AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 16, 1997
REGISTRATION NOS. 333- AND 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
PP&L RESOURCES, INC. PP&L CAPITAL FUNDING, INC.
(Exact name of registrant as (Exact name of registrant as
specified in its charter) specified in its charter)
PENNSYLVANIA DELAWARE
(State or other jurisdiction of (State or other jurisdiction of
incorporation or organization) incorporation or organization)
23-2758192 23-2926644
(I.R.S. Employer Identification) (I.R.S. Employer Identification)
TWO NORTH NINTH STREET TWO NORTH NINTH STREET
ALLENTOWN, PENNSYLVANIA 18101-1179 ALLENTOWN, PENNSYLVANIA 18101
(610) 774-5151 (610) 774-5151
(Address, including zip code, and (Address, including zip code, and
telephone number, including telephone number, including
area code, of registrant's area code, of registrant's
principal executive offices) principal executive offices)
JOHN R. BIGGAR
PP&L RESOURCES, INC.
TWO NORTH NINTH STREET
ALLENTOWN, PENNSYLVANIA 18101-1179
(610) 774-5151
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
--------------------
COPIES TO:
CATHERINE C. HOOD, ESQ. ROBERT B. HIDEN, JR., ESQ.
REID & PRIEST, LLP SULLIVAN & CROMWELL
40 WEST 57TH STREET 125 BROAD STREET
NEW YORK, NEW YORK 10019 NEW YORK, NEW YORK 10004
(212) 603-2000 (212) 558-4000
--------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From
time to time after the registration statement becomes effective, as
determined by market and other conditions.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933, other than securities offered only in connection with dividend
or interest reinvestment plans, check the following box. [x]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS OFFERING AGGREGATE AMOUNT OF
OF SECURITIES AMOUNT TO BE PRICE PER OFFERING REGISTRATION
BEING REGISTERED REGISTERED UNIT(1) PRICE(1)(2) FEE
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PP&L Capital Funding,
Inc. Debt Securities... $400,000,000 100% $400,000,000 $121,213
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PP&L Resources, Inc.
Guarantee of PP&L
Capital Funding, Inc.
Debt Securities (3)....
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Total.................... $400,000,000 100% $400,000,000 $121,213
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 under the Securities Act of 1933.
(2) Exclusive of accrued interest, if any.
(3) No separate consideration will be received for the Guarantee.
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE
REGISTRANTS 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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<PAGE>
Information contained herein is subject to completion or
amendment. A registration statement relating to these securities
has been filed with the Securities and Exchange Commission.
These securities may not be sold nor may offers to buy be
accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell
or the solicitation of an offer to buy nor shall there be any
sale of these securities in any jurisdiction in which such offer,
solicitation or sale would be unlawful prior to registration or
qualification under the securities laws of any such jurisdiction.
SUBJECT TO COMPLETION, DATED OCTOBER 16, 1997
PROSPECTUS
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$400,000,000
PP&L CAPITAL FUNDING, INC.
DEBT SECURITIES
UNCONDITIONALLY GUARANTEED
AS TO PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST BY
PP&L RESOURCES, INC.
PP&L Capital Funding, Inc., a Delaware Corporation (the
"Company"), may offer, from time to time, its unsecured debt
securities consisting of notes, debentures, or other unsecured
evidences of indebtedness, in one or more series, in an aggregate
principal amount of up to $400,000,000 (the "Debt Securities"),
on terms to be determined at the time or times of sale. The Debt
Securities will be unconditionally guaranteed by PP&L Resources,
Inc., a Pennsylvania corporation ("PP&L Resources"), as to
payment of principal, premium, if any, and interest. See
"Description of the Debt Securities - Guarantee of PP&L
Resources; Holding Company Structure." The terms of each series
of Debt Securities in respect of which this Prospectus is being
delivered, including, where applicable, the series designation,
the aggregate principal amount of the series, the maturity or
maturities, the rate or rates (which may be fixed or variable)
and time or times of payment of interest, the initial public
offering prices, the provisions for redemption, provisions for
repayment at the option of the holder and other provisions, are
set forth in one or more Prospectus Supplements (each a
"Prospectus Supplement"), together with the terms of offering of
the Debt Securities.
The Debt Securities may be sold by the Company to or through
underwriters or dealers, directly to other purchasers or through
agents for offering pursuant to terms fixed at the time of sale.
See "Plan of Distribution." The applicable Prospectus Supplement
sets forth the names of any such underwriters or agents and any
applicable commission or discount arrangements with them.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR BY ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
This Prospectus may not be used to consummate sales of
Debt Securities unless accompanied by a Prospectus Supplement.
The date of this Prospectus is October __, 1997.
<PAGE>
AVAILABLE INFORMATION
PP&L Resources is subject to the informational requirements
of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and in accordance therewith files reports, proxy statements
and other information with the Securities and Exchange Commission
(the "Commission"). Such reports, proxy statements and other
information filed by PP&L Resources can be inspected and copied
at the public reference facilities maintained by the Commission
at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and
at the following Regional Offices of the Commission: Chicago
Regional Office, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661; and New York Regional Office, 7 World Trade
Center, Suite 1300, New York, New York 10048. Copies of such
material can be obtained by mail from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington,
D.C. 20549, at prescribed rates. The Commission also maintains a
World Wide Web site (http://www.sec.gov) that contains reports,
proxy and information statements and other information filed by
PP&L Resources. The outstanding shares of PP&L Resources Common
Stock are listed on the New York Stock Exchange, and reports,
proxy statements and other information concerning PP&L Resources
may also be inspected at the offices of such exchange at 20 Broad
Street, New York, New York 10005. In addition, reports, proxy
statements and other information concerning PP&L Resources can be
inspected at its offices at Two North Ninth Street, Allentown,
Pennsylvania 18101.
The Company and PP&L Resources have filed with the
Commission a combined registration statement on Form S-3 (herein,
together with all amendments and exhibits thereto, referred to as
the "Registration Statement") under the Securities Act of 1933,
as amended (the "Securities Act"), with respect to the Debt
Securities offered hereby. This Prospectus does not contain all
of the information set forth in the Registration Statement,
certain parts of which are omitted in accordance with the rules
and regulations of the Commission. Reference is made to such
Registration Statement and to the exhibits relating thereto for
further information with respect to the Company, PP&L Resources
and the Debt Securities. Any statements contained herein
concerning the provisions of any document filed as an exhibit to
the Registration Statement or otherwise filed with the Commission
or incorporated by reference herein are not necessarily complete,
and in each instance reference is made to the copy of such
document so filed for a more complete description of the matter
involved. Each such statement is qualified in its entirety by
such reference.
No separate financial statements of the Company are included
or incorporated by reference herein. PP&L Resources and the
Company do not consider that such financial statements would be
material to holders of the Debt Securities because (i) the
Company is a newly organized corporation that has no operating
history and no independent operations, and (ii) the Company was
formed for the purpose of providing financing for PP&L Resources
and its subsidiaries, and does not currently propose to engage in
more than minimal independent operations. See "The Company."
The Company intends to ask the Staff of the Commission for a "no-
action" letter to the effect that the Staff would not raise any
objection if the Company does not file periodic reports under
Sections 13 and 15(d) of the Exchange Act. Accordingly, the
Company is not expected to file such reports.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by PP&L Resources with the
Commission pursuant to the Exchange Act (File No. 1-11459) are
incorporated herein by reference and made a part hereof:
(1) Annual Report on Form 10-K for the year ended December
31, 1996;
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(2) Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1997 and June 30, 1997; and
(3) Current Reports on Form 8-K, dated March 3, 1997, April
2, 1997, May 2, 1997, June 30, 1997, July 14, 1997 and September
12, 1997.
All documents subsequently filed by PP&L Resources pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act and
prior to the termination of the offering of the Debt Securities
shall be deemed to be incorporated by reference in this
Prospectus and to be a part hereof from the date of filing of
such documents. The documents which are incorporated by reference
in this Prospectus are sometimes hereinafter referred to as the
"Incorporated Documents." Any statement contained in an
Incorporated Document shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed
document which is deemed to be incorporated by reference herein
or in a Prospectus Supplement modifies or supersedes such
statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part
of this Prospectus.
PP&L Resources hereby undertakes to provide without charge
to each person, including any beneficial owner, to whom a copy of
this Prospectus has been delivered, upon the written or oral
request of any such person, a copy of any and all of the
Incorporated Documents, other than exhibits to such documents
(unless such exhibits are specifically incorporated by reference
into such documents). Requests for such copies should be
directed to: PP&L Resources, Inc., Two North Ninth Street,
Allentown, Pennsylvania 18101, Attention: Investor Services
Department (800) 345-3085.
PP&L RESOURCES
PP&L Resources was incorporated in 1995 under the laws of
the Commonwealth of Pennsylvania and is the parent holding
company of the Company, PP&L, Inc. (formerly Pennsylvania Power &
Light Company, "PP&L"), PP&L Global, Inc. (formerly Power Markets
Development Company, "PP&L Global"), and PP&L Spectrum, Inc.
(formerly Spectrum Energy Services Corporation, "PP&L Spectrum").
PP&L Resources' principal subsidiary, PP&L, was incorporated
under the laws of the Commonwealth of Pennsylvania in 1920 and is
an operating public utility providing electric service in central
eastern Pennsylvania. PP&L serves approximately 1.2 million
customers in a 10,000 square mile territory in 29 counties of
central eastern Pennsylvania with a population of approximately
2.6 million persons. This service area has 129 communities with
populations over 5,000, the largest cities of which are
Allentown, Bethlehem, Harrisburg, Hazleton, Lancaster, Scranton,
Wilkes-Barre and Williamsport. PP&L also offers electricity and
other services to retail and wholesale customers throughout
Pennsylvania and neighboring states. PP&L Global engages in
unregulated business activities through worldwide investments in
energy-related projects. PP&L Spectrum, another unregulated
subsidiary, was formed to pursue opportunities to offer energy-
related products and services to PP&L's existing customers and to
others beyond PP&L's service territory. PP&L Resources' offices
are located at Two North Ninth Street, Allentown, Pennsylvania
18101, and its telephone number is (610) 774-5151.
THE COMPANY
The Company is a newly formed Delaware corporation and a
wholly-owned subsidiary of PP&L Resources. The primary business
of the Company is to provide financing for the operations of PP&L
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Resources and its subsidiaries. The Company's offices are
located at Two North Ninth Street, Allentown, Pennsylvania 18101,
and its telephone number is (610) 774-5151.
USE OF PROCEEDS
Except as may otherwise be set forth in the applicable
Prospectus Supplement, the net proceeds to be received by the
Company from the sale of the Debt Securities will be loaned to
PP&L Resources and/or its subsidiaries. PP&L Resources and/or
its subsidiaries are expected to use such proceeds for general
corporate purposes, including investing in unregulated business
activities and to reduce short-term debt incurred to provide
interim financing for such purposes.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to
fixed charges for PP&L Resources for the periods indicated:
Twelve Months
Ended
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June 30, 1997
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Ratio of earnings to
fixed charges . . . . . . . . . . . 3.41
Year Ended December 31,
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1996 1995 1994 1993 1992
---- ---- ---- ---- ----
Ratio of earnings to
fixed charges . . . . 3.45 3.47 2.70 3.31 3.15
DESCRIPTION OF THE DEBT SECURITIES
The following description sets forth certain general terms
and provisions of the Debt Securities to which any Prospectus
Supplement may relate. The particular terms of the Debt
Securities offered by any Prospectus Supplement, and provisions
of such Debt Securities that vary from the general provisions
described below, will be described in such Prospectus Supplement.
The Debt Securities may be issued, from time to time, in one
or more series. Debt Securities, and the guarantee or guarantees
of PP&L Resources relating thereto (the "Guarantee" or
"Guarantees"), will be issued under an Indenture, dated as of
October 1, 1997 (as such indenture may be supplemented or amended
from time to time by various supplemental indentures, including
one or more supplemental indentures relating to the Debt Securities,
the "Indenture"), among the Company, PP&L Resources and The Chase
Manhattan Bank, as trustee (the "Trustee"). A copy of a form of
the Indenture is filed as an exhibit to the Registration
Statement.
The following summaries of certain provisions of the Debt
Securities and the Indenture do not purport to be complete and
are subject to, and are qualified in their entirety by express
reference to, all the provisions of the Indenture, including the
definitions therein of certain terms, and, with respect to any
particular Debt Securities, to the description of the terms
thereof included in any Prospectus Supplement or Pricing
Supplement relating thereto. Wherever particular provisions or
defined terms of the Indenture are referred to herein or in a
Prospectus Supplement, such provisions or defined terms are
incorporated by reference herein or therein, as the case may be.
References to article and section numbers used herein are to
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articles and sections in the Indenture. Certain capitalized
terms used herein are defined in the Indenture.
GENERAL
The Indenture does not limit the aggregate principal amount
of Debt Securities or other debt, which may be issued thereunder
and provides that Debt Securities may be issued thereunder, from
time to time, in one or more series. The Debt Securities and all
other debt securities hereafter issued under the Indenture are
collectively referred to herein as the "Indenture Securities."
The Debt Securities will be unsecured obligations of the
Company, and pursuant to the Guarantees will be unconditionally
guaranteed by PP&L Resources as to payment of principal, premium,
if any, and interest. See "Guarantee of PP&L Resources; Holding
Company Structure."
Reference is made to the applicable Prospectus Supplement
for a description of the following terms of the series of Debt
Securities in respect of which this Prospectus is being
delivered: (i) the title of such Debt Securities; (ii) the limit,
if any, upon the aggregate principal amount of such Debt
Securities; (iii) the date or dates on which the principal of
such Debt Securities will be payable, or the method of
determination thereof; (iv) the rate or rates, or the method of
determination thereof, at which such Debt Securities will bear
interest, if any; the date or dates from which such interest will
accrue; the dates on which such interest will be payable
("Interest Payment Dates"); and the Regular Record Dates, if any,
for the interest payable on such Interest Payment Dates; (v) the
obligation, if any, of the Company to redeem or purchase or repay
such Debt Securities pursuant to any sinking fund or analogous
provisions or at the option of the Holder thereof and the periods
within which or the dates on which, the prices at which and the
terms and conditions upon which such Debt Securities will be
redeemed or purchased or repaid, as the case may be, in whole or
in part, pursuant to such obligation; (vi) the periods within
which or the dates on which, the prices at which and the terms
and conditions upon which such Debt Securities may be redeemed,
if any, in whole or in part, at the option of the Company; (vii)
if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which such Debt Securities will be
issuable; (viii) whether such Debt Securities are to be issued in
whole or in part in the form of one or more global Debt
Securities and, if so, the identity of the depositary for such
global Debt Securities; and (ix) any other terms of such Debt
Securities. (See Section 301.)
GUARANTEE OF PP&L RESOURCES; HOLDING COMPANY STRUCTURE
PP&L Resources will unconditionally guarantee the due and
punctual payment of principal of, premium, if any, and interest
on the Debt Securities, when and as the same become due and
payable, whether at the stated maturity date, by declaration of
acceleration, call for redemption or otherwise, in accordance
with the terms of such Debt Securities and the Indenture. The
Guarantees will remain in effect until the entire principal of,
premium, if any, and interest on the Debt Securities has been
paid in full or otherwise discharged in accordance with the
provisions of the Indenture. (See Article Fourteen.)
PP&L Resources conducts its operations primarily through
PP&L and its other wholly-owned subsidiaries, and substantially
all of PP&L Resources' consolidated assets are held by PP&L and
its other subsidiaries. Accordingly, the cash flow of PP&L
Resources and the consequent ability to service its debt,
including its obligations under the Guarantees, are largely
dependent upon the earnings of PP&L and such other subsidiaries
and the distribution or other payment of such earnings to PP&L
Resources in the form of dividends, loans or advances, and
repayment of loans or advances from PP&L Resources. The
subsidiaries are separate and distinct legal entities and (except
for the Company) have no obligation, contingent or otherwise, to
pay any amounts due pursuant to the Debt Securities or to make
any funds available therefor, whether by dividends, loans or
other payments.
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Because PP&L Resources is a holding company, its obligations
under the Guarantees will be effectively subordinated to all
existing and future indebtedness, trade payables, guarantees and
lease, letter of credit and other obligations of its
subsidiaries. Therefore, PP&L Resources' rights and the rights
of its creditors, including the rights of the holders of the Debt
Securities under the Guarantees, to participate in the assets of
any subsidiary (other than the Company) upon the latter's
liquidation or reorganization will be subject to the prior claims
of such subsidiary's creditors, except to the extent that PP&L
Resources may itself be a creditor with recognized claims against
the subsidiary, in which case the claims of PP&L Resources would
still be effectively subordinate to any security interest in, or
mortgages or other liens on, the assets of such subsidiary and
would be subordinate to any indebtedness of such subsidiary
senior to that held by PP&L Resources. Although certain debt
instruments to which PP&L Resources and its subsidiaries are
parties impose limitations on the incurrence of additional
indebtedness, both PP&L Resources and its subsidiaries retain the
ability to incur substantial additional indebtedness and lease,
letter of credit and other obligations.
PAYMENT OF DEBT SECURITIES; TRANSFERS; EXCHANGES
Except as otherwise provided in the applicable Prospectus
Supplement or a supplement thereto, interest, if any, on each
Debt Security on each Interest Payment Date will be paid by check
mailed to the person in whose name such Debt Security is
registered (the registered holder of any Indenture Security being
herein called a "Holder") as of the close of business on the
regular record date relating to such Interest Payment Date;
provided, however, that interest payable at maturity (whether at
stated maturity, upon redemption or otherwise, hereinafter
"Maturity") will be paid to the person to whom principal is paid.
However, if there has been a default in the payment of interest
on any Debt Security, such defaulted interest will be payable to
the Holder of such Debt Security as of the close of business on a
date selected by the Trustee for the payment of such interest not
more than 15 days and not less than 10 days prior to the date
proposed by the Company or PP&L Resources for payment of such
defaulted interest or in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such
Debt Securities are listed for trading, if the Trustee deems such
manner of payment practicable. (See Section 307.)
Except as otherwise provided in the applicable Prospectus
Supplement or a supplement thereto, principal of and premium, if
any, and interest, if any, on the Debt Securities at Maturity
will be payable upon presentation of the Debt Securities at the
office of The Chase Manhattan Bank in New York, New York, as
Paying Agent for the Company and PP&L Resources. Any other
Paying Agent initially designated by the Company for the Debt
Securities of a particular series will be named in the applicable
Prospectus Supplement. The Company or PP&L Resources may change
the place of payment on the Debt Securities, and may remove any
Paying Agent and may appoint one or more additional Paying Agents
(including the Company, PP&L Resources or any affiliate of either
of them), all in their discretion. (See Section 602.)
Except as otherwise provided in the applicable Prospectus
Supplement or a supplement thereto, the transfer of Debt
Securities may be registered, and Debt Securities may be
exchanged for other Debt Securities of authorized denominations
and of like tenor and aggregate principal amount and having
Guarantees endorsed thereon, at the office of The Chase Manhattan
Bank, as Security Registrar for the Debt Securities. The Company
may change the place for registration of transfer of the Debt
Securities, and may remove any Security Registrar and appoint one
or more additional Security Registrars (including the Company,
PP&L Resources or any affiliate of either of them), all in its
discretion. (See Sections 305 and 602.) Except as otherwise
provided in the applicable Prospectus Supplement or a supplement
thereto, no service charge will be made for any transfer or
exchange of the Debt Securities, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. The Company
will not be required to execute or provide for the registration
of transfer of or the exchange of (a) Debt Securities during a
period of 15 days prior to giving any notice of redemption or (b)
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any Debt Security selected for redemption in whole or in part,
except the unredeemed portion of any Debt Security being redeemed
in part. (See Section 305.)
REDEMPTION
Any terms for the optional or mandatory redemption of Debt
Securities will be set forth in the applicable Prospectus
Supplement or a Pricing Supplement thereto. Except as shall
otherwise be provided in the applicable Prospectus Supplement or
a Pricing Supplement thereto, and except with respect to Debt
Securities redeemable at the option of the Holder, Debt
Securities will be redeemable only upon notice by mail not less
than 30 nor more than 60 days prior to the date fixed for
redemption and, if less than all of the Debt Securities of any
series or any tranche thereof are to be redeemed, the particular
Debt Securities will be selected by the Trustee by such method as
shall be provided for such particular series or tranche, or in
the absence of any such provision, by such method of random
selection as the Trustee deems fair and appropriate. (See
Sections 403 and 404.)
Any notice of redemption at the option of the Company may
state that such redemption shall be conditional upon the receipt
by the Paying Agent, on or prior to the date fixed for such
redemption, of money sufficient to pay the principal of and
premium, if any, and interest on such Debt Securities and that if
such money has not been so received, such notice will be of no
force or effect and the Company will not be required to redeem
such Debt Securities (See Section 404.)
EVENTS OF DEFAULT
Each of the following events constitutes an "Event of
Default" under the Indenture with respect to each series of
Indenture Securities thereunder:
(a) default in the payment of any interest on any Indenture
Security of such series when it becomes due and payable and
continuance of such default for a period of 30 days;
(b) default in the payment of principal or premium, if any,
on any Indenture Security of such series when it becomes due and
payable;
(c) default in the performance of, or breach of, any
covenant or warranty of the Company or PP&L Resources in the
Indenture (other than a covenant or warranty a default in the
performance of which or breach of which is dealt with elsewhere
under this paragraph or which has been expressly included in the
Indenture solely for the benefit of one or more series of
Indenture Securities other than such Indenture Securities), and
the continuance of such default or breach for a period of 90 days
after written notice to the Company and PP&L Resources by the
Trustee, or to the Company, PP&L Resources and the Trustee by the
Holders of at least 25% in principal amount of the Indenture
Securities of such series Outstanding under the Indenture as
provided in the Indenture specifying such default or breach and
requiring it to be remedied, unless the Trustee, or the Trustee
and the Holders of a principal amount of Indenture Securities of
such series not less than the principal amount of Indenture
Securities the Holders of which gave such notice, as the case may
be, agree in writing to an extension of such period prior to its
expiration; provided, however, that the Trustee, or the Trustee
and such Holders, as the case may be, will be deemed to have
agreed to an extension of such period if corrective action is
initiated by the Company or PP&L Resources within such period and
is being diligently pursued;
(d) except as provided by the terms of the Indenture, the
Indenture Securities of such series and the Guarantees on such
Indenture Securities, the cessation of effectiveness of the
Guarantee endorsed on an Indenture Security of such series or the
finding by any judicial proceeding that the Guarantee endorsed on
an Indenture Security of such series is unenforceable or invalid
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or the denial or disaffirmation by PP&L Resources of its
obligations under the Guarantee endorsed on an Indenture Security
of such series; or
(e) certain events relating to the reorganization,
bankruptcy or insolvency of the Company or PP&L Resources or
appointment of a receiver or trustee for the property of the
Company or PP&L Resources; and
(f) any other Event of Default specified with respect to
Indenture Securities of such series. (See Section 801.)
No Event of Default with respect to the Debt Securities
necessarily constitutes an Event of Default with respect to the
Indenture Securities of any other series issued under the
Indenture.
REMEDIES
If an Event of Default occurs and is continuing with respect
to any series of Indenture Securities, then either the Trustee or
the Holders of not less than 25% in principal amount of the
Outstanding Indenture Securities of such series may declare the
principal amount (or if the Indenture Securities of such series
are discount securities, such portion of the principal amount as
may be specified in the applicable Prospectus Supplement) of all
of the Indenture Securities of such series to be due and payable
immediately; provided, however, that if an Event of Default
occurs and is continuing with respect to more than one series of
Indenture Securities, the Trustee or the Holders of not less than
25% in aggregate principal amount of the Outstanding Indenture
Securities of all such series, considered as one class, may make
such declaration of acceleration, and not the Holders of the
Indenture Securities of any one of such series.
At any time after the declaration of acceleration with
respect to the Indenture Securities of any series has been made
and before a judgment or decree for payment of the money due has
been obtained by the Trustee as provided in the Indenture, such
declaration and its consequences will, without further act, be
deemed to have been rescinded and annulled, if
(a) the Company or PP&L Resources has paid or deposited
with the Trustee a sum sufficient to pay
(1) all overdue interest on all Indenture Securities
of such series then Outstanding;
(2) the principal of and premium, if any, on any
Indenture Securities of such series which have become due
otherwise than by such declaration of acceleration and interest
thereon at the rate or rates prescribed therefor in such
Indenture Securities;
(3) interest upon overdue interest at the rate or
rates prescribed therefor in such Indenture Securities, to the
extent that payment of such interest is lawful; and
(4) all amounts due to the Trustee under the
Indenture;
and
(b) all Events of Default with respect to the Indenture
Securities of such series, other than the nonpayment of the
principal of the Indenture Securities of such series which has
become due solely by such declaration of acceleration, have been
cured or waived as provided in the Indenture. (See Section 802.)
For more information as to waiver of defaults, see "--Waiver."
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If an Event of Default with respect to the Indenture
Securities of any series occurs and is continuing, the Holders of
a majority in principal amount of the Outstanding Indenture
Securities of such series will have the right to direct the time,
method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power
conferred on the Trustee, with respect to the Indenture
Securities of such series; provided, however, that if an Event of
Default occurs and is continuing with respect to more than one
series of Indenture Securities, the Holders of a majority in
aggregate principal amount of the Outstanding Indenture
Securities of all such series, considered as one class, will have
the right to make such direction, and not the Holders of the
Indenture Securities of any one of such series; and provided,
further, that (a) such direction will not be in conflict with any
rule of law or with the Indenture and could not involve the
Trustee in personal liability in circumstances where indemnity
would not, in the Trustee's sole discretion, be adequate and (b)
the Trustee may take any other action it deems proper which is
not inconsistent with such direction. (See Sections 812 and 903.)
The Indenture provides that no Holder of any Indenture Security
will have any right to institute any proceeding, judicial or
otherwise, with respect to the Indenture for the appointment of a
receiver or for any other remedy thereunder unless (a) such
Holder has previously given to the Trustee written notice of a
continuing Event of Default; (b) the Holders of 25% in aggregate
principal amount of the Outstanding Indenture Securities of all
series in respect of which an Event of Default has occurred and
is continuing, considered as one class, have made written request
to the Trustee to institute proceedings in respect of such Event
of Default and have offered the Trustee reasonable indemnity
against costs and liabilities incurred in complying with such
request; and (c) for sixty days after receipt of such notice, the
Trustee has failed to institute any such proceeding and no
direction inconsistent with such request has been given to the
Trustee during such sixty-day period by the Holders of a majority
in aggregate principal amount of Outstanding Indenture Securities
of all series in respect of which an Event of Default has
occurred and is continuing, considered as one class.
Furthermore, no Holder will be entitled to institute any such
action if and to the extent that such action would disturb or
prejudice the rights of other Holders. (See Sections 807 and
903.) Notwithstanding that the right of a Holder to institute a
proceeding with respect to the Indenture is subject to certain
conditions precedent, each Holder has an absolute and
unconditional right to receive payment of principal and premium,
if any, and interest when due and to institute suit for the
enforcement of any such payment and such rights may not be
impaired without the consent of such Holder. (See Sections 807
and 808.) The Indenture provides that the Trustee is required to
give the Holders of the Indenture Securities notice of any
default under the Indenture to the extent required by the Trust
Indenture Act, unless such default has been cured or waived;
except that in the case of an Event of Default of the character
specified above in clause (c) under "Events of Default," no such
notice shall be given to such Holders until at least 75 days
after the occurrence thereof. (See Section 902.) The Trust
Indenture Act currently permits the Trustee to withhold notices
of default (except for certain payment defaults) if the Trustee
in good faith determines the withholding of such notice to be in
the interests of the Holders.
The Company and PP&L Resources will be required to furnish
annually to the Trustee a statement as to the compliance by the
Company with all conditions and covenants under the Indenture.
(See Section 605.)
WAIVER
The Holders of a majority in aggregate principal amount of
the Outstanding Indenture Securities of any series may waive on
behalf of the Holders of all Indenture Securities of such series
any past default under the Indenture, except a default in the
payment of principal, premium, if any, or interest or with respect
to compliance with certain covenants and provisions of the
Indenture which cannot be amended without the consent of the
Holder of each Outstanding Indenture Security of such series
affected. (See Section 813.)
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Compliance with certain covenants in the Indenture or
otherwise provided with respect to Indenture Securities may be
waived by the Holders of a majority in aggregate principal amount
of the Outstanding Indenture Securities affected, considered as
one class. (See Section 606.)
COVENANTS; CONSOLIDATION, MERGER, ETC.
Subject to the provisions described in the next paragraph,
each of the Company and PP&L Resources will do or cause to be
done all things necessary to preserve and keep in full force and
effect its corporate existence. (See Section 604.)
Neither the Company nor PP&L Resources will consolidate with
or merge into any other Person (which term includes, for purposes
of the Indenture, any corporation, partnership, limited liability
company, joint venture, trust or other unincorporated
organization) or convey, transfer or lease its properties and
assets substantially as an entirety to any Person unless (a) the
Person formed by such consolidation or into which the Company or
PP&L Resources, as the case may be, is merged or the Person which
acquires by conveyance or transfer, or which leases, the property
and assets of the Company or PP&L Resources, as the case may be,
substantially as an entirety is a Person organized and existing
under the laws of the United States of America or any State
thereof or the District of Columbia, and expressly assumes, by
supplemental indenture, the due and punctual payment of the
principal of and premium, if any, and interest, if any, on all
the Outstanding Indenture Securities (or the Guarantees endorsed
thereon, as the case may be,) and the performance of all of the
covenants of the Company or PP&L Resources, as the case may be,
under the Indenture, and (b) immediately after giving effect to
such transactions, no Event of Default, and no event which after
notice or lapse of time or both would become an Event of Default,
will have occurred and be continuing. (See Section 1101.)
Neither the Indenture or the Guarantee contains any
financial or other similar restrictive covenants.
MODIFICATION OF INDENTURE
Without the consent of any Holders of Indenture Securities,
the Company, PP&L Resources and the Trustee may enter into one or
more supplemental indentures for any of the following purposes:
(a) to evidence the succession of another Person to
the Company or PP&L Resources, as the case may be, and the
assumption by any such successor of the covenants of the
Company or PP&L Resources, as the case may be, in the
Indenture and the Indenture Securities or the Guarantees
endorsed thereon; or
(b) to add one or more covenants of the Company or
PP&L Resources or other provisions for the benefit of the
Holders of all or any series of Indenture Securities or any
tranche thereof, or to surrender any right or power
conferred upon the Company or PP&L Resources (and if such
covenants are to be for the benefit of less than all series
of Indenture Securities, stating that such covenants are
expressly being included solely for the benefit of such
series); or
(c) to add any additional Events of Default with
respect to all or any series of Outstanding Indenture
Securities (and if such additional Events of Default are to
be for the benefit of less than all series of Indenture
Securities, stating that such additional Events of Default
are expressly being included solely for the benefit of such
series); or
(d) to change or eliminate any provision of the
Indenture or to add any new provision to the Indenture;
provided that if such change, elimination or addition will
10
<PAGE>
adversely affect the interests of the Holders of Indenture
Securities of any series or tranche Outstanding on the date
of such supplemental indenture in any material respect, such
change, elimination or addition will become effective with
respect to such series or tranche only with the consent of
the Holders of the Indenture Securities of such series or
tranche pursuant to the applicable provisions of the
Indenture or when there is no Indenture Security of such
series or tranche remaining Outstanding under the Indenture;
or
(e) to provide collateral security for the Indenture
Securities; or
(f) to establish the form or terms of Indenture
Securities of any series or tranche or any Guarantees as
permitted by the Indenture; or
(g) to provide for the authentication and delivery of
bearer securities and coupons appertaining thereto
representing interest, if any, thereon and 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 any matters incidental
thereto;
(h) to evidence and provide for the acceptance of
appointment of a separate or successor Trustee under the
Indenture with respect to the Indenture Securities of one or
more series and to add to or change any of the provisions of
the Indenture as shall be necessary to provide for or
facilitate the administration of the trusts under the
Indenture by more than one trustee; or
(i) to provide for the procedures required to permit
the utilization of a noncertificated system of registration
for any series or tranche of Indenture Securities; or
(j) to change any place or places where (1) the
principal of and premium, if any, and interest, if any, on
Indenture Securities of any series, or any tranche thereof,
shall be payable, (2) Indenture Securities of any series, or
any tranche thereof, may be surrendered for registration of
transfer, (3) Indenture Securities of any series, or any
tranche thereof, may be surrendered for exchange and (4)
notices and demands to or upon the Company or PP&L Resources
in respect of the Indenture Securities of any series, or any
tranche thereof, and the Indenture may be served; or
(k) to cure any ambiguity, defect or inconsistency or
to make any other changes or to add other provisions with
respect to matters and questions arising under the
Indenture, provided such other changes shall not adversely
affect the interests of the Holders of Indenture Securities
of any series or tranche in any material respect. (See
Section 1201.)
Without limiting the generality of the foregoing, if the
Trust Indenture Act is amended after the date the Indenture was
originally executed in such a way as to require changes to the
Indenture or the incorporation therein of additional provisions
or so as to permit changes to, or the elimination of, provisions
which, at the date the Indenture was originally executed or at
any time thereafter, were required by the Trust Indenture Act to
be contained in the Indenture, the Indenture will be deemed to
have been amended so as to conform to such amendment or to effect
such changes or elimination, and the Company, PP&L Resources and
the Trustee may, without the consent of any Holders, enter into
one or more supplemental indentures to effect or evidence such
amendment.
Except as provided above, the consent of the Holders of not
less than a majority in aggregate principal amount of the
Indenture Securities of all series then Outstanding under the
Indenture, considered as one class, is required for the purpose
of adding any provisions to, or changing in any manner or
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<PAGE>
eliminating any of the provisions of, the Indenture pursuant to
an indenture or supplemental indenture; provided, however, that
if less than all of the series of Outstanding Indenture
Securities are directly affected by a proposed supplemental
indenture, then the consent only of the Holders of a majority in
aggregate principal amount of the Outstanding Indenture
Securities of all series so directly affected, considered as one
class, will be required; and provided, further, that if the
Indenture Securities of any series have been issued in more than
one tranche and if the proposed supplemental indenture directly
affects the rights of the Holders of Indenture Securities of one
or more, but less than all, of such tranches, then the consent
only of the Holders of a majority in aggregate principal amount
of the Outstanding Indenture Securities of all tranches so
directly affected, considered as one class, will be required; and
provided, further, that no such amendment or modification may,
without the consent of the Holder of each Outstanding Indenture
Security directly affected thereby, (a) change the stated
maturity of the principal of, or any installment of principal of
or interest on, any Indenture Security (other than pursuant to
the terms thereof), 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 security that
would be due and payable upon a declaration of acceleration or
maturity or change the coin or currency (or other property) in
which any Indenture Security or any premium or the interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the stated maturity
thereof (or, in the case of redemption, on or after the
redemption date), (b) reduce the percentage in principal amount
of the Outstanding Indenture Securities of any series or tranche
the consent of the Holders of which is required for any
supplemental indenture or waiver of compliance with any provision
of the Indenture or any default thereunder and its consequences
or to reduce the requirements for quorum and voting under the
Indenture or (c) modify certain of the provisions in the
Indenture relating to supplemental indentures, waivers of certain
covenants and waivers of past defaults.
A supplemental indenture which changes or eliminates any
covenant or other provision of the Indenture which has expressly
been included solely for the benefit of Holders of, or which is
to remain in effect only so long as there shall be Outstanding,
Indenture Securities of one or more particular series or one or
more tranches thereof, or which modifies the rights of the
Holders of Indenture Securities of such series or tranches with
respect to such covenant or other provision, will be deemed not
to affect the rights under the Indenture of the Holders of
Indenture Securities of any other series or tranche. (See Section
1202.)
The Indenture provides that in determining whether the
Holders of the requisite principal amount of the Outstanding
Indenture Securities have given or taken any request, demand,
authorization, direction, notice, consent, waiver or other action
under the Indenture as of any date or are present at a meeting of
Holders for quorum purposes, certain Indenture Securities,
including those for whose payment or redemption money has been
deposited or set aside in trust for the Holders as described
under "Satisfaction and Discharge" below, will not be deemed to
be Outstanding for purposes of the Indenture (See Section 101.)
The Company or PP&L Resources will be entitled to set any
day as a record date for the purpose of determining the Holders
of Outstanding Indenture Securities of any series entitled to
give or take any request, demand, authorization, direction,
notice, consent, waiver or other action under the Indenture, in
the manner and subject to the limitations provided in the
Indenture. In certain circumstances, the Trustee also will be
entitled to set a record date for action by Holders. If a record
date is set for any action to be taken by Holders of particular
Indenture Securities, such action may be taken only by persons
who are Holders of such Indenture Securities on the record date.
(See Section 104.)
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SATISFACTION AND DISCHARGE
Any Indenture Securities or any portion of the principal
amount thereof will be deemed to have been paid for purposes of
the Indenture, and at the Company's election, the entire
indebtedness of the Company and PP&L Resources in respect thereof
will be satisfied and discharged, if there shall have been
irrevocably deposited with the Trustee or any Paying Agent (other
than the Company or PP&L Resources), in trust: (a) money in the
amount which will be sufficient, or (b) in the case of a deposit
made prior to the maturity of such Indenture Securities,
Government Obligations (as defined below), which do not contain
provisions permitting the redemption or other prepayment thereof
at the option of the issuer thereof, the principal of and the
interest on which when due, without any regard to reinvestment
thereof, will provide monies which, together with the money, if
any, deposited with or held by the Trustee or such Paying Agent,
will be sufficient, or (c) a combination of (a) and (b) which
will be sufficient, to pay when due the principal of and premium,
if any, and interest due and to become due on such Indenture
Securities or portions thereof on and prior to the maturity
thereof. (See Section 701.) For this purpose, Government
Obligations include (a) direct obligations of the United States
of America or of an agency or instrumentality of the United
States of America where the payments thereunder are
unconditionally guaranteed as a full faith and credit obligation
by the United States of America or (b) depository receipts issued
by a bank with respect to any such obligations or in any specific
interest or principal payments due in respect thereof.
The Indenture will be deemed to have been satisfied and
discharged when no Indenture Securities remain Outstanding
thereunder and the Company or PP&L Resources has paid or caused
to be paid all other sums payable by the Company or PP&L
Resources under the Indenture. (See Section 702.)
All moneys paid by the Company or PP&L Resources to the
Trustee or any Paying Agent for the payment of the principal of
or any premium or interest on any Debt Security which remain
unclaimed at the end of two years after such principal, premium
or interest has become due and payable will be paid to or upon
the order of the Company, and the Holder of such Debt Security
thereafter may look only to the Company or PP&L Resources for
payment thereof. (See Section 603.)
RESIGNATION OF THE TRUSTEE
The Trustee may resign at any time by giving written notice
thereof to the Company and PP&L Resources or may be removed at
any time by Act of the Holders of a majority in principal amount
of the then Outstanding Debt Securities of any series delivered
to the Trustee, the Company and PP&L Resources. No resignation
or removal of the Trustee and no appointment of a successor
trustee will become effective until the acceptance of appointment
by a successor trustee in accordance with the requirements of the
Indenture. So long as no Event of Default or event which, after
notice or lapse of time, or both, would become an Event of
Default has occurred and is continuing and except with respect to
a Trustee appointed by Act of the Holders, if each of the Company
and PP&L Resources has delivered to the Trustee a resolution of
its Board of Directors appointing a successor trustee and such
successor has accepted such appointment in accordance with the
terms of the Indenture, the Trustee will be deemed to have
resigned and the successor will be deemed to have been appointed
as trustee in accordance with the Indenture. (Section 910).
CERTAIN PENNSYLVANIA TAX MATTERS
In the opinion of Michael A. McGrail, Esq., Senior Counsel
of PP&L, Debt Securities owned by individuals residing in
Pennsylvania are subject to the 4 mills ($4.00 on each $1,000 of
principal amount) Pennsylvania corporate loans tax. Such tax
will be withheld from interest payments to such individuals.
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Such counsel for PP&L is also of the opinion that the Debt
Securities are exempt from existing personal property taxes in
Pennsylvania.
THE TRUSTEE
The Chase Manhattan Bank has at various times in the
ordinary course of business made loans to PP&L Resources and
PP&L, and acts as Administrative Agent with respect to the
current revolving credit facilities of PP&L and PP&L Resources.
The Chase Manhattan Bank acts as trustee with respect to junior
subordinated deferrable interest debentures of PP&L, acts as
guarantee trustee and property trustee with respect to trust
originated preferred securities and common securities of PP&L
Capital Trust I and PP&L Capital Trust II, affiliates of the
Company and PP&L Resources, and Chase Manhattan Bank Delaware, an
affiliate of the Trustee, also acts as Delaware trustee with
respect to the trust originated preferred securities and common
securities.
EXPERTS
The consolidated financial statements of PP&L Resources as
of December 31, 1996 and 1995, and for the two years then ended,
incorporated in this Prospectus by reference to the Annual Report
on Form 10-K of PP&L Resources for the year ended December 31,
1996, have been so incorporated in reliance on the report (which
contains an explanatory paragraph relating to a reorganization
pursuant to which PP&L Resources became the parent of PP&L) of
Price Waterhouse LLP, independent accountants, given on the
authority of said firm as experts in auditing and accounting.
The consolidated financial statements of PP&L (prior to
restatement in connection with the reorganization referred to
above and not presented separately in the Annual Report
hereinafter referred to), and related financial statement
schedule as of December 31, 1994 and for the year ended December
31, 1994, incorporated in this Prospectus by reference from PP&L
Resources' 1996 Annual Report on Form 10-K have been audited by
Deloitte & Touche LLP, independent auditors, as stated in their
report which is incorporated herein by reference, and have been
so incorporated in reliance upon such report given upon the
authority of that firm as experts in accounting and auditing.
Statements made in the Incorporated Documents as to matters
of law and legal conclusions have been reviewed by Michael A.
McGrail, Esq., Senior Counsel of PP&L, and have been made in
reliance upon his authority as an expert.
VALIDITY OF THE DEBT SECURITIES AND THE GUARANTEES
The validity of the Guarantees will be passed upon for PP&L
Resources by Michael A. McGrail, Esq., Senior Counsel of PP&L and
Reid & Priest LLP, New York, New York, counsel to PP&L Resources.
The validity of the Debt Securities will be passed upon for the
Company by Reid & Priest LLP, as counsel to the Company. The
validity of the Debt Securities and the Guarantees will be passed
upon for any underwriters or agents by Sullivan & Cromwell, New
York, New York. As to matters involving the law of the
Commonwealth of Pennsylvania, Reid & Priest LLP and Sullivan &
Cromwell will rely on the opinion of Mr. McGrail.
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PLAN OF DISTRIBUTION
The Company may sell Debt Securities to one or more
underwriters for public offering and sale by them or may sell
Debt Securities to purchasers directly or through agents. Any
underwriter or agent involved in the offer and sale of Debt
Securities will be named in an applicable Prospectus Supplement.
Underwriters may offer and sell Debt Securities at a
fixed price or prices, which may be changed, or from time to time
at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices.
In connection with the sale of Debt Securities, underwriters may
be deemed to have received compensation from the Company in the
form of underwriting discounts or commissions and may also receive
commissions from purchasers of Debt Securities for whom they may
act as agent. Underwriters may sell Debt Securities to or through
dealers, and such dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters and/or
commissions (which may be changed from time to time) from the
purchasers for whom they may act as agent.
The Debt Securities may also be sold from time to time
either by the Company directly or through agents designated by
the Company. Any agent involved in the offer or sale of any Debt
Securities in respect to which this Prospectus is delivered will
be named, and any commissions payable by the Company to such
agent will be set forth in the Prospectus Supplement relating
thereto. Unless otherwise indicated in the Prospectus
Supplement, any such agent will be acting on a reasonable
efforts basis for the period of its appointment.
Any underwriting compensation paid by the Company to
underwriters or agents in connection with the offering of Debt
Securities, and any discounts, concessions or commissions allowed
by underwriters to participating dealers, will be set forth in an
applicable Prospectus Supplement. Underwriters, dealers and
agents participating in the distribution of the Debt Securities
may be deemed to be underwriters, and any discounts and
commissions received by them and any profit realized by them on
resale of the Debt Securities may be deemed to be underwriting
discounts and commissions, under the Securities Act.
Underwriters, dealers and agents may be entitled, under
agreements with the Company and PP&L Resources, to
indemnification against and contribution toward certain civil
liabilities, including liabilities under the Securities Act, and
to reimbursement by the Company or PP&L Resources for certain
expenses. Unless otherwise set forth in the Prospectus
Supplement relating thereto, the obligations of the underwriters
to purchase Debt Securities will be subject to certain conditions
precedent, and the underwriters will be obligated to purchase all
the Debt Securities if any are purchased.
The Debt Securities may also be sold directly by the Company
to institutional investors or others who may be deemed to be
underwriters within the meaning of the Securities Act with
respect to any resale thereof. The terms of any such sales will
be described in the Prospectus Supplement relating thereto.
Unless otherwise provided in a Prospectus Supplement, the
Debt Securities will not be listed on any securities exchange.
The Debt Securities will be a new issue of securities with no
established trading market. Any underwriters to whom Debt
Securities are sold by the Company for public offering and sale
may make a market in such Debt Securities, but such underwriters
will not be obligated to do so and may discontinue any market
making at any time without notice. No assurance can be given as
to the liquidity of or the trading markets for any Debt
Securities.
Certain of the underwriters or agents and their associates
may be customers of, engage in transactions with or perform
services for the Company or PP&L Resources or their affiliates in
the ordinary course of business.
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PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Securities and Exchange Commission registration fee . $ 121,213
Printing expenses . . . . . . . . . . . . . . . . . . 60,000
Trustee fees and expenses . . . . . . . . . . . . . . 7,000
Legal fees and expenses . . . . . . . . . . . . . . . 230,000
Accounting fees and expenses . . . . . . . . . . . . 30,000
Blue Sky fees and expenses . . . . . . . . . . . . . 7,500
Rating Agency fees . . . . . . . . . . . . . . . . . 155,000
Miscellaneous . . . . . . . . . . . . . . . . . . . . 39,287
-------
Total . . . . . . . . . . . . . . . . . . . . . 650,000
=======
___________________
All of the above except the Securities and Exchange Commission
registration fee are estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 7.01 of the Bylaws of PP&L Resources provides:
(a) RIGHT TO INDEMNIFICATION. Except as prohibited by
law, every director and officer of the corporation shall be
entitled as of right to be indemnified by the corporation
against reasonable expense and any liability paid or
incurred by such person in connection with any actual or
threatened claim, action, suit or proceeding, civil,
criminal, administrative, investigative or other, whether
brought by or in the right of the corporation or otherwise,
in which he or she may be involved, as a party or otherwise,
by reason of such person being or having been a director or
officer of the corporation or by reason of the fact that
such person is or was serving at the request of the
corporation as a director, officer, employee, fiduciary or
other representative of another corporation, partnership,
joint venture, trust, employee benefit plan or other entity
(such claim, action, suit or proceeding hereinafter being
referred to as "action"). Such indemnification shall include
the right to have expenses incurred by such person in
connection with an action paid in advance by the corporation
prior to final disposition of such action, subject to such
conditions as may be prescribed by law. Persons who are not
directors or officers of the corporation may be similarly
indemnified in respect of service to the corporation or to
another such entity at the request of the corporation to the
extent the board of directors at any time denominates such
person as entitled to the benefits of this Section 7.01. As
used herein, "expense" shall include fees and expenses of
counsel selected by such persons; and "liability" shall
include amounts of judgments, excise taxes, fines and
penalties, and amounts paid in settlement.
