EXHIBIT 4(A)
COUNTERPART ___
OF 20 COUNTERPARTS
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CAROLINA POWER & LIGHT COMPANY
TO
THE BANK OF NEW YORK,
TRUSTEE
------------
INDENTURE
(FOR SENIOR NOTES)
DATED AS OF MARCH 1, 1999
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TABLE OF CONTENTS*
PARTIES
RECITAL OF THE COMPANY
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.............................................................1
Section 102. Compliance Certificates and Opinions....................................8
Section 103. Form of Documents Delivered to Trustee..................................9
Section 104. Acts of Holders........................................................10
Section 105. Notices, Etc. to Trustee and Company...................................11
Section 106. Notice to Holders of Notes; Waiver.....................................12
Section 107. Conflict with Trust Indenture Act......................................13
Section 108. Effect of Headings and Table of Contents...............................13
Section 109. Successors and Assigns.................................................13
Section 110. Separability Clause....................................................13
Section 111. Benefits of Indenture..................................................13
Section 112. Governing Law..........................................................13
Section 113. Legal Holidays.........................................................13
ARTICLE II
NOTE FORMS
Section 201. Forms Generally........................................................14
Section 202. Form of Trustee's Certificate of Authentication........................14
ARTICLE III
THE NOTES
Section 301. Amount Unlimited; Issuable in Series...................................15
Section 302. Denominations..........................................................18
Section 303. Execution, Authentication, Delivery and Dating.........................18
Section 304. Temporary Notes........................................................21
Section 305. Registration, Registration of Transfer and Exchange....................22
Section 306. Mutilated, Destroyed, Lost and Stolen Notes............................23
Section 307. Payment of Interest; Interest Rights Preserved.........................24
Section 308. Persons Deemed Owners..................................................25
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Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
Section 309. Cancellation by Note Registrar.........................................25
Section 310. Computation of Interest................................................26
Section 311. Payment to be in Proper Currency.......................................26
Section 312. Payments on Senior Note First Mortgage Bonds...........................26
ARTICLE IV
SENIOR NOTE FIRST MORTGAGE BONDS
Section 401. Acceptance of Senior Note First Mortgage Bonds; Registration and
Ownership of Senior Note First Mortgage Bonds.........................26
Section 402. Terms of Senior Note First Mortgage Bonds..............................27
Section 403. Senior Note First Mortgage Bonds as Security for Notes.................27
Section 404. Fair Value Certificate.................................................28
Section 405. Senior Note First Mortgage Bonds Held by the Trustee...................29
Section 406. No Transfer of Senior Note First Mortgage Bonds; Exception.............29
Section 407. Delivery to the Company of all Senior Note First Mortgage Bonds........29
Section 408. Further Assurances.....................................................29
Section 409. Exchange and Surrender of Senior Note First Mortgage Bonds.............30
ARTICLE V
REDEMPTION OF NOTES
Section 501. Applicability of Article...............................................30
Section 502. Election to Redeem; Notice to Trustee..................................31
Section 503. Selection of Notes to be Redeemed......................................31
Section 504. Notice of Redemption...................................................31
Section 505. Notes Payable on Redemption Date.......................................33
Section 506. Notes Redeemed in Part.................................................33
ARTICLE VI
SINKING FUNDS
Section 601. Applicability of Article...............................................33
Section 602. Satisfaction of Sinking Fund Payments with Notes.......................34
Section 603. Redemption of Notes for Sinking Fund...................................34
ARTICLE VII
COVENANTS
Section 701. Payment of Principal, Premium and Interest.............................35
Section 702. Maintenance of Office or Agency........................................35
Section 703. Money for Notes Payments to be Held in Trust...........................36
Section 704. Corporate Existence....................................................37
Section 705. Maintenance of Properties..............................................37
Section 706. Annual Officer's Certificate as to Compliance..........................37
(ii)
Section 707. Waiver of Certain Covenants............................................38
Section 708. Recording, Filing, etc.; Opinions of Counsel...........................38
ARTICLE VIII
SATISFACTION AND DISCHARGE
Section 801. Satisfaction and Discharge of Notes....................................39
Section 802. Satisfaction and Discharge of Indenture................................42
Section 803. Application of Trust Money.............................................42
ARTICLE IX
EVENTS OF DEFAULT; REMEDIES
Section 901. Events of Default......................................................43
Section 902. Acceleration of Maturity; Rescission and Annulment.....................44
Section 903. Collection of Indebtedness and Suits for Enforcement by Trustee........46
Section 904. Trustee May File Proofs of Claim.......................................46
Section 905. Trustee May Enforce Claims Without Possession of Notes.................47
Section 906. Application of Money Collected.........................................47
Section 907. Limitation on Suits....................................................48
Section 908. Unconditional Right of Holders to Receive Principal, Premium and
Interest..............................................................48
Section 909. Restoration of Rights and Remedies.....................................49
Section 910. Rights and Remedies Cumulative.........................................49
Section 911. Delay or Omission Not Waiver...........................................49
Section 912. Control by Holders of Notes............................................49
Section 913. Waiver of Past Defaults................................................50
Section 914. Undertaking for Costs..................................................50
Section 915. Waiver of Stay or Extension Laws.......................................50
Section 916. Default Under the First Mortgage.......................................51
ARTICLE X
THE TRUSTEE
Section 1001. Certain Duties and Responsibilities...................................51
Section 1002. Notice of Defaults....................................................52
Section 1003. Certain Rights of Trustee.............................................52
Section 1004. Not Responsible for Recitals or Issuance of Notes.....................53
Section 1005. May Hold Notes........................................................53
Section 1006. Money Held in Trust...................................................54
Section 1007. Compensation and Reimbursement........................................54
Section 1008. Disqualification; Conflicting Interests...............................55
Section 1009. Corporate Trustee Required; Eligibility...............................55
Section 1010. Resignation and Removal; Appointment of Successor.....................55
Section 1011. Acceptance of Appointment by Successor................................57
(iii)
Section 1012. Merger, Conversion, Consolidation or Succession to Business...........58
Section 1013. Preferential Collection of Claims Against Company.....................59
Section 1014. Co-trustees and Separate Trustees.....................................59
Section 1015. Appointment of Authenticating Agent...................................60
ARTICLE XI
HOLDERS'LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 1101. Lists of Holders......................................................62
Section 1102. Reports by Trustee and Company........................................63
ARTICLE XII
CONSOLIDATION, MERGER, CONVEYANCE OR OTHER TRANSFER
Section 1201. Company May Consolidate, Etc., Only on Certain Terms..................63
Section 1202. Successor Corporation Substituted.....................................64
ARTICLE XIII
SUPPLEMENTAL INDENTURES
Section 1301. Supplemental Indentures Without Consent of Holders....................64
Section 1302. Supplemental Indentures With Consent of Holders.......................66
Section 1303. Execution of Supplemental Indentures..................................68
Section 1304. Effect of Supplemental Indentures.....................................68
Section 1305. Conformity With Trust Indenture Act...................................68
Section 1306. Reference in Notes to Supplemental Indentures.........................68
Section 1307. Modification Without Supplemental Indenture...........................68
ARTICLE XIV
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
Section 1401. Purposes for Which Meetings May be Called.............................69
Section 1402. Call, Notice and Place of Meetings....................................69
Section 1403. Persons Entitled to Vote at Meetings..................................70
Section 1404. Quorum; Action........................................................70
Section 1405. Attendance at Meetings; Determination of Voting Rights; Conduct
and Adjournment of Meetings...........................................71
Section 1406. Counting Votes and Recording Action of Meetings.......................72
Section 1407. Action Without Meeting................................................72
ARTICLE XV
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 1501. Liability Solely Corporate............................................72
(iv)
TESTIMONIUM.........................................................................73
SIGNATURE AND SEALS.................................................................74
(v)
CAROLINA POWER & LIGHT COMPANY
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF MARCH 1, 1999
TRUST INDENTURE ACT SECTION INDENTURE SECTION
ss.310 (a)(1) .................................................. 1009
(a)(2) .................................................. 1009
(a)(3) .................................................. 1014
(a)(4) .................................................. Not Applicable
(b) .................................................. 1008
1010
ss.311 (a) .................................................. 1013
(b) .................................................. 1013
(c) .................................................. 1013
ss.312 (a) .................................................. 1101
(b) .................................................. 1101
(c) .................................................. 1101
ss.313 (a) .................................................. 1102
(b) .................................................. 1102
(c) .................................................. 1102
(d) .................................................. 1102
ss.314 (a) .................................................. 1102
(a)(4) .................................................. 706
(b) .................................................. 708
(c)(1) .................................................. 102
(c)(2) .................................................. 102
(c)(3) .................................................. Not Applicable
(d) .................................................. 102
404
(e) .................................................. 102
ss.315 (a) .................................................. 1001
1003
(b) .................................................. 1002
(c) .................................................. 1001
(d) .................................................. 1001
(e) .................................................. 914
ss.316 (a) .................................................. 912
.................................................. 913
(a)(1)(A)................................................ 902
912
(a)(1)(B)................................................ 913
(a)(2) .................................................. Not Applicable
(b) .................................................. 908
ss.317 (a)(1) .................................................. 903
(a)(2) .................................................. 904
(b) .................................................. 703
ss.318 (a) .................................................. 107
(vi)
INDENTURE, dated as of March 1, 1999, between CAROLINA POWER &
LIGHT COMPANY, a corporation duly organized and existing under the laws of the
State of North Carolina (herein called the "Company"), having its principal
office at 411 Fayetteville Street, Raleigh, North Carolina 27601-1748, and THE
BANK OF NEW YORK, a banking corporation of the State of New York, having its
principal office at 101 Barclay Street, New York, New York, 10286, as Trustee
(herein called the "Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its senior notes
(herein called the "Notes"), in an unlimited aggregate principal amount, to be
issued in one or more series as contemplated herein; and all acts necessary to
make this Indenture a valid agreement of the Company have been performed.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires, capitalized terms used herein
shall have the meanings assigned to them in Article One of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Notes by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Notes or of series
thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all terms used herein without definition which are defined in
the Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with respect
to any computation required or permitted
hereunder shall mean such accounting principles as are generally accepted
in the United States at the date of such computation or, at the election
of the Company from time to time, at the date of the execution and
delivery of this Indenture; provided, however, that in determining
generally accepted accounting principles applicable to the Company, the
Company shall, to the extent required, conform to any order, rule or
regulation of any administrative agency, regulatory authority or other
governmental body having jurisdiction over the Company; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Ten, are defined in
that Article.
"ACT", when used with respect to any Holder of a Note, has the
meaning specified in Section 104.
"AFFILIATE" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"CONTROL" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "CONTROLLING" and "CONTROLLED" have meanings correlative to the
foregoing.
"AUTHENTICATING AGENT" means any Person (other than the Company
or an Affiliate of the Company) authorized by the Trustee pursuant to Section
1015 to act on behalf of the Trustee to authenticate one or more series of Notes
or Tranche thereof.
"AUTHORIZED OFFICER" means the Chairman of the Board, the
President, any Vice President, the Treasurer or any other duly authorized
officer of the Company.
"BOARD OF DIRECTORS" means either the board of directors of the
Company or any committee thereof duly authorized to act or any director or
directors and/or officer or officers of the Company to whom that board or
committee shall have duly delegated its authority in respect of matters relating
to this Indenture.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"BUSINESS DAY", when used with respect to a Place of Payment or
any other particular location specified in the Notes or this Indenture, means
any day, other than a Saturday or Sunday, which is not a day on which banking
institutions or trust companies in such Place of Payment or other location are
generally authorized or required by law, regulation or executive order to remain
closed, except as may be otherwise specified as contemplated by Section 301.
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"CAPITALIZATION" means the total of all the following items
appearing on, or included in, the consolidated balance sheet of the Company: (i)
liabilities for indebtedness maturing more than twelve (12) months from the date
of determination; and (ii) common stock, preferred stock, premium on capital
stock, capital surplus, capital in excess of par value, and retained earnings
(however the foregoing may be designated), less, to the extent not otherwise
deducted, the cost of shares of capital stock of the Company held in its
treasury.
Subject to the foregoing, Capitalization shall be determined in
accordance with generally accepted accounting principles and practices
applicable to the type of business in which the Company is engaged and that are
approved by independent accountants regularly retained by the Company, and may
be determined as of a date not more than (sixty) 60 days prior to the happening
of an event for which such determination is being made.
"COMMISSION" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after the date of execution and delivery of this
Indenture such Commission is not existing and performing the duties now assigned
to it under the Trust Indenture Act, then the body, if any, performing such
duties at such time.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or
order signed in the name of the Company by an Authorized Officer and delivered
to the Trustee.
"CORPORATE TRUST OFFICE" means the office of the Trustee at which
at any particular time its corporate trust business shall be principally
administered, which office at the date of execution and delivery of this
Indenture is located at 101 Barclay Street, New York, New York, 10286.
"CORPORATION" means a corporation, association, company, limited
liability company, joint stock company or business trust.
"DEFAULTED INTEREST" has the meaning specified in Section 307.
"DEPOSITARY" means, with respect to Notes of any series issuable
in whole or in part in form of one or more Global Notes, a clearing agency
registered under the Exchange Act that is designated to act as Depositary for
such Notes as contemplated by Section 301.
"DISCOUNT NOTE" means any Note which provides for an amount less
than the principal amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 902. "INTEREST" with
respect to a Discount Note means interest, if any, borne by such Note at a
Stated Interest Rate.
"DOLLAR" or "$" means a dollar or other equivalent unit in such
coin or currency of the United States as at the time shall be legal tender for
the payment of public and private debts.
3
"ELIGIBLE OBLIGATIONS" means:
(a) with respect to Notes denominated in Dollars, Government
Obligations; or
(b) with respect to Notes denominated in a currency other than
Dollars or in a composite currency, such other obligations or instruments
as shall be specified with respect to such Notes, as contemplated by
Section 301.
"EVENT OF DEFAULT" has the meaning specified in Section 901.
"EXCHANGE ACT" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
"EXPERT" means any officer of the Company familiar with the terms
of the First Mortgage and this Indenture, any law firm, any investment banking
firm, any accounting firm, or any other Person, in each case that is appointed
by Company Request, is an expert in the applicable matter, and is satisfactory
in the reasonable judgment of the Trustee.
"FIRST MORTGAGE" means the Company's Mortgage and Deed of Trust,
dated as of May 1, 1940, to Irving Trust Company (now The Bank of New York) and
Frederick G. Herbst (Douglas J. MacInnes, successor), as trustees, as
supplemented and amended from time to time.
"FIRST MORTGAGE BONDS" means all first mortgage bonds issued by
the Company and outstanding under the First Mortgage, other than Senior Note
First Mortgage Bonds.
"GLOBAL NOTE" means a Note that evidences all or part of the
Notes of any series and bears such legend as may be specified as contemplated by
Section 301 for such Notes.
"GOVERNMENTAL AUTHORITY" means the government of the United
States or of any State or Territory thereof or of the District of Columbia or of
any county, municipality or other political subdivision of any thereof, or any
department, agency, authority or other instrumentality of any of the foregoing.
"GOVERNMENT OBLIGATIONS" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
entitled to the benefit of the full faith and credit thereof; and
(b) certificates, depositary receipts or other instruments which
evidence a direct ownership interest in obligations described in clause
(a) above or in any specific interest or principal payments due in
respect thereof; provided, however, that the custodian of such
obligations or specific interest or principal payments shall be a bank
or trust company (which may include the Trustee or any Paying Agent)
subject to Federal or state supervision or examination with a combined
capital and surplus of at least $100,000,000; and provided, further,
that except as may be otherwise required by law, such custodian shall be
obligated to pay to the holders of such certificates, depositary
4
receipts or other instruments the full amount received by such custodian
in respect of such obligations or specific payments and shall not be
permitted to make any deduction therefrom.
"HOLDER" means a Person in whose name a Note is registered in the
Note Register.
"INDENTURE" means this instrument as originally executed and
delivered and as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of particular series of Notes
established as contemplated by Section 301.
"INDEPENDENT" when used with respect to any specified Person
means such a Person who is in fact independent and selected by the Company and
approved by the Trustee in the exercise of reasonable care.
"INTEREST PAYMENT DATE", when used with respect to any Note,
means the Stated Maturity of an installment of interest on such Note.
"MATURITY", when used with respect to any Note, means the date on
which the principal of such Note or an installment of principal becomes due and
payable as provided in such Note or in this Indenture, whether at the Stated
Maturity, by declaration of acceleration, upon call for redemption or otherwise.
"MORTGAGE TRUSTEE" means the Corporate Trustee at the time under
the First Mortgage (as such term is defined in the First Mortgage).
"NET TANGIBLE ASSETS" means the amount shown as total assets on
the consolidated balance sheet of the Company, less the following: (i)
intangible assets including, but without limitation, such items as goodwill,
trademarks, trade names, patents, and unamortized debt discount and expense and
other regulatory assets carried as an asset on the Company's consolidated
balance sheet; and (ii) appropriate adjustments, if any, on account of minority
interests.
Net Tangible Assets shall be determined in accordance with
generally accepted accounting principles and practices applicable to the type of
business in which the Company is engaged and that are approved by the
independent accountants regularly retained by the Company, and may be determined
as of a date not more than (sixty) 60 days prior to the happening of the event
for which such determination is being made.
"NOTE REGISTER" and "NOTE REGISTRAR" have the respective meanings
specified in Section 305.
"NOTES" has the meaning stated in the first recital of this
Indenture and more particularly means any notes authenticated and delivered
under this Indenture.
5
"OFFICER'S CERTIFICATE" means a certificate signed by an
Authorized Officer and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who may
be counsel for the Company, or other counsel acceptable to the Trustee.
