EXHIBIT 4.1(a)
* This Instrument Grants a Security Interest by a
Public Utility
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NEVADA POWER COMPANY
TO
THE BANK OF NEW YORK
Trustee
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General and Refunding Mortgage Indenture
Dated as of May 1, 2001
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* This Instrument Contains After-Acquired Property Provisions
NEVADA POWER COMPANY
Reconciliation and Tie between Trust Indenture Act of 1939 and
Indenture, dated as of May 1, 2001
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Trust Indenture Act Section Indenture Section(s)
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(S)310(a)(1).............................................. 11.09
(a)(2).............................................. 11.09
(a)(3).............................................. 11.14(B)
(a)(4).............................................. Not Applicable
(b)................................................. 11.08, 11.10
(S)311(a)................................................. 11.13
(b)................................................. 11.13
(c)................................................. Not Applicable
(S)312(a)................................................. 12.01
(b)................................................. 12.01
(c)................................................. 12.01
(S)313(a)................................................. 12.02
(b)................................................. 12.02
(c)................................................. 12.02
(d)................................................. 12.02
(S)314(a)................................................. 12.02, 6.10
(b)................................................. 6.08
(c)(1).............................................. 1.04
(c)(2).............................................. 1.04
(c)(3).............................................. 1.05
(d)................................................. 4.02, 6.07(b),
8.03, 8.04, 8.09
(e)................................................. 1.04
(S)315(a)................................................. 11.01, 11.03
(b)................................................. 11.02
(c)................................................. 11.01
(d)................................................. 11.01
(e)................................................. 10.18
(S)316(a)................................................. 10.16
(a)(1)(A)........................................... 10.02, 10.17
(a)(1)(B)........................................... 10.17
(a)(2).............................................. Not Applicable
(b)................................................. 10.12
(S)317(a)(1).............................................. 10.06
(a)(2).............................................. 10.09
(b)................................................. 6.03
(S)318(a)................................................. 1.09
TABLE OF CONTENTS
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Page
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Recital of the Company........................................................1
Granting Clauses .............................................................1
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.........6
SECTION 1.01 General Definitions.............................................6
"Accountant".........................................................7
"Act"................................................................7
"Affiliate"..........................................................7
"Authenticating Agent"...............................................7
"Authorized Officer".................................................7
"Authorized Publication".............................................7
"Authorized Purposes"................................................7
"Board of Directors".................................................7
"Board Resolution"...................................................8
"Business Day".......................................................8
"Commission".........................................................8
"Company"............................................................8
"Company Order" or "Company Request".................................8
"Corporate Trust Office".............................................8
"corporation"........................................................8
"Cost"...............................................................8
"Defaulted Interest".................................................8
"Discount Security"..................................................8
"Dollar" or "$"......................................................8
"Eligible Obligations"...............................................9
"Event of Default"...................................................9
"Excepted Property"..................................................9
"Expert".............................................................9
"Expert's Certificate"...............................................9
"Fair Value".........................................................9
"First Mortgage Bonds"..............................................10
"Funded Cash".......................................................10
"Funded Property"...................................................10
"Governmental Authority"............................................10
"Government Obligations"............................................10
"Holder"............................................................10
"Indenture".........................................................10
"Independent".......................................................10
"Independent Expert's Certificate"..................................11
"Initial Expert's Certificate"......................................11
"Initial Series"....................................................11
"Interest Payment Date".............................................11
"Investment Securities".............................................11
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"Lien"..............................................................12
"Maturity"..........................................................12
"Mortgaged Property"................................................12
"Notice of Default".................................................12
"NVP 1953 Mortgage".................................................12
"Officer's Certificate".............................................12
"Opinion of Counsel"................................................12
"Outstanding".......................................................12
"Outstanding".......................................................14
"Paying Agent"......................................................14
"Periodic Offering".................................................14
"Permitted Liens"...................................................14
"Person"............................................................17
"Place of Payment"..................................................17
"Predecessor Security"..............................................17
"Prepaid Lien"......................................................17
"Property Additions"................................................17
"Purchase Money Lien"...............................................17
"Redemption Date"...................................................18
"Redemption Price"..................................................18
"Regular Record Date"...............................................18
"Required Currency".................................................18
"Responsible Officer"...............................................18
"Retired Securities"................................................18
"Securities"........................................................19
"Security Register" and "Security Registrar"........................19
"Special Record Date"...............................................19
"Stated Interest Rate"..............................................19
"Stated Maturity"...................................................19
"Successor Corporation".............................................19
"Tranche"...........................................................19
"Trust Indenture Act"...............................................19
"Trustee"...........................................................19
"United States".....................................................19
SECTION 1.02 Funded Property; Funded Cash...................................20
SECTION 1.03 Property Additions; Cost.......................................21
SECTION 1.04 Compliance Certificates and Opinions...........................23
SECTION 1.05 Content and Form of Documents Delivered to Trustee.............24
SECTION 1.06 Acts of Holders................................................26
SECTION 1.07 Notices, Etc. to Trustee and Company...........................27
SECTION 1.08 Notice to Holders of Securities; Waiver........................28
SECTION 1.09 Conflict with Trust Indenture Act..............................28
SECTION 1.10 Effect of Headings and Table of Contents.......................29
SECTION 1.11 Successors and Assigns.........................................29
SECTION 1.12 Separability Clause............................................29
SECTION 1.13 Benefits of Indenture..........................................29
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SECTION 1.14 Governing Law..................................................29
SECTION 1.15 Legal Holidays.................................................29
SECTION 1.16 Investment of Cash Held by Trustee.............................30
ARTICLE II SECURITY FORMS.................................................30
SECTION 2.01 Forms Generally................................................30
SECTION 2.02 Form of Trustee's Certificate of Authentication................31
ARTICLE III THE SECURITIES.................................................31
SECTION 3.01 Amount Unlimited; Issuable in Series...........................31
SECTION 3.02 Denominations..................................................34
SECTION 3.03 Execution, Dating, Certificate of Authentication...............35
SECTION 3.04 Temporary Securities...........................................35
SECTION 3.05 Registration, Registration of Transfer and Exchange............36
SECTION 3.06 Mutilated, Destroyed, Lost and Stolen Securities...............37