(b) RIGHT OF CLAIMANT TO BRING SUIT. If a claim under
paragraph (a) of this Section 7.01 is not paid in full by
the corporation within thirty days after a written claim has
been received by the corporation, the claimant may at any
time thereafter bring suit against the corporation to
recover the unpaid amount of the claim, and, if successful
in whole or in part, the claimant shall also be entitled to
be paid the expense of prosecuting such claim. It shall be a
defense to any such action that the conduct of the claimant
was such that under Pennsylvania law the corporation would
II-1
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be prohibited from indemnifying the claimant for the amount
claimed, but the burden of proving such defense shall be on
the corporation. Neither the failure of the corporation
(including its board of directors, independent legal counsel
and its shareholders) to have made a determination prior to
the commencement of such action that indemnification of the
claimant is proper in the circumstances because the conduct
of the claimant was not such that indemnification would be
prohibited by law, nor an actual determination by the
corporation (including its board of directors, independent
legal counsel or its shareholders) that the conduct of the
claimant was such that indemnification would be prohibited
by law, shall be a defense to the action or create a
presumption that the conduct of the claimant was such that
indemnification would be prohibited by law.
(c) INSURANCE AND FUNDING. The corporation may
purchase and maintain insurance to protect itself and any
person eligible to be indemnified hereunder against any
liability or expense asserted or incurred by such person in
connection with any action, whether or not the corporation
would have the power to indemnify such person against such
liability or expense by law or under the provisions of this
Section 7.01. The corporation may create a trust fund, grant
a security interest, cause a letter of credit to be issued
or use other means (whether or not similar to the foregoing)
to ensure the payment of such sums as may become necessary
to effect indemnification as provided herein.
(d) NON-EXCLUSIVITY; NATURE AND EXTENT OF RIGHTS. The
right of indemnification provided for herein (1) shall not
be deemed exclusive of any other rights, whether now
existing or hereafter created, to which those seeking
indemnification hereunder may be entitled under any
agreement, bylaw or charter provision, vote of shareholders
or directors or otherwise, (2) shall be deemed to create
contractual rights in favor of persons entitled to
indemnification hereunder, (3) shall continue as to persons
who have ceased to have the status pursuant to which they
were entitled or were denominated as entitled to
indemnification hereunder and shall inure to the benefit of
the heirs and legal representatives of persons entitled to
indemnification hereunder and (4) shall be applicable to
actions, suits or proceedings commenced after the adoption
hereof, whether arising from acts or omissions occurring
before or after the adoption hereof. The right of
indemnification provided for herein may not be amended,
modified or repealed so as to limit in any way the
indemnification provided for herein with respect to any acts
or omissions occurring prior to the effective date of any
such amendment, modification or repeal.
Directors and officers of PP&L Resources may also be
indemnified in certain circumstances pursuant to the statutory
provisions of general application contained in Pennsylvania law.
Furthermore, PP&L Resources, as well as its directors and
officers, may be entitled to indemnification by any underwriters
named in a Prospectus Supplement against certain civil
liabilities under the Securities Act of 1933 under agreements
entered into between PP&L Resources and such underwriters.
PP&L Resources presently has insurance policies which, among
other things, include liability insurance coverage for officers
and directors and officers and directors of PP&L Resources'
subsidiaries, including the Company, under which such officers
and directors are covered against any "loss" by reason of payment
of damages, judgments, settlements and costs, as well as charges
and expenses incurred in the defense of actions, suits or
proceedings. "Loss" is specifically defined to exclude fines and
penalties, as well as matters deemed uninsurable under the law
pursuant to which the insurance policy shall be construed. The
policies also contain other specific exclusions, including
illegally obtained personal profit or advantage, and dishonesty.
II-2
<PAGE>
Article VI of the By-Laws of PP&L Capital Funding, Inc. provides:
SECTION 6.1. RIGHT TO INDEMNIFICATION. The
Corporation shall indemnify and hold harmless, to the
fullest extent permitted by applicable law as it presently
exists or may hereafter be amended, any person (an
"Indemnitee") who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or
investigative (a "proceeding"), by reason of the fact that
he, or a person for whom he is the legal representative, is
or was a director or officer of the Corporation or, while a
director or officer of the Corporation, is or was serving at
the written request of the Corporation as a director,
officer, employee or agent of another corporation or of a
partnership, joint venture, trust, enterprise or nonprofit
entity, including service with respect to employee benefit
plans, against all liability and loss suffered and expenses
(including attorneys' fees) reasonably incurred by such
Indemnitee. Notwithstanding the preceding sentence, except
as otherwise provided in Section 6.3, the Corporation shall
be required to indemnify an Indemnitee in connection with a
proceeding (or part thereof) commenced by such Indemnitee
only if the commencement of such proceeding (or part
thereof) by the Indemnitee was authorized by the Board of
Directors.
SECTION 6.2. PREPAYMENT OF EXPENSES. The Corporation
shall pay the expenses (including attorneys' fees) incurred
by an Indemnitee in defending any proceeding in advance of
its final disposition, provided, however, that, to the
-------- -------
extent required by law, such payment of expenses in advance
of the final disposition of the proceeding shall be made
only upon receipt of an undertaking by the Indemnitee to
repay all amounts advanced if it should be ultimately
determined that the Indemnitee is not entitled to be
indemnified under this Article VI or otherwise.
SECTION 6.3. CLAIMS. If a claim for indemnification
or payment of expenses under this Article VI is not paid in
full within sixty (60) days after a written claim therefor
by the Indemnitee has been received by the Corporation, the
Indemnitee may file suit to recover the unpaid amount of
such claim and, if successful in whole or in part, shall be
entitled to be paid the expense of prosecuting such claim.
In any such action the Corporation shall have the burden of
providing that the Indemnitee is not entitled to the
requested indemnification or payment of expenses under
applicable law.
SECTION 6.4. NONEXCLUSIVITY OF RIGHTS. The rights
conferred on any Indemnitee by this Article VI shall not be
exclusive of any other rights which such Indemnitee may have
or hereafter acquire under any statute, provision of the
certificate of incorporation, these by-laws, agreement, vote
of stockholders or disinterested directors or otherwise.
SECTION 6.5. OTHER SOURCES. The Corporation's
obligation, if any, to indemnify or to advance expenses to
any Indemnitee who was or is serving at its request as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust, enterprise or nonprofit
entity shall be reduced by any amount such Indemnitee may
collect as indemnification or advancement of expenses from
such other corporation, partnership, joint venture, trust,
enterprise or non-profit enterprise.
SECTION 6.6. AMENDMENT OR REPEAL. Any repeal or
modification of the foregoing provisions of this Article VI
shall not adversely affect any right or protection hereunder
of any Indemnitee in respect of any act or omission
occurring prior to the time of such repeal of modification.
II-3
<PAGE>
SECTION 6.7. OTHER INDEMNIFICATION AND PREPAYMENT OF
EXPENSES. This Article VI shall not limit the right of the
Corporation, to the extent and in the manner permitted by
law, to indemnify and to advance expenses to persons other
than Indemnitees when and as authorized by appropriate
corporate action.
Article 7 of the Certificate of Incorporation of PP&L
Capital Finding, Inc. provides:
The Corporation shall indemnify to the full extent
authorized by law any person made or threatened to be made a
party to an action or proceeding whether criminal, civil,
administrative or investigative, by reason of the fact that
he, his testator or intestate is or was a director or
officer of the Corporation or serves or served any other
enterprise as a director or officer at the request of the
Corporation or any predecessor of the Corporation. No
director of the Corporation shall be personally liable to
the Corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director of the Corporation,
except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders; (ii)
for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; (iii)
under Section 174 of the Delaware General Corporation Law;
or (iv) for any transaction from which the director derived
an improper personal benefit.
Directors and officers of the Company may also be
indemnified in certain circumstances pursuant to the statutory
provisions of general application contained in Delaware law.
Furthermore, the Company, as well as its directors and officers,
may be entitled to indemnification by any underwriters named in a
Prospectus Supplement against certain civil liabilities under the
Securities Act of 1993 under agreements entered into between the
Company and such underwriters.
ITEM 16. EXHIBITS.
Reference is made to the Exhibit Index filed herewith at
page II-8, such Exhibit Index being incorporated in this Item 16
by reference.
ITEM 17. UNDERTAKINGS.
The undersigned registrants hereby undertake:
(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 dated 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
II-4
<PAGE>
more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration
Statement; and
(iii) to include any material information with
respect to the plan of distribution not previously
disclosed in the Registration Statement or any material
change to such information in the Registration
Statement;
provided, however, that (i) and (ii) do not apply if the
-------- -------
information required to be included in a post-effective
amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the
registrants pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of post-
effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) That, for purposes of determining any liability
under the Securities Act of 1933, each filing of PP&L
Resources' annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in this Registration Statement
shall be deemed to be a new registration statement relating
to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the
registrants pursuant to the provisions described under Item
15 above, or otherwise, the registrants have been advised
that in the opinion of the 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 a registrant of expenses incurred or paid by a
director, officer or controlling person 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, such registrant will,
unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed
in the Act and will be governed by the final adjudication of
such issue.
II-5
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933,
AS AMENDED, PP&L RESOURCES, INC. 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 ALLENTOWN, AND
COMMONWEALTH OF PENNSYLVANIA, ON THE 16TH DAY OF OCTOBER, 1997.
PP&L RESOURCES, INC.
(REGISTRANT)
BY /s/ William F. Hecht
---------------------------------
WILLIAM F. HECHT
CHAIRMAN, PRESIDENT AND
CHIEF EXECUTIVE OFFICER
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933,
AS AMENDED, THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY
THE FOLLOWING PERSONS IN THE CAPACITIES INDICATED ON THE 16TH DAY
OF OCTOBER, 1997.
SIGNATURE TITLE
--------- -----
/s/ William F. Hecht
--------------------------------------- Principal Executive
William F. Hecht, Chairman, Officer and Director
President and Chief Executive Officer
/s/ R.E. Hill
--------------------------------------- Principal Financial
R.E. Hill, Senior Vice President - Officer
Financial
/s/ J.J. McCabe
--------------------------------------- Principal Accounting
J.J. McCabe, Vice President and Officer
Controller
E. ALLEN DEAVER, WILLIAM J. FLOOD,
ELMER D. GATES, STUART HEYDT, CLIFFORD
L. JONES, NANCE K. DICCIANI, RUTH Directors
LEVENTHAL, FRANCIS A. LONG AND NORMAN
ROBERTSON
By /s/ William F. Hecht
-------------------------------------
William F. Hecht, As Attorney-in-Fact
II-6
<PAGE>
POWER OF ATTORNEY
EACH DIRECTOR AND/OR OFFICER OF THE REGISTRANT WHOSE
SIGNATURE APPEARS BELOW HEREBY APPOINTS R. E. HILL, JOHN R.
BIGGAR AND ROBERT J. GREY, AND EACH OF THEM SEVERALLY, AS HIS
TRUE AND LAWFUL ATTORNEY-IN-FACT AND AGENT TO SIGN IN HIS NAME
AND BEHALF, IN ANY AND ALL CAPACITIES STATED BELOW, AND TO FILE
WITH THE SECURITIES AND EXCHANGE COMMISSION, ANY AND ALL
AMENDMENTS, INCLUDING POST-EFFECTIVE AMENDMENTS, TO THIS
REGISTRATION STATEMENT, AND THE REGISTRANT HEREBY ALSO APPOINTS
EACH SUCH PERSON AS ITS ATTORNEY-IN-FACT AND AGENT WITH LIKE
AUTHORITY TO SIGN AND FILE ANY SUCH AMENDMENTS IN ITS NAME AND
BEHALF.
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933,
THE REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO
BELIEVE THAT IT MEETS ALL OF THE REQUIREMENTS FOR FILING ON FORM
S-3 AND HAS DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED
ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN
THE CITY OF ALLENTOWN, AND COMMONWEALTH OF PENNSYLVANIA, ON THE
16TH DAY OF OCTOBER, 1997.
PP&L CAPITAL FUNDING, INC.
(REGISTRANT)
BY /s/ R.E. Hill
----------------------------
R.E. HILL, PRESIDENT
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE
FOLLOWING PERSONS IN THE CAPACITIES INDICATED ON THE 16TH DAY
OF OCTOBER, 1997.
SIGNATURE TITLE
--------- -----
/s/ William F. Hecht
------------------------------- Director
William F. Hecht
/s/ R.E. Hill
------------------------------- Principal Executive
R.E. Hill, President Officer and
Director
/s/ John R. Biggar
------------------------------- Principal Financial
John R. Biggar, Vice President Officer and
Director
/s/ James E. Abel
------------------------------- Principal
James E. Abel, Treasurer Accounting Officer
and Director
II-7
<PAGE>
PP&L RESOURCES, INC.
PP&L CAPITAL FUNDING, INC.
REGISTRATION STATEMENT ON FORM S-3
EXHIBIT INDEX
Exhibit
No. Description and Method of Filing
------- --------------------------------
1.1 Form of Distribution Agreement Filed herewith.
1.2 Form of Underwriting Agreement A form of any
underwriting
agreement with
respect to the
Debt Securities
will be filed as
an Exhibit to a
report on Form 8-K,
as contemplated by
Item 601(b)(1) of
Regulation S-K
under the Securities
Act.
3.1 *Restated Articles of PP&L Exhibit B to Proxy
Resources, Inc. Statement of PP&L
and Prospectus of
PP&L Resources,
dated March 9,
1995.
3.2 *By-Laws of PP&L Resources, Inc. Exhibit 3.2 to PP&L
Resources
Registration
Statement No. 33-
57949, dated
March 3, 1995.
3.3 Certificate of Incorporation of Filed herewith.
PP&L Capital Funding, Inc.
3.4 By-Laws of PP&L Capital Funding, Filed herewith.
Inc.
4.1 Form of Indenture among PP&L Filed herewith.
Resources, Inc., PP&L Capital
Funding, Inc. and The Chase
Manhattan Bank
4.2 Form of Supplemental Indenture Filed herewith.
establishing series of Debt
Securities
4.3 Form of Officer's Certificate Filed herewith.
establishing the form and terms
of the Debt Securities
5.1 Opinion of Michael A. McGrail as Filed herewith.
to the legality of the Guarantee
5.2 Opinion of Reid & Priest as to Filed herewith.
the legality of the Debt
Securities and the Guarantee
12.1 Calculation of Ratio of Earnings Filed herewith.
to Fixed Charges
23.1 Consent of Michael A. McGrail Filed herewith as
part of Exhibit 5.1
23.2 Consent of Reid & Priest LLP Filed herewith as
part of Exhibit 5.2
23.3 Consent of Price Waterhouse LLP Filed herewith.
23.4 Consent of Deloitte & Touche LLP Filed herewith.
24.1 Power of Attorney of Directors of Filed herewith.
PP&L Resources, Inc.
II-8
<PAGE>
Exhibit
No. Description and Method of Filing
------- --------------------------------
25.1 Statement of Eligibility of Filed herewith.
Trustee
________________
* Previously filed as indicated and incorporated herein by
reference.
II-9
Exhibit 1.1
PP&L CAPITAL FUNDING, INC.
$400,000,000
MEDIUM-TERM NOTES, SERIES A
DUE NINE MONTHS TO FORTY YEARS FROM DATE OF ISSUE
UNCONDITIONALLY GUARANTEED
AS TO PAYMENT OF PRINCIPAL, PREMIUM, IF ANY,
AND INTEREST BY PP&L RESOURCES, INC.
DISTRIBUTION AGREEMENT
_________ __, 1997
MERRILL LYNCH & CO.,
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
Merrill Lynch World Headquarters,
World Financial Center,
North Tower, 10th Floor,
New York, New York 10281-1310.
[OTHER AGENTS]
[ADDRESSES]
Dear Sirs:
PP&L Capital Funding, Inc., a Delaware corporation (the "Company"), and
PP&L Resources, Inc., a Pennsylvania corporation (the "Guarantor"), confirm
their agreement with Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, [OTHER AGENTS] (each, an "Agent", and collectively, the "Agents")
with respect to the issue and sale by the Company of its Medium-Term Notes,
Series A, Due Nine Months to Forty Years From Date of Issue (the "Notes"). The
Notes will be unconditionally guaranteed as to payment of principal, premium, if
any, and interest by the Guarantor pursuant to guarantees of the Guarantor (the
"Guarantees"). Certain terms of the Notes are set forth in Schedule A hereto.
The Notes are to be issued pursuant to an Indenture, dated as of
October 1, 1997, as amended or modified from time to time (the "Base
Indenture"), among the Company, the Guarantor and The Chase Manhattan Bank, as
trustee (the "Trustee"), as supplemented by a Supplemental Indenture No. 1,
dated as of _______, 1997 (the
<PAGE>
"Supplemental Indenture" and, together with the Base Indenture, the
"Indenture"), among the Company, the Guarantor and the Trustee. As of the date
hereof, the Company has authorized the issuance and sale of up to $400,000,000
aggregate principal amount of Notes to or through the Agents pursuant to the
terms of this Agreement. It is understood, however, that the Company may from
time to time authorize the issuance of additional Notes and that such additional
Notes may be sold to or through the Agents pursuant to the terms of this
Agreement, all as though the issuance of such Notes were authorized as of the
date hereof.
This Agreement provides both for the sale of Notes by the Company to
one or more Agents as principal for resale to investors and other purchasers and
for the sale of Notes by the Company directly to investors through one or more
agents (as may from time to time be agreed to by the Company and the applicable
Agent), in which case the applicable Agent will act as an agent of the Company
in soliciting offers for the purchase of Notes.
In connection with the foregoing, the Company and the Guarantor have
filed with the Securities and Exchange Commission (the "Commission") a joint
registration statement on Form S-3 (Nos. 333-_____ and 333-_____) for the
registration of debt securities, including the Notes and the Guarantees, under
the Securities Act of 1933, as amended (the "1933 Act") and the offering thereof
from time to time in accordance with Rule 415 of the rules and regulations of
the Commission under the 1933 Act (the "1933 Act Regulations"). Such
registration statement (as so amended, if applicable) has been declared
effective by the Commission and the Indenture has been duly qualified under the
Trust Indenture Act of 1939, as amended (the "1939 Act"). Such registration
statement (as so amended, if applicable) is referred to herein as the
"Registration Statement"; and the final prospectus and all applicable amendments
or supplements thereto (including the final prospectus supplement relating to
the offering of Notes), in the form first furnished to the applicable Agent(s)
and to be transmitted for filing pursuant to Rule 424(b) of the 1933 Act
Regulations, are collectively referred to herein as the "Prospectus"; provided,
however, that all references to the "Registration Statement" and the
"Prospectus" shall also be deemed to include all documents incorporated therein
by reference pursuant to the Securities Exchange Act of 1934,
-2-
<PAGE>
as amended (the "1934 Act"), prior to any acceptance by the Company of an offer
for the purchase of Notes; provided, further, that if the Company files a
registration statement with the Commission pursuant to Rule 462(b) of the 1933
Act Regulations (the "Rule 462(b) Registration Statement"), then, after such
filing, all references to the "Registration Statement" shall also be deemed to
include the Rule 462(b) Registration Statement. For purposes of this Agreement,
all references to the Registration Statement or Prospectus or to any amendment
or supplement thereto shall be deemed to include any copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system ("EDGAR"). All references in this Agreement to financial statements and
schedules and other information that is "contained," "included" or "stated" in
the Registration Statement or Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information that are or are deemed to be incorporated by
reference in the Registration Statement or Prospectus, as the case may be; and
all references in this Agreement to amendments or supplements to the
Registration Statement or Prospectus shall be deemed to mean and include the
filing of any document under the 1934 Act that is or is deemed to be
incorporated by reference in the Registration Statement or Prospectus, as the
case may be.
1. Appointment as Agent.
--------------------
(a) Appointment. On the basis of the representations, warranties and
-----------
agreements herein contained, but subject to the terms and conditions herein
contained and subject to the reservation by the Company of the right to sell
Notes directly to investors on its own behalf (and not through any Agent),
offers for the purchase of Notes may be solicited by an Agent as agent for the
Company at such times and in such amounts as such Agent deems advisable. The
Company may appoint additional agents in connection with the offering of the
Notes; provided that (i) the Company promptly notifies the Agents of such
appointment and (ii) the commission paid to any such additional agent with
respect to the sale of Notes by the Company as a result of a solicitation made
by such additional agent does not exceed that percentage specified in Schedule B
hereto of the aggregate principal amount of such Notes sold by the Company; and
provided further that, unless the appointment of such additional agent is
expressly limited to the
-3-
<PAGE>
solicitation of offers to purchase a specified principal amount of Notes on
specified terms, such additional agent enters into an agreement with the Company
making such agent an Agent under this Agreement or enters into an agreement with
the Company on terms which are substantially similar to those contained in this
Agreement, which agreement shall include appropriate changes to reflect the
arrangements between the Company and such additional agent.
(b) Sale of Notes. The Company shall not sell or approve the
-------------
solicitation of offers for the purchase of Notes in excess of the amount which
shall be authorized by the Company from time to time or in excess of the
aggregate principal amount of Notes registered pursuant to the Registration
Statement. The Agents shall have no responsibility for maintaining records with
respect to the aggregate principal amount of Notes sold, or of otherwise
monitoring the availability of Notes for sale, under the Registration Statement.
(c) Purchases as Principal. The Agents shall not have any obligation to
----------------------
purchase Notes from the Company as principal. However, absent an agreement
between an Agent and the Company that such Agent shall be acting solely as an
agent for the Company, such Agent shall be deemed to be acting as principal in
connection with any offering of Notes by the Company through such Agent.
Accordingly, the Agents, individually or in a syndicate, may agree from time to
time to purchase Notes from the Company as principal for resale to investors and
other purchasers determined by such Agents. Any purchase of Notes from the
Company by an Agent as principal shall be made in accordance with Section 3(a)
hereof.
(d) Solicitations as Agent. If agreed upon between an Agent and the
----------------------
Company, such Agent, acting solely as an agent for the Company and not as
principal, will solicit offers for the purchase of Notes. Such Agent will
communicate to the Company, orally or in writing, each offer for the purchase of
Notes solicited by it on an agency basis other than those offers rejected by
such Agent. Such Agent shall have the right, in its discretion reasonably
exercised, to reject any offer for the purchase of Notes, in whole or in part,
and any such rejection shall not be deemed a breach of its agreement contained
herein. The Company may accept or reject any offer for the purchase of Notes, in
whole or in part. Such Agent shall make reasonable efforts
-4-
<PAGE>
to assist the Company in obtaining performance by each purchaser whose offer for
the purchase of Notes has been solicited by it on an agency basis and accepted
by the Company. Such Agent shall not have any liability to the Company in the
event that any such purchase is not consummated for any reason. If the Company
shall default on its obligation to deliver Notes against payment tendered by a
purchaser whose offer has been solicited by such Agent on an agency basis and
accepted by the Company, the Company shall hold such Agent harmless against any
loss, claim or damage arising from or as a result of such default by the
Company.
(e) Reliance. The Company and the Agents agree that any Notes purchased
--------
from the Company by one or more Agents as principal shall be purchased, and any
Notes the placement of which an Agent arranges as an agent of the Company shall
be placed by such Agent, in reliance on the representations, warranties,
covenants and agreements of the Company contained herein and on the terms and
conditions and in the manner provided herein.
2. Representations and Warranties.
------------------------------
(a) The Company and the Guarantor jointly and severally represent and
warrant to, and agree with, each Agent as of the date hereof, as of the date of
each acceptance by the Company of an offer for the purchase of Notes (whether to
such Agent as principal or through such Agent as agent), as of the date of each
delivery of Notes (whether to such Agent as principal or through such Agent as
agent) (the date of each such delivery to such Agent as principal is referred to
herein as a "Settlement Date"), and as of any time that the Registration
Statement or the Prospectus shall be amended or supplemented (each of the times
referenced above is referred to herein as a "Representation Date"), that:
(i) The Registration Statement, when it became effective and
at each Representation Date, and the Prospectus and any amendment or
supplement thereto, when filed or transmitted for filing with the
Commission and at each Representation Date, complied or will comply in
all material respects with the requirements of the 1933 Act and the
1933 Act Regulations and the 1939 Act and the rules and regulations of
the Commission under the 1939 Act (the
-5-
<PAGE>
"1939 Act Regulations"), and did not or 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 the representations and warranties
in this subsection shall not apply to statements in or omissions from
the Registration Statement or Prospectus made in reliance upon and in
conformity with the information furnished to the Company in writing by
the Agents expressly for use in the Registration Statement or
Prospectus or to that part of the Registration Statement which
constitutes the Trustee's Statement of Eligibility and Qualification
under the 1939 Act (the "T-1").
(ii) The documents incorporated or deemed to be incorporated
by reference in the Registration Statement or Prospectus, at the time
they were or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the 1934 Act
and the rules and regulations of the Commission under the 1934 Act (the
"1934 Act Regulations"), and, when read together with the other
information in the Prospectus, at the date hereof, at the date of the
Prospectus and at each Representation Date, did not 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, in the light of the circumstances under which they
were made, not misleading; provided, however, that the representations
and warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the
Company in writing by or through any Agent expressly for use in the
Registration Statement or Prospectus.
(iii) The Guarantor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
Commonwealth of Pennsylvania with corporate power and authority to
enter into and perform its obligations under this Agreement, the
Indenture and the Guarantees.
(iv) The Company has been duly incorporated and is validly
existing as a corporation in good standing
-6-
<PAGE>
under the laws of the State of Delaware with corporate power and
authority to conduct its business as described in the Prospectus and to
enter into and perform its obligations under this Agreement, the
Indenture and the Notes; and the Company is and will be treated as a
consolidated subsidiary of the Guarantor pursuant to generally accepted
accounting principles.
(v) Neither the Guarantor nor the Company is an "investment
company" that is required to be registered under the Investment Company
Act of 1940, as amended (the "1940 Act").
(vi) This Agreement has been duly authorized, executed and
delivered by each of the Company and the Guarantor.
(vii) The Indenture has been duly authorized, executed and
delivered by the Company and the Guarantor and, assuming due
authorization, execution and delivery by the Trustee, constitutes a
valid and binding agreement of the Company and the Guarantor
enforceable in accordance with its terms except to the extent that
enforcement thereof may be limited by bankruptcy, insolvency,
fraudulent transfer, or reorganization, moratorium, and other similar
laws relating to or affecting the enforcement of creditors' rights and
by general equity principles, regardless of whether enforcement is
considered in a proceeding at law or in equity (the "Bankruptcy
Exceptions"); the Indenture conforms and will conform in all material
respects to the statements relating thereto contained in the
Prospectus; and at the effective date of the Registration Statement,
the Indenture was duly qualified under the 1939 Act.
(viii) The Notes have been duly authorized and, when issued,
authenticated and delivered in the manner provided for in the Indenture
and delivered against payment of the consideration therefor, will
constitute valid and binding obligations of the Company enforceable in
accordance with their terms except to the extent that enforcement
thereof may be limited by the Bankruptcy Exceptions; the Notes will be
in the forms established pursuant to, and entitled to the benefits of,
the Indenture; and the Notes will conform
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in all material respects to the statements relating thereto
contained in the Prospectus.
(ix) The Guarantees have been duly authorized and, when duly
executed pursuant to the Indenture and delivered, will constitute valid
and binding obligations of the Guarantor enforceable in accordance with
their terms except to the extent that enforcement thereof may be
limited by the Bankruptcy Exceptions; the Guarantees will be in the
forms established pursuant to the Indenture; and the Guarantees will
conform in all material respects to the statements relating thereto
contained in the Prospectus.
(x) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein or contemplated thereby, there has been no
event or occurrence that would result in a material adverse change, or
any development involving a material adverse change, in the financial
position or results of operations of the Guarantor and its subsidiaries
considered as one enterprise (a "Material Adverse Effect").
(xi) The Medium-Term Note Program under which the Notes are
issued (the "Program"), as well as the Notes, are rated _____ by
Moody's Investors Service, Inc. and ______ by Standard & Poor's Ratings
Service, or such other rating as to which the Company or the Guarantor
shall have most recently notified the Agents pursuant to Section 5(a)
hereof.
(b) Each of the several Agents represents and warrants to, and agrees
with, the Company and the Guarantor, their respective directors and such of
their respective officers who shall have signed the Registration Statement, and
to each other Agent, that the information furnished in writing to the Company
and the Guarantor by such Agent expressly for use in the Registration Statement
or the Prospectus does not contain an untrue statement of a material fact and
does not omit to state a material fact in connection with such information
required to be stated therein or necessary to make such information not
misleading.
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(c) Additional Certifications. Any certificate signed by any officer
-------------------------
of the Company or the Guarantor and delivered to one or more Agents or to
counsel for the Agents in connection with an offering of Notes to one or more
Agents as principal or through an Agent as agent shall be deemed a
representation and warranty by the Company or the Guarantor, as the case may
be, to such Agent or Agents as to the matters covered thereby on the date of
such certificate.
3. Purchases as Principal; Solicitations as Agent.
----------------------------------------------
(a) Purchases as Principal. Notes purchased from the Company by the
----------------------
Agents, individually or in a syndicate, as principal shall be made in accordance
with terms agreed upon between such Agent or Agents and the Company in a
separate agreement (which may be an oral agreement confirmed in writing between
the applicable Agent and the Company). Each such separate agreement is herein
referred to as a "Terms Agreement". Each such Terms Agreement, whether oral (and
confirmed in writing, which may be a facsimile transmission) or in writing,
shall include such information (as applicable) as is specified in Schedule A
hereto. An Agent's commitment to purchase Notes as principal shall be deemed to
have been made on the basis of the representations, warranties and agreements of
the Company herein contained, but subject to the terms and conditions herein
contained. Unless the context otherwise requires, references herein to "this
Agreement" shall include the applicable Terms Agreement of one or more Agents to
purchase Notes from the Company as principal. Each purchase of Notes, unless
otherwise agreed, shall be at a discount from the principal amount of each such
Note equivalent to the applicable commission set forth in Schedule B hereto. The
Agents may engage the services of any broker or dealer in connection with the
resale of the Notes purchased by them as principal and may allow all or any
portion of the discount received from the Company in connection with such
purchases to such brokers or dealers. At the time of each Terms Agreement to
purchase Notes from the Company by one or more Agents as principal, such Agent
or Agents shall specify the requirements for the comfort letter, opinions of
counsel and officers' certificate pursuant to Section 8 hereof.
(b) Solicitations as Agent. On the basis of the representations,
----------------------
warranties and agreements herein contained, but subject to the terms and
conditions herein contained, when agreed by the Company and an Agent, such
Agent, as an
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agent of the Company, will use its reasonable efforts to solicit offers for the
purchase of Notes upon the terms set forth in the Prospectus. The Agents are not
authorized to appoint sub-agents with respect to Notes sold through them as
agent. All Notes sold through an Agent as agent will be sold at 100% of their
principal amount unless otherwise agreed upon between the Company and such
Agent.
The Company reserves the right, in its sole discretion, to suspend
solicitation of offers for the purchase of Notes through an Agent, as an agent
of the Company, commencing at any time for any period of time or permanently. As
soon as practicable after receipt of instructions from the Company, such Agent
will suspend solicitation of offers for the purchase of Notes from the Company
until such time as the Company has advised such Agent that such solicitation may
be resumed.
The Company agrees to pay each Agent a commission, in the form of a
discount, equal to the applicable percentage of the principal amount of each
Note sold by the Company as a result of a solicitation made by such Agent, as an
agent of the Company, at the time of settlement of any such sale, as set forth
in Schedule B hereto.
(c) Administrative Procedures. The purchase price, interest rate or
-------------------------
formula, maturity date and other terms of the Notes specified in Schedule A
hereto (as applicable) shall be agreed upon between the Company and the
applicable Agent(s) and specified in a pricing supplement to the Prospectus
(each, a "Pricing Supplement") to be prepared by the Company in connection with
each sale of Notes. Except as otherwise specified in the applicable Pricing
Supplement, the Notes will be issued in denominations of $1,000 or any larger
amount that is an integral multiple of $1,000. Administrative procedures with
respect to the issuance and sale of the Notes (the "Procedures") shall be agreed
upon from time to time among the Company, the Agents and the Trustee. The
initial Procedures, which are set forth in Schedule C hereto, shall remain in
effect until changed by agreement among the Company, the Agents and the Trustee.
The Agents and the Company agree to perform, and the Company agrees to request
the Trustee to perform, their respective duties and obligations specifically
provided to be performed by them in the Procedures.
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4. Delivery and Payment for Notes Sold through an Agent as Agent.
-------------------------------------------------------------
Delivery of Notes sold through an Agent as an agent of the Company
shall be made by the Company to such Agent for the account of any purchaser only
against payment therefor in immediately available funds. In the event that a
purchaser shall fail either to accept delivery of or to make payment for a Note
on the date fixed for settlement, such Agent shall promptly notify the Company
and deliver such Note to the Company and, if such Agent has theretofore paid the
Company for such Note, the Company will promptly return such funds to such
Agent. If such failure has occurred for any reason other than default by such
Agent in the performance of its obligations hereunder, the Company will
reimburse such Agent on an equitable basis for its loss of the use of the funds
for the period such funds were credited to the Company's account.
5. Certain Covenants of the Company and the Guarantor.
--------------------------------------------------
Each of the Company and the Guarantor jointly and severally covenant
with the several Agents as follows:
(a) To notify the Agents promptly, and confirm the notice in writing,
of (i) any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for additional
information, (ii) the institution by the Commission of any stop order
proceedings in respect of the Registration Statement, or the initiation of
proceedings for that purpose, and to make every reasonable effort to prevent the
issuance of any such stop order and to obtain as soon as possible its lifting,
if issued, and (iii) any change in the rating assigned by any nationally
recognized statistical rating organization to the Program or any debt securities
(including the Notes) of the Company or the Guarantor, or the public
announcement by any nationally recognized statistical rating organization that
it has under surveillance or review, with possible negative implications, its
rating of the Program or any such debt securities, or the withdrawal by any
nationally recognized statistical rating organization of its rating of the
Program or any such debt securities;
(b) To advise the Agents, or Sullivan & Cromwell as counsel to the
Agents, promptly of any such filing, and
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to advise the Agents, or Sullivan & Cromwell, as counsel to the Agents,
promptly of any proposal to file or prepare (i) any amendment to the
Registration Statement (including any post-effective amendment), (ii) any
amendment or supplement to the Prospectus (other than an amendment or supplement
providing solely for the determination of the variable terms of the Notes or
relating solely to the offering of securities other than the Notes), or (iii)
any document that would as a result thereof be incorporated by reference in the
Prospectus whether pursuant to the 1933 Act, the 1934 Act or otherwise; and will
furnish the Agents with copies of any such amendment, supplement or other
document a reasonable amount of time prior to such proposed filing or use, as
the case may be;
(c) To endeavor, in cooperation with the Agents, to qualify the Notes
for offer and sale under the securities or blue sky laws of such states and the
other jurisdictions of the United States as the Agents may from time to time
designate, to continue such qualifications in effect so long as required for the
distribution of the Notes and to reimburse the Agents for any expenses
(including filing fees and reasonable fees and disbursements of counsel) paid by
the Agents or on their behalf to qualify the Notes for offer and sale, to
continue such qualification, to determine the eligibility of the Notes for
investment and to print the memoranda relating thereto; provided that neither
the Company nor the Guarantor shall be required to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified, to consent to
service of process in any jurisdiction other than with respect to claims arising
out of the offering or sale of the Notes, or to meet any other requirement in
connection with this paragraph (c) deemed by them to be unduly burdensome;
(d) To deliver promptly to the Agents signed copies of the Registration
Statement as originally filed and of all amendments thereto heretofore or
hereafter filed, including conformed copies of all exhibits except those
incorporated by reference, and such number of conformed copies of the
Registration Statement (but excluding the exhibits), the Prospectus, and any
amendments and supplements thereto, as the Agents may reasonably request;
(e) To prepare, with respect to any Notes to be sold to or through
one or more Agents pursuant to this Agreement, a Pricing Supplement with respect
to such Notes
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in a form previously approved by the Agents. The Company will deliver such
Pricing Supplement no later than 11:00 A.M., New York City time, on the
business day following the date of the Company's acceptance of the offer for
the purchase of such Notes and will file such Pricing Supplement pursuant to
Rule 424(b)(3) under the 1933 Act not later than the close of business of the
Commission on the fifth business day after the date on which such Pricing
Supplement is first used;
(f) Except as otherwise provided in subsection (l) of this Section 5,
if at any time during the term of this Agreement any event occurs 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 a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances existing at the time the Prospectus is delivered to a purchaser,
not misleading, or if it shall be necessary at any time to amend the
Registration Statement or amend or supplement the Prospectus to comply with the
1933 Act or the 1933 Act Regulations, to advise the Agents immediately,
confirmed in writing, to cease the solicitation of offers for the purchase of
Notes in their capacity as agents and to cease sales of any Notes they may then
own as principal, and to promptly prepare and file with the Commission, subject
to Section 5(b) hereof, such amendment or supplement which will correct such
statement or omission or an amendment which will effect such compliance;
provided, however, that the cost of any amendment or supplement which relates
solely to the activities of any Agent shall be borne by the Agent or Agents
requiring the same;
(g) Except as otherwise provided in subsection (l) of this Section 5,
on or prior to the date on which there shall be released to the general public
interim financial statement information related to the Company or the Guarantor
with respect to each of the first three quarters of any fiscal year or
preliminary financial statement information with respect to any fiscal year, or
financial information included in the audited consolidated financial statements
of the Company or the Guarantor for the preceding fiscal year, the Company and
the Guarantor shall furnish such information to the Agents;
(h) As soon as practicable, the Guarantor will make generally
available to its security holders an earnings
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<PAGE>
statement covering a period of at least twelve months beginning after the
"effective date of the registration statement" within the meaning of Rule 158
under the 1933 Act which will satisfy the provisions of Section 11(a) of the
1933 Act;
(i) The Company and the Guarantor during the period when the Prospectus
is required to be delivered under the 1933 Act, will file all documents required
to be filed with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the 1934 Act within the time periods prescribed by the 1934 Act and the 1934
Act Regulations;
(j) Unless otherwise agreed upon between one or more Agents acting as
principal and the Company, between the date of any Terms Agreement by such
Agent(s) to purchase Notes from the Company and the Settlement Date with respect
thereto, the Company will not, without the prior written consent of such
Agent(s), issue, sell, offer or contract to sell, grant any option for the sale
of, or otherwise dispose of, any debt securities of the Company with maturities
and other terms substantially similar to the Notes being sold pursuant to such
Terms Agreement (other than the Notes that are to be sold pursuant to such Terms
Agreement, notes to banks under the Revolving Credit Agreement of the Company or
commercial paper in the ordinary course of business);
(k) The Company will apply the net proceeds from the sale of the Notes
for the purposes set forth in the Prospectus;
(l) The Company shall not be required to comply with the provisions of
subsections (f) or (g) of this Section 5 during any period from the time the
Agents shall have suspended solicitation of offers for the purchase of Notes in
their capacity as agents pursuant to a request from the Company until the time
the Company shall determine that solicitation of offers for the purchase of
Notes should be resumed; provided, however, that compliance with such
subsections shall be required for any portion of such period during which an
Agent shall hold any Notes as principal purchased pursuant to a Terms Agreement;
and provided further that the Agents shall, upon inquiry by the Company or the
Guarantor, advise the Company and the Guarantor whether or not any of them
retains any Notes for purposes of this subsection (1), and from the 30th day
immediately following the issuance of such Notes, unless otherwise
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<PAGE>
advised by an Agent, the Company and the Guarantor shall be entitled to assume
that the distribution of such Notes is complete; and
(m) The Company will comply with the conditions set forth in Rule 3a-5
under the 1940 Act ("Rule 3a-5"), necessary for the Company to not be considered
an "investment company" under the 1940 Act.
6. Payment of Expenses.
-------------------
The Company will pay or bear (i) all expenses in connection with the
matters herein required to be performed by the Company or the Guarantor,
including all expenses in connection with the preparation and filing of the
Registration Statement and the Prospectus, and any amendment or supplement
thereto, and the furnishing of copies thereof to the Agents, and all audits,
statements or reports in connection therewith, and all expenses in connection
with the issue and delivery of the Notes and the related Guarantees, including
the reasonable fees and disbursements of counsel to the Agents incurred in
connection with the establishment of the Program and incurred from time to time
in connection with the transactions contemplated hereby, any fees and expenses
relating to the eligibility and issuance of Notes in book-entry form and the
cost of obtaining CUSIP or other identification numbers for the Notes, all
Federal and State taxes (if any) payable (not including any transfer taxes) upon
the issue of the Notes or the related Guarantees, any fee charged by securities
ratings services for rating the Program and the Notes, the fees and expenses
incurred in connection with any listing of the Notes on a securities exchange,
and the fee of the National Association of Securities Dealers, Inc., if any, and
(ii) all expenses in connection with the printing, reproduction and delivery of
this Agreement and the printing, reproduction and delivery of such other
documents or certificates as may be required in connection with the offering,
purchase, sale, issuance or delivery of the Notes or the Guarantees.
7. Conditions of Agents' Obligations.
---------------------------------
The obligations of one or more Agents to purchase Notes as principal
and to solicit offers for the purchase of Notes as an agent of the Company, and
the obligations of any purchasers of Notes sold through an Agent as an agent of
the Company, will be subject to the following conditions:
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<PAGE>
(a) The Agents shall have received from Price Waterhouse LLP a letter,
dated the date of this Agreement, in form and substance satisfactory to you, to
the effect that:
(i) They are independent accountants with respect to the
Guarantor and its subsidiaries within the meaning of the 1933 Act and
the 1933 Act Regulations;
(ii) In their opinion, the consolidated financial statements
of the Guarantor and its subsidiaries audited by them and incorporated
by reference in the Registration Statement comply as to form in all
material respects with the applicable accounting requirements of the
1933 Act and the 1934 Act and the published rules and regulations
thereunder with respect to registration statements on Form S-3;
(iii) On the basis of procedures (but not an audit in
accordance with generally accepted auditing standards) consisting of:
(A) Reading the minutes of meetings of the shareowners
and the Boards of Directors of the Guarantor and the Company
and their Executive, Compensation and Corporate Governance,
Finance and the Audit and Corporate Responsibility Committees
since the day after the end of the last audited period as set
forth in the minute books through a specified date not more
than five business days prior to the date of delivery of
such letter;
(B) With respect to the unaudited consolidated balance
sheet as of the most recent quarter ended and the unaudited
consolidated statements of income and of cash flows included
in the Guarantor's Quarterly Report on Form 10-Q for the most
recent quarter ended ("Form 10-Q") incorporated by reference
in the Registration Statement,
(i) Performing the procedures specified by the American
Institute of Certified Public Accountants for a review of
interim financial information as described in SAS No. 71, Interim
--------
Financial Information, on the unaudited consolidated balance sheet and
---------------------
the unaudited consolidated statements of income and of cash
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<PAGE>
flows for the most recent quarter ended and year to date, and prior
year periods, included in the Guarantor's Form 10-Q incorporated by
reference in the Registration Statement;
(ii) Making inquiries of certain officials of the Guarantor who
have responsibility for financial and accounting matters as to whether
the unaudited consolidated financial statements referred to in (B)(i)
comply as to form in all material respects with the applicable accounting
requirements of the 1934 Act, as it applies to Form 10-Q and the
related published rules and regulations thereunder;
(C) Reading the unaudited interim financial data for the
period from the date of the latest balance sheet included or
incorporated in the Registration Statement to the date of the
latest available interim financial data; and
(D) Making inquiries of certain officials of the Guarantor
who have responsibility for financial and accounting matters
regarding the specific items for which representations are
requested below;
nothing has come to their attention as a result of the
foregoing procedures that caused them to believe that (i) the
unaudited consolidated financial statements described in
(B)(i), included in the Form 10-Q and incorporated by
reference in the Registration Statement, do not comply as to
form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1934 Act, as it applies
to Form 10-Q, and the related published rules and regulations
thereunder; or (ii) any material modifications should be made
to the unaudited consolidated financial statements described
in (B)(i), included in the Form 10-Q and incorporated by
reference in the Registration Statement, for them to be in
conformity with generally accepted accounting principles; or
(iii) at the date of the latest available interim financial
data and at a specified date not more than five business days
prior to the date of delivery of such letter, there was any
change in the capital stock (except
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for changes in shares of certain series of preferred stock of
a subsidiary of the Guarantor redeemed for, purchased or
otherwise retired in anticipation of, sinking fund
requirements for such series or as a result of the surrender
by the Guarantor of any preferred stock of PP&L, Inc.
theretofore purchased by the Guarantor), or increase in
long-term debt of the Guarantor and subsidiaries consolidated
as compared with amounts shown in the latest balance sheet
incorporated by reference in the Registration Statement or
(iv) for the period from the closing date of the latest
consolidated income statement incorporated by reference in the
Registration Statement to the date of the latest available
interim financial data there were any decreases, as compared
with the corresponding period in the preceding year, in net
income, except in all instances for changes, increases or
decreases which the Registration Statement, including the
documents incorporated therein by reference, discloses have
occurred or may occur, or they shall state any specific
changes or decreases.
(iv) The letter shall also state that the information set forth in
Schedule D hereto, which is expressed in dollars (or percentages
derived from such dollar amounts) and has been obtained from accounting
records which are subject to the internal controls of the Guarantor's
accounting system or which has been derived directly from such
accounting records by analysis or computation, is in agreement with
such records or computations made therefrom, except as otherwise
specified in such letter.
(b) The Registration Statement has become effective under the 1933 Act
and no stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall have been
instituted, or, to the knowledge of the Company or the Guarantor, shall be
contemplated by the Commission and the Agents shall have received certificates
of the Company and of the Guarantor dated the date hereof to such effect.
(c) On the date hereof the Agents shall have received from Michael A.
McGrail, Esq., Senior Counsel, or such other counsel for the Company and the
Guarantor as may
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be acceptable to you, an opinion, dated as of the date hereof, in form and
substance satisfactory to counsel for the Agents, to the effect that:
(i) The Guarantor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
Commonwealth of Pennsylvania with power and authority (corporate and
other) to own its properties and conduct its business as described in
the Prospectus;
(ii) The portions of the information contained in the
Prospectus, which are stated therein to have been made on the authority
of any such counsel, have been reviewed by such counsel and, as to
matters of law and legal conclusions, are correct;
(iii) The Guarantor is a "holding company" within the meaning
of the Public Utility Holding Company Act of 1935, as amended, but is
exempt from such Act (except for the provisions of Section 9(a)(2)
thereof) by virtue of an order of the Commission pursuant to Section
3(a)(1) thereof;
(iv) The descriptions in the Registration Statement and the
Prospectus of statutes, legal and governmental proceedings and
contracts and other documents are accurate and fairly present the
information required to be shown; and such counsel does not know of any
legal or governmental proceedings required to be described in the
Registration Statement or Prospectus which are not described, or of any
contracts or documents of a character required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to
the Registration Statement which are not described and filed as
required; it being understood that such counsel need express no opinion
as to the financial statements and other financial data contained or
incorporated by reference in the Registration Statement or the
Prospectus;
(v) This Agreement has been duly authorized, executed and
delivered by each of the Guarantor and the Company;
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(vi) The Indenture has been duly authorized, executed and
delivered by the Guarantor and, assuming due authorization, execution,
and delivery by the Company and the Trustee, is a valid and binding
obligation of the Guarantor, enforceable in accordance with its terms,
except to the extent limited by the Bankruptcy Exceptions;
(vii) The Guarantees are in the form established pursuant to
the Indenture, have been duly authorized by the Guarantor, and, when
duly executed pursuant to the Indenture and delivered in accordance
with the provisions of this Agreement, will constitute valid and
binding obligations of the Guarantor, as guarantor, enforceable in
accordance with their terms, except to the extent limited by the
Bankruptcy Exceptions;
(viii) No approval, authorization, consent or other order of
any public board or body is legally required for the authorization of
the offering, issuance and sale of the Notes, except (a) such as may be
required under the 1933 Act or the 1933 Act Regulations or the
securities or "blue sky" laws of any jurisdiction and (b) the
qualification of the Indenture under the 1939 Act and 1939 Act
Regulations.
In rendering such opinion, such counsel may rely as to matters
governed by New York and Delaware corporate law upon the opinion of Reid
& Priest LLP referred to in Section 7(d) of this Agreement.
