SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 12, 1997
PP&L RESOURCES, INC.
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(Exact Name of Registrant as Specified in Its Charter)
Pennsylvania 1-11459 23-2758192
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(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
Two North Ninth Street, Allentown, Pennsylvania 18101-1179
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(Address of principal executive offices)
Registrant's Telephone Number, including Area Code: (610) 774-5151
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ITEM 5. OTHER EVENTS
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On November 12, 1997, PP&L Resources, Inc. (the
"Company") entered in to a Distribution Agreement among the
Company, PP&L Capital Funding, Inc. ("PP&L Capital Funding"),
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, First Chicago Capital Markets, Inc., Goldman, Sachs
& Co. and Morgan Stanley & Co. Incorporated, for the
distribution, from time to time, of up to $400,000,000 aggregate
principal amount of Medium-Term Notes, Series A (the "Notes") of
PP&L Capital Funding. Such Notes will be unconditionally
guaranteed as to payment of principal, premium, if any, and
interest by the Company. The Notes will be issued and sold
pursuant to an Indenture, dated as of November 1, 1997, among the
Company, PP&L Capital Funding and The Chase Manhattan Bank, as
Trustee (the "Indenture"), as supplemented by Supplemental
Indenture No. 1, dated as of the same date (the "Supplemental
Indenture No. 1"). Such Distribution Agreement, Indenture,
Supplemental Indenture No. 1 and an Officers' Certificate
establishing the forms and certain terms of the Notes are
attached hereto as exhibits to this Current Report on Form 8-K
and are incorporated herein by reference.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION
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AND EXHIBITS
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(c) Exhibits
(1) Distribution Agreement, dated November
12, 1997, among PP&L Resources, Inc.,
PP&L Capital Funding, Inc., Merrill
Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, First
Chicago Capital Markets, Inc., Goldman,
Sachs & Co. and Morgan Stanley & Co.
Incorporated.
(4.1) Indenture, dated as of November 1,
1997, among PP&L Resources, Inc.,
PP&L Capital Funding, Inc. and The
Chase Manhattan Bank, as Trustee.
(4.2) Supplemental Indenture No. 1, dated
as of November 1, 1997, among PP&L
Resources, Inc., PP&L Capital
Funding, Inc. and The Chase
Manhattan Bank, as Trustee.
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(4.3) Officers' Certificate establishing
the forms and terms of the Medium-
Term Notes, Series A.
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SIGNATURES
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Pursuant to the requirements of the Securities Exchange Act
of 1934, the Registrant has duly caused this report to be signed
on its behalf by the undersigned hereunto duly authorized.
PP&L Resources, Inc.
Date: November 14, 1997 By: /s/ R.E. Hill
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R.E. Hill
Senior Vice President-Financial
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EXHIBIT INDEX
Exhibit Description
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1 Distribution Agreement, dated November
12, 1997, among PP&L Resources, Inc.,
PP&L Capital Funding, Inc., Merrill
Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, First
Chicago Capital Markets, Inc., Goldman,
Sachs & Co. and Morgan Stanley & Co.
Incorporated.
4.1 Indenture, dated as of November 1,
1997, among PP&L Resources, Inc.,
PP&L Capital Funding, Inc. and The
Chase Manhattan Bank, as Trustee.
4.2 Supplemental Indenture No. 1, dated
as of November 1, 1997, among PP&L
Resources, Inc., PP&L Capital
Funding, Inc. and The Chase
Manhattan Bank, as Trustee.
4.3 Officers' Certificate establishing
the forms and terms of the Medium-
Term Notes, Series A.
Exhibit 1
PP&L Capital Funding, Inc.
$400,000,000
Medium-Term Notes, Series A
Unconditionally Guaranteed
as to Payment of Principal, Premium, if any,
and Interest by PP&L Resources, Inc.
DISTRIBUTION AGREEMENT
November 12, 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.
FIRST CHICAGO CAPITAL MARKETS, INC.,
One First National Plaza,
Chicago, Illinois 60670.
GOLDMAN, SACHS & CO.,
85 Broad Street,
New York, New York 10004.
MORGAN STANLEY & CO. INCORPORATED,
1585 Broadway,
New York, New York 10036.
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, First Chicago Capital Markets, Inc., Goldman, Sachs & Co. and
Morgan Stanley & Co. Incorporated (each, an "Agent", and collectively, the
"Agents") with respect to the issue and sale by the Company of its Medium-Term
Notes, Series A (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.
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The Notes are to be issued pursuant to an Indenture, dated as of
November 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 November 1, 1997 (the "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. 333-38003 and 333-38003-01) 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
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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, 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
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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 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
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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
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
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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 "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.
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(iv) The Company has been duly incorporated and is validly
existing as a corporation in good standing 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 Baa2 by Moody's
Investors Service, Inc. and BBB+ 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.
(c) Additional Certifications. Any certificate signed by any officer of
the Company or the Guarantor and
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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 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
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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.
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
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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 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
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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 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
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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 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
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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 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.
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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:
(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;
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(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 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
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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 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)
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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 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;
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(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 the Guarantor;
(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,
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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 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 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;
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(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 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
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"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.
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.
(x) The statements in the Prospectus, under the caption
"Certain United States Federal Income Tax Considerations" constitute an
accurate description, in general terms, of certain tax considerations
that may be relevant to a holder of a Note.
(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
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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 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:
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(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 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).
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(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 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
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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 or
Sullivan & Cromwell as counsel to the Agents.
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 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
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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 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.
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(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
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
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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.
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
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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 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.
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(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 "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
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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
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
If to First Chicago Capital Markets,
Inc.:
One First National Plaza
Chicago, Illinois 60670
Attention: Corporate Securities Structuring
Facsimile: (312) 732-4172
If to Goldman, Sachs & Co.:
85 Broad Street
New York, New York 10004
Attention: Karen Robertson
Facsimile: (212) 902-3000
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If to Morgan Stanley & Co.
Incorporated:
1585 Broadway - 2nd Floor
New York, New York 10036
Attention: Manager - Continuously Offered Products
Facsimile: (212) 761-0780
With a copy in the case
of Morgan, Stanley & Co.
Incorporated to:
1585 Broadway - 34th Floor
New York, New York 10036
Attention: Peter Cooper - Investment Banking
Information Center
Facsimile: (212) 761-0260
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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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: /s/ Ronald E. Hill
--------------------------------------
Name: Ronald E. Hill
Title: Senior Vice President - Financial
PP&L CAPITAL FUNDING, INC.
By: /s/ John R. Biggar
-------------------------------------
Name: John R. Biggar
Title: Vice President
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<PAGE>
The foregoing Distribution Agreement is hereby confirmed and accepted
as of the date first above writte
n.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Scott Primrose
----------------------------
Name: Scott G. Primrose
Title: Authorized Signatory
FIRST CHICAGO CAPITAL MARKETS, INC.
By: /s/ Evonne W. Taylor
----------------------------
Name: Evonne W. Taylor
Title: Vice President
GOLDMAN, SACHS & CO.
By: /s/ Goldman, Sachs & Co.
----------------------------
Name: Goldman, Sachs & Co.
MORGAN STANLEY & CO. INCORPORATED
By: /s/ Michael Fusco
----------------------------
Name: Michael Fusco
Title: Vice President
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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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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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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............................. *
[FN]
- ---------------------
* As agreed to by the Company and the applicable Agent at
the time of sale.
</FN>
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<PAGE>
SCHEDULE C
PP&L CAPITAL FUNDING, INC.
ADMINISTRATIVE PROCEDURES
for Fixed Rate and Floating Rate Medium-Term Notes, Series A
(Dated as of November 12, 1997)
Medium-Term Notes, Series A (the "Notes") in an aggregate
principal amount of up to $400,000,000 are to be offered on a continuous basis
by PP&L Capital Funding, Inc., a Delaware corporation (the "Company"), to or
through Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated,
First Chicago Capital Markets, Inc., Goldman, Sachs & Co. and Morgan Stanley &
Co. Incorporated (each, an "Agent" and, collectively, the "Agents") pursuant to
a Distribution Agreement, dated November 12, 1997 (the "Distribution
Agreement"), by and among the Company, PP&L Resources, Inc. (the "Guarantor")
and the Agents. Each of the Notes is to be unconditionally guaranteed as to
payment of principal, premium, if any, and interest by the Guarantor pursuant to
guarantees of the Guarantor (the "Guarantees"). The Distribution Agreement
provides both for the sale of Notes by the Company to one or more of the 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 related Agent or Agents),
in which case each such Agent will act as an agent of the Company in soliciting
purchases of Notes.
Unless otherwise agreed by the related Agent or Agents and the
Company, Notes will be purchased by the related Agent or Agents as principal.
Such purchases will be made in accordance with the applicable Terms Agreement as
provided in the Distribution Agreement. If agreed upon by any Agent or Agents
and the Company, the Agent or Agents, acting solely as agent or agents for the
Company and not as principal, will use reasonable efforts to solicit offers to
purchase the Notes. Only those provisions in these Administrative Procedures
that are applicable to the particular role to be performed by the related Agent
or Agents shall apply to the offer and sale of the relevant Notes.
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<PAGE>
The Notes will be issued under an Indenture, dated as of November
1, 1997, as amended, supplemented or modified from time to time (the
"Indenture"), between the Company, the Guarantor and The Chase Manhattan Bank
("Chase"), as trustee (together with any successor in such capacity, the
"Trustee"). The Company and the Guarantor have filed a joint Registration
Statement with the Securities and Exchange Commission (the "Commission")
registering debt securities, including the Notes and the Guarantees (the
"Registration Statement", which term shall include any additional registration
statements filed in connection with the Notes and the Guarantees). The most
recent base prospectus deemed part of the Registration Statement, as
supplemented by a Prospectus supplement relating to the Notes, is herein
referred to as "Prospectus". The most recent supplement to the Prospectus
setting forth the purchase price, interest rate or formula, maturity date and
other terms of the Notes (as applicable) is herein referred to as the "Pricing
Supplement".