SECTION 3.07 Payment of Interest; Interest Rights Preserved.................38
SECTION 3.08 Persons Deemed Owners..........................................39
SECTION 3.09 Cancellation by Security Registrar.............................39
SECTION 3.10 Computation of Interest........................................39
SECTION 3.11 Payment to Be in Proper Currency...............................40
SECTION 3.12 CUSIP Numbers..................................................40
ARTICLE IV ISSUANCE OF SECURITIES.........................................40
SECTION 4.01 General........................................................40
SECTION 4.02 Issuance of Securities on the Basis of Property Additions......42
SECTION 4.03 Issuance of Securities on the Basis of Retired Securities......45
SECTION 4.04 Issuance of Securities on the Basis of Deposit of Cash.........45
ARTICLE V REDEMPTION OF SECURITIES.......................................46
SECTION 5.01 Applicability of Article.......................................46
SECTION 5.02 Election to Redeem; Notice to Trustee..........................46
SECTION 5.03 Selection of Securities to Be Redeemed.........................47
SECTION 5.04 Notice of Redemption...........................................47
SECTION 5.05 Securities Payable on Redemption Date..........................48
SECTION 5.06 Securities Redeemed in Part....................................49
ARTICLE VI COVENANTS......................................................49
SECTION 6.01 Payment of Securities; Lawful Possession; Maintenance of Lien..49
SECTION 6.02 Maintenance of Office or Agency................................49
SECTION 6.03 Money for Securities Payments to Be Held in Trust..............50
SECTION 6.04 Corporate Existence............................................51
SECTION 6.05 Maintenance of Properties......................................51
SECTION 6.06 Payment of Taxes; Discharge of Liens...........................52
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SECTION 6.07 Insurance......................................................52
SECTION 6.08 Recording, Filing, etc.........................................56
SECTION 6.09 Waiver of Certain Covenants....................................57
SECTION 6.10 Annual Officer's Certificate as to Compliance..................57
ARTICLE VII COVENANTS RELATING TO THE NVP 1953 MORTGAGE....................57
SECTION 7.01 Prompt Payment of First Mortgage Bonds.........................57
SECTION 7.02 Closing and Discharge of NVP 1953 Mortgage.....................58
ARTICLE VIII POSSESSION, USE AND RELEASE OF MORTGAGED PROPERTY..............58
SECTION 8.01 Quiet Enjoyment................................................58
SECTION 8.02 Dispositions without Release...................................58
SECTION 8.03 Release of Funded Property.....................................59
SECTION 8.04 Release of Property Not Constituting Funded Property...........64
SECTION 8.05 Release of Minor Properties....................................65
SECTION 8.06 Withdrawal or Other Application of Funded Cash; Purchase
Money Obligations..............................................66
SECTION 8.07 Release of Property Taken by Eminent Domain, etc...............69
SECTION 8.08 Disclaimer or Quitclaim........................................69
SECTION 8.09 Miscellaneous..................................................70
ARTICLE IX SATISFACTION AND DISCHARGE.....................................71
SECTION 9.01 Satisfaction and Discharge of Securities.......................71
SECTION 9.02 Satisfaction and Discharge of Indenture........................73
SECTION 9.03 Application of Trust Money.....................................74
ARTICLE X EVENTS OF DEFAULT; REMEDIES....................................74
SECTION 10.01 Events of Default..............................................74
SECTION 10.02 Acceleration of Maturity; Rescission and Annulment.............76
SECTION 10.03 Entry upon Mortgaged Property..................................77
SECTION 10.04 Power of Sale; Suits for Enforcement...........................77
SECTION 10.05 Incidents of Sale..............................................77
SECTION 10.06 Collection of Indebtedness and Suits for Enforcement by
Trustee........................................................78
SECTION 10.07 Application of Money Collected.................................79
SECTION 10.08 Receiver.......................................................80
SECTION 10.09 Trustee May File Proofs of Claim...............................80
SECTION 10.10 Trustee May Enforce Claims without Possession of Securities....81
SECTION 10.11 Limitation on Suits............................................81
SECTION 10.12 Unconditional Right of Holders to Receive Principal, Premium
and Interest...................................................82
SECTION 10.13 Restoration of Rights and Remedies.............................82
SECTION 10.14 Rights and Remedies Cumulative.................................82
SECTION 10.15 Delay or Omission Not Waiver...................................82
SECTION 10.16 Control by Holders of Securities...............................83
SECTION 10.17 Waiver of Past Defaults........................................83
SECTION 10.18 Undertaking for Costs..........................................83
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SECTION 10.19 Waiver of Appraisement and Other Laws...........................84
ARTICLE XI THE TRUSTEE.....................................................84
SECTION 11.01 Certain Duties and Responsibilities.............................84
SECTION 11.02 Notice of Defaults..............................................85
SECTION 11.03 Certain Rights of Trustee.......................................85
SECTION 11.04 Not Responsible for Recitals or Issuance of Securities or
Application of Proceeds.........................................87
SECTION 11.05 May Hold Securities.............................................87
SECTION 11.06 Money Held in Trust.............................................87
SECTION 11.07 Compensation and Reimbursement..................................88
SECTION 11.08 Disqualification; Conflicting Interests.........................88
SECTION 11.09 Corporate Trustee Required; Eligibility.........................89
SECTION 11.10 Resignation and Removal; Appointment of Successor...............89
SECTION 11.11 Acceptance of Appointment by Successor..........................91
SECTION 11.12 Merger, Conversion, Consolidation or Succession to Business.....91
SECTION 11.13 Preferential Collection of Claims against Company...............91
SECTION 11.14 Co-trustees and Separate Trustees...............................92
SECTION 11.15 Appointment of Authenticating Agent.............................93
ARTICLE XII LISTS OF HOLDERS; REPORTS BY TRUSTEE AND COMPANY................95
SECTION 12.01 Lists of Holders................................................95
SECTION 12.02 Reports by Trustee and Company..................................95
ARTICLE XIII CONSOLIDATION, MERGER, CONVEYANCE OR OTHER TRANSFER.............96
SECTION 13.01 Company May Consolidate, etc., Only on Certain Terms............96
SECTION 13.02 Successor Corporation Substituted...............................97
SECTION 13.03 Extent of Lien Hereof on Property of Successor Corporation......98
SECTION 13.04 Release of Company upon Conveyance or Other Transfer............98
SECTION 13.05 Merger into Company; Extent of Lien Hereof......................98
ARTICLE XIV SUPPLEMENTAL INDENTURES.........................................99
SECTION 14.01 Supplemental Indentures without Consent of Holders..............99
SECTION 14.02 Supplemental Indentures with Consent of Holders................101
SECTION 14.03 Execution of Supplemental Indentures...........................102
SECTION 14.04 Effect of Supplemental Indentures..............................102
SECTION 14.05 Conformity with Trust Indenture Act............................102
SECTION 14.06 Reference in Securities to Supplemental Indentures.............103
SECTION 14.07 Modification Without Supplemental Indenture....................103
ARTICLE XV MEETINGS OF HOLDERS; ACTION WITHOUT MEETING....................103
SECTION 15.01 Purposes for Which Meetings May Be Called......................103
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SECTION 15.02 Call, Notice and Place of Meetings.............................103
SECTION 15.03 Persons Entitled to Vote at Meetings...........................104
SECTION 15.04 Quorum; Action.................................................104
SECTION 15.05 Attendance at Meetings; Determination of Voting Rights;
Conduct and Adjournment of Meetings............................105
SECTION 15.06 Counting Votes and Recording Action of Meetings................106
SECTION 15.07 Action Without Meeting.........................................107
ARTICLE XVI IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS......................................................107
SECTION 16.01 Liability Solely Corporate.....................................107
Signatures...................................................................110
Acknowledgment...............................................................111
Exhibit A Property Description (Real Property).......................A-1
Exhibit B Property Description (Licenses, Permits, Etc.).............B-1
Exhibit C Recording Information......................................C-1
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GENERAL AND REFUNDING MORTGAGE INDENTURE, dated as of May 1,
2001, between NEVADA POWER COMPANY, a corporation organized and existing under
the laws of the State of Nevada (herein called the "Company"), and THE BANK OF
NEW YORK, a banking corporation organized and existing under the laws of the
State of New York, as Trustee (herein called the "Trustee").
Recital of the Company
The Company has duly authorized the execution and delivery of
this Indenture, as originally executed and delivered, to provide for the
issuance from time to time of its bonds, notes or other evidences of
indebtedness (herein called the "Securities"), to be issued in one or more
series as contemplated herein, and to provide security for the payment of the
principal of and premium, if any, and interest, if any, on the Securities; 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 I of this
Indenture.
