, this Guarantee Agreement will
continue to be effective or will be reinstated, as the case may be, if at
any time any Holder must restore payment of any sums paid with respect to
Preferred Securities or under this Guarantee Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01 SUCCESSORS AND ASSIGNS.
All guarantees and agreements contained in this Guarantee
Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the
Holders of the Preferred Securities then outstanding. Except in connection
with a consolidation, merger or sale involving the Guarantor that is
permitted under Article Eleven of the Indenture, the Guarantor shall not
assign its obligations hereunder.
SECTION 8.02 AMENDMENTS.
This Guarantee Agreement may be amended only by an instrument in
writing entered into by the Guarantor and the Guarantee Trustee. Except
with respect to any changes which do not adversely affect the rights of
Holders (in which case no consent of Holders will be required), this
Guarantee Agreement may only be amended with the prior approval of the
Holders of not less than 66 2/3% in aggregate liquidation amount of all the
outstanding Preferred Securities. The provisions of Article VI of the
Trust Agreement concerning meetings of Holders shall apply to the giving of
such approval. Nothing herein contained shall be deemed to require that
the Guarantee Trustee enter into any amendment of this Guarantee Agreement.
SECTION 8.03 NOTICES.
Any notice, request or other communication required or permitted
to be given hereunder shall be in writing, duly signed by the party giving
such notice, and delivered, telecopied or mailed by first class mail as
follows:
(a) if given to the Guarantor, to the address set forth below or
such other address as the Guarantor may give notice of to the Holders
of the Preferred Securities:
The Montana Power Company
40 East Broadway
Butte, Montana 59701-9989
Facsimile No: (406) 497-3018
Attention: Treasurer
(b) if given to the Issuer, in care of the Administrative
Trustees, at the Issuer's (and the Administrative Trustee's) address
set forth below or such other address as the Administrative Trustees
on behalf of the Issuer may give notice of to the Holders:
Montana Power Capital I
c/o The Montana Power Company
40 East Broadway
Butte, Montana 59701-9989
Facsimile No: (406) 497-3018
Attention: Administrative Trustees
(c) if given to the Guarantee Trustee, to the address set forth
below or such other address as the Guarantee Trustee may give notice
of to the Holders of the Preferred Securities:
The Bank of New York
101 Barclay Street
21 West
New York, New York 10286
Facsimile No: (212) 815-5915
Attention: Corporate Trust Administration
(d) if given to any Holder, at the address set forth on the
books and records of the Issuer.
All notices hereunder shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first
class mail, postage prepaid except that if a notice or other document is
refused delivery or cannot be delivered because of a changed address of
which no notice was given, such notice or other document shall be deemed to
have been delivered on the date of such refusal or inability to deliver.
SECTION 8.04 BENEFIT.
This Guarantee Agreement is solely for the benefit of the Holders
and, subject to Section 3.01(a), is not separately transferable from the
Preferred Securities.
SECTION 8.05 INTERPRETATION.
In this Guarantee Agreement, unless the context otherwise
requires:
(a) a term defined anywhere in this Guarantee Agreement has the
same meaning throughout;
(b) all references to "the Guarantee Agreement" or "this
Guarantee Agreement" are to this Guarantee Agreement as modified,
supplemented or amended from time to time;
(c) all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement
unless otherwise specified;
(d) a term defined in the Trust Indenture Act has the same
meaning when used in this Guarantee Agreement unless otherwise defined
in this Guarantee Agreement or unless the context otherwise requires;
(e) a reference to the singular includes the plural and vice
versa; and
(f) the masculine, feminine or neuter genders used herein shall
include the masculine, feminine and neuter genders.
SECTION 8.06 GOVERNING LAW.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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.
THIS GUARANTEE AGREEMENT is executed as of the day and year first
above written.
The Montana Power Company
By: /s/ J.P. Pederson
----------------------------------
Name: J.P. Pederson
Title: Vice President and Chief
Financial and Information
Officer
The Bank of New York,
as Guarantee Trustee
By: /s/ Robert E. Patterson III
----------------------------------
Name: Robert E. Patterson III
Title: Assistant Vice President
Exhibit 4(h)
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of November 1, 1996, between The
Montana Power Company, a Montana corporation ("Montana Power"),
and Montana Power Capital I, a Delaware business trust (the
"Trust").