"OUTSTANDING", when used with respect to Notes, means, as of the
date of determination, all Notes theretofore authenticated and delivered under
this Indenture, except:
(a) Notes theretofore canceled by the Trustee or the Note
Registrar or delivered to the Trustee or the Note Registrar for
cancellation;
(b) Notes deemed to have been paid in accordance with Section
801; and
(c) Notes which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Notes have been authenticated and
delivered pursuant to this Indenture, other than any such Notes in
respect of which there shall have been presented to the Trustee proof
satisfactory to it and the Company that such Notes are held by a bona
fide purchaser or purchasers in whose hands such Notes are valid
obligations of the Company;
provided, however, that in determining whether or not the Holders of the
requisite principal amount of the Notes Outstanding under this Indenture, or the
Outstanding Notes of any series or Tranche, have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether or not
a quorum is present at a meeting of Holders of Notes,
(x) Notes owned by the Company or any other obligor upon
the Notes or any Affiliate of the Company or of such other
obligor (unless the Company, such Affiliate or such obligor owns
all Notes Outstanding under this Indenture, or all Outstanding
Notes of each such series and each such Tranche, as the case may
be, determined without regard to this clause (x)) shall be
disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice,
consent or waiver or upon any such determination as to the
presence of a quorum, only Notes which the Trustee knows to be so
owned shall be so disregarded; provided, however, that Notes so
owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Notes
and that the pledgee is not the Company or any other obligor upon
the Notes or any Affiliate of the Company or of such other
obligor; and
(y) the principal amount of a Discount Note that shall be
deemed to be Outstanding for such purposes shall be the amount of
the principal thereof that would be due and payable as of the
date of such determination upon a declaration of acceleration of
the Maturity thereof pursuant to Section 902;
6
provided, further, that, in the case of any Note the principal of which is
payable from time to time without presentment or surrender, the principal amount
of such Note that shall be deemed to be Outstanding at any time for all purposes
of this Indenture shall be the original principal amount thereof less the
aggregate amount of principal thereof theretofore paid.
"PAYING AGENT" means any Person, including the Company,
authorized by the Company to pay the principal of and premium, if any, or
interest, if any, on any Notes on behalf of the Company.
"PERIODIC OFFERING" means an offering of Notes of a series from
time to time any or all of the specific terms of which Notes, including without
limitation the rate or rates of interest, if any, thereon, the Stated Maturity
or Maturities thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Company or its agents upon the issuance of
such Notes.
"PERSON" means any individual, corporation, partnership, joint
venture, trust or unincorporated organization or any Governmental Authority.
"PLACE OF PAYMENT", when used with respect to the Notes of any
series, or Tranche thereof, means the place or places, specified as contemplated
by Section 301, at which, subject to Section 702, principal of and premium, if
any, and interest, if any, on the Notes of such series or Tranche are payable.
"PREDECESSOR NOTE" of any particular Note means every previous
Note evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Note shall be deemed (to the extent lawful)
to evidence the same debt as the mutilated, destroyed, lost or stolen Note.
"REDEMPTION DATE", when used with respect to any Note to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"REDEMPTION PRICE", when used with respect to any Note to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"REGULAR RECORD DATE" for the interest payable on any Interest
Payment Date on the Notes of any series means the date specified for that
purpose as contemplated by Section 301.
"RELEASE DATE" means the date as of which all First Mortgage
Bonds, other than First Mortgage Bonds which, at the time of determination, do
not in aggregate principal amount exceed the greater of five percent (5%) of Net
Tangible Assets or five percent (5%) of Capitalization, have been retired
through payment, redemption or otherwise (including those First Mortgage Bonds
the payment for which has been provided for in accordance with the First
Mortgage) at, before or after the maturity thereof, provided that no default or
Event of Default has occurred and, at the time of determination, is continuing.
"REQUIRED CURRENCY" has the meaning specified in Section 311.
7
"RESPONSIBLE OFFICER", when used with respect to the Trustee,
means any officer of the Trustee assigned by the Trustee to administer its
corporate trust matters.
"SENIOR NOTE FIRST MORTGAGE BONDS" shall mean any bonds issued by
the Company under the First Mortgage and delivered to the Trustee pursuant to
Section 401 hereof.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest
on the Notes of any series means a date fixed by the Trustee pursuant to Section
307.
"STATED INTEREST RATE" means a rate (whether fixed or variable)
at which an obligation by its terms is stated to bear interest. Any calculation
or other determination to be made under this Indenture by reference to the
Stated Interest Rate on a Note shall be made without regard to the effective
interest cost to the Company of such Note and without regard to the Stated
Interest Rate on, or the effective cost to the Company of, any other
indebtedness in respect of which the Company's obligations are evidenced or
secured in whole or in part by such Note.
"STATED MATURITY", when used with respect to any obligation or
any installment of principal thereof or interest thereon, means the date on
which the principal of such obligation or such installment of principal or
interest is stated to be due and payable (without regard to any provisions for
redemption, prepayment, acceleration, purchase or extension).
"TRANCHE" means a group of Notes which (a) are of the same series
and (b) have identical terms except as to principal amount.
"TRUST INDENTURE ACT" means, as of any time, the Trust Indenture
Act of 1939, or any successor statute, as in effect at such time.
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
with respect to one or more series of Notes pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall mean or include
each Person who is then a Trustee hereunder, and if at any time there is more
than one such Person, "Trustee" as used with respect to the Notes of any series
shall mean the Trustee with respect to Notes of that series.
"UNITED STATES" means the United States of America, its
Territories, its possessions and other areas subject to its political
jurisdiction.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided in this Indenture, upon
any application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the Trustee
an Officer's Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by
8
any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each Person signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such Person, such
Person has made such examination or investigation as is necessary to
enable such Person to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
Person, such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which such officer's certificate or opinion are
based are erroneous. Any such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Whenever, subsequent to the receipt by the Trustee of any Board
Resolution, Officer's Certificate, Opinion of Counsel or other document or
instrument, a clerical,
9
typographical or other inadvertent or unintentional error or omission shall be
discovered therein, a new document or instrument may be substituted therefor in
corrected form with the same force and effect as if originally filed in the
corrected form and, irrespective of the date or dates of the actual execution
and/or delivery thereof, such substitute document or instrument shall be deemed
to have been executed and/or delivered as of the date or dates required with
respect to the document or instrument for which it is substituted. Anything in
this Indenture to the contrary notwithstanding, if any such corrective document
or instrument indicates that action has been taken by or at the request of the
Company which could not have been taken had the original document or instrument
not contained such error or omission, the action so taken shall not be
invalidated or otherwise rendered ineffective but shall be and remain in full
force and effect, except to the extent that such action was a result of willful
misconduct or bad faith. Without limiting the generality of the foregoing, any
Notes issued under the authority of such defective document or instrument shall
nevertheless be the valid obligations of the Company entitled to the benefits of
this Indenture equally and ratably with all other Outstanding Notes, except as
aforesaid.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, election, waiver or other action provided by this Indenture to
be made, given or taken by Holders may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such
Holders in person or by an agent duly appointed in writing or,
alternatively, may be embodied in and evidenced by the record of Holders
voting in favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders duly called and held in accordance
with the provisions of Article Fourteen, or a combination of such
instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee and, where it
is hereby expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments and so voting at any such
meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a Note,
shall be sufficient for any purpose of this Indenture and (subject to
Section 1001) conclusive in favor of the Trustee and the Company, if made
in the manner provided in this Section. The record of any meeting of
Holders shall be proved in the manner provided in Section 1406.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof or may be proved in any other manner which the Trustee
and the Company deem sufficient. Where such execution is by a signer
acting in a capacity other than his individual capacity, such certificate
or affidavit shall also constitute sufficient proof of his authority.
10
(c) The principal amount (except as otherwise contemplated in
clause (y) of the proviso to the definition of Outstanding) and serial
numbers of Notes held by any Person, and the date of holding the same,
shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice,
consent, election, waiver or other Act of a Holder shall bind every
future Holder of the same Note and the Holder of every Note issued upon
the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by
the Trustee or the Company in reliance thereon, whether or not notation
of such action is made upon such Note.
(e) Until such time as written instruments shall have been
delivered to the Trustee with respect to the requisite percentage of
principal amount of Notes for the action contemplated by such
instruments, any such instrument executed and delivered by or on behalf
of a Holder may be revoked with respect to any or all of such Notes by
written notice by such Holder or any subsequent Holder, proven in the
manner in which such instrument was proven.
(f) Notes of any series, or any Tranche thereof, authenticated
and delivered after any Act of Holders may, and shall if required by the
Trustee, bear a notation in form approved by the Trustee as to any action
taken by such Act of Holders. If the Company shall so determine, new
Notes of any series, or any Tranche thereof, so modified as to conform,
in the opinion of the Trustee and the Company, to such action may be
prepared and executed by the Company and authenticated and delivered by
the Trustee in exchange for Outstanding Notes of such series or Tranche.
(g) If the Company shall solicit from Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act,
the Company may, at its option, fix in advance a record date for the
determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the
Company shall have no obligation to do so. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent,
waiver or other Act may be given before or after such record date, but
only the Holders of record at the close of business on the record date
shall be deemed to be Holders for the purposes of determining whether
Holders of the requisite proportion of the Outstanding Notes have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that purpose the
Outstanding Notes shall be computed as of such record date.
SECTION 105. NOTICES, ETC. TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent,
election, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with, the
Trustee by any Holder or by the Company, or the Company by the Trustee or by any
Holder, shall be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and delivered personally to an officer or
other
11
responsible employee of the addressee, or transmitted by facsimile transmission
or other direct written electronic means to such telephone number or other
electronic communications address as the parties hereto shall from time to time
designate, or transmitted by certified or registered mail, charges prepaid, to
the applicable address set opposite such party's name below or to such other
address as either party hereto may from time to time designate:
If to the Trustee, to:
The Bank of New York
101 Barclay Street -21W
New York, New York 10286
Attention: Corporate Trust Administration
Telephone: (212) 815-5359
Telecopy: (212) 815-5915
If to the Company, to:
Carolina Power & Light Company
411 Fayetteville Street
Raleigh, North Carolina 27601-1768
Attention: Mark F. Mulhern, Treasurer
Telephone: (919) 546-6373
Telecopy: (919) 546-7826
Any communication contemplated herein shall be deemed to have
been made, given, furnished and filed if personally delivered, on the date of
delivery, if transmitted by facsimile transmission or other direct written
electronic means, on the date of transmission, and if transmitted by certified
or registered mail, on the date of receipt.
SECTION 106. NOTICE TO HOLDERS OF NOTES; WAIVER.
Except as otherwise expressly provided herein, where this
Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given, and shall be deemed given, to Holders if in writing and
mailed, first-class postage prepaid, to each Holder affected by such event, at
the address of such Holder as it appears in the Note Register, not later than
the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice to
Holders by mail, then such notification as shall be made with the approval of
the Trustee shall constitute a sufficient notification for every purpose
hereunder. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders.
12
Any notice required by this Indenture may be waived in writing by
the Person entitled to receive such notice, either before or after the event
otherwise to be specified therein, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision of this Indenture limits, qualifies or conflicts
with another provision hereof which is required or deemed to be included in this
Indenture by, or is otherwise governed by, any of the provisions of the Trust
Indenture Act, such other provision shall control; and if any provision hereof
otherwise conflicts with the Trust Indenture Act, the Trust Indenture Act shall
control.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings in this Indenture and the Table
of Contents are for convenience only and shall not affect the construction
hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or the Notes, express or implied, shall
give to any Person, other than the parties hereto, their successors hereunder,
and the Holders, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Notes shall be governed by and construed
in accordance with the laws of the State of New York, except to the extent that
the law of any other jurisdiction shall be mandatorily applicable.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Note shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Notes
other than a provision in Notes of any series, or any
13
Tranche thereof, or in the indenture supplemental hereto, Board Resolution or
Officer's Certificate which establishes the terms of the Notes of such series or
Tranche, which specifically states that such provision shall apply in lieu of
this Section) payment of interest or principal and premium, if any, need not be
made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity, and, if such payment is made or duly provided for on such Business
Day, no interest shall accrue on the amount so payable for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be, to such Business Day.
ARTICLE II
NOTE FORMS
SECTION 201. FORMS GENERALLY.
The definitive Notes of each series shall be in substantially the
form or forms thereof established in the indenture supplemental hereto
establishing such series or in a Board Resolution establishing such series, or
in an Officer's Certificate pursuant to such supplemental indenture or Board
Resolution, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Notes, as evidenced by their execution
of the Notes. If the form or forms of Notes of any series are established in a
Board Resolution or in an Officer's Certificate pursuant to an indenture
supplemental hereto or a Board Resolution, such Board Resolution and Officer's
Certificate, if any, shall be delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 303 for the authentication
and delivery of such Notes.
Unless otherwise specified as contemplated by Sections 301 or
1301(g), the Notes of each series shall be issuable in registered form without
coupons. The definitive Notes shall be produced in such manner as shall be
determined by the officers executing such Notes, as evidenced by their execution
thereof.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be in
substantially the form set forth below:
14
This is one of the Notes of the series designated therein
referred to in the within-mentioned Indenture.
Dated: ______________
The Bank of New York,
as Trustee
By: _____________________________
Authorized Signatory
ARTICLE III
THE NOTES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Notes which may be
authenticated and delivered under this Indenture is unlimited.
The Notes may be issued in one or more series. Subject to the
last paragraph of this Section, prior to the authentication and delivery of
Notes of any series there shall be established by specification in a
supplemental indenture or in a Board Resolution, or in an Officer's Certificate
pursuant to a supplemental indenture or a Board Resolution:
(a) the title of the Notes of such series (which shall
distinguish the Notes of such series from Notes of all other series);
(b) any limit upon the aggregate principal amount of the Notes of
such series which may be authenticated and delivered under this Indenture
(except for Notes authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Notes of the series
pursuant to Section 304, 305, 306, 506 or 1306 and, except for any Notes
which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(c) the Person or Persons (without specific identification) to
whom interest on Notes of such series, or any Tranche thereof, shall be
payable on any Interest Payment Date, if other than the Persons in whose
names such Notes (or one or more Predecessor Notes) are registered at the
close of business on the Regular Record Date for such interest;
(d) the date or dates on which the principal of the Notes of such
series or any Tranche thereof, is payable or any formulary or other
method or other means by which such date or dates shall be determined, by
reference to an index or other fact or event
15
ascertainable outside of this Indenture or otherwise (without regard to
any provisions for redemption, prepayment, acceleration, purchase or
extension);
(e) the rate or rates at which the Notes of such series, or any
Tranche thereof, shall bear interest, if any (including the rate or rates
at which overdue principal shall bear interest, if different from the
rate or rates at which such Notes shall bear interest prior to Maturity,
and, if applicable, the rate or rates at which overdue premium or
interest shall bear interest, if any), or any formulary or other method
or other means by which such rate or rates shall be determined, by
reference to an index or other fact or event ascertainable outside of
this Indenture or otherwise; the date or dates from which such interest
shall accrue; the Interest Payment Dates on which such interest shall be
payable and the Regular Record Date, if any, for the interest payable on
such Notes on any Interest Payment Date; and the basis of computation of
interest, if other than as provided in Section 310;
(f) the place or places at which or methods by which (1) the
principal of and premium, if any, and interest, if any, on Notes of such
series, or any Tranche thereof, shall be payable, (2) registration of
transfer of Notes of such series, or any Tranche thereof, may be
effected, (3) exchanges of Notes of such series, or any Tranche thereof,
may be effected and (4) notices and demands to or upon the Company in
respect of the Notes of such series, or any Tranche thereof, and this
Indenture may be served; the Note Registrar for such series; and if such
is the case, that the principal of such Notes shall be payable without
presentment or surrender thereof;
(g) the period or periods within which, or the date or dates on
which, the price or prices at which and the terms and conditions upon
which the Notes of such series, or any Tranche thereof, may be redeemed,
in whole or in part, at the option of the Company and any restrictions on
such redemptions, including but not limited to a restriction on a partial
redemption by the Company of the Notes of any series, or any Tranche
thereof, resulting in delisting of such Notes from any national exchange;
(h) the obligation or obligations, if any, of the Company to
redeem or purchase the Notes of such series, or any Tranche thereof,
pursuant to any sinking fund or other mandatory redemption provisions or
at the option of a Holder thereof and the period or periods within which
or the date or dates on which, the price or prices at which and the terms
and conditions upon which such Notes shall be redeemed or purchased, in
whole or in part, pursuant to such obligation, and applicable exceptions
to the requirements of Section 504 in the case of mandatory redemption or
redemption at the option of the Holder;
(i) the denominations in which Notes of such series, or any
Tranche thereof, shall be issuable if other than denominations of $1,000
and any integral multiple thereof;
(j) the currency or currencies, including composite currencies,
in which payment of the principal of and premium, if any, and interest,
if any, on the securities Notes of such series, or any Tranche thereof,
shall be payable (if other than in Dollars);
16
(k) if the principal of or premium, if any, or interest, if any,
on the Notes of such series, or any Tranche thereof, are to be payable,
at the election of the Company or a Holder thereof, in a coin or currency
other than that in which the Notes are stated to be payable, the period
or periods within which and the terms and conditions upon which, such
election may be made;
(l) if the principal of or premium, if any, or interest, if any,
on the Notes of such series, or any Tranche thereof, are to be payable,
or are to be payable at the election of the Company or a Holder thereof,
in securities or other property, the type and amount of such securities
or other property, or the formulary or other method or other means by
which such amount shall be determined, and the period or periods within
which, and the terms and conditions upon which, any such election may be
made;
(m) if the amount payable in respect of principal of or premium,
if any, or interest, if any, on the Notes of such series, or any Tranche
thereof, may be determined with reference to an index or other fact or
event ascertainable outside this Indenture, the manner in which such
amounts shall be determined to the extent not established pursuant to
clause (e) of this paragraph;
(n) if other than the principal amount thereof, the portion of
the principal amount of Notes of such series, or any Tranche thereof,
which shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 902;
(o) any Events of Default, in addition to those specified in
Section 901, with respect to the Notes of such series, and any covenants
of the Company for the benefit of the Holders of the Notes of such
series, or any Tranche thereof, in addition to those set forth in Article
Seven;
(p) the terms, if any, pursuant to which the Notes of such
series, or any Tranche thereof, may be converted into or exchanged for
shares of capital stock or other Notes of the Company or any other
Person;
(q) the obligations or instruments, if any, which shall be
considered to be Eligible Obligations in respect of the Notes of such
series, or any Tranche thereof, denominated in a currency other than
Dollars or in a composite currency, and any additional or alternative
provisions for the reinstatement of the Company's indebtedness in respect
of such Notes after the satisfaction and discharge thereof as provided in
Section 801;
(r) if the Notes of such series, or any Tranche thereof, are to
be issued in global form, (i) any limitations on the rights of the Holder
or Holders of such Notes to transfer or exchange the same or to obtain
the registration of transfer thereof, (ii) any limitations on the rights
of the Holder or Holders thereof to obtain certificates therefor in
definitive form in lieu of temporary form and (iii) any and all other
matters incidental to such Notes;
17
(s) if the Notes of such series, or any Tranche thereof, are to
be issuable as bearer Notes, any and all matters incidental thereto which
are not specifically addressed in a supplemental indenture as
contemplated by clause (g) of Section 1301;
(t) to the extent not established pursuant to clause (r) of this
paragraph, any limitations on the rights of the Holders of the Notes of
such Series, or any Tranche thereof, to transfer or exchange such Notes
or to obtain the registration of transfer thereof; and if a service
charge will be made for the registration of transfer or exchange of Notes
of such series, or any Tranche thereof, the amount or terms thereof;
(u) any exceptions to Section 113, or variation in the definition
of Business Day, with respect to the Notes of such series, or any Tranche
thereof;
(v) if any Notes of the series are issued prior to the Release
Date, the designation of the series of Senior Note First Mortgage Bonds
to be delivered to the Trustee in connection with the issuance of such
series of Notes;
(w) any collateral security, assurance or guarantee for such
series of Notes (other than the Senior Note First Mortgage Bonds); and
(x) any other terms of the Notes of such series, or any Tranche
thereof, not inconsistent with the provisions of this Indenture.