(d) On the date hereof, the Agents shall have received from Reid &
Priest LLP, special counsel to the Company and the Guarantor, an opinion, dated
as of the date hereof, in form and substance satisfactory to counsel for the
Agents, 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 Delaware;
(ii) The Notes are in the form established pursuant to the
Indenture, have been duly authorized by the Company, and, when issued,
authenticated and delivered in the manner provided for in the Indenture
and delivered against payment therefor, will constitute valid and
binding obligations of the Company
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<PAGE>
enforceable in accordance with their terms, except to the extent
limited by the Bankruptcy Exceptions, and are entitled to the
benefits of the Indenture;
(iii) The Guarantees are in the form established pursuant to
the Indenture, have been duly authorized by the Guarantor, and, when
duly executed pursuant to the Indenture and delivered in accordance
with the provisions of this Agreement, will constitute valid and
binding obligations of the Guarantor, as guarantor, enforceable in
accordance with their terms, except to the extent limited by the
Bankruptcy Exceptions;
(iv) This Agreement has been duly authorized, executed and
delivered by each of the Guarantor and the Company;
(v) The Indenture has been duly authorized, executed and
delivered by the Company and the Guarantor and, assuming due
authorization, execution, and delivery by the Trustee, is a valid and
binding obligation of the Company and the Guarantor, enforceable in
accordance with its terms, except to the extent limited by the
Bankruptcy Exceptions; and the Indenture has been duly qualified under
the 1939 Act;
(vi) The Registration Statement has become effective under the
1933 Act and any required filing of the Prospectus pursuant to Rule
424(b) has been made in the manner and within the time period required,
and, to the best of the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement or any part
thereof has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the 1933 Act, and the
Registration Statement, as of its effective date, and any amendment
thereto, as of its date, and the Prospectus, as of its date, and each
amendment or supplement thereto, as of its date, complied as to form in
all material respects with the requirements of the 1933 Act and the
1933 Act Regulations, and nothing has come to the attention of such
counsel which would lead such counsel to believe either that the
Registration Statement or any amendment thereto, as of such dates,
contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make
the statements
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<PAGE>
therein not misleading, or that the Prospectus or any amendment or
supplement thereto, as of the date issued or the date of such opinion,
contained or contains any untrue statement of a material fact or
omitted or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; it being understood that such counsel need
express no opinion as to the financial statements and other financial
or statistical data contained or incorporated by reference in the
Registration Statement or the Prospectus;
(vii) The statements in the Prospectus under the captions
"Description of the Debt Securities" and "Description of Notes",
insofar as they purport to constitute summaries of certain terms of the
Indenture, the Notes and the Guarantees, in each case constitute
accurate summaries of such terms of such documents and securities, in
all material respects;
(viii) The Company is a "finance subsidiary within the meaning
of Rule 3a-5 of the 1940 Act, and the Guarantees satisfy the conditions
of clauses (a)(1) and (3) of Rule 3a-5. Assuming that the Company
continues to qualify as a "finance subsidiary" within the meaning of
Rule 3a-5, satisfies the conditions of clauses (a)(5) and (6) of Rule
3a-5 and satisfies the conditions of Rule 3a-5 in respect of any
securities other than the Notes issued by the Company, upon giving
effect to the transactions contemplated by this Agreement, the
Prospectus and the application of the proceeds from the sale of the
Notes contemplated in the Prospectus, the Company will not be an
"investment company" within the meaning of the 1940 Act. The Guarantor
is not an "investment company" within the meaning of the 1940 Act; and
(ix) No approval, authorization, consent or other order of any
public board or body is legally required under federal or New York law
for the authorization of the offering, issuance and sale of the Notes,
except (a) such as may be required under the 1933 Act or the 1933 Act
Regulations or the securities or "blue sky" laws of any jurisdiction
and (b) the qualification of the Indenture under the 1939 Act and 1939
Act Regulations.
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<PAGE>
In rendering their opinion, Reid & Priest LLP may rely as to
matters governed by Pennsylvania law upon the opinion of Michael A.
McGrail, Esq., or such other counsel referred to in Section 7(c) of
this Agreement.
(e) On the date hereof, the Agents shall have received from Sullivan &
Cromwell, counsel for the Agents, such opinion or opinions, dated as of the date
hereof, with respect to the validity of the Notes and the Guarantees, this
Agreement, the Registration Statement, the Prospectus and other related matters
as the Agents may require, and the Company and the Guarantor shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters. In rendering such opinion or opinions,
Sullivan & Cromwell may assume the due incorporation and valid existence of the
Company and the Guarantor and may rely as to matters governed by Pennsylvania
law upon the opinion of Michael A. McGrail, Esq. or such other counsel for the
Company and the Guarantor referred to in Section 7(c) of this Agreement.
(f) On the date hereof, the Agents shall have received certificates,
dated the date hereof, of the President or a Vice President and a financial or
accounting officer of the Guarantor and of a Vice President or Treasurer of the
Company in which such officers, to the best of their knowledge after reasonable
investigation, shall state that (i) the representations and warranties of the
Company or the Guarantor, as the case may be, in this Agreement are true and
correct (except for immaterial details) as of the date of such certificate, (ii)
the Company or Guarantor, as the case may be, has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied at or
prior to the date of such certificate, (iii) no stop order suspending the
effectiveness of the Registration Statement has been issued, and no proceedings
for that purpose have been instituted or are pending by the Commission, and (iv)
subsequent to the date of the latest financial statements in the Prospectus,
there has been no Material Adverse Effect, whether or not arising in the
ordinary course of business, except as set forth or contemplated in the
Prospectus or as described in such certificate.
In case any such condition shall not have been satisfied, this
Agreement may be terminated by the
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<PAGE>
applicable Agent or Agents upon notice in writing or by telegram to the Company
and the Guarantor without liability or obligation of any party, except as
provided in Sections 5(c), 6, 9, 11, 12 and 14 hereof.
8. Additional Covenants of the Company and the Guarantor.
-----------------------------------------------------
The Company and the Guarantor further covenant and agree with each
Agent as follows:
(a) Reaffirmation of Representations and Warranties. Each acceptance by
-----------------------------------------------
the Company of an offer for the purchase of Notes (whether to one or more Agents
as principal or through an Agent as agent), and each delivery of Notes (whether
to one or more Agents as principal or through an Agent as Agent), shall be
deemed to be an affirmation that the representations and warranties of the
Company and the Guarantor herein contained and contained in any certificate
delivered therewith to the Agents pursuant to this Agreement are true and
correct at the time of such acceptance or sale, as the case may be (it being
understood that such representations and warranties shall relate to the
Registration Statement and Prospectus as amended and supplemented to each such
time).
(b) Subsequent Delivery of Certificates. Each time that (i) the
-----------------------------------
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for the determination of the
variable terms of the Notes or relating solely to the offering of securities
other than the Notes) or (ii) (if required by the Terms Agreement relating to
such Notes) the Company sells Notes to one or more Agents as principal, each of
the Company and the Guarantor shall furnish or cause to be furnished to the
Agent(s), forthwith a certificate dated the date of filing with the Commission
or the date of effectiveness of such amendment or supplement, as applicable, or
the date of such sale, as the case may be, in form satisfactory to the Agent(s)
to the effect that the statements contained in the certificate referred to in
Section 7(f) hereof which were last furnished to the Agents are true and correct
at the time of the filing or effectiveness of such amendment or supplement, as
applicable, or the time of such sale, as the case may be, as though made at and
as of such time (except that such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to
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<PAGE>
such time) or, in lieu of such certificate, a certificate of the same tenor as
the certificate referred to in Section 7(f) hereof, modified as necessary to
relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such certificate (it being understood
that, in the case of clause (ii) above, any such certificates shall also include
a certification that there has been no Material Adverse Effect since the date of
the agreement by such Agent(s) to purchase Notes from the Company as principal).
(c) Subsequent Delivery of Legal Opinions. Each time that (i) the
-------------------------------------
Registration Statement or the Prospectus shall be amended or supplemented (other
than (A) by an amendment or supplement providing solely for the determination of
the variable terms of the Notes or relating solely to the offering of securities
other than the Notes or (B) unless an Agent shall otherwise reasonably request,
by filing of any Current Report on Form 8-K) or (ii) (if required by the Terms
Agreement relating to such Notes) the Company sells Notes to one or more Agents
as principal, the Company shall furnish or cause to be furnished forthwith to
the Agent(s) and to counsel to the Agents the written opinions of Michael A.
McGrail, Esq., Senior Counsel to the Guarantor (or such other counsel as may be
acceptable to the Agent(s)) and Reid & Priest LLP, special counsel to the
Company and the Guarantor, each dated the date of filing with the Commission or
the date of effectiveness of such amendment or supplement, as applicable, or the
date of such sale, as the case may be, in form and substance satisfactory to the
Agent(s), of the same tenor as the opinions referred to in Section 7(c) and (d)
hereof, but modified, as necessary, to relate to the Registration Statement and
the Prospectus as amended and supplemented to the time of delivery of such
opinions; or, in lieu of such opinions, counsel last furnishing such opinions to
the Agents shall furnish the Agent(s) with a letter substantially to the effect
that the Agent(s) may rely on such last opinion to the same extent as though it
was dated the date of such letter authorizing reliance (except that statements
in such last opinion shall be deemed to relate to the Registration Statement and
the Prospectus as amended and supplemented to the time of delivery of such
letter authorizing reliance).
(d) Subsequent Delivery of Comfort Letters. Each time that (i) the
--------------------------------------
Registration Statement or the Prospectus shall be amended or supplemented to
include additional
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<PAGE>
financial information (other than by an amendment or supplement relating solely
to the issuance and/or offering of securities other than the Notes) or (ii) (if
required by the Terms Agreement relating to such Notes) the Company sells Notes
to one or more Agents as principal, the Company shall cause Price Waterhouse LLP
forthwith to furnish to the Agent(s) a letter, dated the date of filing with the
Commission or the date of effectiveness of such amendment or supplement, as
applicable, or the date of such sale, as the case may be, in form satisfactory
to the Agent(s), of the same tenor as the letter referred to in Section 7(a)
hereof but modified to relate to the Registration Statement and Prospectus as
amended and supplemented to the date of such letter; provided, however, that if
the Registration Statement or the Prospectus is amended or supplemented solely
to include financial information as of and for a fiscal quarter, Price
Waterhouse LLP may limit the scope of such letter to the unaudited financial
statements included in such amendment or supplement unless any other information
included therein of an accounting, financial or statistical nature is of such a
nature that, in the reasonable judgment of the Agents, such letter should cover
such other information.
[(e) The Company shall not sell Notes which are not substantially in
a form previously certified without prior notification to each Agent.]
9. Indemnification and Contribution.
--------------------------------
(a) The Company and the Guarantor agree that they will jointly and
severally indemnify and hold harmless each Agent and each person, if any, who
controls any Agent within the meaning of Section 15 of the 1933 Act, against any
and all loss, expense, claim, damage or liability to which, jointly or
severally, such Agent or such controlling person may become subject, under the
1933 Act or otherwise, insofar as such loss, expense, claim, damage or liability
(or actions in respect thereof) arises out of or is based upon any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, the Prospectus, or any amendment or supplement to any
thereof, or arises out of or is based upon the omission or alleged omission to
state therein any material fact required to be stated therein or necessary to
make the statements therein not misleading; and, except as hereinafter in this
Section provided, the Company and the Guarantor agree to reimburse
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each Agent and each person who controls any Agent as aforesaid for any
reasonable legal or other expenses as incurred by such Agent or such controlling
person in connection with investigating or defending any such loss, expense,
claim, damage or liability; provided, however, that the Company and the
Guarantor shall not be liable in any such case to the extent that any such loss,
expense, claim, damage or liability arises out of or is based on an untrue
statement or alleged untrue statement or omission or alleged omission made in
any such document in reliance upon, and in conformity with, written information
furnished to the Guarantor or the Company by or through any such Agent expressly
for use in any such document or arises out of, or is based on, statements in or
omissions from that part of the Registration Statement which shall constitute
the T-1; and provided further, that with respect to any untrue statement or
alleged untrue statement or omission or alleged omission made in any prospectus
or supplement, the indemnity agreement contained in this subsection (a) shall
not inure to the benefit of any Agent from whom the person asserting any such
loss, expense, claim, damage or liability purchased the Notes concerned (or to
the benefit of any person controlling such Agent), if a copy of the Prospectus
(not including documents incorporated by reference therein) or of the Prospectus
as then amended or supplemented (not including documents incorporated by
reference therein) was not sent or given to such person at or prior to the
written confirmation of the sale of such Notes to such person.
(b) Each Agent severally agrees that it will indemnify and hold
harmless the Company and the Guarantor, their officers and directors, and each
of them, and each person, if any, who controls the Company and the Guarantor
within the meaning of Section 15 of the 1933 Act, against any loss, expense,
claim, damage or liability to which it or they may become subject, under the
1933 Act or otherwise, insofar as such loss, expense, claim, damage or liability
(or actions in respect thereof) arises out of or is based on any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, the Prospectus, or any amendment or supplement to any
thereof, or arises out of or is based upon the omission or alleged omission to
state therein any material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, and only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any
-27-
<PAGE>
such documents in reliance upon, and in conformity with, written information
furnished to the Guarantor or the Company by or through any Agent expressly for
use in any such document; and, except as hereinafter in this Section provided,
each Agent agrees to reimburse the Company and the Guarantor, their officers and
directors, and each of them, and each person, if any, who controls the Company
and the Guarantor within the meaning of Section 15 of the 1933 Act, for any
reasonable legal or other expenses incurred by it or them in connection with
investigating or defending any such loss, expense, claim, damage or liability.
(c) Upon receipt of notice of the commencement of any action against
an indemnified party, the indemnified party shall, with reasonable promptness,
if a claim in respect thereof is to be made against an indemnifying party under
its agreement contained in this Section 9, notify such indemnifying party in
writing of the commencement thereof; but the omission so to notify an
indemnifying party shall not relieve it from any liability which it may have to
the indemnified party otherwise than under its agreement contained in this
Section 9. In the case of any such notice to an indemnifying party, it shall be
entitled to participate at its own expense in the defense, or if it so elects,
to assume the defense, of any such action, but, if it elects to assume the
defense, such defense shall be conducted by counsel chosen by it and
satisfactory to the indemnified party and to any other indemnifying party,
defendant in the suit. In the event that any indemnifying party elects to assume
the defense of any such action and retain such counsel, the indemnified party
shall bear the fees and expenses of any additional counsel retained by it. No
indemnifying party shall be liable in the event of any settlement of any such
action effected without its consent except as provided in Section 9(e) hereof.
Each indemnified party agrees promptly to notify each indemnifying party of the
commencement of any litigation or proceedings against it in connection with the
issue and sale of the Notes.
(d) If any Agent or person entitled to indemnification by the terms
of subsection (a) of this Section 9 shall have given notice to the Company and
the Guarantor of a claim in respect thereof pursuant to Section 9(c) hereunder,
and if such claim for indemnification is thereafter held by a court to be
unavailable for any reason other than by reason of the terms of this Section 9
or if such claim is unavailable under controlling precedent, such
-28-
<PAGE>
Agent or person shall be entitled to contribution from the Company and the
Guarantor to liabilities and expenses, except to the extent that contribution is
not permitted under Section 11(f) of the 1933 Act. In determining the amount of
contribution to which such Agent or person is entitled, there shall be
considered the relative benefits received by such Agent or person and the
Company and the Guarantor from the offering of the Notes that were the subject
of the claim for indemnification (taking into account the portion of the
proceeds of the offering realized by each), the Agent or person's relative
knowledge and access to information concerning the matter with respect to which
the claim was asserted, the opportunity to correct and prevent any statement or
omission, and any other equitable considerations appropriate under the
circumstances. The Company and the Guarantor and the Agents agree that it would
not be equitable if the amount of such contribution were determined by pro rata
or per capita allocation (even if the Agents were treated as one entity for such
purpose).
(e) No indemnifying party shall, without the prior written consent of
the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 9 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party and all liability
arising out of such litigation, investigation, proceeding or claim, and (ii)
does not include a statement as to or an admission of fault, culpability or the
failure to act by or on behalf of any indemnified party.
(f) The indemnity and contribution provided for in this Section 9 and
the representations and warranties of the Company, the Guarantor and the several
Agents set forth in this Agreement shall remain operative and in full force and
effect regardless of (i) any investigation made by or on behalf of any Agent or
any person controlling any Agent, the Company, its directors or officers, the
Guarantor or any person controlling the Guarantor, (ii) acceptance of any Notes
and payment therefor under this Agreement, and (iii) any termination of this
Agreement.
-29-
<PAGE>
10. Default of Agents.
-----------------
If the Company and two or more Agents enter into an agreement pursuant
to which such Agents agree to purchase Notes from the Company as principal and
one or more of such Agents shall fail at the Settlement Date to purchase the
Notes which it or they are obligated to purchase (the "Defaulted Notes"), then
the non-defaulting Agents may make arrangements satisfactory to the Company for
one of them or one or more other Agents or any other agents to purchase all, but
not less than all, of the Defaulted Notes in such amounts as may be agreed upon
and upon the terms herein set forth in this Agreement. If, however, no such
arrangements shall have been made within 24 hours thereafter, then the
non-defaulting Agents shall be obligated, severally and not jointly, to purchase
the full amount thereof in the proportions which their respective initial
underwriting obligations bear to the underwriting obligations of all
non-defaulting Agents. In the event of any such default, either the
non-defaulting Agents or the Company may by prompt written notice to such other
parties postpone the Settlement Date for a period of not more than seven full
business days in order to effect whatever changes may thereby be made necessary
in the Registration Statement or Prospectus or in any other documents or
arrangements, and the Company will promptly file any amendments to the
Registration Statement or Supplements to the Prospectus which may thereby be
made necessary. As used in this Agreement, the term "Agent" includes any person
substituted for an Agent under this Section 10.
Nothing in this Section 10 shall relieve an Agent from liability for
its default.
11. Survival of Certain Representations and Obligations.
---------------------------------------------------
The respective indemnities, agreements, representations and warranties
of the Company and the Guarantor and of or on behalf of the Agents set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation, or statement as to the results thereof, made by
or on behalf of any Agent or the Company and the Guarantor or any of their
respective officers, directors, or any controlling person, and will survive
delivery of and payment for the Notes. If for any reason the purchase of the
Notes by the Agents is not consummated, the Company shall remain responsible for
the
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<PAGE>
expenses to be paid or reimbursed by it pursuant to Sections 5(c) and 6, and the
respective obligations of the Company, the Guarantor and the Agents pursuant to
Sections 9, 11, 12 and 14 hereof shall remain in effect.
12. Termination.
-----------
(a) This Agreement (excluding any agreement by one or more Agents to
purchase Notes as principal) may be terminated, for any reason at any time, by
either the Company or an Agent, as to itself, upon the giving of 30 days' prior
written notice of such termination to the other party hereto.
(b) The applicable Agent(s) may terminate any agreement by such
Agent(s) to purchase Notes as principal, immediately upon notice to the Company
and the Guarantor, at any time prior to the Settlement Date relating thereto, if
(i) there has been, since the date of such Terms Agreement or since the
respective dates as of which information is given in the Prospectus, as amended
or supplemented to such date, any change or any development involving a
prospective change in or affecting particularly the business or properties of
the Guarantor, which, in the judgment of any such Agent, materially impairs the
investment quality of such Notes; (ii) there has been any suspension or
limitation of trading in securities generally on the New York Stock Exchange, or
any setting of minimum or maximum prices for trading on such exchange, or any
suspension or limitation of trading of any securities of the Company or the
Guarantor on any exchange or in the over-the-counter market; (iii) a general
banking moratorium has been declared by Federal or New York authorities; (iv)
there shall have occurred any outbreak or escalation of major hostilities in
which the United States is involved, any declaration of war by Congress or any
other substantial national or international calamity or emergency if, in the
reasonable judgment of such Agent, in each case the effect of which makes it
impractical and inadvisable to proceed with completion of the sale of and
payment for the Notes and such Agent makes a similar determination with respect
to all other underwritings of medium-term notes of utilities or utility holding
companies in which it is participating and has the contractual right to make
such a determination; or (v) there has been any decrease in the ratings of the
Program or any debt securities of the Company or the Guarantor (including the
Notes) that existed as of the date of such agreement by any
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<PAGE>
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the 1933 Act) or if such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of the Program or any such debt securities.
(c) In the event of any such termination, no party will have any
liability to the other parties hereto, except that (i) the Agents shall be
entitled to any commissions earned in accordance with the third paragraph of
Section 3(b) hereof, (ii) if at the time of termination (a) any Agent shall own
any Notes purchased by it as principal pursuant to a Terms Agreement or (b) an
offer to purchase any of the Notes has been accepted by the Company but the time
of delivery to the purchaser or his agent of such Notes relating thereto has not
occurred, the covenants set forth in Sections 5 and 8 hereof shall remain in
effect until such Notes are so resold or delivered, as the case may be, and
(iii) the covenant set forth in Section 5(h) hereof, the provisions of Section 6
hereof, the indemnity and contribution agreements set forth in Section 9 hereof,
and the provisions of Sections 11, 14 and 15 hereof shall remain in effect.
13. Notices.
-------
The Company and the Guarantor shall be entitled to act and rely upon
any statement, request, notice or agreement on behalf of each of the Agents if
the same shall have been made or given by the Agents. All statements, requests,
notices, consents and agreements hereunder shall be in writing, or by telegraph
subsequently confirmed in writing, to the following addresses:
If to the Company or the Guarantor:
PP&L Resources, Inc.
Two North Ninth Street
Allentown, Pennsylvania 18101
Attention: Treasurer
Facsimile: (610) 774-5106
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<PAGE>
If to Merrill Lynch, Pierce, Fenner & Smith
Incorporated:
World Financial Center
North Tower - 10th Floor
New York, New York 10281-1310
Attention: MTN Product Management
Facsimile: (212) 449-2234
[Other Agents]
[Addresses]
14. Parties in Interest.
-------------------
This Agreement shall each inure solely to the benefit of the Company,
the Guarantor and the Agents and, to the extent provided in Section 9 hereof, to
any person who controls any Agent, to the officers and directors of the Company
and the Guarantor, and to any person who controls the Company or the Guarantor,
and their respective successors. No other person, partnership, association or
corporation shall acquire or have any right under or by virtue of this
Agreement. The term "successor" shall not include any assignee of an Agent
(other than a person substituted for an Agent under Section 10 hereof or one who
shall acquire all or substantially all of an Agent's business and properties),
nor shall it include any purchaser of Notes from any Agent merely because of
such purchase.
15. Applicable Law.
--------------
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
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<PAGE>
16. Counterparts.
------------
This Agreement may be executed by any one or more of the parties hereto
in 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.
Please confirm that the foregoing correctly sets forth the agreement
between us by signing in the space provided below for that purpose, whereupon
this Distribution Agreement shall constitute a binding agreement between the
Company and the Guarantor and the several Agents in accordance with its terms.
Yours very truly,
PP&L RESOURCES, INC.
By: _____________________________________
Name:
Title:
PP&L CAPITAL FUNDING, INC.
By: _____________________________________
Name:
Title:
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<PAGE>
The foregoing Distribution Agreement is
hereby confirmed and accepted as of the date
first above written.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:__________________________________
Name:
Title:
[OTHER AGENTS]
By:__________________________________
Name:
Title:
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<PAGE>
SCHEDULE A
----------
PRICING TERMS
Principal Amount: $______________
Interest Rate or Formula:
If Fixed Rate Note,
Interest Rate:
Interest Payment Dates:
If Floating Rate Note,
Interest Rate Basis(es):
If LIBOR,
|_| LIBOR Reuters Page:
|_| LIBOR Telerate Page:
Designated LIBOR Currency:
If CMT Rate,
Designated CMT Telerate Page:
If Telerate Page 7052:
|_| Weekly Average
|_| Monthly Average
Designated CMT Maturity Index:
Index Maturity:
Spread and/or Spread Multiplier, if any:
Initial Interest Rate, if any:
Initial Interest Reset Date:
Interest Reset Dates:
Interest Payment Dates:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Fixed Rate Commencement Date, if any:
Fixed Interest Rate, if any:
Day Count Convention:
Calculation Agent:
Redemption Provisions:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction, if any:
Repayment Provisions:
Optional Repayment Date(s)
Original Issue Date:
Stated Maturity Date
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<PAGE>
Exchange Rate Agent:
Authorized Denomination:
Purchase Price: ___%, plus accrued interest, if any, from
---------
Price to Public: ___%, plus accrued interest, if any, from
---------
Issue Price:
Settlement Date and Time:
Additional/Other Terms:
Also, in connection with the purchase of Notes from the Company by one or more
Agents as principal, agreement as to whether the following will be required:
Officers' Certificate pursuant to Section 7(f) of the Distribution
Agreement
Legal Opinions pursuant to Section 7(c)and(d) of the Distribution Agreement
Comfort Letter pursuant to Section 7(a) of the Distribution Agreement
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<PAGE>
SCHEDULE B
----------
As compensation for the services of the Agents hereunder, the Company
shall pay the applicable Agent, on a discount basis, a commission for the sale
of each Note equal to the principal amount of such Notes multiplied by the
appropriate percentage set forth below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
- --------------- ----------------
From 9 months to less than 1 year.............................. .125%
From 1 year to less than 18 months............................. .150
From 18 months to less than 2 years............................ .200
From 2 years to less than 3 years.............................. .250
From 3 years to less than 4 years.............................. .350
From 4 years to less than 5 years.............................. .450
From 5 years to less than 6 years.............................. .500
From 6 years to less than 7 years.............................. .550
From 7 years to less than 10 years............................. .600
From 10 years to less than 15 years............................ .625
From 15 years to less than 20 years............................ .700
From 20 years to 30 years...................................... .750
From 30 years to 40 Years...................................... *
- ---------------------
* As agreed to by the Company and the applicable Agent at
the time of sale.
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<PAGE>
SCHEDULE D
----------
Additional Matters to be Included
in Accountants' Comfort Letter Pursuant to
Section 7(a)(iv) of Distribution Agreement
------------------------------------------
PROSPECTUS CAPTION ITEMS
- ------------------ -----
"Ratio of Earnings to "Ratio of Earnings to
Fixed Charges" Fixed Charges" and
supporting calculations
shown on Exhibit 12.1 to
the Registration Statement
FORM 10-K OR 10-Q ITEMS
- ----------------- -----
CAPTION
- -------
"REVIEW OF THE Changes in total operating
FINANCIAL CONDITION revenues
AND RESULTS OF
OPERATIONS OF PP&L
RESOURCES, INC. AND
PENNSYLVANIA POWER &
LIGHT COMPANY" --
"Operating Revenues"
(or similar caption)
"REVIEW OF THE The Company's actual
FINANCIAL CONDITION construction expenditures
AND RESULTS OF during the year ended
OPERATIONS OF PP&L [last year ended] and
RESOURCES, INC. AND [prior year ended]
PENNSYLVANIA POWER &
LIGHT COMPANY"--
"Capital Expenditure
Requirements"
(or similar caption)
"SELECTED FINANCIAL The Company's times
AND OPERATING DATA OF interest earned before
PENNSYLVANIA POWER & income taxes for [last
LIGHT COMPANY" -- year ended] and [prior
"Financial Ratios" year ended]
(or similar caption)
-39-
Exhibit 3.3
CERTIFICATE OF INCORPORATION
OF
PP&L CAPITAL FUNDING, INC.
THE undersigned, for the purpose of forming a
corporation pursuant to the provisions of the General
Corporation Law of the State of Delaware, does hereby
certify as follows:
1. The name of the corporation is PP&L Capital
Funding, Inc. (the "Corporation").
2. The address of the Corporation's registered
office in the State of Delaware is 1209 Orange Street,
City of Wilmington, County of New Castle, Delaware 19801.
The name of its registered agent at such address is
Corporation Trust Company.
3. The nature of the business or purposes to
be conducted or promoted by the Corporation are to engage
in any lawful act or activity for which corporations may
be organized under the General Corporation Law of the
State of Delaware.
4. The total number of shares of capital stock
which the Corporation shall have authority to issue is one
thousand (1,000) shares of common stock, all of which are
to be of $.01 par value per share and of one class, which
class is hereby designated as Common Stock.
5. The name and mailing address of the sole
Incorporator of the Corporation are Susan Fields, c/o Reid
& Priest LLP, 40 West 57th Street, New York, New York
10019.
6. The following provisions relate to the
management of the business and the conduct of the affairs
of the Corporation and are not inserted for the purpose of
creating, defining, limiting and regulating the powers of
the Corporation and its directors and stockholders:
(A) The election of officers may be con-
ducted in any manner the By-Laws provide, and need not be
by written ballot.
(B) The Board of Directors shall have the
power to make, alter, amend or repeal the By-laws of the
Corporation, except to the extent that the By-Laws other-
wise provide.
7. The Corporation shall indemnify to the full
extent authorized by law any person made or threatened to
be made a party to an action or proceeding whether
criminal, civil, administrative or investigative, by
reason of the fact that he, his testator or intestate is
or was a director or officer of the Corporation or serves
or served any other enterprise as a director or officer at
the request of the Corporation or any predecessor of the
Corporation. No director of the Corporation shall be
personally liable to the Corporation or its stockholders
for monetary damages for breach of fiduciary duty as a
director of the Corporation, except for liability (i) for
any breach of the director's duty of loyalty to the
Corporation or its stockholders; (ii) for acts or
omissions not in good faith or which involve intentional
misconduct or a knowing violation of law; (iii) under
Section 174 of the Delaware General Corporation Law; or
(iv) for any transaction from which the director derived
an improper personal benefit.
8. The Corporation reserves the right to amend
or repeal any provisions contained in this Certificate of
Incorporation from time to time and at any time in the
manner now or hereafter prescribed by the law of the State
of Delaware, and all rights herein conferred upon
stockholders, directors and officers are subject to this
reserved power.
IN WITNESS WHEREOF, the undersigned, being the
sole Incorporator hereinabove named, does hereby certify
that the facts hereinabove stated are truly set forth and,
accordingly, hereby executes this Certificate of Incorpo-
ration this 11th day of September, 1997.
/s/ Susan Fields
-------------------------
Susan Fields
Incorporator
Exhibit 3.4
BY-LAWS
OF
PP&L CAPITAL FUNDING, INC.
ARTICLE I
Meetings of Stockholders
------------------------
Section 1.1. Annual Meetings. An annual meeting
---------------
of stockholders shall be held for the election of
directors at such date, time and place, either within or
without the State of Delaware, as may be designated by
resolution of the Board of Directors from time to time.
Any other proper business may be transacted at the annual
meeting.
Section 1.2. Special Meetings. Special meetings
----------------
of stockholders for any purpose or purposes may be called
at any time by the Board of Directors, but such special
meetings may not be called by any other persons. Business
transacted at any special meeting of stockholders shall be
limited to the purposes stated in the notice.
Section 1.3. Notice of Meetings. Whenever
------------------
stockholders are required or permitted to take any action
at a meeting, a written notice of the meeting shall be
given which shall state the place, date and hour of the
meeting and, in the case of a special meeting, the purpose
or purposes for which the meeting is called. Unless
otherwise provided by law, the certificate of
incorporation or these by-laws, the written notice of any
meeting shall be given not less than ten (10) nor more
than sixty (60) days before the date of the meeting to
each stockholder entitled to vote at such meeting. If
mailed, such notice shall be deemed to be given when
deposited in the United States mail, postage prepaid,
directed to the stockholder at his address as it appears
on the records of the Corporation.
Section 1.4. Adjournments. Any meeting of
------------
stockholders, annual or special, may adjourn from time to
time to reconvene at the same or some other place, and
notice need not be given of any such adjourned meeting if
the time and place thereof are announced at the meeting at
which the adjournment is taken. At the adjourned meeting
the Corporation may transact any business which might have
been transacted at the original meeting. If the adjourn-
ment is for more than thirty (30) days, or if after the
adjournment a new record date is fixed for the adjourned
meeting, notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote at the
meeting.
Section 1.5. Quorum. At each meeting of
------
stockholders, except where otherwise provided by law or
the certificate of incorporation or these by-laws, the
presence in person or by proxy of the holders of a
majority in voting power of the outstanding shares of
stock entitled to vote at the meeting shall be necessary
and sufficient to constitute a quorum. In the absence of
a quorum, the stockholders so present may, by a majority
in voting power thereof, adjourn the meeting from time to
time in the manner provided in Section 1.4 of these by-
laws until a quorum shall attend. Shares of its own stock
belonging to the Corporation or to another corporation, if
a majority of the shares entitled to vote in the election
of directors of such other corporation is held, directly
or indirectly, by the Corporation, shall neither be
entitled to vote nor be counted for quorum purposes;
provided, however, that the foregoing shall not limit the
right of the Corporation or any subsidiary of the
Corporation to vote stock, including but not limited to
its own stock, held by it in a fiduciary capacity.
Section 1.6. Organization. Meetings of
------------
stockholders shall be presided over by the Chairman of the
Board, if any, or in his absence by the Vice Chairman of
the Board, if any, or in his absence by the President, or
in his absence by a Vice President, or in the absence of
the foregoing persons by a chairman designated by the
Board of Directors, or in the absence of such designation
by a chairman chosen at the meeting. The Secretary shall
act as secretary of the meeting, but in his absence the
chairman of the meeting may appoint any person to act as
secretary of the meeting.
Section 1.7. Voting; Proxies. Unless otherwise
---------------
provided in the certificate of incorporation, each
stockholder entitled to vote at any meeting of
stockholders shall be entitled to one vote for each stock
of stock held by such stockholder which has voting power
upon the matter in question. Each stockholder entitled to
vote at a meeting of stockholders or to express consent or
dissent to corporate action in writing without a meeting
may authorize another person or persons to act for such
stockholder by proxy, but no such proxy shall be voted or
acted upon after three years from its date, unless the
proxy provides for a longer period. A duly executed proxy
shall be irrevocable if it states that it is irrevocable
and if, and only as long as, it is coupled with an
interest sufficient in law to support an irrevocable
power. A stockholder may revoke any proxy which is not
irrevocable by attending the meeting and voting in person
or by filing an instrument in writing revoking the proxy
or by delivering a proxy in accordance with applicable law
bearing a later date to the Secretary of the Corporation.
Voting at meetings of stockholders need not be by written
ballot and need not be conducted by inspectors unless the
holders of a majority in voting power of the outstanding
shares of stock of the Corporation entitled to vote
thereon present in person or by proxy at such meeting
shall so determine. At all meetings of stockholders for
the election of directors a plurality of the votes cast
shall be sufficient to elect directors. All other
elections and questions shall, unless otherwise provided
by the certificate of incorporation, these by-laws, the
rules or regulations of any stock exchange applicable to
the Corporation, as otherwise provided by law or pursuant
to any regulation applicable to the Corporation, be
decided by the affirmative vote of the holders of a
majority in voting power of the shares of stock of the
Corporation which are present in person or by proxy and
entitled to vote thereon.
Section 1.8. Fixing Date for Determination of
--------------------------------
Stockholders of Record. In order that the Corporation may
----------------------
determine the stockholders entitled to notice of or to
vote at any meeting of stockholders or any adjournment
thereof, or to express consent to corporate action in
writing without a meeting, or entitled to receive payment
of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of
any change, conversion or exchange of stock or for the
purpose of any other lawful action, the Board of Directors
may fix a record date, which record date shall not precede
the date upon which the resolution fixing the record date
is adopted by the Board of Directors, and which record
date: (1) in the case of determination of stockholders
entitled to vote at any meeting of stockholders or
adjournment thereof, shall, unless otherwise required by
law, not be more than sixty (60) nor less than ten (10)
days before the date of such meeting; (2) in the case of
determination of stockholders entitled to express consent
to corporate action in writing without a meeting, shall
not be more than ten (10) days from the date upon which
the resolution fixing the record date is adopted by the
Board of Directors; and (3) in the case of any other
action, shall not be more than sixty (60) days prior to
such other action. If no record date is fixed: (1) the
record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be
at the close of business on the day next preceding the day
on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on
which the meeting is held; (2) the record date for
determining stockholders entitled to express consent to
corporate action in writing without a meeting, when no
prior action of the Board of Directors is required by law,
shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is
delivered to the Corporation in accordance with applicable
law, or, if prior action by the Board of Directors is
required by law, shall be at the close of business on the
day on which the Board of Directors adopts the resolution
taking such prior action; and (3) the record date for
determining stockholders for any other purpose shall be at
the close of business on the day on which the Board of
Directors adopts the resolution relating thereto. A
determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to
any adjournment of the meeting; provided, however, that
the Board of Directors may fix a new record date for the
adjourned meeting.
Section 1.9. List of Stockholders Entitled to
--------------------------------
Vote. The Secretary shall prepare and make, at least ten
----
(10) days before every meeting of stockholders, a complete
list of the stockholders entitled to vote at the meeting,
arranged in alphabetical order, and showing the address of
each stockholder and the number of stocks registered in
the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours,
for a period of at least ten (10) days prior to the
meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in
the notice of the meeting, or, if not so specified, at the
place where the meeting is to be held. The list shall
also be produced and kept at the time and place of the
meeting during the whole time thereof and may be inspected
by any stockholder who is present. Upon the willful
neglect or refusal of the directors to produce such a list
at any meeting for the election of directors, they shall
be ineligible for election to any office at such meeting.
Except as otherwise provided by law, the stock ledger
shall be the only evidence as to who are the stockholders
entitled to examine the stock ledger, the list of
stockholders or the books of the Corporation, or to vote
in person or by proxy at any meeting of stockholders.
Section 1.10. Action By Written Consent of
----------------------------
Stockholders. Unless otherwise restricted by the
------------
certificate of incorporation, any action required or
permitted to be taken at any annual or special meeting of
the stockholders may be taken without a meeting, without
prior notice and without a vote, if a consent or consents
in writing, setting forth the action so taken, shall be
signed by the holders of outstanding stock having not less
than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which all
shares entitled to vote thereon were present and voted and
shall be delivered to the Corporation by delivery to its
registered office in the State of Delaware, its principal
place of business, or an officer or agent for the
Corporation having custody of the book in which minutes of
proceedings of stockholders are recorded. Delivery made
to the Corporation's registered office shall be by hand or
by certified or registered mail, return receipt requested.
Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent
shall, to the extent required by law, be given to those
stockholders who have not consented in writing.
Section 1.11. Inspectors of Election. The
----------------------
Corporation may, and shall if required by law, in advance
of any meeting of stockholders, appoint one or more
inspectors of election, who may be employees of the
Corporation, to act at the meeting or any adjournment
thereof and to make a written report thereof. The
Corporation may designate one or more persons as alternate
inspectors to replace any inspector who fails to act. In
the event that no inspector so appointed or designated is
able to act at a meeting of stockholders, the person
presiding at the meeting shall appoint one or more
inspectors to act at the meeting. Each inspector, before
entering upon the discharge of his or her duties, shall
take and sign an oath to execute faithfully the duties of
inspector with strict impartiality and according to the
best of his or her ability. The inspector or inspectors
so appointed or designated shall (i) ascertain the number
of shares of capital stock of the Corporation outstanding
and the voting power of each such share, (ii) determine
the shares of capital stock of the Corporation represented
at the meeting and the validity of proxies and ballots,
(iii) count all votes and ballots, (iv) determine and
retain for a reasonable period a record of the disposition
of any challenges made to any determination by the
inspectors, and (v) certify their determination of the
number of shares of capital stock of the Corporation
represented at the meeting and such inspectors' count of
all votes and ballots. Such certification and report
shall specify such other information as may be required by
law. In determining the validity and counting of proxies
and ballots cast at any meeting of stockholders of the
Corporation, the inspectors may consider such information
as is permitted by applicable law. No person who is a
candidate for an office at an election may serve as an
inspector at such election.
Section 1.12. Conduct of Meetings. The date and
-------------------
time of the opening and the closing of the polls for each
matter upon which the stockholders will vote at a meeting
shall be announced at the meeting by the person presiding
over the meeting. The Board of Directors may adopt by
resolution such rules and regulations for the conduct of
the meeting of stockholders as it shall deem appropriate.
Except to the extent inconsistent with such rules and
regulations as adopted by the Board of Directors, the
chairman of any meeting of stockholders shall have the
right and authority to prescribe such rules, regulations
and procedures and to do all such acts as, in the judgment
of such chairman, are appropriate for the proper conduct
of the meeting. Such rules, regulations or procedures,
whether adopted by the Board of Directors or prescribed by
the chairman of the meeting, may include, without
limitation, the following: (i) the establishment of an
agenda or order of business for the meeting; (ii) rules
and procedures for maintaining order at the meeting and
the safety of those present; (iii) limitations on
attendance at or participation in the meeting to
stockholders of record of the Corporation, their duly
authorized and constituted proxies or such other persons
as the chairman of the meeting shall determine; (iv)
restrictions on entry to the meeting after the time fixed
for the commencement thereof; and (v) limitations on the
time allotted to questions or comments by participants.
Unless and to the extent determined by the Board of
Directors or the chairman of the meeting, meetings of
stockholders shall not be required to be held in
accordance with the rules of parliamentary procedure.
ARTICLE II
Board of Directors
------------------
Section 2.1. Number; Qualifications. The Board
----------------------
of Directors shall consist of one or more members, the
number thereof to be determined from time to time by
resolution of the Board of Directors. Directors need not
be stockholders.
Section 2.2. Election; Term of Office; Resigna
---------------------------------
tion; Removal; Vacancies; Special Elections. The Board of
-------------------------------------------
Directors shall initially consist of the persons elected
by the incorporator of the Corporation, and each director
so elected shall hold office until the first annual
meeting of stockholders or until his successor is duly
elected and qualified. At the first annual meeting of
stockholders and at each annual meeting thereafter, the
stockholders shall elect directors each of whom shall hold
office for a term of one year or until his successor is
duly elected and qualified, subject to such director's
earlier death, disqualification or removal. Any director
may resign at any time upon written notice to the
Corporation. Such resignation shall take effect at the
time specified therein, and unless otherwise specified
therein no acceptance of such resignation shall be
necessary to make it effective. Any director may be
removed with or without cause at any time upon the
affirmative vote of the holders of a majority of the
outstanding shares of stock of the Corporation entitled to
vote for the election of such director, given at a special
meeting of such stockholders called for the purpose.
Unless otherwise provided by law or the certificate of
incorporation, any newly created directorships or any
vacancy occurring in the Board of Directors for any cause
may be filled by a majority of the remaining members of
the Board of Directors, although such majority is less
than a quorum; or by a plurality of the votes cast at a
meeting of stockholders, and each director so elected
shall hold office until the expiration of the term of
office of the director whom he has replaced or until his
successor is elected and qualified.
Section 2.3. Regular Meetings. Regular meetings
----------------
of the Board of Directors may be held at such places
within or without the State of Delaware and at such times
as the Board of Directors may from time to time determine.
Section 2.4. Special Meetings. Special meetings
----------------
of the Board of Directors may be held at any time or place
within or without the State of Delaware whenever called by
the President, any Vice President, the Secretary, or by
any member of the Board of Directors. Notice thereof
shall be given by the person or persons calling the
meeting at least twenty-four hours before the special
meeting.
Section 2.5. Telephonic Meetings Permitted.
-----------------------------
Member of the Board of Directors, or any committee
designated by the Board of Directors, may participate in a
meeting of the Board or of such committee, as the case may
be, by means of conference telephone or similar
communications equipment by means of which all persons
participating in the meeting can hear each other, and
participation in a meeting pursuant to this by-law shall
constitute presence in person at such meeting.
Section 2.6. Quorum; Vote Required for Action.
--------------------------------
At all meetings of the Board of Directors a majority of
the whole Board of Directors shall constitute a quorum for
the transaction of business. Except in cases in which the
certificate of incorporation, these by-laws or applicable
law otherwise provides, the vote of a majority of the
directors present at any meeting at which a quorum is
present shall be the act of the Board of Directors.
Section 2.7. Organization. Meetings of the Board
------------
of Directors shall be presided over by the Chairman of the
Board, if any, or in his absence by the Vice Chairman of
the Board, if any, or in his absence by the President, or
in their absence by a chairman chosen at the meeting. The
Secretary shall act as secretary of the meeting, but in
his absence the chairman of the meeting may appoint any
person to act as secretary of the meeting.
Section 2.8. Action by Written Consent of
----------------------------
Directors. Unless otherwise restricted by the certificate
---------
of incorporation or these by-laws, any action required or
permitted to be taken at any meeting of the Board of
Directors, or of any committee thereof, may be taken
without a meeting if all members of the Board of Directors
or such committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the
minutes of proceedings of the Board of Directors or
committee.
ARTICLE III
Committees
----------
Section 3.1. Committees. The Board of Directors
----------
may designate one or more committees, each committee to
consist of one or more of the directors of the
Corporation. The Board of Directors may designate one or
more directors as alternate members of any committee, who
may replace any absent or disqualified member at any
meeting of the committee. In the absence or
disqualification of a member of the committee, the member
or members thereof present at any meeting and not
disqualified from voting, whether or not he or they
constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in
place of any such absent or disqualified member. Any such
committee, to the extent permitted by law and to the
extent provided in the resolution of the Board of
Directors, shall have and may exercise all the powers and
authority of the Board of Directors in the management of
the business and affairs of the Corporation, and may
authorize the seal of the Corporation to be affixed to all
papers which may require it.
Section 3.2. Committee Rules. Unless the Board
---------------
of Directors otherwise provides, each committee designated
by the Board of Directors may make, alter and repeal rules
for the conduct of its business. In the absence of such
rules each committee shall conduct its business in the
same manner as the Board of Directors conducts its
business pursuant to Article II of these by-laws.
ARTICLE IV
Officers
--------
Section 4.1. Executive Officers; Election;
-----------------------------
Qualifications; Term of Office; Resignation; Removal;
-----------------------------------------------------
Vacancies. The Board of Directors shall elect a President
---------
and a Secretary, and it may, if it so determines, choose a
Chairman of the Board and a Vice Chairman of the Board
from among its members. The Board of Directors may also
choose one or more Vice Presidents, one or more Assistant
Secretaries, a Treasurer and one or more Assistant
Treasurers. Except as otherwise provided in the
resolution of the Board of Directors electing any officer,
each officer shall hold office until the first meeting of
the Board of Directors after the annual meeting of
stockholders next succeeding his election, and until his
successor is elected and qualified or until his earlier
resignation or removal. Any officer may resign at any
time upon written notice to the Corporation. Such
resignation shall take effect at the time specified
therein, and unless otherwise specified therein no
acceptance of such resignation shall be necessary to make
it effective. The Board of Directors may remove any
officer with or without cause at any time, but such
removal shall be without prejudice to the contractual
rights of such officer, if any, with the Corporation. The
election of an officer shall not of itself create
contractual rights. Any number of offices may be held by
the same person. Any vacancy occurring in any office of
the Corporation by death, resignation, removal or
otherwise may be filled for the unexpired portion of the
term by the Board of Directors at any regular or special
meeting or as authorized by it.
Section 4.2. Powers and Duties of Executive
------------------------------
Officers. The officers of the Corporation shall have such
--------
powers and duties in the management of the Corporation as
may be prescribed in a resolution by the Board of
Directors and, to the extent not so provided, as generally
pertain to their respective offices, subject to the
control of the Board of Directors. The Board of Directors
may require any officer, agent or employee to give
security for the faithful performance of his duties.
ARTICLE V
Stock
-----
Section 5.1. Certificates. Certificates of stock
------------
shall be issued in such form as may be approved by the
Board of Directors and shall be signed by or in the name
of the Corporation by the Chairman or Vice Chairman of the
Board of Directors, if any, or the President or a Vice
President, and by the Treasurer or an Assistant Treasurer,
or the Secretary or an Assistant Secretary, of the
Corporation certifying the number of shares owned by him
in the Corporation. Any of or all of the signatures on
the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be
issued by the Corporation with the same effect as if he
were such officer, transfer agent or registrar at the date
of issue.
