AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 2, 1999
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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SOUTHERN INDIANA GAS AND ELECTRIC COMPANY
(Exact name of registrant as specified in its charter)
Indiana 35-0672570
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
20 N.W. Fourth Street
Evansville, Indiana 47741-0001
(812) 465-5300
(address, including ZIP code, and telephone number, including area code, of
registrant's principal executive offices)
TIMOTHY L. BURKE, Secretary and Treasurer
Southern Indiana Gas and Electric Company
20 N.W. Fourth Street
Evansville, Indiana 47741-0001
(812) 465-4136
(name, address, including ZIP code, and telephone number, including
area code, of agent for service)
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Copies to:
John H. Byington, Esq. Vincent Pagano, Esq.
Winthrop, Stimson, Putnam & Roberts Simpson Thacher & Bartlett
One Battery Park Plaza 425 Lexington Avenue
New York, New York 10004-1490 New York, NY 10017-3954
Approximate date of commencement of proposed sale to the public:
As soon as practicable 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, please 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 post-effective amendment filed pursuant to Rule 462(e)
under the Securities Act, check the following box and list the Securities Act
registration 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
maximum maximum
Amount to offering aggregate Amount of
Title of each class of be price per offering Registration
securities to be registered registered unit (1) price (1) Fee
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Senior Notes $80,000,000 $80,000,000 $22,240
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First Mortgage Bonds $80,000,000 (2) (2) (2)
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(1) Estimated solely for the purpose of calculating the registration fee.
(2) First Mortgage Bonds will not be issued other than in conjunction with and
as security for a like principal amount of Senior Notes. Consequently,
pursuant to Rule 457(n) under the Securities Act of 1933, no additional
fee is being paid
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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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SUBJECT TO COMPLETION, DATED JULY 2, 1999
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
Prospectus
$80,000,000
SOUTHERN INDIANA GAS AND ELECTRIC COMPANY
Senior Notes
Southern Indiana Gas and Electric Company
20 N.W. Fourth Street
Evansville, Indiana 47741-0001
(812) 465-5300
TERMS OF SALE
The terms for each Senior Note that are not specified in the Prospectus will be
included in a Prospectus Supplement. We may sell the Senior Notes at one or more
times. Initially, we will issue our First Mortgage Bonds to the Note Trustee to
secure payments due on the Senior Notes. When the aggregate principal amount of
our outstanding First Mortgage Bonds (other than Bonds securing these or similar
Notes) does not exceed the greater of five percent of our Net Tangible Assets or
five percent of our Capitalization, the Senior Notes will no longer be secured
by First Mortgage Bonds. The date that the Senior Notes are no longer secured by
First Mortgage Bonds is called the Release Date.
We urge you to carefully read this Prospectus and the Prospectus Supplement,
which will describe the specific terms of the offering, before you make your
investment decision.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this Prospectus is , 1999.
<PAGE>
TABLE OF CONTENTS
WHERE YOU CAN FIND MORE INFORMATION ...........................................2
THE COMPANY ...................................................................2
RECENT DEVELOPMENTS ...........................................................2
PROSPECTUS SUPPLEMENT .........................................................3
USE OF PROCEEDS ...............................................................3
CERTAIN CONSOLIDATED FINANCIAL INFORMATION ....................................3
DESCRIPTION OF SENIOR NOTES ...................................................4
GENERAL .....................................................................4
SECURITY ....................................................................6
RELEASE DATE ................................................................6
LIMITATION OF LIENS .........................................................7
LIMITATIONS ON SALE AND LEASE-BACK TRANSACTIONS .............................9
FORM, EXCHANGE AND TRANSFER ................................................10
PAYMENT AND PAYING AGENTS ..................................................10
REDEMPTION .................................................................11
CONSOLIDATION, MERGER AND SALE OF ASSETS ...................................11
EVENTS OF DEFAULT ..........................................................12
MODIFICATIONS AND WAIVER ...................................................14
DEFEASANCE .................................................................17
RESIGNATION OF SENIOR NOTE TRUSTEE .........................................17
MISCELLANEOUS ..............................................................17
GLOBAL SECURITIES ............................................................18
DESCRIPTION OF FIRST MORTGAGE BONDS ..........................................19
GENERAL ....................................................................19
INTEREST, MATURITY, REDEMPTION AND PAYMENT .................................19
IMPROVEMENT AND SINKING FUND REQUIREMENT ...................................19
MAINTENANCE AND REPLACEMENT REQUIREMENTS ...................................19
PRIORITY AND SECURITY ......................................................20
ISSUANCE OF ADDITIONAL BONDS ...............................................20
LIMITATION ON DIVIDENDS ....................................................21
MODIFICATION OF THE MORTGAGE ...............................................21
REGARDING DEFAULT ..........................................................22
REGARDING THE TRUSTEE ......................................................22
RELEASE AND SUBSTITUTION OF PROPERTY .......................................22
EVIDENCE TO BE FURNISHED TO THE TRUSTEE UNDER THE MORTGAGE .................23
PLAN OF DISTRIBUTION .........................................................23
EXPERTS ......................................................................24
LEGAL OPINIONS ...............................................................24
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WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements, and other
information with the SEC. You may read and copy any document we file at the
SEC's public reference rooms at the following locations: Room 1024, 450 Fifth
Street, NW, Washington, D.C. 20549; Northwest Atrium Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661; and Seven World Trade Center, Suite
1300, New York, N.Y. 10048. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference rooms. Our SEC filings are also available to
the public from the SEC web site at http://www.sec.gov.
The SEC allows us to "incorporate by reference" the information we file with
them, which means that we can disclose important information to you by referring
you to those documents. The information incorporated by reference is considered
to be part of this prospectus, and later information that we file with the SEC
will automatically update and supersede this information. We incorporate by
reference the documents listed below and any future filings made with the SEC
under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934
until we sell all the Senior Notes. This Prospectus is part of a registration
statement we filed with the SEC.
o The Company's Annual Report on Form 10-K for the year ended December 31,
1998.
o The Company's Quarterly Report on Form 10-Q for the quarter ended March
31, 1999.
You should rely only on the information incorporated by reference or provided in
this Prospectus or any supplement. We have not authorized anyone else to provide
you with different information. We are not making an offer of these Senior Notes
in any state where the offer is not permitted. You should not assume that the
information in this Prospectus or any supplement is accurate as of any date
other than the date on the front of those documents.
THE COMPANY
The company is a public utility serving ten counties in southwestern Indiana.
Retail electric service is supplied to Evansville and 74 other cities, towns and
communities, and adjacent rural areas. Wholesale electric service is supplied to
an additional eight communities. Gas service is supplied to Evansville and 64
other nearby communities and their environs. At December 31, 1998, the company
had 124,340 electric customers and 108,335 gas customers.
RECENT DEVELOPMENTS
On June 14, 1999, our parent holding company, SIGCORP, Inc., and Indiana Energy,
Inc. announced that they had signed a definitive merger agreement. Indiana
Energy, Inc. is a holding company whose chief subsidiary is a regulated Indiana
gas utility, Indiana Gas Company, Inc. Subject to the receipt of approval from
their respective shareholders and to necessary regulatory approvals, the two
holding companies will combine into a new holding company to be named Vectren
Corporation. If and when the merger is consummated, Indiana Gas Company, Inc.
and we will become separate subsidiaries of Vectren Corporation. Our obligations
with respect to the Senior Notes and our First Mortgage Bonds will not change.
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PROSPECTUS SUPPLEMENT
The Prospectus Supplement for each offering of Senior Notes will contain the
specific information and terms for that offering. The Prospectus Supplement may
also add, update, or change information contained in this Prospectus. It is
important for you to consider the information contained in this Prospectus and
the Prospectus Supplement in making your investment decision.
USE OF PROCEEDS
We expect to use the net proceeds from the sale of the Senior Notes for the
retirement of short-term debt.
SOUTHERN INDIANA GAS AND ELECTRIC COMPANY
CERTAIN CONSOLIDATED FINANCIAL INFORMATION
(Thousands, except ratios and percentages)
<TABLE>
<CAPTION>
Twelve Months
Year Ended December 31,(1) Ended March 31,
---------------------------------------------------- ---------------
1994 1995 1996 1997 1998 1999
-------- -------- -------- -------- -------- ---------------
<S> <C> <C> <C> <C> <C> <C>
Income Summary: (Unaudited)
Operating Revenues .. $330,035 $338,698 $372,730 $358,106 $364,666 $370,205
Operating Income .... $ 52,367 $ 53,873 $ 60,429 $ 62,456 $ 62,002 $ 61,369
Net Income .......... $ 41,025 $ 45,918 $ 42,841 $ 45,363 $ 43,542 $ 43,012
Net Income Applicable
to Common Stock ..... $ 39,920 $ 44,819 $ 41,744 $ 44,266 $ 42,447 $ 41,922
Ratio of Earnings to
Fixed Charges(2) .... 3.57 3.52 4.03 4.43 4.17 4.27
</TABLE>
At March 31, 1999(3)
------------------------------------------------
Actual As Adjusted(4)
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Capitalization Summary:
Common Stockholder's Equity $324,593 53.0% $324,593 50.1%
Preferred Stock ........... 11,090 1.8 11,090 1.7
Redeemable Preferred Stock 7,500 1.2 7,500 1.2
Special Preferred Stock of
Subsidiary ................ 692 0.2 692 0.1
Long-Term Debt ............ 169,782 27.7 249,782 38.6
Current Maturities
of Long-Term Debt.......... 45,000 7.3 0 0.0
Bonds Subject to Tender.... 53,700 8.8 53,700 8.3
-------- ---- -------- ----
Total Capitalization .... $612,357 100.0% $647,357 100.0%
===================== ======================
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(1) Derived from audited financial information.
(2) "Earnings" for purposes of these calculations have been computed by adding
to "income before extraordinary items" all taxes based on income or
profits, total interest charges and the estimated interest element of
rentals charged to income. "Fixed charges" include total interest charges
and the estimated interest element of rentals.
(3) Reference is made to the Balance Sheets, the Statements of Capitalization
and the Notes to Financial Statements that are contained in the documents
incorporated by reference herein for additional details concerning our
common stock, preferred stock, redeemable preferred stock and long-term
indebtedness, including maturities and interest rates payable on such
long-term indebtedness.
(4) As adjusted figures include our indebtedness represented by the Senior
Notes and the underlying Senior Note First Mortgage Bonds.
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DESCRIPTION OF SENIOR NOTES
GENERAL
We will issue one or more new series of Senior Notes under a Senior Note
Indenture between us and a Senior Note Trustee whom we will name. The
information we are providing you in this Prospectus concerning the Senior Note
Indenture and related documents is only a summary of the information provided in
those documents. You should consult the Senior Notes themselves, the Senior Note
Indenture, any Supplemental Senior Note Indentures and other documents for more
complete information on the Senior Notes. These documents appear as exhibits to
the Registration Statement, or will appear as exhibits to a Current Report on
Form 8-K, which we will file later, and which will be incorporated by reference
into this Prospectus.
Until the Release Date, all of the Senior Notes will be secured by one or more
series of First Mortgage Bonds, which we will issue and deliver to the Senior
Note Trustee. For more information, see "Security" and "Release Date" below.
On the Release Date, the Senior Notes
o will cease to be secured by First Mortgage Bonds;
o will become our unsecured obligations; and
o will rank as equal with our other unsecured indebtedness.
The Senior Note Indenture provides that, in addition to the Senior Notes offered
under this shelf registration process, additional Senior Notes may be issued
later, without limitation as to aggregate principal amount. Before the Release
Date, however, the amount of Senior Notes that we may issue cannot exceed the
amount of First Mortgage Bonds that we are able to issue under the Mortgage. For
more information, see "Description of First Mortgage Bonds --Issuance of
Additional Bonds" below.
You should consult the Prospectus Supplement relating to any particular issue of
Senior Notes for the following information:
o the title of the Senior Notes;
o any limit on aggregate principal amount of the Senior Notes or the series
of which they are a part;
o the date on which the principal of the Senior Notes will be payable;
o the rate, including the method of determination if applicable, at which
the Senior Notes will bear interest, if any; and
-- the date from which any interest will accrue;
-- the dates on which we will pay interest; and
-- the record date for any interest payable on any interest payment
date;
o the place where
-- the principal of, premium, if any, and interest on the Senior Notes
will be payable;
-- you may register transfer of the Senior Notes;
-- you may exchange the Senior Notes;
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-- you may serve notices and demands upon us regarding the Senior
Notes;
o the Security Registrar for the Senior Notes and whether the principal of
the Senior Notes is payable without presentment or surrender of them;
o the terms and conditions upon which we may elect to redeem any Senior
Notes;
o the terms and conditions upon which the Senior Notes must be redeemed or
purchased due to our obligations pursuant to any sinking fund or other
mandatory redemption provisions, or at the holder's option, including any
applicable exceptions to notice requirements;
o the denominations in which we may issue Senior Notes;
o the manner in which we will determine any amounts payable on the Senior
Notes which are to be determined with reference to an index or other fact
or event ascertainable outside the Senior Note Indenture;
o the currency, if other than United States currency, in which payments on
the Senior Notes will be payable;
o terms according to which elections can be made by us or the holder
regarding payments on the Senior Notes in currency other than the currency
in which the notes are stated to be payable;
o the portion of the principal amount of the Senior Notes payable upon
declaration of acceleration of their maturity;
o if payments are to be made on the Senior Notes in securities or other
property, the type and amount of the securities and other property or the
method by which the amount shall be determined;
o the terms applicable to any rights to convert Senior Notes into or
exchange them for our securities or those of any other entity;
o if we issue Senior Notes as Global Securities,
-- any limitations on transfer or exchange rights or the right to
obtain the registration of transfer;
-- any limitations on the right to obtain definitive certificates for
the Senior Notes; and
-- any other matters incidental to the Senior Notes;
o whether we are issuing the Senior Notes as bearer securities;
o any limitations on transfer or exchange of Senior Notes or the right to
obtain registration of their transfer, and the terms and amount of any
service charge required for registration of transfer or exchange;
o any exceptions to the provisions governing payments due on legal holidays,
or any variations in the definition of Business Day, with respect to the
Senior Notes;
o any additions to the Events of Default applicable to any Senior Notes and
any additions to our covenants for the benefit of the holders of the
Senior Notes;
o if we are issuing any Senior Notes prior to the Release Date, the
designation of the series of Senior Note First Mortgage Bonds to be
delivered to the Senior Note Trustee as security for the Senior Notes;
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o any other terms of the Senior Notes not in conflict with the provisions of
the Senior Note Indenture; and
o any other collateral security, assurance or guarantee for the Senior
Notes.
For more information, see Section 301 of the Senior Note Indenture.
Senior Notes may be sold at a substantial discount below their principal amount.
You should consult the applicable Prospectus Supplement for a description of
certain special United States federal income tax considerations which may apply
to Senior Notes sold at an original issue discount or denominated in a currency
other than dollars.
Unless the applicable Prospectus Supplement states otherwise, the covenants
contained in the Senior Note Indenture will not afford holders of Senior Notes
protection in the event we have a change in control or are involved after the
Release Date in a highly-leveraged transaction.
SECURITY
Until the Release Date, described in the following section, all of the Senior
Notes will be secured by one or more series of First Mortgage Bonds, which we
will issue and deliver to the Senior Note Trustee. For more information on the
First Mortgage Bonds, see "Description of First Mortgage Bonds" below. When we
issue a series of Senior Notes prior to the Release Date, we will simultaneously
issue and deliver to the Senior Note Trustee, as security for all of the Senior
Notes, a series of Senior Note First Mortgage Bonds. These First Mortgage Bonds
will have the same stated interest rate (or interest calculated in the same
manner), interest payment dates, stated maturity and redemption provisions, and
will be in the same aggregate principal amount, as the series of Senior Notes we
are issuing. For more information, see Sections 401, 402 and 403 of the Senior
Note Indenture. Payments we make to the Senior Note Trustee on a series of
Senior Notes will satisfy our obligations with respect to the corresponding
payments due on the related series of Senior Note First Mortgage Bonds.
Each series of Senior Note First Mortgage Bonds will be a series of First
Mortgage Bonds, all of which are secured by a lien on certain property we own.
For more discussion on the lien, see "Description of First Mortgage Bonds -
Priority and Security" below. In certain circumstances prior to the Release
Date, we may reduce the aggregate principal amount of Senior Note First Mortgage
Bonds held by the Senior Note Trustee. In no event, however, may we reduce that
amount to an amount lower than the aggregate outstanding principal amount of the
Senior Notes then outstanding. For more information, see Section 409 of the
Senior Note Indenture. Following the Release Date, we will close the Mortgage
and not issue any additional First Mortgage Bonds under the Mortgage. For more
information, see Section 403 of the Senior Note Indenture.
RELEASE DATE
On the Release Date, the Senior Note First Mortgage Bonds will no longer secure
the Senior Notes, and the Senior Notes will become our unsecured general
obligations. For more information, see Section 403 of the Senior Note Indenture.
The Release Date means the date that we have repaid, redeemed or otherwise
retired all of our First Mortgage Bonds, excluding Senior Note First Mortgage
Bonds securing the Senior Notes and other First Mortgage Bonds which do not in
aggregate principal amount exceed the greater of 5% of our Net
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Tangible Assets or 5% of our Capitalization (each as defined in the following
section on "Limitation of Liens"). Excluding this issuance, we currently have
$224,615,000 aggregate principal amount of First Mortgage Bonds outstanding. If
an event of default under either the Senior Note Indenture or the First Mortgage
Indenture has occurred and is continuing on the date that the Release Date would
otherwise occur, the Release Date will be postponed until the event of default
has been cured.
The Senior Note Trustee will give the Senior Note holders notice when the
Release Date occurs. See "Description of Senior Notes--Defeasance" below for a
discussion of another situation in which outstanding Senior Notes would not be
secured by Senior Note First Mortgage Bonds.
LIMITATION OF LIENS
In this section and in the following section on "Limitation on Sale and
Lease-Back Transactions," the following terms have the meanings indicated:
"Capitalization" means the total of all the following items appearing on, or
included in, our consolidated balance sheet: (i) liabilities for indebtedness
maturing more than 12 months from the date of determination; and (ii) common
stock, preferred stock, premium on capital stock, capital surplus, capital in
excess of par value, and retained earnings (however the foregoing may be
designated), less, to the extent not otherwise deducted, the cost of shares of
our capital stock held in our treasury. Capitalization shall be determined in
accordance with generally accepted accounting principles and practices
applicable to the type of business in which we are engaged and approved by
independent accountants regularly retained by us, and may be determined as of a
date not more than 60 days prior to the happening of the event for which the
determination is being made.
"Debt" means any outstanding debt for money borrowed evidenced by notes,
debentures, bonds or other securities, or guarantees of any debt.
"Net Tangible Assets" means the amount shown as total assets on our consolidated
balance sheet, less (i) intangible assets including, but without limitation,
such items as goodwill, trademarks, trade names, patents, unamortized debt
discount and expense and certain regulatory assets, and (ii) appropriate
adjustments, if any, on account of minority interests. Net Tangible Assets shall
be determined in accordance with generally accepted accounting principles and
practices applicable to the type of business in which we are engaged and
approved by the independent accountants regularly retained by us, and may be
determined as of a date not more than 60 days prior to the happening of the
event for which such determination is being made.
"Operating Property" means (i) any interest in real property we own and (ii) any
asset we own that is depreciable in accordance with generally accepted
accounting principles, excluding, in either case, any interest of ours as lessee
under any lease (except for a lease that results from a Sale and Lease-Back
Transaction) which has been or would be capitalized on the books of the lessee
in accordance with generally accepted accounting principles.
"Sale and Lease-Back Transaction" means any arrangement with any person
providing for the leasing to us of any Operating Property (except for temporary
leases for a term, including any renewal or potential renewal, of not more than
48 months),
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which Operating Property has been or is to be sold or transferred by us to the
person; PROVIDED, HOWEVER, Sale and Lease-Back Transaction shall not include
[any arrangement first entered into prior to the date of the Senior Note
Indenture and shall not include] any transaction pursuant to which we sell
Operating Property to, and thereafter purchase energy or services from, any
entity, which transaction is ordered or authorized by any regulatory authority
having jurisdiction over us or our operations or is entered into pursuant to any
plan or program of industry restructuring ordered or authorized by any such
regulatory authority.
"Value" means, with respect to a Sale and Lease-Back Transaction, as of any
particular time, the amount equal to the greater of (i) our net proceeds from
the sale or transfer of the property leased pursuant to the Sale and Lease-Back
Transaction or (ii) the net book value of the property, as determined by us in
accordance with generally accepted accounting principles at the time of entering
into the Sale and Lease-Back Transaction, in either case multiplied by a
fraction, the numerator of which shall be equal to the number of full years of
the term of the lease that is part of the Sale and Lease-Back Transaction
remaining at the time of determination and the denominator of which shall be
equal to the number of full years of the term, without regard, in any case, to
any renewal or extension options contained in the lease.
The Senior Note Indenture provides that, from and after the Release Date, so
long as any Senior Notes are outstanding, we may not issue, assume, guarantee
(including any contingent obligation to purchase) or permit to exist any Debt
that is secured by any mortgage, security interest, pledge or lien ("Lien") of
or upon any Operating Property owned by us, whether owned at the date of the
Senior Note Indenture or subsequently acquired, without effectively securing the
Senior Notes (together with, if we shall so determine, any other indebtedness of
ours ranking equally with the Senior Notes) equally and ratably with the Debt
(but only so long as the Debt is so secured).
The foregoing restriction will not apply to:
o Liens on any Operating Property existing at the time of its acquisition
and not created in contemplation of the acquisition;
o Liens on Operating Property of a corporation existing at the time the
corporation is merged into or consolidated with us, or at the time the
corporation disposes of substantially all of its properties (or those of a
division) to us provided that the Lien is not extended to property owned
by us immediately prior to the merger, consolidation, or other disposition
and is not created in contemplation of the merger, consolidation or other
disposition;
o Liens on Operating Property to secure the cost of acquisition,
construction, development or substantial repair, alteration or improvement
of that property or to secure indebtedness incurred to provide funds for
any of these purposes or for reimbursement of funds previously expended
for any of these purposes, provided the Liens are created or assumed
contemporaneously with, or within 18 months after, the acquisition or the
completion of substantial repair or alteration, construction, development
or substantial improvement or within 6 months thereafter pursuant to a
commitment for financing arranged with a lender or investor within that
18-month period;
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o Liens in favor of the United States or any state or any department, agency
or instrumentality or political subdivision of the United States or any
state, or for the benefit of holders of securities issued by any of these
entities, to secure any Debt incurred for the purpose of financing all or
any part of the purchase price or the cost of substantially repairing or
altering, constructing, developing or substantially improving our
Operating Property; or
o Any extension, renewal or replacement (or successive extensions, renewals
or replacements), in whole or part, of any Lien referred to in the
exceptions listed above, provided, however, that the principal amount of
Debt secured thereby and not otherwise authorized by those exceptions
listed above, shall not exceed the principal amount of Debt, plus any
premium or fee payable in connection with any such extension, renewal or
replacement, so secured at the time of such extension, renewal or
replacement.
In addition, notwithstanding the foregoing restrictions, from and after the
Release Date we may issue, assume or guarantee Debt secured by a Lien which
would otherwise be subject to the foregoing restrictions up to an aggregate
amount which, together with all other of our secured Debt (not including secured
Debt permitted under any of the foregoing exceptions) and the Value of all Sale
and Lease-Back Transactions existing at such time (other than Sale and
Lease-Back Transactions the proceeds of which have been applied to the
retirement of certain indebtedness, Sale and Lease-Back Transactions in which
the property involved would have been permitted to be subjected to a Lien under
any of the foregoing exceptions and Sale and Lease-Back Transactions that are
permitted by the first sentence of "Limitations on Sale and Lease-Back
Transactions" below), does not exceed the greater of 10% of our Net Tangible
Assets or 10% of our Capitalization. The foregoing restrictions do not limit our
ability to place Liens on (i) the capital stock of any of our subsidiaries or
(ii) the assets of any of our subsidiaries.
LIMITATIONS ON SALE AND LEASE-BACK TRANSACTIONS
The Senior Note Indenture provides that so long as the Senior Notes are
outstanding from and after the Release Date, we may not enter into or permit to
exist any Sale and Lease-Back Transaction with respect to any Operating Property
(except for temporary leases for a term, including any renewal or potential
renewal, of not more than 48 months), if the purchaser's commitment is obtained
more than 18 months after the later of the completion of the acquisition,
construction or development of the Operating Property or the placing in
operation of the Operating Property or of the Operating Property as constructed
or developed or substantially repaired, altered or improved. This restriction
will not apply if (a) we would be entitled pursuant to any of the provisions
listed as exceptions to the restriction applicable to "Limitation on Liens"
above to issue, assume, guarantee or permit to exist Debt secured by a Lien on
the Operating Property without equally and ratably securing the Senior Notes,
(b) after giving effect to the Sale and Lease-Back Transaction, we could incur
pursuant to the provisions described in the last paragraph under "Limitation on
Liens," at least $1.00 of additional Debt secured by Liens (other than Liens
permitted by clause (a)), or (c) we apply within 180 days an amount equal to, in
the case of a sale or transfer for cash, the net proceeds (not less than the
fair value of the Operating Property so leased) and, otherwise, an amount equal
to the fair value
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(as determined by our Board of Directors) of the Operating Property so leased,
to the retirement of Senior Notes or other Debt of the Company ranking equally
with the Senior Notes, subject to reduction for Senior Notes delivered and the
Debt retired during the 180-day period otherwise than pursuant to mandatory
sinking fund or prepayment provisions and payments at stated maturity.
FORM, EXCHANGE AND TRANSFER
Unless the applicable Prospectus Supplement states otherwise, we will issue
Senior Notes only in fully registered form without coupons and in denominations
of $1,000 and integral multiples of that amount. For more information, see
Sections 201 and 302 of the Senior Note Indenture.
Holders may present Senior Notes for exchange or for registration of transfer,
duly endorsed or accompanied by a duly executed instrument of transfer, at the
office of the Security Registrar or at the office of any Transfer Agent we may
designate. Exchanges and transfers are subject to the terms of the Senior Note
Indenture and applicable limitations for global securities. We may designate
ourselves the Security Registrar. No charge will be made for any registration of
transfer or exchange of Senior Notes, but we may require payment of a sum
sufficient to cover any tax or other governmental charge imposed in connection
with the transaction. Any transfer or exchange will become effective upon the
Security Registrar or Transfer Agent, as the case may be, being satisfied with
the documents of title and identity of the person making the request. For more
information, see Section 305 of the Senior Note Indenture.
The applicable Prospectus Supplement will state the name of any Transfer Agent,
in addition to the Security Registrar initially designated by the Company for
any Senior Notes. We may at any time designate additional Transfer Agents or
withdraw the designation of any Transfer Agent or make a change in the office
through which any Transfer Agent acts. We must, however, maintain a Transfer
Agent in each place of payment for the Senior Notes of each series. For more
information, see Section 702 of the Senior Note Indenture.
We will not be required to
o issue, register the transfer of, or exchange any Senior Note or any
Tranche of any Senior Note during a period beginning at the opening of
business 15 days before the day of mailing of a notice of redemption of
any Senior Note or any Tranche of any Senior Note called for redemption
and ending at the close of business on the day of mailing; or
o register the transfer of, or exchange any Senior Note selected for
redemption except the unredeemed portion of any Senior Note being
partially redeemed.
For more information, see Section 305 of the Senior Note Indenture.
PAYMENT AND PAYING AGENTS
Unless the applicable Prospectus Supplement states otherwise, we will pay
interest on a Senior Note on any interest payment date to the person in whose
name the Senior Note is registered at the close of business on the regular
record date for the interest payment. For more information, see Section 307 of
the Senior Note Indenture.
Unless the applicable Prospectus Supplement provides otherwise, we will pay
principal and any premium and interest on Senior Notes at the office of the
Paying Agent whom we will designate for this
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purpose. Unless the applicable Prospectus Supplement states otherwise, the
corporate trust office of the Senior Note Trustee in New York City will be
designated as our sole Paying Agent for payments with respect to Senior Notes of
each series. Any other Paying Agents initially designated by us for the Senior
Notes of a particular series will be named in the applicable Prospectus
Supplement. We may at any time add or delete Paying Agents or change the office
through which any Paying Agent acts. We must, however, maintain a Paying Agent
in each place of payment for the Senior Notes of a particular series. For more
information, see Section 702 of the Senior Note Indenture.
All money we pay to a Paying Agent for the payment of the principal and any
premium or interest on any Senior Note which remains unclaimed at the end of two
years after payment is due will be repaid to us. After that date, the holder of
that Senior Note may look to us for these payments. For more information, see
Section 703 of the Senior Note Indenture.
REDEMPTION
You should consult the applicable Prospectus Supplement for any terms regarding
optional or mandatory redemption of Senior Notes. Except for the provisions in
the applicable Prospectus Supplement regarding Senior Notes redeemable at the
holder's option, Senior Notes may be redeemed only upon notice by mail not less
than 30 nor more than 60 days prior to the redemption date. Further, if less
than all the Senior Notes of a series, or any Tranche of a series, are to be
redeemed, the Senior Notes to be redeemed will be selected by the method
provided for the particular series. In the absence of a selection provision, the
Senior Note Trustee will select a fair and appropriate method of random
selection. For more information, see Sections 503 and 504 of the Senior Note
Indenture.
A notice of redemption we provide may state:
o that redemption is conditioned upon receipt by the Paying Agent on or
before the redemption date of money sufficient to pay the principal and
any premium and interest on the Senior Notes; and
o that if the money has not been received, the notice will be ineffective
and we will not be required to redeem the Senior Notes.
For more information, see Section 504 of the Senior Note Indenture.
CONSOLIDATION, MERGER AND SALE OF ASSETS
We may not consolidate with or merge into any other person, nor may we transfer
or lease substantially all of our assets and property to any person, unless:
o the corporation formed by the consolidation or into which we are merged,
or the person which acquires by conveyance or transfer, or which leases,
substantially all of our property and assets:
-- is organized and validly existing under the laws of any domestic
jurisdiction;
-- expressly assumes our obligations on the Senior Notes and under the
Senior Note Indenture; and
-- prior to the Release Date, expressly assumes our obligations under
the Senior Note First Mortgage Bonds and under the Mortgage;
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o immediately after the transaction becomes effective, no Event of Default,
and no event which would become an Event of Default, shall have occurred
and be continuing; and
o we will have delivered to the Senior Note Trustee an Officer's Certificate
and Opinion of Counsel as provided in the Senior Note Indenture.
For more information, see Section 1201 of the Senior Note Indenture.
EVENTS OF DEFAULT
"Event of Default" under the Senior Note Indenture with respect to Senior Notes
of any series means any one of the following:
o failure to pay any interest due on the Senior Notes within 30 days;
o failure to pay principal or premium when due on a Senior Note;
o breach of or failure to perform any covenant or warranty of ours in the
Senior Note Indenture with respect to the particular series of Senior
Notes for 60 days (subject to extension under certain circumstances for
another 120 days) after we receive notice from the Senior Note Trustee, or
we and the Senior Note Trustee receive notice from the holders of at least
33% in principal amount of the Senior Notes of that series outstanding
under the Senior Note Indenture according to the provisions of the Senior
Note Indenture;
o prior to the Release Date, the occurrence of a Default under the Mortgage
(see "Description of the First Mortgage Bonds - Events of Default" below);
o certain events of bankruptcy, insolvency or reorganization; and
o any other Event of Default set forth in the applicable Prospectus
Supplement.
For more information, see Section 901 of the Senior Note Indenture.
An Event of Default with respect to a particular series of Senior Notes does not
necessarily constitute an Event of Default with respect to the Senior Notes of
any other series issued under the Senior Note Indenture.
If an Event of Default with respect to a particular series of Senior Notes
occurs and is continuing, either the Senior Note Trustee or the holders of at
least 33% in principal amount of the outstanding Senior Notes of that series may
declare the principal amount of all of the Senior Notes of that series to be due
and payable immediately. If the Senior Notes of that series are discount notes
or similar Senior Notes, only the portion of the principal amount as specified
in the applicable Prospectus Supplement may be immediately due and payable. If
an Event of Default occurs and is continuing with respect to all series of
Senior Notes (including all Events of Default relating to bankruptcy, insolvency
or reorganization), the Senior Note Trustee or the holders of at least 33% in
principal amount of the outstanding Senior Notes of all series, considered
together, may declare an acceleration of the principal amount of all Senior
Notes. In the event of an acceleration prior to the Release Date with respect to
all Senior Notes, the Senior Note Trustee will make a demand for acceleration of
all amounts due under all of the Senior Note First Mortgage Bonds, but this
demand will only result in such an acceleration if allowed by the acceleration
provisions of the First Mortgage.
At any time after a declaration of acceleration with respect to the Senior Notes
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of a particular series, and before a judgment or decree for payment of the money
due has been obtained, and before the acceleration of the Senior Note First
Mortgage Bonds, the Event or Events of Default giving rise to the declaration of
acceleration will, without further action, be deemed to have been waived, and
the declaration and its consequences will be deemed to have been rescinded and
annulled, if
o we have paid or deposited with the Senior Note Trustee a sum sufficient to
pay
-- all overdue interest on all Senior Notes of the particular series;
-- the principal of and any premium on any Senior Notes of that series
which have become due otherwise than by the declaration of
acceleration and any interest at the rate prescribed in the Senior
Notes;
-- interest upon overdue interest at the rate prescribed in the Senior
Notes, to the extend payment is lawful;
-- all amounts due to the Senior Note Trustee under the Senior Note
Indenture; and
o any other Event of Default with respect to the Senior Notes of the
particular series, other than the failure to pay the principal of the
Senior Notes of that series which has become due solely by the declaration
of acceleration, has been cured or waived as provided in the Senior Note
Indenture.
For more information, see Section 902 of the Senior Note Indenture.
The Senior Note Indenture includes provisions as to the duties of the Senior
Note Trustee in case an Event of Default occurs and is continuing. Consistent
with these provisions, the Senior Note Trustee will be under no obligation to
exercise any of its rights or powers at the request or direction of any of the
holders, unless those holders have offered to the Senior Note Trustee reasonable
indemnity. For more information, see Section 1003 of the Senior Note Indenture.
Subject to these provisions of indemnification, the holders of a majority in
principal amount of the outstanding Senior Notes of any series may direct the
time, method and place of conducting any proceeding for any remedy available to
the Senior Note Trustee, or exercising any trust or power conferred on the
Senior Note Trustee, with respect to the Senior Notes of that series. For more
information, see Section 912 of the Senior Note Indenture.
No Senior Note holder may institute any proceeding regarding the Senior Note
Indenture, or for the appointment of a receiver or a trustee, or for any other
remedy under the Senior Note Indenture unless
o the holder has previously given to the Senior Note Trustee written notice
of a continuing Event of Default with respect to Senior Notes of that
particular series,
o the holders of a majority in aggregate principal amount of the outstanding
Senior Notes of all series with respect to which an Event of Default is
continuing have made a written request to the Senior Note Trustee, and
have offered reasonable indemnity to the Senior Note Trustee to institute
the proceeding as trustee, and
o the Senior Note Trustee has failed to institute the proceeding, and has
not received from the holders of a majority in principal amount of the
outstanding Senior Notes of that series a direction inconsistent with the
request, within 60
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days after notice, request and offer of reasonable indemnity.
For more information, see Section 907 of the Senior Note Indenture.
The preceding limitations do not apply, however, to a suit instituted by a
Senior Note holder for the enforcement of payment of the principal of or any
premium or interest on the Senior Note on or after the applicable due date
stated in the Senior Note. For more information, see Section 908 of the Senior
Note Indenture.
We must furnish annually to the Senior Note Trustee a statement by an
appropriate officer as to that officer's knowledge of our compliance with all
conditions and covenants under the Senior Note Indenture. Our compliance is to
be determined without regard to any grace period or notice requirement under the
Senior Note Indenture. For more information, see Section 706 of the Senior Note
Indenture.
MODIFICATIONS AND WAIVER
The Company and the Senior Note Trustee, without the consent of the holders of
the Senior Notes, may enter into one or more supplemental Senior Note Indentures
for any of the following purposes:
o to evidence the assumptions by an permitted successor of our covenants in
the Senior Note Indenture and the Senior Notes:
o to add one or more covenants or other provisions for the benefit of the
holders of outstanding Senior Notes or to surrender any right or power
conferred upon us by the Senior Note Indenture;
o to add any additional Events of Default;
o to change or eliminate any provision of the Senior Note Indenture or add
any new provision to it (but if this action will adversely affect the
interests of the holders of any particular series of Senior Notes in any
material respect, the action will become effective with respect to that
series only when there is no Senior Note of that series remaining
outstanding under the Senior Note Indenture);
o to provide collateral security for the Senior Notes;
o to establish the form or terms of Senior Notes according to the provisions
of the Senior Note Indenture;
o to evidence the acceptance of appointment of a successor Senior Note
Trustee under the Senior Note Indenture with respect to one or more series
of the Senior Notes and to add to or change any of the provisions of the
Senior Note Indenture as necessary to provide for the administration of
the trusts under the Senior Note Indenture by more than one trustee;
o to provide for the procedures required to permit us to use a
non-certificated system of registration for any Senior Notes series;
o to change any place where
-- the principal of and any premium and interest on any Senior Notes is
payable,
-- any Senior Notes may be surrendered for registration of transfer or
exchange, or
-- notices and demands to or upon us regarding Senior Notes and the
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Senior Note Indenture may be served; or
o to cure any ambiguity or inconsistency (but any of these changes or
additions will not adversely affect the interests of the holders of Senior
Notes of any series in any material respect).
For more information see Section 1301 of the Senior Note Indenture.
The holders of at least a majority in aggregate principal amount of the
outstanding Senior Notes of any series may waive
o compliance by us with certain provisions of the Senior Note Indenture (see
Section 707 of the Senior Note Indenture); and
o any past default under the Senior Note Indenture, except a default in the
payment of principal, premium, or interest, and certain covenants and
provisions of the Senior Note Indenture that cannot be modified or amended
without consent of the holder of each outstanding Senior Note of the
series affected (see Section 913 of the Senior Note Indenture).
The Trust Indenture Act of 1939 may be amended after the date of the Senior Note
Indenture to require changes to the Senior Note Indenture. In this event, the
Senior Note Indenture will be deemed to have been amended so as to effect the
changes, and we and the Senior Note Trustee may, without the consent of any
holders, enter into one or more Supplemental Senior Note Indentures to evidence
or effect the amendment. For more information, see Section 1301 of the Senior
Note Indenture.