With respect to Notes of a series subject to a Periodic Offering,
the indenture supplemental hereto or the Board Resolution which establishes such
series, or the Officer's Certificate pursuant to such supplemental indenture or
Board Resolution, as the case may be, may provide general terms or parameters
for Notes of such series and provide either that the specific terms of Notes of
such series, or any Tranche thereof, shall be specified in a Company Order or
that such terms shall be determined by the Company or its agents in accordance
with procedures specified in a Company Order as contemplated by clause (b) of
the third paragraph of Section 303.
SECTION 302. DENOMINATIONS.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Notes, or any Tranche thereof, the Notes of each series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Notes, or any Tranche thereof, the Notes shall be
executed on behalf of the Company by an Authorized Officer and may have the
corporate seal of the Company affixed thereto or reproduced thereon attested by
any other Authorized Officer. The signature of any or all of these officers on
the Notes may be manual or facsimile.
18
Notes bearing the manual or facsimile signatures of individuals
who were at the time of execution Authorized Officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Notes or did
not hold such offices at the date of such Notes.
The Trustee shall authenticate and deliver Notes of a series, for
original issue, at one time or from time to time in accordance with the Company
Order referred to below, upon receipt by the Trustee of:
(a) the instrument or instruments establishing the form or forms
and terms of such series, as provided in Sections 201 and 301;
(b) a Company Order requesting the authentication and delivery of
such Notes and, to the extent that the terms of such Notes shall not have
been established in an indenture supplemental hereto or in a Board
Resolution, or in an Officer's Certificate pursuant to a supplemental
indenture or Board Resolution, all as contemplated by Sections 201 and
301, either (i) establishing such terms or (ii) in the case of Notes of a
series subject to a Periodic Offering, specifying procedures, acceptable
to the Trustee, by which such terms are to be established (which
procedures may provide, to the extent acceptable to the Trustee, for
authentication and delivery pursuant to oral or electronic instructions
from the Company or any agent or agents thereof, which oral instructions
are to be promptly confirmed electronically or in writing), in either
case in accordance with the instrument or instruments delivered pursuant
to clause (a) above; the Notes of such series, executed on behalf of the
Company by an Authorized Officer;
(c) if prior to the Release Date, Senior Note First Mortgage
Bonds of a series conforming to the requirements of Sections 401 and 402
hereof;
(d) the Notes of such series, executed on behalf of the Company
by an Authorized Officer;
(e) an Opinion of Counsel to the effect that:
(i) the form or forms of such Notes have been duly
authorized by the Company and have been established in conformity
with the provisions of this Indenture;
(ii) the terms of such Notes have been duly authorized by
the Company and have been established in conformity with the
provisions of this Indenture; and
(iii) assuming authentication and delivery by the Trustee
and subject to any conditions specified in such Opinion of
Counsel, such Notes will have been duly issued under the
Indenture and will be legal, valid and binding obligations of the
Company enforceable in accordance with their terms, except as
limited by bankruptcy, insolvency or other laws affecting
mortgagees' and other creditors' rights and general equitable
principles;
19
(iv) if prior to the Release Date, the Senior Note First
Mortgage Bonds being delivered to the Trustee in connection with
the issuance of such Notes, assuming authentication by the
Mortgage Trustee in accordance with the First Mortgage and
delivery to the Trustee and subject to any conditions specified
in such Opinion of Counsel, will have been duly authorized by the
Company and duly issued under the First Mortgage and will
constitute the legal, valid and binding obligations of the
Company, enforceable in accordance with their terms, except as
limited by bankruptcy, insolvency or other laws affecting
mortgagees' and other creditors' rights and general equitable
principles, and such Senior Note First Mortgage Bonds are
entitled to the benefits of the security afforded by the First
Mortgage, and are secured equally and ratably with all other
bonds outstanding thereunder, except insofar as any sinking or
other fund may afford additional security for the bonds of any
particular series; provided, however, that certain remedies,
waivers and other provisions of the First Mortgage may not be
enforceable, but such unenforceability will not render the First
Mortgage invalid as a whole or affect the judicial enforcement of
(i) the obligation of the Company to repay the principal,
together with the interest thereon as provided in the Senior Note
First Mortgage Bonds or (ii) the right of the trustees under the
First Mortgage to exercise their right to foreclose under the
First Mortgage.
provided, however, that, with respect to Notes of a series subject to a Periodic
Offering, the Trustee shall be entitled to receive such Opinion of Counsel only
once at or prior to the time of the first authentication of such Notes (provided
that such Opinion of Counsel addresses the authentication and delivery of all
Notes of such series) and that in lieu of the opinions described in clauses (ii)
and (iii) above Counsel may opine that:
(x) when the terms of such Notes shall have been
established pursuant to a Company Order or Orders or pursuant to
such procedures (acceptable to the Trustee) as may be specified
from time to time by a Company Order or Orders, all as
contemplated by and in accordance with the instrument or
instruments delivered pursuant to clause (a) above, such terms
will have been duly authorized by the Company and will have been
established in conformity with the provisions of this Indenture;
and
(y) such Notes, when authenticated and delivered by the
Trustee in accordance with this Indenture and the Company Order
or Orders or specified procedures referred to in paragraph (x)
above and issued and delivered by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel,
will have been duly issued under this Indenture and will
constitute valid and legally binding obligations of the Company,
entitled to the benefits provided by the Indenture, and
enforceable in accordance with their terms, subject, as to
enforcement, to laws relating to or affecting generally the
enforcement of creditors' rights, including, without limitation,
bankruptcy and insolvency laws and to general principles of
equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law).
20
With respect to Notes of a series subject to a Periodic Offering,
the Trustee may conclusively rely, as to the authorization by the Company of any
of such Notes, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and other
documents delivered pursuant to Sections 201 and 301 and this Section, as
applicable, at or prior to the time of the first authentication of Notes of such
series unless and until such opinion or other documents have been superseded or
revoked or expire by their terms. In connection with the authentication and
delivery of Notes of a series subject to a Periodic Offering, the Trustee shall
be entitled to assume that the Company's instructions to authenticate and
deliver such Notes do not violate any rules, regulations or orders of any
Governmental Authority having jurisdiction over the Company.
If the form or terms of the Notes of any series have been
established by or pursuant to a Board Resolution or an Officer's Certificate as
permitted by Sections 201 or 301, the Trustee shall not be required to
authenticate such Notes if the issuance of such Notes pursuant to this Indenture
will materially or adversely affect the Trustee's own rights, duties or
immunities under the Notes and this Indenture or otherwise in a manner which is
not reasonably acceptable to the Trustee.
Unless otherwise specified as contemplated by Section 301 with
respect to any series of Notes, or any Tranche thereof, each Note shall be dated
the date of its authentication.
Unless otherwise specified as contemplated by Section 301 with
respect to any series of Notes, or any Tranche thereof, no Note shall be
entitled to any benefit under this Indenture or be valid or obligatory for any
purpose unless there appears on such Note a certificate of authentication
substantially in the form provided for herein executed by the Trustee or its
agent by manual signature, and such certificate upon any Note shall be
conclusive evidence, and the only evidence, that such Note has been duly
authenticated and delivered hereunder and is entitled to the benefits of this
Indenture. Notwithstanding the foregoing, if any Note shall have been
authenticated and delivered hereunder to the Company, or any Person acting on
its behalf, but shall never have been issued and sold by the Company, and the
Company shall deliver such Note to the Note Registrar for cancellation as
provided in Section 309 together with a written statement (which need not comply
with Section 102 and need not be accompanied by an Opinion of Counsel) stating
that such Note has never been issued and sold by the Company, for all purposes
of this Indenture such Note shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits hereof.
SECTION 304. TEMPORARY NOTES.
Pending the preparation of definitive Notes of any series, or any
Tranche thereof, the Company may execute, and upon Company Order the Trustee
shall authenticate and deliver, temporary Notes which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Notes in lieu of which they are
issued, with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Notes may determine, as evidenced by
their execution of such Notes; provided, however, that temporary Notes need not
recite specific redemption, sinking fund, conversion or exchange provisions.
21
Unless otherwise specified as contemplated by Section 301 with
respect to the Notes of any series, or any Tranche thereof, after the
preparation of definitive Notes of such series or Tranche, the temporary Notes
of such series or Tranche shall be exchangeable, without charge to the Holder
thereof, for definitive Notes of such series or Tranche, upon surrender of such
temporary Notes at the office or agency of the Company maintained pursuant to
Section 702 in a Place of Payment for such Notes. Upon such surrender of
temporary Notes, the Company shall, except as aforesaid, execute and the Trustee
shall authenticate and deliver in exchange therefor definitive Notes of the same
series and Tranche, of authorized denominations and of like tenor and aggregate
principal amount.
Until exchanged in full as hereinabove provided, temporary Notes
shall in all respects be entitled to the same benefits under this Indenture as
definitive Notes of the same series and Tranche and of like tenor authenticated
and delivered hereunder.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept in each office designated
pursuant to Section 702, with respect to the Notes of each series or any Tranche
thereof, a register (all registers kept in accordance with this Section being
collectively referred to as the "Note Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Notes of such series or Tranche and the registration of transfer
thereof. The Company shall designate one Person to maintain the Note Register
for the Notes of each series on a consolidated basis, and such Person is
referred to herein, with respect to such series, as the "Note Registrar."
Anything herein to the contrary notwithstanding, the Company may designate one
or more of its offices as an office in which a register with respect to the
Notes of one or more series, or any Tranche or Tranches thereof, shall be
maintained, and the Company may designate itself the Note Registrar with respect
to one or more of such series. The Note Register shall be open for inspection by
the Trustee and the Company at all reasonable times.
Except as otherwise specified as contemplated by Section 301 with
respect to the Notes of any series, or any Tranche thereof, upon surrender for
registration of transfer of any Note of such series or Tranche at the office or
agency of the Company maintained pursuant to Section 702 in a Place of Payment
for such series or Tranche, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Notes of the same series and Tranche, of authorized
denominations and of like tenor and aggregate principal amount.
Except as otherwise specified as contemplated by Section 301 with
respect to the Notes of any series, or any Tranche thereof, any Note of such
series or Tranche may be exchanged at the option of the Holder, for one or more
new Notes of the same series and Tranche, of authorized denominations and of
like tenor and aggregate principal amount, upon surrender of the Notes to be
exchanged at any such office or agency. Whenever any Notes are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Notes which the Holder making the exchange is entitled to receive.
22
All Notes delivered upon any registration of transfer or exchange
of Notes shall be valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company, the Trustee or the Note
Registrar) be duly endorsed or shall be accompanied by a written instrument of
transfer in form satisfactory to the Company, the Trustee or the Note Registrar,
as the case may be, duly executed by the Holder thereof or his attorney duly
authorized in writing.
Unless otherwise specified as contemplated by Section 301 with
respect to Notes of any series, or any Tranche thereof, no service charge shall
be made for any registration of transfer or exchange of Notes, but the Company
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Notes, other than exchanges pursuant to Section 304, 506 or 1306 not
involving any transfer.
The Company shall not be required to execute or to provide for
the registration of transfer of or the exchange of (a) Notes of any series, or
any Tranche thereof, during a period of 15 days immediately preceding the day of
the mailing of a notice of redemption of the Notes of such series or Tranche or
(b) any Note so selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN NOTES.
If any mutilated Note is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Note of the same series, and of like tenor and principal amount
and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a)
evidence to their satisfaction of the ownership of and the destruction, loss or
theft of any Note and (b) such security or indemnity as may be reasonably
required by them to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the Trustee that such Note is
held by a Person purporting to be the owner of such Note, the Company shall
execute and the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Note, a new Note of the same series and Tranche, and
of like tenor and principal amount and bearing a number not contemporaneously
outstanding.
Notwithstanding the foregoing, in case any such mutilated,
destroyed, lost or stolen Note has become or is about to become due and payable,
the Company in its discretion may, instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
reasonable expenses (including the fees and expenses of the Trustee) connected
therewith.
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Every new Note of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Note shall be at any time enforceable by anyone other than the
Holder of such new Note, and any such new Note shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Notes of such series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise specified as contemplated by Section 301 with
respect to the Notes of any series, or any Tranche thereof, interest on any Note
which is payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that Note (or one or more
Predecessor Notes) is registered at the close of business on the Regular Record
Date for such interest.
Any interest on any Note of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the related Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Notes of such series (or their
respective Predecessor Notes) are registered at the close of business on
a date (herein called a "Special Record Date") for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Note of such series and the date of
the proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense
of the Company, shall promptly cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Notes of such
series at the address of such Holder as it appears in the Note Register,
not less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall
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be paid to the Persons in whose names the Notes of such series (or their
respective Predecessor Notes) are registered at the close of business on
such Special Record Date.
(b) The Company may make payment of any Defaulted Interest on the
Notes of any series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Notes may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section
305, each Note delivered under this Indenture upon registration of transfer of
or in exchange for or in lieu of any other Note shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Note.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Note is registered as the absolute owner
of such Note for the purpose of receiving payment of principal of and premium,
if any, and (subject to Sections 305 and 307) interest, if any, on such Note and
for all other purposes whatsoever, whether or not such Note be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
SECTION 309. CANCELLATION BY NOTE REGISTRAR.
All Notes surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Note
Registrar, be delivered to the Note Registrar and, if not theretofore canceled,
shall be promptly canceled by the Note Registrar. The Company may at any time
deliver to the Note Registrar for cancellation any Notes previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever or which the Company shall not have issued and sold, and all
Notes so delivered shall be promptly canceled by the Note Registrar. No Notes
shall be authenticated in lieu of or in exchange for any Notes canceled as
provided in this Section, except as expressly permitted by this Indenture. All
certificates representing canceled Notes held by the Note Registrar shall be
disposed of in accordance with the customary practices of the Note Registrar at
the time in effect, and the Note Registrar shall not be required to destroy any
such certificates. The Note Registrar, if other than the Trustee, shall promptly
deliver a certificate of disposition with respect to such disposed certificates
to the Trustee and the Company unless, by a Company Order, similarly delivered,
the Company shall direct that canceled Notes be returned to it. The Note
Registrar, if other than the Trustee, shall promptly deliver evidence of any
cancellation of a Note in accordance with this Section to the Trustee and the
Company. If the Trustee is the entity that is acting as Note Registrar, it shall
promptly deliver to the Company a certificate of disposition with respect to any
certificates disposed of and/or evidence of any cancellation of a Note, in each
case in accordance with this Section, if so requested by a Company Order.
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SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for
Notes of any series, or any Tranche thereof, interest on the Notes of each
series shall be computed on the basis of a 360-day year consisting of twelve
30-day months and on the basis of the actual number of days elapsed within any
month in relation to the deemed 30 days of such month.
SECTION 311. PAYMENT TO BE IN PROPER CURRENCY.
In the case of the Notes of any series, or any Tranche thereof,
denominated in any currency other than Dollars or in a composite currency (the
"Required Currency"), except as otherwise specified with respect to such Notes
as contemplated by Section 301, the obligation of the Company to make any
payment of the principal thereof, or the premium or interest thereon, shall not
be discharged or satisfied by any tender by the Company, or recovery by the
Trustee, in any currency other than the Required Currency, except to the extent
that such tender or recovery shall result in the Trustee timely holding the full
amount of the Required Currency then due and payable. If any such tender or
recovery is in a currency other than the Required Currency, the Trustee may take
such actions as it considers appropriate to exchange such currency for the
Required Currency. The costs and risks of any such exchange, including without
limitation the risks of delay and exchange rate fluctuation, shall be borne by
the Company, the Company shall remain fully liable for any shortfall or
delinquency in the full amount of Required Currency then due and payable, and in
no circumstances shall the Trustee be liable therefor except in the case of its
negligence or willful misconduct.