Section 5.2. Lost, Stolen or Destroyed Stock
-------------------------------
Certificates; Issuance of New Certificates. The Corporation
------------------------------------------
may issue a new certificate of stock in the place of any
certificate theretofore issued by it, alleged to have been
lost, stolen or destroyed, and the Corporation may require
the owner of the lost, stolen or destroyed certificate, or
his legal representative, to give the Corporation a bond
sufficient to indemnify it against any claim that may be
made against it on account of the alleged loss, theft or
destruction of any such certificate or the issuance of
such new certificate.
ARTICLE VI
Indemnification
---------------
Section 6.1. Right to Indemnification. The
------------------------
Corporation shall indemnify and hold harmless, to the
fullest extent permitted by applicable law as it presently
exists or may hereafter be amended, any person (an
"Indemnitee") who was or is made or is threatened to be
made a party or is otherwise involved in any action, suit
or proceeding, whether civil, criminal, administrative or
investigative (a "proceeding"), by reason of the fact that
he, or a person for whom he is the legal representative,
is or was a director or officer of the Corporation or,
while a director or officer of the Corporation, is or was
serving at the written request of the Corporation as a
director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust,
enterprise or nonprofit entity, including service with
respect to employee benefit plans, against all liability
and loss suffered and expenses (including attorneys' fees)
reasonably incurred by such Indemnitee. Notwithstanding
the preceding sentence, except as otherwise provided in
Section 6.3, the Corporation shall be required to
indemnify an Indemnitee in connection with a proceeding
(or part thereof) commenced by such Indemnitee only if the
commencement of such proceeding (or part thereof) by the
Indemnitee was authorized by the Board of Directors.
Section 6.2. Prepayment of Expenses. The
----------------------
Corporation shall pay the expenses (including attorneys' fees)
incurred by an Indemnitee in defending any proceeding in
advance of its final disposition, provided, however,
-------- -------
that, to the extent required by law, such payment of
expenses in advance of the final disposition of the
proceeding shall be made only upon receipt of an
undertaking by the Indemnitee to repay all amounts
advanced if it should be ultimately determined that the
Indemnitee is not entitled to be indemnified under this
Article VI or otherwise.
Section 6.3. Claims. If a claim for
------
indemnification or payment of expenses under this Article
VI is not paid in full within sixty (60) days after a
written claim therefor by the Indemnitee has been received
by the Corporation, the Indemnitee may file suit to
recover the unpaid amount of such claim and, if successful
in whole or in part, shall be entitled to be paid the
expense of prosecuting such claim. In any such action the
Corporation shall have the burden of providing that the
Indemnitee is not entitled to the requested
indemnification or payment of expenses under applicable
law.
Section 6.4. Nonexclusivity of Rights. The
------------------------
rights conferred on any Indemnitee by this Article VI
shall not be exclusive of any other rights which such
Indemnitee may have or hereafter acquire under any
statute, provision of the certificate of incorporation,
these by-laws, agreement, vote of stockholders or
disinterested directors or otherwise.
Section 6.5. Other Sources. The Corporation's
-------------
obligation, if any, to indemnify or to advance expenses to
any Indemnitee who was or is serving at its request as a
director, officer, employee or agent of another
corporation, partnership, joint venture, trust, enterprise
or nonprofit entity shall be reduced by any amount such
Indemnitee may collect as indemnification or advancement
of expenses from such other corporation, partnership,
joint venture, trust, enterprise or non-profit enterprise.
Section 6.6. Amendment or Repeal. Any repeal or
-------------------
modification of the foregoing provisions of this Article
VI shall not adversely affect any right or protection
hereunder of any Indemnitee in respect of any act or
omission occurring prior to the time of such repeal of
modification.
Section 6.7. Other Indemnification and Prepayment
------------------------------------
of Expenses. This Article VI shall not limit the right of
-----------
the Corporation, to the extent and in the manner permitted
by law, to indemnify and to advance expenses to persons
other than Indemnitees when and as authorized by
appropriate corporate action.
ARTICLE VII
Amendments
----------
Section 7.1 Amendments. These By-laws may be altered,
----------
amended or repealed at any regular meeting of the stockholders
or of the Board of Directors, or at any special meeting of the
stockholders or of the Board of Directors if notice of such
alteration, amendment or repeal be contained in the notice of
such special meeting.
ARTICLE VIII
Miscellaneous
-------------
Section 8.1. Seal. The Corporation may have a
----
corporate seal which shall have the name of the Corpora-
tion inscribed thereon and shall be in such form as may be
approved from time to time by the Board of Directors. The
application of the corporate seal shall not be necessary to
the valid execution, assignment or endorsement by the
Corporation of any instrument or other document.
Section 8.2. Manner of Notice. Except as
----------------
otherwise provided herein, notices to directors and
stockholders shall be in writing and delivered personally
or mailed to the directors or stockholders at their
addresses appearing on the books of the Corporation.
Notice to directors may be given by telegram, telecopier,
telephone or other means of electronic transmission.
Section 8.3. Notice of Meeting of Stockholders,
----------------------------------
Directors and Committees. Any written waiver, signed by the
------------------------
person entitled to notice, whether before or after the
time stated therein, shall be deemed equivalent to notice.
Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person
attends a meeting for the express purpose of objecting, at
the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or
convened. Neither the business to be transacted at nor
the purpose of any regular or special meeting of the
stockholders, directors, or members of a committee of
directors need be specified in any written waiver of
notice.
Section 8.4. Form of Records. Any records
---------------
maintained by the Corporation in the regular course of its
business, including its stock ledger, books of account and
minute books, may be kept on, or be in the form of, punch
cards, magnetic tape, photographs, microphotographs or any
other information storage device, provided that the
records so kept can be converted into clearly legible form
within a reasonable time.
Section 8.5. Fiscal Year. The fiscal year of the
-----------
Corporation shall be determined by resolution of the Board
of Directors.
Section 8.6. Interested Directors; Quorum. No
----------------------------
contract or transaction between the Corporation and one or
more of its directors or officers, or between the
Corporation and any other corporation, partnership,
association, or other organization in which one or more of
its directors or officers are directors or officers, or
have a financial interest, shall be void or voidable
solely for this reason, or solely because the director or
officer is present at or participates in the meeting of
the Board of Directors or committee thereof which
authorizes the contract or transaction, or solely because
his or their votes are counted for such purpose, if: (1)
the material facts as to his relationship or interest and
as to the contract or transaction are disclosed or are
known to the Board of Directors or the committee, and the
Board of Directors or committee in good faith authorizes
the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (2) the
material facts as to his relationship or interest and as
to the contract or transaction are disclosed or are known
to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good
faith by vote of the stockholders; or (3) the contract or
transaction is fair as to the Corporation as of the time
it is authorized, approved or ratified, by the Board of
Directors, a committee thereof, or the stockholders.
Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the
Board of Directors or of a committee which authorizes the
contract or transaction.
Section 8.7. Voting of Stock Held. Unless
--------------------
otherwise provided by resolution of the Board of
Directors, the President or any Vice President may from
time to time appoint an attorney or attorneys or agent or
agents of the Corporation, in the name and on behalf of
the Corporation, to cast the votes which the Corporation
may be entitled to cast as a stockholder or otherwise in
any other corporation or association, any of whose stock
or securities may be held by the Corporation, at meetings
of the holders of the stock or other securities of such
other corporations or associations, or to consent in
writing to any action by any such other corporation or
association, and may instruct the person or persons so
appointed as to the manner of casting such votes or giving
such consent, and may execute or cause to be executed on
behalf of the Corporation and under its corporate seal, or
otherwise, such written proxies, consents, waivers or
other instruments as he may deem necessary or proper in
the premises; or any such officer may himself attend any
meeting of the holders of stock or other securities of any
such other corporation or association and thereat vote or
exercise any or all other powers of the Corporation as the
holder of such stock or other securities of such other
corporation or association, or may consent in writing to
any action by any such other corporation or association.
October 1, 1997
Exhibit 4.1
__________________________________________
PP&L CAPITAL FUNDING, INC.,
ISSUER
AND
PP&L RESOURCES, INC.,
GUARANTOR
TO
THE CHASE MANHATTAN BANK,
TRUSTEE
_________
INDENTURE
DATED AS OF OCTOBER 1, 1997
__________________________________________
<PAGE>
TABLE OF CONTENTS
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE Definitions and Other Provisions of
General Application . . . . . . . . . . . 2
SECTION 101. Definitions . . . . . . . . . . . . . 2
Act . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . 2
Authorized Officer . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . 3
Board Resolution . . . . . . . . . . . . . . . 3
Business Day . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . 3
Company Order or Company Request . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . 3
corporation . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . 3
Discount Security . . . . . . . . . . . . . . 3
Dollar or $ . . . . . . . . . . . . . . . . . 3
Eligible Obligations . . . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . 4
Exchange Act . . . . . . . . . . . . . . . . . 4
Government Obligations . . . . . . . . . . . . 4
Guarantee . . . . . . . . . . . . . . . . . . 4
Guarantor . . . . . . . . . . . . . . . . . . 4
Guarantor Order or Guarantor Request . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . 4
interest . . . . . . . . . . . . . . . . . . . 5
Interest Payment Date . . . . . . . . . . . . 5
Maturity . . . . . . . . . . . . . . . . . . . 5
Notice of Default . . . . . . . . . . . . . . 5
Officer's Certificate . . . . . . . . . . . . 5
Opinion of Counsel . . . . . . . . . . . . . . 5
Outstanding . . . . . . . . . . . . . . . . . 5
Paying Agent . . . . . . . . . . . . . . . . . 6
Periodic Offering . . . . . . . . . . . . . . 6
Person . . . . . . . . . . . . . . . . . . . . 6
Place of Payment . . . . . . . . . . . . . . . 7
Predecessor Security . . . . . . . . . . . . . 7
Redemption Date . . . . . . . . . . . . . . . 7
Redemption Price . . . . . . . . . . . . . . . 7
Regular Record Date . . . . . . . . . . . . . 7
Required Currency . . . . . . . . . . . . . . 7
Responsible Officer . . . . . . . . . . . . . 7
Securities . . . . . . . . . . . . . . . . . . 7
Security Register and Security Registrar . . . 7
Special Record Date . . . . . . . . . . . . . 7
Stated Interest Rate . . . . . . . . . . . . . 7
Stated Maturity . . . . . . . . . . . . . . . 8
Tranche . . . . . . . . . . . . . . . . . . . 8
Trustee . . . . . . . . . . . . . . . . . . . 8
Trust Indenture Act . . . . . . . . . . . . . 8
United States . . . . . . . . . . . . . . . . 8
SECTION 102. Compliance Certificates and
Opinions . . . . . . . . . . . . . . 8
SECTION 103. Form of Documents Delivered to
Trustee . . . . . . . . . . . . . . . 9
SECTION 104. Acts of Holders . . . . . . . . . . . 10
SECTION 105. Notices, Etc. to Trustee, Company or
Guarantor . . . . . . . . . . . . . . 11
SECTION 106. Notice to Holders of Securities;
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 TWO Security Forms . . . . . . . . . . . . . 14
SECTION 201. Forms Generally . . . . . . . . . . . 14
SECTION 202. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . 15
ARTICLE THREE The Securities . . . . . . . . . . . . . 15
SECTION 301. Amount Unlimited; Issuable in
Series . . . . . . . . . . . . . . . 15
SECTION 302. Denominations . . . . . . . . . . . . 18
SECTION 303. Execution, Authentication, Delivery
and Dating . . . . . . . . . . . . . 19
SECTION 304. Temporary Securities . . . . . . . . 21
SECTION 305. Registration, Registration of
Transfer and Exchange . . . . . . . . 22
SECTION 306. Mutilated, Destroyed, Lost and
Stolen Securities . . . . . . . . . . 23
SECTION 307. Payment of Interest; Interest Rights
Preserved . . . . . . . . . . . . . . 24
SECTION 308. Persons Deemed Owners . . . . . . . . 25
SECTION 309. Cancellation . . . . . . . . . . . . 25
SECTION 310. Computation of Interest . . . . . . . 26
SECTION 311. Payment to Be in Proper Currency . . 26
ARTICLE FOUR Redemption of Securities . . . . . . . . 26
SECTION 401. Applicability of Article . . . . . . 26
SECTION 402. Election to Redeem; Notice to
Trustee . . . . . . . . . . . . . . . 26
SECTION 403. Selection of Securities to Be
Redeemed . . . . . . . . . . . . . . 27
SECTION 404. Notice of Redemption. . . . . . . . . 27
SECTION 405. Securities Payable on Redemption
Date . . . . . . . . . . . . . . . . 28
SECTION 406. Securities Redeemed in Part . . . . . 28
ARTICLE FIVE Sinking Funds . . . . . . . . . . . . . . 29
SECTION 501. Applicability of Article . . . . . . 29
SECTION 502. Satisfaction of Sinking Fund
Payments with Securities . . . . . . 29
SECTION 503. Redemption of Securities for Sinking
Fund . . . . . . . . . . . . . . . . 29
ARTICLE SIX Covenants . . . . . . . . . . . . . . . . 30
SECTION 601. Payment of Principal, Premium and
Interest . . . . . . . . . . . . . . 30
SECTION 602. Maintenance of Office or Agency . . . 30
SECTION 603. Money for Securities Payments to Be
Held in Trust . . . . . . . . . . . . 31
SECTION 604. Corporate Existence . . . . . . . . . 32
SECTION 605. Annual Officer's Certificate . . . . 32
SECTION 606. Waiver of Certain Covenants . . . . . 33
ARTICLE SEVEN Satisfaction and Discharge . . . . . . . 33
SECTION 701. Satisfaction and Discharge of
Securities . . . . . . . . . . . . . 33
SECTION 702. Satisfaction and Discharge of
Indenture . . . . . . . . . . . . . . 35
SECTION 703. Application of Trust Money . . . . . 36
ARTICLE EIGHT Events of Default; Remedies . . . . . . . 36
SECTION 801. Events of Default . . . . . . . . . . 36
SECTION 802. Acceleration of Maturity; Rescission
and Annulment . . . . . . . . . . . . 38
SECTION 803. Collection of Indebtedness and Suits
for Enforcement by Trustee . . . . . 39
SECTION 804. Trustee May File Proofs of Claim . . 39
SECTION 805. Trustee May Enforce Claims Without
Possession of Securities . . . . . . 40
SECTION 806. Application of Money Collected . . . 40
SECTION 807. Limitation on Suits . . . . . . . . . 41
SECTION 808. Unconditional Right of Holders to
Receive Principal, Premium and
Interest . . . . . . . . . . . . . . 41
SECTION 809. Restoration of Rights and Remedies . 41
SECTION 810. Rights and Remedies Cumulative . . . 42
SECTION 811. Delay or Omission Not Waiver . . . . 42
SECTION 812. Control by Holders of Securities . . 42
SECTION 813. Waiver of Past Defaults . . . . . . . 42
SECTION 814. Undertaking for Costs . . . . . . . . 43
SECTION 815. Waiver of Usury, Stay or Extension
Laws . . . . . . . . . . . . . . . . 43
ARTICLE NINE The Trustee . . . . . . . . . . . . . . . 43
SECTION 901. Certain Duties and Responsibilities . 43
SECTION 902. Notice of Defaults . . . . . . . . . 44
SECTION 903. Certain Rights of Trustee . . . . . . 45
SECTION 904. Not Responsible for Recitals or
Issuance of Securities . . . . . . . 46
SECTION 905. May Hold Securities . . . . . . . . . 46
SECTION 906. Money Held in Trust . . . . . . . . . 46
SECTION 907. Compensation and Reimbursement . . . 46
SECTION 908. Disqualification; Conflicting
Interests . . . . . . . . . . . . . . 47
SECTION 909. Corporate Trustee Required;
Eligibility . . . . . . . . . . . . . 47
SECTION 910. Resignation and Removal; Appointment
of Successor . . . . . . . . . . . . 48
SECTION 911. Acceptance of Appointment by
Successor . . . . . . . . . . . . . . 49
SECTION 912. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . 50
SECTION 913. Preferential Collection of Claims
Against Company . . . . . . . . . . . 51
SECTION 914. Appointment of Authenticating Agent . 51
SECTION 915. Co-trustee and Separate Trustees. . . 52
ARTICLE TEN Holders' Lists and Reports by Trustee,
Company and Guarantor . . . . . . . . . . 54
SECTION 1001. Lists of Holders. . . . . . . . . . 54
SECTION 1002. Reports by Trustee, Company and
Guarantor. . . . . . . . . . . . . . 54
ARTICLE ELEVEN Consolidation, Merger, Conveyance, or
Other Transfer . . . . . . . . . . . . . 54
SECTION 1101. Company or Guarantor May
Consolidate, Etc., Only on Certain
Terms . . . . . . . . . . . . . . . 54
SECTION 1102. Successor Person Substituted . . . . 55
SECTION 1103. Merger into Company . . . . . . . . 55
ARTICLE TWELVE Supplemental Indentures . . . . . . . . . 56
SECTION 1201. Supplemental Indentures Without
Consent of Holders . . . . . . . . . 56
SECTION 1202. Supplemental Indentures With
Consent of Holders . . . . . . . . . 57
SECTION 1203. Execution of Supplemental
Indentures . . . . . . . . . . . . . 59
SECTION 1204. Effect of Supplemental Indentures . 59
SECTION 1205. Conformity With Trust Indenture
Act . . . . . . . . . . . . . . . . 59
SECTION 1206. Reference in Securities to
Supplemental Indentures . . . . . . 59
SECTION 1207. Modification Without Supplemental
Indenture . . . . . . . . . . . . . 59
ARTICLE THIRTEEN Meetings of Holders; Action Without
Meeting . . . . . . . . . . . . . . 60
SECTION 1301. Purposes for Which Meetings May Be
Called . . . . . . . . . . . . . . . 60
SECTION 1302. Call, Notice and Place of Meetings . 60
SECTION 1303. Persons Entitled to Vote at
Meetings . . . . . . . . . . . . . . 61
SECTION 1304. Quorum; Action . . . . . . . . . . . 61
SECTION 1305. Attendance at Meetings;
Determination of Voting Rights;
Conduct and Adjournment of Meetings 62
SECTION 1306. Counting Votes and Recording Action
of Meetings . . . . . . . . . . . . 62
SECTION 1307. Action Without Meeting . . . . . . . 63
ARTICLE FOURTEEN Guarantee . . . . . . . . . . . . . 63
SECTION 1401. Guarantee. . . . . . . . . . . . . . 63
SECTION 1402. Execution and Delivery of
Guarantee. . . . . . . . . . . . . . 64
ARTICLE FIFTEEN Immunity of Incorporators,
Stockholders, Officers and Directors 65
SECTION 1501. Liability Solely Corporate . . . . . 65
Testimonium . . . . . . . . . . . . . . . . . . . . . . . . . 71
Signatures and Seals . . . . . . . . . . . . . . . . . . . . 71
Acknowledgements . . . . . . . . . . . . . . . . . . . . . . 72
<PAGE>
PP&L CAPITAL FUNDING, INC.
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of October 1, 1997
Trust Indenture Act Section Indenture Section
Section 310 (a)(1) . . . . . 909
(a)(2) . . . . . 909
(a)(3) . . . . . 915
(a)(4) . . . . . Not Applicable
(b) . . . . . . 908
910
Section 311 (a) . . . . . . 913
(b) . . . . . . 913
(c) . . . . . . Not Applicable
Section 312 (a) . . . . . . 1001
(b) . . . . . . 1001
(c) . . . . . . 1001
Section 313 (a) . . . . . . 1002
(b)(1) . . . . . Not Applicable
(b)(2) . . . . . 1002
(c) . . . . . . 1002
(d) . . . . . . 1002
Section 314 (a) . . . . . . 1002
(a)(4) . . . . . 605
(b) . . . . . . Not Applicable
(c)(1) . . . . . 102
(c)(2) . . . . . 102
(c)(3) . . . . . Not Applicable
(d) . . . . . . Not Applicable
(e) . . . . . . 102
Section 315 (a) . . . . . . 901(a)
(b) . . . . . . 902
(c) . . . . . . 901(b)
(d) . . . . . . 901(c)
(d)(1) . . . . . 901(a)(1), 901(c)(1)
(d)(2) . . . . . 901(c)(2)
(d)(3) . . . . . 901(c)(3)
(e) . . . . . . 814
Section 316 (a) . . . . . . 812
813
(a)(1)(A) . . . 802
812
(a)(1)(B) . . . 813
(a)(2) . . . . . Not Applicable
(b) . . . . . . 808
Section 317 (a)(1) . . . . . 803
(a)(2) . . . . . 804
(b) . . . . . . 603
Section 318 (a) . . . . . . 107
<PAGE>
INDENTURE, dated as of October 1, 1997 among PP&L
CAPITAL FUNDING, INC., a corporation duly organized and existing
under the laws of the State of Delaware (herein called the
"Company"), having its principal office at Two North Ninth
Street, Allentown, Pennsylvania 18101, PP&L RESOURCES, INC., a
corporation duly organized and existing under the laws of the
Commonwealth of Pennsylvania (herein called the "Guarantor"),
having its principal office at Two North Ninth Street, Allentown,
Pennsylvania 18101, and THE CHASE MANHATTAN BANK, a New York
banking corporation, having its principal corporate trust office
at 450 West 33rd Street, New York, New York 10001, as Trustee
(herein called the "Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time
to time of its unsecured debentures, notes or other evidences of
indebtedness (herein called the "Securities"), to be issued in
one or more series as contemplated herein, with Guarantees
endorsed thereon; and all acts necessary to make this Indenture a
valid agreement of the Company, in accordance with its terms,
have been performed.
RECITAL OF THE GUARANTOR
The Guarantor has duly authorized the execution and
delivery of this Indenture to provide for the Guarantee of the
Securities provided for herein; and all acts necessary to make
this Indenture a valid agreement of the Guarantor, in accordance
with its terms, have been performed.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of
all Holders of the Securities or of series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the
meanings assigned to them in this Article and include
the plural as well as the singular;
(b) all terms used herein which are defined in
the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them
therein;
(c) all accounting terms not otherwise defined
herein have the meanings assigned to them in accordance
with generally accepted accounting principles in the
United States of America, and, except as otherwise
herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation
required or permitted hereunder shall mean such
accounting principles as are generally accepted in the
United States of America at the date of such
computation;
(d) any reference to an "Article" or a "Section"
refers to an Article or a Section, as the case may be,
of this Indenture; and
(e) the words "herein", "hereof" and "hereunder"
and other words of similar import refer to this
Indenture as a whole and not to any particular Article,
Section or other subdivision.
Certain terms, used principally in Article Nine, are
defined in that Article.
"ACT", when used with respect to any Holder of a
Security, has the meaning specified in Section 104.
"AFFILIATE" of any specified Person means any other
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
Person. For the purposes of this definition, "CONTROL" when used
with respect to any specified Person means the power to direct
generally the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "CONTROLLING" and
"CONTROLLED" have meanings correlative to the foregoing.
"AUTHENTICATING AGENT" means any Person or Persons
authorized by the Trustee to act on behalf of the Trustee to
authenticate the Securities of one or more series.
"AUTHORIZED OFFICER" means the Chairman of the Board,
the President, any Vice President, the Treasurer, or any other
Person duly authorized by the Company or the Guarantor, as the
case requires, to act in respect of matters relating to this
Indenture.
"BOARD OF DIRECTORS" means either the board of
directors of the Company or the Guarantor, as the case requires,
or any committee of that board duly authorized to act in respect
of matters relating to this Indenture (including, in the case of
the Guarantor, the finance committee of the board of directors of
the Guarantor).
"BOARD RESOLUTION" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Company or the Guarantor, as the case requires, to have been duly
adopted by the Board of Directors of the Company or the
Guarantor, as the case requires, and to be in full force and
effect on the date of such certification, and delivered to the
Trustee.
"BUSINESS DAY", when used with respect to a Place of
Payment or any other particular location specified in the
Securities or this Indenture, means any day, other than a
Saturday or Sunday, which is not a day on which banking
institutions or trust companies in such Place of Payment or other
location are generally authorized or required by law, regulation
or executive order to remain closed, except as may be otherwise
specified as contemplated by Section 301.
"COMMISSION" means the Securities and Exchange
Commission, as from time to time constituted, created under the
Exchange Act, 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 ORDER" or "COMPANY REQUEST" mean,
respectively, a written order or request, as the case may be,
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 of this Indenture is located at 450 West 33rd
Street, New York, New York 10001.
"CORPORATION" means a corporation, association,
company, joint stock company or business trust.
"DEFAULTED INTEREST" has the meaning specified in
Section 307.
"DISCOUNT SECURITY" means any Security which provides
for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 802.
"DOLLAR" or "$" means a dollar or other equivalent unit
in such coin or currency of the United States of America as at
the time shall be legal tender for the payment of public and
private debts.
"ELIGIBLE OBLIGATIONS" means:
(a) with respect to Securities denominated in
Dollars, Government Obligations; or
(b) with respect to Securities 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 Securities, as
contemplated by Section 301.
"EVENT OF DEFAULT" has the meaning specified in Section
801.
"EXCHANGE ACT" means the Securities Exchange Act of
1934 and the rules and regulations promulgated thereunder, as
amended from time to time.
"GOVERNMENT OBLIGATIONS" means securities which are (a)
(i) direct obligations of the United States where the payment or
payments thereunder are supported by the full faith and credit of
the United States or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the
United States where the timely payment or payments thereunder are
unconditionally guaranteed as a full faith and credit obligation
by the United States or (b) depository receipts issued by a bank
(as defined in Section 3(a)(2) of the Securities Act) as
custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of or other amount
with respect to any such Government Obligation held by such
custodian for the account of the holder of a depository receipt,
provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific
payment of interest on or principal of or other amount with
respect to the Government Obligation evidenced by such depository
receipt.
"GUARANTEE" means any guarantee of the Guarantor
endorsed on a Security authenticated and delivered pursuant to
this Indenture and shall include the guarantee set forth in
Section 1401.
"GUARANTOR" means the Person named as "Guarantor" 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 "Guarantor" shall include such
successor Person.
"GUARANTOR ORDER" or "GUARANTOR REQUEST" mean,
respectively, a written order or request, as the case may be,
signed in the name of the Guarantor by an Authorized Officer of
the Guarantor and delivered to the Trustee.
"HOLDER" means a Person in whose name a Security is
registered in the Security Register.
"INDENTURE" means this instrument as originally
executed and as it may from time to time be supplemented or
amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof, including, for
all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this Indenture and any such
supplemental indenture, respectively. The term "Indenture" shall
also include the terms of particular series of Securities
established as contemplated by Section 301.
"INTEREST", when used with respect to a Discount
Security which by its terms bears interest only after Maturity,
means interest payable after Maturity.
"INTEREST PAYMENT DATE", when used with respect to any
Security, means the Stated Maturity of an installment of interest
on such Security.
"MATURITY", when used with respect to any Security,
means the date on which the principal of such Security or an
installment of principal becomes due and payable as provided in
such Security or in this Indenture, whether at the Stated
Maturity, by declaration of acceleration, upon call for
redemption or otherwise.
"NOTICE OF DEFAULT" means a written notice of the kind
specified in Section 801(c).
"OFFICER'S CERTIFICATE" means a certificate signed by
an Authorized Officer of the Company or the Guarantor, as the
case requires, and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of
counsel, who may be counsel for the Company or the Guarantor, and
who shall be acceptable to the Trustee.
"OUTSTANDING", when used with respect to Securities,
means, as of the date of determination, all Securities
theretofore authenticated and delivered under this Indenture,
except:
(a) Securities theretofore canceled or delivered
to the Trustee for cancellation;
(b) Securities deemed to have been paid for all
purposes of this Indenture in accordance with Section
701 (whether or not the Company's indebtedness in
respect thereof shall be satisfied and discharged for
any other purpose); and
(c) Securities which have been paid pursuant to
Section 306 or in exchange for or in lieu of which
other Securities have been authenticated and delivered
pursuant to this Indenture, other than any such
Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it and
the Company that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether or not the Holders
of the requisite principal amount of the Securities Outstanding
under this Indenture, or the Outstanding Securities of any series
or Tranche, have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or whether or not
a quorum is present at a meeting of Holders of Securities,
(x) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the
Company or of such other obligor (unless the Company,
such Affiliate or such obligor owns all Securities
Outstanding under this Indenture, or all Outstanding
Securities of each such series and each such Tranche,
as the case may be, determined without regard to this
clause (x)) shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice,
consent or waiver or upon any such determination as to
the presence of a quorum, only Securities which the
Trustee knows to be so owned shall be so disregarded;
provided, however, that Securities so owned which have
been pledged in good faith may be regarded as
Outstanding if it is established to the reasonable
satisfaction of the Trustee that the pledgee, and not
the Company, or any such other obligor or Affiliate of
either thereof, has the right so to act with respect to
such Securities and that the pledgee is not the Company
or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor;
(y) the principal amount of a Discount Security
that shall be deemed to be Outstanding for such
purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such
determination upon a declaration of acceleration of the
Maturity thereof pursuant to Section 802; and
(z) the principal amount of any Security which is
denominated in a currency other than Dollars or in a
composite currency that shall be deemed to be
Outstanding for such purposes shall be the amount of
Dollars which could have been purchased by the
principal amount (or, in the case of a Discount
Security, the Dollar equivalent on the date determined
as set forth below of the amount determined as provided
in (y) above) of such currency or composite currency
evidenced by such Security, in each such case certified
to the Trustee in an Officer's Certificate, based (i)
on the average of the mean of the buying and selling
spot rates quoted by three banks which are members of
the New York Clearing House Association selected by the
Company in effect at 11:00 A.M. (New York time) in The
City of New York on the fifth Business Day preceding
any such determination or (ii) if on such fifth
Business Day it shall not be possible or practicable to
obtain such quotations from such three banks, on such
other quotations or alternative methods of
determination which shall be as consistent as
practicable with the method set forth in (i) above;
provided, further, that in the case of any Security the principal
of which is payable from time to time without presentment or
surrender, the principal amount of such Security that shall be
deemed to be Outstanding at any time for all purposes of this
Indenture shall be the original principal amount thereof less the
aggregate amount of principal thereof theretofore paid.
"PAYING AGENT" means any Person, including the Company
or the Guarantor, authorized by the Company to pay the principal
of, and premium, if any, or interest, if any, on any Securities
on behalf of the Company or the Guarantor.
"PERIODIC OFFERING" means an offering of Securities of
a series from time to time any or all of the specific terms of
which Securities, including without limitation the rate or rates
of interest, if any, thereon, the Stated Maturity or Maturities
thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Company or its agents from
time to time subsequent to the initial request for the
authentication and delivery of such Securities by the Trustee, as
contemplated in Section 301 and clause (b) of Section 303.
"PERSON" means any individual, corporation,
partnership, limited liability company, joint venture, trust or
unincorporated organization or any government or any political
subdivision, instrumentality or agency thereof.
"PLACE OF PAYMENT", when used with respect to the
Securities of any series, or Tranche thereof, means the place or
places, specified as contemplated by Section 301, at which,
subject to Section 602, principal of and premium, if any, and
interest, if any, on the Securities of such series or Tranche are
payable.
"PREDECESSOR SECURITY" of any particular Security means
every previous Security evidencing all or a portion of the same
debt as that evidenced by such particular Security; and, for the
purposes of this definition, any Security authenticated and
delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"REDEMPTION DATE", when used with respect to any
Security to be redeemed, means the date fixed for such redemption
by or pursuant to this Indenture.
"REDEMPTION PRICE", when used with respect to any
Security to be redeemed, means the price at which it is to be
redeemed pursuant to this Indenture.
"REGULAR RECORD DATE" for the interest payable on any
Interest Payment Date on the Securities of any series means the
date specified for that purpose as contemplated by Section 301.
"REQUIRED CURRENCY" has the meaning specified in
Section 311.
"RESPONSIBLE OFFICER", when used with respect to the
Trustee, means the chairman or any vice-chairman of the board of
directors, the chairman or any vice-chairman of the executive
committee of the board of directors, the chairman of the trust
committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any senior trust officer, any
trust officer or assistant trust officer, the controller or any
assistant controller or any other officer of the Trustee
customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer of the
Trustee to whom such matter is referred because of his knowledge
of and familiarity with the particular subject.
"SECURITIES" has the meaning stated in the first
recital of this Indenture and more particularly means any
securities authenticated and delivered under this Indenture.
"SECURITIES ACT" means the Securities Act of 1933, and
the rules and regulations promulgated thereunder, as amended from
time to time.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the
respective meanings specified in Section 305.
"SPECIAL RECORD DATE" for the payment of any Defaulted
Interest on the Securities of any series means a date fixed by
the Trustee pursuant to Section 307.
"STATED INTEREST RATE" means a rate (whether fixed or
variable) at which an obligation by its terms is stated to bear
simple interest. Any calculation or other determination to be
made under this Indenture by reference to the Stated Interest
Rate on a Security shall be made without regard to the effective
interest cost to the Company of such Security and without regard
to the Stated Interest Rate on, or the effective cost to the
Company of, any other indebtedness the Company's obligations in
respect of which are evidenced or secured in whole or in part by
such Security.
"STATED MATURITY", when used with respect to any
Security or 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 Securities which (a) are of
the same series and (b) have identical terms except as to
principal amount and/or date of issuance.
"TRUSTEE" means the Person named as the "Trustee" in
the first paragraph of this Indenture until a successor Trustee
shall have become such with respect to one or more series of
Securities pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean or include each
Person who is then a Trustee hereunder, and if at any time there
is more than one such Person, "Trustee" as used with respect to
the Securities of any series shall mean the Trustee with respect
to Securities of that series.
"TRUST INDENTURE ACT" means, as of any time, the Trust
Indenture Act of 1939 as in force at such time.
"UNITED STATES" means the United States of America, its
territories, its possessions and other areas subject to its
jurisdiction.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided in this
Indenture, upon any application or request by the Company or the
Guarantor to the Trustee to take any action under any provision
of this Indenture, the Company and the Guarantor shall each
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 individual signing such
certificate or opinion has read such covenant or
condition and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope
of the examination or investigation upon which the
statements or opinions contained in such certificate or
opinion are based;
(c) a statement that, in the opinion of each such
individual, he has made such examination or
investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of
each such individual, such condition or covenant has
been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
(a) Any Officer's Certificate may be based (without
further examination or investigation), insofar as it relates to
or is dependent upon legal matters, upon an opinion of, or
representations by, counsel, unless, in any case, such officer
has actual knowledge that the certificate or opinion or
representations with respect to the matters upon which such
Officer's Certificate may be based as aforesaid are erroneous.
Any Opinion of Counsel may be based (without further
examination or investigation), insofar as it relates to or is
dependent upon factual matters, information with respect to which
is in the possession of the Company or the Guarantor, upon a
certificate of, or representations by, an officer or officers of
the Company or the Guarantor, as the case may be, unless such
counsel has actual knowledge that the certificate or opinion or
representations with respect to the matters upon which his
opinion may be based as aforesaid are erroneous. In addition,
any Opinion of Counsel may be based (without further examination
or investigation), insofar as it relates to or is dependent upon
matters covered in an Opinion of Counsel rendered by other
counsel, upon such other Opinion of Counsel, unless such counsel
has actual knowledge that the Opinion of Counsel rendered by such
other counsel with respect to the matters upon which his Opinion
of Counsel may be based as aforesaid are erroneous. If, in order
to render any Opinion of Counsel provided for herein, the signer
thereof shall deem it necessary that additional facts or matters
be stated in any Officer's Certificate provided for herein, then
such certificate may state all such additional facts or matters
as the signer of such Opinion of Counsel may request.
(b) In any case where several matters are required to
be certified by, or covered by an opinion of, any specified
Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some
matters and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to such
matters in one or several documents. Where (i) any Person is
required to make, give or execute two or more applications,
requests, consents, certificates, statements, opinions or other
instruments under this Indenture, or (ii) two or more Persons are
each required to make, give or execute any such application,
request, consent, certificate, statement, opinion or other
instrument, any such applications, requests, consents,
certificates, statements, opinions or other instruments may, but
need not, be consolidated and form one instrument.
(c) Whenever, subsequent to the receipt by the Trustee
of any Board Resolution, Officer's Certificate, Opinion of
Counsel or other document or instrument, a clerical,
typographical or other inadvertent or unintentional error or
omission shall be discovered therein, a new document or
instrument may be substituted therefor in corrected form with the
same force and effect as if originally filed in the corrected
form and, irrespective of the date or dates of the actual
execution and/or delivery thereof, such substitute document or
instrument shall be deemed to have been executed and/or delivered
as of the date or dates required with respect to the document or
instrument for which it is substituted. Anything in this
Indenture to the contrary notwithstanding, if any such corrective
document or instrument indicates that action has been taken by or
at the request of the Company which could not have been taken had
the original document or instrument not contained such error or
omission, the action so taken shall not be invalidated or
otherwise rendered ineffective but shall be and remain in full
force and effect, except to the extent that such action was a
result of willful misconduct or bad faith. Without limiting the
generality of the foregoing, any Securities issued under the
authority of such defective document or instrument shall
nevertheless be the valid obligations of the Company entitled to
the benefits of this Indenture equally and ratably with all other
Outstanding Securities, except as aforesaid.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction,
notice, consent, election, waiver or other action provided by
this Indenture to be made, given or taken by Holders may be
embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or
by an agent duly appointed in writing or, alternatively, may be
embodied in and evidenced by the record of Holders voting in
favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders duly called and held in
accordance with the provisions of Article Thirteen, or a
combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both
are delivered to the Trustee and, where it is hereby expressly
required, to the Company and the Guarantor. Such instrument or
instruments and any such record (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments and
so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or of the
holding by any Person of a Security, shall be sufficient for any
purpose of this Indenture and (subject to Section 901) conclusive
in favor of the Trustee, the Company and the Guarantor, if made
in the manner provided in this Section. The record of any
meeting of Holders shall be proved in the manner provided in
Section 1306.
(b) The fact and date of the execution by any Person
of any such instrument or writing may be proved by the affidavit
of a witness of such execution or by a certificate of a notary
public or other officer authorized by law to take acknowledgments
of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof or may be
proved in any other manner which the Trustee and the Company deem
sufficient. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his
authority.
(c) The ownership, principal amount (except as
otherwise contemplated in clause (y) of the first proviso to the
definition of Outstanding) and serial numbers of Securities held
by any Person, and the date of holding the same, shall be proved
by the Security Register.
(d) Any request, demand, authorization, direction,
notice, consent, election, waiver or other Act of a Holder shall
bind every future Holder of the same Security and the Holder of
every Security issued upon the registration of transfer thereof
or in exchange therefor or in lieu thereof in respect of anything
done, omitted or suffered to be done by the Trustee, the Company
or the Guarantor in reliance thereon, whether or not notation of
such action is made upon such Security.
(e) Until such time as written instruments shall have
been delivered to the Trustee with respect to the requisite
percentage of principal amount of Securities for the action
contemplated by such instruments, any such instrument executed
and delivered by or on behalf of a Holder may be revoked with
respect to any or all of such Securities by written notice by
such Holder or any subsequent Holder, proven in the manner in
which such instrument was proven.
(f) Securities of any series, or any Tranche thereof,
authenticated and delivered after any Act of Holders may, and
shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any action taken by such Act of
Holders. If the Company shall so determine, new Securities of
any series, or any Tranche thereof, so modified as to conform, in
the opinion of the Trustee and the Company, to such action may be
prepared and executed by the Company and the Guarantor and
authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series or Tranche.
(g) Each of the Company and the Guarantor may, at its
option, by Company Order or Guarantor Order, as appropriate, fix
in advance a record date for the determination of Holders
entitled to give any request, demand, authorization, direction,
notice, consent, waiver or other Act solicited by the Company,
but neither the Company nor the Guarantor shall have any
obligation to do so; provided, however, that neither the Company
nor the Guarantor may fix a record date for the giving or making
of any notice, declaration, request or direction referred to in
the next sentence. In addition, the Trustee may, at its option,
fix in advance a record date for the determination of Holders
entitled to join in the giving or making of any Notice of
Default, any declaration of acceleration referred to in Section
802, any request to institute proceedings referred to in Section
807 or any direction referred to in Section 812. If any such
record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act, or such notice,
declaration, request or direction, 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 (i) whether Holders of the requisite
proportion of the Outstanding Securities have authorized or
agreed or consented to such Act (and for that purpose the
Outstanding Securities shall be computed as of the record date)
and/or (ii) which Holders may revoke any such Act
(notwithstanding subsection (e) of this Section ); and any such
Act, given as aforesaid, shall be effective whether or not the
Holders which authorized or agreed or consented to such Act
remain Holders after such record date and whether or not the
Securities held by such Holders remain Outstanding after such
record date.
SECTION 105. NOTICES, ETC. TO TRUSTEE, COMPANY OR GUARANTOR.
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 Guarantor, or the Company or the Guarantor by the
Trustee or by any Holder, shall be sufficient for every purpose
hereunder (unless otherwise expressly provided herein) if in
writing and delivered personally to an officer or other
responsible employee of the addressee, or transmitted by
facsimile transmission, telex or other direct written electronic
means to such telephone number or other electronic communications
address set forth for such party below or such other address as
the parties hereto shall from time to time designate, or
transmitted by registered mail, charges prepaid, to the
applicable address set forth for such party below or to such
other address as any party hereto may from time to time
designate:
If to the Trustee, to:
The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Attention: Corporate Trustee Administration Department
Telephone: (212) 946-3487
Telecopy: (212) 946-8158
If to the Company, to:
PP&L Capital Funding, Inc.
Two North Ninth Street
Allentown, Pennsylvania 18101
Attention: Treasurer
Telephone: (610) 774-5987
Telecopy: (610) 774-5106
With a copy to:
PP&L Resources, Inc.
Two North Ninth Street
Allentown, Pennsylvania 18109-1179
Attention: Treasurer
Telephone: (610) 774-5987
Telecopy: (610) 774-5106
If to the Guarantor, to:
PP&L Resources, Inc.
Two North Ninth Street
Allentown, Pennsylvania 18109-1179
Attention: Treasurer
Telephone: 610-774-5987
Telecopy: 610-774-5106
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, telex or other direct written electronic means, on
the date of transmission, and if transmitted by registered mail,
on the date of receipt.
SECTION 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided herein, where
this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given, and shall be deemed given, to
Holders if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at the address of such Holder
as it appears in the Security Register, not later than the latest
date, 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 provision 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 or the Guarantor shall bind its successors and assigns,
whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or the
Securities or the Guarantees shall be held to be invalid, illegal
or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture, the Securities or the
Guarantees, 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, the Securities and the Guarantees shall
be governed by and construed in accordance with the law of the
State of New York (including without limitation Section 5-1401 of
the New York General Obligations Law or any successor to such
statute), except to the extent that the Trust Indenture Act shall
be applicable.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption
Date or Stated Maturity of any Security shall not be a Business
Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities other than a
provision in Securities of any series, or any Tranche thereof, or
in the indenture supplemental hereto, Board Resolution or
Officer's Certificate which establishes the terms of the
Securities 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,
Redemption Date, or 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 TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The definitive Securities of each series and the
Guarantees to be endorsed thereon as contemplated by Article
Fourteen 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 a supplemental
indenture or Board Resolution, in each case with such appropriate
insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to
comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing
such Securities or Guarantees endorsed thereon, as the case may
be, as evidenced by their execution thereof. If the form or
forms of Securities of any series or Guarantees endorsed thereon
are established in a Board Resolution or in an Officer's
Certificate pursuant to a Board Resolution, such Board Resolution
and Officer's Certificate, if any, shall be delivered to the
Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery
of such Securities.
Unless otherwise specified as contemplated by Section
301, the Securities of each series shall be issuable in
registered form without coupons. The definitive Securities and
Guarantees endorsed thereon shall be produced in such manner as
shall be determined by the officers executing such Securities or
Guarantees, as evidenced by their execution thereof.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be in
substantially the form set forth below:
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By: _____________________________
Authorized Officer
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may
be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series.
Subject to the last paragraph of this Section, prior to the
authentication and delivery of Securities of any series there
shall be established by specification in a supplemental indenture
or in a Board Resolution of the Company or in an Officer's
Certificate of the Company (which need not, comply with Section
102) pursuant to a supplemental indenture or a Board Resolution:
(a) the title of the Securities of such series
(which shall distinguish the Securities of such series
from Securities of all other series);
(b) any limit upon the aggregate principal amount
of the Securities of such series which may be
authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in
lieu of, other Securities of such series pursuant to
Section 304, 305, 306, 406 or 1206 and except for any
Securities which, pursuant to Section 303, are deemed
never to have been authenticated and delivered
hereunder);
(c) the Person or Persons (without specific
identification) to whom any interest on Securities of
such series, or any Tranche thereof, shall be payable,
if other than the Person in whose name that Security
(or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for
such interest;
(d) the date or dates on which the principal of
the Securities 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 Securities of
such series, or any Tranche thereof, shall bear
interest, if any (including the rate or rates at which
overdue principal shall bear interest after Maturity if
different from the rate or rates at which such
Securities shall bear interest prior to Maturity, and,
if applicable, the rate or rates at which overdue
premium or interest shall bear interest, if any), or
any 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 and the Regular Record Dates, if any, for the
interest payable on such Securities on any Interest
Payment Date; and the basis of computation of interest,
if other than as provided in Section 310;
(f) the place or places at which or methods (if
other than as provided elsewhere in this Indenture) by
which (i) the principal of and premium, if any, and
interest, if any, on Securities of such series, or any
Tranche thereof, shall be payable, (ii) registration of
transfer of Securities of such series, or any Tranche
thereof, may be effected, (iii) exchanges of Securities
of such series, or any Tranche thereof, may be effected
and (iv) notices and demands to or upon the Company in
respect of the Securities of such series, or any
Tranche thereof, and this Indenture may be served; the
Security Registrar and any Paying Agent or Agents for
such series or Tranche; and if such is the case, that
the principal of such Securities shall be payable
without presentment or surrender thereof;
(g) the period or periods within which, or the
date or dates on which, the price or prices at which
and the terms and conditions upon which the Securities
of such series, or any Tranche thereof, may be
redeemed, in whole or in part, at the option of the
Company and any restrictions on such redemptions;
(h) the obligation, if any, of the Company to
redeem or purchase or repay the Securities 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 terms and conditions upon
which such Securities shall be redeemed or purchased or
repaid, in whole or in part, pursuant to such
obligation and applicable exceptions to the
requirements of Section 404 in the case of mandatory
redemption or redemption or repayment at the option of
the Holder;
(i) the denominations in which Securities of such
series, or any Tranche thereof, shall be issuable if
other than denominations of $1,000 and any integral
multiple thereof;
(j) if the principal of or premium, if any, or
interest, if any, on the Securities 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 Securities are
stated to be payable, the period or periods within
which, and the terms and conditions upon which, such
election may be made and the manner in which the amount
of such coin or currency payable is to be determined;
(k) the currency or currencies, including
composite currencies, in which payment of the principal
of and premium, if any, and interest, if any, on the
Securities of such series, or any Tranche thereof,
shall be payable (if other than Dollars) and the manner
in which the equivalent of the principal amount thereof
in Dollars is to be determined for any purpose,
including for the purpose of determining the principal
amount deemed to be Outstanding at any time;
(l) if the principal of or premium, if any, or
interest on the Securities 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
Securities 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 entire principal amount
thereof, the portion of the principal amount of
Securities of such series, or any Tranche thereof,
which shall be payable upon declaration of acceleration
of the Maturity thereof pursuant to Section 802;
(o) any Events of Default, in addition to those
specified in Section 801, or any exceptions to those
specified in Section 801, with respect to the
Securities of such series, and any covenants of the
Company or the Guarantor for the benefit of the Holders
of the Securities of such series, or any Tranche
thereof, in addition to those set forth in Article Six,
or any exceptions to those set forth in Article Six;
(p) the terms, if any, pursuant to which the
Securities of such series, or any Tranche thereof, may
be converted into or exchanged for shares of capital
stock or other securities of the Company or any other
Person;
(q) the obligations or instruments, if any, which
shall be considered to be Eligible Obligations in
respect of the Securities of such series, or any
Tranche thereof, denominated in a currency other than
Dollars or in a composite currency, and any provisions
for satisfaction and discharge of Securities of any
series, in addition to those set forth in Section 701,
or any exceptions to those set forth in Section 701;
(r) if the Securities 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 Securities to transfer or exchange the same or
to obtain the registration of transfer thereof, (ii)
any limitations on the rights of the Holder or Holders
thereof to obtain certificates therefor in definitive
form in lieu of global form and (iii) any other matters
incidental to such Securities;
(s) if the Securities of such series, or any
Tranche thereof, are to be issuable as bearer
securities, any and all matters incidental thereto
which are not specifically addressed in a supplemental
indenture as contemplated by clause (g) of Section
1201;
(t) to the extent not established pursuant to
clause (r) of this paragraph, any limitations on the
rights of the Holders of the Securities of such Series,
or any Tranche thereof, to transfer or exchange such
Securities or to obtain the registration of transfer
thereof; and if a service charge will be made for the
registration of transfer or exchange of Securities of
such series, 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
Securities of such series, or any Tranche thereof;
(v) any terms of the Guarantees with respect to
the Securities of such series, or any Tranche thereof,
in addition to those set forth in Section 1401, or any
exceptions to those set forth in Section 1401; and
(w) any other terms of the Securities of such
series, or any Tranche thereof.