The Notes will either be issued (a) in book-entry form and
represented by one or more fully registered Notes without coupons (each, a
"Global Note") delivered to Chase, as agent for The Depository Company ("DTC"),
and recorded in the book-entry system maintained by DTC, or (b) in certificated
form (each, a "Certificated Note") delivered to the investor or other purchaser
thereof or a person designated by such investor or other purchaser.
General procedures relating to the issuance of all Notes are set
forth in Part I hereof. Additionally, Notes issued in book-entry form will be
issued in accordance with the procedures set forth in Part II hereof, as
adjusted from time to time in accordance with changes in DTC's operating
requirements, and Certificated Notes will be issued in accordance with the
procedures set forth in Part III hereof. To the extent any procedure set forth
below conflicts with the provisions of the Notes, the Indenture or the
Distribution Agreement, the relevant provisions of the Notes, the Indenture and
the Distribution Agreement, respectively, shall control. Capitalized terms used
but not otherwise defined herein shall have the meanings ascribed thereto in the
Notes, the Indenture or the Distribution Agreement as the case may be.
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<PAGE>
PART I: PROCEDURES OF GENERAL
APPLICABILITY
Date of Issuance/
Authentication: Each Note will be dated as of the date
of its authentication by the Trustee.
Each Note shall also bear an original
issue date (each, an "Original Issue
Date"). The Original Issue Date shall
remain the same for all Notes
subsequently issued upon transfer,
exchange or substitution of an original
Note regardless of their dates of
authentication.
Price to Public: Unless otherwise agreed to by the
Company and the Agents and specified in a
Pricing Supplement, each Note will be issued
at 100% of the principal amount thereof.
Maturities: Each Note will mature on a date from
nine months to 40 years from its Original
Issue Date (the "Stated Maturity Date")
selected by the investor or other purchaser
and agreed to by the
Company.
Guarantees: Each of the Notes is to be
unconditionally guaranteed as to payment
of principal, premium, if any, and
interest pursuant to the Guarantees of
the Guarantor as set forth in the
Indenture.
Registration: Unless otherwise provided in the
applicable Pricing Supplement, Notes will be
issued only in fully registered form.
Denominations: Unless otherwise provided in the
applicable Pricing Supplement, the Notes
will be issued in denominations of
$1,000 and integral multiples thereof.
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<PAGE>
Interest Rate Bases
applicable to
Floating Rate
Notes: Unless otherwise provided in the
applicable Pricing Supplement, Floating
Rate Notes will bear interest at a rate
or rates determined by reference to the
CMT Rate, the Commercial Paper Rate, the
Federal Funds Rate, LIBOR, the Prime
Rate, the Treasury Rate, or such other
interest rate basis or formula as may be
set forth in applicable Pricing
Supplement, or by reference to two or
more such rates, as adjusted by the
Spread and/or Spread Multiplier, if any,
applicable to such Floating Rate Notes.
Redemption/
Repayment: The Notes will be subject to redemption
by the Company in accordance with the
terms of the Notes, which will be fixed
at the time of sale and set forth in the
applicable Pricing Supplement. If no
Initial Redemption Date is indicated
with respect to a Note, such Note will
not be redeemable prior to its Stated
Maturity Date.
The Notes will be subject to repayment at
the option of the Holders thereof in
accordance with the terms of the Notes,
which will be fixed at the time of sale and
set forth in the applicable Pricing
Supplement. If no Optional Repayment Date is
indicated with respect to a Note, such Note
will not be repayable at the option of the
Holder prior to its Stated Maturity Date.
Calculation of
Interest: In case of Fixed Rate Notes, interest
(including payments for partial periods)
will be calculated and paid on the basis
of a 360-day year of twelve 30-day
months.
The interest rate on each Floating Rate Note
will be calculated by reference to
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<PAGE>
the specified Interest Rate Basis or Bases
plus or minus the applicable Spread, if any,
and/or multiplied by the applicable Spread
Multiplier, if any.
Unless and until otherwise authorized by the
Guarantor and the Company and provided in
the applicable Pricing Supplement, the
interest rate on any Fixed Rate Note will
not exceed 9 1/2% per annum.
Unless otherwise provided in the applicable
Pricing Supplement, interest on each
Floating Rate Note will be calculated by
multiplying its principal amount by an
accrued interest factor. Such accrued
interest factor is computed by adding the
interest factor calculated for each day in
the period for which accrued interest is
being calculated. Unless otherwise provided
in the applicable Pricing Supplement, the
interest factor for each such day is
computed by dividing the interest rate
applicable to such day by 360 if the
Commercial Paper Rate, Federal Funds Rate,
LIBOR or Prime Rate is an applicable
Interest Rate Basis, or by the actual number
of days in the year if the CMT Rate or
Treasury Rate is an applicable Interest Rate
Basis. The interest factor for Notes for
which the interest rate is calculated with
reference to two or more Interest Rate Bases
will be calculated as provided in the
applicable Pricing Supplement.
Interest: General. Each Note will bear interest
in accordance with its terms. Unless
otherwise provided in the applicable
Pricing Supplement, interest on each
Note will accrue from and including the
Original Issue Date of such Note for the
first interest period or from the most
recent Interest Payment Date (as defined
below) to which interest has been paid or
duly provided for all subsequent
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interest periods to but excluding the next
applicable Interest Payment Date or the
Stated Maturity Date or date of earlier
redemption or repayment, as the case may be
(the Stated Maturity Date or date of earlier
redemption or repayment is referred to
herein as the "Maturity Date" with respect
to the principal repayable on such date).
If an Interest Payment Date or the Maturity
Date with respect to any Fixed Rate Note
falls on a day that is not a Business Day
(as defined below), the required payment to
be made on such day need not be made on such
day, but may be made on the next succeeding
Business Day with the same force and effect
as if made on such day, and no interest
shall accrue on such payment for the period
from and after such day to the next
succeeding Business Day. If an Interest
Payment Date other than the Maturity Date
with respect to any Floating Rate Note would
otherwise fall on a day that is not a
Business Day, such Interest Payment Date
will be postponed to the next succeeding
Business Day, except that in the case of a
Note for which LIBOR is an applicable
Interest Rate Basis, if such Business Day
falls in the next succeeding calendar month,
such Interest Payment Date will be the
immediately preceding Business Day. If the
Maturity Date with respect to any Floating
Rate Note falls on a day that is not a
Business Day, the required payment to be
made on such day need not be made on such
day, but may be made on the next succeeding
Business Day with the same force and effect
as if made on such day, and no interest
shall accrue on such payment for the period
from and after the Maturity Date to the next
succeeding Business Day. Unless otherwise
provided in the applicable Pricing
Supplement, "Business Day" means any day,
other than a Saturday or
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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, with
respect to Notes for which LIBOR is an
applicable Interest Rate Basis, such day is
also a London Business Day (as defined
below). "London Business Day" means any day
on which dealings in deposits in United
States Dollars are transacted in the London
interbank market.
Regular Record Dates. Unless otherwise
provided in the applicable Pricing
Supplement, the "Regular Record Date" for a
Fixed Rate Note shall be the January 31 or
July 31 immediately preceding the applicable
Interest Payment Date and the "Regular
Record Date" for a Floating Rate Note shall
be the date 15 calendar days (whether or not
a Business Day) preceding the applicable
Interest Payment Date.
Interest Payment Dates. Interest payments
will be made on each Interest Payment Date
commencing with the first Interest Payment
Date following the Original Issue Date;
provided, however, the first payment of
interest on any Note originally issued
between a Regular Record Date and an
Interest Payment Date will occur on the
Interest Payment Date following the next
succeeding Regular Record Date.
Unless otherwise provided in the applicable
Pricing Supplement, interest payments on
Fixed Rate Notes will be made semiannually
in arrears on February 15 and August 15 of
each year and on the Maturity Date, while
interest payments on Floating Rate Notes
will be made as specified in the Prospectus
and the applicable Pricing Supplement.
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<PAGE>
Acceptance and
Rejection of
Offers from
Solicitation
as Agents: If agreed upon by any Agent and the
Company, then such Agent acting solely
as agent for the Company and not as
principal will solicit purchases of the
Notes. Each Agent will communicate to
the Company, orally or in writing, each
reasonable offer to purchase Notes
solicited by such Agent on an agency
basis, other than those offers rejected
by such Agent. Each Agent has the
right, in its discretion reasonably
exercised, to reject any proposed
purchase of Notes, as a whole or in
part, and any such rejection shall not
be a breach of such Agent's agreement
contained in the Distribution Agreement.
The Company has the sole right to accept
or reject any proposed purchase of
Notes, in whole or in part, and any such
rejection shall not be a breach of the
Company's agreement contained in the
Distribution Agreement. Each Agent has
agreed to make reasonable efforts to
assist the Company in obtaining
performance by each purchaser whose
offer to purchase Notes has been
solicited by such Agent and accepted by
the Company.