Except as provided in this section, the consent of the holders of a majority in
aggregate principal amount of the outstanding Senior Notes, considered as one
class, is required to change in any manner the Senior Note Indenture pursuant to
one or more supplemental Senior Note Indentures. If less than all of the series
of Senior Notes outstanding are directly affected by a proposed supplemental
Senior Note Indenture, however, only the consent of the holders of a majority in
aggregate principal amount of the outstanding Senior Notes of all series
directly affected, considered as one class, will be required. Furthermore, if
the Senior Notes of any series have been issued in more than one Tranche and if
the proposed supplemental Senior Note Indenture directly affects the rights of
the holders of one or more, but not all Tranches, only the consent of the
holders of a majority in aggregate principal amount of the outstanding Senior
Notes of all Tranches directly affected, considered as one class, will be
required. In addition, an amendment or modification
o may not, without the consent of the holder of the Senior Note
-- change the maturity of the principal of, or any installment of
principal of or interest on, any Senior Note,
-- reduce the principal amount or the rate of interest, or the amount
of any installment of interest, or change the method of calculating
the rate of interest,
-- reduce any premium payable upon the redemption of the Senior Note,
-- reduce the amount of the principal of any Senior Note originally
issued at a discount from the stated principal amount that would be
due and
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payable upon a declaration of acceleration of maturity,
-- change the currency or other property in which a Senior Note or
premium or interest on a Senior Note is payable,
-- impair the right to institute suit for the enforcement of any
payment on or after the stated maturity (or, in the case of
redemption, on or after the redemption date) of any Senior Note;
o may not reduce the percentage of principal amount requirement for consent
of the holders for any supplemental Senior Note Indenture, or for any
waiver of compliance with any provision of or any default under the Senior
Note Indenture, or reduce the requirements for quorum or voting, without
the consent of the holder of each outstanding Senior Note of each series
or Tranche effected;
o may not prior to the Release Date
-- impair the interest of the Senior Note Trustee in the Senior Note
First Mortgage Bonds,
-- reduce the principal amount of any series of Senior Note First
Mortgage Bonds to an amount less than that of the related series of
Senior Notes, or
-- alter the payment provisions of the Senior Note First Mortgage Bonds
in a manner adverse to the holders of the Senior Notes; and
o may not modify provisions of the Senior Note Indenture relating to
supplemental Senior Note Indentures, waivers of certain covenants and
waivers of past defaults with respect to the Senior Notes of any series,
or any Tranche of a series, without the consent of the holder of each
outstanding Senior Note affected.
A supplemental Senior Note Indenture will be deemed not to affect the rights
under the Senior Note Indenture of the holders of any series or Tranche of the
Senior Notes if the supplemental Senior Note Indenture
o changes or eliminates any covenant or other provision of the Senior Note
Indenture expressly included solely for the benefit of one or more other
particular series of Senior Notes or Tranches thereof; or
o modifies the rights of the holders of Senior Notes of any other series or
Tranches with respect to any covenant or other provision.
For more information, see Section 1302 of the Senior Note Indenture.
If we solicit from holders of the Senior Notes any type of action, we may at our
option fix in advance a record date for the determination of the holders
entitled to vote on the action. We shall have no obligation, however, to do so.
If we fix a record date, the action may be taken before or after the 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 purpose of determining whether holders of
the requisite proportion of the outstanding Senior Notes have authorized the
action. For that purpose, the outstanding Senior Notes shall be computed as of
the record date. Any holder action shall bind every future holder of the same
security and the holder of every security issued upon the registration of
transfer of or in exchange for or in lieu of the security in respect of anything
done or permitted by the Senior Note Trustee or us in reliance on that action,
whether or not notation of the action is made upon the
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security. For more information, see Section 104 of the Senior Note Indenture.
DEFEASANCE
Unless the applicable Prospectus Supplement provides otherwise, any Senior Note,
or portion of the principal amount of a Senior Note, will be deemed to have been
paid for purposes of the Senior Note Indenture, and, at our election, our entire
indebtedness in respect to the Senior Note (or portion thereof) will be deemed
to have been satisfied and discharged, if we have irrevocably deposited with the
Senior Note Trustee or any Paying Agent other than us, in trust, money, certain
Eligible Obligations, or a combination of the two, sufficient to pay principal
of any premium and interest due and to become due on the Senior Note or portions
thereof. For more information , see Section 801 of the Senior Note Indenture.
For this purpose, unless the applicable Prospectus Supplement provides
otherwise, "Eligible Obligations" include direct obligations of, or obligations
unconditionally guaranteed by, the United States, entitled to the benefit of
full faith and credit of the United States, and certificates, depositary
receipts or other instruments which evidence a direct ownership interest in
these obligations or in any specific interest or principal payments due in
respect to those obligations.
RESIGNATION OF SENIOR NOTE TRUSTEE
The Senior Note Trustee may resign at any time by giving written notice to us or
may be removed at any time by an action of the holders of a majority in
principal amount of outstanding Senior Notes delivered to the Senior Note
Trustee and us. No resignation or removal of the Senior Note Trustee and no
appointment of a successor trustee will become effective until a successor
trustee accepts appointment in accordance with the requirements of the Senior
Note Indenture. So long as no Event of Default or event which would become an
Event of Default has occurred and is continuing, and except with respect to a
Senior Note Trustee appointed by an action of the holders, if we have delivered
to the Senior Note Trustee a resolution of our Board of Directors appointing a
successor trustee and the successor trustee has accepted the appointment in
accordance with the terms of the Senior Note Indenture, the Senior Note Trustee
will be deemed to have resigned and the successor trustee will be deemed to have
been appointed as trustee in accordance with the Senior Note Indenture. For more
information, see Section 1010 of the Senior Note Indenture.
MISCELLANEOUS
NOTICES
We will give notices to holders of Senior Notes by mail to their address as they
appear in the Security Register. For more information, see Section 106 of the
Senior Note Indenture.
TITLE
The Senior Note Trustee and its agents, and we and our agents, may treat the
person in whose name a Senior Note is registered as the absolute owner of that
Senior Note, whether or not that Senior Note may be overdue, for the purpose of
making payment and for all other purposes. For more information, see Section 308
of the Senior Note Indenture.
GOVERNING LAW
The Senior Note Indenture and the Senior Notes will be governed by, and
construed in accordance with, the laws of the State of New York. For more
information, see Section 112 of the Senior Note Indenture.
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GLOBAL SECURITIES
We may issue some or all of the Senior Notes of any series as Global Securities.
We will register each Global Security in the name of a depositary identified in
the applicable Prospectus Supplement. The Global Securities will be deposited
with a depositary or nominee or custodian for the depositary and will bear a
legend regarding restrictions on exchanges and registration of transfer as
discussed below and any other matters to be provided pursuant to the Senior Note
Indenture.
As long as the depositary or its nominee is the registered holder of a Global
Security, that person will be considered the sole owner and holder of the Global
Security and the Senior Notes represented by it for all purposes under the
Senior Notes and the Senior Note Indenture. Except in limited circumstances,
owners of a beneficial interest in a Global Security
o will not be entitled to have the Global Security or any Senior Notes
represented by it registered in their names;
o will not receive or be entitled to receive physical delivery of
certificated Senior Notes in exchange for the Global Security; and
o will not be considered to be the owners or holders of the Global Security
or any Senior Notes represented by it for any purposes under the Senior
Notes or the Senior Note Indenture.
We will make all payments of principal and any premium and interest on a Global
Security to the depositary or its nominee as the holder of the Global Security.
The laws of some jurisdictions require that certain purchasers of securities
take physical delivery of securities in definitive form. These laws may impair
the ability to transfer beneficial interests in a Global Security.
Ownership of beneficial interests in a Global Security will be limited to
institutions having accounts with the depositary or its nominee, called
"participants" for purposes of this discussion, and to persons that hold
beneficial interests through participants. When a Global Security is issued, the
depositary will credit on its book entry, registration and transfer system the
principal amounts of Senior Notes represented by the Global Security to the
accounts of its participants. Ownership of beneficial interests in a Global
Security will be shown only on, and the transfer of those ownership interests
will be effected only through, records maintained by
o the depositary, with respect to participant's interests or;
o any participant, with respect to interests of persons held by the
participants on their behalf.
Payments by participants to owners of beneficial interests held through such
participants will be the responsibility of such participants. The depositary may
from time to time adopt various policies and procedures governing payments,
transfers, exchanges, and other matters relating to beneficial interests in a
Global Security. None of the following will have any responsibility or liability
for any aspect of the depositary or any participant's records relating to, or
for payments made on account of, beneficial interest in a Global Security, or
for maintaining, supervising or reviewing any records relating to these
beneficial interests:
o the Southern Indiana Gas and Electric Company;
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o the Trustee under the First Mortgage Indenture;
o the Trustee under the Senior Note Indenture; or
o any agent of each of the above.
DESCRIPTION OF FIRST MORTGAGE BONDS
GENERAL
First Mortgage Bonds will be issued to the Senior Note Trustee to secure each
issuance of Senior Notes. See "Description of Senior Notes -- Security" above.
We will issue the First Mortgage Bonds under a Mortgage and Deed of Trust, dated
as of April 1, 1932 with Bankers Trust Company, New York, N.Y., as Trustee (the
"Trustee") pursuant to an indenture or indentures which will supplement the
Mortgage and Deed of Trust. In the following discussion, we will refer to the
Mortgage and Deed of Trust and all indentures that supplement it as the
"Mortgage".
We will refer to all of our First Mortgage Bonds, including those already issued
and those to be issued as "First Mortgage Bonds." The information we are
providing you in this Prospectus concerning the First Mortgage Bonds and the
Mortgage is only a summary of the information provided in those documents. You
should consult the Mortgage and other documents for more complete information.
These documents appear as exhibits to the Registration Statement, or will appear
as exhibits to a Current Report on Form 8-K, which we will file, and which will
be incorporated by reference into this Prospectus.
INTEREST, MATURITY, REDEMPTION AND PAYMENT
These terms will be correlated to the terms of the related Senior Notes that the
particular First Mortgage Bonds secure. See the accompanying Prospectus
Supplement.
IMPROVEMENT AND SINKING FUND REQUIREMENT
The Mortgage (Section 36A) requires the annual deposit with the Trustee of cash
equal to 1% of the maximum principal amount of all First Mortgage Bonds
outstanding at any one time subsequent to July 1, 1948 (less First Mortgage
Bonds retired directly or indirectly as a result of the sale of property or
cancelled pursuant to the provisions of Section 36B described below). We may
withdraw the cash upon certification of the amount of unfunded property
additions which would support the issuance of a principal amount of First
Mortgage Bonds equal to 100% of the amount of cash withdrawn or the cash may be
applied to the purchase or redemption of First Mortgage Bonds.
MAINTENANCE AND REPLACEMENT REQUIREMENTS
The Mortgage (Section 36B) requires the annual deposit with the Trustee of an
amount in cash or in principal amount of First Mortgage Bonds or of outstanding
prior lien bonds (or in lieu thereof the certification of unfunded property
additions) equal to the amount, if any, by which 15% of the gross earnings
during the preceding calendar year exceeds the aggregate amounts expended during
that period for repairs, maintenance and replacements. Gross earnings are
computed after deducting the costs of electric energy and gas purchased for
resale. A credit balance established in any year may be utilized to meet the
requirements during a later period
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or to effect the withdrawal of deposited cash or First Mortgage Bonds or to
unfund property previously certified to the Trustee.
The Mortgage provides that, effective at such times as all First Mortgage Bonds
issued prior to January 1, 1977 are no longer outstanding, the Mortgage may be
amended to change the above requirement, insofar as it is based upon a
comparison with 15% of the gross earnings during the preceding calendar year, to
a comparison with 2.25% of our depreciable property, as defined, on December 31
of the preceding calendar year (Section 3 of the Supplemental Indenture dated as
of January 15, 1977).
PRIORITY AND SECURITY
Each First Mortgage Bond ranks pari passu as to security with all other First
Mortgage Bonds outstanding under the Mortgage, which, in the opinion of our
legal counsel, Messrs. Bamberger, Foreman, Oswald and Hahn, is a first lien on
substantially of our physical property, permits and franchises, subject only to
excepted encumbrances, as defined in the Mortgage (Section 2). The Mortgage
permits the acquisition of property subject to prior liens existing at the time
of acquisition and the use of such property additions as a basis for the
issuance of additional bonds in an amount which, together with certain other
items, does not exceed 15% of the aggregate principal amount of First Mortgage
Bonds to be outstanding under the Mortgage (Section 24).
ISSUANCE OF ADDITIONAL BONDS
The Mortgage permits the issuance of additional First Mortgage Bonds (a) to the
extent of 60% of the cost or then fair value to us, whichever is less, of
unfunded property additions (as defined in the Mortgage, Sections 4 and 5)
(Section 23); (b) to refund unfunded prior lien bonds (as defined in the
Mortgage, Section 6) (Section 24); (c) to refund First Mortgage Bonds (Section
27); or (d) upon the deposit of cash equal to the principal amount of First
Mortgage Bonds requested to be issued (Section 28). Deposited cash may be
withdrawn in lieu of the authentication of First Mortgage Bonds to which we
would otherwise be entitled or against 60% of unfunded property additions
certified to the Trustee or against the deposit of First Mortgage Bonds or the
deposit or reduction of prior lien bonds or may be applied to the purchase or
redemption of First Mortgage Bonds (Sections 29 and 30).
Additional First Mortgage Bonds may not be issued under (a) or (d) above (or
under certain circumstances under (c) above) unless net earnings (as defined in
the Mortgage, Section 7) for twelve consecutive months within the fifteen
preceding calendar months shall have been at least equal to twice the annual
interest requirements on, and at least 10% of, the principal amount of all First
Mortgage Bonds outstanding, including those proposed to be issued and all
outstanding prior lien indebtedness (Section 25). At December 31, 1998, such
coverages were at least 2.4 times and 16%, respectively. Net earnings are
computed before charges for renewals, replacements and depreciation, but after
deducting the greater of (i) 10% of gross operating revenues for such period, or
(ii) the amount by which 15% of gross operating revenues for such period exceeds
the amount expended for current repairs and maintenance. Gross operating
revenues are computed after deducting the cost of electric energy and gas
purchased for resale.
The First Mortgage Bonds issued to the Senior Note Trustee are expected to be
issued against unfunded property additions or retired bonds. Unfunded property
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additions at March 31, 1999 amounted to $310,288,123.
LIMITATION ON DIVIDENDS
The Mortgage in effect restricts our payment of cash dividends on our Common
Stock to the accumulated surplus available for distribution to the Common Stock
earned subsequent to December 31, 1947, subject to reduction if amounts deducted
from earnings for current repairs and maintenance and provisions for renewals,
replacements and depreciation of all of our property are less than amounts
specified in the Mortgage (Section 1.02 of the Supplemental Indenture dated as
of July 1, 1948, as supplemented). No amount was restricted against cash
dividends on Common Stock at March 31, 1999 under this provision.
The Amended Articles of Incorporation in effect restricts our payment of cash
dividends on Common Stock to accumulated surplus available for distribution to
the Common Stock earned subsequent to December 31, 1935, and requires that,
immediately after such dividends, there shall remain to the credit of earned
surplus an amount at least equal to two times the annual dividend requirements
on all then outstanding Preferred Stock and Preferred Stock, No Par Value. See
Art. VI, Terms of Capital Stock, General Provisions (B). The amount restricted
against cash dividends on Common Stock at March 31, 1999 under this restriction
was $2,154,682, leaving $244,181,106 unrestricted for the payment of dividends.
In addition, the Amended Articles of Incorporation provides that surplus
otherwise available for the payment of dividends on Common Stock shall be
restricted to the extent that such surplus is included in a calculation required
to permit us to issue, sell or dispose of preferred stock or other stock senior
to the Common Stock. See Art. VI, Terms of Capital Stock, General Provisions
(E)(4).
An order of the Securities and Exchange Commission dated October 12, 1944 under
the Public Utility Holding Company Act of 1935 in effect restricts our payment
of cash dividends on Common Stock to 75% of net income available for
distribution to the Common Stock, earned subsequent to December 31, 1943, if the
percentage of Common Stock equity to total capitalization and surplus, as
defined, is less than 25%. At March 31, 1999, the ratio of Common Stock equity
to total capitalization and surplus amounted to approximately 53%.
MODIFICATION OF THE MORTGAGE
The Mortgage may be modified or amended by us with the consent of the holders of
all the outstanding First Mortgage Bonds issued prior to January 15, 1977 and
the consent of the holders of 66 2/3% of the principal amount of all outstanding
First Mortgage Bonds. No amendment without the consent of the holder of a First
Mortgage Bond would (1) extend the maturity of, or reduce the rate of interest
on, or otherwise modify the terms of payment of principal or interest on, or
impair the right of such holder to institute suit on or after the due date for
the enforcement of the payment of principal or interest on, that First Mortgage
Bond or (2) deprive the holder of the lien of the Mortgage or permit the
creation of any lien ranking prior to or equal with the lien of the Mortgage on
any of the mortgaged property or (3) reduce the percentage of bondholders whose
consent is required with respect to the matters specified in (1) and (2) above
(Section 4 of the Supplemental Indenture dated as of January 15, 1977).
The Mortgage permits an amendment to the Mortgage which authorizes us, effective
at such time as all First Mortgage Bonds issued
21
<PAGE>
on or prior to May 31, 1986 are no longer outstanding, to designate First
Mortgage Bonds of any series (rather than the First Mortgage Bonds of the
earliest maturing series that are redeemable) as the First Mortgage Bonds to be
redeemed pursuant to Section 36B of the Mortgage and to do so at any time
(rather than only after three years) that cash for such purpose is on deposit
with the Trustee pursuant to the provisions of that Section. (Section 5 of the
Supplemental Indenture dated as of June 1, 1986). The Senior Note First Mortgage
Bonds will not be redeemable except in conjunction with the retirement of the
Senior Notes that they secure.
REGARDING DEFAULT
Under the Mortgage, the following are defined as "completed defaults":
o failure to pay principal of any First Mortgage Bond or prior lien bond
when due;
o failure for 90 days to pay interest due upon any First Mortgage Bonds;
o failure to pay interest due upon any prior lien bonds, continued for the
period of grace, if any (not exceeding 90 days) specified in the
instrument securing such prior lien bond;
o the institution of voluntary proceedings involving bankruptcy or
insolvency or appointment of a receiver for us or our property or general
assignment for the benefit of creditors or the pendency of similar
proceedings for 90 days if brought by others; and
o failure for 90 days, after notice from the Trustee, to perform any other
covenant, agreement or condition with respect to the Mortgage (Section
66). A failure by us to deposit or direct the application of money for the
redemption of First Mortgage Bonds called for redemption also constitutes
a completed default (Section 52).
Upon the occurrence and continuation of a completed default, the Trustee of the
holders of not less than 20% of the First Mortgage Bonds then outstanding may
accelerate the maturity of all First Mortgage Bonds, subject to the right of the
holders of a majority of the First Mortgage Bonds to annul the acceleration if
the default has been cured and no foreclosure sale has occurred (Section 66).
REGARDING THE TRUSTEE
Bankers Trust Company, Trustee under the Mortgage, is a depositary of the
Company.
The Trustee is required to take action at the request of the holders of First
Mortgage Bonds only when requested to do so by the holders of a majority in
principal amount of the First Mortgage Bonds then outstanding. Before proceeding
to enforce the lien of the Mortgage, the Trustee may require that it be properly
indemnified to its satisfaction (Section 93).
RELEASE AND SUBSTITUTION OF PROPERTY
The Mortgage (Section 58) provides that, subject to various limitations,
property may be released from the lien thereof, whether or not sold or otherwise
disposed of by us, upon the basis of cash deposited with the Trustee, purchase
money obligations or First Mortgage Bonds delivered to the Trustee, prior lien
bonds delivered to the Trustee or reduced or assumed, or unfunded property
additions certified to the Trustee.
The Mortgage (Section 60) permits the cash proceeds of released property to be
withdrawn against unfunded property
22
<PAGE>
additions certified to the Trustee or against the deposit of First Mortgage
Bonds or the deposit or reduction of prior lien bonds or to be applied to the
purchase or redemption of First Mortgage Bonds.
EVIDENCE TO BE FURNISHED TO THE TRUSTEE UNDER THE MORTGAGE
Compliance with Mortgage provisions is evidenced by written statements of our
officers or persons selected or paid by us (such as an engineer with respect to
the value of property being certified or released, an accountant with respect to
a net earnings certificate and counsel with respect property titles and
compliance with the Mortgage generally). In certain major matters (as required
by Section 314(d) of the Trust Indenture Act of 1939, as amended) the accountant
or engineer must be independent. We are required to file a treasurer's
certificate with the Trustee on or before May 1 of each year indicating that we
have complied with all the provisions of the Mortgage and are not in default
with respect to any of the covenants contained in the Mortgage (Section 3.06 of
the Supplemental Indenture dated as of July 1, 1948). Various other certificates
and papers are required to be filed annually and upon the happening of various
events.
PLAN OF DISTRIBUTION
We intend to sell the Senior Notes in a public offering through the underwriters
or dealers named on the cover of the applicable Prospectus Supplement.
The applicable Prospectus Supplement will set forth the terms under which the
Senior Notes are offered, including
o the purchase price and the net proceeds to us from the sale;
o any underwriting discounts and other items constituting underwriters
compensation;
o the initial public offering price; and
o any discounts or concessions allowed, re-allowed or paid to dealers.
We or any underwriters or dealers may change from time to time any initial
public offering price and any discounts or concessions allowed or re-allowed or
paid to dealers.
The Senior Notes will be acquired by the underwriters for their own account and
may be resold in one or more transactions, including negotiated transactions, at
a fixed public offering price or at varying prices determined at the time of the
sale. Unless the applicable Prospectus Supplement states otherwise, the
obligations of any underwriter to purchase the Senior Notes will be subject to
certain conditions, and the underwriter will be obligated to purchase the Senior
Notes, except that in certain cases involving a default by an underwriter, less
than all of the Senior Notes may be purchased.
The applicable Prospectus Supplement will state whether we will authorize
underwriters or dealers to solicit offers by certain specified institutions to
purchase Senior Notes at the public offering price set forth in the Prospectus
Supplement pursuant to delayed delivery contracts providing for payment and
delivery on a specified future date. These contracts will be subject to the
conditions set forth in the Prospectus Supplement. Additionally, the Prospectus
Supplement will set forth the commission payable for solicitation of those
contracts.
The underwriters may be entitled under agreements entered into with the Company
to indemnification by the Company against
23
<PAGE>
certain civil liabilities, including liabilities under the Securities Act of
1933.
EXPERTS
The financial statements and schedules incorporated in this prospectus and
elsewhere in the Registration Statement by reference from the Company's Annual
Report on Form 10-K for the year ended December 31, 1998 have been audited by
Arthur Andersen LLP, independent public accountants, as indicated in their
report with respect thereto, which is incorporated herein by reference, and have
been so incorporated in reliance upon the authority of that firm as experts in
accounting and auditing in giving that report.
LEGAL OPINIONS
Winthrop, Stimson, Putnam & Roberts of New York, New York, our outside counsel,
will issue opinions about the legality of the offered securities for us. The
underwriters will be advised about legal matters relating to any offering by
their own legal counsel, Simpson Thacher & Bartlett of New York, New York.
24
<PAGE>
Part II.
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Filing fees--Securities and Exchange Commission...................... $ 22,240
Rating agencies' fees ............................................... 90,000
Trustee's fees....................................................... 28,675
Auditors' fees....................................................... 25,000
Printing of registration statement, prospectus,
exhibits, securities, etc. .......................................... 20,000
Legal and Blue Sky fees and expenses................................. 55,000
Miscellaneous ....................................................... 9,085
--------
$250,000
========
All of the above amounts, other than the filing fees, are estimates.
Item 15. Indemnification of Directors and Officers.
The following resolution was adopted by the Executive Committee of the Board of
Directors of the Company on May 12, 1999:
RESOLVED: that with respect to the preparation and filing of a
Registration Statement and Prospectus with the Securities and
Exchange Commission in connection with the proposed issuance and
sale from time to time of Securities of the Company at an aggregate
initial offering price not to exceed $90,000,000, this Company
indemnify and save harmless each and every officer of the Company
executing and preparing the Registration Statement and Prospectus in
its original or amended or supplemented form, and every director of
the Company who was a director thereof at the time of the filing of
the Registration Statement and Prospectus in their original or
amended or supplemented form, against any and all costs reasonably
incurred by them or any of them in connection with any action, suit
or proceeding arising out of the preparation, filing or use of the
said Registration Statement or Prospectus relating to such issue
whether brought under the Securities Act of 1933, as amended, or
under any other applicable law, where such action, suit or
proceeding is finally adjudicated in favor of such director, officer
or employee and the time to appeal has expired.
Similar indemnity resolutions have been adopted which are applicable to other
issues of securities presently outstanding, and similar general indemnity
provisions are contained in The Indiana General Corporation Act and in the
Company's By-Laws.
II-1
<PAGE>
The Company has an insurance policy covering its liabilities and expenses that
might arise in connection with its lawful indemnification of its directors and
officers for certain of their liabilities and expenses. Officers and directors
of the Company are covered under this policy for certain other liabilities and
expenses.
Item 16. Exhibits.
1 Form of Underwriting Agreement.
*4(a) Mortgage and Deed of Trust dated as of April 1, 1932 between the
Company and Bankers Trust Company, as Trustee, and Supplemental
Indentures thereto dated August 31, 1936, October 1, 1937, July 1,
1948, June 1, 1949, October 1, 1949, January 1, 1951, April 1, 1954,
March 1, 1957, October 1, 1965, September 1, 1966, August 1, 1968,
May 1, 1970, August 1, 1971, April 1, 1972, October 1, 1973, April
1, 1975, January 15, 1977, April 1, 1978, June 4, 1981, January 20,
1983, November 1, 1983, March 1, 1984, June 1, 1984, November 1,
1984, July 1, 1985, November 1, 1985, June 3, 1986. (Physically
filed and designated in Registration No. 2-2536 as Exhibits B-1 and
B-2; in Post-effective Amendment No. 1 to Registration No. 2-62032
as Exhibit (b)(4)(ii), in Registration No. 2-88923 as Exhibit
4(b)(2), in Form 8-K, File No. 1-3553, dated June 1, 1984 as Exhibit
(4), File No. 1-3553, dated March 24, 1986 as Exhibit 4-A, in Form
8-K, File No. 1-3553, dated June 3, 1986 as Exhibit (4).) July 1,
1985 and November 1, 1985. (Physically filed and designated in Form
10-K for the fiscal year 1985, File No. 1-3553, as Exhibit 4-A.)
November 15, 1986 and January 15, 1987. (Physically filed and
designated in Form 10-K, for the fiscal year 1986, File No. 1-3553,
as Exhibit 4-A.) December 15, 1987. (Physically filed and designated
in Form 10-K, for the fiscal year 1987, File No. 1-3553, as Exhibit
4-A.) December 13, 1990. (Physically filed and designated in Form
10-K, for the fiscal year 1990, File No. 1-3553, as Exhibit 4-A.)
April 1, 1993. (Physically filed and designated in Form 8-K, dated
April 13, 1993, File No. 1-3553, as Exhibit 4.) May 1, 1993.
(Physically filed and designated in Form 10-K, for the fiscal year
1993, File No. 1-3553, as Exhibit 4(a).) June 1, 1993. (Physically
filed and designated in Form 8-K, dated June 14, 1993, File No.
1-3553, as Exhibit 4.)
4(b) Form of Supplemental Indenture (for First Mortgage Bonds) between
the Company and Bankers Trust Company, as Trustee.
4(c) Form of Indenture (for Senior Notes) between the Company and Bankers
Trust Company, as Trustee.
4(d) Form of Supplemental Indenture (for Senior Notes) between the
Company and Bankers Trust Company, as Trustee.
4(e) Form of Certificate of Senior Note is contained in the Form of
Supplemental
- ----------
* Incorporated herein by reference as indicated.
II-2
<PAGE>
Indenture filed as Exhibit 4(d).
5 Opinion of Messrs. Bamberger, Foreman, Oswald and Hahn.
*12(a) Ratio of Earnings to Fixed Charges for the five years ended
December 31, 1998. (Physically filed and designated in Form 10-K,
for the fiscal year 1998, File No. 1-3553, as Exhibit 12).
12(b) Ratio of Earnings to Fixed Charges for the twelve months ended March
31, 1999.
23(a) Consent of Arthur Andersen LLP.
23(b) Consent of Messrs. Bamberger, Foreman, Oswald and Hahn is contained
in their opinion filed as Exhibit 5.
25(a) Form T-1 of Bankers Trust Company (as Trustee under Senior Note
Indenture).
25(b) Form T-1 of Bankers Trust Company (as Trustee under Mortgage).
- ----------
* Incorporated herein by reference as indicated.
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; (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); or (iii) to include any material
information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change to such
information in the Registration Statement; provided, however, that the
registrant need not file a post-effective amendment to include the
information required to be included by subsection (i) or (ii) if such
information is contained in periodic reports filed with or furnished to
the Commission by the registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference
in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration
II-3
<PAGE>
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered that 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 (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in 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.
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 informed 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-4
<PAGE>
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 City of New York, State of New York on the 1st day of July,
1999.
SOUTHERN INDIANA GAS AND ELECTRIC
COMPANY
By: Ronald G. Reherman
Chairman
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
Signature Title Date
--------- ----- ----
/s/ Ronald G. Reherman
- ----------------------- Chairman of the Board
and Director July 1, 1999
RONALD G. REHERMAN
/s/ Andrew E. Goebel
- ----------------------- President, Chief
Executive Officer and
ANDREW E. GOEBEL Director July 1, 1999
/s/ Timothy L. Burke
- ----------------------- Secretary and
Treasurer (Chief
TIMOTHY L. BURKE Financial Officer) July 1, 1999
/s/ S. Mark Kerney
- ----------------------- Controller (Chief
S. MARK KERNEY Accounting Officer) July 1, 1999
/s/ John M. Dunn
- ----------------------- Director July 1, 1999
JOHN M. DUNN
- ----------------------- Director
JOHN D. ENGELBRECHT
/s/ Robert L. Koch Ii
- ----------------------- Director July 1, 1999
ROBERT L. KOCH II
/s/ Donald A. Rausch
- ----------------------- Director July 1, 1999
DONALD A. RAUSCH
II-5
<PAGE>
/s/ Richard W. Shymanski
- ----------------------- Director July 1, 1999
RICHARD W. SHYMANSKI
- ----------------------- Director
DONALD E. SMITH
/s/ James S. Vinson
- ----------------------- Director July 1, 1999
JAMES S. VINSON
II-6
Draft 6/23/99
Southern Indiana Gas and
Electric Company
Underwriting Agreement
To the Representatives of the
several Underwriters named in
the respective Pricing Agreements
hereinafter described.
________ __, 1999
Dear Sirs:
From time to time Southern Indiana Gas and Electric Company, an
Indiana corporation (the "Company"), proposes to enter into one or more Pricing
Agreements (each a "Pricing Agreement") in the form of Annex I hereto, with such
additions and deletions as the parties thereto may determine, and, subject to
the terms and conditions stated herein and therein, to issue and sell to the
firms named in Schedule I to the applicable Pricing Agreement (such firms
constituting the "Underwriters" with respect to such Pricing Agreement and the
Senior Notes specified therein) certain of its Senior Notes (the "Senior
Notes"). Senior Notes specified in Schedule II to a Pricing Agreement are
hereinafter referred to as the "Designated Senior Notes" with respect to such
Pricing Agreement.
The Senior Notes are to be issued under a governing indenture
(together with any supplements, the "Senior Note Indenture") each between the
Company and ___________________, as Trustee (the "Senior Note Trustee"), in
substantially the form heretofore delivered to the Representatives. Until the
Release Date (as defined in the Senior Note Indenture), the Senior Notes will be
secured by one or more series of Senior Note First Mortgage Bonds (as defined in
the Senior Note Indenture) issued and delivered by the Company to the Senior
Note Trustee. On the Release Date, the Senior Notes will cease to be secured by
the Senior Note First Mortgage Bonds and will become unsecured obligations of
the Company. The Senior Note First Mortgage Bonds securing the Senior Notes will
be issued under the Company's Mortgage and Deed of Trust, dated as of April 1,
1932, with Bankers Trust Company, New York, New York, as Trustee (the "Mortgage
Trustee"), as heretofore supplemented and amended by
<PAGE>
2
Supplemental Indentures and as the same may be further supplemented by a
Supplemental Indenture relating to the Senior Note First Mortgage Bonds (such
Mortgage and Deed of Trust, as so supplemented and amended and as to be
supplemented and amended being hereinafter referred to as the "Mortgage" and
such Supplemental Indenture being referred to as the "Supplemental Indenture").
The terms and rights of the Senior Notes shall be as specified in the Pricing
Agreement relating thereto and specified in or pursuant to the Senior Note
Indenture.
1. Particular sales of Designated Senior Notes may be made from time
to time to the Underwriters of such Senior Notes for whom the firms designated
as representatives of the Underwriters of such Senior Notes in the Pricing
Agreement relating thereto will act as representatives (the "Representatives").
The term "Representatives" also refers to a single firm acting as sole
representative of the Underwriters and to Underwriters who act without any firm
being designated as their representative. This Agreement shall not be construed
as an obligation of the Company to sell any of the Senior Notes to the
Underwriters or as an obligation of any of the Underwriters to purchase any of
the Senior Notes. The obligation of the Company to issue and sell any of the
Senior Notes and the obligation of any of the Underwriters to purchase any of
the Senior Notes shall be evidenced by the Pricing Agreement with respect to the
Designated Senior Notes specified therein. Each Pricing Agreement shall specify
the aggregate principal amount of such Designated Senior Notes, the public
offering price of such Designated Senior Notes, the purchase price to the
Underwriters of such Designated Senior Notes, the names of the Underwriters of
such Designated Senior Notes, the names of the Representatives of such
Underwriters and the principal amount of such Designated Senior Notes to be
purchased by each Underwriter, and shall set forth the date, time and manner of
delivery of such Designated Senior Notes and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the Senior Note
Indenture, the Registration Statement (as defined in Section 2 hereof) and the
Prospectus (as defined in Section 2 hereof)) the terms of such Designated Senior
Notes. A Pricing Agreement shall be in the form of an executed writing (which
may be in counterparts), and may be evidenced by an exchange of telegraphic
communications or communications transmitted through any other rapid
transmission device designed to produce a written record of communications
transmitted. The obligations of the Underwriters under this Agreement and each
Pricing Agreement shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(a) A registration statement in respect of the Senior Notes has been
filed with the Securities and Exchange Commission (the "Commission"); such
registration statement
<PAGE>
3
and any post-effective amendment thereto, each in the form heretofore
delivered or to be delivered to the Representatives and, excluding
exhibits to such registration statement, but including all documents
incorporated by reference in the prospectus contained therein, to the
Representatives for each of the other Underwriters have been declared
effective by the Commission in such form; other than a registration
statement, if any, increasing the size of the offering (a "Rule 462(b)
Registration Statement"), filed, pursuant to rule 462(b) under the
Securities Act of 1933, as amended (the "Act"), which became effective
upon filing, no other document with respect to such registration statement
or document incorporated by reference therein has heretofore been filed or
transmitted for filing with the Commission; and no stop order suspending
the effectiveness of such registration statement or the Rule 462(b)
Registration Statement, if any, has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in such registration statement or filed
with the Commission pursuant to Rule 424(a) of the rules and regulations
of the Commission under the Act being hereinafter called a "Preliminary
Prospectus"; the various parts of such registration statement and the Rule
462(b) Registration Statement, if any, including all exhibits thereto and
the documents incorporated by reference in the prospectus contained in the
registration statement at the time such part of the registration statement
became effective but excluding Form T-1, each as amended at the time such
part of the Registration Statement became effective or such part of the
Rule 462(b) Registration Statement, if any, became effective, being
hereinafter called the "Registration Statement"; the prospectus relating
to the Senior Notes, in the form in which it has most recently been filed,
or transmitted for filing, with the Commission on or prior to the date of
this Agreement, being hereinafter called the "Prospectus"; any reference
herein to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein
pursuant to the applicable form under the Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; any reference to
any amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or Prospectus, as the case
may be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment to the Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to Section 13(a)
or 15(d) of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in
<PAGE>
4
the Registration Statement; and any reference to the Prospectus as amended
or supplemented shall be deemed to refer to the Prospectus as amended or
supplemented in relation to the applicable Designated Senior Notes in the
form in which it is filed with the Commission pursuant to Rule 424(b)
under the Act in accordance with Section 5(a) hereof, including any
documents incorporated by reference therein as of the date of such
filing);
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents 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; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement
thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects to
the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and
in conformity with information furnished in writing to the Company by an
Underwriter of Designated Senior Notes through the Representatives
expressly for use in the Prospectus as amended or supplemented relating to
such Senior Notes;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act of 1939 (the "Trust Indenture Act")
and the rules and regulations of the Commission thereunder and do not and
will not, as of the applicable effective date as to the Registration
Statement and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, 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;
provided, however, that this representation and warranty shall not apply
to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an Underwriter of
Designated Senior Notes through
<PAGE>
5
the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Senior Notes;
(d) Other than as set forth in or contemplated by the Prospectus,
(i) the Company has not sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus any material loss or interference with its business whether or
not insured against; and (ii) since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
there has not been, and prior to the Time of Delivery (as defined in
Section 4 hereof) there will not be, any change in the capital stock,
long-term debt or long-term lease obligations or commitments of the
Company (other than as occasioned by shares of common stock having been
issued pursuant to the Company's Dividend Reinvestment and other stock
plans) or any material adverse change, or any development which the
Company has reasonable cause to believe will involve a prospective
material adverse change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the
Company;
(e) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Indiana
with full power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectus and to execute and
deliver this Agreement and to perform its obligations hereunder and under
any Pricing Agreement, and the Company is not qualified as a foreign
corporation in any jurisdiction and the nature of its operations is such
that it is not required to be so qualified;
(f) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable;
(g) The Company has good and marketable title in fee simple to all
of the principal plants and other important units of the Company's
property referred to in the Prospectus, except as to Unit Number Four
located in the Warrick Power Plant of Alcoa Generating Corporation in
which Unit the Company has good and marketable title in fee simple as a
tenant in common with Alcoa Generating Corporation, and except that the
Company's transmission and distribution lines and mains are constructed
principally either under indeterminate permits or other permits from
governmental authorities or on rights-of-way held by the Company in fee
simple title or by easement from apparent owners and, in addition to the
fee simple ownership of certain lands for gas storage purposes, the
Company owns rights of gas storage
<PAGE>
6
and other rights incidental thereto which other rights are in the nature
of easements only; the transmission and distribution lines and pipeline
and storage easements enjoyed by the Company are valid, subsisting and
enforceable easements with such exceptions as are not material and do not
interfere with the conduct of the business of the Company; substantially
all the physical property and franchises owned by the Company are subject
to the Mortgage; any property held under lease by the Company is held by
it under valid, subsisting and enforceable leases with such exceptions as
are not material and do not interfere with the use made and proposed to be
made by the Company of any such property that is material to the business
of the Company; the gas purchase contracts referred to in the Prospectus
are valid and binding contracts in accordance with their terms; the
operating agreement with Alcoa Generating Corporation referred to in the
Prospectus is a valid and binding contract in accordance with its terms;
and except as otherwise set forth in the Prospectus, the Company possesses
all licenses, franchises, indeterminate permits, necessity certificates,
and other permits, authorizations, approvals, consents and orders of all
governmental authorities or agencies necessary for the ownership,
operation or lease of the properties owned, operated or leased by it and
for the operation of its business as described in the Registration
Statement and Prospectus; all such licenses, franchises, indeterminate
permits, necessity certificates, other permits, authorizations, approvals,
consents and orders are in full force and effect and contain no unduly
burdensome provisions and, except as otherwise set forth in the
Prospectus, there are no legal, governmental or administrative proceedings
pending or, to the knowledge of the Company, threatened that would result
in a material modification, suspension or revocation thereof;
(h) This Agreement has been duly and validly authorized, executed
and delivered on behalf of the Company; any Pricing Agreement, when
executed and delivered by the Company, will have been duly and validly
authorized, executed and delivered on behalf of the Company; the Senior
Notes and the Senior Note First Mortgage Bonds have been duly and validly
authorized, and, when issued and delivered pursuant to this Agreement and
the Pricing Agreement with respect to such Designated Senior Notes, will
have been duly and validly executed, authenticated, issued and delivered
and will constitute valid and legally binding obligations, subject to the
qualifications noted below, of the Company entitled to the benefits
provided by the Senior Note Indenture and the Mortgage, respectively,
which will be substantially in the forms filed as an exhibit to the
Registration Statement; the Senior Note Indenture and the Mortgage have
been duly and validly authorized, and duly qualified under the Trust
Indenture Act, and constitute
<PAGE>
7
valid and legally binding instruments of the Company, enforceable in
accordance with their terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and the Senior Note Indenture and the Mortgage conform and the
Designated Senior Notes will conform, to the descriptions thereof in the
Prospectus as amended or supplemented with respect to such Designated
Senior Notes;
(i) The Mortgage constitutes a legally valid and directly
enforceable first mortgage lien (except as enforceability of such lien may
be limited by bankruptcy, insolvency, reorganization or other laws
affecting the enforcement of creditors' rights) upon substantially all of
the Company's properties and franchises, free from all prior liens,
charges or encumbrances other than excepted encumbrances as defined
therein;
(j) The issuance and sale of the Senior Notes, the issuance of the
Senior Note First Mortgage Bonds and the compliance by the Company with
all of the provisions of the Senior Notes, Senior Note First Mortgage
Bonds, the Senior Note Indenture, the Mortgage, this Agreement and any
Pricing Agreement, and the consummation of the transactions contemplated
herein and therein will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, or (except for liens created by the Mortgage) result in the
creation or imposition of any lien, charge or encumbrance upon any of the
property or assets of the Company pursuant to the terms of any statute,
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company is a party or by which the Company is
bound or to which any of the property or assets of the Company is subject,
nor will such action result in the violation of the provisions of the
Company's Amended Articles of Incorporation or By-laws, or any statute or
any order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its properties; and no
consent, approval, authorization, order, registration or qualification of
or with any court or any such regulatory authority or other governmental
agency or body is required for the issue and sale of the Senior Notes or
the consummation by the Company of the other transactions contemplated by
this Agreement or any Pricing Agreement or the Senior Note Indenture or
the Mortgage except the order or orders of the Indiana Utility Regulatory
Commission which have been, or will have been prior to the Time of
Delivery, obtained and are or will be in full force and effect,
authorizing the issuance and sale of the Senior Notes and the Senior Note
First Mortgage Bonds, and such as may be required under the Act and the
Trust Indenture Act and such
<PAGE>
8
consents, approvals, authorizations, registrations or qualifications as
may be required under state securities or Blue Sky laws in connection with
the purchase and distribution of the Senior Notes by the Underwriters;
(k) Except as set forth in the Prospectus, there are no legal,
governmental or administrative proceedings pending to which the Company or
any of its subsidiaries is a party or of which any property of the Company
or any of its subsidiaries is the 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 general affairs, financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries; and, except as so set forth, to the best of the
Company's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(l) Arthur Andersen & Co., who have certified certain financial
statements of the Company, are independent public accountants as defined
in the Act and the rules and regulations of the Commission thereunder;
(m) The Company is a "holding company" as such term is defined under
the Public Utility Holding Company Act (the "1935 Act") and the Company is
exempt from all provisions of the 1935 Act except Section 9(A)(2); and
(n) The Company has reviewed its operations and that of its
subsidiaries and any third parties with which the Company or any of its
subsidiaries has a material relationship to evaluate the extent to which
the business or operations of the Company or any of its subsidiaries will
be affected by the Year 2000 Problem and has completed or is in the
process of completing measures which are designed to address the Year 2000
Problem. As a result of such review and such measures, the Company has no
reason to believe, and does not believe, that the Year 2000 Problem will
have a material adverse effect on the general affairs, management, the
current or future consolidated financial position, business prospects,
stockholders' equity or results of operations of the Company and its
subsidiaries or result in any material loss or interference with the
Company's business or operations. The "Year 2000 Problem" as used herein
means any significant risk that computer hardware or software used in the
receipt, transmission, processing, manipulation, storage, retrieval,
retransmission or other utilization of data or in the operation of
mechanical or electrical systems of any kind will not, in the case of
dates or time periods occurring after December 31, 1999, function at least
as effectively as in the case of dates or time periods occurring prior to
January 1, 2000.