With respect to Securities 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 Securities of such series and provide either that
the specific terms of Securities 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 in
clause (b) of Section 303.
Unless otherwise provided with respect to a series of
Securities as contemplated in Section 301(b), the aggregate
principal amount of a series of Securities may be increased and
additional Securities of such series may be issued up to the
maximum aggregate principal amount authorized with respect to
such series as increased.
SECTION 302. DENOMINATIONS.
Unless otherwise provided as contemplated by Section
301 with respect to any series of Securities, or any Tranche
thereof, the Securities of each series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
Unless otherwise provided as contemplated by Section
301 with respect to any series of Securities or any Tranche
thereof, the Securities shall be executed on behalf of the
Company by an Authorized Officer of the Company, and may have the
corporate seal of the Company affixed thereto or reproduced
thereon attested by its Secretary, one of its Assistant
Secretaries or any other Authorized Officer. The signature of
any or all of these officers on the Securities may be manual or
facsimile.
A Security bearing the manual or facsimile signature of
an individual who was at the time of execution Authorized Officer
of the Company shall bind the Company, notwithstanding that any
such individual has ceased to be an Authorized Officer prior to
the authentication and delivery of the Security or did not hold
such office at the date of such Security.
Unless otherwise provided as contemplated by Section
301, with respect to any series of Securities or any Tranche
thereof, Guarantees to be endorsed on any Securities shall be
executed and delivered in accordance with the provisions of
Section 1402.
The Trustee shall authenticate and deliver Securities
of a series, with the Guarantees endorsed thereon, 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 the Securities of such series and
the Guarantees to be endorsed thereon, as provided in
Sections 201 and 301;
(b) a Company Order requesting the authentication and
delivery of such Securities, with the Guarantees endorsed
thereon, and, to the extent that the terms of such
Securities and Guarantees 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 Securities 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;
(c) A Guarantor Order approving the terms and delivery
of the Guarantees to be endorsed on such Securities as
contemplated by the Company Order delivered pursuant to
clause (b) above;
(d) Securities of such series, each executed on behalf
of the Company by an Authorized Officer of the Company and
having a Guarantee endorsed thereon executed on behalf of
the Guarantor by an Authorized Officer of the Guarantor;
(e) an Opinion of Counsel to the effect that:
(i) (A) the forms of such Securities have been duly
authorized by the Company, (B) the forms of such Guarantees
have been duly authorized by the Guarantor, and (C) the
forms of the Securities and the Guarantees have been
established in conformity with the provisions of this
Indenture;
(ii) (A) the terms of such Securities have been duly
authorized by the Company, (B) the terms of such Guarantees
have been duly authorized by the Guarantor and (C) the terms
of the Securities and the Guarantees have been established
in conformity with the provisions of this Indenture; and
(iii) such Securities and the Guarantees endorsed
thereon, when authenticated and delivered by the Trustee and
issued and delivered by the Company and the Guarantor 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 and the Guarantor, respectively,
entitled to the benefits provided by this Indenture, and
enforceable in accordance with their terms, subject, as to
enforcement, to laws relating to or affecting generally the
enforcement of creditors' rights, including, without
limitation, bankruptcy and insolvency laws and to general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity as at
law);
provided, however, that, with respect to Securities of a series
subject to a Periodic Offering, the Trustee shall be entitled to
receive such Opinion of Counsel only once at or prior to the time
of the first authentication and delivery of Securities of such
series, and the Guarantees endorsed thereon, and that in lieu of
the opinions described in clauses (ii) and (iii) above such
Opinion of Counsel may, alternatively, state, respectively,
(x) that, when the terms of such Securities and the
Guarantees to be endorsed thereon shall have been
established pursuant to a Company Order or Orders and, if
applicable, a Guarantor Order or Orders or pursuant to such
procedures as may be specified from time to time by a
Company Order or Orders, and, if applicable, a Guarantor
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 the Guarantor, respectively, and will
have been established in conformity with the provisions of
this Indenture; and
(y) that such Securities, and the Guarantees endorsed
thereon, when (1) executed by the Company or the Guarantor,
as the case may be, (2) authenticated and delivered by the
Trustee in accordance with this Indenture, (3) issued and
delivered by the Company and the Guarantor and (4) paid for,
all as contemplated by and in accordance with the aforesaid
Company Order or Orders and, if applicable, a Guarantor
Order or Orders or specified procedures, as the case may be,
will have been duly issued under this Indenture and will
constitute valid and legally binding obligations of the
Company and the Guarantor, respectively, 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).
With respect to Securities of a series subject to a
Periodic Offering, the Trustee may conclusively rely, as to the
authorization by the Company and the Guarantor of any of such
Securities and Guarantees, the forms and terms thereof and the
legality, validity, binding effect and enforceability thereof,
upon the Opinion of Counsel and other documents delivered
pursuant to Sections 201 and 301 and this Section, as applicable,
at or prior to the time of the first authentication of Securities
of such series, with the Guarantees endorsed thereon, 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 Securities of a series, with
Guarantees endorsed thereon, pursuant to a Periodic Offering, the
Trustee shall be entitled to assume that the Company's
instructions to authenticate and deliver such Securities, and the
Guarantor's approval of the delivery of the Guarantees thereon,
do not violate any applicable law or any applicable rule,
regulation or order of any governmental agency or commission
having jurisdiction over the Company or the Guarantor.
If the forms or terms of the Securities of any series
have been established by or pursuant to a Board Resolution or an
Officer's Certificate as permitted by Sections 201 or 301, the
Trustee shall not be required to authenticate such Securities if
the issuance of such Securities pursuant to this Indenture will
affect the Trustee's own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner which is
not reasonably acceptable to the Trustee.
Except as otherwise specified as contemplated by
Section 301 with respect to any series of securities, or any
Tranche thereof, each Security, and any Guarantee endorsed
thereon, shall each be dated the date of its authentication.
Except as otherwise specified as contemplated by
Section 301 with respect to any series of Securities, or any
Tranche thereof, no Security or Guarantee endorsed thereon shall
be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Security
a certificate of authentication substantially in the form
provided for herein executed by the Trustee or its agent by
manual signature of an authorized officer thereof, and such
certificate upon any Security shall be conclusive evidence, and
the only evidence, that such Security or Guarantee endorsed
thereon has been duly authenticated and delivered hereunder and
is entitled to the benefits of this Indenture. Notwithstanding
the foregoing, if any Security shall have been authenticated and
delivered hereunder to the Company, or any Person acting on its
behalf, but shall never have been issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written
statement (which need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel) stating that such Security
has never been issued and sold by the Company, for all purposes
of this Indenture such Security (including any Guarantee endorsed
thereon) shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits
hereof.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any
series, or any Tranche thereof, the Company may execute, and upon
Company Order and a Guarantor Order the Trustee shall
authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in
any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued, having
Guarantees endorsed thereon, with such appropriate insertions,
omissions, substitutions and other variations as the officers
executing such Securities or Guarantees may determine, as
evidenced by their execution of such Securities or Guarantees;
provided, however, that temporary Securities need not recite
specific redemption, sinking fund, conversion or exchange
provisions.
If temporary Securities of any series or Tranche are
issued, the Company shall cause definitive Securities of such
series or Tranche to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series or
Tranche, the temporary Securities of such series or Tranche shall
be exchangeable for definitive Securities of such series or
Tranche, with the definitive Guarantees of the Guarantor endorsed
thereon, upon surrender of the temporary Securities of such
series or Tranche at the office or agency of the Company
maintained pursuant to Section 602 in a Place of Payment for such
series or Tranche, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any
series or Tranche, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor definitive
Securities of the same series or Tranche, of authorized
denominations and of like tenor and aggregate principal amount,
with the definitive Guarantees of the Guarantor endorsed thereon.
Until exchanged in full as hereinabove provided,
temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of
the same series and Tranche and of like tenor authenticated and
delivered hereunder.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND
EXCHANGE.
The Company shall cause to be kept in one of the
offices or agencies designated pursuant to Section 602, with
respect to the Securities of each series or any Tranche thereof,
a register (the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall
provide for the registration of Securities of such series or
Tranche and the registration of transfer thereof. The Company
shall designate one Person to maintain the Security Register for
the Securities of each series, and such Person is referred to
herein, with respect to such series, as the "Security Registrar."
Anything herein to the contrary notwithstanding, the Company may
designate one or more of its offices or an office of any
Affiliate (including the Guarantor) as an office in which a
register with respect to the Securities of one or more series, or
any Tranche or Tranches thereof, shall be maintained, and the
Company may designate itself or any Affiliate (including the
Guarantor) as the Security Registrar with respect to one or more
of such series. The Security Register shall be open for
inspection by the Trustee and the Company at all reasonable
times.
Except as otherwise specified as contemplated by
Section 301 with respect to the Securities of any series, or any
Tranche thereof, upon surrender for registration of transfer of
any Security of such series or Tranche at the office or agency of
the Company maintained pursuant to Section 602 in a Place of
Payment for such series or Tranche, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new
Securities of the same series and Tranche, of authorized
denominations and of like tenor and aggregate principal amount,
with the Guarantees of the Guarantor endorsed thereon.
Except as otherwise specified as contemplated by
Section 301 with respect to the Securities of any series, or any
Tranche thereof, any Security of such series or Tranche may be
exchanged at the option of the Holder for one or more new
Securities of the same series and Tranche, of authorized
denominations and of like tenor and aggregate principal amount,
upon surrender of the Securities to be exchanged at any such
office or agency. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities, with the Guarantees of
the Guarantor endorsed thereon, which the Holder making the
exchange is entitled to receive.
All Securities and Guarantees delivered upon any
registration of transfer or exchange of Securities and the
Guarantees endorsed thereon shall be valid obligations of the
Company and the Guarantor, respectively, evidencing the same
obligation, and entitled to the same benefits under this
Indenture, as the Securities and Guarantees surrendered upon such
registration of transfer or exchange.
Every Security presented or surrendered for
registration of transfer or for exchange shall (if so required by
the Company, the Guarantor, or the Trustee) be duly endorsed or
shall be accompanied by a written instrument of transfer in form
satisfactory to the Company, the Guarantor and the Trustee, duly
executed by the Holder thereof or his attorney duly authorized in
writing.
Unless otherwise specified as contemplated by Section
301, with respect to Securities of any series, or any Tranche
thereof, no service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 406 or 1206 not involving any
transfer.
The Company shall not be required to execute or to
provide for the registration of transfer of or the exchange of
(a) Securities of any series, or any Tranche thereof, during a
period of 15 days immediately preceding the date notice is to be
given identifying the serial numbers of the Securities of such
series or Tranche called for redemption or (b) any Security so
selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the
Trustee, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of
the same series and Tranche, and of like tenor and principal
amount, having a Guarantee of the Guarantor endorsed thereon and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company, the
Guarantor and the Trustee (a) evidence to their satisfaction of
the ownership of and the destruction, loss or theft of any
Security and (b) such security or indemnity as may be reasonably
required by them to save each of them and any agent of any of
them harmless, then, in the absence of notice to the Company, the
Guarantor or the Trustee that such Security has been acquired by
a bona fide purchaser, the Company shall execute and the Trustee
shall authenticate and deliver, in lieu of any such destroyed,
lost or stolen Security, a new Security of the same series and
Tranche, and of like tenor and principal amount, having a
Guarantee of the Guarantor endorsed thereon and bearing a number
not contemporaneously outstanding.
Notwithstanding the foregoing, in case any such
mutilated, destroyed, lost or stolen Security has become or is
about to become due and payable, the Company or the Guarantor in
its discretion may, instead of issuing a new Security, pay such
Security.
Upon the issuance of any new Security under this
Section, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed
in relation thereto and any other reasonable expenses (including
the fees and expenses of the Trustee) in connection therewith.
Every new Security of any series issued pursuant to
this Section in lieu of any destroyed, lost or stolen Security
and any Guarantee endorsed thereon shall constitute an original
additional contractual obligation of the Company and the
Guarantor, respectively, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone other
than the Holder of such new security, and any such new Security
shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of such
series duly issued hereunder, and the Guarantees endorsed on such
Securities.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise provided as contemplated by Section
301 with respect to the Securities of any series, or any Tranche
thereof, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or
one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest.
Any interest on any Security of any series which is
payable, but is not punctually paid or duly provided for, on any
Interest Payment Date (herein called "Defaulted Interest") shall
forthwith cease to be payable to the Holder on the related
Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company or the
Guarantor, at its election in each case, as provided in clause
(a) or (b) below:
(a) The Company or the Guarantor may elect to make
payment of any Defaulted Interest to the Persons in whose
names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of
business on a date (a "Special Record Date") for the payment
of such Defaulted Interest, which shall be fixed in the
following manner. The Company or the Guarantor shall notify
the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the
Company or the Guarantor, as the case may be, 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 and the Guarantor of such
Special Record Date and, in the name and at the expense of
the Company or the Guarantor, shall promptly cause notice of
the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class
postage prepaid, to each Holder of Securities of such series
at the address of such Holder as it appears in the Security
Register, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons
in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the
close of business on such Special Record Date.
(b) The Company or the Guarantor may make payment of
any Defaulted Interest on the Securities of any series in
any other lawful manner not inconsistent with the
requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the
Company or the Guarantor to the Trustee of the proposed
payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any
other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration
of transfer, the Company, the Guarantor, the Trustee and any
agent of the Company, the Guarantor or the Trustee may treat the
Person in whose name such Security is registered as the absolute
owner of such Security for the purpose of receiving payment of
principal of and premium, if any, and (subject to Sections 305
and 307) interest, if any, on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and
none of the Company, the Guarantor, the Trustee or any agent of
the Company, the Guarantor or the Trustee shall be affected by
notice to the contrary.
SECTION 309. CANCELLATION.
All Securities surrendered for payment, redemption,
registration of transfer or exchange or for credit against any
sinking fund payment shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and, if not
theretofore canceled, shall be promptly canceled by the Trustee.
The Company or the Guarantor may at any time deliver to the
Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company or the Guarantor may
have acquired in any manner whatsoever or which the Company shall
not have issued and sold, and all Securities so delivered shall
be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities
canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Securities held by the
Trustee shall be disposed of in accordance with the Trustee's
customary procedures, and the Trustee shall promptly deliver a
certificate of disposition to the Company unless, by a Company
Order, the Company shall direct that canceled Securities be
returned to it.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by
Section 301 for Securities of any series, or Tranche thereof,
interest on the Securities of each series shall be computed on
the basis of a 360-day year consisting of twelve 30-day months,
and with respect to any period less than a full calendar month,
on the basis of the actual number of days elapsed during such
period.
SECTION 311. PAYMENT TO BE IN PROPER CURRENCY.
In the case of any Security denominated in any currency
other than Dollars or in a composite currency (the "Required
Currency"), except as otherwise specified with respect to such
Security as contemplated by Section 301, the obligation of the
Company or the Guarantor 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 the
Guarantor, 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 and the Guarantor, the Company and
the Guarantor 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. The Company and the Guarantor hereby waive any
defense of payment based upon any such tender or recovery which
is not in the Required Currency, or which, when exchanged for the
Required Currency by the Trustee, is less than the full amount of
Required Currency then due and payable.
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 401. APPLICABILITY OF ARTICLE.
Securities of any series, or any Tranche thereof, which
are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified
as contemplated by Section 301 for Securities of such series or
Tranche) in accordance with this Article.
SECTION 402. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities
shall be evidenced by a Board Resolution or an Officer's
Certificate. The Company shall, at least 45 days prior to the
Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee in
writing of such Redemption Date and of the principal amount of
such Securities to be redeemed. In the case of any redemption of
Securities (a) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere
in this Indenture or (b) pursuant to an election of the Company
which is subject to a condition specified in the terms of such
Securities, the Company and the Guarantor shall each furnish the
Trustee with an Officer's Certificate evidencing compliance with
such restriction or condition.
SECTION 403. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series, or any
Tranche thereof, are to be redeemed, the particular Securities to
be redeemed shall be selected by the Trustee from the Outstanding
Securities of such series or Tranche not previously called for
redemption, by such method as shall be provided for such
particular series or Tranche, 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
any authorized denomination for Securities of such series or
Tranche) of the principal amount of Securities of such series or
Tranche of a denomination larger than the minimum authorized
denomination for Securities 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 Securities then Outstanding of any series, or any
Tranche thereof, and less than all of such Securities as to which
such offer was made shall have been tendered to the Company for
such purchase, the Trustee, if so directed by Company Order,
shall select for redemption all or any principal amount of such
Securities which have not been so tendered.
The Trustee shall promptly notify the Company in
writing of the Securities selected for redemption and, in the
case of any Securities selected to be redeemed in part, the
principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Securities redeemed
or to be redeemed only in part, to the portion of the principal
amount of such Securities which has been or is to be redeemed.
SECTION 404. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner
provided in Section 106 to the Holders of Securities to be
redeemed not less than 30 nor more than 60 days prior to the
Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Securities of any series
or Tranche are to be redeemed, the identification of
the particular Securities to be redeemed and the
portion of the principal amount of any Security to be
redeemed in part,
(d) that on the Redemption Date the Redemption
Price, together with accrued interest, if any, to the
Redemption Date, will become due and payable upon each
such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said
date,
(e) the place or places where such Securities are
to be surrendered for payment of the Redemption Price
and accrued interest, if any, unless it shall have been
specified as contemplated by Section 301 with respect
to such Securities that such surrender shall not be
required,
(f) that the redemption is for a sinking or other
fund, if such is the case, and
(g) such other matters as the Company shall deem
desirable or appropriate.
Unless otherwise specified with respect to any
Securities in accordance with Section 301, with respect to any
notice of redemption of Securities at the election of the
Company, unless, upon the giving of such notice, such Securities
shall be deemed to have been paid in accordance with Section 701,
such notice may state that such redemption shall be conditional
upon the receipt by the Paying Agent or Agents for such
Securities, on or prior to the date fixed for such redemption, of
money sufficient to pay the principal of and premium, if any, and
interest, if any, on such Securities and that if such money shall
not have been so received such notice shall be of no force or
effect and the Company shall not be required to redeem such
Securities. In the event that such notice of redemption contains
such a condition and such money is not so received, the
redemption shall not be made and within a reasonable time
thereafter notice shall be given, in the manner in which the
notice of redemption was given, that such money was not so
received and such redemption was not required to be made.
Notice of redemption of Securities to be redeemed at
the election of the Company, and any notice of non-satisfaction
of a condition for redemption as aforesaid, shall be given by the
Company or, on Company Request, by the Trustee in the name and at
the expense of the Company.
SECTION 405. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid,
and the conditions, if any, set forth in such notice having been
satisfied, the Securities or portions thereof so to be redeemed
shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date
(unless, in the case of an unconditional notice of redemption,
the Company shall default in the payment of the Redemption Price
and accrued interest, if any) such Securities or portions
thereof, if interest-bearing, shall cease to bear interest. Upon
surrender of any such Security for redemption in accordance with
such notice, such Security or portion thereof shall be paid by
the Company at the Redemption Price, together with accrued
interest, if any, to the Redemption Date; provided, however, that
no such surrender shall be a condition to such payment if so
specified as contemplated by Section 301 with respect to such
Security; and provided, further, that except as otherwise
specified as contemplated by Section 301 with respect to such
Security, any installment of interest on any Security the Stated
Maturity of which installment is on or prior to the Redemption
Date shall be payable to the Holder of such Security, or one or
more Predecessor Securities, registered as such at the close of
business on the related Regular Record Date according to the
terms of such Security and subject to the provisions of Sections
305 and 307.
SECTION 406. SECURITIES REDEEMED IN PART.
Upon the surrender of any Security which is to be
redeemed only in part at a Place of Payment therefor (with, if
the Company, the Guarantor or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form
satisfactory to the Company, the Guarantor and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized
in writing), the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security, without
service charge, a new Security or Securities of the same series
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 Security so surrendered, with the Guarantee of the Guarantor
endorsed thereon.
ARTICLE FIVE
SINKING FUNDS
SECTION 501. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to
any sinking fund for the retirement of the Securities of any
series, or any Tranche thereof, except as otherwise specified as
contemplated by Section 301 for Securities of such series or
Tranche.
The minimum amount of any sinking fund payment provided
for by the terms of Securities of any series, or any Tranche
thereof, is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount
provided for by the terms of Securities of any series, or any
Tranche thereof, is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any
series, or any Tranche thereof, the cash amount of any sinking
fund payment may be subject to reduction as provided in Section
502. Each sinking fund payment shall be applied to the
redemption of Securities of the series or Tranche in respect of
which it was made as provided for by the terms of such
Securities.
SECTION 502. SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES.
The Company (a) may deliver to the Trustee Outstanding
Securities (other than any previously called for redemption) of a
series or Tranche in respect of which a mandatory sinking fund
payment is to be made and (b) may apply as a credit Securities of
such series or Tranche which have been redeemed either at the
election of the Company pursuant to the terms of such Securities
or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each case
in satisfaction of all or any part of such mandatory sinking fund
payment; provided, however, that no Securities shall be applied
in satisfaction of a mandatory sinking fund payment if such
Securities shall have been previously so applied. Securities so
applied shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount
of such mandatory sinking fund payment shall be reduced
accordingly.
SECTION 503. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 45 days prior to each sinking fund
payment date for the Securities 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;
(e) the portion, if any, of such aggregate sinking
fund payment which is to be satisfied by delivering and
crediting Securities of such series or Tranche pursuant to
Section 502 and stating the basis for such credit and that
such Securities have not previously been so credited, and
the Company shall also deliver to the Trustee any Securities
to be so delivered. If the Company shall not deliver such
Officer's Certificate, the next succeeding sinking fund
payment for such series or Tranche shall be made entirely in
cash in the amount of the mandatory sinking fund payment.
Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed
upon such sinking fund payment date in the manner specified
in Section 403 and cause notice of the redemption thereof to
be given in the name of and at the expense of the Company in
the manner provided in Section 404. Such notice having been
duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 405 and
406.
ARTICLE SIX
COVENANTS
SECTION 601. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company shall pay the principal of and premium, if
any, and interest, if any, on the Securities of each series in
accordance with the terms of such Securities and this Indenture.
SECTION 602. MAINTENANCE OF OFFICE OR AGENCY.
The Company and the Guarantor shall maintain in each
Place of Payment for the Securities of each series, or any
Tranche thereof, an office or agency where payment of such
Securities shall be made or surrendered for payment, where
registration of transfer or exchange of such Securities may be
effected and where notices and demands to or upon the Company or
the Guarantor in respect of such Securities and this Indenture
may be served. The Company and the Guarantor 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 or the Guarantor shall fail to
maintain any such required office or agency in respect of
Securities of any series, or any Tranche thereof, or shall fail
to furnish the Trustee with the address thereof, payment of such
Securities may be made, registration of transfer or exchange
thereof may be effected and notices and demands in respect
thereby may be served at the Corporate Trust Office of the
Trustee, and each of the Company and the Guarantor hereby appoint
the Trustee as its agent for all such purposes in any such event.
The Company or the Guarantor may also from time to time
designate one or more other offices or agencies with respect to
the Securities 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 Securities of such series or Tranche, no such designation
or rescission shall in any manner relieve the Company or the
Guarantor of its obligation to maintain an office or agency for
such purposes in each Place of Payment for such Securities in
accordance with the requirements set forth above. The Company
and the Guarantor 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 or the Guarantor or any Affiliate of either
of them, in which event the Company, the Guarantor or such
Affiliate, as the case may be, shall perform all functions to be
performed at such office or agency.
SECTION 603. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying
Agent with respect to the Securities of any series, or any
Tranche thereof, it shall, on or before each due date of the
principal of and premium, if any, or interest, if any, on any of
such Securities, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the
principal and premium or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein
provided and shall promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying
Agents for the Securities of any series, or any Tranche thereof,
it shall, prior to each due date of the principal of and premium,
if any, or interest, if any, on such Securities, deposit with
such Paying Agents 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 its action or failure so to act.
The Company shall cause each Paying Agent for the
Securities of any series, or any Tranche thereof, other than the
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
Securities of such series or Tranche in trust for the
benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as
herein provided;
(b) give the Trustee notice of any default by the
Company (or any other obligor upon the Securities of such
series) in the making of any payment of principal of and
premium, if any, or interest, if any, on the Securities of
such series or Tranche; and
(c) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such Paying
Agent.
The Company may at any time pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held
by the Trustee upon the same trusts as those upon which such sums
were held by the Company or such Paying Agent and, if as stated
in a Company Order delivered to the Trustee, in accordance with
the provisions of Article Seven; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of
the principal of and premium, if any, or interest, if any, on any
Security and remaining unclaimed for two years after such
principal and premium, if any, or interest has become due and
payable shall be paid to the Company on Company Request, or, if
then held by the Company, shall be discharged from such trust;
and the Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the Company and the Guarantor for
payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being
required to make any such payment to the Company, may at the
expense of the Company, either (a) 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 or (b) cause to be published once, in a newspaper
published in the English language, customarily published on each
Business Day and of general circulation in the Borough of
Manhattan, The City of New York, notice 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 publication, any
unclaimed balance of such money then remaining will be paid to
the Company.
SECTION 604. CORPORATE EXISTENCE.
Subject to the rights of the Company and the Guarantor
under Article Eleven, each of the Company and the Guarantor shall
do or cause to be done all things necessary to preserve and keep
in full force and effect its corporate existence.
SECTION 605. ANNUAL OFFICER'S CERTIFICATE
Not later than April 30 in each year, commencing April
30, 1998, each of the Company and the Guarantor shall deliver to
the Trustee an Officer's Certificate which need not comply with
Section 102, executed by its principal executive officer,
principal financial officer or principal accounting officer, as
to such officer's knowledge of such obligor's compliance with all
conditions and covenants under this Indenture, such compliance to
be determined without regard to any period of grace or
requirement of notice under this Indenture.
SECTION 606. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to
comply with any term, provision or condition set forth in
(a) any covenant or restriction specified with respect
to the Securities of any series, or any Tranche thereof, as
contemplated by Section 301 or by Section 1201(b) if before
the time for such compliance the Holders of a majority in
aggregate principal amount of the Outstanding Securities of
all series and Tranches with respect to which compliance
with such covenant or restriction is to be omitted,
considered as one class, shall, by Act of such Holders,
either waive such compliance in such instance or generally
waive compliance with such term, provision or condition; and
(b) Section 1101(b) if before the time for such
compliance the Holders of a majority in principal amount of
Securities Outstanding under this Indenture shall, by Act of
such Holders, either waive such compliance in such instance
or generally waive compliance with such term, provision or
condition;
but, in either case, 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.
ARTICLE SEVEN
SATISFACTION AND DISCHARGE
SECTION 701. SATISFACTION AND DISCHARGE OF SECURITIES.
Any Security or Securities, or any portion of the
principal amount thereof, shall be deemed to have been paid for
all purposes of this Indenture, and the entire indebtedness of
the Company and the Guarantor in respect thereof shall be
satisfied and discharged, if there shall have been irrevocably
deposited with the Trustee or any Paying Agent (other than the
Company or the Guarantor), in trust:
(a) money in an amount which shall be sufficient, or
(b) in the case of a deposit made prior to the
Maturity of such Securities or portions thereof, 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 Securities or
portions thereof; provided, however, that in the case of the
provision for payment or redemption of less than all the
Securities of any series or Tranche, such Securities or portions
thereof shall have been selected by the Trustee as provided
herein and, in the case of a redemption, the notice requisite to
the validity of such redemption shall have been given or
irrevocable authority shall have been given by the Company to the
Trustee to give such notice, under arrangements satisfactory to
the Trustee; and provided, further, that the Company shall have
delivered to the Trustee and such Paying Agent:
(x) if such deposit shall have been made prior to the
Maturity of such Securities, a Company Order stating that
the money and Eligible Obligations deposited in accordance
with this Section shall be held in trust, as provided in
Section 603;
(y) if Eligible Obligations shall have been deposited,
an Opinion of Counsel to the effect that such obligations
constitute Eligible Obligations and do not contain
provisions permitting the redemption or other prepayment
thereof 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
other requirements set forth in clause (b) and (c) above
have been satisfied; and
(z) if such deposit shall have been made prior to the
Maturity of such Securities, an Officer's Certificate
stating the Company's intention that, upon delivery of such
Officer's Certificate, its indebtedness in respect of such
Securities or portions thereof will have been satisfied and
discharged as contemplated in this Section.
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 Company Request, acknowledge in writing that such
Securities or portions thereof are deemed to have been paid for
all purposes of this Indenture and that the entire indebtedness
of the Company in respect thereof has been satisfied and
discharged as contemplated in this Section. In the event that
all of the conditions set forth in the preceding paragraph shall
have been satisfied in respect of any Securities or portions
thereof except that, for any reason, the Officer's Certificate
specified in clause (z) (if otherwise required) shall not have
been delivered, such Securities or portions thereof shall
nevertheless be deemed to have been paid for all purposes of this
Indenture, and the Holders of such Securities or portions thereof
shall nevertheless be no longer entitled to the benefits provided
by this Indenture or of any of the covenants of the Company under
Article Six (except the covenants contained in Sections 602 and
603) or any other covenants made in respect of such Securities or
portions thereof as contemplated by Section 301 or Section
1201(b), but the indebtedness of the Company in respect of such
Securities or portions thereof shall not be deemed to have been
satisfied and discharged prior to Maturity for any other purpose;
and, upon Company Request, the Trustee shall acknowledge in
writing that such Securities or portions thereof are deemed to
have been paid for all purposes of this Indenture.
If payment at Stated Maturity of less than all of the
Securities of any series, or any Tranche thereof, is to be
provided for in the manner and with the effect provided in this
Section, the Trustee shall select such Securities, or portions of
principal amount thereof, in the manner specified by Section 403
for selection for redemption of less than all the Securities of a
series or Tranche.
In the event that Securities which shall be deemed to
have been paid 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 Securities, to the
Holders of such Securities to the effect that such deposit has
been made and the effect thereof.
Notwithstanding that any Securities shall be deemed to
have been paid for purposes of this Indenture, as aforesaid, the
obligations of the Company, the Guarantor and the Trustee in
respect of such Securities under Sections 304, 305, 306, 404,
602, 603, 907 and 914 and this Article shall survive.
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 Security would be deemed to have been
paid for purposes of this Indenture, and, if such is the case,
the Company's indebtedness in respect thereof would be deemed to
have been satisfied and discharged, pursuant to this Section
(without regard to the provisions of this paragraph), the Trustee
or any Paying Agent, as the case may be, (i) 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, or (ii) are unable to apply any
money in accordance with this Article with respect to any
Securities by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise
prohibiting such application, such Security shall thereupon be
deemed retroactively not to have been paid and any satisfaction
and discharge of the Company's indebtedness in respect thereof
shall retroactively be deemed not to have been effected, and such
Security shall be deemed to remain Outstanding and (b) any
satisfaction and discharge of the Company's indebtedness in
respect of any Security shall be subject to the provisions of the
last paragraph of Section 603.
SECTION 702. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be
of further effect (except as hereinafter expressly provided), and
the Trustee, at the expense of the Company, shall execute such
instruments as the Company shall reasonably request to evidence
and acknowledge the satisfaction and discharge of this Indenture,
when:
(a) no Securities remain Outstanding hereunder; and
(b) the Company or the Guarantor has paid or caused to
be paid all other sums payable hereunder by the Company or
the Guarantor;
provided, however, that if, in accordance with the last paragraph
of Section 701, any Security, previously deemed to have been paid
for purposes of this Indenture, shall be deemed retroactively not
to have been so paid, this Indenture shall thereupon be deemed
retroactively not to have been satisfied and discharged, as
aforesaid, and to remain in full force and effect, and the
Company shall execute and deliver such instruments as the Trustee
shall reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge of this
Indenture as aforesaid, the obligations of the Company, the
Guarantor and the Trustee under Sections 304, 305, 306, 404, 602,
603, 907 and 914 and this Article shall survive.
Upon satisfaction and discharge of this Indenture as
provided in this Section, the Trustee shall turn over to the
Company any and all money, securities and other property then
held by the Trustee for the benefit of the Holders of the
Securities (other than money and Eligible Obligations held by the
Trustee pursuant to Section 703) and shall execute and deliver to
the Company and the Guarantor such instruments as, in the
judgment of the Company and the Guarantor, shall be necessary,
desirable or appropriate to effect or evidence the satisfaction
and discharge of this Indenture.
SECTION 703. APPLICATION OF TRUST MONEY.
Neither the Eligible Obligations nor the money
deposited pursuant to Section 701, 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 Securities or portions of principal
amount thereof in respect of which such deposit was made, all
subject, however, to the provisions of Section 603; provided,
however, that any cash received from such principal or interest
payments on such Eligible Obligations, if not then needed for
such purpose, shall, to the extent practicable and upon Company
Request and delivery to the Trustee of the documents referred to
in clause (y) in the first paragraph of Section 701, be invested
in Eligible Obligations of the type described in clause (b) in
the first paragraph of Section 701 maturing at such times and in
such amounts as shall be sufficient, together with any other
moneys and the proceeds of any other Eligible Obligations then
held by the Trustee, to pay when due the principal of and
premium, if any, and interest, if any, due and to become due on
such Securities or portions thereof on and prior to the Maturity
thereof, and interest earned from such reinvestment shall be paid
over to the Company as received, free and clear of any trust,
lien or pledge under this Indenture (except the lien provided by
Section 907); and provided, further, that any moneys held in
accordance with this Section on the Maturity of all such
Securities in excess of the amount required to pay the principal
of and premium, if any, and interest, if any, then due on such
Securities shall be paid over to the Company free and clear of
any trust, lien or pledge under this Indenture (except the lien
provided by Section 907); and provided, further, that if an Event
of Default shall have occurred and be continuing, moneys to be
paid over to the Company pursuant to this Section shall be held
until such Event of Default shall have been waived or cured.
ARTICLE EIGHT
EVENTS OF DEFAULT; REMEDIES
SECTION 801. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect
to Securities of any series, means any one of the following
events:
(a) default in the payment of any interest on any
Security of such series when it becomes due and payable and
continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of or
premium, if any, on any Security of such series when it
becomes due and payable; or
(c) default in the performance of, or breach of, any
covenant or warranty of the Company or the Guarantor in this
Indenture (other than a covenant or warranty a default in
the performance of which or breach of which is elsewhere in
this Section specifically dealt with or which has expressly
been included in this Indenture solely for the benefit of
one or more series of Securities other than such series) and
continuance of such default or breach for a period of 90
days after there has been given, by registered or certified
mail, to the Company and the Guarantor by the Trustee, or to
the Company, the Guarantor and the Trustee by the Holders of
at least 25% in principal amount of the Outstanding
Securities of such series, a written notice specifying such
default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder,
unless the Trustee, or the Trustee and the Holders of a
principal amount of Securities of such series not less than
the principal amount of Securities the Holders of which gave
such notice, as the case may be, shall agree in writing to
an extension of such period prior to its expiration;
provided, however, that the Trustee, or the Trustee and the
Holders of such principal amount of Securities of such
series, as the case may be, shall be deemed to have agreed
to an extension of such period if corrective action is
initiated by the Company or the Guarantor within such period
and is being diligently pursued; or
(d) except as provided by the terms hereof, the
Securities of such series and the Guarantees endorsed
thereon, the cessation of effectiveness of the Guarantee
endorsed on a Security of such series or the finding by any
judicial proceeding that the Guarantee endorsed on a
Security of such series is unenforceable or invalid or the
denial or disaffirmation by the Guarantor of its obligations
under the Guarantee endorsed on a Security of such series;
or
(e) the entry by a court having jurisdiction in the
premises of (1) a decree or order for relief in respect of
the Company or the Guarantor 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 or the Guarantor a
bankrupt or insolvent, or approving as properly filed a
petition by one or more Persons other than the Company or
the Guarantor seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or
the Guarantor under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official for the
Company or the Guarantor or for any substantial part of its
property, or ordering the winding up or liquidation of its
affairs, and any such decree or order for relief or any such
other decree or order shall have remained unstayed and in
effect for a period of 90 consecutive days; or
(f) the commencement by the Company or the Guarantor
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 the
Company or the Guarantor to the entry of a decree or order
for relief in respect of the Company or the Guarantor in a
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law
or to the commencement of any bankruptcy or insolvency case
or proceeding against the Company or the Guarantor, or the
filing by the Company or the Guarantor of a petition or
answer or consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by the
Company or the Guarantor 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 the Guarantor or of any
substantial part of its property, or the making by the
Company or the Guarantor of an assignment for the benefit of
creditors, or the admission by the Company or the Guarantor
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 of the Company or the Guarantor; or
(g) any other Event of Default specified with respect
to Securities of such series.
SECTION 802. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default shall have occurred and be
continuing with respect to Securities of any series at the time
Outstanding, then in every such case the Trustee or the Holders
of not less than 25% in principal amount of the Outstanding
Securities of such series may declare the principal amount (or,
if any of the Securities of such series are Discount Securities,
such portion of the principal amount of such Securities as may be
specified in the terms thereof as contemplated by Section 301) of
all of the Securities of such series to be due and payable
immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon receipt by the Company of
notice of such declaration such principal amount (or specified
amount) shall become immediately due and payable; provided,
however, that if an Event of Default shall have occurred and be
continuing with respect to more than one series of Securities,
the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Outstanding Securities of all such
series, considered as one class, may make such declaration of
acceleration, and not the Holders of the Securities of any one of
such series.
At any time after such a declaration of acceleration
with respect to Securities of any series shall have been made and
before a judgment or decree for payment of the money due shall
have been obtained by the Trustee as hereinafter in this Article
provided, such declaration and its consequences shall, without
further act, be deemed to have been rescinded and annulled, if
(a) the Company or the Guarantor shall have paid
or deposited with the Trustee a sum sufficient to pay
(1) all overdue interest, if any, on all
Securities of such series then Outstanding;
(2) the principal of and premium, if any, on
any Securities of such series then Outstanding
which have become due otherwise than by such
declaration of acceleration and interest thereon
at the rate or rates prescribed therefor in such
Securities;
(3) to the extent that payment of such
interest is lawful, interest upon overdue interest
at the rate or rates prescribed therefor in such
Securities;
(4) all amounts due to the Trustee under
Section 907;
and
(b) all Events of Default with respect to
Securities of such series, other than the non payment
of the principal of Securities of such series which
shall have become due solely by such declaration of
acceleration, shall have been cured or waived as
provided in Section 813.
No such rescission shall affect any subsequent Event of Default
or impair any right consequent thereon.
SECTION 803. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE.
If an Event of Default described in clause (a) or (b)
of Section 801 shall have occurred, the Company or the Guarantor
shall, upon demand of the Trustee, pay to it, for the benefit of
the Holders of the Securities of the series with respect to which
such Event of Default shall have occurred, the whole amount then
due and payable on such Securities for principal and premium, if
any, and interest, if any, and, to the extent permitted by law,
interest on premium, if any, and on any overdue principal and
interest, at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as
shall be sufficient to cover any amounts due to the Trustee under
Section 907.
If the Company shall fail to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as trustee of
an express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid, may prosecute such
proceeding to judgment or final decree and may enforce the same
against the Company and the Guarantor or any other obligor upon
such Securities and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the
Company and the Guarantor or any other obligor upon such
Securities, wherever situated.
If an Event of Default with respect to Securities of
any series shall have occurred and be continuing, the Trustee may
in its discretion proceed to protect and enforce its rights and
the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
SECTION 804. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceeding relative to
the Company or the Guarantor or any other obligor upon the
Securities or the property of the Company or the Guarantor or of
such other obligor or their creditors, the Trustee (irrespective
of whether the principal of the Securities shall then be due and
payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on
the Company or the Guarantor for the payment of overdue principal
or interest) shall be entitled and empowered, by intervention in
such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of
principal, premium, if any, and interest, if any, owing and
unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim
for amounts due to the Trustee under Section 907) and of the
Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other
property payable or deliverable on any such claims and to
distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders,
to pay to the Trustee any amounts due it under Section 907.
Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights
of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding;
provided, however, that the Trustee may, on behalf of the
Holders, be a member of a creditors' or similar other committee.
SECTION 805. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES.
All rights of action and claims under this Indenture,
the Securities or the Guarantees endorsed thereon may be
prosecuted and enforced by the Trustee without the possession of
any of the Securities or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment shall, after provision for
the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel, be for the ratable benefit of the Holders in respect of
which such judgment has been recovered.
SECTION 806. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this
Article shall be applied in the following order, to the extent
permitted by law, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal
or premium, if any, or interest, if any, upon presentation of the
Securities in respect of which or for the benefit of which such
money shall have been collected and the notation thereon of the
payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 907;
SECOND: To the payment of the amounts then due and
unpaid upon the Securities for principal of and premium, if
any, and interest, if any, in respect of which or for the
benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal,
premium, if any, and interest, if any, respectively;
THIRD: To the payment of the remainder, if any, to the
Company or to whomsoever may be lawfully entitled to receive
the same or as a court of competent jurisdiction may direct.
SECTION 807. LIMITATION ON SUITS.
No Holder shall have any right to institute any
proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless:
(a) such Holder shall have previously given written
notice to the Trustee of a continuing Event of Default with
respect to the Securities of such series;
(b) the Holders of 25% in aggregate principal amount
of the Outstanding Securities of all series in respect of
which an Event of Default shall have occurred and be
continuing, considered as one class, shall have made written
request to the Trustee to institute proceedings in respect
of such Event of Default in its own name as Trustee
hereunder;
(c) such Holder or Holders shall have offered to the
Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity shall have failed to
institute any such proceeding; and
(e) no direction inconsistent with such written
request shall have been given to the Trustee during such 60-
day period by the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all series
in respect of which an Event of Default shall have occurred
and be continuing, considered as one class;
it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue of,
or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other of such Holders or
to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal
and ratable benefit of all of such Holders.
SECTION 808. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture,
the Holder of any Security shall have the right, which is
absolute and unconditional, to receive payment of the principal
of and premium, if any, and (subject to Section 307) interest, if
any, on such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any
such payment, and such rights shall not be impaired without the
consent of such Holder.
SECTION 809. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this Indenture
and such proceeding shall have been discontinued or abandoned for
any reason, or shall have been determined adversely to the
Trustee or to such Holder, then and in every such case, subject
to any determination in such proceeding, the Company, the
Guarantor, the Trustee and such Holder shall be restored
severally and respectively to their former positions hereunder
and thereafter all rights and remedies of the Trustee and such
Holder shall continue as though no such proceeding had been
instituted.
SECTION 810. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 811. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder to
exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein. Every
right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 812. CONTROL BY HOLDERS OF SECURITIES.
If an Event of Default shall have occurred and be
continuing in respect of a series of Securities, the Holders of a
majority in principal amount of the Outstanding Securities of
such series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Securities of such series; provided,
however, that if an Event of Default shall have occurred and be
continuing with respect to more than one series of Securities,
the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all such series, considered as one
class, shall have the right to make such direction, and not the
Holders of the Securities of any one of such series; and
provided, further, that
(a) such direction shall not be in conflict with any
rule of law or with this Indenture, and could not involve
the Trustee in personal liability in circumstances where
indemnity would not, in the Trustee's sole discretion, be
adequate, and
(b) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction.
SECTION 813. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal
amount of the Outstanding Securities of any series may on behalf
of the Holders of all the Securities of such series waive any
past default hereunder with respect to such series and its
consequences, except a default
(a) in the payment of the principal of or premium, if
any, or interest, if any, on any Security of such series, or
(b) in respect of a covenant or provision hereof which
under Section 1202 cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such
series affected.
Upon any such waiver, such default shall cease to
exist, and any and all Events of Default arising therefrom shall
be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 814. UNDERTAKING FOR COSTS.
The Company, the Guarantor 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, in each case
in the manner, to the extent, and subject to the exceptions
provided in the Trust Indenture Act; provided, that the
provisions of this Section shall not be deemed to authorize any
court to require such an undertaking or to make such an
assessment in any suit instituted by the Company or the
Guarantor.
SECTION 815. WAIVER OF USURY, STAY OR EXTENSION LAWS.
Each of the Company and the Guarantor 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 usury, 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 each of the Company and the Guarantor (to the extent that it
may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE NINE
THE TRUSTEE
SECTION 901. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of
Default with respect to Securities of any series,
(1) the Trustee undertakes to perform, with respect to
Securities of such series, such duties and only such duties
as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may, with respect to Securities of such series,
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the
case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default with respect to
Securities of any series shall have occurred and be continuing,
the Trustee shall exercise, with respect to Securities of such
series, such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed
to relieve the Trustee from liability for its own negligent
action, its own negligent failure to act, or its own wilful
misconduct, except that
(1) this subsection shall not be construed to limit
the effect of subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith
in accordance with the direction of the Holders of a
majority in principal amount of the Outstanding Securities
of any one or more series, as provided herein, relating to
the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust
or power conferred upon the Trustee, under this Indenture
with respect to the Securities of such series; and
(4) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Section.
SECTION 902. NOTICE OF DEFAULTS.
The Trustee shall give notice of any default hereunder
with respect to the Securities of any series to the Holders of
Securities of such series in the manner and to the extent
required to do so by the Trust Indenture Act, unless such default
shall have been cured or waived; provided, however, that in the
case of any default of the character specified in Section 801(c),
no such notice to Holders shall be given until at least 75 days
after the occurrence thereof. For the purpose of this Section,
the term "default" means any event which is, or after notice or
lapse of time, or both, would become, an Event of Default with
respect to the Securities of such series.
SECTION 903. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 901 and to the
applicable provisions of the Trust Indenture Act:
(a) the Trustee may 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 or the
Guarantor mentioned herein shall be sufficiently evidenced
by a Company Request or Company Order, or a Guarantor
Request or Guarantor Order, as the case may be, or as
otherwise expressly provided herein, and any resolution of
the Board of Directors of the Company or the Guarantor may
be sufficiently evidenced by a Board Resolution thereof;
(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 of the
Company or the Guarantor, as appropriate;
(d) the Trustee may consult with counsel and the
written advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any Holder pursuant
to this Indenture, unless such Holder shall have offered to
the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it
shall (subject to applicable legal requirements) be entitled
to examine, during normal business hours, the books, records
and premises of the Company or the Guarantor, personally or
by agent or attorney;
(g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys and the
Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed
with due care by it hereunder; and
(h) the Trustee shall not be charged with knowledge of
any Event of Default with respect to the Securities of any
series for which it is acting as Trustee unless either (1) a
Responsible Officer of the Trustee assigned to the Corporate
Trustee Administration Department and agency group of the
Trustee (or any successor division or department of the
Trustee) shall have actual knowledge of the Event of Default
or (2) written notice of such Event of Default shall have
been given to the Trustee by the Company or the Guarantor or
any other obligor on such Securities, or by any Holder of
such Securities.