Preparation of
Pricing
Supplement: If any offer to purchase a Note is
accepted by the Company, the Company and
the Guarantor will promptly prepare a
Pricing Supplement reflecting the terms
of such Note. Information to be
included in the Pricing Supplement shall
include:
1. the name of the Company and the
name of the Guarantor;
2. the title of the Notes;
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<PAGE>
3. the date of the Pricing Supplement
and the date of the Prospectus to
which the Pricing Supplement
relates;
4. the name of the Offering Agent (as
defined below);
5. whether such Notes are being sold to
the Offering Agent as principal or
to an investor or other purchaser
through the Offering Agent acting as
agent for the Company;
6. with respect to Notes sold to the
Offering Agent as principal,
whether such Notes will be resold
by the Offering Agent to investors
and other purchasers at (i) a fixed
public offering price of 100% of
their principal amount or at (ii)
varying prices related to
prevailing market prices at the
time of resale to be determined by
the Offering Agent;
7. the Offering Agent's discount or
commission;
8. Net proceeds to the Company;
9. the Principal Amount, Original
Issue Date, Stated Maturity Date,
Interest Payment Date(s), Initial
Redemption Date, if any, Initial
Redemption Percentage, if any,
Annual Redemption Percentage
Reduction, if any, Optional
Repayment Date(s), if any, and, in
the case of Fixed Rate Notes, the
Interest Rate, and, in the case of
Floating Rate Notes, the Interest
Rate Basis or Bases, the Day Count
Convention, Index Maturity (if
applicable), Initial Interest Rate,
if any, Maximum Interest Rate, if
any, Minimum Interest Rate, if any,
Initial Interest Reset Date,
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Interest Reset Dates, Spread and/or
Spread Multiplier, if any, and
Calculation Agent; and
10. any other additional provisions of
the Notes material to investors or
other purchasers of the Notes not
otherwise specified in the
Prospectus.
The Company shall endeavor to send such
Pricing Supplement by telecopy or overnight
express (for delivery by the close of
business on the applicable trade date, but
in no event later than 11:00 A.M. New York
City time, on the Business Day following the
applicable trade date) to the Agent which
made or presented the offer to purchase the
applicable Note (in such capacity, the
"Offering Agent") and the Trustee at the
following applicable address: if to Merrill
Lynch & Co., to: Tritech Services, 40
Colonial Drive, Piscataway, New Jersey
08854, Attention: Prospectus Operations/
Nachman Kimerling, (732) 885-2768,
telecopier: (732) 885-2774/5/6; if to First
Chicago Capital Markets, Inc., One First
National Plaza, Chicago, Illinois 60670,
Attention: MTN Desk Securities, Suite 0463,
telecopier: (312) 732-1041; and Goldman,
Sachs & Co., 85 Broad St., New York, New
York 10004, Attention: Karen Robertson,
(212) 902-8401, telecopier: (212) 902-3000;
and Morgan Stanley & Co. Incorporated, 1585
Broadway, 34th Floor, New York, New York
10036, Attention: Peter Cooper -Investment
Banking Information Center, telecopier:
(212) 761-0260; and if to
the Trustee (or Chase), to: 450 W. 33rd
Street, New York, New York 10001,
Attention: Corporate Trustee
Administration, (212) 946-3487,
telecopier: (212) 946-8159. For record
keeping purposes, one copy of such
Pricing Supplement shall also be mailed
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or telecopied to Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith
Incorporated, World Financial Center,
North Tower, 10th Floor, New York, New
York 10281-1310, Attention: MTN Product
Management, (212) 449-7476, telecopier:
(212) 449-2234, with a copy, to each of
Reid & Priest LLP, 40 West 57th Street,
New York, New York 10019-4097,
Attention: Catherine C. Hood, and
Sullivan & Cromwell, 125 Broad Street,
New York, New York 10004, Attention:
Robert B. Hiden, Jr., Esq.
In each instance that a Pricing Supplement
is prepared, the Offering Agent will provide
a copy of such Pric ing Supplement to each
investor or purchaser of the relevant Notes
or its agent. Pursuant to Rule 434 of the
Securities Act of 1933, as amended ("Rule
434"), the Pricing Supplement may be
delivered separately from the Prospectus.
Outdated Pricing Supplements (other than
those retained for files) will be destroyed.
Settlement: The receipt of immediately available
funds by the Company in payment for a
Note and the authentication and delivery
of such Note shall, with respect to such
Note, constitute "settlement". Offers
accepted by the Company will be settled
in three Business Days, or at such time
as the purchaser, the applicable Agent
and the Company shall agree, pursuant to
the timetable for settlement set forth
in Parts II and III hereof under
"Settlement Procedure Timetable" with
respect to Global Notes and Certificated
Notes, respectively (each such date fixed
for settlement is hereinafter referred to as
a "Settlement Date"). If procedures A and B
of the applicable Settlement Procedures with
respect to a particular offer are not
completed on or before the time set forth
under the applicable "Settlement Procedures
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Timetable", such offer shall not be settled
until the Business Day following the
completion of settlement procedures A and B
or such later date as the purchaser and the
Company shall agree.
The foregoing settlement procedures may be
modified with respect to any purchase of
Notes by an Agent as principal if so agreed
by the Company and such Agent.
Procedure for
Changing Rates
or Other
Variable Terms: When a decision has been reached to
change the interest rate or any other
variable term on any Notes being sold by
the Company, the Company will promptly
advise the Agents and the Trustee by
facsimile transmission and the Agents
will forthwith suspend solicitation of
offers to purchase such Notes. The
Agents will telephone the Company with
recommendations as to the changed
interest rates or other variable terms.
At such time as the Company notifies the
Agents and the Trustee of the new
interest rates or other variable terms,
the Agents may resume solicitation of
offers to purchase such Notes. Until
such time, only "indications of
interest" may be recorded. Immediately
after acceptance by the Company of an
offer to purchase Notes at a new
interest rate or new variable term, the
Company, the Offering Agent and the
Trustee shall follow the procedures set
forth under the applicable "Settlement
Procedures".
Suspension of
Solicitation;
Amendment or
Supplement: The Company may instruct the Agents to
suspend solicitation of offers to
purchase Notes at any time. Upon
receipt of such instructions, the Agents
will forthwith suspend solicitation of
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offers to purchase from the Company
until such time as the Company has
advised the Agents that solicitation of
offers to purchase may be resumed. If
the Company or the Guarantor decides to
amend or supplement the Registration
Statement or the Prospectus (other than
to establish or change interest rates or
formulas, maturities, prices or other
similar variable terms with respect to
the Notes), it will promptly advise the
Agents and will furnish the Agents and
their counsel with copies of the
proposed amendment or supplement.
Copies of such amendment or supplement
will be delivered or mailed to the
Agents, their counsel and the Trustee in
quantities which such parties may
reasonably request at the following
respective addresses: Merrill Lynch &
Co., World Financial Center, North
Tower, 10th Floor, New York, New York
10281-1310, Attention: MTN Product
Management, (212) 449-7476, telecopier:
(212) 449-2234; and First Chicago
Capital Markets, Inc., One First
National Plaza, Chicago, Illinois 60670,
Attention: MTN Desk Securities, Suite
0463, telecopier: (312) 732-1041; and
Goldman, Sachs & Co., 85 Broad St.,
New York, New York 10004, Attention:
Money Market Origination
Dept.,(212) 902-9302, telecopier:
(212) 902-0683; and Morgan Stanley & Co.
Incorporated, 1585 Broadway, New York,
New York 10036, Attention: Peter Cooper
-- Investment Banking Information
Center, telecopier: (212) 761-0260; and
if to the Trustee (or Chase), to: 450 W.
33rd Street, New York, New York 10001,
Attention: Corporate Trustee Administration,
(212) 946-3487, telecopier: (212) 946-8159.
For record keeping purposes, one copy of
each such amendment or supplement shall also
be mailed or telecopied to each of Reid &
Priest LLP, 40 West 57th Street, New York,
New York 10019-4097, Attention:
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Catherine C. Hood, and Sullivan & Cromwell,
125 Broad Street, New York, New York 10004,
Attention: Robert B. Hiden, Jr., Esq., (212)
558-3812, telecopier: (212) 558-3588.
In the event that at the time the
solicitation of offers to purchase from the
Company is suspended (other than to
establish or change interest rates or
formulas, maturities, prices or other
similar variable terms with respect to the
Notes) there shall be any offers to purchase
Notes that have been accepted by the Company
which have not been settled, the Company
will promptly advise the Offering Agent and
the Trustee whether such offers may be
settled and whether copies of the Prospectus
as theretofore amended and/or supplemented
as in effect at the time of the suspension
may be delivered in connection with the
settlement of such offers. The Company will
have the sole responsibility for such
decision and for any arrangements which may
be made in the event that the Company
determines that such offers may not be
settled or that copies of such Prospectus
may not be so delivered.
Delivery of
Prospectus and
applicable
Pricing
Supplement: A copy of the most recent Prospectus and
the applicable Pricing Supplement, which
pursuant to Rule 434 may be delivered
separately from the Prospectus, must
accompany or precede the earlier of (a) the
written confirmation of a sale sent to an
investor or other purchaser or its agent and
(b) the delivery of Notes to an investor or
other purchaser or its agent.
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Authenticity of
Signatures: The Agents will have no obligation or
liability to the Company, the Guarantor
or the Trustee in respect of the
authenticity of the signature of any
officer, employee or agent of the
Company, the Guarantor or the Trustee on
any Note or Guarantee.
Documents
Incorporated by
Reference: The Company shall supply the Agents with
an adequate supply of all documents
incorporated by reference in the
Registration Statement and the
Prospectus.
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PART II: PROCEDURES FOR NOTES ISSUED
IN BOOK-ENTRY FORM
In connection with the qualification of Notes issued in book-entry
form for eligibility in the book-entry system maintained by DTC, Chase will
perform the custodial, document control and administrative functions described
below, in accordance with its respective obligations under a Letter of
Representations from the Company, the Guarantor and the Trustee to DTC, dated
November 12, 1997, and a Certificate Agreement, dated December 2, 1988, between
Chase and DTC, as amended (the "Certificate Agreement"), and its obligations as
a participant in DTC, including DTC's SameDay Funds Settlement System ("SDFS").