SECTION 312. PAYMENTS ON SENIOR NOTE FIRST MORTGAGE BONDS.
Subject to Section 403 and Articles Eight and Nine hereof, all
payments made by the Company to the Trustee on Senior Note First Mortgage Bonds
shall be applied by the Trustee to pay, when due, principal of, and premium, if
any, and interest on the Notes of the related series of Notes and, to the extent
so applied, shall satisfy the Company's obligations in respect of payment of
principal of, and premium, if any, and interest on such Notes. The Company shall
pay to the Trustee principal of, and premium, if any, and interest on Senior
Note First Mortgage Bonds of each series in a manner and at a time that will
enable the Trustee to make payments when due, of principal of, and premium, if
any, and interest on the Notes of the related series.
ARTICLE IV
SENIOR NOTE FIRST MORTGAGE BONDS
SECTION 401. ACCEPTANCE OF SENIOR NOTE FIRST MORTGAGE BONDS; REGISTRATION AND
OWNERSHIP OF SENIOR NOTE FIRST MORTGAGE BONDS.
At or prior to the time of issuance of a series of Notes
hereunder at any time prior to the Release Date, the Company shall issue and
deliver to the Trustee for the benefit of the Holders of all Notes from time to
time Outstanding as described in Section 403 hereof, and the Trustee shall
accept therefor, Senior Note First
26
Mortgage Bonds of a series of Senior Note First Mortgage Bonds not theretofore
delivered to the Trustee. All Senior Note First Mortgage Bonds shall be
registered in the name of the Trustee or its nominee and shall be held by the
Trustee, subject to the provisions of this Indenture, for the benefit of the
Holders of all Notes from time to time Outstanding, and the Company shall have
no interest therein.
SECTION 402. TERMS OF SENIOR NOTE FIRST MORTGAGE BONDS.
Each series of Senior Note First Mortgage Bonds issued and
delivered to the Trustee pursuant to Section 401 hereof in respect of a series
of Notes being issued hereunder shall have the same rate or rates of interest
(or interest calculated in the same manner) (including interest payable
following a default on the Notes), interest payment dates, maturity and
redemption provisions, and shall be in the same aggregate principal amount, as
such series of Notes.
SECTION 403. SENIOR NOTE FIRST MORTGAGE BONDS AS SECURITY FOR NOTES.
Until the Release Date and subject to Article Eight hereof,
Senior Note First Mortgage Bonds issued and delivered to the Trustee shall serve
as security for any and all obligations of the Company under all Notes from time
to time Outstanding, including, but not limited to (1) the full and prompt
payment of the principal and premium, if any, on such Notes when and as the same
shall become due and payable in accordance with the terms and provisions of this
Indenture or such Notes, either at the Stated Maturity thereof, upon
acceleration of the maturity thereof, upon redemption, or otherwise, and (2) the
full and prompt payment of any interest on such Notes when and as the same shall
become due and payable in accordance with the terms and provisions of this
Indenture or the Notes including, if and to the extent provided for in such
Notes, interest on overdue installments of principal and (to the extent
permitted by law) interest on overdue installments of interest.
Each supplemental indenture to the First Mortgage pursuant to
which any Senior Note First Mortgage Bonds are issued shall contain a provision
to the effect that any payment by the Company hereunder of principal of or
premium or interest on Notes which shall have been authenticated and delivered
in connection with the issuance and delivery to the Trustee of such Senior Note
First Mortgage Bonds (other than by the application of the proceeds of a payment
in respect of such Senior Note First Mortgage Bonds) shall to the extent
thereof, be deemed to satisfy and discharge the obligation of the Company, if
any, to make a payment of principal, premium or interest, as the case may be, in
respect of such Senior Note First Mortgage Bonds which is then due.
Notwithstanding anything in this Indenture to the contrary, from
and after the Release Date, the obligation of the Company to make payment with
respect to the principal of and premium, if any, and interest on the Senior Note
First Mortgage Bonds shall be deemed satisfied and discharged as provided in the
supplemental indenture or indentures to the First Mortgage creating such Senior
Note First Mortgage Bonds and the Senior Note First Mortgage Bonds shall cease
to secure in any manner Notes theretofore or subsequently issued. From and after
the Release Date, all Notes, whether theretofore or subsequently issued, shall
be unsecured, and any conditions to the issuance of Notes that refer or relate
to Senior Note First Mortgage
27
Bonds or the First Mortgage shall be inapplicable. Following the Release Date,
the Company shall cause the First Mortgage to be closed and the Company shall
not issue any additional First Mortgage Bonds or Senior Note First Mortgage
Bonds under the First Mortgage. Notice of the occurrence of the Release Date
shall be given by the Trustee to the Holders of the Notes in the manner provided
for in Section 106 hereof not later than 30 days after the Company notifies the
Trustee of the occurrence of the Release Date.
In connection with the establishment of the occurrence of the
Release Date, the Trustee shall be entitled to receive, may presume the
correctness of, and shall be fully protected in relying upon, the Officer's
Certificate stating that the conditions to the occurrence of the Release Date
have been satisfied.
SECTION 404. FAIR VALUE CERTIFICATE.
(a)....Upon the delivery by the Company to the Trustee of Senior
Note First Mortgage Bonds pursuant to Section 401 hereof, the Company shall
simultaneously therewith deliver to the Trustee a certificate of an Expert (1)
stating that he or she is familiar with the provisions of such Senior Note First
Mortgage Bonds and of this Indenture; (2) identifying such Senior Note First
Mortgage Bonds; (3) identifying the Notes being issued contemporaneously
therewith and (4) stating the fair value to the Company of such Senior Note
First Mortgage Bonds. If the fair value to the Company of the Senior Note First
Mortgage Bonds so delivered, as described in the certificate to be delivered
pursuant to this Section 404(a), both (1) is equal to or exceeds (A) $25,000 and
(B) 1% of the principal amount of the Notes outstanding at the date of delivery
of such Senior Note First Mortgage Bonds and (2) together with the fair value to
the Company, as described in the certificates delivered pursuant to this Section
404(a), of all other Senior Note First Mortgage Bonds delivered to the Trustee
since the commencement of the then current calendar year, is equal to or exceeds
10% of the principal amount of the Notes outstanding at the date of delivery of
such Senior Note First Mortgage Bonds, then the certificate required by this
Section 404(a) shall (1) be delivered by an Independent Expert and (2) shall, in
addition to the certifications described above, state the fair value to the
Company of all Senior Note First Mortgage Bonds delivered to the Trustee
pursuant to Section 401 hereof since the commencement of the then current year
as to which a certificate was not delivered by an Independent Expert.
(b)....If Senior Note First Mortgage Bonds are delivered or
surrendered to the Company pursuant to Sections 403, 407 or 409 hereof, the
Company shall simultaneously therewith deliver to the Trustee a certificate of
an Expert (1) stating that it is familiar with the provisions of such Senior
Note First Mortgage Bonds and of this Indenture, (2) identifying such Senior
Note First Mortgage Bonds, (3) if applicable, identifying the Notes, the payment
of the interest on and principal of which has been discharged hereunder, (4)
stating that such delivery or surrender will not impair the lien of this
Indenture in contravention of the provisions of this Indenture. If, prior to the
Release Date, the fair value of the Senior Note First Mortgage Bonds so
delivered and surrendered, as described in the certificate to be delivered
pursuant to this
28
Section 404(b), both (1) is equal to or exceeds (A) $25,000 and (B) 1% of the
principal amount of the Notes outstanding at the date of delivery or surrender
of such Senior Note First Mortgage Bonds and (2) together with the fair value,
as described in the certificates delivered pursuant to this Section 404(b), of
all other Senior Note First Mortgage Bonds released from the lien of this
Indenture since the commencement of the then current calendar year, is equal to
or exceeds 10% of the principal amount of the Notes outstanding at the date of
delivery or surrender of such Senior Note First Mortgage Bonds, then the
certificate required by this Section 404(b) shall be delivered by an Independent
Expert.
If, in connection with a delivery or surrender of outstanding
Senior Note First Mortgage Bonds provided for in subsection (a) or (b) of this
Section 404, as the case may be, the Company provides to the trustee an Opinion
of Counsel stating that the certificate described by the applicable subsection
is not required by law, such certificate shall not be required to be delivered
hereunder in connection with such delivery or surrender.
SECTION 405. SENIOR NOTE FIRST MORTGAGE BONDS HELD BY THE TRUSTEE.
The Trustee, as a Holder of Senior Note First Mortgage Bonds,
shall attend each meeting of holders of First Mortgage Bonds under the First
Mortgage as to which it receives due notice, or, at its option, shall deliver
its proxy in connection therewith. Either at such meeting, or otherwise where
consent of holders of First Mortgage Bonds issued under the First Mortgage is
sought without a meeting, the Trustee shall vote all of the Senior Note First
Mortgage Bonds held by it, or shall consent or withhold its consent with respect
thereto, as directed by the Holders of not less than a majority in aggregate
principal amount of the Outstanding Notes, considered as one class.
SECTION 406. NO TRANSFER OF SENIOR NOTE FIRST MORTGAGE BONDS; EXCEPTION.
Except as required to effect an assignment to a successor trustee
or to a nominee of the Trustee under this Indenture or pursuant to Section 407
or Section 409 hereof, the Trustee shall not sell, assign or transfer the Senior
Note First Mortgage Bonds and the Company shall issue stop transfer instructions
to the Mortgage Trustee and any transfer agent under the First Mortgage to
effect compliance with this Section 406.
SECTION 407. DELIVERY TO THE COMPANY OF ALL SENIOR NOTE FIRST MORTGAGE BONDS.
When the obligation of the Company to make payment with respect
to the principal of and premium, if any, and interest on the Senior Note First
Mortgage Bonds shall be satisfied or deemed satisfied pursuant to Section 403 or
Article Eight hereof, the Trustee shall, upon written request of the Company and
receipt of the certificate of the Expert described in Section 404(b) hereof (if
such certificate is then required by Section 404(b) hereof), deliver to the
Company without charge therefor all of the Senior Note First Mortgage Bonds,
together with such appropriate instruments of transfer or release as may be
reasonably requested by the Company. All Senior Note First Mortgage Bonds
delivered to the Company in accordance with this Section 407 shall be delivered
by the Company to the First Mortgage Trustee for cancellation.
SECTION 408. FURTHER ASSURANCES.
29
The Company, at its own expense, shall do such further lawful
acts and things, and execute and deliver such additional conveyances,
assignments, assurances, agreements, financing statements and instruments. as
may be necessary in order to further assign, assure, perfect and confirm to the
Trustee its security interest in the Senior Note First Mortgage Bonds and for
maintaining, protecting and preserving such security interest.
SECTION 409. EXCHANGE AND SURRENDER OF SENIOR NOTE FIRST MORTGAGE BONDS.
At any time upon receipt of a Company Order at the written
direction of the Company, the Trustee shall surrender to the Company all or part
of the Senior Note First Mortgage Bonds in exchange for Senior Note First
Mortgage Bonds equal in aggregate principal amount to, in different
denominations than but of the same series and with all other terms identical to,
the Senior Note First Mortgage Bonds so surrendered to the Company. In addition,
at any time a Note shall cease to be entitled to any lien, benefit or security
under this Indenture pursuant to Article Eight hereof, the Trustee shall
surrender an equal principal amount of Senior Note First Mortgage Bonds of the
related series to the Company for cancellation. The Trustee shall, together with
such Senior Note First Mortgage Bonds, deliver to the Company such appropriate
instruments of transfer or release as the Company may reasonably request. Prior
to the surrender required by this paragraph, the Trustee shall receive from the
Company the following, and (subject to Section 801 hereof) shall be fully
protected in relying upon, (a) an Officer's Certificate stating (i) the
aggregate outstanding principal amount of the Senior Note First Mortgage Bonds
of the series surrendered by the Trustee, after giving effect to such surrender,
(ii) the aggregate Outstanding principal amount of the related series of Notes,
(iii) that the surrender of the Senior Note First Mortgage Bonds will not result
in any default under this Indenture, and (iv) that any Senior Note First
Mortgage Bonds to be received in exchange for the Senior Note First Mortgage
Bonds being surrendered comply with the provisions of this Section.
The Company shall not be permitted to cause the surrender or
exchange of all or any part of a series of Senior Note First Mortgage Bonds
contemplated in this Section, if, after such surrender or exchange, the
aggregate Outstanding principal amount of the related series of Notes would
exceed the aggregate outstanding principal amount of such series of Senior Note
First Mortgage Bonds held by the Trustee. Any Senior Note First Mortgage Bonds
received by the Company pursuant to this Section shall be delivered to the
Mortgage Trustee for cancellation.
ARTICLE V
REDEMPTION OF NOTES
SECTION 501. APPLICABILITY OF ARTICLE.
Notes of any series, or any Tranche thereof, which are redeemable
before their Stated Maturity shall be redeemable in accordance with their terms
and (except as otherwise specified as contemplated by Section 301 for Notes of
such series or Tranche) in accordance with this Article.
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SECTION 502. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Notes shall be
evidenced by a Board Resolution and/or an Officer's Certificate. The Company
shall, at least 45 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee in writing of such Redemption Date and of the principal amount of such
Notes to be redeemed. In the case of any redemption of Notes (a) prior to the
expiration of any restriction on such redemption provided in the terms of such
Notes or elsewhere in this Indenture or (b) pursuant to an election of the
Company which is subject to a condition specified in the terms of such Notes,
the Company shall furnish the Trustee with an Officer's Certificate evidencing
compliance with such restriction or condition.
SECTION 503. SELECTION OF NOTES TO BE REDEEMED.
If less than all the Notes of any series, or any Tranche thereof,
are to be redeemed, the particular Notes to be redeemed shall be selected by the
Trustee from the Outstanding Notes of such series or Tranche not previously
called for redemption, by such method as shall be provided for any particular
series, or, in the absence of any such provision, by such method of random
selection as the Trustee shall deem fair and appropriate and which may, in any
case, provide for the selection for redemption of portions (equal to the minimum
authorized denomination for Notes of such series or Tranche or any integral
multiple thereof) of the principal amount of Notes of such series or Tranche of
a denomination larger than the minimum authorized denomination for Notes of such
series or Tranche; provided, however, that if, as indicated in an Officer's
Certificate, the Company shall have offered to purchase all or any principal
amount of the Notes then Outstanding of any series, or any Tranche thereof, and
less than all of such Notes as to which such offer was made shall have been
tendered to the Company for such purchase, the Trustee, if so directed by
Company Order, shall select for redemption all or any principal amount of such
Notes which have not been so tendered.
The Trustee shall promptly notify the Note Registrar in writing
of the Notes selected for redemption and, in the case of any Notes selected to
be redeemed in part, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Notes shall relate, in
the case of any Notes redeemed or to be redeemed only in part, to the portion of
the principal amount of such Notes which has been or is to be redeemed.
SECTION 504. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in
Section 106 to the Holders of the Notes to be redeemed not less than 30 nor more
than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
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(b) the Redemption Price or, if the Redemption Price is not
ascertainable as of the date any such notice of redemption is given
pursuant to Section 404, the method of calculation of the Redemption
Price,
(c) if less than all the Notes of any series or Tranche are to be
redeemed, the identification of the particular Notes to be redeemed and
the portion of the principal amount of any Note to be redeemed in part,
(d) that on the Redemption Date, the Redemption Price, together
with accrued interest, if any, to the Redemption Date, will become due
and payable upon each such Note to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(e) the place or places where such Notes are to be surrendered
for payment of the Redemption Price and accrued interest, if any, unless
it shall have been specified as contemplated by Section 301 with respect
to such Notes that such surrender shall not be required,
(f) that the redemption is for a sinking or other fund, if such
is the case, and
(g) such other matters as the Company shall deem desirable or
appropriate (including CUSIP numbers with respect to such Securities, if
the Company shall so choose, in which event such notice of redemption may
contain a disclaimer as to the correctness of such numbers either as
printed on the Securities or on such notice of redemption).
Unless otherwise specified with respect to any Notes in
accordance with Section 301, with respect to any notice of redemption of Notes
at the election of the Company, unless, upon the giving of such notice, such
Notes shall be deemed to have been paid in accordance with Section 801, such
notice may state that such redemption shall be conditional upon the receipt by
the Paying Agent or Agents for such Notes, on or prior to the date fixed for
such redemption, of money sufficient to pay the principal of and premium, if
any, and interest, if any, on such Notes and that if such money shall not have
been so received such notice shall be of no force or effect and the Company
shall not be required to redeem such Notes. In the event that such notice of
redemption contains such a condition and such money is not so received, the
redemption shall not be made and within a reasonable time thereafter notice
shall be given, in the manner in which the notice of redemption was given, that
such money was not so received and such redemption was not required to be made,
and the Paying Agent or Agents for the Notes otherwise to have been redeemed
shall promptly return to the Holders thereof any of such Notes which had been
surrendered for payment upon such redemption.
Notice of redemption of Notes to be redeemed at the election of
the Company, and any notice of non-satisfaction of a condition for redemption as
aforesaid, shall be given by the Company or, at the Company's request, by the
Note Registrar in the name and at the expense of the Company. Notice of
mandatory redemption of Notes shall be given by the Note Registrar in the name
and at the expense of the Company.