Granting Clauses
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that, in
consideration of the premises and of the purchase of the Securities by the
Holders thereof, and in order to secure the payment of the principal of and
premium, if any, and interest, if any, on all Securities from time to time
Outstanding and the performance of the covenants therein and herein contained
and to declare the terms and conditions on which such Securities are secured,
the Company hereby grants, bargains, sells, conveys, assigns, transfers,
mortgages, pledges, sets over and confirms to the Trustee, and grants to the
Trustee a security interest in, the following (subject, however, to the terms
and conditions set forth in this Indenture):
Granting Clause First
All right, title and interest of the Company, as of the date
of the execution and delivery of this Indenture, as originally executed
and delivered, in and to all property, real, personal and mixed,
located in the State of Nevada (other than Excepted Property),
including without limitation all right, title and interest of the
Company in and to the following property so located (other than
Excepted Property): (a) all real property owned in fee, easements and
other interests in real property which are specifically described or
referred to in Exhibit A attached hereto and incorporated herein by
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this reference; (b) all licenses, permits to use the real property of
others, franchises to use public roads, streets and other public
properties, rights of way and other rights or interests relating to the
occupancy or use of real property, including without limitation all of
the same which are specifically described or referred to in Exhibit B
---------
attached hereto and incorporated herein by this reference; (c) all
facilities, machinery, equipment and fixtures for the generation,
transmission and distribution of electric energy including, but not
limited to, all plants, powerhouses, dams, diversion works, generators,
turbines, engines, boilers, fuel handling and transportation
facilities, air and water pollution
1
control and sewage and solid waste disposal facilities, switchyards,
towers, substations, transformers, poles, lines, cables, conduits,
ducts, conductors, meters, regulators and all other property used or to
be used for any or all of such purposes; (d) all facilities, machinery,
equipment and fixtures for the transmission, storage and distribution
of gas including, but not limited to, gas works, stations and
substations, transmission pipelines, storage facilities, holders,
tanks, retorts, purifiers, odorizers, scrubbers, compressors, valves,
regulators, pumps, mains, pipes, service pipes, conduits, ducts,
fittings and connections, services, meters and any and all other
property used or to be used for any or all of such purposes; (e) all
buildings, offices, warehouses, structures or improvements in addition
to those referred to or otherwise included in clauses (a), (c) and (d)
above; (f) all computers, data processing, data storage, data
transmission and/or telecommunications facilities, equipment and
apparatus necessary for the operation or maintenance of any facilities,
machinery, equipment or fixtures described or referred to in clauses
(c) or (d) above; and (g) all of the foregoing property in the process
of construction;
Granting Clause Second
Subject to the applicable exceptions permitted by Section
8.09(c), Section 13.03 and Section 13.05, all right, title and interest
of the Company in all property, real, personal and mixed, located in
the State of Nevada (other than Excepted Property) which may be
hereafter acquired by the Company, it being the intention of the
Company that all such property acquired by the Company after the date
of the execution and delivery of this Indenture, as originally executed
and delivered, shall be as fully embraced within and subjected to the
Lien hereof as if such property were owned by the Company as of the
date of the execution and delivery of this Indenture, as originally
executed and delivered;
Granting Clause Third
Any Excepted Property, which may, from time to time after the
date of the execution and delivery of this Indenture, as originally
executed and delivered, by delivery or by an instrument supplemental to
this Indenture, be subjected to the Lien hereof by the Company, the
Trustee being hereby authorized to receive the same at any time as
additional security hereunder; it being understood that any such
subjection to the Lien hereof of any Excepted Property as additional
security may be made subject to such reservations, limitations or
conditions respecting the use and disposition of such property or the
proceeds thereof as shall be set forth in such instrument; and
Granting Clause Fourth
All tenements, hereditaments, servitudes and appurtenances
belonging or in any wise appertaining to the aforesaid property, with
the reversions and remainders thereof;
2
Excepted Property
Expressly excepting and excluding, however, from the Lien of
this Indenture all right, title and interest of the Company in and to
the following property, whether now owned or hereafter acquired (herein
sometimes called "Excepted Property"):
(a) all cash on hand or in banks or other financial
institutions, deposit accounts, shares of stock, interests in
general or limited partnerships, bonds, notes, other evidences
of indebtedness and other securities, of whatsoever kind and
nature, not hereafter paid or delivered to, deposited with or
held by the Trustee hereunder or required so to be;
(b) all contracts, leases, operating agreements and
other agreements of whatsoever kind and nature; all contract
rights, bills, notes and other instruments and chattel paper
(except to the extent that any of the same constitute
securities, in which case they are separately excepted from
the Lien of this Indenture under clause (a) above); all
revenues, income and earnings, all accounts, accounts
receivable and unbilled revenues, and all rents, tolls,
issues, product and profits, claims, credits, demands and
judgments; all governmental and other licenses, permits,
franchises, consents and allowances (except to the extent that
any of the same are specifically described in clause (b) of
Granting Clause First of this Indenture, in which case they
are included within the Lien of this Indenture); and all
patents, patent licenses and other patent rights, patent
applications, trade names, trademarks, copyrights, domain
names, claims, credits, choses in action and other intangible
property and general intangibles including, but not limited
to, computer software;
(c) All automobiles, buses, trucks, truck cranes,
tractors, trailers and similar vehicles and movable equipment;
all rolling stock, rail cars and other railroad equipment; all
vessels, boats, barges and other marine equipment; all
airplanes, helicopters, aircraft engines and other flight
equipment; all parts, accessories and supplies used in
connection with any of the foregoing; and all personal
property of such character that the perfection of a security
interest therein or other Lien thereon is not governed by the
Uniform Commercial Code as in effect in the jurisdiction in
which such property is located;
(d) all goods, stock in trade, wares, merchandise and
inventory held for the purpose of sale or lease in the
ordinary course of business; all materials, supplies,
inventory and other items of personal property which are
consumable (otherwise than
3
by ordinary wear and tear) in their use in the operation of
the Mortgaged Property; all fuel, including nuclear fuel,
whether or not any such fuel is in a form consumable in the
operation of the Mortgaged Property, including separate
components of any fuel in the forms in which such components
exist at any time before, during or after the period of the
use thereof as fuel; all hand and other portable tools and
equipment; all furniture and furnishings; and computers and
data processing, data storage, data transmission,
telecommunications and other facilities, equipment and
apparatus, which, in any case, are used primarily for
administrative or clerical purposes or are otherwise not
necessary for the operation or maintenance of the facilities,
machinery, equipment or fixtures described or referred to in
clause (c) or (d) of Granting Clause First of this Indenture;
(e) all coal, ore, gas, oil and other minerals and
all timber, and all rights and interests in any of the
foregoing, whether or not such minerals or timber shall have
been mined or extracted or otherwise separated from the land;
and all electric energy, gas (natural or artificial), steam,
water and other products generated, produced, manufactured,
purchased or otherwise acquired by the Company;
(f) all real property, leaseholds, gas rights, wells,
gathering, tap or other pipe lines, or facilities, equipment
or apparatus, in any case used or to be used primarily for the
production or gathering of natural gas;
(g) all property which is the subject of a lease
agreement designating the Company as lessee and all right,
title and interest of the Company in and to such property and
in, to and under such lease agreement, whether or not such
lease agreement is intended as security;
(h) all facilities, machinery, equipment and fixtures
for the appropriation, storage, transmission and distribution
of water including, but not limited to, water works,
reservoirs, diversion works, stations and substations,
transmission pipelines, canals, raceways, flumes, waterways,
aqueducts, storage facilities, tanks, purifiers, valves,
regulators, pumps, mains, pipes, service pipes, conduits,
fittings and connections, services, meters and any and all
other property used or to be used for any or all of such
purposes; and
(i) all property, real, personal and mixed, which
prior to the date of the execution and delivery of this
Indenture, as
4
originally executed and delivered, has been excepted or
released from the Lien of the NVP 1953 Mortgage;
provided, however, that, subject to the provisions of Section 13.03 (x)
if, at any time after the occurrence of an Event of Default, the
Trustee, or any separate trustee or co-trustee appointed under Section
11.14 or any receiver appointed pursuant to Section 10.08 or otherwise,
shall have entered into possession of all or substantially all of the
Mortgaged Property, all the Excepted Property described or referred to
in the foregoing clauses (b), (c) and (d), then owned or held or
thereafter acquired by the Company, to the extent that the same is used
in connection with, or otherwise relates or is attributable to, the
Mortgaged Property, shall immediately, and, in the case of any Excepted
Property described or referred to in clause (f), to the extent that the
same is used in connection with, or otherwise relates or is
attributable to, the Mortgaged Property, upon demand of the Trustee or
such other trustee or receiver, become subject to the Lien of this
Indenture to the extent not prohibited by law or by the terms of any
other Lien on such Excepted Property, and the Trustee or such other
trustee or receiver may, to the extent not prohibited by law or by the
terms of any such other Lien (and subject to the rights of the holders
of all such other Liens), at the same time likewise take possession
thereof, and (y) whenever all Events of Default shall have been cured