WHEREAS, the Trust intends to issue and sell its
preferred securities (the "Preferred Securities") and to apply
the proceeds of such sale to the purchase from Montana Power of
Montana Power's Junior Subordinated Debentures;
NOW, THEREFORE, in consideration of the acceptance of
the Preferred Securities by each holder thereof, which acceptance
Montana Power acknowledges shall benefit Montana Power and which
acceptance Montana Power acknowledges will be made in reliance
upon the execution and delivery of this Agreement, Montana Power,
and the Trust hereby agree as follows:
ARTICLE I
Section 1.01. Assumption by Montana Power. Subject to
---------------------------
the terms and conditions hereof, Montana Power hereby irrevocably
and unconditionally assumes the full payment, when and as due, of
any and all Obligations (as hereinafter defined) to each person
or entity to whom the Trust is now or hereafter becomes indebted
or liable (the "Beneficiaries"). As used herein, "Obligations"
means any indebtedness, expenses or liabilities of the Trust,
other than obligations of the Trust to pay to holders of any
Trust Securities the amounts due such holders pursuant to the
terms of the Trust Securities. This Agreement is intended to be
for the benefit of, and to be enforceable by, all such
Beneficiaries, whether or not such Beneficiaries have received
notice hereof.
Section 1.02. Term of Agreement. This Agreement shall
-----------------
terminate and be of no further force and effect upon the date on
which there are no Beneficiaries remaining; provided, however,
that this Agreement shall continue to be effective or shall be
reinstated, as the case may be, if at any time any Beneficiary
must restore payment of any sum paid on account of any
Obligation, under this Agreement for any reason whatsoever. This
Agreement is continuing, irrevocable, unconditional and absolute.
Section 1.03. Waiver of Notice. Montana Power hereby
----------------
waives (i) notice of acceptance of this Agreement and of any
Obligation to which it may apply, and (ii) presentment, demand
for payment, protest, notice of nonpayment, notice of dishonor,
notice of redemption and all other notices and demands.
Section 1.04. No Impairment. The obligations,
-------------
covenants, agreements and duties of Montana Power under this
Agreement shall in no way be affected or impaired by reason of
the happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust
of all or any portion of the Obligations or for the performance
of any other obligation under, arising out of, or in connection
with, the Obligations;
(b) any failure, omission, delay or lack of diligence
on the part of the Beneficiaries to enforce, assert or exercise
any right, privilege, power or remedy conferred on the
Beneficiaries with respect to the Obligations or any action on
the part of the Trust granting indulgence or extension of any
kind; or
(c) the voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Trust or any of
the assets of the Trust.
Neither the Trust nor any Beneficiary shall have any obligation
to give notice to, or obtain the consent of, Montana Power with
respect to the happening of any of the foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce
-----------
this Agreement directly against Montana Power, and Montana Power
waives any right or remedy to require that any action be brought
against the Trust or any other person or entity before proceeding
against Montana Power.
ARTICLE II
Section 2.01. Binding Effect. All of the obligations,
--------------
covenants, agreements and duties contained in this Agreement
shall bind the successors, assigns, receivers, trustees and
representatives of Montana Power.
Section 2.02. Amendment. So long as there shall
---------
remain any Beneficiary or any Preferred Securities shall be
outstanding, this Agreement shall not be modified or amended in
any manner adverse to such Beneficiary or to the holders of the
Preferred Securities.
Section 2.03. Notices. Any notice, request or other
-------
communication required or permitted to be given hereunder shall
be given in writing by delivering the same against receipt
therefor by facsimile transmission (confirmed by mail), telex or
by registered or certified mail, addressed as follows (and if so
given, shall be deemed given when mailed or upon receipt of an
answer-back, if sent by telex), to wit:
Montana Power Capital I
c/o The Montana Power Company
40 East Broadway
Butte, Montana 59701-9989
Facsimile No.: (406) 497-3018
Attention: Administrative Trustees
The Montana Power Company
40 East Broadway
Butte, Montana 59701-9989
Facsimile No.: (406) 497-3018
Attention: Treasurer
Section 2.04 THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK (WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES).
<PAGE>
THIS AGREEMENT is executed as of the day and year first
above written.