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SECTION 505. NOTES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, and the
conditions, if any, set forth in such notice having been satisfied, the Notes or
portions thereof so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless, in the case of an unconditional notice of redemption, the Company shall
default in the payment of the Redemption Price and accrued interest, if any)
such Notes or portions thereof, if interest-bearing, shall cease to bear
interest. Upon surrender of any such Note for redemption in accordance with such
notice, such Note or portion thereof shall be paid by the Company at the
Redemption Price, together with accrued interest, if any, to the Redemption
Date; provided, however, that no such surrender shall be a condition to such
payment if so specified as contemplated by Section 301 with respect to such
Note; and provided, further, that except as otherwise specified as contemplated
by Section 301 with respect to such Note, any installment of interest on any
Note the Stated Maturity of which installment is on or prior to the Redemption
Date shall be payable to the Holder of such Note, or one or more Predecessor
Notes, registered as such at the close of business on the related Regular Record
Date according to the terms of such Note and subject to the provisions of
Section 307.
SECTION 506. NOTES REDEEMED IN PART.
Upon the surrender of any Note which is to be redeemed only in
part at a Place of Payment therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Note, without
service charge, a new Note or Notes of the same series and Tranche, of any
authorized denomination requested by such Holder and of like tenor and in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Note so surrendered.
ARTICLE VI
SINKING FUNDS
SECTION 601. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of the Notes of any series, or any Tranche thereof,
except as otherwise specified as contemplated by Section 301 for Notes of such
series or Tranche.
The minimum amount of any sinking fund payment provided for by
the terms of Notes of any series, or any Tranche thereof, is herein referred to
as a "mandatory sinking fund payment", and any payment in excess of such minimum
amount provided for by the terms of Notes of any series, or any Tranche thereof,
is herein referred to as an "optional sinking fund payment." If provided for by
the terms of Notes of any series, or any Tranche thereof, the cash amount of any
sinking fund payment may be subject to reduction as provided in Section 602.
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Each sinking fund payment shall be applied to the redemption of Notes of the
series or Tranche in respect of which it was made as provided for by the terms
of such Notes.
SECTION 602. SATISFACTION OF SINKING FUND PAYMENTS WITH NOTES.
The Company (a) may deliver to the Trustee Outstanding Notes
(other than any previously called for redemption) of a series or Tranche in
respect of which a mandatory sinking fund payment is to be made and (b) may
apply as a credit Notes of such series or Tranche which have been redeemed
either at the election of the Company pursuant to the terms of such Notes or
through the application of permitted optional sinking fund payments pursuant to
the terms of such Notes, in each case in satisfaction of all or any part of such
mandatory sinking fund payment; provided, however, that no Notes shall be
applied in satisfaction of a mandatory sinking fund payment if such Notes shall
have been previously so applied. Notes so applied shall be received and credited
for such purpose by the Trustee at the Redemption Price specified in such Notes
for redemption through operation of the sinking fund and the amount of such
mandatory sinking fund payment shall be reduced accordingly.
SECTION 603. REDEMPTION OF NOTES FOR SINKING FUND.
Not less than 45 days prior to each sinking fund payment date for
the Notes of any series, or any Tranche thereof, the Company shall deliver to
the Trustee an Officer's Certificate specifying:
(a) the amount of the next succeeding mandatory sinking fund
payment for such series or Tranche;
(b) the amount, if any, of the optional sinking fund payment to
be made together with such mandatory sinking fund payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate sinking fund payment
which is to be satisfied by the payment of cash; and
(e) the portion, if any, of such aggregate sinking fund payment
which is to be satisfied by delivering and crediting Notes of such series
or Tranche pursuant to Section 602 and stating the basis for such credit
and that such Notes have not previously been so credited, and the Company
shall also deliver to the Trustee any Notes to be so delivered.
If the Company shall not have delivered such Officer's
Certificate and, to the extent applicable, all such Notes, on or prior to the
45th day prior to such sinking fund payment date, the sinking fund payment for
such series or Tranche in respect of such sinking fund payment date shall be
made entirely in cash in the amount of the mandatory sinking fund payment. Not
less than 30 days before each such sinking fund payment date the Trustee shall
select the Notes to be redeemed upon such sinking fund payment date in the
manner specified in Section 503 and cause notice of the redemption thereof to be
given in the name of and at the expense of the Company in the manner provided in
Section 504. Such notice having been duly
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given, the redemption of such Notes shall be made upon the terms and in the
manner stated in Sections 505 and 506.
ARTICLE VII
COVENANTS
SECTION 701. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company shall pay the principal of and premium, if any, and
interest, if any, on the Notes of each series in accordance with the terms of
such Notes and this Indenture.
SECTION 702. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in each Place of Payment for the Notes
of each series, or any Tranche thereof, an office or agency where payment of
such Notes shall be made, where the registration of transfer or exchange of such
Notes may be effected and where notices and demands to or upon the Company in
respect of such Notes and this Indenture may be served. The Company shall give
prompt written notice to the Trustee of the location, and any change in the
location, of each such office or agency and prompt notice to the Holders of any
such change in the manner specified in Section 106. If at any time the Company
shall fail to maintain any such required office or agency in respect of Notes of
any series, or any Tranche thereof, or shall fail to furnish the Trustee with
the address thereof, payment of such Notes shall be made, registration of
transfer or exchange thereof may be effected and notices and demands in respect
thereof may be served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent for all such purposes in any
such event.
The Company may also from time to time designate one or more
other offices or agencies with respect to the Notes of one or more series, or
any Tranche thereof, for any or all of the foregoing purposes and may from time
to time rescind such designations; provided, however, that, unless otherwise
specified as contemplated by Section 301 with respect to the Notes of such
series or Tranche no such designation or rescission shall in any manner relieve
the Company of its obligation to maintain an office or agency for such purposes
in each Place of Payment for such Notes in accordance with the requirements set
forth above. The Company shall give prompt written notice to the Trustee, and
prompt notice to the Holders in the manner specified in Section 106, of any such
designation or rescission and of any change in the location of any such other
office or agency.
Anything herein to the contrary notwithstanding, any office or
agency required by this Section may be maintained at an office of the Company,
in which event the Company shall perform all functions to be performed at such
office or agency.
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SECTION 703. MONEY FOR NOTES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to the Notes of any series, or any Tranche thereof, it shall, on or
before each due date of the principal of and premium, if any, and interest, if
any, on any of such Notes, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal and premium or
interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided. The Company shall promptly notify the
Trustee of any failure by the Company (or any other obligor on such Notes) to
make any payment of principal of or premium, if any, or interest, if any, on
such Notes.
Whenever the Company shall have one or more Paying Agents for the
Notes of any series, or any Tranche thereof, it shall, on or before each due
date of the principal of and premium, if any, and interest, if any, on such
Notes, deposit with such Paying Agents sums sufficient (without duplication) to
pay the principal and premium or interest so becoming due, such sum to be held
in trust for the benefit of the Persons entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) the Company shall
promptly notify the Trustee of any failure by it so to act.
The Company shall cause each Paying Agent for the Notes of any
series, or any Tranche thereof, other than the Company or the Trustee, to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent shall:
(a) hold all sums held by it for the payment of the principal of
and premium, if any, or interest, if any, on such Notes in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any failure by the Company (or any
other obligor upon such Notes) to make any payment of principal of or
premium, if any, or interest, if any, on such Notes; and
(c) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent and furnish to the Trustee such
information as it possesses regarding the names and addresses of the
Persons entitled to such sums.
The Company may at any time pay, or by Company Order direct any
Paying Agent to pay, to the Trustee all sums held in trust by the Company or
such Paying Agent, such sums to be held by the Trustee upon the same trusts as
those upon which such sums were held by the Company or such Paying Agent and, if
so stated in a Company Order delivered to the Trustee, in accordance with the
provisions of Article Eight; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
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Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of and premium,
if any, or interest, if any, on any Note and remaining unclaimed for two years
after such principal and premium, if any, or interest has become due and payable
shall be paid to the Company on Company Request, or, if then held by the
Company, shall be discharged from such trust; and, upon such payment or
discharge, the Holder of such Note shall, as an unsecured general creditor and
not as a Holder of an Outstanding Note, look only to the Company for payment of
the amount so due and payable and remaining unpaid, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
payment to the Company, may at the expense of the Company cause to be mailed, on
one occasion only, notice to such Holder that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such mailing, any unclaimed balance of such money then remaining
will be paid to the Company.
SECTION 704. CORPORATE EXISTENCE.
Subject to the rights of the Company under Article Twelve, the
Company shall do or cause to be done all things necessary to preserve and keep
in full force and effect its corporate existence.
SECTION 705. MAINTENANCE OF PROPERTIES.
The Company shall cause (or, with respect to property owned in
common with others, make reasonable effort to cause) all its properties used or
useful in the conduct of its business to be maintained and kept in good
condition, repair and working order and shall cause (or, with respect to
property owned in common with others, make reasonable effort to cause) to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as, in the judgment of the Company, may be necessary so that the
business carried on in connection therewith may be properly conducted; provided,
however, that nothing in this Section shall prevent the Company from
discontinuing, or causing the discontinuance of, the operation and maintenance
of any of its properties if such discontinuance is, in the judgment of the
Company, desirable in the conduct of its business.
SECTION 706. ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE.
Not later than June 1 in each year, commencing June 1, 1999, the
Company shall deliver to the Trustee an Officer's Certificate which need not
comply with Section 102, executed by the principal executive officer, the
principal financial officer or the principal accounting officer of the Company,
stating whether to such officer's knowledge, the Company is in compliance with
all conditions and covenants under this Indenture, such compliance to be
determined without regard to any period of grace or requirement of notice under
this Indenture, and making any other statements as may be required by the
provisions of Section 314(a)(4) of the Trust Indenture Act.
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SECTION 707. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in (a) Section 702 or any additional
covenant or restriction specified with respect to the Notes of any series, or
any Tranche thereof, as contemplated by Section 301 if before the time for such
compliance the Holders of at least a majority in aggregate principal amount of
the Outstanding Notes of all series and Tranches with respect to which
compliance with Section 702 or such additional covenant or restriction is to be
omitted, considered as one class, shall, by Act of such Holders, either waive
such compliance in such instance or generally waive compliance with such term,
provision or condition and (b) Section 704, 705, 706 or Article Twelve if before
the time for such compliance the Holders of at least a majority in principal
amount of Notes Outstanding under this Indenture shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such term, provision or condition; but, in the case of (a) or (b), no such
waiver shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
SECTION 708. RECORDING, FILING, ETC.; OPINIONS OF COUNSEL.
The Company will (and the Trustee shall be under no duty to)
cause this Indenture, any indentures supplemental to this Indenture, any
financing or continuation statements, and any other documents, to be promptly
recorded and filed and rerecorded and refiled in such a manner and in such
places, as may be required by law in order fully to preserve, protect and
perfect the security of the Holders and all rights of the Trustee, and shall
deliver to the Trustee:
(a) promptly after the execution and delivery of this Indenture
and of any indenture supplemental to this Indenture but prior to the Release
Date, an Opinion of Counsel either stating that, in the opinion of such counsel,
this Indenture or such supplemental indenture, any financing or continuation
statements, and any other documents, have been properly recorded and filed so as
to make effective and to perfect the security interest of the Trustee intended
to be created by this Indenture for the benefit of the Holders from time to time
in the Senior Note First Mortgage Bonds, and reciting the details of such
action, or stating that, in the opinion of such counsel, no such action is
necessary to perfect or make such security interest effective and stating what,
if any, action of the foregoing character may reasonably be expected to become
necessary prior to the next succeeding July 15 to maintain, perfect and make
such security interest effective; and
(b) on or before July 15 of each year, beginning in 1999, and
prior to the Release Date, an Opinion of Counsel either stating that in the
opinion of such counsel such action has been taken, since the date of the most
recent Opinion of Counsel furnished pursuant to this Section 710(b) or the first
Opinion of Counsel furnished pursuant to Section 710(a), with respect to the
recording, filing, rerecording, or refiling of this Indenture, each supplemental
indenture, any financing or continuation statements, and any other documents, as
is necessary to maintain and perfect the security interest of the Trustee
intended to be created by this Indenture
38
for the benefit of the Holders from time to time of the Notes in the Senior Note
First Mortgage Bonds, and reciting the details of such action, or stating that
in the opinion of such counsel no such action is necessary to maintain and
perfect such security interest and stating what, if any, action of the foregoing
character may reasonably be expected to become necessary prior to the next
succeeding July 15 to maintain, perfect and make such security interest
effective.
ARTICLE VIII
SATISFACTION AND DISCHARGE
SECTION 801. SATISFACTION AND DISCHARGE OF NOTES.
Any Note or Notes, or any portion of the principal amount
thereof, shall be deemed to have been paid for all purposes of this Indenture,
and the entire indebtedness of the Company in respect thereof shall be deemed to
have been satisfied and discharged, if there shall have been irrevocably
deposited with the Trustee or any Paying Agent (other than the Company), in
trust:
(a) money in an amount which shall be sufficient, or
(b) in the case of a deposit made prior to the Maturity of such
Notes or portions thereof, Eligible Obligations, which shall not contain
provisions permitting the redemption or other prepayment thereof at the
option of the issuer thereof, the principal of and the interest on which
when due, without any regard to reinvestment thereof, will provide moneys
which, together with the money, if any, deposited with or held by the
Trustee or such Paying Agent, shall be sufficient, or
(c) a combination of (a) or (b) which shall be sufficient,
to pay when due the principal of and premium, if any, and interest, if any, due
and to become due on such Notes or portions thereof on or prior to Maturity,
provided, however, that in the case of the provision for payment or redemption
of less than all the Notes of any series or Tranche, such Notes or portions
thereof shall have been selected by the Trustee as provided herein and, in the
case of a redemption, the notice requisite to the validity of such redemption
shall have been given or irrevocable authority shall have been given by the
Company to the Trustee to give such notice, under arrangements satisfactory to
the Trustee; and provided, further, that the Company shall have delivered to the
Trustee and such Paying Agent:
(x) if such deposit shall have been made prior to the
Maturity of such Notes, a Company Order stating that the money
and Eligible Obligations deposited in accordance with this
Section shall be held in trust, as provided in Section 803;
(y) if Eligible Obligations shall have been deposited, an
Opinion of Counsel that the obligations so deposited constitute
Eligible Obligations and do not contain provisions permitting the
redemption or other prepayment at the
39
option of the issuer thereof, and an opinion of an independent
public accountant of nationally recognized standing, selected by
the Company, to the effect that the requirements set forth in
clause (b) above have been satisfied; and
(z) if such deposit shall have been made prior to the
Maturity of such Notes, an Officer's Certificate stating the
Company's intention that, upon delivery of such Officer's
Certificate, its indebtedness in respect of such Notes or
portions thereof will have been satisfied and discharged as
contemplated in this Section.
If the Company shall make any deposit of money and/or Eligible
Obligations with respect to any Notes, or any portion of the principal amount
thereof, as contemplated by this section, the Company shall not deliver an
Officer's Certificate described in clause (z) above unless the Company shall
also deliver to the Trustee, together with such Officer's Certificate, an
Opinion of Counsel to the effect that, as a result of a change in law occurring
after the date of this Indenture, the Holders of such Notes, or portions
thereof, will not recognize income, gain or loss for United States federal
income tax purposes as a result of the satisfaction and discharge of the
Company's indebtedness in respect thereof and will be subject to United States
federal income tax on the same amounts, at the same times and in the same manner
as if such satisfaction and discharge had not been effected.
Upon the deposit of money or Eligible Obligations, or both, in
accordance with this Section, together with the documents required by clauses
(x), (y) and (z) above, the Trustee shall, upon receipt of a Company Request,
acknowledge in writing that the Note or Notes or portions thereof with respect
to which such deposit was made are deemed to have been paid for all purposes of
this Indenture and that the entire indebtedness of the Company in respect
thereof has been satisfied and discharged as contemplated in this Section. In
the event that all of the conditions set forth in the preceding paragraph shall
have been satisfied in respect of any Notes or portions thereof except that, for
any reason, the Officer's Certificate specified in clause (z) shall not have
been delivered, such Notes or portions thereof shall nevertheless be deemed to
have been paid for all purposes of this Indenture, and the Holders of such Notes
or portions thereof shall nevertheless be no longer entitled to the benefits of
this Indenture or of any of the covenants of the Company under Article Seven
(except the covenants contained in Sections 702 and 703) or any other covenants
made in respect of such Notes or portions thereof as contemplated by Section
301, but the indebtedness of the Company in respect of such Notes or portions
thereof shall not be deemed to have been satisfied and discharged prior to
Maturity for any other purpose, and the Holders of such Notes or portions
thereof shall continue to be entitled to look to the Company for payment of the
indebtedness represented thereby; and, upon Company Request, the Trustee shall
acknowledge in writing that such Notes or portions thereof are deemed to have
been paid for all purposes of this Indenture.
If payment at Stated Maturity of less than all of the Notes of
any series, or any Tranche thereof, is to be provided for in the manner and with
the effect provided in this Section, the Trustee shall select such Notes, or
portions of principal amount thereof, in the manner specified by Section 503 for
selection for redemption of less than all the Notes of a series or Tranche.
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In the event that Notes which shall be deemed to have been paid
for purposes of this Indenture, and, if such is the case, in respect of which
the Company's indebtedness shall have been satisfied and discharged, all as
provided in this Section do not mature and are not to be redeemed within the
sixty (60) day period commencing with the date of the deposit of moneys or
Eligible Obligations, as aforesaid, the Company shall, as promptly as
practicable, give a notice, in the same manner as a notice of redemption with
respect to such Notes, to the Holders of such Notes to the effect that such
deposit has been made and the effect thereof.
Notwithstanding that any Notes shall be deemed to have been paid
for purposes of this Indenture, as aforesaid, the obligations of the Company and
the Trustee in respect of such Notes under Sections 304, 305, 306, 504, 603 (as
to notice of redemption), 702, 703, 1007, 1014 and 1015 and this Article Eight
shall survive.