and the possession of all or substantially all of the Mortgaged
Property shall have been restored to the Company, such Excepted
Property shall again be excepted and excluded from the Lien hereof to
the extent set forth above; it being understood that the Company may,
however, pursuant to Granting Clause Third, subject to the Lien of this
Indenture any Excepted Property, whereupon the same shall cease to be
Excepted Property;
TO HAVE AND TO HOLD all such property, real, personal and
mixed, unto the Trustee, its successors in trust and their assigns forever;
SUBJECT, HOWEVER, to (a) Liens existing at the date of the
execution and delivery of this Indenture, as originally executed and delivered
(including, but not limited to, the Lien of the NVP 1953 Mortgage), (b) as to
property acquired by the Company after the date of the execution and delivery of
this Indenture, as originally executed and delivered, Liens existing or placed
thereon at the time of the acquisition thereof (including, but not limited to,
Purchase Money Liens), (c) Permitted Liens and all other Liens permitted to
exist under Section 6.06; and
SUBJECT, FURTHER, to the condition that, with respect to any
property which is now or hereafter becomes subject to the Lien of the NVP 1953
Mortgage, the Lien of this Indenture shall at all times be junior, subject and
subordinate to the Lien of the NVP 1953 Mortgage;
IN TRUST, NEVERTHELESS, for the equal and ratable benefit and
security of the Holders from time to time of all Outstanding Securities without
any priority of any such Security over any other such Security;
PROVIDED, HOWEVER, that the right, title and interest of the
Trustee in and to the Mortgaged Property shall cease, terminate and become void
in accordance with, and subject to the conditions set forth in, Article IX or
Article XIV hereof, and if, thereafter, the
5
principal of and premium, if any, and interest, if any, on the Securities shall
have been paid to the Holders thereof, or shall have been paid to the Company
pursuant to Section 6.03 hereof, then and in that case this Indenture shall
terminate, and the Trustee shall execute and deliver to the Company such
instruments as the Company shall require to evidence such termination; otherwise
this Indenture, and the estate and rights hereby granted, shall be and remain in
full force and effect; and
IT IS HEREBY COVENANTED AND AGREED by and between the Company
and the Trustee that all the Securities are to be authenticated and delivered,
and that the Mortgaged Property is to be held, subject to the further covenants,
conditions and trusts hereinafter set forth, and the Company hereby covenants
and agrees to and with the Trustee, for the equal and ratable benefit of all
Holders of the Securities, as follows:
ARTICLE I
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DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
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SECTION 1.01 General 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 terms used herein without definition which are defined
in the Uniform Commercial Code as in effect in any jurisdiction in which any
portion of the Mortgaged Property is located shall have the meanings assigned to
them therein with respect to such portion of the Mortgaged Property;
(d) 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, as originally executed and
delivered; provided, however, that in determining generally accepted accounting
principles applicable to the Company, effect shall be given, to the extent
required, to any order, rule or regulation of any administrative agency,
regulatory authority or other governmental body having jurisdiction over the
Company; and
6
(e) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Accountant" means a Person engaged in the accounting
profession or otherwise qualified to pass on accounting matters (including, but
not limited to, a Person certified or licensed as a public accountant, whether
or not then engaged in the public accounting profession), which Person, unless
required to be Independent, may be an employee or Affiliate of the Company.
"Act", when used with respect to any Holder of a Security, has
the meaning specified in Section 1.06.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct generally the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authenticating Agent" means any Person (other than the
Company or an Affiliate of the Company) authorized by the Trustee to act on
behalf of the Trustee to authenticate the Securities of one or more series.
"Authorized Officer" means the Chairman of the Board, the
President, any Vice President, the Treasurer or the Corporate Secretary of the
Company, or any other duly authorized officer, agent or attorney-in-fact of the
Company named in an Officer's Certificate signed by any of such corporate
officers.
"Authorized Publication" means a newspaper or financial
journal of general circulation, printed in the English language and customarily
published on each Business Day, whether or not published on Saturdays, Sundays
or holidays; or, in the alternative, shall mean such form of communication as
may have come into general use for the dissemination of information of import
similar to that of the information specified to be published by the provisions
hereof. In the event that successive weekly publications in an Authorized
Publication are required hereunder they may be made (unless otherwise expressly
provided herein) on the same or different days of the week and in the same or in
different Authorized Publications. In case, by reason of the suspension of
publication of any Authorized Publication, or by reason of any other cause, it
shall be impractical without unreasonable expense to make publication of any
notice in an Authorized Publication as required by this Indenture, then such
method of publication or notification as shall be made with the approval of the
Trustee shall be deemed the equivalent of the required publication of such
notice in an Authorized Publication.
"Authorized Purposes" means the authentication and delivery of
Securities, the release of property and/or the withdrawal of cash under any of
the provisions of this Indenture.
"Board of Directors" means either the board of directors of
the Company or any committee thereof duly authorized to act in respect of
matters relating to this Indenture.
7
"Board Resolution" means a copy of a resolution certified by
the Corporate Secretary or an Assistant Corporate 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 Securities or this Indenture,
means any day, other than a Saturday or Sunday, which is not a day on which
banking institutions or trust companies in such Place of Payment or other
location are generally authorized or required by law, regulation or executive
order to remain closed, except as may be otherwise specified as contemplated by
Section 3.01.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the date of the execution and
delivery of this Indenture, as originally executed and delivered, such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body, if any, performing such duties at such
time.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Order" or "Company Request" 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 in
New York, New York, at which at any particular time its corporate trust business
shall be principally administered, which office at the date of the execution and
delivery of this Indenture, as originally executed and delivered, is located at
101 Barclay Street, New York, New York, 10286, Attention: Corporate Trust
Administration.
"corporation" means a corporation, limited liability company,
association, company, joint stock company or business trust.
"Cost" with respect to Property Additions has the meaning
specified in Section 1.03.
"Defaulted Interest" has the meaning specified in Section
3.07.
"Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 10.02.
"Interest" with respect to a Discount Security means interest, if any, borne by
such Security 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.
8
"Eligible Obligations" means:
(a) with respect to Securities denominated in Dollars,
Government Obligations; or
(b) with respect to Securities denominated in a currency other
than Dollars or in a composite currency, such other obligations or
instruments as shall be specified with respect to such Securities as
contemplated by Section 3.01.
"Event of Default" has the meaning specified in Section 10.01.
"Excepted Property" has the meaning specified in the granting
clauses of this Indenture.
"Expert" means a Person which is an engineer, appraiser or
other expert and which, with respect to any certificate to be signed by such
Person and delivered to the Trustee, is qualified to pass upon the matters set
forth in such certificate. For purposes of this definition, (a) "engineer" means
a Person engaged in the engineering profession or otherwise qualified to pass
upon engineering matters (including, but not limited to, a Person licensed as a
professional engineer, whether or not then engaged in the engineering
profession) and (b) "appraiser" means a Person engaged in the business of
appraising property or otherwise qualified to pass upon the Fair Value or fair
market value of property.
"Expert's Certificate" means a certificate signed by an
Authorized Officer and by an Expert (which Expert (a) shall be selected either
by the Board of Directors or by an Authorized Officer, the execution of such
certificate by such Authorized Officer to be conclusive evidence of such
selection, and (b) except as otherwise required in Sections 4.03, 6.07, 7.07 and
8.09, may be an employee or Affiliate of the Company duly authorized either by
the Board of Directors or by an Authorized Officer) and delivered to the
Trustee. The amount stated in any Expert's Certificate as to the Cost, Fair
Value or fair market value of property shall be conclusive and binding upon the
Company, the Trustee and the Holders of the Securities.
"Fair Value", with respect to property, means the fair value
of such property as may be determined by reference to (a) the amount which would
be likely to be obtained in an arm's-length transaction with respect to such
property between an informed and willing buyer and an informed and willing
seller, under no compulsion, respectively, to buy or sell, (b) the amount of
investment with respect to such property which, together with a reasonable
return thereon, would be likely to be recovered through ordinary business
operations or otherwise, (c) the Cost, accumulated depreciation and replacement
cost with respect to such property and/or (d) any other relevant factors;
provided, however, that (x) the Fair Value of property shall be determined
without deduction for any Liens on such property prior to the Lien of this
Indenture (except as otherwise provided in Section 8.03) and (y) the Fair Value
to the Company of Property Additions shall not reflect any reduction relating to
the fact that such Property Additions may be of less value to a Person which is
not the owner or operator of the Mortgaged Property or any portion thereof than
to a Person which is such owner or operator. Fair Value may be determined,
without physical inspection, by the use of accounting and engineering
9
records and other data maintained by the Company or otherwise available to the
Expert certifying the same.