THE MONTANA POWER COMPANY
By: /s/ J.P. Pederson
------------------------------------
Name: J. P. Pederson
Title: Vice President and Chief
Financial and Information
Officer
MONTANA POWER CAPITAL I
By: /s/ E. M. Senechal
-----------------------------------
E. M. Senechal, not in her
individual capacity, but solely
as Administrative Trustee
EXHIBIT 5(a)
MICHAEL E. ZIMMERMAN
Vice President and General Counsel
The Montana Power Company
40 East Broadway
Butte, Montana 59701
November 29, 1996
The Montana Power Company
40 East Broadway
Butte, MT 59701-9394
Ladies and Gentlemen:
With respect to the Registration Statement on Form S-3
to be filed with the Securities and Exchange Commission pursuant
to the Securities Act of 1933, as amended (the "Act"), on or
about the date hereof, contemplating the issuance and sale by The
Montana Power Company (the "Company") from time to time of
$150,000,000 in principal amount of its Medium-Term Notes,
Series B (the "Notes"), I am of the opinion that:
1. The Company is a corporation duly organized and validly
existing under the laws of the State of Montana and
qualified to do business in the States of Idaho and Wyoming.
2. All action necessary to make the Notes legal, valid, and
binding obligations of the Company in accordance with their
terms, except as limited by the laws and principles of
equity affecting generally the enforcement of creditors'
rights, including, without limitation, bankruptcy and
insolvency laws, will have been taken when:
a. The Company's Registration Statement on Form S-3 shall
have become effective under the Act;
b. The Public Service Commission of the State of Montana
shall have issued an appropriate order or orders
authorizing the issuance and sale of the Notes by the
Company;
<PAGE>
The Montana Power Company
November 29, 1996
Page 2
c. The Company's Board of Directors and the Company's
officers shall have taken such action as may be
necessary to authorize the issuance and sale of the
Notes on the terms set forth in or contemplated by the
Registration Statement; and
d. The specific terms of each Note shall have been
determined, and each Note shall have been issued, sold
and delivered by the Company to the purchasers thereof
against payment therefor, all as contemplated by, and
in conformity with, the Indenture dated as of
December 1, 1989, from the Company to Citibank, N.A.,
as Trustee, and the acts, proceedings and documents
referred to above.
I hereby consent to the use of this opinion as an
exhibit to the Registration Statement and to the use of my name
as counsel therein.
Very truly yours,
/s/ Michael E. Zimmerman
MICHAEL E. ZIMMERMAN
EXHIBIT 5(b)
REID & PRIEST LLP
40 West 57th Street
New York, New York 10019
November 29, 1996
The Montana Power Company
40 East Broadway
Butte, MT 59701
Ladies and Gentlemen:
With respect to the Registration Statement on Form S-3
to be filed with the Securities and Exchange Commission pursuant
to the Securities Act of 1933, as amended (the "Act"), on or
about the date hereof, contemplating the issuance and sale by The
Montana Power Company (the "Company") from time to time of
$150,000,000 in principal amount of its Medium-Term Notes,
Series B (the "Notes"), we are of the opinion that:
1. The Company is a corporation duly organized and validly
existing under the laws of the State of Montana and
qualified to do business in the States of Idaho and Wyoming.
2. All action necessary to make the Notes legal, valid, and
binding obligations of the Company in accordance with their
terms, except as limited by the laws and principles of
equity affecting generally the enforcement of creditors'
rights, including, without limitation, bankruptcy and
insolvency laws, will have been taken when:
a. The Company's Registration Statement on Form S-3 shall
have become effective under the Act;
b. The Public Service Commission of the State of Montana
shall have issued an appropriate order or orders
authorizing the issuance and sale of the Notes by the
Company;
c. The Company's Board of Directors and the Company's
officers shall have taken such action as may be
necessary to authorize the issuance and sale of the
Notes on the terms set forth in or contemplated by the
Registration Statement; and
<PAGE>
The Montana Power Company
November 29, 1996
Page 2
d. The specific terms of each Note shall have been
determined, and each Note shall have been issued, sold
and delivered by the Company to the purchasers thereof
against payment therefor, all as contemplated by, and
in conformity with, the Indenture dated as of
December 1, 1989, from the Company to Citibank, N.A.,
as Trustee, and the acts, proceedings and documents
referred to above.