Issuance: All Fixed Rate Notes issued in book-
entry form having the same Original
Issue Date, Interest Rate, Interest
Payment Dates, redemption and/or
repayment terms, if any, and Stated
Maturity Date (collectively, the "Fixed
Rate Terms") will be represented
initially by a single Global Note; and
all Floating Rate Notes issued in book-
entry form having the same Original
Issue Date, formula for the calculation
of interest (including the Interest Rate
Basis or Bases, which may be the CMT
Rate, the Commercial Paper Rate, the
Federal Funds Rate, LIBOR, the Prime
Rate or the Treasury Rate or any other
interest rate basis or formula, and
Spread and/or Spread Multiplier, if
any), Day Count Convention, Initial
Interest Rate, Index Maturity (if
applicable), Minimum Interest Rate, if
any, Maximum Interest Rate, if any,
redemption and/or repayment terms, if
any, Interest Payment Dates, Initial
Interest Reset Date, Interest Reset
Dates and Stated Maturity
Date(collectively, the "Floating Rate
Terms") will be represented initially by
a single Global Note.
For other variable terms with respect to
the Fixed Rate Notes and Floating Rate
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Notes, see the Prospectus and the applicable
Pricing Supplement.
Owners of beneficial interests in Global
Notes will be entitled to physical delivery
of Certificated Notes equal in principal
amount to their respective beneficial
interests only upon certain limited
circumstances described in the Prospectus.
Identification: The Company has arranged with the CUSIP
Service Bureau of Standard & Poor's
Corporation (the "CUSIP Service Bureau")
for the reservation of one series of
CUSIP numbers, which series consists of
approximately 900 CUSIP numbers which
have been reserved for and relating to
Global Notes, and the Company has
delivered to each of Chase and DTC such
list of such CUSIP numbers. Chase will
assign CUSIP numbers to Global Notes as
described below under Settlement
Procedures B. DTC will notify the CUSIP
Service Bureau periodically of the CUSIP
numbers that Chase has assigned to
Global Notes. Chase will notify the
Company at any time when fewer than 100
of the reserved CUSIP numbers remain
unassigned to Global Notes, and, if it
deems necessary, the Company will
reserve and obtain additional CUSIP
numbers for assignment to Global Notes.
Upon obtaining such additional CUSIP
numbers, the Company will deliver a list
of such additional numbers to Chase and
DTC. Notes issued in book-entry form in
excess of $200,000,000 aggregate
principal amount and otherwise required
to be represented by the same Global
Note will instead be represented by two
or more Global Notes which shall all be
assigned the same CUSIP number.
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Registration: Unless otherwise specified by DTC, each
Global Note will be registered in the
name of Cede & Co., as nominee for DTC,
on the register maintained by Chase
under the Indenture. The beneficial
owner of a Note issued in book-entry
form (i.e., an owner of a beneficial
interest in a Global Note) (or one or
more indirect participants in DTC
designated by such owner) will designate
one or more participants in DTC (with
respect to such Note issued in book-
entry form, the "Participants") to act
as agent for such beneficial owner in
connection with the book-entry system
maintained by DTC, and DTC will record
in book-entry form, in accordance with
instructions provided by such
Participants, a credit balance with
respect to such Note issued in book-
entry form in the account of such
Participants. The ownership interest of
such beneficial owner in such Note
issued in book-entry form will be
recorded through the records of such
Participants or through the separate
records of such Participants and one or
more indirect participants in DTC.
Transfers: Transfers of beneficial ownership
interests in a Global Note will be
accomplished by book entries made by DTC
and, in turn, by Participants (and in
certain cases, one or more indirect
participants in DTC) acting on behalf of
beneficial transferors and transferees
of such Global Note.
Exchanges: Chase may deliver to DTC and the CUSIP
Service Bureau at any time a written
notice specifying (a) the CUSIP numbers
of two or more Global Notes outstanding
on such date that represent Global Notes
having the same Fixed Rate Terms or
Floating Rate Terms, as the case may be
(other than Original Issue Dates), and
for which interest has been paid to the
same date; (b) a date, occurring at
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least 30 days after such written notice is
delivered and at least 30 days before the
next Interest Payment Date for the related
Notes issued in book-entry form, on which
such Global Notes shall be exchanged for a
single replacement Global Note; and (c) a
new CUSIP number, obtained from the Company,
to be assigned to such replacement Global
Note. Upon receipt of such a notice, DTC
will send to its Participants (including
Chase) a written reorganization notice to
the effect that such exchange will occur on
such date. Prior to the specified exchange
date, Chase will deliver to the CUSIP
Service Bureau written notice setting forth
such exchange date and the new CUSIP number
and stating that, as of such exchange date,
the CUSIP numbers of the Global Notes to be
exchanged will no longer be valid. On the
specified exchange date, Chase will exchange
such Global Notes for a single Global Note
bearing the new CUSIP number and the CUSIP
numbers of the exchanged Notes will, in
accordance with CUSIP Service Bureau
procedures, be canceled and not immediately
reassigned. Notwithstanding the foregoing,
if the Global Notes to be exchanged exceed
$200,000,000 in aggregate principal amount,
one replacement Note will be authenticated
and issued to represent each $200,000,000 in
aggregate principal amount of the exchanged
Global Notes and an additional Global Note
or Notes will be authenticated and issued to
represent any remaining principal amount of
such Global Notes (See "Denominations"
below).
Denominations: Unless otherwise provided in the
applicable Pricing Supplement, Notes
issued in book-entry form will be issued
in denominations of $1,000 and integral
multiples thereof. Global Notes will
not be denominated in excess of $200,000,000
aggregate principal amount.
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If one or more Notes are issued in
book-entry form in excess of $200,000,000
aggregate principal amount and would, but
for the preceding sentence, be represented
by a single Global Note, then one Global
Note will be issued to represent each
$200,000,000 in aggregate principal amount
of such Notes issued in book-entry form and
an additional Global Note or Notes will be
issued to represent any remaining aggregate
principal amount of such Note or Notes
issued in book-entry form. In such a case,
each of the Global Notes representing Notes
issued in book-entry form shall be assigned
the same CUSIP number.
Payments of
Principal
and Interest: Payments of Interest Only. Promptly
after each Regular Record Date, Chase
will deliver to the Company and DTC a
written notice specifying by CUSIP
number the amount of interest to be paid
(to the extent known) on each Global
Note on the following Interest Payment
Date (other than an Interest Payment
Date coinciding with the Maturity Date)
and the total of such amounts. DTC will
confirm the amount payable on each
Global Note on such Interest Payment
Date by reference to the appropriate
(daily or weekly) bond reports published
by Standard & Poor's Corporation. On
such Interest Payment Date, the Company
will pay to Chase in immediately
available funds an amount sufficient to
pay the interest then due and owing on
the Global Notes, and upon receipt of
such funds from the Company, Chase in
turn will pay to DTC such total amount
of interest due on such Global Notes
(other than on the Maturity Date) at the
times and in the manner set forth below
under "Manner of Payment".
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Notice of Interest Rates. Promptly after
each Interest Determination Date or
Calculation Date, as the case may be, for
Floating Rate Notes issued in book-entry
form, Chase will notify each of Moody's
Investors Service, Inc. and Standard &
Poor's Corporation of the interest rates
determined as of such Interest Determination
Date.
Payments at Maturity. On or about the first
Business Day of each month, Chase will
deliver to the Company and DTC a written
list of principal, premium, if any, and
interest (to the extent known) to be paid on
each Global Note maturing or otherwise
becoming due in the following month. Chase,
the Company and DTC will confirm the amounts
of such principal, premium, if any, and
interest payments with respect to each such
Global Note on or about the fifth Business
Day preceding the Maturity Date of such
Global Note. On the Maturity Date, the
Company will pay to Chase in immediately
available funds an amount sufficient to make
the required payments, and upon receipt of
such funds Chase in turn will pay to DTC the
principal amount of Global Notes, together
with premium, if any, and interest due on
the Maturity Date, at the times and in the
manner set forth below under "Manner of
Payment". Promptly after payment to DTC of
the principal, premium, if any, and interest
due on the Maturity Date of such Global
Note, the Trustee will cancel such Global
Note and deliver it to the Company with an
appropriate debit advice. On the first
Business Day of each month, the Trustee will
deliver to the Company a written statement
indicating the total principal amount of
outstanding Global Notes as of the close of
business on the immediately preceding
Business Day.
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Manner of Payment. The total amount of any
principal, premium, if any, and interest due
on Global Notes on any Interest Payment Date
or the Maturity Date, as the case may be,
shall be paid by the Company to Chase in
funds available for use by the Trustee no
later than 10:00 A.M., New York City time,
on such date. The Company will make such
payment on such Global Notes to an account
specified by Chase. Upon receipt of such
funds, Chase will pay by separate wire
transfer (using Fedwire message entry
instructions in a form previously specified
by DTC) to an account at the Federal Reserve
Bank of New York previously specified by
DTC, in funds available for immediate use by
DTC, each payment of principal, premium, if
any, and interest due on Global Notes on
such date. Thereafter on such date, DTC will
pay, in accordance with its SDFS operating
procedures then in effect, such amounts in
funds available for immediate use to the
respective Participants in whose names the
beneficial interests in such Global Notes
are recorded in the book-entry system
maintained by DTC. Neither the Company, the
Guarantor nor Chase shall have any
responsibility or liability for the payment
by DTC of the principal of, or premium, if
any, or interest on, the Global Notes.
Withholding Taxes. The amount of any taxes
required under applicable law to be withheld
from any interest payment on a Global Note
will be determined and withheld by the
Participant, indirect participant in DTC or
other Person responsible for forwarding
payments and materials directly to the
beneficial owner of such Global Note.
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Settlement
Procedures: Settlement Procedures with regard to
each Note in book-entry form sold by an
Agent, as agent of the Company, or
purchased by an Agent, as principal,
will be as follows:
A. The Offering Agent will advise the
Company by telephone, confirmed by
facsimile, of the following
settlement information:
1. Principal amount and
Authorized Denomination.
2. (a) Fixed Interest Notes:
(i) Interest Rate.
(ii) Interest Payment Dates.
(b) Floating Rate Notes:
(i) Whether such Note is a
Regular Floating Rate
Note, Inverse Floating
Rate Note or Floating
Rate/Fixed Rate Note.