"First Mortgage Bonds" means bonds or other obligations issued
and Outstanding under the NVP 1953 Mortgage and any bonds authenticated in
replacement thereof under the provisions of Section 7.02 hereof.
"Funded Cash" has the meaning specified in Section 1.02.
"Funded Property" has the meaning specified in Section 1.02.
"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 Fifty Million Dollars ($50,000,000);
and provided, further, that except as may be otherwise required by law,
such custodian shall be obligated to pay to the holders of such
certificates, depositary receipts or other instruments the full amount
received by 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 Security is registered
in the Security 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 or other instruments supplemental hereto entered into pursuant
to the applicable provisions hereof and shall include the terms of particular
series of Securities established as contemplated by Section 3.01.
"Independent", when applied to any Accountant or Expert, means
such a Person who (a) is in fact independent, (b) does not have any direct
material financial interest in the Company or in any other obligor upon the
Securities or in any Affiliate of the Company or of such other obligor, (c) is
not connected with the Company or such other obligor as an officer,
10
employee, promoter, underwriter, trustee, partner, director or any person
performing similar functions and (d) is approved by the Trustee in the exercise
of reasonable care.
"Independent Expert's Certificate" means a certificate signed
by an Independent Expert and delivered to the Trustee.
"Initial Expert's Certificate" means an Expert's certificate
delivered upon the earliest of (a) the first authentication and delivery of
Securities, subsequent to the initial authentication and delivery of the
Securities of the Initial Series (excluding Securities of the Initial Series
issued in connection with a transfer, exchange or replacement of any Predecessor
Securities of such series), upon the basis of Property Additions pursuant to
Section 4.02, (b) the first release of any part of the Mortgaged Property
pursuant to Section 8.03 or 8.04 and (c) the first withdrawal of cash on the
basis of Property Additions pursuant to Section 8.06.
"Initial Series" means the series of Securities, initially
authenticated and delivered in the aggregate principal amount of $350,000,000,
established in the First Supplemental Indenture, dated as of May 1, 2001 between
the Company and the Trustee, the form and terms of which are established in the
Officer's Certificate, dated May 24, 2001, pursuant to the First Supplemental
Indenture.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Investment Securities" means any of the following obligations
or securities on which neither the Company, any other obligor on the Securities
nor any Affiliate of either is the obligor: (a) Government Obligations; (b)
interest bearing deposit accounts (which may be represented by certificates of
deposit) in any national or state bank (which may include the Trustee or any
Paying Agent) or savings and loan association which has outstanding securities
rated by a nationally recognized rating organization in either of the two (2)
highest rating categories (without regard to modifiers) for short term
securities or in any of the three (3) highest rating categories (without regard
to modifiers) for long term securities; (c) bankers' acceptances drawn on and
accepted by any commercial bank (which may include the Trustee or any Paying
Agent) which has outstanding securities rated by a nationally recognized rating
organization in either of the two (2) highest rating categories (without regard
to modifiers) for short term securities or in any of the three (3) highest
rating categories (without regard to modifiers) for long term securities; (d)
direct obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, any State or Territory of the United States or
the District of Columbia, or any political subdivision of any of the foregoing,
which are rated by a nationally recognized rating organization in either of the
two (2) highest rating categories (without regard to modifiers) for short term
securities or in any of the three (3) highest rating categories (without regard
to modifiers) for long term securities; (e) bonds or other obligations of any
agency or instrumentality of the United States; (f) corporate debt securities
which are rated by a nationally recognized rating organization in either of the
two (2) highest rating categories (without regard to modifiers) for short term
securities or in any of the three (3) highest rating categories (without regard
to modifiers) for long term securities; (g) repurchase agreements with respect
to any of the foregoing obligations or securities with any banking or financial
institution (which may include the Trustee or any Paying Agent) which has
outstanding securities rated by a
11
nationally recognized rating organization in either of the two (2) highest
rating categories (without regard to modifiers) for short term securities or in
any of the three (3) highest rating categories (without regard to modifiers) for
long term securities; (h) securities issued by any regulated investment company
(including any investment company for which the Trustee or any Paying Agent is
the advisor), as defined in Section 851 of the Internal Revenue Code of 1986, as
amended, or any successor Section of such Code or successor federal statute,
provided that the portfolio of such investment company is limited to obligations
or securities of the character and investment quality contemplated in clauses
(a) through (f) above and repurchase agreements which are fully collateralized
by any of such obligations or securities; and (i) any other obligations or
securities which may lawfully be purchased by the Trustee in its capacity as
such.
"Lien" means any mortgage, deed of trust, pledge, security
interest, encumbrance, easement, lease, reservation, restriction, servitude,
charge or similar right and any other lien of any kind, including, without
limitation, any conditional sale or other title retention agreement, any lease
in the nature thereof, and any defect, irregularity, exception or limitation in
record title.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as provided in such Security or in this Indenture,
whether at the Stated Maturity, by declaration of acceleration, upon call for
redemption or otherwise.
"Mortgaged Property" means, as of any particular time, all
property which at such time is subject to the Lien of this Indenture.
"Notice of Default" has the meaning specified in Section
10.01.
"NVP 1953 Mortgage" means the Indenture of Mortgage and Deed
of Trust, dated as of October 1, 1953 from Southern Nevada Power Co. (Company,
successor) to First National Bank of Nevada (Bankers Trust Company, successor)
trustee, as heretofore and hereafter amended and supplemented, which Indenture
of Mortgage and amendments and supplements thereto have been recorded and filed
in the various official records in the State of Nevada as set forth in Exhibit C
---------
hereto.
"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 and
who may be an employee or Affiliate of the Company.
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(a) Securities theretofore canceled or delivered to the
Securities Registrar or the Trustee for cancellation;
12
(b) Securities deemed to have been paid for all purposes of
this Indenture in accordance with Section 9.01 (whether or not the
Company's indebtedness in respect thereof shall be satisfied and
discharged for any other purpose); and
(c) Securities which have been paid pursuant to Section 3.06
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it and the Company that such
Securities are held by a bona fide purchaser or purchasers in whose
hands such Securities are valid obligations of the Company;
provided, however, that in determining whether or not the Holders of the
requisite principal amount of the Securities Outstanding under this Indenture,
or the Outstanding Securities of any series or Tranche, have given any request,
demand, authorization, direction, notice, consent or waiver hereunder or whether
or not a quorum is present at a meeting of Holders of Securities,
(x) Securities owned by the Company or any other obligor upon
the Securities or any Affiliate of the Company or of such other obligor
(unless the Company, such obligor or such Affiliate owns all Securities
Outstanding under this Indenture, or all Outstanding Securities of each
such series and each such Tranche, as the case may be, determined
without regard to this clause (x)) shall be disregarded and deemed not
to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver or upon any such
determination as to the presence of a quorum, only Securities which the
Trustee actually knows to be so owned shall be so disregarded;
provided, however, that Securities so owned which have been pledged in
good faith may be regarded as Outstanding if it is established to the
reasonable satisfaction of the Trustee that the pledgee, and not the
Company, any such other obligor or Affiliate of either thereof, has the
right so to act with respect to such Securities and that the pledgee is
not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor; and provided,
further, that in no event shall any Security which shall have been
delivered to evidence or secure, in whole or in part, the Company's
obligations in respect of other indebtedness be deemed to be owned by
the Company if the principal of such Security is payable, whether at
Stated Maturity or upon mandatory redemption, at the same time as the
principal of such other indebtedness is payable, whether at Stated
Maturity or upon mandatory redemption or acceleration, but only to the
extent of such portion of the principal amount of such Security as does
not exceed the principal amount of such other indebtedness; and
(y) the principal amount of a Discount Security that shall be
deemed to be Outstanding for such purposes shall be the amount of the
principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the Maturity
thereof pursuant to Section 10.02; and
provided, further, that, in the case of any Security the principal of which is
payable from time to time without presentment or surrender, the principal amount
of such Security that shall be
13
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.