SECTION 904. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.
The recitals contained herein and in the Securities and
the Guarantees endorsed thereon (except the Trustee's
certificates of authentication) shall be taken as the statements
of the Company and the Guarantor, as the case may be, 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
Securities or the Guarantees endorsed thereon. Neither Trustee
nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 905. MAY HOLD SECURITIES.
Each of the Trustee, any Authenticating Agent, any
Paying Agent, any Security Registrar or any other agent of the
Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Sections 908 and
913, may otherwise deal with the Company with the same rights it
would have if it were not the Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
SECTION 906. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not
be segregated from other funds, except to the extent required by
law. The Trustee shall be under no liability for interest on or
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 or the Guarantor.
SECTION 907. COMPENSATION AND REIMBURSEMENT.
The Company and the Guarantor jointly and severally
agree
(a) to 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, to
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances reasonably incurred or
made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be
attributable to its negligence, wilful misconduct or bad
faith; and
(c) to indemnify the Trustee and hold it harmless from
and against, any loss, liability or expense reasonably
incurred without negligence, wilful misconduct or bad faith
on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties
hereunder.
As security for the performance of the obligations of
the Company and the Guarantor under this Section, the Trustee
shall have a lien prior to the Securities upon all property and
funds held or collected by the Trustee as such, other than
property and funds held in trust under Section 703 (except moneys
payable to the Company as provided in Section 703).
SECTION 908. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee shall have or acquire any conflicting
interest within the meaning of the Trust Indenture Act, it shall
either eliminate such conflicting interest or resign to the
extent, in the manner and with the effect, and subject to the
conditions, provided in the Trust Indenture Act and this
Indenture. For purposes of Section 310(b)(1) of the Trust
Indenture Act and to the extent permitted thereby, the Trustee,
in its capacity as trustee in respect of the Securities of any
series, shall not be deemed to have a conflicting interest
arising from its capacity as trustee in respect of the Securities
of any other series.
SECTION 909. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which
shall be
(a) a corporation organized and doing business under
the laws of the United States of America, any State thereof or
the District of Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of
at least $50,000,000 and subject to supervision or examination by
Federal, State or District of Columbia authority, or
(b) if and to the extent permitted by the Commission
by rule, regulation or order upon application, a corporation or
other Person organized and doing business under the laws of a
foreign government, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of
at least $50,000,000 or the Dollar equivalent of the applicable
foreign currency and subject to supervision or examination by
authority of such foreign government or a political subdivision
thereof substantially equivalent to supervision or examination
applicable to United States institutional trustees
and, in either case, qualified and eligible under this Article
and the Trust Indenture Act. If such corporation publishes
reports of condition at least annually, pursuant to law or to the
requirements of such supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section and the Trust
Indenture Act, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 910. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements
of Section 911.
(b) The Trustee may resign at any time with respect to
the Securities of one or more series by giving written notice
thereof to the Company and the Guarantor. If the instrument of
acceptance by a successor Trustee required by Section 911 shall
not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment
of a successor Trustee with respect to the Securities of such
series.
(c) The Trustee may be removed at any time with
respect to the Securities of any series by Act of the Holders of
a majority in principal amount of the Outstanding Securities of
such series delivered to the Trustee, the Company and the
Guarantor.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 908
after written request therefor by the Company, the Guarantor
or by any Holder who has been a bona fide Holder for at
least six months, or
(2) the Trustee shall cease to be eligible under
Section 909 or Section 310(a) of the Trust Indenture Act and
shall fail to resign after written request therefor by the
Company, the Guarantor or by any such Holder, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of
the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (x) the Company and the Guarantor by
Board Resolutions may remove the Trustee with respect to all
Securities or (y) subject to Section 814, any Holder who has been
a bona fide Holder for at least six months may, on behalf of
himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with
respect to all Securities and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause (other than as contemplated by clause (y)
in subsection (d) or this Section), with respect to the
Securities of one or more series, the Company and the Guarantor,
by Board Resolutions, shall promptly appoint a successor Trustee
or Trustees with respect to the Securities of that or those
series (it being understood that any such successor Trustee may
be appointed with respect to the Securities of one or more or all
of such series and that at any time (subject to Section 915)
there shall be only one Trustee with respect to the Securities of
any particular series) and shall comply with the applicable
requirements of Section 911. If, within one year after such
resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of
any series shall be appointed by Act of the Holders of a majority
in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of
Section 911, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the
successor Trustee appointed by the Company and the Guarantor. If
no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company and the Guarantor or
the Holders and accepted appointment in the manner required by
Section 911, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of
itself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(f) So long as no event which is, or after notice or
lapse of time, or both, would become, an Event of Default shall
have occurred and be continuing, and except with respect to a
Trustee appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities pursuant to
subsection (e) of this Section, if the Company and the Guarantor
shall have delivered to the Trustee (i) Board Resolutions of the
Company and the Guarantor appointing a successor Trustee,
effective as of a date specified therein, and (ii) an instrument
of acceptance of such appointment, effective as of such date, by
such successor Trustee in accordance with Section 911, the
Trustee shall be deemed to have resigned as contemplated in
subsection (b) of this Section, the successor Trustee shall be
deemed to have been appointed by the Company and the Guarantor
pursuant to subsection (e) of this Section and such appointment
shall be deemed to have been accepted as contemplated in Section
911, all as of such date, and all other provisions of this
Section and Section 911 shall be applicable to such resignation,
appointment and acceptance except to the extent inconsistent with
this subsection (f).
(g) The Company shall give notice of each resignation
and each removal of the Trustee with respect to the Securities of
any series and each appointment of a successor Trustee with
respect to the Securities of any series to all Holders of
Securities of such series in the manner provided in Section 106.
Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its
Corporate Trust Office.
SECTION 911. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of all series,
every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company, the Guarantor and to the
retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but,
on the request of the Company, the Guarantor or the successor
Trustee, such retiring Trustee shall, upon payment of all sums
owed to it, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such
retiring Trustee hereunder.
(b) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of one or more
(but not all) series, the Company, the Guarantor, the retiring
Trustee and each successor Trustee with respect to the Securities
of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept
such appointment and which (1) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and
to vest in, each successor Trustee all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not
retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series as
to which the retiring Trustee is not retiring shall continue to
be vested in the retiring Trustee and (3) shall add to or change
any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate
and apart from any trust or trusts hereunder administered by any
other such Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein and
each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of
such successor Trustee relates; but, on request of the Company,
the Guarantor or any successor Trustee, such retiring Trustee,
upon payment of all sums owed to it, shall duly assign, transfer
and deliver to such successor Trustee all property and money held
by such retiring Trustee hereunder with respect to the Securities
of that or those series to which the appointment of such
successor Trustee relates.
(c) Upon request of any such successor Trustee, the
Company and the Guarantor shall execute any instruments for more
fully and certainly vesting in and confirming to such successor
Trustee all such rights, powers and trusts referred to in
subsection (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee
shall be qualified and eligible under this Article.
SECTION 912. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the execution
or filing of any paper or any further act on the part of any of
the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver
the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
SECTION 913. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If the Trustee shall be or become a creditor of the
Company, the Guarantor or any other obligor upon the Securities
(other than by reason of a relationship described in Section
311(b) of the Trust Indenture Act), the Trustee shall be subject
to any and all applicable provisions of the Trust Indenture Act
regarding the collection of claims against the Company, the
Guarantor or such other obligor. For purposes of Section 311(b)
of the Trust Indenture Act (a) the term "cash transaction" shall
have the meaning provided in Rule 11b-4 under the Trust Indenture
Act, and (b) the term "self-liquidating paper" shall have the
meaning provided in Rule 11b-6 under the Trust Indenture Act.
SECTION 914. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or
Agents with respect to the Securities of one or more series, or
any Tranche thereof, which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series or
Tranche issued upon original issuance, exchange, registration of
transfer or partial redemption thereof or pursuant to Section
306, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the
Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and the Guarantor and shall at all
times be a corporation organized and doing business under the
laws of the United States of America, any State or territory
thereof or the District of Columbia or the Commonwealth of Puerto
Rico, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by Federal
or State authority. If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of
such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of
this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may
be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be a
party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation
shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part
of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by
giving written notice thereof to the Trustee, the Company and the
Guarantor. The Trustee may at any time terminate the agency of
an Authenticating Agent by giving written notice thereof to such
Authenticating Agent, the Company and the Guarantor. Upon
receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent
shall cease to be eligible in accordance with the provisions of
this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and the Guarantor.
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.
Unless appointed at the request of the Company pursuant
to the last paragraph of this Section 914, the Trustee agrees to
pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, in
accordance with and subject to the provisions of Section 907.
The provisions of Sections 308, 904 and 905 shall be
applicable to each Authenticating Agent.
If an appointment with respect to the Securities of one
or more series, or any Tranche thereof, shall be made pursuant to
this Section, the Securities of such series or Tranche may have
endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication
substantially in the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
As Trustee
By______________________
As Authenticating
Agent
By______________________
Authorized Officer
If all of the Securities of a series may not be
originally issued at one time, and if the Trustee does not have
an office capable of authenticating Securities upon original
issuance located in a Place of Payment where the Company wishes
to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested by the Company in writing
(which writing need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel), shall appoint, in
accordance with this Section and in accordance with such
procedures as shall be acceptable to the Trustee, an
Authenticating Agent having an office in a Place of Payment
designated by the Company with respect to such series of
Securities.
SECTION 915. CO-TRUSTEE AND SEPARATE TRUSTEES.
At any time or times, for the purpose of meeting the
legal requirements of any applicable jurisdiction, the Company,
the Guarantor and the Trustee shall have power to appoint, and,
upon the written request of the Trustee or of the Holders of at
least 33% in principal amount of the Securities then Outstanding,
the Company and the Guarantor 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 or the Guarantor 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 or the Guarantor be required by any co-trustee or
separate trustee 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 or the Guarantor, as the case may
be.
Every co-trustee or separate trustee shall, to the
extent permitted by law, but to such extent only, be appointed
subject to the following conditions:
(a) the Securities shall be authenticated and
delivered, and all rights, powers, duties and obligations
hereunder in respect of the custody of securities, cash and other
personal property held by, or required to be deposited or pledged
with, the Trustee hereunder, shall be exercised solely, by the
Trustee;
(b) the rights, powers, duties and obligations hereby
conferred or imposed upon the Trustee in respect of any property
covered by such appointment shall be conferred or imposed upon
and exercised or performed either by the Trustee or by the
Trustee and such co-trustee or separate trustee jointly, as shall
be provided in the instrument appointing such co-trustee or
separate trustee, except to the extent that under any law of any
jurisdiction in which any particular act is to be performed, the
Trustee shall be incompetent or unqualified to perform such act,
in which event such rights, powers, duties and obligations shall
be exercised and performed by such co-trustee or separate
trustee.
(c) the Trustee at any time, by an instrument in
writing executed by it, with the concurrence of the Company and
the Guarantor, 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 or the Guarantor. Upon the written request of the
Trustee, the Company and the Guarantor 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 the Trustee
shall not be personally liable by reason of any act or omission
of any such co-trustee or separate trustee; and
(e) any Act of Holders delivered to the Trustee shall
be deemed to have been delivered to each such co-trustee and
separate trustee.
ARTICLE TEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE, COMPANY AND GUARANTOR
SECTION 1001. LISTS OF HOLDERS.
Semiannually, not later than June 30 and December 31 in
each year, and at such other times as the Trustee may request in
writing, the Company and the Guarantor shall furnish or cause to
be furnished to the Trustee information as to the names and
addresses of the Holders, and the Trustee shall preserve such
information and similar information received by it in any other
capacity and afford to the Holders access to information so
preserved by it, all to such extent, if any, and in such manner
as shall be required by the Trust Indenture Act; provided,
however, that no such list need be furnished so long as the
Trustee shall be the Security Registrar.
SECTION 1002. REPORTS BY TRUSTEE, COMPANY AND GUARANTOR.
The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as
may be required pursuant to the Trust Indenture Act at the time
and in the manner provided pursuant thereto. Reports so required
to be transmitted at stated intervals of not more than 12 months
shall be transmitted no later than November 15 in each calendar
year with respect to the 12-month period ending on the preceding
September 15, commencing September 15, 1998. A copy of each such
report shall, at the time of such transmission to Holders, be
filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company
and the Guarantor. The Company and the Guarantor will notify the
Trustee when any Securities are listed on any stock exchange.
The Company and the Guarantor shall file with the
Trustee (within thirty (30) days after filing with the Commission
in the case of reports that pursuant to the Trust Indenture Act
must be filed with the Commission and furnished to the Trustee)
and transmit to the Holders, such other information, reports and
other documents, if any, at such times and in such manner, as
shall be required by the Trust Indenture Act.
ARTICLE ELEVEN
CONSOLIDATION, MERGER, CONVEYANCE, OR OTHER TRANSFER
SECTION 1101. COMPANY OR GUARANTOR MAY CONSOLIDATE, ETC.,
ONLY ON CERTAIN TERMS.
Neither the Company nor the Guarantor shall consolidate
with or merge into any other Person or convey, transfer or lease
its properties and assets substantially as an entirety to any
Person, unless
(a) the Person formed by such consolidation or into
which the Company or Guarantor, as the case may be, is
merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the
Company or the Guarantor, as the case may be, substantially
as an entirety shall be a Person organized and existing
under the laws of the United States, any State thereof or
the District of Columbia, and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of and premium, if any,
and interest, if any, on all Outstanding Securities (or the
Guarantees endorsed thereon, as the case may be) and the
performance of every covenant of this Indenture on the part
of the Company or the Guarantor, as the case may be, 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 or the Guarantor
as a result of such transaction as having been incurred by
the Company or the Guarantor 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 or the Guarantor, as the case may be,
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 indenture supplemental hereto complies with this
Article and that all conditions precedent herein provided
for relating to such transactions have been complied with.
SECTION 1102. SUCCESSOR PERSON SUBSTITUTED.
Upon any consolidation by the Company or the Guarantor
with or merger by the Company or the Guarantor into any other
Person or any conveyance or other transfer or lease of the
properties and assets of the Company or the Guarantor
substantially as an entirety in accordance with Section 1101, the
successor Person formed by such consolidation or into which the
Company or the Guarantor, as the case may be, is merged or the
Person to which such conveyance, or other transfer or lease is
made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company or the Guarantor, as the
case may be, under this Indenture with the same effect as if such
successor Person had been named as the Company or the Guarantor,
as the case may be, herein, and thereafter, except in the case of
a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities
Outstanding hereunder (or the Guarantees endorsed thereon, as the
case may be).
SECTION 1103. MERGER INTO COMPANY OR GUARANTOR.
Nothing in this Indenture shall be deemed to prevent or
restrict any consolidation or merger after the consummation of
which the Company or the Guarantor, as the case may be, would be
the surviving or resulting corporation or any conveyance or other
transfer, or lease of any part of the properties of the Company
or the Guarantor, as the case may be, which does not constitute
the entirety, or substantially the entirety, thereof.
ARTICLE TWELVE
SUPPLEMENTAL INDENTURES
SECTION 1201. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
HOLDERS.
Without the consent of any Holders, the Company, the
Guarantor and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to
the Company or the Guarantor, as the case may be, and the
assumption by any such successor of the covenants of the
Company or the Guarantor, as the case may be, herein and in
the Securities or the Guarantees endorsed thereon, all as
provided in Article Eleven; or
(b) to add one or more covenants of the Company or the
Guarantor or other provisions for the benefit of the Holders
of all or any series of Securities, or any Tranche thereof
or to surrender any right or power herein conferred upon the
Company or the Guarantor (and if such covenants are to be
for the benefit of less than all series of Securities,
stating that such covenants are expressly being included
solely for the benefit of such series); or
(c) to add any additional Events of Default with
respect to all or any series of Securities Outstanding
hereunder (and if such additional Events of Default are to
be for the benefit of less than all series of Securities,
stating that such additional Events of Default are expressly
being included solely for the benefit of such series); or
(d) to change or eliminate any provision of this
Indenture or to add any new provision to this Indenture;
provided, however, that if such change, elimination or
addition shall adversely affect the interests of the Holders
of Securities of any series or Tranche Outstanding on the
date of such supplemental indenture in any material respect,
such change, elimination or addition shall become effective
with respect to such series or Tranche only pursuant to the
provisions of Section 1202 hereof or when no Security of
such series or Tranche remains Outstanding; or
(e) to provide collateral security for the Securities;
or
(f) to establish the form or terms of Securities of
any series or Tranche or any Guarantees as contemplated by
Sections 201 and 301; or
(g) to provide for the authentication and delivery of
bearer securities and coupons appertaining thereto
representing interest, if any, thereon and for the
procedures for the registration, exchange and replacement
thereof and for the giving of notice to, and the
solicitation of the vote or consent of, the holders thereof,
and for any and all other matters incidental thereto; or
(h) to evidence and provide for the acceptance of
appointment hereunder by a separate or successor Trustee
with respect to the Securities of one or more series and to
add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 911(b); or
(i) to provide for the procedures required to permit
the Company to utilize, at its option, a non certificated
system of registration for all, or any series or Tranche of,
the Securities; or
(j) to change any place or places where (1) the
principal of and premium, if any, and interest, if any, on
all or any series of Securities, or any Tranche thereof,
shall be payable, (2) all or any series of Securities, or
any Tranche thereof, may be surrendered for registration of
transfer, (3) all or any series of Securities, or any
Tranche thereof, may be surrendered for exchange and (4)
notices and demands to or upon the Company or the Guarantor
in respect of all or any series of Securities, or any
Tranche thereof, and this Indenture may be served; or
(k) to cure any ambiguity, to correct or supplement
any provision herein which may be defective or inconsistent
with any other provision herein, or to make any other
changes to the provisions hereof or to add other provisions
with respect to matters or questions arising under this
Indenture, provided that such other changes or additions
shall not adversely affect the interests of the Holders of
Securities of any series or Tranche in any material respect.
Without limiting the generality of the foregoing, if
the Trust Indenture Act as in effect at the date of the execution
and delivery of this Indenture or at any time thereafter shall be
amended and
(x) if any such amendment shall require one or more
changes to any provisions hereof or the inclusion herein of
any additional provisions, or shall by operation of law be
deemed to effect such changes or incorporate such provisions
by reference or otherwise, this Indenture shall be deemed to
have been amended so as to conform to such amendment to the
Trust Indenture Act, and the Company, the Guarantor and the
Trustee may, without the consent of any Holders, enter into
an indenture supplemental hereto to evidence such amendment
hereof; 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 or are contained herein to
reflect any provision of the Trust Indenture Act as in
effect at such date, this Indenture shall be deemed to have
been amended to effect such changes or elimination, and the
Company, the Guarantor and the Trustee may, without the
consent of any Holders, enter into an indenture supplemental
hereto to this Indenture to effect such changes or
elimination or evidence such amendment.
SECTION 1202. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
Subject to the provisions of Section 1201, with the
consent of the Holders of not less than a majority in aggregate
principal amount of the Securities of all series then Outstanding
under this Indenture, considered as one class, by Act of said
Holders delivered to the Company, the Guarantor and the Trustee,
the Company and the Guarantor, when authorized by Board
Resolutions, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any
provisions to, or changing in any manner or eliminating any of
the provisions of, this Indenture; provided, however, that if
there shall be Securities of more than one series Outstanding
hereunder and if a proposed supplemental indenture shall directly
affect the rights of the Holders of Securities of one or more,
but less than all, of such series, then the consent only of the
Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series so directly affected,
considered as one class, shall be required; and provided,
further, that if the Securities of any series shall have been
issued in more than one Tranche and if the proposed supplemental
indenture shall directly affect the rights of the Holders of
Securities of one or more, but less than all, of such Tranches,
then the consent only of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all Tranches so
directly affected, considered as one class, shall be required;
and provided, further, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security of
each series or Tranche so directly affected,
(a) change the Stated Maturity of the principal of, or
any installment of principal of or interest on, any Security
(other than pursuant to the terms thereof), 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 Security that would be due and
payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 802, or change the coin or
currency (or other property), in which any Security or any
premium or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the
case of redemption, on or after the Redemption Date), or
(b) reduce the percentage in principal amount of the
Outstanding Securities of 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 1304
for quorum or voting, or
(c) modify any of the provisions of this Section,
Section 606 or Section 813 with respect to the Securities 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 Security affected
thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to
changes in the references to "the Trustee" and concomitant
changes in this Section, or the deletion of this proviso, in
accordance with the requirements of Sections 911(b) and
1201(h).
A supplemental indenture which (x) changes or eliminates any
covenant or other provision of this Indenture which has expressly
been included solely for the benefit of the Holders of, or which
is to remain in effect only so long as there shall be
Outstanding, Securities of one or more particular series, or one
or more Tranches thereof, or (y) modifies the rights of the
Holders of Securities of such series or Tranches with respect to
such covenant or other provision, shall be deemed not to affect
the rights under this Indenture of the Holders of Securities of
any other series or Tranche.
It shall not be necessary for any Act of Holders under
this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
SECTION 1203. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this Article
or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject
to Section 901) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustee's
own rights, duties, immunities or liabilities under this
Indenture or otherwise.
SECTION 1204. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under
this Article this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby. Any supplemental indenture permitted by
this Article may restate this Indenture in its entirety, and,
upon the execution and delivery thereof, any such restatement
shall supersede this Indenture as theretofore in effect for all
purposes.
SECTION 1205. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture
Act as then in effect.
SECTION 1206. REFERENCE IN SECURITIES TO SUPPLEMENTAL
INDENTURES.
Securities of any series, or any Tranche thereof,
authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental
indenture. If the Company and the Guarantor shall so determine,
new Securities of any series, or any Tranche thereof, so modified
as to conform, in the opinion of the Trustee, the Company and
Guarantor, to any such supplemental indenture may be prepared and
executed by the Company (with Guarantees of the Guarantor
endorsed thereon), and authenticated and delivered by the Trustee
in exchange for Outstanding Securities of such series or Tranche.
SECTION 1207. MODIFICATION WITHOUT SUPPLEMENTAL INDENTURE.
To the extent, if any, that the terms of any particular
series of Securities shall have been established in or pursuant
to a Board Resolution or an Officer's Certificate pursuant to a
supplemental indenture or 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 1204 and 1206.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
SECTION 1301. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of one or more, or
all, series, or any Tranche or Tranches thereof, may be called at
any time and from time to time pursuant to this Article to make,
give or take any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this
Indenture to be made, given or taken by Holders of Securities of
such series or Tranches.
SECTION 1302. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of
Holders of Securities of one or more, or all, series, or any
Tranche or Tranches thereof, for any purpose specified in Section
1301, to be held at such time and at such place in the Borough of
Manhattan, The City of New York, as the Trustee shall determine,
or, with the approval of the Company, at any other place. Notice
of every such meeting, setting forth the time and the place of
such meeting and in general terms the action proposed to be taken
at such meeting, shall be given, in the manner provided in
Section 106, not less than 21 nor more than 180 days prior to the
date fixed for the meeting.
(b) If the Trustee shall have been requested to call a
meeting of the Holders of Securities of one or more, or all,
series, or any Tranche or Tranches thereof, by the Company, the
Guarantor or by the Holders of 33% in aggregate principal amount
of all of such series and Tranches, considered as one class, for
any purpose specified in Section 1301, by written request setting
forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have given the notice of such
meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided
herein, then the Company, the Guarantor or the Holders of
Securities of such series and Tranches in the amount above
specified, as the case may be, may determine the time and the
place in the Borough of Manhattan, The City of New York, or in
such other place as shall be determined or approved by the
Company or the Guarantor, for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in
subsection (a) of this Section.
(c) Any meeting of Holders of Securities of one or
more, or all, series, or any Tranche or Tranches thereof, shall
be valid without notice if the Holders of all Outstanding
Securities of such series or Tranches are present in person or by
proxy and if representatives of the Company, the Guarantor and
the Trustee are present, or if notice is waived in writing before
or after the meeting by the Holders of all Outstanding Securities
of such series, or by such of them as are not present at the
meeting in person or by proxy, and by the Company, the Guarantor
and the Trustee.
SECTION 1303. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of
Securities of one or more, or all, series, or any Tranche or
Tranches thereof, a Person shall be (a) a Holder of one or more
Outstanding Securities of such series or Tranches, or (b) a
Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of such
series or Tranches by such Holder or Holders. The only Persons
who shall be entitled to attend any meeting of Holders of
Securities of any series or Tranche shall be the Persons entitled
to vote at such meeting and their counsel, any representatives of
the Trustee and its counsel and any representatives of the
Company and the Guarantor and their counsel.
SECTION 1304. QUORUM; ACTION.
The Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of the series and
Tranches with respect to which a meeting shall have been called
as hereinbefore provided, considered as one class, shall
constitute a quorum for a meeting of Holders of Securities of
such series and Tranches; provided, however, that if any action
is to be taken at such meeting which this Indenture expressly
provides may be taken by the Holders of a specified percentage,
which is less than a majority, in principal amount of the
Outstanding Securities of such series and Tranches, considered as
one class, the Persons entitled to vote such specified percentage
in principal amount of the Outstanding Securities of such series
and Tranches, considered as one class, shall constitute a quorum.
In the absence of a quorum within one hour of the time appointed
for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series and Tranches, be
dissolved. In any other case the meeting may be adjourned for
such period as may be determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may
be further adjourned for such period as may be determined by the
chairman of the meeting prior to the adjournment of such
adjourned meeting. Except as provided by Section 1305(e), notice
of the reconvening of any meeting adjourned for more than 30 days
shall be given as provided in Section 1302(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 Securities of such series and
Tranches which shall constitute a quorum.
Except as limited by Section 1202, any resolution
presented to a meeting or adjourned meeting duly reconvened at
which a quorum is present as aforesaid may be adopted only by the
affirmative vote of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of the series and
Tranches with respect to which such meeting shall have been
called, considered as one class; provided, however, that, except
as so limited, any resolution with respect to any action which
this Indenture expressly provides may be taken by the Holders of
a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of such series and
Tranches, considered as one class, may be adopted at a meeting or
an adjourned meeting duly reconvened and at which a quorum is
present as aforesaid by the affirmative vote of the Holders of
such specified percentage in principal amount of the Outstanding
Securities of such series and Tranches, considered as one class.
Any resolution passed or decision taken at any meeting
of Holders of Securities duly held in accordance with this
Section shall be binding on all the Holders of Securities of the
series and Tranches with respect to which such meeting shall have
been held, whether or not present or represented at the meeting.
SECTION 1305. ATTENDANCE AT MEETINGS; DETERMINATION OF VOTING
RIGHTS; CONDUCT AND ADJOURNMENT OF MEETINGS.
(a) Attendance at meetings of Holders of Securities
may be in person or by proxy; and, to the extent permitted by
law, any such proxy shall remain in effect and be binding upon
any future Holder of the Securities with respect to which it was
given unless and until specifically revoked by the Holder or
future Holder of such Securities before being voted.
(b) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it
may deem advisable for any meeting of Holders of Securities in
regard to proof of the holding of such Securities and of the
appointment of proxies and in regard to the appointment and
duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as
it shall deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Securities shall
be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified
in Section 104. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be
presumed valid and genuine without the proof specified in Section
104 or other proof.
(c) The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the meeting
shall have been called by the Company or the Guarantor or by
Holders as provided in Section 1302(b), in which case the Company
or the Guarantor or the Holders of Securities of the series and
Tranches calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by vote of
the Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of all series and Tranches
represented at the meeting, considered as one class.
(d) At any meeting each Holder or proxy shall be
entitled to one vote for each $1,000 principal amount of
Securities held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote, except as a Holder of a
Security or proxy.
(e) Any meeting duly called pursuant to Section 1302
at which a quorum is present may be adjourned from time to time
by Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of all series and Tranches
represented at the meeting, considered as one class; and the
meeting may be held as so adjourned without further notice.
SECTION 1306. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting
of Holders shall be by written ballots on which shall be
subscribed the signatures of the Holders or of their
representatives by proxy and the principal amounts and serial
numbers of the Outstanding Securities, of the series and Tranches
with respect to which the meeting shall have been called, held or
represented by them. The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at
the meeting for or against any resolution and who shall make and
file with the secretary of the meeting their verified written
reports of all votes cast at the meeting. A record, in
duplicate, of the proceedings of each meeting of Holders shall be
prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one
or more persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice
was given as provided in Section 1302 and, if applicable, Section
1304. Each copy shall be signed and verified by the affidavits
of the permanent chairman and secretary of the meeting and one
such copy shall be delivered to the Company, and another to the
Trustee to be preserved by the Trustee, the latter to have
attached thereto the ballots voted at the meeting. Any record so
signed and verified shall be conclusive evidence of the matters
therein stated.
SECTION 1307. ACTION WITHOUT MEETING.
In lieu of a vote of Holders at a meeting as
hereinbefore contemplated in this Article, any request, demand,
authorization, direction, notice, consent, waiver or other action
may be made, given or taken by Holders by written instruments as
provided in Section 104.
ARTICLE FOURTEEN
GUARANTEE
SECTION 1401. GUARANTEE.
The Guarantor hereby unconditionally guarantees to each
Holder of a Security authenticated and delivered by the Trustee,
and to the Trustee on behalf of such Holder, the due and punctual
payment of the principal of, and premium, if any, and interest,
if any, on the Securities of such series when and as the same
shall become due and payable, whether at the Stated Maturity, by
declaration of acceleration, call for redemption, or otherwise,
in accordance with the terms of such Security and of this
Indenture. In case of the failure of the Company punctually to
make any such payment, the Guarantor hereby agrees to cause such
payment to be made punctually when and as the same shall become
due and payable, whether at the Stated Maturity or by declaration
of acceleration, call for redemption or otherwise, and as if such
payment were made by the Company.
The Guarantor hereby agrees that its obligations
hereunder shall be absolute and unconditional irrespective of,
and shall be unaffected by, any invalidity, irregularity or
unenforceability of such Security or this Indenture, any failure
to enforce the provisions of such Security or this Indenture, or
any waiver, modification or indulgence granted to the Company
with respect thereto, by the Holder of such Security or the
Trustee or any other circumstance which may otherwise constitute
a legal or equitable discharge or defense of a surety or
guarantor; provided, however, that notwithstanding the foregoing,
no such waiver, modification or indulgence shall, without the
consent of the Guarantor, increase the principal amount of such
Security, or increase the interest rate thereon, or change any
redemption provisions thereof (including any change to increase
any premium payable upon redemption thereof), or change the
Stated Maturity thereof, or increase the principal amount of any
Discount Security that would be due and payable upon a
declaration of acceleration or the maturity thereof pursuant to
Article Eight of this Indenture.
The Guarantor hereby waives the benefits of diligence,
presentment, demand for payment, any requirement that the Trustee
or any of the Holders exhaust any right or take any action
against the Company or any other Person, filing of claims with a
court in the event of insolvency or bankruptcy of the Company,
any right to require a proceeding first against the Company,
protest or notice with respect to any Security or the
indebtedness evidenced thereby and all demands whatsoever, and
covenants that this Guarantee will not be discharged in respect
of any Security except by complete performance of the obligations
contained in such Security and in this Guarantee. This Guarantee
shall constitute a guaranty of payment and not of collection.
The Guarantor hereby agrees that, in the event of a default in
payment of principal, or premium, if any, or interest, if any, on
any Security, whether at its Stated Maturity, by declaration of
acceleration, call for redemption, or otherwise, legal
proceedings may be instituted by the Trustee on behalf of, or by,
the Holder of such Security, subject to the terms and conditions
set forth in this Indenture, directly against the Guarantor to
enforce this Guarantee without first proceeding against the
Company.
The obligations of the Guarantor hereunder with respect
to any Security shall be continuing and irrevocable until the
date upon which the entire principal of, premium, if any, and
interest on such Security has been, or has been deemed pursuant
to the provisions of Article Seven of this Indenture to have
been, paid in full or otherwise discharged.
The Guarantor shall be subrogated to all rights of the
Holders of the Securities upon which its Guarantee is endorsed
against the Company in respect of any amounts paid by the
Guarantor on account of such Securities pursuant to the
provisions of its Guarantee or this Indenture; provided, however,
that the Guarantor shall not be entitled to enforce or to receive
any payments arising out of, or based upon, such right of
subrogation until the principal of, and premium, if any, and
interest, if any, on all Securities issued hereunder shall have
been paid in full.
This Guarantee shall remain in full force and effect
and continue notwithstanding any petition filed by or against the
Company for liquidation or reorganization, the Company becoming
insolvent or making an assignment for the benefit of creditors or
a receiver or trustee being appointed for all or any significant
part of the Company's assets, and shall, to the fullest extent
permitted by law, continue to be effective or reinstated, as the
case may be, if at any time payment of any Security, is, pursuant
to applicable law, rescinded or reduced in amount, or must
otherwise be restored or returned by any Holder of such Security,
whether as a "voidable preference," "fraudulent transfer," or
otherwise, all as though such payment or performance had not been
made. In the event that any payment, or any part thereof, is
rescinded, reduced, restored or returned on a Security, such
Security shall, to the fullest extent permitted by law, be
reinstated and deemed paid only by such amount paid and not so
rescinded, reduced, restored or returned.
SECTION 1402. EXECUTION AND DELIVERY OF GUARANTEE.
The Guarantee to be endorsed on the Securities of each
series shall include the terms of the Guarantee set forth in
Section 1401 and any other terms that may be set forth as
established pursuant to Section 301. The Guarantor hereby agrees
to execute its Guarantee, in a form established pursuant to
Section 201, to be endorsed on each Security authenticated and
delivered by the Trustee.
The Guarantee shall be executed on behalf of the
Guarantor by an Authorized Officer of the Guarantor. The
signature of any such officer on the Guarantee may be manual or
facsimile.
A Guarantee bearing the manual or facsimile signature
of an individual who was at the time of execution an Authorized
Officer of the Guarantor shall bind the Guarantor,
notwithstanding that any such individual has ceased to be an
Authorized Officer prior to the authentication and delivery of
the Security on which such Guarantee is endorsed or was not an
Authorized Officer at the date of such Guarantee.
The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery
of the Guarantee endorsed thereon on behalf of the Guarantor.
The Guarantor hereby agrees that its Guarantee set forth in
Section 1401 shall remain in full force and effect
notwithstanding any failure to endorse a Guarantee on any
Security. The Guarantor by its execution of this Indenture
hereby authorizes the Company, in the name and on behalf of the
Guarantor, to confirm the applicable Guarantee to the Holder of
each Security authenticated and delivered hereunder by its
execution and delivery of each such Security, with such Guarantee
endorsed thereon, authenticated and delivered by the Trustee.
ARTICLE FIFTEEN
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
Securities, any Guarantees or any part thereof, or for any claim
based thereon or otherwise in respect thereof, or of the
indebtedness represented thereby, or upon any obligation,
covenant or agreement under this Indenture, against any
incorporator, stockholder, officer or director, as such, past,
present or future of the Company or the Guarantor or of any
predecessor or successor of either of them (either directly or
through the Company or the Guarantor, as the case may be, or a
predecessor or successor of either of them), whether by virtue of
any constitutional provision, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being
expressly agreed and understood that this Indenture and all the
Securities and Guarantees 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 the Guarantor or of
any predecessor or successor corporation, either directly or
indirectly through the Company or the Guarantor or any
predecessor or successor of either of them, because of the
indebtedness hereby authorized or under or by reason of any of
the obligations, covenants or agreements contained in this
Indenture or in any of the Securities or Guarantees or to be
implied herefrom or therefrom, and that any such personal
liability is hereby expressly waived and released as a condition
of, and as part of the consideration for, the execution of this
Indenture and the issuance of the Securities and the Guarantees.
_________________________
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.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the day and
year first above written.
PP&L CAPITAL FUNDING, INC.
By:_____________________________
[SEAL]
ATTEST:
____________________________
PP&L RESOURCES, INC.
By:_____________________________
[SEAL]
ATTEST:
____________________________
THE CHASE MANHATTAN BANK,
as Trustee
By:_____________________________
[SEAL]
ATTEST:
____________________________
Exhibit 4.2
=================================================================
PP&L CAPITAL FUNDING, INC.
ISSUER
AND
PP&L RESOURCES, INC.,
GUARANTOR
TO
THE CHASE MANHATTAN BANK,
TRUSTEE
_________
SUPPLEMENTAL INDENTURE NO. 1
DATED AS OF ___________, 1997
SUPPLEMENTAL TO THE INDENTURE
DATED AS OF ___________, 1997
ESTABLISHING A SERIES OF SECURITIES DESIGNATED
MEDIUM TERM NOTES, SERIES A
LIMITED IN AGGREGATE PRINCIPAL AMOUNT TO $400,000,000
=================================================================
<PAGE>
SUPPLEMENTAL INDENTURE NO. 1, dated as of
_______________, 1997, among PP&L CAPITAL FUNDING, INC., a
corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), PP&L RESOURCES,
INC., a corporation duly organized and existing under the laws of
the Commonwealth of Pennsylvania (herein called the "Guarantor"),
and THE CHASE MANHATTAN BANK, a New York banking corporation, as
Trustee (herein called the "Trustee), under the Indenture dated
as of October 1, 1997 (hereinafter called the "Original
Indenture"), this Supplemental Indenture No. 1 being supplemental
thereto. The Original Indenture and any and all indentures and
instruments supplemental thereto are hereinafter sometimes
collectively called the "Indenture."
RECITALS OF THE COMPANY AND THE GUARANTOR
The Original Indenture was authorized, executed and
delivered by the Company and the Guarantor to provide for the
issuance by the Company from time to time of its Securities (such
term and all other capitalized terms used herein without
definition having the meanings assigned to them in the Original
Indenture), to be issued in one or more series as contemplated
therein, and for the Guarantee by the Guarantor of the payment of
the principal, premium, if any, and interest, if any, on such
Securities.
As contemplated by Sections 301 and 1201(f) of the
Original Indenture, the Company wishes to establish a series of
Securities to be designated "Medium-Term Notes, Series A" to be
limited in aggregate principal amount (except as contemplated in
Section 301(b) of the Original Indenture) to $400,000,000, such
series of Securities to be hereinafter sometimes called "Series
No. 1."
As contemplated by Section 201 and 1402 of the Original
Indenture, the Guarantor wishes to establish the form and terms
of the Guarantees to be endorsed on the Securities of Series No.
1.
The Company has duly authorized the execution and
delivery of this Supplemental Indenture No. 1 to establish the
Securities of Series No. 1 and has duly authorized the issuance
of such Securities; the Guarantor has duly authorized the
execution and delivery of this Supplemental Indenture No. 1 and
has duly authorized its Guarantees of the Securities of Series
No. 1; and all acts necessary to make this Supplemental Indenture
No. 1 a valid agreement of the Company and the Guarantor, to make
the Securities of Series No. 1 valid obligations of the Company,
and to make the Guarantees valid obligations of the Guarantor,
have been performed.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE NO. 1
WITNESSETH:
For and in consideration of the premises and of the
purchase of the Securities by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of
all Holders of the Securities of Series No. 1, as follows:
ARTICLE ONE
FIRST SERIES OF SECURITIES
SECTION 1. There is hereby created a series of
Securities designated "Medium-Term Notes, Series A" and limited
in aggregate principal amount (except as contemplated in Section
301(b) of the Original Indenture) to $400,000,000. The forms and
terms of the Securities of Series No. 1 shall be established in
an Officer's Certificate of the Company, as contemplated by
Section 301 of the Original Indenture.
SECTION 2. The Company hereby agrees that, if the
Company shall make any deposit of money and/or Eligible
Obligations with respect to any Securities of Series No. 1, or
any portion of the principal amount thereof, as contemplated by
Section 701 of the Indenture, the Company shall not deliver an
Officer's Certificate described in clause (z) in the first
paragraph of said Section 701 unless the Company shall also
deliver to the Trustee, together with such Officer's Certificate,
either:
(A) an instrument wherein the Company, notwithstanding
the satisfaction and discharge of its indebtedness in
respect of such Securities, shall assume the obligation
(which shall be absolute and unconditional) to irrevocably
deposit with the Trustee or Paying Agent such additional
sums of money, if any, or additional Eligible Obligations
(meeting the requirements of Section 701), if any, or any
combination thereof, at such time or times, as shall be
necessary, together with the money and/or Eligible
Obligations theretofore so deposited, to pay when due the
principal of and premium, if any, and interest due and to
become due on such Securities or portions thereof, all in
accordance with and subject to the provisions of said
Section 701; provided, however, that such instrument may
state that the obligation of the Company to make additional
deposits as aforesaid shall be subject to the delivery to
the Company by the Trustee of a notice asserting the
deficiency accompanied by an opinion of an independent
public accountant of nationally recognized standing,
selected by the Trustee, showing the calculation thereof
(which opinion shall be obtained at the expense of the
Company); or
(B) an Opinion of Counsel to the effect that the
Holders of such Securities, or portions of the principal
amount 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 same amounts, at the same times and in the
same manner as if such satisfaction and discharge had not
been effected.
ARTICLE TWO
FORM OF GUARANTEE
Guarantees to be endorsed on the Securities of Series
No. 1 shall be in substantially the form set forth below:
[FORM OF GUARANTEE]
PP&L Resources, Inc., a corporation organized
under the laws of the Commonwealth of Pennsylvania (the
"Guarantor", which term includes any successor under
the Indenture (the "Indenture") referred to in the
Security upon which this Guarantee is endorsed), for
value received, hereby unconditionally guarantees to
the Holder of the Security upon which this Guarantee is
endorsed, the due and punctual payment of the principal
of, and premium, if any, and interest, if any, on such
Security when and as the same shall become due and
payable, whether at the Stated Maturity, by declaration
of acceleration, call for redemption, or otherwise, in
accordance with the terms of such Security and of the
Indenture. In case of the failure of PP&L Capital
Funding, Inc., a corporation organized under the laws
of the State of Delaware (the "Company", which term
includes any successor under the Indenture), punctually
to make any such payment, the Guarantor hereby agrees
to cause such payment to be made punctually when and as
the same shall become due and payable, whether at the
Stated Maturity or by declaration of acceleration, call
for redemption or otherwise, and as if such payment
were made by the Company.
The Guarantor hereby agrees that its
obligations hereunder shall be absolute and
unconditional irrespective of, and shall be unaffected
by, any invalidity, irregularity or unenforceability of
such Security or the Indenture, any failure to enforce
the provisions of such Security or the Indenture, or
any waiver, modification or indulgence granted to the
Company with respect thereto, by the Holder of such
Security or the Trustee or any other circumstance which
may otherwise constitute a legal or equitable discharge
or defense of a surety or guarantor; provided, however,
that notwithstanding the foregoing, no such waiver,
modification or indulgence shall, without the consent
of the Guarantor, increase the principal amount of such
Security, or increase the interest rate thereon, or
change any redemption provisions thereof (including any
change to increase any premium payable upon redemption
thereof) or change the Stated Maturity thereof.
The Guarantor hereby waives the benefits of
diligence, presentment, demand for payment, any
requirement that the Trustee or the Holder of such
Security exhaust any right or take any action against
the Company or any other Person, filing of claims with
a court in the event of insolvency or bankruptcy of the
Company, any right to require a proceeding first
against the Company, protest or notice with respect to
such Security or the indebtedness evidenced thereby and
all demands whatsoever, and covenants that this
Guarantee will not be discharged in respect of such
Security except by complete performance of the
obligations contained in such Security and in this
Guarantee. This Guarantee shall constitute a guaranty
of payment and not of collection. The Guarantor hereby
agrees that, in the event of a default in payment of
principal, or premium, if any, or interest, if any, on
such Security, whether at its Stated Maturity, by
declaration of acceleration, call for redemption, or
otherwise, legal proceedings may be instituted by the
Trustee on behalf of, or by, the Holder of such
Security, subject to the terms and conditions set forth
in the Indenture, directly against the Guarantor to
enforce this Guarantee without first proceeding against
the Company.
The obligations of the Guarantor hereunder
with respect to such Security shall be continuing and
irrevocable until the date upon which the entire
principal of, premium, if any, and interest on such
Security has been, or has been deemed pursuant to the
provisions of Article Seven of the Indenture to have
been, paid in full or otherwise discharged.
The Guarantor shall be subrogated to all
rights of the Holder of such Security upon which this
Guarantee is endorsed against the Company in respect of
any amounts paid by the Guarantor on account of such
Security pursuant to the provisions of this Guarantee
or the Indenture; provided, however, that the Guarantor
shall not be entitled to enforce or to receive any
payments arising out of, or based upon, such right of
subrogation until the principal of, and premium, if
any, and interest, if any, on all Securities issued
under the Indenture shall have been paid in full.
This Guarantee shall remain in full force and
effect and continue notwithstanding any petition filed
by or against the Company for liquidation or
reorganization, the Company becoming insolvent or
making an assignment for the benefit of creditors or a
receiver or trustee being appointed for all or any
significant part of the Company's assets, and shall, to
the fullest extent permitted by law, continue to be
effective or reinstated, as the case may be, if at any
time payment of the Security upon which this Guarantee
is endorsed, is, pursuant to applicable law, rescinded
or reduced in amount, or must otherwise be restored or
returned by the Holder of such Security, whether as a
"voidable preference," "fraudulent transfer," or
otherwise, all as though such payment or performance
had not been made. In the event that any payment, or
any part thereof, is rescinded, reduced, restored or
returned on such Security, such Security shall, to the
fullest extent permitted by law, be reinstated and
deemed paid only by such amount paid and not so
rescinded, reduced, restored or returned.
This Guarantee shall not be valid or
obligatory for any purpose until the certificate of
authentication of the Security upon which this
Guarantee is endorsed shall have been manually executed
by or on behalf of the Trustee under the Indenture.
All terms used in this Guarantee which are
defined in the Indenture shall have the meanings
assigned to them in such Indenture.
This Guarantee shall be deemed to be a
contract made under the laws of the State of New York,
and for all purposes shall be governed by and construed
in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the Guarantor has caused
this Guarantee to be executed as of the date first
written above.
PP&L RESOURCES, INC.
By:___________________________
[END OF FORM]
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 1. This Supplemental Indenture No. 1 is a
supplement to the Original Indenture. As supplemented by this
Supplemental Indenture No. 1, the Indenture is in all respects
ratified, approved and confirmed, and the Original Indenture and
this Supplemental Indenture No. 1 shall together constitute one
and the same instrument.
SECTION 2. The recitals contained in this Supplemental
Indenture No. 1 shall be taken as the statements of the Company
and the Guarantor, and the Trustee assumes no responsibility for
their correctness and makes no representations as to the validity
or sufficiency of this Supplemental Indenture No. 1.
SECTION 3. 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.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture No. 1 to be duly executed, and their
respective corporate seals to be hereunto affixed and attested,
all as of the day and year first written above.
PP&L CAPITAL FUNDING, INC.
By:___________________________
[SEAL]
ATTEST:
_________________________
PP&L RESOURCES, INC.
By:___________________________
[SEAL]
ATTEST:
_________________________
THE CHASE MANHATTAN BANK,
as Trustee
By:___________________________
[SEAL]
ATTEST:
_________________________
Exhibit 4.3
OFFICERS' CERTIFICATE
(UNDER SECTION 301 OF THE INDENTURE OF
PP&L CAPITAL FUNDING, INC. AND PP&L RESOURCES, INC.)