We are members of the Bar of the State of New York and
do not hold ourselves out as experts on the laws of any other
state. As to all matters relating to the laws of Montana, we
have relied upon an opinion of even date herewith, addressed to
you by Michael E. Zimmerman, Esq., Vice President and General
Counsel of the Company, which is filed as an exhibit to the
Registration Statement.
We hereby consent to the use of this opinion as an
exhibit to the Registration Statement and to the use of our name
as counsel therein.
Very truly yours,
/s/ Reid & Priest LLP
REID & PRIEST LLP
Exhibit 12(a)
THE MONTANA POWER COMPANY
Computation of Ratio of Earnings to Fixed Charges
(Dollars in Thousands)
TWELVE MONTHS
ENDED
SEPTEMBER 30, 1996
------------------
Net Income . . . . $ 72,594
37,983
Income Taxes . . . --------
$110,577
--------
Fixed Charges:
Interest . . . . $ 49,468
Amortization of
Debt Discount,
Expense and
Premium . . . . 1,570
34,585
Rentals . . . . . --------
$ 85,623
--------
Earnings Before
Income Taxes and $196,200
Fixed Charges . . ========
Ratio of Earnings to 2.29X
Fixed Charges . . ========
YEAR ENDED DECEMBER 31,
---------------------------------------------------
1995 1994 1993 1992 1991
---- ---- ---- ---- ----
Net Income . . . $ 59,053 $115,963 $107,196 $107,065 $105,715
21,573 53,152 54,120 45,639 50,394
Income Taxes . . -------- -------- -------- -------- --------
$ 80,626 $169,115 $161,316 $152,704 $156,109
-------- -------- -------- -------- --------
Fixed Charges:
Interest . . . $ 47,330 $ 44,096 $ 48,142 $ 48,810 $ 52,836
Amortization of
Debt Discount,
Expense and
Premium . . . 1,567 1,666 1,768 1,878 1,245
35,300 36,586 36,631 36,905 37,638
Rentals . . . . -------- -------- -------- -------- --------
$ 84,197 $ 82,348 $ 86,541 $ 87,593 $ 91,719
-------- -------- -------- -------- --------
Earnings Before
Income Taxes and $164,823 $251,463 $247,857 $240,297 $247,828
Fixed Charges . ======== ======== ======== ======== ========
Ratio of Earnings 1.96X 3.05X 2.86X 2.74X 2.70X
to Fixed Charges ======== ======== ======== ======== ========
Exhibit 25(a)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an application to determine eligibility of a Trustee
pursuant to Section 305 (b)(2) ____
________________________
CITIBANK, N.A.
(Exact name of trustee as specified in its charter)
13-5266470
(I.R.S. employer
identification no.)
399 Park Avenue, New York, New York 10043
(Address of principal executive office) (Zip Code)
_______________________
The Montana Power Company
(Exact name of obligor as specified in its charter)
Montana 81-0170530
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
40 East Broadway
Butte, Montana 59701-9394
(Address of principal executive offices) (Zip Code)
_________________________
Debt Securities
(Title of the indenture securities)
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Name Address
---- -------
Comptroller of the Currency Washington, D.C.
Federal Reserve Bank of New York New York, NY
33 Liberty Street
New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
None.
Item 16. List of Exhibits.
List below all exhibits filed as a part of this Statement
of Eligibility.
Exhibits identified in parentheses below, on file with
the Commission, are incorporated herein by reference
as exhibits hereto.
Exhibit 1 - Copy of Articles of Association of the Trustee,
as now in effect. (Exhibit 1 to T-1 to Registration
Statement No. 2-79983)
Exhibit 2 - Copy of certificate of authority of the Trustee
to commence business. (Exhibit 2 to T-1 to Registration
Statement No. 2-29577).
Exhibit 3 - Copy of authorization of the Trustee to exercise
corporate trust powers. (Exhibit 3 to T-1 to Registration
Statement No. 2-55519)
Exhibit 4 - Copy of existing By-Laws of the Trustee.
(Exhibit 4 to T-1 to Registration Statement No. 33-34988)
Exhibit 5 - Not applicable.
<PAGE>
Exhibit 6 - The consent of the Trustee required by Section
321(b) of the Trust Indenture Act of 1939. (Exhibit 6 to
T-1 to Registration Statement No. 33-19227.)