(ii) Interest Rate Basis or
Bases.
(iii) Initial Interest Rate.
(iv) Spread and/or Spread
Multiplier, if any.
(v) Initial Interest Reset
Date and Interest Reset
Dates.
(vi) Interest Payment Dates.
(vii) Index Maturity, if any.
(viii) Maximum and/or Minimum
Interest Rates, if any.
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(ix) Day Count Convention.
(x) Calculation Agent.
(xi) Fixed Rate Commencement
Date, if any, and Fixed
Interest Rate, if any.
(xii) Other terms, if any.
4. Price to public, if any, of
such Note (or whether such
Note is being offered at
varying prices relating to
prevailing market prices at
time of resale as
determined by the Offering
Agent).
5. Trade Date.
6. Settlement Date (Original
Issue Date).
7. Stated Maturity Date.
8. Redemption provisions, if any.
9. Repayment provisions, if any.
10. Net proceeds to the Company.
11. The Offering Agent's
discount or commission.
12. Whether such Note is being
sold to the Offering Agent
as principal or to an
investor or other purchaser
through the Offering Agent
acting as agent for the
Company.
13. Such other information
specified with respect to
such Note (whether by
Addendum or otherwise).
B. The Company will advise Chase by
facsimile transmission or other
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electronic transmission of the
above settlement information
received from the Offering Agent,
and the name of the Offering Agent.
Chase will assign a CUSIP number to
the Global Note representing such
Note. Chase will also advise the
Offering Agent of the CUSIP number
assigned to the Global Note.
C. The Company will transmit to the
Trustee by telex or facsimile its
written request for the
authentication and delivery of such
Global Note and the name of such
Agent. Each such request by the
Company shall constitute a
representation and warranty by the
Company to the Trustee that (i) the
Global Note representing such Book-
Entry Note is then, and at the time
of issuance and sale thereof will
be, duly authorized for issuance
and sale by the Company, (ii) the
Global Note representing such Book-
Entry Note will conform to the
terms of the Indenture, (iii) such
Global Note, when completed,
authenticated and delivered
pursuant to the Indenture, will
constitute the valid and legally
binding obligation of the Company,
and (iv) upon authentication and
delivery of such Global Note, the
aggregate principal amount of all
Notes initially offered and issued
under the Indenture will not exceed
$400,000,000 (except for Notes
represented by and authenticated
and delivered in exchange for or in
lieu of Notes in accordance with
the Indenture).
Chase will communicate to DTC and
the Offering Agent through DTC's
Participant Terminal System a
pending deposit message specifying
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the following settlement
information:
1. The information set forth in
the Settlement Procedure A.
2. Identification numbers of
the participant accounts
maintained by DTC on behalf
of the Trustee and the
Offering Agent.
3. Identification of the Global
Note as a Fixed Rate Global
Note or Floating Rate Global
Note.
4. Initial Interest Payment Date
for such Note, number of days
by which such date succeeds
the related record date for
DTC purposes (or, in the case
of Floating Rate Notes which
reset daily or weekly, the
date five calendar days
preceding the Interest Payment
Date) and, if then calculable,
the amount of interest payable
on such Interest Payment Date
(which amount shall have been
confirmed by Chase).
5. CUSIP number of the Global
Note representing such
Note.
6. Whether such Global Note
represents any other Notes
issued or to be issued in
book-entry form.
DTC will arrange for each pending
deposit message described above to
be transmitted to Standard & Poor's
Corporation, which will use the
information in the message to
include certain terms of the related
Global Note in the
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appropriate daily bond report
published by Standard & Poor's
Corporation.
D. Chase will complete the Global Note
and send a copy thereof by facsimile
to the Company for verification.
In the event any Note is incorrectly
prepared, Chase shall promptly
prepare a corrected Note in exchange
for such incorrectly prepared Note.
Chase will authenticate the Global
Note representing such Note.
E. DTC will credit such Note to the
participant account of Chase
maintained by DTC.
F. Chase will enter an SDFS deliver
order through DTC's Participant
Terminal System instructing DTC (i)
to debit such Note to Chase's
participant account and credit such
Note to Chase's participant account
of the Offering Agent maintained by
DTC and (ii) to debit the
settlement account of the Offering
Agent and credit the settlement
account of Chase maintained by DTC,
in an amount equal to the price of
such Note less such Offering
Agent's discount or underwriting
commission, as applicable. Any
entry of such a deliver order shall
be deemed to constitute a
representation and warranty by
Chase to DTC that (i) the Global
Note representing such Note has
been issued and authenticated and
(ii) Chase is holding such Global
Note pursuant to the Certificate
Agreement.
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G. In the case of Notes in book-entry
form sold through the Offering
Agent, as agent, the Offering Agent
will enter an SDFS deliver order
through DTC's Participant Terminal
System instructing DTC (i) to debit
such Note to the Offering Agent's
participant account and credit such
Note to the participant account of
the Participants maintained by DTC
and (ii) to debit the settlement
accounts of such Participants and
credit the settlement account of
the Offering Agent maintained by
DTC in an amount equal to the
initial public offering price of
such Note.
H. Transfers of funds in accordance
with SDFS deliver orders described
in Settlement Procedures F and G
will be settled in accordance with
SDFS operating procedures in effect
on the Settlement Date.
I. Upon receipt, Chase will pay the
Company, by wire transfer of
immediately available funds to an
account specified by the Company to
Chase from time to time, the amount
transferred to Chase in accordance
with Settlement Procedure F.
J. Chase will send a copy of the
Global Note by telecopy to the
Company together with a statement
setting forth the principal amount
of Notes Outstanding as of the
related Settlement Date after
giving effect to such transaction
and all other offers to purchase
Notes of which the Company has
advised Chase but which have not
yet been settled.
K. If such Note was sold through the
Offering Agent, as agent, the
Offering Agent will confirm the
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purchase of such Note to the
investor or other purchaser either
by transmitting to the Participant
with respect to such Note a
confirmation order through DTC's
Participant Terminal System or by
mailing a written confirmation to
such investor or other purchaser.
Settlement
Procedures
Timetable: For offers to purchase Notes accepted by
the Company, Settlement Procedures A
through K set forth above shall be com-
pleted as soon as possible following the
trade but not later than the respective
times (New York City time) set forth
below:
Settlement
Procedure Time
A 11:00 A.M. on the trade
date or within one hour
following the trade
B 12:00 noon on the trade
date or within one hour
following the trade
C No later than the close of
business on the trade date
D 9:00 A.M. on Settlement
Date
E 10:00 A.M. on Settlement
Date
F-G No later than 2:00 P.M. on
Settlement Date
H 4:00 P.M. on Settlement
Date
I-K 5:00 P.M. on Settlement
Date
Settlement Procedure H is subject to
extension in accordance with any
extension of Fedwire closing deadlines and
in the other events specified in the SDFS
operating procedures in effect on the
Settlement Date.
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If settlement of a Note issued in book-entry
form is rescheduled or canceled, Chase will
deliver to DTC, through DTC's Participant
Terminal System, a cancellation message to
such effect by no later than 5:00 P.M., New
York City time, on the Business Day
immediately preceding the scheduled
Settlement Date.
Failure to Settle: If Chase fails to enter an SDFS deliver
order with respect to a Note issued in
book-entry form pursuant to Settlement
Procedure F, Chase may deliver to DTC,
through DTC's Participant Terminal
System, as soon as practicable, a
withdrawal message instructing DTC to
debit such Note to the participant
account of Chase maintained at DTC. DTC
will process the withdrawal message,
provided that such participant account
contains a principal amount of the
Global Note representing such Note that
is at least equal to the principal
amount to be debited. If withdrawal
messages are processed with respect to
all the Notes represented by a Global
Note, the Trustee will mark such Global
Note "canceled", make appropriate
entries in its records and send
certification of destruction of such
canceled Global Note to the Company.
The CUSIP number assigned to such Global
Note shall, in accordance with CUSIP
Service Bureau procedures, be canceled
and not immediately reassigned. If
withdrawal messages are processed with
respect to a portion of the Notes
represented by a Global Note, Chase will
exchange such Global Note for two Global
Notes, one of which shall represent the
Global Notes for which withdrawal
messages are processed and shall be
canceled immediately after issuance and the
other of which shall represent the other
Notes previously represented by the
surrendered Global Note and shall bear the
CUSIP number of the surrendered Global Note.
-68-
<PAGE>
In the case of any Note in book-entry form
sold through the Offering Agent, as agent,
if the purchase price for any such Note is
not timely paid to the Participants with
respect thereto by the beneficial investor
or other purchaser thereof (or a person,
including an indirect participant in DTC,
acting on behalf of such investor or other
purchaser), such Participants and, in turn,
the related Offering Agent may enter SDFS
deliver orders through DTC's Participant
Terminal System reversing the orders entered
pursuant to Settlement Procedures F and G,
respectively. Thereafter, Chase will deliver
the withdrawal message and take the related
actions described in the preceding
paragraph. If such failure shall have
occurred for any reason other than default
by the applicable Offering Agent to perform
its obligations hereunder or under the
Distribution Agreement, the Company will
reimburse such Offering Agent on an
equitable basis for its reasonable loss of
the use of funds during the period when the
funds were credited to the account of the
Company.
Notwithstanding the foregoing, upon any
failure to settle with respect to a Note in
book-entry form, DTC may take any actions in
accordance with its SDFS operating
procedures then in effect. In the event of a
failure to settle with respect to a Note
that was to have been represented by a
Global Note also representing other Notes,
the Trustee will provide, in accordance with
Settlement Procedure D, for the
authentication and issuance of a Global Note
representing such remaining Notes and will
make appropriate entries in its
records.
-69-
<PAGE>
PART III: PROCEDURES FOR CERTIFICATED NOTES
Denominations: Unless otherwise provided in the
applicable Pricing Supplement, the
Certificated Notes will be issued in
denominations of $1,000 and integral
multiples thereof.
