AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 27, 1999
REGISTRATION NOS. 333 , 333 and 333
============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-----------
PP&L RESOURCES, INC. PP&L CAPITAL FUNDING, INC.
(Exact name of registrant as (Exact name of registrant as
specified in its charter) specified in its charter)
Pennsylvania (State or other DELAWARE
jurisdiction of incorporation (State or other jurisdiction
or organization) of incorporation or
23-2758192 organization)
(I.R.S. Employer 23-2926644
Identification No.) (I.R.S. Employer
Identification No.)
TWO NORTH NINTH STREET TWO NORTH NINTH STREET
ALLENTOWN, PENNSYLVANIA ALLENTOWN, PENNSYLVANIA
18101-1179 18101-1179
(610) 774-5151 (610) 774-5151
(Address, including zip code, (Address, including zip code,
and telephone number, and telephone number,
including area code, of including area code, of
registrant's principal registrant's principal
executive offices) executive offices)
PP&L CAPITAL FUNDING TRUST I
(Exact name of registrant as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation or organization)
TO BE APPLIED FOR
(I.R.S. Employer Identification No.)
TWO NORTH NINTH STREET
ALLENTOWN, PENNSYLVANIA 18101-1179
(610) 774-5151
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
JAMES E. ABEL
VICE PRESIDENT-FINANCE AND TREASURER
PP&L RESOURCES, INC.
TWO NORTH NINTH STREET
ALLENTOWN, PENNSYLVANIA 18101-1179
(610) 774-5151
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
------------
COPIES TO:
CATHERINE C. HOOD ROBERT B. HIDEN, JR.
THELEN REID & PRIEST LLP SULLIVAN & CROMWELL
40 WEST 57TH STREET 125 BROAD STREET
NEW YORK, NEW YORK 10019 NEW YORK, NEW YORK 10004
(212) 603-2000 (212) 558-4000
-----------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE
PUBLIC: From time to time after the registration statement
becomes effective, as determined by market and other conditions.
If the only securities being registered on this Form are
being offered pursuant to dividend or interest reinvestment
plans, please check the following box. [ ]
If any of the securities being registered on this Form are
to be offered on a delayed or continuous basis pursuant to Rule
415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment
plans, check the following box.[X]
If this Form is filed to register additional securities for
an offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and
list the Securities Act registration statement number of the
earlier effective registration statement for the same offering.
[ ]
If delivery of the prospectus is expected to be made
pursuant to Rule 434, please check the following box. [ ]
<PAGE>
CALCULATION OF REGISTRATION FEE
===============================================================================
Proposed Proposed
maximum maximum
Title of each class offering aggregate Amount of
of securities to be Amount to be price per unit offering Registration
registered registered (1)(2)(3) price (1)(2)(3) fee (5)
- -------------------------------------------------------------------------------
PP&L Resources Common
Stock, par value
$.01 per share . .
- -------------------------------------------------------------------------------
PP&L Resources Stock
Purchase Contracts .
- -------------------------------------------------------------------------------
PP&L Resources Stock
Purchase Units . .
- -------------------------------------------------------------------------------
PP&L Capital Funding
Debt Securities . .
- -------------------------------------------------------------------------------
PP&L Resources
Guarantees of
PP&L Capital
Funding Debt
Securities
("Guarantees")(4)
- -------------------------------------------------------------------------------
PP&L Capital Funding
Trust I Preferred
Trust Securities
- -------------------------------------------------------------------------------
PP&L Resources
Guarantee
("Preferred
Securities
Guarantee") of
PP&L Capital
Funding Trust I
Preferred Trust
Securities (4)
- -------------------------------------------------------------------------------
PP&L Capital Funding
Subordinated Debt
Securities (4)
- -------------------------------------------------------------------------------
PP&L Resources
Subordinated
Guarantees of
PP&L Capital
Funding
Subordinated Debt
Securities
("Subordinated
Guarantees")(4)
- -------------------------------------------------------------------------------
Total(5) . . . . $1,200,000,000 100% $1,200,000,000 $332,691
===============================================================================
(1) There are being registered hereunder such presently
indeterminate principal amount or number of (a) shares of
Common Stock, Stock Purchase Contracts and Stock Purchase
Units which may be sold from time to time by PP&L Resources,
Inc., (b) Debt Securities which may be sold from time to
time by PP&L Capital Funding, Inc., and which will be
guaranteed as to payment as set forth herein by PP&L
Resources, (c) Preferred Trust Securities which may be sold
from time to time by PP&L Capital Funding Trust I, and which
will be guaranteed as set forth hereunder by PP&L Resources,
and (d) Subordinated Debt Securities which may be sold from
time to time by PP&L Capital Funding, and which will be
guaranteed as to payment as set forth herein by PP&L
Resources. In no event will the aggregate initial offering
price of all Common Stock, Stock Purchase Contracts, Stock
Purchase Units, Debt Securities, Preferred Trust Securities
or Subordinated Debt Securities issued from time to time
pursuant to this Registration Statement exceed
$1,200,000,000. If any such securities are issued at an
original issue discount, then the aggregate initial offering
price as so discounted shall not exceed $1,200,000,000,
notwithstanding that the stated principal amount of such
securities may exceed such amount. In addition, there are
being registered hereunder an indeterminate number of shares
of Common Stock issuable by PP&L Resources upon settlement
of the Stock Purchase Contracts or Stock Purchase Units.
(2) Estimated solely for the purpose of determining the
registration fee. The proposed maximum initial offering
price per security will be determined, from time to time, by
the registrants in connection with the issuance of the
Securities, the Guarantees, the Preferred Securities
Guarantees and the Subordinated Guarantees registered
hereunder.
(3) Exclusive of accrued interest or dividends, if any.
(4) No separate consideration will be received for the
Guarantees, the Preferred Securities Guarantee or the
Subordinated Guarantees. Subordinated Debt Securities may
be purchased by PP&L Capital Funding Trust I with the
proceeds of the sale of Preferred Trust Securities, in which
case no separate consideration will be received for the
Subordinated Debt Securities.
(5) Pursuant to Rule 429 under the Securities Act of 1933, the
combined Prospectus filed as part of this Registration
Statement also relates to $3,000,000 aggregate amount of
Debt Securities registered pursuant to Registration
Statement File Nos. 333-38003 and 333-38003-01.
Registration fees with respect to those Debt Securities were
paid in the amount of $909.
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
===============================================================================
<PAGE>
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED SEPTEMBER 27, 1999
PROSPECTUS PP&L RESOURCES, INC.
PP&L CAPITAL FUNDING, INC.
PP&L CAPITAL FUNDING TRUST I
Two North Ninth Street
Allentown, Pennsylvania 18101-1179
(610) 774-5151
$1,200,000,000
PP&L RESOURCES, INC.
COMMON STOCK, STOCK PURCHASE CONTRACTS AND
STOCK PURCHASE UNITS
PP&L CAPITAL FUNDING, INC.
DEBT SECURITIES AND SUBORDINATED DEBT SECURITIES
GUARANTEED AS TO PAYMENT AS DESCRIBED IN THIS
PROSPECTUS BY PP&L RESOURCES, INC.
PP&L CAPITAL FUNDING TRUST I
PREFERRED TRUST SECURITIES
GUARANTEED AS DESCRIBED
IN THIS PROSPECTUS BY PP&L RESOURCES, INC.
We will provide the specific terms of these securities in supplements to
this prospectus. You should read this prospectus and the supplements carefully
before you invest. This prospectus may not be used to sell securities unless
accompanied by a prospectus supplement.
We may offer the securities directly or through underwriters or agents. The
applicable prospectus supplement will describe the terms of any particular plan
of distribution.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION DETERMINED
THAT THIS PROSPECTUS IS ACCURATE OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
The date of this prospectus is , 1999.
<PAGE>
TABLE OF CONTENTS
PAGE
About this Prospectus ....................................................... 2
Where You Can Find More Information ......................................... 3
PP&L Resources .............................................................. 5
PP&L Capital Funding ........................................................ 7
PP&L Capital Funding Trust I ................................................ 7
Use of Proceeds ............................................................. 8
Ratios of Earnings to Fixed Charges and Earnings to Fixed Charges and
Preferred Dividends ..................................................... 8
Description of PP&L Resources' Capital Stock ................................ 8
Description of Stock Purchase Contracts and Stock Purchase Units ............10
Description of the Debt Securities ..........................................11
Description of the Trust Securities .........................................21
Description of the Preferred Securities Guarantee ...........................29
Description of the Subordinated Debt Securities .............................32
Information Concerning the Trustees .........................................47
Experts .....................................................................47
Validity of the Securities and the Securities Guarantees ....................48
Plan of Distribution ........................................................48
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that PP&L
Resources, Inc. ("PP&L Resources"), PP&L Capital Funding, Inc. ("PP&L Capital
Funding") and PP&L Capital Funding Trust I (the "Trust") filed with the
Securities and Exchange Commission, or SEC, using a "shelf" registration
process. Under this shelf process, we may, from time to time, sell combinations
of the securities described in this prospectus in one or more offerings up to a
total dollar amount of $1,200,000,000. This amount includes $3,000,000 of Debt
Securities registered under an earlier registration statement. This prospectus
provides a general description of the securities we may offer. Each time we sell
securities, we will provide a prospectus supplement that will contain specific
information about the terms of that offering. The prospectus supplement may also
add, update or change information contained in this prospectus. You should read
both this prospectus and any prospectus supplement together with additional
information described under "Where You Can Find More Information."
We may use this prospectus to offer from time to time:
(a) shares of PP&L Resources Common Stock, par value $.01 per share
("Common Stock");
(b) contracts to purchase shares of PP&L Resources Common Stock
("Stock Purchase Contracts"); and
(c) stock purchase units, each representing either (1) a Stock
Purchase Contract or (2) a Stock Purchase Contract and debt
securities or preferred trust securities of third parties (such
as Debt Securities or Subordinated Debt Securities of PP&L
Capital Funding, Preferred Trust Securities of the Trust or
United States Treasury securities) that are pledged to secure the
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<PAGE>
stock purchase unit holders' obligations to purchase Common Stock
under the Stock Purchase Contracts ("Stock Purchase Units").
We may also use this prospectus to offer from time to time:
(a) PP&L Capital Funding's unsecured and unsubordinated debt
securities ("Debt Securities"); and
(b) PP&L Capital Funding's unsecured subordinated debt securities
("Subordinated Debt Securities").
PP&L Resources will unconditionally guarantee the payment of
principal, premium and interest on the PP&L Capital Funding Debt Securities and
Subordinated Debt Securities as described below in "Description of the Debt
Securities - PP&L Resources Guarantees" and "Description of the Subordinated
Debt Securities - Subordinated Guarantees."
We may also use this prospectus to offer from time to time the Trust's
preferred trust securities ("Preferred Trust Securities"). PP&L Resources will
guarantee the Trust's obligations under the Preferred Trust Securities as
described below under "Description of the Preferred Securities Guarantee."
We sometimes refer to the Common Stock, the Stock Purchase Contracts,
the Stock Purchase Units, the Debt Securities, the Subordinated Debt Securities
and the Preferred Trust Securities collectively as the "Securities." In
addition, we sometimes refer to PP&L Resources' guarantees of Debt Securities
("Guarantees"), guarantees of Subordinated Debt Securities ("Subordinated
Guarantees"), and the guarantee of Preferred Trust Securities ("Preferred
Securities Guarantee"), collectively as "Securities Guarantees."
For more detailed information about the Securities and the Securities
Guarantees, you can read the exhibits to the registration statement. Those
exhibits have been either filed with the registration statement or incorporated
by reference to earlier SEC filings listed in the registration statement.
WHERE YOU CAN FIND MORE INFORMATION
AVAILABLE INFORMATION
PP&L Resources files reports, proxy statements and other information
with the SEC. Information filed with the SEC by PP&L Resources can be inspected
and copied at the Public Reference Room maintained by the SEC and at the
following Regional Offices of the SEC:
Public Reference Room New York Regional Office Chicago Regional Office
450 Fifth Street, N.W. 7 World Trade Center Citicorp Center
Room 1024 Suite 1300 500 West Madison Street
Washington, D.C. 20549 New York, New York 10048 Suite 1400
Chicago, Illinois 60661-2551
You may also obtain copies of this information by mail from the Public
Reference Section of the SEC, 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549, at prescribed rates. Further information on the operation of the
SEC's Public Reference Room in Washington, D.C. can be obtained by calling the
SEC at 1-800-SEC-0330.
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The SEC also maintains an Internet world wide web site that contains
reports, proxy statements and other information about issuers, such as PP&L
Resources, who file electronically with the Commission. The address of that site
is http://www.sec.gov.
PP&L Resources Common Stock is listed on the New York Stock Exchange
("NYSE") and the Philadelphia Stock Exchange (symbol: PPL), and reports, proxy
statements and other information concerning PP&L Resources can also be inspected
at the offices of the NYSE at 20 Broad Street, New York, New York 10005 and the
Philadelphia Stock Exchange, 1900 Market Street, Philadelphia, Pennsylvania
19103. In addition, reports, proxy statements and other information concerning
PP&L Resources can be inspected at its offices at Two North Ninth Street,
Allentown, Pennsylvania 18101- 1179. PP&L Resources maintains an Internet site
at http://www.pplresources.com which contains information concerning PP&L
Resources and its affiliates. The information at PP&L Resources' Internet site
is not incorporated in this prospectus by reference, and you should not consider
it a part of this prospectus.
INCORPORATION BY REFERENCE
The rules of the SEC allow us to "incorporate by reference"
information into this prospectus, which means that we can disclose important
information to you by referring you to another document filed separately with
the SEC. The information incorporated by reference is deemed to be part of this
prospectus, and later information that we file with the SEC will automatically
update and supersede that information. This prospectus incorporates by reference
the documents set forth below that have been previously filed with the SEC.
These documents contain important information about PP&L Resources.
SEC FILINGS (FILE NO. 1-11459) PERIOD/DATE
- ------------------------------ -----------
Annual Report on Form 10-K Year ended December 31, 1998
Quarterly Reports on Form 10-Q Quarters ended March 31 and
June 30, 1999
Current Reports on Form 8-K February 18, March 11, April 23,
May 24, June 15, July 28, August 11,
September 3 and September 24, 1999
PP&L Resources' Registration Statement April 27, 1995
on Form 8-B
We are also incorporating by reference additional documents that PP&L
Resources files with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), between
the date of this prospectus and the termination of the offering of the
Securities. In addition, we are also incorporating by reference any additional
documents that PP&L Resources files with the SEC pursuant to these sections of
the Exchange Act after the date of the filing of the registration statement
containing this prospectus, and prior to the effectiveness of the registration
statement.
PP&L Resources will provide without charge to each person, including
any beneficial owner, to whom a copy of this prospectus has been delivered, a
copy of any and all of these filings. You may request a copy of these filings by
writing or telephoning us at:
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PP&L Resources, Inc.
Two North Ninth Street
Allentown, Pennsylvania 18101-1179
Attention: Investor Services Department
Telephone: 1-800-345-3085
We have not included or incorporated by reference any separate
financial statements of PP&L Capital Funding herein. We do not consider those
financial statements to be material to holders of the Debt Securities or
Subordinated Debt Securities because (1) PP&L Capital Funding was formed for the
primary purpose of providing financing for PP&L Resources and its subsidiaries,
(2) PP&L Capital Funding does not currently engage in any independent operations
and (3) PP&L Capital Funding does not currently plan to engage, in the future,
in more than minimal independent operations. See "PP&L Capital Funding." PP&L
Capital Funding has received a "no action" letter from the Staff of the SEC
stating that the Staff would not raise any objection if PP&L Capital Funding
does not file periodic reports under Sections 13 and 15(d) of the Exchange Act.
Accordingly, we do not expect PP&L Capital Funding to file those reports.
We have similarly not included or incorporated by reference any
separate financial statements of the Trust herein. We do not consider those
financial statements to be material to holders of the Preferred Trust Securities
because (1) the Trust is a newly formed special purpose entity and has no
operating history or independent operations, and (2) the Trust is not engaged in
and does not propose to engage in any activity other than holding as trust
assets the Subordinated Debt Securities of PP&L Capital Funding and issuing the
Preferred Trust Securities and the Common Trust Securities. We do not expect the
Trust to file periodic reports under Sections 13 and 15(d) of the Exchange Act.
PP&L RESOURCES
PP&L Resources is a holding company with headquarters in Allentown,
Pennsylvania. Its subsidiaries include PP&L, Inc. ("PP&L"), which provides
electricity delivery service in eastern and central Pennsylvania, generates
electricity and markets wholesale energy in the United States and Canada; PP&L
EnergyPlus Co., L.L.C., which sells competitively priced energy and energy
services to newly deregulated markets; PP&L Global, Inc. ("PP&L Global"), an
international independent power company; PP&L Spectrum, Inc., which provides
energy management services; Penn Fuel Gas, Inc., which provides natural gas
distribution, transmission and storage services and sells propane; PP&L Capital
Funding, which engages in financing for PP&L Resources and its subsidiaries; and
H.T. Lyons, Inc., McClure Company, McCarl's Inc., and Western Mass. Holdings,
Inc., which are mechanical contracting and engineering firms.
PP&L Global, PP&L Resources' principal unregulated subsidiary, has
investments and commitments to invest of approximately $2.4 billion in
distribution, transmission and generation facilities in the United States, the
United Kingdom, Bolivia, Peru, Argentina, Brazil, Spain, Portugal, Chile and El
Salvador. PP&L Global's major investments to date are South Western Electricity
plc, a British regional electric utility company, Empresas Emel, S.A., a Chilean
electric distribution holding company, and DelSur, an El Salvadorian electric
distribution company.
In August 1999, PP&L Global completed its acquisition of Bangor
Hydro-Electric Company's hydroelectric assets, as well as its interest in an
oil-fired generation facility and certain transmission rights, for $89 million.
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PP&L Global has agreed with The Montana Power Company, Portland
General Electric Company and Puget Sound Energy, Inc. to acquire certain Montana
generating assets and related transmission assets, with 2,372 MW of generating
capacity, for a purchase price of $1.672 billion, subject to adjustment under
the terms of the associated asset purchase agreements. PP&L Global expects
to complete the acquisition, which is subject to receipt of state and federal
regulatory approvals, by the end of 1999 or the first quarter of 2000.
The Boards of Directors of PP&L Resources and PP&L have approved the
initiation of a corporate realignment in order to better position PP&L
Resources and its subsidiaries in the new competitive marketplace. The principal
proposed elements of the corporate realignment project include: (1) the
transfer of all of PP&L's electric generating facilities and related assets to
a new generating company subsidiary of PP&L Resources; (2) the transfer
of PP&L's wholesale energy marketing business, along with the energy marketing
business of PP&L EnergyPlus - which currently is a wholly-owned subsidiary of
PP&L - to a new marketing company subsidiary of PP&L Resources; and (3) the
transfer of the U.S. electric generating business of PP&L Global to the new
generating company. As a result of this corporate realignment, PP&L's principal
business would be the transmission and distribution of electricity to serve
retail customers in its franchised territory in eastern and central
Pennsylvania; and PP&L Global's principal business would be the acquisition or
development of both U.S. and international energy projects and the ownership of
international energy projects. With respect to other existing subsidiaries of
PP&L Resources and PP&L, they generally would be aligned in the new corporate
structure according to their principal business functions.
The proposed corporate realignment is subject to the receipt of
favorable regulatory treatment from Pennsylvania Public Utility Commission, the
Federal Energy Regulatory Commission and the Nuclear Regulatory Commission, as
well as certain third-party consents. PP&L Resources expects to complete the
corporate realignment in mid-2000.
HOLDING COMPANY STRUCTURE
PP&L Resources conducts its operations primarily through PP&L and PP&L
Resources' other wholly-owned subsidiaries, and substantially all of PP&L
Resources' consolidated assets are held by PP&L and these other subsidiaries.
Accordingly, PP&L Resources' cash flow, its ability to pay dividends on Common
Stock and its ability to meet its obligations under the Securities Guarantees
are largely dependent upon the earnings of PP&L and the other subsidiaries and
the distribution or other payment of such earnings to PP&L Resources in the form
of dividends, loans or advances or repayment of loans and advances from PP&L
Resources. The subsidiaries are separate and distinct legal entities and have no
obligation to pay any amounts due on any Securities (except for the Securities
issued by such subsidiaries) or to make any funds available for such payment.
Because PP&L Resources is a holding company, its obligations under the
Securities Guarantees will be effectively subordinated to all existing and
future liabilities of its subsidiaries. Therefore, PP&L Resources' rights and
the rights of its shareholders and creditors, including rights of a holder of
any Security under a Securities Guarantee, to participate in the assets of any
subsidiary in the event that such a subsidiary is liquidated or reorganized,
will be subject to the prior claims of such subsidiary's creditors. To the
extent that PP&L Resources may itself be a creditor with recognized claims
against any such subsidiary, PP&L Resources' claims would still be effectively
subordinated to any security interest in, or mortgages or other liens on, the
assets of the subsidiary and would be subordinated to any indebtedness or other
liabilities of the subsidiary senior to that held by PP&L Resources. Although
certain agreements to which PP&L Resources and its subsidiaries are parties
limit the ability to incur additional indebtedness, PP&L Resources and its
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subsidiaries retain the ability to incur substantial additional indebtedness and
other liabilities.
The information above concerning PP&L Resources and its subsidiaries
is only a summary and does not purport to be comprehensive. In addition, certain
statements regarding PP&L Resources and its affiliates contained or incorporated
by reference in this prospectus are "forward-looking statements" within the
meaning of the securities laws. Although PP&L Resources believes that the
expectations reflected in such statements are reasonable, it can give no
assurance that such expectations will prove to have been correct. For additional
information concerning PP&L Resources and its subsidiaries, including certain
assumptions, risks and uncertainties involved in the forward-looking statements
contained or incorporated by reference in this prospectus, you should refer to
the information described in "Where You Can Find More Information."
PP&L Resources' offices are located at Two North Ninth Street,
Allentown, Pennsylvania 18101- 1179 and its telephone number is (610) 774-5151.
PP&L CAPITAL FUNDING
PP&L Capital Funding is a Delaware corporation and a wholly-owned
subsidiary of PP&L Resources. PP&L Capital Funding's primary business is to
provide financing for the operations of PP&L Resources and its subsidiaries.
PP&L Capital Funding's offices are located at Two North Ninth Street,
Allentown, Pennsylvania 18101-1179 and its telephone number is (610) 774-5151.
PP&L CAPITAL FUNDING TRUST I
The Trust is a statutory business trust created under Delaware law
under a trust agreement which is to be amended pursuant to an Amended and
Restated Trust Agreement (as so amended, the "Trust Agreement") among PP&L
Resources, The Chase Manhattan Bank as the Property Trustee, Chase Manhattan
Bank Delaware, as Delaware Trustee and two employees of PP&L Resources as
Administrative Trustees. The Trust exists only to issue and sell its Preferred
Trust Securities and Common Trust Securities, to acquire and hold the
Subordinated Debt Securities as trust assets and to engage in activities
incidental to the foregoing. All of the Common Trust Securities will be owned by
PP&L Resources. The Common Trust Securities will represent at least 3% of the
total capital of the Trust. Payments will be made on the Common Trust Securities
pro rata with the Preferred Trust Securities, except that the Common Trust
Securities' right to payment will be subordinated to the rights of the Preferred
Trust Securities if there is a default under the Trust Agreement resulting from
an event of default under the Subordinated Indenture (as defined herein). The
Trust has a term of approximately 40 years, but may dissolve earlier as provided
in the Trust Agreement. The Trust's business and affairs will be conducted by
its Administrative Trustees, as set forth in the Trust Agreement. The office of
the Delaware Trustee in the State of Delaware is 1201 Market Street, 9th Floor,
Wilmington, Delaware 19801. The Trust's offices are located at Two North Ninth
Street, Allentown, PA 18101-1179, and the telephone number is (610) 774-5151.
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USE OF PROCEEDS
Unless we indicate differently in the applicable prospectus
supplement, the net proceeds from the sale of the Debt Securities, Subordinated
Debt Securities and/or the Preferred Trust Securities will be loaned to PP&L
Resources and/or its subsidiaries. PP&L Resources and/or its subsidiaries are
expected to use the proceeds of such loans, and the proceeds of any other
Securities, for general corporate purposes, including investing in unregulated
business activities and reducing short-term debt incurred to provide interim
financing for such purposes.
RATIOS OF EARNINGS TO FIXED CHARGES AND
EARNINGS TO FIXED CHARGES AND PREFERRED DIVIDENDS
The following table sets forth PP&L Resources' ratio of earnings to
fixed charges and ratio of earnings to fixed charges and preferred dividends for
the periods indicated:
Twelve Months Ended
--------------------------------
June 30, 1999
-------------
Ratio of earnings to fixed
charges........................... 3.43
Ratio of earnings to fixed
charges and preferred
dividends(b)...................... 3.09
Year Ended December 31,
--------------------------------------------
1998(a) 1997 1996 1995 1994
------- ---- ---- ---- ----
Ratio of earnings to fixed
charges........................... 3.48 3.22 3.45 3.47 2.70
Ratio of earnings to fixed
charges and preferred
dividends(b)...................... 3.12 2.85 2.90 3.13 2.26
(a) Excluding extraordinary items. For purposes of these ratios, earnings for
the year ended December 31, 1998 exclude an extraordinary charge of $948
million (after tax) associated with PP&L's restructuring proceedings before
the Pennsylvania Public Utility Commission and the Federal Energy
Regulatory Commission. See PP&L Resources' reports on file with the SEC
pursuant to the Exchange Act as described under "Where You Can Find More
Information" for more information.
(b) Includes distributions on company-obligated mandatorily redeemable
preferred securities of subsidiary trusts holding solely company
debentures.
DESCRIPTION OF PP&L RESOURCES' CAPITAL STOCK
The description below is a summary of certain provisions of the PP&L
Resources' capital stock. The Pennsylvania Business Corporation Law and the
Restated Articles of Incorporation and By-laws of PP&L Resources determine the
rights and privileges of holders of PP&L Resources' capital stock, including
the Common Stock. We encourage you to read such documents, which have been
filed with the SEC, and the Pennsylvania law for more information regarding
such capital stock.
AUTHORIZED CAPITAL
The authorized capital stock of PP&L Resources consists of 390,000,000
shares of Common Stock, par value $.01 per share and 10,000,000 shares of
preferred stock, par value $.01 per share (the "PP&L Resources Preferred
Stock").
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COMMON STOCK
As of September 10, 1999, 143,694,305 shares of Common Stock were
issued and outstanding. The outstanding Common Stock is, and the Common Stock
offered hereby when issued and paid for will be, fully paid and non-assessable.
Dividends. Dividends on the Common Stock will be paid if, when and as
determined by the Board of Directors of PP&L Resources out of funds legally
available for this purpose. The rate and timing of future dividends will depend
upon the future earnings and financial condition of PP&L Resources and its
subsidiaries, including PP&L, and upon other relevant factors affecting PP&L
Resources' dividend policy which PP&L Resources cannot presently determine. As a
practical matter, the ability of PP&L Resources to pay dividends will be
governed by the ability of PP&L Resources' operating subsidiaries to pay
dividends to PP&L Resources. To date, the funds required by PP&L Resources to
enable it to pay dividends on its Common Stock have been derived predominantly
from dividends paid by PP&L to PP&L Resources. In the future, dividends from
subsidiaries other than PP&L may also be a source of funds for dividend payments
by PP&L Resources. The subsidiaries' ability to pay dividends to PP&L Resources
will be subject to the prior rights of the holders of such subsidiaries'
outstanding debt and preferred securities, the availability of earnings and the
needs of their businesses. See "PP&L Resources - Holding Company Structure." The
restrictions on the payment of dividends contained in PP&L's Amended and
Restated Articles of Incorporation and in its first mortgage bond indenture do
not currently limit the amount of regular quarterly dividends PP&L pays on its
common stock.
Voting Rights. Holders of Common Stock are entitled to one vote for
each share held by them on all matters presented to shareowners. Pursuant to
PP&L Resources' Articles of Incorporation, the holders of Common Stock will not
have cumulative voting rights in the election of directors. PP&L Resources'
bylaws provide for a classified board of directors consisting of three classes
as nearly equal in number as may be. Each class holds office until the third
year following the election of such class, and no director may be removed except
for cause upon a two-thirds vote of all outstanding shares. PP&L Resources'
bylaws also provide for certain notice requirements for shareowner nominations
and proposals at annual meetings and preclude shareowners from bringing business
before any special meeting. PP&L Resources' Articles of Incorporation and
certain provisions of Pennsylvania law would require a supermajority vote of
holders or a majority vote of disinterested directors to approve certain
business combinations and other major transactions involving PP&L Resources.
Liquidation Rights. After satisfaction of the preferential liquidation
rights of any PP&L Resources Preferred Stock, the holders of the Common Stock
are entitled to share, ratably, in the distribution of all remaining net assets.
Preemptive and Other Rights. The holders of Common Stock do not have
preemptive rights as to additional issues of Common Stock or conversion rights.
The shares of Common Stock are not subject to redemption or to any further calls
or assessments and are not entitled to the benefit of any sinking fund
provisions.
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PP&L RESOURCES PREFERRED STOCK
PP&L Resources' Board of Directors is authorized, without further
shareowner action, to divide the PP&L Resources Preferred Stock into one or more
classes or series and to determine voting rights, if any, designations,
preferences, limitations and special rights of any class or series. No shares of
Preferred Stock have been issued.
CERTAIN TAX MATTERS
In the opinion of counsel for PP&L Resources, the Common Stock is
exempt from existing personal property taxes in Pennsylvania.
LISTING
The outstanding shares of Common Stock are, and the shares offered
hereby will be, listed on the New York and Philadelphia Stock Exchanges.
TRANSFER AGENTS AND REGISTRARS
The Transfer Agents and Registrars for the Common Stock are PP&L and
Norwest Bank Minnesota, N.A., St. Paul, Minnesota.
DESCRIPTION OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS
PP&L Resources may issue Stock Purchase Contracts representing
contracts obligating holders to purchase from PP&L Resources, and PP&L Resources
to sell to the holders, a specified number of shares of Common Stock at a future
date or dates. The price per share of Common Stock and number of shares of
Common Stock may be fixed at the time the Stock Purchase Contracts are issued or
may be determined by reference to a specific formula set forth in the Stock
Purchase Contracts. The Stock Purchase Contracts may be issued separately or as
a part of other Stock Purchase Units that consist of (a) a Stock Purchase
Contract or (b) a Stock Purchase Contract and debt securities or preferred trust
securities of third parties (including, but not limited to, Debt Securities,
Subordinated Debt Securities, Preferred Trust Securities or United States
Treasury securities), that would secure the holders' obligations to purchase the
Common Stock under the Stock Purchase Contracts. The Stock Purchase Contracts
may require PP&L Resources to make periodic payments to the holders of the Stock
Purchase Units or vice-versa. These payments may be unsecured or prefunded on
some basis. The Stock Purchase Contracts may require holders to secure their
obligations thereunder in a specified manner.
The applicable prospectus supplement will describe the terms of any
Stock Purchase Contracts or Stock Purchase Units.
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DESCRIPTION OF THE DEBT SECURITIES
The following description sets forth certain general terms and
provisions of PP&L Capital Funding's unsecured debt securities, consisting of
notes or debentures, that we may offer by this prospectus ("Debt Securities").
We will describe the particular terms of Debt Securities, and provisions that
vary from those described below, in one or more prospectus supplements.
We may issue the Debt Securities from time to time in the future in
one or more series. We will issue the Debt Securities and the guarantee or
guarantees of PP&L Resources relating thereto (the "Guarantee" or "Guarantees")
under the Indenture, dated as of November 1, 1997 (as such indenture has been
and may be supplemented, the "Indenture"), among PP&L Capital Funding, PP&L
Resources and The Chase Manhattan Bank, as trustee (the "Trustee").
The Indenture is filed as an exhibit to the registration statement.
The Indenture and its associated documents contain the full legal text of the
matters described in this section. Because this section is a summary, it does
not describe every aspect of the Debt Securities or the Indenture. This summary
is subject to and qualified in its entirety by reference to all the provisions
of the Indenture, including definitions of certain terms used in the Indenture.
We also include references in parentheses to certain sections of the Indenture.
Whenever we refer to particular sections or defined terms of the Indenture in
this prospectus or in a prospectus supplement, such sections or defined terms
are incorporated by reference herein or in the prospectus supplement. This
summary also is subject to and qualified by reference to the description of the
particular terms of your securities described in the applicable prospectus
supplement or supplements. The Indenture has been qualified under the Trust
Indenture Act, and you should refer to the Trust Indenture Act for provisions
that apply to the Debt Securities.
GENERAL
We may issue an unlimited amount of Debt Securities or other
securities under the Indenture. The Debt Securities and all other debt
securities issued previously or hereafter under the Indenture are collectively
referred to herein as the "Indenture Securities."
The Debt Securities will be unsecured and unsubordinated obligations
of PP&L Capital Funding, and by the Guarantees will be unconditionally
guaranteed by PP&L Resources as to payment of principal and any interest and
premium. See "--PP&L Resources Guarantees."
Prior to the issuance of each series, certain aspects of the
particular Debt Securities have to be specified in a supplemental indenture, in
a board resolution of PP&L Capital Funding, or in one or more officer's
certificates of PP&L Capital Funding pursuant to a supplemental indenture or a
board resolution. We refer you to the applicable prospectus supplement(s) for a
description of the following terms of the series of Debt Securities:
(a) the title of such Debt Securities;
(b) any limit upon the principal amount of such Debt Securities;
(c) the date or dates on which principal will be payable or how to
determine such dates;
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(d) the rate or rates or method of determination of interest; the
date from which interest will accrue; the dates on which interest
will be payable ("Interest Payment Dates"); and any record dates
for the interest payable on such Interest Payment Dates;
(e) any obligation or option of PP&L Capital Funding to redeem,
purchase or repay Debt Securities, or any option of the Holder to
require PP&L Capital Funding to redeem or repurchase Debt
Securities, and the terms and conditions upon which such Debt
Securities will be redeemed, purchased or repaid;
(f) the denominations in which such Debt Securities will be issuable
(if other than denominations of $1,000 and any integral multiple
thereof);
(g) whether such Debt Securities are to be issued in whole or in part
in the form of one or more global Debt Securities and, if so, the
identity of the depositary for such global Debt Securities; and
(h) any other terms of such Debt Securities.
(See Section 301.)
PP&L RESOURCES GUARANTEES
PP&L Resources will unconditionally guarantee the payment of principal
of and any interest and premium on the Debt Securities, when due and payable,
whether at the stated maturity date, by declaration of acceleration, call for
redemption or otherwise, in accordance with the terms of such Debt Securities
and the Indenture. The Guarantees will remain in effect until the entire
principal of and any premium and interest on the Debt Securities has been paid
in full or otherwise discharged in accordance with the provisions of the
Indenture. (See Article Fourteen.) The Guarantees will be unsecured debt of PP&L
Resources, not subordinated by their terms to any other obligations of PP&L
Resources. See "PP&L Resources--Holding Company Structure," above, however, with
regard to the effect of the holding company structure on the status of PP&L
Resources' obligations compared to obligations of its subsidiaries.
PAYMENT OF DEBT SECURITIES
INTEREST
Unless we indicate differently in a prospectus supplement, we will pay
interest on each Debt Security on each Interest Payment Date by check mailed to
the person in whose name such Debt Security is registered (the registered holder
of any Indenture Security being called a "Holder" in this prospectus) as of the
close of business on the regular record date relating to such Interest Payment
Date, except that interest payable at maturity (whether at stated maturity, upon
redemption or otherwise, "Maturity") will be paid to the person to whom
principal is paid.
However, if we default in paying interest on a Debt Security, we will
pay defaulted interest in either of the two following ways:
(a) We will first propose to the Trustee a payment date for such
defaulted interest. Next, the Trustee will choose a Special
Record Date for determining which Holders are entitled to the
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payment. The Special Record Date will be between 10 and 15 days
before the payment date we propose. Finally, we will pay such
defaulted interest on the payment date to the Holder of the Debt
Security as of the close of business on the Special Record Date.
(b) Alternatively, we can propose to the Trustee any other lawful
manner of payment that is consistent with the requirements of any
securities exchange on which such Debt Securities are listed for
trading. If the Trustee thinks the proposal is practicable,
payment will be made as proposed.
(See Section 307.)
PRINCIPAL
Unless we indicate differently in a prospectus supplement, we will pay
principal of and any interest and premium on the Debt Securities at Maturity
upon presentation of the Debt Securities at the office of The Chase Manhattan
Bank in New York, New York, as our Paying Agent. Any other Paying Agent
initially designated for the Debt Securities of a particular series will be
named in the applicable prospectus supplement.
In our discretion, we may change the place of payment on the Debt
Securities, and may remove any Paying Agent and may appoint one or more
additional Paying Agents (including PP&L Capital Funding, PP&L Resources or any
affiliate of either of them). (See Section 602.)
FORM; TRANSFERS; EXCHANGES
Unless otherwise indicated in a prospectus supplement, the Debt
Securities will be issued:
(a) only in fully registered form;
(b) without interest coupons; and
(c) in denominations that are integral multiples of $1,000. (See
Section 302.)
You may have your Debt Securities divided into Debt Securities of
smaller denominations (of at least $1,000) or combined into Debt Securities of
larger denominations, as long as the total principal amount is not changed. This
is called an "exchange."
You may exchange or transfer Debt Securities at the office of the
Trustee. The Trustee acts as our agent for registering Debt Securities in the
names of holders and transferring debt securities. We may appoint another agent
or act as our own agent for this purpose. The entity performing the role of
maintaining the list of registered holders is called the "Security Registrar."
It will also perform transfers.
In our discretion, we may change the place for registration of
transfer of the Debt Securities and may remove and/or appoint one or more
additional Security Registrars (including PP&L Capital Funding, PP&L Resources
or any affiliate of either of them). (See Sections 305 and 602.)
Except as otherwise provided in a prospectus supplement, there will be
no service charge for any transfer or exchange of the Debt Securities, but you
may be required to pay a sum sufficient to cover any tax or other governmental
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charge payable in connection therewith. We may block the transfer or exchange of
(a) Debt Securities during a period of 15 days prior to giving any notice of
redemption or (b) any Debt Security selected for redemption in whole or in part,
except the unredeemed portion of any Debt Security being redeemed in part. (See
Section 305.)
REDEMPTION
We will set forth any terms for the redemption of Debt Securities in a
prospectus supplement. Unless we indicate differently in a prospectus
supplement, and except with respect to Debt Securities redeemable at the option
of the Holder, Debt Securities will be redeemable upon notice by mail between 30
and 60 days prior to the redemption date. If less than all of the Debt
Securities of any series or any tranche thereof are to be redeemed, the Trustee
will select the Debt Securities to be redeemed. In the absence of any provision
for selection, the Trustee will choose a method of random selection as it deems
fair and appropriate. (See Sections 403 and 404.)
Debt Securities will cease to bear interest on the redemption date.
PP&L Capital Funding will pay the redemption price and any accrued interest once
you surrender the Debt Security for redemption. (See Section 405.) If only part
of a Debt Security is redeemed, the Trustee will deliver to you a new Debt
Security of the same series for the remaining portion without charge. (Section
406.)
We may make any redemption at the option of PP&L Capital Funding
conditional upon the receipt by the Paying Agent, on or prior to the date fixed
for redemption, of money sufficient to pay the redemption price. If the Paying
Agent has not received such money by the date fixed for redemption, PP&L Capital
Funding will not be required to redeem such Debt Securities. (See Section 404.)
EVENTS OF DEFAULT
An "Event of Default" occurs with respect to Indenture Securities of
any series if
(a) we do not pay any interest on any Indenture Securities of the
applicable series within 30 days of the due date;
(b) we do not pay principal or premium on any Indenture Securities of
the applicable series on its due date;
(c) we remain in breach of a covenant (excluding covenants solely
applicable to a specific series) or warranty of the Indenture for
90 days after we receive a written notice of default stating we
are in breach and requiring remedy of the breach; the notice must
be sent by either the Trustee or Holders of 25% of the principal
amount of Indenture Securities of the affected series; the
Trustee or such Holders can agree to extend the 90- day period
and such an agreement to extend will be automatically deemed to
occur if we are diligently pursuing action to correct the
default;
(d) the Guarantees on any Indenture Securities of the applicable
series
(1) cease to be effective (except in accordance with their
terms),
(2) are found in any judicial proceeding to be unenforceable or
invalid, or
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(3) are denied or disaffirmed (except in accordance with their
terms);
(e) we file for bankruptcy or certain other events in bankruptcy,
insolvency, receivership or reorganization occur; or
(f) any other Event of Default specified in the prospectus supplement
occurs.
(See Section 801.)
No Event of Default with respect to the Debt Securities necessarily constitutes
an Event of Default with respect to the Indenture Securities of any other series
issued under the Indenture.
REMEDIES
ACCELERATION
ANY ONE SERIES. If an Event of Default occurs and is continuing with
respect to any one series of Indenture Securities, then either the Trustee or
the Holders of 25% in principal amount of the outstanding Indenture Securities
of such series may declare the principal amount of all of the Indenture
Securities of such series to be due and payable immediately.
MORE THAN ONE SERIES. If an Event of Default occurs and is continuing
with respect to more than one series of Indenture Securities, then either the
Trustee or the Holders of 25% in aggregate principal amount of the outstanding
Indenture Securities of all such series, considered as one class, may make such
declaration of acceleration. Thus, if there is more than one series affected,
the action by 25% in principal amount of the Indenture Securities of any
particular series will not, in itself, be sufficient to make a declaration of
acceleration.
(See Section 802.)
RESCISSION OF ACCELERATION
After the declaration of acceleration has been made and before the
Trustee has obtained a judgment or decree for payment of the money due, such
declaration and its consequences will be rescinded and annulled, if
(a) we pay or deposit with the Trustee a sum sufficient to pay
(1) all overdue interest;
(2) the principal of and any premium which have become due
otherwise than by such declaration of acceleration and
overdue interest thereon;
(3) interest on overdue interest to the extent lawful; and
(4) all amounts due to the Trustee under the Indenture; and
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(b) all Events of Default, other than the nonpayment of the principal
which has become due solely by such declaration of acceleration,
have been cured or waived as provided in the Indenture.
(See Section 802.) For more information as to waiver of defaults, see "--Waiver
of Default and of Compliance" below.
CONTROL BY HOLDERS; LIMITATIONS
Subject to the Indenture, if an Event of Default with respect to the
Indenture Securities of any one series occurs and is continuing, the Holders of
a majority in principal amount of the outstanding Indenture Securities of that
series will have the right to
(a) direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or
(b) exercise any trust or power conferred on the Trustee with respect
to the Indenture Securities of such series.
If an Event of Default is continuing with respect to more than one
series of Indenture Securities, the Holders of a majority in aggregate principal
amount of the outstanding Indenture Securities of all such series, considered as
one class, will have the right to make such direction, and not the Holders of
the Indenture Securities of any one of such series. These rights of Holders to
make direction are subject to the following limitations:
(a) the Holders' directions may not conflict with any law or the
Indenture; and
(b) the Holders' directions may not involve the Trustee in personal
liability where the Trustee believes indemnity is not adequate.
The Trustee may also take any other action it deems proper which is consistent
with the Holders' direction. (See Sections 812 and 903.)
In addition, the Indenture provides that no Holder of any Indenture
Security will have any right to institute any proceeding, judicial or otherwise,
with respect to the Indenture for the appointment of a receiver or for any other
remedy thereunder unless
(a) that Holder has previously given the Trustee written notice of a
continuing Event of Default;
(b) the Holders of 25% in aggregate principal amount of the
outstanding Indenture Securities of all affected series,
considered as one class, have made written request to the Trustee
to institute proceedings in respect of that Event of Default and
have offered the Trustee reasonable indemnity against costs and
liabilities incurred in complying with such request; and
(c) for 60 days after receipt of such notice, the Trustee has failed
to institute any such proceeding and no direction inconsistent
with such request has been given to the Trustee during such
60-day period by the Holders of a majority in aggregate principal
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amount of outstanding Indenture Securities of all affected
series, considered as one class.
Furthermore, no Holder will be entitled to institute any such action if and to
the extent that such action would disturb or prejudice the rights of other
Holders. (See Sections 807 and 903.)
However, each Holder has an absolute and unconditional right to
receive payment when due and to bring a suit to enforce that right. (See
Sections 807 and 808.)
NOTICE OF DEFAULT
The Trustee is required to give the Holders of the Indenture
Securities notice of any default under the Indenture to the extent required by
the Trust Indenture Act, unless such default has been cured or waived; except
that in the case of an Event of Default of the character specified above in
clause (c) under "Events of Default," no such notice shall be given to such
Holders until at least 75 days after the occurrence thereof. (See Section 902.)
The Trust Indenture Act currently permits the Trustee to withhold notices of
default (except for certain payment defaults) if the Trustee in good faith
determines the withholding of such notice to be in the interests of the Holders.
We will furnish the Trustee with an annual statement as to the
compliance by PP&L Capital Funding with the conditions and covenants in the
Indenture. (See Section 605.)
WAIVER OF DEFAULT AND OF COMPLIANCE
The Holders of a majority in aggregate principal amount of the
outstanding Indenture Securities of any series may waive, on behalf of the
Holders of all Indenture Securities of such series, any past default under the
Indenture, except a default in the payment of principal, premium or interest, or
with respect to compliance with certain provisions of the Indenture that cannot
be amended without the consent of the Holder of each outstanding Indenture
Security. (See Section 813.)
Compliance with certain covenants in the Indenture or otherwise
provided with respect to Indenture Securities may be waived by the Holders of a
majority in aggregate principal amount of the affected Indenture Securities,
considered as one class. (See Section 606.)
CONSOLIDATION, MERGER AND CONVEYANCE OF ASSETS AS AN ENTIRETY; NO FINANCIAL
COVENANTS
Subject to the provisions described in the next paragraph, each of
PP&L Capital Funding and PP&L Resources will preserve its corporate existence.
(See Section 604.)
PP&L Capital Funding and PP&L Resources have each agreed not to
consolidate with or merge into any other entity or convey, transfer or lease its
properties and assets substantially as an entirety to any entity unless
(a) the entity formed by such consolidation or into which PP&L
Capital Funding or PP&L Resources, as the case may be, is merged
or the entity which acquires or which leases the property and
assets of PP&L Capital Funding or PP&L Resources, as the case may
be, substantially as an entirety is an entity organized and
existing under the laws of the United States of America or any
State thereof or the District of Columbia, and expressly assumes,
by supplemental indenture, the due and punctual payment of the
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principal, premium and interest on all the outstanding Indenture
Securities (or the Guarantees endorsed thereon, as the case may
be) and the performance of all of the covenants of PP&L Capital
Funding or PP&L Resources, as the case may be, under the
Indenture, and
(b) immediately after giving effect to such transactions, no Event of
Default, and no event which after notice or lapse of time or both
would become an Event of Default, will have occurred and be
continuing. (See Section 1101.)
The Indenture does not prevent or restrict:
(a) any consolidation or merger after the consummation of which PP&L
Capital Funding or PP&L Resources would be the surviving or
resulting entity; or
(b) any conveyance or other transfer, or lease, of any part of the
properties of PP&L Capital Funding or PP&L Resources which does
not constitute the entirety, or substantially the entirety,
thereof. (See Section 1103.)
Neither the Indenture nor the Guarantee contains any financial or
other similar restrictive covenants.
MODIFICATION OF INDENTURE
WITHOUT HOLDER CONSENT. Without the consent of any Holders of
Indenture Securities, PP&L Capital Funding, PP&L Resources and the Trustee may
enter into one or more supplemental indentures for any of the following
purposes:
(a) to evidence the succession of another entity to PP&L Capital
Funding or PP&L Resources; or
(b) to add one or more covenants of PP&L Capital Funding or PP&L
Resources or other provisions for the benefit of the Holders of
all or any series or tranche of Indenture Securities, or to
surrender any right or power conferred upon PP&L Capital Funding
or PP&L Resources; or
(c) to add any additional Events of Default for all or any series of
Indenture Securities; or
(d) to change or eliminate any provision of the Indenture or to add
any new provision to the Indenture that does not adversely affect
the interests of the Holders; or
(e) to provide security for the Indenture Securities of any series;
or
(f) to establish the form or terms of Indenture Securities of any
series or tranche or any Guarantees as permitted by the
Indenture; or
(g) to provide for the issuance of bearer securities; or
(h) to evidence and provide for the acceptance of appointment of a
separate or successor Trustee; or
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(i) to provide for the procedures required to permit the utilization
of a noncertificated system of registration for any series or
tranche of Indenture Securities; or
(j) to change any place or places where
(1) we may pay principal, premium and interest,
(2) Indenture Securities may be surrendered for transfer or
exchange, and
(3) notices and demands to or upon PP&L Capital Funding or PP&L
Resources may be served; or
(k) to cure any ambiguity, defect or inconsistency or to make any
other changes that do not adversely affect the interests of the
Holders in any material respect.
If the Trust Indenture Act is amended after the date of the Indenture
so as to require changes to the Indenture or so as to permit changes to, or the
elimination of, provisions which, at the date of the Indenture or at any time
thereafter, were required by the Trust Indenture Act to be contained in the
Indenture, the Indenture will be deemed to have been amended so as to conform to
such amendment or to effect such changes or elimination, and PP&L Capital
Funding, PP&L Resources and the Trustee may, without the consent of any Holders,
enter into one or more supplemental indentures to effect or evidence such
amendment.
(See Section 1201.)
WITH HOLDER CONSENT. Except as provided above, the consent of the
Holders of at least a majority in aggregate principal amount of the Indenture
Securities of all outstanding series, considered as one class, is generally
required for the purpose of adding to, or changing or eliminating any of the
provisions of, the Indenture pursuant to a supplemental indenture. However, if
less than all of the series of outstanding Indenture Securities are directly
affected by a proposed supplemental indenture, then such proposal only requires
the consent of the Holders of a majority in aggregate principal amount of the
outstanding Indenture Securities of all directly affected series, considered as
one class. Moreover, if the Indenture Securities of any series have been issued
in more than one tranche and if the proposed supplemental indenture directly
affects the rights of the Holders of Indenture Securities of one or more, but
less than all, of such tranches, then such proposal only requires the consent of
the Holders of a majority in aggregate principal amount of the outstanding
Indenture Securities of all directly affected tranches, considered as one class.
However, no amendment or modification may, without the consent of the
Holder of each outstanding Indenture Security directly affected thereby,
(a) change the stated maturity of the principal or interest on any
Indenture Security (other than pursuant to the terms thereof), or
reduce the principal amount, interest or premium payable or
change the currency in which any Indenture Security is payable,
or impair the right to bring suit to enforce any payment;
(b) reduce the percentages of Holders whose consent is required for
any supplemental indenture or waiver or reduce the requirements
for quorum and voting under the Indenture; or
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(c) modify certain of the provisions in the Indenture relating to
supplemental indentures and waivers of certain covenants and past
defaults.
A supplemental indenture which changes or eliminates any provision of
the Indenture expressly included solely for the benefit of Holders of Indenture
Securities of one or more particular series or tranches will be deemed not to
affect the rights under the Indenture of the Holders of Indenture Securities of
any other series or tranche. (See Section 1202.)
MISCELLANEOUS PROVISIONS
The Indenture provides that certain Indenture Securities, including
those for which payment or redemption money has been deposited or set aside in
trust as described under "--Satisfaction and Discharge" below, will not be
deemed to be "outstanding" in determining whether the Holders of the requisite
principal amount of the outstanding Indenture Securities have given or taken any
demand, direction, consent or other action under the Indenture as of any date,
or are present at a meeting of Holders for quorum purposes. (See Section 101.)
PP&L Capital Funding or PP&L Resources will be entitled to set any day
as a record date for the purpose of determining the Holders of outstanding
Indenture Securities of any series entitled to give or take any demand,
direction, consent or other action under the Indenture, in the manner and
subject to the limitations provided in the Indenture. In certain circumstances,
the Trustee also will be entitled to set a record date for action by Holders. If
such a record date is set for any action to be taken by Holders of particular
Indenture Securities, such action may be taken only by persons who are Holders
of such Indenture Securities on the record date. (See Section 104.)
SATISFACTION AND DISCHARGE
Any Indenture Securities or any portion will be deemed to have been
paid for purposes of the Indenture, and at PP&L Capital Funding's election, our
entire indebtedness will be satisfied and discharged, if there shall have been
irrevocably deposited with the Trustee or any Paying Agent (other than PP&L
Capital Funding or PP&L Resources), in trust:
(a) money sufficient, or
(b) in the case of a deposit made prior to the maturity of such
Indenture Securities, non-redeemable Government Obligations (as
defined in the Indenture) sufficient, or
(c) a combination of (a) and (b), which in total are sufficient,
to pay when due the principal of, and any premium, and interest due and to
become due on such Indenture Securities or portions thereof on and prior to the
maturity thereof.
(See Section 701.)
The Indenture will be deemed satisfied and discharged when no
Indenture Securities remain outstanding and when we have paid all other sums
payable by us under the Indenture. (See Section 702.)
All moneys we pay to the Trustee or any Paying Agent on Debt
Securities which remain unclaimed at the end of two years after payments have
become due will be paid to or upon the order of PP&L Capital Funding.
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Thereafter, the Holder of such Debt Security may look only to us for payment
thereof. (See Section 603.)
RESIGNATION AND REMOVAL OF THE TRUSTEE; DEEMED RESIGNATION
The Trustee may resign at any time by giving written notice thereof to
us.
The Trustee may also be removed by act of the Holders of a majority in
principal amount of the then outstanding Indenture Securities of any series.
No resignation or removal of the Trustee and no appointment of a
successor trustee will become effective until the acceptance of appointment by a
successor trustee in accordance with the requirements of the Indenture.
Under certain circumstances, we may appoint a successor trustee and if
the successor accepts, the Trustee will be deemed to have resigned.
(See Section 910).
GOVERNING LAW
The Indenture, the Debt Securities and the Guarantees provide that
they are to be governed by and construed in accordance with the laws of the
State of New York.
DESCRIPTION OF THE TRUST SECURITIES
The Trust may issue Preferred Trust Securities and Common Trust
Securities under the Trust Agreement. These Trust securities will represent
undivided beneficial interests in the assets of the Trust. Selected provisions
of the Trust Agreement are summarized below. This summary is not complete. The
form of Trust Agreement was filed with the SEC and you should read the Trust
Agreement for provisions that may be important to you. The Trust Agreement will
be qualified as an indenture under the Trust Indenture Act. You should also
refer to the Trust Indenture Act for provisions that apply to the Preferred
Trust Securities. Wherever particular defined terms of the Trust Agreement are
referred to, such defined terms are incorporated herein by reference.
GENERAL
The Preferred Trust Securities and Common Trust Securities issued by
the Trust will be substantially the same except that, if there is an Event of
Default under the Trust Agreement, as described below, that results from an
Event of Default under the Subordinated Indenture, the rights of the holders of
the Common Trust Securities to payment of distributions and upon liquidation or
redemption will be subordinated to the rights of the holders of the Preferred
Trust Securities. All of the Common Trust Securities of the Trust will be owned
by PP&L Resources.
PP&L Resources will fully and unconditionally guarantee payments due
on the Preferred Trust Securities through a combination of the following:
(a) PP&L Resources' guarantee of PP&L Capital Funding's obligations
under the Subordinated Debt Securities (the "Subordinated
Guarantee");
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(b) The rights of holders of Preferred Trust Securities to enforce
those obligations;
(c) PP&L Resources' agreement to pay the expenses of the Trust; and
(d) PP&L Resources' guarantee of payments due on the Preferred Trust
Securities to the extent of the Trust's assets (the "Preferred
Securities Guarantee").
The Trust will use the proceeds from the sale of the Preferred Trust
Securities and Common Trust Securities to purchase Subordinated Debt Securities
from PP&L Capital Funding. The Subordinated Debt Securities will be guaranteed
by PP&L Resources pursuant to the Subordinated Guarantee described below. The
Subordinated Debt Securities will be held in trust for the benefit of holders of
the Preferred Trust Securities and Common Trust Securities.
A prospectus supplement relating to the Preferred Trust Securities
will include specific terms of those securities and of the Subordinated Debt
Securities. For a description of some specific terms that will affect both the
Preferred Trust Securities and the Subordinated Debt Securities and your rights
under each, see "Description of the Subordinated Debt Securities" below.
DISTRIBUTIONS
The only income of the Trust available for distribution to the holders
of Preferred Trust Securities will be payments on the Subordinated Debt
Securities. If neither PP&L Capital Funding nor PP&L Resources makes interest
payments on the Subordinated Debt Securities, the Trust will not have funds
available to pay distributions on Preferred Trust Securities. The payment of
distributions, if and to the extent the Trust has sufficient funds available for
the payment of such distributions, is guaranteed on a limited basis by PP&L
Resources as described under "Description of the Preferred Securities
Guarantee."
So long as no Event of Default under the Subordinated Indenture has
occurred and is continuing, PP&L Capital Funding may extend the interest payment
period from time to time on the Subordinated Debt Securities for one or more
periods. As a consequence, distributions on Preferred Trust Securities would be
deferred during any such period. Interest would, however, continue to accrue.
During any extended interest period, or for so long as an "Event of Default"
under the Subordinated Indenture resulting from a payment default or any payment
default under the Preferred Securities Guarantee has occurred and is continuing,
PP&L Resources may not:
(a) Declare or pay any dividend or distribution on its capital stock,
other than dividends paid in shares of capital stock of PP&L
Resources;
(b) Redeem, purchase, acquire or make a liquidation payment with
respect to any of its capital stock;
(c) Pay any principal, interest or premium on, or repay, repurchase
or redeem any debt securities that are equal or junior in right
of payment with the Subordinated Guarantees; or
(d) Make any payments with respect to any guarantee of debt
securities by PP&L Resources if such guarantee is equal or junior
in right of payment to the Subordinated Guarantees.
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Before an extension period ends, PP&L Capital Funding may further
extend the interest payment period. No extension period as further extended may
exceed 20 consecutive quarters. After any extension period and the payment of
all amounts then due, PP&L Capital Funding may select a new extended interest
payment period. No interest period may be extended beyond the maturity of the
Subordinated Debt Securities.
REDEMPTION OF PREFERRED TRUST SECURITIES AND COMMON TRUST SECURITIES
Whenever Subordinated Debt Securities are repaid, whether at maturity
or earlier redemption, the Property Trustee will apply the proceeds to redeem a
like amount of Preferred Trust Securities and Common Trust Securities.
REDEMPTION PROCEDURES
Preferred Trust Securities will be redeemed at the redemption price
plus accrued and unpaid distributions with the proceeds from the contemporaneous
redemption of Subordinated Debt Securities. Redemptions of the Preferred Trust
Securities will be made on a redemption date only if the Trust has funds
available for the payment of the redemption price plus accrued and unpaid
distributions.
Holders of Preferred Trust Securities will be given not less than 30
nor more than 60 days' notice of any redemption. On or before the redemption
date, the Trust will irrevocably deposit with the paying agent for Preferred
Trust Securities sufficient funds and will give the paying agent irrevocable
instructions and authority to pay the redemption price plus accrued and unpaid
distributions to the holders upon surrender of their Preferred Trust Securities.
Distributions payable on or before a redemption date will be payable to the
holders on the record date for the distribution payment. If notice is given and
funds are deposited as required, then on the redemption date all rights of
holders of the Preferred Trust Securities called for redemption will cease,
except the right of the holders to receive the redemption price plus accrued and
unpaid distributions, and the Preferred Trust Securities will cease to be
outstanding. No interest will accrue on amounts payable on the redemption date.
In the event that any date fixed for redemption of Preferred Trust Securities is
not a business day, then payment will be made on the next business day, except
that, if such business day falls in the next calendar year, then payment will be
made on the immediately preceding business day. No interest will be payable
because of any such delay. If payment of Preferred Trust Securities called for
redemption is improperly withheld or refused and not paid either by the Trust or
by PP&L Resources pursuant to the Preferred Securities Guarantee, distributions
on such Preferred Trust Securities will continue to accrue to the date of
payment. The actual payment date will be considered the date fixed for
redemption for purposes of calculating the redemption price plus accrued and
unpaid distributions.
Subject to applicable law, including United States federal securities
law, PP&L Resources or its affiliates may at any time and from time to time
purchase outstanding Preferred Trust Securities by tender, in the open market or
by private agreement.
If Preferred Trust Securities are partially redeemed on a redemption
date, a corresponding percentage of the Common Trust Securities will be
redeemed. The particular Preferred Trust Securities to be redeemed will be
selected not more than 60 days prior to the redemption date by the Property
Trustee by such method as the Property Trustee shall deem fair, taking into
account the denominations in which they were issued. The Property Trustee will
promptly notify the Preferred Trust Security registrar in writing of the
Preferred Trust Securities selected for redemption and, where applicable, the
partial amount to be redeemed.
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SUBORDINATION OF COMMON TRUST SECURITIES
Payment of distributions on, and the redemption price, plus accrued
and unpaid distributions, of, the Preferred Trust Securities and Common Trust
Securities shall be made pro rata based on the liquidation preference amount of
such securities. However, if on any distribution payment date or redemption date
an event of default under the Trust Agreement resulting from an event of default
under the Subordinated Indenture has occurred and is continuing, no payment on
any Common Trust Security shall be made until all payments due on the Preferred
Trust Securities have been made. In that case, funds available to the Property
Trustee shall first be applied to the payment in full of all distributions on,
or the redemption price plus accrued and unpaid distributions of, Preferred
Trust Securities then due and payable.
If an event of default under the Trust Agreement results from an event
of default under the Subordinated Indenture, the holder of Common Trust
Securities cannot take action with respect to the Trust Agreement default until
the effect of all defaults with respect to Preferred Trust Securities has been
cured, waived or otherwise eliminated. Until the event of default under the
Trust Agreement with respect to Preferred Trust Securities has been cured,
waived or otherwise eliminated, the Property Trustee shall, to the fullest
extent permitted by law, act solely on behalf of the holders of Preferred Trust
Securities and not the holders of the Common Trust Securities, and only holders
of Preferred Trust Securities will have the right to direct the Property Trustee
to act on their behalf.
LIQUIDATION DISTRIBUTION UPON DISSOLUTION
The Trust shall dissolve and shall be liquidated by the Property
Trustee on the first to occur of:
(a) The expiration of the term of the Trust;
(b) The bankruptcy, dissolution or liquidation of PP&L Resources;
(c) Redemption of all of the Preferred Trust Securities;
(d) The entry of an order for dissolution of the Trust by a court of
competent jurisdiction; and
(e) At any time, at the election of PP&L Resources.
If a dissolution of the Trust occurs, the Trust will be liquidated by
the Property Trustee as expeditiously as the Property Trustee determines to be
appropriate. If a dissolution of the Trust occurs other than by redemption of
all the Preferred Trust Securities, the Property Trustee will provide for the
satisfaction of liabilities of creditors, if any, and distribute to each holder
of the Preferred Trust Securities and Common Trust Securities a proportionate
amount of Subordinated Debt Securities. If a distribution of Subordinated Debt
Securities is determined by the Property Trustee not to be practical, holders
will be entitled to receive, out of the assets of the Trust after adequate
provision for the satisfaction of liabilities of creditors, if any, an amount
equal to the aggregate liquidation preference of the Preferred Trust Securities
plus accrued and unpaid distributions thereon to the date of payment. If this
liquidation distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate liquidation
distribution, then the amounts payable by the Trust on the Preferred Trust
Securities shall be paid on a pro rata basis. PP&L Resources, as holder of the
Common Trust Securities, will be entitled to receive distributions upon any
dissolution pro rata with the holders of the Preferred Trust Securities, except
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that if an Event of Default (or event that, with the lapse of time or giving of
notice, would become such an Event of Default) has occurred and is continuing
under the Subordinated Indenture, the Preferred Trust Securities will have a
preference over the Common Trust Securities.
EVENTS OF DEFAULT; NOTICE
Any one of the following events will be an event of default under the
Trust Agreement whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body:
(a) The occurrence of an Event of Default as described in the
Subordinated Indenture;
(b) Default by the Trust in the payment of any distribution when it
becomes due and payable, and continuation of that default for a
period of 30 days;
(c) Default by the Trust in the payment of any redemption price, plus
accrued and unpaid distributions, of any Preferred Trust Security
or Common Trust Security when it becomes due and payable;
(d) Default in the performance, or breach, in any material respect,
of any covenant or warranty of the trustees under the Trust
Agreement which is not dealt with above, and the continuation of
that default or breach for a period of 90 days after written
notice to the Trust and PP&L Resources by the holders of
Preferred Trust Securities having at least 25% of the total
liquidation preference amount of the outstanding Preferred Trust
Securities; or
(e) The occurrence of certain events of bankruptcy or insolvency with
respect to the Trust.
Within 90 days after the occurrence of any event of default actually
known to the Property Trustee, the Property Trustee shall transmit to the
holders of Preferred Trust Securities, PP&L Capital Funding, PP&L Resources and
the Administrative Trustees notice of any such default, unless that default will
have been cured or waived.
A holder of Preferred Trust Securities may directly institute a
proceeding to enforce payment when due directly to the holder of the Preferred
Trust Securities of the principal of or interest on Subordinated Debt Securities
having a principal amount equal to the aggregate liquidation preference amount
of the holder's Preferred Trust Securities. The holders of Preferred Trust
Securities have no other rights to exercise directly any other remedies
available to the holder of the Subordinated Debt Securities unless the trustees
under the Trust Agreement fail to do so.
REMOVAL OF TRUSTEES
Unless an event of default under the Subordinated Indenture has
occurred and is continuing, the holder of the Common Trust Securities may remove
any trustee under the Trust Agreement at any time. If an event of default under
the Subordinated Indenture has occurred and is continuing, the holders of a
majority of the total liquidation preference amount of the outstanding Preferred
Trust Securities may remove the Property Trustee or the Delaware Trustee, or
both of them. The holder of the Common Trust Securities may remove any
Administrative Trustee at any time. Any resignation or removal of a trustee
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under the Trust Agreement will take effect only on the acceptance of appointment
by the successor trustee.
Holders of Preferred Trust Securities will have no right to appoint or
remove the Administrative Trustees of the Trust, who may be appointed, removed
or replaced solely by PP&L Resources as the holder of the Common Trust
Securities.
VOTING RIGHTS
Except as provided below and under "Description of the Preferred
Securities Guarantee --Amendments and Assignments," and as otherwise required by
law or the Trust Agreement, the holders of Preferred Trust Securities will have
no voting rights.
While Subordinated Debt Securities are held by the Property Trustee,
the Property Trustee will not:
(a) Direct the time, method and place to conduct any proceeding for
any remedy available to the Subordinated Indenture Trustee, or
execute any trust or power conferred on the Subordinated
Indenture Trustee with respect to the Subordinated Debt
Securities;
(b) Waive any past default under the Subordinated Indenture;
(c) Exercise any right to rescind or annul a declaration that the
principal of all the Subordinated Debt Securities will be due and
payable; or
(d) Consent to any amendment, modification or termination of the
Subordinated Indenture or the Subordinated Debt Securities, where
that consent will be required;
without, in each case, obtaining the prior approval of the holders of Preferred
Trust Securities having at least a majority of the liquidation preference amount
of all outstanding Preferred Trust Securities. Where a consent of each holder of
Subordinated Debt Securities affected is required, no consent shall be given by
the Property Trustee without the prior consent of each holder of the Preferred
Trust Securities affected. The Trustees shall not revoke any action previously
authorized or approved by a vote of the holders of Preferred Trust Securities,
except pursuant to the subsequent vote of the holders of Preferred Trust
Securities. If the Property Trustee fails to enforce its rights under the
Subordinated Debt Securities or the Trust Agreement, a holder of the Preferred
Trust Securities may institute a legal proceeding directly against PP&L Capital
Funding or PP&L Resources, as the case may be, to enforce the Property Trustee's
rights under the Subordinated Debt Securities or the Trust Agreement without
first instituting any legal proceeding against the Property Trustee or anyone
else. The Property Trustee shall notify all holders of Preferred Trust
Securities of any notice of default received from the Subordinated Indenture
Trustee. The Property Trustee shall not take any action approved by the consent
of the holders without an opinion of counsel experienced in those matters to the
effect that the Trust will be classified as a grantor trust and not as an
association taxable as a corporation for United States federal income tax
purposes on account of that action.
Holders of Preferred Trust Securities may give any required approval
at a meeting convened for such purpose or by written consent without prior
notice. The Administrative Trustees will give notice of any meeting at which
holders of Preferred Trust Securities are entitled to vote.
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No vote or consent of the holders of Preferred Trust Securities will
be required for the Trust to redeem and cancel Preferred Trust Securities in
accordance with the Trust Agreement.
Notwithstanding that holders of Preferred Trust Securities are
entitled to vote or consent under any of the circumstances described above, any
Preferred Trust Securities that are owned by PP&L Capital Funding, PP&L
Resources or any affiliate of any of them, shall be treated as if they were not
outstanding for purposes of such vote or consent.
AMENDMENTS
The Trust Agreement may be amended from time to time by a majority of
the Administrative Trustees and PP&L Resources, without the consent of any
holders of Preferred Trust Securities:
(a) To cure any ambiguity, correct inconsistent provisions or make
any other provisions with respect to matters or questions arising
under the Trust Agreement; or
(b) To change the name of the Trust; or
(c) To modify, eliminate or add to any provisions of the Trust
Agreement to the extent necessary to ensure that the Trust will
not be classified for United States federal income tax purposes
other than as a grantor trust (and not an association taxable as
a corporation) at all times that any Preferred Trust Securities
and Common Trust Securities are outstanding or to ensure the
Trust's exemption from the status of an "investment company"
under the Investment Company Act of 1940.
No amendment described above may materially adversely affect the interests of
any holder of Preferred Trust Securities and Common Trust Securities without
such holder's consent. Any of the amendments of the Trust Agreement described in
paragraph (a) above shall become effective when notice of the amendment is given
to the holders of Preferred Trust Securities and Common Trust Securities.
Except as provided below, any provision of the Trust Agreement may be
amended by the Administrative Trustees and PP&L Resources with:
(a) The consent of holders of Preferred Trust Securities and Common
Trust Securities representing not less than a majority in
aggregate liquidation preference amount of the Preferred Trust
Securities and Common Trust Securities then outstanding; and
(b) Receipt by the trustees of an opinion of counsel to the effect
that such amendment or the exercise of any power granted to the
trustees in accordance with the amendment will not affect the
Trust's status as a grantor trust for federal income tax purposes
or affect the Trust's exemption from status of an "investment
company" under the Investment Company Act of 1940.
Each affected holder of Preferred Trust Securities or Common Trust
Securities must have consented to any amendment to the Trust Agreement that:
(a) Adversely changes the amount or timing of any distribution with
respect to Preferred Trust Securities or Common Trust Securities
or otherwise adversely affects the amount of any distribution
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required to be made in respect of Preferred Trust Securities and
Common Trust Securities as of a specified date; or
(b) Restricts the right of a holder of Preferred Trust Securities or
Common Trust Securities to institute suit for the enforcement of
any such payment on or after that date.
FORM, EXCHANGE AND TRANSFER
Preferred Trust Securities may be exchanged for other Preferred Trust
Securities in any authorized denomination and of like tenor and aggregate
liquidation preference.
Subject to the terms of the Trust Agreement, Preferred Trust
Securities may be presented for exchange as provided above or for registration
of transfer, duly endorsed or accompanied by a duly executed instrument of
transfer, at the office of the Preferred Trust Security registrar. The
Administrative Trustees may designate PP&L Resources or PP&L Capital Funding or
any affiliate of either of them as the Preferred Trust Security registrar. The
Property Trustee will initially act as the Preferred Trust Security registrar
and transfer agent. No service charge will be made for any registration of
transfer or exchange of Preferred Trust Securities, but the Preferred Trust
Security registrar may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection with the transfer or exchange. A
transfer or exchange will be made when the Preferred Trust Security registrar
and Administrative Trustees are satisfied with the documents of title and
identity of the person making the request. The Administrative Trustees may at
any time designate additional transfer agents or rescind the designation of any
transfer agent or approve a change in the office through which any transfer
agent acts, except that PP&L Resources will, or will cause the Preferred Trust
Security registrar to, maintain an office or agency in The City of New York
where Preferred Trust Securities may be transferred or exchanged.
The Trust will not be required to (1) issue, register the transfer of,
or exchange any Preferred Trust Securities during the 15 calendar days before
the mailing of a notice of redemption of any Preferred Trust Securities called
for redemption and ending at the close of business on the day the notice is
mailed or (2) register the transfer of or exchange any Preferred Trust
Securities so selected for redemption, in whole or in part, except the
unredeemed portion of any Preferred Trust Securities being redeemed in part.
PAYMENT OF PREFERRED TRUST SECURITIES AND PAYING AGENT
Unless we indicate differently in a prospectus supplement, payments in
respect of the Preferred Trust Securities will be made on the applicable
distribution dates by check mailed to the address of the holder entitled thereto
as such address appears on the Preferred Trust Security register. The paying
agent shall initially be the Property Trustee and any co-paying agent chosen by
the Property Trustee and acceptable to the Administrative Trustees, PP&L Capital
Funding and PP&L Resources, which may be PP&L Resources or PP&L Capital Funding.
The paying agent may resign upon 30 days' written notice to the Administrative
Trustees, the Property Trustee, PP&L Capital Funding and PP&L Resources. In the
event that the Property Trustee shall no longer be the paying agent, the
Administrative Trustees shall appoint a successor, which shall be a bank, trust
company or affiliate of PP&L Resources acceptable to the Property Trustee, PP&L
Capital Funding and PP&L Resources to act as paying agent.
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DUTIES OF THE TRUSTEES
The Delaware Trustee will act as the resident trustee in the State of
Delaware and will have no other significant duties. The Property Trustee will
hold the Subordinated Debt Securities on behalf of the Trust and will maintain a
payment account with respect to the Preferred Trust Securities and Common Trust
Securities, and will also act as trustee under the Trust Agreement for the
purposes of the Trust Indenture Act.
The Administrative Trustees of the Trust are authorized and directed
to conduct the affairs of the Trust and to operate the Trust so that the Trust
will not be deemed to be an "investment company" required to be registered under
the Investment Company Act or taxed as a corporation or classified as other than
a grantor trust for United States federal income tax purposes and so that the
Subordinated Debt Securities will be treated as indebtedness of PP&L Capital
Funding for United States federal income tax purposes. In this regard, PP&L
Resources and the Administrative Trustees are authorized to take any action, not
inconsistent with applicable law, the certificate of trust or the Trust
Agreement, that PP&L Resources and the Administrative Trustees determine in
their discretion to be necessary or desirable for those purposes, as long as the
action does not materially adversely affect the interests of the holders of the
Preferred Trust Securities.
MISCELLANEOUS
Holders of the Preferred Trust Securities have no preemptive or
similar rights.
GOVERNING LAW
The Trust Agreement, the Preferred Trust Securities and the Common
Trust Securities provide that they are to be governed by and construed in
accordance with the laws of the State of Delaware.
DESCRIPTION OF THE PREFERRED SECURITIES GUARANTEE
Selected provisions of the Preferred Securities Guarantee that PP&L
Resources will execute and deliver for the benefit of the holders of the
Preferred Trust Securities are summarized below. The summary is not complete.
The form of Preferred Securities Guarantee was filed with the SEC and you should
read the Preferred Securities Guarantee for provisions that may be important to
you. The Preferred Securities Guarantee will be qualified as an indenture under
the Trust Indenture Act. You should refer to the Trust Indenture Act for
provisions that apply to the Preferred Securities Guarantee. Whenever particular
defined terms of the Preferred Securities Guarantee are referred to, those
defined terms are incorporated herein by reference.
The Chase Manhattan Bank will act as Guarantee Trustee under the
Preferred Securities Guarantee. The Guarantee Trustee will hold the Preferred
Securities Guarantee for the benefit of the holders of the Preferred Trust
Securities.
GENERAL
PP&L Resources will irrevocably, fully and unconditionally agree to
make the guarantee payments listed below in full to the holders of the Preferred
Trust Securities if they are not made by the Trust, as and when due, regardless
of any defense, right of set-off or counterclaim that the Trust may have or
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assert. The following payments will be subject to the Preferred Securities
Guarantee (without duplication):
(a) Any accrued and unpaid distributions required to be paid on
Preferred Trust Securities, to the extent the Trust has funds
available therefor;
(b) The redemption price, plus all accrued and unpaid distributions,
for any Preferred Trust Securities called for redemption by the
Trust, to the extent the Trust has funds available therefor; and
(c) Upon a voluntary or involuntary dissolution, winding-up or
termination of the Trust (except in connection with the
distribution of Subordinated Debt Securities to the holders in
exchange for Preferred Trust Securities as provided in the Trust
Agreement or upon a redemption of all of the Preferred Trust
Securities upon maturity or redemption of the Subordinated Debt
Securities as provided in the Trust Agreement), the lesser of:
(1) the aggregate of the liquidation preference and all accrued
and unpaid distributions on Preferred Trust Securities to
the date of payment, to the extent the Trust has funds
available therefor; and
(2) the amount of assets of the Trust remaining available for
distribution to holders of Preferred Trust Securities in
liquidation of the Trust after satisfaction of liabilities
to creditors of the Trust as required by applicable law.
PP&L Resources' obligation to make a guarantee payment may be satisfied by
direct payment of the required amounts by PP&L Resources to the holders of
Preferred Trust Securities or by causing the Trust to pay such amounts to those
holders.
The Preferred Securities Guarantee will be a guarantee with respect to
the Preferred Trust Securities, but will not apply to any payment of
distributions if and to the extent that the Trust does not have funds available
to make those payments.
If neither PP&L Capital Funding nor PP&L Resources makes interest
payments on the Subordinated Debt Securities held by the Trust, the Trust will
not have funds available to pay distributions on the Preferred Trust Securities.
The Preferred Securities Guarantee will rank subordinate and junior in right of
payment to all other liabilities of PP&L Resources (except those made pari passu
or subordinate by their terms). The Preferred Securities Guarantee does not
limit PP&L Resources from incurring or issuing additional debt, whether secured
or unsecured, senior to or equal in right of payment to the Preferred Securities
Guarantee in the future.
PP&L Resources will agree to provide funds to the Trust as needed to
pay costs, expenses or liabilities of the Trust to parties other than holders of
Preferred Trust Securities or Common Trust Securities. The Subordinated Debt
Securities, the Subordinated Guarantees and the Preferred Securities Guarantee,
together with the obligations of PP&L Resources with respect to the Preferred
Trust Securities under the Subordinated Indenture, the Trust Agreement, the
Preferred Securities Guarantee, including the agreement by PP&L Resources to pay
expenses and obligations of the Trust to parties (other than holders of
Preferred Trust Securities or Common Trust Securities), constitute a full and
unconditional guarantee of the Preferred Trust Securities by PP&L Resources. No
single document standing alone or operating in conjunction with fewer than all
of the other documents constitutes that guarantee. It is only the combined
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operation of these documents that has the effect of providing a full and
unconditional guarantee by PP&L Resources of the Preferred Trust Securities.
AMENDMENTS AND ASSIGNMENT
No consent of holders of Preferred Trust Securities is required for
changes to the Preferred Securities Guarantee that do not materially adversely
affect their rights. Other terms of the Preferred Securities Guarantee may be
changed only with the prior approval of the holders of the Preferred Trust
Securities having at least a majority of the liquidation preference amount of
the outstanding Preferred Trust Securities. All guarantees and agreements
contained in the Preferred Securities Guarantee will bind the successors,
assigns, receivers, trustees and representatives of PP&L Resources and will
inure to the benefit of the holders of the Preferred Trust Securities then
outstanding.
EVENTS OF DEFAULT
An event of default under the Preferred Securities Guarantee will
occur if PP&L Resources fails to perform any of its payment or other obligations
under the Preferred Securities Guarantee and has not cured such failure within
90 days of receipt of notice thereof. The holders of the Preferred Trust
Securities having a majority of the liquidation preference of the Preferred
Trust Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Guarantee Trustee
under the Preferred Securities Guarantee or to direct the exercise of any trust
or power conferred upon the Guarantee Trustee under the Preferred Securities
Guarantee.
Any holder of the Preferred Trust Securities may enforce the Preferred
Securities Guarantee, or institute a legal proceeding directly against PP&L
Resources to enforce the Guarantee Trustee's rights under the Preferred
Securities Guarantee without first instituting a legal proceeding against the
Trust, the Guarantee Trustee or anyone else.
PP&L Resources will be required to file an annual statement with the
Guarantee Trustee as to its compliance with the Preferred Securities Guarantee.
DUTIES OF THE GUARANTEE TRUSTEE
The Guarantee Trustee will undertake to perform only those duties
specifically set forth in the Preferred Securities Guarantee until a default
occurs. After a default under the Preferred Securities Guarantee, the Guarantee
Trustee must exercise the same degree of care in its duties as a prudent
individual would exercise in the conduct of his or her own affairs. The
Preferred Securities Guarantee Trustee is under no obligation to exercise any of
the powers vested in it by the Preferred Securities Guarantee at the request of
any holder of the Preferred Trust Securities unless it is offered reasonable
indemnity against the costs, expenses and liabilities that it might incur.
TERMINATION OF THE PREFERRED SECURITIES GUARANTEE
The Preferred Securities Guarantee will terminate and be of no further
force and effect upon:
(a) Full payment of the redemption price, plus accrued and unpaid
distributions, for all the Preferred Trust Securities;
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(b) The distribution of Subordinated Debt Securities to holders of
the Preferred Trust Securities in exchange for all of the
Preferred Trust Securities; or
(c) Full payment of the amounts payable upon liquidation of the
Trust.
The Preferred Securities Guarantee will continue to be effective or
will be reinstated, as the case may be, if at any time any holder of Preferred
Trust Securities must restore payment of any sums paid under the Preferred Trust
Securities or the Preferred Securities Guarantee.
STATUS OF THE PREFERRED SECURITIES GUARANTEE
The Preferred Securities Guarantee will be an unsecured obligation of
PP&L Resources and will rank:
(a) Subordinate and junior in right of payment to all other
liabilities of PP&L Resources, including the Subordinated
Guarantees;
(b) Equal in right of payment with the most senior preferred or
preference stock that may be issued by PP&L Resources and with
any guarantee that may be entered into by PP&L Resources in
respect of any preferred or preference stock of any affiliate of
PP&L Resources; and
(c) Senior to PP&L Resources common stock.
The Trust Agreement provides that by accepting Preferred Trust
Securities, a holder agrees to the subordination provisions and other terms of
the Preferred Securities Guarantee.
The Preferred Securities Guarantee will be a guarantee of payment and
not of collection, that is, the guaranteed party may institute a legal
proceeding directly against PP&L Resources to enforce its rights under the
Preferred Securities Guarantee without first instituting a legal proceeding
against anyone else.
Because PP&L Resources is a holding company that conducts all of its
operations through subsidiaries, obligations under the Preferred Securities
Guarantee, as obligations of a holding company, will generally have a position
junior to claims of creditors and preferred stockholders of the subsidiaries of
PP&L Resources. See "PP&L Resources - Holding Company Structure" above.
GOVERNING LAW
The Preferred Securities Guarantee provides that it is to be governed
by and construed in accordance with the laws of the State of New York.
DESCRIPTION OF THE SUBORDINATED DEBT SECURITIES
The Subordinated Indenture and its associated documents contain the
full legal text of the matters described in this section. Because this section
is a summary, it does not describe every aspect of the Subordinated Debt
Securities or the Subordinated Indenture. The form of the Subordinated Indenture
has been filed with the SEC, and you should read the Subordinated Indenture for
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provisions that may be important to you. The Subordinated Indenture will be
qualified under the Trust Indenture Act. You should refer to the Trust Indenture
Act for provisions that apply to the Subordinated Debt Securities.
This summary is subject to and qualified in its entirety by reference
to all the provisions of the Subordinated Indenture, including definitions of
certain terms used in the Subordinated Indenture. We also include references in
parentheses to certain sections of the Subordinated Indenture. Whenever we refer
to particular sections or defined terms of the Subordinated Indenture in this
prospectus or in a prospectus supplement, such sections or defined terms are
incorporated by reference herein or in the prospectus supplement. This summary
also is subject to and qualified by reference to the description of the
particular terms of your securities described in the applicable prospectus
supplement or supplements.
GENERAL
The Subordinated Debt Securities, including any Subordinated Debt
Securities which the Property Trustee will hold on behalf of the Trust as trust
assets, will be issued under the Subordinated Indenture (the "Subordinated
Indenture") among PP&L Capital Funding, PP&L Resources and The Chase Manhattan
Bank, as Trustee (the "Subordinated Indenture Trustee"). The Subordinated
Indenture provides for the issuance from time to time of subordinated debt in an
unlimited amount. The Subordinated Debt Securities and all other subordinated
debt issued previously or hereafter under the Subordinated Indenture are
collectively referred to as the "Subordinated Indenture Securities."
Subordinated Debt Securities issued to the Trust will constitute a separate
series under the Subordinated Indenture and will be limited in aggregate
principal amount to the sum of the aggregate liquidation preference amount of
the Preferred Trust Securities and the consideration paid by PP&L Resources for
the Common Trust Securities.
The Subordinated Debt Securities will be unsecured, subordinated
obligations of PP&L Capital Funding which rank junior to all of PP&L Capital
Funding's Senior Indebtedness (as defined herein). The Subordinated Debt
Securities will be unconditionally guaranteed by PP&L Resources as to payment of
principal, and any interest and premium pursuant to subordinated guarantees
("Subordinated Guarantees") of PP&L Resources which rank junior to all of PP&L
Resources' Senior Indebtedness (as defined herein). See "-- Subordinated
Guarantees."
Prior to the issuance of each series, certain aspects of the
particular securities have to be specified in a supplemental indenture, in a
board resolution of PP&L Capital Funding, or in one or more officer's
certificates of PP&L Capital Funding pursuant to a supplemental indenture or a
board resolution. We refer you to the applicable prospectus supplement(s) for a
description of the following terms of the series of Subordinated Debt
Securities:
(a) the title of such Subordinated Debt Securities;
(b) any limit upon the principal amount of such Subordinated Debt
Securities;
(c) the date or dates on which principal will be payable or how to
determine such dates;
(d) the rate or rates or method of determination of interest; the
date from which interest will accrue; the dates on which interest
will be payable ("Subordinated Debt Securities Interest Payment
Dates"); and any record dates for the interest payable on such
Subordinated Debt Securities Interest Payment Dates;
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(e) any obligation or option of PP&L Capital Funding to redeem,
purchase or repay Subordinated Debt Securities, or any option of
the Holder to require PP&L Capital Funding to redeem or
repurchase Subordinated Debt Securities, and the terms and
conditions upon which such Subordinated Debt Securities will be
redeemed, purchased or repaid;
(f) the denominations in which such Subordinated Debt Securities will
be issuable (if other than denominations of $25 and any integral
multiple thereof);
(g) whether such Subordinated Debt Securities are to be issued in
whole or in part in the form of one or more global Subordinated
Debt Securities and, if so, the identity of the depositary for
such global Subordinated Debt Securities; and
(h) any other terms of such Subordinated Debt Securities.
(See Section 301.)
SUBORDINATION
The Subordinated Debt Securities will be subordinate and junior in
right of payment to all Senior Indebtedness of PP&L Capital Funding. (See
Article Fifteen.) No payment of the principal (including redemption and sinking
fund payments) of, or interest on, the Subordinated Debt Securities may be made
by PP&L Capital Funding until all holders of Senior Indebtedness of PP&L Capital
Funding have been paid, if any of the following occurs:
(a) Certain events of bankruptcy, insolvency or reorganization of
PP&L Capital Funding;
(b) Any Senior Indebtedness of PP&L Capital Funding is not paid when
due and that default continues without waiver;
(c) Any other default has occurred and continues without waiver
pursuant to which the holders of Senior Indebtedness of PP&L
Capital Funding are permitted to accelerate the maturity of such
Senior Indebtedness; or
(d) The maturity of any other series of subordinated debentures under
the Subordinated Indenture has been accelerated, because of an
event of default which remains uncured.
Upon any distribution of assets of PP&L Capital Funding to creditors
in connection with any insolvency, bankruptcy or similar proceeding, all
principal of, and premium, if any, and interest due or to become due on all
Senior Indebtedness of PP&L Capital Funding must be paid in full before the
holders of the Subordinated Debt Securities are entitled to receive or retain
any payment from such distribution.
Senior Indebtedness, when used with respect to PP&L Capital Funding or
PP&L Resources, is defined in the Subordinated Indenture to include all
obligations of PP&L Capital Funding or PP&L Resources, as the case may be, for
borrowed money, or guarantees of the same, or for the payment of money pursuant
to capital leases, unless such obligation or guarantee expressly provides that
it is not superior to or equal in right of payment to the Subordinated Debt
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Securities or the Subordinated Guarantees, as the case may be. The obligations
of PP&L Resources under the Preferred Securities Guarantee shall not be deemed
to be Senior Indebtedness. (See Section 101.)
The Subordinated Indenture does not limit the aggregate amount of
Senior Indebtedness that may be issued. As of August 31, 1999, PP&L Capital
Funding had approximately $590 million principal amount of indebtedness for
borrowed money constituting its Senior Indebtedness, and PP&L Resources had
approximately $628 million principal amount of obligations constituting its
Senior Indebtedness (including guarantees of indebtedness of PP&L Capital
Funding and certain of PP&L Resources' other subsidiaries).
SUBORDINATED GUARANTEES
PP&L Resources will unconditionally guarantee the payment of principal
of and any interest and premium on the Subordinated Debt Securities, when due
and payable, whether at the stated maturity date, by declaration of
acceleration, call for redemption or otherwise, in accordance with the terms of
such Subordinated Debt Securities and the Subordinated Indenture. The
Subordinated Guarantees will remain in effect until the entire principal of and
any premium and interest on the Subordinated Debt Securities has been paid in
full or otherwise discharged in accordance with the provisions of the
Subordinated Indenture. (See Article Fourteen.)
The Subordinated Guarantees will be subordinate and junior in right of
payment to all Senior Indebtedness of PP&L Resources. No payment of the
principal (including redemption and sinking fund payments) of, or interest on,
the Subordinated Debt Securities may be made by PP&L Resources under the
Subordinated Guarantees until all holders of Senior Indebtedness of PP&L
Resources have been paid, if any of the following occurs:
(a) Certain events of bankruptcy, insolvency or reorganization of
PP&L Resources;
(b) Any Senior Indebtedness of PP&L Resources is not paid when due
and that default continues without waiver;
(c) Any other default has occurred and continues without waiver
pursuant to which the holders of Senior Indebtedness of PP&L
Resources are permitted to accelerate the maturity of such Senior
Indebtedness; or
(d) The maturity of any other series of subordinated debentures under
the Subordinated Indenture which has been guaranteed by PP&L
Resources and has been accelerated, because of an event of
default which remains uncured.
Upon any distribution of assets of PP&L Resources to creditors in
connection with any insolvency, bankruptcy or similar proceeding, all principal
of, and premium, if any, and interest due or to become due on all Senior
Indebtedness of PP&L Resources must be paid in full before the holders of the
Subordinated Debt Securities are entitled to receive or retain any payment from
such distribution.
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PAYMENT OF SUBORDINATED DEBT SECURITIES
INTEREST
Unless we indicate differently in a prospectus supplement, we will pay
interest on each Subordinated Debt Security on each Subordinated Debt Securities
Interest Payment Date by check mailed to the Holder of the Subordinated Debt
Securities as of the close of business on the regular record date relating to
such Subordinated Debt Securities Interest Payment Date, except, that interest
payable at Maturity will be paid to the person to whom principal is paid.
However, if we default in paying interest on a Subordinated Debt
Security, we will pay defaulted interest in either of the two following ways:
(a) We will first propose to the Subordinated Indenture Trustee a
payment date for such defaulted interest. Next, the Subordinated
Indenture Trustee will choose a Special Record Date for
determining which Holders are entitled to the payment. The
Special Record Date will be between 10 and 15 days before the
payment date we propose. Finally, we will pay such defaulted
interest on the payment date to the Holder of the Subordinated
Debt Security as of the close of business on the Special Record
Date.
(b) Alternatively, we can propose to the Subordinated Indenture
Trustee any other lawful manner of payment that is consistent
with the requirements of any securities exchange on which such
Subordinated Debt Securities are listed for trading. If the
Subordinated Indenture Trustee thinks the proposal is
practicable, payment will be made as proposed.
(See Section 307.)
PRINCIPAL
Unless we indicate differently in a prospectus supplement, we will pay
principal of and any interest and premium on the Subordinated Debt Securities at
Maturity upon presentation of the Subordinated Debt Securities at the office of
The Chase Manhattan Bank in New York, New York, as our Paying Agent. Any other
Paying Agent initially designated for the Subordinated Debt Securities of a
particular series will be named in the applicable prospectus supplement.
In our discretion, we may change the place of payment on the
Subordinated Debt Securities, and may remove any Paying Agent and may appoint
one or more additional Paying Agents (including PP&L Capital Funding, PP&L
Resources or any affiliate of either of them). (See Section 602.)
OPTION TO EXTEND INTEREST PAYMENT PERIOD
So long as no Event of Default under the Subordinated Indenture has
occurred and is continuing, PP&L Capital Funding may extend the interest payment
period from time to time on the Subordinated Debt Securities for one or more
periods. As a consequence, distributions on Preferred Trust Securities would be
deferred during any extension period. Interest would, however, continue to
accrue. During any extended interest period, or for so long as an "Event of
Default" under the Subordinated Indenture resulting from a payment default or a
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payment default under the Preferred Securities Guarantee has occurred and is
continuing, PP&L Resources may not:
(a) Declare or pay any dividend or distribution on its capital stock,
other than dividends paid in shares of capital stock of PP&L
Resources;
(b) Redeem, purchase, acquire or make a liquidation payment with
respect to any of its capital stock;
(c) Pay any principal, interest or premium on, or repay, repurchase
or redeem any debt securities that are equal or junior in right
of payment with the Subordinated Guarantees; or
(d) Make any payments with respect to any guarantee of debt
securities by PP&L Resources if such guarantee is equal or junior
in right of payment to the Subordinated Guarantees.
(See Section 312.)
Before an extension period ends, PP&L Capital Funding may further
extend the interest payment period. No extension period as further extended may
exceed 20 consecutive quarters. After any extension period and the payment of
all amounts then due, PP&L Capital Funding may select a new extended interest
payment period. No interest period may be extended beyond the maturity of the
Subordinated Debt Securities. PP&L Capital Funding will give the Trust and the
Subordinated Indenture Trustee notice of its election of an extension period
prior to the earlier of (i) one business day before the record date for the
distribution which would occur if PP&L Capital Funding did not make the election
to extend or (ii) the date the Administrative Trustees are required to give
notice to any securities exchange or any other applicable self-regulatory
organization of the record date. The Property Trustee shall send notice of that
election to the holders of Preferred Trust Securities.
ADDITIONAL INTEREST
So long as any Preferred Trust Securities remain outstanding, if the
Trust is required to pay any taxes, duties, assessments or governmental charges
imposed by the United States or any other taxing authority on income derived
from the interest payments on the Subordinated Debt Securities, then PP&L
Capital Funding will pay as interest on the Subordinated Debt Securities any
additional interest that may be necessary in order that the net amounts retained
by the Trust after the payment of those taxes, duties, assessments or
governmental charges will be the same as the Trust would have had in the absence
of such payment. (See Section 313.)
FORM; TRANSFERS; EXCHANGES
Unless we indicated differently in a prospectus supplement, the
Subordinated Debt Securities will be issued
(a) only in fully registered form;
(b) without interest coupons; and
(c) in denominations that are even multiples of $25. (See Section
302.)
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Unless we indicate differently in a prospectus supplement,
Subordinated Debt Securities may be exchanged at the office of the Subordinated
Indenture Trustee. The Subordinated Indenture Trustee will also act as our agent
for registering Subordinated Debt Securities in the names of holders and
transferring debt securities. We may appoint another agent or act as our own
agent for this purpose. The entity performing the role of maintaining the list
of registered holders is called the "Subordinated Indenture Registrar." It will
also perform transfers.
In our discretion, we may change the place for registration of
transfer of the Subordinated Debt Securities and may remove and/or appoint one
or more additional Subordinated Indenture Registrars (including PP&L Capital
Funding, PP&L Resources or any affiliate of either of them). (See Sections 305
and 602.)
Except as otherwise provided in a prospectus supplement, there will be
no service charge for any transfer or exchange of the Debt Securities, but you
may be required to pay a sum sufficient to cover any tax or other governmental
charge payable in connection therewith. We may block the transfer or exchange of
(a) Subordinated Debt Securities during a period of 15 days prior to giving any
notice of redemption or (b) any Subordinated Debt Security selected for
redemption in whole or in part, except the unredeemed portion of any
Subordinated Debt Security being redeemed in part. (See Section 305.)
Unless we indicate differently in a prospectus supplement, if
Subordinated Debt Securities are distributed to holders of Preferred Trust
Securities in a dissolution of the Trust, the Subordinated Debt Securities will
be issued in fully registered certificated form in the denominations and
integral multiples thereof in which the Preferred Trust Securities have been
issued, and they may be transferred or exchanged at the offices of the
Subordinated Indenture Trustee.
REDEMPTION
For so long as the Trust is the holder of all the Subordinated Debt
Securities, the proceeds of any redemption will be used by the Trust to redeem
Preferred Trust Securities and Common Trust Securities in accordance with their
terms.
We will set forth any terms for the redemption of Subordinated Debt
Securities in a prospectus supplement. Unless we indicate differently in a
prospectus supplement, and except with respect to Subordinated Debt Securities
redeemable at the option of the Holder, Subordinated Debt Securities will be
redeemable upon notice by mail between 30 and 60 days prior to the redemption
date. If less than all of the Subordinated Debt Securities of any series or any
tranche thereof are to be redeemed, the Subordinated Indenture Trustee will
select the Subordinated Debt Securities to be redeemed. In the absence of any
provision for selection, the Subordinated Indenture Trustee will choose a method
of random selection as it deems fair and appropriate. (See Sections 403 and
404.)