<PAGE>
9
3. Upon the execution of the Pricing Agreement applicable to any
Designated Senior Notes and authorization by the Representatives of the release
of such Designated Senior Notes, the several Underwriters propose to offer such
Designated Senior Notes for sale upon the terms and conditions set forth in the
Prospectus as amended and supplemented.
4. Designated Senior Notes to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in definitive form to the
extent practicable, and in such authorized denominations and registered in such
names as the Representatives may request upon at least forty-eight hours' prior
notice to the Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by wire transfer of
Federal (same-day) funds to the account specified by the Company to the
Representatives at least forty-eight hours in advance, all at the place and time
and date specified in such Pricing Agreement or at such other place and time and
date as the Representatives and the Company may agree upon in writing, such time
and date being herein called the "Time of Delivery" for such Senior Notes.
5. The Company agrees with each of the Underwriters of any
Designated Senior Notes:
(a) To prepare the Prospectus as amended and supplemented in
relation to the applicable Designated Senior Notes in a form approved by
the Representatives and to file such Prospectus pursuant to Rule 424(b)
under the Act not later than the Commission's close of business on the
second business day following the execution and delivery of the Pricing
Agreement relating to the applicable Designated Senior Notes or, if
applicable, such earlier time as may be required by Rule 424(b); to make
no further amendment or any supplement to the Registration Statement or
Prospectus as amended and supplemented after the date of the Pricing
Agreement relating to such Senior Notes and prior to the Time of Delivery
for such Senior Notes which shall be disapproved by the Representatives
for such Senior Notes promptly after reasonable notice thereof; to advise
the Representatives promptly of any such amendment or supplement after
such Time of Delivery and furnish the Representatives with copies thereof;
to file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission
pursuant to Section 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 such Senior Notes, and during such same period to
advise the Representatives, promptly after it receives notice thereof, of
the time when any amendment to the Registration Statement has become
effective or any amendment or supplement to the Prospectus or any amended
<PAGE>
10
Prospectus has been filed, 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 Senior Notes, of the suspension of the qualification of
such Senior Notes 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 amending or supplementing of the
Registration Statement or Prospectus or for additional information; and in
the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the Senior
Notes or suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Senior Notes for
offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of such Senior
Notes, provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general consent
to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time to
time, to furnish the Underwriters with copies of the Registration
Statement and of each amendment and supplement thereto and copies of the
Prospectus as amended and supplemented in such quantities as the
Representatives may from time to time reasonably request, and, if the
delivery of a prospectus is required at any time in connection with the
offering or sale of any Designated Senior Notes 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 delivered, not misleading, or, if for
any other reason it shall be necessary during such same 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 so notify the
Representatives and upon their request to file such document and to
prepare and furnish without charge to each Underwriter and to any dealer
in Senior Notes as many copies as the Representatives may from time to
time reasonably request; and in case any Underwriter is required to
deliver a Prospectus in connection with sales of any Designated Senior
Notes at any
<PAGE>
11
time nine months or more after the time or issue of the Prospectus
relating to such Designated Senior Notes, upon the request of the
Representatives but at the expense of such Underwriter, to prepare and
deliver to such Underwriter as many copies as the Representatives may
request of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Act;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than 90 days after the close of
the period covered thereby, an earnings statement of the Company and its
subsidiaries, if any (which need not be audited), complying with Section
11(a) of the Act (including, at the option of the Company, Rule 158
thereunder) and covering (i) a twelve-month period beginning not later
than the first day of the fiscal quarter next following the date of the
Pricing Agreement and (ii) after the date of the post-effective amendment,
if any, to the Registration Statement next preceding the date of the
Pricing Agreement relating to the Designated Senior Notes;
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Senior Notes and continuing to and including
the earlier of (i) the termination of trading restrictions on such
Designated Senior Notes, as notified to the Company by the Representatives
and (ii) the Time of Delivery for such Designated Senior Notes, not to
offer, sell, contract to sell or otherwise dispose of any debt Senior
Notes of the Company which mature more than one year after such Time of
Delivery and which are substantially similar to such Designated Senior
Notes, without the prior written consent of the Representatives; and
(f) To apply the net proceeds from the sale of the Senior Notes in
the manner set forth under "Use of Proceeds" in the Prospectus.
(g) If the Company elects to rely upon Rule 462(b), the Company
shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the
date of this Agreement, and the Company shall at the time of filing either
pay to the Commission the filing fee for the Rule 462(b) Registration
Statement or give irrevocable instructions for the payment of such fee
pursuant to Rule 111(b) under the Act.
6. The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Senior Notes under the Act and all other
<PAGE>
12
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
(except as otherwise expressly provided in Section 5(c) hereof) amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing any Agreement among
Underwriters, this Agreement, any Pricing Agreement, any Mortgage, any Senior
Note Indenture, any Blue Sky and Legal Investment Memoranda and any other
documents in connection with the offering, purchase, sale and delivery of the
Senior Notes; (iii) all expenses in connection with the qualification of the
Senior Notes for offering and sale under state securities laws as provided in
Section 5(b) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with Blue
Sky and legal investment surveys; (iv) any fees charged by securities rating
services for rating the Senior Notes or the Senior Note First Mortgage Bonds;
(v) any filing fees incident to any required review by the National Association
of Securities Dealers, Inc., of the terms of the sale of the Senior Notes; (vi)
the cost of printing, preparing and delivering the Senior Notes; (vii) the fees
and expenses of any Senior Note Trustee or Mortgage Trustee and any agent of any
Senior Note Trustee or Mortgage Trustee and the fees and disbursements of
counsel for any Senior Note Trustee in connection with any Mortgage or Senior
Note Indenture and the Senior Notes or the Senior Note First Mortgage Bonds;
(viii) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in this
Section; and (ix) any advertising expenses connected with the offering and sale
of the Senior Notes so long as such advertising expenses have been approved by
the Company. It is understood, however, that, except as provided in this
Section, Section 8 and Section 11 hereof, the Underwriters will pay all of their
own costs and expenses, including the fees of their counsel, transfer taxes on
resale of any of the Senior Notes by them, and any advertising expenses
connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Senior
Notes under the Pricing Agreement relating to such Designated Senior Notes shall
be subject, in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Senior Notes are, at and as of the Time of Delivery for such Designated Senior
Notes, true and correct, the condition that the Company shall have performed all
of its obligations hereunder theretofore to be performed, and the following
additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Senior Notes shall have been filed with the
Commission pursuant to Rule 424(b)
<PAGE>
13
within the applicable time period prescribed for such filing by the rules
and regulations under the Act and in accordance with Section 5(a) hereof;
if the Company has elected to rely upon Rule 462(b), the Rule 462(b)
Registration Statement shall have become effective by 10:00 p.m.,
Washington, D.C. time, on the date of this Agreement; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to the Representatives' reasonable satisfaction;
(b) Simpson Thacher & Bartlett, counsel for the Underwriters, shall
have furnished to the Representatives such opinion or opinions, dated the
Time of Delivery for such Designated Senior Notes, with respect to such
matters as the Representatives may reasonably request, and such counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(c) Bamberger, Foreman, Oswald and Hahn, counsel for the Company,
shall have furnished to the Representatives their written opinion, dated
the Time of Delivery for such Designated Senior Notes, in form and
substance satisfactory to the Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Indiana, with full power and authority (corporate and
other) to own its properties and conduct its business as described
in the Prospectus as amended or supplemented; to the best of such
counsel's knowledge, the Company is not qualified as a foreign
corporation in any jurisdiction and the nature of its operations is
such that it is not required to be so qualified;
(ii) The Company has an authorized capitalization as set forth
in the Prospectus as amended or supplemented, and all of the issued
shares of capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable;
(iii) The Company has good and marketable title in fee simple
to all of the principal plants and other important units of the
Company's property referred to in the Prospectus, except as to Unit
Number Four located in the Warrick Power Plant of Alcoa Generating
Corporation in which Unit the Company has good and marketable title
in fee simple as a tenant in common
<PAGE>
14
with Alcoa Generating Corporation, and except that the Company's
transmission and distribution lines and mains are constructed
principally either under indeterminate permits or other permits from
governmental authorities or on rights-of-way held by the Company in
fee simple title or by easement from apparent owners and, in
addition to the fee simple ownership of certain lands for gas
storage purposes, the Company owns rights of gas storage and other
rights incidental thereto which other rights are in the nature of
easements only; and the Indenture constitutes, as security for the
Senior Note First Mortgage Bonds, and other First Mortgage Bonds, a
first lien on substantially all the physical property and franchises
owned by the Company, subject only to excepted encumbrances, as
therein defined, and upon the acquisition hereafter by the Company
of similar property, will, subject to liens existing thereon at the
time of acquisition and to the due recordation of the Supplemented
Indenture in the counties in which property is located, create such
lien thereon;
(iv) Except as otherwise set forth in or contemplated by the
Prospectus, the Company possesses all licenses, franchises,
indeterminate permits, necessity certificates, and other permits,
authorizations, approvals, consents and orders of all governmental
authorities or agencies necessary for the ownership, operation or
lease of the properties owned, operated or leased by it and for the
operation of its business as described in the Registration Statement
and Prospectus, all such licenses, franchises, indeterminate
permits, necessity certificates, other permits, authorizations,
approvals, consents and orders are in full force and effect and
contain no unduly burdensome provisions and, except as otherwise set
forth in the Prospectus, there are no legal or governmental
proceedings pending or, to the knowledge of such counsel, threatened
that would result in a material modification, suspension or
revocation thereof;
(v) To the best of such counsel's knowledge after due inquiry
there are no legal or governmental proceedings pending to which the
Company is a party or of which property of the Company is the
subject, other than as set forth in the Prospectus as amended or
supplemented and except for proceedings incident to the kind of
business conducted by the Company which individually and in the
aggregate are not material to the Company; and to the best of such
counsel's knowledge no such proceedings are threatened or
<PAGE>
15
contemplated by governmental authorities or threatened by others;
(vi) This Agreement and the Pricing Agreement with respect to
the Designated Senior Notes have been duly authorized, executed and
delivered by the Company;
(vii) The Designated Senior Notes have been duly authorized,
executed, authenticated, issued and delivered and constitute valid
and legally binding obligations of the Company entitled (subject to
the qualifications noted in Paragraph (viii) below) to the benefits
provided by the Senior Note Indenture; and the Designated Senior
Notes and the Senior Note Indenture conform to the description
thereof in the Prospectus as amended or supplemented;
(viii) The Senior Note Indenture has been duly authorized,
executed and delivered by the parties thereto and constitutes a
valid and legally binding instrument, enforceable in accordance with
its terms, except as the same may be limited by bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; the Senior Note Indenture has been duly qualified under
the Trust Indenture Act, and all taxes and fees required to be paid
with respect to the execution and delivery of the Senior Note
Indenture, the filing and recording of the Senior Note Indenture and
the issuance of the Senior Notes have been paid;
(ix) The Senior Note First Mortgage Bonds have been duly
authorized, executed, authenticated, issued and delivered and
constitute valid and legally binding obligations of the Company
entitled (subject to the qualifications noted in Paragraph (x)
below) to the benefits provided by the Mortgage;
(x) The Mortgage has been duly authorized, executed and
delivered by the parties thereto and constitutes a valid and legally
binding instrument, enforceable in accordance with its terms,
[except as the same may be limited by laws of the States of Indiana
and Kentucky, where the property covered thereby is located,
relating to or affecting the remedies for the enforcement of the
security provided therein, which laws do not, in the opinion of such
counsel, make inadequate the remedies necessary for the realization
of the benefits of such security,] or as the same may be limited by
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to
<PAGE>
16
general equity principles; the Indenture has been duly qualified
under the Trust Indenture Act, and all taxes and fees required to be
paid with respect to the execution and delivery of the Mortgage, the
filing and recording of the Mortgage and the issuance of the Senior
Note First Mortgage Bonds have been paid;
(xi) The issuance and sale of the Designated Senior Notes and
the Senior Note First Mortgage Bonds and the compliance by the
Company with all of the provisions of the Designated Senior Notes,
the Senior Note Indenture, the Senior Note First Mortgage bonds, the
Mortgage, this Agreement and the Pricing Agreement with respect to
the Designated Senior Notes and the Senior Note First Mortgage Bonds
and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, or (except for liens created by the Mortgage) result
in the creation or imposition of any lien, charge or encumbrance
upon any of the property or assets of the Company pursuant to the
terms of any statute, indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such counsel to
which the Company is a party or by which the Company is bound or to
which any of the property or assets of the Company is subject, nor
will such action result in the violation of the provisions of the
Company's Amended Articles of Incorporation or By-Laws, or any
statute or any order, rule or regulation of any court or
governmental agency or entity having jurisdiction over the Company
or any of its properties;
(xii) The Indiana Utility Regulatory Commission has duly
authorized the issuance and sale of the Senior Notes and the Senior
Note First Mortgage Bonds as contemplated by this Agreement, such
approval is in full force and effect and the time to appeal has
expired, and no further consent, approval, authorization or order of
or registration or qualification with any court or governmental
agency or body is required for the issue and sale of the Senior
Notes or the Senior Note First Mortgage Bonds or the consummation by
the Company of the transactions contemplated by this Agreement or
any Pricing Agreement or the Mortgage or the Senior Note Indenture,
except such as have been obtained under the Act and the Trust
Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Senior Notes by the Underwriters;
<PAGE>
17
(xiii) Such counsel has no reason to believe that any of the
documents incorporated by reference in the Prospectus (other than
the financial statements and other financial data therein, as to
which such counsel need express no opinion), when they were filed
with the Commission, failed to comply as to form in all material
respects with the requirements of the Act, the Exchange Act and the
Trust Indenture Act, as applicable, and the rules and regulations of
the Commission thereunder, contained an untrue statement of a
material fact or omitted to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made when such documents were so filed, not
misleading; and
(xiv) Such counsel has no reason to believe that, as of the
Time of Delivery, either the Registration Statement or the
Prospectus as amended or supplemented or any further amendment or
supplement thereto made by the Company prior to the Time of Delivery
contains an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and such counsel does not know of
any contracts or other documents of a character required to be filed
as an exhibit to the Registration Statement or required to be
incorporated by reference into the Prospectus or required to be
described in the Registration Statement or the Prospectus which are
not filed or incorporated by reference or described as required;
(d) Winthrop, Stimson, Putnam & Roberts, counsel to the Company,
shall have furnished to you their written opinion, dated the Time of
Delivery for such Designated Senior Notes in form and substance
satisfactory to the Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly
existing in good standing under the laws of the State of Indiana,
with full power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus
as amended or supplemented;
(ii) The Designated Senior Notes have been duly authorized,
executed, authenticated, issued and delivered and constitute valid
and legally binding obligations of the Company entitled (subject to
the qualifications noted in Paragraph (iii) below) to the benefits
provided by the Senior Note Indenture; and the Designated Senior
Notes and the Senior Note Indenture
<PAGE>
18
conform to the description thereof in the Prospectus as amended or
supplemented;
(iii) The Senior Note Indenture has been duly authorized,
executed and delivered by the parties thereto and constitutes a
valid and legally binding instrument, enforceable in accordance with
its terms, except as the same may be limited by bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and the Senior Note Indenture has been duly qualified
under the Trust Indenture Act, and all taxes and fees required to be
paid with respect to the execution and delivery of the Senior Note
Indenture, the filing and recording of the Senior Note Indenture and
issuance of the Senior Notes have been paid;
(iv) The Senior Note First Mortgage Bonds have been duly
authorized, executed, authenticated, issued and delivered and
constitute valid and legally binding obligations of the Company
entitled (subject to the qualifications noted in Paragraph (v)
below) to the benefits provided by the Mortgage; and the Senior Note
First Mortgage Bonds and the Mortgage conform to the description
thereof in the Prospectus as amended or supplemented;
(v) The Mortgage has been duly authorized, executed and
delivered by the parties thereto and constitutes a valid and legally
binding instrument, enforceable in accordance with its terms, except
as the same may be limited by laws of the States of Indiana and
Kentucky, where the property covered thereby is located, relating to
or affecting the remedies for the enforcement of the security
provided for therein, or as the same may be limited by bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and the Mortgage has been duly qualified under the Trust
Indenture Act, and all taxes and fees required to be paid with
respect to the execution and delivery of the Mortgage, the filing
and recording of the Mortgage and issuance of the Senior Note First
Mortgage Bonds have been paid;
(vi) The documents incorporated by reference in the Prospectus
as amended or supplemented (other than the financial statements and
other financial data therein, as to which such counsel need express
no opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all material
respects with the requirements of the
<PAGE>
19
Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder; and they have no reason to
believe that any of such documents, when they became effective or
were so filed, as the case may be, contained an untrue statement of
a material fact or omitted to state a material fact necessary in
order to make the statements therein, in light of the circumstances
under which they were made when such documents were so filed, not
misleading; and
(vii) The Registration Statement has become effective under
the Act and to the best knowledge of such counsel no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or,
to the knowledge of such counsel, threatened by the Commission; and
(viii) The Registration Statement and the Prospectus as
amended or supplemented and any further amendments and supplements
thereto made by the Company prior to the Time of Delivery for the
Designated Senior Notes (other than the financial statements and
other financial data therein, as to which such counsel need express
no opinion) comply as to form in all material respects with the
requirements of the Act and the Trust Indenture Act and the rules
and regulations thereunder; they have no reason to believe that, as
of its effective date, the Registration Statement or any further
amendment thereto made by the Company prior to the Time of Delivery
(other than the financial statements and other financial data
therein, as to which such counsel need express no opinion) 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 its date, the
Prospectus as amended or supplemented or any further amendment or
supplement thereto made by the Company prior to the Time of Delivery
(other than the financial statements and other financial data
therein, as to which such counsel need express no opinion) contained
an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in light of
the circumstances in which they were made, not misleading or that,
as the Time of Delivery, either the Registration Statement or the
Prospectus as amended or supplemented or any further amendment or
supplement thereto made by the Company prior to the Time of Delivery
(other than the financial statements and other financial data
therein, as to which such counsel need express no opinion) contains
an untrue statement of a material fact or omits to state a material
fact
<PAGE>
20
necessary to make the statement therein, in light of the
circumstances in which they were made, not misleading; and they do
not know of any amendment to the Registration Statement required to
be filed or any contracts or other documents of a character required
to be filed as an exhibit to the Registration Statement or required
to be incorporated by reference into the Prospectus as amended or
supplemented or required to be described in the Registration
Statement or the Prospectus as amended or supplemented which are not
filed or incorporated by reference or described as required;
(ix) The terms of the Senior Notes conform as to legal matters
to the descriptions thereof and the statements in regard thereto
contained in the Registration Statement and the Prospectus as
amended or supplemented;
(x) The Indiana Utility Regulatory Commission has duly
authorized the issuance and sale of the Senior Notes and the Senior
Note First Mortgage Bonds as contemplated by this Agreement, such
approval is in full force and effect and the time to appeal has
expired, and no further consent, approval, authorization or order of
or registration or qualification with any court or governmental
agency or body is required for the issue and sale of the Senior
Notes or the Senior Note First Mortgage Bonds or the consummation by
the Company of the transactions contemplated by this Agreement of
any Pricing Agreement, the Mortgage or the Senior Note Indenture,
except such as have been obtained under the Act and the Trust
Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Senior Notes by the Underwriters; and
(xi) This Agreement and the Pricing Agreement relating to such
Designated Senior Notes have been duly authorized, executed and
delivered by the Company.
It is understood that in rendering such opinion, Winthrop, Stimson,
Putnam & Roberts may rely as to matters of Indiana and Kentucky law upon the
opinion of Bamberger, Foreman, Oswald and Hahn;
(e) At the Time of Delivery for such Designated Senior Notes, the
independent accountants of the Company who have certified the financial
statements of the Company and its subsidiaries, if any, included or
incorporated by reference in the Registration Statement shall have
furnished to the
<PAGE>
21
Representatives a letter dated such Time of Delivery in form and substance
satisfactory to the Representatives, to the effect set forth in Annex II
hereto and as to such other matters as the Representatives may reasonably
request;
(f) Other than as set forth or contemplated in the Prospectus as
amended or supplemented (i) the Company shall not have sustained since the
date of the latest audited financial statements included or incorporated
by reference in the Prospectus as amended or supplemented any loss or
interference with its business whether or not insured against, and (ii)
since the respective dates as of which information is given in the
Prospectus as amended or supplemented there shall not have been any change
in the capital stock, long-term debt or long-term lease obligations or
commitments of the Company (other than occasioned by shares of common
stock having been issued pursuant to the Company's Dividend Reinvestment
and other stock plans) or any change, or any development involving a
prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the
Company, the effect of which in any such case described in Clause (i) or
(ii) is in the judgment of the Representatives so material and adverse as
to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Designated Senior Notes on the terms and
in the manner contemplated in the Prospectus as amended or supplemented;
(g) On or after the date of the Pricing Agreement relating to the
Designated Senior Notes, (i) no downgrading shall have occurred in the
rating accorded the Company's [senior] debt securities by any "nationally
recognized statistical rating organization," as that term is defined by
the Commission for purposes of Rule 436(g)(2) under the Act and (ii) no
such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of
any of the Company's debt securities;
(h) On or after the date of the Pricing Agreement relating to the
Designated Senior Notes there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a general
moratorium on commercial banking activities in New York declared by either
Federal or New York State authorities; or (iii) the 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 specified in this Clause (iii) in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Designated Senior Notes on
<PAGE>
22
the terms and in the manner contemplated in the Prospectus as amended or
supplemented;
(i) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement; and
(j) The Company shall have furnished or caused to be furnished to
the Representatives at the Time of Delivery for the Designated Senior
Notes a certificate or certificates of officers of the Company
satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company herein at and as of such
Time of Delivery, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (f) of this
Section and as to such other matters as the Representatives may reasonably
request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter 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 an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Senior Notes, or any
amendment or supplement thereto, 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 each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Senior Notes, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
of Designated Senior Notes through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Senior Notes; and
provided further, that the Company shall not be liable to any Underwriter under
the indemnity agreement in this subsection (a) with respect to any Preliminary
Prospectus to the extent that any such loss, claim, damage or liability of such
Underwriter results from the fact
<PAGE>
23
that such Underwriter sold Designated Senior Notes to a person as to whom it
shall be established that there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Prospectus in any case where
such delivery is required by the Act if such Underwriter failed to make
reasonable efforts generally consistent with the then prevailing industry
practice and the Company has previously furnished copies thereof in sufficient
quantity and on a timely basis to such Underwriter and the loss, claim, damage
or liability of such Underwriter results from an untrue statement or omission of
a material fact contained in the Preliminary Prospectus which was identified in
writing to such Underwriter and corrected in the Prospectus.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company 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 an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary prospectus supplement,
the Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Senior Notes, or any amendment or supplement
thereto, 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, 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 any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Senior Notes, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under Subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel
<PAGE>
24
satisfactory to such indemnified party (who shall not, except with 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 shall not be liable to
such indemnified party under such subsection for any legal expenses of other
counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
Subsection (a) or (b) above 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 fault of the Company on the one hand and the Underwriters of the
Designated Senior Notes 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, including relative benefit. 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 relates to information supplied by the Company on the one hand
or such Underwriters 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 the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Subsection (d) were determined by pro
rata allocation (even if the Underwriters 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 Subsection (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
Subsection (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 Subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the applicable Designated Senior Notes
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter 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
<PAGE>
25
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters of Designated Senior
Notes in this Subsection (d) to contribute are several in proportion to their
respective underwriting obligations with respect to such Senior Notes 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
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Designated Senior Notes which it has agreed to purchase under the
Pricing Agreement relating to such Designated Senior Notes, the Representatives
may in their discretion arrange for themselves or another party or other parties
to purchase such Designated Senior Notes on the terms contained herein. If
within thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Designated Senior Notes,
then the Company shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties satisfactory to the
Representatives to purchase such Designated Senior Notes on such terms. In the
event that, within the respective prescribed period, the Representatives notify
the Company that they have so arranged for the purchase of such Designated
Senior Notes, or the Company notifies the Representatives that it has so
arranged for the purchase of such Designated Senior Notes, the Representatives
or the Company shall have the right to postpone the Time of Delivery for such
Designated Senior Notes for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus as amended or supplemented, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which
in the opinion of the Representatives may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section 9 with like effect as if such person had originally been a
party to the Pricing Agreement relating to such Designated Senior Notes.
(b) If, after giving effect to any arrangements for the purchase of
the Designated Senior Notes of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in Subsection (a) above, the
aggregate
<PAGE>
26
principal amount of such Designated Senior Notes which remains unpurchased does
not exceed one-eleventh of the aggregate principal amount of the Designated
Senior Notes, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Designated Senior
Notes which such Underwriter agreed to purchase under the Pricing Agreement
relating to such Designated Senior Notes and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Designated Senior Notes which such Underwriter agreed to
purchase under such Pricing Agreement) of the Designated Senior Notes of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Designated Senior Notes of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in Subsection (a) above, the
aggregate principal amount of Designated Senior Notes which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Designated Senior
Notes, as referred to in Subsection (b) above, or if the Company shall not
exercise the right described in Subsection (b) above to require non-defaulting
Underwriters to purchase Designated Senior Notes of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Designated Senior
Notes shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be borne
by the Company and the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them, respectively,
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 Underwriter or any controlling person of any Underwriter, or the
Company, or any officer or director or controlling person of the Company, and
shall survive delivery of and payment for the Senior Notes.
11. If any Pricing Agreement shall be terminated pursuant to Section
9 hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Designated Senior Notes covered by such Pricing Agreement
except as provided in Section 6 and Section 8 hereof; but, if for any other
reason Designated Senior Notes are not delivered by or on behalf of the Company
as provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket
<PAGE>
27
expenses approved in writing by the Representatives, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of such Designated Senior
Notes, but the Company shall then be under no further liability to any
Underwriter with respect to such Designated Senior Notes except as provided in
Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representatives of the
Underwriters of Designated Senior Notes shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by such Representatives jointly or by such of the Representatives, if any,
as may be designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be
in writing, and if to the Underwriters shall be delivered or sent by mail or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail or
facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
registered mail to such Underwriter at its address provided to the Company for
the purpose of notices pursuant to such Section 8(c).
13. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters, the Company and, to the
extent provided in Section 8 and Section 10 hereof, the officers and directors
of the Company and each person who controls the Company or any Underwriter, and
their respective heirs, executors, administrators, successors and assigns, and
no other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Senior Notes
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business. As used herein, "New York Business Day"
shall mean any day when the New York Stock Exchange is open for business.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement and each Pricing Agreement may be executed by any
one or more of the parties hereto and thereto in
<PAGE>
28
any number of counterparts, each of which shall be deemed to be an original, but
all such respective counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with your understanding, please
sign and return to us 5 counterparts hereof.
Very truly yours,
Southern Indiana Gas and
Electric Company
By:
-------------------------------
Name:
Title:
- -----------------------------
<PAGE>
ANNEX I
PRICING AGREEMENT
[Date]
Dear Sirs:
Southern Indiana Gas and Electric Company (the "Company") proposes,
subject to the terms and conditions stated herein and in the Underwriting
Agreement, dated 1999 (the "Underwriting Agreement"), between the Company, on
the one hand, and you, on the other hand, to issue and sell to you the Senior
Notes specified in Schedule I hereto (the "Designated Senior Notes"). Each of
the provisions of the Underwriting Agreement is incorporated herein by reference
in its entirety, and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Pricing Agreement, except that each of the
representations and warranties set forth in Section 2 of the Underwriting
Agreement with respect to the Prospectus or the information contained in the
Prospectus shall constitute a representation or warranty thereof (a) as of the
date of the Underwriting Agreement with respect to the Prospectus (as therein
defined), and also (b) as of the date of this Pricing Agreement with respect to
the Prospectus as amended or supplemented relating to the Designated Senior
Notes which are the subject of this Pricing Agreement. Each reference to the
Representatives herein and in the provisions of the Underwriting Agreement so
incorporated by reference shall be deemed to refer to you. Unless otherwise
defined herein; terms defined in the Underwriting Agreement are used herein as
therein defined.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Senior Notes, in the
form heretofore delivered to you is now proposed to be filed, or in the case of
a supplement mailed for filing, with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to you, and you agree to purchase from the Company, at the time
and place and at
<PAGE>
2
a purchase price to you set forth in Schedule I hereto, the principal amount of
Designated Senior Notes set forth on Schedule I.
<PAGE>
3
If the foregoing is in accordance with your understanding, please
sign and return to us 5 counterparts hereof, and upon acceptance by you, this
letter and such acceptance hereof, including the provisions of the Underwriting
Agreement incorporated herein by reference, shall constitute a binding agreement
between you and the Company.
Very truly yours,
Southern Indiana Gas and
Electric Company
By
---------------------------------
Accepted as of the date hereof:
- ------------------------------
<PAGE>
ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, the
accountants shall furnish a letter to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the Act
and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
prospective financial statements and/or pro forma financial information)
examined by them and included or incorporated by reference in the
Registration Statement or the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the Act or the
Exchange Act, as applicable, and the related published rules and
regulations thereunder; and, if applicable, they have made a review in
accordance with standards established by the American Institute of
Certified Public Accountants of the consolidated interim financial
statements, selected financial data, pro forma financial information,
prospective financial statements and/or condensed financial statements
derived from audited financial statements of the Company for the periods
specified in such letter, as indicated in their reports thereon, copies of
which have been furnished to the representative of the Underwriters (the
"Representatives");
(iii) The unaudited selected financial information with
respect to the consolidated results of operations and financial position
of the company for the five most recent fiscal years included in the
Prospectus and included or incorporated by reference in Item 6 of the
Company's Annual Report on Form 10-K for the most recent fiscal year
agrees with the corresponding amounts (after restatement where applicable)
in the audited consolidated financial statements for five such fiscal
years which were included or incorporated by reference in the Company's
Annual Reports on Form 10-K for such fiscal years;
(iv) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of
the minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting
<PAGE>
2
matters and such other inquiries and procedures as may be specified in
such letter, nothing came to their attention that caused them to believe
that:
(A) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash
flows included or incorporated by reference in the Company's
Quarterly Reports on Form 10-Q incorporated by reference in the
Prospectus do not comply as to form in all material respects with
the applicable accounting requirements of the Exchange Act as it
applies to Form 10-Q and the related published rules and regulations
thereunder or are not in conformity with generally accepted
accounting principles applied on a basis substantially consistent
with the basis for the audited consolidated statements of income,
consolidated balance sheets and consolidated statements of cash
flows included or incorporated by reference in the Company's Annual
Report on Form 10-K for the most recent fiscal year;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any such
unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included or
incorporated by reference in the Company's Annual Report on Form
10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included
in the Prospectus but from which were derived the unaudited
condensed financial statements referred to in clause (A) and any
unaudited income statement data and balance sheet items included in
the Prospectus and referred to in Clause (B) were not determined on
a basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal
year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus
do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the published
rules and regulations thereunder or the pro forma adjustments have
not been properly applied to the historical amounts in the
compilation of those statements;
<PAGE>
3
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital stock
upon exercise of options and stock appreciation rights, upon
earn-outs of performance shares and upon conversions of convertible
securities, in each case which were outstanding on the date of the
latest balance sheet included or incorporated by reference in the
Prospectus) or any increase in the consolidated long-term debt of
the Company and its subsidiaries, or any decreases in consolidated
net current assets or net assets or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with amounts shown in the
latest balance sheet included or incorporated by reference in the
Prospectus, except in each case for changes, increases or decreases
which the Prospectus discloses have occurred or may occur or which
are described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus
to the specified date referred to in Clause (E) there were any
decreases in consolidated net revenues or operating profit or the
total or per share amounts of consolidated net income or other items
specified by the Representatives, or any increases in any items
specified by the Representatives, in each case as compared with the
comparable period of the preceding year and with any other period of
corresponding length specified by the Representatives, except in
each case for increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such letter;
and
(v) In addition to the examination referred to in their
report(s) included or incorporated by reference in the Prospectus and the
limited procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (iii) and (iv) above, they have
carried out certain specified procedures, not constituting an examination
in accordance with generally accepted auditing standards, with respect to
certain amounts, percentages and financial information specified by the
Representatives which are derived from the general accounting records of
the Company and its subsidiaries, which appear in the Prospectus
(excluding documents incorporated by reference), or in Part II of, or in
exhibits and schedules to, the Registration Statement specified by the
Representatives or in documents incorporated by reference in the
Prospectus specified by the Representatives, and have compared certain of
such amounts, percentages and financial information with the accounting
<PAGE>
4
records of the Company and its subsidiaries and have found them to be in
agreement.
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) in relation to the applicable Designated
Senior Notes for purposes of the letter delivered at the Time of Delivery for
such Designated Senior Notes.
<PAGE>
SCHEDULE I
Principal
Underwriter Amount
- ----------- ---------
Total
=========
<PAGE>
2
SCHEDULE II
Title of Designated Senior Notes:
Senior Notes, ____% Series Due
___________
Aggregate principal amount:
$
Price to Public:
____% of the principal amount of
the Designated Senior Notes, plus accrued
interest from ________ to the
Time of Delivery
Purchase Price by Underwriters:
_____% of the principal amount of
the Designated Senior Notes, plus accrued
interest from ________ to the
Time of Delivery
Indenture:
Maturity:
________
Interest Rate:
_____%
Interest Payment Dates:
________ and ________ of each year,
commencing ________
Redemption Provisions:
Sinking Fund Provisions:
Time of Delivery:
10:00 a.m.
[Closing Date]
Closing Location:
SOUTHERN INDIANA GAS AND ELECTRIC COMPANY
WITH
BANKERS TRUST COMPANY,
as Trustee
SUPPLEMENTAL INDENTURE
Providing among other things for
FIRST MORTGAGE BONDS
___% Senior Note Series of 1999 due 20__
Dated as of July __, 1999
<PAGE>
SUPPLEMENTAL INDENTURE, dated as of July __, 1999, between SOUTHERN
INDIANA GAS AND ELECTRIC COMPANY, a corporation organized and existing under the
laws of the State of Indiana (hereinafter called the "Company"), party of the
first part, and BANKERS TRUST COMPANY, a corporation organized and existing
under the laws of the State of New York, as Trustee under the Mortgage
hereinafter referred to, party of the second part.