"Outstanding", when used with respect to First Mortgage Bonds,
has the meaning specified in the NVP 1953 Mortgage.
"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 Securities on behalf of the Company.
"Periodic Offering" means an offering of Securities of a
series from time to time any or all of the specific terms of which Securities,
including without limitation the rate or rates of interest, if any, thereon, the
Stated Maturity or Maturities thereof and the redemption provisions, if any,
with respect thereto, are to be determined by the Company or its agents from
time to time subsequent to the initial request for the authentication and
delivery of such Securities by the Trustee, all as contemplated in Section 3.01
and clause (b) of Section 4.01.
"Permitted Liens" means, as of any particular time, any of the
following:
(a) Liens for taxes, assessments and other governmental
charges or requirements which are not delinquent or which are being
contested in good faith by appropriate proceedings;
(b) mechanics', workmen's, repairmen's, materialmen's,
warehousemen's and carriers' Liens, other Liens incident to
construction, Liens or privileges of any employees of the Company for
salary or wages earned, but not yet payable, and other Liens, including
without limitation Liens for worker's compensation awards, arising in
the ordinary course of business for charges or requirements which are
not delinquent or which are being contested in good faith and by
appropriate proceedings;
(c) Liens in respect of attachments, judgments or awards
arising out of judicial or administrative proceedings (i) in an amount
not exceeding the greater of (A) Ten Million Dollars ($10,000,000) and
(B) three percentum (3%) of the sum of (1) the principal amount of the
Securities then Outstanding and (2) the principal amount of First
Mortgage Bonds then Outstanding other than First Mortgage Bonds
delivered to and held by the Trustee pursuant to Sections 4.03 or (ii)
with respect to which the Company shall (X) in good faith be
prosecuting an appeal or other proceeding for review and with respect
to which the Company shall have secured a stay of execution pending
such appeal or other proceeding or (Y) have the right to prosecute an
appeal or other proceeding for review;
(d) easements, leases, reservations or other rights of others
in, on, over and/or across, and laws, regulations and restrictions
affecting, and defects, irregularities, exceptions and limitations in
title to, the Mortgaged Property or any part thereof; provided,
however, that such easements, leases, reservations, rights, laws,
regulations, restrictions, defects, irregularities, exceptions and
limitations do not in the aggregate
14
materially impair the use by the Company of the Mortgaged Property
considered as a whole for the purposes for which it is held by the
Company;
(e) defects, irregularities, exceptions and limitations in
title to real property subject to rights-of-way in favor of the Company
or otherwise or used or to be used by the Company primarily for
right-of-way purposes or real property held under lease, easement,
license or similar right; provided, however, that (i) the Company shall
have obtained from the apparent owner or owners of such real property a
sufficient right, by the terms of the instrument granting such
right-of-way, lease, easement, license or similar right, to the use
thereof for the purposes for which the Company acquired the same, (ii)
the Company has power under eminent domain or similar statutes to
remove such defects, irregularities, exceptions or limitations or (iii)
such defects, irregularities, exceptions and limitations may be
otherwise remedied without undue effort or expense; and defects,
irregularities, exceptions and limitations in title to flood lands,
flooding rights and/or water rights;
(f) Liens securing indebtedness or other obligations neither
created, assumed nor guaranteed by the Company nor on account of which
it customarily pays interest upon real property or rights in or
relating to real property acquired by the Company for the purpose of
the transmission or distribution of electric energy, gas or water, for
the purpose of telephonic, telegraphic, radio, wireless or other
electronic communication or otherwise for the purpose of obtaining
rights-of-way;
(g) leases existing at the date of the execution and delivery
of this Indenture, as originally executed and delivered, affecting
properties owned by the Company at said date and renewals and
extensions thereof; and leases affecting such properties entered into
after such date or affecting properties acquired by the Company after
such date which, in either case, (i) have respective terms of not more
than ten (10) years (including extensions or renewals at the option of
the tenant) or (ii) do not materially impair the use by the Company of
such properties for the respective purposes for which they are held by
the Company;
(h) Liens vested in lessors, licensors, franchisors or
permitters for rent or other amounts to become due or for other
obligations or acts to be performed, the payment of which rent or the
performance of which other obligations or acts is required under
leases, subleases, licenses, franchises or permits, so long as the
payment of such rent or other amounts or the performance of such other
obligations or acts is not delinquent or is being contested in good
faith and by appropriate proceedings;
(i) controls, restrictions, obligations, duties and/or other
burdens imposed by federal, state, municipal or other law, or by rules,
regulations or orders of Governmental Authorities, upon the Mortgaged
Property or any part thereof or the operation or use thereof or upon
the Company with respect to the Mortgaged Property or any part thereof
or the operation or use thereof or with respect to any franchise,
grant, license, permit or public purpose requirement, or any rights
reserved to or otherwise vested in
15
Governmental Authorities to impose any such controls, restrictions,
obligations, duties and/or other burdens;
(j) rights which Governmental Authorities may have by virtue
of franchises, grants, licenses, permits or contracts, or by virtue of
law, to purchase, recapture or designate a purchaser of or order the
sale of the Mortgaged Property or any part thereof, to terminate
franchises, grants, licenses, permits, contracts or other rights or to
regulate the property and business of the Company; and any and all
obligations of the Company correlative to any such rights;
(k) Liens required by law or governmental regulations (i) as a
condition to the transaction of any business or the exercise of any
privilege or license, (ii) to enable the Company to maintain
self-insurance or to participate in any funds established to cover any
insurance risks, (iii) in connection with workmen's compensation,
unemployment insurance, social security, any pension or welfare benefit
plan or (iv) to share in the privileges or benefits required for
companies participating in one or more of the arrangements described in
clauses (ii) and (iii) above;
(l) Liens on the Mortgaged Property or any part thereof which
are granted by the Company to secure duties or public or statutory
obligations or to secure, or serve in lieu of, surety, stay or appeal
bonds;
(m) rights reserved to or vested in others to take or receive
any part of any coal, ore, gas, oil and other minerals, any timber
and/or any electric capacity or energy, gas, water, steam and any other
products, developed, produced, manufactured, generated, purchased or
otherwise acquired by the Company or by others on property of the
Company;
(n) (i) rights and interests of Persons other than the Company
arising out of contracts, agreements and other instruments to which the
Company is a party and which relate to the common ownership or joint
use of property; and (ii) all Liens on the interests of Persons other
than the Company in property owned in common by such Persons and the
Company if and to the extent that the enforcement of such Liens would
not adversely affect the interests of the Company in such property in
any material respect;
(o) any restrictions on assignment and/or requirements of any
assignee to qualify as a permitted assignee and/or public utility or
public service corporation;
(p) any Liens which have been bonded for the full amount in
dispute or for the payment of which other adequate security
arrangements have been made;
(q) rights and interests granted pursuant to Section 8.02(c);
(r) Prepaid Liens; and
16
(s) the lien of the NVP 1953 Mortgage and "permitted liens" or
"permitted encumbrances" as therein defined.
"Person" means any individual, corporation, partnership,
limited liability partnership, joint venture, trust or unincorporated
organization or any Governmental Authority.
"Place of Payment", when used with respect to the Securities
of any series, or any Tranche thereof, means the place or places, specified as
contemplated by Section 3.01, at which, subject to Section 6.02, principal of
and premium, if any, and interest, if any, on the Securities of such series or
Tranche are payable.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.06 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed (to the
extent lawful) to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Prepaid Lien" means any Lien securing indebtedness for the
payment, prepayment or redemption of which there shall have been irrevocably
deposited in trust with the trustee or other holder of such Lien moneys and/or
Investment Securities which (together with the interest reasonably expected to
be earned from the investment and reinvestment in Investment Securities of the
moneys and/or the principal of and interest on the Investment Securities so
deposited) shall be sufficient for such purpose; provided, however, that if such
indebtedness is to be redeemed or otherwise prepaid prior to the stated maturity
thereof, any notice requisite to such redemption or prepayment shall have been
given in accordance with the instrument creating such Lien or irrevocable
instructions to give such notice shall have been given to such trustee or other
holder; and provided, further, that the NVP 1953 Mortgage shall not be deemed to
be a Prepaid Lien unless it shall have been satisfied and discharged and all
First Mortgage Bonds issued thereunder shall be deemed to have been paid, all in
accordance with the provisions thereof.