Subordinated Debt Securities will cease to bear interest on the
redemption date. PP&L Capital Funding will pay the redemption price and any
accrued interest once the Subordinated Debt Securities are surrendered for
redemption. (See Section 405.) If only part of a Subordinated Debt Security is
redeemed, the Subordinated Indenture Trustee will deliver a new Subordinated
Debt Security of the same series for the remaining portion without charge. (See
Section 406.)
We may make any redemption at the option of PP&L Capital Funding
conditional upon the receipt by the paying agent, on or prior to the date fixed
for redemption, of money sufficient to pay the redemption price. If the paying
agent has not received such money by the date fixed for redemption, PP&L Capital
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Funding will not be required to redeem such Subordinated Debt Securities. (See
Section 404.)
EVENTS OF DEFAULT
An "Event of Default" occurs with respect to Subordinated Indenture
Securities of any series if
(a) we do not pay any interest on any Subordinated Indenture
Securities of the applicable series within 30 days of the due
date; provided, however, that a valid extension of the interest
period by us will not constitute an Event of Default;
(b) we do not pay principal or premium on any Subordinated Indenture
Securities of the applicable series on its due date;
(c) we remain in breach of a covenant (excluding covenants solely
applicable to a specific series) or warranty of the Subordinated
Indenture for 90 days after we receive a written notice of
default stating we are in breach and requiring remedy of the
breach; the notice must be sent by either the Subordinated
Indenture Trustee or Holders of 25% of the principal amount of
Subordinated Indenture Securities of the affected series; the
Subordinated Indenture Trustee or such Holders can agree to
extend the 90-day period and such an agreement to extend will be
automatically deemed to occur if we are diligently pursuing
action to correct the default;
(d) the Subordinated Guarantees of PP&L Resources relating to any
Subordinated Indenture Securities of the applicable series
(1) cease to be effective (except in accordance with their
terms),
(2) are found in any judicial proceeding to be unenforceable or
invalid, or
(3) are denied or disaffirmed (except in accordance with their
terms);
(e) we file for bankruptcy or certain other events in bankruptcy,
insolvency, receivership or reorganization occur; or
(f) any other Event of Default specified in the prospectus supplement
occurs.
(See Section 801.)
No Event of Default with respect to the Subordinated Debt Securities necessarily
constitutes an Event of Default with respect to the Subordinated Indenture
Securities of any other series issued under the Subordinated Indenture.
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REMEDIES
ACCELERATION
ANY ONE SERIES. If an Event of Default occurs and is continuing with
respect to any one series of Subordinated Indenture Securities, then either the
Subordinated Indenture Trustee or the Holders of 25% in principal amount of the
outstanding Subordinated Indenture Securities of such series may declare the
principal amount of all of the Subordinated Indenture Securities of such series
to be due and payable immediately.
MORE THAN ONE SERIES. If an Event of Default occurs and is continuing
with respect to more than one series of Subordinated Indenture Securities, then
either the Subordinated Indenture Trustee or the Holders of 25% in aggregate
principal amount of the outstanding Subordinated Indenture Securities of all
such series, considered as one class, may make such declaration of acceleration.
Thus, if there is more than one series affected, the action by 25% in principal
amount of the Subordinated Indenture Securities of any particular series will
not, in itself, be sufficient to make a declaration of acceleration.
(See Section 802.)
RESCISSION OF ACCELERATION
After the declaration of acceleration has been made and before the
Subordinated Indenture Trustee has obtained a judgment or decree for payment of
the money due, such declaration and its consequences will be rescinded and
annulled, if
(a) we pay or deposit with the Subordinated Indenture Trustee a sum
sufficient to pay
(1) all overdue interest;
(2) the principal of and any premium which have become due
otherwise than by such declaration of acceleration and
overdue interest thereon;
(3) interest on overdue interest to the extent lawful; and
(4) all amounts due to the Subordinated Indenture Trustee under
the Subordinated Indenture; and
(b) all Events of Default, other than the nonpayment of the principal
which has become due solely by such declaration of acceleration,
have been cured or waived as provided in the Subordinated
Indenture.
(See Section 802.) For more information as to waiver of defaults, see "--Waiver
of Default and of Compliance" below.
CONTROL BY HOLDERS; LIMITATIONS
Subject to the Subordinated Indenture, if an Event of Default with
respect to the Subordinated Indenture Securities of any one series occurs and is
continuing, the Holders of a majority in principal amount of the outstanding
Subordinated Indenture Securities of that series will have the right to
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(a) direct the time, method and place of conducting any proceeding
for any remedy available to the Subordinated Indenture Trustee,
or
(b) exercise any trust or power conferred on the Subordinated
Indenture Trustee with respect to the Subordinated Indenture
Securities of such series.
If an Event of Default is continuing with respect to more than one
series of Subordinated Indenture Securities, the Holders of a majority in
aggregate principal amount of the outstanding Subordinated Indenture Securities
of all such series, considered as one class, will have the right to make such
direction, and not the Holders of the Subordinated Indenture Securities of any
one of such series. These rights of Holders to make direction are subject to the
following limitations:
(a) the Holders' directions may not conflict with any law or the
Subordinated Indenture; and
(b) the Holders' directions may not involve the Subordinated
Indenture Trustee in personal liability where the Trustee
believes indemnity is not adequate.
The Subordinated Indenture Trustee may also take any other action it deems
proper which is consistent with the Holders' direction. (See Sections 812 and
903.)
In addition, the Subordinated Indenture provides that no Holder of any
Subordinated Indenture Security will have any right to institute any proceeding,
judicial or otherwise, with respect to the Subordinated Indenture for the
appointment of a receiver or for any other remedy thereunder unless
(a) that Holder has previously given the Subordinated Indenture
Trustee written notice of a continuing Event of Default;
(b) the Holders of 25% in aggregate principal amount of the
outstanding Subordinated Indenture Securities of all affected
series, considered as one class, have made written request to the
Subordinated Indenture Trustee to institute proceedings in
respect of that Event of Default and have offered the
Subordinated Indenture Trustee reasonable indemnity against costs
and liabilities incurred in complying with such request; and
(c) for 60 days after receipt of such notice, the Subordinated
Indenture Trustee has failed to institute any such proceeding and
no direction inconsistent with such request has been given to the
Subordinated Indenture Trustee during such 60-day period by the
Holders of a majority in aggregate principal amount of
outstanding Subordinated Indenture Securities of all affected
series, considered as one class.
Furthermore, no Holder will be entitled to institute any such action if and to
the extent that such action would disturb or prejudice the rights of other
Holders. (See Sections 807 and 903.)
However, each Holder has an absolute and unconditional right to
receive payment when due and to bring a suit to enforce that right. (See
Sections 807 and 808.)
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ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF PREFERRED TRUST SECURITIES
If there is an Event of Default with respect to Subordinated Debt
Securities held by the Trust, then the holders of Preferred Trust Securities
will rely on the Property Trustee or the Subordinated Indenture Trustee, acting
for the benefit of the Property Trustee, to enforce the Property Trustee's
rights against PP&L Capital Funding and PP&L Resources as a holder of the
Subordinated Debt Securities. However, a holder of Preferred Trust Securities
may enforce the Subordinated Indenture directly against PP&L Capital Funding and
PP&L Resources to the same extent as if the holder of Preferred Trust Securities
held a principal amount of Subordinated Debt Securities equal to the aggregate
liquidation amount of its Preferred Trust Securities. (See Section 609.)
Subject to their right to bring suit to enforce their right to
payment, the holders of Preferred Trust Securities would not be able to
institute any proceeding with respect to the Subordinated Indenture unless the
Subordinated Indenture Trustee has failed to do so for 60 days after a request
of the holders of 25% in liquidation amount of Preferred Trust Securities. Upon
such failure, the holders of a majority of the aggregate liquidation amount of
the outstanding Preferred Trust Securities would have the right to directly
institute proceedings for enforcement of all other rights of the Subordinated
Indenture Trustee against PP&L Capital Funding to the fullest extent permitted
by law. (See Sections 807, 808 and 812.)
NOTICE OF DEFAULT
The Subordinated Indenture Trustee is required to give the Holders of
the Subordinated Indenture Securities notice of any default under the
Subordinated Indenture to the extent required by the Trust Indenture Act,
unless such default has been cured or waived; except that in the
case of an Event of Default of the character specified above in clause (c) under
"--Events of Default," no such notice shall be given to such Holders until at
least 90 days after the occurrence thereof. (See Section 902.) The Trust
Indenture Act currently permits the Subordinated Indenture Trustee to withhold
notices of default (except for certain payment defaults) if the Subordinated
Indenture Trustee in good faith determines the withholding of such notice to be
in the interests of the Holders.
We will furnish the Subordinated Indenture Trustee with an annual
statement as to the compliance by PP&L Capital Funding with the conditions and
covenants in the Subordinated Indenture. (See Section 605.)
WAIVER OF DEFAULT AND OF COMPLIANCE
The Holders of a majority in aggregate principal amount of the
outstanding Subordinated Indenture Securities of any series may waive, on behalf
of the Holders of all Subordinated Indenture Securities of such series, any past
default under the Subordinated Indenture, except a default in the payment of
principal, premium or interest, or with respect to compliance with certain
provisions of the Subordinated Indenture that cannot be amended without the
consent of the Holder of each outstanding Subordinated Indenture Security. (See
Section 813.)
Compliance with certain covenants in the Subordinated Indenture or
otherwise provided with respect to Subordinated Indenture Securities may be
waived by the Holders of a majority in aggregate principal amount of the
affected Subordinated Indenture Securities, considered as one class. (See
Section 606.)
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CONSOLIDATION, MERGER AND CONVEYANCE OF ASSETS AS AN ENTIRETY
Subject to the provisions described in the next paragraph, each of
PP&L Capital Funding and PP&L Resources will preserve its corporate existence.
(See Section 604.)
PP&L Capital Funding and PP&L Resources have each agreed not to
consolidate with or merge into any other entity or convey, transfer or lease its
properties and assets substantially as an entirety to any entity unless
(a) the entity formed by such consolidation or into which PP&L
Capital Funding or PP&L Resources, as the case may be, is merged
or the entity which acquires or which leases the property and
assets of PP&L Capital Funding or PP&L Resources, as the case may
be, substantially as an entirety is an entity organized and
existing under the laws of the United States of America or any
State thereof or the District of Columbia, and expressly assumes,
by supplemental indenture, the due and punctual payment of the
principal, premium and interest on all the outstanding
Subordinated Indenture Securities (or the Subordinated Guarantees
endorsed thereon, as the case may be) and the performance of all
of the covenants of PP&L Capital Funding or PP&L Resources, as
the case may be, under the Subordinated Indenture, and
(b) immediately after giving effect to such transactions, no Event of
Default, and no event which after notice or lapse of time or both
would become an Event of Default, will have occurred and be
continuing. (See Section 1101.)
The Subordinated Indenture does not prevent or restrict:
(a) any consolidation or merger after the consummation of which PP&L
Capital Funding or PP&L Resources would be the surviving or
resulting entity;
(b) any consolidation of PP&L Capital Funding with PP&L Resources or
any other entity all of the outstanding voting securities of
which are owned, directly or indirectly, by PP&L Resources; or
any merger of any such entity into any other of such entities; or
any conveyance or other transfer, or lease, or properties by any
thereof to any other thereof;
(c) any conveyance or other transfer, or lease, of any part of the
properties of PP&L Capital Funding or PP&L Resources which does
not constitute the entirety, or substantially the entirety,
thereof; or
(d) the approval by PP&L Capital Funding or PP&L Resources of, or the
consent by PP&L Capital Funding or PP&L Resources to, any
consolidation or merger to which any direct or indirect
subsidiary or affiliate of PP&L Capital Funding or PP&L
Resources, as the case requires, may be a party or any
conveyance, transfer or lease by any such subsidiary or affiliate
of any of its assets. (See Section 1103.)
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MODIFICATION OF SUBORDINATED INDENTURE
WITHOUT HOLDER CONSENT. Without the consent of any Holders of
Subordinated Indenture Securities, PP&L Capital Funding, PP&L Resources and the
Subordinated Indenture Trustee may enter into one or more supplemental
indentures for any of the following purposes:
(a) to evidence the succession of another entity to PP&L Capital
Funding or PP&L Resources; or
(b) to add one or more covenants of PP&L Capital Funding or PP&L
Resources or other provisions for the benefit of the Holders of
all or any series or tranche of Subordinated Indenture
Securities, or to surrender any right or power conferred upon
PP&L Capital Funding or PP&L Resources; or
(c) to add any additional Events of Default for all or any series of
Subordinated Indenture Securities; or
(d) to change or eliminate any provision of the Subordinated
Indenture or to add any new provision to the Subordinated
Indenture that does not adversely affect the interests of the
Holders; or
(e) to provide security for the Subordinated Indenture Securities of
any series; or
(f) to establish the form or terms of Subordinated Indenture
Securities of any series or tranche or any Subordinated
Guarantees as permitted by the Subordinated Indenture; or
(g) to provide for the issuance of bearer securities; or
(h) to evidence and provide for the acceptance of appointment of a
separate or successor Subordinated Indenture Trustee or
co-trustee; or
(i) to provide for the procedures required to permit the utilization
of a noncertificated system of registration for any series or
tranche of Subordinated Indenture Securities; or
(j) to change any place or places where
(1) we may pay principal, premium and interest,
(2) Subordinated Indenture Securities may be surrendered for
transfer or exchange, and
(3) notices and demands to or upon PP&L Capital Funding or PP&L
Resources may be served; or
(k) to cure any ambiguity, defect or inconsistency or to make any
other changes that do not adversely affect the interests of the
Holders in any material respect.
If the Trust Indenture Act is amended after the date of the
Subordinated Indenture so as to require changes to the Subordinated Indenture or
so as to permit changes to, or the elimination of, provisions which, at the date
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of the Subordinated Indenture or at any time thereafter, were required by the
Trust Indenture Act to be contained in the Subordinated Indenture, the
Subordinated Indenture will be deemed to have been amended so as to conform to
such amendment or to effect such changes or elimination, and PP&L Capital
Funding, PP&L Resources and the Subordinated Indenture Trustee may, without the
consent of any Holders, enter into one or more supplemental indentures to effect
or evidence such amendment.
(See Section 1201.)
WITH HOLDER CONSENT. Except as provided above, the consent of the
Holders of at least a majority in aggregate principal amount of the Subordinated
Indenture Securities of all outstanding series, considered as one class, is
generally required for the purpose of adding to, or changing or eliminating any
of the provisions of, the Subordinated Indenture pursuant to a supplemental
indenture. However, if less than all of the series of outstanding Subordinated
Indenture Securities are directly affected by a proposed supplemental indenture,
then such proposal only requires the consent of the Holders of a majority in
aggregate principal amount of the outstanding Subordinated Indenture Securities
of all directly affected series, considered as one class. Moreover, if the
Subordinated Indenture Securities of any series have been issued in more than
one tranche and if the proposed supplemental indenture directly affects the
rights of the Holders of Subordinated Indenture Securities of one or more, but
less than all, of such tranches, then such proposal only requires the consent of
the Holders of a majority in aggregate principal amount of the outstanding
Subordinated Indenture Securities of all directly affected tranches, considered
as one class.
However, no amendment or modification may, without the consent of the
Holder of each outstanding Subordinated Indenture Security directly affected
thereby,
(a) change the stated maturity of the principal or (except as
described above under "--Option to Extend Interest Payment
Period") interest on any Subordinated Indenture Security (other
than pursuant to the terms thereof), or reduce the principal
amount, interest or premium payable or change the currency in
which any Subordinated Indenture Security is payable, or impair
the right to bring suit to enforce any payment;
(b) reduce the percentages of Holders whose consent is required for
any supplemental indenture or waiver or reduce the requirements
for quorum and voting under the Subordinated Indenture; or
(c) modify certain of the provisions in the Subordinated Indenture
relating to supplemental indentures and waivers of certain
covenants and past defaults.
A supplemental indenture which changes or eliminates any provision of
the Subordinated Indenture expressly included solely for the benefit of Holders
of Subordinated Indenture Securities of one or more particular series or
tranches will be deemed not to affect the rights under the Subordinated
Indenture of the Holders of Subordinated Indenture Securities of any other
series or tranche. So long as any Preferred Trust Securities are outstanding,
the Subordinated Indenture Trustee may not consent to any supplemental indenture
that would ordinarily require Subordinated Indenture Security Holder consent
without the prior consent of the holders of a majority in aggregate liquidation
preference of all outstanding Preferred Trust Securities affected or, in the
case of changes described in clauses (a) through (c) immediately above, 100% in
aggregate liquidation preference of all such outstanding Preferred Trust
Securities affected. (See Section 1202.)
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MISCELLANEOUS PROVISIONS
The Subordinated Indenture provides that certain Subordinated
Indenture Securities, including those for which payment or redemption money has
been deposited or set aside in trust as described under "--Satisfaction and
Discharge" below, will not be deemed to be "outstanding" in determining whether
the Holders of the requisite principal amount of the outstanding Subordinated
Indenture Securities have given or taken any demand, direction, consent or other
action under the Subordinated Indenture as of any date, or are present at a
meeting of Holders for quorum purposes. (See Section 101.)
PP&L Capital Funding or PP&L Resources will be entitled to set any day
as a record date for the purpose of determining the Holders of outstanding
Subordinated Indenture Securities of any series entitled to give or take any
demand, direction, consent or other action under the Subordinated Indenture, in
the manner and subject to the limitations provided in the Subordinated
Indenture. In certain circumstances, the Subordinated Indenture Trustee also
will be entitled to set a record date for action by Holders. If such a record
date is set for any action to be taken by Holders of particular Subordinated
Indenture Securities, such action may be taken only by persons who are Holders
of such Subordinated Indenture Securities on the record date. (See Section 104.)
SATISFACTION AND DISCHARGE
Any Subordinated Indenture Securities or any portion will be deemed to
have been paid for purposes of the Subordinated Indenture, and at PP&L Capital
Funding's election, the entire indebtedness of PP&L Capital Funding and PP&L
Resources will be satisfied and discharged, if there shall have been irrevocably
deposited with the Subordinated Indenture Trustee or any paying agent (other
than PP&L Capital Funding or PP&L Resources), in trust:
(a) money sufficient, or
(b) in the case of a deposit made prior to the maturity of such
Subordinated Indenture Securities, non-redeemable Eligible
Obligations (as defined in the Subordinated Indenture)
sufficient, or
(c) a combination of (a) and (b), which in total are sufficient,
to pay when due the principal of, and any premium, and interest due and to
become due on such Subordinated Indenture Securities or portions thereof on and
prior to the maturity thereof.
(See Section 701.)
The Subordinated Indenture will be deemed satisfied and discharged
when no Subordinated Indenture Securities remain outstanding and when we have
paid all other sums payable by us under the Subordinated Indenture. (See Section
702.)
All moneys we pay to the Subordinated Indenture Trustee or any paying
agent on Subordinated Debt Securities which remain unclaimed at the end of two
years after payments have become due will be paid to or upon the order of PP&L
Capital Funding. Thereafter, the Holder of such Subordinated Debt Security may
look only to us for payment thereof. (See Section 603.)
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RESIGNATION AND REMOVAL OF THE SUBORDINATED INDENTURE TRUSTEE; DEEMED
RESIGNATION
The Subordinated Indenture Trustee may resign at any time by giving
written notice thereof to us.
The Subordinated Indenture Trustee may also be removed by act of the
Holders of a majority in principal amount of the then outstanding Subordinated
Indenture Securities of any series.
No resignation or removal of the Subordinated Indenture Trustee and no
appointment of a successor trustee will become effective until the acceptance of
appointment by a successor trustee in accordance with the requirements of the
Subordinated Indenture.
Under certain circumstances, we may appoint a successor trustee and if
the successor accepts, the Subordinated Indenture Trustee will be deemed to have
resigned.
(Section 910).
GOVERNING LAW
The Subordinated Indenture and the Subordinated Indenture Securities
provide that they are to be governed by and construed in accordance with the
laws of the State of New York.
INFORMATION CONCERNING THE TRUSTEES
The Chase Manhattan Bank has at various times in the ordinary course
of business made loans to PP&L Resources and its subsidiaries and affiliates,
and acts as Administrative Agent with respect to one of our current revolving
credit facilities. In addition, The Chase Manhattan Bank acts as issuing and
paying agent for PP&L Capital Funding's commercial paper notes, and acts as
guarantee trustee and property trustee for the trust originated preferred
securities and common securities of our affiliates, PP&L Capital Trust and PP&L
Capital Trust I and acts as trustee with respect to junior subordinated
deferrable interest debentures of our affiliate, PP&L. Chase Manhattan Bank
Delaware, an affiliate of the Trustee, also acts as Delaware trustee for the
trust originated preferred securities and common securities of PP&L Capital
Trust and PP&L Capital Trust I.
EXPERTS
The consolidated financial statements of PP&L Resources incorporated
in this prospectus by reference to the Annual Report on Form 10-K of PP&L
Resources for the year ended December 31, 1998, have been so incorporated in
reliance on the report of PricewaterhouseCoopers LLP, independent accountants,
given on the authority of said firm as experts in auditing and accounting.
Michael A. McGrail, Esq., Senior Counsel of PP&L, has reviewed the
statements made in the incorporated documents as to matters of law and legal
conclusions. Such statements have been made in reliance upon his authority as an
expert.
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VALIDITY OF THE SECURITIES AND THE SECURITIES GUARANTEES
Thelen Reid & Priest LLP, New York, New York, counsel to PP&L
Resources, PP&L Capital Funding and PP&L Capital Funding Trust I, will pass upon
the validity of the Securities and the Securities Guarantees for PP&L Resources,
PP&L Capital Funding and the Trust. Simpson Thacher & Bartlett, counsel to PP&L
Resources, will pass upon the validity of Common Stock for PP&L Resources.
Michael A. McGrail, Esq., Senior Counsel of PP&L, will pass upon the validity of
the PP&L Resources Securities and the Securities Guarantees for PP&L Resources.
Sullivan & Cromwell, New York, New York, will pass upon the validity of the
Securities and the Securities Guarantees for any underwriters or agents. Certain
matters of Delaware law relating to the validity of the Preferred Trust
Securities, the enforceability of the Trust Agreement and the creation of the
Trust will be passed upon by Richards, Layton & Finger, P.A., special Delaware
counsel to PP&L Resources, PP&L Capital Funding and the Trust. Thelen Reid &
Priest LLP, Simpson Thacher & Bartlett and Sullivan & Cromwell will rely on the
opinion of Mr. McGrail as to matters involving the law of the Commonwealth of
Pennsylvania, and on the opinion of Richards, Layton & Finger, P.A., as to
matters involving the law of the State of Delaware in connection with the
Preferred Trust Securities. As to matters involving the law of the State of New
York, Mr. McGrail will rely on the opinion of Thelen Reid & Priest LLP.
PLAN OF DISTRIBUTION
We may sell Securities (a) to purchasers directly; (b) to underwriters
for public offering and sale by them; or (c) through agents or dealers.
DIRECT SALES
We may sell the Securities directly to institutional investors or
others who may be deemed to be underwriters within the meaning of the Securities
Act with respect to any resale of the Securities. A prospectus supplement will
describe the terms of any such sale.
TO UNDERWRITERS
The applicable prospectus supplement will name any underwriter
involved in a sale of Securities. Underwriters may offer and sell Securities at
a fixed price or prices, which may be changed, or from time to time at market
prices or at negotiated prices. Underwriters may be deemed to have received
compensation from us from sales of Securities in the form of underwriting
discounts or commissions and may also receive commissions from purchasers of
Securities for whom they may act as agent.
Underwriters may sell Securities to or through dealers, and such
dealers may receive compensation in the form of discounts, concessions or
commissions from the underwriters and/or commissions (which may be changed from
time to time) from the purchasers for whom they may act as agent.
Unless otherwise provided in a prospectus supplement, the obligations
of any underwriters to purchase particular Securities will be subject to certain
conditions precedent, and the underwriters will be obligated to purchase all
such Securities if any are purchased.
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THROUGH AGENTS
We will name any agent involved in a sale of Securities, as well as
any commissions payable by us to such agent, in a prospectus supplement. Unless
we indicate differently in the prospectus supplement, any such agent will be
acting on a reasonable efforts basis for the period of its appointment.
GENERAL INFORMATION
Underwriters, dealers and agents participating in a sale of Securities
may be deemed to be underwriters as defined in the Securities Act, and any
discounts and commissions received by them and any profit realized by them on
resale of the Securities may be deemed to be underwriting discounts and
commissions, under the Securities Act. We may have agreements with underwriters,
dealers and agents to indemnify them against certain civil liabilities,
including liabilities under the Securities Act, and to reimburse them for
certain expenses.
Underwriters or agents and their associates may be customers of,
engage in transactions with or perform services for us or our affiliates in the
ordinary course of business.
Each series of Securities will be a new issue and, except for the
Common Stock, which is listed on the New York and Philadelphia Stock Exchanges,
will have no established trading market. We may elect to list any series of new
Securities on an exchange, or in the case of the Common Stock, on any additional
exchange, but unless we advise you differently in the prospectus supplement, we
have no obligation to cause any Securities to be so listed. Any underwriters
that purchase Securities for public offering and sale may make a market in the
Securities, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. We make no assurance
as to the liquidity of, or the trading markets for, any Securities.
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PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Securities and Exchange Commission registration fee . $332,691
Printing expenses . . . . . . . . . . . . . . . . . . 150,000
Trustee fees and expenses . . . . . . . . . . . . . . . 20,000
Legal fees and expenses . . . . . . . . . . . . . . . . 400,000
Accounting fees and expenses . . . . . . . . . . . . . 40,000
Blue Sky fees and expenses . . . . . . . . . . . . . . 15,000
Rating Agency fees . . . . . . . . . . . . . . . . . . 310,000
Miscellaneous . . . . . . . . . . . . . . . . . . . . . 67,309
----------
Total . . . . . . . . . . . . . . . . . . . . . . $ 1,335,000
===========
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All of the above except the Securities and Exchange Commission
registration fee are estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 7.01 of the Bylaws of PP&L Resources provides:
(a) RIGHT TO INDEMNIFICATION. Except as prohibited by
law, every director and officer of the corporation shall be
entitled as of right to be indemnified by the corporation
against reasonable expense and any liability paid or
incurred by such person in connection with any actual or
threatened claim, action, suit or proceeding, civil,
criminal, administrative, investigative or other, whether
brought by or in the right of the corporation or otherwise,
in which he or she may be involved, as a party or otherwise,
by reason of such person being or having been a director or
officer of the corporation or by reason of the fact that
such person is or was serving at the request of the
corporation as a director, officer, employee, fiduciary or
other representative of another corporation, partnership,
joint venture, trust, employee benefit plan or other entity
(such claim, action, suit or proceeding hereinafter being
referred to as "action"). Such indemnification shall include
the right to have expenses incurred by such person in
connection with an action paid in advance by the corporation
prior to final disposition of such action, subject to such
conditions as may be prescribed by law. Persons who are not
directors or officers of the corporation may be similarly
indemnified in respect of service to the corporation or to
another such entity at the request of the corporation to the
extent the board of directors at any time denominates such
person as entitled to the benefits of this Section 7.01. As
used herein, "expense" shall include fees and expenses of
counsel selected by such persons; and "liability" shall
include amounts of judgments, excise taxes, fines and
penalties, and amounts paid in settlement.
(b) RIGHT OF CLAIMANT TO BRING SUIT. If a claim under
paragraph (a) of this Section 7.01 is not paid in full by
the corporation within thirty days after a written claim has
been received by the corporation, the claimant may at any
time thereafter bring suit against the corporation to
recover the unpaid amount of the claim, and, if successful
in whole or in part, the claimant shall also be entitled to
be paid the expense of prosecuting such claim. It shall be a
defense to any such action that the conduct of the claimant
was such that under Pennsylvania law the corporation would
be prohibited from indemnifying the claimant for the amount
claimed, but the burden of proving such defense shall be on
the corporation. Neither the failure of the corporation
(including its board of directors, independent legal counsel
and its shareholders) to have made a determination prior to
the commencement of such action that indemnification of the
claimant is proper in the circumstances because the conduct
of the claimant was not such that indemnification would be
prohibited by law, nor an actual determination by the
corporation (including its board of directors, independent
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legal counsel or its shareholders) that the conduct of the
claimant was such that indemnification would be prohibited
by law, shall be a defense to the action or create a
presumption that the conduct of the claimant was such that
indemnification would be prohibited by law.
(c) INSURANCE AND FUNDING. The corporation may
purchase and maintain insurance to protect itself and any
person eligible to be indemnified hereunder against any
liability or expense asserted or incurred by such person in
connection with any action, whether or not the corporation
would have the power to indemnify such person against such
liability or expense by law or under the provisions of this
Section 7.01. The corporation may create a trust fund, grant
a security interest, cause a letter of credit to be issued
or use other means (whether or not similar to the foregoing)
to ensure the payment of such sums as may become necessary
to effect indemnification as provided herein.
(d) NON-EXCLUSIVITY; NATURE AND EXTENT OF RIGHTS. The
right of indemnification provided for herein (1) shall not
be deemed exclusive of any other rights, whether now
existing or hereafter created, to which those seeking
indemnification hereunder may be entitled under any
agreement, bylaw or charter provision, vote of shareholders
or directors or otherwise, (2) shall be deemed to create
contractual rights in favor of persons entitled to
indemnification hereunder, (3) shall continue as to persons
who have ceased to have the status pursuant to which they
were entitled or were denominated as entitled to
indemnification hereunder and shall inure to the benefit of
the heirs and legal representatives of persons entitled to
indemnification hereunder and (4) shall be applicable to
actions, suits or proceedings commenced after the adoption
hereof, whether arising from acts or omissions occurring
before or after the adoption hereof. The right of
indemnification provided for herein may not be amended,
modified or repealed so as to limit in any way the
indemnification provided for herein with respect to any acts
or omissions occurring prior to the effective date of any
such amendment, modification or repeal.
Directors and officers of PP&L Resources may also be
indemnified in certain circumstances pursuant to the statutory
provisions of general application contained in Pennsylvania law.
Furthermore, PP&L Resources, as well as its directors and
officers, may be entitled to indemnification by any underwriters
named in a Prospectus Supplement against certain civil
liabilities under the Securities Act of 1933 under agreements
entered into between PP&L Resources and such underwriters.
PP&L Resources presently has insurance policies which, among
other things, include liability insurance coverage for officers
and directors and officers and directors of PP&L Resources'
subsidiaries, including the Company, under which such officers
and directors are covered against any "loss" by reason of payment
of damages, judgments, settlements and costs, as well as charges
and expenses incurred in the defense of actions, suits or
proceedings. "Loss" is specifically defined to exclude fines and
penalties, as well as matters deemed uninsurable under the law
pursuant to which the insurance policy shall be construed. The
policies also contain other specific exclusions, including
illegally obtained personal profit or advantage, and dishonesty.
Article VI of the By-Laws of PP&L Capital Funding, Inc. provides:
SECTION 6.1. RIGHT TO INDEMNIFICATION. The
Corporation shall indemnify and hold harmless, to the
fullest extent permitted by applicable law as it presently
exists or may hereafter be amended, any person (an
"Indemnitee") who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or
investigative (a "proceeding"), by reason of the fact that
he, or a person for whom he is the legal representative, is
or was a director or officer of the Corporation or, while a
director or officer of the Corporation, is or was serving at
the written request of the Corporation as a director,
officer, employee or agent of another corporation or of a
partnership, joint venture, trust, enterprise or nonprofit
entity, including service with respect to employee benefit
plans, against all liability and loss suffered and expenses
(including attorneys' fees) reasonably incurred by such
Indemnitee. Notwithstanding the preceding sentence, except
as otherwise provided in Section 6.3, the Corporation shall
be required to indemnify an Indemnitee in connection with a
proceeding (or part thereof) commenced by such Indemnitee
only if the commencement of such proceeding (or part
thereof) by the Indemnitee was authorized by the Board of
Directors.
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SECTION 6.2. PREPAYMENT OF EXPENSES. The Corporation
shall pay the expenses (including attorneys' fees) incurred
by an Indemnitee in defending any proceeding in advance of
its final disposition, provided, however, that, to the
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extent required by law, such payment of expenses in
advance of the final disposition of the proceeding shall be
made only upon receipt of an undertaking by the Indemnitee
to repay all amounts advanced if it should be ultimately
determined that the Indemnitee is not entitled to be
indemnified under this Article VI or otherwise.
SECTION 6.3. CLAIMS. If a claim for indemnification
or payment of expenses under this Article VI is not paid in
full within sixty (60) days after a written claim therefor
by the Indemnitee has been received by the Corporation, the
Indemnitee may file suit to recover the unpaid amount of
such claim and, if successful in whole or in part, shall be
entitled to be paid the expense of prosecuting such claim.
In any such action the Corporation shall have the burden of
providing that the Indemnitee is not entitled to the
requested indemnification or payment of expenses under
applicable law.
SECTION 6.4. NONEXCLUSIVITY OF RIGHTS. The rights
conferred on any Indemnitee by this Article VI shall not be
exclusive of any other rights which such Indemnitee may have
or hereafter acquire under any statute, provision of the
certificate of incorporation, these by-laws, agreement, vote
of stockholders or disinterested directors or otherwise.
SECTION 6.5. OTHER SOURCES. The Corporation's
obligation, if any, to indemnify or to advance expenses to
any Indemnitee who was or is serving at its request as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust, enterprise or nonprofit
entity shall be reduced by any amount such Indemnitee may
collect as indemnification or advancement of expenses from
such other corporation, partnership, joint venture, trust,
enterprise or non-profit enterprise.
SECTION 6.6. AMENDMENT OR REPEAL. Any repeal or
modification of the foregoing provisions of this Article VI
shall not adversely affect any right or protection hereunder
of any Indemnitee in respect of any act or omission
occurring prior to the time of such repeal of modification.
SECTION 6.7. OTHER INDEMNIFICATION AND PREPAYMENT OF
EXPENSES. This Article VI shall not limit the right of the
Corporation, to the extent and in the manner permitted by
law, to indemnify and to advance expenses to persons other
than Indemnitees when and as authorized by appropriate
corporate action.
Article 7 of the Certificate of Incorporation of PP&L
Capital Funding, Inc. provides:
The Corporation shall indemnify to the full extent
authorized by law any person made or threatened to be made a
party to an action or proceeding whether criminal, civil,
administrative or investigative, by reason of the fact that
he, his testator or intestate is or was a director or
officer of the Corporation or serves or served any other
enterprise as a director or officer at the request of the
Corporation or any predecessor of the Corporation. No
director of the Corporation shall be personally liable to
the Corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director of the Corporation,
except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders; (ii)
for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; (iii)
under Section 174 of the Delaware General Corporation Law;
or (iv) for any transaction from which the director derived
an improper personal benefit.
Directors and officers of PP&L Capital Funding may also be
indemnified in certain circumstances pursuant to the statutory
provisions of general application contained in Delaware law.
Furthermore, PP&L Capital Funding, as well as its directors and
officers, may be entitled to indemnification by any underwriters
named in a Prospectus Supplement against certain civil
liabilities under the Securities Act of 1933 under agreements
entered into between the Company and such underwriters.
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Section 8.06 of the Amended and Restated Trust Agreement
provides that PP&L Resources agrees:
to indemnify each Trustee for, and to hold each Trustee
harmless against, any and all loss, damage, claims,
liability or expense incurred without negligence (gross
negligence, in the case of any Administrative Trustee), bad
faith or willful misconduct on its part, arising out of or
in connection with the acceptance or administration of the
trust or trusts under this Trust Agreement, including the
reasonable costs and expenses of defending itself against
any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
ITEM 16. EXHIBITS.
Reference is made to the Exhibit Index filed herewith at
page II-9, such Exhibit Index being incorporated in this Item 16
by reference.
ITEM 17. UNDERTAKINGS.
The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
Registration Statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or
events arising after the effective date of the
Registration Statement (or the most recent post-
effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar
value of securities offered would not exceed that which
was registered) and any deviation from the low or high
end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no
more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration
Statement; and
(iii) to include any material information with
respect to the plan of distribution not previously
disclosed in the Registration Statement or any material
change to such information in the Registration
Statement;
provided, however, that (i) and (ii) do not apply if the
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information required to be included in a post -effective
amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the
registrants pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of post-
effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
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(4) That, for purposes of determining any liability
under the Securities Act of 1933, each filing of PP&L
Resources' annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in this Registration Statement
shall be deemed to be a new registration statement relating
to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the
registrants pursuant to the provisions described under Item
15 above, or otherwise, the registrants have been advised
that in the opinion of the Commission such indemnification
is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the
payment by a registrant of expenses incurred or paid by a
director, officer or controlling person in the successful
defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection
with the securities being registered, such registrant will,
unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed
in the Act and will be governed by the final adjudication of
such issue.
II-5
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933,
AS AMENDED, PP&L RESOURCES, INC. CERTIFIES THAT IT HAS REASONABLE
GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE REQUIREMENTS FOR
FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED,
THEREUNTO DULY AUTHORIZED, IN THE CITY OF ALLENTOWN, AND
COMMONWEALTH OF PENNSYLVANIA, ON THE 24TH DAY OF SEPTEMBER,
1999.
PP&L Resources, Inc.
(REGISTRANT)
By /s/ William F. Hecht
---------------------------
William F. Hecht
Chairman, President and
Chief Executive Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933,
AS AMENDED, THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY
THE FOLLOWING PERSONS IN THE CAPACITIES INDICATED ON THE 24TH
DAY OF SEPTEMBER, 1999.
SIGNATURE TITLE
---------- -----
/s/ William F. Hecht Principal
-------------------------------------------- Executive
William F. Hecht, Chairman, President and Officer and
Chief Executive Officer Director
/s/ John R. Biggar Principal
-------------------------------------------- Financial
John R. Biggar, Senior Vice President and Officer
Chief Financial Officer
/s/ Joseph J. McCabe Principal
-------------------------------------------- Accounting
Joseph J. McCabe, Vice President and Officer
Controller
FREDERICK M. BERNTHAL, E. ALLEN DEAVER, ]
WILLIAM J. FLOOD, ELMER D. GATES, STUART ]
HEYDT, MARILYN WARE, FRANK A. LONG AND ] Directors
NORMAN ROBERTSON ]
By /s/ William F. Hecht
--------------------------------------------
William F. Hecht, As Attorney-in-Fact
II-6
<PAGE>
POWER OF ATTORNEY
EACH DIRECTOR AND/OR OFFICER OF THE REGISTRANT WHOSE
SIGNATURE APPEARS BELOW HEREBY APPOINTS JOHN R. BIGGAR, JAMES E.
ABEL AND ROBERT J. GREY, AND EACH OF THEM SEVERALLY, AS HIS TRUE
AND LAWFUL ATTORNEY-IN-FACT AND AGENT TO SIGN IN HIS NAME AND
BEHALF, IN ANY AND ALL CAPACITIES STATED BELOW, AND TO FILE WITH
THE SECURITIES AND EXCHANGE COMMISSION, ANY AND ALL AMENDMENTS,
INCLUDING POST-EFFECTIVE AMENDMENTS, TO THIS REGISTRATION
STATEMENT, AND THE REGISTRANT HEREBY ALSO APPOINTS EACH SUCH
PERSON AS ITS ATTORNEY-IN-FACT AND AGENT WITH LIKE AUTHORITY TO
SIGN AND FILE ANY SUCH AMENDMENTS IN ITS NAME AND BEHALF.
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933,
THE REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO
BELIEVE THAT IT MEETS ALL OF THE REQUIREMENTS FOR FILING ON FORM
S-3 AND HAS DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED
ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN
THE CITY OF ALLENTOWN, AND COMMONWEALTH OF PENNSYLVANIA, ON THE
24TH DAY OF SEPTEMBER, 1999.
PP&L Capital Funding, Inc.
(REGISTRANT)
By /s/ John R. Biggar
--------------------------
John R. Biggar
President
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE
FOLLOWING PERSONS IN THE CAPACITIES INDICATED ON THE 24TH DAY
OF SEPTEMBER, 1999.
SIGNATURE TITLE
---------------- ------------
/s/ William F. Hecht Director
-------------------------------
William F. Hecht
/s/ John R. Biggar Principal Executive
------------------------------- and Financial
John R. Biggar, President Officer and
Director
/s/ James E. Abel Principal
------------------------------- Accounting Officer
James E. Abel, Treasurer and Director
II-7
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933,
THE REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO
BELIEVE THAT IT MEETS ALL OF THE REQUIREMENTS FOR FILING ON FORM
S-3 AND HAS DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED
ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN
THE CITY OF ALLENTOWN, AND COMMONWEALTH OF PENNSYLVANIA, ON THE
24TH DAY OF SEPTEMBER, 1999.
PP&L Capital Funding Trust I
(REGISTRANT)
By: PP&L RESOURCES, INC.,
AS DEPOSITOR
By/s/ James E. Abel
---------------------------
James E. Abel
Vice President Finance
and Treasurer
II-8
<PAGE>
PP&L RESOURCES, INC.
PP&L CAPITAL FUNDING, INC.
PP&L CAPITAL FUNDING TRUST I
REGISTRATION STATEMENT ON FORM S-3
EXHIBIT INDEX
Exhibit
No. Description and Method of Filing
----- ---------------------------------
1.1 Form of Distribution Agreement Filed herewith.
with respect to Debt Securities
1.2 Form of Underwriting Agreement A form of any
with respect to Securities underwriting
agreement with
respect to any
Securities will be
filed as an Exhibit
to a report on Form
8-K, as
contemplated by
Item 601(b)(1) of
Regulation S-K
under the
Securities Act.
3.1 *Restated Articles of PP&L Exhibit B to Proxy
Resources, Inc. Statement of PP&L
and Prospectus of
PP&L Resources,
Inc., dated March
9, 1995.
3.2 *By-Laws of PP&L Resources, Inc. Exhibit 3(ii)(a) to
PP&L Resources,
Inc. Quarterly
Report on Form 10-Q
for the quarter
ended September 30,
1998.
3.3 *Certificate of Incorporation of Exhibit 3.3 to PP&L
PP&L Capital Funding, Inc. Resources, Inc. and
PP&L Capital
Funding, Inc.
Registration
Statement Nos. 333-
38003 and 333-
38003-01.
3.4 *By-Laws of PP&L Capital Funding, Exhibit 3.4 to PP&L
Inc. Resources, Inc. and
PP&L Capital
Funding, Inc.
Registration
Statement Nos. 333-
38003 and 333-
38003-01.
4.1 *Indenture dated as of November Exhibit 4.1 to PP&L
1, 1997 among PP&L Resources, Inc.
Resources, Inc., PP&L Current Report on
Capital Funding, Inc. and Form 8-K dated
The Chase Manhattan Bank, as November 12, 1997.
Trustee
4.2 *Supplemental Indenture No. 1 to Exhibit 4.2 to PP&L
Indenture Resources, Inc.
Current Report on
Form 8-K dated
November 12, 1997.
4.3 Supplemental Indenture No. 2 to Filed herewith.
Indenture
4.4 Form of Supplemental Indenture Filed herewith.
establishing series of Debt
Securities
4.5 Form of Officer's Certificate Filed herewith.
establishing the form and terms
of Debt Securities.
4.6 Form of Purchase Contract Filed herewith.
Agreement
II-9
<PAGE>
Exhibit
No. Description and Method of Filing
----- ---------------------------------
4.7 Form of Pledge Agreement Filed herewith.
4.8 Form of Remarketing Agreement Filed herewith.
4.9 Trust Agreement and Certificate Filed herewith.
of Trust of PP&L Capital Funding
Trust I
4.10 Form of Amended and Restated Filed herewith.
Trust Agreement
4.11 Form of Subordinated Indenture Filed herewith.
4.12 Form of Supplemental Indenture Filed herewith.
establishing the series of the
Subordinated Debt Securities
4.13 Form of Trust Securities Filed herewith.
Guarantee Agreement
4.14 Form of Preferred Trust Filed herewith as
Securities part of Exhibit
4.10.
4.15 Form of Common Stock certificate Filed herewith.
5.1 Opinion of Michael A. McGrail as Filed herewith.
to the legality of the Securities
of PP&L Resources and the
Securities Guarantees
5.2 Opinion of Thelen Reid & Priest Filed herewith.
LLP as to the legality of the
Securities and the Securities
Guarantees
5.3 Opinion of Simpson Thacher & Filed herewith.
Bartlett as to legality of
Common Stock
5.4 Opinion of Richards, Layton & Filed herewith.
Finger, P.A., as to legality of
the Preferred Trust Securities
12.1 *Calculation of Ratio of Earnings Exhibit 12 to PP&L
to Fixed Charges Resources, Inc.
Quarterly Report on
Form 10-Q for the
quarter ended June
30, 1999.
12.2 Calculation of Ratio of Earnings Filed herewith.
to Fixed Charges and Preferred
Dividends
23.1 Consent of Michael A. McGrail, Filed herewith as
Esq. part of Exhibit 5.1
23.2 Consent of Thelen Reid & Priest Filed herewith as
LLP part of Exhibit 5.2
23.3 Consent of Simpson Thacher & Filed herewith as
Bartlett part of Exhibit 5.3
23.4 Consent of Richards, Layton & Filed herewith as
Finger, P.A. part of Exhibit 5.4
23.5 Consent of PricewaterhouseCoopers Filed herewith.
LLP
24.1 Power of Attorney of Directors of Filed herewith.
PP&L Resources, Inc.
24.2 Power of Attorney of Trustees of Filed herewith as
PP&L Capital Funding Trust I part of Exhibit 4.9
25.1 Statement of Eligibility of Filed herewith.
Trustee under Indenture
II-10
<PAGE>
Exhibit
No. Description and Method of Filing
----- ---------------------------------
25.2 Statement of Eligibility of Filed herewith.
Trustee under Subordinated
Indenture
25.3 Statement of Eligibility of Filed herewith.
Trustee under Amended and
Restated Trust Agreement of PP&L
Capital Funding Trust I
25.4 Statement of Eligibility of Filed herewith.
Trustee under Preferred
Securities Guarantee
25.5 Statement of Eligibility of Filed herewith.
Trustee under Purchase Contract
Agreement (Purchase Contract
Agent)
________________
* Previously filed as indicated and incorporated herein by
reference.
II-11
EXHIBIT 1.1
-----------
PP&L CAPITAL FUNDING, INC.
$ ___________
MEDIUM-TERM NOTES, SERIES [ ]
UNCONDITIONALLY GUARANTEED
AS TO PAYMENT OF PRINCIPAL, PREMIUM, IF ANY,
AND INTEREST BY PP&L RESOURCES, INC.
DISTRIBUTION AGREEMENT
_____________ ___, ________
[name]
[address]
[name]
[address]
[name]
[address]
[name]
[address]
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 [insert names of Agents] (each, an "Agent", and
collectively, the "Agents") with respect to the issue and sale by the Company of
its Medium-Term Notes, Series [ ] (the "Notes"). The Notes will be
unconditionally guaranteed as to payment of principal, premium, if any, and
interest by the Guarantor pursuant to guarantees of the Guarantor (the
"Guarantees"). Certain terms of the Notes are set forth in Schedule A hereto.
The Notes are to be issued pursuant to an Indenture, dated as of
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. 3,
dated as of _________ __, 1999 (the "Supplemental Indenture" and, together with
<PAGE>
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 $[ ] aggregate principal amount of Notes to or through the Agents
pursuant to the terms of this Agreement. It is understood, however, that the
Company may from time to time authorize the issuance of additional Notes and
that such additional Notes may be sold to or through the Agents pursuant to the
terms of this Agreement, all as though the issuance of such Notes were
authorized as of the date hereof.
This Agreement provides both for the sale of Notes by the Company to
one or more Agents as principal for resale to investors and other purchasers and
for the sale of Notes by the Company directly to investors through one or more
agents (as may from time to time be agreed to by the Company and the applicable
Agent), in which case the applicable Agent will act as an agent of the Company
in soliciting offers for the purchase of Notes.
In connection with the foregoing, the Company and the Guarantor have
filed with the Securities and Exchange Commission (the "Commission") a joint
registration statement on Form S-3 (Nos. 333-______ and 333-_____-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 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
2
<PAGE>
of Notes; provided, further, that if the Company files a registration statement
with the Commission pursuant to Rule 462(b) of the 1933 Act Regulations (the
"Rule 462(b) Registration Statement"), then, after such filing, all references
to the "Registration Statement" shall also be deemed to include the Rule 462(b)
Registration Statement. For purposes of this Agreement, all references to the
Registration Statement or Prospectus or to any amendment or supplement thereto
shall be deemed to include any copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval system ("EDGAR"). All
references in this Agreement to financial statements and schedules and other
information that is "contained," "included" or "stated" in the Registration
Statement or Prospectus (and all other references of like import) shall be
deemed to mean and include all such financial statements and schedules and other
information that are or are deemed to be incorporated by reference in the
Registration Statement or Prospectus, as the case may be; and all references in
this Agreement to amendments or supplements to the Registration Statement or
Prospectus shall be deemed to mean and include the filing of any document under
the 1934 Act that is or is deemed to be incorporated by reference in the
Registration Statement or Prospectus, as the case may be.
1. Appointment as Agent.
--------------------
(a) Appointment. On the basis of the representations, warranties and
-----------
agreements herein contained, but subject to the terms and conditions herein
contained and subject to the reservation by the Company of the right to sell
Notes directly to investors on its own behalf (and not through any Agent),
offers for the purchase of Notes may be solicited by an Agent as agent for the
Company at such times and in such amounts as such Agent deems advisable. The
Company may appoint additional agents in connection with the offering of the
Notes; provided that (i) the Company promptly notifies the Agents of such
appointment and (ii) the commission paid to any such additional agent with
respect to the sale of Notes by the Company as a result of a solicitation made
by such additional agent does not exceed that percentage specified in Schedule B
hereto of the aggregate principal amount of such Notes sold by the Company; and
provided further that, unless the appointment of such additional agent is
expressly limited to the solicitation of offers to purchase a specified
3
<PAGE>
principal amount of Notes on specified terms, such additional agent enters into
an agreement with the Company making such agent an Agent under this Agreement or
enters into an agreement with the Company on terms which are substantially
similar to those contained in this Agreement, which agreement shall include
appropriate changes to reflect the arrangements between the Company and such
additional agent.
(b) Sale of Notes. The Company shall not sell or approve the
-------------
solicitation of offers for the purchase of Notes in excess of the amount which
shall be authorized by the Company from time to time or in excess of the
aggregate principal amount of Notes registered pursuant to the Registration
Statement. The Agents shall have no responsibility for maintaining records with
respect to the aggregate principal amount of Notes sold, or of otherwise
monitoring the availability of Notes for sale, under the Registration Statement.
(c) Purchases as Principal. The Agents shall not have any obligation
----------------------
to purchase Notes from the Company as principal. However, absent an agreement
between an Agent and the Company that such Agent shall be acting solely as an
agent for the Company, such Agent shall be deemed to be acting as principal in
connection with any offering of Notes by the Company through such Agent.
Accordingly, the Agents, individually or in a syndicate, may agree from time to
time to purchase Notes from the Company as principal for resale to investors and
other purchasers determined by such Agents. Any purchase of Notes from the
Company by an Agent as principal shall be made in accordance with Section 3(a)
hereof.
(d) Solicitations as Agent. If agreed upon between an Agent and the
----------------------
Company, such Agent, acting solely as an agent for the Company and not as
principal, will solicit offers for the purchase of Notes. Such Agent will
communicate to the Company, orally or in writing, each offer for the purchase of
Notes solicited by it on an agency basis other than those offers rejected by
such Agent. Such Agent shall have the right, in its discretion reasonably
exercised, to reject any offer for the purchase of Notes, in whole or in part,
and any such rejection shall not be deemed a breach of its agreement contained
herein. The Company may accept or reject any offer for the purchase of Notes, in
whole or in part. Such Agent shall make reasonable efforts to assist the Company
in obtaining performance by each purchaser whose offer for the purchase of Notes
4
<PAGE>
has been solicited by it on an agency basis and accepted by the Company. Such
Agent shall not have any liability to the Company in the event that any such
purchase is not consummated for any reason. If the Company shall default on its
obligation to deliver Notes against payment tendered by a purchaser whose offer
has been solicited by such Agent on an agency basis and accepted by the Company,
the Company shall hold such Agent harmless against any loss, claim or damage
arising from or as a result of such default by the Company.
(e) Reliance. The Company and the Agents agree that any Notes
--------
purchased from the Company by one or more Agents as principal shall be
purchased, and any Notes the placement of which an Agent arranges as an agent of
the Company shall be placed by such Agent, in reliance on the representations,
warranties, covenants and agreements of the Company contained herein and on the
terms and conditions and in the manner provided herein.
2. Representations and Warranties.
------------------------------
(a) The Company and the Guarantor jointly and severally represent and
warrant to, and agree with, each Agent as of the date hereof, as of the date of
each acceptance by the Company of an offer for the purchase of Notes (whether to
such Agent as principal or through such Agent as agent), as of the date of each
delivery of Notes (whether to such Agent as principal or through such Agent as
agent) (the date of each such delivery to such Agent as principal is referred to
herein as a "Settlement Date"), and as of any time that the Registration
Statement or the Prospectus shall be amended or supplemented (each of the times
referenced above is referred to herein as a "Representation Date"), that:
(i) The Registration Statement, when it became effective and at each
Representation Date, and the Prospectus and any amendment or supplement
thereto, when filed or transmitted for filing with the Commission and at
each Representation Date, complied or will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and the
1939 Act and the rules and regulations of the Commission under the 1939 Act
(the "1939 Act Regulations"), and did not or will not contain an untrue
5
<PAGE>
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that the representations and warranties in
this subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with the information furnished to the Company in writing by the
Agents expressly for use in the Registration Statement or Prospectus or to
that part of the Registration Statement which constitutes the Trustee's
Statement of Eligibility and Qualification under the 1939 Act (the "T-1").
(ii) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement or Prospectus, at the time they
were or hereafter are filed with the Commission, complied and will comply
in all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission under the 1934 Act (the "1934 Act
Regulations"), and, when read together with the other information in the
Prospectus, at the date hereof, at the date of the Prospectus and at each
Representation Date, did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this subsection shall
not apply to statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by or through any Agent expressly for
use in the Registration Statement or Prospectus.
(iii) The Guarantor has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the Commonwealth of
Pennsylvania with corporate power and authority to enter into and perform
its obligations under this Agreement, the Indenture and the Guarantees.
(iv) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware with
6
<PAGE>
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 in all material respects to the statements relating thereto
contained in the Prospectus.
7
<PAGE>
(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 delivered to one or more Agents or to
counsel for the Agents in connection with an offering of Notes to one or more
8
<PAGE>
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 appoint sub-agents with respect to Notes sold
9
<PAGE>
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 Agent for the account of any purchaser only
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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
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amendment or supplement providing solely for the determination of the variable
terms of the Notes or relating solely to the offering of securities other than
the Notes), or (iii) any document that would as a result thereof be incorporated
by reference in the Prospectus whether pursuant to the 1933 Act, the 1934 Act or
otherwise; and will furnish the Agents with copies of any such amendment,
supplement or other document a reasonable amount of time prior to such proposed
filing or use, as the case may be;
(c) To endeavor, in cooperation with the Agents, to qualify the Notes
for offer and sale under the securities or blue sky laws of such states and the
other jurisdictions of the United States as the Agents may from time to time
designate, to continue such qualifications in effect so long as required for the
distribution of the Notes and to reimburse the Agents for any expenses
(including filing fees and reasonable fees and disbursements of counsel) paid by
the Agents or on their behalf to qualify the Notes for offer and sale, to
continue such qualification, to determine the eligibility of the Notes for
investment and to print the memoranda relating thereto; provided that neither
the Company nor the Guarantor shall be required to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified, to consent to
service of process in any jurisdiction other than with respect to claims arising
out of the offering or sale of the Notes, or to meet any other requirement in
connection with this paragraph (c) deemed by them to be unduly burdensome;
(d) To deliver promptly to the Agents signed copies of the
Registration Statement as originally filed and of all amendments thereto
heretofore or hereafter filed, including conformed copies of all exhibits except
those incorporated by reference, and such number of conformed copies of the
Registration Statement (but excluding the exhibits), the Prospectus, and any
amendments and supplements thereto, as the Agents may reasonably request;
(e) To prepare, with respect to any Notes to be sold to or through one
or more Agents pursuant to this Agreement, a Pricing Supplement with respect to
such Notes 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
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424(b) under the 1933 Act not later than the close of business of the Commission
on the fifth business day after the date on which such Pricing Supplement is
first used;
(f) Except as otherwise provided in subsection (l) of this Section 5,
if at any time during the term of this Agreement any event occurs as a result of
which the Prospectus, as then amended or supplemented, would include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances existing at the time the Prospectus is delivered to a purchaser,
not misleading, or if it shall be necessary at any time to amend the
Registration Statement or amend or supplement the Prospectus to comply with the
1933 Act or the 1933 Act Regulations, to advise the Agents immediately,
confirmed in writing, to cease the solicitation of offers for the purchase of
Notes in their capacity as agents and to cease sales of any Notes they may then
own as principal, and to promptly prepare and file with the Commission, subject
to Section 5(b) hereof, such amendment or supplement which will correct such
statement or omission or an amendment which will effect such compliance;
provided, however, that the cost of any amendment or supplement which relates
solely to the activities of any Agent shall be borne by the Agent or Agents
requiring the same;
(g) Except as otherwise provided in subsection (l) of this Section 5,
on or prior to the date on which there shall be released to the general public
interim financial statement information related to the Company or the Guarantor
with respect to each of the first three quarters of any fiscal year or
preliminary financial statement information with respect to any fiscal year, or
financial information included in the audited consolidated financial statements
of the Company or the Guarantor for the preceding fiscal year, the Company and
the Guarantor shall furnish such information to the Agents;
(h) As soon as practicable, the Guarantor will make generally
available to its security holders an earnings 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;0
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<PAGE>
(i) The Company and the Guarantor during the period when the
Prospectus is required to be delivered under the 1933 Act, will file all
documents required to be filed with the Commission pursuant to Sections 13(a),
13(c), 14 or 15(d) of the 1934 Act within the time periods prescribed by the
1934 Act and the 1934 Act Regulations;
(j) Unless otherwise agreed upon between one or more Agents acting as
principal and the Company, between the date of any Terms Agreement by such
Agent(s) to purchase Notes from the Company and the Settlement Date with respect
thereto, the Company will not, without the prior written consent of such
Agent(s), issue, sell, offer or contract to sell, grant any option for the sale
of, or otherwise dispose of, any debt securities of the Company with maturities
and other terms substantially similar to the Notes being sold pursuant to such
Terms Agreement (other than the Notes that are to be sold pursuant to such Terms
Agreement, notes to banks under the Revolving Credit Agreement of the Company or
commercial paper in the ordinary course of business);
(k) The Company will apply the net proceeds from the sale of the Notes
for the purposes set forth in the Prospectus;
(l) The Company shall not be required to comply with the provisions of
subsections (f) or (g) of this Section 5 during any period from the time the
Agents shall have suspended solicitation of offers for the purchase of Notes in
their capacity as agents pursuant to a request from the Company until the time
the Company shall determine that solicitation of offers for the purchase of
Notes should be resumed; provided, however, that compliance with such
subsections shall be required for any portion of such period during which an
Agent shall hold any Notes as principal purchased pursuant to a Terms Agreement;
and provided further that the Agents shall, upon inquiry by the Company or the
Guarantor, advise the Company and the Guarantor whether or not any of them
retains any Notes for purposes of this subsection (1), and from the 30th day
immediately following the issuance of such Notes, unless otherwise 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.
14
<PAGE>
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 PricewaterhouseCoopers LLP a
letter, dated the date of this Agreement, in form and substance satisfactory to
you, to the effect that:
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<PAGE>
(i) They are independent accountants with respect to the Guarantor and
its subsidiaries within the meaning of the 1933 Act and the 1933 Act
Regulations;
(ii) In their opinion, the consolidated financial statements of the
Guarantor and its subsidiaries audited by them and incorporated by
reference in the Registration Statement comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act and
the 1934 Act and the published rules and regulations thereunder with
respect to registration statements on Form S-3;
(iii) On the basis of procedures (but not an audit in accordance with
generally accepted auditing standards) consisting of:
(A) Reading the minutes of meetings of the shareowners and the
Boards of Directors of the Guarantor and the Company and their
Executive, Compensation and Corporate Governance, Finance and the
Audit and Corporate Responsibility Committees since the day after the
end of the last audited period as set forth in the minute books
through a specified date not more than five business days prior to the
date of delivery of such letter;
(B) With respect to the unaudited consolidated balance sheet as
of the most recent quarter ended and the unaudited consolidated
statements of income and of cash flows included in the Guarantor's
Quarterly Report on Form 10-Q for the most recent quarter ended ("Form
10-Q") incorporated by reference in the Registration Statement,
(i) Performing the procedures specified by the American Institute of
Certified Public Accountants for a review of interim financial information
as described in SAS No. 71, Interim Financial Information, on the unaudited
-----------------------------
consolidated balance sheet and the unaudited consolidated statements of
income and of cash 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;
16
<PAGE>
(ii) Making inquiries of certain officials of the Guarantor who have
responsibility for financial and accounting matters as to whether the
unaudited consolidated financial statements referred to in (B)(i) comply as
to form in all material respects with the applicable accounting
requirements of the 1934 Act, as it applies to Form 10-Q and the related
published rules and regulations thereunder;
(C) Reading the unaudited interim financial data for the period
from the date of the latest balance sheet included or incorporated in
the Registration Statement to the date of the latest available interim
financial data; and
(D) Making inquiries of certain officials of the Guarantor who
have responsibility for financial and accounting matters regarding the
specific items for which representations are requested below;
nothing has come to their attention as a result of the foregoing
procedures that caused them to believe that (i) the unaudited
consolidated financial statements described in (B)(i), included in the
Form 10-Q and incorporated by reference in the Registration Statement,
do not comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1934 Act, as it
applies to Form 10-Q, and the related published rules and regulations
thereunder; or (ii) any material modifications should be made to the
unaudited consolidated financial statements described in (B)(i),
included in the Form 10-Q and incorporated by reference in the
Registration Statement, for them to be in conformity with generally
accepted accounting principles; or (iii) at the date of the latest
available interim financial data and at the date of the latest
available month end, there was any change in the common equity; (iv)
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 common stock or
preferred stock (with or without sinking fund requirements) (except
for changes in shares of certain series of preferred stock of a
17
<PAGE>
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 (v)
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
18
<PAGE>
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;
(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
19
<PAGE>
the Company and the Trustee, is a valid and binding obligation of the
Guarantor, enforceable in accordance with its terms, except to the extent
limited by the Bankruptcy Exceptions;
(vii) The Guarantees are in the form established pursuant to the
Indenture, have been duly authorized by the Guarantor, and, when duly
executed pursuant to the Indenture and delivered in accordance with the
provisions of this Agreement, will constitute valid and binding obligations
of the Guarantor, as guarantor, enforceable in accordance with their terms,
except to the extent limited by the Bankruptcy Exceptions;
(viii) No approval, authorization, consent or other order of any
public board or body is legally required for the authorization of the
offering, issuance and sale of the Notes, except (a) such as may be
required under the 1933 Act or the 1933 Act Regulations or the securities
or "blue sky" laws of any jurisdiction and (b) the qualification of the
Indenture under the 1939 Act and 1939 Act Regulations.
In rendering such opinion, such counsel may rely as to matters
governed by New York law upon the opinion of Thelen Reid & Priest LLP
referred to in Section 7(d) of this Agreement.
(d) On the date hereof, the Agents shall have received from Thelen
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
20
<PAGE>
extent limited by the Bankruptcy Exceptions, and are entitled to the
benefits of the Indenture;
(iii) The Guarantees are in the form established pursuant to the
Indenture, have been duly authorized by the Guarantor, and, when duly
executed pursuant to the Indenture and delivered in accordance with the
provisions of this Agreement, will constitute valid and binding obligations
of the Guarantor, as guarantor, enforceable in accordance with their terms,
except to the extent limited by the Bankruptcy Exceptions;
(iv) This Agreement has been duly authorized, executed and delivered
by each of the Guarantor and the Company;
(v) The Indenture has been duly authorized, executed and delivered by
the Company and the Guarantor and, assuming due authorization, execution,
and delivery by the Trustee, is a valid and binding obligation of the
Company and the Guarantor, enforceable in accordance with its terms, except
to the extent limited by the Bankruptcy Exceptions; and the Indenture has
been duly qualified under the 1939 Act;
(vi) The Registration Statement has become effective under the 1933
Act and any required filing of the Prospectus pursuant to Rule 424(b) has
been made in the manner and within the time period required, and, to the
best of the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or any part thereof has been
issued and no proceedings for that purpose have been instituted or are
pending or contemplated under the 1933 Act, and the Registration Statement,
as of its effective date, and any amendment thereto, as of its date, and
the Prospectus, as of its date, and each amendment or supplement thereto,
as of its date, complied as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations, and nothing has
come to the attention of such counsel which would lead such counsel to
believe either that the Registration Statement or any amendment thereto, as
of such dates, contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, or that the Prospectus or any
21
<PAGE>
amendment or supplement thereto, as of the date issued or the date of such
opinion, contained or contains any untrue statement of a material fact or
omitted or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; it being understood that such counsel need express no
opinion as to the financial statements and other financial or statistical
data contained or incorporated by reference in the Registration Statement
or the Prospectus;
(vii) The statements in the Prospectus under the captions "Description
of the Debt Securities" and "Description of Notes", insofar as they purport
to constitute summaries of certain terms of the Indenture, the Notes and
the Guarantees, in each case constitute accurate summaries of such terms of
such documents and securities, in all material respects;
(viii) The Company is a "finance subsidiary" within the meaning of
Rule 3a-5 of the 1940 Act, and the Guarantees satisfy the conditions of
clauses (a)(1) and (3) of Rule 3a-5. Assuming that the Company continues to
qualify as a "finance subsidiary" within the meaning of Rule 3a-5,
satisfies the conditions of clauses (a)(5) and (6) of Rule 3a-5 and
satisfies the conditions of Rule 3a-5 in respect of any securities other
than the Notes issued by the Company, upon giving effect to the
transactions contemplated by this Agreement, the Prospectus and the
application of the proceeds from the sale of the Notes contemplated in the
Prospectus, the Company will not be an "investment company" within the
meaning of the 1940 Act. The Guarantor is not an "investment company"
within the meaning of the 1940 Act; and
(ix) No approval, authorization, consent or other order of any public
board or body is legally required under federal or New York law for the
authorization of the offering, issuance and sale of the Notes, except (a)
such as may be required under the 1933 Act or the 1933 Act Regulations or
the securities or "blue sky" laws of any jurisdiction and (b) the
qualification of the Indenture under the 1939 Act and 1939 Act Regulations.
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<PAGE>
(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.
In rendering their opinion, Thelen Reid & Priest LLP may rely as to
matters governed by Pennsylvania law upon the opinion of Michael A.
McGrail, Esq., or such other counsel referred to in Section 7(c) of this
Agreement.
(e) On the date hereof, the Agents shall have received from Sullivan &
Cromwell, counsel for the Agents, such opinion or opinions, dated as of the date
hereof, with respect to the validity of the Notes and the Guarantees, this
Agreement, the Registration Statement, the Prospectus and other related matters
as the Agents may require, and the Company and the Guarantor shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters. In rendering such opinion or opinions,
Sullivan & Cromwell may assume the due incorporation and valid existence of the
Company and the Guarantor and may rely as to matters governed by Pennsylvania
law upon the opinion of Michael A. McGrail, Esq. or such other counsel for the
Company and the Guarantor referred to in Section 7(c) of this Agreement.
(f) On the date hereof, the Agents shall have received certificates,
dated the date hereof, of the President or a Vice President and a financial or
accounting officer of the Guarantor and of a Vice President or Treasurer of the
Company in which such officers, to the best of their knowledge after reasonable
investigation, shall state that (i) the representations and warranties of the
Company or the Guarantor, as the case may be, in this Agreement are true and
correct (except for immaterial details) as of the date of such certificate, (ii)
the Company or Guarantor, as the case may be, has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied at or
prior to the date of such certificate, (iii) no stop order suspending the
effectiveness of the Registration Statement has been issued, and no proceedings
for that purpose have been instituted or are pending by the Commission, and (iv)
subsequent to the date of the latest financial statements in the Prospectus,
there has been no Material Adverse Effect, whether or not arising in the
23
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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:
(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
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<PAGE>
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).
(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 Thelen 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
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<PAGE>
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 PricewaterhouseCoopers LLP forthwith to furnish to the Agent(s) a
letter, dated the date of filing with the Commission or the date of
effectiveness of such amendment or supplement, as applicable, or the date of
such sale, as the case may be, in form satisfactory to the Agent(s), of the same
tenor as the letter referred to in Section 7(a) hereof but modified to relate to
the Registration Statement and Prospectus as amended and supplemented to the
date of such letter; provided, however, that if the Registration Statement or
the Prospectus is amended or supplemented solely to include financial
information as of and for a fiscal quarter, PricewaterhouseCoopers 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
26
<PAGE>
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 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
27
<PAGE>
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.
(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.
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<PAGE>
(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 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
29
<PAGE>
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
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,
30
<PAGE>
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.
(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
31
<PAGE>
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 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:
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<PAGE>
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 [name]:
[address]
Attention:
Facsimile:
With a copy in the case of [name]:
[address]
Attention:
Facsimile:
If to [name]:
[address]
Attention:
Facsimile:
If to [name]:
[address]
Attention:
Facsimile:
With a copy in the case
of [name]:
[address]
Attention:
Facsimile:
If to [name]:
[address]
Attention:
Facsimile:
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
33
<PAGE>
Agreement. The term "successor" shall not include any assignee of an Agent
(other than a person substituted for an Agent under Section 10 hereof or one who
shall acquire all or substantially all of an Agent's business and properties),
nor shall it include any purchaser of Notes from any Agent merely because of
such purchase.
15. Applicable Law.
--------------
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
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<PAGE>
16. Counterparts.
------------
This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
Please confirm that the foregoing correctly sets forth the agreement
between us by signing in the space provided below for that purpose, whereupon
this Distribution Agreement shall constitute a binding agreement between the
Company and the Guarantor and the several Agents in accordance with its terms.
Yours very truly,
PP&L RESOURCES, INC.
By:
-------------------------------
Name:
Title:
PP&L CAPITAL FUNDING, INC.
By:
-------------------------------
Name:
Title:
35
<PAGE>
The foregoing Distribution Agreement is hereby confirmed and accepted
as of the date first above written.
[NAME]
By:
---------------------------------
Name:
Title:
[NAME]
By:
---------------------------------
Name:
Title:
[NAME]
By:
---------------------------------
Name:
Title:
[NAME]
By:
---------------------------------
Name:
Title:
36
<PAGE>
SCHEDULE A
----------
PRICING TERMS
Principal Amount: $______________
Interest Rate or Formula:
If Fixed Rate Note,
Interest Rate:
Interest Payment Dates:
If Floating Rate Note,
Interest Rate Basis(es):
If LIBOR,
|_| LIBOR Reuters Page:
|_| LIBOR Telerate Page:
Designated LIBOR Currency:
If CMT Rate,
Designated CMT Telerate Page:
If Telerate Page 7052:
|_| Weekly Average
|_| Monthly Average
Designated CMT Maturity Index:
Index Maturity:
Spread and/or Spread Multiplier, if any:
Initial Interest Rate, if any:
Initial Interest Reset Date:
Interest Reset Dates:
Interest Payment Dates:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Fixed Rate Commencement Date, if any:
Fixed Interest Rate, if any:
Day Count Convention:
Calculation Agent:
Redemption Provisions:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction, if any:
Repayment Provisions:
Optional Repayment Date(s)
Original Issue Date:
Stated Maturity Date
Exchange Rate Agent:
Authorized Denomination:
37
<PAGE>
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
38
<PAGE>
SCHEDULE B
----------
As compensation for the services of the Agents hereunder, the Company
shall pay the applicable Agent, on a discount basis, a commission for the sale
of each Note equal to the principal amount of such Notes multiplied by the
appropriate percentage set forth below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
- --------------- ----------------
From 9 months to less than 1 year ......................... .125%
From 1 year to less than 18 months ........................ .150
From 18 months to less than 2 years ....................... .200
From 2 years to less than 3 years ......................... .250
From 3 years to less than 4 years ......................... .350
From 4 years to less than 5 years ......................... .450
From 5 years to less than 6 years ......................... .500
From 6 years to less than 7 years ......................... .550
From 7 years to less than 10 years ........................ .600
From 10 years to less than 15 years ....................... .625
From 15 years to less than 20 years ....................... .700
From 20 years to 30 years ................................. .750
From 30 years to 40 Years ................................. *
- ---------------------
* As agreed to by the Company and the applicable Agent at
the time of sale.
39
<PAGE>
SCHEDULE C
----------
PP&L CAPITAL FUNDING, INC.
ADMINISTRATIVE PROCEDURES
FOR FIXED RATE AND FLOATING RATE MEDIUM-TERM
NOTES, SERIES [ ]
(Dated as of _________ __, 1999)
Medium-Term Notes, Series C (the "Notes") in an aggregate principal
amount of up to $[_____________] are to be offered on a continuous basis by
PP&L Capital Funding, Inc., a Delaware corporation (the "Company"), to or
through [insert names of Agents] (each, an "Agent" and, collectively, the
"Agents") pursuant to a Distribution Agreement, dated _________ ____, (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 and any premium, 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.
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
40
<PAGE>
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.
41
<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 the
specified Interest Rate Basis or Bases plus
or minus the applicable Spread, if any,
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<PAGE>
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 8 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 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
44
<PAGE>
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 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
45
<PAGE>
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.
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
46
<PAGE>
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;
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
47
<PAGE>
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,
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
48
<PAGE>
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 [name],
to: [address] Attention: [name/phone],
telecopier [fax]; if to [name], to:
[address], Attention: [name/phone],
telecopier: [fax]; if to [name], to
[address], Attention: [name], telecopier:
[fax]; and if to [name], to: [address],
Attention: [name]; telecopier: [fax]; 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 or
telecopied to [name/address] Attention:
[name/phone], telecopier: [fax], with a
copy, to each of Thelen 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
49
<PAGE>
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
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
50
<PAGE>
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
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: [name/address],
Attention: [name/phone], telecopier
[fax]; [name/address], Attention:
[name/phone], telecopier: [fax];
[name/address], Attention: [name],
telecopier: [fax]; [name/address],
Attention: [name/phone];
telecopier: [fax]; and [name/address],
Attention: [name/phone];
telecopier: [fax]; 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
Thelen Reid & Priest LLP, 40 West 57th
Street, New York, New York 10019-4097,
51
<PAGE>
Attention: 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.
52
<PAGE>
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.
53
<PAGE>
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 Bring-Down Letter
of Representations from the Company, the Guarantor and the Trustee to DTC, dated
_________ __, 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 Same-Day 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
54
<PAGE>
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.
55
<PAGE>
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
56
<PAGE>
date; (b) a date, occurring at 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
57
<PAGE>
not be denominated in excess of $200,000,000
aggregate principal amount. 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
58
<PAGE>
times and in the manner set forth below
under "Manner of Payment".
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
59
<PAGE>
business on the immediately preceding
Business Day.
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.
60
<PAGE>
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.
61
<PAGE>
(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).
62
<PAGE>
B. The Company will advise Chase by
facsimile transmission or other
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
$[_____________] (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
63
<PAGE>
Participant Terminal System a
pending deposit message specifying
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
64
<PAGE>
information in the message to
include certain terms of the related
Global Note in the 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
65
<PAGE>
Note pursuant to the Certificate
Agreement.
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.
66
<PAGE>
K. If such Note was sold through the
Offering Agent, as agent, the
Offering Agent will confirm the
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
67
<PAGE>
extension of Fedwire closing deadlines and
in the other events specified in the SDFS
operating procedures in effect on the
Settlement Date.
If settlement of a 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
68
<PAGE>
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.
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
69
<PAGE>
Settlement Procedure D, for the
authentication and issuance of a Global Note
representing such remaining Notes and will
make appropriate entries in its
records.
70
<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 registered
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.
71
<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.
72
<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.
73
<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,
74
<PAGE>
the 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 $[ ]
(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.
75
<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:
[name/address], Attention:
[name/phone], tele copier: [fax];
[name/address], Attention:
[name/phone], tele copier: [fax];
[name/address], Attention:
[name/phone], tele copier: [fax];
and [name/address], Attention:
[name/phone], telecopier: [fax];
and the Trustee will keep Stub 1.
The Offering Agent will acknowl
edge receipt of the Certificated
Note through a broker's receipt and
76
<PAGE>
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 deduc
tion 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.
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
77
<PAGE>
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 immedi ately available funds equal to the
amount previously paid to the Company by
such Offering Agent in settlement for 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 fail ure 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
78
<PAGE>
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.
79
<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
CAPTION Items
- ------- -----
"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)
80
EXHIBIT 4.3
-----------
===============================================================================
PP&L CAPITAL FUNDING, INC.,
ISSUER
AND
PP&L RESOURCES, INC.,
GUARANTOR
TO
THE CHASE MANHATTAN BANK,
TRUSTEE
---------
SUPPLEMENTAL INDENTURE NO. 2
DATED AS OF MARCH 1, 1999
SUPPLEMENTAL TO THE INDENTURE
DATED AS OF NOVEMBER 1, 1997
ESTABLISHING A SERIES OF SECURITIES DESIGNATED
MEDIUM TERM NOTES, SERIES B
LIMITED IN AGGREGATE PRINCIPAL AMOUNT TO $400,000,000
===============================================================================
<PAGE>
SUPPLEMENTAL INDENTURE NO. 2, dated as of March 1, 1999 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. 2 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 B" 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. 2."
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. 2.
The Company has duly authorized the execution and delivery of
this Supplemental Indenture No. 2 to establish the Securities of Series No. 2
and has duly authorized the issuance of such Securities; the Guarantor has duly
authorized the execution and delivery of this Supplemental Indenture No. 2 and
has duly authorized its Guarantees of the Securities of Series No. 2; and all
acts necessary to make this Supplemental Indenture No. 2 a valid agreement of
the Company and the Guarantor, to make the Securities of Series No. 2 valid
obligations of the Company, and to make the Guarantees valid obligations of the
Guarantor, have been performed.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE NO. 2
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. 2, as follows:
<PAGE>
ARTICLE ONE
SECOND SERIES OF SECURITIES
SECTION 1. There is hereby created a series of Securities
designated "Medium-Term Notes, Series B" 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. 2 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. 2, or any portion of the principal amount thereof, as
contemplated by Section 701 of the Indenture, the Company shall not deliver an
Officer's Certificate described in clause (z) in the first paragraph of said
Section 701 unless the Company shall also deliver to the Trustee, together with
such Officer's Certificate, either:
(A) an instrument wherein the Company, notwithstanding the
satisfaction and discharge of its indebtedness in respect of such
Securities, shall assume the obligation (which shall be absolute and
unconditional) to irrevocably deposit with the Trustee or Paying Agent
such additional sums of money, if any, or additional Eligible
Obligations (meeting the requirements of Section 701), if any, or any
combination thereof, at such time or times, as shall be necessary,
together with the money and/or Eligible Obligations theretofore so
deposited, to pay when due the principal of and premium, if any, and
interest due and to become due on such Securities or portions thereof,
all in accordance with and subject to the provisions of said Section
701; provided, however, that such instrument may state that the
obligation of the Company to make additional deposits as aforesaid
shall be subject to the delivery to the Company by the Trustee of a
notice asserting the deficiency accompanied by an opinion of an
independent public accountant of nationally recognized standing,
selected by the Trustee, showing the calculation thereof (which opinion
shall be obtained at the expense of the Company); or
(B) an Opinion of Counsel to the effect that the Holders of
such Securities, or portions of the principal amount thereof, will not
recognize income, gain or loss for United States federal income tax
purposes as a result of the satisfaction and discharge of the Company's
indebtedness in respect thereof and will be subject to United States
federal income tax on the same amounts, at the same times and in the
same manner as if such satisfaction and discharge had not been
effected.
2
<PAGE>
ARTICLE TWO
FORM OF GUARANTEE
Guarantees to be endorsed on the Securities of Series No. 2
shall be in substantially the form set forth below:
[FORM OF GUARANTEE]
PP&L Resources, Inc., a corporation organized under
the laws of the Commonwealth of Pennsylvania (the "Guarantor", which
term includes any successor under the Indenture (the "Indenture")
referred to in the Security upon which this Guarantee is endorsed), for
value received, hereby unconditionally guarantees to the Holder of the
Security upon which this Guarantee is endorsed, the due and punctual
payment of the principal of, and premium, if any, and interest, if any,
on such Security when and as the same shall become due and payable,
whether at the Stated Maturity, by declaration of acceleration, call
for redemption, or otherwise, in accordance with the terms of such
Security and of the Indenture. In case of the failure of PP&L Capital
Funding, Inc., a corporation organized under the laws of the State of
Delaware (the "Company", which term includes any successor under the
Indenture), punctually to make any such payment, the Guarantor hereby
agrees to cause such payment to be made punctually when and as the same
shall become due and payable, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise, and as
if such payment were made by the Company.
The Guarantor hereby agrees that its obligations
hereunder shall be absolute and unconditional irrespective of, and
shall be unaffected by, any invalidity, irregularity or
unenforceability of such Security or the Indenture, any failure to
enforce the provisions of such Security or the Indenture, or any
waiver, modification or indulgence granted to the Company with respect
thereto, by the Holder of such Security or the Trustee or any other
circumstance which may otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor; provided, however, that
notwithstanding the foregoing, no such waiver, modification or
indulgence shall, without the consent of the Guarantor, increase the
principal amount of such Security, or increase the interest rate
thereon, or change any redemption provisions thereof (including any
change to increase any premium payable upon redemption thereof) or
change the Stated Maturity thereof.
The Guarantor hereby waives the benefits of diligence,
presentment, demand for payment, any requirement that the Trustee or
the Holder of such Security exhaust any right or take any action
against the Company or any other Person, filing of claims with a court
in the event of insolvency or bankruptcy of the Company, any right to
3
<PAGE>
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,
if any, 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.
4
<PAGE>
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. 2 is a supplement
to the Original Indenture. As supplemented by this Supplemental Indenture No. 2,
the Indenture is in all respects ratified, approved and confirmed, and the
Original Indenture and this Supplemental Indenture No. 2 shall together
constitute one and the same instrument.
SECTION 2. The recitals contained in this Supplemental
Indenture No. 2 shall be taken as the statements of the Company and the
Guarantor, and the Trustee assumes no responsibility for their correctness and
makes no representations as to the validity or sufficiency of this Supplemental
Indenture No. 2.
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.
5
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture No. 2 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/ James E. Abel
-------------------------------
Name: James E. Abel
Title: Treasurer
[SEAL]
ATTEST:
/s/ Diane M. Koch
- ---------------------------
PP&L RESOURCES, INC.
By: /s/ John R. Biggar
-------------------------------
Name: John R. Biggar
Title: Senior Vice President
and Chief Financial Officer
[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/ Yvonne Robinson
--------------------------
6
EXHIBIT 4.4
-----------
==============================================================================
PP&L CAPITAL FUNDING, INC.,
ISSUER
AND
PP&L RESOURCES, INC.,
GUARANTOR
TO
THE CHASE MANHATTAN BANK,
TRUSTEE
---------
SUPPLEMENTAL INDENTURE NO. 3
DATED AS OF _____________________
SUPPLEMENTAL TO THE INDENTURE
DATED AS OF NOVEMBER 1, 1997
ESTABLISHING A SERIES OF SECURITIES DESIGNATED
MEDIUM TERM NOTES, SERIES [_]
LIMITED IN AGGREGATE PRINCIPAL AMOUNT TO $[______________]
==============================================================================
<PAGE>
SUPPLEMENTAL INDENTURE NO. 3, dated as of ___________________
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. 3 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 C" to be limited in aggregate principal
amount (except as contemplated in Section 301(b) of the Original Indenture) to
$[____________], such series of Securities to be hereinafter sometimes called
"Series No. 3."
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. 3.
The Company has duly authorized the execution and delivery of
this Supplemental Indenture No. 3 to establish the Securities of Series No. 3
and has duly authorized the issuance of such Securities; the Guarantor has duly
authorized the execution and delivery of this Supplemental Indenture No. 3 and
has duly authorized its Guarantees of the Securities of Series No. 3; and all
acts necessary to make this Supplemental Indenture No. 3 a valid agreement of
the Company and the Guarantor, to make the Securities of Series No. 3 valid
obligations of the Company, and to make the Guarantees valid obligations of the
Guarantor, have been performed.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE NO. 3
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. 3, as follows:
<PAGE>
ARTICLE ONE
SECOND SERIES OF SECURITIES
SECTION 1. There is hereby created a series of Securities
designated "Medium Term Notes, Series C" and limited in aggregate principal
amount (except as contemplated in Section 301(b) of the Original Indenture) to
$[____________]. The forms and terms of the Securities of Series No. 3 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. 3, or any portion of the principal amount thereof, as
contemplated by Section 701 of the Indenture, the Company shall not deliver an
Officer's Certificate described in clause (z) in the first paragraph of said
Section 701 unless the Company shall also deliver to the Trustee, together with
such Officer's Certificate, either:
(A) an instrument wherein the Company, notwithstanding the
satisfaction and discharge of its indebtedness in respect of such
Securities, shall assume the obligation (which shall be absolute and
unconditional) to irrevocably deposit with the Trustee or Paying Agent
such additional sums of money, if any, or additional Eligible
Obligations (meeting the requirements of Section 701), if any, or any
combination thereof, at such time or times, as shall be necessary,
together with the money and/or Eligible Obligations theretofore so
deposited, to pay when due the principal of and premium, if any, and
interest due and to become due on such Securities or portions thereof,
all in accordance with and subject to the provisions of said Section
701; provided, however, that such instrument may state that the
obligation of the Company to make additional deposits as aforesaid
shall be subject to the delivery to the Company by the Trustee of a
notice asserting the deficiency accompanied by an opinion of an
independent public accountant of nationally recognized standing,
selected by the Trustee, showing the calculation thereof (which opinion
shall be obtained at the expense of the Company); or
(B) an Opinion of Counsel to the effect that the Holders of
such Securities, or portions of the principal amount thereof, will not
recognize income, gain or loss for United States federal income tax
purposes as a result of the satisfaction and discharge of the Company's
indebtedness in respect thereof and will be subject to United States
federal income tax on the same amounts, at the same times and in the
same manner as if such satisfaction and discharge had not been
effected.
2
<PAGE>
ARTICLE TWO
FORM OF GUARANTEE
Guarantees to be endorsed on the Securities of Series No. 3
shall be in substantially the form set forth below:
[FORM OF GUARANTEE]
PP&L Resources, Inc., a corporation organized under
the laws of the Commonwealth of Pennsylvania (the "Guarantor", which
term includes any successor under the Indenture (the "Indenture")
referred to in the Security upon which this Guarantee is endorsed), for
value received, hereby unconditionally guarantees to the Holder of the
Security upon which this Guarantee is endorsed, the due and punctual
payment of the principal of, and premium, if any, and interest, if any,
on such Security when and as the same shall become due and payable,
whether at the Stated Maturity, by declaration of acceleration, call
for redemption, or otherwise, in accordance with the terms of such
Security and of the Indenture. In case of the failure of PP&L Capital
Funding, Inc., a corporation organized under the laws of the State of
Delaware (the "Company", which term includes any successor under the
Indenture), punctually to make any such payment, the Guarantor hereby
agrees to cause such payment to be made punctually when and as the same
shall become due and payable, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise, and as
if such payment were made by the Company.
The Guarantor hereby agrees that its obligations
hereunder shall be absolute and unconditional irrespective of, and
shall be unaffected by, any invalidity, irregularity or
unenforceability of such Security or the Indenture, any failure to
enforce the provisions of such Security or the Indenture, or any
waiver, modification or indulgence granted to the Company with respect
thereto, by the Holder of such Security or the Trustee or any other
circumstance which may otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor; provided, however, that
notwithstanding the foregoing, no such waiver, modification or
indulgence shall, without the consent of the Guarantor, increase the
principal amount of such Security, or increase the interest rate
thereon, or change any redemption provisions thereof (including any
change to increase any premium payable upon redemption thereof) or
change the Stated Maturity thereof.
The Guarantor hereby waives the benefits of diligence,
presentment, demand for payment, any requirement that the Trustee or
the Holder of such Security exhaust any right or take any action
against the Company or any other Person, filing of claims with a court
in the event of insolvency or bankruptcy of the Company, any right to
3
<PAGE>
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,
if any, 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.
4
<PAGE>
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. 3 is a supplement
to the Original Indenture. As supplemented by this Supplemental Indenture No. 3,
the Indenture is in all respects ratified, approved and confirmed, and the
Original Indenture and this Supplemental Indenture No. 3 shall together
constitute one and the same instrument.
SECTION 2. The recitals contained in this Supplemental
Indenture No. 3 shall be taken as the statements of the Company and the
Guarantor, and the Trustee assumes no responsibility for their correctness and
makes no representations as to the validity or sufficiency of this Supplemental
Indenture No. 3.
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.
5
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture No. 3 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:
-------------------------------
Name:
Title:
[SEAL]
ATTEST:
- ---------------------------
PP&L RESOURCES, INC.
By:
-------------------------------
Name:
Title:
[SEAL]
ATTEST:
- ---------------------------
THE CHASE MANHATTAN BANK,
as Trustee
By:
-------------------------------
Name:
[SEAL] Title:
ATTEST:
- ---------------------------
6
EXHIBIT 4.5
-----------
OFFICERS' CERTIFICATE
(UNDER SECTION 301 OF THE INDENTURE OF
PP&L CAPITAL FUNDING, INC. AND PP&L RESOURCES, INC.)
The undersigned ______________, ____________ of PP&L CAPITAL
FUNDING, INC. (the "Company"), in accordance with Section 301 of the Indenture,
dated as of 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. 3, dated as of ________________ (the "Supplemental Indenture"),
the following terms and characteristics (the lettered clauses set forth below
corresponding to the lettered clauses of Section 301 of the Indenture), and the
undersigned _____________, ______________ of the Guarantor, does hereby approve
of such terms and characteristics on behalf of the Guarantor:
(a) the title of the Securities of such series shall be "Medium
Term Notes, Series _" (the "Notes");
(b) the aggregate principal amount of Notes which may be
authenticated and delivered under the Indenture shall be limited
to $___________, 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
<PAGE>
Procedures") attached as Schedule C to the Distribution Agreement
dated _________________ among the Company, the Guarantor,
________________________________________________________ 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 [8 1/2%] per annum, and each Floating Rate Note shall
bear interest at a rate or rates related to a 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 ___________ and _________, and the Regular Record
Dates with respect to such Interest Payment Dates shall be
__________ and ____________, respectively (whether or not a
Business Day) or shall be, in each case, such dates as shall be
determined 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; 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
2
<PAGE>
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 any premium 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
3
<PAGE>
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;
4
<PAGE>
(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;
5
<PAGE>
(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 the 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) (i) 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;
(ii) [interest rate reset provisions, if any];
(iii) [remarketing provisions, if any]; and
(iv) [other provisions, if any].
6
<PAGE>
IN WITNESS WHEREOF, we have hereunto signed our names this day
of ______________.
PP&L CAPITAL FUNDING, INC.
---------------------------------
Name:
Title:
PP&L RESOURCES, INC.
---------------------------------
Name:
Title:
7
<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 _
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. 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
<PAGE>
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. 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,
2
<PAGE>
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
3
<PAGE>
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
4
<PAGE>
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
5
<PAGE>
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
6
<PAGE>
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
7
<PAGE>
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
8
<PAGE>
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.
---------------------
9
<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
written upon the face of the Security in every
particular without alteration or enlargement
or any other change whatsoever.
10
<PAGE>
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.
11
<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 _
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 basis points): +/-
Fixed Interest Rate: Calculation Agent:
- -- Inverse Floating Rate Note: Day Count Convention:
Fixed Interest Rate: -- Actual/360 for the period from
Initial Interest Rate: __________________ to _________________
Interest Rate Basis: -- Actual/Actual for the period from
- -- CMT Rate: __________________ to _________________
Designated CMT Maturity Index: --30/360 for the period from
Designated CMT Telerate Page: __________________ to _________________
- -- Commercial Paper Rate: Spread Multiplier:
- -- Federal Funds Rate: Redeemable: Yes__ No__
- -- LIBOR: Initial Redemption Date:
Designated LIBOR Page: LIBOR
Reuters __ Initial Redemption Price:
LIBOR Telerate __ Annual Redemption Percentage
Reduction:
- -- Prime Rate: Repayable at Option of the Holder:
Yes__ No__
- -- Treasury Rate: Option Repayment Dates(s):
Two or More Interest Rate Bases:
Yes__ No__ Repayment Price: 100%
Specify calculation of interest
factor: Other/Additional Provisions:
Maximum Interest Rate:
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,
<PAGE>
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
2
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(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.
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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 Treasury Rate is
an applicable Interest Rate Basis) resets weekly, Wednesday of each week; if the
Treasury Rate is an applicable Interest Rate Basis specified above and the
applicable rate 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 LIBOR is an Interest Rate Basis
specified above 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
4
<PAGE>
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 and any premium 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.
5
<PAGE>
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 (a) if the Designated CMT Telerate Page is 7051, the rate on such CMT Rate
Interest Determination Date and (b) 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
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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 Bridge Telerate,
Inc. (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) or, if no such page is specified
above, page 7052.
"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) 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 H.15
Daily Update, or such other recognized electronic source used for the purpose of
displaying such rate, under the caption "Commercial Paper- Nonfinancial." "H-15
Daily Update" means the daily update of H.15(519) available through the
world-wide web site of the Board of Governors of the Federal Reserve System at
http:/www.bog.frb.fed.us/releases/h15/update, or any successor site or
publication. If such rate is not yet published in H.15(519), H.15 Daily Update
or another recognized electronic source by 3:00 P.M., New York City time, on the
related Calculation Date, then the Commercial Paper Rate on such Commercial
Paper Rate Interest Determination Date shall be 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 United States dollar commercial paper in The City of New York
selected by the Calculation Agent for commercial paper having the Index Maturity
specified above placed for industrial issuers 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
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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)", as such rate is displayed on Bridge Telerate, Inc. (or any
successor service) on page 120 (or any other page as may replace such page on
such service) ("Telerate Page 120") or, if such rate does not appear on Telerate
Page 120 or is not so 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 for United States dollar federal funds as published in H.15 Daily Update,
or such other recognized electronic source used for the purpose of displaying
such rate, under the caption "Federal Funds (Effective)." If such rate does not
appear on Telerate Page 120 or is not published in H.15(519), H.15 Daily Update
or another recognized electronic source 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 United
States dollar 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
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to any Interest Determination Date (a "LIBOR Interest Determination Date") by
the Calculation Agent for such LIBOR Note as follows:
(a) LIBOR will be either: (1) 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 (2) 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.
(b) 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 (a)
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, having
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 Bridge Telerate, Inc. (or any
successor service) on the page specified above (or any other page as may
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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 caption "Bank Prime Loan" or, if not published by 3:00 P.M., New York City
time, on the related Calculation Date, the rate on such Prime Rate Interest
Determination Date as published in H.15 Daily Update, or such other recognized
electronic source used for displaying such rate, under the caption "Bank Prime
Loan." If such rate is not yet published in H.15(519), H.15 Daily Update or
another recognized electronic source by 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 US PRIME 1 Page (as hereinafter defined) as such bank's prime
rate or base lending rate as of 11:00 A.M., New York City time, on such Prime
Rate Interest Determination Date. If fewer than four such rates appear on the
Reuters Screen US PRIME 1 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 banks in The City of New York selected
by the Calculation Agent; 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 US PRIME 1 Page" means the display on the Reuter
Monitor Money Rates Service (or any successor service) on the "US PRIME 1" page
(or such other page as may replace the US PRIME 1 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 under the caption "AVGE
INVEST YIELD" on the display on Bridge Telerate, Inc. (or any successor service)
on page 56 (or any other page as may replace such page on such service)
("Telerate Page 56") or page 57 (or any other page as may replace such page on
such service)("Telerate Page 57"), as applicable, or, if not published by 3:00
10
<PAGE>
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 so published or announced 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 the rate (expressed as a bond equivalent on the
basis of a year of 365 or 366 days, as applicable, and applied on a daily basis)
on such Treasury Rate Interest Determination Date of Treasury Bills having the
Index Maturity specified above as published in H.15(519) under the caption "U.S.
Government Securities/Treasury Bills/Secondary Market" or, if not yet published
by 3:00 P.M., New York City time, on the related Calculation Date, the rate on
such Treasury Rate Interest Determination Date of such Treasury Bills as
published in H.15 Daily Update, or such other recognized electronic source used
for the purpose of displaying such rate, under the caption "U.S. Government
Securities/Treasury Bills/Secondary Market." If such rate is not yet published
in H.15(519), H.15 Daily Update or another recognized electronic source by 3:00
P.M. New York City time, on the related Calculation Date, 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 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.
11
<PAGE>
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
12
<PAGE>
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
13
<PAGE>
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; and
(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.
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.
14
<PAGE>
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
15
<PAGE>
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.
16
<PAGE>
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
17
<PAGE>
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.
---------------------
18
<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 written upon the face of the Security
in every particular without alteration or
enlargement or any other change whatsoever.
19
<PAGE>
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.
20
EXHIBIT 4.6
-----------
===============================================================================
PP&L RESOURCES, INC.
AND
THE CHASE MANHATTAN BANK,
AS PURCHASE CONTRACT AGENT AND TRUSTEE
-------------------------------
PURCHASE CONTRACT AGREEMENT
-------------------------------
Dated as of
================================================================================
<PAGE>
Reconciliation and Tie
between Trust Indenture Act
of 1939 and Purchase Contract
Agreement dated as of ________, 1999.