WHEREAS, the Company heretofore executed and delivered to Bankers
Trust Company, as Trustee (hereinafter called the "Trustee"), a certain
Indenture of Mortgage and Deed of Trust dated as of April 1, 1932, to secure an
issue of bonds of the Company, issued and to be issued in series, from time to
time, in the manner and subject to the conditions set forth in the said
Indenture, and the said Indenture has been amended and supplemented by
Supplemental Indentures dated as of August 31, 1936, October 1, 1937, March 22,
1939, July 1, 1948, June 1, 1949, October 1, 1949, January 1, 1951, April 1,
1954, March 1, 1957, October 1, 1965, September 1, 1966, August 1, 1968, May 1,
1970, August 1, 1971, April 1, 1972, October 1, 1973, April 1, 1975, January 15,
1977, April 1, 1978, June 4, 1981, January 20, 1983, November 1, 1983, March 1,
1984, June 1, 1984, November 1, 1984, July 1, 1985, November 1, 1985, June 1,
1986, November 15, 1986, January 15, 1987, December 15, 1987, December 13, 1990,
April 1, 1993, May 1, 1993 and June 1, 1993, which Indenture as so amended and
supplemented is hereinafter referred to as the "Mortgage" and as further
supplemented by this Supplemental Indenture is hereinafter referred to as the
"Indenture"; and
WHEREAS, the Mortgage provides that the Company and the Trustee may,
from time to time, enter into such indentures supplemental to the Mortgage as
shall be deemed by them necessary or desirable, to establish the terms and
provisions of any series of bonds to be issued under said Mortgage and to add to
the covenants and agreements of the Company for the protection of the holders of
bonds and of the mortgaged and pledged property; and
WHEREAS, the Company and the Trustee deem it necessary or desirable
to enter into this Supplemental Indenture for such purposes; and
WHEREAS, the Company by appropriate corporate action in conformity
with the terms of the Indenture has duly determined to create a series of bonds
to be issued under the Indenture to be designated as "First Mortgage Bonds, ___%
Senior Note Series of 1999 due 20__" (hereinafter sometimes referred to as
"bonds of the Thirty-Eighth Series"), the bonds of which series are to bear
interest at the rate per annum set forth in the title thereof; and
WHEREAS, the definitive registered (without coupons) bonds of the
Thirty-Eighth Series and the Trustee's certificate of authentication to be borne
by such bonds are to be substantially in the following forms, respectively:
[FORM OF FULLY REGISTERED BOND OF THE THIRTY-EIGHTH SERIES]
[FORM OF FACE OF BOND]
<PAGE>
SOUTHERN INDIANA GAS AND ELECTRIC COMPANY
FIRST MORTGAGE BOND, ___% SENIOR NOTE SERIES OF 1999
DUE 20__
No. _______ $ __________
Southern Indiana Gas and Electric Company, a corporation of the
State of Indiana (hereinafter called the "Company"), for value received, hereby
promises to pay to ______________________________ or registered assigns
______________________________ dollars, on July __, 20__ at the office or agency
of the Company in the Borough of Manhattan, The City of New York, New York, in
any coin or currency of the United States of America which at the time of
payment is legal tender for the payment of public and private debts, and to pay
to the registered owner hereof interest thereon from the interest payment date
(________ 1 or ________ 1) next preceding the date of this bond unless the date
hereof is prior to ________ 1, 1999, in which case from ________ 1, 1999 (or, of
this bond is dated between the record date for any interest payment date and
such interest payment date, then from such interest payment date), at the rate
of _____________ per cent (__%) per annum in like coin or currency, payable at
said office or agency on ________ 1 and ________ 1 in each year, until the
Company's obligation with respect to the payment of such principal shall have
been discharged. The interest so payable on any ________ 1 or ________ 1 will,
subject to certain exceptions provided in the Mortgage hereinafter mentioned, be
paid to the person in whose name this bond is registered at the close of
business on the record date, which shall be the ________ 15 or ________ 15, as
the case may be, next preceding such interest payment date, or, if such ________
15 or ________ 15 shall be a legal holiday or a day on which banking
institutions in the Borough of Manhattan, The City of New York, New York, are
authorized or obligated by law to close, the next preceding day which shall not
be a legal holiday or a day on which such institutions are so authorized or
obligated to close.
The provisions of this bond are continued on the reverse hereof and
such continued provisions shall for all purposes have the same effect as though
fully set forth at this place.
This bond shall not become obligatory until Bankers Trust Company,
the Trustee under the Mortgage, or its successor thereunder, shall have signed
the form of certificate endorsed hereon.
IN WITNESS WHEREOF, Southern Indiana Gas and Electric Company has
caused this bond to be signed in its name by its President or a Vice President,
by his signature or a facsimile thereof, and a facsimile of its corporate seal
to be imprinted hereon, attested by its Secretary or an Assistant Secretary, by
his signature or a facsimile thereof.
2
<PAGE>
Dated:
SOUTHERN INDIANA GAS AND
ELECTRIC COMPANY
By:
-------------------------------------
Name:
Title: President and
Chief Executive Officer
Attest:
- -------------------------------
Secretary
3
<PAGE>
[FORM OF TRUSTEE'S CERTIFICATE]
This bond is one of the bonds of the series designated therein,
described in the within-mentioned Mortgage.
BANKERS TRUST COMPANY,
as Trustee,
By:
-------------------------------------
Name:
Title:
[FORM OF REVERSE OF BOND]
SOUTHERN INDIANA GAS AND ELECTRIC COMPANY
FIRST MORTGAGE BOND, __% SENIOR NOTE SERIES OF 1999 DUE 20__
This bond is one of an issue of First Mortgage Bonds of the Company,
issuable in series, and is one of the series designated in the title hereof, all
issued and to be issued under and equally secured (except as to any sinking fund
established in accordance with the provisions of the Mortgage hereinafter
mentioned for the bonds of any particular series) by an Indenture of Mortgage
and Deed of Trust, dated as of April 1, 1932, executed by the Company to Bankers
Trust Company, as Trustee, as amended and supplemented by indentures
supplemental thereto, to which Indenture as so amended and supplemented (herein
referred to as the Mortgage) reference is made for a description of the property
mortgaged and pledged, the nature and extent of the security, the rights of the
holders of the bonds in respect thereof and the terms and conditions upon which
the bonds are secured.
The principal hereof may be declared or may become due on the
conditions, with the effect, in the manner and at the time set forth in the
Mortgage, upon the occurrence of a completed default as provided in the
Mortgage.
4
<PAGE>
The bonds of this series shall be redeemable as follows: [ ]
5
<PAGE>
This bond is transferable as prescribed in the Mortgage by the
registered owner hereof in person, or by his duly authorized attorney, at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, New York, upon surrender and cancellation of this bond, and thereupon, a
new fully registered bond of the same series for a like principal amount will be
issued to the transferee in exchange thereof as provided in the Mortgage, and
upon payment, if the Company shall require it, of the charges therein
prescribed. The Company and the Trustee may deem and treat the person in whose
name this bond is registered as the absolute owner for the purpose of receiving
payment of or on account of the principal, premium, if any, and interest due
hereon and for all other purposes.
The bonds of this series are issuable as registered bonds without
coupons in denominations of $1,000 and authorized multiples thereof. In the
manner and upon payment of the charges prescribed in the Mortgage, registered
bonds without coupons of this series may be exchanged for a like aggregate
principal amount of registered bonds without coupons of other authorized
denominations of the same series, upon presentation and surrender thereof, for
cancellation, to the Trustee at its principal corporate trust office in the
Borough of Manhattan, The City of New York, New York.
No recourse shall be had for the payment of the principal of,
premium, if any, or interest on this bond against any incorporator or any past,
present or future subscriber to the capital stock, stockholder, office or
director of the Company or of any predecessor or successor corporation, either
directly or through the Company or any predecessor or successor corporation,
under any rule of law, statute or constitution or by the enforcement of any
assessment or otherwise, all such liability of incorporators, subscribers,
stockholders, officers and directors being released by the holder or owner
hereof by the acceptance of this bond and being likewise waived and released by
the terms of the Mortgage.
Pursuant to the Mortgage, the holder or owner of this bond by his
acceptance hereof is deemed to have agreed to amendments to the Mortgage which
will eventually permit certain amendments to the Mortgage with the consent of
the holders of 66% of the principal amount of the outstanding bonds of all
series issued under the Mortgage, which redefine, effective at such time as all
bonds of each series of bonds issued under the Mortgage prior to January 1, 1977
are no longer outstanding, the amounts required to be spent by the Company under
the Mortgage for the repair, maintenance, renewal and replacement of its
property and which authorize the Company, effective at such time as all bonds of
each series issued under the Mortgage on or prior to May 31, 1986 are no longer
outstanding, to designate bonds of any series as the bonds to be redeemed
pursuant to Section 36B of the Mortgage and to do so at any time that cash for
such purpose is on deposit with Trustee pursuant to the provisions of that
Section.
[END OF FORM OF BOND]
6
<PAGE>
and
WHEREAS, all things necessary to make the bonds of the Thirty-Eighth
Series, when authenticated by the Trustee and issued as in the Indenture
provided, the valid, binding and legal obligations of the Company, entitled in
all respects to the security of the Indenture, have been done and performed, and
the creation, execution and delivery of this Supplemental Indenture has in all
respects been duly authorized; and
WHEREAS, the Company and the Trustee deem it advisable to enter into
this Supplemental Indenture for the purposes above stated and for the purpose of
describing the bonds of the Thirty-Eighth Series, and of providing the terms and
conditions of redemption thereof;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH: That
Southern Indiana Gas and Electric Company, in consideration of the premises and
of one dollar to it duly paid by the Trustee at or before the ensealing and
delivery of these presents, the receipt whereof is hereby acknowledged, and of
the purchase and acceptance of the bonds issued or to be issued hereunder by the
holders or registered owners thereof, and in order to secure the payment of the
principal, premium, if any, and interest of all bonds at any time issued and
outstanding under the Indenture, according to their tenor and effect, and the
performance of all of the provisions hereof and of said bonds, hath granted,
bargained, sold, released, conveyed, assigned, transferred, pledged, set over
and confirmed and by these presents doth grant, bargain, sell, release, convey,
assign, transfer, pledge, set over and confirm unto Bankers Trust Company, as
Trustee, and to its successor or successors in said trust, and to its and their
assigns forever, all the properties of the Company located in the State of
Indiana described in Schedule A (which is identified by the signature of an
officer of each party hereto at the end thereof) hereto annexed and hereby made
a part hereof and does hereby confirm that the Company will not cause or consent
to a partition, either voluntary or through legal proceedings, of property,
whether herein described or heretofore or hereafter acquired, in which its
ownership shall be as a tenant in common, except as permitted by and in
conformity with the provisions of the Indenture and particularly of Article X
thereof.
TOGETHER WITH all and singular the tenements, hereditaments and
appurtenances belonging or in any wise appertaining to the aforesaid property or
any party thereof, with the reversion and reversions, remainder and remainders
and (subject to the provisions of Article X of the Indenture), the tolls, rents,
revenues, issues, earnings, income, product and profits thereof, and all the
estate, right title interest and claim whatsoever, at law as well as in equity,
which the Company now has or may hereafter acquire in and to the aforesaid
property and franchises and every part and parcel thereof.
TO HAVE AND TO HOLD all such properties, real, personal and mixed,
mortgaged, pledged or conveyed by the Company as aforesaid, or intended so to
be, unto the Trustee and its successors and assigns forever.
7
<PAGE>
IN TRUST, NEVERTHELESS, upon the terms and trusts of the Indenture,
for those who shall hold the bonds and coupons issued and to be issued
thereunder, or any of them, without preference, priority or distinction as to
lien of any of said bonds and coupons over any others thereof by reason of
priority in the time of the issue or negotiation thereof, or otherwise
howsoever, subject, however, to the provisions in reference to extended,
transferred or pledged coupons and claims for interest set forth in the
Indenture (and subject to any sinking funds that may be created for the benefit
of any particular series).
PROVIDED, HOWEVER, and these presents are upon the condition that,
if the Company, its successors or assigns, shall pay or cause to be paid, the
principal of, premium, if any, and interest on said bonds, at the times and in
the manner stipulated therein and herein, and shall keep, perform and observe
all and singular the covenants and promises in said bonds and in the Indenture
expressed to be kept, performed and observed by or on the part of the Company,
then this Supplemental Indenture and the estate and rights hereby granted shall
cease, determine and be void, otherwise to be and remain in full force and
effect.
IT IS HEREBY COVENANTED, DECLARED AND AGREED, by the Company, that
all such bonds and coupons are to be issued, authenticated and delivered, and
that all property subject or to become subject hereto is to be held, subject to
the further covenants, conditions, uses and trusts in the Indenture set forth,
and the Company, for itself and its successors and assigns, does hereby covenant
and agree to and with the Trustee and its successor or successors in such trust,
for the benefit of those who shall hold said bonds and interest coupons, or any
of them, as follows:
SECTION 1. Bonds of the Thirty-Eighth Series shall mature on the
date set forth in the form of bond relating thereto hereinbefore set forth,
shall bear interest at the rate per annum set forth in the title thereof,
payable semi-annually, on ________ 1 and ________ 1 in each year, and all bonds
of said series shall be designated as hereinbefore in the fourth Whereas clause
set forth. Principal of, premium, if any, and interest on said bonds shall be
payable in any coin or currency of the United States of America which at the
time of payment is legal tender for the payment of public and private debts, at
the office or agency of the Company in the Borough of Manhattan, The City of New
York, New York. Definitive bonds of said series may be issued, originally or
otherwise, only as registered bonds without coupons; and they and the Trustee's
certificate of authentication shall be substantially in the forms hereinbefore
recited, respectively. Definitive registered bonds of the Thirty-Eighth Series
may be issued in the denomination of $1,000 and in such other denominations (in
multiples of $1,000) as the Board of Directors of the Company shall approve, and
execution and delivery to the Trustee for authentication shall be conclusive
evidence of such approval. In the manner and upon payment of the charges
prescribed in the Indenture, registered bonds without coupons of said series may
be exchanged for a like aggregate principal amount of registered bonds without
coupons of other authorized denominations of the same series, upon presentation
and surrender thereof for cancellation to the Trustee at its principal corporate
trust office in the Borough of Manhattan, The City of New York, New York.
However, notwithstanding the provisions of Section 12 of the Indenture, no
charge shall be made upon any transfer or exchange of bonds of said series other
than for any tax
8
<PAGE>
or taxes or other governmental charge required to be paid by the Company. The
form of the temporary bonds of said series shall be in substantially the form of
the form of registered bond hereinbefore recited with such appropriate changes
therein as are required on account of the temporary nature thereof. Said
temporary bonds of said series shall be in registered form without coupons and
shall be exchangeable for definitive bonds of said series when prepared.
The person in whose name any registered bond without coupons of the
Thirty-Eighth Series is registered at the close of business on any record date
(as hereinbelow defined) with respect to any interest payment date shall be
entitled to receive the interest payable on such interest payment date
notwithstanding the cancellation of such registered bond upon any transfer or
exchange thereof subsequent to the record date and prior to such interest
payment date, except if and to the extent the Company shall default in the
payment of the interest due on such interest payment date, in which case such
defaulted interest shall be paid to the person in whose name such bond is
registered either at the close of business on the day preceding the date of
payment of such defaulted interest or on a subsequent record date for such
payment if one shall have been established as hereinafter provided. A subsequent
record date may be established by or on behalf of the Company by notice mailed
to the holders of bonds not less than ten days preceding such record date, which
record date shall be not more than thirty days prior to the subsequent interest
payment date. The term "record date" as used in this Section with respect to any
regular interest payment date shall mean the ________ 15 or ________ 15, as the
case may be, next preceding such interest payment date, or, if such ________ 15
or ________ 15 shall be a legal holiday or a day on which banking institutions
in the Borough of Manhattan, The City of New York, New York, are authorized or
obligated by law to close, the next preceding day which shall not be a legal
holiday or day on which such institutions are so authorized or obligated to
close.
Except as provided in this Section, every registered bond without
coupons of the Thirty-Eighth Series shall be dated and shall bear interest as
provided in Section 10 of the Indenture; provided, however, that so long as
there is no existing default in the payment of interest on the bonds, the holder
of any bond authenticated by the Trustee between the record date for any
interest payment date and such interest payment date shall not be entitled to
the payment of the interest due on such interest payment date and shall have no
claim against the Company with respect thereto; and provided, further, that, if
and to the extent the Company shall default in the payment of the interest due
on such interest payment date, then any such bond shall bear interest from the
________ 1 or ________ 1, as the case may be, next preceding the date of such
bond, to which interest has been paid or, if the Company shall be in default
with respect to the interest due on ________ 1, 1999, then from ________ 1,
1999.
Bonds of the Thirty-Eighth Series shall be redeemable as follows:
[ ]
9
<PAGE>
SECTION 2. The Company's obligation to make payments with respect to
the principal of, premium, if any, and/or interest on, the bonds of the
Thirty-Eighth Series shall be fully or partially satisfied and discharged to the
extent that, at the time any such payment shall be due, the corresponding amount
then due of principal of, and/or premium, if any, and/or interest then due on,
the senior notes (the "Senior Notes") issued pursuant to the Indenture (for
Senior Notes) dated as of July __, 1999, between the Company and Bankers Trust
Company, the Senior Note Trustee (the "Senior Note Indenture") shall have been
fully or partially paid (other than by the application of the proceeds of a
payment in respect of such bonds of the Thirty-Eighth Series), as the case may
be, or there shall have been deposited with the Senior Note Trustee pursuant to
the Senior Note Indenture trust funds sufficient under such indenture to fully
or partially pay, as the case may be, the corresponding amount then due of
principal of, and/or premium, if any, and/or interest on, the Senior Notes
(other than by the application of the proceeds of a payment in respect of such
bonds of the Thirty-Eighth Series).
Upon payment of the principal of, and premium if any, and interest
due on the Senior Notes, whether at maturity or prior to maturity by
acceleration, redemption or otherwise, or upon provision for the payment thereof
having been made in accordance with the Senior Note Indenture (other than by the
application of the proceeds of a payment in respect of such bonds of the
Thirty-Eighth Series), bonds of the Thirty-Eighth Series in a principal amount
equal to the principal amount of Senior Notes so paid or for which such
provision for payment has been made shall be deemed fully paid, satisfied and
discharged and the obligations of the Company thereunder shall be terminated and
such bonds of the Thirty-Eighth Series shall be surrendered to and cancelled by
the Trustee. From and after the Release Date (as defined in the Senior Note
Indenture), the bonds of the Thirty-Eighth Series shall be deemed fully paid,
satisfied and discharged and the obligation of the Company thereunder shall be
terminated. On the Release Date, the bonds of the Thirty-Eighth Series shall be
surrendered to and cancelled by the Trustee.
SECTION 3. The Company covenants that the provisions of Section 36A
of the Indenture and of Section 1.02 of the Supplemental Indenture dated as of
July 1, 1948, which are to remain in effect so long as any bonds of the series
referred to in said Section shall be outstanding under the Indenture, shall
remain in full force and effect so long as any bonds of the Thirty-Eighth Series
shall be outstanding under the Indenture.
SECTION 4. Except as herein otherwise expressly provided, no duties,
responsibilities or liabilities are assumed, or shall be construed to be
assumed, by the Trustee by reason of this Supplemental Indenture, other than as
set forth in the Mortgage. The Trustee shall not be responsible for the recitals
herein or in the bonds (except the Trustee's certificate of authentication), all
of which are made by the Company solely. Without limiting the generality of the
foregoing, the Trustee shall have no responsibility for, and shall incur no
liability with respect to, the form or substance of the Certificates or the form
or substance of any agreement under which any banking or other financial
institution receives the Deposit or makes the Payments nor shall the Trustee
have any responsibility, or incur any liability, with respect to the performance
of such banking or other financial institution under any such agreement.
10
<PAGE>
SECTION 5. As supplemented and amended by this Supplemental
Indenture, the Mortgage is in all respects ratified and confirmed, and the
Mortgage and this Supplemental Indenture shall be read, taken and construed as
one and the same instrument.
SECTION 6. This Supplemental Indenture may be executed in several
counterparts and all such counterparts executed and delivered, each as an
original, shall constitute but one and the same instrument.
11
<PAGE>
IN WITNESS WHEREOF, SOUTHERN INDIANA GAS AND ELECTRIC COMPANY, party
of the first part hereto, and BANKERS TRUST COMPANY, party of the second part
hereto, have caused these presents to be executed in their respective names by
their respective Chairmen of the Board or Presidents or one of their Vice
Presidents or Assistant Vice Presidents and their respective seals to be
hereunto affixed and attested by their respective Secretaries or one of their
Assistant Secretaries, all as of the day and year first above written.
(SEAL) SOUTHERN INDIANA GAS AND
ELECTRIC COMPANY,
By:
------------------------------------
Name:
Title:
Attest:
- -----------------------
Name:
Title:
(SEAL) BANKERS TRUST COMPANY,
By:
------------------------------------
Name:
Title:
Attest:
- -----------------------
Name:
Title:
12
<PAGE>
STATE OF INDIANA )
) ss.:
COUNTY OF VANDERBURGH )
On this __ day of July, 1999, before me, the undersigned, a notary
public in and for the county and state aforesaid, personally came
___________________, to me known, who being by me duly sworn, did depose and say
that he resides at _________________________________; that he is
_____________________ of SOUTHERN INDIANA GAS AND ELECTRIC COMPANY, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of the said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by order of the Board of
Directors of said corporation and that he signed his name thereto by like order;
and the said _____________________ acknowledged the execution of the foregoing
instrument on behalf of the said corporation as the voluntary act and deed of
the said corporation for the uses and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and
year first above written.
(SEAL) --------------------------
Notary Public
My Commission Expires
My County of Residence is
13
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this __ day of July, 1999, before me, the undersigned, a notary
public in and for the county and state aforesaid, personally came
___________________, to me known, who being by me duly sworn, did depose and say
that he resides at ____________________________; that he is a
______________________ of BANKERS TRUST COMPANY, one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of the said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by order of the Board of Directors of
said corporation and that he signed his name thereto by like order; and the said
______________________ acknowledged the execution of the foregoing instrument on
behalf of the said corporation as the voluntary act and deed of the said
corporation for the uses and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and
year first above written.
(SEAL) --------------------------
Notary Public
My Commission Expires
My County of Residence is
14
<PAGE>
A-1
SCHEDULE A
Detailed Description of Additional Properties
Signed for identification
----------------------------------------
Name:
Title:
SOUTHERN INDIANA GAS AND ELECTRIC
COMPANY
----------------------------------------
Name:
Title:
BANKERS TRUST COMPANY
15
EXHIBIT 4(c)
--------------------------------------------------
SOUTHERN INDIANA GAS AND ELECTRIC COMPANY
TO
BANKERS TRUST COMPANY,
Trustee
------------
Indenture
(For Senior Notes)
Dated as of July __, 1999
--------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION...................... 1
Section 101. Definitions .................................................. 1
Section 102. Compliance Certificates and Opinions ......................... 9
Section 103. Form of Documents Delivered to Trustee ....................... 9
Section 104. Acts of Holders .............................................. 10
Section 105. Notices, Etc. to Trustee and Company ......................... 12
Section 106. Notice to Holders of Notes; Waiver ........................... 13
Section 107. Conflict with Trust Indenture Act ............................ 13
Section 108. Effect of Headings and Table of Contents ..................... 13
Section 109. Successors and Assigns ....................................... 13
Section 110. Separability Clause .......................................... 13
Section 111. Benefits of Indenture ........................................ 14
Section 112. Governing Law ................................................ 14
Section 113. Legal Holidays ............................................... 14
ARTICLE II
NOTE FORMS .................................................................. 14
Section 201. Forms Generally .............................................. 14
Section 202. Form of Trustee's Certificate of Authentication .............. 15
ARTICLE III
THE NOTES................................................................... 15
Section 301. Amount Unlimited; Issuable in Series ......................... 15
Section 302. Denominations ................................................ 18
Section 303. Execution, Authentication, Delivery and Dating ............... 19
Section 304. Temporary Notes .............................................. 21
Section 305. Registration, Registration of Transfer and Exchange .......... 22
Section 306. Mutilated, Destroyed, Lost and Stolen Notes .................. 23
Section 307. Payment of Interest; Interest Rights Preserved ............... 24
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Section 308. Persons Deemed Owners ........................................ 25
Section 309. Cancellation by Note Registrar ............................... 25
Section 310. Computation of Interest ...................................... 26
Section 311. Payment to be in Proper Currency ............................. 26
Section 312. Payments on Senior Note First Mortgage Bonds ................. 26
ARTICLE IV
SENIOR NOTE FIRST MORTGAGE BONDS............................................. 26
Section 401. Acceptance of Senior Note First Mortgage Bonds; Registration
and Ownership of Senior Note First Mortgage Bonds............. 26
Section 402. Terms of Senior Note First Mortgage Bonds .................... 27
Section 403. Senior Note First Mortgage Bonds as Security for Notes ....... 27
Section 404. Fair Value Certificate ....................................... 28
Section 405. Senior Note First Mortgage Bonds Held by the Trustee ......... 29
Section 406. No Transfer of Senior Note First Mortgage Bonds; Exception ... 29
Section 407. Delivery to the Company of all Senior Note First Mortgage
Bonds ........................................................ 29
Section 408. Further Assurances ........................................... 30
Section 409. Exchange and Surrender of Senior Note First Mortgage Bonds ... 30
ARTICLE V
REDEMPTION OF NOTES.......................................................... 30
Section 501. Applicability of Article ..................................... 30
Section 502. Election to Redeem; Notice to Trustee ........................ 31
Section 503. Selection of Notes to be Redeemed ............................ 31
Section 504. Notice of Redemption ......................................... 31
Section 505. Notes Payable on Redemption Date ............................. 33
Section 506. Notes Redeemed in Part ....................................... 33
ARTICLE VI
SINKING FUNDS................................................................ 33
Section 601. Applicability of Article ..................................... 33
Section 602. Satisfaction of Sinking Fund Payments with Notes ............. 34
Section 603. Redemption of Notes for Sinking Fund ......................... 34
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ARTICLE VII
COVENANTS.................................................................... 35
Section 701. Payment of Principal, Premium and Interest ................... 35
Section 702. Maintenance of Office or Agency .............................. 35
Section 703. Money for Notes Payments to be Held in Trust ................. 35
Section 704. Corporate Existence .......................................... 37
Section 705. Maintenance of Properties .................................... 37
Section 706. Annual Officer's Certificate as to Compliance ................ 37
Section 707. Waiver of Certain Covenants .................................. 37
Section 708. Recording, Filing, etc.; Opinions of Counsel ................. 38
Section 709. Liens ........................................................ 39
Section 710. Sale and Lease-Back Transactions ............................. 41
ARTICLE VIII
SATISFACTION AND DISCHARGE................................................... 41
Section 801. Satisfaction and Discharge of Notes .......................... 41
Section 802. Satisfaction and Discharge of Indenture ...................... 44
Section 803. Application of Trust Money ................................... 45
ARTICLE IX
EVENTS OF DEFAULT; REMEDIES.................................................. 46
Section 901. Events of Default ............................................ 46
Section 902. Acceleration of Maturity; Rescission and Annulment ........... 47
Section 903. Collection of Indebtedness and Suits for Enforcement by
Trustee ...................................................... 48
Section 904. Trustee May File Proofs of Claim ............................. 49
Section 905. Trustee May Enforce Claims Without Possession of Notes ....... 50
Section 906. Application of Money Collected ............................... 50
Section 907. Limitation on Suits .......................................... 50
Section 908. Unconditional Right of Holders to Receive Principal, Premium
and Interest ................................................. 51
Section 909. Restoration of Rights and Remedies ........................... 51
Section 910. Rights and Remedies Cumulative ............................... 51
Section 911. Delay or Omission Not Waiver ................................. 52
Section 912. Control by Holders of Notes .................................. 52
Section 913. Waiver of Past Defaults ...................................... 52
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Section 914. Undertaking for Costs ........................................ 53
Section 915. Waiver of Stay or Extension Laws ............................. 53
Section 916. Default Under the First Mortgage ............................. 53
ARTICLE X
THE TRUSTEE.................................................................. 54
Section 1001. Certain Duties and Responsibilities .......................... 54
Section 1002. Notice of Defaults ........................................... 54
Section 1003. Certain Rights of Trustee .................................... 55
Section 1004. Not Responsible for Recitals or Issuance of Notes ............ 56
Section 1005. May Hold Notes ............................................... 56
Section 1006. Money Held in Trust .......................................... 56
Section 1007. Compensation and Reimbursement ............................... 56
Section 1008. Disqualification; Conflicting Interests ...................... 57
Section 1009. Corporate Trustee Required; Eligibility ...................... 57
Section 1010. Resignation and Removal; Appointment of Successor ............ 58
Section 1011. Acceptance of Appointment by Successor ....................... 60
Section 1012. Merger, Conversion, Consolidation or Succession to Business .. 61
Section 1013. Preferential Collection of Claims Against Company ............ 61
Section 1014. Co-trustees and Separate Trustees ............................ 61
Section 1015. Appointment of Authenticating Agent .......................... 63
ARTICLE XI
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY............................ 64
Section 1101. Lists of Holders ............................................. 64
Section 1102. Reports by Trustee and Company ............................... 65
ARTICLE XII
CONSOLIDATION, MERGER, CONVEYANCE OR OTHER TRANSFER.......................... 65
Section 1201. Company May Consolidate, Etc., Only on Certain Terms ......... 65
Section 1202. Successor Corporation Substituted ............................ 66
ARTICLE XIII
SUPPLEMENTAL INDENTURES...................................................... 66
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Section 1301. Supplemental Indentures Without Consent of Holders ........... 66
Section 1302. Supplemental Indentures With Consent of Holders .............. 68
Section 1303. Execution of Supplemental Indentures ......................... 70
Section 1304. Effect of Supplemental Indentures ............................ 70
Section 1305. Conformity with Trust Indenture Act .......................... 70
Section 1306. Reference in Notes to Supplemental Indentures ................ 70
Section 1307. Modification Without Supplemental Indenture .................. 71
ARTICLE XIV
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING.................................. 71
Section 1401. Purposes for Which Meetings May Be Called .................... 71
Section 1402. Call, Notice and Place of Meetings ........................... 71
Section 1403. Persons Entitled to Vote at Meetings ......................... 72
Section 1404. Quorum; Action ............................................... 72
Section 1405. Attendance at Meetings; Determination of Voting Rights;
Conduct and Adjournment of Meetings........................... 73
Section 1406. Counting Votes and Recording Action of Meetings .............. 74
Section 1407. Action Without Meeting ....................................... 74
ARTICLE XV
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS.............. 74
Section 1501. Liability Solely Corporate ................................... 74
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SOUTHERN INDIANA GAS AND ELECTRIC COMPANY
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of July __, 1999
Trust Indenture Act
Section Indenture Section
ss.310 (a)(1) ...................................1009
(a)(2) ...................................1009
(a)(3) ...................................1014
(a)(4) ...................................Not Applicable
(b) ...................................1008
1010
ss.311 (a) ...................................1013
(b) ...................................1013
(c) ...................................1013
ss.312 (a) ...................................1101
(b) ...................................1101
(c) ...................................1101
ss.313 (a) ...................................1102
(b) ...................................1102
(c) ...................................1102
(d) ...................................1102
ss.314 (a) ...................................1102
(a)(4) ...................................706
(b) ...................................708
(c)(1) ...................................102
(c)(2) ...................................102
(c)(3) ...................................Not Applicable
(d) ...................................102
404
(e) ...................................102
ss.315 (a) ...................................1001
1003
(b) ...................................1002
(c) ...................................1001
(d) ...................................1001
(e) ...................................914
ss.316 (a) ...................................912
...................................913
(a)(1)(A) ...................................902
912
(a)(1)(B) ...................................913
(a)(2) ...................................Not Applicable
(b) ...................................908
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Trust Indenture Act
Section Indenture Section
ss.317 (a)(1) ...................................903
(a)(2) ...................................904
(b) ...................................703
ss.318 (a) ...................................107
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INDENTURE, dated as of July __, 1999, between SOUTHERN INDIANA GAS
AND ELECTRIC COMPANY, a corporation duly organized and existing under the laws
of the State of Indiana (herein called the "Company"), having its principal
office at 20 N.W. Fourth Street, Evansville, Indiana 47741-0001, and BANKERS
TRUST COMPANY, a banking corporation of the State of New York, having its
principal office at 4 Albany Street, 4th Floor, New York, New York 10006, 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 senior notes
(herein called the "Notes"), 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
Notes by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Notes or of series
thereof, as follows:
ARTICLE I
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
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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
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 Ten, are defined in that
Article.
"Act", when used with respect to any Holder of a Note, 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 (other than the Company or
an Affiliate of the Company) authorized by the Trustee pursuant to Section 1015
to act on behalf of the Trustee to authenticate one or more series of Notes or
Tranche thereof.
"Authorized Officer" means the Chairman of the Board, the President,
any Vice President, the Treasurer or any other duly authorized officer of the
Company.
"Board of Directors" means either the board of directors of the
Company or any committee thereof duly authorized to act or any director or
directors and/or officer or officers of the Company to whom that board or
committee shall have duly delegated its authority 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 Notes 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.
"Capitalization" means the total of all the following items
appearing on, or included in, the consolidated balance sheet of the Company: (i)
liabilities for indebtedness
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maturing more than twelve (12) months from the date of determination; and (ii)
common stock, preferred stock, premium on capital stock, capital surplus,
capital in excess of par value, and retained earnings (however the foregoing may
be designated), less, to the extent not otherwise deducted, the cost of shares
of capital stock of the Company held in its treasury.
Subject to the foregoing, Capitalization shall be determined in
accordance with generally accepted accounting principles and practices
applicable to the type of business in which the Company is engaged and that are
approved by independent accountants regularly retained by the Company, and may
be determined as of a date not more than (sixty) 60 days prior to the happening
of an event for which such determination is being made.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the 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, performing 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 request 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 [___________________________].
"corporation" means a corporation, association, company, limited
liability company, joint stock company or business trust.
"Debt" means any outstanding debt for money borrowed evidenced by
notes, debentures, bonds, or other securities, or guarantees of any debt.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to Notes of any series issuable in
whole or in part in form of one or more Global Notes, a clearing agency
registered under the Exchange Act that is designated to act as Depositary for
such Notes as contemplated by Section 301.
"Discount Note" means any Note 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 902. "Interest" with
respect to a Discount Note means interest, if any, borne by such Note at a
Stated Interest Rate.
"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.
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<PAGE>
"Eligible Obligations" means:
(a) with respect to Notes denominated in Dollars, Government
Obligations; or
(b) with respect to Notes denominated in a currency other than
Dollars or in a composite currency, such other obligations or instruments as
shall be specified with respect to such Notes, as contemplated by Section 301.
"Event of Default" has the meaning specified in Section 901.
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
"Expert" means any officer of the Company familiar with the terms of
the First Mortgage and this Indenture, any law firm, any investment banking
firm, any accounting firm, or any other Person, in each case that is appointed
by Company Request, is an expert in the applicable matter, and is satisfactory
in the reasonable judgment of the Trustee.
"First Mortgage" means the Indenture, dated as of April 1, 1932,
between the Company and Bankers Trust Company, as trustee, as supplemented and
amended from time to time.
"First Mortgage Bonds" means all first mortgage bonds issued by the
Company and outstanding under the First Mortgage, other than Senior Note First
Mortgage Bonds.
"Global Note" means a Note that evidences all or part of the Notes
of any series and bears such legend as may be specified as contemplated by
Section 301 for such Notes.
"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 thereof, or any
department, agency, authority or other instrumentality of any of the foregoing.
"Government Obligations" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States 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 (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 $100,000,000; 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
4
<PAGE>
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 Note is registered in the
Note 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 particular series of Notes
established as contemplated by Section 301.
"Independent" when used with respect to any specified Person means
such a Person who is in fact independent and selected by the Company and
approved by the Trustee in the exercise of reasonable care.
"Interest Payment Date", when used with respect to any Note, means
the Stated Maturity of an installment of interest on such Note.
"Maturity", when used with respect to any Note, means the date on
which the principal of such Note or an installment of principal becomes due and
payable as provided in such Note or in this Indenture, whether at the Stated
Maturity, by declaration of acceleration, upon call for redemption or otherwise.
"Mortgage Trustee" means the Trustee at the time under the First
Mortgage (as such term is defined in the First Mortgage).
"Net Tangible Assets" means the amount shown as total assets on the
consolidated balance sheet of the Company, less the following: (i) intangible
assets including, but without limitation, such items as goodwill, trademarks,
trade names, patents, unamortized debt discount and expense and other regulatory
assets carried as an asset on the Company's consolidated balance sheet; and (ii)
appropriate adjustments, if any, on account of minority interests.
Net Tangible Assets shall be determined in accordance with generally
accepted accounting principles and practices applicable to the type of business
in which the Company is engaged and that are approved by the independent
accountants regularly retained by the Company, and may be determined as of a
date not more than (sixty) 60 days prior to the happening of the event for which
such determination is being made.
"Note Register" and "Note Registrar" have the respective meanings
specified in Section 305.
"Notes" has the meaning stated in the first recital of this
Indenture and more particularly means any notes authenticated and delivered
under this Indenture.
"Officer's Certificate" means a certificate signed by an Authorized
Officer and delivered to the Trustee.
5
<PAGE>
"Operating Property" means (i) any interest in real property owned
by the Company and (ii) any asset owned by the Company that is depreciable in
accordance with generally accepted accounting principles, excluding in either
case, any interest of the Company as lessee under any lease (except for a lease
that results from a Sale and Lease-Back Transaction) which has been or would be
capitalized on the books of the lessee in accordance with generally accepted
accounting principles.
"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 Notes, means, as of the
date of determination, all Notes theretofore authenticated and delivered under
this Indenture, except:
(a) Notes theretofore canceled by the Trustee or the Note Registrar
or delivered to the Trustee or the Note Registrar for cancellation;
(b) Notes deemed to have been paid in accordance with Section 801;
and
(c) Notes which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Notes have been authenticated and
delivered pursuant to this Indenture, other than any such Notes in respect of
which there shall have been presented to the Trustee proof satisfactory to it
and the Company that such Notes are held by a bona fide purchaser or purchasers
in whose hands such Notes are valid obligations of the Company;
provided, however, that in determining whether or not the Holders of the
requisite principal amount of the Notes Outstanding under this Indenture, or the
Outstanding Notes 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 of Notes,
(x) Notes owned by the Company or any other obligor upon the
Notes or any Affiliate of the Company or of such other obligor
(unless the Company, such Affiliate or such obligor owns all Notes
Outstanding under this Indenture, or all Outstanding Notes of each
such series and each such Tranche, as the case may be, determined
without regard to this clause (x)) shall be disregarded and deemed
not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver or upon any such
determination as to the presence of a quorum, only Notes which the
Trustee knows to be so owned shall be so disregarded; provided,
however, that Notes 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 Notes and that the pledgee is not the Company or any
other obligor upon the Notes or any Affiliate of the Company or of
such other obligor; and
(y) the principal amount of a Discount Note 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 902;
6
<PAGE>
provided, further, that, in the case of any Note the principal of which is
payable from time to time without presentment or surrender, the principal amount
of such Note 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 Notes on behalf of the Company.
"Periodic Offering" means an offering of Notes of a series from time
to time, any or all of the specific terms of which Notes, 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 Notes.