"Property Additions" has the meaning specified in Section
1.03.
"Purchase Money Lien" means, with respect to any property
being acquired or disposed of by the Company or being released from the Lien of
this Indenture, a Lien on such property which
(a) is taken or retained by the transferor of such property to
secure all or part of the purchase price thereof;
(b) is granted to one or more Persons other than the
transferor which, by making advances or incurring an obligation, give
value to enable the grantor of such Lien to acquire rights in or the
use of such property;
(c) is granted to any other Person in connection with the
release of such property from the Lien of this Indenture on the basis
of the deposit with the Trustee or the
17
trustee or other holder of a Lien prior to the Lien of this Indenture
of obligations secured by such Lien on such property (as well as any
other property subject thereto);
(d) is held by a trustee or agent for the benefit of one or
more Persons described in clause (a), (b) and/or (c) above, provided
that such Lien may be held, in addition, for the benefit of one or more
other Persons which shall have theretofore given, or may thereafter
give, value to or for the benefit or account of the grantor of such
Lien for one or more other purposes; or
(e) otherwise constitutes a purchase money mortgage or a
purchase money security interest under applicable law;
and, without limiting the generality of the foregoing, for purposes of this
Indenture, the term Purchase Money Lien shall be deemed to include any Lien
described above whether or not such Lien (x) shall permit the issuance or other
incurrence of additional indebtedness secured by such Lien on such property, (y)
shall permit the subjection to such Lien of additional property and the issuance
or other incurrence of additional indebtedness on the basis thereof and/or (z)
shall have been granted prior to the acquisition, disposition or release of such
property, shall attach to or otherwise cover property other than the property
being acquired, disposed of or released and/or shall secure obligations issued
prior and/or subsequent to the issuance of the obligations delivered in
connection with such acquisition, disposition or release.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 3.01.
"Required Currency" has the meaning specified in Section 3.11.
"Responsible Officer", when used with respect to the Trustee,
means any officer of the Trustee with direct responsibility for the
administration of this Indenture and also means, with respect to a particular
corporate trust matter, any other officer of the Trustee to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Retired Securities" means (a) any Securities authenticated
and delivered under this Indenture which (i) no longer remain Outstanding by
reason of the applicability of clause (a) or (b) in the definition of
"Outstanding" (other than any Predecessor Security of any Security), (ii) have
not been made the basis under any of the provisions of this Indenture of one or
more Authorized Purposes and (iii) have not been paid, redeemed, purchased or
otherwise retired by the application thereto of Funded Cash and (b) any First
Mortgage Bond authenticated and delivered under the NVP 1953 Mortgage which (x)
at such time could be used as the basis for the authentication and delivery of
additional First Mortgage Bonds pursuant to the provisions of the
18
NVP 1953 Mortgage and (y) shall have been retired after the initial
authentication and delivery of the Securities of the Initial Series; provided,
however, that, after the delivery to the Trustee of the Initial Expert's
Certificate, no Security and no such First Mortgage Bond shall be deemed to be a
Retired Security unless the retirement thereof shall have occurred after such
delivery of the Initial Expert's Certificate.
"Securities" means any bonds, notes and other evidences of
indebtedness authenticated and delivered under this Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 3.05.
"Special Record Date" for the payment of any Defaulted
Interest on the Securities of any series means a date fixed by the Trustee
pursuant to Section 3.07.
"Stated Interest Rate" means a rate (whether fixed or
variable) at which an obligation by its terms is stated to bear simple interest.
Any calculation or other determination to be made under this Indenture by
reference to the Stated Interest Rate on an obligation shall be made (a) if the
Company's obligations in respect of any other indebtedness shall be evidenced or
secured in whole or in part by such obligation, by reference to the lower of the
Stated Interest Rate on such obligation and the Stated Interest Rate on such
other indebtedness and (b) without regard to the effective interest cost to the
Company of such obligation or of any such other indebtedness.
"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).
"Successor Corporation" has the meaning set forth in Section
13.01.
"Tranche" means a group of Securities which (a) are of the
same series and (b) have identical terms except as to principal amount and/or
date of issuance.
"Trust 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
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee, and, if at any time there is more
than one Person acting as trustee hereunder, "Trustee" shall mean each such
Person so acting.
"United States" means the United States of America, its
Territories, its possessions and other areas subject to its political
jurisdiction.
19
SECTION 1.02 Funded Property; Funded Cash.
"Funded Property" means:
(a) all Property Additions to the extent that the same shall
have been designated in an Expert's Certificate delivered to the Trustee
pursuant to Section 7.02(c) to be deemed to be Funded Property;
(b) all Property Additions to the extent that the same shall
have been made the basis of the authentication and delivery of Securities under
this Indenture pursuant to Section 4.02;
(c) all Property Additions to the extent that the same shall
have been made the basis of the release of property from the Lien of this
Indenture pursuant to Section 8.03;
(d) all Property Additions to the extent that the same shall
have been substituted for Funded Property retired pursuant to Section 8.02;
(e) all Property Additions to the extent that the same shall
have been made the basis of the withdrawal of cash held by the Trustee pursuant
to Section 4.04 or 8.06; and
(f) all Property Additions to the extent that the same shall
have been used as the basis of a credit against, or otherwise in satisfaction
of, the requirements of any sinking, improvement, maintenance, replacement or
similar fund or analogous provision established with respect to the Securities
of any series, or any Tranche thereof, as contemplated by Section 3.01;
provided, however, that any such Property Additions shall cease to be Funded
Property when all of the Securities of such series or Tranche shall have been
paid.
In the event that in any certificate filed with the Trustee in
connection with any of the transactions referred to in clauses (a), (b), (c),
(e) and (f) of this Section, only a part of the Cost or Fair Value of the
Property Additions described in such certificate shall be required for the
purposes of such certificate, then such Property Additions shall be deemed to be
Funded Property only to the extent so required for the purpose of such
certificate.
All Funded Property that shall be abandoned, destroyed,
released or otherwise disposed of shall for the purpose of Section 1.03 hereof
be deemed Funded Property retired and for other purposes of this Indenture shall
thereupon cease to be Funded Property but as in this Indenture provided may at
any time thereafter again become Funded Property. Neither any reduction in the
Cost or book value of property recorded in the plant account of the Company, nor
the transfer of any amount appearing in such account to intangible and/or
adjustment accounts, otherwise than in connection with actual retirements of
physical property abandoned, destroyed, released or disposed of, and otherwise
than in connection with the removal of such property in its entirety from plant
account, shall be deemed to constitute a retirement of Funded Property.
The Company may make allocations, on a pro-rata or other
reasonable basis (including, but not limited to, the designation of specific
properties or the designation of all or a specified portion of the properties
reflected in one or more generic accounts or subaccounts in
20
the Company's books of account), for the purpose of determining the extent to
which fungible properties, or other properties not otherwise identified,
reflected in the same generic account or subaccount in the Company's books of
account constitute Funded Property or Funded Property retired.
"Funded Cash" means:
(a) cash, held by the Trustee hereunder, to the extent that it
represents the proceeds of insurance on Funded Property (except as
otherwise provided in Section 6.07), or cash deposited in connection
with the release of Funded Property pursuant to Article VIII, or the
payment of the principal of, or the proceeds of the release of,
obligations secured by Purchase Money Lien and delivered to the Trustee
pursuant to Article VIII, all subject, however, to the provisions of
Section 6.07 and Section 8.06; and
(b) any cash deposited with the Trustee under Section 4.04.
SECTION 1.03 Property Additions; Cost.