Section of Section of
Trust Indenture Act Purchase Contract
of 1939, as amended Agreement
------------------- ---------
310(a)..................................................7.8
310(b)..................................................7.9(g), 11.8
310(c)..................................................Inapplicable
311(a)..................................................11.2(b)
311(b)..................................................11.2(b)
311(c)..................................................Inapplicable
312(a)..................................................11.2(a)
312(b)..................................................11.2(b)
313.....................................................11.3
314(a)..................................................11.4
314(b)..................................................Inapplicable
314(c)..................................................11.5
314(d)..................................................Inapplicable
314(e)..................................................1.2, 1.3, 11.5
314(f)..................................................11.1
315(a)..................................................7.1(a)
315(b)..................................................7.2
315(c)..................................................7.1(e)
315(d)..................................................7.1(b)
316(a)..................................................11.6
316(b)..................................................6.1
316(c)..................................................11.2
317(a)..................................................Inapplicable
317(b)..................................................Inapplicable
318(a)..................................................11.1(b)
318(b)..................................................11.1
318(c)..................................................11.1(a)
- ------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Purchase Contract Agreement.
i
<PAGE>
TABLE OF CONTENTS
ARTICLE I Definitions and Other Provisions of General Application .....1
SECTION 1.1 Definitions ................................................ 1
SECTION 1.2 Compliance Certificates and Opinions ....................... 9
SECTION 1.3 Form of Documents Delivered to Purchase Contract Agent .....10
SECTION 1.4 Acts of Holders; Record Dates ..............................10
SECTION 1.5 Notices to Purchase Contract Agent, Company, collateral
Agent or Guarantor ......................................12
SECTION 1.6 Notice to Holders; Waiver ..................................13
SECTION 1.7 Effect of Headings and Table of Contents ...................13
SECTION 1.8 Successors and Assigns .....................................13
SECTION 1.9 Separability Clause ........................................13
SECTION 1.10 Benefits of Agreement ......................................14
SECTION 1.11 Governing Law ..............................................14
SECTION 1.12 Legal Holidays .............................................14
SECTION 1.13 Counterparts ...............................................14
SECTION 1.14 Inspection of Agreement ....................................14
ARTICLE II Certificate Forms ..........................................15
SECTION 2.1 Forms of Certificates Generally ............................15
SECTION 2.2 Form of Purchase Contract Agent's Certificate of
Authentication .......................................16
ARTICLE III The Securities..............................................16
SECTION 3.1 Amount; Form and Denominations..............................16
SECTION 3.2 Rights and Obligations Evidenced by the Certificates........16
SECTION 3.3 Execution, Authentication, Delivery and Dating..............17
SECTION 3.4 Temporary Certificates......................................18
SECTION 3.5 Registration; Registration of Transfer and Exchange.........19
SECTION 3.6 Book-Entry Interests........................................20
SECTION 3.7 Notices to Holders..........................................20
SECTION 3.8 Appointment of Successor Clearing Agency....................21
SECTION 3.9 Definitive Certificates.....................................21
SECTION 3.10 Mutilated, Destroyed, Lost and Stolen Certificates..........21
SECTION3.11 Persons Deemed Owners.......................................22
SECTION 3.12 Cancellation................................................23
SECTION 3.13 Creation of Treasury SPC Units by Substitution of
Treasury Securities ..................................23
SECTION 3.14 Reestablishment of SPC Units ...............................25
SECTION 3.15 Transfer of Collateral upon Occurrence of
Termination Event ....................................26
SECTION 3.16 No Consent to Assumption ...................................26
ARTICLE IV The Notes ..................................................26
SECTION 4.1 Interest Payments; Rights to Interest Payments Preserved ...26
SECTION 4.2 [Deferral of Interest Payments .............................27
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SECTION 4.3 Interest Rate Reset; Notice Relating to Cash Settlement ....27
SECTION 4.4 Notice and Voting ..........................................28
ARTICLE V The Purchase Contracts .....................................28
SECTION 5.1 Purchase of Shares of Common Stock .........................28
SECTION 5.2 Purchase Contract Payments .................................30
SECTION 5.3 [Deferral of Purchase Contract Payments ....................31
SECTION 5.4 Payment of Purchase Price ..................................31
SECTION 5.5 Issuance of Shares of Common Stock .........................35
SECTION 5.6 Adjustment of Settlement Rate ..............................36
SECTION 5.7 Notice of Adjustments and Certain Other Events .............42
SECTION 5.8 Termination Event; Notice ..................................42
SECTION 5.9 Early Settlement ...........................................43
SECTION 5.10 No Fractional Shares .......................................45
SECTION 5.11 Charges and Taxes ..........................................45
ARTICLE VI Remedies ...................................................45
SECTION 6.1 Unconditional Right of Holders to Receive Purchase
Contract Payments and to Purchase Shares
of Common Stock ......................................45
SECTION 6.2 Restoration of Rights and Remedies .........................46
SECTION 6.3 Rights and Remedies Cumulative .............................46
SECTION 6.4 Delay or Omission Not Waiver ...............................46
SECTION 6.5 Undertaking for Costs ......................................46
SECTION 6.6 Waiver of Stay or Extension Laws ...........................47
ARTICLE VII The Purchase Contract Agent ................................47
SECTION 7.1 Certain Duties and Responsibilities ........................47
SECTION 7.2 Notice of Default ..........................................48
SECTION 7.3 Certain Rights of Purchase Contract Agent ..................48
SECTION 7.4 Not Responsible for Recitals or Issuance of Securities .....49
SECTION 7.5 May Hold Securities ........................................49
SECTION 7.6 Money Held in Custody ......................................50
SECTION 7.7 Compensation and Reimbursement .............................50
SECTION 7.8 Corporate Purchase Contract Agent Required; Eligibility ....50
SECTION 7.9 Resignation and Removal; Appointment of Successor ..........51
SECTION 7.10 Acceptance of Appointment by Successor .....................52
SECTION 7.11 Merger, Conversion, Consolidation or Succession to Business.52
SECTION 7.12 Preservation of Information; Communications to Holders .....53
SECTION 7.13 No Obligations of Purchase Contract Agent ..................53
SECTION 7.14 Tax Compliance .............................................53
ARTICLE VIII Supplemental Agreements ....................................54
SECTION 8.1 Supplemental Agreements Without Consent of Holders .........54
SECTION 8.2 Supplemental Agreements With Consent of Holders ............55
SECTION 8.3 Execution of Supplemental Agreements .......................56
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SECTION 8.4 Effect of Supplemental Agreements ..........................56
SECTION 8.5 Reference to Supplemental Agreements .......................56
ARTICLE IX Merger, Consolidation, Sale or Conveyance ..................56
SECTION 9.1 Covenant Not to Merge, Consolidate, Sell or Convey
Property Except Under Certain Conditions .............56
SECTION 9.2 Rights and Duties of Successor Corporation .................57
SECTION 9.3 Officer's Certificate and Opinion of Counsel Given to
Purchase Contract Agent ..............................57
ARTICLE X Covenants ..................................................58
SECTION 10.1 Performance Under Purchase Contracts .......................58
SECTION 10.2 Maintenance of Office or Agency ............................58
SECTION 10.3 Company to Reserve Common Stock ............................58
SECTION 10.4 Covenants as to Common Stock ...............................58
SECTION 10.5 ERISA ......................................................59
ARTICLE XI Trust Indenture Act ........................................59
SECTION 11.1 Trust Indenture Act; Application ...........................59
SECTION 11.2 Lists of Holders of Securities .............................59
SECTION 11.3 Reports by the Purchase Contract Agent .....................59
SECTION 11.4 Periodic Reports to Purchase Contract Agent ................60
SECTION 11.5 Evidence of Compliance with Conditions Precedent ...........60
SECTION 11.6 Defaults; Waiver ...........................................60
SECTION 11.7 Purchase Contract Agent's Knowledge of Defaults ............60
SECTION 11.8 SECTION 11.8. Conflicting Interests ........................60
SECTION 11.9 SECTION 11.9. Direction of Purchase Contract Agent .........61
EXHIBITS
EXHIBIT A Form of SPC Units Certificate
EXHIBIT B Form of Treasury SPC Units Certificate
EXHIBIT C Instruction to Purchase Contract Agent
EXHIBIT D Notice from Purchase Contract Agent to Holders
(Transfer of Collateral upon Occurrence of a
Termination Event)
EXHIBIT E Notice to Settle by Cash
EXHIBIT F Notice from Purchase Contract Agent to Collateral Agent
and Indenture Trustee (Settlement of Purchase Contract
through Remarketing)
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PURCHASE CONTRACT AGREEMENT, dated as of ____________, ______, between
PP&L RESOURCES, INC., a Pennsylvania corporation (the "Company"), and THE CHASE
MANHATTAN BANK, a New York banking corporation, acting as purchase contract
agent, attorney-in-fact and trustee for the Holders of Securities from time to
time (the "Purchase Contract Agent").
RECITALS
The Company has duly authorized the execution and delivery of this
Agreement and the Certificates evidencing the Securities.
All things necessary to make the Purchase Contracts, when the
Certificates are executed by the Company and authenticated, executed on behalf
of the Holders and delivered by the Purchase Contract Agent, as provided in this
Agreement, the valid obligations of the Company, and to constitute these
presents a valid agreement of the Company, in accordance with its terms, have
been done.
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 DEFINITIONS.
For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular, and
nouns and pronouns of the masculine gender include the feminine and neuter
genders;
(b) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States;
(c) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section, Exhibit or other subdivision; and
(d) the following terms have the meanings given to them in this
Section 1.1(d):
"ACT" has the meaning, with respect to any Holder, set forth in
Section 1.4.
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"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"AGREEMENT" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more agreements
supplemental hereto entered into pursuant to the applicable provisions hereof.
"APPLICABLE MARKET VALUE" has the meaning set forth in Section 5.1.
"APPLICANTS" has the meaning set forth in Section 7.12(b).
"AUTHORIZED OFFICER" means the Chairman of the Board, the President,
any Vice President, the Treasurer, any Assistant Treasurer or any other officer
or agent of the Company duly authorized by the Board of Directors to act in
respect of matters relating to this Agreement.
"BANKRUPTCY CODE" means title 11 of the United States Code, or any
other law of the United States that from time to time provides a uniform system
of bankruptcy laws.
"BENEFICIAL OWNER" means, with respect to a Global Certificate, a
Person who is the beneficial owner of such Book-Entry Interest as reflected on
the books of the Clearing Agency or on the books of a Person maintaining an
account with such Clearing Agency (directly as a Clearing Agency Participant or
as an indirect participant, in each case in accordance with the rules of such
Clearing Agency).
"BOARD OF DIRECTORS" means the board of directors of the Company or a
duly authorized committee of that board.
"BOARD RESOLUTION" means one or more resolutions of the Board of
Directors, a copy of which has been certified by the Secretary or an Assistant
Secretary of the Company, to have been duly adopted by the Board of Directors
and to be in full force and effect on the date of such certification and
delivered to the Purchase Contract Agent.
"BOOK-ENTRY INTEREST" means a beneficial interest in a Global
Certificate, ownership and transfers of which shall be maintained and made
through book entries by a Clearing Agency as described in Section 3.6.
"BUSINESS DAY" means any day other than a Saturday or Sunday or a day
on which banking institutions in New York, New York are authorized or required
by law or executive order to remain closed or a day on which the Indenture
Trustee is closed for business; provided that for purposes of the second
paragraph of Section 1.12 only, the term "Business Day" shall also be deemed to
exclude any day on which trading on the New York Stock Exchange, Inc. is closed
or suspended.
"CASH SETTLEMENT" has the meaning set forth in Section 5.4(a)(i).
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"CERTIFICATE" means a SPC Units Certificate or a Treasury SPC Units
Certificate.
"CLEARING AGENCY" means an organization registered as a "Clearing
Agency" pursuant to Section 17A of the Exchange Act that is acting as a
depositary for the Securities and in whose name, or in the name of a nominee of
that organization, shall be registered a Global Certificate and which shall
undertake to effect book entry transfers and pledges of the Securities.
"CLEARING AGENCY PARTICIPANT" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Clearing
Agency effects book entry transfers and pledges of securities deposited with the
Clearing Agency.
"CLOSING PRICE" has the meaning set forth in Section 5.1.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COLLATERAL" has the meaning set forth in Section 1 of the Pledge
Agreement.
"COLLATERAL ACCOUNT" has the meaning set forth in Section 1 of the
Pledge Agreement.
"COLLATERAL AGENT" means _____________, as Collateral Agent under
the Pledge Agreement until a successor Collateral Agent shall have become
such pursuant to the applicable provisions of the Pledge Agreement, and
thereafter "Collateral Agent" shall mean the Person who is then the Collateral
Agent thereunder.
"COLLATERAL SUBSTITUTION" has the meaning set forth in Section 3.13.
"COMMON STOCK" means the Common Stock, par value $.01 per share, of
the Company.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this instrument until a successor shall have become such pursuant
to the applicable provision of this Agreement, and thereafter "Company" shall
mean such successor.
"CONSTITUENT PERSON" has the meaning set forth in Section 5.6(b).
"CORPORATE TRUST OFFICE" means the principal corporate trust office of
the Purchase Contract Agent at which, at any particular time, its corporate
trust business shall be administered, which office at the date hereof is located
at The Chase Manhattan Bank, 450 West 33rd Street, New York, New York 10001,
Attention: Corporate Trustee Administration.
"COUPON RATE" means the percentage rate per annum at which each Note
will bear interest.
"CURRENT MARKET PRICE" has the meaning set forth in Section 5.6(a)(8).
"DEPOSITARY" means DTC until another Clearing Agency becomes its
successor.
"DTC" means The Depository Trust Company, the initial Clearing Agency.
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"EARLY SETTLEMENT" has the meaning set forth in Section 5.9(a).
"EARLY SETTLEMENT AMOUNT" has the meaning set forth in Section 5.9(a).
"EARLY SETTLEMENT DATE" has the meaning set forth in Section 5.9(a).
"EARLY SETTLEMENT RATE" has the meaning set forth in Section 5.9(b).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"EXCHANGE ACT" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time, and the
rules and regulations promulgated thereunder.
"EXPIRATION DATE" has the meaning set forth in Section 1.4(e).
["EXPIRATION TIME" has the meaning set forth in Section 5.6(a)(6).]
["EXTENSION PERIOD" has the meaning set forth in Section 4.2.]
"FAILED REMARKETING" has the meaning set forth in Section 5.4(b).
"GLOBAL CERTIFICATE" means a Certificate that evidences all or part of
the Securities and is registered in the name of a Clearing Agency or a nominee
thereof.
"HOLDER" means, with respect to a Security, the Person in whose name
the Security evidenced by a SPC Units Certificate or a Treasury SPC Units
Certificate is registered in the related SPC Units Register or the Treasury SPC
Units Register, as the case may be.
"INDENTURE" means the Subordinated Indenture, dated as of __________,
_______, among PP&L Capital Funding, Inc., as Issuer, the Company, as Guarantor,
and The Chase Manhattan Bank, as Trustee, pursuant to which the Notes are to be
issued, as originally executed and delivered and as it may from time to time be
supplemented and amended by one or more indentures supplemental thereto entered
into pursuant to the applicable provisions thereof and shall include the terms
of a particular series established as contemplated by Section 301 thereof.
"INDENTURE TRUSTEE" means The Chase Manhattan Bank, as trustee under
the Indenture, or any successor thereto.
"ISSUER ORDER" or "ISSUER REQUEST" means a written order or request
signed in the name of the Company by an Authorized Officer, and delivered to the
Purchase Contract Agent.
"NOTES" means the PP&L Capital Funding, Inc. [Notes] due , guaranteed
as to payment of principal, premium, if any, and interest by the Company, issued
under the Indenture, each bearing interest, payable on the Payment Dates, at the
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Coupon Rate until the Purchase Contract Settlement Date, and at the Reset Rate
thereafter and substantially in the form of Exhibit __ hereto.
"NYSE" has the meaning set forth in Section 5.1.
"OFFICER'S CERTIFICATE" means a certificate signed by an Authorized
Officer.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be
counsel to the Company (and who may be an employee of the Company), and who
shall be reasonably acceptable to the Purchase Contract Agent.
"OUTSTANDING" means, with respect to any SPC Units or Treasury SPC
Units and as of the date of determination, all SPC Units or Treasury SPC Units
evidenced by Certificates theretofore authenticated, executed and delivered
under this Agreement, except:
(1) If a Termination Event has occurred, (i) Treasury SPC Units and
(ii) SPC Units for which the underlying Notes have been theretofore
deposited with the Purchase Contract Agent in trust for the Holders of such
SPC Units;
(2) SPC Units and Treasury SPC Units evidenced by Certificates
theretofore cancelled by the Purchase Contract Agent or delivered to the
Purchase Contract Agent for cancellation or deemed cancelled pursuant to
the provisions of this Agreement; and
(3) SPC Units and Treasury SPC Units evidenced by Certificates in
exchange for or in lieu of which other Certificates have been
authenticated, executed on behalf of the Holder and delivered pursuant to
this Agreement, other than any such Certificate in respect of which there
shall have been presented to the Purchase Contract Agent proof satisfactory
to it that such Certificate is held by a bona fide purchaser in whose hands
the SPC Units or Treasury SPC Units evidenced by such Certificate are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
number of the SPC Units or Treasury SPC Units have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, SPC Units or
Treasury SPC Units owned by the Company or any Affiliate of the Company shall be
disregarded and deemed not to be Outstanding Securities, except that, in
determining whether the Purchase Contract Agent shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only SPC Units or Treasury SPC Units which a Responsible Officer of the
Purchase Contract Agent knows to be so owned shall be so disregarded. SPC Units
or Treasury SPC Units so owned which have been pledged in good faith may be
regarded as Outstanding Securities if the pledgee establishes to the
satisfaction of the Purchase Contract Agent the pledgee's right so to act with
respect to such SPC Units or Treasury SPC Units and that the pledgee is not the
Company or any Affiliate of the Company.
"PAYMENT DATE" means each February 16, May 16, August 16 and November
16, commencing _____________, [1999].
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"PERMITTED INVESTMENTS" has the meaning set forth in Section 1 of the
Pledge Agreement.
"PERSON" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint-stock company, limited
liability company, trust, unincorporated organization or government or any
agency or political subdivision thereof or any other entity of whatever nature.
["PLAN" means an employee benefit plan that is subject to ERISA, a
plan or individual retirement account that is subject to Section 4975 of the
Code or any entity whose assets are considered assets of any such plan.]
"PLEDGE" means the pledge under the Pledge Agreement of the Notes or
the Treasury Securities, in either case constituting a part of the Securities.
"PLEDGE AGREEMENT" means the Pledge Agreement, dated as of the date
hereof, among the Company, the Collateral Agent, the Securities Intermediary and
the Purchase Contract Agent, on its own behalf and as attorney-in-fact for the
Holders from time to time of the Securities.
"PLEDGED NOTES" has the meaning set forth in Section 1 of the Pledge
Agreement.
"PREDECESSOR CERTIFICATE" means a Predecessor SPC Units Certificate or
a Predecessor Treasury SPC Units Certificate.
"PREDECESSOR SPC UNITS CERTIFICATE" of any particular SPC Units
Certificate means every previous SPC Units Certificate evidencing all or a
portion of the rights and obligations of the Company and the Holder under the
SPC Units evidenced thereby; and, for the purposes of this definition, any SPC
Units Certificate authenticated and delivered under Section 3.10 in exchange for
or in lieu of a mutilated, destroyed, lost or stolen SPC Units Certificate shall
be deemed to evidence the same rights and obligations of the Company and the
Holder as the mutilated, destroyed, lost or stolen SPC Units Certificate.
"PREDECESSOR TREASURY SPC UNITS CERTIFICATE" of any particular
Treasury SPC Units Certificate means every previous Treasury SPC Units
Certificate evidencing all or a portion of the rights and obligations of the
Company and the Holder under the Treasury SPC Units evidenced thereby; and, for
the purposes of this definition, any Treasury SPC Units Certificate
authenticated and delivered under Section 3.10 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Treasury SPC Units Certificate shall be
deemed to evidence the same rights and obligations of the Company and the Holder
as the mutilated, destroyed, lost or stolen Treasury SPC Units Certificate.
"PROCEEDS" has the meaning set forth in Section 1 of the Pledge
Agreement.
"PURCHASE CONTRACT" means, with respect to any Security, the contract
forming a part of such Security and obligating the Company to (i) sell, and the
Holder of such Security to purchase, shares of Common Stock and (ii) pay the
Holder Purchase Contract Payments on the terms and subject to the conditions set
forth in Article Five hereof.
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"PURCHASE CONTRACT AGENT" means the Person named as the "Purchase
Contract Agent" in the first paragraph of this agreement until a successor
Purchase Contract Agent shall have become such pursuant to the applicable
provisions of this Agreement, and thereafter "Purchase Contract Agent" shall
mean such Person.
"PURCHASE CONTRACT PAYMENTS" means the payments payable by the Company
on the Payment Dates in respect of each Purchase Contract, equal to ____% per
annum of the Stated Amount.
"PURCHASE CONTRACT SETTLEMENT DATE" means __________________.
"PURCHASE CONTRACT SETTLEMENT FUND" has the meaning set forth in
Section 5.5.
"PURCHASE PRICE" has the meaning set forth in Section 5.1.
["PURCHASED SHARES" has the meaning set forth in Section 5.6(a)(6)].
"RECORD DATE" for the Purchase Contract Payments payable on any
Payment Date means, as to any Global Certificate, the Business Day next
preceding such Payment Date, and as to any other Certificate, a day selected by
the Company which shall be at least one Business Day but less than thirty (30)
Business Days prior to such Payment Date [and which shall correspond to the
related record date for the Notes].
"REFERENCE PRICE" has the meaning set forth in Section 5.1.
"REGISTER" means the SPC Units Register and the Treasury SPC Units
Register.
"REGISTRAR" means the SPC Units Registrar and the Treasury SPC Units
Registrar.
"REMARKETING" has the meaning set forth in the [Notes.]
"REMARKETING AGENT" has the meaning set forth in Section 5.4(b).
"REMARKETING AGREEMENT" means the Remarketing Agreement, dated as of
__________, between the Company and the Remarketing Agent, including any
supplements thereto.
"REMARKETING FEE" has the meaning set forth in Section 5.4(b).
"REORGANIZATION EVENT" has the meaning set forth in Section 5.6(b).
"RESET RATE" means the Coupon Rate to be in effect for the Notes on
and after the Purchase Contract Settlement Date, as determined in accordance
with Section 4.3 and the form of Note included in Exhibit __ hereto.
"RESPONSIBLE OFFICER" means, with respect to the Purchase Contract
Agent, any officer of the Purchase Contract Agent assigned by the Purchase
Contract Agent to administer its corporate trust matters.
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"SECURITIES INTERMEDIARY" means , as Securities Intermediary under the
Pledge Agreement until a successor Securities Intermediary shall have become
such pursuant to the applicable provisions of the Pledge Agreement, and
thereafter "Securities Intermediary" shall mean such successor.
"SECURITY" means a SPC Unit or a Treasury SPC Unit, as the case may
be.
"SETTLEMENT RATE" has the meaning set forth in Section 5.1.
"SPC UNIT" means a Security, initially issued in substantially the
form set forth as Exhibit A hereto in the Stated Amount of $50, which represents
(i) beneficial ownership by the Holder of one Note having a principal amount of
$50, subject to the Pledge thereof pursuant to the Pledge Agreement, and (ii)
the rights and obligations of the Holder thereof and the Company under one
Purchase Contract.
"SPC UNITS CERTIFICATE" means a certificate evidencing the rights and
obligations of a Holder in respect of the number of SPC Units specified on such
certificate.
"SPC UNITS REGISTER" and "SPC UNITS REGISTRAR" have the respective
meanings set forth in Section 3.5.
"STATED AMOUNT" means $50.
"STATED MATURITY" means, with respect to the Notes, _____________.
"TERMINATION DATE" means the date, if any, on which a Termination
Event occurs.
"TERMINATION EVENT" means the occurrence of any of the following
events:
(1) at any time on or prior to the Purchase Contract Settlement Date,
a judgment, decree or court order shall have been entered granting relief
under the Bankruptcy Code, adjudicating the Company to be insolvent, or
approving as properly filed a petition seeking reorganization or
liquidation of the Company or any other similar applicable Federal or State
law, and, unless such judgment, decree or order shall have been entered
within 60 days prior to the Purchase Contract Settlement Date, such decree
or order shall have continued undischarged and unstayed for a period of 60
days;
(2) at any time on or prior to the Purchase Contract Settlement Date,
a judgment, decree or court order for the appointment of a receiver or
liquidator or trustee or assignee in bankruptcy or insolvency of the
Company or of its property, or for the termination or liquidation of its
affairs, shall have been entered, and, unless such judgment, decree or
order shall have been entered within 60 days prior to the Purchase Contract
Settlement Date, such judgment, decree or order shall have continued
undischarged and unstayed for a period of 60 days; or
(3) at any time on or prior to the Purchase Contract Settlement Date,
the Company shall file a petition for relief under the Bankruptcy Code, or
shall consent to the filing of a bankruptcy proceeding against it, or shall
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file a petition or answer or consent seeking reorganization or liquidation
under the Bankruptcy Code or any other similar applicable Federal or State
law, or shall consent to the filing of any such petition, or shall consent
to the appointment of a receiver or liquidator or trustee or assignee in
bankruptcy or insolvency of it or of its property, or shall make an
assignment for the benefit of creditors, or shall admit in writing its
inability to pay its debts generally as they become due.
"THRESHOLD APPRECIATION PRICE" has the meaning set forth in Section
5.1.
"TIA" means the Trust Indenture Act of 1939, as amended from time to
time, or any successor legislation.
"TRADING DAY" has the meaning set forth in Section 5.1.
"TREASURY SPC UNIT" means a Security, in substantially the form set
forth as Exhibit B hereto, which represents (i) a 1/20 undivided beneficial
ownership interest in a Treasury Security having a principal amount at maturity
equal to $1,000, subject to the Pledge thereof pursuant to the Pledge Agreement
and (ii) the rights and obligations of the Holder thereof and the Company under
one Purchase Contract.
"TREASURY SPC UNITS CERTIFICATE" means a certificate evidencing the
rights and obligations of a Holder in respect of the number of Treasury SPC
Units specified on such certificate.
"TREASURY SPC UNITS REGISTER" and "Treasury SPC Units Registrar" have
the respective meanings set forth in Section 3.5.
"TREASURY SECURITIES" means zero-coupon U.S. Treasury Securities
(Cusip No. ______) which are the principal strip of the ____% U.S. Treasury
Securities which mature on ____________.
"UNDERWRITING AGREEMENT" means the Underwriting Agreement, dated
____________, between the Company and _______________________.
SECTION 1.2 COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided by this Agreement, upon any
application or request by the Company to the Purchase Contract Agent to take any
action under any provision of this Agreement, the Company shall furnish to the
Purchase Contract Agent an Officer's Certificate stating that all conditions
precedent, if any, provided for in this Agreement relating to the proposed
action have been complied with and, if requested by the Purchase Contract Agent,
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 Agreement relating to such
particular application or request, no additional certificate or opinion need be
furnished.
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Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Agreement shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) 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;
(3) a statement that, in the opinion of each such individual, he or
she has made such examination or investigation as is necessary to enable
such individual to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 1.3 FORM OF DOCUMENTS DELIVERED TO PURCHASE CONTRACT AGENT.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Agreement, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4 ACTS OF HOLDERS; RECORD DATES.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be 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; and, except as herein otherwise expressly
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provided, such action shall become effective when such instrument or
instruments are delivered to the Purchase Contract Agent and, where it is
hereby expressly required, to the Company. Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument
or instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this
Agreement and (subject to Section 7.1) conclusive in favor of the Purchase
Contract Agent and the Company, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner which the Purchase
Contract Agent deems sufficient.
(c) The ownership of Securities shall be proved by the SPC Units
Register or the Treasury SPC Units Register, as the case may be.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Certificate shall bind every
future Holder of the same Certificate and the Holder of every Certificate
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 Purchase Contract Agent or the Company in reliance thereon, whether
or not notation of such action is made upon such Certificate.
(e) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to give, make or
take any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Agreement to be given, made
or taken by Holders of Securities. If any record date is set pursuant to
this paragraph, the Holders of the Outstanding SPC Units and the
Outstanding Treasury SPC Units, as the case may be, on such record date,
and no other Holders, shall be entitled to take the relevant action with
respect to the SPC Units or the Treasury SPC Units, as the case may be,
whether or not such Holders remain Holders after such record date; provided
that no such action shall be effective hereunder unless taken prior to or
on the applicable Expiration Date by Holders of the requisite number of
Outstanding Securities on such record date. Nothing contained in this
paragraph shall be construed to prevent the Company from setting a new
record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and be of no
effect), and nothing contained in this paragraph shall be construed to
render ineffective any action taken by Holders of the requisite number of
Outstanding Securities on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Company, at its own
expense, shall cause notice of such record date, the proposed action by
Holders and the applicable Expiration Date to be given to the Purchase
Contract Agent in writing and to each Holder of Securities in the manner
set forth in Section 1.6.
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With respect to any record date set pursuant to this Section, the
Company may designate any date as the "Expiration Date" and from time to time
may change the Expiration Date to any earlier or later day; provided that no
such change shall be effective unless notice of the proposed new Expiration Date
is given to the Purchase Contract Agent in writing, and to each Holder of
Securities in the manner set forth in Section 1.6, prior to or on the existing
Expiration Date. If an Expiration Date is not designated with respect to any
record date set pursuant to this Section, the Company shall be deemed to have
initially designated the 180th day after such record date as the Expiration Date
with respect thereto, subject to its right to change the Expiration Date as
provided in this paragraph. Notwithstanding the foregoing, no Expiration Date
shall be later than the 180th day after the applicable record date.
SECTION 1.5 NOTICES TO PURCHASE CONTRACT AGENT, COMPANY, COLLATERAL AGENT
OR GUARANTOR.
Any notice or communication is duly given if in writing and delivered
in Person or mailed by first-class mail (registered or certified, return receipt
requested), telecopier (with receipt confirmed) or overnight air courier
guaranteeing next day delivery, to the others' address; provided that notice
shall be deemed given to the Purchase Contract Agent only upon receipt thereof:
If to the Purchase Contract Agent:
The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Telecopier No.:
Attention: Corporate Trustee Administration
If to the Company:
PP&L Resources, Inc.
Two North Ninth Street
Allentown, Pennsylvania 18101-1179
Telecopier No.: (610) 774-5106
Attention: Treasurer
If to the Collateral Agent:
Telecopier No.:
Attention:
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If to the Indenture Trustee:
The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Telecopier No.:
Attention: Corporate Trustee Administration
SECTION 1.6 NOTICE TO HOLDERS; WAIVER.
Where this Agreement provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at its address as it appears in the applicable Register, not
later than the latest date, and not earlier than the earliest date, prescribed
for the giving of such notice. 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. Where this Agreement provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Purchase Contract Agent, but such filing shall not be a condition precedent to
the validity of any action taken in reliance upon such waiver.
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 by mail,
then such notification as shall be made with the approval of the Purchase
Contract Agent shall constitute a sufficient notification for every purpose
hereunder.
SECTION 1.7 EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.8 SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Agreement by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 1.9 SEPARABILITY CLAUSE.
In case any provision in this Agreement or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions hereof and thereof shall not in any way be affected or
impaired thereby.
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SECTION 1.10 BENEFITS OF AGREEMENT.
Nothing contained in this Agreement or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and, to the extent provided hereby, the Holders, any
benefits or any legal or equitable right, remedy or claim under this Agreement.
The Holders from time to time shall be beneficiaries of this Agreement and shall
be bound by all of the terms and conditions hereof and of the Securities
evidenced by their Certificates by their acceptance of delivery of such
Certificates.
SECTION 1.11 GOVERNING LAW.
This Agreement and the Securities shall be governed by, and construed
in accordance with, the laws of the State of New York.
SECTION 1.12 LEGAL HOLIDAYS.
In any case where any Payment Date shall not be a Business Day,
notwithstanding any other provision of this Agreement or the SPC Units
Certificates or the Treasury SPC Units Certificates, Purchase Contract Payments
shall not be made on such date, but shall be made on the next succeeding
Business Day with the same force and effect as if made on such Payment Date,
provided that no interest shall accrue or be payable by the Company or any
Holder for the period from and after any such Payment Date, except that, if such
next succeeding Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day with the same
force and effect as if made on such Payment Date.
In any case where any Purchase Contract Settlement Date shall not be a
Business Day, notwithstanding any other provision of this Agreement, the SPC
Units Certificates or the Treasury SPC Units Certificates, the Purchase
Contracts shall not be performed on such date, but the Purchase Contracts shall
be performed on the immediately following Business Day with the same force and
effect as if performed on the Purchase Contract Settlement Date.
SECTION 1.13 COUNTERPARTS.
This Agreement may be executed in any number of counterparts by the
parties hereto on separate counterparts, each of which, when so executed and
delivered, shall be deemed an original, but all such counterparts shall together
constitute one and the same instrument.
SECTION 1.14 INSPECTION OF AGREEMENT.
A copy of this Agreement shall be available at all reasonable times
during normal business hours at the Corporate Trust Office for inspection by any
Holder.
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ARTICLE II
CERTIFICATE FORMS
SECTION 2.1 FORMS OF CERTIFICATES GENERALLY.
The SPC Units Certificates (including the form of Purchase Contract
forming part of each SPC Unit evidenced thereby) shall be in substantially the
form set forth in Exhibit A hereto, with such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as may be required by the rules of any
securities exchange on which the SPC Units are listed or any depositary
therefor, or as may, consistently herewith, be determined by the officers of the
Company executing such SPC Units Certificates, as evidenced by their execution
of the SPC Units Certificates.
The definitive SPC Units Certificates shall be printed, lithographed
or engraved on steel engraved borders or may be produced in any other manner,
all as determined by the officers of the Company executing the SPC Units
evidenced by such SPC Units Certificates, consistent with the provisions of this
Agreement, as evidenced by their execution thereof.
The Treasury SPC Units Certificates (including the form of Purchase
Contract forming part of each Treasury SPC Unit evidenced thereby) shall be in
substantially the form set forth in Exhibit B hereto, with such letters, numbers
or other marks of identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as may be required by the rules of any
securities exchange on which the Treasury SPC Units may be listed or any
depositary therefor, or as may, consistently herewith, be determined by the
officers of the Company executing such Treasury SPC Units Certificates, as
evidenced by their execution of the Treasury SPC Units Certificates.
The definitive Treasury SPC Units Certificates shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers of the Company executing the
Treasury SPC Units evidenced by such Treasury SPC Units Certificates, consistent
with the provisions of this Agreement, as evidenced by their execution thereof.
Every Global Certificate authenticated, executed on behalf of the
Holders and delivered hereunder shall bear a legend in substantially the
following form:
"THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
PURCHASE CONTRACT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED
IN THE NAME OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
(THE "DEPOSITARY"), OR A NOMINEE OF THE DEPOSITARY. THIS CERTIFICATE
IS EXCHANGEABLE FOR CERTIFICATES REGISTERED IN THE NAME OF A PERSON
OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT AGREEMENT AND NO
TRANSFER OF THIS CERTIFICATE (OTHER THAN A TRANSFER OF THIS
CERTIFICATE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
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DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT AGREEMENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITARY FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REQUESTED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS REGISTERED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY), 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."
SECTION 2.2 FORM OF PURCHASE CONTRACT AGENT'S CERTIFICATE OF AUTHENTICATION.
The form of the Purchase Contract Agent's certificate of
authentication of the SPC Units shall be in substantially the form set forth on
the form of SPC Units Certificate set forth as Exhibit A hereto.
The form of the Purchase Contract Agent's certificate of
authentication of the Treasury SPC Units shall be in substantially the form set
forth on the form of Treasury SPC Units Certificate set forth as Exhibit B
hereto.
ARTICLE III
THE SECURITIES
SECTION 3.1 AMOUNT; FORM AND DENOMINATIONS.
The aggregate number of Securities evidenced by Certificates
authenticated, executed on behalf of the Holders and delivered hereunder is
limited to ___________ (including _________ relating to the Underwriters'
over-allotment option), except for Certificates authenticated, executed and
delivered upon registration of transfer of, in exchange for, or in lieu of,
other Certificates pursuant to Section 3.4, 3.5, 3.10, 3.12, 3.13, 3.14, 5.9
or 8.5.
The Certificates shall be issuable only in registered form and only in
denominations of a single SPC Unit or Treasury SPC Unit and any integral
multiple thereof.
SECTION 3.2 RIGHTS AND OBLIGATIONS EVIDENCED BY THE CERTIFICATES.
Each SPC Units Certificate shall evidence the number of SPC Units
specified therein, with each such SPC Unit representing (1) the ownership by the
Holder thereof of a beneficial interest in one Note having a principal amount of
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$50, subject to the Pledge of such Note by such Holder pursuant to the Pledge
Agreement, and (2) the rights and obligations of the Holder thereof and the
Company under one Purchase Contract. The Purchase Contract Agent as
attorney-in-fact for, and on behalf of, the Holder of each SPC Unit shall
pledge, pursuant to the Pledge Agreement, the Note forming a part of such SPC
Unit, to the Collateral Agent and grant to the Collateral Agent a security
interest in the right, title and interest of such Holder in such Note for the
benefit of the Company, to secure the obligation of the Holder under each
Purchase Contract to purchase shares of Common Stock. Prior to the purchase of
shares of Common Stock under each Purchase Contract, such Purchase Contracts
shall not entitle the Holder of a SPC Units Certificate to any of the rights of
a holder of shares of Common Stock, including, without limitation, the right to
vote or receive any dividends or other payments or to consent or to receive
notice as a shareholder in respect of the meetings of shareholders or for the
election of directors of the Company or for any other matter, or any other
rights whatsoever as a shareholder of the Company.
Upon the formation of a Treasury SPC Unit pursuant to Section 3.13,
each Treasury SPC Units Certificate shall evidence the number of Treasury SPC
Units specified therein, with each such Treasury SPC Unit representing (1) the
ownership by the Holder thereof of a 1/20 undivided beneficial ownership
interest in a Treasury Security with a principal amount at maturity equal to
$1,000, subject to the Pledge of such Treasury Security by such Holder pursuant
to the Pledge Agreement, and (2) the rights and obligations of the Holder
thereof and the Company under one Purchase Contract. The Purchase Contract Agent
as attorney-in-fact for, and on behalf of, the Holder of each Treasury SPC Unit
shall pledge, pursuant to the Pledge Agreement, each Treasury Security or
portion thereof forming a part of such Treasury SPC Unit, to the Collateral
Agent and grant to the Collateral Agent a security interest in the right, title
and interest of such Holder in such Treasury Security for the benefit of the
Company, to secure the obligation of the Holder under each Purchase Contract to
purchase shares of Common Stock. Prior to the purchase of shares of Common Stock
under each Purchase Contract, such Purchase Contracts shall not entitle the
Holder of a Treasury SPC Units Certificate to any of the rights of a holder of
shares of Common Stock, including, without limitation, the right to vote or
receive any dividends or other payments or to consent or to receive notice as a
shareholder in respect of the meetings of shareholders or for the election of
directors of the Company or for any other matter, or any other rights whatsoever
as a shareholder of the Company.
SECTION 3.3 EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
Subject to the provisions of Sections 3.13 and 3.14 hereof, upon the
execution and delivery of this Agreement, and at any time and from time to time
thereafter, the Company may deliver Certificates executed by the Company to the
Purchase Contract Agent for authentication, execution on behalf of the Holders
and delivery, together with its Issuer Order for authentication of such
Certificates, and the Purchase Contract Agent in accordance with such Issuer
Order shall authenticate, execute on behalf of the Holders and deliver such
Certificates.
The Certificates shall be executed on behalf of the Company by one of
its Authorized Officers. The signature of any Authorized Officer on the
Certificates may be manual or facsimile.
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Certificates bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Certificates or did not
hold such offices at the date of such Certificates.
No Purchase Contract evidenced by a Certificate shall be valid until
such Certificate has been executed on behalf of the Holder by the manual
signature of an authorized signatory of the Purchase Contract Agent, as such
Holder's attorney-in-fact. Such signature by an authorized signatory of the
Purchase Contract Agent shall be conclusive evidence that the Holder of such
Certificate has entered into the Purchase Contracts evidenced by such
Certificate.
Each Certificate shall be dated the date of its authentication.
No Certificate shall be entitled to any benefit under this Agreement
or be valid or obligatory for any purpose unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein executed by an authorized signatory of the Purchase Contract Agent by
manual signature, and such certificate upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder.
SECTION 3.4 TEMPORARY CERTIFICATES.
Pending the preparation of definitive Certificates, the Company shall
execute and deliver to the Purchase Contract Agent, and the Purchase Contract
Agent shall authenticate, execute on behalf of the Holders, and deliver, in lieu
of such definitive Certificates, temporary Certificates which are in
substantially the form set forth in Exhibit A or Exhibit B hereto, as the case
may be, with such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed or engraved
thereon as may be required by the rules of any securities exchange on which the
SPC Units or Treasury SPC Units, as the case may be, are listed, or as may,
consistently herewith, be determined by the officers of the Company executing
such Certificates, as evidenced by their execution of the Certificates.
If temporary Certificates are issued, the Company will cause
definitive Certificates to be prepared without unreasonable delay. After the
preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the Corporate Trust Office, at the expense of the Company and
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Certificates, the Company shall execute and deliver to the Purchase
Contract Agent, and the Purchase Contract Agent shall authenticate, execute on
behalf of the Holder, and deliver in exchange therefor, one or more definitive
Certificates of like tenor and denominations and evidencing a like number of SPC
Units or Treasury SPC Units, as the case may be, as the temporary Certificate or
Certificates so surrendered. Until so exchanged, the temporary Certificates
shall in all respects evidence the same benefits and the same obligations with
respect to the SPC Units or Treasury SPC Units, as the case may be, evidenced
thereby as definitive Certificates.
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SECTION 3.5 REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE.
The Purchase Contract Agent shall keep at the Corporate Trust Office a
register (the "SPC Units Register") in which, subject to such reasonable
regulations as it may prescribe, the Purchase Contract Agent shall provide for
the registration of SPC Units Certificates and of transfers of SPC Units
Certificates (the Purchase Contract Agent, in such capacity, the "SPC Units
Registrar") and a register (the "Treasury SPC Units Register") in which, subject
to such reasonable regulations as it may prescribe, the Purchase Contract Agent
shall provide for the registration of the Treasury SPC Units Certificates and of
transfers of Treasury SPC Units Certificates (the Purchase Contract Agent, in
such capacity, the "Treasury SPC Units Registrar").
Upon surrender for registration of transfer of any Certificate at the
Corporate Trust Office, the Company shall execute and deliver to the Purchase
Contract Agent, and the Purchase Contract Agent shall authenticate, execute on
behalf of the designated transferee or transferees, and deliver, in the name of
the designated transferee or transferees, one or more new Certificates of any
authorized denominations, like tenor, and evidencing a like number of SPC Units
or Treasury SPC Units, as the case may be.
At the option of the Holder, Certificates may be exchanged for other
Certificates, of any authorized denominations and evidencing a like number of
SPC Units or Treasury SPC Units, as the case may be, upon surrender of the
Certificates to be exchanged at the Corporate Trust Office. Whenever any
Certificates are so surrendered for exchange, the Company shall execute and
deliver to the Purchase Contract Agent, and the Purchase Contract Agent shall
authenticate, execute on behalf of the Holder, and deliver the Certificates
which the Holder making the exchange is entitled to receive.
All Certificates issued upon any registration of transfer or exchange
of a Certificate shall evidence the ownership of the same number of SPC Units or
Treasury SPC Units, as the case may be, and be entitled to the same benefits and
subject to the same obligations, under this Agreement as the SPC Units or
Treasury SPC Units, as the case may be, evidenced by the Certificate surrendered
upon such registration of transfer or exchange.
Every Certificate presented or surrendered for registration of
transfer or exchange shall (if so required by the Purchase Contract Agent) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Purchase Contract Agent duly executed, by
the Holder thereof or its attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of a Certificate, but the Company and the Purchase Contract Agent may
require payment from the Holder 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 Certificates, other than any exchanges pursuant to
Sections 3.6 and 8.5 not involving any transfer.
Notwithstanding the foregoing, the Company shall not be obligated to
execute and deliver to the Purchase Contract Agent, and the Purchase Contract
Agent shall not be obligated to authenticate, execute on behalf of the Holder
and deliver any Certificate in exchange for any other Certificate presented or
surrendered for registration of transfer or for exchange during the period
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commencing on the Business Day immediately preceding the Purchase Contract
Settlement Date and ending on such Purchase Contract Settlement Date, or on or
after the Termination Date. In lieu of delivery of a new Certificate, upon
satisfaction of the applicable conditions specified above in this Section and
receipt of appropriate registration or transfer instructions from such Holder,
the Purchase Contract Agent shall:
(1) if the Purchase Contract Settlement Date has occurred, deliver the
shares of Common Stock issuable in respect of the Purchase Contracts
forming a part of the Securities evidenced by such other Certificate; or
(2) if a Termination Event shall have occurred prior to the Purchase
Contract Settlement Date, transfer the Notes or the Treasury Securities, as
the case may be, evidenced thereby, in each case subject to the applicable
conditions and in accordance with the applicable provisions of Article Five
hereof.
SECTION 3.6 BOOK-ENTRY INTERESTS.
The Certificates, on original issuance, will be issued in the form of
one or more fully registered Global Certificates, to be delivered to the
Depositary by, or on behalf of, the Company. Such Global Certificate shall
initially be registered on the books and records of the Company in the name of
Cede & Co., the nominee of the Depositary, and no Beneficial Owner will receive
a definitive Certificate representing such Beneficial Owner's interest in such
Global Certificate, except as provided in Section 3.9. The Purchase Contract
Agent shall enter into an agreement with the Depositary if so requested by the
Company. Unless and until definitive, fully registered Certificates have been
issued to Beneficial Owners pursuant to Section 3.9:
(1) the provisions of this Section 3.6 shall be in full force and
effect;
(2) the Company shall be entitled to deal with the Clearing Agency for
all purposes of this Agreement (including making Purchase Contract Payments
and receiving approvals, votes or consents hereunder) as the Holder of the
Securities and the sole holder of the Global Certificates and shall have no
obligation to the Beneficial Owners;
(3) to the extent that the provisions of this Section 3.6 conflict
with any other provisions of this Agreement, the provisions of this Section
3.6 shall control; and
(4) the rights of the Beneficial Owners shall be exercised only
through the Clearing Agency and shall be limited to those established by
law and agreements between such Beneficial Owners and the Clearing Agency
or the Clearing Agency Participants.
SECTION 3.7 NOTICES TO HOLDERS.
Whenever a notice or other communication to the Holders is required to
be given under this Agreement, the Company or the Company's agent shall give
such notices and communications to the Holders and, with respect to any
Securities registered in the name of a Clearing Agency or the nominee of a
Clearing Agency, the Company or the Company's agent shall, except as set forth
herein, have no obligations to the Beneficial Owners.
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SECTION 3.8 APPOINTMENT OF SUCCESSOR CLEARING AGENCY.
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the Securities, the Company may, in its
sole discretion, appoint a successor Clearing Agency with respect to the
Securities.
SECTION 3.9 DEFINITIVE CERTIFICATES.
If:
(1) a Clearing Agency elects to discontinue its services as securities
depositary with respect to the Securities and a successor Clearing Agency
is not appointed within 90 days after such discontinuance pursuant to
Section 3.8; or
(2) the Company elects to terminate the book-entry system through the
Clearing Agency with respect to the Securities,
then upon surrender of the Global Certificates representing the Securities by
the Clearing Agency, accompanied by registration instructions, the Company shall
cause definitive Certificates to be delivered to Beneficial Owners in accordance
with the instructions of the Clearing Agency. The Company shall not be liable
for any delay in delivery of such instructions and may conclusively rely on and
shall be protected in relying on, such instructions.
SECTION 3.10 MUTILATED, DESTROYED, LOST AND STOLEN CERTIFICATES.
If any mutilated Certificate is surrendered to the Purchase Contract
Agent, the Company shall execute and deliver to the Purchase Contract Agent, and
the Purchase Contract Agent shall authenticate, execute on behalf of the Holder,
and deliver in exchange therefor, a new Certificate, evidencing the same number
of SPC Units or Treasury SPC Units, as the case may be, and bearing a
Certificate number not contemporaneously outstanding.
If there shall be delivered to the Company and the Purchase Contract
Agent (i) evidence to their satisfaction of the destruction, loss or theft of
any Certificate, and (ii) such security or indemnity as may be required by them
to hold each of them and any agent of any of them harmless, then, in the absence
of notice to the Company or the Purchase Contract Agent that such Certificate
has been acquired by a bona fide purchaser, the Company shall execute and
deliver to the Purchase Contract Agent, and the Purchase Contract Agent shall
authenticate, execute on behalf of the Holder, and deliver to the Holder, in
lieu of any such destroyed, lost or stolen Certificate, a new Certificate,
evidencing the same number of SPC Units or Treasury SPC Units, as the case may
be, and bearing a Certificate number not contemporaneously outstanding.
Notwithstanding the foregoing, the Company shall not be obligated to
execute and deliver to the Purchase Contract Agent, and the Purchase Contract
Agent shall not be obligated to authenticate, execute on behalf of the Holder,
and deliver to the Holder, a Certificate during the period commencing on the
Business Day immediately preceding the Purchase Contract Settlement Date and
ending on such Purchase Contract Settlement Date or on or after the Termination
Date. In lieu of delivery of a new Certificate, upon satisfaction of the
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applicable conditions specified above in this Section and receipt of appropriate
registration or transfer instructions from such Holder, the Purchase Contract
Agent shall:
(1) if the Purchase Contract Settlement Date has occurred, deliver the
shares of Common Stock issuable in respect of the Purchase Contracts
forming a part of the Securities evidenced by such Certificate; or
(2) if a Termination Event shall have occurred prior to the Purchase
Contract Settlement Date, transfer the Notes or the Treasury Securities, as
the case may be, evidenced thereby, in each case subject to the applicable
conditions and in accordance with the applicable provisions of Article Five
hereof.
Upon the issuance of any new Certificate under this Section, the
Company and the Purchase Contract Agent may require the payment by the Holder of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Purchase Contract Agent) connected therewith.
Every new Certificate issued pursuant to this Section in lieu of any
destroyed, lost or stolen Certificate shall constitute an original additional
contractual obligation of the Company and of the Holder in respect of the
Security evidenced thereby, whether or not the destroyed, lost or stolen
Certificate (and the Securities evidenced thereby) shall be at any time
enforceable by anyone, and shall be entitled to all the benefits and be subject
to all the obligations of this Agreement equally and proportionately with any
and all other Certificates delivered hereunder.
The provisions of this Section are exclusive and shall preclude, to
the extent lawful, all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Certificates.
SECTION 3.11 PERSONS DEEMED OWNERS.
Prior to due presentment of a Certificate for registration of
transfer, the Company and the Purchase Contract Agent, and any agent of the
Company or the Purchase Contract Agent, may treat the Person in whose name such
Certificate is registered as the owner of the SPC Units or Treasury SPC Units
evidenced thereby, for the purpose of receiving interest payments on the Notes,
receiving Purchase Contract Payments, performance of the Purchase Contracts and
for all other purposes whatsoever, whether or not any interest payments on the
Notes or Purchase Contract Payments payable in respect of the Purchase Contracts
constituting a part of the SPC Units or Treasury SPC Units evidenced thereby
shall be overdue and notwithstanding any notice to the contrary, and neither the
Company nor the Purchase Contract Agent, nor any agent of the Company or the
Purchase Contract Agent, shall be affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any Global Certificate,
nothing contained herein shall prevent the Company, the Purchase Contract Agent
or any agent of the Company or the Purchase Contract Agent, treating the
Clearing Agency as the sole Holder of such Global Certificate, from giving
effect to any written certification, proxy or other authorization furnished by
any Clearing Agency (or its nominee), as a Holder, with respect to such Global
Certificate or impair, as between such Clearing Agency and owners of beneficial
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interests in such Global Certificate, the operation of customary practices
governing the exercise of rights of such Clearing Agency (or its nominee) as
Holder of such Global Certificate.
SECTION 3.12 CANCELLATION.
All Certificates surrendered for delivery of shares of Common Stock on
or after the Purchase Contract Settlement Date, upon the transfer of Notes or
Treasury Securities, as the case may be, after the occurrence of a Termination
Event or pursuant to an Early Settlement, or upon the registration of transfer
or exchange of a Security, or a Collateral Substitution or the reestablishment
of SPC Units shall, if surrendered to any Person other than the Purchase
Contract Agent, be delivered to the Purchase Contract Agent and, if not already
cancelled, shall be promptly cancelled by it. The Company may at any time
deliver to the Purchase Contract Agent for cancellation any Certificates
previously authenticated, executed and delivered hereunder which the Company may
have acquired in any manner whatsoever, and all Certificates so delivered shall,
upon Issuer Order, be promptly cancelled by the Purchase Contract Agent. No
Certificates shall be authenticated, executed on behalf of the Holder and
delivered in lieu of or in exchange for any Certificates cancelled as provided
in this Section, except as expressly permitted by this Agreement. All cancelled
Certificates held by the Purchase Contract Agent shall be destroyed by the
Purchase Contract Agent unless otherwise directed by Issuer Order.
If the Company or any Affiliate of the Company shall acquire any
Certificate, such acquisition shall not operate as a cancellation of such
Certificate unless and until such Certificate is delivered to the Purchase
Contract Agent cancelled or for cancellation.
SECTION 3.13 CREATION OF TREASURY SPC UNITS BY SUBSTITUTION OF TREASURY
SECURITIES.
A Holder may separate the Notes from the related Purchase Contracts in
respect of such Holder's SPC Units by substituting for such Notes, Treasury
Securities in an aggregate principal amount equal to the aggregate principal
amount of such Notes (a "Collateral Substitution"), at any time from and after
the date of this Agreement and prior to or on the seventh Business Day
immediately preceding the Purchase Contract Settlement Date by:
(1) depositing with the [Securities Intermediary] Treasury Securities
having an aggregate principal amount equal to the aggregate principal
amount of the Notes comprising part of such SPC Units; and
(2) transferring the related SPC Units to the Purchase Contract Agent
accompanied by a notice to the Purchase Contract Agent, substantially in
the form of Exhibit C hereto, (i) stating that the Holder has transferred
the relevant amount of Treasury Securities to the Securities Intermediary
and (ii) requesting that the Purchase Contract Agent instruct the
Collateral Agent to release the Notes underlying such SPC Units, whereupon
the Purchase Contract Agent shall promptly give such instruction to the
Collateral Agent, substantially in the form of Exhibit A to the Pledge
Agreement. [Insert any provisions for adjustment relating to Purchase
Contract Payments.]
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Upon receipt of the Treasury Securities described in clause (1) above and the
instruction described in clause (2) above, in accordance with the terms of the
Pledge Agreement, the Collateral Agent will cause the Securities Intermediary to
effect the release of such Notes from the Pledge, free and clear of the
Company's security interest therein, and the transfer of such Notes to the
Purchase Contract Agent on behalf of the Holder. Upon receipt thereof, the
Purchase Contract Agent shall promptly:
(i) cancel the related SPC Units transferred and surrendered;
(ii) transfer the Notes that had been components of such SPC Unit to
the Holder; and
(iii) authenticate, execute on behalf of such Holder and deliver a
Treasury SPC Units Certificate executed by the Company in accordance with
Section 3.3 evidencing the same number of Purchase Contracts as were
evidenced by the cancelled SPC Units.
Holders who elect to separate the Notes from the related Purchase
Contracts and to substitute Treasury Securities for such Notes shall be
responsible for any fees or expenses payable to the Collateral Agent for its
services as Collateral Agent in respect of the substitution, and the Company
shall not be responsible for any such fees or expenses.
Holders may make Collateral Substitutions only in integral multiples
of 20 SPC Units.
In the event a Holder making a Collateral Substitution pursuant to
this Section 3.13 fails to effect a book-entry transfer of the SPC Units or
fails to deliver SPC Units Certificates to the Purchase Contract Agent after
depositing Treasury Securities with the Collateral Agent, the Notes,
constituting a part of such SPC Units, and any interest payments on such Notes,
shall be held in the name of the Purchase Contract Agent or its nominee in trust
for the benefit of such Holder, until such SPC Units are so transferred or the
SPC Units Certificate is so delivered, as the case may be, or, with respect to a
SPC Units Certificate, such Holder provides evidence satisfactory to the Company
and the Purchase Contract Agent that such SPC Units Certificate has been
destroyed, lost or stolen, together with any indemnity that may be required by
the Purchase Contract Agent and the Company.
Except as described in this Section 3.13, for so long as the Purchase
Contract underlying a SPC Unit remains in effect, such SPC Unit shall not be
separable into its constituent parts, and the rights and obligations of the
Holder in respect of the Note and the Purchase Contract comprising such SPC Unit
may be acquired, and may be transferred and exchanged, only as a SPC Unit.
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SECTION 3.14 REESTABLISHMENT OF SPC UNITS.
A Holder of Treasury SPC Units may recreate SPC Units at any time
prior to or on the seventh Business Day immediately preceding the Purchase
Contract Settlement Date by:
(1) depositing with the [Securities Intermediary] Notes, having an
aggregate principal amount equal to the aggregate principal amount at
maturity of the Treasury Securities comprising part of the Treasury SPC
Units; and
(2) transferring the related Treasury SPC Units to the Purchase
Contract Agent accompanied by a notice to the Purchase Contract Agent,
substantially in the form of Exhibit C hereto, (i) stating that the Holder
has transferred the relevant amount of Notes to the Securities Intermediary
and (ii) requesting that the Purchase Contract Agent instruct the
Collateral Agent to release the Treasury Securities underlying such
Treasury SPC Units, whereupon the Purchase Contract Agent shall promptly
give such instruction to the Collateral Agent, substantially in the form of
Exhibit C to the Pledge Agreement.
Upon receipt of the Notes described in clause (1) above and the instruction
described in clause (2) above, in accordance with the terms of the Pledge
Agreement, the Collateral Agent will cause the Securities Intermediary to effect
the release of the Treasury Securities having a corresponding aggregate
principal amount at maturity from the Pledge, free and clear of the Company's
security interest therein, and the transfer to the Purchase Contract Agent on
behalf of the Holder. Upon receipt thereof, the Purchase Contract Agent shall
promptly:
(i) cancel the related Treasury SPC Units transferred and surrendered;
(ii) transfer the Treasury Securities that had been components of such
Treasury SPC Units to the Holder; and
(iii) authenticate, execute on behalf of such Holder and deliver a SPC
Units Certificate executed by the Company in accordance with Section 3.3
evidencing the same number of Purchase Contracts as were evidenced by the
cancelled Treasury SPC Units.
Holders who elect to recreate SPC Units shall be responsible for any
fees or expenses payable to the Collateral Agent for its services as Collateral
Agent in respect of the substitution, and the Company shall not be responsible
for any such fees or expenses.
Holders of Treasury SPC Units may reestablish SPC Units in integral
multiples of 20 Treasury SPC Units for 20 SPC Units.
Except as provided in this Section 3.14, for so long as the Purchase
Contract underlying a Treasury SPC Unit remains in effect, such Treasury SPC
Unit shall not be separable into its constituent parts and the rights and
obligations of the Holder of such Treasury SPC Unit in respect of the 1/20 of a
Treasury Security and the Purchase Contract comprising such Treasury SPC Unit
may be acquired, and may be transferred and exchanged, only as a Treasury SPC
Unit.
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SECTION 3.15 TRANSFER OF COLLATERAL UPON OCCURRENCE OF TERMINATION EVENT.
Upon the occurrence of a Termination Event and the transfer to the
Purchase Contract Agent of the Notes or the Treasury Securities, as the case may
be, underlying the SPC Units and the Treasury SPC Units, as the case may be,
pursuant to the terms of the Pledge Agreement, the Purchase Contract Agent shall
request transfer instructions with respect to such Notes or Treasury Securities,
as the case may be, from each Holder by written request, substantially in the
form of Exhibit D hereto, mailed to such Holder at its address as it appears in
the SPC Units Register or the Treasury SPC Units Register, as the case may be.
Upon book-entry transfer of the SPC Units or the Treasury SPC Units or
delivery of a SPC Units Certificate or Treasury SPC Units Certificate to the
Purchase Contract Agent with such transfer instructions, the Purchase Contract
Agent shall transfer the Notes or Treasury Securities, as the case may be,
underlying such SPC Units or Treasury SPC Units, as the case may be, to such
Holder by book-entry transfer, or other appropriate procedures, in accordance
with such instructions. In the event a Holder of SPC Units or Treasury SPC Units
fails to effect such transfer or delivery, the Notes or Treasury Securities, as
the case may be, underlying such SPC Units or Treasury SPC Units, as the case
may be, and any distributions thereon, shall be held in the name of the Purchase
Contract Agent or its nominee in trust for the benefit of such Holder, until the
earlier of:
(1) such SPC Units or Treasury SPC Units are transferred or the SPC
Units Certificate or Treasury SPC Units Certificate is surrendered or such
Holder provides satisfactory evidence that such SPC Units Certificate or
Treasury SPC Units Certificate has been destroyed, lost or stolen, together
with any indemnity that may be required by the Purchase Contract Agent and
the Company; and
(2) the expiration of the time period specified in the abandoned
property laws of the [relevant State].
SECTION 3.16 NO CONSENT TO ASSUMPTION.
Each Holder of a Security, by acceptance thereof, shall be deemed
expressly to have withheld any consent to the assumption under Section 365 of
the Bankruptcy Code or otherwise, of the Purchase Contract by the Company or its
trustee, receiver, liquidate or a person or entity performing similar functions
in the event that the Company becomes the debtor under the Bankruptcy Code or
subject to other similar state or Federal law providing for reorganization or
liquidation.
ARTICLE IV
THE NOTES
SECTION 4.1 INTEREST PAYMENTS; RIGHTS TO INTEREST PAYMENTS PRESERVED.
An interest payment on any Note which is paid on any Payment Date
shall, subject to receipt thereof by the Purchase Contract Agent from the
Collateral Agent as provided by the terms of the Pledge Agreement, be paid to
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the Person in whose name the SPC Units Certificate (or one or more Predecessor
SPC Units Certificates) of which such Note is a part is registered at the close
of business on the Record Date for such Payment Date.
Each SPC Units Certificate evidencing the Note delivered under this
Agreement upon registration of transfer of or in exchange for or in lieu of any
other SPC Units Certificate shall carry the right to accrued and unpaid and
deferred interest and the right to accrue interest, which rights were carried by
the Note underlying such other SPC Units Certificate.
In the case of any SPC Units with respect to which Cash Settlement of
the underlying Purchase Contract is effected [prior to or] on the [fifth]
Business Day immediately preceding the Purchase Contract Settlement Date
pursuant to prior notice, or with respect to which Early Settlement of the
underlying Purchase Contract is effected on an Early Settlement Date, or with
respect to which a Collateral Substitution is effected, in each case on a date
that is after any Record Date and prior to or on the next succeeding Payment
Date, the interest payment on the Note underlying such SPC Unit otherwise
payable on such Payment Date shall be payable on such Payment Date
notwithstanding such Cash Settlement or Early Settlement or Collateral
Substitution, and such interest payment shall, subject to receipt thereof by the
Purchase Contract Agent, be payable to the Person in whose name the SPC Units
Certificate (or one or more Predecessor SPC Units Certificates) was registered
at the close of business on the Record Date. Except as otherwise expressly
provided in the immediately preceding sentence, in the case of any SPC Unit with
respect to which Cash Settlement or Early Settlement of the underlying Purchase
Contract is effected [prior to or] on the [fifth] Business Day immediately
preceding the Purchase Contract Settlement Date or an Early Settlement Date, as
the case may be, or with respect to which a Collateral Substitution has been
effected, interest payments on the related Notes that would otherwise be payable
after the Purchase Contract Settlement Date or Early Settlement Date shall not
be payable hereunder to the Holder of such SPC Units; provided, however, that to
the extent that such Holder continues to hold the separated Note that formerly
comprised a part of such Holder's SPC Unit, such Holder shall be entitled to
receive the interest payments on such separated Note, as provided therein.
SECTION 4.2 [DEFERRAL OF INTEREST PAYMENTS.
So long as no event of default has occurred and is occurring under the
Indenture, the Company shall have the right at any time until the Stated
Maturity of the Notes to defer the payment of interest on the Notes as provided
therein for a period of time not extending beyond the Stated Maturity (each such
period of deferral, an "Extension Period"). If the Company so elects to defer
interest payments on the Notes, the Company shall pay at the end of the
Extension Period all interest then accrued and unpaid, together with accrued
interest at the Coupon Rate or the Reset Rate, as applicable, compounded on each
succeeding Payment Date.]
SECTION 4.3 INTEREST RATE RESET; NOTICE RELATING TO CASH SETTLEMENT.
The Coupon Rate on the Notes to be in effect on and after the Purchase
Contract Settlement Date shall be reset on the third Business Day immediately
preceding the Purchase Contract Settlement Date to the Reset Rate (such Reset
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Rate to be in effect on and after the Purchase Contract Settlement Date). [The
Reset Rate shall be equal to or greater than the Coupon Rate.]
Not later than 15 calendar days nor more than 30 calendar days prior
to the third Business Day immediately preceding the Purchase Contract Settlement
Date, the Company shall request that the Depositary (or any successor Clearing
Agency or its nominee), notify the Beneficial Owners or Clearing Agency
Participants holding SPC Units of the interest rate reset and any procedures to
be followed by Holders of SPC Units who intend to effect a Cash Settlement prior
to or on the fifth Business Day immediately preceding the Purchase Contract
Settlement Date.
SECTION 4.4 NOTICE AND VOTING.
Under and subject to the terms of the Pledge Agreement, the Purchase
Contract Agent will be entitled to exercise the voting and any other consensual
rights pertaining to the Pledged Notes, but only to the extent instructed by the
Holders as described below. Upon receipt of notice of any meeting at which
holders of Notes are entitled to vote or upon any solicitation of consents,
waivers or proxies of holders of Notes, the Purchase Contract Agent shall, as
soon as practicable thereafter, mail to the Holders of SPC Units a notice:
(1) containing such information as is contained in the notice or
solicitation;
(2) stating that each Holder on the record date set by the Purchase
Contract Agent therefor (which, to the extent possible, shall be the same
date as the record date for determining the holders of Notes entitled to
vote) shall be entitled to instruct the Purchase Contract Agent as to the
exercise of the voting rights pertaining to such Notes underlying their SPC
Units; and
(3) stating the manner in which such instructions may be given.
Upon the written request of the Holders of SPC Units on such record
date, the Purchase Contract Agent shall endeavor insofar as practicable to vote
or cause to be voted, in accordance with the instructions set forth in such
requests, the maximum number of Notes as to which any particular voting
instructions are received. In the absence of specific instructions from the
Holder of a SPC Unit, the Purchase Contract Agent shall abstain from voting the
Notes underlying such SPC Unit. The Company hereby agrees, if applicable, to
solicit Holders of SPC Units to timely instruct the Purchase Contract Agent in
order to enable the Purchase Contract Agent to vote such Notes.
ARTICLE V
THE PURCHASE CONTRACTS
SECTION 5.1 PURCHASE OF SHARES OF COMMON STOCK.
Each Purchase Contract shall, unless a Termination Event or an Early
Settlement in accordance with Section 5.9 hereof has occurred with respect to
the Security of which such Purchase Contract is a part, obligate the Holder of
the related Security to purchase, and the Company to sell, on the Purchase
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Contract Settlement Date at a price equal to the Stated Amount (the "Purchase
Price"), a number of shares of Common Stock equal to the Settlement Rate. The
"Settlement Rate" is equal to:
(1) if the Applicable Market Value (as defined below) equals or
exceeds $___________ (the "Threshold Appreciation Price"), ______________
shares of Common Stock per Purchase Contract;
(2) if the Applicable Market Value is less than the Threshold
Appreciation Price but greater than $____________ (the "Reference Price"),
the number of shares of Common Stock having a value, based on the
Applicable Market Value, equal to the Stated Amount; and
(3) if the Applicable Market Value is less than or equal to the
Reference Price, ___________ shares of Common Stock per Purchase Contract,
in each case subject to adjustment as provided in Section 5.6 (and in each case
rounded upward or downward to the nearest 1/10,000th of a share).
As provided in Section 5.10, no fractional shares of Common Stock will
be issued upon settlement of Purchase Contracts.
The "Applicable Market Value" means the average of the Closing Price
per share of Common Stock on each of the 20 consecutive Trading Days ending on
the third Trading Day immediately preceding the Purchase Contract Settlement
Date.
The "Closing Price" per share of Common Stock on any date of
determination means:
(1) the closing sale price (or, if no closing price is reported, the
last reported sale price) per share on the New York Stock Exchange, Inc.
(the "NYSE") on such date;
(2) if Common Stock is not listed for trading on the NYSE on any such
date, the closing sale price per share as reported in the composite
transactions for the principal United States securities exchange on which
Common Stock is so listed;
(3) if Common Stock is not so listed on a United States national or
regional securities exchange, the closing sale price per share as reported
by The Nasdaq Stock Market, Inc.;
(4) if Common Stock is not so reported, the last quoted bid price for
Common Stock in the over-the-counter market as reported by the National
Quotation Bureau or similar organization; or
(5) if such bid price is not available, the average of the mid-point
of the last bid and ask prices of Common Stock on such date from at least
three nationally recognized independent investment banking firms retained
for this purpose by the Company.
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A "Trading Day" means a day on which Common Stock (1) is not suspended
from trading on any national or regional securities exchange or association or
over-the-counter market at the close of business and (2) has traded at least
once on the national or regional securities exchange or association or
over-the-counter market that is the primary market for the trading of Common
Stock.
Each Holder of a SPC Unit or a Treasury SPC Unit, by its acceptance
thereof:
(1) irrevocably authorizes the Purchase Contract Agent to enter into
and perform the related Purchase Contract on its behalf as its attorney-in-
fact (including the execution of Certificates on behalf of such Holder);
(2) agrees to be bound by the terms and provisions thereof;
(3) covenants and agrees to perform its obligations under such
Purchase Contracts;
(4) consents to the provisions hereof;
(5) irrevocably authorizes the Purchase Contract Agent to enter into
and perform this Agreement and the Pledge Agreement on its behalf as its
attorney-in-fact; and
(6) consents to, and agrees to be bound by, the Pledge of the Notes or
the Treasury Securities pursuant to the Pledge Agreement,
[provided that upon a Termination Event, the rights of the Holder of such
Security under the Purchase Contract may be enforced without regard to any other
rights or obligations.] Each Holder of a SPC Unit or a Treasury SPC Unit, by its
acceptance thereof, further covenants and agrees, that to the extent and in the
manner provided in Section 5.4 and the Pledge Agreement, but subject to the
terms thereof, payments in respect of the Notes or the proceeds from the
Treasury Securities at maturity on the Purchase Contract Settlement Date, as the
case may be, shall be paid by the Collateral Agent to the Company in
satisfaction of such Holder's obligations under such Purchase Contract and such
Holder shall acquire no right, title or interest in such payments.
Upon registration of transfer of a Certificate, the transferee shall
be bound (without the necessity of any other action on the part of such
transferee) by the terms of this Agreement, the Purchase Contracts underlying
such Certificate and the Pledge Agreement and the transferor shall be released
from the obligations under this Agreement, the Purchase Contracts underlying the
Certificate so transferred and the Pledge Agreement. The Company covenants and
agrees, and each Holder of a Certificate, by its acceptance thereof, likewise
covenants and agrees, to be bound by the provisions of this paragraph.
SECTION 5.2 PURCHASE CONTRACT PAYMENTS.
Subject to Section 5.3, the Company shall pay, on each Payment Date,
the Purchase Contract Payments payable in respect of each Purchase Contract to
the Person in whose name a Certificate (or one or more Predecessor Certificates)
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is registered at the close of business on the Record Date next preceding such
Payment Date. The Purchase Contract Payments will be payable at the office of
the Purchase Contract Agent in The City of New York maintained for that purpose
or, at the option of the Company, by check mailed to the address of the Person
entitled thereto at such Person's address as it appears on the SPC Units
Register or Treasury SPC Units Register. If any date on which Purchase Contract
Payments are to be made is not a Business Day, then payment of the Purchase
Contract Payments payable on such date will be made on the next day that is a
Business Day (and without any interest in respect of any such delay), [except
that, if such Business Day is in the next calendar year, such payment will be
made on the preceding Business Day].
Upon the occurrence of a Termination Event, the Company's obligation
to pay Purchase Contract Payments (including any accrued or deferred Purchase
Contract Payments) shall cease.
Each Certificate delivered under this Agreement upon registration of
transfer of or in exchange for or in lieu of (including as a result of a
Collateral Substitution or the reestablishment of SPC Units) any other
Certificate shall carry the right to accrued and unpaid or deferred Purchase
Contract Payments and the right to accrue Purchase Contract Payments, which
rights were carried by the Purchase Contracts underlying such other
Certificates.
Subject to Section 5.9, in the case of any Security with respect to
which Early Settlement of the underlying Purchase Contract is effected on an
Early Settlement Date that is after any Record Date and prior to or on the next
succeeding Payment Date, Purchase Contract Payments otherwise payable on such
Payment Date shall be payable on such Payment Date notwithstanding such Early
Settlement, and such Purchase Contract Payments shall be paid to the Person in
whose name the Certificate evidencing such Security (or one or more Predecessor
Certificates) is registered at the close of business on such Record Date. Except
as otherwise expressly provided in the immediately preceding sentence, in the
case of any Security with respect to which Early Settlement of the underlying
Purchase Contract is effected on an Early Settlement Date, Purchase Contract
Payments that would otherwise be payable after the Early Settlement Date with
respect to such Purchase Contract shall not be payable.
[Insert, if applicable: Provisions relating to ranking of Purchase
Contract Payments.]
SECTION 5.3 [DEFERRAL OF PURCHASE CONTRACT PAYMENTS.
The Company has the right to defer payment of all or part of the
Purchase Contract Payments in respect of each Purchase Contract until no later
than the Purchase Contract Settlement Date. If the Company so elects to defer
Purchase Contract Payments, the Company shall pay additional Purchase Contract
Payments on such deferred installments of Purchase Contract Payments at a rate
equal to ____% per annum, compounding quarterly, until such deferred
installments are paid. If a Holder effects an Early Settlement or if a
Termination Event shall occur, such Holder will have no right to receive any
accrued deferred Purchase Contract Payments.]
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SECTION 5.4 PAYMENT OF PURCHASE PRICE.
(a) (i) Unless a Holder of a SPC Unit effects an Early Settlement of
the underlying Purchase Contract in the manner described in Section 5.9,
each such Holder who intends to pay in cash to satisfy such Holder's
obligations under the Purchase Contract shall notify the Purchase Contract
Agent by use of a notice in substantially the form of Exhibit E hereto of
his intention to pay in cash ("Cash Settlement") the Purchase Price for the
shares of Common Stock to be purchased pursuant to the related Purchase
Contract. Such notice shall be given prior to 5:00 p.m. (New York City
time) on the seventh Business Day immediately preceding the Purchase
Contract Settlement Date. Prior to 11:00 a.m. (New York City time) on the
next succeeding Business Day, the Purchase Contract Agent shall notify the
Collateral Agent and the Indenture Trustee of the receipt of such notices
from Holders intending to make a Cash Settlement.
(ii) A Holder of a SPC Unit who has so notified the Purchase Contract
Agent of his intention to effect a Cash Settlement in accordance with
paragraph (a)(i) above shall pay the Purchase Price to the Securities
Intermediary for deposit in the Collateral Account prior to 11:00 a.m. (New
York City time) on the [fifth] Business Day immediately preceding the
Purchase Contract Settlement Date in lawful money of the United States by
certified or cashiers' check or wire transfer, in each case in immediately
available funds payable to or upon the order of the [Securities
Intermediary]. Any cash received by the Collateral Agent shall be invested
promptly by the Securities Intermediary in Permitted Investments and paid
to the Company on the Purchase Contract Settlement Date in settlement of
the Purchase Contract in accordance with the terms of this Agreement and
the Pledge Agreement. Any funds received by the Securities Intermediary in
respect of the investment earnings from the investment in such Permitted
Investments, shall be distributed to the Purchase Contract Agent when
received for payment to the Holder of the related SPC Unit.
(iii) If a Holder of a SPC Unit fails to notify the Purchase Contract
Agent of his intention to make a Cash Settlement in accordance with
paragraph (a)(i) above, or does notify the Purchase Contract Agent as
provided in paragraph (a)(i) above of his intention to pay the Purchase
Price in cash, but fails to make such payment as required by paragraph
(a)(ii) above, [the Notes of such holder will not be remarketed, but
instead the Collateral Agent, for the benefit of the Company, will exercise
its rights as a secured party with respect to the Notes, including those
rights described in paragraph (b) below.
(iv) Promptly after 11:00 a.m. (New York City time) on the [fifth]
Business Day preceding the Purchase Contract Settlement Date, the Purchase
Contract Agent, based on notices received by the Purchase Contract Agent
pursuant to Section 5.4(a) hereof and notice from the Securities
Intermediary regarding cash received by it prior to such time, shall notify
the Collateral Agent and the Indenture Trustee of the aggregate number of
Notes to be tendered for purchase in the Remarketing in a notice
substantially in the form of Exhibit F hereto.
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(b) In order to dispose of the Notes, SPC Units Holders who have not
notified the Purchase Contract Agent of their intention to effect a Cash
Settlement as provided in paragraph (a)(i) above, or who have so notified
the Purchase Contract Agent but failed to make such payment as required by
paragraph (a)(ii) above, the Company shall engage _______________________
(the "Remarketing Agent") pursuant to the Remarketing Agreement
to sell such Notes. In order to facilitate the Remarketing, the Purchase
Contract Agent, based on the notices specified in Section 5.4(a)(iv), shall
notify the Remarketing Agent, promptly after 11:00 a.m. (New York City
time) on the [fifth] Business Day immediately preceding the Purchase
Contract Settlement Date, of the aggregate number of Notes that are part of
SPC Units to be remarketed. Concurrently, the Collateral Agent, pursuant to
the terms of the Pledge Agreement, shall cause such Notes to be presented
to the Remarketing Agent for Remarketing.
Upon receipt of such notice from the Purchase Contract Agent and such
Notes, the Remarketing Agent shall, on the third Business Day immediately
preceding the Purchase Contract Settlement Date, use reasonable efforts to
remarket such Notes on such date at a price equal to at least [100.25%] of
the Stated Amount [($50.1250)], as provided in the Remarketing Agreement.
The proceeds from the Remarketing shall automatically be applied by the
Collateral Agent, in accordance with the Pledge Agreement, to satisfy in
full such SPC Units Holders' obligations to pay the Purchase Price for the
shares of Common Stock under the related Purchase Contracts on the Purchase
Contract Settlement Date. In addition, $[.1250] per Note of the proceeds
shall be remitted to the Remarketing Agent for services rendered in
connection with the Remarketing (the "Remarketing Fee"). Any proceeds
remaining after satisfaction of the Purchase Contract and payment of the
Remarketing Fee shall be payable to the Holder of such SPC Unit.
If, in spite of using their reasonable efforts, the Remarketing Agent
cannot remarket the related Notes of such Holders of SPC Units at a price
equal to at least [100.25%] of the Stated Amount [($50.1250)], the
Remarketing shall be deemed to have failed (a "Failed Remarketing") and in
accordance with the terms of the Pledge Agreement, the Collateral Agent,
for the benefit of the Company, shall exercise its rights as a secured
party with respect to such Notes, including those actions specified in
paragraph (c) below; provided, that if upon a Failed Remarketing the
Collateral Agent exercises such rights for the benefit of the Company with
respect to such Notes, any accrued and unpaid and deferred interest on such
Notes shall become payable by the Company to the Purchase Contract Agent
for payment to the Beneficial Owner of the SPC Units to which such Notes
relate. The Company shall cause a notice of such Failed Remarketing to be
published on the second Business Day immediately preceding the Purchase
Contract Settlement Date in a daily newspaper in the English language of
general circulation in New York City, which is expected to be The Wall
Street Journal, and on Bloomberg News.
(c) With respect to any Notes which are subject to a Failed
Remarketing, the Collateral Agent for the benefit of the Company reserves
all of its rights as a secured party with respect thereto and, subject to
applicable law and paragraph (g) below, may, among other things, (i) retain
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the Notes in full satisfaction of the Holders' obligations under the
Purchase Contracts or (ii) sell the Notes in one or more public or private
sales.
(d) (i) Unless a Holder of a Treasury SPC Units effects an Early
Settlement of the underlying Purchase Contract through the early delivery
of cash to the Purchase Contract Agent in the manner described in Section
5.9, each such Holder who intends to pay in cash shall notify the Purchase
Contract Agent by use of a notice in substantially the form of Exhibit E
hereto of his intention to pay in cash the Purchase Price for the shares of
Common Stock to be purchased pursuant to the related Purchase Contract.
Such notice shall be given prior to 5:00 p.m. (New York City time) on the
seventh Business Day immediately preceding the Purchase Contract Settlement
Date. Prior to 11:00 a.m. (New York City time) on the next succeeding
Business Day, the Purchase Contract Agent shall notify the Collateral Agent
of the receipt of such notices from such Holders intending to make a Cash
Settlement.
(ii) A Holder of a Treasury SPC Unit who has so notified the Purchase
Contract Agent of his intention to make a Cash Settlement in accordance
with paragraph (d)(i) above shall pay the Purchase Price to the Securities
Intermediary for deposit in the Collateral Account prior to 11:00 a.m. (New
York City time) on the [fifth] Business Day immediately preceding the
Purchase Contract Settlement Date in lawful money of the United States by
certified or cashiers' check or wire transfer, in each case in immediately
available funds payable to or upon the order of the [Securities
Intermediary]. Any cash received by the Collateral Agent shall be invested
promptly by the Securities Intermediary in Permitted Investments and paid
to the Company on the Purchase Contract Settlement Date in settlement of
the Purchase Contract in accordance with the terms of this Agreement and
the Pledge Agreement. Any funds received by the Securities Intermediary in
respect of the investment earnings from the investment in such Permitted
Investments shall be distributed to the Purchase Contract Agent when
received for payment to the Holder of the related Treasury SPC Unit.
(iii) If a Holder of a Treasury SPC Unit fails to notify the Purchase
Contract Agent of his intention to make a Cash Settlement in accordance
with paragraph (d)(i) above, or does notify the Purchase Contract Agent as
provided in paragraph (d)(i) above of his intention to pay the Purchase
Price in cash, but fails to make such payment as required by paragraph
(d)(ii) above, then upon the maturity of the Pledged Treasury Securities
held by the Securities Intermediary on the Business Day immediately
preceding the Purchase Contract Settlement Date, the principal amount of
the Treasury Securities received by the Securities Intermediary shall be
invested promptly in Permitted Investments.
On the Purchase Contract Settlement Date, an amount equal to the
Purchase Price shall be remitted to the Company as payment thereof without
receiving any instructions from the Holder of the related Treasury SPC
Unit. In the event the sum of the proceeds from the related Pledged
Treasury Securities and the investment earnings earned from such
investments is in excess of the aggregate Purchase Price of the Purchase
Contracts being settled thereby, the Collateral Agent shall cause the
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Securities Intermediary to distribute such excess to the Purchase Contract
Agent for the benefit of the Holder of the related Treasury SPC Unit when
received.
(iv) A Holder of a Treasury SPC Unit may elect to have the Note, no
longer a part of a SPC Unit, remarketed. A Holder making such an election
must notify the Indenture Trustee prior to 11:00 a.m. (New York City time)
on the fifth Business Day immediately preceding the Purchase Contract
Settlement Date, of the aggregate number of Notes that are not part of SPC
Units to be remarketed. Any such notice will be irrevocable and may not be
conditioned upon the level at which the Reset Rate is established in the
Remarketing. Concurrently, the Indenture Trustee shall cause such Notes to
be presented to the Remarketing Agent for Remarketing.
(e) Any distribution to Holders of excess funds and interest described
above shall be payable at the office of the Purchase Contract Agent in New
York City maintained for that purpose or, at the option of the Holder, by
check mailed to the address of the Person entitled thereto at such address
as it appears on the Register.
(f) Upon Cash Settlement of any Purchase Contract:
(1) the Collateral Agent will in accordance with the terms of the
Pledge Agreement cause the Pledged Note or the Pledged Treasury Securities,
as the case may be, underlying the relevant Security to be released from
the Pledge, free and clear of any security interest of the Company, and
transferred to the Purchase Contract Agent for delivery to the Holder
thereof or its designee as soon as practicable; and
(2) subject to the receipt thereof, the Purchase Contract Agent shall,
by book-entry transfer or other appropriate procedures, in accordance with
written instructions provided by the Holder thereof, transfer such Note or
such Treasury Securities, as the case may be (or, if no such instructions
are given to the Purchase Contract Agent by the Holder, the Purchase
Contract Agent shall hold such Note or such Treasury Securities, as the
case may be, and any interest payment thereon, in the name of the Purchase
Contract Agent or its nominee in trust for the benefit of such Holder until
the expiration of the time period specified in the abandoned property laws
of the relevant State).
(g) The obligations of the Holders to pay the Purchase Price are non-
recourse obligations and, except to the extent satisfied by Early
Settlement or Cash Settlement, are payable solely out of the proceeds of
any Collateral pledged to secure the obligations of the Holders and in no
event will Holders be liable for any deficiency between the proceeds of the
disposition of Collateral and the Purchase Price.
(h) The Company shall not be obligated to issue any shares of Common
Stock in respect of a Purchase Contract or deliver any certificates thereof
to the Holder of the related SPC Unit or Treasury SPC Unit unless the
Company shall have received payment in full for the aggregate purchase
price for the Common Stock to be purchased thereunder in the manner herein
set forth.
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SECTION 5.5 ISSUANCE OF SHARES OF COMMON STOCK.
Unless a Termination Event or an Early Settlement shall have occurred,
on the Purchase Contract Settlement Date, upon its receipt of payment in full of
the applicable Purchase Price for shares of Common Stock purchased by Holders
pursuant to the foregoing provisions of this Article and subject to Section
5.6(b), the Company shall issue and deposit with the Purchase Contract Agent,
for the benefit of the Holders of the Outstanding Securities, one or more
certificates representing the shares of Common Stock registered in the name of
the Purchase Contract Agent (or its nominee) as custodian for the Holders (such
certificates for shares of Common Stock, together with any dividends or
distributions for which both a record date and payment date for such dividend or
distribution has occurred after the Purchase Contract Settlement Date, being
hereinafter referred to as the "Purchase Contract Settlement Fund") to which the
Holders are entitled hereunder.
Subject to the foregoing, upon surrender of a Certificate to the
Purchase Contract Agent on or after the Purchase Contract Settlement Date,
together with settlement instructions thereon duly completed and executed, the
Holder of such Certificate shall be entitled to receive in exchange therefor a
certificate representing that number of whole shares of Common Stock which such
Holder is entitled to receive pursuant to the provisions of this Article Five
(after taking into account all Securities then held by such Holder), together
with cash in lieu of fractional shares as provided in Section 5.10 and any
dividends or distributions with respect to such shares constituting part of the
Purchase Contract Settlement Fund, but without any interest thereon, and the
Certificate so surrendered shall forthwith be cancelled. Such shares shall be
registered in the name of the Holder or the Holder's designee as specified in
the settlement instructions provided by the Holder to the Purchase Contract
Agent. If any shares of Common Stock issued in respect of a Purchase Contract
are to be registered to a Person other than the Person in whose name the
Certificate evidencing such Purchase Contract is registered, no such
registration shall be made unless the Person requesting such registration has
paid any transfer and other taxes required by reason of such registration in a
name other than that of the registered Holder of the Certificate evidencing such
Purchase Contract or has established to the satisfaction of the Company that
such tax either has been paid or is not payable.
SECTION 5.6 ADJUSTMENT OF SETTLEMENT RATE.
(a) Adjustments for Dividends, Distributions, Stock Splits, Etc.
(1) In case the Company shall pay or make a dividend or other
distribution on Common Stock in Common Stock, the Settlement Rate, as in
effect at the opening of business on the day following the date fixed for
the determination of shareholders entitled to receive such dividend or
other distribution shall be increased by dividing such Settlement Rate by a
fraction of which:
(i) the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such
determination; and
(ii) the denominator shall be the sum of such number of shares
and the total number of shares constituting such dividend or other
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distribution, such increase to become effective immediately after the
opening of business on the day following the date fixed for such
determination. For the purposes of this paragraph (1), the number of
shares of Common Stock at any time outstanding shall not include shares
held in the treasury of the Company but shall include any shares issuable
in respect of any scrip certificates issued in lieu of fractions of shares
of Common Stock. The Company will not pay any dividend or make any
distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, warrants or options to all
holders of its Common Stock that are not available on an equivalent basis
to Holders of the Securities upon settlement of the Purchase Contracts
underlying such Securities entitling such holders of the Common Stock, for
a period expiring within 45 days after the record date for the
determination of shareholders entitled to receive such rights, warrants or
options, to subscribe for or purchase shares of Common Stock at a price per
share less than the Current Market Price per share of Common Stock on the
date fixed for the determination of shareholders entitled to receive such
rights, warrants or options (other than pursuant to a dividend reinvestment
plan), the Settlement Rate in effect at the opening of business on the day
following the date fixed for such determination shall be increased by
dividing such Settlement Rate by a fraction of which:
(i) the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such
determination plus the number of shares of Common Stock which the aggregate
of the offering price of the total number of shares of Common Stock so
offered for subscription or purchase would purchase at such Current Market
Price; and
(ii) the denominator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such
determination plus the number of shares of Common Stock so offered for
subscription or purchase,
such increase to become effective immediately after the opening of business
on the day following the date fixed for such determination. For the
purposes of this paragraph (2), the number of shares of Common Stock at any
time outstanding shall not include shares held in the treasury of the
Company but shall include any shares issuable in respect of any scrip
certificates issued in lieu of fractions of shares of Common Stock. The
Company shall not issue any such rights, warrants or options in respect of
shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided or
split into a greater number of shares of Common Stock, the Settlement Rate
in effect at the opening of business on the day following the day upon
which such subdivision or split becomes effective shall be proportionately
increased, and, conversely, in case outstanding shares of Common Stock
shall each be combined into a smaller number of shares of Common Stock, the
Settlement Rate in effect at the opening of business on the day following
the day upon which such combination becomes effective shall be
proportionately reduced, such increase or reduction, as the case may be, to
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become effective immediately after the opening of business on the day
following the day upon which such subdivision, split or combination becomes
effective.
(4) In case the Company shall, by dividend or otherwise, distribute to
all holders of its Common Stock evidences of its indebtedness or assets
(including securities, but excluding any rights, warrants or options
referred to in paragraph (2) of this Section 5.6(a), any dividend or
distribution paid exclusively in cash and any dividend or distribution
referred to in paragraph (1) of this Section 5.6(a)), the Settlement Rate
shall be adjusted so that the same shall equal the rate determined by
dividing the Settlement Rate in effect immediately prior to the close of
business on the date fixed for the determination of shareholders entitled
to receive such distribution by a fraction of which:
(i) the numerator shall be the Current Market Price per share of
Common Stock on the date fixed for such determination less the then fair
market value (as determined by the Board of Directors, whose determination
shall be conclusive and described in a Board Resolution) of the portion of
the assets or evidences of indebtedness so distributed applicable to one
share of Common Stock; and
(ii) the denominator shall be such Current Market Price per share
of Common Stock,
such adjustment to become effective immediately prior to the opening of
business on the day following the date fixed for the determination of
shareholders entitled to receive such distribution. In any case in which
this paragraph (4) is applicable, paragraph (2) of this Section 5.6(a)
shall not be applicable.
(5) In case the Company shall, (I) by dividend or otherwise,
distribute to all holders of its Common Stock cash (excluding any cash that
is distributed in a Reorganization Event to which Section 5.6(b) applies or
as part of a distribution referred to in paragraph (4) of this Section
5.6(a)) in an aggregate amount that, combined together with (II) the
aggregate amount of any other distributions to all holders of its Common
Stock made exclusively in cash within the 12 months preceding the date of
payment of such distribution and in respect of which no adjustment pursuant
to this paragraph (5) or paragraph (6) of this Section 5.6(a) has been made
and (III) the aggregate of any cash plus the fair market value (as
determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution) of consideration payable in
respect of any tender or exchange offer by the Company or any of its
subsidiaries for all or any portion of the Common Stock concluded within
the 12 months preceding the date of payment of the distribution described
in clause (I) above and in respect of which no adjustment pursuant to this
paragraph (5) or paragraph (6) of this Section 5.6(a) has been made,
exceeds 15% of the product of the Current Market Price per share of the
Common Stock on the date for the determination of holders of shares of
Common Stock entitled to receive such distribution times the number of
shares of Common Stock outstanding on such date, then, and in each such
case, immediately after the close of business on such date for
determination, the Settlement Rate, shall be increased so that the same
shall equal the rate determined by dividing the Settlement Rate in effect
immediately prior to the close of business on the date fixed for
determination of the stockholders entitled to receive such distribution by
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a fraction (i) the numerator of which shall be equal to the Current Market
Price per share of the Common Stock on the date fixed for such
determination less an amount equal to the quotient of (x) the combined
amount distributed or payable in the transactions described in clauses (I),
(II) and (III) above and (y) the number of shares of Common Stock
outstanding on such date for determination and (ii) the denominator of
which shall be equal to the Current Market Price per share of the Common
Stock on such date for determination.
(6) In case a tender or exchange offer made by the Company or any
subsidiary of the Company for all or any portion of Common Stock shall
expire and such tender or exchange offer (as amended upon the expiration
thereof) shall require the payment to shareholders (based on the acceptance
(up to any maximum specified in the terms of the tender or exchange offer)
of Purchased Shares) of (I) an aggregate consideration having a fair market
value (as determined by the Board of Directors, whose determination shall
be conclusive and described in a Board Resolution) that combined together
with the aggregate of the cash plus the fair market value (as determined by
the Board of Directors, whose determination shall be conclusive and
described in a Board Resolution), as of the expiration of such tender or
exchange offer, of consideration payable in respect of any other tender or
exchange offer, by the Company or any subsidiary of the Company for all or
any portion of Common Stock expiring within the 12 months preceding the
expiration of such tender or exchange offer and in respect of which no
adjustment pursuant to paragraph (5) of this Section 5.6(a) or this
paragraph (6) has been made, and (II) the aggregate amount of any
distributions to all holders of the Company's Common Stock made exclusively
in cash within the 12 months preceding the expiration of such tender or
exchange offer and in respect of which no adjustment pursuant to paragraph
(5) of this Section 5.6(a) or this paragraph (6) has been made, exceeds 15%
of the product of the Current Market Price per share of Common Stock as of
the last time (the "Expiration Time") tenders could have been made pursuant
to such tender or exchange offer (as it may be amended) times the number of
shares of Common Stock outstanding (including any tendered shares) on the
Expiration Time, then, and in each such case, immediately prior to the
opening of business on the day after the date of the Expiration Time, the
Settlement Rate shall be adjusted so that the same shall equal the rate
determined by dividing the Settlement Rate immediately prior to the close
of business on the date of the Expiration Time by a fraction:
(i) the numerator of which shall be equal to (A) the product of
(I) the Current Market Price per share of Common Stock on the date of the
Expiration Time and (II) the number of shares of Common Stock outstanding
(including any tendered shares) on the Expiration Time less (B) the amount
of cash plus the fair market value (determined as aforesaid) of the
aggregate consideration payable to shareholders based on the transactions
described in clauses (I) and (II) above (assuming in the case of clause (I)
the acceptance, up to any maximum specified in the terms of the tender or
exchange offer, of Purchased Shares); and
(ii) the denominator of which shall be equal to the product of (A)
the Current Market Price per share of Common Stock as of the Expiration
Time and (B) the number of shares of Common Stock outstanding (including
any tendered shares) as of the Expiration Time less the number of all
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shares validly tendered and not withdrawn as of the Expiration Time (the
shares deemed so accepted, up to any such maximum, being referred to as the
"Purchased Shares").
(7) The reclassification of Common Stock into securities including
securities other than Common Stock (other than any reclassification upon a
Reorganization Event to which Section 5.6(b) applies) shall be deemed to
involve:
(i) a distribution of such securities other than Common Stock to
all holders of Common Stock (and the effective date of such
reclassification shall be deemed to be "the date fixed for the
determination of shareholders entitled to receive such distribution" and
the "date fixed for such determination" within the meaning of paragraph (4)
of this Section); and
(ii) a subdivision, split or combination, as the case may be, of
the number of shares of Common Stock outstanding immediately prior to such
reclassification into the number of shares of Common Stock outstanding
immediately thereafter (and the effective date of such reclassification
shall be deemed to be "the day upon which such subdivision or split becomes
effective" or "the day upon which such combination becomes effective", as
the case may be, and "the day upon which such subdivision, split or
combination becomes effective" within the meaning of paragraph (3) of this
Section).
(8) The "Current Market Price" per share of Common Stock on any day
means the average of the daily Closing Prices for the five consecutive
Trading Days selected by the Company commencing not more than 30 Trading
Days before, and ending not later than, the earlier of the day in question
and the day before the "ex date" with respect to the issuance or
distribution requiring such computation. For purposes of this paragraph,
the term "ex date", when used with respect to any issuance or distribution,
shall mean the first date on which Common Stock trades regular way on such
exchange or in such market without the right to receive such issuance or
distribution.