To the extent Notes are deemed paid and discharged pursuant to
this Section 801, the obligation of the Company to make payment with respect to
the principal of and premium, if any, and interest on the related Senior Note
First Mortgage Bonds shall be satisfied and discharged, and such Senior Note
First Mortgage Bonds shall cease to secure the Notes in any manner but shall
continue to be held by the Trustee until the Release Date.
If the Company shall have paid or caused to be paid the principal
of and premium, if any, and interest on any Note, as and when the same shall
have become due and payable or the Company shall have delivered to the Trustee
or the Note Registrar for cancellation any Outstanding Note, such Note shall
cease to be entitled to any lien, benefit or security under this Indenture. Upon
a Note of any series ceasing to be entitled to any lien, benefit or security
under this Indenture, the obligation of the Company to make payment with respect
to principal of and premium, if any, and interest on a principal amount of the
related series of Senior Note First Mortgage Bonds equal to the principal amount
of such Note shall be satisfied and discharged and such portion of the principal
amount of such Senior Note First Mortgage Bonds shall cease to secure such Note
in any manner, but such Senior Note First Mortgage Bonds shall continue to be
held by the Trustee until the Release Date.
The Company shall pay, and shall indemnify the Trustee or any
Paying Agent with which Eligible Obligations shall have been deposited as
provided in this Section against any tax, fee or other charge imposed on or
assessed against such Eligible Obligations or the principal or interest received
in respect of such Eligible Obligations, including, but not limited to, any such
tax payable by any entity deemed, for tax purposes, to have been created as a
result of such deposit.
Anything herein to the contrary notwithstanding, (a) if, at any
time after a Note would be deemed to have been paid for purposes of this
Indenture, and, if such is the case, the Company's indebtedness in respect
thereof would be deemed to have been satisfied or discharged, pursuant to this
Section (without regard to the provisions of this paragraph), the Trustee or any
Paying Agent, as the case may be, shall be required to return the money or
Eligible Obligations, or combination thereof, deposited with it as aforesaid to
the Company or its representative under any applicable Federal or State
bankruptcy, insolvency or other similar law, such Note shall thereupon be deemed
retroactively not to have been paid and any satisfaction and
41
discharge of the Company's indebtedness in respect thereof (and in respect of
the related Senior Note First Mortgage Bonds) shall retroactively be deemed not
to have been effected, such Note shall be deemed to remain Outstanding, and such
Note shall continue to be secured by the related Senior Note First Mortgage Bond
until the Release Date and (b) any satisfaction and discharge of the Company's
indebtedness in respect of any Note shall be subject to the provisions of the
last paragraph of Section 703.
SECTION 802. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further
effect (except as hereinafter expressly provided), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) no Notes remain Outstanding hereunder; and
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company;
provided, however, that if, in accordance with the last paragraph of Section
801, any Note, previously deemed to have been paid for purposes of this
Indenture, shall be deemed retroactively not to have been so paid, this
Indenture shall thereupon be deemed retroactively not to have been satisfied and
discharged, as aforesaid, and to remain in full force and effect, and the
Company shall execute and deliver such instruments as the Trustee shall
reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge of this Indenture
as aforesaid, the obligations of the Company and the Trustee under Sections 304,
305, 306, 504, 603 (as to notice of redemption), 702, 703, 1007, 1014 and 1015
and this Article Eight shall survive.
Upon satisfaction and discharge of this Indenture as provided in
this Section, the Trustee shall assign, transfer and turn over to the Company,
subject to the lien provided by Section 1007, any and all money, Notes and other
property then held by the Trustee for the benefit of the Holders of the Notes
other than money and Eligible Obligations held by the Trustee pursuant to
Section 803.
SECTION 803. APPLICATION OF TRUST MONEY.
Neither the Eligible Obligations nor the money deposited pursuant
to Section 801, nor the principal or interest payments on any such Eligible
Obligations, shall be withdrawn or used for any purpose other than, and shall be
held in trust for, the payment of the principal of, and premium, if any, and
interest, if any, on, the Notes or portions of principal amount thereof in
respect of which such deposit was made, all subject, however, to the provisions
of Section 703; provided, however, that, so long as there shall not have
occurred and be continuing an Event of Default, or an event which, with the
giving of notice or the passage of time, would become an Event of Default, any
cash received from such principal or interest payments on such Eligible
Obligations, if not then needed for such purpose, shall, to the extent
practicable, be invested in Eligible Obligations of the type described in clause
(b) in the first paragraph of Section 801
42
maturing at such times and in such amounts as shall be sufficient to pay when
due the principal of and premium, if any, and interest, if any, due and to
become due on such Notes or portions thereof on and prior to the Maturity
thereof, and interest earned from such reinvestment shall be paid over to the
Company as received, free and clear of any trust, lien or pledge under this
Indenture except the lien provided by Section 1007; and provided, further, that,
so long as there shall not have occurred and be continuing an Event of Default,
or an event which, with the giving of notice or the passage of time, would
become an Event of Default, any moneys held in accordance with this Section on
the Maturity of all such Notes in excess of the amount required to pay the
principal of and premium, if any, and interest, if any, then due on such Notes
shall be paid over to the Company free and clear of any trust, lien or pledge
under this Indenture except the lien provided by Section 1007; and provided,
further, that if an Event of Default, or an event which, with the giving of
notice or the passage of time, would become an Event of Default, shall have
occurred and be continuing, moneys to be paid over to the Company pursuant to
this Section shall be held until such Event of Default, or event which, with the
giving of notice or the passage of time, would become an Event of Default, shall
have been waived or cured.
ARTICLE IX
EVENTS OF DEFAULT; REMEDIES
SECTION 901. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to Notes of
any series, means any one of the following events:
(a) failure to pay interest, if any, on any Note of such series
within thirty (30) days after the same becomes due and payable; or
(b) failure to pay the principal of or premium, if any, on any
Note of such series when due and payable; or
(c) failure to perform or breach of any covenant or warranty of
the Company in this Indenture (other than a covenant or warranty a
default in the performance of which or breach of which is elsewhere in
this Section specifically dealt with or which has expressly been included
in this Indenture solely for the benefit of one or more series of Notes
other than such series) for a period of 60 days after there has been
given, by registered or certified mail, to the Company by the Trustee, or
to the Company and the Trustee by the Holders of at least 33% in
principal amount of the Outstanding Notes of such series, a written
notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder, unless
the Trustee, or the Trustee and the Holders of a principal amount of
Notes of such series not less than the principal amount of Notes the
Holders of which gave such notice, as the case may be, shall agree in
writing to an extension of such period prior to its expiration; provided,
however, that the Trustee, or the Trustee and the Holders of such
principal amount of Notes of such series, as the case may be, shall be
deemed to have agreed to an
43
extension of such period for a maximum of one hundred twenty (120) days
if corrective action is initiated by the Company within such period and
is being diligently pursued; or
(d) prior to the Release Date, a Default (as defined in Section
65 of the First Mortgage) has occurred and is continuing; provided,
however, that, anything in this Indenture to the contrary
notwithstanding, the waiver or cure of such Default under the First
Mortgage and the rescission and annulment of the consequences thereof
shall constitute a waiver of the corresponding Event of Default
hereunder and a rescission and annulment of the consequences thereof;
(e) the entry by a court having jurisdiction in the premises of
(1) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (2) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition by one or more Persons other than
the Company seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any applicable Federal
or State law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official for the Company or for
any substantial part of its property, or ordering the winding up or
liquidation of its affairs, and any such decree or order for relief or
any such other decree or order shall have remained unstayed and in
effect for a period of 90 consecutive days; or
(f) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding
to be adjudicated a bankrupt or insolvent, or the consent by it to the
entry of a decree or order for relief in respect of the Company in case
or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement
of any bankruptcy or insolvency case or proceeding against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under any applicable Federal or State law, or the consent by
it to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or of any substantial
part of its property, or the making by it of an assignment for the
benefit of creditors, or the admission by it in writing of its inability
to pay its debts generally as they become due, or the authorization of
such action by the Board of Directors; or
(g) any other Event of Default specified with respect to Notes of
such series.
SECTION 902. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default due to the default in payment of principal
of, or premium, if any, or interest on, any series of Notes or due to the
default in the performance or breach of any other covenant or warranty of the
Company applicable to the Notes of such series but not applicable to all
Outstanding Notes shall have occurred and be continuing, either the Trustee or
the Holders of not less than 33% in principal amount of the Notes of such series
may then declare
44
the principal amount (or, if any of the Notes of such series are Discount Notes,
such portion of the principal amount as may be specified in the terms thereof as
contemplated by Section 301) of all Notes of such series and premium, if payment
of any thereof be in default, and interest accrued thereon to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by the Holders). If an Event of Default due to default in the performance of any
other of the covenants or agreements herein applicable to all Outstanding Notes
or an Event of Default specified in Section 901(d), (e) or (f) shall have
occurred and be continuing, either the Trustee or the Holders of not less than
33% in principal amount of all Notes then Outstanding (considered as one class),
and not the Holders of the Notes of any one of such series, may declare the
principal amount (or, if any of the Notes are Discount Notes, such portion of
the principal amount of such Notes as may be specified in the terms thereof as
contemplated by Section 301) of all Notes and premium, if payment of any thereof
be in default, and interest accrued thereon to be due and payable immediately,
by a notice in writing to the Company (and to the Trustee if given by the
Holders). As a consequence of each such declaration (herein referred to as a
declaration of acceleration) with respect to Notes of any series, the principal
amount (or portion thereof in the case of Discount Notes) of such Notes, any
such premium, and interest accrued thereon shall become due and payable
immediately. Prior to the Release Date, upon all of the Notes becoming
immediately due and payable by declaration pursuant to any of the foregoing
provisions of this Section 902, the Trustee shall immediately file with the
Mortgage Trustee a written demand for the acceleration of the payment of
principal of and premium, if any and accrued interest on all Senior Note First
Mortgage Bonds pursuant to the applicable provisions of the First Mortgage.
At any time after such a declaration of acceleration with respect
to Notes of any series shall have been made and before a judgment or decree for
payment of the money due shall have been obtained by the Trustee as hereinafter
in this Article provided, and prior to the receipt by the Trustee from the
Mortgage Trustee of an irrevocable, valid and unconditional notice to the
Trustee of the acceleration of the payment of principal, by declaration or
otherwise, of all of the Senior Note First Mortgage Bonds issued and outstanding
under the First Mortgage, the Event or Events of Default and its consequences
(including, if given, the written demand for the acceleration of the payment of
principal of and premium, if any, and accrued interest on all such Senior Note
First Mortgage Bonds) giving rise to such declaration of acceleration shall,
without further act, be deemed to have been waived, and such declaration and its
consequences shall, without further act, be deemed to have been rescinded and
annulled, if
(a) the Company shall have paid or deposited with the Trustee a
sum sufficient to pay
(1) all overdue interest on all Notes of such series;
(2) the principal of and premium, if any, on any Notes of
such series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or
rates prescribed therefor in such Notes;
(3) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Notes;
45
(4) all amounts due to the Trustee under Section 1007;
and
(b) any other Event or Events of Default with respect to Notes of
such series, other than the non-payment of the principal of Notes of such
series which shall have become due solely by such declaration of
acceleration, shall have been cured (including any Defaults (as defined
in Section 65 of the First Mortgage) under the First Mortgage, as
evidenced by notice thereof received by the Trustee from the Mortgage
Trustee) or waived as provided in Section 913 or under the First
Mortgage.
No such rescission shall affect any subsequent Event of Default or impair any
right consequent thereon.
SECTION 903. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
If an Event of Default described in clause (a) or (b) of Section
901 shall have occurred and be continuing, the Company shall, upon demand of the
Trustee, pay to it, for the benefit of the Holders of the Notes of the series
with respect to which such Event of Default shall have occurred, the whole
amount then due and payable on such Notes for principal and premium, if any, and
interest, if any, and, to the extent permitted by law, interest on premium, if
any, and on any overdue principal and interest, at the rate or rates prescribed
therefor in such Notes, and, in addition thereto, such further amount as shall
be sufficient to cover any amounts due to the Trustee under Section 1007.
If the Company shall fail to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Notes and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such Notes,
wherever situated.
If an Event of Default with respect to Notes of any series shall
have occurred and be continuing, the Trustee may in its discretion proceed to
protect and enforce its rights (including, prior to the Release Date, any rights
the Trustee may have as a holder of Senior Note First Mortgage Bonds) and the
rights of the Holders of Notes of such series by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
such rights, whether for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
SECTION 904. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Notes or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Notes shall
then be due and payable as therein expressed or by declaration or otherwise and
irrespective of
46
whether the Trustee shall have made any demand on the Company for the payment of
overdue principal or interest) shall be entitled and empowered, by intervention
in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal,
premium, if any, and interest, if any, owing and unpaid in respect of
the Notes and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any
claim for amounts due to the Trustee under Section 1007 and, prior to
the Release Date, any claims of the Trustee as holder of Senior Note
First Mortgage Bonds) and of the Holders allowed in such judicial
proceeding, and
(b) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amounts due it under Section 1007.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
SECTION 905. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF NOTES.
All rights of action and claims under this Indenture or the Notes
may be prosecuted and enforced by the Trustee without the possession of any of
the Notes or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders in respect of which such judgment has been recovered.
SECTION 906. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall
be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal or
premium, if any, or interest, if any, upon presentation of the Notes in respect
of which or for the benefit of which such money shall have been collected and
the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 1007;
SECOND: To the payment of the amounts then due and unpaid
upon the Notes for principal of and premium, if any, and
interest, if any, in respect of which or for the benefit of which
such money has been collected, ratably, without
47
preference or priority of any kind, according to the amounts due
and payable on such Notes for principal, premium, if any, and
interest, if any, respectively; and
THIRD: To the payment of the remainder, if any, to the
Company, or to whomsoever may be lawfully entitled to receive the
same or as a court of competent jurisdiction may direct.
SECTION 907. LIMITATION ON SUITS.
No Holder shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless:
(a) such Holder shall have previously given written notice to the
Trustee of a continuing Event of Default with respect to the Notes of
such series;
(b) the Holders of not less than a majority in aggregate
principal amount of the Outstanding Notes of all series in respect of
which an Event of Default shall have occurred and be continuing,
considered as one class, shall have made written request to the Trustee
to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(c) such Holder or Holders shall have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity shall have failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request shall
have been given to the Trustee during such 60-day period by the Holders
of a majority in aggregate principal amount of the Outstanding Notes of
all series in respect of which an Event of Default shall have occurred
and be continuing, considered as one class;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 908. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST.
Notwithstanding any other provision in this Indenture, the Holder
of any Note shall have the right, which is absolute and unconditional, to
receive payment of the principal of and premium, if any, and (subject to Section
307) interest, if any, on such Note on the Stated Maturity or Maturities
expressed in such Note (or, in the case of redemption, on the Redemption
48
Date) and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
SECTION 909. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding shall have
been discontinued or abandoned for any reason, or shall have been determined
adversely to the Trustee or to such Holder, then and in every such case, subject
to any determination in such proceeding, the Company, and Trustee and such
Holder shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and such Holder
shall continue as though no such proceeding had been instituted.
SECTION 910. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 911. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder to exercise
any right or remedy accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 912. CONTROL BY HOLDERS OF NOTES.
If an Event of Default shall have occurred and be continuing in
respect of a series of Notes, the Holders of a majority in principal amount of
the Outstanding Notes of such series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with respect
to the Notes of such series; provided, however, that if an Event of Default
shall have occurred and be continuing with respect to more than one series of
Notes, the Holders of a majority in aggregate principal amount of the
Outstanding Notes of all such series, considered as one class, shall have the
right to make such direction, and not the Holders of the Notes of any one of
such series; and provided, further, that
(a) such direction shall not be in conflict with any rule of law
or with this Indenture, and could not involve the Trustee in personal
liability in circumstances where indemnity would not in the Trustee's
reasonable discretion be adequate, and
49
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Before proceeding to exercise any right or power hereunder at the
direction of such Holders, the Trustee shall be entitled to receive from such
Holders reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with any such direction.
SECTION 913. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of
the Outstanding Notes of any series may on behalf of the Holders of all the
Notes of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(a) in the payment of the principal of or premium, if any, or
interest, if any, on any Note of such series, or
(b) in respect of a covenant or provision hereof which under
Section 1302 cannot be modified or amended without the consent of the
Holder of each Outstanding Note of such series affected.
Upon any such waiver, such default shall cease to exist, and any
and all Events of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 914. UNDERTAKING FOR COSTS.
The Company and the Trustee agree, and each Holder by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in aggregate
principal amount of the Outstanding Notes of all series in respect of which such
suit may be brought, considered as one class, or to any suit instituted by any
Holder for the enforcement of the payment of the principal of or premium, if
any, or interest, if any, on any Note on or after the Stated Maturity or
Maturities expressed in such Note (or, in the case of redemption, on or after
the Redemption Date).
SECTION 915. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or
50
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
SECTION 916. DEFAULT UNDER THE FIRST MORTGAGE.
In addition to every other right and remedy provided herein, the
Trustee may exercise any right or remedy available to the Trustee in its
capacity as owner and holder of Senior Note First Mortgage Bonds which arises as
a result of a Default (as defined in Section 65 of the First Mortgage) whether
or not an Event of Default hereunder shall then have occurred and be continuing.
ARTICLE X
THE TRUSTEE
SECTION 1001. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The Trustee shall have and be subject to all the duties and
responsibilities specified with respect to an indenture trustee in the
Trust Indenture Act and no implied covenants or obligations shall be read
into this Indenture against the Trustee. For purposes of Sections 315(a)
and 315(c) of the Trust Indenture Act, the term "default" is hereby
defined as an Event of Default which has occurred and is continuing.