Payments of
Principal,
Premium, if any,
and Interest: Upon presentment and delivery of the
Certificated Note, Chase upon receipt of
immediately available funds from the
Company will pay the principal of,
premium, if any, and interest on, each
Certificated Note on the Maturity Date
in immediately available funds. All
interest payments on a Certificated
Note, other than interest due on the
Maturity Date, will be made by check
mailed to the address of the person
entitled thereto as such address shall
appear in the Security Register;
provided, however, that Holders of
$10,000,000 or more in aggregate
principal amount of Certificated Notes
(whether having identical or different
terms and provisions) shall be entitled
to receive such interest payments by
wire transfer of immediately available
funds if appropriate wire transfer
instructions have been received in
writing by Chase not less than 15
calendar days prior to the applicable
Interest Payment Date.
Chase will provide monthly to the Company a
list of the principal, premium, if any, and
interest (to the extent known) to be paid on
Certificated Notes maturing in the next
succeeding month. Chase will be responsible
for withholding taxes on interest paid as
required by applicable law.
-70-
<PAGE>
Certificated Notes presented to Chase on the
Maturity Date for payment will be canceled
by the Trustee. All canceled Certificated
Notes held by the Trustee shall be disposed
of by the Trustee in accordance with its
customary procedures, and the Trustee shall
furnish to the Company a certificate with
respect to such disposition.
Settlement
Procedures: Settlement Procedures with regard to
each Certificated Note purchased by an
Agent, as principal, or through an
Agent, as agent, shall be as follows:
A. The Offering Agent will advise the
Company by telephone (and confirm
in writing by facsimile) of the
following Settlement information
with regard to each Certificated
Note:
1. Exact name in which the
Certificated Note(s) is to
be registered (the
"Registered Owner").
2. Exact address or addresses
of the Registered Owner for
delivery, notices and
payments of principal,
premium, if any, and
interest.
3. Taxpayer identification
number of the Registered
Owner.
4. Principal amount and
Authorized Denomination.
5. (a) Fixed Rate Notes:
(i) Interest Rate.
(ii) Interest Payment
Dates.
-71-
<PAGE>
(b) Floating Rate Notes:
(i) Whether such Note
is a Regular
Floating Rate
Note, Inverse
Floating Rate
Note or Floating
Rate/Fixed Rate
Note.
(ii) Interest Rate
Basis or Bases.
(iii) Initial Interest
Rate.
(iv) Spread and/or
Spread Multiplier,
if any.
(v) Initial Interest
Reset Date and
Interest Reset
Dates.
(vi) Interest Payment
Dates.
(vii) Index Maturity, if
any.
(viii) Maximum and/or
Minimum Interest
Rates, if any.
(ix) Day Count
Convention.
(x) Calculation Agent.
(xi) Fixed Rate
Commencement
Date, if any,
and Fixed Interest
Rate, if any.
(xii) Other terms, if
any.
-72-
<PAGE>
6. Price to public of such
Certificated Note (or
whether such Note is
being offered at
varying prices relating
to prevailing market
prices at time of
resale as determined by
the Offering Agent).
7. Trade Date.
8. Settlement Date
(Original Issue Date).
9. Stated Maturity Date.
10. Redemption provisions,
if any.
11. Repayment provisions,
if any.
12. Net proceeds to the
Company.
13. The Offering Agent's
discount or commission.
14. Whether such Note is
being sold to the
Offering Agent as
principal or to an
investor or other
purchaser through the
Offering Agent acting
as agent for the
Company.
15. Such other
information
specified with
respect to such
Note (whether
by Addendum or
otherwise).
B. After receiving such
settlement information from
the Offering Agent, the
-73-
<PAGE>
Company will advise Chase
of the above settlement
information by facsimile
transmission confirmed by
telephone. The Company will
transmit to the Trustee by
telex or facsimile its
written request for the
authentication and delivery
of such Certificated Note
and the name of such Agent.
Each such request by the
Company shall constitute a
representation and warranty
by the Company to the
Trustee that (i) the
Certificated Note is then,
and at the time of issuance
and sale thereof will be,
duly authorized for
issuance and sale by the
Company, (ii) the
Certificated Note will
conform with the terms of
the Indenture, (iii) such
Certificated Note, when
completed, authenticated
and delivered pursuant to
the Indenture, will
constitute the valid and
legally binding obligation
of the Company, and (iv)
upon authentication and
delivery of such
Certificated Note, the
aggregate principal amount
of all Notes initially
offered and issued under
the Indenture will not
exceed $400,000,000 (except
for Notes represented by
and authenticated and
delivered in exchange for
or in lieu of Notes in
accordance with the
Indenture).
C. Chase will complete the
Certificated Note and send
a copy thereof by facsimile
to the Company for
verification.
-74-
<PAGE>
In the event any Note is
incorrectly prepared, Chase
shall promptly prepare a
corrected Note in exchange
for such incorrectly
prepared Note.
The Trustee will
authenticate the
Certificated Note in the
form approved by the
Company and the Offering
Agent, and will make three
copies thereof (herein
called "Stub 1", "Stub 2"
and "Stub 3"):
1. Certificated Note with
the Offering Agent's
confirmation, if traded
on a principal basis,
or the Offering Agent's
customer confirmation,
if traded on an agency
basis.
2. Stub 1 for Trustee.
3. Stub 2 for Offering
Agent.
4. Stub 3 for the Company.
D. With respect to each trade,
the Trustee will deliver the
Certificated Note and Stub 2
thereof to the Offering Agent
at the following applicable
address: Merrill Lynch,
Pierce, Fenner & Smith
Incorporated, Merrill Lynch
Money Markets Clearance, 55
Water Street, Concourse Level,
N.S.C.C. Window, New York, New
York 10041, Attention: Al
Mitchell, (212) 558-2405,
telecopier: (212) 558-2457;
and First Chicago Capital
Markets, Inc., One First
National Plaza, Chicago,
Illinois 60670, Attention:
MTN Desk Securities,
-75-
<PAGE>
Suite 0463, telecopier:
(312) 732-1041; and
Goldman, Sachs & Co., 85
Broad St. 6th Floor, New
York, New York 10004,
Attention: Receive and
Deliver Dept., Attn.
William Connell,(212)
902-8090, telecopier: (212)
902-5178; and Morgan
Stanley & Co. Incorporated,
1585 Broadway, New York,
New York 10036, Attention:
Peter Cooper -Investment
Banking Information Center,
telecopier: (212) 761-
0260; and the Trustee will
keep Stub 1. The Offering
Agent will acknowledge
receipt of the Certificated
Note through a broker's
receipt and will keep Stub
2. Delivery of the
Certificated Note will be
made only against such
acknowledgment of receipt.
Upon determination that the
Certificated Note has been
authorized, delivered and
completed as
aforementioned, the
Offering Agent will wire
the net proceeds of the
Certificated Note after
deduction of its
applicable commission to
the Company pursuant to
standard wire instructions
given by the Company.
E. In the case of a Certificated
Note sold through the Offering
Agent, as agent, the Offering
Agent will deliver such
Certificated Note (with the
confirmation) to the purchaser
against payment in immediately
available funds.
F. The Trustee will send Stub 3
to the Company.
-76-
<PAGE>
Settlement
Procedures
Timetable: For offers to purchase Certificated
Notes accepted by the Company,
Settlement Procedures A through F set
forth above shall be completed as soon
as possible following the trade but not
later than the respective times (New
York City time) set forth below:
Settlement
Procedure Time
A 11:00 A.M. on the trade
date or within one hour
following the trade
B 12:00 noon on the trade
date or within one hour
following the trade
C-D 2:15 P.M. on Settlement
Date
E 3:00 P.M. on Settlement
Date
F 5:00 P.M. on Settlement
Date
Failure to
Settle: In the case of Certificated Notes sold
through the Offering Agent, as agent, if
an investor or other purchaser of a
Certificated Note from the Company shall
either fail to accept delivery of or
make payment for such Certificated Note
on the date fixed for settlement, the
Offering Agent will forthwith notify the
Trustee and the Company by telephone,
confirmed in writing, and return such
Certificated Note to the Trustee.
The Trustee, upon receipt of such
Certificated Note from the Offering Agent,
will immediately advise the Company and the
Company will promptly arrange to credit the
account of the Offering Agent in an amount
of immediately available funds equal to the
amount previously paid to the Company by
such Offering Agent in settlement for
-77-
<PAGE>
such Certificated Note. Such credits will be
made on the Settlement Date if possible, and
in any event not later than the Business Day
following the Settlement Date; provided that
the Company has received notice on the same
day. If such failure shall have occurred for
any reason other than failure by such
Offering Agent to perform its obligations
hereunder or under the Distribution
Agreement, the Company will reimburse such
Offering Agent on an equitable basis for its
reasonable loss of the use of funds during
the period when the funds were credited to
the account of the Company. Immediately upon
receipt of the Certificated Note in respect
of which the failure occurred, the Trustee
will cancel and dispose of such Certificated
Note in accordance with its customary
procedures, make appropriate entries in its
records to reflect the fact that such
Certificated Note was never issued, and
accordingly notify in the Company writing.