"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 Notes of any
series, or Tranche thereof, means the place or places, specified as contemplated
by Section 301, at which, subject to Section 702, principal of and premium, if
any, and interest, if any, on the Notes of such series or Tranche are payable.
"Predecessor Note" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Note shall be deemed (to the extent lawful)
to evidence the same debt as the mutilated, destroyed, lost or stolen Note.
"Redemption Date", when used with respect to any Note to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Note 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 Notes of any series means the date specified for that
purpose as contemplated by Section 301.
"Release Date" means the date as of which all First Mortgage Bonds,
other than First Mortgage Bonds which, at the time of determination, do not in
aggregate principal amount exceed the greater of five percent (5%) of Net
Tangible Assets or five percent (5%) of Capitalization, have been retired
through payment, redemption or otherwise (including those First Mortgage Bonds
the payment for which has been provided for in accordance with the First
Mortgage) at, before or after the maturity thereof, provided that no default or
Event of Default has occurred and, at the time of determination, is continuing.
"Required Currency" has the meaning specified in Section 311.
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<PAGE>
"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.
"Sale and Lease-Back Transaction" means any arrangement with any
person providing for the leasing to the Company of any Operating Property
(except for temporary leases for a term, including any renewal or potential
renewal thereof, of not more than forty-eight (48) months), which Operating
Property has been or is to be sold or transferred by the Company to such person;
provided, however, Sale and Lease-Back Transaction shall not include any
arrangement first entered into prior to the date hereof, and shall not include
any transaction pursuant to which the Company sells Operating Property to, and
thereafter purchases energy or services from, any entity if such transaction is
ordered or authorized by any regulatory authority having jurisdiction over the
Company or its operations or is entered into pursuant to any plan or program of
industry restructuring ordered or authorized by any regulatory authority.
"Senior Note First Mortgage Bonds" shall mean any bonds issued by
the Company under the First Mortgage and delivered to the Trustee pursuant to
Section 401 hereof.
"Special Record Date" for the payment of any Defaulted Interest on
the Notes of any series means a date fixed by the Trustee pursuant to Section
307.
"Stated Interest Rate" means a rate (whether fixed or variable) at
which an obligation by its terms is stated to bear interest. Any calculation or
other determination to be made under this Indenture by reference to the Stated
Interest Rate on a Note shall be made without regard to the effective interest
cost to the Company of such Note and without regard to the Stated Interest Rate
on, or the effective cost to the Company of, any other indebtedness in respect
of which the Company's obligations are evidenced or secured in whole or in part
by such Note.
"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).
"Tranche" means a group of Notes which (a) are of the same series
and (b) have identical terms except as to principal amount.
"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 Notes 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 Notes of any series
shall mean the Trustee with respect to Notes of that series.
"United States" means the United States of America, its Territories,
its possessions and other areas subject to its political jurisdiction.
8
<PAGE>
"Value" means, with respect to a Sale and Lease-Back Transaction, as
of any particular time, the amount equal to the greater of (1) the net proceeds
to the Company from the sale or transfer of the property leased pursuant to such
Sale and Lease-Back Transaction or (2) the net book value of such property, as
determined in accordance with generally accepted accounting principles by the
Company at the time of entering into such Sale and Lease-Back Transaction, in
either case multiplied by a fraction, the numerator of which shall be equal to
the number of full years of the term of the lease that is part of such Sale and
Lease-Back Transaction remaining at the time of determination and the
denominator of which shall be equal to the number of full years of such term,
without regard, in any case, to any renewal or extension options contained in
such lease.
Section 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided in this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officer's 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 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 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
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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 Notes 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 Notes, 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 Fourteen, 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
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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 Note,
shall be sufficient for any purpose of this Indenture and (subject to
Section 1001) 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 1406.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof or may be proved in any other manner which the Trustee
and the Company deem sufficient. Where such execution is by a signer
acting in a capacity other than his individual capacity, such certificate
or affidavit shall also constitute sufficient proof of his authority.
(c) The principal amount (except as otherwise contemplated in clause
(y) of the proviso to the definition of Outstanding) and serial numbers of
Notes held by any Person, and the date of holding the same, shall be
proved by the Note 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 Note and the Holder of every Note 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 Note.
(e) Until such time as written instruments shall have been delivered
to the Trustee with respect to the requisite percentage of principal
amount of Notes 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 Notes by written notice by such
Holder or any subsequent Holder, proven in the manner in which such
instrument was proven.
(f) Notes 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 Notes
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 Notes 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
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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 determining whether Holders of the requisite proportion of
the Outstanding Notes have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or
other Act, and for that purpose the Outstanding Notes shall be computed as
of such 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, 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:
Bankers Trust Company
4 Albany Street, 4th Floor
New York, New York 10006
Attention: [______________________]
Telephone: [_____________________]
Telecopy: [______________________]
If to the Company, to:
Southern Indiana Gas and Electric Company
20 N.W. Fourth Street
Evansville, Indiana 47741-0001
Attention: Timothy L. Burke, Secretary and Treasurer
Telephone: (812) 465-4136
Telecopy: (812) 464-4554
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 certified
or registered mail, on the date of receipt.
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Section 106. Notice to Holders of Notes; 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 Note 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. 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 shall
bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or the Notes 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.
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Section 111. Benefits of Indenture.
Nothing in this Indenture or the Notes, express or implied, shall
give to any Person, other than the parties hereto, their successors hereunder,
and the Holders, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
Section 112. Governing Law.
This Indenture and the Notes 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 Note shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Notes
other than a provision in Notes of any series, or any Tranche thereof, or in the
indenture supplemental hereto, Board Resolution or Officer's Certificate which
establishes the terms of the Notes of such series or Tranche, which specifically
states that such provision shall apply in lieu of this Section) payment of
interest or principal and premium, if any, need not be made at such Place of
Payment on such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on the Interest
Payment Date or Redemption Date, or at the Stated Maturity, and, if such payment
is made or duly provided for on such Business Day, 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 II
Note Forms
Section 201. Forms Generally.
The definitive Notes 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 Notes, as evidenced by their execution
of the Notes. If the form or forms of Notes of any series are established in a
Board Resolution or in an Officer's Certificate pursuant to an indenture
supplemental hereto or 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 Notes.
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Unless otherwise specified as contemplated by Sections 301 or
1301(g), the Notes of each series shall be issuable in registered form without
coupons. The definitive Notes shall be produced in such manner as shall be
determined by the officers executing such Notes, 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 Notes of the series designated therein referred
to in the within-mentioned Indenture.
Dated: ______________
BANKERS TRUST COMPANY,
as Trustee
By:_____________________________________
Authorized Signatory
ARTICLE III
The Notes
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Notes that may be authenticated
and delivered under this Indenture is unlimited.
The Notes may be issued in one or more series. Subject to the last
paragraph of this Section, prior to the authentication and delivery of Notes 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 Notes of such series (which shall distinguish
the Notes of such series from Notes of all other series);
(b) any limit upon the aggregate principal amount of the Notes of
such series which may be authenticated and delivered under this Indenture
(except for Notes authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Notes of the series
pursuant to Section 304, 305, 306, 506 or 1306 and, except
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for any Notes which, pursuant to Section 303, are deemed never to have
been authenticated and delivered hereunder);
(c) the Person or Persons (without specific identification) to whom
interest on Notes of such series, or any Tranche thereof, shall be payable
on any Interest Payment Date, if other than the Persons in whose names
such Notes (or one or more Predecessor Notes) are registered at the close
of business on the Regular Record Date for such interest;
(d) the date or dates on which the principal of the Notes of such
series or any Tranche thereof, is payable or any formulary 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 of this
Indenture or otherwise (without regard to any provisions for redemption,
prepayment, acceleration, purchase or extension);
(e) the rate or rates at which the Notes of such series, or any
Tranche thereof, 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 Notes 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 formulary 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 of 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 Notes 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 at which or methods by which (1) the
principal of and premium, if any, and interest, if any, on Notes of such
series, or any Tranche thereof, shall be payable, (2) registration of
transfer of Notes of such series, or any Tranche thereof, may be effected,
(3) exchanges of Notes of such series, or any Tranche thereof, may be
effected and (4) notices and demands to or upon the Company in respect of
the Notes of such series, or any Tranche thereof, and this Indenture may
be served; the Note Registrar for such series; and if such is the case,
that the principal of such Notes 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 upon
which the Notes of such series, or any Tranche thereof, 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 Notes of any series, or any Tranche
thereof, resulting in delisting of such Notes from any national exchange;
(h) the obligation or obligations, if any, of the Company to redeem
or purchase the Notes of such series, or any Tranche thereof, 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
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terms and conditions upon which such Notes shall be redeemed or purchased,
in whole or in part, pursuant to such obligation, and applicable
exceptions to the requirements of Section 504 in the case of mandatory
redemption or redemption at the option of the Holder;
(i) the denominations in which Notes of such series, or any Tranche
thereof, shall be issuable if other than denominations of $1,000 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 Notes of such series, or any Tranche thereof, shall
be payable (if other than in Dollars);
(k) if the principal of or premium, if any, or interest, if any, on
the Notes of such series, or any Tranche thereof, 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 Notes 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 Notes of such series, or any Tranche thereof, 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 formulary 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 Notes of such series, or any Tranche
thereof, may be determined with reference to an index or other fact or
event ascertainable outside this Indenture, the manner in 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 Notes of such series, or any Tranche thereof, which
shall be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 902;
(o) any Events of Default, in addition to those specified in Section
901, with respect to the Notes of such series, and any covenants of the
Company for the benefit of the Holders of the Notes of such series, or any
Tranche thereof, in addition to those set forth in Article Seven;
(p) the terms, if any, pursuant to which the Notes of such series,
or any Tranche thereof, may be converted into or exchanged for shares of
capital stock or other Notes of the Company or any other Person;
(q) the obligations or instruments, if any, which shall be
considered to be Eligible Obligations in respect of the Notes of such
series, or any Tranche thereof, 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
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in respect of such Notes after the satisfaction and discharge thereof as
provided in Section 801;
(r) if the Notes of such series, or any Tranche thereof, are to be
issued in global form, (i) any limitations on the rights of the Holder or
Holders of such Notes 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 temporary form and (iii) any and all other
matters incidental to such Notes;
(s) if the Notes of such series, or any Tranche thereof, are to be
issuable as bearer Notes, any and all matters incidental thereto which are
not specifically addressed in a supplemental indenture as contemplated by
clause (g) of Section 1301;
(t) to the extent not established pursuant to clause (r) of this
paragraph, any limitations on the rights of the Holders of the Notes of
such Series, or any Tranche thereof, to transfer or exchange such Notes or
to obtain the registration of transfer thereof; and if a service charge
will be made for the registration of transfer or exchange of Notes of such
series, or any Tranche thereof, the amount or terms thereof;
(u) any exceptions to Section 113, or variation in the definition of
Business Day, with respect to the Notes of such series, or any Tranche
thereof;
(v) if any Notes of the series are issued prior to the Release Date,
the designation of the series of Senior Note First Mortgage Bonds to be
delivered to the Trustee as security for such series of Notes;
(w) any collateral security, assurance or guarantee for such series
of Notes (other than the Senior Note First Mortgage Bonds); and
(x) any other terms of the Notes of such series, or any Tranche
thereof, not inconsistent with the provisions of this Indenture.
With respect to Notes of a series subject to a Periodic Offering,
the indenture supplemental hereto or the Board Resolution which establishes such
series, or the Officer's Certificate pursuant to such supplemental indenture or
Board Resolution, as the case may be, may provide general terms or parameters
for Notes of such series and provide either that the specific terms of Notes of
such series, or any Tranche thereof, 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 clause (b) of
the third paragraph of Section 303.
Section 302. Denominations.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Notes, or any Tranche thereof, the Notes of each series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
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Section 303. Execution, Authentication, Delivery and Dating.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Notes, or any Tranche thereof, the Notes 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. The signature of any or all of these officers on
the Notes may be manual or facsimile.
Notes bearing the manual or facsimile signatures of individuals who
were at the time of execution Authorized 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 Notes or did
not hold such offices at the date of such Notes.
The Trustee shall authenticate and deliver Notes 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 Notes and, to the extent that the terms of such Notes 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, either (i) establishing such terms or (ii) in the case of Notes of a
series subject to a Periodic Offering, specifying procedures, acceptable
to the Trustee, by which such terms are to be established (which
procedures may provide, to the extent acceptable to the Trustee, for
authentication and delivery pursuant to oral or electronic instructions
from the Company or any agent or agents thereof, which oral instructions
are to be promptly confirmed electronically or in writing), in either case
in accordance with the instrument or instruments delivered pursuant to
clause (a) above; the Notes of such series, executed on behalf of the
Company by an Authorized Officer;
(c) if prior to the Release Date, Senior Note First Mortgage Bonds
of a series conforming to the requirements of Sections 401 and 402 hereof;
(d) the Notes of such series, executed on behalf of the Company by
an Authorized Officer;
(e) an Opinion of Counsel to the effect that:
(i) the form or forms of such Notes have been duly authorized
by the Company and have been established in conformity with the
provisions of this Indenture;
(ii) the terms of such Notes have been duly authorized by the
Company and have been established in conformity with the provisions
of this Indenture; and
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(iii) assuming authentication and delivery by the Trustee and
subject to any conditions specified in such Opinion of Counsel, such
Notes will have been duly issued under the Indenture and will be
legal, valid and binding obligations of the Company enforceable in
accordance with their terms, except as limited by bankruptcy,
insolvency or other laws affecting mortgagees' and other creditors'
rights and general equitable principles;
(iv) if prior to the Release Date, the Senior Note First
Mortgage Bonds being delivered to the Trustee in connection with the
issuance of such Notes, assuming authentication by the Mortgage
Trustee in accordance with the First Mortgage and delivery to the
Trustee and subject to any conditions specified in such Opinion of
Counsel, will have been duly authorized by the Company and duly
issued under the First Mortgage and will constitute the legal, valid
and binding obligations of the Company, enforceable in accordance
with their terms, except as limited by bankruptcy, insolvency or
other laws affecting mortgagees' and other creditors' rights and
general equitable principles, and such Senior Note First Mortgage
Bonds are entitled to the benefits of the security afforded by the
First Mortgage, and are secured equally and ratably with all other
bonds outstanding thereunder, except insofar as any sinking or other
fund may afford additional security for the bonds of any particular
series;
provided, however, that, with respect to Notes 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 such Notes (provided
that such Opinion of Counsel addresses the authentication and delivery of all
Notes of such series) and that in lieu of the opinions described in clauses (ii)
and (iii) above Counsel may opine that:
(x) when the terms of such Notes shall have been established
pursuant to a Company Order or Orders or pursuant to such procedures
(acceptable to the Trustee) as may be specified from time to time by
a Company Order or Orders, all as contemplated by and in accordance
with the instrument or instruments delivered pursuant to clause (a)
above, such terms will have been duly authorized by the Company and
will have been established in conformity with the provisions of this
Indenture; and
(y) such Notes, when authenticated and delivered by the
Trustee in accordance with this Indenture and the Company Order or
Orders or specified procedures referred to in paragraph (x) above
and issued and delivered by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will have been
duly issued under this Indenture and will constitute valid and
legally binding obligations of the Company, entitled to the benefits
provided by the 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).
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With respect to Notes of a series subject to a Periodic Offering,
the Trustee may conclusively rely, as to the authorization by the Company of any
of such Notes, 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 Notes of such
series unless and until such opinion or other documents have been superseded or
revoked or expire by their terms. In connection with the authentication and
delivery of Notes 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 Notes do not violate any rules, regulations or orders of any
Governmental Authority having jurisdiction over the Company.
If the form or terms of the Notes 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 Notes if the issuance of such Notes pursuant to this Indenture
will materially or adversely affect the Trustee's own rights, duties or
immunities under the Notes 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 Notes, or any Tranche thereof, each Note shall be dated
the date of its authentication.
Unless otherwise specified as contemplated by Section 301 with
respect to any series of Notes, or any Tranche thereof, no Note shall be
entitled to any benefit under this Indenture or be valid or obligatory for any
purpose unless there appears on such Note 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 Note shall be
conclusive evidence, and the only evidence, that such Note has been duly
authenticated and delivered hereunder and is entitled to the benefits of this
Indenture. Notwithstanding the foregoing, if any Note 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 Note to the Note Registrar 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 Note has never been issued and sold by the Company, for all purposes
of this Indenture such Note shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits hereof.
Section 304. Temporary Notes.
Pending the preparation of definitive Notes of any series, or any
Tranche thereof, the Company may execute, and upon Company Order the Trustee
shall authenticate and deliver, temporary Notes which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Notes in lieu of which they are
issued, with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Notes may determine, as evidenced by
their execution of such Notes; provided, however, that temporary Notes need not
recite specific redemption, sinking fund, conversion or exchange provisions.
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Unless otherwise specified as contemplated by Section 301 with
respect to the Notes of any series, or any Tranche thereof, after the
preparation of definitive Notes of such series or Tranche, the temporary Notes
of such series or Tranche shall be exchangeable, without charge to the Holder
thereof, for definitive Notes of such series or Tranche, upon surrender of such
temporary Notes at the office or agency of the Company maintained pursuant to
Section 702 in a Place of Payment for such Notes. Upon such surrender of
temporary Notes, the Company shall, except as aforesaid, execute and the Trustee
shall authenticate and deliver in exchange therefor definitive Notes of the same
series and Tranche, of authorized denominations and of like tenor and aggregate
principal amount.
Until exchanged in full as hereinabove provided, temporary Notes
shall in all respects be entitled to the same benefits under this Indenture as
definitive Notes of the same series and Tranche and of like tenor authenticated
and delivered hereunder.
Section 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept in each office designated
pursuant to Section 702, with respect to the Notes of each series or any Tranche
thereof, a register (all registers kept in accordance with this Section being
collectively referred to as the "Note Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Notes of such series or Tranche and the registration of transfer
thereof. The Company shall designate one Person to maintain the Note Register
for the Notes of each series on a consolidated basis, and such Person is
referred to herein, with respect to such series, as the "Note 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
Notes of one or more series, or any Tranche or Tranches thereof, shall be
maintained, and the Company may designate itself the Note Registrar with respect
to one or more of such series. The Note 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 Notes of any series, or any Tranche thereof, upon surrender for
registration of transfer of any Note of such series or Tranche at the office or
agency of the Company maintained pursuant to Section 702 in a Place of Payment
for such series or Tranche, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Notes of the same series and Tranche, of authorized
denominations and of like tenor and aggregate principal amount.
Except as otherwise specified as contemplated by Section 301 with
respect to the Notes of any series, or any Tranche thereof, any Note of such
series or Tranche may be exchanged at the option of the Holder, for one or more
new Notes of the same series and Tranche, of authorized denominations and of
like tenor and aggregate principal amount, upon surrender of the Notes to be
exchanged at any such office or agency. Whenever any Notes are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Notes that the Holder making the exchange is entitled to receive.
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All Notes delivered upon any registration of transfer or exchange of
Notes shall be valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company, the Trustee or the Note
Registrar) be duly endorsed or shall be accompanied by a written instrument of
transfer in form satisfactory to the Company, the Trustee or the Note 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 Notes of any series, or any Tranche thereof, no service charge shall
be made for any registration of transfer or exchange of Notes, 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 Notes, other than exchanges pursuant to Section 304, 506 or 1306 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) Notes of any series, or any
Tranche thereof, during a period of 15 days immediately preceding the day of the
mailing of a notice of redemption of the Notes of such series or Tranche or (b)
any Note so selected for redemption in whole or in part, except the unredeemed
portion of any Note being redeemed in part.
Section 306. Mutilated, Destroyed, Lost and Stolen Notes.
If any mutilated Note is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Note 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 Note 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 Note is
held by a Person purporting to be the owner of such Note, the Company shall
execute and the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Note, a new Note of the same series and Tranche, and
of like tenor and principal amount and bearing a number not contemporaneously
outstanding.
Notwithstanding the foregoing, in case any such mutilated,
destroyed, lost or stolen Note has become or is about to become due and payable,
the Company in its discretion may, instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note 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.
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Every new Note of any series issued pursuant to this Section in lieu
of any destroyed, lost or stolen Note shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Note shall be at any time enforceable by anyone other than the Holder of
such new Note, and any such new Note shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other Notes 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 Notes.
Section 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise specified as contemplated by Section 301 with
respect to the Notes of any series, or any Tranche thereof, interest on any Note
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 Note (or one or more
Predecessor Notes) is registered at the close of business on the Regular Record
Date for such interest payment.
Any interest on any Note 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 Notes of such series (or their
respective Predecessor Notes) 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 Note of such series and the date of
the proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed payment
and not less than 10 days after the receipt by the Trustee of the notice
of the proposed payment. The Trustee shall promptly notify the Company of
such Special Record Date and, in the name and at the expense of the
Company, shall promptly cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Notes of such series at the
address of such Holder as it appears in the Note 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 Notes of such series (or their
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respective Predecessor Notes) are registered at the close of business on
such Special Record Date.
(b) The Company may make payment of any Defaulted Interest on the
Notes of any series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Notes 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 Note delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Note shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Note.
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 Note is registered as the absolute owner of such
Note 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 Note and for all
other purposes whatsoever, whether or not such Note 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 Note Registrar.
All Notes surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Note
Registrar, be delivered to the Note Registrar and, if not theretofore canceled,
shall be promptly canceled by the Note Registrar. The Company may at any time
deliver to the Note Registrar for cancellation any Notes 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
Notes so delivered shall be promptly canceled by the Note Registrar. No Notes
shall be authenticated in lieu of or in exchange for any Notes canceled as
provided in this Section, except as expressly permitted by this Indenture. All
certificates representing canceled Notes held by the Note Registrar shall be
disposed of in accordance with the customary practices of the Note Registrar at
the time in effect, and the Note Registrar shall not be required to destroy any
such certificates. The Note Registrar, if other than the Trustee, shall promptly
deliver a certificate of disposition with respect to such disposed certificates
to the Trustee and the Company unless, by a Company Order, similarly delivered,
the Company shall direct that canceled Notes be returned to it. The Note
Registrar, if other than the Trustee, shall promptly deliver evidence of any
cancellation of a Note in accordance with this Section to the Trustee and the
Company. If the Trustee is the entity that is acting as Note Registrar, it shall
promptly deliver to the Company a certificate of disposition with respect to any
certificates disposed of and/or evidence of any cancellation of a Note, in each
case in accordance with this Section, if so requested by a Company Order.
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Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Notes of any series, or any Tranche thereof, interest on the Notes of each
series shall be computed on the basis of a 360-day year consisting of twelve
30-day months and on the basis of the actual number of days elapsed within any
month in relation to the deemed 30 days of such month.
Section 311. Payment to be in Proper Currency.
In the case of the Notes of any series, or any Tranche thereof,
denominated in any currency other than Dollars or in a composite currency (the
"Required Currency"), except as otherwise specified with respect to such Notes
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 Currency 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. Payments on Senior Note First Mortgage Bonds.
Subject to Section 403 and Articles Eight and Nine hereof, all
payments made by the Company to the Trustee on Senior Note First Mortgage Bonds
shall be applied by the Trustee to pay, when due, principal of, and premium, if
any, and interest on the Notes of the related series of Notes and, to the extent
so applied, shall satisfy the Company's obligations in respect of payment of
principal of, and premium, if any, and interest on such Notes. The Company shall
pay to the Trustee principal of, and premium, if any, and interest on Senior
Note First Mortgage Bonds of each series in a manner and at a time that will
enable the Trustee to make payments when due, of principal of, and premium, if
any, and interest on the Notes of the related series.
ARTICLE IV
Senior Note First Mortgage Bonds
Section 401. Acceptance of Senior Note First Mortgage Bonds; Registration and
Ownership of Senior Note First Mortgage Bonds.
At or prior to the time of issuance of a series of Notes hereunder
at any time prior to the Release Date, the Company shall issue and deliver to
the Trustee for the benefit of the Holders of all Notes from time to time
Outstanding as described in Section 403 hereof, and the Trustee shall accept
therefor, Senior Note First Mortgage Bonds of a series of Senior Note First
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Mortgage Bonds not theretofore delivered to the Trustee. All Senior Note First
Mortgage Bonds shall be registered in the name of the Trustee or its nominee and
shall be held by the Trustee, subject to the provisions of this Indenture, for
the benefit of the Holders of all Notes from time to time Outstanding, and the
Company shall have no interest therein.
Section 402. Terms of Senior Note First Mortgage Bonds.
Each series of Senior Note First Mortgage Bonds issued and delivered
to the Trustee pursuant to Section 401 hereof in respect of a series of Notes
being issued hereunder shall have the same rate or rates of interest (or
interest calculated in the same manner) (including interest payable following a
default on the Notes), interest payment dates, maturity and redemption
provisions, and shall be in the same aggregate principal amount, as such series
of Notes.
Section 403. Senior Note First Mortgage Bonds as Security for Notes.
Until the Release Date and subject to Article Eight hereof, Senior
Note First Mortgage Bonds issued and delivered to the Trustee shall serve as
security for any and all obligations of the Company under all Notes from time to
time Outstanding, including, but not limited to, (1) the full and prompt payment
of the principal and premium, if any, on such Notes when and as the same shall
become due and payable in accordance with the terms and provisions of this
Indenture or such Notes, either at the Stated Maturity thereof, upon
acceleration of the maturity thereof, upon redemption, or otherwise, and (2) the
full and prompt payment of any interest on such Notes when and as the same shall
become due and payable in accordance with the terms and provisions of this
Indenture or the Notes including, if and to the extent provided for in such
Notes, interest on overdue installments of principal and (to the extent
permitted by law) interest on overdue installments of interest.
Each supplemental indenture to the First Mortgage pursuant to which
any Senior Note First Mortgage Bonds are issued shall contain a provision to the
effect that any payment by the Company hereunder of principal of or premium or
interest on Notes which shall have been authenticated and delivered in
connection with the issuance and delivery to the Trustee of such Senior Note
First Mortgage Bonds (other than by the application of the proceeds of a payment
in respect of such Senior Note First Mortgage Bonds) shall to the extent
thereof, be deemed to satisfy and discharge the obligation of the Company, if
any, to make a payment of principal, premium or interest, as the case may be, in
respect of such Senior Note First Mortgage Bonds which is then due.
Notwithstanding anything in this Indenture to the contrary, from and
after the Release Date, the obligation of the Company to make payment with
respect to the principal of and premium, if any, and interest on the Senior Note
First Mortgage Bonds shall be deemed satisfied and discharged as provided in the
supplemental indenture or indentures to the First Mortgage creating such Senior
Note First Mortgage Bonds and the Senior Note First Mortgage Bonds shall cease
to secure in any manner Notes theretofore or subsequently issued. From and after
the Release Date, all Notes, whether theretofore or subsequently issued, shall
be unsecured, and any conditions to the issuance of Notes that refer or relate
to Senior Note First Mortgage Bonds or the First Mortgage shall be inapplicable.
Following the Release Date, the Company
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shall cause the First Mortgage to be closed and the Company shall not issue any
additional First Mortgage Bonds or Senior Note First Mortgage Bonds under the
First Mortgage. Notice of the occurrence of the Release Date shall be given by
the Trustee to the Holders of the Notes in the manner provided for in Section
106 hereof not later than 30 days after the Company notifies the Trustee of the
occurrence of the Release Date.
In connection with the establishment of the occurrence of the
Release Date, the Trustee shall be entitled to receive, may presume the
correctness of, and shall be fully protected in relying upon, the Officer's
Certificate stating that the conditions to the occurrence of the Release Date
have been satisfied.
Section 404. Fair Value Certificate.
(a) Upon the delivery by the Company to the Trustee of Senior Note
First Mortgage Bonds pursuant to Section 401 hereof, the Company shall
simultaneously therewith deliver to the Trustee a certificate of an Expert
(1) stating that he or she is familiar with the provisions of such Senior
Note First Mortgage Bonds and of this Indenture; (2) identifying such
Senior Note First Mortgage Bonds; (3) identifying the Notes being issued
contemporaneously therewith and (4) stating the fair value to the Company
of such Senior Note First Mortgage Bonds. If the fair value to the Company
of the Senior Note First Mortgage Bonds so delivered, as described in the
certificate to be delivered pursuant to this Section 404(a), both (1) is
equal to or exceeds (A) $25,000 and (B) 1% of the principal amount of the
Notes outstanding at the date of delivery of such Senior Note First
Mortgage Bonds and (2) together with the fair value to the Company, as
described in the certificates delivered pursuant to this Section 404(a),
of all other Senior Note First Mortgage Bonds delivered to the Trustee
since the commencement of the then current calendar year, is equal to or
exceeds 10% of the principal amount of the Notes outstanding at the date
of delivery of such Senior Note First Mortgage Bonds, then the certificate
required by this Section 404(a) shall (1) be delivered by an Independent
Expert and (2) shall, in addition to the certifications described above,
state the fair value to the Company of all Senior Note First Mortgage
Bonds delivered to the Trustee pursuant to Section 401 hereof since the
commencement of the then current year as to which a certificate was not
delivered by an Independent Expert.
(b) If Senior Note First Mortgage Bonds are delivered or surrendered
to the Company pursuant to Sections 403, 407 or 409 hereof, the Company
shall simultaneously therewith deliver to the Trustee a certificate of an
Expert (1) stating that it is familiar with the provisions of such Senior
Note First Mortgage Bonds and of this Indenture, (2) identifying such
Senior Note First Mortgage Bonds, (3) if applicable, identifying the
Notes, the payment of the interest on and principal of which has been
discharged hereunder, (4) stating that such delivery or surrender will not
impair the lien of this Indenture in contravention of the provisions of
this Indenture. If, prior to the Release Date, the fair value of the
Senior Note First Mortgage Bonds so delivered and surrendered, as
described in the certificate to be delivered pursuant to this Section
404(b), both (1) is equal to or exceeds (A) $25,000 and (B) 1% of the
principal amount of the Notes outstanding at the date of delivery or
surrender of such Senior Note First Mortgage Bonds and (2) together with
the fair value, as described in the certificates delivered
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pursuant to this Section 404(b), of all other Senior Note First Mortgage
Bonds released from the lien of this Indenture since the commencement of
the then current calendar year, is equal to or exceeds 10% of the
principal amount of the Notes outstanding at the date of delivery or
surrender of such Senior Note First Mortgage Bonds, then the certificate
required by this Section 404(b) shall be delivered by an Independent
Expert.
If, in connection with a delivery or surrender of outstanding Senior
Note First Mortgage Bonds provided for in subsection (a) or (b) of this Section
404, as the case may be, the Company provides to the trustee an Opinion of
Counsel stating that the certificate described by the applicable subsection is
not required by law, such certificate shall not be required to be delivered
hereunder in connection with such delivery or surrender.
Section 405. Senior Note First Mortgage Bonds Held by the Trustee.
The Trustee, as a Holder of Senior Note First Mortgage Bonds, shall
attend each meeting of holders of First Mortgage Bonds under the First Mortgage
as to which it receives due notice, or, at its option, shall deliver its proxy
in connection therewith. Either at such meeting, or otherwise where consent of
holders of First Mortgage Bonds issued under the First Mortgage is sought
without a meeting, the Trustee shall vote all of the Senior Note First Mortgage
Bonds held by it, or shall consent or withhold its consent with respect thereto,
as directed by the Holders of not less than a majority in aggregate principal
amount of the Outstanding Notes, considered as one class.
Section 406. No Transfer of Senior Note First Mortgage Bonds; Exception.
Except as required to effect an assignment to a successor trustee or
to a nominee of the Trustee under this Indenture or pursuant to Section 407 or
Section 409 hereof, the Trustee shall not sell, assign or transfer the Senior
Note First Mortgage Bonds and the Company shall issue stop transfer instructions
to the Mortgage Trustee and any transfer agent under the First Mortgage to
effect compliance with this Section 406.
Section 407. Delivery to the Company of all Senior Note First Mortgage Bonds.
When the obligation of the Company to make payment with respect to
the principal of and premium, if any, and interest on the Senior Note First
Mortgage Bonds shall be satisfied or deemed satisfied pursuant to Section 403 or
Article Eight hereof, the Trustee shall, upon written request of the Company and
receipt of the certificate of the Expert described in Section 404(b) hereof (if
such certificate is then required by Section 404(b) hereof), deliver to the
Company without charge therefor all of the Senior Note First Mortgage Bonds,
together with such appropriate instruments of transfer or release as may be
reasonably requested by the Company. All Senior Note First Mortgage Bonds
delivered to the Company in accordance with this Section 407 shall be delivered
by the Company to the First Mortgage Trustee for cancellation.
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Section 408. Further Assurances.
The Company, at its own expense, shall do such further lawful acts
and things, and execute and deliver such additional conveyances, assignments,
assurances, agreements, financing statements and instruments. as may be
necessary in order to further assign, assure, perfect and confirm to the Trustee
its security interest in the Senior Note First Mortgage Bonds and for
maintaining, protecting and preserving such security interest.
Section 409. Exchange and Surrender of Senior Note First Mortgage Bonds.
At any time upon receipt of a Company Order at the written direction
of the Company, the Trustee shall surrender to the Company all or part of the
Senior Note First Mortgage Bonds in exchange for Senior Note First Mortgage
Bonds equal in aggregate principal amount to, in different denominations than
but of the same series and with all other terms identical to, the Senior Note
First Mortgage Bonds so surrendered to the Company. In addition, at any time a
Note shall cease to be entitled to any lien, benefit or security under this
Indenture pursuant to Article Eight hereof, the Trustee shall surrender an equal
principal amount of Senior Note First Mortgage Bonds of the related series to
the Company for cancellation. The Trustee shall, together with such Senior Note
First Mortgage Bonds, deliver to the Company such appropriate instruments of
transfer or release as the Company may reasonably request. Prior to the
surrender required by this paragraph, the Trustee shall receive from the Company
the following, and (subject to Section 801 hereof) shall be fully protected in
relying upon, (a) an Officer's Certificate stating (i) the aggregate outstanding
principal amount of the Senior Note First Mortgage Bonds of the series
surrendered by the Trustee, after giving effect to such surrender, (ii) the
aggregate Outstanding principal amount of the related series of Notes, (iii)
that the surrender of the Senior Note First Mortgage Bonds will not result in
any default under this Indenture, and (iv) that any Senior Note First Mortgage
Bonds to be received in exchange for the Senior Note First Mortgage Bonds being
surrendered comply with the provisions of this Section.
The Company shall not be permitted to cause the surrender or
exchange of all or any part of a series of Senior Note First Mortgage Bonds
contemplated in this Section, if, after such surrender or exchange, the
aggregate Outstanding principal amount of the related series of Notes would
exceed the aggregate outstanding principal amount of such series of Senior Note
First Mortgage Bonds held by the Trustee. Any Senior Note First Mortgage Bonds
received by the Company pursuant to this Section shall be delivered to the
Mortgage Trustee for cancellation.
ARTICLE V
Redemption of Notes
Section 501. Applicability of Article.
Notes 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 Notes of
such series or Tranche) in accordance with this Article.
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Section 502. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Notes shall be evidenced
by a Board Resolution and/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 Notes to be
redeemed. In the case of any redemption of Notes (a) prior to the expiration of
any restriction on such redemption provided in the terms of such Notes 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 Notes, the Company
shall furnish the Trustee with an Officer's Certificate evidencing compliance
with such restriction or condition.
Section 503. Selection of Notes to be Redeemed.
If less than all the Notes of any series, or any Tranche thereof,
are to be redeemed, the particular Notes to be redeemed shall be selected by the
Trustee from the Outstanding Notes of such series or Tranche 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 of random
selection as the Trustee shall deem fair and appropriate and which may, in any
case, provide for the selection for redemption of portions (equal to the minimum
authorized denomination for Notes of such series or Tranche or any integral
multiple thereof) of the principal amount of Notes of such series or Tranche of
a denomination larger than the minimum authorized denomination for Notes of such
series or Tranche; 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 Notes then Outstanding of any series, or any Tranche thereof, and
less than all of such Notes 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
Notes which have not been so tendered.
The Trustee shall promptly notify the Note Registrar in writing of
the Notes selected for redemption and, in the case of any Notes 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 Notes shall relate, in
the case of any Notes redeemed or to be redeemed only in part, to the portion of
the principal amount of such Notes which has been or is to be redeemed.
Section 504. Notice of Redemption.
Except for Notes redeemable at the option of the Holder, notice of
redemption shall be given in the manner provided in Section 106 to the Holders
of the Notes 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,
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(b) the Redemption Price or, if the Redemption Price is not
ascertainable as of the date any such notice of redemption is given
pursuant to Section 404, the method of calculation of the Redemption
Price,
(c) if less than all the Notes of any series or Tranche are to be
redeemed, the identification of the particular Notes to be redeemed and
the portion of the principal amount of any Note 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 Note 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 Notes 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 Notes 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 (including CUSIP numbers with respect to such Securities, if
the Company shall so choose, in which event such notice of redemption may
contain a disclaimer as to the correctness of such numbers either as
printed on the Securities or on such notice of redemption).
Unless otherwise specified with respect to any Notes in accordance
with Section 301, with respect to any notice of redemption of Notes at the
election of the Company, unless, upon the giving of such notice, such Notes
shall be deemed to have been paid in accordance with Section 801, such notice
may state that such redemption shall be conditional upon the receipt by the
Paying Agent or Agents for such Notes, 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 Notes 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 Notes. 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 Notes otherwise to have been redeemed shall promptly
return to the Holders thereof any of such Notes which had been surrendered for
payment upon such redemption.
Notice of redemption of Notes 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
Note Registrar in the name and at the expense of the Company. Notice of
mandatory redemption of Notes shall be given by the Note Registrar in the name
and at the expense of the Company.
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Section 505. Notes 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 Notes 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 Notes or portions thereof, if interest-bearing, shall cease to bear
interest. Upon surrender of any such Note for redemption in accordance with such
notice, such Note 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
Note; and provided, further, that except as otherwise specified as contemplated
by Section 301 with respect to such Note, any installment of interest on any
Note the Stated Maturity of which installment is on or prior to the Redemption
Date shall be payable to the Holder of such Note, or one or more Predecessor
Notes, registered as such at the close of business on the related Regular Record
Date according to the terms of such Note and subject to the provisions of
Section 307.
Section 506. Notes Redeemed in Part.
Upon the surrender of any Note 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 Note, without service charge, a
new Note or Notes of the same series and Tranche, 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 Note
so surrendered.
ARTICLE VI
Sinking Funds
Section 601. Applicability of Article.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of the Notes of any series, or any Tranche thereof,
except as otherwise specified as contemplated by Section 301 for Notes of such
series or Tranche.
The minimum amount of any sinking fund payment provided for by the
terms of Notes 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 Notes of any series, or any Tranche thereof,
is herein referred to as an "optional sinking fund payment." If provided for by
the terms of Notes of any series, or any Tranche thereof, the cash amount of any
sinking fund payment may be subject to reduction as provided in Section 602.
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Each sinking fund payment shall be applied to the redemption of Notes of the
series or Tranche in respect of which it was made as provided for by the terms
of such Notes.
Section 602. Satisfaction of Sinking Fund Payments with Notes.