(b) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder, or in the exercise of
any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(c) Notwithstanding anything contained in this Indenture to the
contrary, the duties and responsibilities of the Trustee under this
Indenture shall be subject to the protections, exculpations and
limitations on liability afforded to the Trustee under the provisions of
the Trust Indenture Act, including those provisions of such Act deemed by
such Act to be included herein. For the purpose of Section 315(d)(2) of
the Trust Indenture Act, the term "responsible officer" is hereby defined
as a Responsible Officer and the chairman or vice-chairman of the board
of directors, the chairman of vice-chairman of the executive committee of
the board of directors, the president, any vice president, the secretary,
any assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any trust officer or assistant trust
officer, the controller and any assistant controller of the Trustee, or
any other officer of the Trustee customarily performing functions similar
to those performed by a Responsible Officer or any of the
51
above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his or her knowledge of any familiarity with the particular
subject.
(d) Whether or not therein expressly so provided, every provision
of this Indenture relating to the conduct or affecting the liability of
or affording protection to the Trustee shall be subject to the provisions
of this Section.
SECTION 1002. NOTICE OF DEFAULTS.
The Trustee shall give the Holders notice of any default
hereunder with respect to the Notes of any series to the Holders of Notes of
such series of which it has knowledge (within the meaning of Section 1003(h)
hereof) in the manner and to the extent required to do so by the Trust Indenture
Act, unless such default shall have been cured or waived; provided, however,
that in the case of any default of the character specified in Section 901(c), no
such notice to Holders shall be given until at least 60 days after the
occurrence thereof. For the purpose of this Section, the term "default" means
any event which is, or after notice or lapse of time, or both, would become, an
Event of Default.
SECTION 1003. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 1001 and to the applicable
provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order, or
as otherwise expressly provided herein, and any resolution of the Board
of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officer's Certificate,
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
52
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any Holder pursuant to this Indenture, unless such Holder
shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall (subject to applicable legal requirements) be
entitled to examine, during normal business hours, the books, records and
premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due
care by it hereunder; and
(h) the Trustee shall not be charged with knowledge of any
default or Event of Default with respect to the Notes of any series for
which it is acting as Trustee unless either (1) a Responsible Officer of
the Trustee shall have actual knowledge of the default or Event of
Default or (2) written notice of such default or Event of Default (which
shall state that such notice is a "Notice of Default" or a "Notice of an
Event of Default" hereunder, as the case may be) shall have been given to
the Trustee by the Company, any other obligor on such Notes or by any
Holder of such Notes, or in the case of an Event of Default described in
Section 901(d), by the Mortgage Trustee or Holders of at least 25% in
principal amount of the outstanding Notes.
SECTION 1004. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF NOTES.
The recitals contained herein and in the Notes (except the
Trustee's certificates of authentication) shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Notes or as to the
value, title or validity of any Senior Note First Mortgage Bonds or other
securities at any time pledged or deposited with the Trustee hereunder or as to
the security offered thereby or hereby. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Company of Notes or the proceeds thereof.
SECTION 1005. MAY HOLD NOTES.
Each of the Trustee, any Authenticating Agent, any Paying Agent,
any Note Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Notes and, subject to
Sections 1008 and 1013, may otherwise deal with
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the Company with the same rights it would have if it were not the Trustee,
Authenticating Agent, Paying Agent, Note Registrar or such other agent.
SECTION 1006. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be
segregated from other funds, except to the extent required by law. The Trustee
shall be under no liability for interest on investment of any money received by
it hereunder except as expressly provided herein or otherwise agreed with, and
for the sole benefit of, the Company.
SECTION 1007. COMPENSATION AND REIMBURSEMENT.
The Company shall
(a) pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) except as otherwise expressly provided herein, reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances reasonably incurred or made by the Trustee in accordance with
any provision of this Indenture, including the costs of collection and
(including the reasonable compensation and the expenses and disbursements
of its agents and counsel), except to the extent that any such expense,
disbursement or advance may be attributable to its negligence, willful
misconduct or bad faith; and
(c) indemnify the Trustee and hold it harmless from and against
any loss, liability or expense (including reasonable attorney's fees and
expenses) incurred without negligence or bad faith on its part arising
out of or in connection with the acceptance or administration of the
trust or trusts hereunder or the performance of its duties hereunder,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Notes upon all
property and funds held or collected by the Trustee as such other than property
and funds held in trust under Section 803 (except as otherwise provided in
Section 803). "Trustee" for purposes of this Section shall include any
predecessor Trustee; provided; however, that the negligence, willful misconduct
or bad faith of any Trustee hereunder shall not affect the rights of any other
Trustee hereunder.
When a Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 901(e) or Section 901(f), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency or
other similar law.
The provisions of this Section 1007 shall survive termination of
this Indenture.
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SECTION 1008. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee shall have or acquire any conflicting interest
within the meaning of the Trust Indenture Act, it shall either eliminate such
conflicting interest or resign to the extent, in the manner and with the effect,
and subject to the conditions, provided in the Trust Indenture Act and this
Indenture. For purposes of Section 310(b)(1) of the Trust Indenture Act and to
the extent permitted thereby, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a Trustee under (i) this Indenture with
respect to Notes of more than one series, or (ii) the First Mortgage or with
respect to the Senior Note First Mortgage Bonds issued thereunder.
SECTION 1009. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be
(a) a corporation organized and doing business under the laws of
the United States, any State or Territory thereof or the District of
Columbia, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $100,000,000 and
subject to supervision or examination by Federal or State authority, or
(b) if and to the extent permitted by the Commission by rule,
regulation or order upon application, a corporation or other Person
organized and doing business under the laws of a foreign government,
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $100,000,000 or the Dollar
equivalent of the applicable foreign currency and subject to supervision
or examination by authority of such foreign government or a political
subdivision thereof substantially equivalent to supervision or
examination applicable to United States institutional trustees,
and, in either case, qualified and eligible under this Article and the Trust
Indenture Act. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of such supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 1010. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 1011.
(b) The Trustee may resign at any time with respect to the Notes
of one or more series by giving written notice thereof to the Company. If
the instrument of acceptance by a successor Trustee required by Section
1011 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning
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Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Notes of such
series.
(c) The Trustee may be removed at any time with respect to the
Notes of any series by Act of the Holders of a majority in principal
amount of the Outstanding Notes of such series delivered to the Trustee
and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 1008 after
written request therefor by the Company or by any Holder who has been
a bona fide Holder for at least six months, or
(2) the Trustee shall cease to be eligible under Section 1009
and shall fail to resign after written request therefor by the
Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (x) the Company by a Board Resolution may remove the
Trustee with respect to all Notes or (y) subject to Section 914, any Holder who
has been a bona fide Holder for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee with respect to all Notes and the appointment of
a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any
cause (other than as contemplated in clause (y) in subsection (d) of this
Section), with respect to the Notes of one or more series, the Company,
by a Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Notes of that or those series (it being
understood that any such successor Trustee may be appointed with respect
to the Notes of one or more or all of such series and that at any time
there shall be only one Trustee with respect to the Notes of any
particular series) and shall comply with the applicable requirements of
Section 1011. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Notes of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Notes of
such series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of
such appointment in accordance with the applicable requirements of
Section 1011, become the successor Trustee with respect to the Notes of
such series and to that extent supersede the successor Trustee appointed
by the Company. If no successor Trustee with respect to the Notes of any
series shall have been so appointed by the Company or the Holders and
accepted appointment in the manner required by Section 1011, any Holder
who has been a bona
56
fide Holder of a Note of such series for at least six months may, on
behalf of itself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with
respect to the Notes of such series.
(f) So long as no event which is, or after notice or lapse of
time, or both, would become, an Event of Default shall have occurred and
be continuing, and except with respect to a Trustee appointed by Act of
the Holders of a majority in principal amount of the Outstanding Notes
pursuant to subsection (e) of this Section, if the Company shall have
delivered to the Trustee (i) a Board Resolution appointing a successor
Trustee, effective as of a date specified therein, and (ii) an instrument
of acceptance of such appointment, effective as of such date, by such
successor Trustee in accordance with Section 1011, the Trustee shall be
deemed to have resigned as contemplated in subsection (b) of this
Section, the successor Trustee shall be deemed to have been appointed by
the Company pursuant to subsection (e) of this Section and such
appointment shall be deemed to have been accepted as contemplated in
Section 1011, all as of such date, and all other provisions of this
Section and Section 1011 shall be applicable to such resignation,
appointment and acceptance except to the extent inconsistent with this
subsection (f).
(g) The Company or, should the Company fail so to act promptly,
the successor Trustee at the expense of the Company shall give notice of
each resignation and each removal of the Trustee with respect to the
Notes of any series and each appointment of a successor Trustee with
respect to the Notes of any series by mailing written notice of such
event by first-class mail, postage prepaid, to all Holders of Notes of
such series as their names and addresses appear in the Note Register.
Each notice shall include the name of the successor Trustee with respect
to the Notes of such series and the address of its corporate trust
office.
SECTION 1011. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee
with respect to the Notes of all series, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to
the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee, including rights, title and interest in
the Senior Note First Mortgage Bonds; but, on the request of the Company
or the successor Trustee, such retiring Trustee shall, upon payment of
all sums owed to it, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Notes of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to
the Notes of one or more series shall execute and
57
deliver an indenture supplemental hereto wherein each successor Trustee
shall accept such appointment and which (1) shall contain such provisions
as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Notes of that or those series
to which the appointment of such successor Trustee relates, (2) if the
retiring Trustee is not retiring with respect to all Notes, shall contain
such provisions as shall be deemed necessary or desirable to confirm that
all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Notes of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring
Trustee and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and
apart from any trust or trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all
the rights, powers, trusts and duties of the retiring Trustee with
respect to the Notes of that or those series to which the appointment of
such successor Trustee relates; but, on request of the Company or any
successor Trustee, such retiring Trustee, upon payment of all sums owed
to it, shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder with
respect to the Notes of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any instruments which fully vest in and confirm to such successor
Trustee all such rights, powers and trusts referred to in subsection (a)
or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 1012. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Notes shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Notes so authenticated with the same effect
as if such successor Trustee had itself authenticated such Notes.
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SECTION 1013. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If the Trustee shall be or become a creditor of the Company or
any other obligor upon the Notes (other than by reason of a relationship
described in Section 311(b) of the Trust Indenture Act), the Trustee shall be
subject to any and all applicable provisions of the Trust Indenture Act
regarding the collection of claims against the Company or such other obligor.
For purposes of Section 311(b) of the Trust Indenture Act:
(a) the term "cash transaction" means any transaction in which
full payment for goods or Notes sold is made within seven days after
delivery of the goods or Notes in currency or in checks or other orders
drawn upon banks or bankers and payable upon demand;
(b) the term "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security
is received by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the making, drawing,
negotiating or incurring of the draft, bill of exchange, acceptance or
obligation.
SECTION 1014. CO-TRUSTEES AND SEPARATE TRUSTEES.
At any time or times, for the purpose of meeting the legal
requirements of any applicable jurisdiction, the Company and the Trustee shall
have power to appoint, and, upon the written request of the Trustee or of the
Holders of at least thirty-three per centum (33%) in principal amount of the
Notes then Outstanding, the Company shall for such purpose join with the Trustee
in the execution and delivery of all instruments and agreements necessary or
proper to appoint, one or more Persons approved by the Trustee either to act as
co-trustee, jointly with the Trustee, or to act as separate trustee, in either
case with such powers as may be provided in the instrument of appointment, and
to vest in such Person or Persons, in the capacity aforesaid, any property,
title, right or power deemed necessary or desirable, subject to the other
provisions of this Section. If the Company does not join in such appointment
within 15 days after the receipt by it of a request so to do, or if an Event of
Default shall have occurred and be continuing, the Trustee alone shall have
power to make such appointment.
Should any written instrument or instruments from the Company be
required by any co-trustee or separate trustee so appointed to more fully
confirm to such co-trustee or separate trustee such property, title, right or
power, any and all such instruments shall, on request, be executed, acknowledged
and delivered by the Company.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the following
conditions:
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(a) the Notes shall be authenticated and delivered, and all
rights, powers, duties and obligations hereunder in respect of the
custody of Notes, cash and other personal property held by, or required
to be deposited or pledged with, the Trustee hereunder, shall be
exercised solely, by the Trustee;
(b) the rights, powers, duties and obligations hereby conferred
or imposed upon the Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or performed
either by the Trustee or by the Trustee and such co-trustee or separate
trustee jointly, as shall be provided in the instrument appointing such
co-trustee or separate trustee, except to the extent that under any law
of any jurisdiction in which any particular act is to be performed, the
Trustee shall be incompetent or unqualified to perform such act, in which
event such rights, powers, duties and obligations shall be exercised and
performed by such co-trustee or separate trustee;
(c) the Trustee at any time, by an instrument in writing executed
by it, with the concurrence of the Company, may accept the resignation of
or remove any co-trustee or separate trustee appointed under this
Section, and, if an Event of Default shall have occurred and be
continuing, the Trustee shall have power to accept the resignation of, or
remove, any such co-trustee or separate trustee without the concurrence
of the Company. Upon the written request of the Trustee, the Company
shall join with the Trustee in the execution and delivery of all
instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or separate trustee
so resigned or removed may be appointed in the manner provided in this
Section;
(d) no co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Trustee, or any
other such trustee hereunder; and
(e) any Act of Holders delivered to the Trustee shall be deemed
to have been delivered to each such co-trustee and separate trustee.
SECTION 1015. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents with
respect to the Notes of one or more series, or any Tranche thereof, which shall
be authorized to act on behalf of the Trustee to authenticate Notes of such
series or Tranche issued upon original issuance, exchange, registration of
transfer or partial redemption thereof or pursuant to Section 306, and Notes so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Notes by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the United
States, any State or territory thereof or the District of Columbia or the
Commonwealth of Puerto Rico, authorized under such laws to act as
60
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving 45 days
written notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all
the rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section.
The provisions of Sections 308, 1004 and 1005 shall be applicable
to each Authenticating Agent.
If an appointment with respect to the Notes of one or more
series, or any Tranche thereof, shall be made pursuant to this Section, the
Notes of such series or Tranche may have endorsed thereon, in addition to the
Trustee's certificate of authentication, an alternate certificate of
authentication substantially in the following form:
This is one of the Notes of the series designated therein
referred to in the within-mentioned Indenture.
Dated:
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_________________________________
As Trustee
By _________________________________
As Authenticating Agent
By _________________________________
Authorized Signatory
If all of the Notes of a series may not be originally issued at
one time, and if the Trustee does not have an office capable of authenticating
Notes upon original issuance located in a Place of Payment where the Company
wishes to have Notes of such series authenticated upon original issuance, the
Trustee, if so requested by the Company in writing (which writing need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel),
shall appoint, in accordance with this Section and in accordance with such
procedures as shall be acceptable to the Trustee, an Authenticating Agent having
an office in a Place of Payment designated by the Company with respect to such
series of Notes.
ARTICLE XI
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 1101. LISTS OF HOLDERS.
Semiannually, between March 15 and April 1 and between September
15 and October 1 in each year, commencing with the year 1999, and at such other
times as the Trustee may request in writing, the Company shall furnish or cause
to be furnished to the Trustee information as to the names and addresses of the
Holders, and the Trustee shall preserve such information and similar information
received by it in any other capacity and afford to the Holders access to
information so preserved by it, all to such extent, if any, and in such manner
as shall be required by the Trust Indenture Act; provided, however, that no such
list need be furnished so long as the Trustee shall be the Note Registrar. Every
holder of Notes by receiving and holding the same, agrees with the Company and
the Trustee that neither the Company nor the Trustee nor any agent of either of
them shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders of Notes in accordance
with Section 312 of the Trust Indenture Act, or any successor section of such
Act, regardless of the source from which such information was derived, and that
the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 312(b) of the Trust Indenture Act, or
any successor section of such Act.
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SECTION 1102. REPORTS BY TRUSTEE AND COMPANY.
Annually, not later than sixty (60) days after May 15 in each
year, commencing May 15, 1999, the Trustee shall transmit to the Holders, the
Commission and each securities exchange upon which any Notes are listed, a
report, dated as of the next preceding May 15th, with respect to any events and
other matters described in Section 313(a) of the Trust Indenture Act, in such
manner and to the extent required by the Trust Indenture Act. The Trustee shall
transmit to the Holders, the Commission and each securities exchange upon which
any Notes are listed, and the Company shall file with the Trustee (within thirty
(30) days after filing with the Commission in the case of reports which pursuant
to the Trust Indenture Act must be filed with the Commission and furnished to
the Trustee) and transmit to the Holders, such other information, reports and
other documents, if any, at such times and in such manner, as shall be required
by the Trust Indenture Act. The Company shall notify the Trustee of the listing
of any Notes on any securities exchange. Delivery of such reports, information
and documents by the Company to the Trustee is for informational purposes only,
and the Trustee's receipt of such shall not constitute constructive notice of
any information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officer's
Certificates).
ARTICLE XII
CONSOLIDATION, MERGER, CONVEYANCE OR OTHER TRANSFER
SECTION 1201. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other
corporation, or convey or otherwise transfer or lease its properties and assets
substantially as an entirety to any Person, unless
(a) the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a Person organized and existing
under the laws of the United States, any State thereof or the District of
Columbia, and (a) 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 Notes and the
performance of every covenant of this Indenture on the part of the
Company to be performed or observed, and (b) if such consolidation,
merger, conveyance, transfer, or lease occurs prior to the Release Date,
shall expressly assume, by an indenture supplemental to the First
Mortgage, executed and delivered to the Trustee and the Mortgage Trustee,
in form satisfactory to the Trustee and the Mortgage Trustee, the due and
punctual payment of the principal of, and premium, if any, and interest
on all of the Senior Note First Mortgage Bonds and the performance of
every covenant of the First Mortgage on the part of the Company to be
performed or observed.