The undersigned _______________, ________________ of
PP&L CAPITAL FUNDING, INC. (the "Company"), in accordance with
Section 301 of the Indenture, dated as of October 1, 1997, as
heretofore supplemented (the "Indenture", capitalized terms used
herein and not defined herein having the meanings specified in
the Indenture), of the Company and PP&L RESOURCES, INC. (the
"Guarantor"), to The Chase Manhattan Bank, as Trustee (the
"Trustee"), does hereby establish for the series of Securities
established in Supplemental Indenture No. 1, dated as of _______,
1997 (the "Supplemental Indenture"), the following terms and
characteristics (the lettered clauses set forth below
corresponding to the lettered clauses of Section 301 of the
Indenture), and the undersigned _______________, ________________
of the Guarantor, does hereby approve of such terms and
characteristics on behalf of the Guarantor:
(a) the title of the Securities of such series shall be
"Medium-Term Notes, Series A" (the "Notes");
(b) the aggregate principal amount of Notes which may
be authenticated and delivered under the Indenture
shall be limited to $400,000,000, except as
contemplated in Section 301(b) of the Indenture;
(c) interest on the Notes shall be payable to the
Person or Persons in whose names the Notes are
registered at the close of business on the Regular
Record Date for such interest, except as otherwise
expressly provided in the forms, attached hereto and
hereby authorized and approved, of Fixed Rate Note (as
hereinafter defined) and Floating Rate Note (as
hereinafter defined);
(d) the date or dates on which the principal of the
Notes shall be payable shall be determined at the time
of sale of the Notes, or any Tranche thereof, by the
proper officers of the Company pursuant to the
Administrative Procedures (the "Administrative
Procedures") attached as Schedule C to the Distribution
Agreement dated ____________, 1997 among the Company,
the Guarantor, Merrill Lynch, Pierce Fenner & Smith
Incorporated and __________________; provided, however,
that in no event shall any Note have a term less than
nine months or more than 40 years;
(e) the Notes, or any Tranche thereof, may bear
interest at a fixed rate (any such Note being
hereinafter called a "Fixed Rate Note") or at a
floating rate (any such Note being hereinafter called a
"Floating Rate note"), in each case as determined by
the proper officers of the Company as follows (it being
understood that rates may vary among individual Notes,
but that, unless and until Board Resolutions of the
Guarantor [and the Company] shall otherwise provide,
the interest rate on any Fixed Rate Note shall not
exceed 9-1/2% per annum, and the Initial Interest Rate
on any Floating Rate Note shall not exceed 8% per
annum): there shall be determined by the proper
officers of the Company and communicated to the Trustee
by Company Order, or by the proper officers of the
Company pursuant to the Administrative Procedures, at
the time of sale of the Notes or any Tranche thereof,
(1) in the case of Fixed Rate Notes, the interest rate
or rates [(including the interest rate or rates on
overdue principal if different from the rate or rates
at which such Fixed Rate Notes shall bear interest
prior to Maturity, and, if applicable, the interest
rate or rates on overdue premium or interest, if any)],
and (2) in the case of Floating Rate Notes, whether
such Note is a Regular Floating Rate Note, an Inverse
Floating Rate Note, or a Floating Rate/Fixed Rate Note,
the Initial Interest Rate, the Interest Rate Basis
(which shall be the CMT Rate, the Commercial Paper
Rate, the Prime Rate, LIBOR, the Federal Funds Rate,
the Treasury Rate or any other Interest Rate Basis
determined at the time of sale of the Notes or Tranche
thereof), the Maximum Interest Rate, if any, the
Minimum Interest Rate, if any, the Interest Payment
Period, the Interest Reset Period, the Interest Reset
Dates, the [Interest Rate Determination Dates], the
Index Maturity, the Spread, if any, the Spread
Multiplier, if any, if such Note is a LIBOR Note, the
Designated LIBOR Page, any other terms relating to the
determination of the interest rates on the Floating
Rate Notes, and, if applicable, any Fixed Interest Rate
Commencement Date and Fixed Interest Rate (each of such
terms being referred to in the form of Floating Rate
Note attached hereto), [and the interest rate or rates
on overdue principal if different from the rate or
rates at which such Floating Rate Notes shall bear
interest prior to Maturity, and, if applicable, the
interest rate or rates on overdue premium or interest,
if any, applicable to such Floating Rate Notes or
Tranche thereof]; interest shall accrue on any Note
from the Original Issue Date specified in such Note or
the most recent Interest Payment Date to which interest
has been paid or duly provided for; the Interest
Payments Dates for the Fixed Rate Notes shall be ______
and ______, and the Regular Record Dates with respect
to such Interest Payment Dates shall be ______ and
_______, respectively (whether or not a Business Day);
the Interest Payment Dates on Floating Rate Notes shall
be determined at the time of sale of the Notes or
Tranche thereof by the proper officers of the Company
and communicated to the Trustee by Company Order, or
determined by the proper officers of the Company
pursuant to the Administrative Procedures, and the
Regular Record Date with respect to each such Interest
Payment Date shall be the date 15 calendar days
immediately preceding such Interest Payment Date
(whether or not a Business Day); and interest on
Floating Rate Notes which employ the CMT Rate or the
Treasury Rate as the Interest Rate Basis shall be
computed on the basis of the actual number of days in
the year;
(f) the Corporate Trust Office of the Trustee in New
York, New York shall be the office or agency of the
Company at which the principal of and premium, if any,
and interest, on the Notes shall be payable, at which
registration of transfer and exchange of Notes may be
effected and at which notices and demands to or upon
the Company or the Guarantor in respect of the Notes or
any Tranche thereof and the Indenture may be served;
provided, however, that the Company and the Guarantor
each reserve the right to change, by one or more
Officer's Certificates supplemental to this Officer's
Certificate, any such office or agency; and provided,
further, that the Company and the Guarantor each
reserve the right to designate, by one or more
Officer's Certificates supplemental to this Officer's
Certificate, its principal office in Allentown,
Pennsylvania or the office of the Guarantor or the
Guarantor's subsidiary, PP&L, Inc. in Allentown,
Pennsylvania, as any such office or agency; the Trustee
shall be the Security Registrar and Paying Agent for
the Notes; provided, that the Company and the Guarantor
reserve the right, by one or more Officer's
Certificates supplemental to this Officer's
Certificate, to designate any additional Security
Registrar or Paying Agent (which in each case, may be
the Company, the Guarantor or any Affiliate of either
of them) and to remove any Security Registrar or Paying
Agent;
(g) the Notes, or any Tranche thereof, shall be
redeemable, in whole or in part, at the option of the
Company as and to the extent so determined at the time
of sale of the Notes or any Tranche thereof by the
proper officers of the Company and communicated to the
Trustee by Company Order, or determined by the proper
officers of the Company pursuant to the Administrative
Procedures;
(h) the obligation, if any, of the Company to redeem
or purchase or repay the Notes 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 terms and conditions upon which, such Notes or
Tranche thereof shall be redeemed or purchased or
repaid, in whole or in part, pursuant to such
obligations shall be determined at the time of sale of
the Notes or any Tranche thereof, by the proper
officers of the Company and communicated to the Trustee
by Company Order, or determined by the proper officers
of the Company pursuant to the Administrative
Procedures; and no notice of redemption as contemplated
by Section 404 of the Indenture shall be required in
the case of any mandatory redemption or repayment at
the option of the Holder;
(i) the Notes shall be issued in denominations of
$[1,000] or any amount in excess thereof that is an
integral multiple of $1,000 or in such other
denominations as shall be determined at the time of
sale of the Notes or any Tranche thereof by the proper
officers of the Company and communicated to the Trustee
by Company Order, or determined by the proper officers
of the Company pursuant to the Administrative
Procedures;
(j) [not applicable];
(k) [not applicable];
(l) [not applicable];
(m) see clause (e) with respect to the interest rate
or rates on Floating Rate Notes;
(n) [not applicable]; provided, however, that the
Company reserves the right to provide by one or more
Officer's Certificates supplemental to this Officer's
Certificate for the issuance of Discount Securities and
the terms thereof as contemplated by Section 301(n) of
the Indenture;
(o) [not applicable]; provided, however, that the
Company reserves the right to make, by one or more
Officer's Certificates supplemental to this Officer's
Certificate, any additional covenants of the Company
for the benefit of the Holders of the Notes or any
Tranche thereof, or any additional Events of Default
with respect to all or any series of Securities
Outstanding;
(p) [not applicable];
(q) the only obligations or instruments which shall be
considered Eligible Obligations in respect of the Notes
shall be Government Obligations; and the provisions of
Section 701 of the Indenture and Section 2 of the
Supplemental Indenture shall apply to the Notes;
(r) the Notes, or any Tranche thereof, may be issued
in global form (the "Global Notes") and the depository
for the Global Notes shall initially be The Depository
Trust Company ("DTC"); provided, that the Company
reserves the right to provide for another depository,
registered as a clearing agency under the Exchange Act,
to act as depository for the Global Notes (DTC and any
such successor depository, the "Depository");
beneficial interests in Notes issued in global form may
not be exchanged in whole or in part for individual
certificated Notes in definitive form, and no transfer
of a Global Note in whole or in part may be registered
in the name of any Person other than the Depository or
its nominee except that (i) if Depository (A) has
notified the Company that it is unwilling or unable to
continue as depository for the Global Notes or (B) has
ceased to be a clearing agency registered under the
Exchange Act and, in either case, a successor
depository is not appointed by the Company within 90
days after such notice or cessation, or (ii) the
Company elects to discontinue use of the system of
book-entry transfers through the Depository and elects
not to appoint a successor depository for such Global
notes, the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and
delivery of definitive Notes, will authenticate and
deliver Notes in definitive certificated form in an
aggregate principal amount equal to the principal
amount of the Global Note representing such Notes in
exchange for such Global Note, such definitive Notes to
be registered with the names provided by the
Depository; each Global Note (i) shall represent and
shall be denominated in an amount equal to the
aggregate principal amount of the outstanding Notes or
Tranche thereof to be represented by such Global Note,
(ii) shall be registered in the name of the Depository
or its nominee, (iii) shall be delivered by the Trustee
to the Depository, its nominee, any custodian for the
Depository or otherwise pursuant to the Depository's
instruction and (iv) shall bear a legend restricting
the transfer of such Global Note to any person other
than the Depository or its nominee; neither the
Company, the Trustee nor any Authenticating Agent will
have any responsibility or liability for any aspect of
the records relating to, or payments made on account
of, beneficial ownership interests in a Global Note or
for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests;
(s) [not applicable];
(t) reference is made to clause (r) above; no service
charge shall be made for the registration of transfer
or exchange of Notes; provided, however, that the
Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in
connection with the exchange or transfer;
(u) in lieu of Section 113 of the Indenture, the
following provisions shall apply: in the case of any
Fixed Rate Note, if any Interest Payment Date,
Redemption Date or other Stated Maturity (as specified
in such Fixed Rate Note) shall not be a Business Day
(as defined in the form of Fixed Rate Note attached
hereto), payment of amounts due thereon on such date
may be made on the next succeeding Business Day (as
defined in the form of Fixed Rate Note attached
hereto), and, if such payment is made or duly provided
for on such next succeeding Business Day, no interest
shall accrue on such amounts for the period from and
after such Interest Payment Date, Redemption Date or
Stated Maturity, as the case may be, to such Business
Day; in the case of any Floating Rate Note, (a) if any
Interest Payment Date (as specified in such Floating
Rate Note), other than the Maturity, would otherwise be
a day that is not a Business Day (as defined in the
Form of Floating Rate Note attached hereto), such
Interest Payment Date will be postponed to the next
succeeding Business Day, except that if LIBOR is an
applicable Interest Rate Basis and such Business Day
falls in the next succeeding calendar month, such
Interest Payment Date will be the immediately preceding
Business Day, and (b) if the Maturity falls on a day
that is not a Business Day, payment of the amounts due
thereon on such date may be made on the next succeeding
Business Day as if made on the date such payment was
due and no interest shall accrue on such amount due for
the period from and after the Maturity to the date of
such payment on the next succeeding Business Day;
(v) the Notes shall be entitled to the benefits of
Article Fourteen of the Indenture and the Guarantees to
be endorsed on the Notes shall be substantially in the
form established in the Supplemental Indenture;
(w) the Notes shall be substantially in the forms of
Fixed Rate Note and Floating Rate Note attached hereto
and hereby authorized and approved and shall have such
further terms as are set forth in such forms.
<PAGE>
IN WITNESS WHEREOF, we have hereunto signed our names
this ___ day of _______, 1997.
__________________________________
Name:
Title:
__________________________________
Name:
Title:
<PAGE>
FORM OF FIXED RATE NOTE
(SEE LEGEND AT THE END OF THIS SECURITY FOR
RESTRICTIONS ON TRANSFER AND CHANGE OF FORM)
PP&L CAPITAL FUNDING, INC.
MEDIUM-TERM NOTE, SERIES A
Unconditionally Guaranteed as to Payment of Principal,
Premium, if any, and Interest by
PP&L RESOURCES, INC.
Redeemable: Yes No
-- --
Original Issue Date: Initial Redemption Date:
Stated Maturity: Initial Redemption Price:
Interest Rate: Annual Redemption
Interest Payment Dates: Percentage Reduction: %
Issue Price (%): --
Regular Record Dates:
This Security is not a Discount Security
within the meaning of the within-mentioned Indenture
-----------------------
Principal Amount No.
$ CUSIP
PP&L CAPITAL FUNDING, INC., a corporation duly organized and
existing under the laws of the State of Delaware (herein called
the "Company," which term includes any successor under the
Indenture referred to below), for value received, hereby promises
to pay to
, or registered
assigns, the principal sum of
DOLLARS
on the Stated Maturity specified above, and to pay interest
thereon from the Original Issue Date specified above or from the
most recent Interest Payment Date to which interest has been paid
or duly provided for, semi-annually in arrears on the Interest
Payment Dates specified above in each year, commencing with the
Interest Payment Date next succeeding the Original Issue Date
specified above, and at Maturity, at the Interest Rate per annum
specified above, until the principal hereof is paid or duly
provided for. The interest so payable, and paid or duly provided
for, on any Interest Payment Date shall, as provided in such
Indenture, be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date specified above (whether or
not a Business Day) next preceding such Interest Payment Date;
provided, that if the Original Issue Date of this Security is
after a Regular Record Date and before the corresponding Interest
Payment Date, interest so payable for the period from and
including the Original Issue Date to but excluding such Interest
Payment Date shall be paid on the next succeeding Interest
Payment Date to the Holder hereof on the related Regular Record
Date; and provided, further, that interest payable at Maturity
shall be paid to the Person to whom principal shall be paid.
Except as otherwise provided in said Indenture, any such interest
not so paid or duly provided for shall 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 Security (or one or more
Predecessor Securities) 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 of which shall be given to
Holders of Securities 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 Securities 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, on this
Security and interest hereon at Maturity shall be made upon
presentation of this Security at the corporate trust office of
The Chase Manhattan Bank in New York, New York or at such other
office or agency as may be designated for such purpose by the
Company from time to time. Payment of interest, if any, on this
Security (other than interest at Maturity) shall be made by check
mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register, except that if
such Person shall be a securities depositary [or any other Holder
of $10,000,000 or more in aggregate principal amount of the
Securities of this series], such payment may be made by such
other means in lieu of check as shall be agreed upon by the
Company, the Trustee or other Paying Agent and such Person.
Payment of the principal of and premium, if any, and interest, if
any, on this Security, as aforesaid, shall be made in such coin
or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and
private debts.
This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities"),
issued and issuable in one or more series under an Indenture,
dated as of October 1, 1997 (such Indenture as originally
executed and delivered and as supplemented or amended from time
to time thereafter, together with any constituent instruments
establishing the terms of particular Securities, being herein
called the "Indenture"), among the Company, PP&L Resources, Inc.,
as Guarantor (herein called the "Guarantor," which term includes
any successor under the Indenture) and The Chase Manhattan Bank,
as Trustee (herein called the "Trustee," which term includes any
successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for
a description of the respective rights, limitations of rights,
duties and immunities of the Company, the Guarantor, the Trustee
and the Holders of the Securities thereunder and of the terms and
conditions upon which the Securities are, and are to be,
authenticated and delivered. The acceptance of this Security
shall be deemed to constitute the consent and agreement by the
Holder hereof to all of the terms and provisions of the
Indenture. This Security is one of the series designated above.
If any Interest Payment Date, any Redemption Date or the
Stated Maturity shall not be a Business Day (as hereinafter
defined), payment of the amounts due on this Security on such
date may be made on the next succeeding Business Day, and, if
such payment is made or duly provided for on such next succeeding
Business Day, no interest shall accrue on such amounts for the
period from and after such Interest Payment Date, Redemption Date
or Stated Maturity, as the case may be, to such Business Day.
If, as specified above, this Security is redeemable, this
Security is subject to redemption at any time on or after the
Initial Redemption Date specified above, in whole or in part [in
increments of $1,000], at the election of the Company, at the
applicable redemption price (as described below) plus accrued
interest to the date fixed for redemption. Such redemption price
shall be the Initial Redemption Price specified above for the
twelve-month period commencing on the Initial Redemption Date and
shall decline for the twelve-month period commencing on each
anniversary of the Initial Redemption Date by a percentage of
principal amount equal to the Annual Redemption Percentage
Reduction specified above until such redemption price is 100% of
the principal amount of this Security to be redeemed.
[Insert provisions, if any, for redemption pursuant to a
sinking fund or other mandatory redemption provisions or
provisions for repayment at the election of the Holder.]
Notice of redemption [(other than at the election of the
Holder)] shall be given by mail to Holders of Securities, not
less than 30 days nor more than 60 days prior to the date fixed
for redemption, all as provided in the Indenture. As provided in
the Indenture, notice of redemption at the election of the
Company as aforesaid may state that such redemption shall be
conditional upon the receipt by the Trustee of money sufficient
to pay the principal of and premium, if any, and interest, if
any, on this Security on or prior to the date fixed for such
redemption; a notice of redemption so conditioned shall be of no
force or effect if such money is not so received and, in such
event, the Company shall not be required to redeem this Security.
In the event of redemption of this Security in part only, a
new Security or Securities of this series, of like tenor,
representing the unredeemed portion hereof shall be issued in the
name of the Holder hereof upon the cancellation hereof.
If an Event of Default with respect to the Securities of
this series shall occur and be continuing, the principal of this
Security may be declared due and payable in the manner and with
the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the Trustee to enter into one or more supplemental
indentures for the purpose of adding any provisions to, or
changing in any manner or eliminating any of the provisions of,
the Indenture with the consent of the Holders of not less than a
majority in aggregate principal amount of the Securities of all
series then Outstanding under the Indenture, considered as one
class; provided, however, that if there shall be Securities of
more than one series Outstanding under the Indenture and if a
proposed supplemental indenture shall directly affect the rights
of the Holders of Securities of one or more, but less than all,
of such series, then the consent only of the Holders of a
majority in aggregate principal amount of the Outstanding
Securities of all series so directly affected, considered as one
class, shall be required; and provided, further, that if the
Securities of any series shall have been issued in more than one
Tranche and if the proposed supplemental indenture shall directly
affect the rights of the Holders of Securities of one or more,
but less than all, of such Tranches, then the consent only of the
Holders of a majority in aggregate principal amount of the
Outstanding Securities of all Tranches so directly affected,
considered as one class, shall be required; and provided,
further, that the Indenture permits the Trustee to enter into one
or more supplemental indentures for limited purposes without the
consent of any Holders of Securities. The Indenture also
contains provisions permitting the Holders of a majority in
principal amount of the Securities then Outstanding, on behalf of
the Holders of all Securities, to waive compliance by the Company
with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange therefor or in
lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
No reference herein to the Indenture and no provision of
this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and premium, if any, and interest, if
any, on this Security at the times, place and rate, in the coin
or currency, and in the manner, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, this Security or any portion of
the principal amount hereof will be deemed to have been paid for
all purposes of the Indenture and to be no longer Outstanding
thereunder, and, at the election of the Company, the Company's
entire indebtedness in respect thereof will be satisfied and
discharged, if there has been irrevocably deposited with the
Trustee or any Paying Agent (other than the Company), in trust,
money in an amount which will be sufficient and/or Eligible
Obligations, the principal of and interest on which when due,
without any regard to reinvestment thereof, will provide moneys
which, together with moneys so deposited, will be sufficient to
pay when due the principal of and premium, if any, and interest,
if any, on this Security when due.
The Indenture contains terms, provisions and conditions
relating to the consolidation or merger of the Company or the
Guarantor with or into, and the conveyance or other transfer, or
lease, of assets to, another Person, to the assumption by such
other Person, in certain circumstances, of all of the obligations
of the Company or the Guarantor under the Indenture and on the
Securities (or the Guarantees endorsed thereon, as the case may
be) and to the release and discharge of the Company or the
Guarantor, as the case may be, in certain circumstances, from
such obligations.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is
registrable in the Security Register, upon surrender of this
Security for registration of transfer at the office of The Chase
Manhattan Bank in New York, New York or such other office or
agency as may be designated by the Company from time to time,
duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new
Securities of this series of authorized denominations and of like
tenor and aggregate principal amount, will be issued to the
designated transferee or transferees.
The Securities of this series are issuable only as
registered Securities, without coupons, and in denominations of
$[1,000 and integral multiples thereof]. As provided in the
Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate
principal amount of Securities of the same series and Tranche, of
any authorized denominations, as requested by the Holder
surrendering the same, and of like tenor upon surrender of the
Security or Securities to be exchanged at the office of The Chase
Manhattan Bank in New York, New York or such other office or
agency as may be designated by the Company from time to time.
The Company shall not be required to execute and the
Security Registrar shall not be required to register the transfer
of or exchange of (a) Securities of this series during a period
of 15 days immediately preceding the date notice is given
identifying the serial numbers of the Securities of this series
called for redemption or (b) any Security so selected for
redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration
of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name this
Security is registered as the absolute owner hereof for all
purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
The Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York.
As used herein, "Business Day" means any day, other than a
Saturday or Sunday, which is not a day on which banking
institutions or trust companies in the City of New York, New York
or other city in which is located any office or agency maintained
for the payment of principal, premium, if any, or interest on
this Security, are authorized or required by law, regulation or
executive order to remain closed. All other terms used in this
Security which are defined in the Indenture shall have the
meanings assigned to them in the Indenture.
As provided in the Indenture, no recourse shall be had for
the payment of the principal of or premium, if any, or interest
on any Securities, any Guarantees or any part thereof, or for any
claim based thereon or otherwise in respect thereof, or of the
indebtedness represented thereby, or upon any obligation,
covenant or agreement under the Indenture, against, and no
personal liability whatsoever shall attach to, or be incurred by,
any incorporator, stockholder, officer or director, as such,
past, present or future of the Company or the Guarantor or of any
predecessor or successor of either of them (either directly or
through the Company or the Guarantor, as the case may be, or a
predecessor or successor of either of them), whether by virtue of
any constitutional provision, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being
expressly agreed and understood that the Indenture and this
Security and the Guarantee endorsed hereon are solely corporate
obligations and that any such personal liability is hereby
expressly waived and released as a condition of, and as part of
the consideration for, the execution of the Indenture and the
issuance of this Security and such Guarantee.
Unless the certificate of authentication hereon has been
executed by the Trustee or an Authenticating Agent by manual
signature, this Security shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument
to be duly executed under its corporate seal.
PP&L CAPITAL FUNDING, INC.
[SEAL] By:
-------------------------------
Title
Attested:
By:
------------------------
[Title]
GUARANTEE
PP&L Resources, Inc., a corporation organized
under the laws of the Commonwealth of Pennsylvania (the
"Guarantor", which term includes any successor under
the Indenture (the "Indenture"), referred to in the
Security upon which this Guarantee is endorsed), for
value received, hereby unconditionally guarantees to
the Holder of the Security upon which this Guarantee is
endorsed, the due and punctual payment of the principal
of, and premium, if any, and interest on such Security
when and as the same shall become due and payable,
whether at the Stated Maturity, by declaration of
acceleration, call for redemption, or otherwise, in
accordance with the terms of such Security and of the
Indenture. In case of the failure of PP&L Capital
Funding, Inc., a corporation organized under the laws
of the State of Delaware (the "Company", which term
includes any successor under the Indenture), punctually
to make any such payment, the Guarantor hereby agrees
to cause such payment to be made punctually when and as
the same shall become due and payable, whether at the
Stated Maturity or by declaration of acceleration, call
for redemption or otherwise, and as if such payment
were made by the Company.
The Guarantor hereby agrees that its
obligations hereunder shall be absolute and
unconditional irrespective of, and shall be unaffected
by, any invalidity, irregularity or unenforceability of
such Security or the Indenture, any failure to enforce
the provisions of such Security or the Indenture, or
any waiver, modification or indulgence granted to the
Company with respect thereto, by the Holder of such
Security or the Trustee or any other circumstance which
may otherwise constitute a legal or equitable discharge
or defense of a surety or guarantor; provided, however,
that notwithstanding the foregoing, no such waiver,
modification or indulgence shall, without the consent
of the Guarantor, increase the principal amount of such
Security, or increase the interest rate thereon, or
change any redemption provisions thereof (including any
change to increase any premium payable upon redemption
thereof) or change the Stated Maturity thereof.
The Guarantor hereby waives the benefits of
diligence, presentment, demand for payment, any
requirement that the Trustee or the Holder of such
Security exhaust any right or take any action against
the Company or any other Person, filing of claims with
a court in the event of insolvency or bankruptcy of the
Company, any right to require a proceeding first
against the Company, protest or notice with respect to
such Security or the indebtedness evidenced thereby and
all demands whatsoever, and covenants that this
Guarantee will not be discharged in respect of such
Security except by complete performance of the
obligations contained in such Security and in this
Guarantee. This Guarantee shall constitute a guaranty
of payment and not of collection. The Guarantor hereby
agrees that, in the event of a default in payment of
principal, or premium, if any, or interest, if any, on
such Security, whether at its Stated Maturity, by
declaration of acceleration, call for redemption, or
otherwise, legal proceedings may be instituted by the
Trustee on behalf of, or by, the Holder of such
Security, subject to the terms and conditions set forth
in the Indenture, directly against the Guarantor to
enforce this Guarantee without first proceeding against
the Company.
The obligations of the Guarantor hereunder
with respect to such Security shall be continuing and
irrevocable until the date upon which the entire
principal of, premium, if any, and interest on such
Security has been, or has been deemed pursuant to the
provisions of Article Seven of the Indenture to have
been, paid in full or otherwise discharged.
The Guarantor shall be subrogated to all
rights of the Holder of such Security upon which this
Guarantee is endorsed against the Company in respect of
any amounts paid by the Guarantor on account of such
Security pursuant to the provisions of this Guarantee
or the Indenture; provided, however, that the Guarantor
shall not be entitled to enforce or to receive any
payments arising out of, or based upon, such right of
subrogation until the principal of, and premium, if
any, and interest, if any, on all Securities issued
under the Indenture shall have been paid in full.
This Guarantee shall remain in full force and
effect and continue notwithstanding any petition filed
by or against the Company for liquidation or
reorganization, the Company becoming insolvent or
making an assignment for the benefit of creditors or a
receiver or trustee being appointed for all or any
significant part of the Company's assets, and shall, to
the fullest extent permitted by law, continue to be
effective or reinstated, as the case may be, if at any
time payment of the Security upon which this Guarantee
is endorsed, is, pursuant to applicable law, rescinded
or reduced in amount, or must otherwise be restored or
returned by the Holder of such Security, whether as a
"voidable preference," "fraudulent transfer," or
otherwise, all as though such payment or performance
had not been made. In the event that any payment, or
any part thereof, is rescinded, reduced, restored or
returned on such Security, such Security shall, to the
fullest extent permitted by law, be reinstated and
deemed paid only by such amount paid and not so
rescinded, reduced, restored or returned.
This Guarantee shall not be valid or
obligatory for any purpose until the certificate of
authentication of the Security upon which this
Guarantee is endorsed shall have been manually executed
by or on behalf of the Trustee under the Indenture.
All terms used in this Guarantee which are
defined in such Indenture shall have the meanings
assigned to them in such Indenture.
This Guarantee shall be deemed to be a
contract made under the laws of the State of New York,
and for all purposes shall be governed by and construed
in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the Guarantor has caused
this Guarantee to be executed as of the date first
written above.
PP&L RESOURCES, INC.
By:
---------------------------
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
Dated: THE CHASE MANHATTAN BANK
------------------ AS TRUSTEE
By:
--------------------
Authorized Officer
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (THE "DEPOSITARY")
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE TO BE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND
ANY AMOUNT PAYABLE THEREUNDER IS MADE PAYABLE TO CEDE & CO. OR
SUCH OTHER NAME), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL THIS SECURITY IS EXCHANGED IN WHOLE OR IN PART
FOR CERTIFICATED SECURITIES REGISTERED IN THE NAMES OF THE
VARIOUS BENEFICIAL HOLDERS HEREOF AS THEN CERTIFIED TO THE
COMPANY AND THE TRUSTEE BY THE DEPOSITARY OR A SUCCESSOR
DEPOSITARY, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO ITS NOMINEE OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY
OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. THIS
SECURITY MAY BE EXCHANGED FOR CERTIFICATED SECURITIES REGISTERED
IN THE NAMES OF THE VARIOUS BENEFICIAL OWNERS HEREOF ONLY IF (A)
THE DEPOSITARY (I) HAS NOTIFIED THE COMPANY THAT IT IS UNWILLING
OR UNABLE TO CONTINUE AS DEPOSITARY OR (II) HAS CEASED TO BE A
CLEARING AGENCY REGISTERED UNDER THE EXCHANGE ACT, AND, IN EITHER
CASE, A SUCCESSOR DEPOSITARY IS NOT APPOINTED BY THE COMPANY
WITHIN 90 DAYS, OR (B) THE COMPANY ELECTS TO ISSUE CERTIFICATED
SECURITIES TO BENEFICIAL OWNERS (AS CERTIFIED TO THE COMPANY AND
THE TRUSTEE BY THE DEPOSITARY OR A SUCCESSOR DEPOSITARY) OF ALL
SECURITIES OF THE SERIES DESIGNATED ABOVE.
------------------
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
-----------------------------------------------------------------
[please insert social security or other identifying number of
assignee]
-----------------------------------------------------------------
[please print or typewrite name and address of assignee]
-----------------------------------------------------------------
the within Security of PP&L CAPITAL FUNDING, INC. and does hereby
irrevocably constitute and appoint
------------------------------
, Attorney, to transfer said Security on the books of
----------
the within-mentioned Company, with full power of substitution in
the premises.
Dated:
-------------
----------------------------------------
Notice: The signature to this assignment must correspond with
the name as written upon the face of the Security in every
particular without alteration or enlargement or any change
whatsoever.
<PAGE>
FORM OF FLOATING RATE NOTE
(SEE LEGEND AT THE END OF THIS SECURITY FOR
RESTRICTIONS ON TRANSFER AND CHANGE OF FORM)
PP&L CAPITAL FUNDING, INC.
MEDIUM-TERM NOTE, SERIES A
Unconditionally Guaranteed as to Payment of Principal,
Premium, if any, and Interest by
PP&L RESOURCES, INC.
Original Issue Date:
Stated Maturity:
Issue Price (%): Interest Payment Period:
Designation: Interest Payment Dates:
-- Regular Floating Rate Note: Regular Record Dates:
-- Floating Rate/Fixed Rate Note: Initial Interest Reset Date:
Fixed Rate Commencement Date: Interest Reset Dates:
Fixed Interest Rate: Interest Reset Period:
-- Inverse Floating Rate Note: Index Maturity:
Fixed Interest Rate: Spread (expressed in
Initial Interest Rate: basis points): [+/-]
Interest Rate Basis: -----
Spread Multiplier:
-- CMT Rate: Initial Redemption Date:
Designated CMT Maturity Index: Initial Redemption Price:
Designated CMT Telerate Page: Annual Redemption Percentage
-- Commercial Paper Rate: Reduction:
-- Federal Funds Rate: Calculation Agent:
-- LIBOR:
Designated LIBOR Page: LIBOR Reuters __ LIBOR Telerate __
-- Prime Rate:
-- Treasury Rate:
Maximum Interest Rate:
Minimum Interest Rate:
Other/Additional Provisions:
This Security is not a Discount Security
within the meaning of the within-mentioned Indenture
----------------------------------------
Principal Amount No.
$ CUSIP
PP&L CAPITAL FUNDING, INC., a corporation duly organized and
existing under the laws of the State of Delaware (herein called
the "Company," which term includes any successor corporation
under the Indenture referred to below), for value received,
hereby promises to pay to
, or registered assigns,
the principal sum of
DOLLARS
on the Stated Maturity specified above, and to pay interest
thereon from the Original Issue Date specified above or from the
most recent Interest Payment Date to which interest has been paid
or duly provided for, monthly, quarterly, semi-annually or
annually, as specified above for the Interest Payment Period, in
arrears on the Interest Payment Dates specified above in each
year, commencing with the Interest Payment Date next succeeding
the Original Issue Date specified above, and at Maturity, until
the principal hereof is paid or duly provided for. [Except as
otherwise provided herein,] the rate of interest to be so paid
shall be the Initial Interest Rate specified above until the
Initial Interest Reset Date specified above and thereafter at a
rate determined, in accordance with the provisions for
determination of interest rates below, by reference to the
Interest Rate Basis or Bases specified above, plus or minus the
Spread, if any, specified above and/or multiplied by the Spread
Multiplier, if any, specified above. The interest so payable,
and paid or duly provided for, on any Interest Payment Date
shall, as provided in such Indenture, be paid to the Person in
whose name this Security (or one or more Predecessor Securities)
is registered at the close of business on the Regular Record Date
specified above (whether or not a Business Day) next preceding
such Interest Payment Date. Notwithstanding the foregoing, (a)
if the Original Issue Date of this Security is after a Regular
Record Date and before the corresponding Interest Payment Date,
interest so payable for the period from and including the
Original Issue Date to but excluding such Interest Payment Date
shall be paid on the next succeeding Interest Payment Date to the
Holder hereof on the related Regular Record Date, and (b)
interest payable at Maturity shall be paid to the Person to whom
principal shall be paid. Except as otherwise provided in said
Indenture, any such interest not so paid or duly provided for
shall 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 Security (or one or more Predecessor Securities) 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 of which shall be given to Holders of Securities
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 Securities 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, on this
Security and interest hereon at Maturity shall be made upon
presentation of this Security at the corporate trust office of
The Chase Manhattan Bank in New York, New York or at such other
office or agency as may be designated for such purpose by the
Company from time to time. Payment of interest, if any, on this
Security (other than interest at Maturity) shall be made by check
mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register, except that if
such Person shall be a securities depositary [or any other Holder
of $10,000,000 or more in aggregate principal amount of the
Securities of the series], such payment may be made by such other
means in lieu of check as shall be agreed upon by the Company,
the Trustee or other Paying Agent and such Person. Payment of
the principal of and premium, if any, and interest, if any, on
this Security, as aforesaid, shall be made in such coin or
currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and
private debts.
This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities"),
issued and issuable in one or more series under an Indenture,
dated as of October 1, 1997 (such Indenture as originally
executed and delivered and as supplemented or amended from time
to time thereafter, together with any constituent instruments
establishing the terms of particular Securities, being herein
called the "Indenture"), among the Company, PP&L Resources, Inc.,
as Guarantor (herein called the Guarantor," which term includes
any successor under the Indenture) and The Chase Manhattan Bank,
as Trustee (herein called the "Trustee," which term includes any
successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for
a description of the respective rights, limitations of rights,
duties and immunities of the Company, the Guarantor, the Trustee
and the Holders of the Securities thereunder and of the terms and
conditions upon which the Securities are, and are to be,
authenticated and delivered. The acceptance of this Security
shall be deemed to constitute the consent and agreement by the
Holder hereof to all of the terms and provisions of the
Indenture. This Security is one of the series designated above.
The interest rate applicable to this Security will be
determined as follows:
If this Security is designated as a "Regular
Floating Rate Note," then [except as described below,]
this Security will bear interest at the rate determined
by reference to the applicable Interest Rate Basis or
Bases specified above (a) plus or minus the applicable
Spread, if any, specified above and/or (b) multiplied
by the applicable Spread Multiplier, if any, specified
above. Commencing on the Initial Interest Reset Date,
the rate at which interest on such Regular Floating
Rate Note shall be payable shall be reset as of each
Interest Reset Date; provided, however, that the
interest rate in effect for the period, if any, from
the Original Issue Date specified above to the Initial
Interest Reset Date will be the Initial Interest Rate.
If this Security is designated as a "Floating
Rate/Fixed Rate Note," then, [except as described
below,] this Security will bear interest at the rate
determined by reference to the applicable Interest Rate
Basis or Bases (a) plus or minus the applicable Spread,
if any, specified above and/or (b) multiplied by the
applicable Spread Multiplier, if any, specified above.
Commencing on the Initial Interest Reset Date, the rate
at which interest on such Floating Rate/Fixed Rate Note
shall be payable shall be reset as of each Interest
Reset Date; provided, however, that (y) the interest
rate in effect for the period, if any, from the
Original Issue Date specified above to the Initial
Interest Reset Date will be the Initial Interest Rate
and (z) the interest rate in effect for the period
commencing on the Fixed Rate Commencement Date to
Maturity shall be the Fixed Interest Rate, if any,
specified above or, if no such Fixed Interest Rate is
specified, the interest rate in effect thereon on the
day immediately preceding the Fixed Rate Commencement
Date.
If this Security is designated as an "Inverse
Floating Rate Note," then, [except as described below,]
this Security will bear interest at the Fixed Interest
Rate specified above minus the rate determined by
reference to the applicable Interest Rate Basis or
Bases (a) plus or minus the applicable Spread, if any,
specified above and/or (b) multiplied by the applicable
Spread Multiplier, if any, specified above; provided,
however, that, the interest rate thereon will not be
less than zero. Commencing on the Initial Interest
Reset Date, the rate at which interest on such Inverse
Floating Rate Note shall be payable shall be reset as
of each Interest Reset Date; provided, however, that
the interest rate in effect for the period, if any,
from the Original Issue Date specified above to the
Initial Interest Reset Date shall be the Initial
Interest Rate.
Commencing with the Initial Interest Reset Date specified
above and thereafter upon each succeeding Interest Reset Date
specified above, the rate at which interest on this Security is
payable shall be reset daily, weekly, monthly, quarterly, semi-
annually or annually as specified above as the "Interest Reset
Period." [Unless otherwise specified above,] the Interest Reset
Dates shall be: if the interest rate on this Security resets
daily, each Business Day; if the interest rate on this Security
(unless the Interest Rate Basis is the Treasury Rate) resets
weekly, Wednesday of each week; if the Interest Rate Basis
specified above is the Treasury Rate and resets weekly, Tuesday
of each week (except as provided below under "Determination of
Treasury Rate"); if the interest rate on this Security resets
monthly, the third Wednesday of each month; if the interest rate
on this Security resets quarterly, the third Wednesday of March,
June, September and December of each year; if the interest rate
on this Security resets semi-annually, the third Wednesday of the
two months of each year specified above; and if the interest rate
on this Security rests annually, the third Wednesday of the month
of each year specified above; provided, however, that, if this
-------- -------
Security is a Floating Rate/Fixed Rate Notes, the rate of
interest hereon will not reset after the applicable Fixed Rate
Commencement Date. If an Interest Reset Date for this Security
would otherwise be a day that is not a Business Day (as
hereinafter defined), such Interest Reset Date shall be postponed
to the next succeeding Business Day, except that, if the Interest
Rate Basis specified above is LIBOR and such Business Day is in
the next succeeding calendar month, such Interest Reset Date
shall be the immediately preceding Business Day.
The interest rate applicable to each Interest Reset Period
commencing on the related Interest Reset Date will be the rate
determined by the Calculation Agent (as defined below) as of the
applicable Interest Determination Date and calculated on or prior
to the Calculation Date (as hereinafter defined), except with
respect to LIBOR, which will be calculated on such Interest
Determination Date. The "Interest Determination Date" with
respect to the CMT Rate, the Commercial Paper Rate, the Federal
Funds Rate and the Prime Rate will be the second Business Day
immediately preceding the applicable Interest Reset Date; and the
"Interest Determination Date" with respect to LIBOR will be the
second London Business Day immediately preceding the applicable
Interest Reset Date. With respect to the Treasury Rate, the
"Interest Determination Date" will be the day in the week in
which the applicable Interest Reset Date falls on which day
Treasury Bills (as hereinafter defined) are normally auctioned
(Treasury Bills are normally sold at an auction held on Monday of
each week, unless that day is a legal holiday, in which case the
auction is normally held on the following Tuesday, except that
such auction may be held on the preceding Friday); provided,
however, that if an auction is held on the Friday of the week
preceding the applicable Interest Reset Date, the "Interest
Determination Date" will be such preceding Friday; provided,
further, that if the Interest Determination Date would otherwise
fall on an Interest Reset Date, then such Interest Reset Date
will be postponed to the next succeeding Business Day. If the
interest rate on this Security is determined by reference to two
or more Interest Rate Bases, the "Interest Determination Date"
will be the most recent Business Day which is at least two
Business Days prior to the applicable Interest Reset Date for
this Security on which each Interest Rate Basis is determinable.
Each Interest Rate Basis will be determined as of such date, and
the applicable interest rate will take effect on the applicable
Interest Reset Date.
Anything herein to the contrary notwithstanding, the
interest rate hereon shall not be greater than the Maximum
Interest Rate, if any, or less than the Minimum Interest Rate, if
any, specified above. In addition, the interest rate hereon
shall in no event be higher than the maximum rate permitted by
applicable law.
[Except as otherwise provided herein,] interest will be
payable, if the interest rate on this Security resets daily,
weekly or monthly, on the third Wednesday of each month or on the
third Wednesday of March, June, September and December of each
year, as specified above; if the interest rate on this Security
resets quarterly, on the third Wednesday of March, June,
September and December of each year; if the interest rate on this
Security resets semi-annually, on the third Wednesday of the two
months of each year specified above; and if the interest rate on
this Security resets annually, on the third Wednesday of the
month of each year specified above (each such day being an
"Interest Payment Date"), and, in each case, on Maturity.
If any Interest Payment Date, other than the Maturity, would
otherwise be a day that is not a Business Day, such Interest
Payment Date will be postponed to the next succeeding Business
Day, except that if LIBOR is an applicable Interest Rate Basis
and such Business Day falls in the next succeeding calendar
month, such Interest Payment Date will be the immediately
preceding Business Day. If the Maturity of this Security falls
on a day that is not a Business Day, the required payment of
principal, premium, if any, and interest will be made on the next
succeeding Business Day as if made on the date such payment was
due, and no interest will accrue on such payment for the period
from and after the Maturity to the date of such payment on the
next succeeding Business Day.
[Interest payments on this Security shall be in the amount
of interest accrued from and including the immediately preceding
Interest Payment Date in respect of which interest has been paid
or made available for payment (or from and including the Original
Issue Date if no interest has been paid or made available for
payment) to but excluding the applicable Interest Payment Date or
the Maturity, as the case may be.]
Accrued interest on this Security shall be calculated by
multiplying the principal amount of this Security by an accrued
interest factor. Such accrued interest factor shall be computed
by adding the interest factor calculated for each day in the
Interest Payment Period specified above [or from the last date
from which accrued interest is being calculated]. [Unless
otherwise specified herein,] the interest factor for each such
day shall be computed by dividing the interest rate applicable to
such day by 360 if the Interest Rate Basis is the Commercial
Paper Rate, the Federal Funds Rate, LIBOR or the Prime Rate, as
specified above, or by the actual number of days in the year if
the Interest Rate Basis is the CMT Rate or the Treasury Rate, as
indicated above. [PROVISIONS FOR RATE CALCULATIONS BY REFERENCE
TO MORE THAN ONE BASIS]
All percentages resulting from any calculation of the rate
of interest hereon shall be rounded to the nearest one hundred-
thousandth of a percentage point, with five one-millionths of a
percentage point rounded upwards (e.g., 9.876545% (or .09876545)
would be rounded to 9.87655% (or .0987655)), and all amounts used
in or resulting from such calculation hereon will be rounded to
the nearest cent (with one-half cent being rounded upwards).
The Company has appointed the Calculation Agent specified
above to calculate the interest rates on this Security. Upon the
request of the Holder of this Security, the Calculation Agent
will disclose the interest rate then in effect, and, if
determined, the interest rate that will become effective as a
result of a determination made for the next succeeding Interest
Reset Date with respect to this Security. [Unless otherwise
specified herein,] the "Calculation Date," if applicable,
pertaining to any Interest Determination Date will be the earlier
of (i) the tenth calendar day after such Interest Determination
Date or, if such day is not a Business Day, the next succeeding
Business Day or (ii) the Business Day immediately preceding the
applicable Interest Payment Date or Maturity, as the case may be.
Subject to applicable provisions of law and except as
specified herein, the Calculation Agent shall determine the rate
of interest in accordance with the provisions under the
applicable heading below. All determinations of interest rates
by the Calculation Agent shall, in the absence of manifest error,
be conclusive for all purposes and binding on the Holder hereof.
DETERMINATION OF CMT RATE
If the Interest Rate Basis specified above is the CMT Rate,
this Security shall bear interest for each Interest Reset Period
at an interest rate calculated with reference to the CMT Rate,
determined as set forth below, and the Spread or Spread
Multiplier, if any, specified above.
The CMT Rate for each Interest Reset Period shall be
determined by the Calculation Agent with respect to any Interest
Determination Date (a "CMT Rate Interest Determination Date") and
shall be the rate displayed on the Designated CMT Telerate Page
(as defined below) under the caption "...Treasury Constant
Maturities...Federal Reserve Board Release H.15...Mondays
Approximately 3:45 P.M.," under the column for the Designated CMT
Maturity Index (as defined below) for (i) if the Designated CMT
Telerate Page is 7055, the rate on such CMT Rate Interest
Determination Date and (ii) if the Designated CMT Telerate Page
is 7052, the weekly or monthly average, as specified above, for
the week or the month, as applicable, ended immediately preceding
the week or the month, as applicable, in which the related CMT
Rate Interest Determination Date falls. If such rate is no
longer displayed on the relevant page or is not displayed by 3:00
P.M., New York City time, on the related Calculation Date, then
the CMT Rate for such CMT Rate Interest Determination Date will
be such treasury constant maturity rate for the Designated CMT
Maturity Index as published in H.15(519). If such rate is no
longer published or is not published by 3:00 P.M., New York City
time, on the related Calculation Date, then the CMT Rate on such
CMT Rate Interest Determination Date will be such treasury
constant maturity rate for the Designated CMT Maturity Index (or
other United States Treasury rate for the Designated CMT Maturity
Index) for the CMT Rate Interest Determination Date with respect
to such Interest Reset Date as may then be published by either
the Board of Governors of the Federal Reserve System or the
United States Department of the Treasury that the Calculation
Agent determines to be comparable to the rate formerly displayed
on the Designated CMT Telerate Page and published in H.15(519).
If such information is not provided by 3:00 P.M., New York City
time, on the related Calculation Date, then the CMT Rate on the
CMT Rate Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity, based on the
arithmetic mean of the secondary market offered rates as of
approximately 3:30 P.M., New York City time, on such CMT Rate
Interest Determination Date reported, according to their written
records, by three leading primary United States government
securities dealers in The City of New York (each, a "Reference
Dealer) selected by the Calculation Agent (from five such
Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality,
one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest)), for the most recently issued
direct noncallable fixed rate obligations of the United States
("Treasury Notes") with an original maturity of approximately the
Designated CMT Maturity Index and a remaining term to maturity of
not less than such Designated CMT Maturity Index minus one year.
If the Calculation Agent is unable to obtain three such Treasury
Note quotations, the CMT Rate on such CMT Rate Interest
Determination Date will be calculated by the Calculation Agent
and will be a yield to maturity based on the arithmetic mean of
the secondary market offered rates as of approximately 3:30 P.M.,
New York City time, on such CMT Rate Interest Determination Date
of three Reference Dealers in The City of New York (from five
such Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality,
one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest)), for Treasury Notes with an
original maturity of the number of years that is the next highest
to the Designated CMT Maturity Index and a remaining term to
maturity closest to the Designated CMT Maturity Index and in an
amount of at least $100 million. If three or four (and not five)
of such Reference Dealers are quoting as described above, then
the CMT Rate will be based on the arithmetic mean of the offered
rates obtained and neither the highest nor the lowest of such
quotes will be eliminated; provided, however, that if fewer than
three Reference Dealers so selected by the Calculation Agent are
quoting as mentioned herein, the CMT Rate determined as of such
CMT Rate Interest Determination Date will be the CMT Rate in
effect on such CMT Rate Interest Determination Date. If two
Treasury Notes with an original maturity as described in the
second preceding sentence have remaining terms to maturity
equally close to the Designated CMT Maturity Index, the
Calculation Agent will obtain quotations for the Treasury Note
with the shorter remaining term to maturity.