(9) All adjustments to the Settlement Rate shall be calculated to the
nearest 1/10,000th of a share of Common Stock (or if there is not a nearest
1/10,000th of a share, to the next lower 1/10,000th of a share). No
adjustment in the Settlement Rate shall be required unless such adjustment
would require an increase or decrease of at least one percent thereof;
provided, however, that any adjustments which by reason of this
subparagraph are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. If an adjustment is made to the
Settlement Rate pursuant to paragraph (1), (2), (3), (4), (5), (6), (7) or
(10) of this Section 5.6(a), an adjustment shall also be made to the
Applicable Market Value solely to determine which of clauses (a), (b) or
(c) of the definition of Settlement Rate in Section 5.1 will apply on the
Purchase Contract Settlement Date. Such adjustment shall be made by
multiplying the Applicable Market Value by a fraction of which the
numerator shall be the Settlement Rate immediately after such adjustment
pursuant to paragraph (1), (2), (3), (4), (5), (6), (7) or (10) of this
Section 5.6(a) and the denominator shall be the Settlement Rate immediately
prior to such adjustment; provided, however, that if such adjustment to the
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Settlement Rate is required to be made pursuant to the occurrence of any of
the events contemplated by paragraph (1), (2), (3), (4), (5), (7) or (10)
of this Section 5.6(a) during the period taken into consideration for
determining the Applicable Market Value, appropriate and customary
adjustments shall be made to the Settlement Rate.
(10) The Company may make such increases in the Settlement Rate, in
addition to those required by this Section, as it considers to be advisable
in order to avoid or diminish any income tax to any holders of shares of
Common Stock resulting from any dividend or distribution of stock or
issuance of rights or warrants to purchase or subscribe for stock or from
any event treated as such for income tax purposes or for any other reason.
(b) Adjustment for Consolidation, Merger or Other Reorganization
Event.
In the event of:
(i) any consolidation or merger of the Company with or into
another Person (other than a merger or consolidation in which the Company
is the continuing corporation and in which the shares of Common Stock
outstanding immediately prior to the merger or consolidation are not
exchanged for cash, securities or other property of the Company or another
corporation);
(ii) any sale, transfer, lease or conveyance to another Person of
the property of the Company as an entirety or substantially as an entirety;
(iii) any statutory share exchange of the Company with another
Person (other than in connection with a merger or acquisition);
(iv) any liquidation, dissolution or termination of the Company
other than as a result of or after the occurrence of a Termination Event
(any such event, a "Reorganization Event"),
the Settlement Rate will be adjusted to provide that each Holder of
Securities will receive on the Purchase Contract Settlement Date with
respect to each Purchase Contract forming a part thereof, the kind and
amount of securities, cash and other property receivable upon such
Reorganization Event (without any interest thereon, and without any right
to dividends or distribution thereon which have a record date that is prior
to the Purchase Contract Settlement Date) by a Holder of the number of
shares of Common Stock issuable on account of each Purchase Contract if the
Purchase Contract Settlement Date had occurred immediately prior to such
Reorganization Event, assuming such Holder of Common Stock is not a Person
with which the Company consolidated or into which the Company merged or
which merged into the Company or to which such sale or transfer was made,
as the case may be (any such Person, a "Constituent Person"), or an
Affiliate of a Constituent Person to the extent such Reorganization Event
provides for different treatment of Common Stock held by Affiliates of the
Company and non-affiliates and such Holder failed to exercise his rights of
election, if any, as to the kind or amount of securities, cash and other
property receivable upon such Reorganization Event (provided that if the
kind or amount of securities, cash and other property receivable upon such
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Reorganization Event is not the same for each share of Common Stock held
immediately prior to such Reorganization Event by other than a Constituent
Person or an Affiliate thereof and in respect of which such rights of
election shall not have been exercised ("non-electing share"), then for the
purpose of this Section the kind and amount of securities, cash and other
property receivable upon such Reorganization Event by each non- electing
share shall be deemed to be the kind and amount so receivable per share by
a plurality of the non-electing shares).
In the event of such a Reorganization Event, the Person formed by such
consolidation, merger or exchange or the Person which acquires the assets
of the Company or, in the event of a liquidation, dissolution or
termination of the Company, the Company or a liquidating trust created in
connection therewith, shall execute and deliver to the Purchase Contract
Agent an agreement supplemental hereto providing that the Holders of each
Outstanding Security shall have the rights provided by this Section 5.6(b).
Such supplemental agreement shall provide for adjustments which, for events
subsequent to the effective date of such supplemental agreement, shall be
as nearly equivalent as may be practicable to the adjustments provided for
in this Section. The above provisions of this Section shall similarly apply
to successive Reorganization Events.
SECTION 5.7 NOTICE OF ADJUSTMENTS AND CERTAIN OTHER EVENTS.
(a) Whenever the Settlement Rate is adjusted as herein provided, the
Company shall:
(1) forthwith compute the adjusted Settlement Rate in accordance with
Section 5.6 and prepare and transmit to the Purchase Contract Agent an
Officer's Certificate setting forth the Settlement Rate, the method of
calculation thereof in reasonable detail, and the facts requiring such
adjustment and upon which such adjustment is based; and
(2) within 10 Business Days following the occurrence of an event that
requires an adjustment to the Settlement Rate pursuant to Section 5.6 (or
if the Company is not aware of such occurrence, as soon as practicable
after becoming so aware), provide a written notice to the Holders of the
Securities of the occurrence of such event and a statement in reasonable
detail setting forth the method by which the adjustment to the Settlement
Rate was determined and setting forth the adjusted Settlement Rate.
(b) The Purchase Contract Agent shall not at any time be under any
duty or responsibility to any Holder of Securities to determine whether any
facts exist which may require any adjustment of the Settlement Rate, or
with respect to the nature or extent or calculation of any such adjustment
when made, or with respect to the method employed in making the same. The
Purchase Contract Agent shall not be accountable with respect to the
validity or value (or the kind or amount) of any shares of Common Stock, or
of any securities or property, which may at the time be issued or delivered
with respect to any Purchase Contract; and the Purchase Contract Agent
makes no representation with respect thereto. The Purchase Contract Agent
shall not be responsible for any failure of the Company to issue, transfer
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or deliver any shares of Common Stock pursuant to a Purchase Contract or to
comply with any of the duties, responsibilities or covenants of the Company
contained in this Article.
SECTION 5.8 TERMINATION EVENT; NOTICE.
The Purchase Contracts and all obligations and rights of the Company
and the Holders thereunder, including, without limitation, the rights of the
Holders to receive and the obligation of the Company to pay any Purchase
Contract Payments (including any deferred or accrued and unpaid Purchase
Contract Payments), if the Company shall have such obligation, and the rights
and obligations of Holders to purchase Common Stock, shall immediately and
automatically terminate, without the necessity of any notice or action by any
Holder, the Purchase Contract Agent or the Company, if, prior to or on the
Purchase Contract Settlement Date, a Termination Event shall have occurred.
Upon and after the occurrence of a Termination Event, the Securities
shall thereafter represent the right to receive the Notes forming part of such
Securities in the case of SPC Units, or Treasury Securities in the case of
Treasury SPC Units, in accordance with the provisions of Section 5.4 of the
Pledge Agreement. Upon the occurrence of a Termination Event, the Company shall
promptly but in no event later than two Business Days thereafter give written
notice to the Purchase Contract Agent, the Collateral Agent and the Holders, at
their addresses as they appear in the Register.
SECTION 5.9 EARLY SETTLEMENT.
(a) Subject to and upon compliance with the provisions of this Section
5.9, at the option of the Holder thereof, Purchase Contracts underlying
Securities may be settled early ("Early Settlement") prior to or on the
seventh Business Day immediately preceding the Purchase Contract Settlement
Date, as provided herein. In order to exercise the right to effect Early
Settlement with respect to any Purchase Contracts, the Holder of the
Certificate evidencing Securities shall deliver such Certificates to the
Purchase Contract Agent at the Corporate Trust Office duly endorsed for
transfer to the Company or in blank with the form of Election to Settle
Early on the reverse thereof duly completed and accompanied by payment
(payable to the Company in immediately available funds) in an amount (the
"Early Settlement Amount") equal to:
(1) the product of (A) the Stated Amount times (B) the number of
Purchase Contracts with respect to which the Holder has elected to effect
Early Settlement, plus
(2) if such delivery is made with respect to any Purchase Contracts
during the period from the close of business on any Record Date next
preceding any Payment Date to the opening of business on such Payment Date,
an amount equal to the sum of (x) the Purchase Contract Payments payable on
such Payment Date with respect to such Purchase Contracts plus (y) in the
case of a SPC Units Certificate, the interest on the related Notes payable
on such Payment Date.
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Except as provided in the immediately preceding sentence and subject to the
second to last paragraph of Section 5.2, no payment shall be made upon
Early Settlement of any Purchase Contract on account of any Purchase
Contract Payments accrued on such Purchase Contract or on account of any
dividends on the Common Stock issued upon such Early Settlement. If the
foregoing requirements are first satisfied with respect to Purchase
Contracts underlying any Securities prior to or at 5:00 p.m. (New York City
time) on a Business Day, such day shall be the "Early Settlement Date" with
respect to such Securities and if such requirements are first satisfied
after 5:00 p.m. (New York City time) on a Business Day or on a day that is
not a Business Day, the "Early Settlement Date" with respect to such
Securities shall be the next succeeding Business Day.
(b) Upon Early Settlement of Purchase Contracts by a Holder of the
related Securities, the Company shall issue, and the Holder shall be
entitled to receive, shares of Common Stock on account of each Purchase
Contract as to which Early Settlement is effected (the "Early Settlement
Rate"). The Early Settlement Rate shall be adjusted in the same manner and
at the same time as the Settlement Rate is adjusted.
(c) No later than the third Business Day after the applicable Early
Settlement Date, the Company shall cause:
(1) the shares of Common Stock issuable upon Early Settlement of
Purchase Contracts to be issued and delivered, together with payment in
lieu of any fraction of a share, as provided in Section 5.10; and
(2) the related Notes, in the case of SPC Units, or the related
Treasury Securities, in the case of Treasury SPC Units, to be released from
the Pledge by the Collateral Agent and transferred, in each case, to the
Purchase Contract Agent for delivery to the Holder thereof or its designee.
(d) Upon Early Settlement of any Purchase Contracts, and subject to
receipt of shares of Common Stock from the Company and the Notes or
Treasury Securities, as the case may be, from the Securities Intermediary,
as applicable, the Purchase Contract Agent shall, in accordance with the
instructions provided by the Holder thereof on the applicable form of
Election to Settle Early on the reverse of the Certificate evidencing the
related Securities:
(1) transfer to the Holder the Notes or Treasury Securities, as the
case may be, forming a part of such Securities; and
(2) deliver to the Holder a certificate or certificates for the full
number of shares of Common Stock issuable upon such Early Settlement,
together with payment in lieu of any fraction of a share, as provided in
Section 5.10.
(e) In the event that Early Settlement is effected with respect to
Purchase Contracts underlying less than all the Securities evidenced by a
Certificate, upon such Early Settlement the Company shall execute and the
Purchase Contract Agent shall authenticate, countersign and deliver to the
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Holder thereof, at the expense of the Company, a Certificate evidencing the
Securities as to which Early Settlement was not effected.
(f) A Holder of a Security who effects Early Settlement may elect to
have the Note, no longer a part of a SPC Unit or Treasury SPC Unit. as the
case my be, remarketed. A Holder making such an election must notify the
Indenture Trustee prior to 11:00 a.m. (New York City time) on the fifth
Business Day immediately preceding the Purchase Contract Settlement Date,
of the aggregate number of Notes that are not part of SPC Units or Treasury
SPC Units, as the case may be, to be remarketed. Any such notice will be
irrevocable and may not be conditioned upon the level at which the Reset
Rate is established in the Remarketing. Concurrently, the Indenture Trustee
shall cause such Notes to be presented to the Remarketing Agent for
Remarketing.
SECTION 5.10 NO FRACTIONAL SHARES.
No fractional shares or scrip representing fractional shares of Common
Stock shall be issued or delivered upon settlement on the Purchase Contract
Settlement Date or upon Early Settlement of any Purchase Contracts. If
Certificates evidencing more than one Purchase Contract shall be surrendered for
settlement at one time by the same Holder, the number of full shares of Common
Stock which shall be delivered upon settlement shall be computed on the basis of
the aggregate number of Purchase Contracts evidenced by the Certificates so
surrendered. Instead of any fractional share of Common Stock which would
otherwise be deliverable upon settlement of any Purchase Contracts on the
Purchase Contract Settlement Date or upon Early Settlement, the Company, through
the Purchase Contract Agent, shall make a cash payment in respect of such
fractional interest in an amount equal to the value of such fractional shares
times the Applicable Market Value. The Company shall provide the Purchase
Contract Agent from time to time with sufficient funds to permit the Purchase
Contract Agent to make all cash payments required by this Section 5.10 in a
timely manner.
SECTION 5.11 CHARGES AND TAXES.
The Company will pay all stock transfer and similar taxes attributable
to the initial issuance and delivery of the shares of Common Stock pursuant to
the Purchase Contracts; provided, however, that the Company shall not be
required to pay any such tax or taxes which may be payable in respect of any
exchange of or substitution for a Certificate evidencing a Security or any
issuance of a share of Common Stock in a name other than that of the registered
Holder of a Certificate surrendered in respect of the Securities evidenced
thereby, other than in the name of the Purchase Contract Agent, as custodian for
such Holder, and the Company shall not be required to issue or deliver such
share certificates or Certificates unless or until the Person or Persons
requesting the transfer or issuance thereof shall have paid to the Company the
amount of such tax or shall have established to the satisfaction of the Company
that such tax has been paid.
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ARTICLE VI
REMEDIES
SECTION 6.1 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PURCHASE CONTRACT
PAYMENTS AND TO PURCHASE SHARES OF COMMON STOCK.
Each Holder of a SPC Unit or Treasury SPC Unit shall have the right,
which is absolute and unconditional, (1) subject to the payment by such Holder
of Purchase Contract Payments pursuant to Section 5.9(a), to receive each
Purchase Contract Payment with respect to the Purchase Contract constituting a
part of such Security on the respective Payment Date for such Security
(provided, however, that a Holder will have no right to receive any accrued
deferred Purchase Contract Payments if such Holder effects an Early Settlement
or if a Termination Event shall occur), and (2) to purchase shares of Common
Stock pursuant to such Purchase Contract and, in each such case, to institute
suit for the enforcement of any such Purchase Contract Payment and right to
purchase shares of Common Stock, and such rights shall not be impaired without
the consent of such Holder.
SECTION 6.2 RESTORATION OF RIGHTS AND REMEDIES.
If any Holder has instituted any proceeding to enforce any right or
remedy under this Agreement and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to such Holder, then
and in every such case, subject to any determination in such proceeding, the
Company and such Holder shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of such Holder
shall continue as though no such proceeding had been instituted.
SECTION 6.3 RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Certificates in the last
paragraph of Section 3.10, no right or remedy herein conferred upon or reserved
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 6.4 DELAY OR OMISSION NOT WAIVER.
No delay or omission of any Holder to exercise any right or remedy
upon a default shall impair any such right or remedy or constitute a waiver of
any such right. Every right and remedy given by this Article or by law to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by such Holders.
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SECTION 6.5 UNDERTAKING FOR COSTS.
All parties to this Agreement agree, and each Holder of a SPC Unit or
a Treasury SPC Unit, by its acceptance of such SPC Unit or Treasury SPC Unit
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 Agreement, or in
any suit against the Purchase Contract Agent for any action taken, suffered or
omitted by it as Purchase Contract Agent, 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; provided
that the provisions of this Section shall not apply to any suit instituted by
the Company, to any suit instituted by the Purchase Contract Agent, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% of the Outstanding Securities, or to any suit instituted by any Holder
for the enforcement of distributions on any Notes or Purchase Contract Payments
on any Purchase Contract on or after the respective Payment Date therefor in
respect of any Security held by such Holder, or for enforcement of the right to
purchase shares of Common Stock under the Purchase Contracts constituting part
of any Security held by such Holder.
SECTION 6.6 WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Agreement; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Purchase Contract Agent or the Holders, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
ARTICLE VII
THE PURCHASE CONTRACT AGENT
SECTION 7.1 CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Prior to a default and after the curing or waiving of all such
defaults that may have occurred, the Purchase Contract Agent:
(1) undertakes to perform, with respect to the Securities, such duties
and only such duties as are specifically set forth in this Agreement and
the Pledge Agreement, and no implied covenants or obligations shall be read
into this Agreement or the Pledge Agreement against the Purchase Contract
Agent; and
(2) in the absence of bad faith or negligence on its part, may, with
respect to the Securities, conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Purchase Contract Agent and
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conforming to the requirements of this Agreement or the Pledge Agreement,
as applicable, but in the case of any certificates or opinions which by any
provision hereof are specifically required to be furnished to the Purchase
Contract Agent, the Purchase Contract Agent shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Agreement or the Pledge Agreement, as applicable.
(b) No provision of this Agreement or the Pledge Agreement shall be
construed to relieve the Purchase Contract Agent from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Purchase Contract Agent shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it shall be
proved that the Purchase Contract Agent was negligent in ascertaining the
pertinent facts; and
(3) no provision of this Agreement or the Pledge Agreement shall
require the Purchase Contract Agent 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
adequate indemnity is not provided to it.
(c) Whether or not therein expressly so provided, every provision of
this Agreement and the Pledge Agreement relating to the conduct or
affecting the liability of or affording protection to the Purchase Contract
Agent shall be subject to the provisions of this Section.
(d) The Purchase Contract Agent is authorized to execute and deliver
the Pledge Agreement in its capacity as Purchase Contract Agent.
(e) In case a Default has occurred (that has not been cured or
waived), and is actually known by a Responsible Officer of the Purchase
Contract Agent, the Purchase Contract Agent shall exercise such of the
rights and powers vested in it by this Agreement, and use the same degree
of care and skill in its exercise thereof, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(f) At the request of the Company, the Purchase Contract Agent is
authorized to execute and deliver one or more Remarketing Agreements to,
among other things, effectuate Section 5.4
SECTION 7.2 NOTICE OF DEFAULT.
Within 90 days after the occurrence of any default by the Company
hereunder of which a Responsible Officer of the Purchase Contract Agent has
actual knowledge, the Purchase Contract Agent shall transmit by mail to the
Company and the Holders of Securities, as their names and addresses appear in
the Register, notice of such default hereunder, unless such default shall have
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been cured or waived; provided that, except for a default in any payment
-------------
obligation hereunder, the Purchase Contract Agent shall be protected in
withholding such notice if and so long as the Responsible Officer of the
Purchase Contract Agent in good faith determines that the withholding of such
notice is in the interests of the Holders of the Securities.
SECTION 7.3 CERTAIN RIGHTS OF PURCHASE CONTRACT AGENT.
Subject to the provisions of Section 7.1:
(1) the Purchase Contract Agent 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;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by an Officer's Certificate, Issuer Order or Issuer
Request, and any resolution of the Board of Directors of the Company may be
sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Agreement the Purchase
Contract Agent shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action hereunder,
the Purchase Contract Agent (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;
(4) the Purchase Contract Agent 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;
(5) the Purchase Contract Agent 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 Purchase Contract Agent,
in its discretion, may make reasonable further inquiry or investigation
into such facts or matters related to the execution, delivery and
performance of the Purchase Contracts as it may see fit, and, if the
Purchase Contract Agent shall determine to make such further inquiry or
investigation, it shall be given a reasonable opportunity to examine the
books, records and premises of the Company, personally or by agent or
attorney; and
(6) the Purchase Contract Agent may execute any of the powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or an Affiliate and the Purchase Contract Agent shall
not be responsible for any misconduct or negligence on the part of any
agent or attorney or an Affiliate appointed with due care by it hereunder.
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SECTION 7.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Certificates shall be taken
as the statements of the Company, and the Purchase Contract Agent assumes no
responsibility for their accuracy. The Purchase Contract Agent makes no
representations as to the validity or sufficiency of either this Agreement or of
the Securities, or of the Pledge Agreement or the Pledge. The Purchase Contract
Agent shall not be accountable for the use or application by the Company of the
proceeds in respect of the Purchase Contracts.
SECTION 7.5 MAY HOLD SECURITIES.
Any Registrar or any other agent of the Company, or the Purchase
Contract Agent and its Affiliates, in their individual or any other capacity,
may become the owner or pledgee of Securities and may otherwise deal with the
Company, the Collateral Agent or any other Person with the same rights it would
have if it were not Registrar or such other agent, or the Purchase Contract
Agent.
SECTION 7.6 MONEY HELD IN CUSTODY.
Money held by the Purchase Contract Agent in custody hereunder need
not be segregated from the other funds except to the extent required by law or
provided herein. The Purchase Contract Agent shall be under no obligation to
invest or pay interest on any money received by it hereunder except as otherwise
agreed in writing with the Company.
SECTION 7.7 COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Purchase Contract Agent compensation for all
services rendered by it hereunder and under the Pledge Agreement as the
Company and the Purchase Contract Agent shall from time to time agree in
writing;
(2) except as otherwise expressly provided for herein, to reimburse
the Purchase Contract Agent upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Purchase Contract Agent
in accordance with any provision of this Agreement and the Pledge Agreement
(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 or bad faith; and
(3) to indemnify the Purchase Contract Agent and any predecessor
Purchase Contract Agent for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of
its duties hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
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SECTION 7.8 CORPORATE PURCHASE CONTRACT AGENT REQUIRED; ELIGIBILITY.
There shall at all times be an Purchase Contract Agent hereunder which
shall be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to exercise corporate trust powers, having (or being a member of
a bank holding company having) a combined capital and surplus of at least
$50,000,000, subject to supervision or examination by Federal or State authority
and having a corporate trust office in New York, New York, if there be such a
corporation in New York, New York, qualified and eligible under this Article and
willing to act on reasonable terms. If such corporation 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 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 Purchase Contract Agent shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 7.9 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Purchase Contract Agent and no
appointment of a successor Purchase Contract Agent pursuant to this Article
shall become effective until the acceptance of appointment by the successor
Purchase Contract Agent in accordance with the applicable requirements of
Section 7.10.
(b) The Purchase Contract Agent may resign at any time by giving
written notice thereof to the Company 60 days prior to the effective date
of such resignation. If the instrument of acceptance by a successor
Purchase Contract Agent required by Section 7.10 shall not have been
delivered to the Purchase Contract Agent within 30 days after the giving of
such notice of resignation, the resigning Purchase Contract Agent may
petition any court of competent jurisdiction for the appointment of a
successor Purchase Contract Agent.
(c) The Purchase Contract Agent may be removed at any time by Act of
the Holders of a majority in number of the Outstanding Securities delivered
to the Purchase Contract Agent and the Company.
(d) If at any time:
(1) the Purchase Contract Agent fails to comply with Section 310(b) of
the TIA, as if the Purchase Contract Agent were an indenture trustee under
an indenture qualified under the TIA, after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Security for
at least six months;
(2) the Purchase Contract Agent shall cease to be eligible under
Section 7.8 and shall fail to resign after written request therefor by the
Company or by any such Holder; or
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(3) the Purchase Contract Agent shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the Purchase
Contract Agent or of its property shall be appointed or any public officer
shall take charge or control of the Purchase Contract Agent or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove
the Purchase Contract Agent, or (ii) any Holder who has been a bona fide
Holder of a Security 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 Purchase Contract Agent and the appointment of a
successor Purchase Contract Agent.
(e) If the Purchase Contract Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Purchase
Contract Agent for any cause, the Company, by a Board Resolution, shall
promptly appoint a successor Purchase Contract Agent and shall comply with
the applicable requirements of Section 7.10. If no successor Purchase
Contract Agent shall have been so appointed by the Company and accepted
appointment in the manner required by Section 7.10, any Holder who has been
a bona fide Holder of a Security 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 Purchase Contract Agent.
(f) The Company shall give, or shall cause such successor Purchase
Contract Agent to give, notice of each resignation and each removal of the
Purchase Contract Agent and each appointment of a successor Purchase
Contract Agent by mailing written notice of such event by first-class mail,
postage prepaid, to all Holders as their names and addresses appear in the
applicable Register. Each notice shall include the name of the successor
Purchase Contract Agent and the address of its Corporate Trust Office.
(g) If the Purchase Contract Agent has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Purchase Contract Agent and the Company shall in all
respects comply with the provisions of Section 310(b) of the Trust
Indenture Act.
SECTION 7.10 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Purchase
Contract Agent, every such successor Purchase Contract Agent so appointed
shall execute, acknowledge and deliver to the Company and to the retiring
Purchase Contract Agent an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Purchase Contract
Agent shall become effective and such successor Purchase Contract Agent,
without any further act, deed or conveyance, shall become vested with all
the rights, powers, agencies and duties of the retiring Purchase Contract
Agent; but, on the request of the Company or the successor Purchase
Contract Agent, such retiring Purchase Contract Agent shall, upon payment
of its charges, execute and deliver an instrument transferring to such
successor Purchase Contract Agent all the rights, powers and trusts of the
retiring Purchase Contract Agent and shall duly assign, transfer and
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deliver to such successor Purchase Contract Agent all property and money
held by such retiring Purchase Contract Agent hereunder.
(b) Upon request of any such successor Purchase Contract Agent, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Purchase Contract Agent all
such rights, powers and agencies referred to in paragraph (a) of this
Section.
(c) No successor Purchase Contract Agent shall accept its appointment
unless at the time of such acceptance such successor Purchase Contract
Agent shall be qualified and eligible under this Article.
SECTION 7.11 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any Person into which the Purchase Contract Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which the Purchase Contract Agent shall
be a party, or any Person succeeding to all or substantially all the corporate
trust business of the Purchase Contract Agent, shall be the successor of the
Purchase Contract Agent hereunder, provided such Person shall be otherwise
qualified and eligible under this Article, with the execution or filing of any
paper or any further act on the part of any of the parties hereto. In case any
Certificates shall have been authenticated and executed on behalf of the
Holders, but not delivered, by the Purchase Contract Agent then in office, any
successor by merger, conversion or consolidation to such Purchase Contract Agent
may adopt such authentication and execution and deliver the Certificates so
authenticated and executed with the same effect as if such successor Purchase
Contract Agent had itself authenticated and executed such Securities.
SECTION 7.12 PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Purchase Contract Agent shall preserve, in as current a form
as is reasonably practicable, the names and addresses of Holders received
by the Purchase Contract Agent in its capacity as Registrar.
(b) If three or more Holders (herein referred to as "applicants")
apply in writing to the Purchase Contract Agent, and furnish to the
Purchase Contract Agent reasonable proof that each such applicant has owned
a Security for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other Holders with respect to their rights under this
Agreement or under the Securities and is accompanied by a copy of the form
of proxy or other communication which such applicants propose to transmit,
then the Purchase Contract Agent shall mail to all the Holders copies of
the form of proxy or other communication which is specified in such
request, with reasonable promptness after a tender to the Purchase Contract
Agent of the materials to be mailed and of payment, or provision for the
payment, of the reasonable expenses of such mailing.
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SECTION 7.13 NO OBLIGATIONS OF PURCHASE CONTRACT AGENT.
Except to the extent otherwise provided in this Agreement, the
Purchase Contract Agent assumes no obligations and shall not be subject to any
liability under this Agreement, the Pledge Agreement or any Purchase Contract in
respect of the obligations of the Holder of any Security thereunder. The Company
agrees, and each Holder of a Certificate, by his acceptance thereof, shall be
deemed to have agreed, that the Purchase Contract Agent's execution of the
Certificates on behalf of the Holders shall be solely as agent and
attorney-in-fact for the Holders, and that the Purchase Contract Agent shall
have no obligation to perform such Purchase Contracts on behalf of the Holders,
except to the extent expressly provided in Article Five hereof. Anything
contained in this Agreement to the contrary notwithstanding, in no event shall
the Purchase Contract Agent or its officers, employees or agents be liable under
this Agreement to any third party for indirect, special, punitive, or
consequential loss or damage of any kind whatsoever, including lost profits,
whether or not the likelihood of such loss or damage was known to the Purchase
Contract Agent, incurred without any act or deed that is found to be
attributable to gross negligence or willful misconduct on the part of the
Purchase Contract Agent.
SECTION 7.14 TAX COMPLIANCE.
(a) The Company will comply with all applicable certification,
information reporting and withholding (including "backup" withholding)
requirements imposed by applicable tax laws, regulations or administrative
practice with respect to (i) any payments made with respect to the
Securities or (ii) the issuance, delivery, holding, transfer, redemption or
exercise of rights under the Securities. Such compliance shall include,
without limitation, the preparation and timely filing of required returns
and the timely payment of all amounts required to be withheld to the
appropriate taxing authority or its designated agent.
(b) The Purchase Contract Agent shall comply in accordance with the
terms hereof with any written direction received from the Company with
respect to the execution or certification of any required documentation and
the application of such requirements to particular payments or Holders or
in other particular circumstances, and may for purposes of this Agreement
rely on any such direction in accordance with the provisions of Section
7.1(a)(2) hereof.
(c) The Purchase Contract Agent shall maintain all appropriate records
documenting compliance with such requirements, and shall make such records
available, on written request, to the Company or its authorized
representative within a reasonable period of time after receipt of such
request.
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ARTICLE VIII
SUPPLEMENTAL AGREEMENTS
SECTION 8.1 SUPPLEMENTAL AGREEMENTS WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company and the Purchase
Contract Agent, at any time and from time to time, may enter into one or more
agreements supplemental hereto, in form satisfactory to the Company and the
Purchase Contract Agent, to:
(1) evidence the succession of another Person to the Company, and the
assumption by any such successor of the covenants of the Company herein and
in the Certificates;
(2) evidence and provide for the acceptance of appointment hereunder
by a successor Purchase Contract Agent;
(3) add to the covenants of the Company for the benefit of the
Holders, or surrender any right or power herein conferred upon the Company;
(4) make provision with respect to the rights of Holders pursuant to
the requirements of Section 5.6(b); or
(5) except as provided for in Section 5.6, cure any ambiguity, correct
or supplement any provisions herein which may be inconsistent with any
other provisions herein, or make any other provisions with respect to such
matters or questions arising under this Agreement, provided such action
shall not adversely affect the interests of the Holders.
SECTION 8.2 SUPPLEMENTAL AGREEMENTS WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority of the
outstanding Purchase Contracts voting together as one class, by Act of said
Holders delivered to the Company and the Purchase Contract Agent, the Company,
when authorized by a Board Resolution, and the Purchase Contract Agent may enter
into an agreement or agreements supplemental hereto for the purpose of modifying
in any manner the terms of the Purchase Contracts, or the provisions of this
Agreement or the rights of the Holders in respect of the Securities; provided,
however, that, except as contemplated herein, no such supplemental agreement
shall, without the unanimous consent of the Holders of each Outstanding Purchase
Contract affected thereby,
(1) change any Payment Date;
(2) change the amount or the type of Collateral required to be Pledged
to secure a Holder's obligations under the Purchase Contract, impair the
right of the Holder of any Purchase Contract to receive distributions on
the related Collateral or otherwise adversely affect the Holder's rights in
or to such Collateral or adversely alter the rights in or to such
Collateral;
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(3) reduce any Purchase Contract Payments or change any place where,
or the coin or currency in which, any Purchase Contract Payment is payable;
(4) impair the right to institute suit for the enforcement of any
Purchase Contract;
(5) reduce the number of shares of Common Stock to be purchased
pursuant to any Purchase Contract, increase the price to purchase shares of
Common Stock upon settlement of any Purchase Contract, change the Purchase
Contract Settlement Date or otherwise adversely affect the Holder's rights
under any Purchase Contract; or
(6) reduce the percentage of the outstanding Purchase Contracts the
consent of whose Holders is required for any such supplemental agreement;
provided that if any amendment or proposal referred to above would
adversely affect only the SPC Units or the Treasury SPC Units, then only
the affected class of Holders as of the record date for the Holders
entitled to vote thereon will be entitled to vote on such amendment or
proposal, and such amendment or proposal shall not be effective except with
the consent of Holders of not less than a majority of such class; and
provided, further, that the unanimous consent of the Holders of each
outstanding Purchase Contract of such class affected thereby shall be
required to approve any amendment or proposal specified in clauses (1)
through (6) above.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental agreement, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 8.3 EXECUTION OF SUPPLEMENTAL AGREEMENTS.
In executing, or accepting the additional agencies created by, any
supplemental agreement permitted by this Article or the modifications thereby of
the agencies created by this Agreement, the Purchase Contract Agent shall be
entitled to receive, and (subject to Section 7.1) shall be fully protected in
relying upon, an Officer's Certificate and an Opinion of Counsel stating that
the execution of such supplemental agreement is authorized or permitted by this
Agreement. The Purchase Contract Agent may, but shall not be obligated to, enter
into any such supplemental agreement which affects the Purchase Contract Agent's
own rights, duties or immunities under this Agreement or otherwise.
SECTION 8.4 EFFECT OF SUPPLEMENTAL AGREEMENTS.
Upon the execution of any supplemental agreement under this Article,
this Agreement shall be modified in accordance therewith, and such supplemental
agreement shall form a part of this Agreement for all purposes; and every Holder
of Certificates theretofore or thereafter authenticated, executed on behalf of
the Holders and delivered hereunder, shall be bound thereby.
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SECTION 8.5 REFERENCE TO SUPPLEMENTAL AGREEMENTS.
Certificates authenticated, executed on behalf of the Holders and
delivered after the execution of any supplemental agreement pursuant to this
Article may, and shall if required by the Purchase Contract Agent, bear a
notation in form approved by the Purchase Contract Agent as to any matter
provided for in such supplemental agreement. If the Company shall so determine,
new Certificates so modified as to conform, in the opinion of the Purchase
Contract Agent and the Company, to any such supplemental agreement may be
prepared and executed by the Company and authenticated, executed on behalf of
the Holders and delivered by the Purchase Contract Agent in exchange for
Outstanding Certificates.
ARTICLE IX
MERGER, CONSOLIDATION, SALE OR CONVEYANCE
SECTION 9.1 COVENANT NOT TO MERGE, CONSOLIDATE, SELL OR CONVEY PROPERTY
EXCEPT UNDER CERTAIN CONDITIONS.
The Company covenants that it will not merge, consolidate or sell,
assign, transfer, lease or convey all or substantially all of its properties and
assets to any Person or group of affiliated Persons in one transaction or a
series of related transactions, unless:
(1) either the Company shall be the continuing corporation, or the
successor (if other than the Company) shall be a corporation organized and
existing under the laws of the United States of America or a State thereof
or the District of Columbia and such corporation shall expressly assume all
the obligations of the Company under the Purchase Contracts, the Notes,
this Agreement and the Pledge Agreement by one or more supplemental
agreements in form reasonably satisfactory to the Purchase Contract Agent
and the Collateral Agent, executed and delivered to the Purchase Contract
Agent and the Collateral Agent by such corporation; and
(2) the Company or such successor corporation, as the case may be,
shall not, immediately after such merger, consolidation, or sale,
assignment, transfer, lease or conveyance, be in default in the performance
of any covenant or condition hereunder, under any of the Securities or
under the Pledge Agreement.
SECTION 9.2 RIGHTS AND DUTIES OF SUCCESSOR CORPORATION.
In case of any such merger, consolidation, sale, assignment, transfer,
lease or conveyance and upon any such assumption by a successor corporation in
accordance with Section 9.1, such successor corporation shall succeed to and be
substituted for the Company with the same effect as if it had been named herein
as the Company. Such successor corporation thereupon may cause to be signed, and
may issue either in its own name or in the name of PP&L Resources, Inc., any or
all of the Certificates evidencing Securities issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Purchase Contract Agent; and, upon the order of such successor corporation,
instead of the Company, and subject to all the terms, conditions and limitations
in this Agreement prescribed, the Purchase Contract Agent shall authenticate and
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execute on behalf of the Holders and deliver any Certificates which previously
shall have been signed and delivered by the officers of the Company to the
Purchase Contract Agent for authentication and execution, and any Certificate
evidencing Securities which such successor corporation thereafter shall cause to
be signed and delivered to the Purchase Contract Agent for that purpose. All the
Certificates issued shall in all respects have the same legal rank and benefit
under this Agreement as the Certificates theretofore or thereafter issued in
accordance with the terms of this Agreement as though all of such Certificates
had been issued at the date of the execution hereof.
In case of any such merger, consolidation, sale, assignment, transfer,
lease or conveyance such change in phraseology and form (but not in substance)
may be made in the Certificates evidencing Securities thereafter to be issued as
may be appropriate.
SECTION 9.3 OFFICER'S CERTIFICATE AND OPINION OF COUNSEL GIVEN TO PURCHASE
CONTRACT AGENT.
The Purchase Contract Agent, subject to Sections 7.1 and 7.3, shall
receive an Officer's Certificate and an Opinion of Counsel as conclusive
evidence that any such merger, consolidation, sale, assignment, transfer, lease
or conveyance, and any such assumption, complies with the provisions of this
Article and that all conditions precedent to the consummation of any such
merger, consolidation, sale, assignment, transfer, lease or conveyance have been
met.
ARTICLE X
COVENANTS
SECTION 10.1 PERFORMANCE UNDER PURCHASE CONTRACTS.
The Company covenants and agrees for the benefit of the Holders from
time to time of the Securities that it will duly and punctually perform its
obligations under the Purchase Contracts in accordance with the terms of the
Purchase Contracts and this Agreement.
SECTION 10.2 MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in New York, New York, an office or agency
where Certificates may be presented or surrendered for acquisition of shares of
Common Stock upon settlement of the Purchase Contracts on the Purchase Contract
Settlement Date or Early Settlement and for transfer of Collateral upon
occurrence of a Termination Event, where Certificates may be surrendered for
registration of transfer or exchange, for a Collateral Substitution or
reestablishment of SPC Units and where notices and demands to or upon the
Company in respect of the Securities and this Agreement may be served. The
Company will give prompt written notice to the Purchase Contract Agent of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Purchase Contract Agent with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
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Corporate Trust Office, and the Company hereby appoints the Purchase Contract
Agent as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies where Certificates may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York for such purposes. The Company will
give prompt written notice to the Purchase Contract Agent of any such
designation or rescission and of any change in the location of any such other
office or agency. The Company hereby designates as the place of payment for the
Securities the Corporate Trust Office and appoints the Purchase Contract Agent
at its Corporate Trust Office as paying agent in such city.
SECTION 10.3 COMPANY TO RESERVE COMMON STOCK.
The Company shall at all times prior to the Purchase Contract
Settlement Date reserve and keep available, free from preemptive rights, out of
its authorized but unissued Common Stock the full number of shares of Common
Stock issuable against tender of payment in respect of all Purchase Contracts
constituting a part of the Securities evidenced by Outstanding Certificates.
SECTION 10.4 COVENANTS AS TO COMMON STOCK.
The Company covenants that all shares of Common Stock which may be
issued against tender of payment in respect of any Purchase Contract
constituting a part of the Outstanding Securities will, upon issuance, be duly
authorized, validly issued, fully paid and nonassessable.
SECTION 10.5 ERISA.
Each Holder from time to time of the SPC Units which is a Plan hereby
represents that its acquisition of the SPC Units and the holding of the same
satisfies the applicable fiduciary requirements of ERISA and that it is entitled
to exemption relief from the prohibited transaction provisions of ERISA and the
Code in accordance with one or more prohibited transaction exemptions or
otherwise will not result in a nonexempt prohibited transaction.
ARTICLE XI
TRUST INDENTURE ACT
SECTION 11.1 TRUST INDENTURE ACT; APPLICATION.
(a) This Agreement is subject to the provisions of the TIA that are
required or deemed to be part of this Agreement and shall, to the extent
applicable, be governed by such provisions; and
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(b) If and to the extent that any provision of this Agreement limits,
qualifies or conflicts with the duties imposed by Section 310 to 317,
inclusive, of the TIA, such imposed duties shall control.
SECTION 11.2 LISTS OF HOLDERS OF SECURITIES.
(a) The Company shall furnish or cause to be furnished to the Purchase
Contract Agent (a) semiannually, not later than June 1 and December 1 in
each year, commencing December 1, [1999], a list, in such form as the
Purchase Contract Agent may reasonably require, of the names and addresses
of the Holders ("List of Holders") as of a date not more than 15 days prior
to the delivery thereof, and (b) at such other times as the Purchase
Contract Agent may request in writing, within 30 days after the receipt by
the Company of any such request, a List of Holders as of a date not more
than 15 days prior to the time such list is furnished; provided that, the
Company shall not be obligated to provide such List of Holders at any time
the List of Holders does not differ from the most recent List of Holders
given to the Purchase Contract Agent by the Company. The Purchase Contract
Agent may destroy any List of Holders previously given to it on receipt of
a new List of Holders
(b) The Purchase Contract Agent shall comply with its obligations
under Section 311(a) of the TIA, subject to the provisions of Section
311(b) and Section 312(b) of the TIA.
SECTION 11.3 REPORTS BY THE PURCHASE CONTRACT AGENT.
Not later than November 1 of each year, commencing November 1, [1999],
the Purchase Contract Agent shall provide to the Holders such reports, if any,
as are required by Section 313(a) of the TIA in the form and in the manner
provided by Section 313(a) of the TIA. Such reports shall be as of the preceding
September 15. The Purchase Contract Agent shall also comply with the
requirements of Sections 313(b), (c) and (d) of the TIA.
SECTION 11.4 PERIODIC REPORTS TO PURCHASE CONTRACT AGENT.
The Company shall provide to the Purchase Contract Agent such
documents, reports and information as required by Section 314 (if any) and the
compliance certificate required by Section 314 of the TIA in the form, in the
manner and at the times required by Section 314 of the TIA.
SECTION 11.5 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
The Company shall provide to the Purchase Contract Agent such evidence
of compliance with any conditions precedent provided for in this Agreement as
and to the extent required by Section 314(c) of the TIA. Any certificate or
opinion required to be given by an officer pursuant to Section 314(c)(1) of the
TIA may be given in the form of an Officer's Certificate. Any opinion required
to be given pursuant to Section 314(c)(2) of the TIA may be given in the form of
an Opinion of Counsel.
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SECTION 11.6 DEFAULTS; WAIVER.
The Holders of a majority of the Outstanding Purchase Contracts voting
together as one class may, by vote, on behalf of all of the Holders, waive any
past Default and its consequences, except a default
(a) in the payment on any Security, or
(b) in respect of a provision hereof which under Section 8.2 cannot be
modified or amended without the consent of the Holder of each Outstanding
Security affected.
Upon such waiver, any such Default shall cease to exist, and any
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Agreement, but no such waiver shall extend to any subsequent or other
Default or impair any right consequent thereon.
SECTION 11.7 PURCHASE CONTRACT AGENT'S KNOWLEDGE OF DEFAULTS.
The Purchase Contract Agent shall not be deemed to have knowledge of
any Default unless a Responsible Officer charged with the administration of this
Agreement shall have obtained written notice of such Default.
SECTION 11.8 CONFLICTING INTERESTS.
The Indenture, the Indenture dated as of November 1, 1997 among PP&L
Capital Funding, Inc. as issuer, the Company as guarantor and the Chase
Manhattan Bank, as trustee, as supplemented and amended, [others] shall be
deemed to be specifically described in this Agreement for the purposes of clause
(i) of the first proviso contained in Section 310(b) of the TIA.
SECTION 11.9 DIRECTION OF PURCHASE CONTRACT AGENT.
Section 316(a)(1)(A) of the TIA is hereby expressly excluded from this
Agreement, as permitted by the TIA.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
PP&L RESOURCES, INC.
By:
-----------------------------------
Name:
Title:
--------------------------------------
as Purchase Contract Agent and Trustee
By:
-----------------------------------
Name:
Title:
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EXHIBIT A
FORM OF SPC UNITS CERTIFICATE
THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
PURCHASE CONTRACT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"),
OR A NOMINEE OF THE DEPOSITARY. THIS CERTIFICATE IS EXCHANGEABLE FOR
CERTIFICATES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT
AGREEMENT AND NO TRANSFER OF THIS CERTIFICATE (OTHER THAN A TRANSFER OF THIS
CERTIFICATE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITARY FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), 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.
No. _______ Cusip No. ________
Number of SPC Units ________
PP&L RESOURCES, INC.
SPC UNITS
This SPC Units Certificate certifies that _______________ is the
registered Holder of the number of SPC Units set forth above. Each SPC Unit
consists of (i) the beneficial ownership by the Holder of one Note (the "Note")
of PP&L Capital Funding, Inc., a Delaware corporation guaranteed by PP&L
Resources, Inc., a Pennsylvania corporation (the "Company"), having a principal
amount of $50, subject to the Pledge of such Note by such Holder pursuant to
the Pledge Agreement, and (ii) the rights and obligations of the Holder and
the Company under one Purchase Contract with the Company. All capitalized terms
used herein which are defined in the Purchase Contract Agreement (as defined
below) have the meaning set forth therein.
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Pursuant to the Pledge Agreement, the Note constituting part of each
SPC Unit evidenced hereby has been pledged to the Collateral Agent, for the
benefit of the Company, to secure the obligations of the Holder under the
Purchase Contract comprising part of such SPC Unit.
Payments of interest on any Note forming part of a SPC Unit evidenced
hereby, shall, subject to receipt thereof by the Purchase Contract Agent from
the Securities Intermediary, be paid to the Person in whose name this SPC Units
Certificate (or a Predecessor SPC Units Certificate) is registered at the close
of business on the Record Date for such Payment Date. Interest is payable
quarterly in arrears on February 16, May 16, August 16 and November 16 of each
year, commencing ________________ (each, a "Payment Date"). The Company may, at
its option, defer payments of interest.
Each Purchase Contract evidenced hereby obligates the Holder of this
SPC Units Certificate to purchase, and the Company to sell, on the Purchase
Contract Settlement Date, at a price equal to $50 (the "Stated Amount"), a
number of shares of PP&L Resources, Inc. Common Stock, par value $.01 per share
("Common Stock"), equal to the Settlement Rate, unless prior to or on the
Purchase Contract Settlement Date there shall have occurred a Termination Event
or an Early Settlement with respect to the SPC Unit of which such Purchase
Contract is a part, all as provided in the Purchase Contract Agreement and more
fully described on the reverse hereof. The purchase price (the "Purchase Price")
for the shares of Common Stock purchased pursuant to each Purchase Contract
evidenced hereby, if not paid earlier, shall be paid on the Purchase Contract
Settlement Date by cash or by application of payment received in respect of the
principal amount with respect to each Pledged Note pursuant to the Remarketing
pledged to secure the obligations under such Purchase Contract of the Holder of
the SPC Unit of which such Purchase Contract is a part.
The Company shall pay, on each Payment Date, in respect of each
Purchase Contract forming part of a SPC Unit evidenced hereby, an amount (the
"Purchase Contract Payments") equal to ____% per annum of the Stated Amount.
Such Purchase Contract Payments shall be payable to the Person in whose name
this SPC Units Certificate (or a Predecessor SPC Units Certificate) is
registered at the close of business on the Record Date for such Payment Date.
The Company may, at its option, defer Purchase Contract Payments.
Interest payments on the Notes and Purchase Contract Payments will be
payable at the office of the Purchase Contract Agent in New York City or, at the
option of the Company, by check mailed to the address of the Person entitled
thereto as such address appears on the SPC Units Register.
Each Purchase Contract evidenced hereby is governed by a Purchase
Contract Agreement, dated as of _________ (as may be supplemented from time to
time, the "Purchase Contract Agreement"), between the Company and _________, as
Purchase Contract Agent (including its successors hereunder, the "Purchase
Contract Agent"), to which Purchase Contract Agreement and supplemental
agreements thereto reference is hereby made for a description of the respective
rights, limitations of rights, obligations, duties and immunities thereunder of
the Purchase Contract Agent, the Company, and the Holders and of the terms upon
which the SPC Units Certificates are, and are to be, executed and delivered.
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Each Purchase Contract evidenced hereby obligates the Holder of this
SPC Units Certificate to purchase, and the Company to sell, on the Purchase
Contract Settlement Date at a price equal to the Stated Amount (the "Purchase
Price"), a number of shares of Common Stock equal to the Settlement Rate,
unless, prior to or on the Purchase Contract Settlement Date, there shall have
occurred a Termination Event with respect to the Security of which such Purchase
Contract is a part or an Early Settlement shall have occurred. The "Settlement
Rate" is equal to:
(1) if the Applicable Market Value (as defined below) is equals or
exceeds $. (the "Threshold Appreciation Price"), ____ shares of Common
Stock per Purchase Contract;
(2) if the Applicable Market Value is less than the Threshold
Appreciation Price but greater than $_____ (the "Reference Price"),
the number of shares of Common Stock per Purchase Contract having a
value, based on the Applicable Market Value, equal to the Stated
Amount; and
(3) if the Applicable Market Amount is less than or equal to the
Reference Price, _____ shares of Common Stock per Purchase Contract,
in each case subject to adjustment as provided in the Purchase Contract
Agreement.
No fractional shares of Common Stock will be issued upon settlement of
Purchase Contracts, as provided in Section 5.10 of the Purchase Contract
Agreement.
Each Purchase Contract evidenced hereby, which is settled either
through Early Settlement or Cash Settlement, shall obligate the Holder of the
related SPC Unit to purchase at the Purchase Price, and the Company to sell, a
number of shares of Common Stock equal to the Early Settlement Rate or the
Settlement Rate, as applicable.
The "Applicable Market Value" means the average of the Closing Price
per share of Common Stock on each of the 20 consecutive Trading Days ending on
the third Trading Day immediately preceding the Purchase Contract Settlement
Date.
The "Closing Price" per share of Common Stock on any date of
determination means:
(1) the closing sale price (or, if no closing price is reported, the
last reported sale price) per share on the New York Stock Exchange, Inc.
(the "NYSE") on such date;
(2) if Common Stock is not listed for trading on the NYSE on any such
date, the closing sale price per share as reported in the composite
transactions for the principal United States securities exchange on which
Common Stock is so listed;
(3) if Common Stock is not so listed on a United States national or
regional securities exchange, the closing sale price per share as reported
by The Nasdaq Stock Market, Inc.;
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(4) if Common Stock is not so reported, the last quoted bid price for
Common Stock in the over-the-counter market as reported by the National
Quotation Bureau or similar organization; or
(5) if such bid price is not available, the average of the mid-point
of the last bid and ask prices of Common Stock on such date from at least
three nationally recognized independent investment banking firms retained
for this purpose by the Company.
A "Trading Day" means a day on which Common Stock (1) is not suspended
from trading on any national or regional securities exchange or association or
over-the-counter market at the close of business and (2) has traded at least
once on the national or regional securities exchange or association or
over-the-counter market that is the primary market for the trading of Common
Stock.
In accordance with the terms of the Purchase Contract Agreement, the
Holder of this SPC Units Certificate may pay the Purchase Price for the shares
of Common Stock purchased pursuant to each Purchase Contract evidenced hereby by
effecting a Cash Settlement or an Early Settlement or a Remarketing of the
related Pledged Notes. A Holder of SPC Units who does not effect, on or prior to
11:00 a.m. (New York City time) on the fifth Business Day immediately preceding
the Purchase Contract Settlement Date, an effective Cash Settlement or an Early
Settlement, shall pay the Purchase Price for the shares of Common Stock to be
delivered under the related Purchase Contract from the proceeds of the sale of
the related Pledged Notes held by the Collateral Agent. Such sale will be made
by the Remarketing Agent pursuant to the terms of the Remarketing Agreement on
the third Business Day prior to the Purchase Contract Settlement Date. If, as
provided in the Purchase Contract Agreement, upon the occurrence of a Failed
Remarketing, the Collateral Agent, for the benefit of the Company, exercises its
rights as a secured creditor with respect to the Pledged Notes related to this
SPC Units certificate, any accrued and unpaid or deferred interest payments on
such Pledged Notes will become payable by the Company to the holder of this SPC
Units Certificate in the manner provided for in the Purchase Contract Agreement.
The Company shall not be obligated to issue any shares of Common Stock
in respect of a Purchase Contract or deliver any certificates therefor to the
Holder unless it shall have received payment of the aggregate purchase price for
the shares of Common Stock to be purchased thereunder in the manner herein set
forth.
Under the terms of the Pledge Agreement, the Purchase Contract Agent
will be entitled to exercise the voting and any other consensual rights
pertaining to the Pledged Notes. Upon receipt of notice of any meeting at which
holders of Notes are entitled to vote or upon the solicitation of consents,
waivers or proxies of holders of Notes, the Purchase Contract Agent shall, as
soon as practicable thereafter, mail to the SPC Units Holders a notice:
(1) containing such information as is contained in the notice or
solicitation;
(2) stating that each SPC Unit Holder on the record date set by the
Purchase Contract Agent therefor (which, to the extent possible, shall be
the same date as the record date for determining the holders of Notes
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entitled to vote) shall be entitled to instruct the Purchase Contract Agent
as to the exercise of the voting rights pertaining to the Notes
constituting a part of such Holder's SPC Unit; and
(3) stating the manner in which such instructions may be given.
Upon the written request of the SPC Unit Holders on such record date, the
Purchase Contract Agent shall endeavor insofar as practicable to vote or cause
to be voted, in accordance with the instructions set forth in such requests, the
maximum number of Notes as to which any particular voting instructions are
received. In the absence of specific instructions from the Holder of a SPC Unit,
the Purchase Contract Agent shall abstain from voting the Notes evidenced by
such SPC Unit.
The SPC Certificates are issuable only in registered form and only in
denominations of a single SPC Unit and any integral multiple thereof. The
transfer of any SPC Units Certificate will be registered and SPC Units
Certificates may be exchanged as provided in the Purchase Contract Agreement.
The SPC Units Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents permitted by the Purchase
Contract Agreement. No service charge shall be required for any such
registration of transfer or exchange, but the Company and the Purchase Contract
Agent may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. A holder who elects to
substitute a Treasury Security for Notes, thereby creating Treasury SPC Units,
shall be responsible for any fees or expenses payable in connection therewith.
Except as provided in the Purchase Contract Agreement, for so long as the
Purchase Contract underlying a SPC Unit remains in effect, such SPC Unit shall
not be separable into its constituent parts, and the rights and obligations of
the Holder of such SPC Unit in respect of the Note and Purchase Contract
constituting such SPC Unit may be transferred and exchanged only as a SPC Unit.
The Holder of SPC Units may substitute for the Pledged Notes securing
such Holder's obligations under the related Purchase Contracts Treasury
Securities in an aggregate principal amount equal to the aggregate principal
amount of the Pledged Notes in accordance with the terms of the Purchase
Contract Agreement and the Pledge Agreement. From and after such Collateral
Substitution, each Security for which such Pledged Treasury Securities secures
the Holder's obligation under the Purchase Contract shall be referred to as a
"Treasury SPC Unit". A Holder may make such Collateral Substitution only in
integral multiples of 20 SPC Units for 20 Treasury SPC Units. Such Collateral
Substitution may cause the equivalent aggregate principal amount of this
Certificate to be increased or decreased; provided, however, this SPC Units
Certificate shall not represent more than [4,000,000] SPC Units. All such
adjustments to the equivalent aggregate principal amount of this SPC Units
Certificate shall be duly recorded by placing an appropriate notation on the
Schedule attached hereto.
A Holder of Treasury SPC Units may recreate SPC Units by delivering to
the Securities Intermediary with an aggregate principal amount, in the case of
such Notes equal to the aggregate principal amount of the Pledged Treasury
Securities in exchange for the release of such Pledged Treasury Securities in
accordance with the terms of the Purchase Contract Agreement and the Pledge
Agreement.
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The Company shall pay, on each Payment Date, the Purchase Contract
Payments payable in respect of each Purchase Contract to the Person in whose
name the SPC Units Certificate evidencing such Purchase Contract is registered
at the close of business on the Record Date for such Payment Date. Purchase
Contract Payments will be payable at the office of the Purchase Contract Agent
in New York City or, at the option of the Company, by check mailed to the
address of the Person entitled thereto at such address as it appears on the SPC
Units Register.
The Company has the right to defer payment of all or part of the
Purchase Contract Payments in respect of each Purchase Contract until no later
than the Purchase Contract Settlement Date. If the Company so elects to defer
Purchase Contract Payments, the Company shall pay additional Purchase Contract
Payments on such deferred installments of Purchase Contract Payments at a rate
equal to ____% per annum, compounding quarterly, until such deferred
installments are paid. If a Holder effects an Early Settlement or if a
Termination Event shall occur, such Holder will have no right to receive any
accrued and unpaid or deferred Purchase Contract Payments.
The Purchase Contracts and all obligations and rights of the Company
and the Holders thereunder, including, without limitation, the rights of the
Holders to receive and the obligation of the Company to pay any Purchase
Contract Payments, shall immediately and automatically terminate, without the
necessity of any notice or action by any Holder, the Purchase Contract Agent or
the Company, if, on or prior to the Purchase Contract Settlement Date, a
Termination Event shall have occurred. Upon the occurrence of a Termination
Event, the Company shall promptly but in no event later than two Business Days
thereafter give written notice to the Purchase Contract Agent, the Collateral
Agent and the Holders, at their addresses as they appear in the SPC Units
Register. Upon and after the occurrence of a Termination Event, the Collateral
Agent shall release the Notes from the Pledge in accordance with the provisions
of the Pledge Agreement. A SPC Unit shall thereafter represent the right to
receive the Note forming a part of such SPC Unit in accordance with the terms of
the Purchase Contract Agreement and the Pledge Agreement.
Subject to and upon compliance with the provisions of the Purchase
Contract Agreement, at the option of the Holder thereof, Purchase Contracts
underlying Securities may be settled early ("Early Settlement") as provided in
the Purchase Contract Agreement. In order to exercise the right to effect Early
Settlement with respect to any Purchase Contracts evidenced by this SPC Units
Certificate, the Holder of this SPC Units Certificate shall deliver this SPC
Units Certificate to the Purchase Contract Agent at the Corporate Trust Office
duly endorsed for transfer to the Company or in blank with the form of Election
to Settle Early set forth below duly completed and accompanied by payment in the
form of immediately available funds payable to the order of the Company in an
amount (the "Early Settlement Amount") equal to:
(1) the product of (A) the Stated Amount times (B) the number of
Purchase Contracts with respect to which the Holder has elected to effect
Early Settlement, plus
(2) if such delivery is made with respect to any Purchase Contracts
during the period from the close of business on any Record Date for any
Payment Date to the opening of business on such Payment Date, an amount
equal to the Purchase Contract Payments payable on such Payment Date with
respect to such Purchase Contracts.
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Upon Early Settlement of Purchase Contracts by a Holder of the related
Securities, the Pledged Notes underlying such Securities shall be released from
the Pledge as provided in the Pledge Agreement and the Holder shall be entitled
to receive a number of shares of Common Stock on account of each Purchase
Contract forming part of a SPC Unit as to which Early Settlement is effected
equal to the Early Settlement Rate. The Early Settlement Rate shall initially be
equal to ____ shares of Common Stock and shall be adjusted in the same manner
and at the same time as the Settlement Rate is adjusted as provided in the
Purchase Contract Agreement.
Upon registration of transfer of this SPC Units Certificate, the
transferee shall be bound (without the necessity of any other action on the part
of such transferee, except as may be required by the Purchase Contract Agent
pursuant to the Purchase Contract Agreement), under the terms of the Purchase
Contract Agreement and the Purchase Contracts evidenced hereby and the
transferor shall be released from the obligations under the Purchase Contracts
evidenced by this SPC Units Certificate. The Company covenants and agrees, and
the Holder, by its acceptance hereof, likewise covenants and agrees, to be bound
by the provisions of this paragraph.
The Holder of this SPC Units Certificate, by its acceptance hereof,
authorizes the Purchase Contract Agent to enter into and perform the related
Purchase Contracts forming part of the SPC Units evidenced hereby on its behalf
as its attorney-in-fact, expressly withholds any consent to the assumption
(i.e., affirmance) of the Purchase Contracts by the Company or its trustee in
the event that the Company becomes the subject of a case under the Bankruptcy
Code, agrees to be bound by the terms and provisions thereof, covenants and
agrees to perform his obligations under such Purchase Contracts, consents to the
provisions of the Purchase Contract Agreement, authorizes the Purchase Contract
Agent to enter into and perform the Purchase Contract Agreement and the Pledge
Agreement on its behalf as its attorney-in-fact, and consents to the Pledge of
the Notes underlying this SPC Units Certificate pursuant to the Pledge
Agreement. The Holder further covenants and agrees that, to the extent and in
the manner provided in the Purchase Contract Agreement and the Pledge Agreement,
but subject to the terms thereof, payments in respect to the aggregate principal
amount of the Pledged Notes, on the Purchase Contract Settlement Date shall be
paid by the Collateral Agent to the Company in satisfaction of such Holder's
obligations under such Purchase Contract and such Holder shall acquire no right,
title or interest in such payments.
Subject to certain exceptions, the provisions of the Purchase Contract
Agreement may be amended with the consent of the Holders of a majority of the
Purchase Contracts.
The Purchase Contracts shall be governed by, and construed in
accordance with, the laws of the State of New York.
The Company, the Purchase Contract Agent and its Affiliates and any
agent of the Company or the Purchase Contract Agent may treat the Person in
whose name this SPC Units Certificate is registered as the owner of the SPC
Units evidenced hereby for the purpose of receiving payments of interest payable
quarterly on the Notes, receiving payments of Purchase Contract Payments,
performance of the Purchase Contracts and for all other purposes whatsoever,
whether or not any payments in respect thereof be overdue and notwithstanding
A-7
<PAGE>
any notice to the contrary, and neither the Company, the Purchase Contract Agent
nor any such agent shall be affected by notice to the contrary.
The Purchase Contracts shall not, prior to the settlement thereof,
entitle the Holder to any of the rights of a holder of shares of Common Stock.
A copy of the Purchase Contract Agreement is available for inspection
at the offices of the Purchase Contract Agent.
Unless the certificate of authentication hereon has been executed by
the Purchase Contract Agent by manual signature, this SPC Units Certificate
shall not be entitled to any benefit under the Pledge Agreement or the Purchase
Contract Agreement or be valid or obligatory for any purpose.
A-8
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
PP&L RESOURCES, INC.
By:
------------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
HOLDER SPECIFIED ABOVE (as to obligations
of such Holder under the Purchase
Contracts evidenced hereby)
By: _______________________________, not
individually but solely as Attorney-
in-Fact of such Holder
By:
------------------------------------
Name:
Title:
Dated:
A-9
<PAGE>
CERTIFICATE OF AUTHENTICATION OF
PURCHASE CONTRACT AGENT
This is one of the SPC Units Certificates referred to in the within
mentioned Purchase Contract Agreement.
By: _______________________________, as
Purchase Contract Agent
By: __________________________________
Authorized Officer
Dated:
A-10
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM: as tenants in common
UNIF GIFT MIN ACT: Custodian
(cust) (minor)
Under Uniform Gifts to Minors Act of ____
-----------------------------------------
(State)
TEN ENT: as tenants by the entireties
JT TEN: as joint tenants with right of
survivorship and not as tenants in common
Additional abbreviations may also be used though not in the above list.
----------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
- --------------------------------------------------------------------------------
(Please insert Social Security or Taxpayer I.D. or other Identifying Number of
Assignee)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Please Print or Type Name and Address Including Postal Zip Code of Assignee)
the within SPC Units Certificates and all rights thereunder, hereby irrevocably
constituting and appointing
- --------------------------------------------------------------------------------
attorney to transfer said SPC Units Certificates on the books of PP&L Resources,
Inc. with full power of substitution in the premises.
Dated: _____________________________ ____________________________________
Signature
NOTICE: The signature to this
assignment must correspond with the
name as it appears upon the face of
the within SPC Units Certificates
in every particular, without
alteration or enlargement or any
change whatsoever.
Signature Guarantee: _____________________
A-11
<PAGE>
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon settlement on or after the Purchase Contract Settlement
Date of the Purchase Contracts underlying the number of SPC Units evidenced by
this SPC Units Certificate be registered in the name of, and delivered, together
with a check in payment for any fractional share, to the undersigned at the
address indicated below unless a different name and address have been indicated
below. If shares are to be registered in the name of a Person other than the
undersigned, the undersigned will pay any transfer tax payable incident thereto.
Dated: _______________________ ____________________________________
Signature
Signature Guarantee: _______________
(if assigned to another person)
[STAMP LEGEND]
If shares are to be registered in the REGISTERED HOLDER
name of and delivered to a Person other
than the Holder, please (i) print such
Person's name and address and (ii)
provide a guarantee of your signature: Please print name and address of
Registered Holder:
_______________________________________ ____________________________________
Name Name
_______________________________________ ____________________________________
Address Address
_______________________________________ ____________________________________
_______________________________________ ____________________________________
_______________________________________ ____________________________________
Social Security or other
Taxpayer Identification Number, if any ____________________________________
A-12
<PAGE>
ELECTION TO SETTLE EARLY
The undersigned Holder of this SPC Units Certificate hereby
irrevocably exercises the option to effect Early Settlement in accordance with
the terms of the Purchase Contract Agreement with respect to the Purchase
Contracts underlying the number of SPC Units evidenced by this SPC Units
Certificate specified below. The undersigned Holder directs that a certificate
for shares of Common Stock deliverable upon such Early Settlement be registered
in the name of, and delivered, together with a check in payment for any
fractional share and any SPC Units Certificate representing any SPC Units
evidenced hereby as to which Early Settlement of the related Purchase Contracts
is not effected, to the undersigned at the address indicated below unless a
different name and address have been indicated below. Pledged Notes deliverable
upon such Early Settlement will be transferred in accordance with the transfer
instructions set forth below. If shares are to be registered in the name of a
Person other than the undersigned, the undersigned will pay any transfer tax
payable incident thereto.
Dated: ______________________________ ____________________________________
Signature
Signature Guarantee: ___________________________
[Stamp Legend]
A-13
<PAGE>
Number of Securities evidenced hereby as to which Early Settlement of
the related Purchase Contracts is being elected:
If shares of Common Stock or SPC Units REGISTERED HOLDER
Certificates are to be registered in
the name of and delivered to and
Pledged Notes are to be transferred to
a Person other than the Holder, please
print such Person's name and address:
Please print name and address of
Registered Holder:
_______________________________________ ____________________________________
Name Name
_______________________________________ ____________________________________
Address Address
_______________________________________ ____________________________________
_______________________________________ ____________________________________
_______________________________________ ____________________________________
Social Security or other
Taxpayer Identification Number, if any ____________________________________
Transfer Instructions for Pledged Notes Transferable Upon Early Settlement or a
Termination Event:
________________________________________________________________________________
A-14
<PAGE>
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global Certificate have
been made:
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
NUMBER OF SPC UNITS
AMOUNT OF DECREASE IN AMOUNT OF DECREASE IN EVIDENCED BY THIS SIGNATURE OF
NUMBER OF SPC UNITS NUMBER OF SPC UNITS GLOBAL CERTIFICATE AUTHORIZED OFFICER OF
EVIDENCED BY THE EVIDENCED BY THE GLOBAL FOLLOWING SUCH TRUSTEE OR SECURITIES
DATE GLOBAL CERTIFICATE CERTIFICATE DECREASE OR INCREASE CUSTODIAN
</TABLE>
A-15
<PAGE>
EXHIBIT B
FORM OF TREASURY SPC CERTIFICATE
THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
PURCHASE CONTRACT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"),
OR A NOMINEE OF THE DEPOSITARY. THIS CERTIFICATE IS EXCHANGEABLE FOR
CERTIFICATES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT
AGREEMENT AND NO TRANSFER OF THIS CERTIFICATE (OTHER THAN A TRANSFER OF THIS
CERTIFICATE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITARY FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), 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.
No. _____ Cusip No. _____
Number of Treasury SPC Units _________
PP&L RESOURCES, INC.
TREASURY SPC UNITS
This Treasury SPC Units Certificate certifies that _______________ is
the registered Holder of the number of Treasury SPC Units set forth above. Each
Treasury SPC Unit consists of (i) a 1/20 undivided beneficial ownership interest
of a Treasury Security having a principal amount at maturity equal to $1,000,
subject to the Pledge of such Treasury Security by such Holder pursuant to the
Pledge Agreement, and (ii) the rights and obligations of the Holder under one
Purchase Contract with PP&L Resources, Inc., a Pennsylvania corporation (the
"Company"). All capitalized terms used herein which are defined in the Purchase
Contract Agreement (as defined below) have the meaning set forth therein.
B-1
<PAGE>
Pursuant to the Pledge Agreement, the Treasury Securities constituting
part of each Treasury SPC Unit evidenced hereby have been pledged to the
Collateral Agent, for the benefit of the Company, to secure the obligations of
the Holder under the Purchase Contract comprising part of such Treasury SPC
Unit.
Each Purchase Contract evidenced hereby obligates the Holder of this
Treasury SPC Units Certificate to purchase, and the Company, to sell, on the
Purchase Contract Settlement Date, at a price equal to $50 (the "Stated
Amount"), a number of shares of PP&L Resources, Inc. Common Stock, par value
$.01 per share ("Common Stock"), equal to the Settlement Rate, unless prior to
or on the Purchase Contract Settlement Date there shall have occurred a
Termination Event or an Early Settlement with respect to the Treasury SPC Unit
of which such Purchase Contract is a part, all as provided in the Purchase
Contract Agreement and more fully described on the reverse hereof. The purchase
price (the "Purchase Price") for the shares of Common Stock purchased pursuant
to each Purchase Contract evidenced hereby, if not paid earlier, shall be paid
on the Purchase Contract Settlement Date by application of the proceeds from the
Treasury Securities at maturity pledged to secure the obligations of the Holder
under such Purchase Contract of the Treasury SPC Unit of which such Purchase
Contract is a part.
The Company shall pay, quarterly in arrears on February 16, May 16,
August 16 and November 16, commencing ______________ (each, a "Payment Date"),
in respect of each Purchase Contract evidenced hereby an amount (the "Purchase
Contract Payments") equal to ____% per annum of the Stated Amount. Such Purchase
Contract Payments shall be payable to the Person in whose name this Treasury SPC
Units Certificate (or a Predecessor Treasury SPC Units Certificate) is
registered at the close of business on the Record Date for such Payment Date.
The Company may, at its option, defer Purchase Contract Payments.
Purchase Contract Payments will be payable at the office of the
Purchase Contract Agent in New York City or, at the option of the Company, by
check mailed to the address of the Person entitled thereto as such address
appears on the Treasury SPC Units Register.
Each Purchase Contract evidenced hereby is governed by a Purchase
Contract Agreement, dated as of ______________ (as may be supplemented from
time to time, the "Purchase Contract Agreement") between the Company and
______________ , as Purchase Contract Agent (including its successors
thereunder, herein called the "Purchase Contract Agent"), to which the Purchase
Contract Agreement and supplemental agreements thereto reference is hereby made
for a description of the respective rights, limitations of rights, obligations,
duties and immunities thereunder of the Purchase Contract Agent, the Company
and the Holders and of the terms upon which the Treasury SPC Units Certificates
are, and are to be, executed and delivered.
Each Purchase Contract evidenced hereby obligates the Holder of this
Treasury SPC Units Certificate to purchase, and the Company to sell, on the
Purchase Contract Settlement Date at a price equal to the Stated Amount (the
"Purchase Price") a number of shares of Common Stock equal to the Settlement
Rate, unless prior to the Purchase Contract Settlement Date, there shall have
occurred a Termination Event with respect to the Security of which such Purchase
Contract is a part or an Early Settlement shall have occurred. The "Settlement
Rate" is equal to:
B-2
<PAGE>
(1) if the Applicable Market Value (as defined below) is equals or
exceeds $. (the "Threshold Appreciation Price"), shares of Common Stock per
Purchase Contract;
(2) if the Applicable Market Value is less than the Threshold
Appreciation Price but greater than $. (the "Reference Price"), the number
of shares of Common Stock per Purchase Contract having a value, based on
the Applicable Market Value, equal to the Stated Amount; and
(3) if the Applicable Market Amount is less than or equal to the
Reference Price, shares of Common Stock per Purchase Contract, in each case
subject to adjustment as provided in the Purchase Contract Agreement.
No fractional shares of Common Stock will be issued upon settlement of
Purchase Contracts, as provided in Section 5.10 of the Purchase Contract
Agreement.
Each Purchase Contract evidenced hereby, which is settled either
through Early Settlement or Cash Settlement, shall obligate the Holder of the
related Treasury SPC Unit to purchase at the Purchase Price for cash, and the
Company to sell, a number of shares of Common Stock equal to the Early
Settlement Rate or the Settlement Rate, as applicable.
The "Applicable Market Value" means the average of the Closing Prices
per share of Common Stock on each of the 20 consecutive Trading Days ending on
the third Trading Day immediately preceding the Purchase Contract Settlement
Date.
The "Closing Price" per share of Common Stock on any date of
determination means the:
(1) closing sale price (or, if no closing price is reported, the last
reported sale price) per share on the New York Stock Exchange, Inc. (the
"NYSE") on such date;
(2) if Common Stock is not listed for trading on the NYSE on any such
date, the closing sale price per share as reported in the composite
transactions for the principal United States securities exchange on which
Common Stock is so listed;
(3) if Common Stock is not so listed on a United States national or
regional securities exchange, the closing sale price per share as reported
by The Nasdaq Stock Market, Inc.;
(4) if Common Stock is not so reported, the last quoted bid price for
Common Stock in the over-the-counter market as reported by the National
Quotation Bureau or similar organization; or
(5) if such bid price is not available, the average of the mid-point
of the last bid and ask prices of Common Stock on such date from at least
three nationally recognized independent investment banking firms retained
for this purpose by the Company.
B-3
<PAGE>
A "Trading Day" means a day on which Common Stock (1) is not suspended
from trading on any national or regional securities exchange or association or
over-the-counter market at the close of business and (2) has traded at least
once on the national or regional securities exchange or association or
over-the-counter market that is the primary market for the trading of Common
Stock.
In accordance with the terms of the Purchase Contract Agreement, the
Holder of this Treasury SPC Unit shall pay the Purchase Price for the shares of
Common Stock purchased pursuant to each Purchase Contract evidenced hereby
either by effecting a Cash Settlement or an Early Settlement of each such
Purchase Contract or by applying a principal amount of the Pledged Treasury
Securities underlying such Holder's Treasury SPC Unit equal to the Stated Amount
of such Purchase Contract to the purchase of the Common Stock. A Holder of
Treasury SPC Unit who does not effect, prior to or on 11:00 a.m. (New York City
time) on the Business Day immediately preceding the Purchase Contract Settlement
Date, an effective Cash Settlement or an Early Settlement, shall pay the
Purchase Price for the shares of Common Stock to be issued under the related
Purchase Contract from the proceeds of the Pledged Treasury Securities.
The Company shall not be obligated to issue any shares of Common Stock
in respect of a Purchase Contract or deliver any certificates therefor to the
Holder unless it shall have received payment of the aggregate purchase price for
the shares of Common Stock to be purchased thereunder in the manner herein set
forth.
The Treasury SPC Units Certificates are issuable only in registered
form and only in denominations of a single Treasury SPC and any integral
multiple thereof. The transfer of any Treasury SPC Certificate will be
registered and Treasury SPC Certificates may be exchanged as provided in the
Purchase Contract Agreement. The Treasury SPC Registrar may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
permitted by the Purchase Contract Agreement. No service charge shall be
required for any such registration of transfer or exchange, but the Company and
the Purchase Contract Agent may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith. A Holder who
elects to substitute Notes for Treasury Securities, thereby recreating SPC
Units, shall be responsible for any fees or expenses associated therewith.
Except as provided in the Purchase Contract Agreement, for so long as the
Purchase Contract underlying a Treasury SPC Unit remains in effect, such
Treasury SPC Unit shall not be separable into its constituent parts, and the
rights and obligations of the Holder of such Treasury SPC Unit in respect of the
Treasury Security and the Purchase Contract constituting such Treasury SPC Unit
may be transferred and exchanged only as a Treasury SPC Unit.
A Holder of Treasury SPC Units may recreate SPC Units by delivering to
the Collateral Agent Notes with a principal amount, in the case of such Notes,
equal to the aggregate principal amount at maturity of the Pledged Treasury
Securities in exchange for the release of such Pledged Treasury Securities in
accordance with the terms of the Purchase Contract Agreement and the Pledge
Agreement. From and after such substitution, the Holder's Security shall be
referred to as a "SPC Unit". Such substitution may cause the equivalent
aggregate principal amount of this Certificate to be increased or decreased;
provided, however, this Treasury SPC Units Certificate shall not represent more
than [4,000,000] Treasury SPC Units. All such adjustments to the equivalent
aggregate principal amount of this Treasury SPC Units Certificate shall be duly
B-4
<PAGE>
recorded by placing an appropriate notation on the Schedule attached hereto.
A Holder of SPC Units may recreate Treasury SPC Units by delivering to
the Collateral Agent Treasury Securities in an aggregate principal amount equal
to the aggregate principal amount at maturity of the Pledged Notes in exchange
for the release of such Pledged Notes in accordance with the terms of the
Purchase Contract Agreement and the Pledge Agreement. Any such recreation of
Treasury SPC Units may be effected only in multiples of 20 SPC Units for 20
Treasury SPC Units.
The Company shall pay, on each Payment Date, the Purchase Contract
Payments payable in respect of each Purchase Contract to the Person in whose
name the Treasury SPC Units Certificate evidencing such Purchase Contract is
registered at the close of business on the Record Date for such Payment Date.
Contract Adjustment Payments will be payable at the office of the Purchase
Contract Agent in New York City or, at the option of the Company, by check
mailed to the address of the Person entitled thereto at such address as it
appears on the Treasury SPC Units Register.
The Company has the right to defer payment of all or part of the
Purchase Contract Payments in respect of each Purchase Contract until no later
than the Purchase Contract Settlement Date. If the Company so elects to defer
Purchase Contract Payments, the Company shall pay additional Purchase Contract
Payments on such deferred installments of Purchase Contract Payments at a rate
equal to ____% per annum, compounding quarterly, until such deferred
installments are paid. If a Holder effects an Early Settlement or if a
Termination Event shall occur, such Holder will have no right to receive any
accrued and unpaid or deferred Purchase Contract Payments.
The Purchase Contracts and all obligations and rights of the Company
and the Holders thereunder, including, without limitation, the rights of the
Holders to receive and the obligation of the Company to pay Contract Adjustment
Payments, shall immediately and automatically terminate, without the necessity
of any notice or action by any Holder, the Purchase Contract Agent or the
Company, if, on or prior to the Purchase Contract Settlement Date, a Termination
Event shall have occurred. Upon the occurrence of a Termination Event, the
Company shall promptly but in no event later than two Business Days thereafter
give written notice to the Purchase Contract Agent, the Collateral Agent and the
Holders, at their addresses as they appear in the Treasury SPC Units Register.
Upon the occurrence of a Termination Event, the Collateral Agent shall release
the Treasury Securities from the Pledge in accordance with the provisions of the
Pledge Agreement. A Treasury SPC Unit shall thereafter represent the right to
receive the interest in the Treasury Security forming a part of such Treasury
SPC Unit, in accordance with the terms of the Purchase Contract Agreement and
the Pledge Agreement.
Subject to and upon compliance with the provisions of the Purchase
Contract Agreement, at the option of the Holder thereof, Purchase Contracts
underlying Securities may be settled early ("Early Settlement") as provided in
the Purchase Contract Agreement. In order to exercise the right to effect Early
Settlement with respect to any Purchase Contracts evidenced by this Treasury SPC
Unit, the Holder of this Treasury SPC Units Certificate shall deliver this
Treasury SPC Units Certificate to the Purchase Contract Agent at the Corporate
B-5
<PAGE>
Trust Office duly endorsed for transfer to the Company or in blank with the form
of Election to Settle Early set forth below duly completed and accompanied by
payment in the form of immediately available funds payable to the order of the
Company in an amount (the "Early Settlement Amount") equal to:
(1) the product of (A) $50 times (B) the number of Purchase Contracts
with respect to which the Holder has elected to effect Early Settlement,
plus
(2) if such delivery is made with respect to any Purchase Contracts
during the period from the close of business on any Record Date for any
Payment Date to the opening of business on such Payment Date, an amount
equal to the Contract Adjustment Payments payable, if any, on such Payment
Date with respect to such Purchase Contracts.
Upon Early Settlement of Purchase Contracts by a Holder of the related
Securities, the Pledged Treasury Securities underlying such Securities shall be
released from the Pledge as provided in the Pledge Agreement and the Holder
shall be entitled to receive a number of shares of Common Stock on account of
each Purchase Contract forming part of a Treasury SPC Unit as to which Early
Settlement is effected equal to shares of Common Stock per Purchase Contract
(the "Early Settlement Rate"). The Early Settlement Rate shall be adjusted in
the same manner and at the same time as the Settlement Rate is adjusted as
provided in the Purchase Contract Agreement.
Upon registration of transfer of this Treasury SPC Certificate, the
transferee shall be bound (without the necessity of any other action on the part
of such transferee, except as may be required by the Purchase Contract Agent
pursuant to the Purchase Contract Agreement), under the terms of the Purchase
Contract Agreement and the Purchase Contracts evidenced hereby and the
transferor shall be released from the obligations under the Purchase Contracts
evidenced by this Treasury SPC Units Certificate. The Company covenants and
agrees, and the Holder, by its acceptance hereof, likewise covenants and agrees,
to be bound by the provisions of this paragraph.
The Holder of this Treasury SPC Units Certificate, by its acceptance
hereof, authorizes the Purchase Contract Agent to enter into and perform the
related Purchase Contracts forming part of the Treasury SPC Units evidenced
hereby on its behalf as its attorney-in-fact, expressly withholds any consent to
the assumption (i.e., affirmance) of the Purchase Contracts by the Company or
its trustee in the event that the Company becomes the subject of a case under
the Bankruptcy Code, agrees to be bound by the terms and provisions thereof,
covenants and agrees to perform its obligations under such Purchase Contracts,
consents to the provisions of the Purchase Contract Agreement, authorizes the
Purchase Contract Agent to enter into and perform the Purchase Contract
Agreement and the Pledge Agreement on its behalf as its attorney-in-fact, and
consents to the Pledge of the Treasury Securities underlying this Treasury SPC
Units Certificate pursuant to the Pledge Agreement. The Holder further covenants
and agrees, that, to the extent and in the manner provided in the Purchase
Contract Agreement and the Pledge Agreement, but subject to the terms thereof,
payments in respect to the aggregate principal amount of the Pledged Treasury
Securities on the Purchase Contract Settlement Date shall be paid by the
Collateral Agent to the Company in satisfaction of such Holder's obligations
under such Purchase Contract and such Holder shall acquire no right, title or
interest in such payments.
B-6
<PAGE>
Subject to certain exceptions, the provisions of the Purchase Contract
Agreement may be amended with the consent of the Holders of a majority of the
Purchase Contracts.
The Purchase Contracts shall for all purposes be governed by, and
construed in accordance with, the laws of the State of New York.
The Company, the Purchase Contract Agent and its Affiliates and any
agent of the Company or the Purchase Contract Agent may treat the Person in
whose name this Treasury SPC Units Certificate is registered as the owner of the
Treasury SPC Units evidenced hereby for the purpose of receiving payments of
interest on the Treasury Securities, receiving payments of Purchase Contract
Payments, performance of the Purchase Contracts and for all other purposes
whatsoever, whether or not any payments in respect thereof be overdue and
notwithstanding any notice to the contrary, and neither the Company, the
Purchase Contract Agent nor any such agent shall be affected by notice to the
contrary.
The Purchase Contracts shall not, prior to the settlement thereof,
entitle the Holder to any of the rights of a holder of shares of Common Stock.
A copy of the Purchase Contract Agreement is available for inspection
at the offices of the Purchase Contract Agent.
Unless the certificate of authentication hereon has been executed by
the Purchase Contract Agent by manual signature, this Treasury SPC Units
Certificate shall not be entitled to any benefit under the Pledge Agreement or
the Purchase Contract Agreement or be valid or obligatory for any purpose.
B-7
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
PP&L RESOURCES, INC.
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
HOLDER SPECIFIED ABOVE (as to obligations
of such Holder under the Purchase
Contracts)
By: , not
------------------------------
individually but solely as Attorney-
in-Fact of such Holder
By:
------------------------------------
Name:
Title:
Dated:
B-8
<PAGE>
CERTIFICATE OF AUTHENTICATION OF PURCHASE CONTRACT AGENT
This is one of the Treasury SPC Units referred to in the
within-mentioned Purchase Contract Agreement.
By: , as Purchase
---------------------------
Contract Agent
By:
---------------------------------------
Authorized Officer
Dated:
B-9
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM: as tenants in common
UNIF GIFT MIN ACT: Custodian
(cust) (minor)
Under Uniform Gifts to Minors Act of ____
-----------------------------------------
(State)
TEN ENT: as tenants by the entireties
JT TEN: as joint tenants with right of
survivorship and not as tenants in common
Additional abbreviations may also be used though not in the above list.
----------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
- --------------------------------------------------------------------------------
(Please insert Social Security or Taxpayer I.D. or other Identifying Number of
Assignee)
- --------------------------------------------------------------------------------
(Please Print or Type Name and Address Including Postal Zip Code of Assignee)
the within SPC Units Certificates and all rights thereunder, hereby irrevocably
constituting and appointing attorney to transfer said SPC Units Certificates on
the books of PP&L Resources, Inc. with full power of substitution in the
premises.
Dated: _____________________________ ____________________________________
Signature
NOTICE: The signature to this
assignment must correspond with the
name as it appears upon the face of
the within SPC Units Certificates
in every particular, without
alteration or enlargement or any
change whatsoever.
Signature Guarantee: _____________________
B-10
<PAGE>
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon settlement on or after the Purchase Contract Settlement
Date of the Purchase Contracts underlying the number of Treasury SPC Units
evidenced by this Treasury SPC Units Certificate be registered in the name of,
and delivered, together with a check in payment for any fractional share, to the
undersigned at the address indicated below unless a different name and address
have been indicated below. If shares are to be registered in the name of a
Person other than the undersigned, the undersigned will pay any transfer tax
payable incident thereto.
Dated: _____________________________ ____________________________________
Signature
Signature Guarantee:
(if assigned to another person)
If shares of Common Stock or SPC Units REGISTERED HOLDER
Certificates are to be registered in
the name of and delivered to and
Pledged Notes are to be transferred to
a Person other than the Holder, please
print such Person's name and address:
Please print name and address
of Registered Holder:
_______________________________________ ____________________________________
Name Name
_______________________________________ ____________________________________
Address Address
_______________________________________ ____________________________________
_______________________________________ ____________________________________
_______________________________________ ____________________________________
Social Security or other
Taxpayer Identification Number, if any ____________________________________
B-11
<PAGE>
ELECTION TO SETTLE EARLY
The undersigned Holder of this Treasury SPC Units Certificate
irrevocably exercises the option to effect Early Settlement in accordance with
the terms of the Purchase Contract Agreement with respect to the Purchase
Contracts underlying the number of Treasury SPC Units evidenced by this Treasury
SPC Units Certificate specified below. The option to effect Early Settlement may
be exercised only with respect to Purchase Contracts underlying Treasury SPC
with an aggregate Stated Amount equal to $1,000 or an integral multiple thereof.
The undersigned Holder directs that a certificate for shares of Common Stock
deliverable upon such Early Settlement be registered in the name of, and
delivered, together with a check in payment for any fractional share and any
Treasury SPC Units Certificate representing any Treasury SPC Units evidenced
hereby as to which Early Settlement of the related Purchase Contracts is not
effected, to the undersigned at the address indicated below unless a different
name and address have been indicated below. Pledged Treasury Securities
deliverable upon such Early Settlement will be transferred in accordance with
the transfer instructions set forth below. If shares are to be registered in the
name of a Person other than the undersigned, the undersigned will pay any
transfer tax payable incident thereto.
Dated: _____________________________ ____________________________________
Signature
Signature Guarantee: ____________________________
[Stamp Legend?]
B-12
<PAGE>
Number of Securities evidenced hereby as to which Early Settlement of
the related Purchase Contracts is being elected:
If shares of Common Stock or SPC Units REGISTERED HOLDER
Certificates are to be registered in
the name of and delivered to and
Pledged Notes are to be transferred to
a Person other than the Holder, please
print such Person's name and address:
Please print name and address
of Registered Holder:
_______________________________________ ____________________________________
Name Name
_______________________________________ ____________________________________
Address Address
_______________________________________ ____________________________________
_______________________________________ ____________________________________
_______________________________________ ____________________________________
Social Security or other
Taxpayer Identification Number, if any ____________________________________
B-13
<PAGE>
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global Certificate have
been made:
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
NUMBER OF SPC UNITS
AMOUNT OF DECREASE IN AMOUNT OF DECREASE IN EVIDENCED BY THIS SIGNATURE OF
NUMBER OF SPC UNITS NUMBER OF SPC UNITS GLOBAL CERTIFICATE AUTHORIZED OFFICER OF
EVIDENCED BY THE EVIDENCED BY THE GLOBAL FOLLOWING SUCH TRUSTEE OR SECURITIES
DATE GLOBAL CERTIFICATE CERTIFICATE DECREASE OR INCREASE CUSTODIAN
</TABLE>
B-14
<PAGE>
EXHIBIT C
INSTRUCTION TO PURCHASE CONTRACT AGENT
___________________
___________________
___________________
___________________
Attention: ___________________
Re: [_______ SPC Units] [_______ Treasury SPC Units] of PP&L
Resources, Inc., a Pennsylvania corporation (the "Company")
The undersigned Holder hereby notifies you that it has delivered to
__________, as Securities Intermediary, for credit to the Collateral Account,
$______ aggregate principal amount of [Notes] [Treasury Securities] in exchange
for the [Pledged Notes] [Pledged Treasury Securities] held in the Collateral
Account, in accordance with the Pledge Agreement, dated as of _____________ (the
"Pledge Agreement"; unless otherwise defined herein, terms defined in the Pledge
Agreement are used herein as defined therein), between you, the Company, the
Collateral Agent and the Securities Intermediary. The undersigned Holder has
paid all applicable fees relating to such exchange. The undersigned Holder
hereby instructs you to instruct the Collateral Agent to release to you on
behalf of the undersigned Holder the [Pledged Notes] [Pledged Treasury
Securities] related to such [SPC Units] [Treasury SPC Units].
Date: ___________________________ ____________________________________
Signature
Signature Guarantee: _______________
(if assigned to another person)
Please print name and address of Registered Holder:
_______________________________________ ____________________________________
Name Social Security or other
Taxpayer Identification Number,
if any
Address
______________________________________
______________________________________
______________________________________
C-1
<PAGE>
EXHIBIT D
NOTICE FROM PURCHASE CONTRACT AGENT TO HOLDERS
(TRANSFER OF COLLATERAL UPON OCCURRENCE OF A TERMINATION EVENT)
[HOLDER]
______________________________________
______________________________________
Attention:
Telecopy: __________
Re: [__________ SPC Units] [______ Treasury SPC Units] of PP&L
Resources, Inc., a Pennsylvania corporation (the "Company")
Please refer to the Purchase Contract Agreement, dated as of ________
(the "Purchase Contract Agreement"; unless otherwise defined herein, terms
defined in the Purchase Contract Agreement are used herein as defined therein),
between the Company and the undersigned, as Purchase Contract Agent and as
attorney-in-fact for the holders of SPC Units and Treasury SPC Units from time
to time.
We hereby notify you that a Termination Event has occurred and that
[the Notes][the Treasury Securities] underlying your ownership interest in _____
[SPC Units] [Treasury SPC Units] have been released and are being held by us for
your account pending receipt of transfer instructions with respect to such
[Notes][Treasury Securities] (the "Released Securities").
Pursuant to Section 3.15 of the Purchase Contract Agreement, we hereby
request written transfer instructions with respect to the Released Securities.
Upon receipt of your instructions and upon transfer to us of your [SPC
Units][Treasury SPC Units] effected through book-entry or by delivery to us of
your [SPC Units Certificate][Treasury SPC Units Certificate], we shall transfer
the Released Securities by book-entry transfer or other appropriate procedures,
in accordance with your instructions. In the event you fail to effect such
transfer or delivery, the Released Securities and any distributions thereon,
shall be held in our name, or a nominee in trust for your benefit, until such
time as such [SPC Units][Treasury SPC Units] are transferred or your [SPC Units
Certificate] [Treasury SPC Units Certificate] is surrendered or satisfactory
evidence is provided that such your [SPC Units Certificate][Treasury SPC Units
Certificate] has been destroyed, lost or stolen, together with any
indemnification that we or the Company may require.
Date: By:
----------------------------
----------------------------
Name:
Title: Authorized Officer
D-1
<PAGE>
EXHIBIT E
NOTICE TO SETTLE BY CASH
___________________
___________________
___________________
Attention: ___________________
Re: [_______ SPC Units] [Treasury SPC Units] of PP&L Resources, Inc.,
a Pennsylvania corporation (the "Company")
The undersigned Holder hereby irrevocably notifies you in accordance
with Section 5.4 of the Purchase Contract Agreement, dated as of _________ (the
"Purchase Contract Agreement"; unless otherwise defined herein, terms defined
in the Purchase Contract Agreement are used herein as defined therein), between
the Company and you, as Purchase Contract Agent and as Attorney-in-Fact for the
Holders of the Purchase Contracts, that such Holder has elected to pay to the
Securities Intermediary for deposit in the Collateral Account, prior to or on
11:00 a.m. (New York City time) on the fifth Business Day immediately preceding
the Purchase Contract Settlement Date (in lawful money of the United States by
certified or cashiers' check or wire transfer, in immediately available funds),
$______ as the Purchase Price for the shares of Common Stock issuable to such
Holder by the Company under the related Purchase Contracts on the Purchase
Contract Settlement Date. The undersigned Holder hereby instructs you to notify
promptly the Collateral Agent of the undersigned Holders' election to make such
cash settlement with respect to the Purchase Contracts related to such Holder's
[SPC Units] [Treasury SPC Units].
Date: ___________________________ __________________________________
Signature
Signature Guarantee: _____________
Please print name and address of Registered Holder:
E-1
<PAGE>
EXHIBIT F
NOTICE FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT AND INDENTURE TRUSTEE
(SETTLEMENT OF PURCHASE CONTRACT THROUGH REMARKETING)
___________________
___________________
___________________
Attention: ___________________
Telecopy: ___________________
_____________________________, as Indenture Trustee
______________________________________
______________________________________
Attention:
Telecopy:
Re: __________ SPC Units of PP&L Resources, Inc., a Pennsylvania
corporation (the "Company")
Please refer to the Purchase Contract Agreement, dated as of ________
(the "Purchase Contract Agreement"; unless otherwise defined herein, terms
defined in the Purchase Contract Agreement are used herein as defined therein),
between the Company and the undersigned, as Purchase Contract Agent and as
attorney-in-fact for the Holders of SPC Units from time to time.
In accordance with Section 5.4 of the Purchase Contract Agreement and,
based on instructions and Cash Settlements received from Holders of SPC Units as
of 11:00 a.m. (New York City time), the fifth Business Day preceding the
Purchase Contract Settlement Date, we hereby notify you that ______ Notes are to
be tendered for purchase in the Remarketing.
Date: By:
-------------------------------
-------------------------------
Name:
Title: Authorized Officer
F-1
EXHIBIT 4.7
-----------
==============================================================================
PP&L RESOURCES, INC.,
__________________________________________,
AS COLLATERAL AGENT AND SECURITIES INTERMEDIARY
AND
THE CHASE MANHATTAN BANK,
AS PURCHASE CONTRACT AGENT
-------------------------------
PLEDGE AGREEMENT
-------------------------------
Dated as of _______________
==============================================================================
<PAGE>
TABLE OF CONTENTS
SECTION 1. Definitions.............................................1
SECTION 2. Pledge; Control.........................................5
SECTION 2.1 The Pledge..............................................5
SECTION 2.2 Control; Financing Statement............................5
SECTION 2.3 Termination.............................................5
SECTION 3. Distributions on Pledged Collateral.....................6
SECTION 3.1 Income Distributions....................................6
SECTION 3.2 Principal Payments Following Termination Event..........6
SECTION 3.3 Principal Payments Prior To or On Purchase
Contract Settlement Date................................6
SECTION 3.4 Payments to Purchase Contract Agent.....................6
SECTION 3.5 Assets Not Properly Released............................6
SECTION 4. Control.................................................7
SECTION 4.1 Establishment of Collateral Account.....................7
SECTION 4.2 Treatment as Financial Assets...........................7
SECTION 4.3 Sole Control by Collateral Agent........................7
SECTION 4.4 Securities Intermediary's Location......................8
SECTION 4.5 No Other Claims.........................................8
SECTION 4.6 Investment and Release..................................8
SECTION 4.7 Statements and Confirmations............................8
SECTION 4.8 Tax Allocations.........................................8
SECTION 4.9 No Other Agreements.....................................8
SECTION 4.10 Powers Coupled With An Interest.........................9
SECTION 5. Initial Deposit; Establishment of Treasury SPC
Units and Reestablishment of SPC Units..................9
SECTION 5.1 Initial Deposit of Notes................................9
SECTION 5.2 Establishment of Treasury SPC Units.....................9
SECTION 5.3 Reestablishment of SPC Units...........................10
SECTION 5.4 Termination Event......................................10
SECTION 5.5 Cash Settlement........................................11
SECTION 5.6 Early Settlement.......................................12
SECTION 5.7 Application of Proceeds Settlement.....................13
SECTION 6. Voting Rights..........................................14
SECTION 7. Rights and Remedies....................................14
SECTION 7.1 Rights and Remedies of the Collateral Agent............14
SECTION 7.2 Substitutions..........................................15
SECTION 8. Representations and Warranties; Covenants..............15
SECTION 8.1 Representations and Warranties.........................15
i
<PAGE>
SECTION 8.2 Covenants..............................................16
SECTION 9. The Collateral Agent and the Securities
Intermediary...........................................16
SECTION 9.1 Appointment, Powers and Immunities.....................16
SECTION 9.2 Instructions of the Company............................17
SECTION 9.3 Reliance by Collateral Agent and Securities
Intermediary...........................................18
SECTION 9.4 Rights in Other Capacities.............................18
SECTION 9.5 Non-Reliance on Collateral Agent and Securities
Intermediary...........................................18
SECTION 9.6 Compensation and Indemnity.............................19
SECTION 9.7 Failure to Act.........................................19
SECTION 9.8 Resignation of Collateral Agent and Securities
Intermediary...........................................20
SECTION 9.9 Right to Appoint Agent or Advisor......................21
SECTION 9.10 Survival...............................................21
SECTION 9.11 Exculpation............................................21
SECTION 10. Amendment..............................................22
SECTION 10.1 Amendment Without Consent of Holders...................22
SECTION 10.2 Amendment With Consent of Holders......................22
SECTION 10.3 Execution of Amendments................................23
SECTION 10.4 Effect of Amendments...................................23
SECTION 10.5 Reference to Amendments................................23
SECTION 11. Miscellaneous..........................................24
SECTION 11.1 No Waiver..............................................24
SECTION 11.2 Governing Law..........................................24
SECTION 11.3 Notices................................................24
SECTION 11.4 Successors and Assigns.................................24
SECTION 11.5 Counterparts...........................................25
SECTION 11.6 Severability...........................................25
SECTION 11.7 Expenses, etc..........................................25
SECTION 11.8 Security Interest Absolute.............................25
EXHIBIT A Instruction from Purchase Contract Agent to Collateral Agent
(Establishment of Treasury SPC Units)
EXHIBIT B Instruction from Collateral Agent to Securities Intermediary
(Establishment of Treasury SPC Units)
EXHIBIT C Instruction from Purchase Contract Agent to Collateral Agent
(Reestablishment of SPC Units)
EXHIBIT D Instruction from Collateral Agent to Securities Intermediary
(Reestablishment of SPC Units)
EXHIBIT E Notice of Cash Settlement from the Securities Intermediary to
the Purchase Contract Agent
ii
<PAGE>
PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of ________, among
PP&L RESOURCES, INC., a Pennsylvania corporation (the "Company"), ____________
_______, as collateral agent (in such capacity, together with its successors in
such capacity, the "Collateral Agent"), and as a "securities intermediary"
within the meaning of Section 8-102(a)(14) of the UCC (as defined herein) with
respect to the Collateral Account (in such capacity, together with its
successors in such capacity, the "Securities Intermediary"), and THE CHASE
MANHATTAN BANK, a New York banking corporation, as purchase contract agent and
as attorney-in-fact of the Holders from time to time of the Securities (in such
capacity, together with its successors in such capacity, the "Purchase Contract
Agent") under the Purchase Contract Agreement.