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(b) immediately after giving effect to such transaction and
treating any indebtedness for borrowed money which becomes an obligation
of the Company as a result of such transaction as having been incurred by
the Company at the time of such transaction, no Event of Default, and no
event which, after notice or lapse of time or both, would become an Event
of Default, shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, or other transfer or lease and such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transactions have been
complied with.
SECTION 1202. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation by the Company with or merger by the
Company into any other corporation or any conveyance, or other transfer or lease
of the properties and assets of the Company substantially as an entirety in
accordance with Section 1201, the successor corporation formed by such
consolidation or into which the Company is merged or the Person to which such
conveyance, transfer or lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Indenture with
the same effect as if such successor Person had been named as the Company
herein, and thereafter, except in the case of a lease, the predecessor Person
shall be relieved of all obligations and covenants under this Indenture and the
Notes Outstanding hereunder.
ARTICLE XIII
SUPPLEMENTAL INDENTURES
SECTION 1301. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company and the Trustee,
at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(a) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Notes, all as provided in Article Twelve; or
(b) to add one or more covenants of the Company or other
provisions for the benefit of all Holders or for the benefit of the
Holders of, or to remain in effect only so long as there shall be
Outstanding, Notes of one or more specified series, or one or more
specified Tranches thereof, or to surrender any right or power herein
conferred upon the Company; or
(c) to add any additional Events of Default with respect to all
or any series of Notes Outstanding hereunder; or
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(d) to change or eliminate any provision of this Indenture or to
add any new provision to this Indenture; provided, however, that if such
change, elimination or addition shall adversely affect the interests of
the Holders of Notes of any series or Tranche Outstanding on the date of
such indenture supplemental hereto in any material respect, such change,
elimination or addition shall become effective with respect to such
series or Tranche only pursuant to the provisions of Section 1302 hereof
or when no Note of such series or Tranche remains Outstanding; or
(e) to provide collateral security for the Notes; or
(f) to establish the form or terms of Notes of any series or
Tranche as contemplated by Sections 201 and 301; or
(g) to provide for the authentication and delivery of bearer
Notes and coupons appertaining thereto representing interest, if any,
thereon and for the procedures for the registration, exchange and
replacement thereof and for the giving of notice to, and the solicitation
of the vote or consent of, the holders thereof, and for any and all other
matters incidental thereto; or
(h) to evidence and provide for the acceptance of appointment
hereunder by a separate or successor Trustee with respect to the Notes of
one or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 1011(b); or
(i) to provide for the procedures required to permit the Company
to utilize, at its option, a non-certificated system of registration for
all, or any series or Tranche of, the Notes; or to provide for the
authentication and delivery of bearer Notes and coupons appertaining
thereto representing interest, if any, thereon and for the procedures for
the registration, exchange and replacement thereof and for the giving of
notice to, and the solicitation of the vote or consent of, the holders
thereof, and for any and all other matters incidental thereto; or
(j) to change any place or places where (1) the principal of and
premium, if any, and interest, if any, on all or any series of Notes, or
any Tranche thereof, shall be payable, (2) all or any series of Notes, or
any Tranche thereof, may be surrendered for registration of transfer, (3)
all or any series of Notes, or any Tranche thereof, may be surrendered
for exchange and (4) notices and demands to or upon the Company in
respect of all or any series of Notes, or any Tranche thereof, and this
Indenture may be served; or
(k) to cure any ambiguity or to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein; provided that no such changes or additions shall
adversely affect the interests of the Holders of Notes of any series or
Tranche in any material respect.
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As to whether the interests of the Holders of Notes shall be
adversely affected pursuant to clause (k) above, the Trustee shall be entitled
to receive, may presume the correctness of, and shall be fully protected in
relying upon an Officer's Certificate and/or an Opinion of Counsel to such
effect.
Without limiting the generality of the foregoing, if the Trust
Indenture Act as in effect at the date of the execution and delivery of this
Indenture or at any time thereafter shall be amended and
(x) if any such amendment shall require one or more
changes to any provisions hereof or the inclusion herein of any
additional provisions, or shall by operation of law be deemed to
effect such changes or incorporate such provisions by reference
or otherwise, this Indenture shall be deemed to have been amended
so as to conform to such amendment to the Trust Indenture Act,
and the Company and the Trustee may, without the consent of any
Holders, enter into an indenture supplemental hereto to effect or
evidence such changes or additional provisions; or
(y) if any such amendment shall permit one or more changes
to, or the elimination of, any provisions hereof which, at the
date of the execution and delivery hereof or at any time
thereafter, are required by the Trust Indenture Act to be
contained herein, this Indenture shall be deemed to have been
amended to effect such changes or elimination, and the Company
and the Trustee may, without the consent of any Holders, enter
into an indenture supplemental hereto to evidence such amendment
hereof.
SECTION 1302. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Notes of all series then Outstanding under
this Indenture, considered as one class, by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board Resolution, and
the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, this Indenture; provided, however, that if
there shall be Notes of more than one series Outstanding hereunder and if a
proposed supplemental indenture shall directly affect the rights of the Holders
of Notes of one or more, but less than all, of such series, then the consent
only of the Holders of a majority in aggregate principal amount of the
Outstanding Notes of all series so directly affected, considered as one class,
shall be required; and provided, further, that if the Notes of any series shall
have been issued in more than one Tranche and if the proposed supplemental
indenture shall directly affect the rights of the Holders of Notes of one or
more, but less than all, of such Tranches, then the consent only of the Holders
of a majority in aggregate principal amount of the Outstanding Notes of all
Tranches so directly affected, considered as one class, shall be required; and
provided, further, that no such supplemental indenture shall:
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(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Note, or reduce the
principal amount thereof or the rate of interest thereon (or the amount
of any installment of interest thereon) or change the method of
calculating such rate or reduce any premium payable upon the redemption
thereof, or reduce the amount of the principal of a Discount Note that
would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 902, or change the coin or currency
(or other property), in which any Note or any premium or the interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity of any
Note (or, in the case of redemption, on or after the Redemption Date),
without, in any such case, the consent of the Holder of such Note, or
(b) prior to the Release Date, impair the interest hereunder of
the Trustee in any Senior Note First Mortgage Bonds, reduce the principal
amount of any series of Senior Note First Mortgage Bonds to an amount
less than the principal amount of the related series of Notes or alter
the payment provisions of such Senior Note First Mortgage Bonds in a
manner adverse to the Holders of the Senior Notes, without, in any such
case, the consent of the Holder of each Outstanding Note; or
(c) reduce the percentage in principal amount of the Outstanding
Notes of any series or any Tranche thereof, the consent of the Holders of
which is required for any such supplemental indenture, or the consent of
the Holders of which is required for any waiver of compliance with any
provision of this Indenture or of any default hereunder and its
consequences, or reduce the requirements of Section 1404 for quorum or
voting, without, in any such case, the consent of the Holders of each
Outstanding Note of such series or Tranche, or
(d) modify any of the provisions of this Section, Section 707 or
Section 913 with respect to the Notes of any series, or any Tranche
thereof (except to increase the percentages in principal amount referred
to in this Section or such other Sections or to provide that other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Note affected thereby);
provided, however, that this clause shall not be deemed to require the
consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section, or the deletion of this
proviso, in accordance with the requirements of Sections 1011(b), 1014
and 1301(h).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Notes, or of one or more Tranches
thereof, or which modifies the rights of the Holders of Notes of such series or
Tranches with respect to such covenant or other provision, shall be deemed not
to affect the rights under this Indenture of the Holders of Notes of any other
series or Tranche.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall
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approve the substance thereof. A waiver by a Holder of such Holder's right to
consent under this Section shall be deemed to be a consent of such Holder.
SECTION 1303. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 1001) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties, immunities or liabilities under this Indenture or
otherwise.
SECTION 1304. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this
Article this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Notes theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby. Any supplemental indenture permitted by this
Article may restate this Indenture in its entirety, and, upon the execution and
delivery thereof, any such restatement shall supersede this Indenture as
theretofore in effect for all purposes.
SECTION 1305. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 1306. REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES.
Notes of any series, or any Tranche thereof, authenticated and
delivered after the execution of any supplemental indenture pursuant to this
Article may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Notes of any series, or any
Tranche thereof, so modified as to conform, in the opinion of the Trustee and
the Company, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Notes of such series or Tranche.
SECTION 1307. MODIFICATION WITHOUT SUPPLEMENTAL INDENTURE.
If the terms of any particular series of Notes shall have been
established in a Board Resolution or an Officer's Certificate pursuant to a
Board Resolution as contemplated by Section 301, and not in an indenture
supplemental hereto, additions to, changes in or the elimination of any of such
terms may be effected by means of a supplemental Board Resolution or Officer's
Certificate, as the case may be, delivered to, and accepted by, the Trustee;
provided, however, that such supplemental Board Resolution or Officer's
Certificate shall not be accepted
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by the Trustee or otherwise be effective unless all conditions set forth in this
Indenture which would be required to be satisfied if such additions, changes or
elimination were contained in a supplemental indenture shall have been
appropriately satisfied. Upon the acceptance thereof by the Trustee, any such
supplemental Board Resolution or Officer's Certificate shall be deemed to be a
"supplemental indenture" for purposes of Section 1304 and 1306.
ARTICLE XIV
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
SECTION 1401. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Notes of one or more, or all, series, or
any Tranche or Tranches thereof, may be called at any time and from time to time
pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Notes of such series or
Tranches.
SECTION 1402. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of
Notes of one or more, or all, series, or any Tranche or Tranches thereof,
for any purpose specified in Section 1401, to be held at such time and at
such place in the Borough of Manhattan, The City of New York, as the
Trustee shall determine, or, with the approval of the Company, at any
other place. Notice of every such meeting, setting forth the time and the
place of such meeting and in general terms the action proposed to be
taken at such meeting, shall be given, in the manner provided in Section
106, not less than 21 nor more than 180 days prior to the date fixed for
the meeting.
(b) If the Trustee shall have been requested to call a meeting of
the Holders of Notes of one or more, or all, series, or any Tranche or
Tranches thereof, by the Company or by the Holders of 33% in aggregate
principal amount of all of such series and Tranches, considered as one
class, for any purpose specified in Section 1401, by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have given the notice of such meeting
within 21 days after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein, then the
Company or the Holders of Notes of such series and Tranches in the amount
above specified, as the case may be, may determine the time and the place
in the Borough of Manhattan, The City of New York, or in such other place
as shall be determined or approved by the Company, for such meeting and
may call such meeting for such purposes by giving notice thereof as
provided in subsection (a) of this Section.
(c) Any meeting of Holders of Notes of one or more, or all,
series, or any Tranche or Tranches thereof, shall be valid without notice
if the Holders of all Outstanding Notes of such series or Tranches are
present in person or by proxy and if
69
representatives of the Company and the Trustee are present, or if notice
is waived in writing before or after the meeting by the Holders of all
Outstanding Notes of such series, or by such of them as are not present
at the meeting in person or by proxy, and by the Company and the Trustee.
SECTION 1403. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Notes of one
or more, or all, series, or any Tranche or Tranches thereof, a Person shall be
(a) a Holder of one or more Outstanding Notes of such series or Tranches, or (b)
a Person appointed by an instrument in writing as proxy for a Holder or Holders
of one or more Outstanding Notes of such series or Tranches by such Holder or
Holders. The only Persons who shall be entitled to attend any meeting of Holders
of Notes of any series or Tranche shall be the Persons entitled to vote at such
meeting and their counsel, any representatives of the Trustee and its counsel
and any representatives of the Company and its counsel.
SECTION 1404. QUORUM; ACTION.
The Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Notes of the series and Tranches with respect to which
a meeting shall have been called as hereinbefore provided, considered as one
class, shall constitute a quorum for a meeting of Holders of Notes of such
series and Tranches; provided, however, that if any action is to be taken at
such meeting which this Indenture expressly provides may be taken by the Holders
of a specified percentage, which is less than a majority, in principal amount of
the Outstanding Notes of such series and Tranches, considered as one class, the
Persons entitled to vote such specified percentage in principal amount of the
Outstanding Notes of such series and Tranches, considered as one class, shall
constitute a quorum. In the absence of a quorum within one hour of the time
appointed for any such meeting, the meeting shall, if convened at the request of
Holders of Notes of such series and Tranches, be dissolved. In any other case
the meeting may be adjourned for such period as may be determined by the
chairman of the meeting prior to the adjournment of such meeting. In the absence
of a quorum at any such adjourned meeting, such adjourned meeting may be further
adjourned for such period as may be determined by the chairman of the meeting
prior to the adjournment of such adjourned meeting. Except as provided by
Section 1405(e), notice of the reconvening of any meeting adjourned for more
than 30 days shall be given as provided in Section 1402(a) not less than ten
days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding Notes
of such series and Tranches which shall constitute a quorum.
Except as limited by Section 1302, any resolution presented to a
meeting or adjourned meeting duly reconvened at which a quorum is present as
aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in aggregate principal amount of the Outstanding Notes of the series
and Tranches with respect to which such meeting shall have been called,
considered as one class; provided, however, that, except as so limited, any
resolution with respect to any action which this Indenture expressly provides
may be taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Notes of such series and
Tranches, considered as one class, may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal amount
of the Outstanding Notes
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of such series and Tranches, considered as one class.
Any resolution passed or decision taken at any meeting of Holders
of Notes duly held in accordance with this Section shall be binding on all the
Holders of Notes of the series and Tranches with respect to which such meeting
shall have been held, whether or not present or represented at the meeting.
SECTION 1405. ATTENDANCE AT MEETINGS; DETERMINATION OF VOTING RIGHTS;
CONDUCT AND ADJOURNMENT OF MEETINGS.
(a) Attendance at meetings of Holders of Notes may be in person
or by proxy; and, to the extent permitted by law, any such proxy shall
remain in effect and be binding upon any future Holder of the Notes with
respect to which it was given unless and until specifically revoked by
the Holder or future Holder of such Notes before being voted.
(b) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Notes in regard to proof of the holding of such
Notes and of the appointment of proxies and in regard to the appointment
and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such
other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Notes shall be proved in the manner specified
in Section 104 and the appointment of any proxy shall be proved in the
manner specified in Section 104. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be
presumed valid and genuine without the proof specified in Section 104 or
other proof.
(c) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders as provided in Section 1402(b), in
which case the Company or the Holders of Notes of the series and Tranches
calling the meeting, as the case may be, shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent secretary of the
meeting shall be elected by vote of the Persons entitled to vote a
majority in aggregate principal amount of the Outstanding Notes of all
series and Tranches represented at the meeting, considered as one class.
(d) At any meeting each Holder or proxy shall be entitled to one
vote for each $1 principal amount of Notes held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting
in respect of any Note challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote, except as a Holder of a Note or
proxy.
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(e) Any meeting duly called pursuant to Section 1402 at which a
quorum is present may be adjourned from time to time by Persons entitled
to vote a majority in aggregate principal amount of the Outstanding Notes
of all series and Tranches represented at the meeting, considered as one
class; and the meeting may be held as so adjourned without further
notice.
SECTION 1406. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders
shall be by written ballots on which shall be subscribed the signatures of the
Holders or of their representatives by proxy and the principal amounts and
serial numbers of the Outstanding Notes, of the series and Tranches with respect
to which the meeting shall have been called, held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports of all votes cast at the meeting. A record of the proceedings of each
meeting of Holders shall be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of the inspectors of votes
on any vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1402 and, if
applicable, Section 1404. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
SECTION 1407. ACTION WITHOUT MEETING.
In lieu of a vote of Holders at a meeting as hereinbefore
contemplated in this Article, any request, demand, authorization, direction,
notice, consent, waiver or other action may be made, given or taken by Holders
by written instruments as provided in Section 104.
ARTICLE XV
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 1501. LIABILITY SOLELY CORPORATE.
No recourse shall be had for the payment of the principal of or
premium, if any, or interest, if any, on any Notes, or any part thereof, or for
any claim based thereon or otherwise in respect thereof, or of the indebtedness
represented thereby, or upon any obligation, covenant or agreement under this
Indenture, against any incorporator, stockholder, officer or director, as such,
past, present or future of the Company or of any predecessor or successor
corporation (either directly or through the Company or a predecessor or
successor corporation), whether by virtue of any constitutional provision,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly agreed and understood that this Indenture and all
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the Notes are solely corporate obligations, and that no personal liability
whatsoever shall attach to, or be incurred by, any incorporator, stockholder,
officer or director, past, present or future, of the Company or of any
predecessor or successor corporation, either directly or indirectly through the
Company or any predecessor or successor corporation, because of the indebtedness
hereby authorized or under or by reason of any of the obligations, covenants or
agreements contained in this Indenture or in any of the Notes or to be implied
herefrom or therefrom, and that any such personal liability is hereby expressly
waived and released as a condition of, and as part of the consideration for, the
execution of this Indenture and the issuance of the Notes.
--------------------
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
CAROLINA POWER & LIGHT COMPANY
By: /s/ Mark F. Mulhern
------------------------------------
Mark F. Mulhern
Vice President and Treasurer
[SEAL]
ATTEST:
/s/ Patricia Kornegay-Timmons
- ---------------------------------
Patricia Kornegay-Timmons
Assistant Secretary
(TRUSTEE'S SIGNATURE PAGE FOLLOWS)
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TRUSTEE'S SIGNATURE PAGE
INDENTURE (FOR SENIOR NOTES), DATED AS OF MARCH 1, 1999
THE BANK OF NEW YORK, Trustee
By: /s/ Mary Jane Schmalzel
------------------------------------
Mary Jane Schmalzel
Vice President
[SEAL]
ATTEST:
/s/ Louis J. Hack
- ---------------------------------
Louis J. Hack
Assistant Secretary
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