-78-
<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)
-79-
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 NOVEMBER 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
<PAGE>
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............................ 29
ARTICLE FIVE Sinking Funds............................................. 29
SECTION 501. Applicability of Article............................... 29
SECTION 502. Satisfaction of Sinking Fund Payments with
Securities............................................. 29
-ii-
<PAGE>
SECTION 503. Redemption of Securities for Sinking Fund.............. 30
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........................... 33
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............................... 37
SECTION 801. Events of Default...................................... 37
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..................... 42
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................................ 43
SECTION 814. Undertaking for Costs.................................. 43
SECTION 815. Waiver of Usury, Stay or Extension Laws................ 43
ARTICLE NINE The Trustee............................................... 44
SECTION 901. Certain Duties and Responsibilities.................... 44
SECTION 902. Notice of Defaults..................................... 45
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......................... 47
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................. 50
SECTION 912. Merger, Conversion, Consolidation or Succession to
Business............................................... 51
SECTION 913. Preferential Collection of Claims Against Company...... 51
SECTION 914. Appointment of Authenticating Agent.................... 51
SECTION 915. Co-trustee and Separate Trustees....................... 53
-iii-
<PAGE>
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...... 55
SECTION 1101. Company or Guarantor May Consolidate, Etc.,
Only on Certain Terms................................. 55
SECTION 1102. Successor Person Substituted.......................... 55
SECTION 1103. Merger into Company................................... 56
ARTICLE TWELVE Supplemental Indentures................................... 56
SECTION 1201. Supplemental Indentures Without Consent of Holders.... 56
SECTION 1202. Supplemental Indentures With Consent of Holders....... 58
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........... 60
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....... 63
SECTION 1307. Action Without Meeting................................ 63
ARTICLE FOURTEEN Guarantee................................................. 63
SECTION 1401. Guarantee............................................. 63
SECTION 1402. Execution and Delivery of Guarantee................... 65
ARTICLE FIFTEEN Immunity of Incorporators, Stockholders, Officers and
Directors............................................................ 65
SECTION 1501. Liability Solely Corporate............................ 65
Testimonium................................................................ 67
Signatures and Seals....................................................... 67
-iv-
<PAGE>
PP&L CAPITAL FUNDING, INC.
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of November 1, 1997
Trust Indenture Act Section Indenture Section
ss.310 (a)(1)............................. 909
(a)(2)............................. 909
(a)(3)............................. 915
(a)(4)............................. Not Applicable
(b)................................ 908
910
ss.311 (a)................................ 913
(b)................................ 913
(c)................................ Not Applicable
ss.312 (a)................................ 1001
(b)................................ 1001
(c)................................ 1001
ss.313 (a)................................ 1002
(b)(1)............................. Not Applicable
(b)(2)............................. 1002
(c)................................ 1002
(d)................................ 1002
ss.314 (a)................................ 1002
(a)(4)............................. 605
(b)................................ Not Applicable
(c)(1)............................. 102
(c)(2)............................. 102
(c)(3)............................. Not Applicable
(d)................................ Not Applicable
(e)................................ 102
ss.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
ss.316 (a)................................ 812
813
(a)(1)(A).......................... 802
812
(a)(1)(B).......................... 813
(a)(2)............................. Not Applicable
(b)................................ 808
ss.317 (a)(1)............................. 803
(a)(2)............................. 804
(b)................................ 603
ss.318 (a)................................ 107
-v-
<PAGE>
INDENTURE, dated as of November 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 (except as otherwise contemplated
herein), as follows:
<PAGE>
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 commit-
tee 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 an 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 con-
templated 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 of any
series; 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:/s/ John R. Biggar
-------------------------
Name: John R. Biggar
[SEAL] Title: Vice President
ATTEST:
/s/ Robert J. Grey
- ---------------------------
PP&L RESOURCES, INC.
By:/s/ Ronald E. Hill
-------------------------
[SEAL] Name: Ronald E. Hill
Title: Senior Vice
President - Financial
ATTEST:
/s/ Diane M. Koch
- ---------------------------
THE CHASE MANHATTAN BANK,
as Trustee
By:/s/ Francine Springer
-------------------------
Name: Francine Springer
Title: Assistant Vice
President
[SEAL]
ATTEST
/s/ R. Sarubbi
- ---------------------------
R. Sarubbi
Trust Officer
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 NOVEMBER 1, 1997
SUPPLEMENTAL TO THE INDENTURE
DATED AS OF NOVEMBER 1, 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 November 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"), 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 November 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.
<PAGE>
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
2
<PAGE>
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
3
<PAGE>
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
4
<PAGE>
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
5
<PAGE>
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.
6
<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:/s/ John R. Biggar
---------------------------
Name: John R. Biggar
Title: Vice President
[SEAL]
ATTEST:
/s/ Robert J. Grey
------------------------------
PP&L RESOURCES, INC.
By:/s/ Ronald E. Hill
--------------------------
Name: Ronald E. Hill
Title: Senior Vice
President - Financial
[SEAL]
ATTEST:
/s/ Diane M. Koch
------------------------------
THE CHASE MANHATTAN BANK,
as Trustee
By:/s/ Francine Springer
---------------------------
Name: Francine Springer
[SEAL] Title: Assistant Vice
President
ATTEST:
/s/ R. Sarubbi
-------------------------
R. Sarubbi
Trust Officer
Exhibit 4.3
OFFICERS' CERTIFICATE
(UNDER SECTION 301 OF THE INDENTURE OF
PP&L CAPITAL FUNDING, INC. AND PP&L RESOURCES, INC.)
The undersigned R.E. Hill, President of PP&L CAPITAL
FUNDING, INC. (the "Company"), in accordance with Section 301 of
the Indenture, dated as of November 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 November
1, 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 James E. Abel, Treasurer 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 November 12, 1997 among the Company,
the Guarantor, Merrill Lynch & Co., Merrill Lynch,
Pierce Fenner & Smith Incorporated and certain other
Agents named therein; provided, however, that in no
event shall any Note have a Stated Maturity that is
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 each Floating Rate Note shall
bear interest at a rate or rates related to an
ascertainable market-based rate): 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, 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 Reset Period, the Interest Reset
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); 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 February 15 and August 15, and the
Regular Record Dates with respect to such Interest
Payment Dates shall be January 31 and July 31,
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 fifteenth calendar day
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; in connection with any
repayment at the option of the Holder, the Company will
comply with the applicable requirements, if any, of
Section 14(e) of the Exchange Act and the rules of the
Commission promulgated thereunder, and any other
securities laws or regulations in connection with any
such repayment;
(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 the 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 in 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 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; none of the
Company, the Trustee, any Paying Agent or 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 12th day of November, 1997.
/s/ R.E. Hill
-----------------------------------
Name: R.E. Hill
Title: President
/s/ James E. Abel
-----------------------------------
Name: James E. Abel
Title: Treasurer
<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.
Original Issue Date: Redeemable: Yes__ No__
Stated Maturity: Initial Redemption Date:
Interest Rate: Initial Redemption Price:
Interest Payment Dates: Annual Redemption Percentage Reduction: %
Issue Price (%): Repayable at Option of the Holder: Yes__ No__
Regular Record Dates: Option Repayment Date(s):
Repayment Price: 100%
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. Interest on this
Security 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 actual
days elapsed during such period.
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 (a) if
such Person shall be a securities depositary, 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
and (b) if such Person is a Holder of $10,000,000 or more in
aggregate principal amount of Securities of this series such
payment may be in immediately available funds by wire transfer to
such account as may have been designated in writing by the Person
entitled thereto as set forth herein in time for the Paying Agent
to make such payments in accordance with its normal procedures.
Any such designation for wire transfer purposes shall be made by
filing the appropriate information with the Trustee at its
Corporate Trust Office in The City of New York not less than
fifteen calendar days prior to the applicable payment date and,
unless revoked by written notice to the Trustee received on or
prior to the Regular Record Date immediately preceding the
applicable Interest Payment Date, shall remain in effect with
respect to any further interest payments (other than interest
payments at Maturity) with respect to this Security payable to
such Holder. 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 November 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.]
Notice of redemption (other than at the option 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 this Security is specified on the face hereof to be
repayable at the Option of the Holder, this Security will be so
repaid in whole or in part in increments of $1,000, provided that
the remaining principal amount of any Security surrendered for
partial repayment shall be at least $1,000, on any Option
Repayment Date (as stated on the face hereof), at the option of
the Holder, at 100% of the principal amount to be repaid, plus
accrued interest, if any, to the repayment date. In order for
the exercise of the option to be effective and the Security to be
repaid, the Company must receive at the applicable address of the
Trustee set forth below, or at such other place or places of
which the Company shall from time to time notify the Holder of
this Security, on or before the thirtieth, but not earlier than
the sixtieth calendar day, or, if such day is not a Business Day,
the next succeeding Business Day, prior to the repayment date,
either (i) this Security, with the form below entitled "Option to
Elect Repayment" duly completed, or (ii) a telegram, telex,
facsimile transmission, or letter from a member of a national
securities exchange or the National Association of Securities
Dealers, Inc. or a commercial bank or a trust company in the
United States of America setting forth (a) the name, address, and
telephone number of the Holder of this Security, (b) the
principal amount of this Security and the amount of this Security
to be repaid, (c) a statement that the option to elect repayment
is being exercised thereby, and (d) a guarantee stating that the
Trustee on behalf of the Company will receive this Security, with
the form below entitled "Option to Elect Repayment" duly
completed, not later than five Business Days after the date of
such telegram, telex, facsimile transmission, or letter (and this
Security and form duly completed are received by the Trustee on
behalf of the Company by such fifth Business Day). Any such
election shall be irrevocable. The address to which such
deliveries are to be made is The Chase Manhattan Bank, Attention:
Corporate Trustee Administration Department, 450 West 33rd
Street, New York, New York 10001 (or, at such other places as
the Company shall notify the Holders of the Securities). All
questions as to the validity, eligibility (including time of
receipt) and acceptance of any Security for repayment will be
determined by the Company, whose determination will be final and
binding.
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 and herein 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 (subject to Sections 305 and 307 of the Indenture),
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, 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 or other city in which is located any Paying
Agent for the Securities of this series. 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:
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.