The Company (a) may deliver to the Trustee Outstanding Notes (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 Notes of such series or Tranche which have been redeemed either at the
election of the Company pursuant to the terms of such Notes or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Notes, in each case in satisfaction of all or any part of such mandatory
sinking fund payment; provided, however, that no Notes shall be applied in
satisfaction of a mandatory sinking fund payment if such Notes shall have been
previously so applied. Notes so applied shall be received and credited for such
purpose by the Trustee at the Redemption Price specified in such Notes for
redemption through operation of the sinking fund and the amount of such
mandatory sinking fund payment shall be reduced accordingly.
Section 603. Redemption of Notes for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for
the Notes of any series, or any Tranche thereof, 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 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; and
(e) the portion, if any, of such aggregate sinking fund payment
which is to be satisfied by delivering and crediting Notes of such series
or Tranche pursuant to Section 602 and stating the basis for such credit
and that such Notes have not previously been so credited, and the Company
shall also deliver to the Trustee any Notes to be so delivered.
If the Company shall not have delivered such Officer's Certificate
and, to the extent applicable, all such Notes, on or prior to the 45th day prior
to such sinking fund payment date, the sinking fund payment for such series or
Tranche in respect of such sinking fund payment date 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 Notes to
be redeemed upon such sinking fund payment date in the manner specified in
Section 503 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 504. Such
notice having been duly
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given, the redemption of such Notes shall be made upon the terms and in the
manner stated in Sections 505 and 506.
ARTICLE VII
Covenants
Section 701. Payment of Principal, Premium and Interest.
The Company shall pay the principal of and premium, if any, and
interest, if any, on the Notes of each series in accordance with the terms of
such Notes and this Indenture.
Section 702. Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for the Notes of
each series, or any Tranche thereof, an office or agency where payment of such
Notes shall be made, where the registration of transfer or exchange of such
Notes may be effected and where notices and demands to or upon the Company in
respect of such Notes 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 Notes of
any series, or any Tranche thereof, or shall fail to furnish the Trustee with
the address thereof, payment of such Notes 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 Notes of one or more series, or any
Tranche thereof, 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 Notes of such
series or Tranche 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 Notes 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 703. Money for Notes Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to the Notes of any series, or any Tranche thereof, it shall, on or
before each due date of the principal of and premium, if any, and interest, if
any, on any of such Notes, segregate and hold in trust for the
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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
Notes) to make any payment of principal of or premium, if any, or interest, if
any, on such Notes.
Whenever the Company shall have one or more Paying Agents for the
Notes of any series, or any Tranche thereof, it shall, on or before each due
date of the principal of and premium, if any, and interest, if any, on such
Notes, deposit with such Paying Agents sums sufficient (without duplication) to
pay the principal and 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 any failure by it so to act.
The Company shall cause each Paying Agent for the Notes of any
series, or any Tranche thereof, 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 Notes 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 Notes) to make any payment of principal of or
premium, if any, or interest, if any, on such Notes; 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 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 Eight; 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 Note 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 Note shall, as an unsecured general creditor and
not as a Holder of
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an Outstanding Note, 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 704. Corporate Existence.
Subject to the rights of the Company under Article Twelve, 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 705. 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 706. Annual Officer's Certificate as to Compliance.
Not later than June 1 in each year, commencing June 1, 2000, 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,
stating whether to such officer's knowledge, the Company is in 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, and making any other statements as may be required by the
provisions of Section 314(a)(4) of the Trust Indenture Act.
Section 707. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in (a) Section 702 or any additional
covenant or restriction specified with respect to the Notes of any series, or
any Tranche thereof, as contemplated by Section 301 if before the time for such
compliance the Holders of at least a majority in aggregate principal amount of
the Outstanding Notes of all series and Tranches with respect to which
compliance with Section 702 or such additional covenant or restriction is to be
omitted,
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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 704, 705, 706 or Article Twelve if before
the time for such compliance the Holders of at least a majority in principal
amount of Notes 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.
Section 708. Recording, Filing, etc.; Opinions of Counsel.
The Company will (and the Trustee shall be under no duty to) cause
this Indenture, any indentures supplemental to this Indenture, any financing or
continuation statements, and any other documents, to be promptly recorded and
filed and rerecorded and refiled in such a manner and in such places, as may be
required by law in order fully to preserve, protect and perfect the security of
the Holders and all rights of the Trustee, and shall deliver to the Trustee:
(a) promptly after the execution and delivery of this Indenture and
of any indenture supplemental to this Indenture but prior to the Release
Date, an Opinion of Counsel either stating that, in the opinion of such
counsel, this Indenture or such supplemental indenture, any financing or
continuation statements, and any other documents, have been properly
recorded and filed so as to make effective and to perfect the security
interest of the Trustee intended to be created by this Indenture for the
benefit of the Holders from time to time in the Senior Note First Mortgage
Bonds, and reciting the details of such action, or stating that, in the
opinion of such counsel, no such action is necessary to perfect or make
such security interest effective and stating what, if any, action of the
foregoing character may reasonably be expected to become necessary prior
to the next succeeding July 15 to maintain, perfect and make such security
interest effective; and
(b) on or before July 15 of each year, beginning in 2000, and prior
to the Release Date, an Opinion of Counsel either stating that in the
opinion of such counsel such action has been taken, since the date of the
most recent Opinion of Counsel furnished pursuant to this Section 710(b)
or the first Opinion of Counsel furnished pursuant to Section 710(a), with
respect to the recording, filing, rerecording, or refiling of this
Indenture, each supplemental indenture, any financing or continuation
statements, and any other documents, as is necessary to maintain and
perfect the security interest of the Trustee intended to be created by
this Indenture for the benefit of the Holders from time to time of the
Notes in the Senior Note First Mortgage Bonds, and reciting the details of
such action, or stating that in the opinion of such counsel no such action
is necessary to maintain and perfect such security interest and stating
what, if any, action of the foregoing character may reasonably be expected
to become necessary prior to the next succeeding July 15 to maintain,
perfect and make such security interest effective.
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Section 709. Liens.
(a) From and after the Release Date and so long as any Notes are
Outstanding, the Company will not issue, assume, or guarantee (including
any contingent obligation to purchase) any Debt secured by any mortgage,
security interest, pledge, or lien (herein referred to as a "Lien") of or
upon any Operating Property of the Company, whether owned at the date of
the Indenture or thereafter acquired, and will not permit to exist any
Debt secured by a Lien on any Operating Property created on or prior to
the Release Date, without in any such case effectively securing, on the
later to occur of the issuance, assumption, or guarantee of any such Debt
or the Release Date, the Outstanding Notes (together with, if the Company
shall so determine, any other Note or Debt of or guaranteed by the Company
ranking equally with, the Notes) equally and ratably with such Debt;
provided, however, that the foregoing restriction shall not apply to Debt
secured by any of the following:
(1) Liens on any Operating Property existing at the time of
acquisition thereof and not created in contemplation of such
acquisition;
(2) Liens on Operating Property of a corporation existing at the
time such corporation is merged into or consolidated with the
Company, or at the time of a sale, lease, or other disposition
of the properties of such corporation or a division thereof as
an entirety or substantially as an entirety to the Company,
provided that such Lien as a result of such merger,
consolidation, sale, lease, or other disposition is not
extended to property owned by the Company immediately prior
thereto and is not created in contemplation of such merger,
consolidation, sale, lease or other disposition;
(3) Liens on Operating Property to secure all or part of the cost
of acquiring, constructing, developing, or substantially
repairing, altering, or improving such property, or to secure
indebtedness incurred to provide funds for any such purpose or
for reimbursement of funds previously expended for any such
purpose, provided such Liens are created or assumed
contemporaneously with, or within eighteen (18) months after,
such acquisition or completion of construction, development,
or substantial repair, alteration, or improvement or within
six (6) months thereafter pursuant to a commitment for
financing arranged with a lender or investor within such
eighteen (18) month period;
(4) Liens in favor of the United States of America or any State
thereof, or any department, agency, or instrumentality or
political subdivision of the United States of America or any
State thereof, or for the benefit of holders of securities
issued by any such entity, to secure any Debt incurred for the
purpose of financing all or any part of the purchase price or
the cost of constructing, developing,
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or substantially repairing, altering, or improving the
property subject to such Liens; or
(5) any extension, renewal or replacement (or successive
extensions, renewals, or replacements), in whole or in part,
of any Lien referred to in the foregoing clauses (1) to (4),
inclusive; provided, however, that the principal amount of
Debt secured thereby and not otherwise authorized by said
clauses (1) to (4), inclusive, shall not exceed the principal
amount of Debt, plus any premium or fee payable in connection
with any such extension, renewal, or replacement, so secured
at the time of such extension, renewal, or replacement.
(b) Notwithstanding the provisions of Section 709(a), from and after
the Release Date and so long as any Notes are Outstanding, the Company may
issue, assume, or guarantee Debt, or permit to exist Debt, secured by
Liens which would otherwise be subject to the restrictions of Section
709(a) up to an aggregate principal amount that, together with the
principal amount of all other Debt of the Company secured by Liens (other
than Liens permitted by Section 709(a) that would otherwise be subject to
the foregoing restrictions) and the Value of all Sale and Lease-Back
Transactions in existence at such time (other than (i) any Sale and
Lease-Back Transaction that, if such Sale and Lease-Back Transaction had
been a Lien, would have been permitted by Section 709(a), (ii) Sale and
Lease-Back Transactions permitted by Section 710 because the commitment by
or on behalf of the purchaser was obtained no later than eighteen (18)
months after the later of events described in (i) or (ii) of Section 710,
and (iii) Sale and Lease-Back Transactions as to which application of
amounts have been made in accordance with clause (z) of Section 710), does
not at the time exceed the greater of ten percent (10%) of Net Tangible
Assets or ten percent (10%) of Capitalization.
(c) If at any time the Company shall issue, assume, or guarantee any
Debt secured by any Lien and if Section 709(a) requires that the
Outstanding Notes be secured equally and ratably with such Debt, the
Company will promptly execute, at its expense, any instruments necessary
to so equally and ratably secure the Outstanding Notes and deliver the
same to the Trustee along with:
(1) An Officers' Certificate stating that the covenant of the
Company contained in Section 709(a) has been complied with;
and
(2) An Opinion of Counsel to the effect that the Company has
complied with the covenant contained in Section 709(a), and
that any instrument executed by the Company in the performance
of such covenant complies with the requirements of such
covenant.
In the event that the Company shall hereafter secure Outstanding
Notes equally and ratably with any other obligation or indebtedness
(including other Notes) pursuant to the provisions of this Section 709,
the Trustee is hereby authorized to enter into an indenture or agreement
supplemental hereto and to take such action, if any, as it may, in
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its sole and absolute discretion, deem advisable to enable it to enforce
effectively the rights of the Holders of Outstanding Notes so secured,
equally and ratably with such other obligation or indebtedness.
Section 710. Sale and Lease-Back Transactions.
From and after the Release Date and so long as any Notes are
outstanding, the Company will not enter into any Sale and Lease-Back Transaction
with respect to any Operating Property and will not permit to remain in effect
any Sale and Lease-Back Transaction entered into on or prior to the Release Date
with respect to any Operating Property if, in any case, the commitment by or on
behalf of the purchaser is or was obtained more than eighteen (18) months after
the later of (i) the completion of the acquisition, construction, or development
of such Operating Property or (ii) the placing in operation of such Operating
Property or of such Operating Property as constructed, developed, or
substantially repaired, altered, or improved, unless (x) the Company would be
entitled pursuant to Section 709(a) to issue, assume, or guarantee Debt secured
by a Lien on such Operating Property without equally and ratably securing the
Notes or (y) the Company would be entitled pursuant to Section 709(b), after
giving effect to such Sale and Lease-Back Transaction, to incur $1.00 of
additional Debt secured by Liens (other than Liens permitted by Section 709(a))
or (z) the Company shall apply or cause to be applied, in the case of a sale or
transfer for cash, an amount equal to the net proceeds thereof (but not less
than the fair value (as determined by the Company's Chief Financial Officer) of
such Operating Property at the date of such sale or transfer) and, in the case
of a sale or transfer otherwise than for cash, an amount equal to the fair value
(as determined by the Board of Directors) of the Operating Property so leased,
to the retirement, within one hundred eighty (180) days after the later to occur
of the effective date of such Sale and Lease-Back Transaction or the Release
Date, of Notes or other Debt of the Company ranking equally with, the Notes;
provided, however, that any such retirement of Notes shall be in accordance with
the terms and provisions of the Indenture and the Notes; provided, further, that
the amount to be applied to such retirement of Notes or other Debt shall be
reduced by an amount equal to the sum of (a) an amount equal to the redemption
price with respect to Notes delivered within such one hundred eighty (180)-day
period to the Trustee for retirement and cancellation and (b) the principal
amount, plus any premium or fee paid in connection with any redemption in
accordance with the terms of other Debt voluntarily retired by the Company
within such one hundred eighty (180)-day period, excluding in each case
retirements pursuant to mandatory sinking fund or prepayment provisions and
payments at maturity.
ARTICLE VIII
Satisfaction and Discharge
Section 801. Satisfaction and Discharge of Notes.
Any Note or Notes, 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
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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
Notes or portions thereof, Eligible 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 Notes 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 Notes of any series or Tranche, such Notes 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 Notes, a Company Order stating that the money and Eligible
Obligations deposited in accordance with this Section shall be held
in trust, as provided in Section 803;
(y) if Eligible Obligations shall have been deposited, an
Opinion of Counsel that the obligations so deposited constitute
Eligible Obligations and do not contain provisions permitting the
redemption or other prepayment at the option of the issuer thereof,
and an opinion of an independent public accountant of nationally
recognized standing, selected by the Company, to the effect that the
requirements set forth in clause (b) above have been satisfied; and
(z) if such deposit shall have been made prior to the Maturity
of such Notes, an Officer's Certificate stating the Company's
intention that, upon delivery of such Officer's Certificate, its
indebtedness in respect of such Notes or portions thereof will have
been satisfied and discharged as contemplated in this Section.
If the Company shall make any deposit of money and/or Eligible Obligations with
respect to any Notes, or any portion of the principal amount thereof, as
contemplated by this section, the Company shall not deliver an Officer's
Certificate described in clause (z) above unless the Company shall also deliver
to the Trustee, together with such Officer's Certificate, an Opinion of Counsel
to the effect that, as a result of a change in law occurring after the date of
this Indenture, the Holders of such Notes, or portions thereof, will not
recognize income, gain or loss for United States federal income tax purposes as
a result of the satisfaction and discharge of the Company's indebtedness in
respect thereof and will be subject to United States federal income tax on the
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same amounts, at the same times and in the same manner as if such satisfaction
and discharge had not been effected.
Upon the deposit of money or Eligible Obligations, or both, in
accordance with this Section, together with the documents required by clauses
(x), (y) and (z) above, the Trustee shall, upon receipt of a Company Request,
acknowledge in writing that the Note or Notes 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 Notes or portions thereof except that, for
any reason, the Officer's Certificate specified in clause (z) shall not have
been delivered, such Notes or portions thereof shall nevertheless be deemed to
have been paid for all purposes of this Indenture, and the Holders of such Notes
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 Seven
(except the covenants contained in Sections 702 and 703) or any other covenants
made in respect of such Notes or portions thereof as contemplated by Section
301, but the indebtedness of the Company in respect of such Notes 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 Notes 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 Notes 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 Notes 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 Notes, or
portions of principal amount thereof, in the manner specified by Section 503 for
selection for redemption of less than all the Notes of a series or Tranche.
In the event that Notes 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 sixty (60)
day period commencing with the date of the deposit of moneys or Eligible
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 Notes,
to the Holders of such Notes to the effect that such deposit has been made and
the effect thereof.
Notwithstanding that any Notes 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 Notes under Sections 304, 305, 306, 504, 603 (as to
notice of redemption), 702, 703, 1007, 1014 and 1015 and this Article Eight
shall survive.
To the extent Notes are deemed paid and discharged pursuant to this
Section 801, the obligation of the Company to make payment with respect to the
principal of and premium, if any, and interest on the related Senior Note First
Mortgage Bonds shall be satisfied and discharged, and such Senior Note First
Mortgage Bonds shall cease to secure the Notes in any manner but shall continue
to be held by the Trustee until the Release Date.
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If the Company shall have paid or caused to be paid the principal of
and premium, if any, and interest on any Note, as and when the same shall have
become due and payable or the Company shall have delivered to the Trustee or the
Note Registrar for cancellation any Outstanding Note, such Note shall cease to
be entitled to any lien, benefit or security under this Indenture. Upon a Note
of any series ceasing to be entitled to any lien, benefit or security under this
Indenture, the obligation of the Company to make payment with respect to
principal of and premium, if any, and interest on a principal amount of the
related series of Senior Note First Mortgage Bonds equal to the principal amount
of such Note shall be satisfied and discharged and such portion of the principal
amount of such Senior Note First Mortgage Bonds shall cease to secure such Note
in any manner, but such Senior Note First Mortgage Bonds shall continue to be
held by the Trustee until the Release Date.
The Company shall pay, and shall indemnify the Trustee or any Paying
Agent with which Eligible Obligations shall have been deposited as provided in
this Section against, any tax, fee or other charge imposed on or assessed
against such Eligible Obligations or the principal or interest received in
respect of such Eligible 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 Note 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 Eligible 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 Note shall thereupon be deemed retroactively not to have
been paid and any satisfaction and discharge of the Company's indebtedness in
respect thereof (and in respect of the related Senior Note First Mortgage Bonds)
shall retroactively be deemed not to have been effected, such Note shall be
deemed to remain Outstanding, and such Note shall continue to be secured by the
related Senior Note First Mortgage Bond until the Release Date and (b) any
satisfaction and discharge of the Company's indebtedness in respect of any Note
shall be subject to the provisions of the last paragraph of Section 703.
Section 802. 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 Notes 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
801, any Note, previously deemed to have been paid for purposes of this
Indenture, shall be deemed
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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, 504, 603 (as to notice of redemption), 702, 703, 1007, 1014 and 1015
and this Article Eight 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 1007, any and all money, Notes and other
property then held by the Trustee for the benefit of the Holders of the Notes
other than money and Eligible Obligations held by the Trustee pursuant to
Section 803.
Section 803. Application of Trust Money.
Neither the Eligible Obligations nor the money deposited pursuant to
Section 801, nor the principal or interest payments on any such Eligible
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 Notes or portions of principal amount thereof in
respect of which such deposit was made, all subject, however, to the provisions
of Section 703; provided, however, that, so long as there shall not have
occurred and be continuing an Event of Default, or an event which, with the
giving of notice or the passage of time, would become an Event of Default, any
cash received from such principal or interest payments on such Eligible
Obligations, if not then needed for such purpose, shall, to the extent
practicable, be invested in Eligible Obligations of the type described in clause
(b) in the first paragraph of Section 801 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 Notes 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 1007; and provided, further, that, so long as there shall not have
occurred and be continuing an Event of Default, or an event which, with the
giving of notice or the passage of time, would become an Event of Default, any
moneys held in accordance with this Section on the Maturity of all such Notes in
excess of the amount required to pay the principal of and premium, if any, and
interest, if any, then due on such Notes 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 1007; and provided, further, that if an Event of Default, or
an event which, with the giving of notice or the passage of time, would become
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, or event which, with the giving of notice or the passage of time, would
become an Event of Default, shall have been waived or cured.
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ARTICLE IX
Events of Default; Remedies
Section 901. Events of Default.
"Event of Default", wherever used herein with respect to Notes of
any series, means any one of the following events:
(a) failure to pay interest, if any, on any Note of such series
within thirty (30) days after the same becomes due and payable; or
(b) failure to pay the principal of or premium, if any, on any Note
of such series when due and payable; 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 Notes 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 Notes 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 Notes of such series not
less than the principal amount of Notes 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 Notes of such
series, as the case may be, shall be deemed to have agreed to an extension
of such period for a maximum of one hundred twenty (120) days if
corrective action is initiated by the Company within such period and is
being diligently pursued; or
(d) prior to the Release Date, a completed default (as defined in
Section 66 of the First Mortgage) has occurred and is continuing;
provided, however, that, anything in this Indenture to the contrary
notwithstanding, the waiver or cure of such completed default under the
First Mortgage and the rescission and annulment of the consequences
thereof shall constitute a waiver of the corresponding Event of Default
hereunder and a rescission and annulment of the consequences thereof;
(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
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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 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 Notes of
such series.
Section 902. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default due to the default in payment of principal
of, or premium, if any, or interest on, any series of Notes or due to the
default in the performance or breach of any other covenant or warranty of the
Company applicable to the Notes of such series but not applicable to all
Outstanding Notes shall have occurred and be continuing, either the Trustee or
the Holders of not less than 33% in principal amount of the Notes of such series
may then declare the principal amount (or, if any of the Notes of such series
are Discount Notes, such portion of the principal amount as may be specified in
the terms thereof as contemplated by Section 301) of all Notes of such series
and premium, if payment of any thereof be in default, and interest accrued
thereon to be due and payable immediately, by a notice in writing to the Company
(and to the Trustee if given by the Holders). If an Event of Default due to
default in the performance of any other of the covenants or agreements herein
applicable to all Outstanding Notes or an Event of Default specified in Section
901(d), (e) or (f) shall have occurred and be continuing, either the Trustee or
the Holders of not less than 33% in principal amount of all Notes then
Outstanding (considered as one class), and not the Holders of the Notes of any
one of such series, may declare the principal amount (or, if any of the Notes
are Discount Notes, such portion of the principal amount of such Notes as may be
specified in the terms thereof as contemplated by Section 301) of all Notes and
premium, if payment of any thereof be in default, and interest accrued thereon
to be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by the Holders). As a consequence of each such declaration
(herein referred to as a declaration of acceleration) with respect to Notes of
any series, the principal amount (or portion thereof in the case of Discount
Notes) of such Notes, any such premium, and interest accrued thereon shall
become due and payable immediately. Prior to the Release Date, upon all of the
Notes becoming immediately due and payable by declaration pursuant to any of the
foregoing provisions of this Section 902, the Trustee shall immediately file
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with the Mortgage Trustee a written demand for the acceleration of the payment
of principal of and premium, if any and accrued interest on all Senior Note
First Mortgage Bonds pursuant to the applicable provisions of the First
Mortgage.
At any time after such a declaration of acceleration with respect to
Notes 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, and prior to the receipt by the Trustee from the
Mortgage Trustee of an irrevocable, valid and unconditional notice to the
Trustee of the acceleration of the payment of principal, by declaration or
otherwise, of all of the Senior Note First Mortgage Bonds issued and outstanding
under the First Mortgage, the Event or Events of Default and its consequences
(including, if given, the written demand for the acceleration of the payment of
principal of and premium, if any, and accrued interest on all such Senior Note
First Mortgage Bonds) 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 Notes of such series;
(2) the principal of and premium, if any, on any Notes 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 Notes;
(3) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Notes;
(4) all amounts due to the Trustee under Section 1007;
and
(b) any other Event or Events of Default with respect to Notes of
such series, other than the non-payment of the principal of Notes of such
series which shall have become due solely by such declaration of
acceleration, shall have been cured (including any completed default (as
defined in Section 66 of the First Mortgage) under the First Mortgage, as
evidenced by notice thereof received by the Trustee from the Mortgage
Trustee) or waived as provided in Section 913 or under the First Mortgage.
No such rescission shall affect any subsequent Event of Default or impair any
right consequent thereon.
Section 903. Collection of Indebtedness and Suits for Enforcement by Trustee.
If an Event of Default described in clause (a) or (b) of Section 901
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 Notes of the series
with respect to which such Event of Default shall
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have occurred, the whole amount then due and payable on such Notes 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 Notes, and, in addition thereto, such
further amount as shall be sufficient to cover any amounts due to the Trustee
under Section 1007.
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 Notes 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 Notes,
wherever situated.
If an Event of Default with respect to Notes of any series shall
have occurred and be continuing, the Trustee may in its discretion proceed to
protect and enforce its rights (including, prior to the Release Date, any rights
the Trustee may have as a holder of Senior Note First Mortgage Bonds) and the
rights of the Holders of Notes 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 904. 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
Notes or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Notes 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
Notes 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 1007 and, prior to the
Release Date, any claims of the Trustee as holder of Senior Note First
Mortgage Bonds) 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 1007.
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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 Notes 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 905. Trustee May Enforce Claims Without Possession of Notes.
All rights of action and claims under this Indenture or the Notes
may be prosecuted and enforced by the Trustee without the possession of any of
the Notes 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 906. 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 Notes 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 1007;
Second: To the payment of the amounts then due and unpaid upon
the Notes 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 Notes 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 907. 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 Notes of such
series;
(b) the Holders of not less than a majority in aggregate principal
amount of the Outstanding Notes 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
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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 Notes 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 908. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Note 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 Note on the Stated Maturity or Maturities expressed in
such Note (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 909. 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 910. 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
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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 911. 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 912. Control by Holders of Notes.
If an Event of Default shall have occurred and be continuing in
respect of a series of Notes, the Holders of a majority in principal amount of
the Outstanding Notes 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 Notes 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
Notes, the Holders of a majority in aggregate principal amount of the
Outstanding Notes of all such series, considered as one class, shall have the
right to make such direction, and not the Holders of the Notes 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
reasonable discretion be adequate, and
(b) the Trustee may take any other action deemed proper by the
Trustee that is not inconsistent with 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 that might be incurred by it in compliance with any such direction.
Section 913. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Notes of any series may on behalf of the Holders of
all the Notes 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 Note of such series, or
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(b) in respect of a covenant or provision hereof which under Section
1302 cannot be modified or amended without the consent of the Holder of
each Outstanding Note 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 914. 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 Notes 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 Note on or after the Stated Maturity or
Maturities expressed in such Note (or, in the case of redemption, on or after
the Redemption Date).
Section 915. 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.
Section 916. Default Under the First Mortgage.
In addition to every other right and remedy provided herein, the
Trustee may exercise any right or remedy available to the Trustee in its
capacity as owner and holder of Senior Note First Mortgage Bonds which arises as
a result of a completed default (as defined in Section 66 of the First Mortgage)
whether or not an Event of Default hereunder shall then have occurred and be
continuing.
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ARTICLE X
The Trustee
Section 1001. 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. For purposes of Sections 315(a)
and 315(c) of the Trust Indenture Act, the term "default" is hereby
defined as an Event of Default which has occurred and is continuing.
(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 provisions of such Act deemed by
such Act to be included herein. For the purpose of Section 315(d)(2) of
the Trust Indenture Act, the term "responsible officer" is hereby defined
as a Responsible Officer and the chairman or vice-chairman of the board of
directors, the chairman or vice-chairman of the executive committee of the
board of directors, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier,
any assistant cashier, any trust officer or assistant trust officer, the
controller and any assistant controller of the Trustee, or any other
officer of the Trustee customarily performing functions similar to those
performed by a Responsible Officer or any of the above designated officers
and also means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of his or her
knowledge of or familiarity with the particular subject.
(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 1002. Notice of Defaults.
The Trustee shall give the Holders notice of any default hereunder
with respect to the Notes of any series to the Holders of Notes of such series
of which it has knowledge (within the meaning of Section 1003(h) hereof) 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 901(c), no such notice
to Holders shall be given until at least 60 days after the occurrence thereof.
For the purpose of this
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Section, the term "default" means any event that is, or after notice or lapse of
time, or both, would become, an Event of Default.
Section 1003. Certain Rights of Trustee.
Subject to the provisions of Section 1001 and to the applicable
provisions of the Trust Indenture Act:
(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 Officer's Certificate,
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(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
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(h) the Trustee shall not be charged with knowledge of any default
or Event of Default with respect to the Notes 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 or
(2) written notice of such default or Event of Default (which shall state
that such notice is a "Notice of Default" or a "Notice of an Event of
Default" hereunder, as the case may be) shall have been given to the
Trustee by the Company, any other obligor on such Notes or by any Holder
of such Notes, or in the case of an Event of Default described in Section
901(d), by the Mortgage Trustee or Holders of at least 25% in principal
amount of the outstanding Notes.
Section 1004. Not Responsible for Recitals or Issuance of Notes.
The recitals contained herein and in the Notes (except 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 correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Notes or as to the value, title or
validity of any Senior Note First Mortgage Bonds or other securities at any time
pledged or deposited with the Trustee hereunder or as to the security offered
thereby or hereby. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Notes or the proceeds
thereof.
Section 1005. May Hold Notes.
Each of the Trustee, any Authenticating Agent, any Paying Agent, any
Note Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Notes and, subject to Sections 1008
and 1013, may otherwise deal with the Company with the same rights it would have
if it were not the Trustee, Authenticating Agent, Paying Agent, Note Registrar
or such other agent.
Section 1006. 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 investment of any money received by it
hereunder except as expressly provided herein or otherwise agreed with, and for
the sole benefit of, the Company.
Section 1007. 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
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costs of collection and (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 its negligence, willful misconduct or bad faith; and
(c) indemnify the Trustee and hold it harmless from and against any
loss, liability or expense (including reasonable attorney's fees and
expenses) incurred without negligence or bad faith on its part 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
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 Notes upon all
property and funds held or collected by the Trustee as such other than property
and funds held in trust under Section 803 (except as otherwise provided in
Section 803). "Trustee" for purposes of this Section shall include any
predecessor Trustee; provided; however, that the negligence, willful misconduct
or bad faith of any Trustee hereunder shall not affect the rights of any other
Trustee hereunder.
When a Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 901(e) or Section 901(f), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency or
other similar law.
The provisions of this Section 1007 shall survive termination of
this Indenture.
Section 1008. 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 shall not be deemed to have a
conflicting interest by virtue of being a Trustee under (i) this Indenture with
respect to Notes of more than one series, or (ii) the First Mortgage or with
respect to the Senior Note First Mortgage Bonds issued thereunder.
Section 1009. 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 $100,000,000 and subject to
supervision or examination by Federal or State authority, or
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(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 $100,000,000 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 1010. 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 1011.
(b) The Trustee may resign at any time with respect to the Notes 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 1011
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 Notes of such series.
(c) The Trustee may be removed at any time with respect to the Notes
of any series by Act of the Holders of a majority in principal amount of
the Outstanding Notes 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 1008 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 1009
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,
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then, in any such case, (x) the Company by a Board Resolution may remove
the Trustee with respect to all Notes or (y) subject to Section 914, 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
Notes 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 Notes of one or more series, the Company, by
a Board Resolution, shall promptly appoint a successor Trustee or Trustees
with respect to the Notes of that or those series (it being understood
that any such successor Trustee may be appointed with respect to the Notes
of one or more or all of such series and that at any time there shall be
only one Trustee with respect to the Notes of any particular series) and
shall comply with the applicable requirements of Section 1011. If, within
one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Notes
of any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Notes 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 1011, become the successor
Trustee with respect to the Notes of such series and to that extent
supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Notes of any series shall have been so
appointed by the Company or the Holders and accepted appointment in the
manner required by Section 1011, any Holder who has been a bona fide
Holder of a Note 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 Notes 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 Notes
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 1011, 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 1011, all
as of such date, and all other provisions of this Section and Section 1011
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 Notes of
any series and each appointment of a successor Trustee with respect to the
Notes of any series by mailing
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written notice of such event by first-class mail, postage prepaid, to all
Holders of Notes of such series as their names and addresses appear in the
Note Register. Each notice shall include the name of the successor Trustee
with respect to the Notes of such series and the address of its corporate
trust office.
Section 1011. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to the Notes 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, including rights, title and interest in the Senior Note
First Mortgage Bonds; 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 Notes of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Notes 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 and trusts of the retiring Trustee with respect to the
Notes 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 Notes, 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 Notes 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 Notes 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 Notes of that or those series to
which the appointment of such successor Trustee relates.
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(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 1012. 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 Notes 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 Notes so authenticated with the same effect as if
such successor Trustee had itself authenticated such Notes.
Section 1013. Preferential Collection of Claims Against Company.
If the Trustee shall be or become a creditor of the Company or any
other obligor upon the Notes (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 Notes sold is made within seven days after delivery
of the goods or Notes 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 1014. 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
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written request of the Trustee or of the Holders of at least thirty-three
percent (33%) in principal amount of the Notes 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 Notes shall be authenticated and delivered, and all rights,
powers, duties and obligations hereunder in respect of the custody of
Notes, 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
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(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 1015. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with
respect to the Notes of one or more series, or any Tranche thereof, which shall
be authorized to act on behalf of the Trustee to authenticate Notes of such
series or Tranche issued upon original issuance, exchange, registration of
transfer or partial redemption thereof or pursuant to Section 306, and Notes 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 Notes 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 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 $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 45 days
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.
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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, 1004 and 1005 shall be applicable to
each Authenticating Agent.
If an appointment with respect to the Notes of one or more series,
or any Tranche thereof, shall be made pursuant to this Section, the Notes 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 Notes 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 Notes of a series may not be originally issued at one
time, and if the Trustee does not have an office capable of authenticating Notes
upon original issuance located in a Place of Payment where the Company wishes to
have Notes 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
Notes.
ARTICLE XI
Holders' Lists and Reports by Trustee and Company
Section 1101. Lists of Holders.
Semiannually, between March 15 and April 1 and between September 15
and October 1 in each year, commencing with the year 1999, 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
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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 Note Registrar. Every
holder of Notes by receiving and holding the same, agrees 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 of Notes in accordance
with Section 312 of the Trust Indenture Act, or any successor section of such
Act, 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 312(b) of the Trust Indenture Act, or
any successor section of such Act.
Section 1102. Reports by Trustee and Company.
Annually, not later than sixty (60) days after __________ 15 in each
year, commencing ____________ 15, 2000, the Trustee shall transmit to the
Holders, the Commission and each securities exchange upon which any Notes are
listed, a report, dated as of the next preceding ________ 15, 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, the Commission and each securities
exchange upon which any Notes are listed, and the Company shall file with the
Trustee (within thirty (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. The Company shall
notify the Trustee of the listing of any Notes on any securities exchange.
Delivery of such reports, information and documents by the Company to the
Trustee is for informational purposes only, and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officer's Certificates).
ARTICLE XII
Consolidation, Merger, Conveyance or Other Transfer
Section 1201. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
Person, 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, 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 the District of Columbia,
and (a) shall expressly assume, by an indenture supplemental
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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 Notes and the performance of
every covenant of this Indenture on the part of the Company to be
performed or observed, and (b) if such consolidation, merger, conveyance,
transfer, or lease occurs prior to the Release Date, shall expressly
assume, by an indenture supplemental to the First Mortgage, executed and
delivered to the Trustee and the Mortgage Trustee, in form satisfactory to
the Trustee and the Mortgage Trustee, the due and punctual payment of the
principal of, and premium, if any, and interest on all of the Senior Note
First Mortgage Bonds and the performance of every covenant of the First
Mortgage 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 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 1202. 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 or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 1201, 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 Notes
Outstanding hereunder.
ARTICLE XIII
Supplemental Indentures
Section 1301. 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:
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(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 Notes, all as provided in Article Twelve; or
(b) to add one or more covenants of the Company or other provisions
for the benefit of the Holders of, or to remain in effect only so long as
there shall be, Outstanding Notes of one or more specified series, or one
or more specified Tranches thereof, 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 Notes Outstanding hereunder; or
(d) to change or eliminate any provision of this Indenture or to add
any new provision to this Indenture; provided, however, that if such
change, elimination or addition shall adversely affect the interests of
the Holders of Notes of any series or Tranche 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
or Tranche only when no Note of such series or Tranche remains
Outstanding; or
(e) to provide collateral security for the Notes; or
(f) to establish the form or terms of Notes of any series or Tranche
as contemplated by Sections 201 and 301; or
(g) to provide for the authentication and delivery of bearer Notes
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 with respect to the Notes 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 1011(b); or
(i) to provide for the procedures required to permit the Company to
utilize, at its option, a non-certificated system of registration for any
series or Tranche of the Notes; or to provide for the authentication and
delivery of bearer Notes 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
(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 Notes, or
any Tranche thereof, shall be payable, (2) all or any series of Notes, or
any Tranche thereof, may be surrendered for registration of transfer, (3)
all or any series of Notes, or any Tranche thereof, may be
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surrendered for exchange and (4) notices and demands to or upon the
Company in respect of all or any series of Notes, or any Tranche thereof,
and this Indenture may be served; or
(k) to cure any ambiguity or to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein; provided that no such changes or additions shall adversely affect
the interests of the Holders of Notes of any series or Tranche in any
material respect.
As to whether the interests of the Holders of Notes shall be
adversely affected pursuant to clause (k) above, the Trustee shall be entitled
to receive, may presume the correctness of, and shall be fully protected in
relying upon an Officer's Certificate and/or an Opinion of Counsel to such
effect.
Without limiting the generality of the foregoing, if the Trust
Indenture Act as in effect at the date of the execution and delivery of this
Indenture or at any time thereafter shall be amended and
(x) if any such amendment shall require one or more changes to
any provisions hereof or the inclusion herein of any additional
provisions, or shall by operation of law be deemed to effect such
changes or incorporate such provisions by reference or otherwise,
this Indenture shall be deemed to have been amended so as to conform
to such amendment to the Trust Indenture Act, and the Company and
the Trustee may, without the consent of any Holders, enter into an
indenture supplemental hereto to effect or evidence such changes or
additional provisions; or
(y) if any such amendment shall permit one or more changes to,
or the elimination of, any provisions hereof which, at the date of
the execution and delivery hereof or at any time thereafter, are
required by the Trust Indenture Act to be contained herein, this
Indenture shall be deemed to have been amended to effect such
changes or elimination, and the Company and the Trustee may, without
the consent of any Holders, enter into an indenture or indentures
supplemental hereto to evidence such amendment hereof.
Section 1302. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Notes 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 Notes of more than one series Outstanding hereunder and if a
proposed supplemental indenture shall directly affect the rights of the Holders
of Notes 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 Notes of all series so directly affected, considered as one class,
shall be required; and provided, further, that if the Notes of any series shall
have been issued in more than one
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Tranche and if the proposed supplemental indenture shall directly affect the
rights of the Holders of Notes 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 Notes of all Tranches 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, any Note, 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
reduce the amount of the principal of a Discount Note that would be due
and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 902, or change the coin or currency (or other
property) in which any Note 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 Note (or, in the case
of redemption, on or after the Redemption Date), without, in any such
case, the consent of the Holder of such Note, or
(b) prior to the Release Date, impair the interest hereunder of the
Trustee in any Senior Note First Mortgage Bonds, reduce the principal
amount of any series of Senior Note First Mortgage Bonds to an amount less
than the principal amount of the related series of Notes or alter the
payment provisions of such Senior Note First Mortgage Bonds in a manner
adverse to the Holders of the Senior Notes, without, in any such case, the
consent of the Holder of each Outstanding Note; or
(c) reduce the percentage in principal amount of the Outstanding
Notes of any series or any Tranche thereof, the consent of the Holders of
which is required for any such supplemental indenture, or the consent of
the Holders of which is required for any waiver of compliance with any
provision of this Indenture or of any default hereunder and its
consequences, or reduce the requirements of Section 1404 for quorum or
voting, without, in any such case, the consent of the Holders of each
Outstanding Note of such series or Tranche, or
(d) modify any of the provisions of this Section, Section 707 or
Section 913 with respect to the Notes of any series, or any Tranche
thereof (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 Note 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 1011(b), 1014 and 1301(h).