RECITALS
The Company and the Purchase Contract Agent are parties to the
Purchase Contract Agreement dated as of the date hereof (as modified and
supplemented and in effect from time to time, the "Purchase Contract
Agreement"), pursuant to which there may be issued up to _________________
SPC Units (the "Securities").
Each SPC Unit, at issuance, consists of a unit comprised of (a) a
stock purchase contract (as modified and supplemented and in effect from time to
time, a "Purchase Contract") under which (i) the Holder will purchase from the
Company not later than the Purchase Contract Settlement Date, for an amount in
cash equal to $50 (the "Stated Amount"), a number of shares of PP&L Resources,
Inc. Common Stock $.01 per share par value ("Common Stock") equal to the
Settlement Rate (as defined in the Purchase Contract Agreement), and (ii) the
Company will pay the Holder Purchase Contract Payments and (b) a note of PP&L
Capital Funding, Inc., a wholly-owned subsidiary of the Company, which note
shall be guaranteed as to payment of principal, premium, if any, and interest by
the Company (a "Note"), having a principal amount equal to the Stated Amount and
maturing on ____________.
[address overallotment option, if applicable]
Pursuant to the terms of the Purchase Contract Agreement and the
Purchase Contracts, the Holders of the Securities have irrevocably authorized
the Purchase Contract Agent, as attorney-in-fact of such Holders, among other
things, to execute and deliver this Agreement on behalf of such Holders and to
grant the pledge provided herein of the Collateral Account to secure the
Obligations.
Accordingly, the Company, the Collateral Agent, the Securities
Intermediary and the Purchase Contract Agent, on its own behalf and as
attorney-in-fact of the Holders from time to time of the Securities, agree as
follows:
SECTION 1. DEFINITIONS.
For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
<PAGE>
(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) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section, Exhibit or other subdivision;
(c) the following terms which are defined in the UCC shall have the
meanings set forth therein: "certificated security", "control", "financial
asset", "entitlement order", "securities account" and "security entitlement";
(d) the following terms have the meanings assigned to them in the
Purchase Contract Agreement: "Act," "Bankruptcy Code," "Board Resolution,"
"Business Day," "Cash Settlement," "Certificate," "Early Settlement," "Early
Settlement Amount," "Early Settlement Date," "Holders," "Indenture," "Indenture
Trustee," "Opinion of Counsel," "Outstanding Securities," "SPC Units," "Person,"
"Purchase Contract," "Purchase Contract Payments," "Purchase Contract Settlement
Date," "Purchase Price," "Remarketing Agent," "Remarketing Agreement,"
"Settlement Rate," "Termination Event," "Treasury SPC Units," and "Underwriting
Agreement";
(e) the following terms have the meanings given to them in this
section 1(e):
"AGREEMENT" means this Pledge Agreement, as the same may be amended,
modified or supplemented from time to time.
"CASH" means any coin or currency of the United States as at the time
shall be legal tender for payment of public and private debts.
"COLLATERAL" has the meaning specified in paragraph (2) of the
definition of Collateral Account.
"COLLATERAL ACCOUNT" means the collective reference to:
(1) Securities Account No. ______ entitled "_______________,
maintained at [Collateral Agent] in the name of "The Chase Manhattan Bank, as
Purchase Contract Agent on behalf of the holders of securities subject to the
Security Interest of __________ as Collateral Agent under the Pledge Agreement,
for the benefit of PP&L Resources, Inc., as pledgee" maintained by the
Securities Intermediary for the Purchase Contract Agent on behalf of and as
attorney-in-fact for the Holders;
(2) all investment property and other financial assets from time to
time credited to the Collateral Account, including, without limitation, (A)
Notes and security entitlements relating thereto which are a component of the
SPC Units from time to time, (B) any Treasury Securities and security
entitlements relating thereto delivered from time to time upon establishment of
Treasury SPC Units in accordance with Section 5.2 hereof and (C) payments made
by Holders pursuant to Section 5.5 hereof (collectively, the "Collateral");
2
<PAGE>
(3) all Proceeds of any of the foregoing (whether such Proceeds arise
before or after the commencement of any proceeding under any applicable
bankruptcy, insolvency or other similar law, by or against the pledgor or with
respect to the pledgor); and
(4) all powers and rights now owned or hereafter acquired under or
with respect to the Collateral Account.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this instrument until a successor shall have become such, and
thereafter "Company" shall mean such successor.
"OBLIGATIONS" means, with respect to each Holder, the collective
reference to all obligations and liabilities of such Holder under such Holder's
Purchase Contract (including, but not limited to, such Holder's obligation to
pay the aggregate Purchase Price for Common Stock on the Purchase Contract
Settlement Date) and this Agreement or any other document made, delivered or
given in connection herewith or therewith, in each case whether on account of
principal, interest (including, without limitation, interest accruing before and
after the filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to such Holder, whether
or not a claim for post-filing or post-petition interest is allowed in such
proceeding), purchase price, fees, indemnities, costs, expenses or otherwise
(including, without limitation, all fees and disbursements of counsel to the
Company or the Collateral Agent or the Securities Intermediary that are required
to be paid by the Holder pursuant to the terms of any of the foregoing
agreements).
"PERMITTED INVESTMENTS" means any one of the following which shall
mature not later than the next succeeding Business Day:
(1) any evidence of indebtedness with an original maturity
of 365 days or less issued, or directly and fully guaranteed or
insured, by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of
the United States of America is pledged in support of the timely
payment thereof or such indebtedness constitutes a general obligation
of it);
(2) deposits, certificates of deposit or acceptances with an
original maturity of 365 days or less of any institution which is a
member of the Federal Reserve System having combined capital and
surplus and undivided profits of not less than $200.0 million at the
time of deposit;
(3) investments with an original maturity of 365 days or
less of any Person that is fully and unconditionally guaranteed by a
bank referred to in clause (2);
(4) repurchase agreements and reverse repurchase agreements
relating to marketable direct obligations issued or unconditionally
guaranteed by the United States Government or issued by any agency
thereof and backed as to timely payment by the full faith and credit
of the United States Government;
3
<PAGE>
(5) investments in commercial paper, other than commercial
paper issued by the Company or its affiliates, of any corporation
incorporated under the laws of the United States or any State thereof,
which commercial paper has a rating at the time of purchase at least
equal to "A-1" by Standard & Poor's Ratings Services ("S&P") or at
least equal to "P-1" by Moody's Investors Service, Inc. ("Moody's");
and
(6) investments in money market funds registered under the
Investment Company Act of 1940, as amended, rated in the highest
applicable rating category by S&P or Moody's.
"PLEDGE" means the pledge, lien and security interest created by this
Agreement.
"PLEDGED NOTES" means the Notes and security entitlements with respect
thereto from time to time credited to the Collateral Account and not then
released from the Pledge.
"PLEDGED TREASURY SECURITIES" means Treasury Securities and security
entitlements with respect thereto from time to time credited to the Collateral
Account and not then released from the Pledge.
"PROCEEDS" has the meaning ascribed thereto in the UCC and includes,
without limitation, all interest, dividends, cash, instruments, securities,
financial assets (as defined in Section 8-102(a)(9) of the UCC) and other
property received, receivable or otherwise distributed upon the sale, exchange,
collection or disposition of any financial assets from time to time held in the
Collateral Account.
"PURCHASE CONTRACT AGENT" has the meaning specified in the paragraph
preceding the recitals of this Agreement.
"TRADES" means the Treasury Reserve Automated Debt Entry System
maintained by the Federal Reserve Bank of New York pursuant to the TRADES
Regulations.
"TRADES REGULATIONS" means the regulations of the United States
Department of the Treasury, published at 31 C.F.R. Part 357, as amended from
time to time. Unless otherwise defined herein, all terms defined in the TRADES
Regulations are used herein as therein defined.
"TRANSFER" means:
(1) in the case of certificated securities in registered form,
delivery as provided in (S) 8-301(a) of the UCC, indorsed to the transferee or
in blank by an effective indorsement;
(2) in the case of Treasury Securities, registration of the transferee
as the owner of such Treasury Securities on TRADES; and
(3) in the case of security entitlements, including, without
limitation, security entitlements with respect to Treasury Securities, a
securities intermediary indicating by book entry that such security entitlement
4
<PAGE>
has been credited to the transferee's securities account.
"TREASURY SECURITIES" means zero-coupon U.S. Treasury Securities
(Cusip No. ________) which are the principal strips of the _____% U.S. Treasury
Securities which mature on _______________.
"UCC" means the Uniform Commercial Code as in effect in the State of
New York from time to time.
"VALUE" means, with respect to any item of Collateral on any date, as
to (1) Cash, the face amount thereof and (2) Treasury Securities or Notes, in
each case the aggregate principal amount thereof at maturity.
SECTION 2. PLEDGE; CONTROL.
SECTION 2.1 THE PLEDGE.
Each Holder, from time to time the acting through the Purchase
Contract Agent as such Holder's attorney-in-fact, hereby pledges and grants to
the Collateral Agent, as agent of and for the benefit of the Company, as
collateral security for the prompt and complete payment and performance when due
(whether at stated maturity, by acceleration or otherwise) of the Obligations, a
[continuing first priority] security interest in and to, and a lien upon and
right of set off against, all of the right, title and interest of such Holder
and the Purchase Contract Agent in and to the Collateral and (i) any Notes and
Treasury Securities constituting a part of the Securities and (ii) the
Collateral Account. The Collateral Agent shall have all of the rights, remedies
and recourses with respect to the Collateral afforded a secured party by the
UCC, in addition to, and not in limitation of, the other rights, remedies and
recourses afforded to the Collateral Agent by this Agreement.
SECTION 2.2 CONTROL; FINANCING STATEMENT.
(a) The Collateral Agent shall have control of the Collateral
Account pursuant to the provisions of Section 4 of this Agreement.
(b) On the date of initial issuance of the Securities, the
Purchase Contract Agent shall deliver to the Collateral Agent a financing
statement prepared by the Company for filing in the Office of the Secretary of
State of the State of New York, signed by the Purchase Contract Agent, as
attorney-in-fact for the Holders, as Debtors, and describing the Collateral.
SECTION 2.3 TERMINATION.
As to each Holder, this Agreement and the Pledge created hereby
shall terminate upon the satisfaction of such Holder's Obligations. Upon
termination, the Securities Intermediary shall Transfer the Collateral to the
Purchase Contract Agent for distribution to such Holder in accordance with his
interest, free and clear of any lien, pledge or security interest created
hereby.
5
<PAGE>
SECTION 3. DISTRIBUTIONS ON PLEDGED COLLATERAL.
SECTION 3.1 INCOME DISTRIBUTIONS.
All income distributions received by the Securities Intermediary
on account of the Notes or Permitted Investments from time to time held in the
Collateral Account shall be distributed to the Purchase Contract Agent for the
benefit of the applicable Holders as provided in the Purchase Contracts.
SECTION 3.2 PRINCIPAL PAYMENTS FOLLOWING TERMINATION EVENT.
All payments received by the Securities Intermediary following a
Termination Event of (1) the principal amount of Pledged Notes or (2) the
principal amount of the Pledged Treasury Securities, shall be distributed to the
Purchase Contract Agent for the benefit of the applicable Holders for
distribution to such Holders in accordance with their respective interests.
SECTION 3.3 PRINCIPAL PAYMENTS PRIOR TO OR ON PURCHASE CONTRACT SETTLEMENT
DATE.
(a) Subject to the provisions of Section 7.2, and except as
provided in clause 3.3(b) below, if no Termination Event shall have occurred,
all payments received by the Securities Intermediary of (1) the principal amount
with respect to the Pledged Notes or (2) the principal amount of Pledged
Treasury Securities, shall be held and invested in Permitted Investments until
the Purchase Contract Settlement Date and on the Purchase Contract Settlement
Date distributed to the Company as provided in Section 5.7 hereof. Any balance
remaining in the Collateral Account shall be distributed to the Purchase
Contract Agent for the benefit of the applicable Holders for distribution to
such Holders in accordance with their respective interests.
(b) All payments received by the Securities Intermediary of (A)
the principal amount of Notes or security entitlements thereto or (1) the
principal amount of Treasury Securities or security entitlements thereto, that,
in each case, have been released from the Pledge shall be distributed to the
Purchase Contract Agent for the benefit of the applicable Holders for
distribution to such Holders in accordance with their respective interests.
SECTION 3.4 PAYMENTS TO PURCHASE CONTRACT AGENT.
Payments to the Purchase Contract Agent hereunder shall be made
to the account designated by the Purchase Contract Agent for such purpose not
later than 12:00 p.m. (New York City time) on the Business Day such payment is
received by the Securities Intermediary; provided, however, that if such payment
is received on a day that is not a Business Day or after 12:00 p.m. (New York
City time) on a Business Day, then such payment shall be made no later than
10:30 a.m. (New York City time) on the next succeeding Business Day.
SECTION 3.5 ASSETS NOT PROPERLY RELEASED.
If the Purchase Contract Agent or any Holder shall receive any
principal payments on account of financial assets credited to the Collateral
Account and not released therefrom in accordance with this Agreement, the
6
<PAGE>
Purchase Contract Agent or such Holder shall hold the same as trustee of an
express trust for the benefit of the Company and, upon receipt of an Officers'
Certificate (as defined in the Purchase Contract Agreement) of the Company so
directing, promptly deliver the same to the Securities Intermediary for credit
to the Collateral Account or to the Company for application to the obligations
of the Holders under the related Purchase Contracts, and the Purchase Contract
Agent and Holders shall acquire no right, title or interest in any such payments
of principal amounts so received.
SECTION 4. CONTROL.
SECTION 4.1 ESTABLISHMENT OF COLLATERAL ACCOUNT.
The Securities Intermediary hereby confirms that:
(1) the Securities Intermediary has established the Collateral
Account;
(2) the Collateral Account is a securities account;
(3) subject to the terms of this Agreement, the Securities
Intermediary shall treat the Purchase Contract Agent as entitled to exercise the
rights that comprise any financial asset credited to the Collateral Account;
(4) all property delivered to the Securities Intermediary
pursuant to this Agreement or the Purchase Contract Agreement will be credited
promptly to the Collateral Account;
(5) all securities or other property underlying any financial
assets credited to the Collateral Account shall be registered in the name of the
Securities Intermediary, indorsed to the Securities Intermediary, or in blank or
credited to another securities account maintained in the name of the Securities
Intermediary, and in no case will any financial asset credited to the Collateral
Account be registered in the name of the Purchase Contract Agent or any Holder,
payable to the order of the Purchase Contract Agent or any Holder or specially
indorsed to the Purchase Contract Agent or any Holder.
SECTION 4.2 TREATMENT AS FINANCIAL ASSETS.
Each item of property (whether investment property, financial
asset, security, instrument or cash) credited to the Collateral Account shall be
treated as a financial asset.
SECTION 4.3 SOLE CONTROL BY COLLATERAL AGENT.
Except as provided in Section 6, at all times prior to the
termination of the Pledge, the Collateral Agent shall have sole control of the
Collateral Account, and the Securities Intermediary shall take instructions and
directions with respect to the Collateral Account solely from the Collateral
Agent. If at any time the Securities Intermediary shall receive an entitlement
order issued by the Collateral Agent and relating to the Collateral Account, the
Securities Intermediary shall comply with such entitlement order without further
consent by the Purchase Contract Agent or any Holder or any other Person. Until
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termination of the Pledge, the Securities Intermediary will not comply with any
entitlement orders issued by the Purchase Contract Agent or any Holder.
SECTION 4.4 SECURITIES INTERMEDIARY'S LOCATION.
The Collateral Account, and the rights and obligations of the
Securities Intermediary, the Collateral Agent, the Purchase Contract Agent and
the Holders with respect thereto, shall be governed by the laws of the State of
New York. Regardless of any provision in any other agreement, for purposes of
the UCC, New York shall be deemed to be the Securities
Intermediary's location.
SECTION 4.5 NO OTHER CLAIMS.
Except for the claims and interest of the Collateral Agent and of
the Purchase Contract Agent and the Holders in the Collateral Account, the
Securities Intermediary does not know of any claim to, or interest in, the
Collateral Account or in any financial asset credited thereto. If any person
asserts any lien, encumbrance or adverse claim (including any writ, garnishment,
judgment, warrant of attachment, execution or similar process) against the
Collateral Account or in any financial asset carried therein, the Securities
Intermediary will promptly notify the Collateral Agent and the Purchase Contract
Agent.
SECTION 4.6 INVESTMENT AND RELEASE.
All proceeds of financial assets from time to time deposited in
the Collateral Account shall be invested and reinvested as provided in this
Agreement. At all times prior to termination of the Pledge, no property shall be
released from the Collateral Account except in accordance with this Agreement or
upon written instructions of the Collateral Agent.
SECTION 4.7 STATEMENTS AND CONFIRMATIONS.
The Securities Intermediary will promptly send copies of all
statements, confirmations and other correspondence concerning the Collateral
Account and any financial assets credited thereto simultaneously to each of the
Purchase Contract Agent and the Collateral Agent at their addresses for notices
under this Agreement.
SECTION 4.8 TAX ALLOCATIONS.
All items of income, gain, expense and loss recognized in the
Collateral Account shall be reported to the Internal Revenue Service and all
state and local taxing authorities under the names and taxpayer identification
numbers of the holders which are the beneficial owners thereof.
SECTION 4.9 NO OTHER AGREEMENTS.
The Securities Intermediary has not entered into, and prior to
the termination of the Pledge will not enter into, any agreement with any other
Person relating to the Collateral Account or any financial assets credited
thereto, including, without limitation, any agreement to comply with entitlement
orders of any Person other than the Collateral Agent.
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SECTION 4.10 POWERS COUPLED WITH AN INTEREST.
The rights and powers granted in this Section 4 to the Collateral
Agent have been granted in order to perfect its security interests in the
Collateral Account, are powers coupled with an interest and will be affected
neither by the bankruptcy of the Purchase Contract Agent or any Holder nor by
the lapse of time. The obligations of the Securities Intermediary under this
Section 4 shall continue in effect until the termination of the Pledge.
SECTION 5. INITIAL DEPOSIT; ESTABLISHMENT OF TREASURY SPC UNITS AND
REESTABLISHMENT OF SPC UNITS.
SECTION 5.1 INITIAL DEPOSIT OF NOTES.
Prior to or concurrently with the execution and delivery of this
Agreement, the Purchase Contract Agent, on behalf of the initial Holders of the
SPC Units, shall Transfer to the Securities Intermediary, for credit to the
Collateral Account, the Notes or security entitlements relating thereto, and the
Securities Intermediary shall indicate by book-entry that a securities
entitlement to such Notes has been credited to the Collateral Account.
SECTION 5.2 ESTABLISHMENT OF TREASURY SPC UNITS.
(a) At any time prior to or on the seventh Business Day
immediately preceding the Purchase Contract Settlement Date, a Holder of SPC
Units shall have the right to establish or reestablish Treasury SPC Units by
substitution of Treasury Securities or security entitlements thereto for the
Pledged Notes comprising a part of such Holder's SPC Units in integral multiples
of 20 SPC Units by:
(1) transferring to the Securities Intermediary for credit to the
Collateral Account Treasury Securities or security entitlements thereto having a
Value equal to the principal amount of the Pledged Notes to be released,
accompanied by a notice, substantially in the form of Exhibit C to the Purchase
Contract Agreement, whereupon the Purchase Contract Agent shall deliver to the
Collateral Agent a notice, substantially in the form of Exhibit A hereto, (A)
stating that such Holder has Transferred Treasury Securities or security
entitlements thereto to the Securities Intermediary for credit to the Collateral
Account, (B) stating the Value of the Treasury Securities or security
entitlements thereto Transferred by such Holder and (C) requesting that the
Collateral Agent release from the Pledge the Pledged Notes that are a component
of such SPC Units; and
(2) delivering the related SPC Units to the Purchase Contract
Agent.
Upon receipt of such notice and confirmation that Treasury
Securities or security entitlements thereto have been credited to the Collateral
Account as described in such notice, the Collateral Agent shall instruct the
Securities Intermediary by a notice, substantially in the form of Exhibit B
hereto, to release such Pledged Notes from the Pledge by Transfer to the
Purchase Contract Agent for distribution to such Holder, free and clear of any
lien, pledge or security interest created hereby.
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(b) Upon credit to the Collateral Account of Treasury Securities
or security entitlements thereto delivered by a Holder of SPC Units and receipt
of the related instruction from the Collateral Agent, the Securities
Intermediary shall release the Pledged Notes and shall promptly transfer the
same to the Purchase Contract Agent for distribution to such Holder, free and
clear of any lien, pledge or security interest created hereby.
SECTION 5.3 REESTABLISHMENT OF SPC UNITS.
(a) At any time prior to or on the seventh Business Day
immediately preceding the Purchase Contract Settlement Date, a Holder of
Treasury SPC Units shall have the right to reestablish SPC Units by substitution
of Notes or security entitlements thereto for Pledged Treasury Securities in
integral multiples of 20 Treasury SPC Units by:
(1) transferring to the Securities Intermediary for credit to the
Collateral Account Notes or security entitlements thereto having a principal
amount equal to the Value of the Pledged Treasury Securities to be released,
accompanied by a notice, substantially in the form of Exhibit C to the Purchase
Contract Agreement, whereupon the Purchase Contract Agent shall deliver to the
Collateral Agent a notice, substantially in the form of Exhibit C hereto, (A)
stating that such Holder has Transferred Notes or security entitlements thereto
to the Securities Intermediary for credit to the Collateral Account and (B)
requesting that the Collateral Agent release from the Pledge the Pledged
Treasury Securities related to such Treasury SPC Units; and
(2) delivering the related Treasury SPC Units to the Purchase
Contract Agent.
Upon receipt of such notice and confirmation that Notes or
security entitlements thereto have been credited to the Collateral Account as
described in such notice, the Collateral Agent shall instruct the Securities
Intermediary by a notice in the form provided in Exhibit D hereto to release
such Pledged Treasury Securities from the Pledge by Transfer to the Purchase
Contract Agent for distribution to such Holder.
(b) Upon credit to the Collateral Account of Notes or security
entitlements thereto, and receipt of the related instruction from the Collateral
Agent, the Securities Intermediary shall release the applicable Pledged Treasury
Securities and shall promptly Transfer the same to the Purchase Contract Agent
for distribution to such Holder, free and clear of any lien, pledge or security
interest created hereby.
SECTION 5.4 TERMINATION EVENT.
(a) Upon receipt by the Collateral Agent of written notice from
the Company or the Purchase Contract Agent that a Termination Event has
occurred, the Collateral Agent shall release all Collateral from the Pledge and
shall promptly Transfer:
(1) any Pledged Notes; and
(2) any Pledged Treasury Securities, to the Purchase Contract
Agent for the benefit of the Holders for distribution to such Holders in
accordance with their respective interests, free and clear of any lien, pledge
or security interest or other interest created hereby.
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(b) If such Termination Event shall result from the Company's
becoming a debtor under the Bankruptcy Code, and if the Collateral Agent shall
for any reason fail promptly to effectuate the release and Transfer of all
Pledged Notes or the Pledged Treasury Securities, as the case may be, as
provided by this Section 5.4, the Purchase Contract Agent shall:
(1) use its best efforts to obtain an opinion of a nationally
recognized law firm reasonably acceptable to the Collateral Agent to the effect
that, as a result of the Company's being the debtor in such a bankruptcy case,
the Collateral Agent will not be prohibited from releasing or Transferring the
Collateral as provided in this Section 5.4, and shall deliver such opinion to
the Collateral Agent within ten days after the occurrence of such Termination
Event, and if (A) the Purchase Contract Agent shall be unable to obtain such
opinion within ten days after the occurrence of such Termination Event or (B)
the Collateral Agent shall continue, after delivery of such opinion, to refuse
to effectuate the release and Transfer of all Pledged Notes, all the Pledged
Treasury Securities or the Proceeds of any of the foregoing, as the case may be,
as provided in this Section 5.4, then the Purchase Contract Agent shall within
fifteen days after the occurrence of such Termination Event commence an action
or proceeding in the court having jurisdiction of the Company's case under the
Bankruptcy Code seeking an order requiring the Collateral Agent to effectuate
the release and transfer of all Pledged Notes or all the Pledged Treasury
Securities, as the case may be, as provided by this Section 5.4; or
(2) commence an action or proceeding like that described in
clause 5.4(b)(1)(B) hereof within ten days after the occurrence of such
Termination Event.
SECTION 5.5 CASH SETTLEMENT.
(a) Upon receipt by the Collateral Agent of (1) a notice from the
Purchase Contract Agent promptly after the receipt by the Purchase Contract
Agent of a notice from a Holder of SPC Units or Treasury PEP Units has elected,
in accordance with the procedures specified in Section 5.4(a)(i) or (d)(i) of
the Purchase Contract Agreement, respectively, to effect a Cash Settlement and
(2) payment by such Holder by deposit in the Collateral Account prior to or on
11:00 a.m. (New York City time) on the fifth Business Day immediately preceding
the Purchase Contract Settlement Date of the Purchase Price in lawful money of
the United States by certified or cashier's check or wire transfer of
immediately available funds payable to or upon the order of the Securities
Intermediary, then the Collateral Agent shall:
(1) instruct the Securities Intermediary promptly to invest any
such Cash in Permitted Investments;
(2) release from the Pledge (i) in the case of a Holder of SPC
Units, the related Pledged Notes or (ii) in the case of a Holder of Treasury SPC
Units, the related Pledged Treasury Securities with a principal amount equal to
the product of (x) the Stated Amount times (y) the number of Purchase Contracts
as to which such Holder has elected to effect a Cash Settlement pursuant to this
Section 5.5(a); and
(3) instruct the Securities Intermediary to Transfer all such
Pledged Notes or Pledged Treasury Securities, as the case may be, to the
Purchase Contract Agent for the benefit of such Holder, in each case free and
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clear of the Pledge created hereby, for distribution to such Holder.
Upon receipt of the proceeds upon the maturity of the Permitted
Investments on the Purchase Contract Settlement Date, the Collateral Agent shall
(A) instruct the Securities Intermediary to pay the portion of such proceeds and
deliver any certified or cashier's checks received, in an aggregate amount equal
to the Purchase Price, to the Company on the Purchase Contract Settlement Date,
and (B) instruct the Securities Intermediary to release any amounts in respect
of the interest earned from such Permitted Investments to the Purchase Contract
Agent for distribution to the such Holder.
(b) If a Holder of SPC Units notifies the Purchase Contract Agent
as provided in paragraph 5.4(a)(i) of the Purchase Contract Agreement of its
intention to pay the Purchase Price in cash, but fails to make such payment as
required by paragraph 5.4(a)(ii) of the Purchase Contract Agreement, such Holder
shall be deemed to have consented to the disposition of such Holder's Pledged
Notes in accordance with paragraph 5.4(a)(iii) of the Purchase Contract
Agreement.
(c) If a Holder of Treasury SPC Units notifies the Purchase
Contract Agent as provided in paragraph 5.4(d)(i) of the Purchase Contract
Agreement of its intention to pay the Purchase Price in cash, but fails to make
such payment as required by paragraph 5.4(d)(ii) of the Purchase Contract
Agreement, such Holder shall be deemed to have elected to pay the Purchase Price
in accordance with paragraph 5.4(d)(iii) of the Purchase Contract Agreement.
(d) Prior to 3:00 p.m. (New York City time) on the fourth
Business Day immediately preceding the Purchase Contract Settlement Date, the
Securities Intermediary shall deliver to the Purchase Contract Agent a notice,
substantially in the form of Exhibit E hereto, stating (i) the amount of cash
that it has received with respect to the Cash Settlement of SPC Units and (ii)
the amount of cash that it has received with respect to the Cash Settlement of
Treasury SPC Units.
SECTION 5.6 EARLY SETTLEMENT.
Upon receipt by the Collateral Agent of a notice from the
Purchase Contract Agent that a Holder of Securities has elected to effect Early
Settlement of its obligations under the Purchase Contracts forming a part of
such Securities in accordance with the terms of the Purchase Contracts and
Section 5.9 of the Purchase Contract Agreement (which notice shall set forth the
number of such Purchase Contracts as to which such Holder has elected to effect
Early Settlement), and that the Purchase Contract Agent has received from such
Holder, and paid to the Company as confirmed in writing by the Company, the
related Early Settlement Amounts pursuant to the terms of the Purchase Contracts
and the Purchase Contract Agreement and that all conditions to such Early
Settlement have been satisfied, then the Collateral Agent shall release from the
Pledge, (1) Pledged Notes in the case of a Holder of SPC Units or (2) Pledged
Treasury Securities, in the case of a Holder of Treasury SPC Units, with a Value
equal to the product of (x) the Stated Amount times (y) the number of Purchase
Contracts as to which such Holder has elected to effect Early Settlement, and
shall instruct the Securities Intermediary to Transfer all such Pledged Notes or
Pledged Treasury Securities, as the case may be, to the Purchase Contract Agent
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for the benefit of such Holder, in each case free and clear of the Pledge
created hereby, for distribution to such Holder.
SECTION 5.7 APPLICATION OF PROCEEDS SETTLEMENT.
(a) If a Holder of SPC Units has not elected to make an effective
Cash Settlement by notifying the Purchase Contract Agent in the manner provided
for in Section 5.4(a)(i) in the Purchase Contract Agreement, or has given such
notice but failed to deliver the required cash prior to 11:00 A.M. (New York
City time) on the fifth Business Day immediately preceding the Purchase Contract
Settlement Date, such Holder shall be deemed to have elected to pay for the
shares of Common Stock to be issued under such Purchase Contracts from the
Proceeds of the related Pledged Notes. In such event, the Collateral Agent shall
instruct the Securities Intermediary to Transfer the related Pledged Notes to
the Remarketing Agent for remarketing. Upon receiving such Pledged Notes, the
Remarketing Agent, pursuant to the terms of the Remarketing Agreement, will use
reasonable efforts to remarket such Pledged Notes on such date. The Remarketing
Agent will deposit the entire amount of the Proceeds of such remarketing in the
Collateral Account. On the Purchase Contract Settlement Date, the Collateral
Agent shall instruct the Securities Intermediary to apply a portion of the
Proceeds from such remarketing equal to the aggregate principal amount of such
Pledged Notes to satisfy in full such Holder's obligations to pay the Purchase
Price to purchase the shares of Common Stock under the related Purchase
Contracts. The Collateral Agent shall also instruct the Securities Intermediary
to apply a portion of the Proceeds of such remarketing equal to $[.1250] per
Pledged Note to pay the Remarketing Agent for its services rendered in
connection with the remarketing. The balance of the Proceeds from such
remarketing, if any, shall be transferred to the Purchase Contract Agent for the
benefit of such Holder for distribution to such Holder.
If the Remarketing Agent advises the Collateral Agent in writing
that there has been a Failed Remarketing, thus resulting in an event of default
under the Purchase Contract Agreement and hereunder, the Collateral Agent, for
the benefit of the Company shall, at the written direction of the Company,
dispose of the Pledged Notes in accordance with applicable law and satisfy in
full, from such disposition, such Holder's obligations to pay the Purchase Price
for the shares of PP&L Resources, Inc.
(b) If a Holder of Treasury SPC Units has not elected to make an
effective Cash Settlement by notifying the Purchase Contract Agent in the manner
provided for in Section 5.4(d)(i) of the Purchase Contract Agreement, or has
given such notice but failed to make such payment in the manner required by
Section 5.4(d)(ii) of the Purchase Contract Agreement, such Holder shall be
deemed to have elected to pay for the shares of Common Stock to be issued under
such Purchase Contracts from the Proceeds of the related Pledged Treasury
Securities. Upon maturity of the Pledged Treasury Securities, the Securities
Intermediary, at the written direction of the Collateral Agent, shall invest the
Cash Proceeds of the maturing Pledged Treasury Securities in Permitted
Investments. Without receiving any instruction from any such Holder, the
Collateral Agent shall apply the Proceeds of the related Pledged Treasury
Securities to the settlement of such Purchase Contracts on the Purchase Contract
Settlement Date. In the event the sum of the Proceeds from the related Pledged
Treasury Securities and the investment earnings from the investment in Permitted
Investments exceeds the aggregate Purchase Price of the Purchase Contracts being
settled thereby, the Collateral Agent shall instruct the Securities Intermediary
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to distribute such excess, when received, to the Purchase Contract Agent for the
benefit of such Holder for distribution to such Holder.
SECTION 6. VOTING RIGHTS.
The Purchase Contract Agent may exercise, or refrain from
exercising, any and all voting and other consensual rights pertaining to the
Pledged Notes or any part thereof for any purpose not inconsistent with the
terms of this Agreement and in accordance with the terms of the Purchase
Contract Agreement; provided, that the Purchase Contract Agent shall not
exercise or shall not refrain from exercising such right, as the case may be,
if, in the judgment of the Purchase Contract Agent, such action would impair or
otherwise have a material adverse effect on the value of all or any of the
Pledged Notes; and provided, further, that the Purchase Contract Agent shall
give the Company and the Collateral Agent at least five days' prior written
notice of the manner in which it intends to exercise, or its reasons for
refraining from exercising, any such right. Upon receipt of any notices and
other communications in respect of any Pledged Notes, including notice of any
meeting at which holders of the Notes are entitled to vote or solicitation of
consents, waivers or proxies of holders of the Notes, the Collateral Agent shall
use reasonable efforts to send promptly to the Purchase Contract Agent such
notice or communication, and as soon as reasonably practicable after receipt of
a written request therefor from the Purchase Contract Agent, execute and deliver
to the Purchase Contract Agent such proxies and other instruments in respect of
such Pledged Notes (in form and substance satisfactory to the Collateral Agent)
as are prepared by the Purchase Contract Agent with respect to the Pledged
Notes.
SECTION 7. RIGHTS AND REMEDIES.
SECTION 7.1 RIGHTS AND REMEDIES OF THE COLLATERAL AGENT.
(a) In addition to the rights and remedies specified in Section
5.5 hereof or otherwise available at law or in equity, after an event of default
(as specified in Section 7.1(b) below) hereunder, the Collateral Agent shall
have all of the rights and remedies with respect to the Collateral of a secured
party under the UCC (whether or not the UCC is in effect in the jurisdiction
where the rights and remedies are asserted) and the TRADES Regulations and such
additional rights and remedies to which a secured party is entitled under the
laws in effect in any jurisdiction where any rights and remedies hereunder may
be asserted. Without limiting the generality of the foregoing, such remedies may
include, to the extent permitted by applicable law, (1) retention of the Pledged
Notes in full satisfaction of the Holders' obligations under the Purchase
Contracts or (2) sale of the Pledged Notes in one or more public or private
sales and application of the proceeds in full satisfaction of the Holders'
obligations under the Purchase Contracts.
(b) Without limiting any rights or powers otherwise granted by
this Agreement to the Collateral Agent, in the event the Collateral Agent is
unable to make payments to the Company on account of principal payments of any
Pledged Treasury Securities as provided in Section 3 hereof, in satisfaction of
the Obligations of the Holder of the Treasury SPC Units of which such Pledged
Treasury Securities are a part under the related Purchase Contracts, the
inability to make such payments shall constitute an event of default hereunder
and the Collateral Agent shall have and may exercise, with reference to such
Pledged Treasury Securities and such Obligations of such Holder, any and all of
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the rights and remedies available to a secured party under the UCC and the
TRADES Regulations after default by a debtor, and as otherwise granted herein or
under any other law.
(c) Without limiting any rights or powers otherwise granted by
this Agreement to the Collateral Agent, the Collateral Agent is hereby
irrevocably authorized to receive and collect all payments of (i) the principal
amount of the Pledged Notes and (ii) the principal amount of the Pledged
Treasury Securities subject, in each case, to the provisions of Section 3
hereof, and as otherwise granted herein.
(d) The Purchase Contract Agent individually and as attorney-in-
fact for each Holder of Securities, each Holder of Securities agrees that, from
time to time, upon the written request of the Collateral Agent, the Purchase
Contract Agent or such Holder shall execute and deliver such further documents
and do such other acts and things as the Collateral Agent may reasonably request
in order to maintain the Pledge, and the perfection and priority thereof, and to
confirm the rights of the Collateral Agent hereunder. The Purchase Contract
Agent shall have no liability to any Holder for executing any documents or
taking any such acts requested by the Collateral Agent hereunder, except for
liability for its own negligent acts, its own negligent failure to act or its
own willful misconduct.
SECTION 7.2 SUBSTITUTIONS.
Whenever a Holder has the right to substitute Treasury
Securities, Notes or security entitlements to either of them for financial
assets held in the Collateral Account, such substitution shall not constitute a
novation of the security interest created hereby.
SECTION 8. REPRESENTATIONS AND WARRANTIES; COVENANTS.
SECTION 8.1 REPRESENTATIONS AND WARRANTIES.
Each Holder from time to time, acting through the Purchase
Contract Agent as attorney-in-fact (it being understood that the Purchase
Contract Agent shall not be liable for any representation or warranty made by or
on behalf of a Holder), hereby represents and warrants to the Collateral Agent
(with respect to such Holder's interest in the Collateral), which
representations and warranties shall be deemed repeated on each day a Holder
Transfers Collateral that:
(1) such Holder has the power to grant a security interest in
and lien on the Collateral;
(2) such Holder is the sole beneficial owner of the Collateral
and, in the case of Collateral delivered in physical form, is the sole holder of
such Collateral and is the sole beneficial owner of, or has the right to
Transfer, the Collateral it Transfers to the Securities Intermediary for credit
to the Collateral Account, free and clear of any security interest, lien,
encumbrance, call, liability to pay money or other restriction other than the
security interest and lien granted under Section 2 hereof;
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(3) upon the Transfer of the Collateral to the Securities
Intermediary for credit to the Collateral Account, the Collateral Agent, for the
benefit of the Company, will have a valid and perfected first priority security
interest therein (assuming that any central clearing operation or any securities
intermediary or other entity not within the control of the Holder involved in
the Transfer of the Collateral, including the Collateral Agent and the
Securities Intermediary, gives the notices and takes the action required of it
hereunder and under applicable law for perfection of that interest and assuming
the establishment and exercise of control pursuant to Section 4 hereof); and
(4) the execution and performance by the Holder of its
obligations under this Agreement will not result in the creation of any security
interest, lien or other encumbrance on the Collateral other than the security
interest and lien granted under Section 2 hereof or violate any provision of any
existing law or regulation applicable to it or of any mortgage, charge, pledge,
indenture, contract or undertaking to which it is a party or which is binding on
it or any of its assets.
SECTION 8.2 COVENANTS.
The Holders from time to time, acting through the Purchase
Contract Agent as their attorney-in-fact (it being understood that the Purchase
Contract Agent shall not be liable for any covenant made by or on behalf of a
Holder), hereby covenant to the Collateral Agent that for so long as the
Collateral remains subject to the Pledge:
(1) neither the Purchase Contract Agent nor such Holders will
create or purport to create or allow to subsist any mortgage, charge, lien,
pledge or any other security interest whatsoever over the Collateral or any part
of it other than pursuant to this Agreement; and
(2) neither the Purchase Contract Agent nor such Holders will
sell or otherwise dispose (or attempt to dispose) of the Collateral or any part
of it except for the beneficial interest therein, subject to the Pledge
hereunder, transferred in connection with the Transfer of the Securities.
SECTION 9. THE COLLATERAL AGENT AND THE SECURITIES INTERMEDIARY.
It is hereby agreed as follows:
SECTION 9.1 APPOINTMENT, POWERS AND IMMUNITIES.
The Collateral Agent shall act as agent for the Company hereunder
with such powers as are specifically vested in the Collateral Agent by the terms
of this Agreement, together with such other powers as are reasonably incidental
thereto. The Collateral Agent shall:
(1) have no duties or responsibilities except those expressly set
forth in this Agreement and no implied covenants or obligations shall be
inferred from this Agreement against the Collateral Agent, nor shall the
Collateral Agent be bound by the provisions of any agreement by any party hereto
beyond the specific terms hereof;
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(2) not be responsible for any recitals contained in this
Agreement, or in any certificate or other document referred to or provided for
in, or received by it under, this Agreement, the Securities or the Purchase
Contract Agreement, or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement (other than as against the
Collateral Agent), the Securities or the Purchase Contract Agreement or any
other document referred to or provided for herein or therein or for any failure
by the Company or any other Person (except the Collateral Agent) to perform any
of its obligations hereunder or thereunder or for the perfection, priority or,
except as expressly required hereby, maintenance of any security interest
created hereunder;
(3) not be required to initiate or conduct any litigation or
collection proceedings hereunder (except pursuant to directions furnished under
Section 9.2 hereof, subject to Section 9.6 hereof);
(4) not be responsible for any action taken or omitted to be
taken by it hereunder or under any other document or instrument referred to or
provided for herein or in connection herewith or therewith, except for its own
negligence or willful misconduct; and
(5) not be required to advise any party as to selling or
retaining, or taking or refraining from taking any action with respect to, any
securities or other property deposited hereunder.
Subject to the foregoing, during the term of this Agreement, the
Collateral Agent shall take all reasonable action in connection with the
safekeeping and preservation of the Collateral hereunder.
No provision of this Agreement shall require the Collateral Agent
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder. In no event shall the Collateral
Agent be liable for any amount in excess of the Value of the Collateral.
Notwithstanding the foregoing, each of the Collateral Agent and the Securities
Intermediary in its individual capacity hereby waives any right of setoff,
bankers' lien, liens or perfection rights as securities intermediary or any
counterclaim with respect to any of the Collateral.
SECTION 9.2 INSTRUCTIONS OF THE COMPANY.
The Company shall have the right, by one or more instruments in
writing executed and delivered to the Collateral Agent, to direct the time,
method and place of conducting any proceeding for the realization of any right
or remedy available to the Collateral Agent, or of exercising any power
conferred on the Collateral Agent, or to direct the taking or refraining from
taking of any action authorized by this Agreement; provided, however, that (i)
such direction shall not conflict with the provisions of any law or of this
Agreement and (ii) the Collateral Agent shall be adequately indemnified as
provided herein. Nothing contained in this Section 9.2 shall impair the right of
the Collateral Agent in its discretion to take any action or omit to take any
action which it deems proper and which is not inconsistent with such direction.
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SECTION 9.3 RELIANCE BY COLLATERAL AGENT AND SECURITIES
INTERMEDIARY.
Each of the Securities Intermediary and the Collateral Agent
shall be entitled to rely upon any certification, order, judgment, opinion,
notice or other communication (including, without limitation, any thereof by
telephone, telecopy, telex or facsimile) believed by it to be genuine and
correct and to have been signed or sent by or on behalf of the proper Person or
Persons (without being required to determine the correctness of any fact stated
therein) and upon advice and statements of legal counsel and other experts
selected by the Collateral Agent and the Securities Intermediary. As to any
matters not expressly provided for by this Agreement, the Collateral Agent and
the Securities Intermediary shall in all cases be fully protected in acting, or
in refraining from acting, hereunder in accordance with instructions given by
the Company in accordance with this Agreement.
SECTION 9.4 RIGHTS IN OTHER CAPACITIES.
The Collateral Agent and the Securities Intermediary and their
affiliates may (without having to account therefor to the Company) accept
deposits from, lend money to, make their investments in and generally engage in
any kind of banking, trust or other business with the Purchase Contract Agent or
the Securities Intermediary, as the case may be, any other Person interested
herein and any Holder of Securities (and any of their respective subsidiaries or
affiliates) as if it were not acting as the Collateral Agent or the Securities
Intermediary, as the case may be, and the Collateral Agent, the Securities
Intermediary and their affiliates may accept fees and other consideration from
the Purchase Contract Agent and any Holder of Securities without having to
account for the same to the Company; provided that each of the Securities
Intermediary and the Collateral Agent covenants and agrees with the Company that
it shall not accept, receive or permit there to be created in favor of itself
and shall take no affirmative action to permit there to be created in favor of
any other Person, any security interest, lien or other encumbrance of any kind
in or upon the Collateral other than the lien created by the Pledge.
SECTION 9.5 NON-RELIANCE ON COLLATERAL AGENT AND SECURITIES
INTERMEDIARY.
Neither the Securities Intermediary nor the Collateral Agent
shall be required to keep itself informed as to the performance or observance by
the Purchase Contract Agent or any Holder of Securities of this Agreement, the
Purchase Contract Agreement, the Securities or any other document referred to or
provided for herein or therein or to inspect the properties or books of the
Purchase Contract Agent or any Holder of Securities. Neither the Collateral
Agent nor the Securities Intermediary shall have any duty or responsibility to
provide the Company with any credit or other information concerning the affairs,
financial condition or business of the Purchase Contract Agent or any Holder of
Securities (or any of their respective affiliates) that may come into the
possession of the Collateral Agent or the Securities Intermediary or any of
their respective affiliates.
18
<PAGE>
SECTION 9.6 COMPENSATION AND INDEMNITY.
The Company agrees to:
(1) pay the Collateral Agent and the Securities Intermediary from
time to time such compensation as shall be agreed in writing between the Company
and the Collateral Agent or the Securities Intermediary, as the case may be, for
all services rendered by them hereunder; and
(2) indemnify the Collateral Agent and the Securities
Intermediary for, and hold each of them harmless from and against, any loss,
liability or reasonable out-of-pocket expense incurred without negligence,
willful misconduct or bad faith on its part, arising out of or in connection
with the acceptance or administration of its powers and duties under this
Agreement, including the reasonable out-of-pocket costs and expenses (including
reasonable fees and expenses of counsel) of defending itself against any claim
or liability in connection with the exercise or performance of such powers and
duties.
The Collateral Agent and the Securities Intermediary shall each
promptly notify the Company of any third party claim which may give rise to
indemnity hereunder and give the Company the opportunity to participate in the
defense of such claim with counsel reasonably satisfactory to the indemnified
party, and no such claim shall be settled without the written consent of the
Company, which consent shall not be unreasonably withheld.
SECTION 9.7 FAILURE TO ACT.
In the event of any ambiguity in the provisions of this Agreement
or any dispute between or conflicting claims by or among the parties hereto or
any other Person with respect to any funds or property deposited hereunder, the
Collateral Agent and the Securities Intermediary shall be entitled, after prompt
notice to the Company and the Purchase Contract Agent, at its sole option, to
refuse to comply with any and all claims, demands or instructions with respect
to such property or funds so long as such dispute or conflict shall continue,
and the Collateral Agent and the Securities Intermediary shall not be or become
liable in any way to any of the parties hereto for its failure or refusal to
comply with such conflicting claims, demands or instructions. he Collateral
Agent and the Securities Intermediary shall be entitled to refuse to act until
either:
(1) such conflicting or adverse claims or demands shall have been
finally determined by a court of competent jurisdiction or settled by agreement
between the conflicting parties as evidenced in a writing satisfactory to the
Collateral Agent or the Securities Intermediary; or
(2) the Collateral Agent or the Securities Intermediary shall
have received security or an indemnity satisfactory to it sufficient to save it
harmless from and against any and all loss, liability or reasonable out-of-
pocket expense which it may incur by reason of its acting.
The Collateral Agent and the Securities Intermediary may in
addition elect to commence an interpleader action or seek other judicial relief
or orders as the Collateral Agent or the Securities Intermediary may deem
necessary. Notwithstanding anything contained herein to the contrary, neither
the Collateral Agent nor the Securities Intermediary shall be required to take
19
<PAGE>
any action that is in its opinion contrary to law or to the terms of this
Agreement, or which would in its opinion subject it or any of its officers,
employees or directors to liability.
SECTION 9.8 RESIGNATION OF COLLATERAL AGENT AND SECURITIES
INTERMEDIARY.
(a) Subject to the appointment and acceptance of a successor
Collateral Agent as provided below:
(1) the Collateral Agent may resign at any time by giving notice
thereof to the Company and the Purchase Contract Agent as attorney-in-fact for
the Holders of Securities;
(2) the Collateral Agent may be removed at any time by the
Company; and
(3) if the Collateral Agent fails to perform any of its material
obligations hereunder in any material respect for a period of not less than 20
days after receiving written notice of such failure by the Purchase Contract
Agent and such failure shall be continuing, the Collateral Agent may be removed
by the Purchase Contract Agent.
The Purchase Contract Agent shall promptly notify the Company of
any removal of the Collateral Agent pursuant to clause (3) of the immediately
preceding sentence. Upon any such resignation or removal, the Company shall have
the right to appoint a successor Collateral Agent. If no successor Collateral
Agent shall have been so appointed and shall have accepted such appointment
within 30 days after the retiring Collateral Agent's giving of notice of
resignation or such removal, then the retiring Collateral Agent may petition any
court of competent jurisdiction for the appointment of a successor Collateral
Agent. The Collateral Agent shall be a bank which has an office in New York City
with a combined capital and surplus of at least $50,000,000 and shall not be the
Purchase Contract Agent or any of its affiliates. Upon the acceptance of any
appointment as Collateral Agent hereunder by a successor Collateral Agent, such
successor Collateral Agent shall thereupon succeed to and become vested with all
the rights, powers, privileges and duties of the retiring Collateral Agent, and
the retiring Collateral Agent shall take all appropriate action to transfer any
money and property held by it hereunder (including the Collateral) to such
successor Collateral Agent. The retiring Collateral Agent shall, upon such
succession, be discharged from its duties and obligations as Collateral Agent
hereunder. After any retiring Collateral Agent's resignation hereunder as
Collateral Agent, the provisions of this Section 9 shall continue in effect for
its benefit in respect of any actions taken or omitted to be taken by it while
it was acting as the Collateral Agent.
(b) Subject to the appointment and acceptance of a successor
Securities Intermediary as provided below:
(1) the Securities Intermediary may resign at any time by giving
notice thereof to the Company and the Purchase Contract Agent as attorney-
in-fact for the Holders of Securities;
(2) the Securities Intermediary may be removed at any time by the
Company; and
20
<PAGE>
(3) if the Securities Intermediary fails to perform any of its
material obligations hereunder in any material respect for a period of not less
than 20 days after receiving written notice of such failure by the Purchase
Contract Agent and such failure shall be continuing, the Securities Intermediary
may be removed by the Purchase Contract Agent.
The Purchase Contract Agent shall promptly notify the Company of
any removal of the Securities Intermediary pursuant to clause (3) of the
immediately preceding sentence. Upon any such resignation or removal, the
Company shall have the right to appoint a successor Securities Intermediary. If
no successor Securities Intermediary shall have been so appointed and shall have
accepted such appointment within 30 days after the retiring Securities
Intermediary's giving of notice of resignation or such removal, then the
retiring Securities Intermediary may petition any court of competent
jurisdiction for the appointment of a successor Securities Intermediary. The
Securities Intermediary shall be a bank which has an office in New York City
with a combined capital and surplus of at least $50,000,000 and shall not be the
Purchase Contract Agent or any of its affiliates. Upon the acceptance of any
appointment as Securities Intermediary hereunder by a successor Securities
Intermediary, such successor Securities Intermediary shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Securities Intermediary, and the retiring Securities Intermediary shall
take all appropriate action to transfer any money and property held by it
hereunder (including the Collateral) to such successor Securities Intermediary.
The retiring Securities Intermediary shall, upon such succession, be discharged
from its duties and obligations as Securities Intermediary hereunder. After any
retiring Securities Intermediary's resignation hereunder as Securities
Intermediary, the provisions of this Section 9 shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as the Securities Intermediary.
SECTION 9.9 RIGHT TO APPOINT AGENT OR ADVISOR.
The Collateral Agent shall have the right to appoint agents or
advisors in connection with any of its duties hereunder, and the Collateral
Agent shall not be liable for any action taken or omitted by, or in reliance
upon the advice of, such agents or advisors selected in good faith. The
appointment of agents pursuant to this Section 9.9 shall be subject to prior
consent of the Company, which consent shall not be unreasonably withheld.
SECTION 9.10 SURVIVAL.
The provisions of this Section 9 shall survive termination of
this Agreement and the resignation or removal of the Collateral Agent or the
Securities Intermediary.
SECTION 9.11 EXCULPATION.
Anything contained in this Agreement to the contrary
notwithstanding, in no event shall the Collateral Agent or the Securities
Intermediary or their officers, directors, employees or agents be liable under
this Agreement to any third party for indirect, special, punitive, or
consequential loss or damage of any kind whatsoever, including lost profits,
whether or not the likelihood of such loss or damage was known to the Collateral
Agent or the Securities Intermediary, or any of them, incurred without any act
or deed that is found to be attributable to gross negligence or willful
21
<PAGE>
misconduct on the part of the Collateral Agent or the Securities Intermediary.
SECTION 10. AMENDMENT.
SECTION 10.1 AMENDMENT WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, the Collateral
Agent, the Securities Intermediary and the Purchase Contract Agent, at any time
and from time to time, may amend this Agreement, in form satisfactory to the
Company, the Collateral Agent, the Securities Intermediary and the Purchase
Contract Agent, to:
(1) evidence the succession of another Person to the Company, and
the assumption by any such successor of the covenants of the Company;
(2) evidence and provide for the acceptance of appointment
hereunder by a successor Collateral Agent, Securities Intermediary or Purchase
Contract Agent;
(3) add to the covenants of the Company for the benefit of the
Holders, or surrender any right or power herein conferred upon the Company,
provided such covenants or such surrender do not adversely affect the validity,
perfection or priority of the Pledge created hereunder; or
(4) cure any ambiguity (or formal defect), correct or supplement
any provisions herein which may be inconsistent with any other such provisions
herein, or make any other provisions with respect to such matters or questions
arising under this Agreement, provided such action shall not adversely affect
the interests of the Holders.
SECTION 10.2 AMENDMENT WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority of
the Purchase Contracts at the time outstanding, by Act of such Holders delivered
to the Company, the Purchase Contract Agent, the Securities Intermediary or the
Collateral Agent, as the case may be, the Company, the Purchase Contract Agent,
the Securities Intermediary and the Collateral Agent may amend this Agreement
for the purpose of modifying in any manner the provisions of this Agreement or
the rights of the Holders in respect of the Securities; provided, however, that
no such supplemental agreement shall, without the unanimous consent of the
Holders of each Outstanding Security adversely affected thereby:
(1) change the amount or type of Collateral underlying a
Security, impair the right of the Holder of any Security to receive
distributions on the underlying Collateral or otherwise adversely affect the
Holder's rights in or to such Collateral;
(2) otherwise effect any action that would require the consent of
the Holder of each Outstanding Security affected thereby pursuant to the
Purchase Contract Agreement if such action were effected by an agreement
supplemental thereto; or
22
<PAGE>
(3) reduce the percentage of Purchase Contracts the consent of
whose Holders is required for any such amendment;
provided that if any amendment or proposal referred to above
would adversely affect only the SPC Units or only the Treasury SPC Units, then
only the affected class of Holders as of the record date for the Holders
entitled to vote thereon will be entitled to vote on such amendment or proposal,
and such amendment or proposal shall not be effective except with the consent of
Holders of not less than a majority of such class; provided, further, that the
unanimous consent of the Holders of each outstanding Purchase Contract of such
class affected thereby shall be required to approve any amendment or proposal
specified in clauses (1) through (3) above.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed amendment, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 10.3 EXECUTION OF AMENDMENTS.
In executing any amendment permitted by this Section, the
Collateral Agent, the Securities Intermediary and the Purchase Contract Agent
shall be entitled to receive and (subject to Section 7.1 of the Purchase
Contract Agreement with respect to the Purchase Contract Agent) shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such amendment is authorized or permitted by this Agreement and that all
conditions precedent, if any, to the execution and delivery of such amendment
have been satisfied.
SECTION 10.4 EFFECT OF AMENDMENTS.
Upon the execution of any amendment under this Section, this
Agreement shall be modified in accordance therewith, and such amendment shall
form a part of this Agreement for all purposes; and every Holder of Certificates
theretofore or thereafter authenticated, executed on behalf of the Holders and
delivered under the Purchase Contract Agreement shall be bound thereby.
SECTION 10.5 REFERENCE TO AMENDMENTS.
Certificates authenticated, executed on behalf of the Holders and
delivered after the execution of any amendment pursuant to this Section may, and
shall if required by the Collateral Agent or the Purchase Contract Agent, bear a
notation in form approved by the Purchase Contract Agent and the Collateral
Agent as to any matter provided for in such amendment. If the Company shall so
determine, new Security Certificates so modified as to conform, in the opinion
of the Collateral Agent, the Purchase Contract Agent and the Company, to any
such amendment may be prepared and executed by the Company and authenticated,
executed on behalf of the Holders and delivered by the Purchase Contract Agent
in accordance with the Purchase Contract Agreement in exchange for Outstanding
Security Certificates.
23
<PAGE>
SECTION 11. MISCELLANEOUS.
SECTION 11.1 NO WAIVER.
No failure on the part of the Collateral Agent or any of its
agents to exercise, and no course of dealing with respect to, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise by the Collateral Agent or any
of its agents of any right, power or remedy hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or remedy.
The remedies herein are cumulative and are not exclusive of any remedies
provided by law.
SECTION 11.2 GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
The Company, the Collateral Agent, the Securities Intermediary
and the Holders from time to time of the Securities, acting through the Purchase
Contract Agent as their attorney-in-fact, hereby submit to the nonexclusive
jurisdiction of the United States District Court for the Southern District of
New York and of any New York state court sitting in New York City for the
purposes of all legal proceedings arising out of or relating to this Agreement
or the transactions contemplated hereby. The Company, the Collateral Agent, the
Securities Intermediary and the Holders from time to time of the Securities,
acting through the Purchase Contract Agent as their attorney-in-fact,
irrevocably waive, to the fullest extent permitted by applicable law, any
objection which they may now or hereafter have to the laying of the venue of any
such proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum.
SECTION 11.3 NOTICES.
All notices, requests, consents and other communications provided
for herein (including, without limitation, any modifications of, or waivers or
consents under, this Agreement) shall be given or made in writing (including,
without limitation, by telecopy) delivered to the intended recipient at the
"Address for Notices" specified below its name on the signature pages hereof or,
as to any party, at such other address as shall be designated by such party in a
notice to the other parties (or in the case of Holders, as may be made and
deemed given as provided in Section 1.5 and 1.6 of the Purchase Contract
Agreement). Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 11.4 SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and inure to the benefit of
the respective successors and assigns of the Company, the Collateral Agent, the
Securities Intermediary and the Purchase Contract Agent, and the Holders from
time to time of the Securities, by their acceptance of the same, shall be deemed
to have agreed to be bound by the provisions hereof and to have ratified the
24
<PAGE>
agreements of, and the grant of the Pledge hereunder by, the Purchase Contract
Agent.
SECTION 11.5 COUNTERPARTS.
This Agreement may be executed in any number of counterparts,
all of which taken together shall constitute one and the same instrument, and
any of the parties hereto may execute this Agreement by signing any such
counterpart.
SECTION 11.6 SEVERABILITY.
If any provision hereof is invalid and unenforceable in any
jurisdiction, then, to the fullest extent permitted by law, (i) the other
provisions hereof shall remain in full force and effect in such jurisdiction and
shall be liberally construed in order to carry out the intentions of the parties
hereto as nearly as may be possible and (ii) the invalidity or unenforceability
of any provision hereof in any jurisdiction shall not affect the validity or
enforceability of such provision in any other jurisdiction.
SECTION 11.7 EXPENSES, ETC.
The Company agrees to reimburse the Collateral Agent and the
Securities Intermediary for:
(1) all reasonable out-of-pocket costs and expenses of the
Collateral Agent and the Securities Intermediary (including, without limitation,
the reasonable fees and expenses of counsel to the Collateral Agent and the
Securities Intermediary), in connection with (i) the negotiation, preparation,
execution and delivery or performance of this Agreement and (ii) any
modification, supplement or waiver of any of the terms of this Agreement;
(2) all reasonable costs and expenses of the Collateral Agent and
the Securities Intermediary (including, without limitation, reasonable fees and
expenses of counsel) in connection with (i) any enforcement or proceedings
resulting or incurred in connection with causing any Holder of Securities to
satisfy its obligations under the Purchase Contracts forming a part of the
Securities and (ii) the enforcement of this Section 11.7; and
(3) all transfer, stamp, documentary or other similar taxes,
assessments or charges levied by any governmental or revenue authority in
respect of this Agreement or any other document referred to herein and all
costs, expenses, taxes, assessments and other charges incurred in connection
with any filing, registration, recording or perfection of any security interest
contemplated hereby.
SECTION 11.8 SECURITY INTEREST ABSOLUTE.
All rights of the Collateral Agent and security interests
hereunder, and all obligations of the Holders from time to time hereunder, shall
be absolute and unconditional irrespective of:
25
<PAGE>
(1) any lack of validity or enforceability of any provision of
the Purchase Contracts or the Securities or any other agreement or instrument
relating thereto;
(2) any change in the time, manner or place of payment of, or any
other term of, or any increase in the amount of, all or any of the obligations
of Holders of the Securities under the related Purchase Contracts, or any other
amendment or waiver of any term of, or any consent to any departure from any
requirement of, the Purchase Contract Agreement or any Purchase Contract or any
other agreement or instrument relating thereto; or
(3) any other circumstance which might otherwise constitute a
defense available to, or discharge of, a borrower, a guarantor or a pledgor.
26
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the day and year first above written.
PP&L RESOURCES, INC. THE CHASE MANHATTAN BANK, as Purchase
Contract Agent and as attorney-in-
fact of the Holders from time to time
of the Securities
By: By:
---------------------------- ----------------------------------
Name: Name:
Title: Title:
Address for Notices: Address for Notices:
Attention: Attention:
Telecopy: Telecopy:
, as Collateral , as
- ---------------------- ---------------------------------
Agent Securities Intermediary
By: By:
---------------------------- ----------------------------------
Name: Name:
Title: Title:
Address for Notices: Address for Notices:
Attention: Attention:
Telecopy: Telecopy:
27
<PAGE>
EXHIBIT A
INSTRUCTION
FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
(Establishment of Treasury SPC Units)
____________________________
____________________________
____________________________
Attention:__________________
Telecopy: __________________
Re: SPC Units of PP&L Resources, Inc. (the "Company")
Please refer to the Pledge Agreement, dated as of _________________
(the "Pledge Agreement"), among the Company, you, as Collateral Agent,_________
____________________, as Securities Intermediary, and the undersigned, as
Purchase Contract Agent and as attorney-in-fact for the holders of SPC Units
from time to time. Capitalized terms used herein but not defined shall have the
meaning set forth in the Pledge Agreement.
We hereby notify you in accordance with Section 5.2 of the Pledge
Agreement that the holder of securities named below (the "Holder") has elected
to substitute $__________ Value of Treasury Securities or security entitlements
thereto in exchange for an equal Value of Pledged Notes and has delivered to the
undersigned a notice stating that the Holder has Transferred such Treasury
Securities or security entitlements thereto to the Securities Intermediary, for
credit to the Collateral Account.
We hereby request that you instruct the Securities Intermediary,
upon confirmation that such Treasury Securities or security entitlements thereto
have been credited to the Collateral Account, to release to the undersigned an
equal Value of Pledged Notes in accordance with Section 5.2 of the Pledge
Agreement.
THE CHASE MANHATTAN BANK
By:
----------------------------
Name:
Title:
Date:
<PAGE>
Please print name and address of Holder electing to substitute Treasury
Securities or security entitlements thereto for the Pledged Notes:
- --------------------------------- ---------------------------------------
Name Social Security or other Taxpayer
Identification Number, if any
- -------------------------
Address
- -------------------------
- -------------------------
2
<PAGE>
EXHIBIT B
INSTRUCTION
FROM COLLATERAL AGENT
TO SECURITIES INTERMEDIARY
(Establishment of Treasury SPC Units)
_________________________
_________________________
_________________________
_________________________
Attention:_______________
Telecopy: _______________
Re: SPC Units of PP&L Resources, Inc. (the "Company") Securities
Account No. ____. entitled "__________________, as Collateral
Agent, Securities Account (PP&L Resources, Inc.)" (the
"Collateral Account")
Please refer to the Pledge Agreement, dated as of _________________
(the "Pledge Agreement"), among the Company, you, as Securities Intermediary,
_________________________ ,as Purchase Contract Agent and as attorney-in-fact
for the holders of SPC Units from time to time, and the undersigned, as
Collateral Agent. Capitalized terms used herein but not defined shall have the
meanings set forth in the Pledge Agreement.
When you have confirmed that $__________ Value of Treasury
Securities or security entitlements thereto has been credited to the Collateral
Account by or for the benefit of _________, as Holder of SPC Units (the
"Holder"), you are hereby instructed to release from the Collateral Account an
equal Value of Notes or security entitlements thereto by Transfer to the
Purchase Contract Agent.
--------------------------
By:
-----------------------------------
Name:
Title:
Dated:
----------------------
<PAGE>
Please print name and address of Holder:
________________________________ _____________________________________
Name Social Security or other Taxpayer
Identification Number, if any
_________________________________
Address
_________________________________
_________________________________
2
<PAGE>
EXHIBIT C
INSTRUCTION
FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
(Reestablishment of SPC Units )
Attention:
Telecopy:
Re: SPC Units of PP&L Resources, Inc. (the "Company")
Please refer to the Pledge Agreement, dated as of _________________
(the "Pledge Agreement"), among the Company, you, as Collateral Agent,
________________________________ , as Securities Intermediary, and the
undersigned, as Purchase Contract Agent and as attorney-in-fact for the holders
of SPC Units from time to time. Capitalized terms used herein but not defined
shall have the meanings set forth in the Pledge Agreement.
We hereby notify you in accordance with Section 5.3(a) of the Pledge
Agreement that the holder of securities listed below (the "Holder") has elected
to substitute $__________ Value of Notes or security entitlements thereto in
exchange for $__________ Value of Pledged Treasury Securities and has delivered
to the undersigned a notice stating that the Holder has Transferred such Notes
or security entitlements thereto to the Securities Intermediary, for credit to
the Collateral Account.
We hereby request that you instruct the Securities Intermediary,
upon confirmation that such Notes or security entitlements thereto have been
credited to the Collateral Account, to release to the undersigned $__________
Value of Treasury Securities or security entitlements thereto related to _____
Treasury SPC Units of such Holder in accordance with Section 5.3(a) of the
Pledge Agreement.
THE CHASE MANHATTAN BANK
By:
-----------------------------------
Name:
Title:
Dated:
--------------------
<PAGE>
Please print name and address of Holder electing to substitute Pledged Notes or
security entitlements thereto for Pledged Treasury Securities:
________________________________ _____________________________________
Name Social Security or other Taxpayer
Identification Number, if any
____________________________
Address
____________________________
____________________________
2
<PAGE>
EXHIBIT D
INSTRUCTION
FROM COLLATERAL AGENT
TO SECURITIES INTERMEDIARY
(Reestablishment of SPC Units)
____________________________
____________________________
____________________________
Attention:__________________
Telecopy: __________________
Re: SPC Units of PP&L Resources, Inc. (the "Company") Securities
Account No. _____. entitled "____________________, as
Collateral Agent, Securities Account (PP&L Resources,
Inc.)" (the "Collateral Account")
Please refer to the Pledge Agreement, dated as of __________________
(the "Pledge Agreement"), among the Company, you, as Securities Intermediary,
______________________, as Purchase Contract Agent and as attorney-in-fact for
the holders of SPC Units from time to time, and the undersigned, as Collateral
Agent. Capitalized terms used herein but not defined shall have the meanings
set forth in the Pledge Agreement.
When you have confirmed that $_________ Value of Notes or security
entitlements thereto has been credited to the Collateral Account by or for the
benefit of _________, as Holder of SPC Units (the "Holder"), you are hereby
instructed to release from the Collateral Account $__________ Value of Treasury
Securities or security entitlements thereto by Transfer to the Purchase Contract
Agent.
_________________________________
By:
-----------------------------------
Name:
Title:
Dated:
-------------------
<PAGE>
Please print name and address of Holder:
________________________________ ____________________________________
Name Social Security or other Taxpayer
Identification Number, if any
___________________________
Address
___________________________
___________________________
2
<PAGE>
EXHIBIT E
NOTICE OF CASH SETTLEMENT FROM SECURITIES INTERMEDIARY
TO PURCHASE CONTRACT AGENT
(Cash Settlement Amounts)
The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Attention:_______________
Telecopy: _______________
Re: SPC Units of PP&L Resources, Inc. (the "Company")
Please refer to the Pledge Agreement, dated as of __________________
(the "Pledge Agreement"), among you, the Company, __________________________, as
Collateral Agent and the undersigned, as Securities Intermediary. Unless
otherwise defined herein, terms defined in the Pledge Agreement are used herein
as defined therein
In accordance with Section 5.5(d) of the Pledge Agreement, we hereby
notify you that as of 11:00 a.m., [on the fifth Business Day immediately
preceding the Purchase Contract Settlement Date], we have received (i) $_____ in
immediately available funds paid in an aggregate amount equal to the Purchase
Price to the Company on the Purchase Contract Settlement Date with respect to
__________ SPC Units and (ii) $_________ in immediately available funds paid in
an aggregate amount equal to the Purchase Price to the Company on the Purchase
Contract Settlement Date with respect to ______ Treasury SPC Units.
--------------------------------------
By:
---------------------------------------
Name:
Title:
Dated:
--------------------
EXHIBIT 4.8
-----------
PP&L RESOURCES, INC.
PP&L CAPITAL FUNDINGS, INC. _____% DEFERRABLE NOTES DUE ____
GUARANTEED AS TO PAYMENT OF PRINCIPAL,
PREMIUM, IF ANY, AND INTEREST BY
PP&L RESOURCES, INC.
REMARKETING AGREEMENT
[Date]
[Remarketing Agent]
- -------------------
- -------------------
Ladies and Gentlemen:
_________________________________ (the "Remarketing Agent") is
undertaking to remarket the ___% Deferrable Notes due _______________ (the
"Notes"), issued by PP&L Capital Funding, Inc., a Delaware corporation ("Capital
Funding"), and unconditionally guaranteed as to payment of principal, premium,
if any, and interest by PP&L Resources, Inc., a Pennsylvania corporation (the
"Company"), pursuant to the Indenture, dated as of _______, among Capital
Funding, the Company and _________, as trustee (the "Indenture Trustee") as
amended and supplemented by the First Supplemental Indenture to the Indenture,
dated _______, relating to the Notes (as amended or supplemented, the
"Indenture").
The Remarketing (as defined below) of the Notes is provided for in an
Officer's Certificate relating to and establishing certain terms of the Notes
(the "Officer's Certificate").
SECTION 1. DEFINITIONS.
-----------
(a) Capitalized terms used and not defined in this Agreement shall have the
meanings set forth in the Purchase Contract Agreement, dated as of _______ (the
"Purchase Contract Agreement"), between the Company and The Chase Manhattan
Bank, a New York banking corporation, as Purchase Contract Agent and Trustee
(the "Purchase Contract Agent"), or in the Officer's Certificate, as the case
may be.
<PAGE>
(b) As used in this Agreement, the following terms have the following
meanings:
"Remarketed Notes" means the Notes subject to the Remarketing, as
identified to the Remarketing Agent by the Purchase Contract Agent after
11:00 a.m. on the fifth Business Day immediately preceding the Purchase
Contract Settlement Date;
"Remarketing Procedures" means the procedures in connection with the
Remarketing of the Notes described in the Officer's Certificate;
"Remarketing" means the remarketing of the Remarketed Senior
Deferrable Notes pursuant to the
Remarketing Procedures; and
"Subsidiary" has the meaning set forth in Rule 405 under the
Securities Act.
SECTION 2. APPOINTMENT AND OBLIGATIONS OF THE REMARKETING AGENT.
----------------------------------------------------
(a) The Company hereby appoints ______________ as exclusive remarketing
agent (the "Remarketing Agent"), and ______________ hereby accepts appointment
as Remarketing Agent, for the purpose of (1) Remarketing Remarketed Notes on
behalf of the holders thereof and (2) performing such other duties as are
assigned to the Remarketing Agent in the Remarketing Procedures, all in
accordance with and pursuant to the Remarketing Procedures.
(b) The Remarketing Agent agrees to (1) use reasonable efforts to remarket
the Remarketed Notes tendered or deemed tendered to the Remarketing
Agent in the Remarketing, (2) notify the Company promptly of the Reset Rate and
(3) carry out such other duties as are assigned to the Remarketing Agent in the
Remarketing Procedures, all in accordance with the provisions of the Remarketing
Procedures.
(c) On the third Business Day immediately preceding the Purchase Contract
Settlement Date (the "Remarketing Date"), the Remarketing Agent shall use
reasonable efforts to remarket, at a price at least equal to [100.25%] of the
Stated Amount, the Remarketed Notes tendered or deemed tendered for purchase.
(d) If, as a result of the efforts described in Section 2(b), the
Remarketing Agent determines that it will be able to remarket all Remarketed
Notes tendered or deemed tendered for purchase at a price at least equal to
[100.25%] of the Stated Amount prior to 4:00 p.m. (New York City time) on the
Remarketing Date without increasing the Coupon Rate, the Remarketing Agent shall
set the Reset Rate at the Coupon Rate. If the Remarketing Agent determines
immediately prior to Remarketing that it will not be able to remarket all of the
Remarketed Notes tendered or deemed tendered for purchase at a price at least
equal to [100.25%] of the Stated Amount, the Remarketing Agent shall set the
Reset Rate at a rate per annum (rounded to the nearest one-thousandth of one
percent per annum) that the Remarketing Agent determines to be the lowest rate
per annum that will enable it to remarket all of the Remarketed Notes tendered
or deemed tendered for purchase at a price equal to [100.25%] of the Stated
Amount.
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<PAGE>
(e) upon receipt of the proceeds from the Remarketing, the Remarketing
Agent shall:
(1) retain [25 basis points (.25%)] of the Stated Amount for the
performance of its services as Remarketing Agent hereunder;
(2) remit to the Collateral Agent all excess proceeds of the
Remarketed Notes subject to the Pledge Agreement; and
[(3) remit to [the holders] all excess proceeds, if any, of the
Remarketed Notes not subject to the Pledge Agreement.]
(f) If none of the holders of Remarketed Notes elects to have Remarketed
Notes remarketed in the Remarketing, the Remarketing Agent shall determine the
rate that would have been established had a Remarketing been held on the
Remarketing Date, and such rate shall be the Reset Rate.
(g) If, by 4:00 p.m. (New York City time) on the Remarketing Date, the
Remarketing Agent is unable to remarket all Remarketed Notes tendered or deemed
tendered for purchase, a failed Remarketing ("Failed Remarketing") shall be
deemed to have occurred, and the Remarketing Agent shall so advise by telephone
DTC, the Indenture Trustee and the Company. In the event of a Failed
Remarketing, the Reset Rate shall equal the Two-Year Benchmark Treasury rate
plus the Applicable Margin.
(h) Provided that there has not been a Failed Remarketing, by approximately
4:30 p.m. (New York City time) on the Remarketing Date, the Remarketing Agent
shall advise, by telephone:
(1) DTC, the Indenture Trustee and the Company of the Reset Rate
determined in the Remarketing and the number of Remarketed Notes sold in
the Remarketing;
(2) each purchaser (or the Clearing Agency Participant thereof) of
Remarketed Notes of the Reset Rate and the number of Remarketed Notes such
purchaser is to purchase; and
(3) each purchaser to give instructions to the Clearing Agency
Participant to pay the purchase price on the Purchase Contract Settlement
Date in same day funds against delivery of the Remarketed Notes purchased
through the facilities of DTC.
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<PAGE>
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
---------------------------------------------
The Company represents and warrants (i) on and as of the date hereof,
(ii) on and as of the date the Prospectus Supplement or other Remarketing
Materials (each as defined in Section 3(a) below) are first distributed in
connection with the Remarketing (the "Commencement Date"), (iii) on and as of
the Remarketing Date, and (iv) on and as of the Purchase Contract Settlement
Date that:
(a) The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
(b) A registration statement on Form S-3 (File No. _________) and an
amendment or amendments thereto with respect to the initial offering of the
Notes has (i) been prepared by the Company in conformity with the requirements
of the Securities Act of 1933, as amended (the "Securities Act"), and the rules
and regulations (the "Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") thereunder; (ii) been filed with the Commission
under the Securities Act, and (iii) become effective under the Securities Act; a
registration statement on Form S-3, if required to be filed in connection with
the Remarketing also may be prepared by the Company in conformity with the
requirements of the Securities Act and the Rules and Regulations and filed with
the Commission under the Securities Act; and the Indenture has been qualified
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act").
Copies of such registration statement or registration statements that have
become effective and the amendment or amendments to such registration statements
have been delivered by the Company to you.
As used in this Agreement, "Effective Time" means the date and time as
of which the last of such registration statements that have become effective or
may be filed, or the most recent post-effective amendment thereto, if any, was
declared effective by the Commission;
"Effective Date" means the date of the Effective Time of such last
registration statement;
"Preliminary Prospectus" means each prospectus included in such last
registration statement, or amendment thereto, before it became effective
under the Securities Act and any prospectus filed by the Company with your
consent pursuant to Rule 424(a) of the Rules and Regulations;
"Registration Statement" means such last registration statement, as
amended at its Effective Time, including documents incorporated by
reference therein at such time and, if applicable, all information
contained in the final prospectus filed with the Commission pursuant to
Rule 424(b) of the Rules and Regulations, including any information deemed
to be part of such Registration Statement as of the Effective Time pursuant
to paragraph (b) of Rule 430A of the Rules and Regulations; and
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<PAGE>
"Prospectus" means such final prospectus, as first filed pursuant to
Rule 424(b) of the Rules and Regulations.
Reference made herein to any Preliminary Prospectus, the Prospectus or
any other information furnished by the Company to the Remarketing Agent for
distribution to investors in connection with the Remarketing (the "Remarketing
Materials") shall be deemed to refer to and include any documents incorporated
by reference therein pursuant to Item 12 of Form S-3 under the Securities Act as
of the date of such Preliminary Prospectus or the Prospectus, as the case may
be, or, in the case of Remarketing Materials, referred to as incorporated by
reference therein, and any reference to any amendment or supplement to any
Preliminary Prospectus, the Prospectus or the Remarketing Materials shall be
deemed to refer to and include any document filed under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), after the date of such Preliminary
Prospectus or the Prospectus incorporated by reference therein pursuant to Item
12 of Form S-3 or, if so incorporated, the Remarketing Materials, as the case
may be; and any reference to any amendment to the Registration Statement shall
be deemed to include any annual report of the Company filed with the Commission
pursuant to Section 13(a) or 15(d) of the Exchange Act after the Effective Time
that is incorporated by reference in the Registration Statement.
(c) The Commission has not issued an order preventing or suspending the
use of the Registration Statement, any Preliminary Prospectus, the Prospectus or
the Remarketing Materials.
(d) The Registration Statement, as of the Effective Date, conformed
(and the Prospectus and any further amendments or supplements to the
Registration Statement or the Prospectus, when they become effective or are
filed with the Commission, as the case may be, will conform) in all respects to
the requirements of the Securities Act and the Rules and Regulations, and the
Registration Statement, the Prospectus and the Remarketing Materials do not and
will not, as of the Effective Date (as to the Registration Statement and any
amendment thereto), as of the applicable filing date (as to the Prospectus and
any amendment or supplement thereto) and as of the Commencement Date,
Remarketing Date and Purchase Contract Settlement Date (as to any Remarketing
Materials) contain any 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 that no representation and warranty is made as
to the statement of eligibility and qualification on Form T-1 of the Indenture
Trustee under the Trust Indenture Act, or as to information contained in or
omitted from the Registration Statement, the Prospectus or the Remarketing
Materials in reliance upon and in conformity with written information furnished
to the Company by the Remarketing Agent specifically for inclusion therein. The
Indenture conforms in all material respects to the requirements of the Trust
Indenture Act and the applicable rules and regulations thereunder.
(e) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Securities Act or
the Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
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<PAGE>
or necessary to make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the Prospectus, when such
documents become effective or are filed with Commission, as the case may be,
will conform in all material respects to the requirements of the Securities Act
or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will not contain any 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.
(f) Subsequent to the date of the latest consolidated financial
statements included or incorporated by reference in the Prospectus or in any
Remarketing Materials, there has not been any material adverse change in the
financial position or results of operations of the Company and its subsidiaries
taken as a whole, except in each case as set forth in or contemplated by the
Prospectus or any Remarketing Materials.
(g) The certificate delivered pursuant to paragraph (e) of Section 6
hereof in connection with the issuance and sale of the Remarketed Notes was on
the dates on which it was delivered, or will be on the dates on which it is to
be delivered, in all material respects true and complete.
SECTION 4. FEES.
----
For the performance of its services as Remarketing Agent hereunder, the
Remarketing Agent shall retain from the proceeds of the Remarketing an amount
equal to [25 basis points (.25%)] of the purchase price of the Remarketed Notes.
SECTION 5. COVENANTS OF THE COMPANY.
------------------------
The Company covenants and agrees as follows:
(a) (1) To prepare any registration statement or prospectus, if
required, in connection with the Remarketing, in a form approved by the
Remarketing Agent and to file any such prospectus pursuant to the Securities Act
within the period required by the Rules and Regulations;
(2) to advise the Remarketing Agent, promptly after it
receives notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed and to furnish the
Remarketing Agent with copies thereof;
(3) to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to
the date of the Prospectus and for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Remarketed Notes;
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<PAGE>
(4) to advise the Remarketing Agent, promptly after it
receives notice thereof, of the issuance by the Commission of any stop order or
of any order preventing or suspending the use of the Prospectus, of the
suspension of the qualification of any of the Remarketed Notes for offering or
sale in any jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for additional
information, and, in the event of the issuance of any stop order or of any order
preventing or suspending the use of any Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal.
(b) To furnish promptly to the Remarketing Agent and to counsel to the
Remarketing Agent a signed copy (or true conformed copy) of the Registration
Statement as originally filed with the Commission, and each amendment thereto
filed with the Commission, including all consents and exhibits filed therewith.
(c) To deliver promptly to the Remarketing Agent in New York City such
number of the following documents as the Remarketing Agent shall request (i)
conformed copies of the Registration Statement as originally filed with the
Commission and each amendment thereto (in each case excluding exhibits other
than this Agreement and the Indenture); (ii) the Prospectus and any amended or
supplemented Prospectus; (ii) any document incorporated by reference in the
Prospectus (excluding exhibits thereto); and (iv) any Remarketing Materials;
and, if the delivery of a prospectus is required at any time in connection with
the Remarketing and if at such time any event shall have occurred as a result of
which the Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading, or if
for any other reason it shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the
Securities Act or the Exchange Act, to notify the Remarketing Agent and, upon
its request, to file such document and to prepare and furnish without charge to
the Remarketing Agent and to any dealer in securities as many copies as the
Remarketing Agent may from time to time request of an amended or supplemented
Prospectus which will correct such statement or omission or effect such
compliance; provided that the expense of preparing and filing any such amendment
or supplement (i) which is necessary in connection with such a delivery of a
prospectus more than nine months after the Remarketing Date or (ii) which
relates solely to the activities of the Remarketing Agent shall be borne by the
Remarketing Agent.
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the Prospectus
that is required by the Securities Act or requested by the Commission.
(e) Prior to filing with the Commission (i) any amendment to the
Registration Statement or supplement to the Prospectus or any document
incorporated by reference in the Prospectus or (ii) any Prospectus pursuant to
Rule 424 of the Rules and Regulations, to furnish a copy thereof to the
Remarketing Agent and counsel to the Remarketing Agent; and not to file any such
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<PAGE>
amendment or supplement which shall be reasonably objected to in writing by the
Remarketing Agent promptly after reasonable notice.
(f) As soon as practicable, but in any event not later than 15 months,
after the Effective Date of the Registration Statement, to make "generally
available to its security holders" an "earnings statement" (which need not be
audited) covering a period of at least twelve months beginning after the
Effective Date which will satisfy the provisions of Section 11(a) of the
Securities Act and the Rules and Regulations (including, at the option of the
Company, Rule 158). The terms "generally available to its security holders" and
"earnings statement" shall have the meanings set forth in Rule 158 of the Rules
and Regulations.
(g) To take such action as the Remarketing Agent may reasonably
request in order to qualify the Remarketed Notes for offer and sale under the
securities or "blue sky" laws of such jurisdictions as the Remarketing Agent may
reasonably request; provided that the Company shall not be required to qualify
as a foreign corporation in any State, to consent to service of process in any
State other than with respect to claims arising out of the offering or sale of
the Remarketed Notes, or to meet any other requirement in connection with this
paragraph (g) deemed by the Company to be unduly burdensome.
(h) To pay (1) the costs incident to the preparation and printing of
the Registration Statement, Prospectus and any Remarketing Materials and any
amendments or supplements thereto; (2) the costs of distributing the
Registration Statement, Prospectus and any Remarketing Materials and any
amendments or supplements thereto; (3) the fees and expenses of qualifying the
Remarketed Notes under the securities laws of the several jurisdictions as
provided in Section 5(g) and of preparing, printing and distributing a Blue Sky
Memorandum (including related fees and expenses of counsel to the Remarketing
Agent); (4) all other costs and expenses incident to the performance of the
obligations of the Company, hereunder; and (5) the reasonable fees and expenses
of counsel to the Remarketing Agent in connection with their duties hereunder.
SECTION 6. CONDITIONS TO THE REMARKETING AGENT'S OBLIGATIONS.
-------------------------------------------------
The obligations of the Remarketing Agent hereunder are subject to the
following conditions:
(a) The Prospectus shall have been timely filed with the Commission;
no stop order suspending the effectiveness of the Registration Statement or any
part thereof or suspending the qualification of the Indenture shall have been
issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and any request of the Commission for inclusion of
additional information in the Registration Statement or the Prospectus or
otherwise shall have been complied with.
(b) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, (i) there shall not have been any
material adverse change in the financial position or results of operations of
the Company and its subsidiaries taken as a whole, that, in the judgment of the
Remarketing Agent, materially impairs the investment quality of the Notes, in
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<PAGE>
each case other than as set forth in or contemplated by the Registration
Statement or Prospectus.
(c) The representations and warranties of the Company contained
herein shall be true and correct in all material respects on and as of the
Remarketing Date, and the Company shall have performed in all material respects
all covenants and agreements herein contained to be performed on its part at or
prior to the Remarketing Date.
(d) The Company shall have furnished to the Remarketing Agent a
certificate, dated the Remarketing Date, of [the President or a Vice President
and a financial or accounting officer of the Company] stating that to the best
of their knowledge after reasonable investigation:
(i) no order suspending the effectiveness of the Registration
Statement or prohibiting the sale of the Remarketed Notes is in effect, and no
proceedings for such purpose are pending before or, to the knowledge of such
officers, threatened by the Commission;
(ii) the representations and warranties of the Company in
Section 3 are true and correct in all material respects on and as of the
Remarketing Date and the Company has performed in all material respects all
covenants and agreements contained herein to be performed on its part at or
prior to the Remarketing Date;
(iii) the Registration Statement, as of its Effective Date,
and the Prospectus and the Remarketing Materials, as of their respective dates,
did not contain any untrue statement of a material fact and did not omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading.
(e) On the Remarketing Date, the Remarketing Agent shall have
received a letter addressed to the Remarketing Agent and dated such date, in
form and substance satisfactory to the Remarketing Agent, of Pricewaterhouse-
Coopers LLP, or such other firm of nationally recognized independent public
accountants satisfactory to the Remarketing Agent, containing statements and
information of the type ordinarily included in accountants' "comfort letters"
with respect to certain financial information contained in the Prospectus and in
the Remarketing Materials.
(f) Counsel to the Company shall have furnished to the Remarketing
Agent its opinion letter or opinion letters, as the case may be, addressed to
the Remarketing Agent and dated the Remarketing Date, in form and substance
satisfactory to the Remarketing Agent as set forth as Exhibit A hereto.
[(g) On or after the execution and delivery of this Agreement, no
downgrading shall have occurred in the rating accorded the Company's debt
securities by any "nationally recognized statistical rating organization", as
that term is defined by the Commission for purposes of Rule 436(g)(2) under the
Securities Act.]
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<PAGE>
SECTION 7. INDEMNIFICATION AND CONTRIBUTION.
--------------------------------
(a) The Company and Capital Funding agree that they will jointly and
severally indemnify and hold harmless the Remarketing Agent and each person, if
any, who controls the Remarketing Agent within the meaning of Section 15 of the
Securities Act, against any and all loss, expense, claim, damage or liability to
which, jointly or severally, the Remarketing Agent or such controlling person
may become subject, under the Securities 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, the
Remarketing Materials 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 Capital Funding agree to reimburse the Remarketing Agent and each
person who controls the Remarketing Agent as aforesaid for any reasonable legal
or other expenses incurred by the Remarketing 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 Capital Funding
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 Capital Funding or the Company by or through the Remarketing Agent expressly
for use in any such document or arises out of, or is based on, statements in or
omissions from that part of the Registration Statement which shall constitute
the [Statement of Eligibility under the Trust Indenture Act of the Trustee under
the Indenture]; 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 the Remarketing Agent (or to the benefit
of any person controlling the Remarketing Agent), if a copy of the Prospectus
(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 the
Remarketed Notes to such person.
(b) The Remarketing Agent agrees that it will indemnify and hold
harmless the Company and Capital Funding, their officers and directors, and each
of them, and each person, if any, who controls the Company and Capital Funding
within the meaning of Section 15 of the Securities Act, against any loss,
expense, claim, damage or liability to which it or they may become subject,
under the Securities 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, the Remarketing Materials 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
document in reliance upon, and in conformity with, written information furnished
to Capital Funding or the Company by or through the Remarketing Agent expressly
for use in any such document; and, except as hereinafter in this Section
provided, the Remarketing Agent agrees to reimburse the Company and Capital
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<PAGE>
Funding, their officers and directors, and each of them, and each person, if
any, who controls the Company and Capital Funding within the meaning of Section
15 of the Securities Act, for any reasonable legal or other expenses incurred by
it or them in connection with investigating or defending any such loss, expense,
claim, damage or liability.
(c) Upon receipt of notice of the commencement of any action against an
indemnified party, the indemnified party shall, with reasonable promptness, if a
claim in respect thereof is to be made against an indemnifying party under its
agreement contained in this Section 7, 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 7. 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 7(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
Remarketed Notes.
(d) If the Remarketing Agent or any person entitled to indemnification
by the terms of subsection (a) of this Section 7 shall have given notice to the
Company and Capital Funding of a claim in respect thereof pursuant to Section
7(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 7 or if such claim is unavailable under controlling precedent, the
Remarketing Agent or such person shall be entitled to contribution from the
Company and Capital Funding for liabilities and expenses, except to the extent
that contribution is not permitted under Section 11(f) of the Securities Act. In
determining the amount of contribution to which the Remarketing Agent or such
person is entitled, there shall be considered the relative benefits received by
the Remarketing Agent or such person and the Company and Capital Funding from
the offering of the Remarketed Notes that were the subject of the claim for
indemnification (taking into account the portion of the proceeds realized by
each), the Remarketing Agent or person's relative knowledge and access to
information concerning the matter with respect to which the claim was asserted,
the opportunity to correct and prevent any statement or omission, and any other
equitable considerations appropriate under the circumstances. The Company and
Capital Funding and the Remarketing Agent agree that it would not be equitable
if the amount of such contribution were determined by pro rata or per capita
allocation.
(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 7 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i)
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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 7 and
the representations and warranties of the Company, Capital Funding and the
Remarketing Agent shall remain operative and in full force and effect regardless
of (i) any investigation made by or on behalf of the Remarketing Agent or any
person controlling the Remarketing Agent, the Company, its directors or
officers, Capital Funding or any person controlling Capital Funding, (ii)
acceptance of any Remarketed Notes and payment therefor under this Agreement,
and (iii) any termination of this Agreement.
SECTION 8. RESIGNATION AND REMOVAL OF THE REMARKETING AGENT.
------------------------------------------------
The Remarketing Agent may resign and be discharged from its duties and
obligations hereunder, and the Company may remove the Remarketing Agent, by
giving 15 days' prior written notice, in the case of a resignation, to the
Company, DTC and the Indenture Trustee and, in the case of a removal, the
removed Remarketing Agent, DTC and the Indenture Trustee; provided however, that
no such resignation nor any such removal shall become effective until the
Company shall have appointed at least one nationally recognized broker-dealer as
successor Remarketing Agent and such successor Remarketing Agent shall have
entered into a remarketing agreement with the Company, in which it shall have
agreed to conduct the Remarketing in accordance with the Remarketing Procedures.
In any such case, the Company will use its reasonable efforts to
appoint a successor Remarketing Agent and enter into such a remarketing
agreement with such person as soon as reasonably practicable. The provisions of
Sections 4 and 7 shall survive the resignation or removal of any Remarketing
Agent pursuant to this Agreement.
SECTION 9. DEALING IN THE REMARKETED NOTES.
-------------------------------
The Remarketing Agent, when acting as a Remarketing Agent or in its
individual or any other capacity, may, to the extent permitted by law, buy,
sell, hold and deal in any of the Remarketed Notes. The Remarketing Agent may
exercise any vote or join in any action which any beneficial owner of Remarketed
Notes may be entitled to exercise or take pursuant to the Indenture with like
effect as if it did not act in any capacity hereunder. The Remarketing Agent, in
its individual capacity, either as principal or agent, may also engage in or
have an interest in any financial or other transaction with the Company as
freely as if it did not act in any capacity hereunder.
12
<PAGE>
SECTION 10. REMARKETING AGENT'S PERFORMANCE; DUTY OF CARE.
---------------------------------------------
The duties and obligations of the Remarketing Agent shall be determined
solely by the express provisions of this Agreement and the Indenture. No implied
covenants or obligations of or against the Remarketing Agent shall be read into
this Agreement or the Indenture. In the absence of bad faith on the part of the
Remarketing Agent, the Remarketing Agent may conclusively rely upon any document
furnished to it, which purports to conform to the requirements of this Agreement
or the Indenture as to the truth of the statements expressed in any of such
documents. The Remarketing Agent shall be protected in acting upon any document
or communication reasonably believed by it to have been signed, presented or
made by the proper party or parties. The Remarketing Agent, acting under this
Agreement, shall incur no liability to the Company or to any holder of
Remarketed Senior Deferrable Notes in its individual capacity or as Remarketing
Agent for any action or failure to act, on its part in connection with a
Remarketing or otherwise, except if such liability is judicially determined to
have resulted from the gross negligence or willful misconduct on its part.
SECTION 11. TERMINATION.
-----------
This Agreement shall terminate as to the Remarketing Agent on the
effective date of the resignation or removal of the Remarketing Agent pursuant
to Section 8. In addition, this Agreement may be terminated (A) by the Company
by notifying the Remarketing Agent at any time before the time when the
Remarketed Notes are first generally offered by the Remarketing Agent to dealers
by letter or telegram, or (B) by the Remarketing Agent by notifying the Company
at or prior to 10:00 a.m. (New York City time) on the Remarketing Date by letter
or telegram if,
(a) in the judgement of the Remarketing Agent the sale and delivery
of the Remarketed Notes is rendered impracticable or inadvisable because:
(1) 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 Capital Funding on any exchange
or in the over-the-counter market; or a general banking moratorium has been
declared by Federal or New York authorities;
(2) any event shall have occurred or shall exist which makes
untrue or incorrect in any material respect any statement or information
contained in the Registration Statement or Prospectus or which is not reflected
in the Registration Statement or Prospectus but should be reflected therein in
order to make the statements or information contained therein not misleading in
any material respect, and such untrue or incorrect statement or information is
not corrected in an amendment or supplement to the Registration Statement or
Prospectus, or
(b) prior to that time, any of the events described in Sections 6(b)
[or (g)] shall have occurred.
13
<PAGE>
If this Agreement is terminated pursuant to any of the provisions
hereof, except as otherwise provided herein, the Company shall not be under any
liability to the Remarketing Agent and the Remarketing Agent shall not be under
any liability to the Company, except that (a) if this Agreement is terminated by
the Remarketing Agent because of any failure or refusal on the part of the
Company to comply with the terms or to fulfill any of the conditions of this
Agreement, the Company will reimburse the Remarketing Agent for all of its
out-of-pocket expenses (including the fees and disbursements of its counsel)
reasonably incurred by it, and (b) if the Remarketing Agent failed or refused to
purchase the Remarketed Notes hereunder, without some reason sufficient
hereunder to justify the cancellation or termination of its obligations
hereunder, the Remarketing Agent shall not be relieved of liability to the
Company for damages occasioned by its default.