Exhibit 7 - Copy of the latest Report of Condition of
Citibank, N.A. (as of September 30, 1996 - attached)
Exhibit 8 - Not applicable.
Exhibit 9 - Not applicable.
__________________
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939,
the Trustee, Citibank, N.A., a national banking association organized
and existing under the laws of the United States of America, 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 29th day of November, 1996.
CITIBANK, N.A.
By /s/P. DeFelice
------------------------
P. DeFelice
Vice President
<PAGE>
Charter No. 1461
Comptroller of the Currency
Northeastern District
REPORT OF CONDITION
CONSOLIDATING
DOMESTIC AND FOREIGN
SUBSIDIARIES OF
CITIBANK, N.A.
of New York in the State of New York, at the close
of business on September 30, 1996, published in
response to call made by Comptroller of the Currency,
under Title 12, United States Code, Section 161.
Charter Number 1461 Comptroller of the Currency
Northeastern District.
ASSETS
THOUSANDS
OF DOLLARS
Cash and balances due from de-
pository institutions:
Noninterest-bearing balances
and currency and coin $ 8,647,000
Interest-bearing balances 13,006,000
Held-to-maturity securities 0
Available-for-sale securities 22,101,000
Federal funds sold and securities
purchased under agreements to
resell in domestic offices of the
bank and of its Edge and Agree-
ment subsidiaries, and in IBFs:
Federal funds sold 4,263,000
Securities purchased under
agreements to resell 370,000
Loans and lease financing receiv-
ables:
Loans and Leases, net of un-
earned income $147,806,000
LESS: Allowance for loan
and lease losses 4,386,000
LESS: Allocated transfer
risk reserve 0
------------
Loans and leases, net of un-
earned income, allowance,
and reserve 143,420,000
Trading assets 24,655,000
Premises and fixed assets (includ-
ing capitalized leases) 3,547,000
Other real estate owned 708,000
Investments in unconsolidated
subsidiaries and associated com-
panies 1,220,000
Customers' liability to this bank
on acceptances outstanding 2,270,000
Intangible assets 105,000
Other assets 7,084,000
-------------
TOTAL ASSETS $ 231,396,000
=============
LIABILITIES
Deposits:
In domestic offices $ 35,623,000
Noninterest-
bearing $ 13,178,000
Interest-
bearing 22,445,000
------------
In foreign offices, Edge and
Agreement subsidiaries, and
IBFs 130,945,000
Noninterest-
bearing 8,792,000
Interest-
bearing 122,153,000
------------
Federal funds purchased and se-
curities sold under agreements
to repurchase in domestic offices
of the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased 1,872,000
Securities sold under agree-
ments to repurchase 398,000
Demand notes issued to
the U.S. Treasury 0
Trading liabilities 17,042,000
Other borrowed money:
With a remaining maturity of one
year or less 9,839,000
With a remaining maturity of more
than one year 4,014,000
Mortgage indebtedness and obli-
gations under capitalized leases 137,000
Bank's liability on acceptances ex-
ecuted and outstanding 2,316,000
Subordinated notes and
debentures 4,700,000
Other liabilities 8,549,000
-------------
TOTAL LIABILITIES $ 215,435,000
=============
Limited-life preferred stock
and related surplus 0
EQUITY CAPITAL
Perpetual preferred stock
and related surplus 0
Common stock $ 751,000
Surplus 6,895,000
Undivided profits and capital re-
serves 8,308,000
Net unrealized holding gains (losses)
on available-for-sale securities 590,000
Cumulative foreign currency
translation adjustments (583,000)
-------------
TOTAL EQUITY CAPITAL $ 15,961,000
-------------
TOTAL LIABILITIES, LIMITED-
LIFE PREFERRED STOCK, AND
EQUITY CAPITAL $ 231,396,000
=============
I, Roger W. Trupin, Controller of the above-
named bank do hereby declare that this
Report of Condition is true and correct to the
best of my knowledge and belief.
ROGER W. TRUPIN
CONTROLLER
We, the undersigned directors, attest to
the correctness of this Report of Condition.
We 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 and is true and correct.
PAUL J. COLLINS
JOHN S. REED
WILLIAM R. RHODES
DIRECTORS