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 Notes, or of one or more Tranches
thereof, or which modifies the rights of the Holders of Notes of such series or
Tranches with respect to such covenant or other provision, shall be
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deemed not to affect the rights under this Indenture of the Holders of Notes 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. 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 1303. 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 1001) 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 1304. 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 Notes 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 1305. 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 1306. Reference in Notes to Supplemental Indentures.
Notes 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 Notes 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 Notes of such series or Tranche.
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Section 1307. Modification Without Supplemental Indenture.
If the terms of any particular series of Notes shall have been
established in a Board Resolution or an Officer's Certificate pursuant to a
Board Resolution 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 Section 1304 and 1306.
ARTICLE XIV
Meetings of Holders; Action Without Meeting
Section 1401. Purposes for Which Meetings May Be Called.
A meeting of Holders of Notes 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 Notes of such series or
Tranches.
Section 1402. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of Notes
of one or more, or all, series, or any Tranche or Tranches thereof, for
any purpose specified in Section 1401, 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 Notes 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 1401, 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 Notes of such series and Tranches in the amount
above specified, as the case may be, may determine the time and the place
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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 Notes of one or more, or all, series,
or any Tranche or Tranches thereof, shall be valid without notice if the
Holders of all Outstanding Notes of such series or Tranches are present in
person or by proxy and if representatives of the Company and the Trustee
are present, or if notice is waived in writing before or after the meeting
by the Holders of all Outstanding Notes 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 1403. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Notes 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 Notes 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 Notes of such series or Tranches by such Holder or
Holders. The only Persons who shall be entitled to attend any meeting of Holders
of Notes 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 1404. Quorum; Action.
The Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Notes 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 Notes 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 Notes of such series and Tranches, considered as one class, the
Persons entitled to vote such specified percentage in principal amount of the
Outstanding Notes 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 Notes of such series and Tranches, be dissolved. In any other case
the meeting may be adjourned for such period as may be determined by the
chairman of the meeting prior to the adjournment of such meeting. In the absence
of a quorum at any such adjourned meeting, such adjourned meeting may be further
adjourned for such period as may be determined by the chairman of the meeting
prior to the adjournment of such adjourned meeting. Except as provided by
Section 1405(e), notice of the reconvening of any meeting adjourned for more
than 30 days shall be given as provided in Section 1402(a) not less than ten
days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding Notes
of such series and Tranches that shall constitute a quorum.
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Except as limited by Section 1302, any resolution presented to a
meeting or adjourned meeting duly reconvened at which a quorum is present as
aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in aggregate principal amount of the Outstanding Notes 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 Notes 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 Notes of such series and Tranches, considered as one class.
Any resolution passed or decision taken at any meeting of Holders of
Notes duly held in accordance with this Section shall be binding on all the
Holders of Notes 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 1405. Attendance at Meetings; Determination of Voting Rights; Conduct
and Adjournment of Meetings.
(a) Attendance at meetings of Holders of Notes 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 Notes with respect
to which it was given unless and until specifically revoked by the Holder
or future Holder of such Notes 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 Notes in regard to proof of the holding of such
Notes 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 Notes 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 1402(b), in
which case the Company or the Holders of Notes 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 Notes of all
series and Tranches represented at the meeting, considered as one class.
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(d) At any meeting each Holder or proxy shall be entitled to one
vote for each $1 principal amount of Notes held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Note 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 Note or proxy.
(e) Any meeting duly called pursuant to Section 1402 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 Notes
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 1406. 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 Notes, 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 1402 and, if
applicable, Section 1404. 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 1407. 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 XV
Immunity of Incorporators, Stockholders, Officers and Directors
Section 1501. 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 Notes, 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
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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 Notes 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 Notes 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 Notes.
--------------------
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.
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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.
SOUTHERN INDIANA GAS AND
ELECTRIC COMPANY
By:_____________________________________
Name:
Title:
[SEAL]
ATTEST:
___________________________________
Name:
Title:
(Trustee's Signature Page Follows)
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Trustee's Signature Page
Indenture (For Senior Notes), dated as of July __, 1999
BANKERS TRUST COMPANY, as Trustee
By:_____________________________________
Name:
Title:
[SEAL]
ATTEST:
___________________________________
Name:
Title:
77
--------------------------------------------------
SOUTHERN INDIANA GAS AND ELECTRIC COMPANY
TO
BANKERS TRUST COMPANY,
Trustee
------------
First Supplemental Indenture
Dated as of July __, 1999
to
Indenture
(For Senior Notes)
Dated as of July __, 1999
--------------------------------------------------
Senior Notes, ____% Series Due __________, 20__
<PAGE>
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of July __, 1999, between
SOUTHERN INDIANA GAS AND ELECTRIC COMPANY, a corporation duly organized and
existing under the laws of the State of Indiana (herein called the "Company"),
having its principal office at 20 N.W. Fourth Street, Evansville, Indiana
47741-0001, and BANKERS TRUST COMPANY, a banking corporation of the State of New
York, having its principal office at 4 Albany Street, 4th Floor, New York, New
York 10006, as Trustee (herein called the "Trustee") under the Indenture (For
Senior Notes) dated as of July __, 1999 between the Company and the Trustee (the
"Indenture"). Capitalized terms used but not defined herein shall have the
meanings given them in the Indenture.
RECITALS OF THE COMPANY
A. The Company has executed and delivered the Indenture to the Trustee to
provide for the issuance from time to time of its Senior Notes (the "Notes"),
said Notes to be issued in one or more series as in the Indenture provided.
B. Pursuant to the terms of the Indenture, the Company desires to
establish a new series of its Notes to be known as its Senior Notes, ___% Series
Due ________, 20__ (herein called the "Senior Notes Due 20__"), the form and
substance of such Senior Notes Due 20__ and the terms, provisions, and
conditions thereof to be set forth as provided in the Indenture and this First
Supplemental Indenture.
C. All things necessary to make this First Supplemental Indenture a valid
agreement of the Company, and to make the Senior Notes Due 20__, when executed
by the Company and authenticated and delivered by the Trustee, the valid
obligations of the Company, have been done.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Senior
Notes Due 20__ by the Holders thereof, and for the purpose of setting forth, as
provided in the Indenture, the form and substance of the Senior Notes Due 20__
and the terms, provisions, and conditions thereof, it is mutually agreed, for
the equal and proportionate benefit of all Holders of the Senior Notes Due 20__,
as follows:
ARTICLE I
GENERAL TERMS AND CONDITIONS OF THE SENIOR NOTES DUE 20__
Section 101 There is hereby established a series of Notes designated the
"Senior Notes, ___% Series Due ________, 20__," limited in the aggregate
principal amount of EIGHTY MILLION AND NO/100 DOLLARS ($80,000,000). Such series
of Notes shall be initially authenticated and delivered from time to time upon
delivery to the Trustee of the documents required by Section 303 of the
Indenture including, among other things, a Company Order for the authentication
and delivery of the Senior Notes Due 20__.
<PAGE>
Section 102 The Senior Notes Due 20__ shall be issued in certificated
form, except that the Senior Notes Due 20__ shall be issued initially as a
Global Note to and registered in the name of a nominee of The Depository Trust
Company, as Depositary therefor. Any Senior Notes Due 20__ to be issued or
transferred to, or to be held by such nominee (or any successor thereof) for
such purpose shall bear the depositary legend in substantially the form set
forth at the top of the form of Senior Notes Due 20__ in Article II hereof,
unless otherwise agreed by the Company, such agreement to be confirmed in
writing to the Trustee. Such Global Note may be exchanged in whole or in part
for Senior Notes Due 20__ registered, and any transfer of such Global Note in
whole or in part may be registered, in the name or names of Persons other than
such Depositary or a nominee thereof as to which the Company shall agree, such
agreement to be confirmed in writing to the Trustee. Principal of, and premium,
if any, and interest on the Senior Notes Due 20__ will be payable, the transfer
of Senior Notes Due 20__ will be registrable and Senior Notes Due 20__ will be
exchangeable for Senior Notes Due 20__ bearing identical terms and provisions,
at the office or agency of the Company in the Borough of Manhattan, The City and
State of New York; provided, however, that payment of interest may be made at
the option of the Company by check mailed to the registered Holders thereof at
such address as shall appear in the Note Register. The Senior Notes Due 20__
shall have the terms set forth in the form of the Senior Notes Due 20__ set
forth in Article II hereof.
Section 103 The Company may, at its option, redeem, at any time, all, or,
from time to time, any part of the Senior Notes Due 20__, upon notice as
provided in the Indenture (not less than 30 nor more than 60 days prior to a
date fixed for redemption (the "Redemption Date")) as follows: [ ]
2
<PAGE>
Section 104 The Company has issued pursuant to the Thirty-Eighth
Supplemental Indenture to the First Mortgage, and hereby delivers to the Trustee
for the benefit of the Holders of all Notes from time to time Outstanding under
the Indenture, a series of Senior Note First Mortgage Bonds designated the
"First Mortgage Bonds, ___% Senior Note Series Due 20__." The Senior Note First
Mortgage Bonds have the same rate or rates of interest (or interest calculated
in the same manner) (including interest payable following a default on the
Senior Notes Due 20__), interest payment dates, maturity and redemption
provisions, and have been issued in the same aggregate principal amount, as the
Senior Notes Due 20__.
Section 105 When the obligation of the Company to make payments with
respect to the principal of, and premium, if any, and interest on all or any
part of the Senior Note First Mortgage Bonds shall be satisfied or deemed
satisfied pursuant to Section 403, Section 801 or
3
<PAGE>
Section 802 of the Indenture or pursuant to Section 103 of this First
Supplemental Indenture, the Trustee shall, upon written request of the Company
and the receipt of the certificate of the Expert described in Section 404(b) of
the Indenture (if such certificate is then required by Section 404(b) of the
Indenture), deliver to the Company without charge therefor all of the Senior
Note First Mortgage Bonds so satisfied or deemed satisfied, together with such
appropriate instruments of transfer or release as may be reasonably requested by
the Company. All Senior Note First Mortgage Bonds delivered to the Company in
accordance with this Section 105 shall be delivered by the Company to the
Mortgage Trustees for cancellation.
Section 106 The Senior Notes Due 20__ shall be defeasible pursuant to
Section 801 of the Indenture.
ARTICLE II
FORM OF
SENIOR NOTES, ___% SERIES DUE ________, 20__
Section 201 The Senior Notes Due 20__ and the Trustee's certificate of
authentication to be endorsed are to be substantially in the following forms:
Form of Face of Note.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO SOUTHERN INDIANA
GAS & ELECTRIC COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOUTHERN INDIANA GAS & ELECTRIC COMPANY
Senior Notes, ___% Series Due ________, 20__
No. ____ $___________
CUSIP No. ________
Southern Indiana Gas & Electric, a corporation duly organized and existing
under the laws of the State of Indiana (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to ___________, or registered assigns,
the principal sum of _______________ Dollars ($_____) on
4
<PAGE>
________, 20__, and to pay interest thereon from ________, 1999 or from the most
recent Interest Payment Date with respect to which interest has been paid or
duly provided for, semi-annually on ________ 1 and ________ 1 in each year (each
an "Interest Payment Date"), commencing ________, ____, at the rate of ___% per
annum, until the principal hereof is paid or made available for payment,
provided that any principal and premium, and any such installment of interest,
which is overdue shall bear interest at the rate of ____% per annum (to the
extent that the payment of such interest shall be legally enforceable); from the
dates such amounts are due until they are paid or made available for payment,
and such interest shall be payable on demand. 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 Note (or
one or more Predecessor Notes) is registered at the close of business on the
Regular Record Date for such interest, which shall be the ________ 15 or
________ 15 (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Note (or one
or more Predecessor Notes) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Notes of this series not
less than 10 days prior to such Special Record Date, or be paid at any time in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Notes of this series may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in said
Indenture.
Payment of the principal of (and premium if any) and such interest on this
Note 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 payment of
such interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Note Register.
The amount of interest payable for any period will be computed on the
basis of a 360-day year of twelve 30-day months. Interest will accrue from each
prior Interest Payment Date to, but not including, the relevant payment date. In
the event that any date on which interest is payable on the Notes of this series
is not a Business Day at any Place of Payment, then payment of interest or
principal and premium, if any, need not be made at such Place of Payment on such
date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment Date
or Redemption Date, or at the Stated Maturity, and, if such payment is made or
duly provided for on such Business Day, 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. A "Business
Day" means when used with respect to a Place of Payment or any other particular
location specified in the 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.
Reference is hereby made to the further provisions of this Note set forth
below, which further provisions shall for all purposes have the same effect as
if set forth at this place.
5
<PAGE>
Unless the certificate of authentication hereon has been executed by the
Trustee referred to below by manual signature, this Note 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.
SOUTHERN INDIANA GAS & ELECTRIC COMPANY
By
-------------------------------------
Attest:
- ------------------------------
Form of Reverse of Note.
This Note is one of a duly authorized issue of securities of the Company
(herein called the "Notes"), issued and to be issued in one or more series under
an Indenture (For Senior Notes), dated as of July __, 1999 (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), between the Company and Bankers Trust Company, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Notes and of the terms upon
which the Notes are, and are to be, authenticated and delivered. This Note is
one of the series designated on the face hereof, limited in aggregate principal
amount to $80,000,000.
Prior to the Release Date (as hereinafter defined), this Note will be
secured by first mortgage bonds (the "Senior Note First Mortgage Bonds")
delivered by the Company to the Trustee for the benefit of all Holders of Notes
from time to time Outstanding, issued under the Indenture, dated as of April 1,
1932, between the Company and Bankers Trust Company, as trustee, as supplemented
and amended from time to time (the "First Mortgage"). Reference is made to the
First Mortgage for a description of property mortgaged and pledged, the nature
and extent of the security, the rights of the holders of the first mortgage
bonds under the First Mortgage and of the Mortgage Trustee in respect thereof,
the duties and immunities of the Mortgage Trustee and the terms and conditions
upon which the Senior Note First Mortgage Bonds are secured and the
circumstances under which additional first mortgage bonds may be issued.
6
<PAGE>
FROM AND AFTER SUCH TIME AS ALL FIRST MORTGAGE BONDS, OTHER THAN FIRST
MORTGAGE BONDS WHICH DO NOT IN AGGREGATE PRINCIPAL AMOUNT EXCEED EITHER FIVE
PERCENT (5%) OF NET TANGIBLE ASSETS OR FIVE PERCENT (5%) OF CAPITALIZATION, HAVE
BEEN RETIRED THROUGH REPAYMENT, REDEMPTION OR OTHERWISE (INCLUDING THOSE FIRST
MORTGAGE BONDS THE PAYMENT FOR WHICH HAS BEEN PROVIDED FOR IN ACCORDANCE WITH
THE FIRST MORTGAGE) AT, BEFORE OR AFTER THE MATURITY THEREOF, PROVIDED THAT NO
DEFAULT OR EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING (THE "RELEASE DATE"),
THE SENIOR NOTE FIRST MORTGAGE BONDS SHALL CEASE TO SECURE THE NOTES IN ANY
MANNER.
The Notes of this series are subject to redemption by the Company, at its
option, in whole, at any time, or in part, from time to time, upon notice as
provided in the Indenture (not less than 30 nor more than 60 days prior to a
date fixed for redemption (the "Redemption Date")) as follows: [ ]
If notice has been given as provided in the Indenture and funds for the
redemption of any Notes (or any portion thereof) called for redemption shall
have been made available on the redemption date referred to in such notice, such
Notes (or any portion thereof) will cease to bear interest on the date fixed for
such redemption specified in such notice and the only right of the Holders of
such Notes will be to receive payment of the Redemption Price.
Notice of any optional redemption of Notes of this series (or any portion
thereof) will be given to Holders at their addresses, as shown in the Note
Register for such Notes, not more than 60 nor less than 30 days prior to the
date fixed for redemption. The notice of redemption will specify, among other
items, the method of calculation of the Redemption Price and the principal
amount of the Notes held by such Holder to be redeemed. If less than all of the
Notes are to be redeemed at the option of the Company, the Trustee shall select,
in such manner as it shall deem fair and appropriate, the portion of such Note
to be redeemed in whole or in part.
7
<PAGE>
The Notes of this series will not be subject to any sinking fund.
8
<PAGE>
In the event of redemption of this Note in part only, a new Note or Notes
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 Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Note upon compliance with certain conditions set forth in
the Indenture.
If an Event of Default with respect to Notes of this series shall occur
and be continuing, the principal of the Notes may be declared due and payable in
the manner and with the effect provided in the Indenture and, upon such
declaration, the Trustee shall demand the acceleration of the payment of
principal of the Senior Note First Mortgage Bonds as provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes to be affected under the
Indenture at any time by the Company and the Trustee with the consent of the
Holders of specified percentages of the Notes Outstanding. The Indenture also
contains provisions permitting the Holders of specified percentages in principal
amount of the Notes at the time Outstanding, on behalf of the Holders of all
Notes, 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 Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note 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 Note.
As provided in and subject to the provisions of the Indenture, the Holder
of this Note shall not have the right to institute any proceeding with respect
to the Indenture or for the appointment of a receiver or trustee or for any
other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Notes of this series, the Holders of not less than a majority in aggregate
principal amount of the Notes of all series at the time Outstanding in respect
of which an Event of Default shall have occurred and be continuing shall have
made written request to the Trustee to institute proceedings in respect of such
Event of Default as Trustee and offered the Trustee reasonable indemnity, and
the Trustee shall not have received from the Holders of a majority in principal
amount of Notes of all series at the time Outstanding in respect of which an
Event of Default shall have occurred and be continuing a direction inconsistent
with such request, and shall have failed to institute any such proceeding for 60
days after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Note for the
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Note at the times, place and rate, and in the coin or currency, herein
prescribed.
9
<PAGE>
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable in the Note Register, upon
surrender of this Note for registration of transfer at the office or agency of
the Company in any place where the principal of and any premium and interest on
this Note are payable, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Note Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Notes of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Notes of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Notes of this series are exchangeable for a like aggregate principal amount of
Notes of this series and of like tenor of a different authorized denomination,
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.
Prior to due presentment of this Note 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 Note is registered as the owner hereof for all
purposes, whether or not this Note 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 Note that are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
Form of Trustee's Certificate of Authentication.
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated therein referred to in
the within-mentioned Indenture.
Dated:
------------------
BANKERS TRUST COMPANY,
as Trustee
By
-------------------------------------
Authorized Signatory
10
<PAGE>
ARTICLE III
ORIGINAL ISSUE OF SENIOR NOTES DUE 20__
Section 301 Senior Notes Due 20__ in the aggregate principal amount of
$80,000,000, may, upon execution of this First Supplemental Indenture, be
executed by the Company by an Authorized Officer and delivered to the Trustee
for authentication, and the Trustee shall thereupon authenticate and deliver
said Notes upon receipt of and in accordance with a Company Order therefor
without any further action by the Company.
ARTICLE IV
PAYING AGENT AND REGISTRAR
Section 401 Bankers Trust Company will be the Paying Agent and Note
Registrar for the Senior Notes Due 20__.
ARTICLE V
MISCELLANEOUS PROVISIONS
Section 501 Except as otherwise expressly provided in this First
Supplemental Indenture or in the form of Senior Notes Due 20__ or otherwise
clearly required by the context hereof or thereof, all terms used herein or in
said form of Senior Notes Due 20__ that are defined in the Indenture shall have
the several meanings respectively assigned to them thereby.
Section 502 The Indenture, as supplemented by this First Supplemental
Indenture, is in all respects ratified and confirmed, and this First
Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided.
Section 503 The Trustee hereby accepts the trusts herein declared,
provided, created, supplemented, or amended and agrees to perform the same upon
the terms and conditions herein and in the Indenture set forth and upon the
following terms and conditions:
The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this First Supplemental Indenture or
for or in respect of the recitals contained herein, all of which recitals are
made by the Company solely. In general, each and every term and condition
contained in Article Seven of the Indenture shall apply to and form part of this
First Supplemental Indenture with the same force and effect as if the same were
herein set forth in full with such omissions, variations, and insertions, if
any, as may be appropriate to make the same conform to the provisions of this
First Supplemental Indenture.
----------------------------------
11
<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 First Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
SOUTHERN INDIANA GAS & ELECTRIC COMPANY
By:
------------------------------------
[SEAL] Name:
Title:
ATTEST:
- ------------------------------
Name:
Title:
(Trustee's Signature Page Follows)
12
<PAGE>
Trustee's Signature Page
First Supplemental Indenture, dated as of July __, 1999, to Indenture
(For Senior Notes), dated as of July __, 1999
BANKERS TRUST COMPANY, as Trustee
By:
------------------------------------
[SEAL] Name:
Title:
ATTEST:
- ------------------------------
Name:
Title:
13
Exhibit 5
July 1, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Southern Indiana Gas and Electric Company (the "Company")
Registration Statement on Form S-3 with respect to $80,000,000
Senior Notes secured by $80,000,000 First Mortgage Bonds
Ladies and Gentlemen:
In connection with the registration of $80,000,000 of the Company's Senior
Notes (the "Senior Notes") secured by $80,000,000 of the Company's First
Mortgage Bonds (the "First Mortgage Bonds") under the Securities Act of 1933, as
amended (the "Act"), we have examined the Registration Statement on Form S-3
(the "Registration Statement") and such corporate records, other documents and
questions of law as we considered necessary for the purpose of this opinion.
On the basis of such examination, it is our opinion, assuming (i) the
applicable provisions of the Securities Act, the Trust Indenture Act of 1939, as
amended, and the securities or "blue sky" laws of various states shall have been
complied with, (ii) the Indenture (for Senior Notes) between the Company and
Bankers Trust Company, as Trustee, and the Supplemental Indentures relating to
the Senior Notes and First Mortgage Bonds shall have been duly authorized,
executed and delivered, (iii) the Senior Notes shall have been duly authorized,
executed, authenticated and delivered against the consideration therefor to be
set forth in the supplement or supplements to the prospectus constituting a part
of the Registration Statement and (iv) the First Mortgage Bonds have been duly
authorized, executed, authenticated and delivered to the Senior Note Trustee in
connection with the issuance of the Senior Notes, that the Senior Notes and
First Mortgage Bonds will be legally issued, fully paid, non-assessable and
binding obligations of the Company, except as limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance or other similar laws affecting creditors'
rights and general equitable principles (regardless of whether enforceability is
considered in a proceeding in equity or at law).
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Yours very truly,
BAMBERGER, FOREMAN, OSWALD AND HAHN
By: /s/ Robert M. Becker
------------------------------------
Name: Robert M. Becker
Exhibit 12(b)
SOUTHERN INDIANA GAS & ELECTRIC COMPANY
Ratio of Earnings to Fixed Charges
(SEC METHOD)
FOR TWELVE MONTHS ENDED MARCH 31, 1999
Earnings as defined
Net Income 43,012,272
Add:
Income Taxes:
Current:
Federal 20,374,034
State 2,958,746
Deferred (net):
Federal 3,371,190
State 847,960
Deferred investment tax credit, net (1,442,997)
Interest on long-term debt, less AFUDC borrowed 15,196,373
Amortization of premium, discount and expense on debt 699,000
Other Interest 2,805,549
One-third of rentals charged to operating expense 548,087
-----------
Earnings as defined 88,370,214
===========
Fixed Charges as Defined
Interest on long-term debt 16,627,689
Amortization of premium, discount, and expense on debt 699,000
Other Interest 2,805,549
One-third of rentals charged to operating expense 548,087
-----------
Fixed charges as defined 20,680,325
===========
Ratio of Earnings to Fixed Charges 4.2732
===========
Exhibit (23)(a)
CONSENT OF EXPERTS
Southern Indiana Gas and Electric Company
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement on Form S-3 of our report, dated
January 29, 1999, included in Southern Indiana Gas and Electric Company's Annual
Report on Form 10-K for the year ended December 31, 1998, and to all references
to our firm included in or made part of this Registration Statement.
ARTHUR ANDERSEN LLP
Chicago, Illinois
Date: July 1, 1999
/s/ Arthur Andersen LLP
----------------------------------------
- --------------------------------------------------------------------------------
UNITED STATES
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) ___________
------------------------------
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
Bankers Trust Company
Legal Department
130 Liberty Street, 31st Floor
New York, New York 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
---------------------------------
Southern Indiana Gas and Electric Company
(Exact name of Registrant as specified in its charter)
Indiana 35-0672570
(State or other jurisdiction of (I.R.S. employer identification no.)
Incorporation or organization)
20 N. W. Fourth Street
Evansville, Indiana 47741-0001
(812) 465 5300
(Address, including zip code, and telephone
number of principal executive offices)
Senior Notes
(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
---- -------
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(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 3. -15. Not Applicable
Item 16. List of Exhibits.
Exhibit 1 - Restated Organization Certificate of Bankers Trust Company
dated August 7, 1990, Certificate of Amendment of the
Organization Certificate of Bankers Trust Company dated June
21, 1995 - Incorporated herein by reference to Exhibit 1 filed
with Form T-1 Statement, Registration No. 33-65171,
Certificate of Amendment of the Organization Certificate of
Bankers Trust Company dated March 20, 1996, incorporate by
referenced to Exhibit 1 filed with Form T-1 Statement,
Registration No. 333-25843 and Certificate of Amendment of the
Organization Certificate of Bankers Trust Company dated June
19, 1997, copy attached.
Exhibit 2 - Certificate of Authority to commence business - Incorporated
herein by reference to Exhibit 2 filed with Form T-1
Statement, Registration No. 33-21047.
Exhibit 3 - Authorization of the Trustee to exercise corporate trust
powers - Incorporated herein by reference to Exhibit 2 filed
with Form T-1 Statement, Registration No. 33-21047.
Exhibit 4 - Existing By-Laws of Bankers Trust Company, as amended on
November 18, 1997. Copy attached.
-2-
<PAGE>
Exhibit 5 - Not applicable.
Exhibit 6 - Consent of Bankers Trust Company required by Section 321(b) of
the Act. - Incorporated herein by reference to Exhibit 4 filed
with Form T-1 Statement, Registration No. 22-18864.
Exhibit 7 - The latest report of condition of Bankers Trust Company dated
as of September 30, 1998. Copy attached.
Exhibit 8 - Not Applicable.
Exhibit 9 - Not Applicable.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York, and State of New York, on this 30th day
of June, 1999
BANKERS TRUST COMPANY
By: /s/ Vincent Chorney
------------------------------------
Vincent Chorney
Assistant Vice President
-4-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York, and State of New York, on this 30th day
of June, 1999
BANKERS TRUST COMPANY
/s/ Vincent Chorney /s/
------------------------------------
By: Vincent Chorney
Assistant Vice President
-5-
<PAGE>
State of New York,
Banking Department
I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New York,
DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF AMENDMENT OF
THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under Section 8005 of the
Banking Law," dated June 19, 1997, providing for an increase in authorized
capital stock from $1,601,666,670 consisting of 100,166,667 shares with a par
value of $10 each designated as Common Stock and 600 shares with a par value of
$1,000,000 each designated as Series Preferred Stock to $2,001,666,670
consisting of 100,166,667 shares with a par value of $10 each designated as
Common Stock and 1,000 shares with a par value of $1,000,000 each designated as
Series Preferred Stock.
Witness, my hand and official seal of the Banking Department at the City of New
York,
this 27th day of June in the Year of our Lord one
thousand nine hundred and ninety-seven.
Manuel Kursky
--------------------------------
Deputy Superintendent of Banks
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
-----------------------------
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and an Assistant Secretary of Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of March, 1903.
3. The organization certificate as heretofore amended is hereby amended to
increase the aggregate number of shares which the corporation shall have
authority to issue and to increase the amount of its authorized capital stock in
conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of shares into which the capital stock
shall be divided, the par value of the shares and the capital stock outstanding,
which reads as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is One Billion, Six Hundred and One Million, Six Hundred Sixty-Six
Thousand, Six Hundred Seventy Dollars ($1,601,666,670), divided into One
Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven
(100,166,667) shares with a par value of $10 each designated as Common
Stock and 600 shares with a par value of One Million Dollars ($1,000,000)
each designated as Series Preferred Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is Two Billion One Million, Six Hundred Sixty-Six Thousand, Six
Hundred Seventy Dollars ($2,001,666,670), divided into One Hundred
Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven
(100,166,667) shares with a par value of $10 each designated as Common
Stock and 1000 shares with a par value of One Million Dollars ($1,000,000)
each designated as Series Preferred Stock."
<PAGE>
5. The foregoing amendment of the organization certificate was authorized
by unanimous written consent signed by the holder of all outstanding shares
entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 19th
day of June, 1997.
James T. Byrne, Jr.
----------------------------------------
James T. Byrne, Jr.
Managing Director
Lea Lahtinen
----------------------------------------
Lea Lahtinen
Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is an Assistant
Secretary of Bankers Trust Company, the corporation described in the foregoing
certificate; that she has read the foregoing certificate and knows the contents
thereof, and that the statements herein contained are true.
Lea Lahtinen
----------------------------------------
Lea Lahtinen
Sworn to before me this 19th day
of June, 1997.
Sandra L. West
- --------------------------------
Notary Public
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 1998
<PAGE>
BY-LAWS
NOVEMBER 18, 1997
Bankers Trust Company
New York
<PAGE>
BY-LAWS
of
Bankers Trust Company
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. The annual meeting of the stockholders of this Company shall be held
at the office of the Company in the Borough of Manhattan, City of New York, on
the third Tuesday in January of each year, for the election of directors and
such other business as may properly come before said meeting.
SECTION 2. Special meetings of stockholders other than those regulated by
statute may be called at any time by a majority of the directors. It shall be
the duty of the Chairman of the Board, the Chief Executive Officer or the
President to call such meetings whenever requested in writing to do so by
stockholders owning a majority of the capital stock.
SECTION 3. At all meetings of stockholders, there shall be present, either in
person or by proxy, stockholders owning a majority of the capital stock of the
Company, in order to constitute a quorum, except at special elections of
directors, as provided by law, but less than a quorum shall have power to
adjourn any meeting.
SECTION 4. The Chairman of the Board or, in his absence, the Chief Executive
Officer or, in his absence, the President or, in their absence, the senior
officer present, shall preside at meetings of the stockholders and shall direct
the proceedings and the order of business. The Secretary shall act as secretary
of such meetings and record the proceedings.
ARTICLE II
DIRECTORS
SECTION 1. The affairs of the Company shall be managed and its corporate powers
exercised by a Board of Directors consisting of such number of directors, but
not less than ten nor more than twenty-five, as may from time to time be fixed
by resolution adopted by a majority of the directors then in office, or by the
stockholders. In the event of any increase in the number of directors,
additional directors may be elected within the limitations so fixed, either by
the stockholders or within the limitations imposed by law, by a majority of
directors then in office. One-third of the number of directors, as fixed from
time to time, shall constitute a quorum. Any one or more members of the Board of
Directors or any Committee thereof may participate in a meeting of the Board of
Directors or Committee thereof by means of a conference telephone or similar
communications equipment which allows all persons participating in the meeting
to hear each other at the same time. Participation by such means shall
constitute presence in person at such a meeting.
<PAGE>
All directors hereafter elected shall hold office until the next annual meeting
of the stockholders and until their successors are elected and have qualified.
No person who shall have attained age 72 shall be eligible to be elected or
re-elected a director. Such director may, however, remain a director of the
Company until the next annual meeting of the stockholders of Bankers Trust New
York Corporation (the Company's parent) so that such director's retirement will
coincide with the retirement date from Bankers Trust New York Corporation.
No Officer-Director who shall have attained age 65, or earlier relinquishes his
responsibilities and title, shall be eligible to serve as a director.
SECTION 2. Vacancies not exceeding one-third of the whole number of the Board of
Directors may be filled by the affirmative vote of a majority of the directors
then in office, and the directors so elected shall hold office for the balance
of the unexpired term.
SECTION 3. The Chairman of the Board shall preside at meetings of the Board of
Directors. In his absence, the Chief Executive Officer or, in his absence, such
other director as the Board of Directors from time to time may designate shall
preside at such meetings.
SECTION 4. The Board of Directors may adopt such Rules and Regulations for the
conduct of its meetings and the management of the affairs of the Company as it
may deem proper, not inconsistent with the laws of the State of New York, or
these By-Laws, and all officers and employees shall strictly adhere to, and be
bound by, such Rules and Regulations.
SECTION 5. Regular meetings of the Board of Directors shall be held from time to
time on the third Tuesday of the month. If the day appointed for holding such
regular meetings shall be a legal holiday, the regular meeting to be held on
such day shall be held on the next business day thereafter. Special meetings of
the Board of Directors may be called upon at least two day's notice whenever it
may be deemed proper by the Chairman of the Board or, the Chief Executive
Officer or, in their absence, by such other director as the Board of Directors
may have designated pursuant to Section 3 of this Article, and shall be called
upon like notice whenever any three of the directors so request in writing.
SECTION 6. The compensation of directors as such or as members of committees
shall be fixed from time to time by resolution of the Board of Directors.
<PAGE>
ARTICLE III
COMMITTEES
SECTION 1. There shall be an Executive Committee of the Board consisting of not
less than five directors who shall be appointed annually by the Board of
Directors. The Chairman of the Board shall preside at meetings of the Executive
Committee. In his absence, the Chief Executive Officer or, in his absence, such
other member of the Committee as the Committee from time to time may designate
shall preside at such meetings.
The Executive Committee shall possess and exercise to the extent permitted by
law all of the powers of the Board of Directors, except when the latter is in
session, and shall keep minutes of its proceedings, which shall be presented to
the Board of Directors at its next subsequent meeting. All acts done and powers
and authority conferred by the Executive Committee from time to time shall be
and be deemed to be, and may be certified as being, the act and under the
authority of the Board of Directors.
A majority of the Committee shall constitute a quorum, but the Committee may act
only by the concurrent vote of not less than one-third of its members, at least
one of whom must be a director other than an officer. Any one or more directors,
even though not members of the Executive Committee, may attend any meeting of
the Committee, and the member or members of the Committee present, even though
less than a quorum, may designate any one or more of such directors as a
substitute or substitutes for any absent member or members of the Committee, and
each such substitute or substitutes shall be counted for quorum, voting, and all
other purposes as a member or members of the Committee.
SECTION 2. There shall be an Audit Committee appointed annually by resolution
adopted by a majority of the entire Board of Directors which shall consist of
such number of directors, who are not also officers of the Company, as may from
time to time be fixed by resolution adopted by the Board of Directors. The
Chairman shall be designated by the Board of Directors, who shall also from time
to time fix a quorum for meetings of the Committee. Such Committee shall conduct
the annual directors' examinations of the Company as required by the New York
State Banking Law; shall review the reports of all examinations made of the
Company by public authorities and report thereon to the Board of Directors; and
shall report to the Board of Directors such other matters as it deems advisable
with respect to the Company, its various departments and the conduct of its
operations.
In the performance of its duties, the Audit Committee may employ or retain, from
time to time, expert assistants, independent of the officers or personnel of the
Company, to make studies of the Company's assets and liabilities as the
Committee may request and to make an examination of the accounting and auditing
methods of the Company and its system of internal protective controls to the
extent considered necessary or advisable in order to determine that the
operations of the Company, including its fiduciary departments, are being
audited by the General Auditor in such a manner as to provide prudent and
adequate protection. The Committee also may direct the General Auditor to make
such investigation as it deems necessary or advisable with respect to the
Company, its various departments and the conduct of its operations. The
Committee shall hold regular quarterly
<PAGE>
meetings and during the intervals thereof shall meet at other times on call of
the Chairman.
SECTION 3. The Board of Directors shall have the power to appoint any other
Committees as may seem necessary, and from time to time to suspend or continue
the powers and duties of such Committees. Each Committee appointed pursuant to
this Article shall serve at the pleasure of the Board of Directors.
ARTICLE IV
OFFICERS
SECTION 1. The Board of Directors shall elect from among their number a Chairman
of the Board and a Chief Executive Officer; and shall also elect a President,
and may also elect a Senior Vice Chairman, one or more Vice Chairmen, one or
more Executive Vice Presidents, one or more Senior Managing Directors, one or
more Managing Directors, one or more Senior Vice Presidents, one or more
Principals, one or more Vice Presidents, one or more General Managers, a
Secretary, a Controller, a Treasurer, a General Counsel, one or more Associate
General Counsels, a General Auditor, a General Credit Auditor, and one or more
Deputy Auditors, who need not be directors. The officers of the corporation may
also include such other officers or assistant officers as shall from time to
time be elected or appointed by the Board. The Chairman of the Board or the
Chief Executive Officer or, in their absence, the President, the Senior Vice
Chairman or any Vice Chairman, may from time to time appoint assistant officers.
All officers elected or appointed by the Board of Directors shall hold their
respective offices during the pleasure of the Board of Directors, and all
assistant officers shall hold office at the pleasure of the Board or the
Chairman of the Board or the Chief Executive Officer or, in their absence, the
President, the Senior Vice Chairman or any Vice Chairman. The Board of Directors
may require any and all officers and employees to give security for the faithful
performance of their duties.
SECTION 2. The Board of Directors shall designate the Chief Executive Officer of
the Company who may also hold the additional title of Chairman of the Board,
President, Senior Vice Chairman or Vice Chairman and such person shall have,
subject to the supervision and direction of the Board of Directors or the
Executive Committee, all of the powers vested in such Chief Executive Officer by
law or by these By-Laws, or which usually attach or pertain to such office. The
other officers shall have, subject to the supervision and direction of the Board
of Directors or the Executive Committee or the Chairman of the Board or, the
Chief Executive Officer, the powers vested by law or by these By-Laws in them as
holders of their respective offices and, in addition, shall perform such other
duties as shall be assigned to them by the Board of Directors or the Executive
Committee or the Chairman of the Board or the Chief Executive Officer.
The General Auditor shall be responsible, through the Audit Committee, to the
Board of Directors for the determination of the program of the internal audit
function and the evaluation of the adequacy of the system of internal controls.
Subject to the Board of Directors, the General Auditor shall have and may
exercise all the powers and shall perform all the duties usual to such office
and shall have such other powers as may be prescribed or assigned to him from
time to time by the Board of Directors or vested in him by law or by these
By-Laws. He shall perform such other duties and shall make such investigations,
examinations and reports as may be prescribed or required by the Audit
<PAGE>
Committee. The General Auditor shall have unrestricted access to all records and
premises of the Company and shall delegate such authority to his subordinates.
He shall have the duty to report to the Audit Committee on all matters
concerning the internal audit program and the adequacy of the system of internal
controls of the Company which he deems advisable or which the Audit Committee
may request. Additionally, the General Auditor shall have the duty of reporting
independently of all officers of the Company to the Audit Committee at least
quarterly on any matters concerning the internal audit program and the adequacy
of the system of internal controls of the Company that should be brought to the
attention of the directors except those matters responsibility for which has
been vested in the General Credit Auditor. Should the General Auditor deem any
matter to be of special immediate importance, he shall report thereon forthwith
to the Audit Committee. The General Auditor shall report to the Chief Financial
Officer only for administrative purposes.
The General Credit Auditor shall be responsible to the Chief Executive Officer
and, through the Audit Committee, to the Board of Directors for the systems of
internal credit audit, shall perform such other duties as the Chief Executive
Officer may prescribe, and shall make such examinations and reports as may be
required by the Audit Committee. The General Credit Auditor shall have
unrestricted access to all records and may delegate such authority to
subordinates.