SECTION 12. NOTICES.
-------
All statements, requests, notices and agreements hereunder shall be in
writing, and:
(a) if to the Remarketing Agent, shall be delivered or sent by mail,
telex or facsimile transmission to _____________________ Attention:____________;
(b) if to the Company, shall be delivered or sent by mail, telex or
facsimile transmission to Two North Ninth Street, Allentown, Pennsylvania
18101-1179, Attention: Treasurer. (Fax: (610) 774-5106).
Any such statements, requests, notices or agreements shall take effect
at the time of receipt thereof.
SECTION 13. PERSONS ENTITLED TO BENEFIT OF AGREEMENT.
----------------------------------------
This Agreement shall inure to the benefit of and be binding upon the
Remarketing Agent, the Company, and their respective successors. This Agreement
and the terms and provisions hereof are for the sole benefit of only those
persons, except that (x) the representations, warranties, indemnities and
agreements of the Company contained in this Agreement shall also be deemed to be
for the benefit of the Remarketing Agent and the person or persons, if any, who
control the Remarketing Agent within the meaning of Section 15 of the Securities
Act and (y) the indemnity agreement of the Remarketing Agent contained in
Section 7(b) of this Agreement shall be deemed to be for the benefit of the
Company's directors and officers who sign the Registration Statement and any
person controlling the Company within the meaning of Section 15 of the
Securities Act. Nothing contained in this Agreement is intended or shall be
construed to give any person, other than the persons referred to herein, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
14
<PAGE>
SECTION 14. SURVIVAL.
--------
The respective indemnities, representations, warranties and agreements
of the Company and the Remarketing Agent contained in this Agreement or made by
or on behalf of them, respectively, pursuant to this Agreement, shall survive
the Remarketing and shall remain in full force and effect, regardless of any
investigation made by or on behalf of any of them or any person controlling any
of them.
SECTION 15. GOVERNING LAW.
-------------
This Agreement shall be governed by, and construed in accordance with,
the laws of New York.
SECTION 16. COUNTERPARTS.
------------
This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts shall each be
deemed to be an original but all such counterparts shall together constitute one
and the same instrument.
SECTION 17. HEADINGS.
--------
The headings herein are inserted for convenience of reference only and
are not intended to be part of, or to affect the meaning or interpretation of,
this Agreement. If the foregoing correctly sets forth the agreement between the
Company and the Remarketing Agent, please indicate your acceptance in the space
provided for that purpose below.
If the foregoing correctly sets forth the agreement between the Company
and the Remarketing Agent, please indicate your acceptance in the space provided
for that purpose below.
Very truly yours,
PP&L RESOURCES, INC.
By:_______________________________
Title:
Accepted:
________________________________________
By:_____________________________________
Authorized Representative
EXHIBIT 4.9
-----------
TRUST AGREEMENT
OF PP&L CAPITAL FUNDING TRUST I
This TRUST AGREEMENT of PP&L Capital Funding Trust I (the "Trust"), dated
as of September 21, 1999, among (i) PP&L Resources, Inc., a Pennsylvania
corporation (the "Depositor"), (ii) The Chase Manhattan Bank, a New York banking
corporation (the "Property Trustee"), as trustee of the Trust, (iii) Chase
Manhattan Bank Delaware, a Delaware banking corporation (the "Delaware
Trustee"), as trustee of the Trust, and (iv) James E. Abel, an individual
employed by the Depositor or one of its affiliates, as trustee of the Trust (the
"Administrative Trustee")(the Administrative Trustee, together with any
administrative trustees appointed by the Depositor after the date hereof, the
"Administrative Trustees")(each of such trustees in (ii), (iii) and (iv) a
"Trustee," and collectively, the "Trustees"). The Depositor and the Trustees
hereby agree as follows:
1. The trust created hereby shall be known as "PP&L Capital Funding
Trust I", in which name the Trustees, or the Depositor to the extent provided
herein, may conduct the business of the Trust, make and execute contracts, and
sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to the
Trustees the sum of $10. The Trustees hereby acknowledge receipt of such amount
in trust from the Depositor, which amount shall constitute the initial trust
estate. The Trustees hereby declare that they will hold the trust estate in
trust for the Depositor. It is the intention of the parties hereto that the
Trust created hereby constitute a business trust under Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. Section 3801 et seq. (the "Business Trust Act"),
and that this document constitutes the governing instrument of the Trust. The
Trustees are hereby authorized and directed to execute and file a certificate of
<PAGE>
trust with the Secretary of State of the State of Delaware in accordance with
the provisions of the Business Trust Act.
3. The Depositor and the Trustees will enter into an amended and restated
Trust Agreement, satisfactory to each such party, to provide for the
contemplated operation of the Trust created hereby and the issuance of the
Preferred Trust Securities and Common Trust Securities referred to therein.
Prior to the execution and delivery of such amended and restated Trust
Agreement, the Trustees shall not have any duty or obligation hereunder or with
respect of the trust estate, except as otherwise required by applicable law or
as may be necessary to obtain prior to such execution and delivery any licenses,
consents or approvals required by applicable law or otherwise.
4. Each of the Administrative Trustees and the Depositor, acting singularly
or together, (and, in the case of (iv) below, John R. Biggar and James E. Abel,
each as an authorized representative of the Trust who may act singularly or
together on behalf of the Trust) are hereby authorized and directed (i) to
prepare and file with the Securities and Exchange Commission (the "Commission")
and execute, in each case on behalf of the Trust, (a) a Registration Statement
on Form S-3 (the "1933 Act Registration Statement") (including any pre-effective
or post-effective amendments thereto), relating to the registration under the
Securities Act of 1933, as amended, of the Preferred Trust Securities of the
Trust and certain other securities and (b) a Registration Statement on Form 8-A
(the "1934 Act Registration Statement") (including all pre-effective and
post-effective amendments thereto) relating to the registration of the Preferred
Trust Securities of the Trust under Section 12(b) or 12(g) of the Securities
Exchange Act of 1934, as amended; (ii) to prepare and file with one or more
national securities exchanges (each, an "Exchange") or the National Association
2
<PAGE>
of Securities Dealers ("NASD") and execute on behalf of the Trust one or more
listing applications and all other applications, statements, certificates,
agreements and other instruments as shall be necessary or desirable to cause the
Preferred Trust Securities to be listed on any such Exchange or the NASD's
Nasdaq National Market, (iii) to prepare, file and execute on behalf of the
Trust such applications, reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and other papers and documents
as shall be necessary or desirable to register the Preferred Trust Securities
under the securities or blue sky laws of such jurisdictions as the Depositor or
the Administrative Trustee, on behalf of the Trust, may deem necessary or
desirable and (iv) to negotiate, execute, deliver and perform, on behalf of the
Trust, such underwriting agreements with one or more underwriters relating to
the offering of the Preferred Trust Securities in such form as the Depositor
shall approve.
In the event that any filing referred to in this Section 4 is required by
the rules and regulations of the Commission, any Exchange, the NASD or state
securities or blue sky laws, to be executed on behalf of the Trust by one or
more of the Trustees, each of the Trustees, in its or her capacity as Trustee of
the Trust, is hereby authorized and, to the extent so required, directed to join
in any such filing and to execute on behalf of the Trust any and all of the
foregoing, it being understood that the Property Trustee and the Delaware
Trustee, in their capacities as Trustees of the Trust, respectively, shall not
be required to join in any such filing or execute on behalf of the Trust any
such document unless required by the rules and regulations of the Commission,
any Exchange, the NASD or state securities or blue sky laws.
3
<PAGE>
In connection with the filings referred to in this Section 4, John R.
Biggar, James E. Abel and Robert J. Grey, and each of them, are hereby
constituted and appointed as the true and lawful attorneys-in-fact and agents
for the Depositor and each Administrative Trustee, with full power of
substitution and resubstitution, for the Depositor or such Trustee or in the
Depositor's or such Trustee's name, place and stead, in any and all capacities,
to sign any and all filings and amendments (including post-effective amendments)
to any of such filings (including the 1933 Act Registration Statement and the
1934 Act Registration Statement) and to file the same, with all exhibits thereto
and other documents in connection therewith, with the Commission, the Exchange
and securities or blue sky administrators, granting unto said attorneys-in-fact
and agents full power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection therewith, as fully to
all intents and purposes as the Depositor or such Trustee might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their respective substitute or substitutes, shall do
or cause to be done by virtue hereof.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of Trustees initially shall be three (3) and thereafter the
number of Trustees shall be such number as shall be set forth in the amended and
restated Trust Agreement or shall be fixed from time to time by a written
instrument signed by the Depositor which may increase or decrease the number of
Trustees; provided, however, that to the extent required by the Business Trust
Act, one Trustee shall be either a natural person who is a resident of the State
of Delaware, or, if not a natural person, an entity which has its principal
place of business in the State of Delaware and otherwise meets the requirements
of applicable Delaware law. Subject to the foregoing, the Depositor is entitled
4
<PAGE>
to appoint or remove without cause any Trustee at any time. Any Trustee may
resign upon thirty days prior written notice to Depositor.
7. The Depositor shall have the right to dissolve the Trust at any time
prior to the issuance of any Preferred Trust Security. Upon dissolution of the
Trust pursuant to this Section 7, each of the Administrative Trustees, acting
singly, is hereby authorized to prepare, execute and file a Certificate of
Cancellation in respect of the Trust with the Secretary of State of the State of
Delaware.
8. This Trust Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware (without regard to conflict of laws
principles).
5
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
PP&L RESOURCES, INC.,
as Depositor
By: /s/ James E. Abel
-----------------------------------
Name: James E. Abel
Title: Vice President - Finance and
Treasurer
THE CHASE MANHATTAN BANK,
as Trustee
By: /s/ Francine Springer
------------------------------------
Name: Francine Springer
Title: Assistant Vice President
CHASE MANHATTAN BANK DELAWARE,
as Trustee
By: /s/ Denis Kelly
------------------------------------
Name: Denis Kelly
Title: Assistant Vice President
/s/ James E. Abel
---------------------------------------
JAMES E. ABEL, as Trustee
6
<PAGE>
CERTIFICATE OF TRUST
OF
PP&L CAPITAL FUNDING TRUST I
THIS CERTIFICATE OF TRUST of PP&L Capital Funding Trust I (the "Trust"),
dated as of September 21, 1999, is being duly executed and filed by the
undersigned, as trustees, to form a business trust under the Delaware Business
Trust Act (12 Del.C. Section 3801 et seq.).
1. Name. The name of the business trust formed hereby is PP&L Capital
Funding Trust I.
2. Delaware Trustee. The name and business address of the trustee of the
Trust with a principal place of business in the State of Delaware are Chase
Manhattan Bank Delaware, 1201 Market Street, 9th Floor, Wilmington, Delaware
19801.
3. Effective Date. This Certificate of Trust shall be effective upon its
filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned, being the only trustees of the Trust,
have executed this Certificate of Trust as of the date first above written.
THE CHASE MANHATTAN BANK,
not in its individual capacity
but solely as trustee
By: /s/ Francine Springer
------------------------------------
Name: Francine Springer
Title: Assistant Vice President
CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity
but solely as trustee
By: /s/ Denis Kelly
------------------------------------
Name: Denis Kelly
Title: Assistant Vice President
/s/ James E. Abel
----------------------------------------
JAMES E. ABEL, not in his individual
capacity but solely as trustee
EXHIBIT 4.10
===========================================================================
AMENDED AND RESTATED
TRUST AGREEMENT
among
PP&L RESOURCES, INC.,
as Depositor and Trust Securities Guarantor,
THE CHASE MANHATTAN BANK,
as Property Trustee,
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee,
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
and
THE SEVERAL HOLDERS OF THE TRUST SECURITIES
Dated as of ______, ____
PP&L CAPITAL FUNDING TRUST I
========================================================================
<PAGE>
PP&L CAPITAL FUNDING TRUST I
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
----------- -------
Section 310 (a)(1) ................................... 8.07
(a)(2) ................................... 8.07
(a)(3) ................................... 8.09
(a)(4) ................................... Not Applicable
(b) ................................... 8.08
Section 311 (a) ................................... 8.13
(b) ................................... 8.13
Section 312 (a) ................................... 5.07
(b) ................................... 5.07
(c) ................................... 5.07
Section 313 (a) ................................... 8.14(a)
(a)(4) ................................... 8.14(b)
(b) ................................... 8.14(b)
(c) ................................... 8.14(a)
(d) ................................... 8.14(a), 8.14(b)
Section 314 (a) ................................... 8.15
(b) ................................... Not Applicable
(c)(1) ................................... 8.16
(c)(2) ................................... 8.16
(c)(3) ................................... Not Applicable
(d) ................................... Not Applicable
(e) ................................... 1.01
Section 315 (a) ................................... 8.01, 8.03
(b) ................................... 8.02
(c) ................................... 8.01(a)
(d) ................................... 8.01, 8.03
(e) ................................... 6.01
Section 316 (a) ................................... 6.01
(a)(1)(A) ................................... 6.01
(a)(1)(B) ................................... Not Applicable
(a)(2) ................................... Not Applicable
(b) ................................... Not Applicable
(c) ................................... 6.07
Section 317 (a)(1) ................................... Not Applicable
(a)(2) ................................... Not Applicable
(b) ................................... 5.09
Section 318 (a) ................................... 10.10
- -----------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Trust Agreement.
<PAGE>
TABLE OF CONTENTS
ARTICLE I
Defined Terms
Section 1.01. Definitions .................................................. 2
ARTICLE II
Continuation of the Trust
Section 2.01. Name .........................................................11
Section 2.02. Office of the Delaware Trustee; Principal Place of Business...11
Section 2.03. Initial Contribution of Trust Property;
Organizational Expenses ...................................11
Section 2.04. Issuance of the Preferred Trust Securities ...................11
Section 2.05. Subscription and Purchase of Debentures; Issuance of the
Common Trust Securities ...................................11
Section 2.06. Declaration of Trust; Appointment of Additional
Administrative Trustees ...................................12
Section 2.07. Authorization to Enter into Certain Transactions .............12
Section 2.08. Assets of Trust ..............................................16
Section 2.09. Title to Trust Property ......................................16
ARTICLE III
Payment Account
Section 3.01. Payment Account ..............................................16
ARTICLE IV
Distributions; Redemption
Section 4.01. Distributions ................................................17
Section 4.02. Redemption ...................................................17
Section 4.03. Subordination of Common Trust Securities .....................20
Section 4.04. Payment Procedures ...........................................20
Section 4.05. Tax Returns and Reports ......................................20
Section 4.06. Payments under Indenture .....................................21
ARTICLE V
Trust Securities Certificates
Section 5.01. Initial Ownership ............................................21
Section 5.02. The Trust Securities Certificates ............................21
Section 5.03. Execution and Delivery of Trust Securities Certificates ......22
Section 5.04. Registration of Transfer and Exchange of Trust Securities
Certificates ..............................................22
Section 5.05. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates ..............................................23
Section 5.06. Persons Deemed Securityholders ...............................23
-i-
<PAGE>
Section 5.07. Access to List of Securityholders' Names and Addresses .......24
Section 5.08. Maintenance of Office or Agency ..............................24
Section 5.09. Appointment of Paying Agent ..................................24
Section 5.10. Ownership of Common Trust Securities by Depositor ............25
Section 5.11. Definitive Preferred Trust Securities Certificates ...........25
Section 5.12. Book-Entry System ............................................26
Section 5.13. Rights of Securityholders ....................................26
Section 5.14. Cancellation by Transfer Agent and Registrar .................27
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
Section 6.01. Limitations on Voting Rights .................................27
Section 6.02. Notice of Meetings ...........................................28
Section 6.03. Meetings of Holders of Preferred Trust Securities ............28
Section 6.04. Voting Rights ................................................29
Section 6.05. Proxies, etc .................................................29
Section 6.06. Securityholder Action by Written Consent .....................29
Section 6.07. Record Date for Voting and Other Purposes ....................29
Section 6.08. Acts of Securityholders ......................................29
Section 6.09. Inspection of Records ........................................30
ARTICLE VII
Representations and Warranties of the Property
Trustee and the Delaware Trustee
Section 7.01. Property Trustee .............................................31
Section 7.02. Delaware Trustee .............................................32
ARTICLE VIII
The Trustees
Section 8.01. Certain Duties and Responsibilities ..........................33
Section 8.02. Notice of Defaults ...........................................34
Section 8.03. Certain Rights of Property Trustee ...........................34
Section 8.04. Not Responsible for Recitals or Issuance of Securities .......37
Section 8.05. May Hold Securities ..........................................37
Section 8.06. Compensation; Fees; Indemnity ................................38
Section 8.07. Certain Trustees Required; Eligibility .......................39
Section 8.08. Conflicting Interests ........................................39
Section 8.09. Co-Trustees and Separate Trustee .............................39
Section 8.10. Resignation and Removal; Appointment of Successor ............41
Section 8.11. Acceptance of Appointment by Successor .......................42
Section 8.12. Merger, Conversion, Consolidation or Succession to Business ..43
Section 8.13. Preferential Collection of Claims Against Depositor or Trust .43
Section 8.14. Reports by Property Trustee ..................................43
Section 8.15. Reports to the Property Trustee ..............................44
Section 8.16. Evidence of Compliance With Conditions Precedent .............44
Section 8.17. Number of Trustees ...........................................44
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<PAGE>
Section 8.18. Delegation of Power ..........................................44
Section 8.19. Fiduciary Duty ...............................................45
Section 8.20. Delaware Trustee .............................................46
ARTICLE IX
Dissolution and Liquidation
Section 9.01. Dissolution Upon Expiration Date .............................46
Section 9.02. Early Dissolution ............................................46
Section 9.03. Termination ..................................................47
Section 9.04. Liquidation ..................................................47
Section 9.05. Mergers, Consolidations, Amalgamations or Replacements
of the Trust ..............................................49
ARTICLE X
Miscellaneous Provisions
Section 10.02. Limitation of Rights of Securityholders ......................50
Section 10.03. Amendment ....................................................50
Section 10.04. Separability .................................................52
Section 10.05. Governing Law ................................................52
Section 10.06. Successors ...................................................52
Section 10.07. Headings .....................................................52
Section 10.08. Notice and Demand ............................................52
Section 10.09. Agreement Not to Petition ....................................53
Section 10.10. Conflict with Trust Indenture Act ............................53
Section 10.11. Counterparts .................................................54
Exhibit A: Certificate of Trust .........................................A-1
Exhibit B: Form of Common Trust Security ................................B-1
Exhibit C: Form of Preferred Trust Security .............................C-1
-iii-
<PAGE>
AMENDED AND RESTATED TRUST AGREEMENT, dated as of ______, ____, among
(i) PP&L Resources, Inc., a Delaware corporation as depositor (the "Depositor")
and as Trust Securities guarantor (the "Trust Securities Guarantor"), (ii) The
Chase Manhattan Bank, a banking corporation duly organized and existing under
the laws of the State of New York, as trustee (the "Property Trustee" and, in
its separate capacity and not in its capacity as Property Trustee, the "Bank"),
(iii) Chase Manhattan Bank Delaware, a banking corporation duly organized under
the laws of Delaware, as Delaware trustee (the "Delaware Trustee"), (iv)
__________ and ___________, each an individual, and each of whose address is c/o
PP&L, Inc., Two North Ninth Street, Allentown, Pennsylvania 18101-1179 (each, an
"Administrative Trustee" and collectively the "Administrative Trustees") (the
Property Trustee, the Delaware Trustee and the Administrative Trustees are
referred to herein each as a "Trustee" and collectively as the "Trustees") and
(v) the several Holders, as hereinafter defined.
R E C I T A L S:
- - - - - - - -
The Depositor, the Property Trustee, the Delaware Trustee and
James E. Abel, as Administrative Trustee, have heretofore duly created a
business trust under the Delaware Business Trust Act by the entering into of
that certain Trust Agreement, dated as of September __, 1999 (the "Original
Trust Agreement"), and by the execution by the Property Trustee, the Delaware
Trustee and James E. Abel, as Administrative Trustee and filing with the
Secretary of State of the State of Delaware of the Certificate of Trust, dated
September __, 1999, a copy of which is attached as Exhibit A (as it may be
amended from time to time, the "Certificate of Trust").
[The Trust and the Depositor have entered into an Underwriting
Agreement dated _______, ____ with ___________________________________________.]
The parties hereto desire to amend and restate the Original Trust
Agreement in its entirety as set forth herein to provide for, among other
things, (i) the issuance of the Common Trust Securities, as hereinafter defined,
by the Trust to the Depositor, (ii) the issuance of the Preferred Trust
Securities, as hereinafter defined, by the Trust, pursuant to the Underwriting
Agreement and (iii) the acquisition by the Trust of all of the right, title and
interest in the Debentures, as hereinafter defined.
NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, each party, for the benefit of the
<PAGE>
other party and for the benefit of the Securityholders, hereby amends and
restates the Original Trust Agreement in its entirety and agrees as follows:
ARTICLE I
DEFINED TERMS
SECTION 1.01. DEFINITIONS. For all purposes of this Trust Agreement,
except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.08.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount for a given period, the amount of Additional Interest (as
defined in the Subordinated Indenture) paid by the Debenture Issuer on a Like
Amount of Debentures for such period.
"Administrative Trustee" means each of the individuals identified as
an "Administrative Trustee" in the preamble to this Trust Agreement solely in
their capacities as Administrative Trustees of the Trust and not in their
individual capacities, or such trustee's successor in interest in such capacity,
or any successor trustee appointed as herein provided.
"Adverse Tax Consequence" means any of the circumstances described in
clauses (i), (ii) and (iii) of the definition of "Tax Event" herein.
"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
-2-
<PAGE>
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authorized Officer" means the Chairman of the Board, the President
and Vice President, the Treasurer, any Assistant Treasurer or any other officer
or agent of the Depositor duly authorized by the Board of Directors to act in
respect of matters relating to this Trust Agreement.
"Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
(i) the entry of a decree or order by a court having jurisdiction
in the premises judging such Person a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjudication or composition of or in respect of such
Person under Federal bankruptcy law or any other applicable Federal or
state law, or appointing a receiver, liquidator, assignee, trustee,
sequestrator or other similar official of such Person or of any
substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order unstayed and in effect for a period of 60 consecutive days; or
(ii) the institution by such Person of proceedings to be
adjudicated a bankrupt or insolvent, or of the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under Federal bankruptcy law or any other applicable Federal
or state law, or the consent by it to the filing of such petition or
to the appointment of a receiver, liquidator, assignee, trustee,
sequestrator or similar official of such Person or of any substantial
part of its property, or the making by it of an assignment for the
benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due.
"Bankruptcy Laws" has the meaning specified in Section 10.09.
"Business Day" means a day other than (x) a Saturday or a Sunday, (y)
a day on which banks in New York, New York or Pennsylvania are authorized or
obligated by law or executive order to remain closed or (z) a day on which the
Property Trustee's Corporate Trust Office or the Debenture Trustee's principal
corporate trust office is closed for business.
"Certificate of Trust" has the meaning specified the recitals hereof.
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"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act.
"Closing Date" means the date of execution and delivery of this Trust
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Trust Security" means a security representing an undivided
beneficial interest in the assets of the Trust having a Liquidation Amount of
$25 and having the rights provided therefor in this Trust Agreement, including
the right to receive Distributions, Debentures and a Liquidation Distribution as
provided herein.
"Common Trust Securities Certificate" means a certificate evidencing
ownership of Common Trust Securities, substantially in the form attached as
Exhibit B.
"Corporate Trust Office" means the principal corporate trust office of
the Property Trustee located in New York, New York which at the date of
execution of this Trust Agreement is located at 450 West 33rd Street, 15th
Floor, New York, New York 10001.
"Covered Person" means: (a) any officer, director, shareholder,
partner, member, representative, employee or agent of the Trust or the Trust's
Affiliates; and (b) any Holder of Trust Securities.
"Debenture Event of Default" means an "Event of Default" as defined in
the Subordinated Indenture.
"Debenture Issuer" means PP&L Capital Funding, Inc., a Delaware
corporation, in its capacity as issuer of the Debentures, and its successors.
"Debenture Redemption Date" means "Redemption Date" as defined in the
Subordinated Indenture with respect to the Debentures.
"Debenture Trustee" means The Chase Manhattan Bank, a New York banking
corporation, as trustee under the Subordinated Indenture, and its permitted
successors and assigns as such trustee.
"Debentures" means $___________ aggregate principal amount of the
Debenture Issuer's __% Subordinated Debt Securities, Series _, issued pursuant
to the Subordinated Indenture which will mature on ______, ____.
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"Definitive Preferred Trust Securities Certificates" means Preferred
Trust Securities Certificates issued in certificated, fully registered form as
provided in Section 5.11.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from time
to time.
"Delaware Trustee" means the banking corporation identified as the
"Delaware Trustee" in the preamble to this Trust Agreement solely in its
capacity as Delaware Trustee of the Trust and not in its individual capacity, or
its successor in interest in such capacity, or any successor trustee appointed
as herein provided.
"Depositor" has the meaning specified in the preamble to this Trust
Agreement and includes PP&L Resources, Inc., in its capacity as Holder of the
Common Trust Securities, and its successors.
"Distribution Date" has the meaning specified in Section 4.01(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.01.
"Early Termination Event" has the meaning specified in Section 9.02.
"Event of Default" means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(i) the occurrence of a Debenture Event of Default; or
(ii) default by the Trust in the payment of any Distribution when
it becomes due and payable, and continuation of such default for a
period of 30 days; or
(iii) default by the Trust in the payment of any Redemption
Price, plus accumulated and unpaid Distributions, of any Trust
Security when it becomes due and payable; or
(iv) default in the performance, or breach, in any material
respect, of any covenant or warranty of the Trustees in this Trust
Agreement (other than a covenant or warranty a default in whose
performance or breach is specifically dealt with in clause (ii) or
(iii), above) and continuation of such default or breach for a period
of 90 days after there has been given, by registered or certified
mail, to the Trust and the Depositor by the Holders of at least 25% in
Liquidation Amount of the Outstanding Preferred Trust Securities a
written notice specifying such default or breach and requiring it to
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be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(v) the occurrence of a Bankruptcy Event with respect to the
Trust.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Expiration Date" shall have the meaning specified in Section 9.01.
"Indemnified Person" means any Trustee, any Affiliate of any Trustee,
or any officer, director, shareholder, member, partners, employee,
representative or agent of any Trustee, or any employee or agent of the Trust or
its Affiliates.
"Investment Company Act" means the Investment Company Act of 1940, as
amended.
["Investment Company Event" means ____________________.]
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (i) Trust Securities having a Liquidation Amount
equal to the principal amount of Debentures to be contemporaneously redeemed in
accordance with the Subordinated Indenture and the proceeds of which will be
used to pay the Redemption Price of such Trust Securities plus accumulated and
unpaid Distributions to the date of such payment and (ii) Debentures having a
principal amount equal to the Liquidation Amount of the Trust Securities of the
Holders to which such Debentures are distributed.
"Liquidation Amount" means the stated amount of $25 per Trust
Security.
"Liquidation Date" means the date on which Debentures are to be
distributed to Holders of Trust Securities in connection with a dissolution and
liquidation of the Trust pursuant to Section 9.04.
"Liquidation Distribution" has the meaning specified in Section
9.04(e).
"Offer" has the meaning specified in Section 2.07(c).
"Officer's Certificate" means a certificate signed by an Authorized
Officer of the Depositor and delivered to the appropriate Trustee. Any officer
signing an Officer's Certificate given pursuant to Section 8.16 shall be the
principal executive, financial or accounting officer of the Depositor. Any
Officer's Certificate delivered with respect to compliance with a condition or
covenant provided for in this Trust Agreement shall include:
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(a) a statement that the officer signing the Officer's Certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by such officer in rendering the Officer's
Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer 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 such officer, such
condition or covenant has been complied with.]
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Trust, the Property Trustee, the Delaware Trustee or the
Depositor, and who shall be reasonably acceptable to the Property Trustee. [Any
Opinion of Counsel delivered with respect to compliance with a condition or
covenant provided for in this Trust Agreement shall include statements
comparable to the statements referred to in the definition of "Officer's
Certificate" herein.]
"Original Trust Agreement" has the meaning specified in the recitals
to this Trust Agreement.
"Outstanding," when used with respect to Preferred Trust Securities,
means, as of the date of determination, all Preferred Trust Securities
theretofore delivered under this Trust Agreement, except:
(i) Preferred Trust Securities theretofore canceled by the
Transfer Agent and Registrar or delivered to the Transfer Agent and
Registrar for cancellation;
(ii) Preferred Trust Securities for whose payment or redemption
money in the necessary amount has been theretofore deposited with the
Property Trustee or any Paying Agent for the Holders of such Preferred
Trust Securities; provided that, if such Preferred Trust Securities
are to be redeemed, notice of such redemption has been duly given
pursuant to this Trust Agreement; and
(iii) Preferred Trust Securities which have been paid or in
exchange for or in lieu of which other Preferred Trust Securities have
been delivered pursuant to this Trust Agreement, including pursuant to
Sections 5.04, 5.05 or 5.11;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Trust Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Preferred Trust Securities owned by the Depositor, the Guarantor, any
Administrative Trustee or any Affiliate of the Depositor, the Guarantor or any
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Administrative Trustee shall be disregarded and deemed not to be Outstanding,
except that (a) in determining whether any Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Preferred Trust Securities which such Trustee knows to be so owned
shall be so disregarded and (b) the foregoing shall not apply at any time when
all of the Outstanding Preferred Trust Securities are owned by the Depositor,
the Guarantor, one or more of the Administrative Trustees and/or any such
Affiliate. Preferred Trust Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Administrative Trustees the pledgee's right so to act with
respect to such Preferred Trust Securities and that the pledgee is not the
Depositor or the Guarantor, or any Affiliate of the Depositor or the Guarantor.
"Owner" means each Person who is the beneficial owner of a Trust
Securities Certificate as reflected in the records of the Securities Depository
or, if a Securities Depository participant is not the beneficial owner, then as
reflected in the records of a Person maintaining an account with such Securities
Depository (directly or indirectly), in accordance with the rules of such
Securities Depository.
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.09 and shall initially be the Property Trustee.
"Payment Account" means a segregated non-interest-bearing corporate
trust account maintained by the Property Trustee with the Bank, or such other
banking institution as the Depositor shall select for the benefit of the
Securityholders in which all amounts paid in respect of the Debentures will be
held and from which the Paying Agent, pursuant to Section 5.09, shall make
payments to the Securityholders in accordance with Sections 4.01 and 4.02.
"Person" means any individual, corporation, partnership, joint
venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.
"Preferred Trust Security" means a security representing an undivided
beneficial interest in the assets of the Trust having a Liquidation Amount of
$25 and having rights provided therefor in this Trust Agreement, including the
right to receive Distributions, Debentures and a Liquidation Distribution as
provided herein and, in certain circumstances, a preference over the Common
Trust Securities.
"Preferred Trust Securities Certificate" means a certificate
evidencing ownership of Preferred Trust Securities, substantially in the form
attached as Exhibit C.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee" in the preamble to this Trust Agreement
solely in its capacity as Property Trustee of the Trust and not in its
individual capacity, or its successor in interest in such capacity, or any
successor trustee appointed as herein provided.
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"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Debenture Redemption Date shall be a Redemption
Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any date fixed for
redemption of any Trust Security, the Liquidation Amount of such Trust Security.
"Relevant Trustee" shall have the meaning specified in Section 8.10.
"Responsible Officer," when used with respect to the Property Trustee
means an officer of the Property Trustee assigned by the Property Trustee to
administer its corporate trust matters.
"Securities Depository" shall have the meaning specified in Section
5.12. The Depository Trust Company will be the initial Securities Depository.
"Securities Register" shall mean the Securities Register as described
in Section 5.04.
"Securityholder" or "Holder" means a Person in whose name a Trust
Security or Securities is registered in the Securities Register; any such Person
shall be a beneficial owner of such security within the meaning of the Delaware
Business Trust Act.
"Subordinated Indenture" means the Indenture, dated as of
______________, 1999, among the Debenture Issuer, the Depositor, as guarantor
and the Debenture Trustee, as trustee, as amended or supplemented from time to
time.
"Tax Event" means the receipt by the Trust or the Depositor of an
Opinion of Counsel experienced in such matters to the effect that, as a result
of (a) any amendment to, clarification of, or change (including any announced
prospective change) in, the laws or treaties (or any regulations thereunder) of
the United States or any political subdivision or taxing authority thereof or
therein affecting taxation, (b) any judicial decision or any official
administrative pronouncement, ruling, regulatory procedure, notice or
announcement (including any notice or announcement of intent to issue or adopt
any such administrative pronouncement, ruling, regulatory procedure or
regulation) (each, an "Administrative Action"), or (c) any amendment to,
clarification of, or change in the official position or the interpretation of
any such Administrative Action or judicial decision or any interpretation or
pronouncement that provides for a position with respect to such Administrative
Action or judicial decision that differs from the theretofore generally accepted
position, in each case by any legislative body, court, governmental authority or
regulatory body, irrespective of the time or manner in which such amendment,
clarification or change is introduced or made known, which amendment,
clarification, or change is effective, or which Administrative Action is taken
or which judicial decision is issued, in each case on or after the date of
issuance of the Preferred Trust Securities, there is more than an insubstantial
risk that (i) the Trust is, or will be subject to United States Federal income
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tax with respect to interest received on the Debentures, (ii) interest payable
by the Depositor on the Debentures is not, or will not be, fully deductible by
the Depositor for United States Federal income tax purposes, or (iii) the Trust
is, or will be subject to more than a de minimis amount of other taxes, duties
or other governmental charges.
"Transfer Agent and Registrar" shall mean the transfer agent and
registrar for the Preferred Trust Securities appointed by the Trust and shall be
initially the Property Trustee.
"Trust" means the Delaware business trust created by the Original
Trust Agreement and the Certificate of Trust and continued hereby and identified
on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement, as
the same may be modified, amended or supplemented in accordance with the
applicable provisions hereof, including (i) all exhibits hereto and (ii) for all
purposes of this Amended and Restated Trust Agreement and any such modification,
amendment or supplement, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this Amended and Restated Trust Agreement and
any such modification, amendment or supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as amended
and in force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (i) the Debentures, (ii) any cash on deposit
in, or owing to, the Payment Account and (iii) all proceeds and rights in
respect of the foregoing and any other property and assets for the time being
held by the Property Trustee pursuant to the trusts of this Trust Agreement.
"Trust Securities Certificate" means any one of the Common Trust
Securities Certificates or the Preferred Trust Securities Certificates.
"Trust Securities Guarantee" means the Trust Securities Guarantee
Agreement executed and delivered by the Depositor, as guarantor and The Chase
Manhattan Bank, a New York banking corporation, as trustee, contemporaneously
with the execution and delivery of this Trust Agreement, for the benefit of the
Holders of the [Preferred] Trust Securities, as amended from time to time.
"Trust Securities Guarantor" means PP&L Resources, Inc., a
Pennsylvania corporation, and its successors, as guarantor under the Trust
Securities Guarantee.
"Trust Security" means any one of the Common Trust Securities or the
Preferred Trust Securities.
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"Trustees" mean, collectively, the Property Trustee, the Delaware
Trustee and the Administrative Trustees.
"Underwriting Agreement" means the Underwriting Agreement, dated as of
_______, ____, among the Trust, the Depositor and the underwriters named
therein.
ARTICLE II
CONTINUATION OF THE TRUST
SECTION 2.01. NAME. The Trust continued hereby shall be known as "PP&L
Capital Funding Trust I", as such name may be modified from time to time by the
Administrative Trustees following written notice to the Holders of Trust
Securities and the other Trustees, in which name the Trustees may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and sue and be sued.
SECTION 2.02. OFFICE OF THE DELAWARE TRUSTEE; PRINCIPAL PLACE OF
BUSINESS. The office of the Delaware Trustee in the State of Delaware is 1201
Market Street, 9th Floor, Wilmington, Delaware 19801, or at such other address
in Delaware as the Delaware Trustee may designate by written notice to the
Securityholders, the Depositor and the Trust Securities Guarantor. The principal
place of business of the Trust is c/o PP&L Resources, Inc., Two North Ninth
Street, Allentown, Pennsylvania 18101-1179.
SECTION 2.03. INITIAL CONTRIBUTION OF TRUST PROPERTY; ORGANIZATIONAL
EXPENSES. The Property Trustee acknowledges receipt in trust from the Depositor
in connection with the Original Trust Agreement of the sum of $10, which
constituted the initial Trust Property. The Depositor shall pay organizational
expenses of the Trust as they arise or shall, upon request of any Trustee,
promptly reimburse such Trustee for any such expenses paid by such Trustee. The
Depositor shall make no claim upon the Trust Property for the payment of such
expenses.
SECTION 2.04. ISSUANCE OF THE PREFERRED TRUST SECURITIES. On _______,
____, an authorized representative of the Depositor and the Trust, both executed
and delivered the Underwriting Agreement. Contemporaneously with the execution
and delivery of this Trust Agreement, one of the Administrative Trustees, on
behalf of the Trust in accordance with Section 5.02, executed and delivered a
Preferred Trust Securities Certificate, registered in the name of the nominee of
The Depository Trust Company, having an aggregate Liquidation Amount of
$___________.
SECTION 2.05. SUBSCRIPTION AND PURCHASE OF DEBENTURES; ISSUANCE OF THE
COMMON TRUST SECURITIES. Contemporaneously with the execution and delivery of
this Trust Agreement, the Administrative Trustees, on behalf of the Trust,
subscribed to and purchased from the Debenture Issuer Debentures, registered in
the name of the Property Trustee and having an aggregate principal amount equal
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to $___________ and, in satisfaction of the purchase price for such Debentures,
(x) one of the Administrative Trustees, on behalf of the Trust, executed and
delivered to the Depositor Common Trust Securities Certificates, registered in
the name of the Depositor, representing _____ Common Trust Securities having an
aggregate Liquidation Amount of $_________, and (y) the Property Trustee, on
behalf of the Trust, delivered to the Debenture Issuer the sum of $___________
representing the proceeds from the sale of the Preferred Trust Securities
pursuant to the Underwriting Agreement.
SECTION 2.06. DECLARATION OF TRUST; APPOINTMENT OF ADDITIONAL
ADMINISTRATIVE TRUSTEES. The exclusive purposes and functions of the Trust are
(i) to issue Trust Securities and invest the proceeds thereof in Debentures, and
(ii) to engage in those activities necessary or incidental thereto. The
Depositor hereby appoints the Trustees as trustees of the Trust, to have all the
rights, powers and duties to the extent set forth herein, and the Trustees
hereby accept such appointment. The Property Trustee hereby declares that it
will hold the Trust Property in trust upon and subject to the conditions set
forth herein for the benefit of the Securityholders. The Trustees shall have all
rights, powers and duties set forth herein and in accordance with applicable law
with respect to accomplishing the purposes of the Trust. Anything in this Trust
Agreement to the contrary notwithstanding, the Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee have any of the
duties and responsibilities of the Property Trustee or the Administrative
Trustees set forth herein. The Delaware Trustee shall be one of the Trustees of
the Trust for the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Delaware Business Trust Act.
SECTION 2.07. AUTHORIZATION TO ENTER INTO CERTAIN TRANSACTIONS. (a)
The Trustees shall conduct the affairs of the Trust in accordance with the terms
of this Trust Agreement. Subject to the limitations set forth in paragraph (b)
of this Section and Article VIII and in accordance with the following provisions
(A) and (B), the Trustees shall have the authority to enter into all
transactions and agreements determined by the Trustees to be appropriate in
exercising the authority, express or implied, otherwise granted to the Trustees
under this Trust Agreement, and to perform all acts in furtherance thereof,
including without limitation, the following:
(A) As among the Trustees, the Administrative Trustees, acting singularly
or together, shall have the power, duty and authority to act on behalf of the
Trust with respect to the following matters:
(i) the issuance and sale of the Trust Securities pursuant to the
Underwriting Agreement;
(ii) without the consent of any Person, to cause the Trust to
enter into and to execute, deliver and perform on behalf of the Trust,
such agreements as may be necessary or desirable in connection with
the consummation of the Underwriting Agreement;
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(iii) to qualify the Trust to do business in any jurisdiction as
may be necessary or desirable;
(iv) the registration of the Preferred Trust Securities under the
Securities Act of 1933, as amended, and under state securities or blue
sky laws, and the qualification of this Trust Agreement as a trust
indenture under the Trust Indenture Act;
(v) the listing, if any, of the Preferred Trust Securities upon
such national securities exchange or exchanges or automated quotation
system or systems as shall be determined by the Depositor and the
registration of the Preferred Trust Securities under the Exchange Act,
and the preparation and filing of all periodic and other reports and
other documents pursuant to the foregoing;
(vi) the appointment or removal of a Paying Agent and Transfer
Agent and Registrar in accordance with this Trust Agreement;
(vii) the establishment of a record date for any of the purposes
contemplated by Section 6.07 hereof;
(viii) to duly prepare and file all applicable tax returns and
tax information reports that are required to be filed with respect to
the Trust on behalf of the trust;
(ix) to take all action that may be necessary or appropriate for
the preservation and the continuation of the Trust's valid existence,
rights, franchises and privileges as a statutory business trust under
the laws of the State of Delaware and of each other jurisdiction in
which such existence is necessary to protect the limited liability of
the Holders of the Preferred Trust Securities or to enable the Trust
to effect the purposes for which the Trust was created;
(x) to execute and deliver all documents or instruments, perform
all duties and powers, and do all things for and on behalf of the
Trust in all matters necessary or incidental to the foregoing;
(xi) to the extent provided in this Trust Agreement, the winding
up of the affairs of and liquidation of the Trust and the preparation,
execution and filing of the certificate of cancellation with the
Secretary of State of Delaware; and
(xii) the taking of any action incidental to the foregoing as the
Administrative Trustees may from time to time determine is necessary
or advisable to protect and conserve the Trust Property for the
benefit of the Securityholders (without consideration of the effect of
any such action on any particular Securityholder).
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(B) As among the Trustees, the Property Trustee shall have the power, duty
and authority to act on behalf of the Trust with respect to the following
ministerial matters:
(i) the establishment of the Payment Account;
(ii) the receipt of the Debentures;
(iii) the collection and deposit in the Payment Account of
interest, principal and any other payments made in respect of the
Debentures;
(iv) the distribution of amounts owed to the Securityholders in
respect of the Trust Securities in accordance with the terms of this
Trust Agreement;
(v) the sending of notices of default and other information
regarding the Trust Securities and the Debentures to the
Securityholders in accordance with the terms of this Trust Agreement;
(vi) the distribution of the Trust Property in accordance with
the terms of this Trust Agreement;
(vii) to the extent provided in this Trust Agreement, the winding
up of the affairs of and liquidation of the Trust and the execution of
the certificate of cancellation to be prepared and filed by the
Administrative Trustees with the Secretary of State of the State of
Delaware; and
(viii) the taking of any ministerial action incidental to the
foregoing as the Property Trustee may from time to time determine is
necessary or advisable to protect and conserve the Trust Property for
the benefit of the Securityholders (without consideration of the
effect of any such action on any particular Securityholder).
Subject to this Section 2.07(a)(B), the Property Trustee shall have
none of the duties, powers or authority of the Administrative Trustees set forth
in Sections 2.07(a)(A) and 2.07(c) or the Depositor set forth in Section
2.07(c). The Property Trustee shall have the power and authority to exercise all
of the rights, powers and privileges of a holder of Debentures under the
Subordinated Indenture, subject to the terms of this Trust Agreement, and, if an
Event of Default occurs and is continuing, the Property Trustee may, for the
benefit of Holders of the Trust Securities, in its discretion, proceed to
protect and enforce its rights as holder of the Debentures subject to the rights
of the Holders pursuant to the terms of this Trust Agreement.
(b) So long as this Trust Agreement remains in effect, the Trust (or
the Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trustees, acting on behalf of the Trust, shall not
(i) acquire any investments or engage in any activities not authorized by this
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Trust Agreement, (ii) sell, assign, transfer, exchange, pledge, set-off or
otherwise dispose of any of the Trust Property or interests therein, including
to Securityholders, except as expressly provided herein, (iii) take any action
that would reasonably be expected to cause the Trust to fail or cease to qualify
as a "grantor trust" for United States Federal income tax purposes and not as an
association taxable as a corporation, (iv) incur any indebtedness for borrowed
money or (v) take or consent to any action that would result in the placement of
a Lien on any of the Trust Property. The Trustees shall defend all claims and
demands of all Persons at any time claiming any Lien on any of the Trust
Property adverse to the interest of the Trust or the Securityholders in their
capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Trust
Securities, each of the Depositor and the Administrative Trustees, acting
singularly or together, (and, in the case of (iii) and (v) below,
____________________, as authorized representative of the Trust), shall have the
right and responsibility to assist the Trust with respect to, or effect on
behalf of the Trust, the following (and any actions taken by the Depositor in
furtherance of the following prior to the date of this Trust Agreement are
hereby ratified and confirmed in all respects):
(i) to prepare for filing by the Trust with the Commission and to
execute and file a registration statement on Form S-3 in relation to
the Preferred Trust Securities, including any amendments thereto and
to take any action necessary or desirable to sell the Preferred Trust
Securities in a transaction or series of transactions pursuant
thereto;
(ii) to determine the States in which to take appropriate action
to qualify or register for sale all or part of the Preferred Trust
Securities and to do any and all such acts, other than actions which
must be taken by or on behalf of the Trust, and advise the Trustees of
actions they must take on behalf of the Trust, and prepare for
execution and filing any documents to be executed and filed by the
Trust or on behalf of the Trust, as the Depositor deems necessary or
advisable in order to comply with the applicable laws of any such
States in connection with the sale of Preferred Trust Securities;
(iii) to select the investment banker or bankers to act as
underwriters with respect to the offer and sale by the Trust of
Preferred Trust Securities ("Offer") and negotiate the terms of an
Underwriting Agreement and pricing agreement providing for the Offer;
(iv) to execute and deliver on behalf of the Trust the
Underwriting Agreement and such other agreements as may be necessary
or desirable in connection with the consummation thereof;
(v) to take any other actions necessary or desirable to carry out
any of the foregoing activities.
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(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees are hereby authorized and directed to conduct the
affairs of the Trust and to operate the Trust so that the Trust will not be
deemed to be an "investment company" required to be registered under the
Investment Company Act or classified other than as a "grantor trust" for United
States Federal income tax purposes and not as an association taxable as a
corporation and so that the Debentures will be treated as indebtedness of the
Debenture Issuer for United States Federal income tax purposes. In this
connection, the Depositor and the Administrative Trustees are authorized to take
any action, not inconsistent with applicable law, the Certificate of Trust or
this Trust Agreement, that each of the Depositor and the Administrative Trustees
determines in its discretion to be necessary or desirable for such purposes, as
long as such action does not materially adversely affect the interests of the
Holders of the Preferred Trust Securities.
SECTION 2.08. ASSETS OF TRUST. The assets of the Trust shall consist
of the Trust Property.
SECTION 2.09. TITLE TO TRUST PROPERTY. Legal title to all Trust
Property shall be vested at all times in the Property Trustee (in its capacity
as such) and shall be held and administered by the Property Trustee for the
benefit of the Securityholders in accordance with this Trust Agreement.
ARTICLE III
PAYMENT ACCOUNT
SECTION 3.01. PAYMENT ACCOUNT.
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and any Paying Agent
appointed by the Administrative Trustees shall have exclusive control and sole
right of withdrawal with respect to the Payment Account for the purpose of
making deposits in and withdrawals from the Payment Account in accordance with
this Trust Agreement. All monies and other property deposited or held from time
to time in the Payment Account shall be held by the Property Trustee in the
Payment Account for the exclusive benefit of the Holders of Trust Securities and
for distribution as herein provided, including (and subject to) any priority of
payments provided for herein. The Property Trustee shall have no liability in
any respect whatsoever in regards to any moneys or other property deposited in
the Payment Account at an institution other than the Property Trustee.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal or interest on, and any other
payments or proceeds with respect to, the Debentures. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
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ARTICLE IV
DISTRIBUTIONS; REDEMPTION
SECTION 4.01. DISTRIBUTIONS.
(a) Distributions on the Trust Securities shall be cumulative, and
will accumulate whether or not there are funds of the Trust available for the
payment of Distributions. Distributions shall accrue from the Closing Date, and,
except in the event (and to the extent) that the Depositor exercises its right
to extend the interest payment period for the Debentures pursuant to Section 312
of the Subordinated Indenture, shall be payable quarterly in arrears on
_________, _________, __________, and __________ of each year, commencing on
_______, ____. If any date on which Distributions are otherwise payable on the
Trust Securities is not a Business Day, then the payment of such Distribution
shall be made on the next succeeding day which is a Business Day (and without
any interest or other payment in respect of any such delay) in each case, with
the same force and effect as if made on such date (each date on which
Distributions are payable in accordance with this Section 4.01(a) a
"Distribution Date").
(b) Distributions payable on the Trust Securities shall be fixed at a
rate of __% per annum of the Liquidation Amount of the Trust Securities. The
amount of Distributions payable for any quarterly period shall be computed on
the same basis as interest is calculated on the Debentures. If the interest
payment period for the Debentures is extended pursuant to Section 311 of the
Subordinated Indenture, then Distributions on the Trust Securities will be
deferred for the period equal to the extension of the interest payment period
for the Debentures and the rate per annum at which Distributions on the Trust
Securities accumulate shall be increased by an amount such that the aggregate
amount of Distributions that accumulate on all Trust Securities during any such
extended interest payment period is equal to the aggregate amount of interest
(including, to the extent permitted by law, interest payable on unpaid interest
at the percentage rate per annum set forth above, compounded quarterly) that
accrues during any such extended interest payment period on the Debentures. The
amount of Distributions payable for any period shall include the Additional
Amounts, if any.
(c) Distributions on the Trust Securities shall be made and shall be
deemed payable on each Distribution Date only to the extent that the Trust has
funds available in the Payment Account for the payment of such Distributions.
(d) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on the
Securities Register for the Trust Securities on the relevant record date, which
shall be one Business Day prior to the relevant Distribution Date, if Trust
Securities are in book-entry only form, and 15 days prior to the relevant
Distribution Date if Trust Securities are not in book-entry only form.
SECTION 4.02. REDEMPTION.
(a) On each Debenture Redemption Date and at the maturity date
("Maturity Date") for the Debentures (as defined in the Subordinated Indenture),
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the Property Trustee will be required to redeem a Like Amount of Trust
Securities at the Redemption Price plus accumulated and unpaid Distributions to
the Redemption Date or Maturity Date, as the case may be.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date to each Holder of Trust Securities to be redeemed,
at such Holder's address appearing in the Security Register. All notices of
redemption or liquidation shall state:
(i) the Redemption Date;
(ii) the Redemption Price and the amount of accumulated and
unpaid Distributions to be paid on the Redemption Date;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are to be
redeemed, the identification and the total Liquidation Amount of the
particular Trust Securities to be redeemed;
(v) that on the Redemption Date the Redemption Price plus
accumulated and unpaid Distributions to the Redemption Date will
become due and payable upon each such Trust Security to be redeemed
and that Distributions thereon will cease to accrue on and after said
date; and
(vi) if the Preferred Trust Securities are no longer held in
book-entry only form, the place and address where the Holders shall
surrender their Preferred Trust Securities Certificates.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price plus accumulated and unpaid Distributions to
the Redemption Date with the proceeds from the contemporaneous redemption of
Debentures. Redemptions of the Trust Securities shall be made and the Redemption
Price plus accumulated and unpaid Distributions to the Redemption Date shall be
deemed payable on each Redemption Date only to the extent that the Trust has
funds immediately available in the Payment Account for such payment.
(d) If the Property Trustee gives a notice of redemption in respect of
any Preferred Trust Securities, then, by 12:00 noon, New York time, on the
Redemption Date, subject to Section 4.02(c), the Property Trustee shall
irrevocably deposit with the Paying Agent funds sufficient to pay the applicable
Redemption Price plus accumulated and unpaid Distributions to the Redemption
Date and will give the Paying Agent irrevocable instructions and authority to
pay the Redemption Price plus accumulated and unpaid Distributions to the
Redemption Date to the Holders thereof upon surrender of their Preferred Trust
Securities Certificates and Common Trust Securities Certificates.
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Notwithstanding the foregoing, Distributions on the Trust Securities with
respect to Distribution Dates occurring on or prior to the Redemption Date for
any Trust Securities called for redemption shall be payable to the Holders of
such Trust Securities as they appear on the Securities Register for the Trust
Securities on the relevant record dates for the related Distribution Dates. If
notice of redemption shall have been given and funds deposited as required, then
on the Redemption Date, all rights of Securityholders holding Trust Securities
so called for redemption will cease, except the right of such Securityholders to
receive the Redemption Price plus accumulated and unpaid Distributions to the
Redemption Date thereof, but without interest thereon, and such Trust Securities
will cease to be Outstanding. In the event that any Redemption Date is not a
Business Day, then payment of the Redemption Price payable on such date plus
accumulated and unpaid Distributions to such Redemption Date shall be made on
the next succeeding day which is a Business Day (and without any interest or
other payment in respect of any such delay) [, except that, if such Business Day
falls in the next calendar year, such payment will be made on the immediately
preceding Business Day, in each case,] with the same force and effect as if made
on such date. In the event that payment of the Redemption Price plus accumulated
and unpaid Distributions in respect of any Trust Securities called for
redemption is improperly withheld or refused and not paid either by the Trust or
by the Guarantor pursuant to the Trust Securities Guarantee, Distributions on
such Trust Securities will continue to accrue, at the then applicable rate, from
the Redemption Date originally established by the Trust for such Trust
Securities to the date such Redemption Price plus accumulated and unpaid
Distributions is actually paid, in which case the actual payment date will be
deemed the date fixed for redemption for purposes of calculating the Redemption
Price plus accumulated and unpaid Distributions to such date.
(e) Payment of the Redemption Price on the Trust Securities shall be
made to the Holders thereof as they appear on the Securities Register for the
Trust Securities on the relevant record date, which shall be one Business Date
prior to the relevant Redemption Date; provided, however, that in the event that
the Preferred Securities do not remain in book-entry-only form, the relevant
record date shall be the date fifteen days prior to the relevant Redemption
Date.
(f) Subject to Section 4.03(a), if less than all the Outstanding Trust
Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be allocated to the
Common Trust Securities and to the Preferred Trust Securities in the proportion
that the aggregate Liquidation Amount of each is to the aggregate Liquidation
Amount of all outstanding Trust Securities. The particular Preferred Trust
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Property Trustee from the Outstanding Preferred Trust
Securities not previously called for redemption, by such method as the Property
Trustee shall deem fair and appropriate and which may provide for the selection
for redemption of portions (equal to $25 or integral multiples thereof) of the
Liquidation Amount of Preferred Trust Securities of a denomination larger than
$25. The Property Trustee shall promptly notify the Transfer Agent and Registrar
in writing of the Preferred Trust Securities selected for redemption and, in the
case of any Preferred Trust Securities selected for partial redemption, the
Liquidation Amount thereof to be redeemed. For all purposes of this Trust
Agreement, unless the context otherwise requires, all provisions relating to the
redemption of Preferred Trust Securities shall relate, in the case of any
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Preferred Trust Securities redeemed or to be redeemed only in part, to the
portion of the Liquidation Amount of Preferred Trust Securities which has been
or is to be redeemed.
SECTION 4.03. SUBORDINATION OF COMMON TRUST SECURITIES. (a) Payment of
Distributions (including Additional Amounts, if applicable) on, and the
Redemption Price plus accumulated and unpaid Distributions of, the Trust
Securities, as applicable, shall be made pro rata based on the Liquidation
Amount of the Trust Securities; provided, however, that if on any Distribution
Date or Redemption Date an Event of Default resulting from a Debenture Event of
Default shall have occurred and be continuing, no payment of any Distribution
(including Additional Amounts, if applicable) on, or Redemption Price plus
accumulated and unpaid Distributions of, any Common Trust Security, and no other
payment on account of the redemption, liquidation or other acquisition of Common
Trust Securities, shall be made unless payment in full in cash of all
accumulated and unpaid Distributions (including Additional Amounts, if
applicable) on all Outstanding Preferred Trust Securities for all distribution
periods terminating on or prior thereto, or in the case of payment of the
Redemption Price plus accumulated and unpaid Distributions the full amount of
such Redemption Price plus accumulated and unpaid Distributions on all
Outstanding Preferred Trust Securities, shall have been made or provided for,
and all funds immediately available to the Property Trustee shall first be
applied to the payment in full in cash of all Distributions (including
Additional Amounts, if applicable) on, or Redemption Price plus accumulated and
unpaid Distributions of, Preferred Trust Securities then due and payable.
(b) In the case of the occurrence of any Event of Default resulting
from a Debenture Event of Default, the Holder of Common Trust Securities will be
deemed to have waived any right to act with respect to any such Event of Default
under this Trust Agreement until the effect of all such Events of Default with
respect to the Preferred Trust Securities have been cured, waived or otherwise
eliminated. Until all such Events of Default under this Trust Agreement with
respect to the Preferred Trust Securities have been so cured, waived or
otherwise eliminated, the Property Trustee shall, to the fullest extent
permitted by law, act solely on behalf of the Holders of the Preferred Trust
Securities and not the Holder of the Common Trust Securities, and only the
Holders of the Preferred Trust Securities will have the right to direct the
Property Trustee to act on their behalf.
SECTION 4.04. PAYMENT PROCEDURES. Payments in respect of the Preferred
Trust Securities shall be made by check mailed to the address of the Person
entitled thereto as such address shall appear on the Securities Register or, if
the Preferred Trust Securities are held by a Securities Depository, such
Distributions shall be made to the Securities Depository in immediately
available funds, which shall credit the relevant Persons' accounts at such
Securities Depository on the applicable Distribution Dates. Payments in respect
of the Common Trust Securities shall be made in such manner as shall be mutually
agreed between the Property Trustee and the Holder of the Common Trust
Securities.
SECTION 4.05. TAX RETURNS AND REPORTS. The Administrative Trustees
shall prepare (or cause to be prepared), at the Depositor's expense and
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direction, and file all United States Federal, state and local tax and
information returns and reports required to be filed by or in respect of the
Trust. In this regard, the Administrative Trustees shall (a) prepare and file
(or cause to be prepared or filed) the Internal Revenue Service Form 1041 (or
any successor form) required to be filed in respect of the Trust in each taxable
year of the Trust and (b) prepare and furnish (or cause to be prepared and
furnished) to each Securityholder the related Internal Revenue Service Form
1099, (or any successor form) and the information required to be provided on
such form. The Administrative Trustees shall provide the Depositor and the
Property Trustee with a copy of all such returns, reports and schedules promptly
after such filing or furnishing. The Trustees shall comply with United States
Federal withholding and backup withholding tax laws and information reporting
requirements with respect to any payments to Securityholders under the Trust
Securities.
SECTION 4.06. PAYMENTS UNDER INDENTURE. Any amount payable hereunder
to any Holder of Preferred Trust Securities shall be reduced by the amount of
any corresponding payment such Holder has directly received pursuant to Section
808 of the Subordinated Indenture. [Notwithstanding the provisions hereunder to
the contrary, Securityholders acknowledge that any Holder of Preferred Trust
Securities that receives payment under Section 808 of the Subordinated Indenture
may receive amounts greater than the amount such Holder may be entitled to
receive pursuant to the other provisions of this Trust Agreement.]
ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION 5.01. INITIAL OWNERSHIP. Upon the creation of the Trust by the
contribution by the Depositor pursuant to Section 2.03 and until the issuance of
the Trust Securities, and at any time during which no Trust Securities are
outstanding, the Depositor shall be the sole beneficial owner of the Trust.
SECTION 5.02. THE TRUST SECURITIES CERTIFICATES. The Trust Securities
Certificates shall be issued in denominations of $25 Liquidation Amount and
integral multiples thereof. The Trust Securities Certificates shall be executed
on behalf of the Trust by manual or facsimile signature of at least one
Administrative Trustee and, if executed on behalf of the Trust by facsimile
signature, the Preferred Trust Securities shall be countersigned by the Transfer
Agent and Registrar or its agent. Trust Securities Certificates bearing the
manual of facsimile signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of the Trust
and, if executed on behalf of the Trust by facsimile signature, countersigned by
the Transfer Agent and Registrar or its agent, shall be validly issued and
entitled to the benefits of this Trust Agreement, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the
delivery of such Trust Securities Certificates or did not hold such offices at
the date of delivery of such Trust Securities Certificates. A transferee of a
Trust Securities Certificate shall become a Securityholder, and shall be
entitled to the rights and subject to the obligations of a Securityholder
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hereunder, upon due registration of such Trust Securities Certificate in such
transferee's name pursuant to Section 5.04 or 5.12. Every Person, by virtue of
having become a Securityholder, shall be deemed to have expressly assented and
agreed to the terms of, and shall be bound by, this Trust Agreement, the Trust
Securities Guarantee and the Subordinated Indenture.
SECTION 5.03. EXECUTION AND DELIVERY OF TRUST SECURITIES CERTIFICATES.
On the Closing Date, the Administrative Trustees, or any one of them, shall
cause Trust Securities Certificates, in an aggregate Liquidation Amount as
provided in Sections 2.04 and 2.05, to be executed on behalf of the Trust, and
in the case of Preferred Trust Securities executed by facsimile signature,
countersigned by the Transfer Agent and Registrar, or its agent, and delivered
to or upon the written order of the Depositor signed by its chairman of the
board, any of its vice presidents or its treasurer, without further corporate
action by the Depositor, in authorized denominations.
SECTION 5.04. REGISTRATION OF TRANSFER AND EXCHANGE OF TRUST
SECURITIES CERTIFICATES. The Transfer Agent and Registrar shall keep or cause to
be kept, at the office or agency maintained pursuant to Section 5.08, a
Securities Register in which, subject to such reasonable regulations as it may
prescribe, the Transfer Agent and Registrar shall provide for the registration
of Preferred Trust Securities Certificates and the Common Trust Securities
Certificates (subject to Section 5.10 in the case of the Common Trust Securities
Certificates) and registration of transfers and exchanges of Preferred Trust
Securities Certificates as herein provided. The Property Trustee shall be the
initial Transfer Agent and Registrar.
Upon surrender for registration of transfer of any Preferred Trust
Securities Certificate at the office or agency maintained pursuant to Section
5.08, the Administrative Trustees, or any one of them, shall execute on behalf
of the Trust by manual or facsimile signature and, if executed on behalf of the
Trust by facsimile signature, cause the Transfer Agent and Registrar or its
agent to countersign and deliver, in the name of the designated transferee or
transferees, one or more new Preferred Trust Securities Certificates in
authorized denominations of a like aggregate Liquidation Amount. At the option
of a Holder, Preferred Trust Securities Certificates may be exchanged for other
Preferred Trust Securities Certificates in authorized denominations of the same
class and of a like aggregate Liquidation Amount upon surrender of the Preferred
Trust Securities Certificates to be exchanged at the office or agency maintained
pursuant to Section 5.08.
Every Preferred Trust Securities Certificate presented or surrendered
for registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Administrative Trustees and
the Transfer Agent and Registrar duly executed by the Holder or such Holder's
attorney duly authorized in writing. Each Preferred Trust Securities Certificate
surrendered for registration of transfer or exchange shall be canceled and
subsequently disposed of by the Transfer Agent and Registrar in accordance with
its customary procedures. The Trust shall not be required to (i) issue, register
the transfer of, or exchange any Preferred Trust Securities during a period
beginning at the opening of business 15 calendar days before the day of mailing
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of a notice of redemption of any Preferred Trust Securities called for
redemption and ending at the close of business on the day of such mailing or
(ii) register the transfer of or exchange any Preferred Trust Securities so
selected for redemption, in whole or in part, except the unredeemed portion of
any such Preferred Trust Securities being redeemed in part.
No service charge shall be made for any registration of transfer or
exchange of Preferred Trust Securities Certificates, but the Transfer Agent and
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Preferred Trust Securities Certificates.
SECTION 5.05. MUTILATED, DESTROYED, LOST OR STOLEN TRUST SECURITIES
CERTIFICATES. If (a) any mutilated Trust Securities Certificate shall be
surrendered to the Transfer Agent and Registrar, or if the Transfer Agent and
Registrar shall receive evidence to its satisfaction of the destruction, loss or
theft of any Trust Securities Certificate and (b) there shall be delivered to
the Transfer Agent and Registrar and the Administrative Trustees such security
or indemnity as may be required by them to save each of them and the Depositor
harmless, then in the absence of notice that such Trust Securities Certificate
shall have been acquired by a bona fide purchaser, the Administrative Trustees,
or any one of them, on behalf of the Trust shall execute by manual or facsimile
signature and, if execution on behalf of the Trust is by facsimile signature,
shall cause the Transfer Agent and Registrar or its agent to countersign; and
the Administrative Trustees, or any one of them, and, if executed on behalf of
the Trust by facsimile signature, the Transfer Agent and Registrar or its agent,
shall make available for delivery, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Trust Securities Certificate, a new Trust
Securities Certificate of like class, tenor and denomination. In connection with
the issuance of any new Trust Securities Certificate under this Section, the
Administrative Trustees or the Transfer Agent and Registrar may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith. Any duplicate Trust Securities
Certificate issued pursuant to this Section shall constitute conclusive evidence
of an undivided beneficial interest in the Trust Property, as if originally
issued, whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
of mutilated, destroyed, lost or stolen Trust Securities Certificates.
SECTION 5.06. PERSONS DEEMED SECURITYHOLDERS. Prior to due
presentation of a Trust Securities Certificate for registration of transfer, the
Trustees and the Transfer Agent and Registrar, and any agent of the Trustees and
the Transfer Agent and Registrar, shall be entitled to treat the Person in whose
name any Trust Securities Certificate shall be registered in the Securities
Register as the owner of such Trust Securities Certificate for the purpose of
receiving Distributions and for all other purposes whatsoever, and neither the
Trustees nor the Transfer Agent and Registrar shall be bound by any notice to
the contrary.
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SECTION 5.07. ACCESS TO LIST OF SECURITYHOLDERS' NAMES AND ADDRESSES.
The Administrative Trustees shall furnish or cause to be furnished (x) to the
Depositor, within 15 days after receipt by any Administrative Trustee of a
request therefor from the Depositor in writing and (y) to the Property Trustee,
promptly after receipt by any Administrative Trustee of a request therefor from
the Property Trustee in writing in order to enable the Property Trustee to
discharge its obligations under this Trust Agreement, a list, in such form as
the Depositor or the Property Trustee may reasonably require, of the names and
addresses of the Securityholders as of a recent date. If Holders of Trust
Securities Certificates evidencing ownership at such time and for the previous
six months of not less than 25% of the Outstanding aggregate Liquidation Amount
apply in writing to any Administrative Trustee, and such application states that
the applicants desire to communicate with other Securityholders with respect to
their rights under this Trust Agreement or under the Trust Securities
Certificates and such application is accompanied by a copy of the communication
that such applicants propose to transmit, then the Administrative Trustees
shall, within five Business Days after the receipt of such application, afford
such applicants access during normal business hours to the current list of
Securityholders. Each Holder, by receiving and holding a Trust Securities
Certificate, shall be deemed to have agreed not to hold either the Depositor or
any Trustees accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.
SECTION 5.08. MAINTENANCE OF OFFICE OR AGENCY. The Depositor shall or
shall cause the Transfer Agent and Registrar to maintain in The City of New
York, an office or offices or agency or agencies where Preferred Trust
Securities Certificates may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Depositor, the Trust or
the Transfer Agent and Registrar in respect of the Trust Securities and the
Trust Agreement may be served. The Depositor initially designates The Chase
Manhattan Bank, Capital Markets Fiduciary Services, 450 West 33rd Street, 15th
Floor, New York, New York 10001 as its principal office for such purposes. The
Depositor shall or shall cause the Transfer Agent and Registrar to give prompt
written notice to the Depositor, The Guarantor, the Property Trustee, the
Administrative Trustees and to the Securityholders of any change in the location
of the Securities Register or any such office or agency. If at any time the
Depositor shall fail to maintain such office or agency or shall fail to furnish
the Property Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Property Trustee, and the Depositor hereby appoints the Property Trustee its
agent and the agent of the Trust to receive all such presentations, surrenders,
notices and demands.
SECTION 5.09. APPOINTMENT OF PAYING AGENT. The Paying Agent shall make
Distributions to Securityholders from the Payment Account and shall report the
amounts of such Distributions to the Administrative Trustees and the Property
Trustee. Any Paying Agent shall have the revocable power to withdraw funds from
the Payment Account for the purpose of making the Distributions referred to
above. The Property Trustee shall be entitled to rely upon a certificate of the
Paying Agent stating in effect the amount of such funds so to be withdrawn and
that same are to be applied by the Paying Agent in accordance with this Section
5.09. The Administrative Trustees or any one of them may revoke such power and
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remove the Paying Agent if the Administrative Trustee or any one of them
determines in its sole discretion that the Paying Agent shall have failed to
perform its obligations under this Trust Agreement in any material respect. The
Paying Agent shall initially be the Property Trustee, and it may choose any
co-paying agent that is acceptable to the Administrative Trustees, the Debenture
Issuer, and the Depositor. The Paying Agent shall be permitted to resign upon 30
days' written notice to the Administrative Trustees, the Property Trustee, the
Debenture Issuer and the Depositor. In the event of the removal or resignation
of the Property Trustee as Paying Agent, the Administrative Trustees shall
appoint a successor that is reasonably acceptable to the Property Trustee, the
Debenture Issuer and the Depositor to act as Paying Agent (which shall be a
bank, trust company or an Affiliate of the Depositor). The Administrative
Trustees shall cause such successor Paying Agent or any additional Paying Agent
appointed by the Administrative Trustees to execute and deliver to the Trustees
an instrument in which such successor Paying Agent or additional Paying Agent
shall agree with the Trustees that as Paying Agent, such successor Paying Agent
or additional Paying Agent will hold all sums, if any, held by it for payment to
the Securityholders in trust for the benefit of the Securityholders entitled
thereto until such sums shall be paid to such Securityholders. The Paying Agent
shall return all unclaimed funds to the Property Trustee and upon resignation or
removal of a Paying Agent such Paying Agent shall also return all funds in its
possession to the Property Trustee. The provisions of Sections 8.01, 8.03 and
8.06 shall apply to the Paying Agent appointed hereunder, and the Paying Agent
shall be bound by the requirements with respect to paying agents of securities
issued pursuant to the Trust Indenture Act. Any reference in this Trust
Agreement to the Paying Agent shall include any co-paying agent unless the
context requires otherwise.
SECTION 5.10. OWNERSHIP OF COMMON TRUST SECURITIES BY DEPOSITOR. On
the Closing Date, the Depositor shall acquire, and thereafter retain, beneficial
and record ownership of the Common Trust Securities. Except in connection with a
transaction involving the Depositor that would be permitted under Article Eleven
of the Subordinated Indenture, any attempted transfer of the Common Trust
Securities shall be void. The Administrative Trustees shall cause each Common
Trust Securities Certificate issued to the Depositor to contain a legend stating
"THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO THE DEPOSITOR OR AN AFFILIATE OF
THE DEPOSITOR IN COMPLIANCE WITH APPLICABLE LAW AND SECTION 5.10 OF THE TRUST
AGREEMENT." Common Trust Securities Certificates representing the Common Trust
Securities shall be issued to the Depositor in the form of a typewritten or
definitive Common Trust Securities Certificate.
SECTION 5.11. DEFINITIVE PREFERRED TRUST SECURITIES CERTIFICATES.
[Upon initial issuance of the Preferred Trust Securities, the] Definitive
Preferred Trust Securities Certificates shall be typewritten, printed,
lithographed or engraved or may be produced in any other manner as is reasonably
acceptable to the Administrative Trustees, as evidenced by the execution thereof
by the Administrative Trustees, or any one of them. The Administrative Trustees,
or any one of them, shall execute on behalf of the Trust by manual or facsimile
signature, and, if executed by facsimile on behalf of the Trust, countersigned
by the Transfer Agent and Registrar or its agent, the Definitive Preferred Trust
Securities Certificates initially in accordance with the instructions of the
Depositor. Neither the Transfer Agent and Registrar nor any of the
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Administrative Trustees shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions.
SECTION 5.12. BOOK-ENTRY SYSTEM. Some or all of the Preferred Trust
Securities may be registered in the name of a securities depository ("Securities
Depository") or a nominee therefor, and held in the custody of the Securities
Depository or a custodian thereof. In such event, a single certificate will be
issued and delivered to the Securities Depository for such Preferred Trust
Securities, in which case the Owners of such Preferred Trust Securities will not
receive physical delivery of certificates for Preferred Trust Securities. Except
as provided herein, all transfers of beneficial ownership interests in such
Preferred Trust Securities will be made by book-entry only, and no investor or
other party purchasing, selling or otherwise transferring beneficial ownership
of the Preferred Trust Securities will receive, hold or deliver any certificate
for Preferred Trust Securities. The Depositor, the Trustees and the Paying Agent
will recognize the Securities Depository or its nominee as the Holder of
Preferred Trust Securities for all purposes, including notices and voting and
shall have no notice or communication obligations to the Owners.
The Administrative Trustees, at the direction and expense of the
Depositor, may from time to time appoint a Securities Depository or a successor
thereto and enter into a letter of representations or other agreement with such
Securities Depository to establish procedures with respect to the Preferred
Trust Securities. Any Securities Depository shall be a Clearing Agency.
The Depositor and the Trustees covenant and agree to meet the
requirements of a Securities Depository for the Preferred Trust Securities with
respect to required notices and other provisions of the letter of
representations or agreement executed with respect to such Preferred Trust
Securities.
Whenever the beneficial ownership of any Preferred Trust Securities is
determined through the books of a Securities Depository, the requirements in
this Trust Agreement of holding, delivering or transferring such Preferred Trust
Securities shall be deemed modified with respect to such Preferred Trust
Securities to meet the requirements of the Securities Depository with respect to
actions of the Trustees, the Depositor and the Paying Agent. Any provisions
hereof permitting or requiring delivery of such Preferred Trust Securities
shall, while such Preferred Trust Securities are in a book-entry system, be
satisfied by the notation on the books of the Securities Depository in
accordance with applicable state law.
SECTION 5.13. RIGHTS OF SECURITYHOLDERS. The legal title to the Trust
Property is vested exclusively in the Property Trustee (in its capacity as such)
in accordance with Section 2.09, and the Securityholders shall not have any
right or title therein other than an undivided beneficial interest in the assets
of the Trust conferred by their Trust Securities and they shall have no right to
call for any partition or division of property, profits or rights of the Trust
except as described below. The Trust Securities shall be personal property
giving only the rights specifically set forth therein and in this Trust
Agreement. The Preferred Trust Securities shall have no preemptive or similar
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rights and when issued and delivered to Securityholders against payment of the
purchase price therefor will be fully paid and nonassessable undivided
beneficial interests in the assets of the Trust.
SECTION 5.14. CANCELLATION BY TRANSFER AGENT AND REGISTRAR. All Trust
Securities Certificates surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Transfer
Agent and Registrar, be delivered to the Transfer Agent and Registrar and, if
not theretofore canceled, shall be promptly canceled by the Transfer Agent and
Registrar. No Trust Securities Certificates shall be issued in lieu of or in
exchange for any Trust Securities Certificates canceled as provided in this
Section, except as expressly permitted by this Trust Agreement. All canceled
Trust Securities Certificates held by the Transfer Agent and Registrar shall be
disposed of in accordance with its customary procedures.
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.01. LIMITATIONS ON VOTING RIGHTS. (a) Except as provided in
this Section 6.01, Section 8.10 and Section 10.03 and as otherwise required by
law, no Holder of Preferred Trust Securities shall have any right to vote or in
any manner otherwise control the administration, operation and management of the
Trust or the obligations of the parties hereto, nor shall anything herein set
forth, or contained in the terms of the Trust Securities Certificates, be
construed so as to constitute the Securityholders from time to time as partners
or members of an association. If the Property Trustee fails to enforce its
rights under the Debentures or this Trust Agreement, a Holder of Preferred Trust
Securities may, to the fullest extent permitted by law, institute a legal
proceeding directly against the Depositor or the Debenture Issuer to enforce the
Property Trustee's rights under the Debentures or this Trust Agreement without
first instituting any legal proceeding against the Property Trustee or any other
Person. Notwithstanding the foregoing, a Holder of Preferred Trust Securities
may directly institute a proceeding for enforcement of payment to such Holder of
principal of or interest on the Debentures having a principal amount equal to
the aggregate liquidation preference amount of the Preferred Trust Securities of
such Holder on or after the due dates specified in the Debentures.
(b) So long as any Debentures are held by the Property Trustee, the
Property Trustee shall not (i) direct the time, method and place of conducting
any proceeding for any remedy available to the Debenture Trustee, or executing
any trust or power conferred on the Debenture Trustee with respect to such
Debentures, (ii) waive any past default which is waivable under Section 813 of
the Subordinated Indenture, (iii) exercise any right to rescind or annul a
declaration that the principal of all the Debentures shall be due and payable or
(iv) consent to any amendment, modification or termination of the Subordinated
Indenture or the Debentures, where such consent shall be required, without, in
each case, obtaining the prior approval of the Holders of at least a majority of
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the aggregate Liquidation Amount of the Outstanding Preferred Trust Securities;
provided, however, that where a consent under the Subordinated Indenture would
require the consent of each Holder of Debentures affected thereby, no such
consent shall be given by the Property Trustee without the prior written consent
of each Holder of Preferred Trust Securities. The Trustees shall not revoke any
action previously authorized or approved by a vote of the Preferred Trust
Securities, except pursuant to a subsequent vote of the Preferred Trust
Securities. The Property Trustee shall notify all Holders of the Preferred Trust
Securities of any notice of default received from the Debenture Trustee with
respect to the Debentures. In addition to obtaining the foregoing approvals of
the Holders of the Preferred Trust Securities, prior to taking any of the
foregoing actions, the Property Trustee shall, at the expense of the Depositor,
obtain an Opinion of Counsel experienced in such matters to the effect that such
action will not cause the Trust to be classified other than as a "grantor trust"
or as an association taxable as a corporation for United States Federal income
tax purposes.
(c) If any proposed amendment to the Trust Agreement provides for, or
the Trustees otherwise propose to effect, (i) any action that would materially
adversely affect the powers, preferences or special rights of the Preferred
Trust Securities, whether by way of amendment to the Trust Agreement or
otherwise, or (ii) the dissolution, winding-up or termination of the Trust,
other than pursuant to the terms of this Trust Agreement, then the Holders of
Outstanding Preferred Trust Securities as a class will be entitled to vote on
such amendment or proposal and such amendment or proposal shall not be effective
except with the approval of the Holders of at least majority in aggregate
Liquidation Amount of the Outstanding Preferred Trust Securities.
SECTION 6.02. NOTICE OF MEETINGS. Notice of all meetings of the
Holders of Preferred Trust Securities, stating the time, place and purpose of
the meeting, shall be given by the Administrative Trustees pursuant to Section
10.08 to each Holder of a Preferred Trust Security, at such Holder's registered
address, at least 15 days and not more than 90 days before the meeting. At any
such meeting, any business properly before the meeting may be so considered
whether or not stated in the notice of the meeting. Any adjourned meeting may be
held as adjourned without further notice.
SECTION 6.03. MEETINGS OF HOLDERS OF PREFERRED TRUST SECURITIES. No
annual meeting of Securityholders is required to be held. The Administrative
Trustees, however, shall call a meeting of Securityholders to vote on any matter
upon the written request of the Holders of 25% of the then Outstanding Preferred
Trust Securities (based upon their aggregate Liquidation Amount) and the
Administrative Trustees or the Property Trustee may, at any time in their
discretion, call a meeting of Holders of Preferred Trust Securities to vote on
any matters as to which the Holders of Preferred Trust Securities are entitled
to vote.
Holders of at least a majority of the then Outstanding Preferred Trust
Securities (based upon their aggregate Liquidation Amount), present in person or
by proxy, shall constitute a quorum at any meeting of Securityholders.
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If a quorum is present at a meeting, an affirmative vote by the
Holders of Preferred Trust Securities present, in person or by proxy, holding at
least a majority of the then Outstanding Preferred Trust Securities (based upon
their aggregate Liquidation Amount) present, either in person or by proxy, at
such meeting shall constitute the action of the Securityholders, unless this
Trust Agreement requires a greater number of affirmative votes.
SECTION 6.04. VOTING RIGHTS. Securityholders shall be entitled to one
vote for each $25 of Liquidation Amount represented by their Outstanding Trust
Securities in respect of any matter as to which such Securityholders are
entitled to vote.
SECTION 6.05. PROXIES, ETC. At any meeting of Securityholders, any
Securityholder entitled to vote thereat may vote by proxy, provided that no
proxy shall be voted at any meeting unless it shall have been placed on file
with the Administrative Trustees, or with such other officer or agent of the
Trust as the Administrative Trustees may direct, for verification prior to the
time at which such vote shall be taken. Only Securityholders of record shall be
entitled to vote. When Trust Securities are held jointly by several Persons, any
one of them may vote at any meeting in person or by proxy in respect of such
Trust Securities, but if more than one of them shall be present at such meeting
in person or by proxy, and such joint owners or their proxies so present
disagree as to any vote to be cast, such vote shall not be received in respect
of such Trust Securities. A proxy purporting to be executed by or on behalf of a
Securityholder shall be deemed valid unless challenged at or prior to its
exercise, [or, if earlier, until eleven months after it is sent] and the burden
of proving invalidity shall rest on the challenger. [No proxy shall be valid
more than [three] years after its date of execution.]
SECTION 6.06. SECURITYHOLDER ACTION BY WRITTEN CONSENT. Any action
which may be taken by Securityholders at a meeting may be taken without a
meeting and without prior notice if Securityholders holding a majority of all
Outstanding Trust Securities entitled to vote in respect of such action (or such
larger proportion thereof as shall be required by any express provision of this
Trust Agreement) shall consent to the action in writing (based upon their
aggregate Liquidation Amount).
SECTION 6.07. RECORD DATE FOR VOTING AND OTHER PURPOSES. For the
purposes of determining the Securityholders who are entitled to notice of and to
vote at any meeting or to vote by written consent without prior notice, or to
participate in any Distribution on the Trust Securities in respect of which a
record date is not otherwise provided for in this Trust Agreement, or for the
purpose of any other action, the Administrative Trustees may from time to time
fix a date, not more than 90 days prior to the date of any meeting of
Securityholders or the payment of Distribution or other action including action
to be taken by written consent, as the case may be, as a record date for the
determination of the identity of the Securityholders of record for such
purposes.
SECTION 6.08. ACTS OF SECURITYHOLDERS. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Trust Agreement to be given, made or taken by Securityholders
may be embodied in and evidenced by one or more instruments of substantially
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similar tenor signed by such Securityholders in person or by an agent duly
appointed in writing; and, except as otherwise expressly provided herein, such
action shall become effective when such instrument or instruments are delivered
to the Administrative Trustees. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Securityholders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Trust Agreement and (subject to Section
8.01) conclusive in favor of the Trustees, if made in the manner provided in
this Section.
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 acknowledgements of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. 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. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which any Trustee deems sufficient.
The ownership of Preferred Trust Securities shall be proved by the
Securities Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Securityholder of any Trust Security shall bind every future
Securityholder of the same Trust Security and the Securityholder of every Trust
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled hereunder to
take any action hereunder with regard to any particular Trust Security may do so
with regard to all or any part of the Liquidation Amount of such Trust Security
or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such Liquidation Amount.
If any dispute shall arise between or among the Securityholders and
the Administrative Trustees with respect to the authenticity, validity or
binding nature of any request, demand, authorization, direction, consent, waiver
or other Act of such Securityholder or Trustee under this Article VI, then the
determination of such matter by the Property Trustee shall be conclusive with
respect to such matter.
SECTION 6.09. INSPECTION OF RECORDS. Subject to Section 5.07
concerning access to the list of Securityholders, upon reasonable notice to the
Administrative Trustees and the Property Trustee, the other records of the Trust
shall be open to inspection by Securityholders during normal business hours for
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any purpose reasonably related to such Securityholder's interest as a
Securityholder.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF THE PROPERTY
TRUSTEE AND THE DELAWARE TRUSTEE
SECTION 7.01. PROPERTY TRUSTEE. The Property Trustee and any successor
Property Trustee hereby represents and warrants for the benefit of the Depositor
and the Securityholders that:
(a) the Property Trustee is a banking corporation or trust company
duly incorporated, validly existing and in good standing under the laws of the
State of New York;
(b) the Property Trustee has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Trust Agreement
and has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and
delivered by the Property Trustee and constitutes the valid and legally binding
agreement of the Property Trustee enforceable against it in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(d) the execution, delivery and performance by the Property Trustee of
this Trust Agreement will not violate, conflict with or constitute a breach of
the Property Trustee's charter or by-laws;
(e) the execution, delivery and performance by the Property Trustee of
this Trust Agreement does not require the consent or approval of, the giving of
notice to, or the registration with any Federal or state banking authority
having jurisdiction over its trust powers; and
[(f) there are no proceedings pending or, to the best of the Property
Trustee's knowledge, threatened against or affecting the Property Trustee in any
court or before any governmental authority, agency or arbitration board or
tribunal which, individually or in the aggregate, would question the right,
power and authority of the Property Trustee to enter into or perform its
obligations as one of the Trustees under this Trust Agreement.]
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SECTION 7.02. DELAWARE TRUSTEE. The Delaware Trustee and any successor
Delaware Trustee represents and warrants for the benefit of the Depositor and
the Securityholders that:
(a) the Delaware Trustee is a banking corporation or trust company
duly incorporated, validly existing and in good standing under the laws of the
State of Delaware;
(b) the Delaware Trustee has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Trust Agreement
and has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and
delivered by the Delaware Trustee and constitutes the valid and legally binding
agreement of the Delaware Trustee enforceable against it in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(d) the Delaware Trustee is a natural person who is a resident of the
State of Delaware or, if not a natural person, an entity which has its principal
place of business in the State of Delaware and, in either case, a Person that
satisfies for the Trust the requirements of Section 3807 of the Delaware
Business Trust Act;
(e) the execution, delivery and performance by the Delaware Trustee of
this Trust Agreement will not [(i)] violate the Delaware Trustee's charter or
by-laws[, (ii) violate any provision of, or constitute, with or without notice
or lapse of time, a default under, or result in the creation or imposition of,
any Lien on any properties included in the Trust Property pursuant to the
provisions of any indenture, mortgage, credit agreement, license or other
agreement or instrument to which the Delaware Trustee is a party or by which it
is bound, or (iii) violate any law, governmental rule or regulation of the State
of Delaware governing the banking, trust or general powers of the Delaware
Trustee (as appropriate in context) or any order, judgment or decree applicable
to the Property Trustee or the Delaware Trustee];
(f) the execution, delivery and performance by the Delaware Trustee of
this Trust Agreement does not require the consent or approval of, the giving of
notice to, or the registration with any Federal or state banking authority
having jurisdiction over its banking or trust powers; and
[(g) there are no proceedings pending or, to the best of the Delaware
Trustee's knowledge, threatened against or affecting the Delaware Trustee in any
court or before any governmental authority, agency or arbitration board or
tribunal which, individually or in the aggregate, would question the right,
power and authority of the Delaware Trustee, to enter into or perform its
obligations as one of the Trustees under this Trust Agreement.]
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ARTICLE VIII
THE TRUSTEES
SECTION 8.01. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The rights, immunities, duties and responsibilities of the
Trustees shall be restricted to those set forth in the express provisions of
this Trust Agreement and, in the case of the Property Trustee, as provided in
the Trust Indenture Act, and no implied covenants or obligations shall be read
into this Trust Agreement against any of the Trustees. For purposes of Sections
315(a) and 315(c) of the Trust Indenture act, the term "default" is hereby
defined as an Event of Default which has occurred and is continuing.
Notwithstanding the foregoing, no provision of this Trust Agreement shall
require any of the Trustees to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Trust Agreement relating to the
conduct or affecting the liability of or affording protection to the Trustees
shall be subject to the provisions of this Section. To the extent that, at law
or in equity, an Administrative Trustee has duties (including fiduciary duties)
and liabilities relating thereto to the Trust or to the Securityholders, such
Administrative Trustee shall not be liable to the Trust or to any Securityholder
for such Trustee's good faith reliance on the provisions of this Trust
Agreement. The provisions of this Trust Agreement, to the extent that they
restrict the duties and liabilities of the Administrative Trustees otherwise
existing at law or in equity, are agreed by the Depositor and the
Securityholders to replace such other duties and liabilities of the
Administrative Trustees.
(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the income and proceeds
from the Trust Property and only to the extent that there shall be sufficient
income or proceeds from the Trust Property to enable the Property Trustee or
Paying Agent to make payments in accordance with the terms hereof. Each
Securityholder, by its acceptance of a Trust Security, agrees that it will look
solely to the income and proceeds from the Trust Property to the extent
available for distribution to it as herein provided and that the Trustees are
not personally liable to it for any amount distributable in respect of any Trust
Security or for any other liability in respect of any Trust Security. This
Section 8.01(b) does not limit the liability of the Trustees expressly set forth
elsewhere in this Trust Agreement or, in the case of the Property Trustee, in
the Trust Indenture Act.
(c) All duties and responsibilities of the Property Trustee contained
in this Trust Agreement are subject to the following:
(i) the Property Trustee's sole duty with respect to the custody,
safe keeping and physical preservation of the Trust Property shall be
to deal with such property in a similar manner as the Property Trustee
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deals with similar property for its own account, subject to the
protections, exculpations and limitations on liability afforded to the
Property Trustee under this Trust Agreement, the Trust Indenture Act,
the Delaware Business Trust Act and, to the extent applicable, Rule
3a-7 under the Investment Company Act or any successor rule
thereunder;
(ii) the Property Trustee shall have no duty or liability for or
with respect to the value, genuineness, existence or sufficiency of
the Trust Property or the payment of any taxes or assessments levied
thereon or in connection therewith;
(iii) the Property Trustee shall not be liable for any interest
on any money received by it except as it may otherwise agree with the
Depositor. Money held by the Property Trustee need not be segregated
from other funds held by it except in relation to the Payment Account
established by the Property Trustee pursuant to this Trust Agreement
and except to the extent otherwise required by law; and
(iv) the Property Trustee shall not be responsible for monitoring
the compliance by the Administrative Trustees or the Depositor with
their respective duties under this Trust Agreement, nor shall the
Property Trustee be liable for the default or misconduct of the
Administrative Trustees or the Depositor.
(d) The Administrative Trustees shall not be responsible for
monitoring the compliance by the other Trustees or the Depositor with their
respective duties under this Trust Agreement, nor shall any Administrative
Trustee be liable for the default or misconduct of any other Administrative
Trustee, the other Trustees or the Depositor.
SECTION 8.02. NOTICE OF DEFAULTS. (a) Within ninety (90) days after
the occurrence of any default known to the Property Trustee, the Property
Trustee shall transmit, in the manner and to the extent provided in Section
10.08, notice of such default to the Securityholders, the Depositor, the
Guarantor and the Administrative Trustees, unless such default shall have been
cured or waived. 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. (a) (b) Within five Business Days after receipt of notice of the
Debenture Issuer's exercise of its right to defer the payment of interest on the
Debentures pursuant to the Subordinated Indenture, the Property Trustee shall
transmit, in the manner and to the extent provided in Section 10.08, notice of
such exercise to the Securityholders and the Administrative Trustees, unless
such exercise shall have been revoked.
SECTION 8.03. CERTAIN RIGHTS OF PROPERTY TRUSTEE. Subject to the
provisions of Section 8.01 and except as provided by law:
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(i) the Property Trustee may rely and shall be protected in
acting or refraining from acting in good faith upon any resolution,
Opinion of Counsel, certificate, written representation of a Holder or
transferee, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, appraisal, bond, debenture, note, other evidence of
indebtedness or other paper or document reasonably believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(ii) if (A) in performing its duties under this Trust Agreement
the Property Trustee is required to decide between alternative courses
of action or (B) in construing any of the provisions in this Trust
Agreement the Property Trustee finds the same ambiguous or
inconsistent with any other provisions contained herein or (C) the
Property Trustee is unsure of the application of any provision of this
Trust Agreement, then, except as to any matter as to which the
Preferred Trust Securityholders are entitled to vote under the terms
of this Trust Agreement, the Property Trustee shall deliver a notice
to the Depositor requesting written instructions of the Depositor as
to the course of action to be taken. The Property Trustee shall take
such action, or refrain from taking such action, as the Property
Trustee shall be instructed in writing to take, or to refrain from
taking, by the Depositor; provided, however, that if the Property
Trustee does not receive such instructions of the Depositor within ten
Business Days after it has delivered such notice, or such reasonably
shorter period of time set forth in such notice (which to the extent
practicable shall not be less than two Business Days), it may, but
shall be under no duty to, take or refrain from taking such action not
inconsistent with this Trust Agreement as it shall deem advisable and
in the best interests of the Securityholders, in which event the
Property Trustee shall have no liability except for its own bad faith,
negligence or willful misconduct;
(iii) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Property Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part,
request and rely upon an Officer's Certificate which, upon receipt of
such request, shall be promptly delivered by the Depositor or the
Administrative Trustees;
(iv) the Property Trustee may consult with counsel of its
selection (which counsel may be counsel to the Depositor or the
Guarantor or any of their Affiliates, and may include any of their
employees) 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 and in accordance with such advice;
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(v) the Property Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Trust Agreement at
the request or direction of any Securityholder pursuant to this Trust
Agreement, unless such Securityholder shall have offered to the
Property Trustee reasonable security or indemnity against the costs,
expenses (including reasonable attorneys' fees and expenses) and
liabilities which might be incurred by it in complying with such
request or direction; provided that, nothing contained in this Section
8.03(v) shall be taken to relieve the Property Trustee, upon the
occurrence of an Event of Default, of its obligation to exercise the
rights and powers vested in it by this Trust Agreement;
(vi) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, approval, bond, debenture, note or other
evidence of indebtedness or other paper or document, but the Property
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if
the Property Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Depositor personally or by agent or attorney;
(vii) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through its agents or attorneys, and the Property Trustee shall not
be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder;
(viii) the Property Trustee shall not be liable for any action
taken, suffered, or omitted to be taken by it in good faith and
reasonably believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Trust Agreement;
(ix) the Property Trustee shall not be charged with knowledge of
any default or Event of Default with respect to the Trust Securities
unless either (A) a Responsible Officer of the Property Trustee shall
have actual knowledge of the default or Event of Default or (B)
written notice of such default or Event of Default shall have been
given to the Property Trustee by the Depositor, the Administrative
Trustees or by any Holder of the Trust Securities;
(x) no provision of this Trust Agreement shall be deemed to
impose any duty or obligation on the Property Trustee to perform any
act or acts or exercise any right, power, duty or obligation conferred
or imposed on it in any jurisdiction in which it shall be illegal, or
in which the Property Trustee shall be unqualified or incompetent in
accordance with applicable law, to perform any such act or acts or to
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exercise any such right, power, duty or obligation; and no permissive
or discretionary power or authority available to the Property Trustee
shall be construed to be a duty;
(xi) no provision of this Trust Agreement shall require the
Property Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties
or in the exercise of any of its rights or powers, if the Property
Trustee shall have reasonable grounds for believing that the repayment
of such funds or liability is not reasonably assured to it under the
terms of this Trust Agreement or adequate indemnity against such risk
or liability is not reasonably assured to it;
(xii) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any tax or securities form) (or
any rerecording, refiling or reregistration thereof);
(xiii) the Property Trustee shall have the right at any time to
seek instructions concerning the administration of this Trust
Agreement from any court of competent jurisdiction; and
(xiv) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Property Trustee (A) may request instructions from the
Holders of the Trust Securities, which instructions may only be given
by the Holders of the same Liquidation Amount of the Trust Securities
as would be entitled to direct the Property Trustee under the terms of
this Trust Agreement in respect of such remedies, rights or actions,
(B) may refrain from enforcing such remedy or right or taking such
other action until such instructions are received, and (C) shall be
protected in acting in accordance with such instructions.
SECTION 8.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Trust Securities Certificates shall be
taken as the statements of the Trust, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as to
the title to, or value or condition of, the property of the Trust or any part
thereof, nor as to the validity or sufficiency of this Trust Agreement, the
Debentures or the Trust Securities. The Trustees shall not be accountable for
the use or application by the Trust of the proceeds of the Trust Securities.
SECTION 8.05. MAY HOLD SECURITIES. Any Trustee or any agent of any
Trustee or the Trust, in its individual or any other capacity, may become the
owner or pledgee of Trust Securities and, subject to Sections 8.08 and 8.13, and
except as provided in the definition of the term "Outstanding" in Article I, may
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otherwise deal with the Trust with the same rights it would have if it were not
a Trustee or such agent.
SECTION 8.06. COMPENSATION; FEES; INDEMNITY.
The Depositor agrees:
(i) to pay to the Trustees from time to time such reasonable
compensation as shall be agreed in writing with the Depositor for all
services rendered by the Trustees hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(ii) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements and
advances reasonably incurred or made by the Trustees in accordance with any
provision of this Trust Agreement (including the reasonable compensation
and the expenses and disbursements of their agents and counsel), except any
such expense, disbursement or advance as may be attributable to their
negligence (gross negligence, in the case of any Administrative Trustee),
bad faith or willful misconduct; and
(iii) to the fullest extent permitted by applicable law, to indemnify
each Trustee for, and to hold each Trustee harmless against, any and all
loss, damage, claims, liability or expense incurred without negligence
(gross negligence, in the case of any Administrative Trustee), bad faith or
willful misconduct on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts under this Trust
Agreement, including the reasonable costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
No Trustee may claim any Lien or charge on any Trust Property as a
result of any amount due pursuant to this Section 8.06.
In addition to the rights provided to each Trustee pursuant to the
provisions of the immediately preceding paragraph of this Section 8.06 and
without prejudice to any rights available to the Trustees under applicable law,
when a Trustee incurs expenses or renders services in connection with an Event
of Default resulting from a Bankruptcy Event with respect to the Trust, the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency or
other similar law.