"Designated CMT Telerate Page" means the display on the Dow
Jones Telerate Service (or any successor service) on the page
specified above (or any other page as may replace such page on
such service) for the purpose of displaying Treasury Constant
Maturities as reported in H.15(519). If no such page is
specified above, the Designated CMT Telerate Page shall be 7052
for the most recent week.
"Designated CMT Maturity Index" means the original period to
maturity of the U.S. Treasury securities (either 1, 2, 3, 5, 7,
10, 20 or 30 years) specified above with respect to which the CMT
Rate will be calculated or, if no such maturity is specified
above, 2 years.
DETERMINATION OF COMMERCIAL PAPER RATE
If the Interest Rate Basis specified above is the Commercial
Paper Rate, this Security shall bear interest for each Interest
Reset Period at an interest rate calculated with reference to the
Commercial Paper Rate, determined as set forth below, and the
Spread or Spread Multiplier, if any, specified above.
The Commercial Paper Rate for each Interest Reset Period
shall be determined by the Calculation Agent with respect to any
Interest Determination Date (a "Commercial Paper Rate Interest
Determination Date") and shall be the Money Market Yield (as
defined herein) on such Commercial Paper Rate Interest
Determination Date of the rate for commercial paper having the
Index Maturity specified above as published in H.15(519) (as
hereinafter defined) under the heading "Commercial Paper," or, if
such heading is no longer available, such other heading
representing commercial paper issued by non-financial entities
whose bond rating is "Aa", or the equivalent, from a nationally
recognized statistical rating organization, or if such rate is
not so published prior to 3:00 P.M., New York City time, on the
related Calculation Date, the Money Market Yield as of such
Commercial Paper Rate Interest Determination Date of the rate for
commercial paper having the Index Maturity specified above as
published in Composite Quotations (as hereinafter defined) under
the heading "Commercial Paper" (with an Index Maturity of one
month or three months being deemed to be equivalent to an Index
Maturity of 30 days or 90 days, respectively) or (b) if neither
of such rates is published by 11:00 P.M., New York City time, on
the related Calculation Date, the Money Market Yield of the
arithmetic mean of the offered rates at approximately 11:00 a.m.,
New York City time, on such Commercial Paper Rate Interest
Determination Date of three leading dealers of commercial paper
in The City of New York selected by the Calculation Agent for
commercial paper having the Index Maturity specified above placed
for an industrial issuer whose bond rating is "Aa," or the
equivalent, from a nationally recognized statistical rating
organization; provided, however, that if the dealers selected as
aforesaid are not quoting rates as mentioned in this sentence,
the Commercial Paper Rate determined as of such Commercial Paper
Rate Interest Determination Date will be the Commercial Paper
Rate in effect on such Commercial Paper Rate Interest
Determination Date.
"Money Market Yield" means a yield (expressed as a
percentage) calculated in accordance with the following formula:
Money Market Yield = D x 360 x 100
---------------
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial
paper quoted on a bank discount basis and expressed as a decimal,
and "M" refers to the actual number of days in the Interest Reset
Period specified above.
DETERMINATION OF FEDERAL FUNDS RATE
If the Interest Rate Basis specified above is the Federal
Funds Rate, this Security shall bear interest for each Interest
Reset Period at an interest rate calculated with reference to the
Federal Funds Rate, determined as set forth below, and the Spread
or Spread Multiplier, if any, specified above.
The Federal Funds Rate for each Interest Reset Period shall
be determined by the Calculation Agent with respect to any
Interest Determination Date (a "Federal Funds Rate Interest
Determination Date") and shall be the rate on such Federal Funds
Interest Determination Date for United States dollar federal
funds as published in H.15(519) under the heading "Federal Funds
(Effective)" or, if not published by 3:00 P.M., New York City
time, on the related Calculation Date, the rate on such Federal
Funds Rate Interest Determination Date as published in Composite
Quotations under the heading "Federal Funds/Effective Rate." If
such rate is not published in either H.15(519) or Composite
Quotations by 3:00 P.M., New York City time, on the related
Calculation Date, then the Federal Funds Rate on such Federal
Funds Rate Interest Determination Date shall be calculated by the
Calculation Agent and shall be the arithmetic mean of the rates
for the last transaction in overnight United States dollar
federal funds arranged by three leading brokers of federal funds
transactions in The City of New York selected by the Calculation
Agent prior to 9:00 A.M., New York City time, on such Federal
Funds Rate Interest Determination Date; provided, however, that
if the brokers so selected by the Calculation Agent are not
quoting rates as mentioned in this sentence, the Federal Funds
Rate determined as of such Federal Funds Rate Interest
Determination Date will be the Federal Funds Rate in effect on
such Federal Funds Rate Interest Determination Date.
DETERMINATION OF LIBOR
If the Interest Rate Basis specified above is LIBOR, this
Security shall bear interest for each Interest Reset Period at an
interest rate calculated with reference to LIBOR and the Spread
Multiplier, if any, specified above. "LIBOR" for each Interest
Reset Period shall be determined with respect to any Interest
Determination Date (a "LIBOR Interest Determination Date") by the
Calculation Agent for such LIBOR Note as follows:
(i) LIBOR will be either: (a) if "LIBOR Reuters"
is specified above, the arithmetic mean of the offered
rates (unless the Designated LIBOR Page (as defined
below) by its terms provides only for a single rate, in
which case such single rate shall be used) for deposits
in United States dollars having the Index Maturity
specified above, commencing on the applicable Interest
Reset Date, that appear (or, if only a single rate is
required as aforesaid, appears) on the Designated LIBOR
Page as of 11:00 A.M., London time, on such LIBOR
Interest Determination Date, or (b) if "LIBOR Telerate"
is specified above or if neither "LIBOR Reuters" nor
"LIBOR Telerate" is specified above as the method for
calculating LIBOR, the rate for deposits in United
States dollars having the Index Maturity specified
above, commencing on such Interest Reset Date, that
appears on the Designated LIBOR Page as of 11:00 A.M.,
London time, on such LIBOR Interest Determination Date.
If fewer than two such offered rates so appear, or if
no such rate so appears, as applicable, LIBOR on such
LIBOR Interest Determination Date will be determined in
accordance with the provisions described in clause (ii)
below.
(ii) With respect to a LIBOR Interest
Determination Date on which fewer than two offered
rates appear, or no rate appears, as the case may be,
on the Designated LIBOR Page as specified in clause (i)
above, the Calculation Agent will request the principal
London offices of each of four major reference banks in
the London interbank market, as selected by the
Calculation Agent, to provide the Calculation Agent
with its offered quotation for deposits in United
States dollars for the period of the Index Maturity
specified above, commencing on the applicable Interest
Reset Date, to prime banks in the London interbank
market at approximately 11:00 A.M., London time, on
such LIBOR Interest Determination Date and in a
principal amount that is representative for a single
transaction in United States dollars in such market at
such time. If at least two such quotations are so
provided, then LIBOR on such LIBOR Interest
Determination Date will be the arithmetic mean of such
quotations. If fewer than two such quotations are so
provided, then LIBOR on such LIBOR Interest
Determination Date will be the arithmetic mean of the
rates quoted at approximately 11:00 A.M., New York City
time, on such LIBOR Interest Determination Date by
three major banks in The City of New York selected by
the Calculation Agent for loans in United States
dollars to leading European banks, for the period of
the Index Maturity specified above and in a principal
amount that is representative for a single transaction
in United States dollars in such market at such time;
provided, however, that if the banks so selected by the
Calculation Agent are not quoting as mentioned in this
sentence, LIBOR determined as of such LIBOR Interest
Determination Date will be LIBOR in effect on such
LIBOR Interest Determination Date.
"Designated LIBOR Page" means (a) if "LIBOR Reuters" is
specified above, the display on the Reuter Monitor Money Rates
Service (or any successor service) on the page specified above
(or any other page as may replace such page on such service) for
the purpose of displaying the London interbank rates of major
banks for United States dollars or (b) if "LIBOR Telerate" is
specified above or neither "LIBOR Reuters" nor "LIBOR Telerate"
is specified above as the method for calculating LIBOR, the
display on the Dow Jones Telerate Service (or any successor
service) on the page specified above (or any other page as may
replace such page on such service) for the purpose of displaying
the London interbank rates of major banks for United States
dollars.
DETERMINATION OF PRIME RATE
If the Interest Rate Basis specified above is the Prime
Rate, this Security shall bear interest for each Interest Reset
Period at an interest rate calculated with reference to the Prime
Rate, determined as set forth below, and the Spread or Spread
Multiplier, if any, specified above.
The Prime Rate for each Interest Reset Period shall be
determined by the Calculation Agent with respect to any Interest
Determination Date (a "Prime Rate Interest Determination Date")
and shall be the Prime Rate on such Prime Rate Interest
Determination Date as such rate is published in H.15(519) under
the heading "Bank Prime Loan." If such rate is not published
prior to 3:00 P.M., New York City time, on the related
Calculation Date, then the Prime Rate shall be the arithmetic
mean of the rates of interest publicly announced by each bank
that appears on the Reuters Screen USPRIME1 Page (as hereinafter
defined) as such bank's prime rate or base lending rate as in
effect for such Prime Rate Interest Determination Date. If fewer
than four such rates appear on the Reuters Screen USPRIME1 Page
for such Prime Rate Interest Determination Date, then the Prime
Rate shall be the arithmetic mean of the prime rates or base
lending rates quoted on the basis of the actual number of days in
the year divided by a 360-day year as of the close of business on
such Prime Rate Interest Determination Date by four major money
center banks in The City of New York selected by the Calculation
Agent. If fewer than four such quotations are so provided, then
the Prime Rate shall be the arithmetic mean of four prime rates
quoted on the basis of the actual number of days in the year
divided by a 360-day year as of the close of business on such
Prime Rate Interest Determination Date as furnished in The City
of New York by the major money center banks, if any, that have
provided such quotations and by a reasonable number of substitute
banks or trust companies to obtain four such prime rate
quotations, provided such substitute banks or trust companies are
organized and doing business under the laws of the United States,
or any State thereof, each having total equity capital of at
least $500 million and being subject to supervision or
examination by Federal or State authority, selected by the
Calculation Agent to provide such rate or rates; provided,
however, that if the banks or trust companies so selected by the
Calculation Agent are not quoting as mentioned in this sentence,
the Prime Rate determined as of such Prime Rate Interest
Determination Date will be the Prime Rate in effect on such Prime
Rate Interest Determination Date.
"Reuters Screen USPRIME1 Page" means the display on the
Reuter Monitor Money Rates Service (or any successor service) on
the "USPRIME1" page (or such other page as may replace the
USPRIME1 page on such service) for the purpose of displaying
prime rates or base lending rates of major United States banks.
DETERMINATION OF TREASURY RATE
If the Interest Rate Basis specified above is the Treasury
Rate, this Security shall bear interest for each Interest Reset
Period at an interest rate calculated with reference to the
Treasury Rate and the Spread or Spread Multiplier, if any,
specified above.
The "Treasury Rate" for each Interest Reset Period shall be
determined by the Calculation Agent with respect to any Interest
Determination Date (a "Treasury Rate Interest Determination
Date") and shall be the rate from the auction held on such
Treasury Rate Interest Determination Date (the "Auction") of
direct obligations of the United States ("Treasury bills") having
the Index Maturity specified above, as such rate is published in
H.15(519) under the heading "Treasury Bills - auction average
(investment)" or, if not published by 3:00 P.M., New York City
time, on the related Calculation Date, the auction average rate
of such Treasury Bills (expressed as a bond equivalent on the
basis of a year of 365 or 366 days, as applicable, and applied on
a daily basis) as otherwise announced by the United States
Department of the Treasury. In the event that the results of the
Auction of Treasury Bills having the Index Maturity specified
above are not reported as provided by 3:00 P.M., New York City
time, on the related Calculation Date, or if no such Auction is
held, then the "Treasury Rate" will be calculated by the
Calculation Agent and will be a yield to maturity (expressed as a
bond equivalent on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) of the arithmetic mean
of the secondary market bid rates, as of approximately 3:30 P.M.,
New York City time, on such Treasury Rate Interest Determination
Date, of three leading primary United States government
securities dealers selected by the Calculation Agent, for the
issue of Treasury bills with a remaining maturity closest to the
Index Maturity specified above; provided, however, that if the
-------- -------
dealers so selected by the Calculation Agent are not quoting as
mentioned in this sentence, the Treasury Rate determined as of
such Treasury Rate Interest Determination Date will be the
Treasury Rate in effect on such Treasury Rate Interest
Determination Date.
If, as specified above, this Security is redeemable, this
Security is subject to redemption at any time on or after the
Initial Redemption Date specified above, in whole or in part [in
increments of $1,000], at the election of the Company, at the
applicable redemption price (as described below) plus accrued
interest to the date fixed for redemption. Such redemption price
shall be the Initial Redemption Price specified above for the
twelve-month period commencing on the Initial Redemption Date and
shall decline for the twelve-month period commencing on each
anniversary of the Initial Redemption Date by a percentage of
principal amount equal to the Annual Redemption Percentage
Reduction specified above until such redemption price is 100% of
the principal amount of this Security to be redeemed.
[Insert provisions, if any, for redemption pursuant to a
sinking fund or other mandatory redemption provisions or
provisions for repayment at the election of the Holder.]
Notice of redemption [(other than at the election of the
Holder)] shall be given by mail to Holders of Securities, not
less than 30 days nor more than 60 days prior to the date fixed
for redemption, all as provided in the Indenture. As provided in
the Indenture, notice of redemption at the election of the
Company as aforesaid may state that such redemption shall be
conditional upon the receipt by the Trustee of money sufficient
to pay the principal of and premium, if any, and interest, if
any, on this Security on or prior to the date fixed for such
redemption; a notice of redemption so conditioned shall be of no
force or effect if such money is not so received and, in such
event, the Company shall not be required to redeem this Security.
In the event of redemption of this Security in part only, a
new Security or Securities of this series, of like tenor,
representing the unredeemed portion hereof shall be issued in the
name of the Holder hereof upon the cancellation hereof.
If an Event of Default with respect to the Securities of
this series shall occur and be continuing, the principal of this
Security may be declared due and payable in the manner and with
the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the Trustee to enter into one or more supplemental
indentures for the purpose of adding any provisions to, or
changing in any manner or eliminating any of the provisions of,
the Indenture with the consent of the Holders of not less than a
majority in aggregate principal amount of the Securities of all
series then Outstanding under the Indenture, considered as one
class; provided, however, that if there shall be Securities of
more than one series Outstanding under the Indenture and if a
proposed supplemental indenture shall directly affect the rights
of the Holders of Securities of one or more, but less than all,
of such series, then the consent only of the Holders of a
majority in aggregate principal amount of the Outstanding
Securities of all series so directly affected, considered as one
class, shall be required; and provided, further, that if the
Securities of any series shall have been issued in more than one
Tranche and if the proposed supplemental indenture shall directly
affect the rights of the Holders of Securities of one or more,
but less than all, of such Tranches, then the consent only of the
Holders of a majority in aggregate principal amount of the
Outstanding Securities of all Tranches so directly affected,
considered as one class, shall be required; and provided,
further, that the Indenture permits the Trustee to enter into one
or more supplemental indentures for limited purposes without the
consent of any Holders of Securities. The Indenture also
contains provisions permitting the Holders of a majority in
principal amount of the Securities then Outstanding, on behalf of
the Holders of all Securities, to waive compliance by the Company
with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange therefor or in
lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
No reference herein to the Indenture and no provision of
this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and premium, if any, and interest, if
any, on this Security at the times, place and rate, in the coin
or currency, and in the manner, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, this Security or any portion of
the principal amount hereof will be deemed to have been paid for
all purposes of the Indenture and to be no longer Outstanding
thereunder, and, at the election of the Company, the Company's
entire indebtedness in respect thereof will be satisfied and
discharged, if there has been irrevocably deposited with the
Trustee or any Paying Agent (other than the Company), in trust,
money in an amount which will be sufficient and/or Eligible
Obligations, the principal of and interest on which when due,
without any regard to reinvestment thereof, will provide moneys
which, together with moneys so deposited, will be sufficient to
pay when due the principal of and premium, if any, and interest,
if any, on this Security when due.
The Indenture contains terms, provisions and conditions
relating to the consolidation or merger of the Company or the
Guarantor with or into, and the conveyance or other transfer, or
lease, of assets to, another Person, to the assumption by such
other Person, in certain circumstances, of all of the obligations
of the Company or the Guarantor under the Indenture and on the
Securities (or the Guarantees endorsed thereon) and to the
release and discharge of the Company or the Guarantor, as the
case may be, in certain circumstances, from such obligations.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is
registrable in the Security Register, upon surrender of this
Security for registration of transfer at the office of The Chase
Manhattan Bank in New York, New York or such other office or
agency as may be designated by the Company from time to time,
duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new
Securities of this series of authorized denominations and of like
tenor and aggregate principal amount, will be issued to the
designated transferee or transferees.
The Securities of this series are issuable only as
registered Securities, without coupons, and in denominations of
$[1,000 and integral multiples thereof]. As provided in the
Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate
principal amount of Securities of the same series and Tranche, of
any authorized denominations, as requested by the Holder
surrendering the same, and of like tenor upon surrender of the
Security or Securities to be exchanged at the office of The Chase
Manhattan Bank in New York, New York or such other office or
agency as may be designated by the Company from time to time.
The Company shall not be required to execute and the
Security Registrar shall not be required to register the transfer
of or exchange of (a) Securities of this series during a period
of 15 days immediately preceding the date notice is given
identifying the serial numbers of the Securities of this series
called for redemption or (b) any Security so selected for
redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration
of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name this
Security is registered as the absolute owner hereof for all
purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
The Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York.
As used herein,
(1) "Business Day" means any day, other than a Saturday or
Sunday, that is not a day on which banking institutions
or trust companies are generally authorized or required
by law, regulation or executive order to close in The
City of New York; provided that if an Interest Rate
Basis specified above is LIBOR, such day is also a
London Business Day. "London Business Day" means a day
on which dealings in deposits in Dollars are transacted
in the London interbank market;
(2) "H.15(519)" means the publication entitled "Statistical
Release H.15(519)," Selected Interest Rates, or any
successor publication, published by the Board of
Governors of the Federal Reserve System; and
(3) "Composite Quotations" means the daily statistical
release entitled "Composite 3:30 P.M. Quotations for
U.S. Government Securities," or any successor
publication, published by the Federal Reserve Bank of
New York.
All other terms used in this Security without definition which
are defined in the Indenture shall have the meanings assigned to
them in the Indenture.
As provided in the Indenture, no recourse shall be had for
the payment of the principal of or premium, if any, or interest
on any Securities, any Guarantees or any part thereof, or for any
claim based thereon or otherwise in respect thereof, or of the
indebtedness represented thereby, or upon any obligation,
covenant or agreement under the Indenture, against, and no
personal liability whatsoever shall attach to, or be incurred by,
any incorporator, stockholder, officer or director, as such,
past, present or future of the Company or the Guarantor or of any
predecessor or successor of either of them (either directly or
through the Company or the Guarantor, as the case may be, or a
predecessor or successor of either of them), whether by virtue of
any constitutional provision, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being
expressly agreed and understood that the Indenture and this
Security and the Guarantee endorsed hereon are solely corporate
obligations and that any such personal liability is hereby
expressly waived and released as a condition of, and as part of
the consideration for, the execution of the Indenture and the
issuance of this Security and such Guarantee.
Unless the certificate of authentication hereon has been
executed by the Trustee or an Authenticating Agent by manual
signature, this Security shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument
to be duly executed under its corporate seal.
PP&L CAPITAL FUNDING, INC.
[SEAL] By:
-------------------------------
Title
Attested:
By:
-----------------
[Title]
GUARANTEE
PP&L Resources, Inc., a corporation organized
under the laws of the Commonwealth of Pennsylvania (the
"Guarantor", which term includes any successor under
the Indenture (the "Indenture"), referred to in the
Security upon which this Guarantee is endorsed), for
value received, hereby unconditionally guarantees to
the Holder of the Security upon which this Guarantee is
endorsed, the due and punctual payment of the principal
of, and premium, if any, and interest on such Security
when and as the same shall become due and payable,
whether at the Stated Maturity, by declaration of
acceleration, call for redemption, or otherwise, in
accordance with the terms of such Security and of the
Indenture. In case of the failure of PP&L Capital
Funding, Inc., a corporation organized under the laws
of the State of Delaware (the "Company", which term
includes any successor under the Indenture), punctually
to make any such payment, the Guarantor hereby agrees
to cause such payment to be made punctually when and as
the same shall become due and payable, whether at the
Stated Maturity or by declaration of acceleration, call
for redemption or otherwise, and as if such payment
were made by the Company.
The Guarantor hereby agrees that its
obligations hereunder shall be absolute and
unconditional irrespective of, and shall be unaffected
by, any invalidity, irregularity or unenforceability of
such Security or the Indenture, any failure to enforce
the provisions of such Security or the Indenture, or
any waiver, modification or indulgence granted to the
Company with respect thereto, by the Holder of such
Security or the Trustee or any other circumstance which
may otherwise constitute a legal or equitable discharge
or defense of a surety or guarantor; provided, however,
that notwithstanding the foregoing, no such waiver,
modification or indulgence shall, without the consent
of the Guarantor, increase the principal amount of such
Security, or increase the interest rate thereon, or
change any redemption provisions thereof (including any
change to increase any premium payable upon redemption
thereof) or change the Stated Maturity thereof.
The Guarantor hereby waives the benefits of
diligence, presentment, demand for payment, any
requirement that the Trustee or the Holder of such
Security exhaust any right or take any action against
the Company or any other Person, filing of claims with
a court in the event of insolvency or bankruptcy of the
Company, any right to require a proceeding first
against the Company, protest or notice with respect to
such Security or the indebtedness evidenced thereby and
all demands whatsoever, and covenants that this
Guarantee will not be discharged in respect of such
Security except by complete performance of the
obligations contained in such Security and in this
Guarantee. This Guarantee shall constitute a guaranty
of payment and not of collection. The Guarantor hereby
agrees that, in the event of a default in payment of
principal, or premium, if any, or interest, if any, on
such Security, whether at its Stated Maturity, by
declaration of acceleration, call for redemption, or
otherwise, legal proceedings may be instituted by the
Trustee on behalf of, or by, the Holder of such
Security, subject to the terms and conditions set forth
in the Indenture, directly against the Guarantor to
enforce this Guarantee without first proceeding against
the Company.
The obligations of the Guarantor hereunder
with respect to such Security shall be continuing and
irrevocable until the date upon which the entire
principal of, premium, if any, and interest on such
Security has been, or has been deemed pursuant to the
provisions of Article Seven of the Indenture to have
been, paid in full or otherwise discharged.
The Guarantor shall be subrogated to all
rights of the Holder of such Security upon which this
Guarantee is endorsed against the Company in respect of
any amounts paid by the Guarantor on account of such
Security pursuant to the provisions of this Guarantee
or the Indenture; provided, however, that the Guarantor
shall not be entitled to enforce or to receive any
payments arising out of, or based upon, such right of
subrogation until the principal of, and premium, if
any, and interest, if any, on all Securities issued
under the Indenture shall have been paid in full.
This Guarantee shall remain in full force and
effect and continue notwithstanding any petition filed
by or against the Company for liquidation or
reorganization, the Company becoming insolvent or
making an assignment for the benefit of creditors or a
receiver or trustee being appointed for all or any
significant part of the Company's assets, and shall, to
the fullest extent permitted by law, continue to be
effective or reinstated, as the case may be, if at any
time payment of the Security upon which this Guarantee
is endorsed, is, pursuant to applicable law, rescinded
or reduced in amount, or must otherwise be restored or
returned by the Holder of such Security, whether as a
"voidable preference," "fraudulent transfer," or
otherwise, all as though such payment or performance
had not been made. In the event that any payment, or
any part thereof, is rescinded, reduced, restored or
returned on such Security, such Security shall, to the
fullest extent permitted by law, be reinstated and
deemed paid only by such amount paid and not so
rescinded, reduced, restored or returned.
This Guarantee shall not be valid or
obligatory for any purpose until the certificate of
authentication of the Security upon which this
Guarantee is endorsed shall have been manually executed
by or on behalf of the Trustee under the Indenture.
All terms used in this Guarantee which are
defined in such Indenture shall have the meanings
assigned to them in such Indenture.
This Guarantee shall be deemed to be a
contract made under the laws of the State of New York,
and for all purposes shall be governed by and construed
in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the Guarantor has caused
this Guarantee to be executed as of the date first
written above.
PP&L RESOURCES, INC.
By:
---------------------------
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
Dated: THE CHASE MANHATTAN BANK
---------------- AS TRUSTEE
By:
--------------------------
Authorized Officer
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (THE "DEPOSITARY")
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE TO BE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND
ANY AMOUNT PAYABLE THEREUNDER IS MADE PAYABLE TO CEDE & CO. OR
SUCH OTHER NAME), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL THIS SECURITY IS EXCHANGED IN WHOLE OR IN PART
FOR CERTIFICATED SECURITIES REGISTERED IN THE NAMES OF THE
VARIOUS BENEFICIAL HOLDERS HEREOF AS THEN CERTIFIED TO THE
COMPANY AND THE TRUSTEE BY THE DEPOSITARY OR A SUCCESSOR
DEPOSITARY, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO ITS NOMINEE OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY
OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. THIS
SECURITY MAY BE EXCHANGED FOR CERTIFICATED SECURITIES REGISTERED
IN THE NAMES OF THE VARIOUS BENEFICIAL OWNERS HEREOF ONLY IF (A)
THE DEPOSITARY (I) HAS NOTIFIED THE COMPANY THAT IT IS UNWILLING
OR UNABLE TO CONTINUE AS DEPOSITARY OR (II) HAS CEASED TO BE A
CLEARING AGENCY REGISTERED UNDER THE EXCHANGE ACT, AND, IN EITHER
CASE, A SUCCESSOR DEPOSITARY IS NOT APPOINTED BY THE COMPANY
WITHIN 90 DAYS, OR (B) THE COMPANY ELECTS TO ISSUE CERTIFICATED
SECURITIES TO BENEFICIAL OWNERS (AS CERTIFIED TO THE COMPANY AND
THE TRUSTEE BY THE DEPOSITARY OR A SUCCESSOR DEPOSITARY) OF ALL
SECURITIES OF THE SERIES DESIGNATED ABOVE.
------------------
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
-----------------------------------------------------------------
[please insert social security or other identifying number of
assignee]
-----------------------------------------------------------------
[please print or typewrite name and address of assignee]
-----------------------------------------------------------------
the within Security of PP&L CAPITAL FUNDING, INC. and does hereby
irrevocably constitute and appoint
------------------------------
, Attorney, to transfer said Security on the books of
----------
the within-mentioned Company, with full power of substitution in
the premises.
Dated:
-------------
------------------------------------
Notice: The signature to this assignment must correspond with
the name as written upon the face of the Security in every
particular without alteration or enlargement or any change
whatsoever.
Exhibit 5.1
[Letterhead of Michael A. McGrail, Esq.]
(610) 774-5644
October 16, 1997
PP&L Resources, Inc.
Two North Ninth Street
Allentown, Pennsylvania 18101
Ladies and Gentlemen:
I am Senior Counsel of PP&L, Inc., the principal
subsidiary of PP&L Resources, Inc., a corporation organized
under the laws of the Commonwealth of Pennsylvania (the
"Guarantor"). I have acted as counsel to the Guarantor in
connection with the Guarantor's Guarantees (the
"Guarantees"), as to payment of principal, interest and
premium, if any, on up to $400,000,000 in aggregate
principal amount of Debt Securities (the "Debt
Securities"), to be issued from time to time by PP&L
Capital Funding Inc., a corporation organized under the
laws of the state of Delaware (the "Company"), such Debt
Securities and such Guarantees to be issued under an
Indenture (the "Indenture"), of the Company and the
Guarantor to The Chase Manhattan Bank, as trustee (the
"Trustee"), all as contemplated by the Registration
Statement on Form S-3 (the "Registration Statement")
proposed to be filed by the Company and the Guarantor with
the Securities and Exchange Commission on or about the date
hereof for the registration of the Debt Securities and the
Guarantees under the Securities Act of 1933, as amended
(the "Act"), and for the qualification of the Indenture
under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act").
I have examined such corporate records,
certificates and other documents and have reviewed such
questions of law as I have considered necessary or
appropriate for purposes of the opinions expressed below.
Based on such examination and review, I advise you as
follows:
I am of the opinion that the Guarantor is a
corporation duly organized and validly existing under the
laws of the Commonwealth of Pennsylvania.
I am also of the opinion that appropriate action
has been taken by the Board of Directors of the Guarantor
and by the Finance Committee of such Board to authorize the
Guarantees contemplated by the Registration Statement.
I am further of the opinion that the Guarantees
will be legal, valid and binding obligations of the
Guarantor, each enforceable in accordance with its 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, when:
(a) the Registration Statement, as it may be
amended, shall have become effective under the Act,
and the Indenture shall have become qualified under
the Trust Indenture Act;
(b) the Company, the Guarantor and the Trustee
shall have each executed and delivered the Indenture;
(c) the Guarantor shall have duly executed and
delivered the Guarantees in accordance with the
applicable provisions of the Indenture and all
necessary corporate authorization;
(d) the Trustee shall have duly authenticated
the Debt Securities and the Guarantees endorsed
thereon, in accordance with the applicable provisions
of the Indenture; and
(e) the Company shall have issued, sold and
delivered the Debt Securities to the purchasers
thereof against payment therefor, all as contemplated
by, and in conformity with, the acts, proceedings and
documents referred to above.
I have also reviewed those statements of law and
legal conclusions stated to be made upon my authority in
the Registration Statement and the documents incorporated
by reference therein, and, in my opinion, such statements
are correct.
The foregoing opinions do not pass upon the
validity of the Debt Securities or the matter of compliance
with "blue sky" laws or similar laws relating to the sale
or distribution of the Debt Securities by any underwriters
or agents.
I hereby authorize and consent to the use of this
opinion as Exhibit 5.1 to the Registration Statement, and
authorize and consent to the references to me under the
captions "Certain Pennsylvania Tax Matters," "Experts" and
"Validity of the Debt Securities and the Guarantees" in the
Registration Statement and in the prospectus constituting a
part thereof.
I am a member of the Pennsylvania Bar and do not
hold myself out as an expert on the laws of any other
state. As to all matters governed by the laws of the State
of New York, I have relied upon the opinion of even date
herewith of Reid & Priest LLP, counsel for the Company and
Guarantor, which is being filed as Exhibit 5.2 to the
Registration Statement.
In rendering its opinion, Reid & Priest LLP may
rely upon this opinion as to all matters of Pennsylvania
law addressed herein as if this opinion were addressed
directly to them. Except as aforesaid, without my prior
written consent, this opinion may not be furnished or
quoted to, or relied upon by, any other person or entity
for any purpose.
Very truly yours,
/s/ Michael A. McGrail
Michael A. McGrail
REID & PRIEST LLP
40 WEST 57TH STREET
NEW YORK, NY 10019-4097
TELEPHONE 212 603-2000
FAX 212 603-2001
Exhibit 5.2
New York, New York
October 16, 1997
PP&L Resources, Inc.
Two North Ninth Street
Allentown, Pennsylvania 18101
PP&L Capital Funding, Inc.
Two North Ninth Street
Allentown, Pennsylvania 18101
Ladies and Gentlemen:
We are acting as special counsel for PP&L Capital
Funding, Inc., a corporation organized under the laws of
the State of Delaware (the "Company"), and PP&L Resources,
Inc., a corporation organized under the laws of the
Commonwealth of Pennsylvania (the "Guarantor"), in
connection with (i) the proposed issuance and sale from
time to time of up to $400,000,000 in aggregate principal
amount of the Company's Debt Securities (the "Debt
Securities") and (ii) the Guarantees by the Guarantor as to
payment of principal, interest and premium, if any, on such
Debt Securities (the "Guarantees"), such Debt Securities
and such Guarantees to be issued under an Indenture (the
"Indenture"), of the Company and the Guarantor to The Chase
Manhattan Bank, as trustee (the "Trustee"), all as
contemplated by the Registration Statement on Form S-3 (the
"Registration Statement") proposed to be filed by the
Company with the Securities and Exchange Commission on or
about the date hereof for the registration of the Debt
Securities and the Guarantees under the Securities Act of
1933, as amended (the "Act"), and for the qualification of
the Indenture under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act").
We have examined such corporate records,
certificates and other documents and have reviewed such
questions of law as we have considered necessary or
appropriate for purposes of the opinions expressed below.
Based on such examination and review, we advise you as
follows:
We are of the opinion that the Company is a
corporation duly organized and validly existing under the
laws of the State of Delaware.
We are further of the opinion that the Debt
Securities will be legal, valid and binding obligations of
the Company and that the Guarantees will be legal, valid
and binding obligations of the Guarantor, each enforceable
in accordance with its 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, when:
(a) the Registration Statement, as it may be
amended, shall have become effective under the Act,
and the Indenture shall have become qualified under
the Trust Indenture Act;
(b) the Company's Board of Directors, or a duly
authorized committee thereof, shall have taken such
action as may be necessary to authorize the Company's
issuance of the Debt Securities on the terms set forth
in or contemplated by the Registration Statement, as
it may be amended, and the exhibits thereto, and to
authorize the proper officers of the Company and
Guarantor to take such other action as may be
necessary in connection with the consummation of the
issuance and sale of the Debt Securities from time to
time;
(c) the Company, the Guarantor and the Trustee
shall have each executed and delivered the Indenture;
(d) the Company shall have duly established the
terms of the Debt Securities and executed the Debt
Securities in accordance with the applicable
provisions of the Indenture and all necessary
corporate authorizations;
(e) the Guarantor shall have duly executed and
delivered the Guarantees in accordance with the
applicable provisions of the Indenture and all
necessary corporate authorizations;
(f) the Trustee shall have duly authenticated
the Debt Securities and the Guarantees endorsed
thereon, in accordance with the applicable provisions
of the Indenture; and
(g) the Company shall have issued, sold and
delivered the Debt Securities to the purchasers
thereof against payment therefor, all as contemplated
by, and in conformity with, the acts, proceedings and
documents referred to above.
The foregoing opinions do not pass upon the
matter of compliance with "blue sky" laws or similar laws
relating to the sale or distribution of the Debt Securities
by any underwriters or agents. We hereby authorize and
consent to the use of this opinion as Exhibit 5.2 to the
Registration Statement, and authorize and consent to the
reference to our firm in the Registration Statement and in
the prospectus constituting a part thereof.
We are members of the New York Bar and do not
hold ourselves out as experts on the laws of any other
state. As to matters of Delaware law we have examined or
caused to be examined such documents and satisfied
ourselves as to such matters of law as we have deemed
necessary in order to render this opinion. As to all
matters governed by the laws of the Commonwealth of
Pennsylvania, we have relied upon the opinion of even date
herewith of Michael A. McGrail, Senior Counsel of PP&L,
Inc., the Guarantor's principal subsidiary, which is being
filed as Exhibit 5.1 to the Registration Statement.
In rendering his opinion, Mr. McGrail may rely
upon this opinion as to all matters of New York law
addressed herein as if this opinion were addressed directly
to him. Except as aforesaid, without our prior written
consent, this opinion may not be furnished or quoted to, or
relied upon by, any other person or entity for any purpose.
Very truly yours,
/s/ Reid & Priest LLP
REID & PRIEST LLP
Exhibit 12.1
PP&L RESOURCES, INC. AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(Millions of Dollars, except for Ratios)
12 Months
Ended
June 30, 1997 1996 1995
------------- ---- ----
Fixed charges, as defined:
Interest on long-term debt . . . . . $202 $207 $213
Interest on short-term
debt and other interest . . . . . . 23 17 18
Amortization of debt discount,
expense and premium - net . . . . . 2 2 2
Interest on capital lease obligations
Charged to expense . . . . . . . . . 12 13 15
Capitalized . . . . . . . . . . . . 3 2 2
Estimated interest component of
operating rentals . . . . . . . . . 18 8 8
Proportionate share of fixed charges 1 1 1
of 50-percent-or-less-owned persons ---- ---- ----
$261 $250 $259
Total fixed charges . . . . . . . ==== ==== ====
Earnings, as defined:
Net income . . . . . . . . . . . . . $358 $329 $323
Preferred and Preference Stock
Dividend Requirements . . . . . . . 25 28 28
Less undistributed income of less than - - -
50-percent-owned persons . . . . . . ---- ---- ----
383 357 351
Add (Deduct):
Federal income taxes . . . . . . . . 160 189 195
State income taxes . . . . . . . . . 55 64 62
Deferred income taxes . . . . . . . . 40 10 15
Investment tax credit - net . . . . . (10) (10) (10)
Income taxes on other income and
deductions - net . . . . . . . . . . 0 0 24
Amortization of capitalized interest
on capital leases . . . . . . . . . 3 4 5
Total fixed charges as above
(excluding capitalized interest on 259 248 257
capital lease obligations) . . . . . ---- ---- ----
$890 $862 $899
Total earnings . . . . . . . . . . ==== ==== ====
3.41 3.45 3.47
Ratio of earnings to fixed charges . ==== ==== ====
1994 1993 1992
---- ---- ----
Fixed charges, as defined:
Interest on long-term debt . . . . . . . $214 $226 $240
Interest on short-term debt
and other interest . . . . . . . . . . . 18 13 12
Amortization of debt discount,
expense and premium - net . . . . . . . 2 2 1
Interest on capital lease obligations
Charged to expense . . . . . . . . . . . 12 9 10
Capitalized . . . . . . . . . . . . . . 1 1 2
Estimated interest component of
operating rentals . . . . . . . . . . . 6 5 5
Proportionate share of fixed charges 1 1 1
of 50-percent-or-less-owned persons . . ---- ---- ----
$254 $257 $271
Total fixed charges . . . . . . . . . ==== ==== ====
Earnings, as defined:
Net income . . . . . . . . . . . . . . . $216 $314 $306
Preferred and Preference Stock
Dividend Requirements . . . . . . . . . 28 34 40
Less undistributed income of less than - - -
50-percent-owned persons . . . . . . . . ---- ---- ----
244 348 346
Add (Deduct):
Federal income taxes . . . . . . . . . . 198 163 145
State income taxes . . . . . . . . . . . 77 64 65
Deferred income taxes . . . . . . . . . . (45) 22 33
Investment tax credit - net . . . . . . . (12) (14) (14)
Income taxes on other income and
deductions - net . . . . . . . . . . . . (38) (1) 0
Amortization of capitalized interest
on capital leases . . . . . . . . . . . 9 12 13
Total fixed charges as above
(excluding capitalized interest on 253 256 271
capital lease obligations) . . . . . . . ---- ---- ----
$686 $850 $859
Total earnings . . . . . . . . . . . . ==== ==== ====
2.70 3.31 3.15
Ratio of earnings to fixed charges . . . ==== ==== ====
Exhibit 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the
Prospectus constituting part of this Registration Statement on
Form S-3 of our report dated February 3, 1997 appearing on page
41 of PP&L Resources, Inc.'s Annual Report on Form 10-K for the
year ended December 31, 1996. We also consent to the reference
to us under the heading "Experts" in such Prospectus.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
Philadelphia, Pennsylvania
October 16, 1997
Exhibit 23.4
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of PP&L Resources, Inc. and PP&L Capital Funding, Inc.
on Form S-3 of our report dated February 3, 1995 on the
consolidated statements of income, shareowners' common equity,
and cash flows of Pennsylvania Power & Light Company and its
subsidiaries for the year ended December 31, 1994, prior to
restatement, appearing in the Annual Report on Form 10-K of PP&L
Resources, Inc. for the year ended December 31, 1996 and to the
reference to us under the heading "Experts" in the Prospectus,
which is part of this Registration Statement.
/s/ Deloitte & Touche LLP
Parsippany, New Jersey
October 16, 1997
Exhibit 24.1
PP&L RESOURCES, INC.
ISSUANCE OF DEBT SECURITIES
POWER OF ATTORNEY
-----------------
The undersigned directors of PP&L Resources, Inc., a
Pennsylvania corporation, hereby appoint William F. Hecht, Ronald
E. Hill and Robert J. Grey their true and lawful attorney, and
each of them their true and lawful attorney, with power to act
without the other and with full power of substitution and
resubstitution, to execute for the undersigned directors and in
their names to file with the Securities and Exchange Commission,
Washington, D.C., under provisions of the Securities Act of 1933,
as amended, a registration statement or registration statements
for the registration under provisions of the Securities Act of
1933, as amended, and any other rules, regulations or
requirements of the Securities and Exchange Commission in respect
thereof, of not in excess of $400 million of debt securities of
PP&L Resources, Inc., and any and all amendments thereto, whether
said amendments add to, delete from or otherwise alter any such
registration statement or registration statements, or add or
withdraw any exhibits or schedules to be filed therewith and any
and all instruments in connection therewith. The undersigned
hereby grant to said attorneys and each of them full power and
authority to do and perform in the name of and on behalf of the
undersigned, and in any and all capabilities, any act and thing
whatsoever required or necessary to be done in and about the
premises, as fully and to all intents and purposes as the
undersigned might do, hereby ratifying and approving the acts of
said attorneys and each of them.
IN WITNESS WHEREOF, the undersigned have hereunto set their
hands and seals this 22nd day of January, 1997.
/s/ E. Allen Deaver L.S. /s/ Stuart Heydt L.S.
------------------------- --------------------------
E. Allen Deaver Stuart Heydt
/s/ Nance K. Dicciani L.S. /s/ Clifford L. Jones L.S.
------------------------- --------------------------
Nance K. Dicciani Clifford L. Jones
/s/ William J. Flood L.S. /s/ Ruth Leventhal L.S.
------------------------- --------------------------
William J. Flood Ruth Leventhal
/s/ Elmer D. Gates L.S. /s/ Frank A. Long L.S.
------------------------- --------------------------
Elmer D. Gates Frank A. Long
/s/ Derek C. Hathaway L.S. /s/ Norman Robertson L.S.
------------------------- --------------------------
Derek C. Hathaway Norman Robertson
/s/ William F. Hecht L.S.
-------------------------
William F. Hecht
Exhibit 25.1
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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) ________
----------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------
PP&L RESOURCES, INC.
PP&L CAPITAL FUNDING INC.
(Exact name of obligor as specified in its charter)
PENNSYLVANIA 23-2758192
DELAWARE APPLIED FOR
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
TWO NORTH NINTH STREET
ALLENTOWN, PA 18101-1179
(Address of principal executive offices) (Zip Code)
-----------------------------
DEBT SECURITIES
GUARANTEE OF PP&L CAPITAL FUNDING, INC. DEBT SECURITIES
(Title of the indenture securities)
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<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
New York State Banking Department, State House,
Albany, New York 12110.
Board of Governors of the Federal Reserve System,
Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33
Liberty Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington,
D.C., 20429.
(b) Whether it is authorized to exercise corporate trust
powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe
each such affiliation.
None.
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<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this
Statement of Eligibility.
1. A copy of the Articles of Association of the
Trustee as now in effect, including the Organization Certificate
and the Certificates of Amendment dated February 17, 1969, August
31, 1977, December 31, 1980, September 9, 1982, February 28,
1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form
T-1 filed in connection with Registration Statement No. 333-
06249, which is incorporated by reference).
2. A copy of the Certificate of Authority of the
Trustee to Commence Business (see Exhibit 2 to Form T-1 filed in
connection with Registration Statement No. 33-50010, which is
incorporated by reference. On July 14, 1996, in connection with
the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation,
was renamed The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust
powers being contained in the documents identified above as
Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see
Exhibit 4 to Form T-1 filed in connection with Registration
Statement No. 333-06249, which is incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section
321(b) of the Act (see Exhibit 6 to Form T-1 filed in connection
with Registration Statement No. 33-50010, which is incorporated
by reference. On July 14, 1996, in connection with the merger of
Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was
renamed The Chase Manhattan Bank).
7. A copy of the latest report of condition of the
Trustee, published pursuant to law or the requirements of its
supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act
of 1939 the Trustee, The Chase Manhattan Bank, a corporation
organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the
City of New York and State of New York, on the 6th day of
OCTOBER, 1997.
THE CHASE MANHATTAN BANK
By /s/ Francine Springer
-----------------------------
Francine Springer
Trust Officer
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<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business June 30, 1997, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
DOLLAR AMOUNTS
ASSETS IN MILLIONS
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin . . . . . . . . . . . . . . . $ 13,892
Interest-bearing balances . . . . . . . . . . . 4,282
Securities:
Held to maturity securities . . . . . . . . . . . . 2,857
Available for sale securities . . . . . . . . . . . 34,091
Federal funds sold and securities purchased under
agreements to resell . . . . . . . . . . . . . . 29,970
Loans and lease financing receivables:
Loans and leases, net of unearned income $124,827
Less: Allowance for loan and lease losses 2,753
Less: Allocated transfer risk reserve 13
--------
Loans and leases, net of unearned income,
allowance, and reserve . . . . . . . . . . . . . 122,061
Trading Assets . . . . . . . . . . . . . . . . . . 56,042
Premises and fixed assets (including capitalized
leases) . . . . . . . . . . . . . . . . . . . . 2,904
Other real estate owned . . . . . . . . . . . . . . 306
Investments in unconsolidated subsidiaries and
associated companies . . . . . . . . . . . . . . 232
Customers' liability to this bank on acceptances
outstanding . . . . . . . . . . . . . . . . . . 2,092
Intangible assets . . . . . . . . . . . . . . . . . 1,532
Other assets . . . . . . . . . . . . . . . . . . . 10,448
--------
TOTAL ASSETS . . . . . . . . . . . . . . . . . . . $280,709
========
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<PAGE>
LIABILITIES
Deposits
In domestic offices . . . . . . . . . . . . . . . $91,249
Noninterest-bearing . . . . . $38,157
Interest-bearing . . . . . . . 53,092
-------
In foreign offices, Edge and Agreement
subsidiaries, and IBF's . . . . . . . . . . . . . 70,192
Noninterest-bearing . . . . . $ 3,712
Interest-bearing . . . . . . . 66,480
Federal funds purchased and securities sold
under agreements to repurchase . . . . . . . . . . . 35,185
Demand notes issued to the U.S. Treasury . . . . . . 1,000
Trading liabilities . . . . . . . . . . . . . . . . . 42,307
Other Borrowed money (includes mortgage indebtedness
and obligations under calitalized leases):
With a remaining maturity of one year or less . . 4,593
With a remaining maturity of more than one year
through three years . . . . . . . . . . . . . . 260
With a remaining maturity of more than three years 146
Bank's liability on acceptances executed
and outstanding . . . . . . . . . . . . . . . . . . . 2,092
Subordinated notes and debentures . . . . . . . . . . 5,715
Other liabilities . . . . . . . . . . . . . . . . . . 11,373
TOTAL LIABILITIES . . . . . . . . . . . . . . . . . . 264,112
--------
EQUITY CAPITAL
Perpetual Preferred stock and related surplus . . . . 0
Common stock . . . . . . . . . . . . . . . . . . . . 1,211
Surplus (exclude all surplus related to
preferred stock) . . . . . . . . . . . . . . . . . . 10,283
Undivided profits and capital reserves . . . . . . . 5,280
Net unrealized holding gains (Losses)
on available-for-sale securities . . . . . . . . . . (193)
Cumulative foreign currency translation adjustments . 16
TOTAL EQUITY CAPITAL . . . . . . . . . . . . . . . . 16,597
--------
TOTAL LIABILITIES AND EQUITY CAPITAL . . . . . . . . $280,709
========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued
by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the in-
structions issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR. )
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