__________
<PAGE>
OPTION TO ELECT REPAYMENT
[TO BE COMPLETED ONLY IF THIS NOTE IS REPAYABLE
AT THE OPTION OF THE HOLDER AND THE HOLDER
ELECTS TO EXERCISE SUCH RIGHTS]
The undersigned hereby irrevocably requests and instructs the
Company to repay the within Security (or portion thereof
specified below) pursuant to its terms at a price equal to the
principal amount thereof, together with interest to the repayment
date, to the undersigned, at
_________________________________________________________________
_________________________________________________________________
(Please print or type name and address of the undersigned)
For this Security to be repaid the Company must receive at the
Corporate Trust Office of the Trustee in The City of New York or
at such other place or places of which the Company shall from
time to time notify the Holder of the within Security, on or
before the thirtieth, but not earlier than the sixtieth, calendar
day, or, if such day is not a Business Day, the next succeeding
Business Day, prior to the repayment date, (i) this Security,
with this "Option to Elect Repayment" form duly completed, or
(ii) a telegram, telex, facsimile transmission, or letter from a
member of a national securities exchange or the National
Association of Securities Dealers, Inc. or a commercial bank or a
trust company in the United States of America setting forth (a)
the name, address, and telephone number of the Holder of the
Security, (b) the principal amount of the Security and the amount
of the Security to be repaid, (c) a statement that the option to
elect repayment is being exercised thereby, and (d) a guarantee
stating that the Security to be repaid with this form duly
completed will be received by the Trustee on behalf of the
Company not later than five Business Days after the date of such
telegram, telex, facsimile transmission, or letter (and such
Security and form duly completed are received by the Trustee on
behalf of the Company by such fifth Business Day). Exercise of
the repayment option by the Holder shall be irrevocable.
If less than the entire principal amount of the within Security
is to be repaid, specify the portion thereof (which shall be an
integral multiple of $1,000) which the Holder elects to have
repaid: ______________________________; and specify the
denomination or denominations (which shall be $1,000 or an
integral multiple thereof) of the Security or Securities to be
issued to the Holder for the portion of the within Security or
Securities to be issued to the Holder for the portion of the
within Security not being repaid (in the absence of any
specification, one such Security will be issued for the portion
not being repaid):
______________________________ Date:_______________
Notice: The signature to this
Option to Elect Repayment must
correspond with the name as writ-
ten upon the face of the Security
in every particular without alter-
ation or enlargement or any other
change whatsoever.
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: Interest Payment Dates:
Stated Maturity: Regular Record Dates:
Issue Price (%): Initial Interest Reset Date:
Designation: Interest Reset Dates:
-- Regular Floating Rate Note: Interest Reset Period:
-- Floating Rate/Fixed Rate Note: Index Maturity:
Fixed Rate Commencement Date: Spread (expressed in
Fixed Interest Rate: basis points): +/-
-- Inverse Floating Rate Note: Calculation Agent:
Fixed Interest Rate: Day Count Convention:
Initial Interest Rate: -- Actual/360 for the period from
Interest Rate Basis: ______________ to ______________
-- CMT Rate: -- Actual/Actual for the period
Designated CMT Maturity Index: from
Designated CMT Telerate Page: ______________ to ______________
-- Commercial Paper Rate: -- 30/360 for the period from
-- Federal Funds Rate: ______________ to ______________
-- LIBOR: Spread Multiplier:
Designated LIBOR Page: Redeemable: Yes__ No__
LIBOR Reuters __ Initial Redemption Date:
LIBOR Telerate __ Initial Redemption Price:
-- Prime Rate: Annual Redemption Percentage
-- Treasury Rate: Reduction:
Two or More Interest Rate Bases: Repayable at Option of
Yes__ No__ the Holder: Yes__ No__
Specify calculation of interest Option Repayment Dates(s):
factor: Repayment Price: 100%
Maximum Interest Rate: Other/Additional Provisions:
Minimum Interest Rate:
Interest Payment Period:
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 (a) if
such Person shall be a securities depositary, 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
and (b) if such Person is a Holder of $10,000,000 or more in
aggregate principal amount of Securities of this series such
payment may be in immediately available funds by wire transfer to
such account as may have been designated in writing by the Person
entitled thereto as set forth herein in time for the Paying Agent
to make such payments in accordance with its normal procedures.
Any such designation for wire transfer purposes shall be made by
filing the appropriate information with the Trustee at its
Corporate Trust Office in The City of New York not less than
fifteen calendar days prior to the applicable payment date and,
unless revoked by written notice to the Trustee received on or
prior to the Regular Record Date immediately preceding the
applicable Interest Payment Date, shall remain in effect with
respect to any further interest payments (other than interest
payments at Maturity) with respect to this Security payable to
such Holder. 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 November 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 Note, 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 may 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
applicable period for which accrued interest is being calculated.
Unless otherwise specified above, 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. If the interest rate applicable to
this Security is calculated with reference to two or more
Interest Rate Bases, the interest factor for this Security will
be calculated in the manner specified above.
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
quotations 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, or if no
such CMT Rate is then in effect, the interest rate on this
Security will be the Initial Interest Rate. 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-
Nonfinancial," 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, or if no
such Commercial Paper Rate is then in effect, the interest rate
on this Security shall be the Initial Interest Rate.
"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, or if no
Federal Funds Rate is then in effect, the interest rate on this
Security will be the Initial Interest Rate.
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, or if no such LIBOR rate is
then in effect, the interest rate on this Security shall be
the Initial Interest Rate.
"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, or if no such Prime Rate is
then in effect, the interest rate on this Security shall be the
Initial Interest Rate.
"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, or if no such Treasury Rate is then in
effect, the interest rate on this Security will be the Initial
Interest Rate.
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.]
Notice of redemption (other than at the option 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 this Security is specified on the face hereof to be
repayable at the Option of the Holder, this Security will be so
repaid in whole or in part in increments of $1,000, provided that
the remaining principal amount of any Security surrendered for
partial repayment shall be at least $1,000, on any Option
Repayment Date (as stated on the face hereof), at the option of
the Holder, at 100% of the principal amount to be repaid, plus
accrued interest, if any, to the repayment date. In order for
the exercise of the option to be effective and the Security to be
repaid, the Company must receive at the applicable address of the
Trustee set forth below, or at such other place or places of
which the Company shall from time to time notify the Holder of
this Security, on or before the thirtieth, but not earlier than
the sixtieth calendar day, or, if such day is not a Business Day,
the next succeeding Business Day, prior to the repayment date,
either (i) this Security, with the form below entitled "Option to
Elect Repayment" duly completed, or (ii) a telegram, telex,
facsimile transmission, or letter from a member of a national
securities exchange or the National Association of Securities
Dealers, Inc. or a commercial bank or a trust company in the
United States of America setting forth (a) the name, address, and
telephone number of the Holder of this Security, (b) the
principal amount of this Security and the amount of this Security
to be repaid, (c) a statement that the option to elect repayment
is being exercised thereby, and (d) a guarantee stating that the
Trustee on behalf of the Company will receive this Security, with
the form below entitled "Option to Elect Repayment" duly
completed, not later than five Business Days after the date of
such telegram, telex, facsimile transmission, or letter (and this
Security and form duly completed are received by the Trustee on
behalf of the Company by such fifth Business Day). Any such
election shall be irrevocable. The address to which such
deliveries are to be made is The Chase Manhattan Bank, Attention:
Corporate Trustee Administration Department, 450 West 33rd
Street, New York, New York 10001 (or, at such other places as
the Company shall notify the Holders of the Securities). All
questions as to the validity, eligibility (including time of
receipt) and acceptance of any Security for repayment will be
determined by the Company, whose determination will be final and
binding.
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 and herein 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 (subject to Sections 305 and 307 of the Indenture),
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 or other city in which is located any
Paying Agent for the Securities of this series;
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:______________________________
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.
__________
<PAGE>
OPTION TO ELECT REPAYMENT
[TO BE COMPLETED ONLY IF THIS NOTE IS REPAYABLE
AT THE OPTION OF THE HOLDER AND THE HOLDER
ELECTS TO EXERCISE SUCH RIGHTS]
The undersigned hereby irrevocably requests and instructs the
Company to repay the within Security (or portion thereof
specified below) pursuant to its terms at a price equal to the
principal amount thereof, together with interest to the repayment
date, to the undersigned, at
_________________________________________________________________
_________________________________________________________________
(Please print or type name and address of the undersigned)
For this Security to be repaid the Company must receive at the
Corporate Trust Office of the Trustee in the City of New York or
at such other place or places of which the Company shall from
time to time notify the Holder of the within Security, on or
before the thirtieth, but not earlier than the sixtieth, calendar
day, or, if such day is not a Business Day, the next succeeding
Business Day, prior to the repayment date, (i) this Security,
with this "Option to Elect Repayment" form duly completed, or
(ii) a telegram, telex, facsimile transmission, or letter from a
member of a national securities exchange or the National
Association of Securities Dealers, Inc. or a commercial bank or a
trust company in the United States of America setting forth (a)
the name, address, and telephone number of the Holder of the
Security, (b) the principal amount of the Security and the amount
of the Security to be repaid, (c) a statement that the option to
elect repayment is being exercised thereby, and (d) a guarantee
stating that the Security to be repaid with this form duly
completed will be received by the Trustee on behalf of the
Company not later than five Business Days after the date of such
telegram, telex, facsimile transmission, or letter (and such
Security and form duly completed are received by the Trustee on
behalf of the Company by such fifth Business Day). Exercise of
the repayment option by the Holder shall be irrevocable.
If less than the entire principal amount of the within Security
is to be repaid, specify the portion thereof (which shall be an
integral multiple of $1,000) which the Holder elects to have
repaid: ___________________________________________________; and
specify the denomination or denominations (which shall be $1,000
or an integral multiple thereof) of the Security or Securities to
be issued to the Holder for the portion of the within Security or
Securities to be issued to the Holder for the portion of the
within Security not being repaid (in the absence of any
specification, one such Security will be issued for the portion
not being repaid):
______________________________ Date:___________________
Notice: The signature to this
Option to Elect Repayment must
correspond with the name as writ-
ten upon the face of the Security
in every particular without alter-
ation or enlargement or any other
change whatsoever.
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.