The provisions of this Section 8.06 shall survive the termination of
this Trust Agreement.
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SECTION 8.07. CERTAIN TRUSTEES REQUIRED; ELIGIBILITY. (a) There shall
at all times be a Property Trustee hereunder with respect to the Trust
Securities. The Property Trustee shall be a Person that has a combined capital
and surplus of at least $50,000,000. If any such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Property Trustee with respect to the Trust
Securities shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article VIII.
(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative Trustee
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized to bind such
entity.
(c) There shall at all times be a Delaware Trustee with respect to the
Trust Securities. The Delaware Trustee shall either be (i) a natural person who
is at least 21 years of age and a resident of the State of Delaware or (ii) a
legal entity with its principal place of business in the State of Delaware that
otherwise meets the requirements of applicable Delaware law and that shall act
through one or more persons authorized to bind such entity.
SECTION 8.08. CONFLICTING INTERESTS.
If the Property Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Property Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Trust
Agreement. The Subordinated Indenture and the securities of any series issued
thereunder, the Trust Securities Guarantee Agreement [Others?] shall be deemed
to be specifically described in this Trust Agreement for the purposes of clause
(i) of the first proviso contained in Section 310(b) of the Trust Indenture Act.
SECTION 8.09. CO-TRUSTEES AND SEPARATE TRUSTEE.
Unless an Event of Default shall have occurred and be continuing, at
any time or times, for the purpose of meeting the legal requirements of the
Trust Indenture Act or of any jurisdiction in which any part of the Trust
Property may at the time be located, the Depositor and the Administrative
Trustees, by agreed action of the majority of such Trustees, shall have power to
appoint, and upon the written request of the Administrative Trustees, the
Depositor shall for such purpose join with the Administrative Trustees in the
execution, delivery, and performance of all instruments and agreements necessary
or proper to appoint, one or more Persons approved by the Property Trustee
either to act as co-trustee, jointly with the Property Trustee, of all or any
part of such Trust Property, or to act as separate trustee of any such property,
in either case with such powers as may be provided in the instrument of
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appointment, and to vest in such Person or Persons in the capacity aforesaid,
any property, title, right or power deemed necessary or desirable, subject to
the other provisions of this Section. If the Depositor does not join in such
appointment within 15 days after the receipt by it of a request so to do, or in
case a Debenture Event of Default has occurred and is continuing, the Property
Trustee alone shall have power to make such appointment.
Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged, and delivered
by the Depositor.
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms,
namely:
(1) The Trust Securities shall be executed and delivered and all
rights, powers, duties, and obligations hereunder in respect of the custody
of securities, cash and other personal property held by, or required to be
deposited or pledged with, the Trustees designated for such purpose
hereunder, shall be exercised, solely by such Trustees.
(2) The rights, powers, duties, and obligations hereby conferred or
imposed upon the Property Trustee in respect of any property covered by
such appointment shall be conferred or imposed upon and exercised or
performed by the Property Trustee or by the Property Trustee and such
co-trustee or separate trustee jointly, as shall be provided in the
instrument appointing such co-trustee or separate trustee, except to the
extent that under any law of any jurisdiction in which any particular act
is to be performed, the Property Trustee shall be incompetent or
unqualified to perform such act, in which event such rights, powers,
duties, and obligations shall be exercised and performed by such co-trustee
or separate trustee.
(3) The Property Trustee at any time, by an instrument in writing
executed by it, with the written concurrence of the Depositor, may accept
the resignation of or remove any co-trustee or separate trustee appointed
under this Section 8.09, and, in case a Debenture Event of Default has
occurred and is continuing, the Property Trustee shall have power to accept
the resignation of, or remove, any such co-trustee or separate trustee
without the concurrence of the Depositor. Upon the written request of the
Property Trustee, the Depositor shall join with the Property Trustee in the
execution, delivery, and performance of all instruments and agreements
necessary or proper to effectuate such resignation or removal. A successor
to any co-trustee or separate trustee so resigned or removed may be
appointed in the manner provided in this Section.
(4) No co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of any Trustee, or any other such
trustee hereunder.
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(5) The Property Trustee shall not be liable by reason of any act of a
co-trustee or separate trustee hereunder.
(6) Any Act of Holders delivered to the Property Trustee shall be
deemed to have been delivered to each such co-trustee and separate trustee.
SECTION 8.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. No
resignation or removal of any Trustee (as the case may be, the "Relevant
Trustee") and no appointment of a successor Relevant Trustee pursuant to this
Article shall become effective until the acceptance of appointment by the
successor Relevant Trustee in accordance with the applicable requirements of
Section 8.11.
The Relevant Trustee may resign at any time by giving written notice
thereof to the Securityholders, the Depositor and the other Trustees. If the
instrument of acceptance by a successor Relevant Trustee required by Section
8.11 shall not have been delivered to the resigning Relevant Trustee within 30
days after the giving of such notice of resignation, the resigning Relevant
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Relevant Trustee.
Unless a Debenture Event of Default shall have occurred and be
continuing, the Relevant Trustee may be removed at any time by Act of the Common
Trust Securityholder. If a Debenture Event of Default shall have occurred and be
continuing, the Property Trustee or the Delaware Trustee, or both of them, may
be removed at such time by Act of the Holders of a majority of the aggregate
Liquidation Amount of the Outstanding Preferred Trust Securities, delivered to
the Relevant Trustee (in its individual capacity and on behalf of the Trust). An
Administrative Trustee may be appointed, replaced or removed solely by the
Common Trust Securityholder at any time.
If the Relevant Trustee shall resign, be removed or become incapable
of continuing to act as Relevant Trustee at a time when no Debenture Event of
Default shall have occurred and be continuing, the Common Trust Securityholder,
by Act of the Common Trust Securityholder delivered to the retiring Relevant
Trustee, shall promptly appoint a successor Relevant Trustee or Trustees, and
the retiring Relevant Trustee shall comply with the applicable requirements of
Section 8.11. If the Property Trustee or the Delaware Trustee shall resign, be
removed or become incapable of continuing to act as the Property Trustee or the
Delaware Trustee, as the case may be, at a time when a Debenture Event of
Default shall have occurred and be continuing, the Preferred Trust
Securityholders, by Act of the Preferred Trust Securityholders of a majority in
aggregate Liquidation Amount of the Outstanding Preferred Trust Securities
delivered to such retiring Trustee, shall promptly appoint a successor Relevant
Trustee or Trustees, and such successor shall comply with the applicable
requirements of Section 8.11. If an Administrative Trustee shall resign, be
removed or become incapable of acting as Administrative Trustee, at a time when
a Debenture Event of Default shall have occurred and be continuing, the Common
Securityholder by Act of the Common Securityholder delivered to the
Administrative Trustees shall promptly appoint a successor Administrative
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Trustee or Trustees and such successor Administrative Trustee or Trustees shall
comply with the applicable requirements of Section 8.11. If no successor
Relevant Trustee shall have been so appointed by the Common Trust
Securityholders or the Preferred Trust Securityholders and accepted appointment
in the manner required by Section 8.11, any Securityholder who has been a
Securityholder of Trust Securities for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Relevant Trustee.
The Property Trustee shall give notice of each resignation and each
removal of a Trustee and each appointment of a successor Trustee to all
Securityholders in the manner provided in Section 10.08 and shall give notice to
the Depositor. Such notice shall include the name of the successor Relevant
Trustee and the address of its Corporate Trust Office if it is the Property
Trustee.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee or a Delaware Trustee who is
a natural person dies or becomes in the opinion of the Depositor, incompetent or
incapacitated, the vacancy created by such death, incompetence or incapacity may
be filled by (i) the unanimous act of remaining Administrative Trustees if there
are at least two of them or (ii) otherwise by the Depositor (with the successor
in each case being an individual who satisfies the eligibility requirements for
Administrative Trustees or Delaware Trustee, as the case may be, set forth in
Section 8.07). Additionally, notwithstanding the foregoing or any other
provision of this Trust Agreement, in the event the Depositor reasonably
believes that any Administrative Trustee who is a natural person has become
incompetent or incapacitated, the Depositor, by notice to the remaining
Trustees, may terminate the status of such Person as an Administrative Trustee
(in which case the vacancy so created will be filled in accordance with the
preceding sentence).
No Trustee shall be liable for the acts or omissions to act of any
successor Trustee.
SECTION 8.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. In case of the
appointment hereunder of a successor Relevant Trustee, the retiring Relevant
Trustee and each successor Trustee shall execute and deliver an amendment hereto
wherein each successor Relevant 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 Relevant Trustee all the rights,
powers, trusts and duties of the retiring Relevant Trustee and (2) shall add to
or change any of the provisions of this Trust Agreement as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one Relevant Trustee, it being understood that nothing herein or in such
amendment shall constitute such Relevant Trustees co-trustees of the same trust
and that each such Relevant Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Relevant Trustee and upon the execution and delivery of such
amendment the resignation or removal of the retiring Relevant Trustee shall
become effective to the extent provided therein and each such successor Relevant
Trustee, without any further act, deed or conveyance, shall become vested with
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all the rights, powers, trusts and duties of the retiring Relevant Trustee; but,
on request of the Trust or any successor Relevant Trustee such retiring Relevant
Trustee shall duly assign, transfer and deliver to such successor Trustee all
Trust Property, all proceeds thereof and money held by such retiring Relevant
Trustee hereunder with respect to the Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee, the retiring
Relevant Trustee shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Relevant Trustee all such
rights, powers and trusts referred to in the preceding paragraph.
No successor Relevant Trustee shall accept its appointment unless at
the time of such acceptance such successor Relevant Trustee shall be qualified
and eligible under this Article VIII.
SECTION 8.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS. Any Person into which the Property Trustee or the Delaware Trustee or
any Administrative Trustee that is not a natural person may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which such Relevant Trustee shall be a
party, or any Person succeeding to all or substantially all the corporate trust
business of such Relevant Trustee, shall be the successor of such Relevant
Trustee hereunder, provided such Person shall be otherwise qualified and
eligible under this Article VIII, without the execution or filing of any paper,
the giving of any notice or any further act on the part of any of the parties
hereto.
SECTION 8.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST DEPOSITOR OR
TRUST. If and when the Property Trustee shall be or become a creditor of the
Depositor or the Trust (or any other obligor upon the Debentures or the Trust
Securities), the Property Trustee shall be subject to the provisions of the
Trust Indenture Act regarding the collection of claims against the Depositor or
Trust (or any such other obligor).
SECTION 8.14. REPORTS BY PROPERTY TRUSTEE. (a) The Property Trustee
shall transmit to Securityholders such reports concerning the Property Trustee
and its actions under this Trust Agreement as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
Such of those reports as are required to be transmitted by the Property Trustee
pursuant to Section 313(a) of the Trust Indenture Act shall be dated as of the
next preceding September 15, and shall be transmitted no later than November 15
of each year, commencing September 15, 200_.
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Property Trustee with each national exchange, the
Nasdaq National Market or such other interdealer quotation system or
self-regulatory organization upon which the Trust Securities are listed or
traded, if any, with the Commission and with the Depositor. The Depositor will
notify the Property Trustee of any such listing or trading.
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SECTION 8.15. REPORTS TO THE PROPERTY TRUSTEE. The Depositor and the
Administrative Trustees on behalf of the Trust shall provide to the Property
Trustee such documents, reports and information, if any, and the compliance
certificate required by Section 314(a)(4) of the Trust Indenture Act, in the
form, in the manner and at the times required by Section 314(a)(4) of the Trust
Indenture Act, provided that such compliance certificate shall be delivered
annually on or before ________ in each year, beginning _____________. Delivery
of such reports, information and documents by the Depositor to the Property
Trustee is for informational purposes only and the Property Trustee's receipt of
such shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the
Depositor's compliance with any of its covenants hereunder (as to which the
Property Trustee is entitled to rely exclusively on Officer's Certificates).
SECTION 8.16. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT. Each
of the Depositor and the Administrative Trustees on behalf of the Trust shall
provide to the Property Trustee such evidence of compliance with any conditions
precedent, if any, provided for in this Trust Agreement (including any covenants
compliance with which constitutes a condition precedent) that relate to any of
the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) of the Trust Indenture Act may be given in the form of an Officer's
Certificate.
SECTION 8.17. NUMBER OF TRUSTEES.
(a) The number of Trustees shall be five, provided that the Depositor,
by written instrument, may increase or decrease the number of Administrative
Trustees.
(b) If a Trustee ceases to hold office for any reason and the number
of Administrative Trustees is not reduced pursuant to Section 8.17(a), or if the
number of Trustees is increased pursuant to Section 8.17(a), a vacancy shall
occur. The vacancy shall be filled with a Trustee appointed in accordance with
Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul, dissolve or terminate the Trust. Whenever a vacancy in the number of
Administrative Trustees shall occur, until such vacancy is filled by the
appointment of an Administrative Trustee in accordance with Section 8.10, the
Administrative Trustees in office, regardless of their number (and
notwithstanding any other provision of this Agreement), shall have all the
powers granted to the Administrative Trustees and shall discharge all the duties
imposed upon the Administrative Trustees by this Trust Agreement.
SECTION 8.18. DELEGATION OF POWER.
(a) Any Administrative Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21 his
or her power for the purpose of executing any documents contemplated in Sections
2.07(a) and 2.07(c), including any registration statement or amendment thereto
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filed with the Commission, or making any other governmental filing; and
(b) the Administrative Trustees shall have power to delegate from time
to time to such of their number the doing of such things and the execution of
such instruments either in the name of the Trust or the names of the
Administrative Trustees or otherwise as the Administrative Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
SECTION 8.19. FIDUCIARY DUTY.
(a) To the extent that, at law or in equity, an Indemnified Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Trust Agreement shall not be liable to the Trust or to any other Covered Person
for its good faith reliance on the provisions of this Trust Agreement. The
provisions of this Trust Agreement, to the extent that they restrict the duties
and liabilities of an Indemnified Person otherwise existing at law or in equity
(other than the duties imposed on the Property Trustee under the Trust Indenture
Act), are agreed by the parties hereto to replace such other duties and
liabilities of such Indemnified Person;
(b) Unless otherwise expressly provided herein and subject to the
provisions of the Trust Indenture Act:
(i) whenever a conflict of interest exists or arises between an
Indemnified Person and any Covered Person; or
(ii) whenever this Trust Agreement or any other agreement
contemplated herein or therein provides that an Indemnified Person
shall act in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any Holder of Trust Securities, the
Indemnified Person shall resolve such conflict of interest, take such
action or provide such terms, considering in each case the relative
interest of each party (including its own interest) to such conflict,
agreement, transaction or situation and the benefits and burdens
relating to such interests, any customary or accepted industry
practices, and any applicable generally accepted accounting practices
or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the
Indemnified Person shall not constitute a breach of this Trust
Agreement or any other agreement contemplated herein or of any duty or
obligation of the Indemnified Person at law or in equity or otherwise;
and
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(c) Unless otherwise expressly provided herein and subject to the
provisions of the Trust Indenture Act, whenever in this Trust Agreement an
Indemnified Person is permitted or required to make a decision
(i) in its "discretion" or under a grant of similar authority,
the Indemnified Person shall be entitled to consider such interests
and factors as it reasonably desires, including its own interests, and
shall have no duty or obligation to give any consideration to any
interest of or factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and shall not
be subject to any other or different standard imposed by this Trust
Agreement or by applicable law.
SECTION 8.20. DELAWARE TRUSTEE. It is expressly understood and agreed
by the parties hereto that in fulfilling its obligations as Delaware Trustee
hereunder on behalf of the Trust (i) any agreements or instruments executed and
delivered by Chase Manhattan Bank Delaware are executed and delivered not in its
individual capacity but solely as Delaware Trustee under this Trust Agreement in
the exercise of the powers and authority conferred and vested in it, (ii) each
of the representations, undertakings and agreements herein made on the part of
the Trust is made and intended not as representations, warrants, covenants,
undertakings and agreements by Chase Manhattan Bank Delaware in its individual
capacity but is made and intended for the purpose of binding only the Trust, and
(iii) under no circumstances shall Chase Manhattan Bank Delaware in its
individual capacity be personally liable for the payment of any indebtedness or
expenses of the Trust or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaking by the Trust under this
Trust Agreement, except if such breach or failure is due to any gross negligence
or willful misconduct of the Delaware Trustee.
ARTICLE IX
DISSOLUTION AND LIQUIDATION
SECTION 9.01. DISSOLUTION UPON EXPIRATION DATE. Unless earlier
dissolved, the Trust shall automatically dissolve on December 31, 20__ (the
"Expiration Date") and the Trustees shall take such action as is required by
Section 9.04.
SECTION 9.02. EARLY DISSOLUTION. Upon the first to occur of any of the
following events (such first occurrence, an "Early Termination Event"):
(i) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor;
(ii) the redemption of all of the Preferred Trust Securities;
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(iii) an order for judicial dissolution of the Trust having been
entered by a court of competent jurisdiction;
(iv) the election by the Depositor to dissolve the Trust and,
after satisfaction of liabilities to creditors of the Trust,
distribute the Debentures to the Holders of Preferred Trust Securities
in liquidation of the Trust;
the Trust shall dissolve and the Trustees shall take such action as is required
by Section 9.04.
SECTION 9.03. TERMINATION. The respective obligations and
responsibilities of the Trust and the Trustees created hereby shall terminate
upon the latest to occur of the following: (i) the distribution by the Property
Trustee to Securityholders upon the liquidation of the Trust pursuant to Section
9.04, or upon the redemption of all of the Trust Securities pursuant to Section
4.02 or 9.04(d), of all amounts required to be distributed hereunder upon the
final payment of the Trust Securities; (ii) the payment of any expenses owed by
the Trust; and (iii) the discharge of all administrative duties of the
Administrative Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders.
SECTION 9.04. LIQUIDATION. (a) Upon the Expiration Date or if an Early
Termination Event specified in clause (i), (iii) or (iv) of Section 9.02 occurs,
after satisfaction of creditors of the Trust, if any, as provided by applicable
law, the Trust shall be liquidated by the Property Trustee as expeditiously as
the Property Trustee determines to be appropriate by distributing to each
Securityholder a Like Amount of Debentures, subject to Section 9.04(e). Notice
of liquidation shall be given by the Administrative Trustees by first-class
mail, postage prepaid, mailed not later than 30 nor more than 60 days prior to
the Liquidation Date to each Holder of Trust Securities at such Holder's address
appearing in the Securities Register. All notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Debentures; and
(iii) provide such information with respect to the mechanics by
which Holders may exchange Trust Securities Certificates for
Debentures, or, if Section 9.04(e) applies, receive a Liquidation
Distribution, as the Administrative Trustees or the Property Trustee
shall deem appropriate.
(b) Except where Sections 9.02(ii), 9.04(d) or 9.04(e) apply, in order
to effect the liquidation of the Trust hereunder, and any resulting distribution
of the Debentures to Securityholders, the Administrative Trustees shall
establish a record date for such distribution (which shall be not more than 45
days prior to the Liquidation Date) and, either itself acting as exchange agent
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or through the appointment of a separate exchange agent, shall establish such
procedures as it shall deem appropriate to effect the distribution of Debentures
in exchange for the Outstanding Trust Securities Certificates.
(c) Except where Sections 9.02(ii), 9.04(d) or 9.04(e) apply, after
any Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) certificates representing a Like Amount of Debentures will,
after satisfaction of liabilities to creditors of the Trust, if any, as provided
by applicable law, be issued to Holders of Trust Securities Certificates, upon
surrender of such Trust Securities Certificates to the Administrative Trustees
or their agent for exchange, (iii) any Trust Securities Certificates not so
surrendered for exchange will be deemed to represent a Like Amount of
Debentures, accruing interest at the rate provided for in the Debentures from
the last Distribution Date on which a Distribution was made on such Trust
Securities Certificates until such Trust Securities Certificates are so
surrendered (and until such Trust Securities Certificates are so surrendered, no
payments or interest or principal will be made to Holders of Trust Securities
Certificates with respect to such Debentures) and (iv) all rights of
Securityholders holding Trust Securities will cease, except the right of such
Securityholders to receive, after satisfaction of liabilities to creditors of
the Trust, if any, as provided by applicable law, Debentures upon surrender of
Trust Securities Certificates.
(d) If at any time, a Tax Event shall occur and be continuing, and
either (i) in the opinion of counsel to the Depositor experienced in such
matters, there would in all cases, after effecting the dissolution of the Trust,
after satisfaction of liabilities to creditors of the Trust, if any, as provided
by applicable law, and the distribution of the Debentures to the Holders of the
Preferred Trust Securities in exchange therefor, be more than an insubstantial
risk that an Adverse Tax Consequence would continue to exist or (ii) the
Debentures are not held by the Trust, then the Depositor shall have the right to
redeem the Debentures, in whole but not in part, at any time within 90 days
following the occurrence of the Tax Event. Whether or not a Tax Event has
occurred, the Depositor has the right, at any time, to dissolve the Trust and,
after satisfaction of liabilities to creditors of the Trust, if any, as provided
by applicable law, cause the Debentures to be distributed to the Holders of the
Preferred Trust Securities and Common Trust Securities in liquidation of the
Trust on a pro rata basis.
(e) In the event that, notwithstanding the other provisions of this
Section 9.04, whether because of an order for dissolution entered by a court of
competent jurisdiction or otherwise, distribution of the Debentures in the
manner provided herein is determined by the Property Trustee not to be
practical, the Trust Property shall be liquidated, and the Trust shall be
wound-up, by the Property Trustee in such manner as the Property Trustee
determines. In such event, Securityholders will be entitled to receive out of
the assets of the Trust available for distribution to Securityholders, after
satisfaction of liabilities to creditors of the Trust, if any, as provided by
applicable law, an amount equal to the Liquidation Amount per Trust Security
plus accumulated and unpaid Distributions thereon to the date of payment (such
amount being the "Liquidation Distribution"). If, upon any such winding up, the
Liquidation Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate Liquidation
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Distribution, then, subject to the next succeeding sentence, the amounts payable
by the Trust on the Trust Securities shall be paid on a pro rata basis (based
upon Liquidation Amounts). The Holder of Common Trust Securities will be
entitled to receive Liquidation Distributions upon any such winding-up pro rata
(determined as aforesaid) with Holders of Preferred Trust Securities, except
that, if a Debenture Event of Default (or event that with the lapse of time or
giving of notice would become an Event of Default) has occurred and is
continuing, the Preferred Trust Securities shall have a priority over the Common
Trust Securities.
SECTION 9.05. MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS
OF THE TRUST.
The Trust may not merge, consolidate, amalgamate with or into, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any other Person, except pursuant to this
Article IX. At the request of the Depositor, with the consent of the
Administrative Trustees and without the consent of the Holders of at least a
majority in Liquidation Amount of the Preferred Trust Securities, the Property
Trustee or the Delaware Trustee, the Trust may merge, consolidate, amalgamate,
with or into, or be replaced by or convey, transfer or lease its properties and
assets substantially as an entirety to a trust organized as such under the laws
of any State; provided, that (i) such successor entity either (a) expressly
assumes all of the obligations of the Trust with respect to the Preferred
Securities or (b) substitutes for the Preferred Trust Securities other
securities having substantially the same terms as the Preferred Trust Securities
(the "Successor Securities") so long as the Successor Securities rank the same
as the Preferred Trust Securities rank in priority with respect to distributions
and payments upon liquidation, redemption and otherwise, (ii) a trustee of such
successor entity possessing substantially the same powers and duties as the
Property Trustee is appointed to hold the Debentures, (iii) the Successor
Securities are listed or traded, or any Successor Securities will be listed upon
notification of issuance, on any national securities exchange or other
organization on which the Preferred Trust Securities are then listed or traded,
if any, (iv) such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not cause the Preferred Trust Securities (including any
Successor Securities) to be downgraded by any nationally recognized statistical
rating organization, (v) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights, preferences
and privileges of the holders of the Preferred Securities (including any
Successor Securities) in any material respect, (vi) such successor entity has a
purpose substantially identical to that of the Trust, (vii) prior to such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease,
the Depositor has received an Opinion of Counsel to the effect that (a) such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease
does not adversely affect the rights, preferences and privileges of the holders
of the Preferred Securities (including any Successor Securities) in any material
respect, and (b) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the Trust nor such successor
entity will be required to register as an investment company under the
Investment Company Act and (viii) the Depositor or its permitted transferee owns
all of the common securities of such successor entity and guarantees the
obligations of such successor entity under the Successor Securities at least to
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<PAGE>
the extent provided by the guarantee. Notwithstanding the foregoing, the Trust
shall not, except with the consent of Holders of all the Preferred Trust
Securities, consolidate, amalgamate or merge with or into, or be replaced by or
convey, transfer or lease its properties and assets substantially as an entirety
to any other Person or permit any other Person to consolidate, amalgamate or
merge with or into, or replace it if such consolidation, amalgamation, merger,
replacement, conveyance, transfer or lease would cause the Trust or the
successor entity to be classified as other than a grantor trust for United
States federal income tax purposes.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01. PAYMENT OF EXPENSES OF THE TRUST. Pursuant to Article
Three of the Supplemental Indenture No. 1 to the Indenture, the Guarantor has
agreed to pay to the Trust, and reimburse the Trust for, the full amount of any
costs, expenses or liabilities of the Trust (other than obligations of the Trust
to pay the Holders of any Preferred Securities or Common Securities), including,
without limitation, any taxes, duties or other governmental charges of whatever
nature (other than withholding taxes) imposed on the Trust by the United States
or any other taxing authority. Such payment obligation includes any such costs,
expenses or liabilities of the Trust that are required by applicable law to be
satisfied in connection with a termination of the Trust.
SECTION 10.02. LIMITATION OF RIGHTS OF SECURITYHOLDERS. The death,
incapacity, bankruptcy, dissolution or termination of any Person having an
interest, beneficial or otherwise, in a Trust Security shall not operate to
terminate this Trust Agreement, nor dissolve, terminate or annul the Trust, nor
entitle the legal representatives or heirs of such Person or any Securityholder
for such Person, to claim an accounting, take any action or bring any proceeding
in any court for a partition or winding up of the arrangements contemplated
hereby, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
SECTION 10.03. AMENDMENT.
(a) This Trust Agreement may be amended from time to time by a
majority of the Administrative Trustees and the Depositor, without the consent
of any Securityholders), (i) to cure any ambiguity, correct or supplement any
provision herein or therein which may be inconsistent with any other provision
herein or therein, or to make any other provisions with respect to matters or
questions arising under this Trust Agreement, (ii) to change the name of the
Trust or (iii) to modify, eliminate or add to any provisions of this Trust
Agreement to such extent as shall be necessary to ensure that the Trust will not
be classified for United States Federal income tax purposes other than as a
"grantor trust" and not as an association taxable as a corporation at any time
that any Trust Securities are outstanding or to ensure the Trust's exemption
from the status of an "investment company" under the Investment Company Act;
provided, however, that such action shall not adversely affect in any material
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<PAGE>
respect the interests of any Securityholder and, in the case of clause (i), any
such amendments of this Trust Agreement shall become effective when notice
thereof is given to the Securityholders.
(b) Except as provided in Sections 6.01(c) and 10.03(c), any provision
of this Trust Agreement may be amended by the Administrative Trustees and the
Depositor with (i) the consent of Holders of Trust Securities representing not
less than a majority (based upon Liquidation Amounts) of the Outstanding Trust
Securities and (ii) receipt by the Trustees of an Opinion of Counsel to the
effect that such amendment or the exercise of any power granted to the Trustees
in accordance with such amendment will not affect the Trust's status as a
grantor trust for Federal income tax purposes or the Trust's exemption from
status as an "investment company" under the Investment Company Act.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Securityholder, this Trust
Agreement may not be amended to (i) adversely change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust Securities as of a
specified date or (ii) restrict the right of a Securityholder to institute suit
for the enforcement of any such payment on or after such date.
(d) Notwithstanding any other provisions of this Trust Agreement, no
amendment to this Trust Agreement may be made if, as a result of such amendment,
the Trust would not be classified as a "grantor trust" but an association
taxable as a corporation for United States Federal income tax purposes or would
to fail or cease to qualify for the exemption from status of an "investment
company" under the Investment Company Act afforded by Rule 3a-5 thereunder.
(e) Notwithstanding anything in this Trust Agreement to the contrary,
without the consent of the Depositor and the Trustees, this Trust Agreement may
not be amended in a manner which imposes any additional obligation on the
Depositor or any Trustee or, in the case of the Trustees, which affects any of
their respective rights, duties or immunities hereunder.
(f) In the event that any amendment to this Trust Agreement is made,
the Administrative Trustees shall promptly provide to the Depositor a copy of
such amendment.
(g) The Property Trustee and the Delaware Trustee may join in the
execution of any amendment to the Trust Agreement and are entitled to rely upon
an Opinion of Counsel as conclusive evidence that any amendment to this Trust
Agreement entered into pursuant to this Section 10.03 is authorized or permitted
by, and conforms to, the terms of this Section 10.03, has been duly authorized
by and lawfully executed and delivered on behalf of the other requisite parties,
and that it is proper for the Property Trustee under the provisions of this
Section 10.03 to accept the additional trusts created thereby and, if so
requested, for the Property Trustee or the Delaware Trustee to join in the
execution thereof.
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<PAGE>
SECTION 10.04. SEPARABILITY. In case any provision in this Trust
Agreement or in the Trust Securities Certificates shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 10.05. GOVERNING LAW. THIS TRUST AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE TRUST, THE DEPOSITOR, THE
GUARANTOR AND THE TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT AND THE TRUST
SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF DELAWARE (WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES).
SECTION 10.06. SUCCESSORS. This Trust Agreement shall be binding upon
and shall inure to the benefit of any successor to [the Depositor, the
Guarantor,] the Trust or the Relevant Trustees or any of them, including any
successor by operation of law.
SECTION 10.07. HEADINGS. The Article and Section headings are for
convenience only and shall not affect the construction of this Trust Agreement.
SECTION 10.08. NOTICE AND DEMAND. Any notice, demand or other
communication which by any provision of this Trust Agreement is required or
permitted to be given or served to or upon any Securityholder or the Depositor
may be given or served in writing by deposit thereof, postage prepaid, in the
United States mail, hand delivery or facsimile transmission, in each case,
addressed, (i) in the case of a Preferred Trust Securityholder, to such
Preferred Trust Securityholder as such Securityholder's name and address may
appear on the Securities Register, (ii) in the case of the Depositor or the
Common Securityholder, to PP&L Capital Funding, Inc., Two North Ninth Street,
Allentown, Pennsylvania 18101, Attention: Treasurer, facsimile no. 610-774-5106
(until another address is given to the Property Trustee), and (iii) in the case
of the Guarantor, to PP&L Resources, Inc., Two North Ninth Street, Allentown,
Pennsylvania 18101, Attention: Treasurer, facsimile no. 610-774-5106 (until
another address is given to the Property Trustee). Such notice, demand or other
communication to or upon a Securityholder shall be deemed to have been
sufficiently given or made, for all purposes, upon hand delivery, mailing or
facsimile transmission.
Any notice, demand or other communication which by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
the Trust, the Property Trustee, the Delaware Trustee or the Administrative
Trustees shall be given in writing addressed (until another address is given to
the other parties hereto) as follows: (i) with respect to the Property Trustee,
to the Chase Manhattan Bank, 450 West 33rd Street, 15th Floor, New York, New
York 10001, Attention: Capital Markets Fiduciary Services, (ii) with respect to
the Delaware Trustee, to the Chase Manhattan Bank Delaware, 1201 Market Street,
9th Floor, Wilmington, Delaware 19801 with a copy to the Property Trustee at the
address set forth in (i) above, Attention: ____________________________, and
(iii) with respect to the Trust or the Administrative Trustees, at the address
above for notice to the Depositor, marked "Attention: Administrative Trustees
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<PAGE>
for PP&L Capital Funding Trust I". Such notice, demand or other communication to
or upon the Trust, the Delaware Trustee or the Property Trustee shall be deemed
to have been sufficiently given or made only upon actual receipt of the writing
by the Trust, the Delaware Trustee or the Property Trustee.
SECTION 10.09. AGREEMENT NOT TO PETITION. Each of the Trustees and the
Depositor agrees for the benefit of the Securityholders that, until at least one
year and one day after the Trust has been terminated in accordance with Article
IX, it shall not file, or join in the filing of, a petition against the Trust
under any bankruptcy, reorganization, arrangement, insolvency, liquidation or
other similar law (including, without limitation, the United States Bankruptcy
Code) (collectively, "Bankruptcy Laws") or otherwise join in the commencement of
any proceeding against the Trust under any Bankruptcy Law. In the event the
Depositor takes action in violation of this Section 10.09, the Property Trustee
agrees, for the benefit of Securityholders, that it shall file an answer with
the bankruptcy court or otherwise properly contest the filing of such petition
by the Depositor against the Trust or the commencement of such action and raise
the defense that the Depositor has agreed in writing not to take such action and
should be estopped and precluded therefrom and such other defenses, if any, as
counsel for the Property Trustee or the Trust may assert. The provisions of this
Section 10.09 shall survive the termination of this Trust Agreement.
SECTION 10.10. CONFLICT WITH TRUST INDENTURE ACT. (a) This Trust
Agreement is subject to the provisions of the Trust Indenture Act that are
required or deemed to be part of this Trust Agreement and shall, to the extent
applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a trustee
for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required or deemed to be included in this
Trust Agreement by any of the provisions of the Trust Indenture Act, such
required or deemed provision shall control.
(d) The application of the Trust Indenture Act to this Trust Agreement
shall not affect the nature of the Trust Securities as equity securities
representing interests in the Trust.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY OR ON
BEHALF OF A SECURITYHOLDER, WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF
ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE SECURITYHOLDER AND
ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS
AND PROVISIONS OF THIS TRUST AGREEMENT AND THE AGREEMENT OF THE TRUST, SUCH
SECURITYHOLDER AND SUCH OTHERS THAT THOSE TERMS AND PROVISIONS SHALL BE BINDING,
OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH
OTHERS.
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<PAGE>
SECTION 10.11. COUNTERPARTS.
This Trust Agreement may contain more than one counterpart of the
signature page and this Trust Agreement may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
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<PAGE>
IN WITNESS WHEREOF, the parties have caused this Amended and Restated
Trust Agreement to be duly executed, all as of the day and year first above
written.
PP&L RESOURCES, INC.
as Depositor
By: ________________________________
Title:
THE CHASE MANHATTAN BANK,
as Property Trustee
By: ________________________________
Title:
THE CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
By: ________________________________
Title:
________________________________
________, solely in his capacity
as Administrative Trustee
________________________________
________, solely in his capacity
as Administrative Trustee
-55-
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST
OF
PP&L CAPITAL FUNDING TRUST I
THIS CERTIFICATE OF TRUST of PP&L Capital Funding Trust I (the
"Trust"), dated as of __________, ____, is being duly executed and filed by the
undersigned, as trustees, to form a business trust under the Delaware Business
Trust Act (12 Del.C. ss. 3801 et seq.).
1. Name. The name of the business trust formed hereby is PP&L Capital
Funding Trust I.
2. Delaware Trustee. The name and business address of the trustee of
the Trust with a principal place of business in the State of Delaware are Chase
Manhattan Bank Delaware, 1201 Market Street, 9th Floor, Wilmington, Delaware
19801.
3. Effective Date. This Certificate of Trust shall be effective upon
its filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned, being the only trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
THE CHASE MANHATTAN BANK,
not in its individual capacity
but solely as trustee
By: ___________________________
Name:
Title:
CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity
but solely as trustee
By: ___________________________
Name:
Title:
_________, not in his
individual capacity but solely
as trustee
-A-1-
<PAGE>
EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS
PROVIDED IN THE TRUST AGREEMENT
Certificate Number Number of Common Trust Securities
C -
Certificate Evidencing Common Trust Securities
of
PP&L Capital Funding Trust I
Common Trust Securities
(liquidation amount $[25] per Common Trust Security)
PP&L Capital Funding Trust I, a statutory business trust created under
the laws of the State of Delaware (the "Trust"), hereby certifies that PP&L
Resources, Inc. (the "Holder") is the registered owner of _____ common
securities of the Trust representing undivided beneficial interests in the
assets of the Trust and designated the PP&L Capital Funding Trust I Common Trust
Securities (liquidation amount $[25] per Common Trust Security) (the "Common
Trust Securities"). Except as permitted by Section 5.10 of the Trust Agreement
(as defined below), the Common Trust Securities are not transferable and any
attempted transfer hereof shall be void. The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Common Trust
Securities are set forth in, and this certificate and the Common Trust
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of __________ __, 1999, as the same may be amended from time to
time (the "Trust Agreement"), including the designation of the terms of the
Common Trust Securities as set forth therein. [Capitalized terms used herein but
not defined shall have the meaning given them in the Trust Agreement. The holder
of this certificate is entitled to the benefits of the Trust Securities
Guarantee Agreement of PP&L Resources, Inc. and The Chase Manhattan Bank, as
guarantee trustee, dated as of ___________, _____ (the "Guarantee") to the
extent provided therein.] The Trust will furnish a copy of the Trust Agreement
[and the Guarantee] to the Holder without charge upon written request to the
Trust at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
[By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Debentures as indebtedness and the Common Trust
Securities as evidence of undivided beneficial interests in the assets of the
Trust.]
-B-1-
<PAGE>
IN WITNESS WHEREOF, an Administrative Trustee of the Trust has
executed this certificate for and on behalf of the Trust this ___ day of
________, 199_.
PP&L Capital Funding Trust I
By:_________________________________
not in his individual capacity,
but solely as Administrative
Trustee
-B-2-
<PAGE>
EXHIBIT C
[Legend]
Certificate Number Number of Preferred Trust Securities
P- CUSIP NO.
Certificate Evidencing Preferred Trust Securities
of
PP&L Capital Funding Trust I
[Title of Securities]
(liquidation amount $[25] per Preferred Trust Security)
PP&L Capital Funding Trust I, a statutory business trust created under
the laws of the State of Delaware (the "Trust"), hereby certifies that
____________ (the "Holder") is the registered owner of _____ preferred
securities of the Trust representing an undivided beneficial interest in the
assets of the Trust and designated the PP&L Capital Funding Trust I [Title of
Securities] (liquidation amount $[25] per Preferred Trust Security) (the
"Preferred Trust Securities"). The Preferred Trust Securities are transferable
on the books and records of the Trust, in person or by a duly authorized
attorney, upon surrender of this certificate duly endorsed and in proper form
for transfer as provided in Section 5.04 or 5.12 of the Trust Agreement (as
defined below). The designations, rights, privileges, restrictions, preferences
and other terms and provisions of the Preferred Trust Securities are set forth
in, and this certificate and the Preferred Trust Securities represented hereby
are issued and shall in all respects be subject to the terms and provisions of,
the Amended and Restated Trust Agreement of the Trust dated as of ______, ____,
as the same may be amended from time to time (the "Trust Agreement"), including
the designation of the terms of the Preferred Trust Securities as set forth
therein. Capitalized terms used herein but not defined shall have the meaning
given them in the Trust Agreement. The holder of this certificate is entitled to
the benefits of the Trust Securities Guarantee Agreement of PP&L Resources, Inc.
and The Chase Manhattan Bank, as guarantee trustee, dated as of ______, ____
(the "Guarantee") to the extent provided therein. The Trust will furnish a copy
of the Trust Agreement and the Guarantee to the Holder without charge upon
written request to the Trust at its principal place of business or registered
office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
[By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Debentures as indebtedness and the Preferred Trust
Securities as evidence of undivided beneficial interests in the assets of the
Trust.]
-C-1-
<PAGE>
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust
has executed this certificate for and on behalf of the Trust.
Dated:
PP&L CAPITAL FUNDING TRUST I
By:_________________________________
not in his individual capacity,
but solely as Administrative
Trustee
Countersigned and Registered:
_______________________________,
Transfer Agent and Registrar
By: ________________________________
(Authorized Signature)
-C-2-
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Trust Security to:
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- ------------------------------------------------------------------------------
(Insert address and zip code of assignee)
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
of the Preferred Trust Securities represented by this Certificate and
irrevocably appoints
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
attorney to transfer such Preferred Trust Securities Certificate on the books of
the Trust. The attorney may substitute another to act for him or her.
Date:__________________
Signature:________________________
(Sign exactly as your name appears on the other side of this Preferred Trust
Securities Certificate)
Signature:________________________
(Sign exactly as your name appears on the other side of this Preferred Trust
Securities Certificate)
-C-3-
EXHIBIT 4.11
------------
--------------------------------------------
PP&L CAPITAL FUNDING, INC.,
Issuer
and
PP&L RESOURCES, INC.,
Guarantor
TO
THE CHASE MANHATTAN BANK,
Trustee
-----------
SUBORDINATED INDENTURE
Dated as of
-------------------------
--------------------------------------------
<PAGE>
TABLE OF CONTENTS
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE Definitions and Other Provisions of
General Application . . . . . . . . 2
SECTION 101. Definitions . . . . . . . . . . . . 2
[Act . . . . . . . . . . . . . . . . . . . . . 2
[Additional Interest . . . . . . . . . . . . 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 . . . . . . . . . . . . . . . 6
Predecessor Security . . . . . . . . . . . . . 7
[Preferred Securities . . . . . . . . . . . 7]
Redemption Date . . . . . . . . . . . . . . . 7
Redemption Price . . . . . . . . . . . . . . . 7
Regular Record Date . . . . . . . . . . . . . 7
[Required Currency . . . . . . . . . . . . . 7]
Responsible Officer . . . . . . . . . . . . . 7
<PAGE>
Securities . . . . . . . . . . . . . . . . . . 7
Securities Act . . . . . . . . . . . . . . . . 7
Security Register and Security Registrar . . . 7
Senior Indebtedness . . . . . . . . . . . . . 7
Special Record Date . . . . . . . . . . . . . 8
Stated Interest Rate . . . . . . . . . . . . . 8
Stated Maturity . . . . . . . . . . . . . . . 8
Tranche . . . . . . . . . . . . . . . . . . . 8
Trust . . . . . . . . . . . . . . . . . . . . 8
Trust Agreement . . . . . . . . . . . . . . . 8
Trustee . . . . . . . . . . . . . . . . . . . 8
Trust Indenture Act . . . . . . . . . . . . . 8
[Trust Securities Guarantee . . . . . . . . 8]
United States . . . . . . . . . . . . . . . . 9
SECTION 102. Compliance Certificates and
Opinions . . . . . . . . . . . . . . 9
SECTION 103. Form of Documents Delivered to
Trustee . . . . . . . . . . . . . . 9
SECTION 104. Acts of Holders . . . . . . . . . . 10
SECTION 105. Notices, Etc. to Trustee, Company
or Guarantor . . . . . . . . . . . . 12
SECTION 106. Notice to Holders of Securities;
Waiver . . . . . . . . . . . . . . . 13
SECTION 107. Conflict with Trust Indenture Act . 14
SECTION 108. Effect of Headings and Table of
Contents . . . . . . . . . . . . . . 14
SECTION 109. Successors and Assigns . . . . . . . 14
SECTION 110. Separability Clause . . . . . . . . 14
SECTION 111. Benefits of Indenture . . . . . . . 14
SECTION 112. Governing Law . . . . . . . . . . . 14
SECTION 113. Legal Holidays . . . . . . . . . . . 14
ARTICLE TWO Security Forms . . . . . . . . . . . 15
SECTION 201. Forms Generally . . . . . . . . . . 15
SECTION 202. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . 16
ARTICLE THREE The Securities . . . . . . . . . . . 16
SECTION 301. Amount Unlimited; Issuable in
Series . . . . . . . . . . . . . . . 16
SECTION 302. Denominations . . . . . . . . . . . 20
SECTION 303. Execution, Authentication, Delivery
and Dating . . . . . . . . . . . . . 20
SECTION 304. Temporary Securities . . . . . . . . 22
SECTION 305. Registration, Registration of
Transfer and Exchange. . . . . . . . 23
SECTION 306. Mutilated, Destroyed, Lost and
Stolen Securities . . . . . . . . . 24
SECTION 307. Payment of Interest; Interest
Rights Preserved . . . . . . . . . . 25
SECTION 308. Persons Deemed Owners . . . . . . . 26
SECTION 309. Cancellation . . . . . . . . . . . . 26
SECTION 310. Computation of Interest . . . . . . 26
SECTION 311. Payment to Be in Proper Currency . . 27
[SECTION 312. Extension of Interest Payment. . . . 27
[SECTION 313. Additional Interest. . . . . . . . . 27
ARTICLE FOUR Redemption of Securities . . . . . . 27
SECTION 401. Applicability of Article . . . . . . 27
SECTION 402. Election to Redeem; Notice to
Trustee. . . . . . . . . . . . . . . 28
SECTION 403. Selection of Securities to Be
Redeemed . . . . . . . . . . . . . . 28
ii
<PAGE>
SECTION 404. Notice of Redemption. . . . . . . . 28
SECTION 405. Securities Payable on Redemption
Date . . . . . . . . . . . . . . . . 29
SECTION 406. Securities Redeemed in Part . . . . 30
ARTICLE FIVE Sinking Funds . . . . . . . . . . . 30
SECTION 501. Applicability of Article . . . . . . 30
SECTION 502. Satisfaction of Sinking Fund
Payments with Securities . . . . . . 30
SECTION 503. Redemption of Securities for
Sinking Fund . . . . . . . . . . . . 31
ARTICLE SIX Covenants . . . . . . . . . . . . . 31
SECTION 601. Payment of Principal, Premium and
Interest . . . . . . . . . . . . . . 31
SECTION 602. Maintenance of Office or Agency . . 31
SECTION 603. Money for Securities Payments to Be
Held in Trust . . . . . . . . . . . 32
SECTION 604. Corporate Existence . . . . . . . . 33
SECTION 605. Annual Officer's Certificate . . . . 33
SECTION 606. Waiver of Certain Covenants . . . . 34
SECTION 607. Restriction on Payment of
Dividends. . . . . . . . . . . . . . . . . . . . . 34
[SECTION 608. Maintenance of Trust Existence . . . 34]
[SECTION 609. Rights of Holders of Preferred
Securities . . . . . . . . . . . . . 35]
ARTICLE SEVEN Satisfaction and Discharge . . . . . 35
SECTION 701. Satisfaction and Discharge of
Securities . . . . . . . . . . . . . 35
SECTION 702. Satisfaction and Discharge of
Indenture . . . . . . . . . . . . . 37
SECTION 703. Application of Trust Money . . . . . 38
ARTICLE EIGHT Events of Default; Remedies . . . . 38
SECTION 801. Events of Default . . . . . . . . . 39
SECTION 802. Acceleration of Maturity;
Rescission and Annulment . . . . . . 40
SECTION 803. Collection of Indebtedness and
Suits for Enforcement by Trustee . . 41
SECTION 804. Trustee May File Proofs of Claim . . 41
SECTION 805. Trustee May Enforce Claims Without
Possession of Securities . . . . . . 42
SECTION 806. Application of Money Collected . . . 42
SECTION 807. Limitation on Suits . . . . . . . . 42
SECTION 808. Unconditional Right of Holders to
Receive Principal, Premium and
Interest . . . . . . . . . . . . . . 43
SECTION 809. Restoration of Rights and Remedies . 43
SECTION 810. Rights and Remedies Cumulative . . . 44
SECTION 811. Delay or Omission Not Waiver . . . . 44
SECTION 812. Control by Holders of Securities . . 44
SECTION 813. Waiver of Past Defaults . . . . . . 44
SECTION 814. Undertaking for Costs . . . . . . . 45
SECTION 815. Waiver of Usury, Stay or Extension
Laws . . . . . . . . . . . . . . . . 45
ARTICLE NINE The Trustee . . . . . . . . . . . . 46
SECTION 901. Certain Duties and
Responsibilities . . . . . . . . . . 46
SECTION 902. Notice of Defaults . . . . . . . . . 46
SECTION 903. Certain Rights of Trustee . . . . . 47
SECTION 904. Not Responsible for Recitals or
Issuance of Securities . . . . . . . 48
SECTION 905. May Hold Securities . . . . . . . . 48
SECTION 906. Money Held in Trust . . . . . . . . 48
iii
<PAGE>
SECTION 907. Compensation and Reimbursement . . . 48
SECTION 908. Disqualification; Conflicting
Interests . . . . . . . . . . . . . 49
SECTION 909. Corporate Trustee Required;
Eligibility . . . . . . . . . . . . 49
SECTION 910. Resignation and Removal;
Appointment of Successor . . . . . . 50
SECTION 911. Acceptance of Appointment by
Successor . . . . . . . . . . . . . 51
SECTION 912. Merger, Conversion, Consolidation
or Succession to Business. . . . . . 52
SECTION 913. Preferential Collection of Claims
Against Company . . . . . . . . . . 52
SECTION 914. Appointment of Authenticating
Agent. . . . . . . . . . . . . . . . 53
SECTION 915. Co-trustee and Separate Trustees. . 55
ARTICLE TEN Holders' Lists and Reports by
Trustee, Company and Guarantor . . . 55
SECTION 1001. Lists of Holders. . . . . . . . . . 55
SECTION 1002. Reports by Trustee, Company and
Guarantor. . . . . . . . . . . . . . 56
ARTICLE ELEVEN Consolidation, Merger, Conveyance, or
Other Transfer . . . . . . . . . . . 56
SECTION 1101. Company or Guarantor
May Consolidate,
Etc., Only on
Certain Terms . . . . . . . . . . . 56
SECTION 1102. Successor Person Substituted . . . . 57
SECTION 1103. Limitation. . . . . . . . . . . . . 57
ARTICLE TWELVE Supplemental Indentures . . . . . . . . . 57
SECTION 1201. Supplemental Indentures Without
Consent of Holders . . . . . . . . . 57
SECTION 1202. Supplemental Indentures With
Consent of Holders . . . . . . . . . 59
SECTION 1203. Execution of Supplemental
Indentures . . . . . . . . . . . . . 61
SECTION 1204. Effect of Supplemental Indentures . 61
SECTION 1205. Conformity With Trust Indenture
Act. . . . . . . . . . . . . . . . . 61
SECTION 1206. Reference in Securities to
Supplemental Indentures . . . . . . 61
SECTION 1207. Modification Without Supplemental
Indenture . . . . . . . . . . . . . 62
ARTICLE THIRTEEN Meetings of Holders; Action Without
Meeting . . . . . . . . . . . . . . 62
SECTION 1301. Purposes for Which Meetings May Be
Called . . . . . . . . . . . . . . . 62
SECTION 1302. Call, Notice and Place of Meetings . 62
SECTION 1303. Persons Entitled to Vote at
Meetings . . . . . . . . . . . . . . 62
SECTION 1304. Quorum; Action . . . . . . . . . . . 63
SECTION 1305. Attendance at Meetings;
Determination of Voting Rights;
Conduct and Adjournment
of Meetings . . . . . . . . . . . . 64
SECTION 1306. Counting Votes and Recording Action
of Meetings . . . . . . . . . . . . 65
SECTION 1307. Action Without Meeting . . . . . . . 65
ARTICLE FOURTEEN Guarantee . . . . . . . . . . . . . 65
SECTION 1401. Guarantee. . . . . . . . . . . . . . 65
SECTION 1402 Guarantee Subordinate to Senior
Indebtedness of the Guarantor. . . . 66
SECTION 1403. Payment Over of Proceeds of
Securities . . . . . . . . . . . . . 66
SECTION 1404. Disputes with Holders of Certain
Senior Indebtedness . . . . . . . . 68
SECTION 1405. Subrogation . . . . . . . . . . . . 68
SECTION 1406. Obligation of the Guarantor
Unconditional . . . . . . . . . . . 69
SECTION 1407. Priority of Senior Indebtedness of
the Guarantor Upon Maturity . . . . 69
SECTION 1408. Trustee as Holder of Senior
Indebtedness of the Guarantor . . . 69
SECTION 1409. Notice to Trustee to Effectuate
Subordination . . . . . . . . . . . 69
iv
<PAGE>
SECTION 1410. Modification, Extension, etc. of
Senior Indebtedness of the Guarantor 70
SECTION 1411. Trustee Has No Fiduciary Duty to
Holders of Senior Indebtedness of
the Guarantor . . . . . . . . . . . 70
SECTION 1412. Paying Agents Other Than the
Trustee. . . . . . . . . . . . . . . 70
SECTION 1413. Rights of Holders of Senior
Indebtedness of the Guarantor Not
Impaired . . . . . . . . . . . . . . 71
SECTION 1414. Effect of Subordination Provisions;
Termination . . . . . . . . . . . . 71
SECTION 1415. Execution and Delivery of
Guarantee. . . . . . . . . . . . . . 71
ARTICLE FIFTEEN Subordination of Securities . . . . 72
SECTION 1501. Securities Subordinate to Senior
Indebtedness of the Company. . . . . 72
SECTION 1502. Payment Over of Proceeds of
Securities . . . . . . . . . . . . . 72
SECTION 1503. Disputes with Holders of Certain
Senior Indebtedness of the Company . 74
SECTION 1504. Subrogation . . . . . . . . . . . . 74
SECTION 1505. Obligation of the Company
Unconditional . . . . . . . . . . . 74
SECTION 1506. Priority of Senior Indebtedness of
the Company Upon Maturity . . . . . 75
SECTION 1507. Trustee as Holder of Senior
Indebtedness of the Company . . . . 75
SECTION 1508. Notice to Trustee to Effectuate
Subordination . . . . . . . . . . . 75
SECTION 1509. Modification, Extension, etc. of
Senior Indebtedness of the Company . 75
SECTION 1510. Trustee Has No Fiduciary Duty to
Holders of Senior Indebtedness of
the Company. . . . . . . . . . . . . 76
SECTION 1511. Paying Agents Other Than the
Trustee. . . . . . . . . . . . . . . 76
SECTION 1512. Rights of Holders of Senior
Indebtedness of the Company Not
Impaired . . . . . . . . . . . . . . 76
SECTION 1513. Effect of Subordination Provisions;
Termination . . . . . . . . . . . . 76
ARTICLE SIXTEEN Immunity of Incorporators,
Stockholders, Officers and
Directors . . . . . . . . . . . . . 77
SECTION 1601. Liability Solely Corporate . . . . . 77
Testimonium . . . . . . . . . . . . . . . . . . . . . . . . . 77
Signatures and Seals . . . . . . . . . . . . . . . . . . . . 77
v
<PAGE>
PP&L CAPITAL FUNDING, INC.
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of ________, 1999
--------
Trust Indenture Act Section Indenture Section
Section 310 (a)(1) . . . . . . . . . . 909
(a)(2) . . . . . . . . . . 909
(a)(3) . . . . . . . . . . 915
(a)(4) . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . 908
910
Section 311 (a) . . . . . . . . . . . 913
(b) . . . . . . . . . . . 913
(c) . . . . . . . . . . . Not Applicable
Section 312 (a) . . . . . . . . . . . 1001
(b) . . . . . . . . . . . 1001
(c) . . . . . . . . . . . 1001
Section 313 (a) . . . . . . . . . . . 1002
(b)(1) . . . . . . . . . . Not Applicable
(b)(2) . . . . . . . . . . 1002
(c) . . . . . . . . . . . 1002
(d) . . . . . . . . . . . 1002
Section 314 (a) . . . . . . . . . . . 1002
(a)(4) . . . . . . . . . . 605
(b) . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . 102
(c)(2) . . . . . . . . . . 102
(c)(3) . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . 102
Section 315 (a) . . . . . . . . . . . 901(a)
(b) . . . . . . . . . . . 902
(c) . . . . . . . . . . . 901(b)
(d) . . . . . . . . . . . 901(c)
(d)(1) . . . . . . . . . . 901(a)(1), 901(c)(1)
(d)(2) . . . . . . . . . . 901(c)(2)
(d)(3) . . . . . . . . . . 901(c)(3)
(e) . . . . . . . . . . . 814
Section 316 (a) . . . . . . . . . . . 812
813
(a)(1)(A) . . . . . . . . 802
812
(a)(1)(B) . . . . . . . . 813
(a)(2) . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . 808
Section 317 (a)(1) . . . . . . . . . . 803
(a)(2) . . . . . . . . . . 804
(b) . . . . . . . . . . . 603
Section 318 (a) . . . . . . . . . . . 107
vi
<PAGE>
SUBORDINATED INDENTURE, dated as of
----------------
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 18101-1179, and The Chase Manhattan Bank, a New York
banking corporation, having its principal corporate trust office
at 450 West 33rd Street, 15th Floor, 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 subordinated 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 [, including, without limitation,
Securities to be issued to evidence loans made to the Company or
the Guarantor or their affiliates of the proceeds from the
issuance from time to time by one or more Trusts (as defined
below) of undivided beneficial ownership interests in the assets
of such Trusts] 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.
["ADDITIONAL INTEREST" has the meaning specified in
Section 313.]
"AFFILIATE" of any specified Person means any other
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
Person. For the purposes of this definition, "CONTROL" when used
with respect to any specified Person means the power to direct
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.
2
<PAGE>
"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, 15th Floor, 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.
3
<PAGE>
"[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.]
4
<PAGE>
"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
5
<PAGE>
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.
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"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.
["PREFERRED SECURITIES" means any preferred trust
interests issued by a Trust or similar securities issued by
permitted successors to such Trust in accordance with the Trust
Agreement pertaining to such Trust.]
"REDEMPTION DATE", when used with respect to any
Security to be redeemed, means the date fixed for such redemption
by or pursuant to this Indenture.
"REDEMPTION PRICE", when used with respect to any
Security to be redeemed, means the price at which it is to be
redeemed pursuant to this Indenture.
"REGULAR RECORD DATE" for the interest payable on any
Interest Payment Date on the Securities of any series means the
date specified for that purpose as contemplated by Section 301.
"[REQUIRED CURRENCY" has the meaning specified in
Section 311.]
"RESPONSIBLE OFFICER", when used with respect to the
Trustee, means the chairman or any vice-chairman of the board of
directors, the chairman or any vice-chairman of the executive
committee of the board of directors, the chairman of the trust
committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any senior trust officer, any
trust officer or assistant trust officer, the controller or any
assistant controller or any other officer of the Trustee
customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer of the
Trustee to whom such matter is referred because of his knowledge
of and familiarity with the particular subject.
"SECURITIES" has the meaning stated in the first
recital of this Indenture and more particularly means any
securities authenticated and delivered under this Indenture.
"SECURITIES ACT" means the Securities Act of 1933, and
the rules and regulations promulgated thereunder, as amended from
time to time.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the
respective meanings specified in Section 305.
["SENIOR INDEBTEDNESS]", when used with respect to the
Company or the Guarantor, means all obligations (other than non-
recourse obligations and the indebtedness issued under this
Indenture) of, or guaranteed or assumed by, the Company or the
Guarantor, as the case may be, for borrowed money, including both
senior and subordinated indebtedness for borrowed money (other
than the Securities), or for the payment of money relating to any
lease which is capitalized on the consolidated balance sheet of
the Company or the Guarantor, as the case may be, and its
subsidiaries in accordance with generally accepted accounting
principles as in effect from time to time, or evidenced by bonds,
debentures, notes or other similar instruments, and in each case,
amendments, renewals, extensions, modifications and refundings of
any such indebtedness or obligations, whether existing as of the
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date of this Indenture or subsequently incurred by the Company or
the Guarantor, as the case may be, unless, in the case of any
particular indebtedness, renewal, extension or refunding, the
instrument creating or evidencing the same or the assumption or
guarantee of the same expressly provides that such indebtedness,
renewal, extension or refunding is not superior in right of
payment to or is pari passu with the Securities or the
Guarantees, as the case may be; provided that the Guarantor's
obligations under the Trust Securities Guarantee shall not be
deemed to be Senior Indebtedness of the Guarantor.]
"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.
["TRUST" means PP&L Capital Funding Trust I, a
statutory business trust formed under the laws of the State of
Delaware, or any other trust designated pursuant to Section 301
hereof or any permitted successor under the Trust Agreement
pertaining to such Trust.]
["TRUST AGREEMENT" means the Amended and Restated Trust
Agreement, dated as of ______, ____, relating to PP&L Capital
Funding Trust I, or an Amended and Restated Trust Agreement
relating to a Trust designated pursuant to Section 301 hereof, in
each case, among PP&L Resources Inc., as Depositor and Guarantor,
the trustees named therein and the several holders referred to
therein, as such agreement or agreements, as the case may be, may
be amended from time to time.]
"TRUSTEE" means the Person named as the "Trustee" in
the first paragraph of this Indenture until a successor Trustee
shall have become such with respect to one or more series of
Securities pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean or include each
Person who is then a Trustee hereunder, and if at any time there
is more than one such Person, "Trustee" as used with respect to
the Securities of any series shall mean the Trustee with respect
to Securities of that series.
"TRUST INDENTURE ACT" means, as of any time, the Trust
Indenture Act of 1939 as in force at such time.
["TRUST SECURITIES GUARANTEE" means the Trust
Securities Guarantee Agreement delivered from the Guarantor, for
the benefit of the holders of Preferred Securities issued by such
Trust.]
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"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
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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
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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)
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<PAGE>
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
15th Floor
New York, New York 10001
Attention: Capital Markets Fiduciary Services
Telephone:
Telecopy:
If to the Company, to:
PP&L Capital Funding, Inc.
Two North Ninth Street
Allentown, Pennsylvania 18101-1179
Attention: Treasurer
Telephone:(610) 774-5987
Telecopy: (610) 774-5106
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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.
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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, the Holders
and, so long as notice described in Section [1413] or Section
[1512] hereof has not been given to the holders of Senior
Indebtedness, any benefit or any legal or equitable right, remedy
or claim under this Indenture [, provided, however, that for so
long as any Preferred Securities remain outstanding, the holders
of such Preferred Securities, subject to certain limitations set
forth in this Indenture, may enforce the Company's and the
Guarantor's obligations hereunder, directly against the Company
or the Guarantor, as the case may be, as third party
beneficiaries of this Indenture without proceeding against the
Trust issuing such Preferred Securities].
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
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<PAGE>
that such provision shall apply in lieu of this Section) payment
of interest or principal and premium, if any, need not be made at
such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment [, except that
if such Business Day is in the next succeeding calendar year,
such payment shall be made on the immediately preceding Business
Day, in each case] with the same force and effect 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 or 1201(g), 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.
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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.
________________________,
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
[; provided, however, that all Securities shall be issued to a
Trust to evidence loans by a Trust of the proceeds of the
issuance of Preferred Securities of such Trust plus the amount or
amounts deposited by the Company or the Guarantor with such trust
from time to time.]
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;
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<PAGE>
(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; [the right of the Company, if any, to
extend the interest payment periods and the duration of
any such extension as contemplated by Section 312;] and
the basis of computation of interest, if other than as
provided in Section 310;
(f) the place or places at which or methods (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 $[25] and any integral
multiple thereof;
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(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
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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) the designation of the Trust to which
Securities of such series are to be issued;]
(x) 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.
[All Securities of any one series shall be
substantially identical, except as to principal amount and date
of issue and except as may be set forth in the terms of such
series as contemplated above.] The Securities of each series
shall be subordinated in right of payment to Senior Indebtedness
of the Company as provided in Article Fifteen. The Guarantees
relating to such Securities shall be subordinated in right of
payment to Senior Indebtedness of the Guarantor as provided in
Article Fourteen.
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.
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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 $[25] and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
Unless otherwise provided as contemplated by Section
301 with respect to any series of Securities 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;
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(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
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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
adversely affect the Trustee's own rights, duties or immunities
under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
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
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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
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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.
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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.
[Subject to Section 312,] any interest on any Security
of any series which is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the
Holder on the related Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the
Company 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
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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.
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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.
[SECTION 312. EXTENSION OF INTEREST PAYMENT.
The Company shall have the right at any time, so long as no
Event of Default hereunder has occurred and is continuing with
respect to the Securities of any series, to extend interest
payment periods from time to time on all Securities of such
series, if so specified as contemplated by Section 301 with
respect to such Securities and upon such terms as may be
specified as contemplated by Section 301 with respect to such
Securities.]
[SECTION 313. ADDITIONAL INTEREST.
So long as any Preferred Securities remain outstanding,
if the Trust which issued such Preferred Securities shall be
required to pay, with respect to its income derived from the
interest payments on the Securities of any series, any amounts
for or on account of any taxes, duties, assessments or
governmental charges of whatever nature imposed by the United
States, or any other taxing authority, then, in any such case,
the Company will pay as interest on such series such additional
interest ("Additional Interest") as may be necessary in order
that the net amounts received and retained by such Trust after
the payment of such taxes, duties, assessments or governmental
charges shall result in such Trust's having such funds as it
would have had in the absence of any such payments.]
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 401. APPLICABILITY OF ARTICLE.
Securities of any series, or any Tranche thereof, which
are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified
as contemplated by Section 301 for Securities of such series or
Tranche) in accordance with this Article.
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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 [and in
the case of Securities of a series held by a Trust, the Property
Trustee under the related Trust Agreement] 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,
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(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
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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.
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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 [(including Additional Interest)], on
the Securities of each series in accordance with the terms of
such Securities and this Indenture.
SECTION 602. MAINTENANCE OF OFFICE OR AGENCY.
The Company 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
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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;
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(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 ________ in each year, commencing
________, ____, 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.
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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 [; provided, however, so long as a Trust
holds Securities of any series, such Trust may not waive
compliance or waive any default in compliance by the Company with
any covenant or other term contained in this Indenture or the
Securities of such series without the approval of the holders of
at least a majority in aggregate liquidation preference of the
outstanding Preferred Securities issued by such Trust affected,
obtained as provided in the Trust Agreement pertaining to such
Trust.]
SECTION 607. RESTRICTION ON PAYMENT OF DIVIDENDS.
So long as any Preferred Securities of any series
remain outstanding, if at such time (a) the Guarantor shall be in
default with respect to its payment obligations under the Trust
Securities Guarantee relating to such Preferred Securities, (b)
there shall have occurred and be continuing an Event of Default
(whether before or after expiration of any period of grace)
resulting from a payment default hereunder or (c) the Company
shall have elected to extend any interest payment period as
provided in Section 311, and any such period, or any extension
thereof, shall be continuing, then the Guarantor shall not (i)
declare or pay any dividends or distributions on its capital
stock, other than dividends paid in shares of capital stock of
the Guarantor, or (ii) redeem, purchase, acquire or make a
liquidation payment with respect to any of the Guarantor's
capital stock, or (iii) pay any principal, interest or premium
on, or repay, repurchase or redeem any debt securities that are
equal or junior in right of payment with the Guarantees, or (iv)
make any payments with respect to any guarantee of debt
securities by the Guarantor if such guarantee is equal or junior
in right of payment to the Guarantees (other than payments under
the Guarantee or the Trust Securities Guarantee relating to such
Preferred Securities).
[SECTION 608. MAINTENANCE OF TRUST EXISTENCE.
So long as Preferred Securities of any series remain
outstanding, the Company shall (i) maintain direct or indirect
ownership of all interests in the Trust which issued such
Preferred Securities, other than such Preferred Securities, (ii)
not voluntarily (to the extent permitted by law) dissolve,
liquidate or wind up such Trust, except in connection with a
distribution of the Securities to the holders of the Preferred
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Securities in liquidation of such Trust, (iii) remain the sole
Depositor under the Trust Agreement (the "Depositor") of such
Trust and timely perform in all material respects all of its
duties as Depositor of such Trust, and (iv) use reasonable
efforts to cause such Trust to remain a business trust and
otherwise continue to be treated as a grantor trust for Federal
income tax purposes, provided that any permitted successor to the
Guarantor or the Company under this Indenture may succeed to the
Guarantor's or the Company's duties as Depositor of such Trust;
and provided further that the Guarantor or the Company may permit
such Trust to consolidate or merge with or into another business
trust or other permitted successor under the Trust Agreement
pertaining to such Trust so long as the Guarantor agrees to
comply with this Section 609 with respect to such successor
business trust or other permitted successor.]
[SECTION 609. RIGHTS OF HOLDERS OF PREFERRED SECURITIES.
The Company agrees that, for so long as any Preferred
Securities remain outstanding, its obligations under this
Indenture will also be for the benefit of the holders from time
to time of Preferred Securities, and the Company acknowledges and
agrees that such holders will be entitled to enforce this
Indenture, as third party beneficiaries, directly against the
Company to the same extent as if such holders of Preferred
Securities held a principal amount of Securities equal to the
stated liquidation amount of the Preferred Securities held by
such holders.]
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 [(including any Additional 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
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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.
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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
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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 [,
including any Additional Interest,] on any Security of such
series when it becomes due and payable [(whether or not
payment is prohibited by the provisions of Article Fifteen
or the subordination provisions of Article Fourteen hereof)]
and continuance of such default for a period of 30 days;
[provided, however, that a valid extension of the interest
payment period by the Company as contemplated in Section 312
of this Indenture shall not constitute a default in the
payment of interest for this purpose;] 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 [(whether or not payment is
prohibited by the provisions of Article Fifteen or the
subordination provisions of Article Fourteen hereof)]; or
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(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
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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 (provided that the payment of principal and interest
on such Securities shall remain subordinated to the extent
provided in this Indenture), 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 (provided that the payment
of principal and interest on such Securities shall remain
subordinated to the extent provided in this Indenture).
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 [including
Additional 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
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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;
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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.
Subject to the provisions of Articles Fourteen and
Fifteen, 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 [including Additional 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;
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(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 [and 312])
interest [including Additional 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. [In addition, in the case of Securities of a series held
by a Trust, a holder of Preferred Trust Securities may directly
institute a proceeding for enforcement of payment to such holder
of principal of or interest on the Securities having a principal
amount equal to the aggregate liquidation preference amount of
the Preferred Trust Securities of such holder on or after the due
dates specified in the Securities.
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.
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SECTION 810. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 811. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder to
exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein. Every
right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 812. CONTROL BY HOLDERS OF SECURITIES.
If an Event of Default shall have occurred and be
continuing in respect of a series of Securities, the Holders of a
majority in principal amount of the Outstanding Securities of
such series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Securities of such series; provided,
however, that if an Event of Default shall have occurred and be
continuing with respect to more than one series of Securities,
the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all such series, considered as one
class, shall have the right to make such direction, and not the
Holders of the Securities of any one of such series; and
provided, further, that
(a) such direction shall not be in conflict with any
rule of law or with this Indenture, and could not involve
the Trustee in personal liability in circumstances where
indemnity would not, in the Trustee's sole discretion, be
adequate, and
(b) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction.
SECTION 813. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of any series may
on behalf of the Holders of all the Securities of such series
waive any past default hereunder with respect to such series and
its consequences, except a default
(a) in the payment of the principal of or premium, if
any, or interest [including Additional 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.
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; provided, however, that so long as a Trust holds the Securities
of any series, such Trust may not waive any past default without
the consent of at least a majority in aggregate liquidation
preference of the outstanding Preferred Securities issued by such
Trust affected, obtained as provided in the Trust Agreement
pertaining to such Trust. Any such waiver by holders of a
majority in aggregate liquidation preference of outstanding
Preferred Securities issued by any such Trust shall be deemed to
be on behalf of all holders of Preferred Securities issued by any
such Trust.]
Upon any such waiver, such default shall cease to
exist, and any and all Events of Default arising therefrom shall
be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 814. UNDERTAKING FOR COSTS.
The Company, 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
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(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 90 days
after the occurrence thereof. For the purpose of this Section,
the term "default" means any event which is, or after notice or
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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
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(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 and the Guarantor, in its individual or any other
capacity, may become the owner or pledgee of Securities [and/or
Preferred Securities] and, subject to Sections 908 and 913, may
otherwise deal with the Company and the Guarantor 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
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(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 (i) the
Securities of any other series, (ii) the Trust Agreement and the
Trust Securities Guarantee Agreement pertaining to each Trust
[OTHERS].
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.
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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 [; provided that so long as any Preferred Securities
remain outstanding, the Trust which issued such Preferred
Securities shall not execute any Act to remove the Trustee
without the consent of the holders of a majority in aggregate
liquidation preference of Preferred Securities issued by such
Trust outstanding, obtained as provided in the Trust Agreement
pertaining to such Trust.]
(d) If at any time:
(1) the Trustee shall fail to comply with Section 908
after written request therefor by the Company, 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
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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
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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
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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.
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The provisions of Sections 308, 904 and 905 shall be
applicable to each Authenticating Agent.
If an appointment with respect to the Securities of one
or more series, or any Tranche thereof, shall be made pursuant to
this Section, the Securities of such series or Tranche may have
endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication
substantially in the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
-----------------------------------
As Trustee
By
--------------------------------
As Authenticating
Agent
By
---------------------------------
Authorized 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.
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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.
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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, 200_. 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. [The Company shall
notify the Trustee of the listing of any Securities on any
securities exchange.]
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, 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
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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. LIMITATION.
Nothing in this Indenture shall be deemed to prevent or
restrict:
(a) any consolidation or merger after the consummation
of which the Company or the Guarantor would be the surviving
or resulting entity,
(b) any consolidation of the Company with the Guarantor
or any other Person all of the outstanding voting securities
of which are owned, directly or indirectly, by the
Guarantor; or any merger of any of such Persons into any
other of such Persons; or any conveyance or other transfer,
or lease, of properties by any thereof to any other thereof,
(c) any conveyance or other transfer, or lease, of any
part of the properties of the Company or the Guarantor which
does not constitute the entirety, or substantially the
entirety, thereof or
(d) the approval by the Company or the Guarantor of, or
the consent by the Company or the Guarantor to, any
consolidation or merger to which any direct or indirect
subsidiary or affiliate of the Company or the Guarantor, as
the case requires, may be a party or any conveyance,
transfer or lease by any such subsidiary or affiliate of any
of its assets.
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:
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(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 or
co-trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 911(b); or
(i) to provide for the procedures required to permit
the Company to utilize, at its option, a 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)
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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;
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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 (except as
provided in Section 312 hereof), 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, if applicable, in
liquidation preference of any series of Preferred
Securities)] 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).
[Notwithstanding the foregoing, so long as any of the Preferred
Securities remain outstanding, the Trustee may not consent to a
supplemental indenture under this Section 1202 without the prior
consent, obtained as provided in a Trust Agreement pertaining to
a Trust which issued such Preferred Securities, of the holders of
not less than a majority in aggregate liquidation preference of
all Preferred Securities issued by such Trust affected,
considered as one class, or, in the case of changes described in
clauses (a), (b) and (c) above, 100% in aggregate liquidation
preference of all such Preferred Securities then outstanding
which would be affected thereby, considered as one class.] 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.
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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.
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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
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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.
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(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.
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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
[including any Additional 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
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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. GUARANTEE SUBORDINATE TO SENIOR INDEBTEDNESS OF
THE GUARANTOR.
The Guarantor, for itself, its successors and assigns,
covenants and agrees, and each Holder of the Securities of each
series, by its acceptance thereof, likewise covenants and agrees,
that the payment under the Guarantee of the principal of and
premium, if any, and interest [including any Additional
Interest], if any, on each and all of the Securities is hereby
expressly subordinated and subject to the extent and in the
manner set forth in this Article, in right of payment to the
prior payment in full of all Senior Indebtedness of the
Guarantor.
Each Holder of the Securities of each series, by its
acceptance thereof, authorizes and directs the Trustee on its
behalf to take such action as may be necessary or appropriate to
effectuate the subordination as provided in this Article, and
appoints the Trustee its attorney-in-fact for any and all such
purposes.
SECTION 1403. PAYMENT OVER OF PROCEEDS OF SECURITIES.
In the event (a) of any insolvency or bankruptcy
proceedings or any receivership, liquidation, reorganization or
other similar proceedings in respect of the Guarantor or a
substantial part of its property, or of any proceedings for
liquidation, dissolution or other winding up of the Guarantor,
whether or not involving insolvency or bankruptcy, or (b) subject
to the provisions of Section 1404, that (i) a default shall have
occurred with respect to the payment of principal of or interest
on or other monetary amounts due and payable on any Senior
Indebtedness of the Guarantor, or (ii) there shall have occurred
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a default (other than a default in the payment of principal or
interest or other monetary amounts due and payable) in respect of
any Senior Indebtedness of the Guarantor, as defined therein or
in the instrument under which the same is outstanding, permitting
the holder or holders thereof to accelerate the maturity thereof
(with notice or lapse of time, or both), and such default shall
have continued beyond the period of grace, if any, in respect
thereof, and, in the cases of subclauses (i) and (ii) of this
clause (b), such default shall not have been cured or waived or
shall not have ceased to exist, or (c) that the principal of and
accrued interest on the Securities of any series shall have been
declared due and payable pursuant to Section 801 and such
declaration shall not have been rescinded and annulled as
provided in Section 802, then:
(1) the holders of all Senior Indebtedness
of the Guarantor shall first be entitled to
receive payment of the full amount due thereon, or
provision shall be made for such payment in money
or money's worth, before the Holders of any of the
Securities are entitled to receive a payment on
account of the Guarantee of the principal of or
interest on the indebtedness evidenced by the
Securities, including, without limitation, any
payments made pursuant to Articles Four and Five;
(2) any payment by, or distribution of
assets of, the Guarantor of any kind or character,
whether in cash, property or securities, to which
any Holder or the Trustee would be entitled except
for the provisions of this Article, shall be paid
or delivered by the person making such payment or
distribution, whether a trustee in bankruptcy, a
receiver or liquidating trustee or otherwise,
directly to the holders of such Senior
Indebtedness of the Guarantor or their
representative or representatives or to the
trustee or trustees under any indenture under
which any instruments evidencing any of such
Senior Indebtedness of the Guarantor may have been
issued, ratably according to the aggregate amounts
remaining unpaid on account of such Senior
Indebtedness of the Guarantor held or represented
by each, to the extent necessary to make payment
in full of all Senior Indebtedness of the
Guarantor remaining unpaid after giving effect to
any concurrent payment or distribution (or
provision therefor) to the holders of such Senior
Indebtedness of the Guarantor, before any payment
or distribution is made to the Holders of the
indebtedness evidenced by the Securities or to the
Trustee under the Guarantee and this Indenture;
and
(3) in the event that, notwithstanding the
foregoing, any payment by, or distribution of
assets of, the Guarantor of any kind or character,
whether in cash, property or securities, in
respect of principal of or interest on the
Securities or in connection with any repurchase by
the Guarantor of the Securities, shall be received
by the Trustee or any Holder before all Senior
Indebtedness of the Guarantor is paid in full, or
provision is made for such payment in money or
money's worth, such payment or distribution in
respect of principal of or interest on the
Securities or in connection with any repurchase by
the Guarantor of the Securities shall be paid over
to the holders of such Senior Indebtedness of the
Guarantor or their representative or
representatives or to the trustee or trustees
under any indenture under which any instruments
evidencing any such Senior Indebtedness of the
Guarantor may have been issued, ratably as
aforesaid, for application to the payment of all
Senior Indebtedness of the Guarantor remaining
unpaid until all such Senior Indebtedness of the
Guarantor shall have been paid in full, after
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giving effect to any concurrent payment or
distribution (or provision therefor) to the
holders of such Senior Indebtedness of the
Guarantor.
Notwithstanding the foregoing, at any time after the
123rd day following the date of deposit of cash or Eligible
Obligations pursuant to Section 701 (provided all conditions set
out in such Section shall have been satisfied), the funds so
deposited and any interest thereon will not be subject to any
rights of holders of Senior Indebtedness of the Guarantor
including, without limitation, those arising under this Article
Fourteen; provided that no event described in clauses (e) and (f)
of Section 801 with respect to the Company has occurred during
such 123-day period.
For purposes of this Article only, the words "cash,
property or securities" shall not be deemed to include shares of
stock of the Guarantor as reorganized or readjusted, or
securities of the Guarantor or any other corporation provided for
by a plan or reorganization or readjustment which are subordinate
in right of payment to all Senior Indebtedness of the Guarantor
which may at the time be outstanding to the same extent as, or to
a greater extent than, the Guarantee of the Securities are so
subordinated as provided in this Article. The consolidation of
the Guarantor with, or the merger of the Guarantor into, another
corporation or the liquidation or dissolution of the Guarantor
following the conveyance or transfer of its property as an
entirety, or substantially as an entirety, to another corporation
upon the terms and conditions provided for in Article Eleven
hereof shall not be deemed a dissolution, winding-up, liquidation
or reorganization for the purposes of this Section 1403 if such
other corporation shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions stated in
Article Eleven hereof. Nothing in Section 1402 or in this
Section 1403 shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 907.
SECTION 1404. DISPUTES WITH HOLDERS OF CERTAIN SENIOR
INDEBTEDNESS OF THE GUARANTOR.
Any failure by the Guarantor to make any payment on or
perform any other obligation in respect of Senior Indebtedness of
the Guarantor, other than any indebtedness incurred by the
Guarantor or assumed or guaranteed, directly or indirectly, by
the Guarantor for money borrowed (or any deferral, renewal,
extension or refunding thereof) or any other obligation as to
which the provisions of this Section shall have been waived by
the Guarantor in the instrument or instruments by which the
Guarantor incurred, assumed, guaranteed or otherwise created such
indebtedness or obligation, shall not be deemed a default under
clause (b) of Section 1403 if (i) the Guarantor shall be
disputing its obligation to make such payment or perform such
obligation and (ii) either (A) no final judgment relating to such
dispute shall have been issued against the Guarantor which is in
full force and effect and is not subject to further review,
including a judgment that has become final by reason of the
expiration of the time within which a party may seek further
appeal or review, or (B) in the event that a judgment that is
subject to further review or appeal has been issued, the
Guarantor shall in good faith be prosecuting an appeal or other
proceeding for review and a stay or execution shall have been
obtained pending such appeal or review.
SECTION 1405. SUBROGATION.
Senior Indebtedness of the Guarantor shall not be
deemed to have been paid in full unless the holders thereof shall
have received cash (or securities or other property satisfactory
to such holders) in full payment of such Senior Indebtedness of
the Guarantor then outstanding. Upon the payment in full of all
Senior Indebtedness of the Guarantor, the rights of the Holders
of the Securities shall be subrogated to the rights of the
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holders of Senior Indebtedness of the Guarantor to receive any
further payments or distributions of cash, property or securities
of the Guarantor applicable to the holders of the Senior
Indebtedness of the Guarantor until all amounts owing on the
Securities shall be paid in full; and such payments or
distributions of cash, property or securities received by the
Holders of the Securities, by reason of such subrogation, which
otherwise would be paid or distributed to the holders of such
Senior Indebtedness of the Guarantor shall, as between the
Guarantor, its creditors other than the holders of Senior
Indebtedness of the Guarantor, and the Holders, be deemed to be a
payment by the Guarantor to or on account of Senior Indebtedness
of the Guarantor, it being understood that the provisions of this
Article are and are intended solely for the purpose of defining
the relative rights of the Holders, on the one hand, and the
holders of the Senior Indebtedness of the Guarantor, on the other
hand.
SECTION 1406. OBLIGATION OF THE GUARANTOR UNCONDITIONAL.
Nothing contained in this Article or elsewhere in this
Indenture or in the Guarantee is intended to or shall impair, as
among the Guarantor, its creditors other than the holders of
Senior Indebtedness of the Guarantor and the Holders, the
obligation of the Guarantor, which is absolute and unconditional,
to pay to the Holders, pursuant to the terms of the Guarantee,
the principal of and interest on the Securities as and when the
same shall become due and payable in accordance with their terms,
or is intended to or shall affect the relative rights of the
Holders and creditors of the Guarantor other than the holders of
Senior Indebtedness of the Guarantor, nor shall anything herein
or therein prevent the Trustee or any Holder from exercising all
remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article
of the holders of Senior Indebtedness of the Guarantor in respect
of cash, property or securities of the Guarantor received upon
the exercise of any such remedy.
Upon any payment or distribution of assets or
securities of the Guarantor referred to in this Article, the
Trustee and the Holders shall be entitled to rely upon any order
or decree of a court of competent jurisdiction in which such
dissolution, winding up, liquidation or reorganization
proceedings are pending for the purpose of ascertaining the
persons entitled to participate in such distribution, the holders
of the Senior Indebtedness of the Guarantor and other
indebtedness of the Guarantor, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon, and
all other facts pertinent thereto or to this Article.
SECTION 1407. PRIORITY OF SENIOR INDEBTEDNESS OF THE GUARANTOR
UPON MATURITY.
Upon the maturity of the principal of any Senior
Indebtedness of the Guarantor by lapse of time, acceleration or
otherwise, all matured principal of Senior Indebtedness of the
Guarantor and interest and premium, if any, thereon shall first
be paid in full before any payment of principal or premium, if
any, or interest, if any, is made upon the Securities under the
Guarantee.
SECTION 1408. TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS OF THE
GUARANTOR.
The Trustee shall be entitled to all rights set forth
in this Article with respect to any Senior Indebtedness of the
Guarantor at any time held by it, to the same extent as any other
holder of Senior Indebtedness of the Guarantor. Nothing in this
Article shall deprive the Trustee of any of its rights as such
holder.
SECTION 1409. NOTICE TO TRUSTEE TO EFFECTUATE SUBORDINATION.
Notwithstanding the provisions of this Article or any
other provision of the Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would
prohibit the making of any payment of moneys to or by the Trustee
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unless and until the Trustee shall have received written notice
thereof from the Guarantor, from a Holder or from a holder of any
Senior Indebtedness of the Guarantor or from any representative
or representatives of such holder and, prior to the receipt of
any such written notice, the Trustee shall be entitled, subject
to Section 901, in all respects to assume that no such facts
exist; provided, however, that, if prior to the fifth Business
Day preceding the date upon which by the terms hereof any such
moneys may become payable for any purpose, or in the event of the
execution of an instrument pursuant to Section 702 acknowledging
satisfaction and discharge of this Indenture, then if prior to
the second Business Day preceding the date of such execution, the
Trustee shall not have received with respect to such moneys the
notice provided for in this Section, then, anything herein
contained to the contrary notwithstanding, the Trustee may, in
its discretion, receive such moneys and/or apply the same to the
purpose for which they were received, and shall not be affected
by any notice to the contrary, which may be received by it on or
after such date; provided, however, that no such application
shall affect the obligations under this Article of the persons
receiving such moneys from the Trustee.
SECTION 1410. MODIFICATION, EXTENSION, ETC. OF SENIOR
INDEBTEDNESS OF THE GUARANTOR.
The holders of Senior Indebtedness of the Guarantor
may, without affecting in any manner the subordination of the
payment of the principal of and premium, if any, and interest, if
any, on the Securities under the Guarantee, at any time or from
time to time and in their absolute discretion, agree with the
Guarantor to change the manner, place or terms of payment, change
or extend the time of payment of, or renew or alter, any Senior
Indebtedness of the Guarantor, or amend or supplement any
instrument pursuant to which any Senior Indebtedness of the
Guarantor is issued, or exercise or refrain from exercising any
other of their rights under the Senior Indebtedness of the
Guarantor including, without limitation, the waiver of default
thereunder, all without notice to or assent from the Holders or
the Trustee.
SECTION 1411. TRUSTEE HAS NO FIDUCIARY DUTY TO HOLDERS OF SENIOR
INDEBTEDNESS OF THE GUARANTOR.
With respect to the holders of Senior Indebtedness of
the Guarantor, the Trustee undertakes to perform or to observe
only such of its covenants and objectives as are specifically set
forth in this Indenture, and no implied covenants or obligations
with respect to the holders of Senior Indebtedness of the
Guarantor shall be read into this Indenture against the Trustee.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness of the Guarantor, and shall not be
liable to any such holders if it shall mistakenly pay over or
deliver to the Holders or the Guarantor or any other Person,
money or assets to which any holders of Senior Indebtedness of
the Guarantor shall be entitled by virtue of this Article or
otherwise.
SECTION 1412. PAYING AGENTS OTHER THAN THE TRUSTEE.
In case at any time any Paying Agent other than the
Trustee shall have been appointed by the Guarantor and be then
acting hereunder, the term "Trustee" as used in this Article
shall in such case (unless the context shall otherwise require)
be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if
such Paying Agent were named in this Article in addition to or in
place of the Trustee; provided, however, that Sections 1408, 1409
and 1410 shall not apply to the Guarantor if it acts as Paying
Agent.
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SECTION 1413. RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS OF THE
GUARANTOR NOT IMPAIRED.
No right of any present or future holder of Senior
Indebtedness of the Guarantor to enforce the subordination herein
shall at any time or in any way be prejudiced or impaired by any
act or failure to act on the part of the Guarantor or by any
noncompliance by the Guarantor with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof
any such holder may have or be otherwise charged with.
SECTION 1414. EFFECT OF SUBORDINATION PROVISIONS; TERMINATION.
Notwithstanding anything contained herein to the
contrary, other than as provided in the immediately succeeding
sentence, all the provisions of this Indenture shall be subject
to the provisions of this Article, so far as the same may be
applicable thereto.
Notwithstanding anything contained herein to the
contrary, the provisions of this Article Fourteen shall be of no
further effect, and the Guarantee shall no longer be subordinated
in right of payment to the prior payment of Senior Indebtedness
of the Guarantor, if the Guarantor shall have delivered to the
Trustee a notice to such effect. Any such notice delivered by
the Guarantor shall not be deemed to be a supplemental indenture
for purposes of Article Twelve.
SECTION 1415. 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 this
Article Fourteen 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 this
Article Fourteen 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.
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ARTICLE FIFTEEN
SUBORDINATION OF SECURITIES
SECTION 1501. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS OF
THE COMPANY.
The Company, for itself, its successors and assigns,
covenants and agrees, and each Holder of the Securities of each
series, by its acceptance thereof, likewise covenants and agrees,
that the payment of the principal of and premium, if any, and
interest, if any, on each and all of the Securities is hereby
expressly subordinated and subject to the extent and in the
manner set forth in this Article, in right of payment to the
prior payment in full of all Senior Indebtedness of the Company.
Each Holder of the Securities of each series, by its
acceptance thereof, authorizes and directs the Trustee on its
behalf to take such action as may be necessary or appropriate to
effectuate the subordination as provided in this Article, and
appoints the Trustee its attorney-in-fact for any and all such
purposes.
SECTION 1502. PAYMENT OVER OF PROCEEDS OF SECURITIES.
In the event (a) of any insolvency or bankruptcy
proceedings or any receivership, liquidation, reorganization or
other similar proceedings in respect of the Company or a
substantial part of its property, or of any proceedings for
liquidation, dissolution or other winding up of the Company,
whether or not involving insolvency or bankruptcy, or (b) subject
to the provisions of Section 1503, that (i) a default shall have
occurred with respect to the payment of principal of or interest
on or other monetary amounts due and payable on any Senior
Indebtedness of the Company, or (ii) there shall have occurred a
default (other than a default in the payment of principal or
interest or other monetary amounts due and payable) in respect of
any Senior Indebtedness of the Company, as defined therein or in
the instrument under which the same is outstanding, permitting
the holder or holders thereof to accelerate the maturity thereof
(with notice or lapse of time, or both), and such default shall
have continued beyond the period of grace, if any, in respect
thereof, and, in the cases of subclauses (i) and (ii) of this
clause (b), such default shall not have been cured or waived or
shall not have ceased to exist, or (c) that the principal of and
accrued interest on the Securities of any series shall have been
declared due and payable pursuant to Section 801 and such
declaration shall not have been rescinded and annulled as
provided in Section 802, then:
(1) the holders of all Senior Indebtedness
of the Company shall first be entitled to receive
payment of the full amount due thereon, or
provision shall be made for such payment in money
or money's worth, before the Holders of any of the
Securities are entitled to receive a payment on
account of the principal of or interest on the
indebtedness evidenced by the Securities,
including, without limitation, any payments made
pursuant to Articles Four and Five;
(2) any payment by, or distribution of
assets of, the Company of any kind or character,
whether in cash, property or securities, to which
any Holder or the Trustee would be entitled except
for the provisions of this Article, shall be paid
or delivered by the person making such payment or
distribution, whether a trustee in bankruptcy, a
receiver or liquidating trustee or otherwise,
directly to the holders of such Senior
Indebtedness of the Company or their
representative or representatives or to the
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trustee or trustees under any indenture under
which any instruments evidencing any of such
Senior Indebtedness of the Company may have been
issued, ratably according to the aggregate amounts
remaining unpaid on account of such Senior
Indebtedness of the Company held or represented by
each, to the extent necessary to make payment in
full of all Senior Indebtedness of the Company
remaining unpaid after giving effect to any
concurrent payment or distribution (or provision
therefor) to the holders of such Senior
Indebtedness of the Company, before any payment or
distribution is made to the Holders of the
indebtedness evidenced by the Securities or to the
Trustee under this Indenture; and
(3) in the event that, notwithstanding the
foregoing, any payment by, or distribution of
assets of, the Company of any kind or character,
whether in cash, property or securities, in
respect of principal of or interest on the
Securities or in connection with any repurchase by
the Company of the Securities, shall be received
by the Trustee or any Holder before all Senior
Indebtedness of the Company is paid in full, or
provision is made for such payment in money or
money's worth, such payment or distribution in
respect of principal of or interest on the
Securities or in connection with any repurchase by
the Company of the Securities shall be paid over
to the holders of such Senior Indebtedness of the
Company or their representative or representatives
or to the trustee or trustees under any indenture
under which any instruments evidencing any such
Senior Indebtedness of the Company may have been
issued, ratably as aforesaid, for application to
the payment of all Senior Indebtedness of the
Company remaining unpaid until all such Senior
Indebtedness of the Company shall have been paid
in full, after giving effect to any concurrent
payment or distribution (or provision therefor) to
the holders of such Senior Indebtedness of the
Company.
Notwithstanding the foregoing, at any time after the
123rd day following the date of deposit of cash or Eligible
Obligations pursuant to Section 701 (provided all conditions set
out in such Section shall have been satisfied), the funds so
deposited and any interest thereon will not be subject to any
rights of holders of Senior Indebtedness of the Company
including, without limitation, those arising under this Article
Fifteen; provided that no event described in clauses (e) and (f)
of Section 801 with respect to the Company has occurred during
such 123-day period.
For purposes of this Article only, the words "cash,
property or securities" shall not be deemed to include shares of
stock of the Company as reorganized or readjusted, or securities
of the Company or any other corporation provided for by a plan or
reorganization or readjustment which are subordinate in right of
payment to all Senior Indebtedness of the Company which may at
the time be outstanding to the same extent as, or to a greater
extent than, the Securities are so subordinated as provided in
this Article. The consolidation of the Company with, or the
merger of the Company into, another corporation or the
liquidation or dissolution of the Company following the
conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the
terms and conditions provided for in Article Eleven hereof shall
not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section 1502 if such
other corporation shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions stated in
Article Eleven hereof. Nothing in Section 1501 or in this
Section 1502 shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 907.
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SECTION 1503. DISPUTES WITH HOLDERS OF CERTAIN SENIOR
INDEBTEDNESS OF THE COMPANY.
Any failure by the Company to make any payment on or
perform any other obligation in respect of Senior Indebtedness of
the Company, other than any indebtedness incurred by the Company
or assumed or guaranteed, directly or indirectly, by the Company
for money borrowed (or any deferral, renewal, extension or
refunding thereof) or any other obligation as to which the
provisions of this Section shall have been waived by the Company
in the instrument or instruments by which the Company incurred,
assumed, guaranteed or otherwise created such indebtedness or
obligation, shall not be deemed a default under clause (b) of
Section 1502 if (i) the Company shall be disputing its obligation
to make such payment or perform such obligation and (ii) either
(A) no final judgment relating to such dispute shall have been
issued against the Company which is in full force and effect and
is not subject to further review, including a judgment that has
become final by reason of the expiration of the time within which
a party may seek further appeal or review, or (B) in the event
that a judgment that is subject to further review or appeal has
been issued, the Company shall in good faith be prosecuting an
appeal or other proceeding for review and a stay or execution
shall have been obtained pending such appeal or review.
SECTION 1504. SUBROGATION.
Senior Indebtedness of the Company shall not be deemed
to have been paid in full unless the holders thereof shall have
received cash (or securities or other property satisfactory to
such holders) in full payment of such Senior Indebtedness of the
Company then outstanding. Upon the payment in full of all Senior
Indebtedness of the Company, the rights of the Holders of the
Securities shall be subrogated to the rights of the holders of
Senior Indebtedness of the Company to receive any further
payments or distributions of cash, property or securities of the
Company applicable to the holders of the Senior Indebtedness of
the Company until all amounts owing on the Securities shall be
paid in full; and such payments or distributions of cash,
property or securities received by the Holders of the Securities,
by reason of such subrogation, which otherwise would be paid or
distributed to the holders of such Senior Indebtedness of the
Company shall, as between the Company, its creditors other than
the holders of Senior Indebtedness of the Company, and the
Holders, be deemed to be a payment by the Company to or on
account of Senior Indebtedness of the Company, it being
understood that the provisions of this Article are and are
intended solely for the purpose of defining the relative rights
of the Holders, on the one hand, and the holders of the Senior
Indebtedness of the Company, on the other hand.
SECTION 1505. OBLIGATION OF THE COMPANY UNCONDITIONAL.
Nothing contained in this Article or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as
among the Company, its creditors other than the holders of Senior
Indebtedness of the Company and the Holders, the obligation of
the Company, which is absolute and unconditional, to pay to the
Holders the principal of and interest on the Securities as and
when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative
rights of the Holders and creditors of the Company other than the
holders of Senior Indebtedness of the Company, nor shall anything
herein or therein prevent the Trustee or any Holder from
exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any,
under this Article of the holders of Senior Indebtedness of the
Company in respect of cash, property or securities of the Company
received upon the exercise of any such remedy.
Upon any payment or distribution of assets or
securities of the Company referred to in this Article, the
Trustee and the Holders shall be entitled to rely upon any order
or decree of a court of competent jurisdiction in which such
dissolution, winding up, liquidation or reorganization
proceedings are pending for the purpose of ascertaining the
74
<PAGE>
persons entitled to participate in such distribution, the holders
of the Senior Indebtedness of the Company and other indebtedness
of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon, and all other facts
pertinent thereto or to this Article.
SECTION 1506. PRIORITY OF SENIOR INDEBTEDNESS OF THE COMPANY
UPON MATURITY.