SECTION 3. The compensation of all officers shall be fixed under such plan or
plans of position evaluation and salary administration as shall be approved from
time to time by resolution of the Board of Directors.
SECTION 4. The Board of Directors, the Executive Committee, the Chairman of the
Board, the Chief Executive Officer or any person authorized for this purpose by
the Chief Executive Officer, shall appoint or engage all other employees and
agents and fix their compensation. The employment of all such employees and
agents shall continue during the pleasure of the Board of Directors or the
Executive Committee or the Chairman of the Board or the Chief Executive Officer
or any such authorized person; and the Board of Directors, the Executive
Committee, the Chairman of the Board, the Chief Executive Officer or any such
authorized person may discharge any such employees and agents at will.
<PAGE>
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
SECTION 1. The Company shall, to the fullest extent permitted by Section 7018 of
the New York Banking Law, indemnify any person who is or was made, or threatened
to be made, a party to an action or proceeding, whether civil or criminal,
whether involving any actual or alleged breach of duty, neglect or error, any
accountability, or any actual or alleged misstatement, misleading statement or
other act or omission and whether brought or threatened in any court or
administrative or legislative body or agency, including an action by or in the
right of the Company to procure a judgment in its favor and an action by or in
the right of any other corporation of any type or kind, domestic or foreign, or
any partnership, joint venture, trust, employee benefit plan or other
enterprise, which any director or officer of the Company is servicing or served
in any capacity at the request of the Company by reason of the fact that he, his
testator or intestate, is or was a director or officer of the Company, or is
serving or served such other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise in any capacity, against judgments,
fines, amounts paid in settlement, and costs, charges and expenses, including
attorneys' fees, or any appeal therein; provided, however, that no
indemnification shall be provided to any such person if a judgment or other
final adjudication adverse to the director or officer establishes that (i) his
acts were committed in bad faith or were the result of active and deliberate
dishonesty and, in either case, were material to the cause of action so
adjudicated, or (ii) he personally gained in fact a financial profit or other
advantage to which he was not legally entitled.
SECTION 2. The Company may indemnify any other person to whom the Company is
permitted to provide indemnification or the advancement of expenses by
applicable law, whether pursuant to rights granted pursuant to, or provided by,
the New York Banking Law or other rights created by (i) a resolution of
stockholders, (ii) a resolution of directors, or (iii) an agreement providing
for such indemnification, it being expressly intended that these By-Laws
authorize the creation of other rights in any such manner.
SECTION 3. The Company shall, from time to time, reimburse or advance to any
person referred to in Section 1 the funds necessary for payment of expenses,
including attorneys' fees, incurred in connection with any action or proceeding
referred to in Section 1, upon receipt of a written undertaking by or on behalf
of such person to repay such amount(s) if a judgment or other final adjudication
adverse to the director or officer establishes that (i) his acts were committed
in bad faith or were the result of active and deliberate dishonesty and, in
either case, were material to the cause of action so adjudicated, or (ii) he
personally gained in fact a financial profit or other advantage to which he was
not legally entitled.
SECTION 4. Any director or officer of the Company serving (i) another
corporation, of which a majority of the shares entitled to vote in the election
of its directors is held by the Company, or (ii) any employee benefit plan of
the Company or any corporation referred to in clause (i) in any capacity shall
be deemed to be doing so at the request of the Company. In all other cases, the
provisions of this Article V will apply (i) only if the person serving another
corporation or any partnership, joint venture, trust, employee benefit plan or
other enterprise so served at the specific request of the Company, evidenced by
a written communication signed by the Chairman of the Board, the Chief Executive
Officer or
<PAGE>
the President, and (ii) only if and to the extent that, after making such
efforts as the Chairman of the Board, the Chief Executive Officer or the
President shall deem adequate in the circumstances, such person shall be unable
to obtain indemnification from such other enterprise or its insurer.
SECTION 5. Any person entitled to be indemnified or to the reimbursement or
advancement of expenses as a matter of right pursuant to this Article V may
elect to have the right to indemnification (or advancement of expenses)
interpreted on the basis of the applicable law in effect at the time of
occurrence of the event or events giving rise to the action or proceeding, to
the extent permitted by law, or on the basis of the applicable law in effect at
the time indemnification is sought.
SECTION 6. The right to be indemnified or to the reimbursement or advancement of
expense pursuant to this Article V (i) is a contract right pursuant to which the
person entitled thereto may bring suit as if the provisions hereof were set
forth in a separate written contract between the Company and the director or
officer, (ii) is intended to be retroactive and shall be available with respect
to events occurring prior to the adoption hereof, and (iii) shall continue to
exist after the rescission or restrictive modification hereof with respect to
events occurring prior thereto.
SECTION 7. If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not paid in full by the Company
within thirty days after a written claim has been received by the Company, the
claimant may at any time thereafter bring suit against the Company to recover
the unpaid amount of the claim and, if successful in whole or in part, the
claimant shall be entitled also to be paid the expenses of prosecuting such
claim. Neither the failure of the Company (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of or
reimbursement or advancement of expenses to the claimant is proper in the
circumstance, nor an actual determination by the Company (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant is
not entitled to indemnification or to the reimbursement or advancement of
expenses, shall be a defense to the action or create a presumption that the
claimant is not so entitled.
SECTION 8. A person who has been successful, on the merits or otherwise, in the
defense of a civil or criminal action or proceeding of the character described
in Section 1 shall be entitled to indemnification only as provided in Sections 1
and 3, notwithstanding any provision of the New York Banking Law to the
contrary.
<PAGE>
ARTICLE VI
SEAL
SECTION 1. The Board of Directors shall provide a seal for the Company, the
counterpart dies of which shall be in the charge of the Secretary of the Company
and such officers as the Chairman of the Board, the Chief Executive Officer or
the Secretary may from time to time direct in writing, to be affixed to
certificates of stock and other documents in accordance with the directions of
the Board of Directors or the Executive Committee.
SECTION 2. The Board of Directors may provide, in proper cases on a specified
occasion and for a specified transaction or transactions, for the use of a
printed or engraved facsimile seal of the Company.
ARTICLE VII
CAPITAL STOCK
SECTION 1. Registration of transfer of shares shall only be made upon the books
of the Company by the registered holder in person, or by power of attorney, duly
executed, witnessed and filed with the Secretary or other proper officer of the
Company, on the surrender of the certificate or certificates of such shares
properly assigned for transfer.
ARTICLE VIII
CONSTRUCTION
SECTION 1. The masculine gender, when appearing in these By-Laws, shall be
deemed to include the feminine gender.
ARTICLE IX
AMENDMENTS
SECTION 1. These By-Laws may be altered, amended or added to by the Board of
Directors at any meeting, or by the stockholders at any annual or special
meeting, provided notice thereof has been given.
<PAGE>
Legal Title of Bank: Bankers Trust Company Call Date: 09/30/98
Address: 130 Liberty Street Vendor ID: D
City, State ZIP: New York, NY 10006
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
ST-BK: 36-4840 FFIEC 031
CERT: 00623 Page RC-1
11
Consolidated Report of Condition for Insured Commercial and State-Chartered
Savings Banks for September 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, reported the amount outstanding as of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
-------------------
C400
-------------------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
ASSETS ////////////
1. Cash and balances due from depository institutions (from Schedule RC-A): ////////////
a. Noninterest-bearing balances and currency and coin (1) .................. 0081 2,291,000 1.a.
b. Interest-bearing balances (2) ........................................... 0071 2,636,000 1.b.
2. Securities: ////////////
a. Held-to-maturity securities (from Schedule RC-B, column A) .............. 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D) ............ 1773 6,617,000 2.b.
3. Federal funds sold and securities purchased under agreements to resell ..... 1350 32,734,000 3.
4. Loans and lease financing receivables: ////////////
a. Loans and leases, net of unearned income (from Schedule RC-C) RCFD 2122 20,227,000 //////////// 4.a.
b. LESS: Allowance for loan and lease losses ......................RCFD 3123 619,000 //////////// 4.b.
c. LESS: Allocated transfer risk reserve ..........................RCFD 3128 0 //////////// 4.c.
d. Loans and leases, net of unearned income, ////////////
allowance, and reserve (item 4.a minus 4.b and 4.c) ..................... 2125 19,608,000 4.d.
5. Trading Assets (from schedule RC-D) ........................................ 3545 49,545,000 5.
6. Premises and fixed assets (including capitalized leases) ................... 2145 885,000 6.
7. Other real estate owned (from Schedule RC-M) ............................... 2150 115,000 7.
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) 2130 391,000 8.
9. Customers' liability to this bank on acceptances outstanding ............... 2155 392,000 9.
10. Intangible assets (from Schedule RC-M) ..................................... 2143 266,000 10.
11. Other assets (from Schedule RC-F) .......................................... 2160 5,884,000 11.
12. Total assets (sum of items 1 through 11) ................................... 2170 121,364,000 12.
-------------------------------
</TABLE>
- ----------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
Legal Title of Bank: Bankers Trust Company Call Date: 09/30/98
Address: 130 Liberty Street Vendor ID: D
City, State ZIP: New York, NY 10006
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
ST-BK: 36-4840 FFIEC 031
CERT: 00623 Page RC-2
12
Schedule RC--Continued
<TABLE>
<CAPTION>
-----------------------------------
Dollar Amounts in Thousands //////// Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
LIABILITIES ////////////////////
13. Deposits: ////////////////////
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, part I) RCON 2200 22,231,000 13.a.
(1) Noninterest-bearing(1) ...................................RCON 6631 3,040,000 //////////////////// 13.a.(1)
(2) Interest-bearing .........................................RCON 6636 19,191,000 //////////////////// 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E ////////////////////
part II) RCFN 2200 21,932,000 13.b.
(1) Noninterest-bearing ......................................RCFN 6631 2,423,000 //////////////////// 13.b.(1)
(2) Interest-bearing .........................................RCFN 6636 19,509,000 //////////////////// 13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase RCFD 2800 14,360,000 14.
15. a. Demand notes issued to the U.S. Treasury ................................ RCON 2840 0 15.a.
b. Trading liabilities (from Schedule RC-D) ................................ RCFD 3548 32,890,000 15.b.
16. Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases): ////////////////////
a. With a remaining maturity of one year or less ........................... RCFD 2332 7,653,000 16.a.
b. With a remaining maturity of more than one year through three years ..... A547 3,707,000 16.b.
c. With a remaining maturity of more than three years ...................... A548 3,034,000 16.c
17. Not Applicable. //////////////////// 17.
18. Bank's liability on acceptances executed and outstanding ................... RCFD 2920 392,000 18.
19. Subordinated notes and debentures(2) ....................................... RCFD 3200 1,533,000 19.
20. Other liabilities (from Schedule RC-G) ..................................... RCFD 2930 6,595,000 20.
21. Total liabilities (sum of items 13 through 20) ............................. RCFD 2948 114,327,000 21.
22. Not Applicable //////////////////// 22.
////////////////////
EQUITY CAPITAL ////////////////////
23. Perpetual preferred stock and related surplus .............................. RCFD 3838 1,500,000 23.
24. Common stock ............................................................... RCFD 3230 2,002,000 24.
25. Surplus (exclude all surplus related to preferred stock) ................... RCFD 3839 540,000 25.
26. a. Undivided profits and capital reserves .................................. RCFD 3632 3,421,000 26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities .. RCFD 8434 (46,000) 26.b.
27. Cumulative foreign currency translation adjustments ........................ RCFD 3284 (380,000) 27.
28. Total equity capital (sum of items 23 through 27) .......................... RCFD 3210 7,037,000 28.
29. Total liabilities and equity capital (sum of items 21 and 28) .............. RCFD 3300 121,364,000 29
-----------
-----------------------------------
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
<TABLE>
<CAPTION>
1. Indicate in the box at the right the number of the statement below Number
that best describes the most comprehensive level of auditing work --------------
performed for the bank by independent external Number auditors as of <S> <C> <C>
any date during 1997 ............................................................... RCFD 6724 1 M.1
---------------------------
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified
public accounting firm which submits a report on the consolidated holding
company (but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- ----------
(1) Including total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
- --------------------------------------------------------------------------------
UNITED STATES
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) ___________
------------------------------
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
Bankers Trust Company
Legal Department
130 Liberty Street, 31st Floor
New York, New York 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
---------------------------------
Southern Indiana Gas and Electric Company
(Exact name of Registrant as specified in its charter)
Indiana 35-0672570
(State or other jurisdiction of (I.R.S. employer identification no.)
Incorporation or organization)
20 N. W. Fourth Street
Evansville, Indiana 47741-0001
(812) 465 5300
(Address, including zip code, and telephone
number of principal executive offices)
First Mortgage Bonds
(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
---- -------
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(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 3. -15. Not Applicable
Item 16. List of Exhibits.
Exhibit 1 - Restated Organization Certificate of Bankers Trust Company
dated August 7, 1990, Certificate of Amendment of the
Organization Certificate of Bankers Trust Company dated June
21, 1995 - Incorporated herein by reference to Exhibit 1 filed
with Form T-1 Statement, Registration No. 33-65171,
Certificate of Amendment of the Organization Certificate of
Bankers Trust Company dated March 20, 1996, incorporate by
referenced to Exhibit 1 filed with Form T-1 Statement,
Registration No. 333-25843 and Certificate of Amendment of the
Organization Certificate of Bankers Trust Company dated June
19, 1997, copy attached.
Exhibit 2 - Certificate of Authority to commence business - Incorporated
herein by reference to Exhibit 2 filed with Form T-1
Statement, Registration No. 33-21047.
Exhibit 3 - Authorization of the Trustee to exercise corporate trust
powers - Incorporated herein by reference to Exhibit 2 filed
with Form T-1 Statement, Registration No. 33-21047.
Exhibit 4 - Existing By-Laws of Bankers Trust Company, as amended on
November 18, 1997. Copy attached.
-2-
<PAGE>
Exhibit 5 - Not applicable.
Exhibit 6 - Consent of Bankers Trust Company required by Section 321(b) of
the Act. - Incorporated herein by reference to Exhibit 4 filed
with Form T-1 Statement, Registration No. 22-18864.
Exhibit 7 - The latest report of condition of Bankers Trust Company dated
as of September 30, 1998. Copy attached.
Exhibit 8 - Not Applicable.
Exhibit 9 - Not Applicable.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York, and State of New York, on this 30th day
of June, 1999
BANKERS TRUST COMPANY
By: /s/ Vincent Chorney
------------------------------------
Vincent Chorney
Assistant Vice President
-4-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York, and State of New York, on this 30th day
of June, 1999
BANKERS TRUST COMPANY
/s/ Vincent Chorney /s/
------------------------------------
By: Vincent Chorney
Assistant Vice President
-5-
<PAGE>
State of New York,
Banking Department
I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New York,
DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF AMENDMENT OF
THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under Section 8005 of the
Banking Law," dated June 19, 1997, providing for an increase in authorized
capital stock from $1,601,666,670 consisting of 100,166,667 shares with a par
value of $10 each designated as Common Stock and 600 shares with a par value of
$1,000,000 each designated as Series Preferred Stock to $2,001,666,670
consisting of 100,166,667 shares with a par value of $10 each designated as
Common Stock and 1,000 shares with a par value of $1,000,000 each designated as
Series Preferred Stock.
Witness, my hand and official seal of the Banking Department at the City of New
York,
this 27th day of June in the Year of our Lord one thousand
nine hundred and ninety-seven.
Manuel Kursky
------------------------------
Deputy Superintendent of Banks
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
-----------------------------
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and an Assistant Secretary of Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of March, 1903.
3. The organization certificate as heretofore amended is hereby amended to
increase the aggregate number of shares which the corporation shall have
authority to issue and to increase the amount of its authorized capital stock in
conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of shares into which the capital stock
shall be divided, the par value of the shares and the capital stock outstanding,
which reads as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is One Billion, Six Hundred and One Million, Six Hundred Sixty-Six
Thousand, Six Hundred Seventy Dollars ($1,601,666,670), divided into One
Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven
(100,166,667) shares with a par value of $10 each designated as Common
Stock and 600 shares with a par value of One Million Dollars ($1,000,000)
each designated as Series Preferred Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is Two Billion One Million, Six Hundred Sixty-Six Thousand, Six
Hundred Seventy Dollars ($2,001,666,670), divided into One Hundred
Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven
(100,166,667) shares with a par value of $10 each designated as Common
Stock and 1000 shares with a par value of One Million Dollars ($1,000,000)
each designated as Series Preferred Stock."
<PAGE>
5. The foregoing amendment of the organization certificate was authorized
by unanimous written consent signed by the holder of all outstanding shares
entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 19th
day of June, 1997.
James T. Byrne, Jr.
--------------------------------------
James T. Byrne, Jr.
Managing Director
Lea Lahtinen
--------------------------------------
Lea Lahtinen
Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is an Assistant
Secretary of Bankers Trust Company, the corporation described in the foregoing
certificate; that she has read the foregoing certificate and knows the contents
thereof, and that the statements herein contained are true.
Lea Lahtinen
--------------------------
Lea Lahtinen
Sworn to before me this 19th day
of June, 1997.
Sandra L. West
- --------------------------------
Notary Public
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 1998
<PAGE>
BY-LAWS
NOVEMBER 18, 1997
Bankers Trust Company
New York
<PAGE>
BY-LAWS
of
Bankers Trust Company
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. The annual meeting of the stockholders of this Company shall be held
at the office of the Company in the Borough of Manhattan, City of New York, on
the third Tuesday in January of each year, for the election of directors and
such other business as may properly come before said meeting.
SECTION 2. Special meetings of stockholders other than those regulated by
statute may be called at any time by a majority of the directors. It shall be
the duty of the Chairman of the Board, the Chief Executive Officer or the
President to call such meetings whenever requested in writing to do so by
stockholders owning a majority of the capital stock.
SECTION 3. At all meetings of stockholders, there shall be present, either in
person or by proxy, stockholders owning a majority of the capital stock of the
Company, in order to constitute a quorum, except at special elections of
directors, as provided by law, but less than a quorum shall have power to
adjourn any meeting.
SECTION 4. The Chairman of the Board or, in his absence, the Chief Executive
Officer or, in his absence, the President or, in their absence, the senior
officer present, shall preside at meetings of the stockholders and shall direct
the proceedings and the order of business. The Secretary shall act as secretary
of such meetings and record the proceedings.
ARTICLE II
DIRECTORS
SECTION 1. The affairs of the Company shall be managed and its corporate powers
exercised by a Board of Directors consisting of such number of directors, but
not less than ten nor more than twenty-five, as may from time to time be fixed
by resolution adopted by a majority of the directors then in office, or by the
stockholders. In the event of any increase in the number of directors,
additional directors may be elected within the limitations so fixed, either by
the stockholders or within the limitations imposed by law, by a majority of
directors then in office. One-third of the number of directors, as fixed from
time to time, shall constitute a quorum. Any one or more members of the Board of
Directors or any Committee thereof may participate in a meeting of the Board of
Directors or Committee thereof by means of a conference telephone or similar
communications equipment which allows all persons participating in the meeting
to hear each other at the same time. Participation by such means shall
constitute presence in person at such a meeting.
<PAGE>
All directors hereafter elected shall hold office until the next annual meeting
of the stockholders and until their successors are elected and have qualified.
No person who shall have attained age 72 shall be eligible to be elected or
re-elected a director. Such director may, however, remain a director of the
Company until the next annual meeting of the stockholders of Bankers Trust New
York Corporation (the Company's parent) so that such director's retirement will
coincide with the retirement date from Bankers Trust New York Corporation.
No Officer-Director who shall have attained age 65, or earlier relinquishes his
responsibilities and title, shall be eligible to serve as a director.
SECTION 2. Vacancies not exceeding one-third of the whole number of the Board of
Directors may be filled by the affirmative vote of a majority of the directors
then in office, and the directors so elected shall hold office for the balance
of the unexpired term.
SECTION 3. The Chairman of the Board shall preside at meetings of the Board of
Directors. In his absence, the Chief Executive Officer or, in his absence, such
other director as the Board of Directors from time to time may designate shall
preside at such meetings.
SECTION 4. The Board of Directors may adopt such Rules and Regulations for the
conduct of its meetings and the management of the affairs of the Company as it
may deem proper, not inconsistent with the laws of the State of New York, or
these By-Laws, and all officers and employees shall strictly adhere to, and be
bound by, such Rules and Regulations.
SECTION 5. Regular meetings of the Board of Directors shall be held from time to
time on the third Tuesday of the month. If the day appointed for holding such
regular meetings shall be a legal holiday, the regular meeting to be held on
such day shall be held on the next business day thereafter. Special meetings of
the Board of Directors may be called upon at least two day's notice whenever it
may be deemed proper by the Chairman of the Board or, the Chief Executive
Officer or, in their absence, by such other director as the Board of Directors
may have designated pursuant to Section 3 of this Article, and shall be called
upon like notice whenever any three of the directors so request in writing.
SECTION 6. The compensation of directors as such or as members of committees
shall be fixed from time to time by resolution of the Board of Directors.
<PAGE>
ARTICLE III
COMMITTEES
SECTION 1. There shall be an Executive Committee of the Board consisting of not
less than five directors who shall be appointed annually by the Board of
Directors. The Chairman of the Board shall preside at meetings of the Executive
Committee. In his absence, the Chief Executive Officer or, in his absence, such
other member of the Committee as the Committee from time to time may designate
shall preside at such meetings.
The Executive Committee shall possess and exercise to the extent permitted by
law all of the powers of the Board of Directors, except when the latter is in
session, and shall keep minutes of its proceedings, which shall be presented to
the Board of Directors at its next subsequent meeting. All acts done and powers
and authority conferred by the Executive Committee from time to time shall be
and be deemed to be, and may be certified as being, the act and under the
authority of the Board of Directors.
A majority of the Committee shall constitute a quorum, but the Committee may act
only by the concurrent vote of not less than one-third of its members, at least
one of whom must be a director other than an officer. Any one or more directors,
even though not members of the Executive Committee, may attend any meeting of
the Committee, and the member or members of the Committee present, even though
less than a quorum, may designate any one or more of such directors as a
substitute or substitutes for any absent member or members of the Committee, and
each such substitute or substitutes shall be counted for quorum, voting, and all
other purposes as a member or members of the Committee.
SECTION 2. There shall be an Audit Committee appointed annually by resolution
adopted by a majority of the entire Board of Directors which shall consist of
such number of directors, who are not also officers of the Company, as may from
time to time be fixed by resolution adopted by the Board of Directors. The
Chairman shall be designated by the Board of Directors, who shall also from time
to time fix a quorum for meetings of the Committee. Such Committee shall conduct
the annual directors' examinations of the Company as required by the New York
State Banking Law; shall review the reports of all examinations made of the
Company by public authorities and report thereon to the Board of Directors; and
shall report to the Board of Directors such other matters as it deems advisable
with respect to the Company, its various departments and the conduct of its
operations.
In the performance of its duties, the Audit Committee may employ or retain, from
time to time, expert assistants, independent of the officers or personnel of the
Company, to make studies of the Company's assets and liabilities as the
Committee may request and to make an examination of the accounting and auditing
methods of the Company and its system of internal protective controls to the
extent considered necessary or advisable in order to determine that the
operations of the Company, including its fiduciary departments, are being
audited by the General Auditor in such a manner as to provide prudent and
adequate protection. The Committee also may direct the General Auditor to make
such investigation as it deems necessary or advisable with respect to the
Company, its various departments and the conduct of its operations. The
Committee shall hold regular quarterly
<PAGE>
meetings and during the intervals thereof shall meet at other times on call of
the Chairman.
SECTION 3. The Board of Directors shall have the power to appoint any other
Committees as may seem necessary, and from time to time to suspend or continue
the powers and duties of such Committees. Each Committee appointed pursuant to
this Article shall serve at the pleasure of the Board of Directors.
ARTICLE IV
OFFICERS
SECTION 1. The Board of Directors shall elect from among their number a Chairman
of the Board and a Chief Executive Officer; and shall also elect a President,
and may also elect a Senior Vice Chairman, one or more Vice Chairmen, one or
more Executive Vice Presidents, one or more Senior Managing Directors, one or
more Managing Directors, one or more Senior Vice Presidents, one or more
Principals, one or more Vice Presidents, one or more General Managers, a
Secretary, a Controller, a Treasurer, a General Counsel, one or more Associate
General Counsels, a General Auditor, a General Credit Auditor, and one or more
Deputy Auditors, who need not be directors. The officers of the corporation may
also include such other officers or assistant officers as shall from time to
time be elected or appointed by the Board. The Chairman of the Board or the
Chief Executive Officer or, in their absence, the President, the Senior Vice
Chairman or any Vice Chairman, may from time to time appoint assistant officers.
All officers elected or appointed by the Board of Directors shall hold their
respective offices during the pleasure of the Board of Directors, and all
assistant officers shall hold office at the pleasure of the Board or the
Chairman of the Board or the Chief Executive Officer or, in their absence, the
President, the Senior Vice Chairman or any Vice Chairman. The Board of Directors
may require any and all officers and employees to give security for the faithful
performance of their duties.
SECTION 2. The Board of Directors shall designate the Chief Executive Officer of
the Company who may also hold the additional title of Chairman of the Board,
President, Senior Vice Chairman or Vice Chairman and such person shall have,
subject to the supervision and direction of the Board of Directors or the
Executive Committee, all of the powers vested in such Chief Executive Officer by
law or by these By-Laws, or which usually attach or pertain to such office. The
other officers shall have, subject to the supervision and direction of the Board
of Directors or the Executive Committee or the Chairman of the Board or, the
Chief Executive Officer, the powers vested by law or by these By-Laws in them as
holders of their respective offices and, in addition, shall perform such other
duties as shall be assigned to them by the Board of Directors or the Executive
Committee or the Chairman of the Board or the Chief Executive Officer.
The General Auditor shall be responsible, through the Audit Committee, to the
Board of Directors for the determination of the program of the internal audit
function and the evaluation of the adequacy of the system of internal controls.
Subject to the Board of Directors, the General Auditor shall have and may
exercise all the powers and shall perform all the duties usual to such office
and shall have such other powers as may be prescribed or assigned to him from
time to time by the Board of Directors or vested in him by law or by these
By-Laws. He shall perform such other duties and shall make such investigations,
examinations and reports as may be prescribed or required by the Audit
<PAGE>
Committee. The General Auditor shall have unrestricted access to all records and
premises of the Company and shall delegate such authority to his subordinates.
He shall have the duty to report to the Audit Committee on all matters
concerning the internal audit program and the adequacy of the system of internal
controls of the Company which he deems advisable or which the Audit Committee
may request. Additionally, the General Auditor shall have the duty of reporting
independently of all officers of the Company to the Audit Committee at least
quarterly on any matters concerning the internal audit program and the adequacy
of the system of internal controls of the Company that should be brought to the
attention of the directors except those matters responsibility for which has
been vested in the General Credit Auditor. Should the General Auditor deem any
matter to be of special immediate importance, he shall report thereon forthwith
to the Audit Committee. The General Auditor shall report to the Chief Financial
Officer only for administrative purposes.
The General Credit Auditor shall be responsible to the Chief Executive Officer
and, through the Audit Committee, to the Board of Directors for the systems of
internal credit audit, shall perform such other duties as the Chief Executive
Officer may prescribe, and shall make such examinations and reports as may be
required by the Audit Committee. The General Credit Auditor shall have
unrestricted access to all records and may delegate such authority to
subordinates.
SECTION 3. The compensation of all officers shall be fixed under such plan or
plans of position evaluation and salary administration as shall be approved from
time to time by resolution of the Board of Directors.
SECTION 4. The Board of Directors, the Executive Committee, the Chairman of the
Board, the Chief Executive Officer or any person authorized for this purpose by
the Chief Executive Officer, shall appoint or engage all other employees and
agents and fix their compensation. The employment of all such employees and
agents shall continue during the pleasure of the Board of Directors or the
Executive Committee or the Chairman of the Board or the Chief Executive Officer
or any such authorized person; and the Board of Directors, the Executive
Committee, the Chairman of the Board, the Chief Executive Officer or any such
authorized person may discharge any such employees and agents at will.
<PAGE>
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
SECTION 1. The Company shall, to the fullest extent permitted by Section 7018 of
the New York Banking Law, indemnify any person who is or was made, or threatened
to be made, a party to an action or proceeding, whether civil or criminal,
whether involving any actual or alleged breach of duty, neglect or error, any
accountability, or any actual or alleged misstatement, misleading statement or
other act or omission and whether brought or threatened in any court or
administrative or legislative body or agency, including an action by or in the
right of the Company to procure a judgment in its favor and an action by or in
the right of any other corporation of any type or kind, domestic or foreign, or
any partnership, joint venture, trust, employee benefit plan or other
enterprise, which any director or officer of the Company is servicing or served
in any capacity at the request of the Company by reason of the fact that he, his
testator or intestate, is or was a director or officer of the Company, or is
serving or served such other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise in any capacity, against judgments,
fines, amounts paid in settlement, and costs, charges and expenses, including
attorneys' fees, or any appeal therein; provided, however, that no
indemnification shall be provided to any such person if a judgment or other
final adjudication adverse to the director or officer establishes that (i) his
acts were committed in bad faith or were the result of active and deliberate
dishonesty and, in either case, were material to the cause of action so
adjudicated, or (ii) he personally gained in fact a financial profit or other
advantage to which he was not legally entitled.
SECTION 2. The Company may indemnify any other person to whom the Company is
permitted to provide indemnification or the advancement of expenses by
applicable law, whether pursuant to rights granted pursuant to, or provided by,
the New York Banking Law or other rights created by (i) a resolution of
stockholders, (ii) a resolution of directors, or (iii) an agreement providing
for such indemnification, it being expressly intended that these By-Laws
authorize the creation of other rights in any such manner.
SECTION 3. The Company shall, from time to time, reimburse or advance to any
person referred to in Section 1 the funds necessary for payment of expenses,
including attorneys' fees, incurred in connection with any action or proceeding
referred to in Section 1, upon receipt of a written undertaking by or on behalf
of such person to repay such amount(s) if a judgment or other final adjudication
adverse to the director or officer establishes that (i) his acts were committed
in bad faith or were the result of active and deliberate dishonesty and, in
either case, were material to the cause of action so adjudicated, or (ii) he
personally gained in fact a financial profit or other advantage to which he was
not legally entitled.
SECTION 4. Any director or officer of the Company serving (i) another
corporation, of which a majority of the shares entitled to vote in the election
of its directors is held by the Company, or (ii) any employee benefit plan of
the Company or any corporation referred to in clause (i) in any capacity shall
be deemed to be doing so at the request of the Company. In all other cases, the
provisions of this Article V will apply (i) only if the person serving another
corporation or any partnership, joint venture, trust, employee benefit plan or
other enterprise so served at the specific request of the Company, evidenced by
a written communication signed by the Chairman of the Board, the Chief Executive
Officer or the President, and (ii) only if and to the extent that, after making
such efforts as the Chairman of the Board, the Chief Executive Officer or
<PAGE>
the President shall deem adequate in the circumstances, such person shall be
unable to obtain indemnification from such other enterprise or its insurer.
SECTION 5. Any person entitled to be indemnified or to the reimbursement or
advancement of expenses as a matter of right pursuant to this Article V may
elect to have the right to indemnification (or advancement of expenses)
interpreted on the basis of the applicable law in effect at the time of
occurrence of the event or events giving rise to the action or proceeding, to
the extent permitted by law, or on the basis of the applicable law in effect at
the time indemnification is sought.
SECTION 6. The right to be indemnified or to the reimbursement or advancement of
expense pursuant to this Article V (i) is a contract right pursuant to which the
person entitled thereto may bring suit as if the provisions hereof were set
forth in a separate written contract between the Company and the director or
officer, (ii) is intended to be retroactive and shall be available with respect
to events occurring prior to the adoption hereof, and (iii) shall continue to
exist after the rescission or restrictive modification hereof with respect to
events occurring prior thereto.
SECTION 7. If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not paid in full by the Company
within thirty days after a written claim has been received by the Company, the
claimant may at any time thereafter bring suit against the Company to recover
the unpaid amount of the claim and, if successful in whole or in part, the
claimant shall be entitled also to be paid the expenses of prosecuting such
claim. Neither the failure of the Company (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of or
reimbursement or advancement of expenses to the claimant is proper in the
circumstance, nor an actual determination by the Company (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant is
not entitled to indemnification or to the reimbursement or advancement of
expenses, shall be a defense to the action or create a presumption that the
claimant is not so entitled.
SECTION 8. A person who has been successful, on the merits or otherwise, in the
defense of a civil or criminal action or proceeding of the character described
in Section 1 shall be entitled to indemnification only as provided in Sections 1
and 3, notwithstanding any provision of the New York Banking Law to the
contrary.
<PAGE>
ARTICLE VI
SEAL
SECTION 1. The Board of Directors shall provide a seal for the Company, the
counterpart dies of which shall be in the charge of the Secretary of the Company
and such officers as the Chairman of the Board, the Chief Executive Officer or
the Secretary may from time to time direct in writing, to be affixed to
certificates of stock and other documents in accordance with the directions of
the Board of Directors or the Executive Committee.
SECTION 2. The Board of Directors may provide, in proper cases on a specified
occasion and for a specified transaction or transactions, for the use of a
printed or engraved facsimile seal of the Company.
ARTICLE VII
CAPITAL STOCK
SECTION 1. Registration of transfer of shares shall only be made upon the books
of the Company by the registered holder in person, or by power of attorney, duly
executed, witnessed and filed with the Secretary or other proper officer of the
Company, on the surrender of the certificate or certificates of such shares
properly assigned for transfer.
ARTICLE VIII
CONSTRUCTION
SECTION 1. The masculine gender, when appearing in these By-Laws, shall be
deemed to include the feminine gender.
ARTICLE IX
AMENDMENTS
SECTION 1. These By-Laws may be altered, amended or added to by the Board of
Directors at any meeting, or by the stockholders at any annual or special
meeting, provided notice thereof has been given.
<PAGE>
Legal Title of Bank: Bankers Trust Company Call Date: 09/30/98
Address: 130 Liberty Street Vendor ID: D
City, State ZIP: New York, NY 10006
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
ST-BK: 36-4840 FFIEC 031
CERT: 00623 Page RC-1
11
Consolidated Report of Condition for Insured Commercial and State-Chartered
Savings Banks for September 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, reported the amount outstanding as of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
-------------------
C400
-------------------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
ASSETS ////////////
1. Cash and balances due from depository institutions (from Schedule RC-A): ////////////
a. Noninterest-bearing balances and currency and coin (1) .................. 0081 2,291,000 1.a.
b. Interest-bearing balances (2) ........................................... 0071 2,636,000 1.b.
2. Securities: ////////////
a. Held-to-maturity securities (from Schedule RC-B, column A) .............. 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D) ............ 1773 6,617,000 2.b.
3. Federal funds sold and securities purchased under agreements to resell ..... 1350 32,734,000 3.
4. Loans and lease financing receivables: ////////////
a. Loans and leases, net of unearned income (from Schedule RC-C) RCFD 2122 20,227,000 //////////// 4.a.
b. LESS: Allowance for loan and lease losses ......................RCFD 3123 619,000 //////////// 4.b.
c. LESS: Allocated transfer risk reserve ..........................RCFD 3128 0 //////////// 4.c.
d. Loans and leases, net of unearned income, ////////////
allowance, and reserve (item 4.a minus 4.b and 4.c) ..................... 2125 19,608,000 4.d.
5. Trading Assets (from schedule RC-D) ........................................ 3545 49,545,000 5.
6. Premises and fixed assets (including capitalized leases) ................... 2145 885,000 6.
7. Other real estate owned (from Schedule RC-M) ............................... 2150 115,000 7.
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) 2130 391,000 8.
9. Customers' liability to this bank on acceptances outstanding ............... 2155 392,000 9.
10. Intangible assets (from Schedule RC-M) ..................................... 2143 266,000 10.
11. Other assets (from Schedule RC-F) .......................................... 2160 5,884,000 11.
12. Total assets (sum of items 1 through 11) ................................... 2170 121,364,000 12.
-------------------------------
</TABLE>
- ----------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
Legal Title of Bank: Bankers Trust Company Call Date: 09/30/98
Address: 130 Liberty Street Vendor ID: D
City, State ZIP: New York, NY 10006
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
ST-BK: 36-4840 FFIEC 031
CERT: 00623 Page RC-2
12
Schedule RC--Continued
<TABLE>
<CAPTION>
-----------------------------------
Dollar Amounts in Thousands //////// Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
LIABILITIES ////////////////////
13. Deposits: ////////////////////
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, part I) RCON 2200 22,231,000 13.a.
(1) Noninterest-bearing(1) ...................................RCON 6631 3,040,000 //////////////////// 13.a.(1)
(2) Interest-bearing .........................................RCON 6636 19,191,000 //////////////////// 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E ////////////////////
part II) RCFN 2200 21,932,000 13.b.
(1) Noninterest-bearing ......................................RCFN 6631 2,423,000 //////////////////// 13.b.(1)
(2) Interest-bearing .........................................RCFN 6636 19,509,000 //////////////////// 13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase RCFD 2800 14,360,000 14.
15. a. Demand notes issued to the U.S. Treasury ................................ RCON 2840 0 15.a.
b. Trading liabilities (from Schedule RC-D) ................................ RCFD 3548 32,890,000 15.b.
16. Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases): ////////////////////
a. With a remaining maturity of one year or less ........................... RCFD 2332 7,653,000 16.a.
b. With a remaining maturity of more than one year through three years ..... A547 3,707,000 16.b.
c. With a remaining maturity of more than three years ...................... A548 3,034,000 16.c
17. Not Applicable. //////////////////// 17.
18. Bank's liability on acceptances executed and outstanding ................... RCFD 2920 392,000 18.
19. Subordinated notes and debentures(2) ....................................... RCFD 3200 1,533,000 19.
20. Other liabilities (from Schedule RC-G) ..................................... RCFD 2930 6,595,000 20.
21. Total liabilities (sum of items 13 through 20) ............................. RCFD 2948 114,327,000 21.
22. Not Applicable //////////////////// 22.
////////////////////
EQUITY CAPITAL ////////////////////
23. Perpetual preferred stock and related surplus .............................. RCFD 3838 1,500,000 23.
24. Common stock ............................................................... RCFD 3230 2,002,000 24.
25. Surplus (exclude all surplus related to preferred stock) ................... RCFD 3839 540,000 25.
26. a. Undivided profits and capital reserves .................................. RCFD 3632 3,421,000 26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities .. RCFD 8434 (46,000) 26.b.
27. Cumulative foreign currency translation adjustments ........................ RCFD 3284 (380,000) 27.
28. Total equity capital (sum of items 23 through 27) .......................... RCFD 3210 7,037,000 28.
29. Total liabilities and equity capital (sum of items 21 and 28) .............. RCFD 3300 121,364,000 29
-----------
-----------------------------------
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
<TABLE>
<CAPTION>
1. Indicate in the box at the right the number of the statement below Number
that best describes the most comprehensive level of auditing work --------------
performed for the bank by independent external Number auditors as of <S> <C> <C>
any date during 1997 ............................................................... RCFD 6724 1 M.1
---------------------------
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified
public accounting firm which submits a report on the consolidated holding
company (but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- ----------
(1) Including total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