Upon the maturity of the principal of any Senior
Indebtedness of the Company by lapse of time, acceleration or
otherwise, all matured principal of Senior Indebtedness of the
Company and interest and premium, if any, thereon shall first be
paid in full before any payment of principal or premium, if any,
or interest, if any, is made upon the Securities or before any
Securities can be acquired by the Company or any sinking fund
payment is made with respect to the Securities (except that
required sinking fund payments may be reduced by Securities
acquired before such maturity of such Senior Indebtedness of the
Company).
SECTION 1507. TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS OF THE
COMPANY.
The Trustee shall be entitled to all rights set forth
in this Article with respect to any Senior Indebtedness of the
Company at any time held by it, to the same extent as any other
holder of Senior Indebtedness of the Company. Nothing in this
Article shall deprive the Trustee of any of its rights as such
holder.
SECTION 1508. NOTICE TO TRUSTEE TO EFFECTUATE SUBORDINATION.
Notwithstanding the provisions of this Article or any
other provision of the Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would
prohibit the making of any payment of moneys to or by the Trustee
unless and until the Trustee shall have received written notice
thereof from the Company, from a Holder or from a holder of any
Senior Indebtedness of the Company or from any representative or
representatives of such holder and, prior to the receipt of any
such written notice, the Trustee shall be entitled, subject to
Section 901, in all respects to assume that no such facts exist;
provided, however, that, if prior to the fifth Business Day
preceding the date upon which by the terms hereof any such moneys
may become payable for any purpose, or in the event of the
execution of an instrument pursuant to Section 702 acknowledging
satisfaction and discharge of this Indenture, then if prior to
the second Business Day preceding the date of such execution, the
Trustee shall not have received with respect to such moneys the
notice provided for in this Section, then, anything herein
contained to the contrary notwithstanding, the Trustee may, in
its discretion, receive such moneys and/or apply the same to the
purpose for which they were received, and shall not be affected
by any notice to the contrary, which may be received by it on or
after such date; provided, however, that no such application
shall affect the obligations under this Article of the persons
receiving such moneys from the Trustee.
SECTION 1509. MODIFICATION, EXTENSION, ETC. OF SENIOR
INDEBTEDNESS OF THE COMPANY.
The holders of Senior Indebtedness of the Company may,
without affecting in any manner the subordination of the payment
of the principal of and premium, if any, and interest, if any, on
the Securities, at any time or from time to time and in their
absolute discretion, agree with the Company to change the manner,
place or terms of payment, change or extend the time of payment
of, or renew or alter, any Senior Indebtedness of the Company, or
amend or supplement any instrument pursuant to which any Senior
Indebtedness of the Company is issued, or exercise or refrain
from exercising any other of their rights under the Senior
75
<PAGE>
Indebtedness of the Company including, without limitation, the
waiver of default thereunder, all without notice to or assent
from the Holders or the Trustee.
SECTION 1510. TRUSTEE HAS NO FIDUCIARY DUTY TO HOLDERS OF SENIOR
INDEBTEDNESS OF THE COMPANY.
With respect to the holders of Senior Indebtedness of
the Company, the Trustee undertakes to perform or to observe only
such of its covenants and objectives as are specifically set
forth in this Indenture, and no implied covenants or obligations
with respect to the holders of Senior Indebtedness of the Company
shall be read into this Indenture against the Trustee. The
Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness of the Company, and shall not be
liable to any such holders if it shall mistakenly pay over or
deliver to the Holders or the Company or any other Person, money
or assets to which any holders of Senior Indebtedness of the
Company shall be entitled by virtue of this Article or otherwise.
SECTION 1511. PAYING AGENTS OTHER THAN THE TRUSTEE.
In case at any time any Paying Agent other than the
Trustee shall have been appointed by the Company and be then
acting hereunder, the term "Trustee" as used in this Article
shall in such case (unless the context shall otherwise require)
be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if
such Paying Agent were named in this Article in addition to or in
place of the Trustee; provided, however, that Sections 1507, 1508
and 1510 shall not apply to the Company if it acts as Paying
Agent.
SECTION 1512. RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS OF THE
COMPANY NOT IMPAIRED.
No right of any present or future holder of Senior
Indebtedness of the Company to enforce the subordination herein
shall at any time or in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or by any
noncompliance by the Company with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof
any such holder may have or be otherwise charged with.
SECTION 1513. EFFECT OF SUBORDINATION PROVISIONS; TERMINATION.
Notwithstanding anything contained herein to the
contrary, other than as provided in the immediately succeeding
sentence, all the provisions of this Indenture shall be subject
to the provisions of this Article, so far as the same may be
applicable thereto.
Notwithstanding anything contained herein to the
contrary, the provisions of this Article Fifteen shall be of no
further effect, and the Securities shall no longer be
subordinated in right of payment to the prior payment of Senior
Indebtedness of the Company, if the Company shall have delivered
to the Trustee a notice to such effect. Any such notice
delivered by the Company shall not be deemed to be a supplemental
indenture for purposes of Article Twelve.
76
<PAGE>
ARTICLE SIXTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 1601. 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.
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:
-----------------------------
Name:
[SEAL] Title:
ATTEST:
------------------------------
77
<PAGE>
PP&L RESOURCES, INC.
By:
-----------------------------
[SEAL] Name:
title:
ATTEST:
-------------------------------
THE CHASE MANHATTAN BANK,
as Trustee
By:
-----------------------------
Name:
Title:
[SEAL]
ATTEST
-------------------------------
78
EXHIBIT 4.12
------------
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 _____________________
SUPPLEMENTAL TO THE SUBORDINATED INDENTURE
DATED AS OF ______________________
ESTABLISHING A SERIES OF SECURITIES DESIGNATED
__% SUBORDINATED DEBENTURES, SERIES ___
LIMITED IN AGGREGATE PRINCIPAL AMOUNT TO $___________
<PAGE>
SUPPLEMENTAL INDENTURE NO. 1, dated as of ___________________ 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 Subordinated Indenture dated as of ______________
(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 "__%
Subordinated Debentures, Series ___" to be limited in aggregate principal amount
(except as contemplated in Section 301(b) of the Original Indenture) to
$___________, 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 and the Guarantor wish
to issue the Securities to _______ (the "Trust") to evidence loans made to the
Company [and the Guarantor] of the proceeds of Preferred Securities and common
beneficial ownership interests in the assets of the Trust to be issued to the
Guarantor ("Common Securities").]
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
"__% Subordinated Debentures, Series ____" and limited in aggregate principal
amount (except as contemplated in Section 301(b) of the Original Indenture) to
$___________. The forms and terms of the Securities of Series No. 1 shall be
established in an Officer's Certificate of the Company, as contemplated by
Section 301 of the Original Indenture.
SECTION 2. The Company hereby agrees that, if the Company shall make
any deposit of money and/or Eligible Obligations with respect to any Securities
of Series No. 1, or any portion of the principal amount thereof, as contemplated
by Section 701 of the Indenture, the Company shall not deliver an Officer's
Certificate described in clause (z) in the first paragraph of said Section 701
unless the Company shall also deliver to the Trustee, together with such
Officer's Certificate, either:
(A) an instrument wherein the Company, notwithstanding the
satisfaction and discharge of its indebtedness in respect of such
Securities, shall assume the obligation (which shall be absolute and
unconditional) to irrevocably deposit with the Trustee or Paying Agent such
additional sums of money, if any, or additional Eligible Obligations
(meeting the requirements of Section 701), if any, or any combination
thereof, at such time or times, as shall be necessary, together with the
money and/or Eligible Obligations theretofore so deposited, to pay when due
the principal of and premium, if any, and interest due and to become due on
such Securities or portions thereof, all in accordance with and subject to
the provisions of said Section 701; provided, however, that such instrument
may state that the obligation of the Company to make additional deposits as
aforesaid shall be subject to the delivery to the Company by the Trustee of
a notice asserting the deficiency accompanied by an opinion of an
independent public accountant of nationally recognized standing, selected
by the Trustee, showing the calculation thereof (which opinion shall be
obtained at the expense of the Company); or
(B) an Opinion of Counsel to the effect that the Holders of such
Securities, or portions of the principal amount thereof, will not recognize
income, gain or loss for United States federal income tax purposes as a
result of the satisfaction and discharge of the Company's indebtedness in
respect thereof and will be subject to United States federal income tax on
2
<PAGE>
the same amounts, at the same times and in the same manner as if such
satisfaction and discharge had not been effected.
ARTICLE TWO
FORM OF GUARANTEE
Guarantees to be endorsed on the Securities of Series No. 1 shall be
in substantially the form set forth below:
[FORM OF GUARANTEE]
PP&L Resources, Inc., a corporation organized under the laws
of the Commonwealth of Pennsylvania (the "Guarantor", which term
includes any successor under the Indenture (the "Indenture") referred
to in the Security upon which this Guarantee is endorsed), for value
received, hereby unconditionally guarantees to the Holder of the
Security upon which this Guarantee is endorsed, the due and punctual
payment of the principal of, and premium, if any, and interest, if
any, on such Security when and as the same shall become due and
payable, whether at the Stated Maturity, by declaration of
acceleration, call for redemption, or otherwise, in accordance with
the terms of such Security and of the Indenture. In case of the
failure of PP&L Capital Funding, Inc., a corporation organized under
the laws of the State of Delaware (the "Company", which term includes
any successor under the Indenture), punctually to make any such
payment, the Guarantor hereby agrees to cause such payment to be made
punctually when and as the same shall become due and payable, whether
at the Stated Maturity or by declaration of acceleration, call for
redemption or otherwise, and as if such payment were made by the
Company.
The Guarantor hereby agrees that its obligations hereunder
shall be absolute and unconditional irrespective of, and shall be
unaffected by, any invalidity, irregularity or unenforceability of
such Security or the Indenture, any failure to enforce the provisions
of such Security or the Indenture, or any waiver, modification or
indulgence granted to the Company with respect thereto, by the Holder
of such Security or the Trustee or any other circumstance which may
otherwise constitute a legal or equitable discharge or defense of a
surety or guarantor; provided, however, that notwithstanding the
foregoing, no such waiver, modification or indulgence shall, without
the consent of the Guarantor, increase the principal amount of such
Security, or increase the interest rate thereon, or change any
redemption provisions thereof (including any change to increase any
premium payable upon redemption thereof) or change the Stated Maturity
thereof.
3
<PAGE>
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, if any,
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 obligations evidenced by this Guarantee are, to the
extent provided in the Indenture, subordinated and subject in right of
payment to the prior payment in full of all Senior Indebtedness (as
defined in the Indenture) of the Guarantor, and this Guarantee is
issued subject to the provisions of the Indenture with respect
thereto. Each Holder of a Security upon which this Guarantee is
endorsed, by accepting the same, (a) agrees to and shall be bound by
such provisions, (b) authorizes and directs the Trustee on his behalf
to take such action as may be necessary or appropriate to acknowledge
or effectuate the subordination so provided and (c) appoints the
Trustee his attorney-in fact for any and all such purposes. Each
Holder hereof, by his acceptance hereof, hereby waives all notice of
the acceptance of the subordination provisions contained herein and in
the Indenture by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such
Holder upon said provisions.
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,
4
<PAGE>
such right of subrogation until the principal of, and premium, if any,
and interest, if any, on all Securities issued under the Indenture
shall have been paid in full.
This Guarantee shall remain in full force and effect and
continue notwithstanding any petition filed by or against the Company
for liquidation or reorganization, the Company becoming insolvent or
making an assignment for the benefit of creditors or a receiver or
trustee being appointed for all or any significant part of the
Company's assets, and shall, to the fullest extent permitted by law,
continue to be effective or reinstated, as the case may be, if at any
time payment of the Security upon which this Guarantee is endorsed,
is, pursuant to applicable law, rescinded or reduced in amount, or
must otherwise be restored or returned by the Holder of such Security,
whether as a "voidable preference," "fraudulent transfer," or
otherwise, all as though such payment or performance had not been
made. In the event that any payment, or any part thereof, is
rescinded, reduced, restored or returned on such Security, such
Security shall, to the fullest extent permitted by law, be reinstated
and deemed paid only by such amount paid and not so rescinded,
reduced, restored or returned.
This Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication of the Security upon
which this Guarantee is endorsed shall have been manually executed by
or on behalf of the Trustee under the Indenture.
All terms used in this Guarantee which are defined in the
Indenture shall have the meanings assigned to them in such Indenture.
This Guarantee shall be deemed to be a contract made under
the laws of the State of New York, and for all purposes shall be
governed by and construed in accordance with the laws of the State of
New York.
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee
to be executed as of the date first written above.
PP&L RESOURCES, INC.
By:
[END OF FORM]
5
<PAGE>
ARTICLE THREE
PAYMENT OF TRUST COSTS AND EXPENSES
SECTION 1. In connection with the issuance of the Securities
to the Trust, and the loan of the proceeds of the Preferred Securities
and Common Securities to the Company and the Guarantor, the Guarantor
hereby covenants to pay to the Trust, and reimburse the Trust for,
the full amount of any costs, expenses or liabilities of the Trust
(other than obligations of the Trust to pay the Holders of any
Preferred Securities or Common Securities) including, without
limitation, any taxes, duties or other governmental charges of
whatever nature (other than withholding taxes) imposed on the Trust
by the United States or any taxing authority. Such payment obligation
includes any such costs, expenses or liabilities of the Trust that
are required by applicable law to be satisfied in connection with a
termination of the Trust. The obligations of the Guarantor to pay
all debts, obligations, costs and expenses of the Trust (other than
with respect to amounts owing under the Common Securities and the
Preferred Securities) shall survive the satisfaction and discharge
of the Indenture.]
ARTICLE FOURTH
MISCELLANEOUS PROVISIONS
SECTION 1. This Supplemental Indenture No. 1 is a supplement to
the Original Indenture. As supplemented by this Supplemental Indenture No. 1,
the Indenture is in all respects ratified, approved and confirmed, and the
Original Indenture and this Supplemental Indenture No. 1 shall together
constitute one and the same instrument.
SECTION 2. The recitals contained in this Supplemental Indenture
No. 1 shall be taken as the statements of the Company and the Guarantor, and the
Trustee assumes no responsibility for their correctness and makes no
representations as to the validity or sufficiency of this Supplemental Indenture
No. 1.
SECTION 3. This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
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:
Name:
Title:
[SEAL]
ATTEST:
PP&L RESOURCES, INC.
By:
Name:
Title:
[SEAL]
ATTEST:
THE CHASE MANHATTAN BANK,
as Trustee
By:
Name:
[SEAL] Title:
ATTEST:
7
EXHIBIT 4.13
TRUST SECURITIES GUARANTEE AGREEMENT
Among
PP&L Resources, Inc.
(as Guarantor)
and
The Chase Manhattan Bank
(as Guarantee Trustee)
Relating to PP&L Capital Funding Trust I
dated as of
------------
<PAGE>
TABLE OF CONTENTS
------------------
Page
----
ARTICLE I
DEFINITIONS .............................. 1
SECTION 1.01 Definitions .................................................. 1
ARTICLE II
TRUST INDENTURE ACT .......................... 4
SECTION 2.01 Trust Indenture Act; Application ............................. 4
SECTION 2.02 Lists of Holders of [Preferred Trust] Securities ............. 4
SECTION 2.03 Reports by the Guarantee Trustee ............................. 5
SECTION 2.04 Periodic Reports to Guarantee Trustee ........................ 5
SECTION 2.05 Evidence of Compliance with Conditions Precedent ............. 5
SECTION 2.06 Events of Default; Waiver .................................... 5
SECTION 2.07 Event of Default; Notice ..................................... 5
SECTION 2.08 Conflicting Interests ........................................ 6
ARTICLE III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE ............. 6
SECTION 3.01 Powers and Duties of the Guarantee Trustee ................... 6
SECTION 3.02 Certain Rights of Guarantee Trustee .......................... 7
SECTION 3.03 Not Responsible for Recitals or Issuance of Guarantee ........ 9
ARTICLE IV
GUARANTEE TRUSTEE ............................ 9
SECTION 4.01 Guarantee Trustee; Eligibility ............................... 9
SECTION 4.02 Appointment, Removal and Resignation of Guarantee
Trustee ..................................................10
ARTICLE V
GUARANTEE 11
SECTION 5.01 Guarantee ....................................................11
SECTION 5.02 Waiver of Notice and Demand ..................................11
(i)
<PAGE>
SECTION 5.03 Obligations Not Affected .....................................11
SECTION 5.04 Rights of Holders ............................................12
SECTION 5.05 Guarantee of Payment .........................................12
SECTION 5.06 Subrogation ..................................................13
SECTION 5.07 Independent Obligations ......................................13
ARTICLE VI
SUBORDINATION .............................13
SECTION 6.01 Subordination ................................................13
ARTICLE VII
TERMINATION ..............................14
SECTION 7.01 Termination ..................................................14
ARTICLE VIII
MISCELLANEOUS .............................14
SECTION 8.01 Successors and Assigns .......................................14
SECTION 8.02 Amendments ...................................................14
SECTION 8.03 Notices ......................................................15
SECTION 8.04 Benefit ......................................................16
SECTION 8.05 Interpretation ...............................................16
SECTION 8.06 Governing Law ................................................16
(ii)
<PAGE>
CROSS-REFERENCE TABLE*
----------------------
Section of Section of
Trust Indenture Act Guarantee
of 1939, as amended Agreement
- ------------------- ---------
310(a)......................................................... 4.01(a)
310(b)..........................................................4.01(c), 2.08
310(c)......................................................... Inapplicable
311(a)..........................................................2.02(b)
311(b)..........................................................2.02(b)
311(c)..........................................................Inapplicable
312(a)..........................................................2.02(a)
312(b)..........................................................2.02(b)
313.............................................................2.03
314(a)..........................................................2.04
314(b)..........................................................Inapplicable
314(c)..........................................................2.05
314(d)..........................................................Inapplicable
314(e)..........................................................1.01, 2.05,
3.02
314(f)..........................................................2.01
315(a)..........................................................3.01, 3.02
315(b)..........................................................2.07
315(c)..........................................................3.01
315(d)..........................................................3.01(c)
316(a)..........................................................5.04(a), 2.06
316(b)..........................................................5.03
316(c)..........................................................2.02
317(a)..........................................................Inapplicable
317(b)..........................................................Inapplicable
318(a)..........................................................2.01(b)
318(b)..........................................................2.01
318(c)..........................................................2.01(a)
- -------------
* This Cross-Reference Table does not constitute part of the Guarantee
Agreement and shall not affect the interpretation of any of its terms or
provisions.
(iii)
<PAGE>
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT ("Guarantee Agreement"), dated as of
____________, is executed and delivered by PP&L Resources, Inc., a Pennsylvania
corporation (the "Guarantor"), and The Chase Manhattan Bank, as trustee (the
"Guarantee Trustee"), for the benefit of the Holders (as defined herein) from
time to time of the Preferred Trust Securities [and Common Trust Securities]
([each] as defined herein [and together, the "Securities"]) of PP&L Capital
Funding Trust I, a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the
"Trust Agreement"), dated as of _____________among the Trustees named therein,
PP&L Resources, as Depositor and Trust Securities Guarantor and the several
Holders (as defined therein), the Issuer is issuing as of the date hereof
$_____________ aggregate Liquidation Amount of its __%
___________________________ Securities (the "Preferred Trust Securities")
representing undivided beneficial interests in the assets of the Issuer and
having the terms set forth in the Trust Agreement;
WHEREAS, the Preferred Trust Securities are to be issued for sale by
the Issuer and the proceeds [thereof, together with the proceeds from the
issuance of the Issuer's Common Trust Securities (as defined herein)] are to be
invested in $___________ principal amount of Debentures (as defined in the Trust
Agreement) [of the Debenture Issuer, which Debentures will be deposited with The
Chase Manhattan Bank, as Property Trustee under the Trust Agreement, as trust
assets]; and
WHEREAS, as an incentive for Holders to purchase Preferred Trust
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth herein, to pay to the Holders the Guarantee Payments (as
defined herein) and to make certain other payments on the terms and conditions
set forth herein;
NOW, THEREFORE, in consideration of the purchase of Debentures, which
purchase the Guarantor hereby agrees shall benefit the Guarantor, the Guarantor
executes and delivers this Guarantee Agreement for the benefit of the Holders
from time to time.
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINITIONS. As used in this Guarantee Agreement, the
terms set forth below shall, unless the context otherwise requires, have the
following meanings. Capitalized or otherwise defined terms used but not
otherwise defined herein shall have the meanings assigned to such terms in the
Trust Agreement as in effect on the date hereof.
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"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
["Common Trust Securities" means the common securities representing
undivided beneficial interests in the assets of the Issuer that will be issued
to PP&L Resources, Inc., as Depositor.]
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Guarantee Agreement; provided, however,
that, except with respect to a default in payment of any Guarantee Payments, the
Guarantor shall have received notice of default from the Guarantee Trustee or
any Holder (with a copy to the Guarantee Trustee) and shall not have cured such
default within 90 days after receipt of such notice.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the [Preferred Trust] Securities, to the
extent not paid or made by or on behalf of the Issuer: (i) any accrued and
unpaid Distributions that are required to be paid on such [Preferred Trust]
Securities but only if and to the extent that the Property Trustee has available
in the Payment Account funds sufficient to make such payment at such time, (ii)
the redemption price (the "Redemption Price"), and all accrued and unpaid
Distributions to the date of redemption, with respect to the [Preferred Trust]
Securities called for redemption by the Issuer but only if and to the extent
that the Property Trustee has available in the Payment Account funds sufficient
to make such payment, (iii) upon a voluntary or involuntary dissolution,
winding-up or termination of the Issuer (other than in connection with the
distribution of Debentures to the Holders in exchange for [Preferred Trust]
Securities as provided in the Trust Agreement or upon a redemption of all of the
[Preferred Trust] Securities upon maturity or redemption of the Debentures as
provided in the Trust Agreement), the lesser of (a) the aggregate of the
Liquidation Amount of all [Preferred Trust] Securities and all accrued and
unpaid Distributions on the [Preferred Trust] Securities to the date of payment
but only if and to the extent that the Property Trustee has available in the
Payment Account funds sufficient to make such payment at such time, and (b) the
amount of assets of the Issuer remaining available for distribution to Holders
in liquidation of the Issuer after satisfaction of liabilities to creditors of
the Issuer as required by applicable law (in either case, the "Liquidation
Distribution").
"Guarantee Trustee" means The Chase Manhattan Bank, until a Successor
Guarantee Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Guarantee Agreement and thereafter means each such
Successor Guarantee Trustee.
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"Holder" means a Person in whose name a [Preferred Trust] Security or
[Preferred Trust] Securities is registered in the Securities Register; provided,
however, that in determining whether the holders of the requisite percentage of
[Preferred Trust] Securities have given any request, notice, consent or waiver
hereunder, "Holder" shall not include the Guarantor or any Affiliate of the
Guarantor.
"Majority in Liquidation Amount of the [Preferred Trust] Securities"
means a vote by Holders, voting separately as a class, of more than 50% of the
aggregate Liquidation Amount of all then outstanding [Preferred Trust]
Securities.
"Officer's Certificate" means a certificate signed by the Chairman or
a Vice Chairman of the Board of Directors, the President, any Vice President,
the Treasurer, or any Assistant Treasurer of the Guarantor, and delivered to the
Guarantee Trustee. Any Officer's Certificate or Opinion of Counsel delivered
with respect to compliance with a condition or covenant provided for in this
Guarantee Agreement shall include:
(a) a statement that the officer or counsel signing the Officer's
Certificate or the Opinion of Counsel has read the covenant or condition
and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officer's
Certificate or the Opinion of Counsel;
(c) a statement that each such officer or counsel has made such
examination or investigation as, in such officer's or counsel's opinion, is
necessary to enable such officer or counsel 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 officer or
counsel, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Guarantee Trustee or the Guarantor or an Affiliate of the
Guarantor, or an employee or any thereof, who shall be acceptable to the
Guarantee Trustee.
"Person" means any individual, corporation, partnership, joint
venture, trust, limited liability company, unincorporated organization or
government, or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Responsible Officer" means, with respect to the Guarantee Trustee,
any vice-president, any assistant vice-president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, any senior trust officer, any
trust officer or assistant trust officer or any other officer in the Corporate
Trust Department of the Guarantee Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
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means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of that officer's knowledge of and
familiarity with the particular subject.
"Subordinated Indenture" means the Indenture dated as of ____________,
1999, [among] the Guarantor, the Debenture Issuer and The Chase Manhattan Bank,
as trustee pursuant to which the Debentures are issued, together with any
indenture supplemental thereto.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.01.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01 TRUST INDENTURE ACT; APPLICATION. (a) This Guarantee
Agreement is subject to the provisions of the Trust Indenture Act that are
required or deemed to be part of this Guarantee Agreement and shall, to the
extent applicable, be governed by such provisions; and
(b) if and to the extent that any provision of this Guarantee
Agreement limits, qualifies or conflicts with the duties imposed by Section 310
to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
SECTION 2.02 LISTS OF HOLDERS OF [PREFERRED TRUST] SECURITIES. (a) The
Guarantor shall furnish or cause to be furnished to the Guarantee Trustee (a)
semiannually, not later than ________ __ and ____ __ in each year, a list, in
such form as the Guarantee Trustee may reasonably require, of the names and
addresses of the Holders ("List of Holders") as of a date not more than 15 days
prior to the delivery thereof, and (b) at such other times as the Guarantee
Trustee may request in writing, within 30 days after the receipt by the
Guarantor of any such request, a List of Holders as of a date not more than 15
days prior to the time such list is furnished; provided that, the Guarantor
shall not be obligated to provide such List of Holders [at any time the List of
Holders does not differ from the most recent List of Holders given to the
Guarantee Trustee by the Guarantor] [at any time when the Guarantee Trustee is
serving as Transfer Agent and Registrar]. [The Guarantee Trustee may destroy any
List of Holders previously given to it on receipt of a new List of Holders.]
(b) The Guarantee Trustee shall comply with its obligations under
Section 311(a) of the Trust Indenture Act, subject to the provisions of Section
311(b) of the Trust Indenture Act, and Section 312(b) of the Trust Indenture
Act.
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SECTION 2.03 REPORTS BY THE GUARANTEE TRUSTEE. Within 60 days after
each ____________, commencing ________________, the Guarantee Trustee shall
provide to the Holders such reports, if any, as are required by Section 313(a)
of the Trust Indenture Act in the form and in the manner provided by Section
313(a) of the Trust Indenture Act. Any such report shall be dated as of the next
preceding ____________. The Guarantee Trustee shall also comply with the
requirements of Section[s] 313[(b), (c) and] (d) of the Trust Indenture Act.
SECTION 2.04 PERIODIC REPORTS TO GUARANTEE TRUSTEE. The Guarantor
shall provide to the Guarantee Trustee, the Securities and Exchange Commission
and the Holders such documents, reports and information, if any, as required by
Section 314 of the Trust Indenture Act and the compliance certificate required
by Section 314(a)(4) of the Trust Indenture Act in the form, in the manner and
at the times required by Section 314 of the Trust Indenture Act, provided that
such compliance certificate shall be delivered annually on or before _________
in each year, beginning _____________.
SECTION 2.05 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT. The
Guarantor shall provide to the Guarantee Trustee such evidence of compliance
with any conditions precedent provided for in this Guarantee Agreement as and to
the extent required by Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c) of the Trust Indenture Act may be given in the form of an Officer's
Certificate.
SECTION 2.06 EVENTS OF DEFAULT; WAIVER. The Holders of a Majority in
Liquidation Amount of [Preferred Trust] Securities may, by vote, on behalf of
all of the Holders, waive any past Event of Default and its consequences. Upon
such waiver, any such Event of Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Guarantee Agreement, but no such waiver shall extend to any subsequent
or other default or Event of Default or impair any right consequent thereon.
SECTION 2.07 EVENT OF DEFAULT; NOTICE. (a) The Guarantee Trustee
shall, within 90 days after the occurrence of an Event of Default, transmit by
mail, first class postage prepaid, to the Holders, a notice of such Event of
Default known to the Guarantee Trustee, unless such default shall have been
cured or waived before the giving of such notice, provided that, except in the
case of a default in the payment of a Guarantee Payment, the Guarantee Trustee
shall be protected in withholding such notice if and so long as the board of
directors, the executive committee, or a trust committee of directors or
Responsible Officers of the Guarantee Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Event of Default unless the Guarantee Trustee shall have received written
notice, or a Responsible Officer of the Guarantee Trustee charged with the
administration of this Guarantee Agreement shall have received written notice,
of such Event of Default.
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SECTION 2.08 CONFLICTING INTERESTS. The Trust Agreement, the
Subordinated Indenture and the securities of any series issued thereunder
[OTHERS] shall be deemed to be specifically described in this Guarantee
Agreement for the purposes of clause (i) of the first proviso contained in
Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
SECTION 3.01 POWERS AND DUTIES OF THE GUARANTEE TRUSTEE. (a) This
Guarantee Agreement shall be held by the Guarantee Trustee for the benefit of
the Holders, and the Guarantee Trustee shall not transfer this Guarantee
Agreement or any rights hereunder to any Person except a Holder exercising his
or her rights pursuant to Section 5.04 or to a Successor Guarantee Trustee on
acceptance by such Successor Guarantee Trustee of its appointment to act as
Successor Guarantee Trustee. The right, title and interest of the Guarantee
Trustee shall automatically vest in any Successor Guarantee Trustee, and such
vesting and cessation of title shall be effective whether or not conveyancing
documents have been executed and delivered pursuant to the appointment of such
Successor Guarantee Trustee.
(b) The Guarantee Trustee, prior to the occurrence of any Event of
Default and after the curing or waiving of all Events of Default that may have
occurred, shall undertake to perform such duties and only such duties as are
specifically set forth in this Guarantee Agreement, and no implied covenants or
obligations shall be read into this Guarantee Agreement against the Guarantee
Trustee. In case an Event of Default has occurred (that has not been cured or
waived pursuant to Section 2.06), the Guarantee Trustee shall exercise such of
the rights and powers vested in it by this Guarantee Agreement, and use the same
degree of care and skill in its exercise thereof, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(c) No provision of this Guarantee Agreement shall be construed to
relieve the Guarantee Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Guarantee Trustee
shall be determined solely by the express provisions of this
Guarantee Agreement, and the Guarantee Trustee shall not be
liable except for the performance of such duties and obligations
as are specifically set forth in this Guarantee Agreement; and
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(B) in the absence of bad faith on the part of the Guarantee
Trustee, the Guarantee Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to
the Guarantee Trustee and conforming to the requirements of this
Guarantee Agreement; but in the case of any such certificates or
opinions that by any provision hereof or of the Trust Indenture
Act are specifically required to be furnished to the Guarantee
Trustee, the Guarantee Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Guarantee Agreement;
(ii) the Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that the Guarantee Trustee was
negligent in ascertaining the pertinent facts upon which such judgment
was made;
(iii) the Guarantee 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
Liquidation Amount of the [Preferred Trust] Securities relating to the
time, method and place of conducting any proceeding for any remedy
available to the Guarantee Trustee, or exercising any trust or power
conferred upon the Guarantee Trustee under this Guarantee Agreement;
and
(iv) no provision of this Guarantee Agreement shall require the
Guarantee Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if the
Guarantee Trustee shall have reasonable grounds for believing that the
repayment of such funds or liability is not reasonably assured to it
under the terms of this Guarantee Agreement or adequate indemnity,
reasonably satisfactory to the Guarantee Trustee, against such risk or
liability is not reasonably assured to it.
SECTION 3.02 CERTAIN RIGHTS OF GUARANTEE TRUSTEE. (a) Subject to the
provisions of Section 3.01:
(i) the Guarantee Trustee may rely and shall be fully 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 reasonably believed by it to be genuine and
to have been signed, sent or presented by the proper party or parties;
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(ii) any direction or act of the Guarantor contemplated by this
Guarantee Agreement shall be sufficiently evidenced by an Officer's
Certificate, or as otherwise expressly provided herein;
(iii) whenever, in the administration of this Guarantee
Agreement, the Guarantee Trustee shall deem it desirable that a matter
be proved or established before taking, suffering or omitting to take
any action hereunder, the Guarantee Trustee (unless other evidence is
herein specifically prescribed) may, in the absence of bad faith on
its part, request and rely upon an Officer's Certificate which, upon
receipt of such request from the Guarantee Trustee, shall be promptly
delivered by the Guarantor;
(iv) the Guarantee Trustee may consult with counsel of its
choice, and the written advice or Opinion of Counsel with respect to
legal matters 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 accordance with such advice or opinion; such counsel
may be counsel to the Guarantor or any of its Affiliates and may
include any of its employees; the Guarantee Trustee shall have the
right at any time to seek instructions concerning the administration
of this Guarantee Agreement from any court of competent jurisdiction;
(v) the Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Guarantee
Agreement at the request or direction of any Holder, unless such
Holder shall have provided to the Guarantee Trustee such adequate
security and indemnity as would satisfy a reasonable person in the
position of the Guarantee Trustee, against the costs, expenses
(including attorneys' fees and expenses) and liabilities that might be
incurred by it in complying with such request or direction, including
such reasonable advances as may be requested by the Guarantee Trustee;
provided that, nothing contained in this Section 3.02(a)(v) shall be
taken to relieve the Guarantee Trustee, upon the occurrence and
continuance of an Event of Default, of its obligation under the last
sentence of Section 3.01(b) to exercise the rights and powers vested
in it by this Guarantee Agreement;
(vi) the Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee Trustee, in
its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit;
(vii) the Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through agents or attorneys, and the Guarantee Trustee shall not be
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responsible for any misconduct or negligence on the part of any such
agent or attorney appointed with due care by it hereunder;
(viii) whenever in the administration of this Guarantee Agreement
the Guarantee Trustee shall deem it desirable to receive instructions
with respect to enforcing any remedy or right or taking any other
action hereunder, the Guarantee Trustee (1) may request instructions
from the Holders of a Majority in Liquidation Amount of the Preferred
Trust Securities, (2) may refrain from enforcing such remedy or right
or taking such other action until such instructions are received, and
(3) shall be protected in relying on or acting in accordance with such
instructions;
(ix) the Guarantee Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any tax or securities form) (or
any rerecording, refiling or re- registration thereof); and
(x) the Guarantee Trustee shall not be liable for any action
taken, suffered or omitted to be taken by it in good faith and
reasonably believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Guarantee Agreement.
(b) No provision of this Guarantee Agreement shall be deemed to impose
any duty or obligation on the Guarantee Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Guarantee Trustee
shall be construed to be a duty to act in accordance with such power or
authority.
SECTION 3.03 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF GUARANTEE.
The recitals contained in this Guarantee Agreement shall be taken as the
statements of the Guarantor, and the Guarantee Trustee does not assume any
responsibility for their correctness. The Guarantee Trustee makes no
representation as to the validity or sufficiency of this Guarantee Agreement.
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.01 GUARANTEE TRUSTEE; ELIGIBILITY. (a) There shall at all
times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
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(ii) be a corporation organized and doing business under the laws
of the United States of America or any State or Territory thereof or
of the District of Columbia, or a corporation or Person permitted by
the Securities and Exchange Commission to act as an institutional
trustee under the Trust Indenture Act, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus
of at least 50 million U.S. dollars ($50,000,000), and subject to
supervision or examination by Federal, State, Territorial or District
of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of
the supervising or examining authority referred to above, then, for
the purposes of this Section 4.01(a)(ii) [and to the extent permitted
by the Trust Indenture Act], 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.
(b) If at any time the Guarantee Trustee shall cease to be eligible to
so act under Section 4.01(a), the Guarantee Trustee shall immediately
resign in the manner and with the effect set out in Section 4.03(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act,
the Guarantee Trustee and Guarantor shall in all respects comply with the
provisions of Section 310(b) of the Trust Indenture Act.
SECTION 4.02 APPOINTMENT, REMOVAL AND RESIGNATION OF GUARANTEE
TRUSTEE. (a) Subject to Section 4.02(b), [unless an Event of Default shall have
occurred and be continuing,] the Guarantee Trustee may be appointed or removed
without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed until a Successor
Guarantee Trustee has been appointed by the Guarantor and has accepted such
appointment by written instrument executed by such Successor Guarantee Trustee
and delivered to the Guarantor.
(c) The Guarantee Trustee appointed to office shall hold office until
a Successor Guarantee Trustee shall have been appointed or until its removal or
resignation. The Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing executed by the
Guarantee Trustee and delivered to the Guarantor, which resignation shall not
take effect until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee
Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.02 within 60 days after
delivery to the Guarantor of an instrument of resignation or removal, the
Guarantee Trustee resigning or being removed may petition any court of competent
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jurisdiction for appointment of a Successor Guarantee Trustee. Such court may
thereupon, after prescribing such notice, if any, as it may deem proper, appoint
a Successor Guarantee Trustee.
[(e) The Guarantor shall give notice of each resignation and each
removal of the Guarantee Trustee and each appointment of a successor Guarantee
Trustee to all Holders in the manner provided in Section 8.03 hereof. Each
notice shall include the name of the successor Guarantee Trustee and the address
of its Corporate Trust Office.]
(f) No Guarantee Trustee shall be liable for the acts or omissions to
act of any Successor Guarantee Trustee.
ARTICLE V
GUARANTEE
SECTION 5.01 GUARANTEE. The Guarantor irrevocably and unconditionally
agrees to pay in full to the Holders the Guarantee Payments (without duplication
of amounts theretofore paid by or on behalf of the Issuer), as and when due,
regardless of any defense, right of set-off or counterclaim which the Issuer may
have or assert. The Guarantor's obligation to make a Guarantee Payment may be
satisfied by direct payment of the required amounts by the Guarantor to the
Holders or by causing the Issuer to pay such amounts to the Holders.
SECTION 5.02 WAIVER OF NOTICE AND DEMAND. The Guarantor hereby waives
notice of acceptance of this Guarantee Agreement and of any liability to which
it applies or may apply, presentment, demand for payment, any right to require a
proceeding first against the Guarantee Trustee, Issuer or any other Person
before proceeding against the Guarantor, protest, notice of nonpayment, notice
of dishonor, notice of redemption and all other notices and demands.
SECTION 5.03 OBLIGATIONS NOT AFFECTED. The obligation of the Guarantor
to make the Guarantee Payments under this Guarantee Agreement shall in no way be
affected or impaired by reason of the happening from time to time of any of the
following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the [Preferred Trust]
Securities to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or
any other sums payable under the terms of the [Preferred Trust] Securities
or the extension of time for the performance of any other obligation under,
arising out of, or in connection with, the [Preferred Trust] Securities
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(other than an extension of time for payment of Distributions, Redemption
Price, Liquidation Distribution or other sum payable that results from the
extension of any interest payment period on the Debentures permitted by the
Subordinated Indenture);
(c) any failure, omission, delay or lack of diligence on the part of
the [Property Trustee or the] Holders to enforce, assert or exercise any
right, privilege, power or remedy conferred on the [Property Trustee or
the] Holders pursuant to the terms of the [Preferred Trust] Securities, or
any action on the part of the Issuer granting indulgence or extension of
any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the Issuer
or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the [Preferred
Trust] Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute
a legal or equitable discharge or defense of a guarantor, it being the
intent of this Section 5.03 that the obligations of the Guarantor hereunder
shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain consent
of, the Guarantor with respect to the happening of any of the foregoing.
SECTION 5.04 RIGHTS OF HOLDERS. The Guarantor expressly acknowledges
that: (i) this Guarantee Agreement will be deposited with the Guarantee Trustee
to be held for the benefit of the Holders; (ii) the Guarantee Trustee has the
right to enforce this Guarantee Agreement on behalf of the Holders; (iii) the
Holders of a Majority in Liquidation Amount of the [Preferred Trust] Securities
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Guarantee Trustee in respect of this Guarantee
Agreement or exercising any trust or power conferred upon the Guarantee Trustee
under this Guarantee Agreement; and (iv) any Holder may enforce this Guarantee
Agreement, or institute a legal proceeding directly against the Guarantor to
enforce the Guarantee Trustee's rights under this Guarantee Agreement without
first instituting a legal proceeding against the Issuer, the Guarantee Trustee,
or any other Person.
SECTION 5.05 GUARANTEE OF PAYMENT. This Guarantee Agreement creates a
guarantee of payment and not of collection. This Guarantee Agreement will not be
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discharged except by payment of the Guarantee Payments in full (without
duplication) [ or upon the distribution of Debentures as provided in the Trust
Agreement].
SECTION 5.06 SUBROGATION. The Guarantor shall be subrogated to all, if
any, rights of the Holders against the Issuer in respect of any amounts paid to
the Holders by the Guarantor under this Guarantee Agreement; provided, however,
that the Guarantor shall not (except to the extent required by mandatory
provisions of law) be entitled to enforce or exercise any rights which it may
acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Guarantee Agreement,
if, at the time of any such payment, any amounts of Guarantee Payments are due
and unpaid under this Guarantee Agreement. If any amount shall be paid to the
Guarantor in violation of the preceding sentence, the Guarantor agrees to hold
such amount in trust for the Holders and to pay over such amount to the Holders.
SECTION 5.07 INDEPENDENT OBLIGATIONS. The Guarantor acknowledges that
its obligations hereunder are independent of the obligations of the Issuer with
respect to the [Preferred Trust] Securities and that the Guarantor shall be
liable as principal and as debtor hereunder to make Guarantee Payments pursuant
to the terms of this Guarantee Agreement notwithstanding the occurrence of any
event referred to in subsections (a) through (g), inclusive, of Section 5.03.
ARTICLE VI
SUBORDINATION
SECTION 6.01 SUBORDINATION. This Guarantee Agreement will constitute
an unsecured obligation of the Guarantor and will rank (i) subordinate and
junior in right of payment to all other liabilities of the Guarantor, including
the guarantee of the Debentures, except those made pari passu or subordinate by
their terms, (ii) pari passu with the most senior preferred or preference stock
now or hereafter issued by the Guarantor and with any guarantee now or hereafter
entered into by the Guarantor in respect of any preferred or preference stock of
any Affiliate of the Guarantor, and (iii) senior to all common stock of the
Guarantor. [When a Debenture Event of Default (as defined in the Trust
Agreement) occurs and is continuing, the rights of holders of the Common Trust
Securities to payment in respect of Distributions and payments upon liquidation,
redemption or otherwise are subordinated to the rights to payment of holders of
Preferred Trust Securities.] Each Person, by virtue of having become a Holder of
a Security, shall be deemed to have expressly assented and agreed to the terms
of, and shall be bound by, this Trust Securities Guarantee Agreement, the Trust
Agreement and the Subordinated Indenture.
-13-
<PAGE>
ARTICLE VII
TERMINATION
SECTION 7.01 TERMINATION. This Guarantee Agreement shall terminate and
be of no further force and effect upon: (i) full payment of the Redemption Price
of all [Preferred Trust] Securities, and all accrued and unpaid Distributions to
the date of redemption, (ii) the distribution of Debentures to Holders in
exchange for all of the [Preferred Trust] Securities, or (iii) full payment of
the amounts payable in accordance with the Trust Agreement upon liquidation of
the Issuer. Notwithstanding the foregoing, this Guarantee Agreement will
continue to be effective or will be reinstated, as the case may be, if at any
time any Holder must restore payment of any sums paid with respect to [Preferred
Trust] Securities or under this Guarantee Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01 SUCCESSORS AND ASSIGNS. All guarantees and agreements
contained in this Guarantee Agreement shall bind the successors, assigns,
receivers, trustees and representatives of the Guarantor and shall inure to the
benefit of the Holders of the [Preferred Trust] Securities then outstanding.
Except in connection with a consolidation, merger or sale involving the
Guarantor that is permitted under Article Eleven of the Subordinated Indenture,
the Guarantor shall not assign its obligations hereunder.
SECTION 8.02 AMENDMENTS. This Guarantee Agreement may be amended only
by an instrument in writing entered into by the Guarantor and the Guarantee
Trustee. Except with respect to any changes which do not materially adversely
affect the rights of Holders (in which case no consent of Holders will be
required), this Guarantee Agreement may only be amended with the prior approval
of the Holders of not less than a majority in aggregate Liquidation Amount of
all the outstanding [Preferred Trust] Securities. Any such consent shall be
deemed to be on behalf of the holders of all the [Preferred Trust] Securities.
The provisions of Article VI of the Trust Agreement concerning meetings of
Holders shall apply to the giving of such approval.
-14-
<PAGE>
SECTION 8.03 NOTICES. Any notice, request or other communication
required or permitted to be given hereunder shall be in writing, duly signed by
the party giving such notice, and delivered, telecopied or mailed by first class
mail as follows:
(a) if given to the Guarantor, to the address set forth below or such
other address or facsimile number or to the attention of such other Person
as the Guarantor may give notice of to the Guarantee Trustee and the
Holders of the Preferred Trust Securities:
PP&L Resources, Inc.
Two North Ninth Street
Allentown, Pennsylvania 18101-1179
Facsimile No: 610-774-5106
Attention: Treasurer
(b) if given to the Issuer, in care of the Administrative Trustees, at
the Issuer's (and the Administrative Trustees') address set forth below or
such other address or facsimile number or to the attention of such other
Person as the [Administrative] Trustees on behalf of the Issuer may give
notice of to the Guarantee Trustee and the Holders:
PP&L Capital Funding Trust I
c/o PP&L Resources, Inc.
Two North Ninth Street
Allentown, Pennsylvania 18101-1179
Facsimile No: 610-774-5100
Attention: Administrative Trustees
(c) if given to the Guarantee Trustee, to the address set forth below
or such other address or facsimile number or to the attention of such other
Person as the Guarantee Trustee may give notice of to the Guarantor and the
Holders of the Preferred Trust Securities:
The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, New York 10001
Facsimile No: 212-946-8158
Attention: Global Trust Services
(d) if given to any Holder, at the address set forth on the books and
records of the Issuer.
All notices hereunder shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
-15-
<PAGE>
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
SECTION 8.04 BENEFIT. This Guarantee Agreement is solely for the
benefit of the Holders and, subject to Section 3.01(a), is not separately
transferable from the Preferred Trust Securities.
SECTION 8.05 INTERPRETATION. In this Guarantee Agreement, unless the
context otherwise requires:
(a) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
(b) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or
amended from time to time;
(c) all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement unless
otherwise specified;
(d) a term defined in the Trust Indenture Act has the same meaning
when used in this Guarantee Agreement unless otherwise defined in this
Guarantee Agreement or unless the context otherwise requires;
(e) a reference to the singular includes the plural and vice versa;
and
(f) the masculine, feminine or neuter genders used herein shall
include the masculine, feminine and neuter genders.
SECTION 8.06 GOVERNING LAW. THIS GUARANTEE AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
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.
-16-
<PAGE>
THIS GUARANTEE AGREEMENT is executed as of the day and year first
above written.
PP&L RESOURCES, INC.,
As Guarantor
By:
----------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Guarantee Trustee
By:
----------------------------------
Name:
Title:
EXHIBIT 4.15
------------
[Specimen Stock Certificate]
INCORPORATED UNDER THE LAWS OF COMMON STOCK
THE COMMONWEALTH OF PENNSYLVANIA PAR VALUE $.01
NUMBER [image] SHARES
--------- ------
THIS CERTIFICATE IS TRANSFERABLE IN CUSIP 693499 10 5
MINNEAPOLIS, MINNESOTA, SEE REVERSE FOR CERTAIN DEFINITIONS
NEW YORK, NEW YORK OR
ALLENTOWN, PENNSYLVANIA
PP&L RESOURCES, INC.
THIS IS TO CERTIFY THAT
PP&L
IS THE OWNER OF
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK OF
PP&L Resources, Inc. (hereinafter referred to as the "Company")
transferable on the books of the Company by the holder hereof in
person or by duly authorized attorney upon surrender of this
certificate properly endorsed. This certificate and the shares
represented hereby are issued and shall be held subject to all of the
provisions of the Articles of Incorporation, as restated and amended,
of the Company (a copy of which is on file with the Transfer Agent),
to all of which the holder, by acceptance hereof, assents. This
certificate is not valid until countersigned by the Transfer Agent and
registered by the Registrar.
Witness the facsimile seal of the Company and the facsimile
signatures of its authorized officers.
Dated [seal]
COUNTERSIGNED AND REGISTERED:
NORWEST BANK MINNESOTA, N.A.
TRANSFER AGENT
AND REGISTRAR
BY
AUTHORIZED SIGNATURE SECRETARY CHAIRMAN,PRESIDENT AND CHIEF
EXECUTIVE OFFICER
<PAGE>
PP&L RESOURCES, INC.
THE COMPANY WILL FURNISH WITHOUT CHARGE TO EACH SHARE OWNER
WHO SO REQUESTS A STATEMENT OF THE DESIGNATIONS, TERMS, RELATIVE
RIGHTS, PRIVILEGES, LIMITATIONS, PREFERENCES AND VOTING POWERS AND THE
PROHIBITIONS, RESTRICTIONS AND QUALIFICATIONS OF THE VOTING AND OTHER
RIGHTS AND POWERS OF THE SHARES OF EACH CLASS OF STOCK WHICH THE
COMPANY IS AUTHORIZED TO ISSUE AND OF THE VARIATIONS IN THE RELATIVE
RIGHTS AND PREFERENCES BETWEEN THE SHARES OF EACH SERIES OF EACH CLASS
OF STOCK WHICH THE COMPANY IS AUTHORIZED TO ISSUE IN SERIES INSOFAR AS
THE SAME HAVE BEEN FIXED AND DETERMINED AND OF THE AUTHORITY OF THE
BOARD OF DIRECTORS TO FIX AND DETERMINE THE RELATIVE RIGHTS AND
PREFERENCES OF SUBSEQUENT SERIES.
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
TEN ENT - as tenants by the entireties ------ ------
JT TEN - as joint tenants with right (Cust) (Minor)
of survivorship and not as under Uniform Gifts
tenants in common to Minors Act
--------
Additional abbreviations may also be used though not in the above list.
For value received, hereby sell, assign and transfer unto
---------
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OR ASSIGNEE
--------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE
OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Shares of the capital stock represented by the
- --------------------------------
within Certificate, and do hereby irrevocably constitute and appoint
- ------------------------------------------------------------------------------
Attorney to transfer the said stock on the books of the within-named Company
with full power of substitution in the premises.
Dated,
--------------
X
-------------------------------------
X
-------------------------------------
NOTICE: THE SIGNATURE(S) TO THIS
ASSIGNMENT MUST CORRESPOND WITH THE
NAME(S) AS WRITTEN UPON THE FACE OF
THE CERTIFICATE IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT
OR ANY CHANGE WHATEVER.
Signature(s) Guaranteed
By
--------------------------------------
THE SIGNATURE(S) SHOULD BE GUARANTEED BY
AN ELIGIBLE GUARANTOR INSTITUTION (BANKS,
STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS
AND CREDIT UNIONS WITH MEMBERSHIP IN AN
APPROVED SIGNATURE GUARANTEE MEDALLION
PROGRAM), PURSUANT TO S.E.C. RULE 17Ad-15
EXHIBIT 5.1
------------
[LETTERHEAD OF PP&L RESOURCES, INC.]
September 24, 1999
PP&L Resources, Inc.
Two North Ninth Street
Allentown, Pennsylvania 18101
Ladies and Gentlemen:
I am Senior Counsel of PP&L, Inc., the principal
subsidiary of PP&L Resources, Inc., a corporation organized under
the laws of the Commonwealth of Pennsylvania ("the Guarantor").
I have acted as counsel to the Guarantor in connection with
(a) the proposed issuance and sale from time to time of
up to $1,200,000,000 in aggregate principal amount of
securities (the "Securities"), including (i) shares of
the Guarantor's Common Stock, par value $.01 per share
("Common Stock"); (ii) contracts to purchase shares of
Common Stock ("Stock Purchase Contracts"); and (iii)
Stock Purchase Units, each representing either (A) a
Stock Purchase Contract, or (B) a Stock Purchase
Contract and debt or preferred securities pledged to
secure holders' obligations to purchase Common Stock
under the Stock Purchase Contracts ("Stock Purchase
Units"); and
(b) guarantees (the "Securities Guarantees") by the
Guarantor as to (i) payment of principal, interest and
premium, if any, on unsecured and unsubordinated debt
securities ("Debt Securities") of PP&L Capital Funding,
Inc. (the "Company"), a corporation organized under the
laws of the State of Delaware (the "Guarantees") and
unsecured subordinated debt securities ("Subordinated
Debt Securities") of the Company (the "Subordinated
Guarantees") and (ii) the obligations of PP&L Capital
Funding Trust I, a statutory business trust formed
under the laws of the State of Delaware (the "Trust"),
under the preferred trust securities ("Preferred Trust
Securities") of the Trust (the "Preferred Securities
Guarantees");
such Debt Securities and such Guarantees to be issued under an
Indenture, as amended and supplemented by one or more supplements
(the "Indenture"), of the Company and the Guarantor to The Chase
Manhattan Bank, as trustee (the "Trustee"); such Subordinated
Debt Securities and such Subordinated Guarantees to be issued
under a Subordinated Indenture (the "Subordinated Indenture") of
<PAGE>
the Company and the Guarantor to The Chase Manhattan Bank, as
trustee (the "Subordinated Indenture Trustee"); such Stock
Purchase Contracts and Stock Purchase Units to be issued under a
Purchase Contract Agreement (the "Purchase Contract Agreement")
of the Guarantor to The Chase Manhattan Bank, as Purchase
Contract Agent and trustee (the "Purchase Contract Agent"); such
Preferred Trust Securities to be issued under an Amended and
Restated Trust Agreement of the Trust and The Chase Manhattan
Bank, as Property Trustee (the "Trust Agreement"); and such
Preferred Securities Guarantees to be issued under a Trust
Securities Guarantee Agreement of the Guarantor to The Chase
Manhattan Bank (the "Trust Securities Guarantee Agreement"), all
as contemplated by the Registration Statement on Form S-3 (the
"Registration Statement") proposed to be filed by the Company,
the Guarantor and the Trust with the Securities and Exchange
Commission on or about the date hereof for the registration of
the Securities and the Securities Guarantees under the Securities
Act of 1933, as amended (the "Act"), and for the qualification
under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), of the Indenture, the Subordinated Indenture,
the Trust Agreement, the Trust Securities Guarantee Agreement
and, to the extent necessary, the Purchase Contract Agreement.
I have examined such corporate records, certificates
and other documents and have reviewed such questions of law as I
have considered necessary or appropriate for purposes of the
opinions expressed below. Based on such examination and review,
I advise you as follows:
I am of the opinion that the Guarantor is a corporation
duly organized and validly existing under the laws of the
Commonwealth of Pennsylvania.
I am also of the opinion that the Common Stock will be
validly issued, fully paid and non-assessable when:
(a) the Registration Statement, as it may be amended,
shall have become effective under the Act;
(b) the Guarantor's Board of Directors, or a duly
authorized committee thereof (the "Guarantor Board"), shall
have taken such action as may be necessary to authorize the
Guarantor's issuance and sale of the Common Stock on the
terms set forth in or contemplated by the Registration
Statement, as it may be amended, and any prospectus
supplement relating to Common Stock; and
2
<PAGE>
(c) the Common Stock shall have been issued and
delivered for the consideration contemplated by, and
otherwise in conformity with, the acts and proceedings
referred to above.
I am also of the opinion that all requisite action
necessary to make any Stock Purchase Contracts and Stock Purchase
Units valid, legal and binding obligations of the Guarantor will
have been taken when:
(a) the Registration Statement, as it may be amended,
shall have become effective under the Act and the Purchase
Contract Agreement shall have become qualified under the
Trust Indenture Act, to the extent required;
(b) the Guarantor Board shall have taken such action as
may be necessary to authorize the Guarantor's issuance and
sale thereof on the terms set forth in or contemplated by
the Registration Statement, as it may be amended, and any
prospectus supplement relating to the Stock Purchase
Contracts and Stock Purchase Units;
(c) the Purchase Contract Agreement shall have been
duly executed and delivered by the Company and the Purchase
Contract Agent in accordance with the foregoing corporate
authorizations; and
(d) such Stock Purchase Contracts or Stock Purchase
Units, as the case may be, shall have been issued, sold and
delivered in accordance with the terms and provisions
thereof and for the consideration contemplated by, and
otherwise in conformity with, the acts, documents and
proceedings referred to above.
I am further of the opinion that the Securities
Guarantees will be legal, valid and binding obligations of the
Guarantor, each enforceable in accordance with its terms,
subject, as to enforcement, to laws relating to or affecting
generally the enforcement of creditors' rights, including,
without limitation, bankruptcy and insolvency laws, and to
general principles of equity, when:
(a) the Registration Statement, as it may be amended,
shall have become effective under the Act, and the Indenture, the
Subordinated Indenture and the Trust Securities Guarantee
Agreement shall have become qualified under the Trust Indenture
Act;
(b) the Guarantor Board shall have taken such action as
may be necessary to authorize the Guarantor's issuance of the
Securities Guarantees on the terms set forth in or contemplated
by the Registration Statement, as it may be amended, and any
3
<PAGE>
prospectus supplement relating to the Indenture, the Subordinated
Indenture and the Trust Securities Guarantee;
(c) the Subordinated Indenture and the Purchase
Contract Agreement shall have been duly executed and delivered by
the Guarantor and the trustees thereunder in accordance with the
foregoing authorizations;
(d) the Guarantor shall have duly executed and
delivered the Securities Guarantees in accordance with the
applicable provisions of the Indenture, the Subordinated
Indenture and the Trust Securities Guarantee and all necessary
corporate authorization;
(e) the Trustee shall have duly authenticated the Debt
Securities and the Guarantees endorsed thereon, in accordance
with the applicable provisions of the Indenture; the Subordinated
Indenture Trustee shall have duly authenticated the Subordinated
Debt Securities and the Subordinated Guarantees endorsed thereon,
in accordance with the applicable provisions of the Subordinated
Indenture, and the Trust shall have duly issued the Preferred
Trust Securities in accordance with the Trust Agreement; and
(f) the Securities Guarantees shall have been issued
and delivered all as contemplated by, and in conformity with, the
acts, proceedings and documents referred to above.
I have also reviewed those statements of law and legal
conclusions stated to be made upon my authority in the
Registration Statement and the documents incorporated by
reference therein, and, in my opinion, such statements are
correct.
The foregoing opinions do not pass upon the validity of
the Securities or the matter of compliance with "blue sky" laws
or similar laws relating to the sale or distribution of the
Securities by any underwriters or agents.
I hereby authorize and consent to the use of this
opinion as Exhibit 5.1 to the Registration Statement, and
authorize and consent to the references to me under the captions
"Experts" and "Validity of the Securities and the Securities
Guarantees" in the Registration Statement and in the prospectus
constituting a part thereof.
I am a member of the Pennsylvania Bar and do not hold
myself out as an expert on the laws of any other state. As to
all matters governed by the laws of the State of New York, I have
relied upon the opinion of even date herewith of Thelen Reid &
Priest LLP, counsel for the Company, the Guarantor and the Trust,
which is being filed as Exhibit 5.2 to the Registration
Statement.
4
<PAGE>
In rendering their opinions, Simpson Thacher & Bartlett
and Thelen Reid & Priest LLP may rely upon this opinion as to
matters of Pennsylvania law addressed herein as if this opinion
were addressed directly to them. Except as aforesaid, without my
prior written consent, this opinion may not be furnished or
quoted to, or relied upon by, any other person or entity for any
purpose.
Very truly yours,
/s/ Michael A. McGrail
Michael A. McGrail
5
EXHIBIT 5.2
------------
THELEN REID & PRIEST LLP
ATTORNEYS AT LAW
40 WEST 57TH STREET
NEW YORK, NY 10019-4097
New York, New York
September 24, 1999
PP&L Resources, Inc.
Two North Ninth Street
Allentown, Pennsylvania 18101
PP&L Capital Funding, Inc.
Two North Ninth Street
Allentown, Pennsylvania 18101
Ladies and Gentlemen:
We are acting as special counsel for PP&L Resources,
Inc., a corporation organized under the laws of the Commonwealth
of Pennsylvania (the "Guarantor") and PP&L Capital Funding, Inc.,
a corporation organized under the laws of the State of Delaware
(the "Company"), in connection with
(a) the proposed issuance and sale from time to time of
up to $1,200,000,000 in aggregate principal amount of
securities (the "Securities") including (i) shares of
the Guarantor's Common Stock, par value $.01 per share
("Common Stock"); (ii) contracts to purchase shares of
Common Stock ("Stock Purchase Contracts"); (iii) Stock
Purchase Units, each representing either (A) a Stock
Purchase Contract, or (B) a Stock Purchase Contract and
debt or preferred securities pledged to secure holders'
obligations to purchase Common Stock under the Stock
Purchase Contracts ("Stock Purchase Units"); (iv)
unsecured and unsubordinated debt securities of the
Company ("Debt Securities"); (v) unsecured subordinated
debt securities of the Company ("Subordinated Debt
Securities"); and (vi) preferred trust securities
("Preferred Trust Securities") of PP&L Capital Funding
Trust I, a statutory business trust formed under the
laws of the State of Delaware (the "Trust"); and
(b) guarantees (the "Securities Guarantees") by the
Guarantor as to (i) payment of principal, interest and
premium, if any, on the Debt Securities (the
"Guarantees") and the Subordinated Debt Securities (the
<PAGE>
"Subordinated Guarantees") and (ii) the Trust's
obligations under the Preferred Trust Securities (the
"Preferred Securities Guarantee");
such Debt Securities and such Guarantees to be issued under an
Indenture, as amended and supplemented by one or more supplements
(the "Indenture"), of the Company and the Guarantor to The Chase
Manhattan Bank, as trustee (the "Trustee"); such Subordinated
Debt Securities and such Subordinated Guarantees to be issued
under a Subordinated Indenture (the "Subordinated Indenture"), of
the Company and the Guarantor to The Chase Manhattan Bank, as
trustee (the "Subordinated Indenture Trustee"); such Stock
Purchase Contracts and Stock Purchase Units to be issued under a
Purchase Contract Agreement (the "Purchase Contract Agreement"),
of the Guarantor to The Chase Manhattan Bank, as Purchase
Contract Agent and trustee (the "Purchase Contract Agent"); such
Preferred Trust Securities to be issued under an Amended and
Restated Trust Agreement of the Trust and The Chase Manhattan
Bank, as Property Trustee (the "Trust Agreement"); and such
Preferred Securities Guarantee to be issued under a Trust
Securities Guarantee Agreement of the Guarantor to The Chase
Manhattan Bank (the "Trust Securities Guarantee Agreement"), all
as contemplated by the Registration Statement on Form S-3 (the
"Registration Statement") proposed to be filed by the Company,
the Guarantor and the Trust with the Securities and Exchange
Commission on or about the date hereof for the registration of
the Securities and the Securities Guarantees under the Securities
Act of 1933, as amended (the "Act"), and for the qualification
under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") of the Indenture, the Subordinated Indenture, the
Trust Agreement, the Trust Securities Guarantee Agreement and, to
the extent necessary, the Purchase Contract Agreement.
We have examined such corporate records, certificates
and other documents and have reviewed such questions of law as we
have considered necessary or appropriate for purposes of the
opinions expressed below. Based on such examination and review,
we advise you as follows:
We are of the opinion that the Company is a corporation
duly organized and validly existing under the laws of the State
of Delaware.
We are further of the opinion that the Debt Securities
will be legal, valid and binding obligations of the Company and
that the Guarantees will be legal, valid and binding obligations
of the Guarantor, each enforceable in accordance with its terms,
subject, as to enforcement, to laws relating to or affecting
generally the enforcement of creditors' rights, including,
without limitation, bankruptcy and insolvency laws, and to
general principles of equity, when:
(a) the Registration Statement, as it may be amended,
shall have become effective under the Act, and the Indenture
shall have become qualified under the Trust Indenture Act;
2
<PAGE>
(b) the Company's Board of Directors, or a duly
authorized committee thereof ("Company Board"), shall have
taken such action as may be necessary to authorize the
Company's issuance and sale of the Debt Securities and the
Guarantor's Board of Directors, or a duly authorized
committee thereof ("Guarantor Board") shall have taken such
action as may be necessary to authorize the Guarantees, in
each case on the terms set forth in or contemplated by the
Registration Statement, as it may be amended, and any
prospectus supplements relating to the Debt Securities, and
to authorize the proper officers of the Company and
Guarantor to take such other action as may be necessary in
connection with the consummation of the issuance and sale of
the Debt Securities from time to time;
(c) the Company shall have duly established the terms
of the Debt Securities and executed the Debt Securities in
accordance with the applicable provisions of the Indenture
and all necessary corporate authorizations;
(d) the Guarantor shall have duly executed and
delivered the Guarantees in accordance with the applicable
provisions of the Indenture and all necessary corporate
authorizations;
(e) the Trustee shall have duly authenticated the Debt
Securities and the Guarantees endorsed thereon, in
accordance with the applicable provisions of the Indenture;
and
(f) the Company shall have issued, sold and delivered
the Debt Securities to the purchasers thereof against
payment therefor, all as contemplated by, and in conformity
with, the acts, proceedings and documents referred to above.
We are further of the opinion that the Subordinated
Debt Securities will be legal, valid and binding obligations of
the Company and that the Subordinated Guarantees will be legal,
valid and binding obligations of the Guarantor, each enforceable
in accordance with its terms, subject, as to enforcement, to laws
relating to or affecting generally the enforcement of creditors'
rights, including, without limitation, bankruptcy and insolvency
laws, and to general principles of equity, when:
(a) the Registration Statement, as it may be amended,
shall have become effective under the Act, and the
Subordinated Indenture shall have become qualified under the
Trust Indenture Act;
(b) the Company Board shall have taken such action as
may be necessary to authorize the Company's issuance and
sale of the Subordinated Debt Securities, and the Guarantor
Board shall have taken such action as may be necessary to
authorize the Subordinated Guarantees, in each case on the
terms set forth in or contemplated by the Registration
Statement, as it may be amended, and any prospectus
supplement relating to the Subordinated Debt Securities, and
to authorize the proper officers of the Company and
3
<PAGE>
Guarantor to take such other action as may be necessary in
connection with the consummation of the issuance and sale of
the Subordinated Debt Securities from time to time;
(c) the Subordinated Indenture shall have been duly
executed and delivered by the Company and the Subordinated
Indenture Trustee in accordance with the foregoing corporate
authorizations;
(d) the Company shall have duly established the terms
of the Subordinated Debt Securities and executed the
Subordinated Debt Securities in accordance with the
applicable provisions of the Subordinated Indenture and all
necessary corporate authorizations;
(e) the Guarantor shall have duly executed and
delivered the Subordinated Guarantees in accordance with the
applicable provisions of the Subordinated Indenture and all
necessary corporate authorizations;
(f) the Subordinated Indenture Trustee shall have duly
authenticated the Subordinated Debt Securities and the
Subordinated Guarantees endorsed thereon, in accordance with
the applicable provisions of the Subordinated Indenture; and
(g) the Company shall have issued, sold and delivered
the Subordinated Debt Securities to the purchasers thereof
against payment therefor, all as contemplated by, and in
conformity with, the acts, proceedings and documents
referred to above.
We are further of the opinion that the Preferred
Securities Guarantee will be a legal, valid and binding
obligation of the Guarantor, enforceable in accordance with its
terms, subject, as to enforcement, to laws relating to or
affecting generally the enforcement of creditors' rights,
including, without limitation, bankruptcy and insolvency laws,
and to general principles of equity, when:
(a) the Registration Statement, as it may be amended,
shall have become effective under the Act, and the Trust
Securities Guarantee Agreement shall have become qualified
under the Trust Indenture Act;
(b) the Guarantor Board shall have taken such action
as may be necessary to authorize the Preferred Securities
Guarantee, on the terms set forth in or contemplated by the
Registration Statement, as it may be amended, and any
prospectus supplement relating to the Preferred Trust
Securities;
(c) the Guarantor shall have duly executed and
delivered the Preferred Securities Guarantee in accordance
with the applicable provisions of the Trust Securities
Guarantee Agreement and all necessary corporate
authorizations; and
4
<PAGE>
(d) the Trust shall have issued, sold and delivered
the Preferred Trust Securities to the purchasers thereof
against payment therefor, on the terms set forth in or
contemplated by the Registration Statement, as it may be
amended, and any prospectus supplement relating to the
Preferred Trust Securities.
We are further of the opinion that all requisite action
necessary to make any Stock Purchase Contracts and Stock Purchase
Units valid, legal and binding obligations of the Guarantor, each
enforceable in accordance with its terms (subject, as to
enforcement, to laws relating to or affecting generally the
enforcement of creditors' rights, including, without limitation,
bankruptcy and insolvency laws, and to general principles of
equity), and to make any Common Stock issued upon the settlement
thereof validly issued, fully paid and nonassessable, will have
been taken when:
(a) the Registration Statement, as it may be amended,
shall have become effective under the Act and the Purchase
Contract Agreement shall have become qualified under the
Trust Indenture Act, to the extent required;
(b) the Guarantor Board shall have taken such action
as may be necessary to authorize the Guarantor's issuance
and sale of such securities on the terms set forth in or
contemplated by the Registration Statement, as it may be
amended, and any prospectus supplement relating to the Stock
Purchase Contracts and Stock Purchase Units;
(c) the Purchase Contract Agreement shall have been
duly executed and delivered by the Company and the Purchase
Contract Agent in accordance with the foregoing corporate
authorizations;
(d) such Stock Purchase Contracts or Stock Purchase
Units, as the case may be shall have been issued, sold and
delivered in accordance with the terms and provisions
thereof and for the consideration contemplated by, and
otherwise in conformity with, the acts, documents and
proceedings referred to above; and
(e) the Common Stock shall have been issued and
delivered for the consideration contemplated by, and
otherwise in conformity with, the acts, proceedings and
documents referred to above.
The foregoing opinions do not pass upon the matter of
compliance with "blue sky" laws or similar laws relating to the
sale or distribution of the Securities by any underwriters or
agents.
We hereby authorize and consent to the use of this
opinion as Exhibit 5.2 to the Registration Statement, and
authorize and consent to the reference to our firm in the
Registration Statement and in the prospectus constituting a part
thereof.
5
<PAGE>
We are members of the New York Bar and do not hold
ourselves out as experts on the laws of any other state. As to
matters of Delaware law we have examined or caused to be examined
such documents and satisfied ourselves as to such matters of law
as we have deemed necessary in order to render this opinion. As
to all matters governed by the laws of the Commonwealth of
Pennsylvania, we have relied upon the opinion of even date
herewith of Michael A. McGrail, Senior Counsel of PP&L, Inc., the
Guarantor's principal subsidiary, which is being filed as Exhibit
5.1 to the Registration Statement.
In rendering his opinion, Mr. McGrail may rely upon
this opinion as to all matters of New York law addressed herein
as if this opinion were addressed directly to him. Except as
aforesaid, without our prior written consent, this opinion may
not be furnished or quoted to, or relied upon by, any other
person or entity for any purpose.
Very truly yours,
/s/ Thelen Reid & Priest LLP
THELEN REID & PRIEST LLP
6
EXHIBIT 5.3
-----------
[LETTERHEAD OF SIMPSON THACHER & BARTLETT]
September 24, 1999
PP&L Resources, Inc.
Two North Ninth Street
Allentown, Pennsylvania 18101
Ladies and Gentlemen:
We have acted as counsel to PP&L Resources, Inc., a Pennsylvania
corporation (the "Company"), in connection with the Registration Statement on
Form S-3 (the "Registration Statement") filed by the Company with the Securities
and Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Act"), relating to the issuance by the Company of, among other
securities, shares of its Common stock par value $.01 per share (together with
any additional shares of such stock that may be issued by the Company pursuant
to Rule 462(b) (as prescribed by the Commission pursuant to the Act) in
connection with the offering described in the Registration Statement, the
"Shares").
We have examined the Registration Statement and a form of the share
certificate which has been filed with the Commission as an exhibit to the
Registration Statement. We also have examined the originals, or duplicates or
certified or conformed copies, of such records, agreements, instruments and
other documents and have made such other and further investigations as we have
<PAGE>
-2-
deemed relevant and necessary in connection with the opinions expressed herein.
As to questions of fact material to this opinion, we have relied upon
certificates of public officials and of officers and representatives of the
Company.
In such examination, we have assumed the genuineness of all signatures, the
legal capacity of natural persons, the authenticity of all documents submitted
to us as originals, the conformity to original documents of all documents
submitted to us as duplicates or certified or conformed copies, and the
authenticity of the originals of such latter documents.
Based upon the foregoing, and subject to the qualifications and limitations
stated herein, we are of the opinion that (1) when the Board of Directors of the
Company (the "Board") has taken all necessary corporate action to authorize and
approve the issuance of the Shares and (2) upon payment and delivery in
accordance with the applicable definitive underwriting agreement approved by the
Board and upon compliance with any applicable regulatory requirements, the
Shares will be validly issued, fully paid and nonassessable.
Insofar as the opinion expressed herein relates to or is dependent upon
matters governed by the laws of the Commonwealth of Pennsylvania, we have relied
upon the opinion of Michael A. McGrail dated the date hereof.
<PAGE>
-3-
We are members of the Bar of the State of New York and we do not express
any opinion herein concerning any law other than the law of the State of New
York and, to the extent set forth herein, the law of the Commonwealth of
Pennsylvania.
We hereby consent to the filing of this opinion letter as Exhibit 5 to the
Registration Statement and to the use of our name under the caption "Validity of
the Securities and the Securities Guarantees" in the Prospectus included in the
Registration Statement.
Very truly yours,
/s/ Simpson Thacher & Bartlett
SIMPSON THACHER & BARTLETT
EXHIBIT 5.4
------------
[Letterhead of Richards, Layton & Finger, P.A.]
September 24, 1999
PP&L Capital Funding Trust I
c/o PP&L Resources, Inc.
Two North Ninth Street
Allentown, Pennsylvania 18101
Re: PP&L Capital Funding Trust I
----------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for PP&L Resources, Inc., a
Pennsylvania corporation (the "Company"), and PP&L Capital Funding Trust I, a
Delaware business trust (the "Trust"), in connection with the matters set forth
herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of September 21,
1999 (the "Certificate"), as filed in the office of the Secretary of State of
the State of Delaware (the "Secretary of State") on September 21, 1999;
(b) The Trust Agreement of the Trust, dated as of September 21, 1999,
among the Company and the trustees of the Trust named therein;
(c) A form of Amended and Restated Trust Agreement of the Trust
(including Exhibits A, B and C thereto) (the "Trust Agreement"), to be entered
into among the Company, as depositor, the trustees of the Trust named therein,
and the holders, from time to time, of undivided beneficial interests in the
assets of the Trust, attached as an exhibit to the Registration Statement (as
defined below);
<PAGE>
(d) The Registration Statement on Form S-3 (the "Registration
Statement"), including a prospectus ("Prospectus"), relating to the Preferred
Trust Securities of the Trust representing undivided beneficial interests in the
assets of the Trust (each, a "Preferred Security" and collectively, the
"Preferred Securities"), as proposed to be filed with the Securities and
Exchange Commission on or about September 24, 1999; and
(e) A Certificate of Good Standing for the Trust, dated September 24,
1999, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (e) above. In particular, we
have not reviewed any document (other than the documents listed in paragraphs
(a) through (e) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our own
but rather have relied solely upon the foregoing documents, the statements and
information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust
Agreement and the Certificate are in full force and effect and have not been
amended, (ii) except to the extent provided in paragraph 1 below, the due
creation or due organization or due formation, as the case may be, and valid
existence in good standing of each party to the documents examined by us under
the laws of the jurisdiction governing its creation, organization or formation,
(iii) the legal capacity of natural persons who are parties to the documents
examined by us, (iv) that each of the parties to the documents examined by us
has the power and authority to execute and deliver, and to perform its
obligations under, such documents, (v) the due authorization, execution and
delivery by all parties thereto of all documents examined by us, (vi) the
receipt by each Person to whom a Preferred Security is to be issued by the Trust
(collectively, the "Preferred Security Holders") of a Preferred Trust Securities
Certificate for such Preferred Security and the payment for the Preferred
Security acquired by it, in accordance with the Trust Agreement and the
Registration Statement, and (vii) that the Preferred Securities are issued and
sold to the Preferred Security Holders in accordance with the Trust Agreement
2
<PAGE>
and the Registration Statement. We have not participated in the preparation of
the Registration Statement and assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the Trust,
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition, we
hereby consent to the use of our name under the heading "Validity of the
Securities and the Securities Guarantees" in the Prospectus. In giving the
foregoing consents, we do not thereby admit that we come within the category of
Persons whose consent is required under Section 7 of the Securities Act of 1933,
as amended, or the rules and regulations of the Securities and Exchange
Commission thereunder. Except as stated above, without our prior written
consent, this opinion may not be furnished or quoted to, or relied upon by, any
other Person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger, P.A.
BJK/MKS/JRS
3
EXHIBIT 12.2
PP&L RESOURCES, INC. AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
AND PREFERRED DIVIDENDS
(Millions of Dollars)
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C>
12 Months
Ended 12 Months Ended
June 30, December 31,
-------------- ----------------------------------------------------------
1999 1998(a) 1997 1996 1995 1994
-------------- ------- ---- ---- ---- ----
Fixed charges, as defined:
Interest on long-term debt................. $210 $203 $196 $207 $213 $214
Interest on short-term debt
and other interest....................... 40 33 26 17 18 18
Amortization of debt discount,
expense and premium - net................ 3 2 2 2 2 2
Interest on capital lease obligations
Charged to expense.................. 9 8 9 13 15 12
Capitalized......................... 1 2 2 2 2 1
Estimated interest component of
operating rentals........................ 18 18 15 8 8 6
Proportionate share of fixed charges
of 50-percent-or-less-owned
persons.................................. 1 1 1 1 1 1
---------- ------- --------- -------- -------- --------
Total fixed charges................. $282 $267 $251 $250 $259 $254
========== ======= ========= ======== ======== ========
Dividends on preferred and
preference stock (b)....................... 31 31 33 47 28 49
---------- ------- --------- -------- -------- --------
Combined fixed charges and
dividends on preferred and
preference stock.................... $313 $298 $284 $297 $287 $303
========== ======= ========= ======== ======== ========
Earnings, as defined:
Net income................................. $408 $379 $296 $329 $323 $216
Preferred and Preference Stock
Dividend Requirements.................... 25 25 24 28 28 28
Less undistributed income of less
than 50-percent-owned persons............ - - - - - -
---------- ------- --------- -------- -------- --------
433 404 320 357 351 244
Add (Deduct:)
Income taxes............................... 251 259 238 253 286 180
Amortization of capitalized interest
on capital leases........................ 1 2 2 4 5 9
Total fixed charges as above
(excluding capitalized interest
on capital lease obligations)............ 281 265 248 248 257 253
---------- ------- --------- -------- -------- --------
Total earnings...................... $966 $930 $808 $862 $899 $686
========== ======= ========= ======== ======== ========
Ratio of earnings to fixed charges........... 3.09 3.12 2.85 2.90 3.13 2.26
========== ======= ========= ======== ======== ========
</TABLE>
(a) Excluding extraordinary items.
(b) Represents the pretax earnings which would be required to cover preferred
and preference stock dividends.
EXHIBIT 23.5
------------
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated February 1, 1999 relating to the
consolidated financial statements and financial statement schedules, which
appears in PP&L Resources, Inc.'s Annual Report on Form 10-K for the year ended
December 31, 1998. We also consent to the reference to us under the heading
"EXPERTS" in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
PRICEWATERHOUSECOOPERS LLP
Philadelphia, Pennsylvania
September 27, 1999
EXHIBIT 24.1
------------
PP&L RESOURCES, INC.
OMNIBUS SHELF REGISTRATION STATEMENT
POWER OF ATTORNEY
-----------------
The undersigned directors of PP&L Resources, Inc., a Pennsylvania
corporation, hereby appoint William F. Hecht, John R. Biggar and Robert J. Grey
their true and lawful attorney, and each of them their true and lawful attorney,
with power to act without the other and with full power of substitution and
resubstitution, to execute for the undersigned directors and in their names to
file with the Securities and Exchange Commission, Washington, D.C., under
provisions of the Securities Act of 1933, as amended, a registration statement
or registration statements for the registration under provisions of the
Securities Act of 1933, as amended, and any other rules, regulations or
requirements of the Securities and Exchange Commission in respect thereof, of
not in excess of $1.2 billion of securities of PP&L Resources, Inc. or its
subsidiaries, which securities may include guaranties by PP&L Resources, Inc. of
the securities of such subsidiaries, and any and all amendments thereto, whether
said amendments add to, delete from or otherwise alter any such registration
statement or registration statements, or add or withdraw any exhibits or
schedules to be filed therewith and any and all instruments in connection
therewith. The undersigned hereby grant to said attorneys and each of them full
power and authority to do and perform in the name of and on behalf of the
undersigned, and in any and all capabilities, any act and thing whatsoever
required or necessary to be done in and about the premises, as fully and to all
intents and purposes as the undersigned might do, hereby ratifying and approving
the acts of said attorneys and each of them.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands and seals
this 27th day of August, 1999.
/s/ Frederick M. Bernthal /s/ Stuart Heydt
- ---------------------------L.S. ---------------------------L.S.
Frederick M. Bernthal Stuart Heydt
/s/ E. Allen Deaver /s/ Frank A. Long
- ---------------------------L.S. ---------------------------L.S.
E. Allen Deaver Frank A. Long
/s/ William J. Flood /s/ Norman Robertson
- ---------------------------L.S. ---------------------------L.S.
William J. Flood Norman Robertson
/s/ Elmer D. Gates /s/ Marilyn Ware
- ---------------------------L.S. ---------------------------L.S.
Elmer D. Gates Marilyn Ware
/s/ William F. Hecht
- ---------------------------L.S.
William F. Hecht
2
EXHIBIT 25.1
------------
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2)
----
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
--------------------------------------------
PP&L RESOURCES, INC.
PP&L CAPITAL FUNDING , INC.
(Exact name of obligor as specified in its charter)
PENNSYLVANIA 23-2758192
DELAWARE 23-2926644
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
TWO NORTH NINTH STREET 18101-1179
ALLENTOWN, PENNSYLVANIA (Zip Code)
(Address of principal executive offices)
-------------------------------------------------------------------
GUARANTEES OF PP&L CAPITAL FUNDING, INC. DEBT SECURITIES
DEBT SECURITIES
(Title of the indenture securities)
---------------------------------------------------------------
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany,
New York 12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligors.
If an obligor is an affiliate of the trustee, describe each such
affiliation.
None.
2
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 15th day of September, 1999.
THE CHASE MANHATTAN BANK
By /s/ F. Springer
-------------------------------
/s/ F. Springer
Assistant Vice President
3
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business June 30, 1999,
in accordance with a call made by the Federal
Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
DOLLAR AMOUNTS
ASSETS IN MILLIONS
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ..........................................$ 13,119
Interest-bearing balances .................................. 6,761
Securities: ....................................................
Held to maturity securities...................................... 892
Available for sale securities.................................... 42,965
Federal funds sold and securities purchased under
agreements to resell ....................................... 32,277
Loans and lease financing receivables:
Loans and leases, net of unearned income $130,602
Less: Allowance for loan and lease losses 2,551
Less: Allocated transfer risk reserve..... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ..................................... 128,051
Trading Assets .................................................. 41,426
Premises and fixed assets (including capitalized
leases)..................................................... 3,190
Other real estate owned ......................................... 28
Investments in unconsolidated subsidiaries and
associated companies........................................ 182
Customers' liability to this bank on acceptances
outstanding ................................................ 901
Intangible assets ............................................... 2,010
Other assets .................................................... 14,567
------
TOTAL ASSETS .................................................... $286,369
=========
4
<PAGE>
LIABILITIES
Deposits
In domestic offices ........................................ $101,979
Noninterest-bearing ........................$ 42,241
Interest-bearing ........................... 59,738
------
In foreign offices, Edge and Agreement
subsidiaries and IBF's .................................... 76,395
Noninterest-bearing ........................................ $ 4,645
Interest-bearing ........................................... 71,750
Federal funds purchased and securities sold under
agreements to repurchase ....................................... 36,604
Demand notes issued to the U.S. Treasury ........................ 1,001
Trading liabilities ............................................. 30,287
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less .............. 3,606
With a remaining maturity of more than one year
through three years.................................. 14
With a remaining maturity of more than three years........ 91
Bank's liability on acceptances executed and outstanding 901
Subordinated notes and debentures ............................... 5,427
Other liabilities ............................................... 11,247
TOTAL LIABILITIES ............................................... 267,552
-------
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock .................................................... 1,211
Surplus (exclude all surplus related to preferred stock)... 11,016
Undivided profits and capital reserves .......................... 7,317
Net unrealized holding gains (losses)
on available-for-sale securities ................................ (743)
Accumulated net gains (losses) on cash flow hedges............... 0
Cumulative foreign currency translation adjustments ............. 16
TOTAL EQUITY CAPITAL ............................................ 18,817
------
TOTAL LIABILITIES AND EQUITY CAPITAL ............................ $286,369
==========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
WILLIAM B. HARRISON, JR. ) DIRECTORS
FRANK A. BENNACK, JR. )
5
EXHIBIT 25.2
------------
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2)
---
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
--------------------------------------------
PP&L RESOURCES, INC.
PP&L CAPITAL FUNDING , INC.
(Exact name of obligor as specified in its charter)
PENNSYLVANIA 23-2758192
DELAWARE 23-2926644
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
TWO NORTH NINTH STREET 18101-1179
ALLENTOWN, PENNSYLVANIA (Zip Code)
(Address of principal executive offices)
-------------------------------------------------------------------
GUARANTEES OF PP&L CAPITAL FUNDING, INC. SUBORDINATED DEBT SECURITIES
SUBORDINATED DEBT SECURITIES
(Title of the indenture securities)
-------------------------------------------------------------------
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany,
New York 12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligors.
If an obligor is an affiliate of the trustee, describe each such
affiliation.
None.
2
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 15th day of September, 1999.
THE CHASE MANHATTAN BANK
By /s/ F. Springer
-------------------------------
/s/ F. Springer
Assistant Vice President
3
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business June 30, 1999,
in accordance with a call made by the Federal
Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
DOLLAR AMOUNTS
ASSETS IN MILLIONS
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ..........................................$ 13,119
Interest-bearing balances .................................. 6,761
Securities: ....................................................
Held to maturity securities...................................... 892
Available for sale securities.................................... 42,965
Federal funds sold and securities purchased under
agreements to resell ....................................... 32,277
Loans and lease financing receivables:
Loans and leases, net of unearned income $130,602
Less: Allowance for loan and lease losses 2,551
Less: Allocated transfer risk reserve..... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ..................................... 128,051
Trading Assets .................................................. 41,426
Premises and fixed assets (including capitalized
leases)..................................................... 3,190
Other real estate owned ......................................... 28
Investments in unconsolidated subsidiaries and
associated companies........................................ 182
Customers' liability to this bank on acceptances
outstanding ................................................ 901
Intangible assets ............................................... 2,010
Other assets .................................................... 14,567
------
TOTAL ASSETS .................................................... $286,369
=========
4
<PAGE>
LIABILITIES
Deposits
In domestic offices ........................................ $101,979
Noninterest-bearing ........................$ 42,241
Interest-bearing ........................... 59,738
------
In foreign offices, Edge and Agreement
subsidiaries and IBF's .................................... 76,395
Noninterest-bearing ........................................ $ 4,645
Interest-bearing ........................................... 71,750
Federal funds purchased and securities sold under
agreements to repurchase ....................................... 36,604
Demand notes issued to the U.S. Treasury ........................ 1,001
Trading liabilities ............................................. 30,287
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less .............. 3,606
With a remaining maturity of more than one year
through three years.................................. 14
With a remaining maturity of more than three years........ 91
Bank's liability on acceptances executed and outstanding 901
Subordinated notes and debentures ............................... 5,427
Other liabilities ............................................... 11,247
TOTAL LIABILITIES ............................................... 267,552
-------
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock .................................................... 1,211
Surplus (exclude all surplus related to preferred stock)... 11,016
Undivided profits and capital reserves .......................... 7,317
Net unrealized holding gains (losses)
on available-for-sale securities ................................ (743)
Accumulated net gains (losses) on cash flow hedges............... 0
Cumulative foreign currency translation adjustments ............. 16
TOTAL EQUITY CAPITAL ............................................ 18,817
------
TOTAL LIABILITIES AND EQUITY CAPITAL ............................ $286,369
==========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
WILLIAM B. HARRISON, JR. ) DIRECTORS
FRANK A. BENNACK, JR. )
5
EXHIBIT 25.3
------------
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2)
----
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
--------------------------------------------
PP&L CAPITAL FUNDING TRUST I
(Exact name of obligor as specified in its charter)
DELAWARE APPLIED FOR
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
TWO NORTH NINTH STREET 18101-1179
ALLENTOWN, PENNSYLVANIA (Zip Code)
(Address of principal executive offices)
-------------------------------------------------------------------
PREFERRED TRUST SECURITIES
(Title of the indenture securities)
--------------------------------------------------------------
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany,
New York 12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligors.
If an obligor is an affiliate of the trustee, describe each such
affiliation.
None.
2
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 15th day of September, 1999.
THE CHASE MANHATTAN BANK
By /s/ F. Springer
-------------------------------
/s/ F. Springer
Assistant Vice President
3
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business June 30, 1999,
in accordance with a call made by the Federal
Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
DOLLAR AMOUNTS
ASSETS IN MILLIONS
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ..........................................$ 13,119
Interest-bearing balances .................................. 6,761
Securities: ....................................................
Held to maturity securities...................................... 892
Available for sale securities.................................... 42,965
Federal funds sold and securities purchased under
agreements to resell ....................................... 32,277
Loans and lease financing receivables:
Loans and leases, net of unearned income $130,602
Less: Allowance for loan and lease losses 2,551
Less: Allocated transfer risk reserve..... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ..................................... 128,051
Trading Assets .................................................. 41,426
Premises and fixed assets (including capitalized
leases)..................................................... 3,190
Other real estate owned ......................................... 28
Investments in unconsolidated subsidiaries and
associated companies........................................ 182
Customers' liability to this bank on acceptances
outstanding ................................................ 901
Intangible assets ............................................... 2,010
Other assets .................................................... 14,567
------
TOTAL ASSETS .................................................... $286,369
=========
4
<PAGE>
LIABILITIES
Deposits
In domestic offices ........................................ $101,979
Noninterest-bearing ........................$ 42,241
Interest-bearing ........................... 59,738
------
In foreign offices, Edge and Agreement
subsidiaries and IBF's .................................... 76,395
Noninterest-bearing ........................................ $ 4,645
Interest-bearing ............................ 71,750
Federal funds purchased and securities sold under
agreements to repurchase ....................................... 36,604
Demand notes issued to the U.S. Treasury ........................ 1,001
Trading liabilities ............................................. 30,287
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less .............. 3,606
With a remaining maturity of more than one year
through three years.................................. 14
With a remaining maturity of more than three years........ 91
Bank's liability on acceptances executed and outstanding 901
Subordinated notes and debentures ............................... 5,427
Other liabilities ............................................... 11,247
TOTAL LIABILITIES ............................................... 267,552
-------
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock .................................................... 1,211
Surplus (exclude all surplus related to preferred stock)... 11,016
Undivided profits and capital reserves .......................... 7,317
Net unrealized holding gains (losses)
on available-for-sale securities ................................ (743)
Accumulated net gains (losses) on cash flow hedges............... 0
Cumulative foreign currency translation adjustments ............. 16
TOTAL EQUITY CAPITAL ............................................ 18,817
------
TOTAL LIABILITIES AND EQUITY CAPITAL ............................ $286,369
==========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
WILLIAM B. HARRISON, JR. ) DIRECTORS
FRANK A. BENNACK, JR. )
5
EXHIBIT 25.4
------------
------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2)
---
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
--------------------------------------------
PP&L RESOURCES, INC.
(Exact name of obligor as specified in its charter)
PENNSYLVANIA 23-2758192
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
TWO NORTH NINTH STREET 18101-1179
ALLENTOWN, PENNSYLVANIA (Zip Code)
(Address of principal executive offices)
-------------------------------------------------------------------
GUARANTEES OF PP&L CAPITAL FUNDING
TRUST I PREFERRED TRUST SECURITIES
(Title of the indenture securities)
----------------------------------------------------------------
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany,
New York 12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligors.
If an obligor is an affiliate of the trustee, describe each such
affiliation.
None.
2
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 15th day of September, 1999.
THE CHASE MANHATTAN BANK
By /s/ F. Springer
-------------------------------
/s/ F. Springer
Assistant Vice President
3
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business June 30, 1999,
in accordance with a call made by the Federal
Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
DOLLAR AMOUNTS
ASSETS IN MILLIONS
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ..........................................$ 13,119
Interest-bearing balances .................................. 6,761
Securities: ....................................................
Held to maturity securities...................................... 892
Available for sale securities.................................... 42,965
Federal funds sold and securities purchased under
agreements to resell ....................................... 32,277
Loans and lease financing receivables:
Loans and leases, net of unearned income $130,602
Less: Allowance for loan and lease losses 2,551
Less: Allocated transfer risk reserve..... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ..................................... 128,051
Trading Assets .................................................. 41,426
Premises and fixed assets (including capitalized
leases)..................................................... 3,190
Other real estate owned ......................................... 28
Investments in unconsolidated subsidiaries and
associated companies........................................ 182
Customers' liability to this bank on acceptances
outstanding ................................................ 901
Intangible assets ............................................... 2,010
Other assets .................................................... 14,567
------
TOTAL ASSETS .................................................... $286,369
=========
<PAGE>
LIABILITIES
Deposits
In domestic offices ........................................ $101,979
Noninterest-bearing ........................$ 42,241
Interest-bearing ........................... 59,738
------
In foreign offices, Edge and Agreement
subsidiaries and IBF's .................................... 76,395
Noninterest-bearing ........................................ $ 4,645
Interest-bearing ............................ 71,750
Federal funds purchased and securities sold under
agreements to repurchase ....................................... 36,604
Demand notes issued to the U.S. Treasury ........................ 1,001
Trading liabilities ............................................. 30,287
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less .............. 3,606
With a remaining maturity of more than one year
through three years.................................. 14
With a remaining maturity of more than three years........ 91
Bank's liability on acceptances executed and outstanding 901
Subordinated notes and debentures ............................... 5,427
Other liabilities ............................................... 11,247
TOTAL LIABILITIES ............................................... 267,552
-------
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock .................................................... 1,211
Surplus (exclude all surplus related to preferred stock)... 11,016
Undivided profits and capital reserves .......................... 7,317
Net unrealized holding gains (losses)
on available-for-sale securities ................................ (743)
Accumulated net gains (losses) on cash flow hedges............... 0
Cumulative foreign currency translation adjustments ............. 16
TOTAL EQUITY CAPITAL ............................................ 18,817
------
TOTAL LIABILITIES AND EQUITY CAPITAL ............................ $286,369
==========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
WILLIAM B. HARRISON, JR. ) DIRECTORS
FRANK A. BENNACK, JR. )
5
EXHIBIT 25.5
------------
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2)
---
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
--------------------------------------------
PP&L RESOURCES, INC.
(Exact name of obligor as specified in its charter)
PENNSYLVANIA 23-2758192
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
TWO NORTH NINTH STREET 18101-1179
ALLENTOWN, PENNSYLVANIA (Zip Code)
(Address of principal executive offices)
-------------------------------------------------------------------
STOCK PURCHASE CONTRACTS
STOCK PURCHASE UNITS
(Title of the indenture securities)
-----------------------------------------------------------------
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany,
New York 12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligors.
If an obligor is an affiliate of the trustee, describe each such
affiliation.
None.
2
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 15th day of September, 1999.
THE CHASE MANHATTAN BANK
By /s/ F. Springer
-------------------------------
/s/ F. Springer
Assistant Vice President
3
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business June 30, 1999,
in accordance with a call made by the Federal
Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
DOLLAR AMOUNTS
ASSETS IN MILLIONS
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ..........................................$ 13,119
Interest-bearing balances .................................. 6,761
Securities: ....................................................
Held to maturity securities...................................... 892
Available for sale securities.................................... 42,965
Federal funds sold and securities purchased under
agreements to resell ....................................... 32,277
Loans and lease financing receivables:
Loans and leases, net of unearned income $130,602
Less: Allowance for loan and lease losses 2,551
Less: Allocated transfer risk reserve..... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ..................................... 128,051
Trading Assets .................................................. 41,426
Premises and fixed assets (including capitalized
leases)..................................................... 3,190
Other real estate owned ......................................... 28
Investments in unconsolidated subsidiaries and
associated companies........................................ 182
Customers' liability to this bank on acceptances
outstanding ................................................ 901
Intangible assets ............................................... 2,010
Other assets .................................................... 14,567
------
TOTAL ASSETS .................................................... $286,369
=========
4
<PAGE>
LIABILITIES
Deposits
In domestic offices ........................................ $101,979
Noninterest-bearing ...................... $ 42,241
Interest-bearing ............................ 59,738
------
In foreign offices, Edge and Agreement
subsidiaries and IBF's .................................... 76,395
Noninterest-bearing ........................................ $ 4,645
Interest-bearing ............................ 71,750
Federal funds purchased and securities sold under
agreements to repurchase ....................................... 36,604
Demand notes issued to the U.S. Treasury ........................ 1,001
Trading liabilities ............................................. 30,287
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less .............. 3,606
With a remaining maturity of more than one year
through three years.................................. 14
With a remaining maturity of more than three years........ 91
Bank's liability on acceptances executed and outstanding 901
Subordinated notes and debentures ............................... 5,427
Other liabilities ............................................... 11,247
TOTAL LIABILITIES ............................................... 267,552
-------
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock .................................................... 1,211
Surplus (exclude all surplus related to preferred stock)... 11,016
Undivided profits and capital reserves .......................... 7,317
Net unrealized holding gains (losses)
on available-for-sale securities ................................ (743)
Accumulated net gains (losses) on cash flow hedges............... 0
Cumulative foreign currency translation adjustments ............. 16
TOTAL EQUITY CAPITAL ............................................ 18,817
------
TOTAL LIABILITIES AND EQUITY CAPITAL ............................ $286,369
==========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
WILLIAM B. HARRISON, JR. ) DIRECTORS
FRANK A. BENNACK, JR. )
5