(a) "Property Additions" means, as of any particular time, any
item, unit or element of property which at such time is owned by the Company and
is subject to the Lien of this Indenture; provided, however, that Property
Additions shall not include:
(i) goodwill, going concern value rights or intangible
property except as provided in subsection (c) of this Section; or
(ii) any property the cost of acquisition or construction of
which is, in accordance with generally accepted accounting principles,
properly chargeable to an operating expense account of the Company.
(b) When any Property Additions are certified to the Trustee
as the basis of any Authorized Purpose (except as otherwise provided in Section
8.03 and Section 8.06),
(i) there shall be deducted from the Cost or Fair Value to
the Company thereof, as the case may be (as of the date so certified),
an amount equal to the Cost (or as to Property Additions of which the
Fair Value to the Company at the time the same became Funded Property
was certified to be an amount less than the Cost as determined pursuant
to this Section, then such Fair Value, as so certified, in lieu of
Cost) of all Funded Property of the Company retired to the date of such
certification (other than the Funded Property, if any, in connection
with the application for the release of which such certificate is
filed) and not theretofore deducted from the Cost or Fair Value to the
Company of Property Additions theretofore certified to the Trustee, and
(ii) there may, at the option of the Company, be added to
such Cost or Fair Value, as the case may be, the sum of
(A) the principal amount of any obligations secured by
Purchase Money Lien, not theretofore so added and which the
Company then elects so to add, which shall theretofore have
been delivered to the Trustee or the
21
trustee or other holder of a Lien prior to the Lien of this
Indenture as the basis of the release of Funded Property
retired from the Lien of this Indenture or such prior Lien, as
the case may be;
(B) ten-sevenths (10/7) of the amount of any cash, not
theretofore so added and which the Company then elects so to
add, which shall theretofore have been delivered to the
Trustee or the trustee or other holder of a Lien prior to the
Lien of this Indenture as the proceeds of insurance on Funded
Property retired (to the extent of the portion thereof deemed
to be Funded Cash) or as the basis of the release of Funded
Property retired from the Lien of this Indenture or from such
prior Lien, as the case may be;
(C) ten-sevenths (10/7) of the principal amount of any
Security or Securities, or portion of such principal amount,
not theretofore so added and which the Company then elects so
to add, (I) which shall theretofore have been delivered to the
Trustee as the basis of the release of Funded Property retired
or (II) the right to the authentication and delivery of which
under the provisions of Section 4.03 shall at any time
theretofore have been waived under Section 8.03(d)(iii) as the
basis of the release of Funded Property retired;
(D) the Cost or Fair Value to the Company (whichever
shall be less), after making any deductions and any additions
pursuant to this Section, of any Property Additions, not
theretofore so added and which the Company then elects so to
add, which shall theretofore have been made the basis of the
release of Funded Property retired (such Fair Value to be the
amount shown in the Expert's Certificate delivered to the
Trustee in connection with such release); and
(E) the Cost to the Company of any Property Additions
(including Property Additions subject to the Lien of the NVP
1953 Mortgage) not theretofore so added and which the Company
then elects so to add, to the extent that the same shall have
been substituted for Funded Property retired;
provided, however, that the aggregate of the amounts added under clause
(ii) above shall in no event exceed the amounts deducted under clause
(i) above.
(c) Except as otherwise provided in Section 8.03, the term
"Cost" with respect to Property Additions shall mean the sum of (i) any cash
delivered in payment therefor or for the acquisition thereof, (ii) an amount
equivalent to the fair market value in cash (as of the date of delivery) of any
securities or other property delivered in payment therefor or for the
acquisition thereof, (iii) the principal amount of any obligations secured by
prior Lien (other than the NVP 1953 Mortgage) upon such Property Additions
outstanding at the time of the acquisition thereof, (iv) the principal amount of
any other obligations incurred or assumed in connection with the payment for
such Property Additions or for the acquisition thereof and (v) any other amounts
which, in accordance with generally accepted accounting principles, are properly
charged or chargeable to the plant or other property accounts of the Company
with respect to such Property Additions as part of the cost of construction or
acquisition thereof, including, but not limited to,
22
any allowance for funds used during construction or any similar or analogous
amount; provided, however, that, notwithstanding any other provision of this
Indenture,
(x) with respect to Property Additions owned by a successor
corporation immediately prior to the time it shall have become such by
consolidation or merger or acquired by a successor corporation in or as
a result of a consolidation or merger (excluding, in any case, Property
Additions owned by the Company immediately prior to such time), Cost
shall mean the amount or amounts at which such Property Additions are
recorded in the plant or other property accounts of such successor
corporation, or the predecessor corporation from which such Property
Additions are acquired, as the case may be, immediately prior to such
consolidation or merger;
(y) with respect to Property Additions which shall have been
acquired (otherwise than by construction) by the Company without any
consideration consisting of cash, securities or other property or the
incurring or assumption of indebtedness, no determination of Cost shall
be required, and, wherever in this Indenture provision is made for Cost
or Fair Value, Cost with respect to such Property Additions shall mean
an amount equal to the Fair Value to the Company thereof or, if
greater, the aggregate amount reflected in the Company's books of
account with respect thereto upon the acquisition thereof; and
(z) in no event shall the Cost of Property Additions be
required to reflect any depreciation or amortization in respect of such
Property Additions, or any adjustment to the amount or amounts at which
such Property Additions are recorded in plant or other property
accounts due to the non-recoverability of investment or otherwise.
If any Property Additions are shown by the Expert's
Certificate provided for in Section 4.02 (b)(ii) to include property which has
been used or operated by others than the Company in a business similar to that
in which it has been or is to be used or operated by the Company, the Cost
thereof need not be reduced by any amount in respect of any goodwill, going
concern value rights and/or intangible property simultaneously acquired for
which no separate or distinct consideration shall have been paid or apportioned,
and in such case the term Property Additions as defined herein may include such
goodwill, going concern value rights and intangible property.
SECTION 1.04 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, it being understood that
in the case of any such application or request as to which the furnishing of
such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
23
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 1.05 Content and Form of Documents Delivered to Trustee.
(a) Any Officer's Certificate may be based (without further
examination or investigation), insofar as it relates to or is dependent upon
legal matters, upon an opinion of, or representations by, counsel, and, insofar
as it relates to or is dependent upon matters which are subject to verification
by Accountants, upon a certificate or opinion of, or representations by, an
Accountant, and, insofar as it relates to or is dependent upon matters which are
required in this Indenture to be covered by a certificate or opinion of, or
representations by, an Expert, upon the certificate or opinion of, or
representations by, an Expert, unless, in any case, such officer has actual
knowledge that the certificate or opinion or representations with respect to the
matters upon which such Officer's Certificate may be based as aforesaid are
erroneous.
Any Expert's Certificate may be based (without further
examination or investigation), insofar as it relates to or is dependent upon
legal matters, upon an opinion of, or representations by, counsel, and insofar
as it relates to or is dependent upon factual matters, information with respect
to which is in the possession of the Company and which are not subject to
verification by Experts, upon a certificate or opinion of, or representations
by, an officer or officers of the Company, unless such Expert has actual
knowledge that the certificate or opinion or representations with respect to the
matters upon which his certificate or opinion may be based as aforesaid are
erroneous.
Any certificate of an Accountant may be based (without further
examination or investigation), insofar as it relates to or is dependent upon
legal matters, upon an opinion of, or representations by, counsel, and insofar
as it relates to or is dependent upon factual matters, information with respect
to which is in the possession of the Company and which are not subject to
verification by Accountants, upon a certificate of, or representations by, an
officer or officers of the Company, unless such Accountant has actual knowledge
that the certificate or opinion or representations with respect to the matters
upon which his certificate or opinion may be based as aforesaid are erroneous.
24
Any Opinion of Counsel may be based (without further
examination or investigation), insofar as it relates to or is dependent upon
factual matters, information with respect to which is in the possession of the
Company, upon a certificate of, or representations by, an officer or officers of
the Company, and, insofar as it relates to or is dependent upon matters which
are subject to verification by Accountants upon a certificate or opinion of, or
representations by, an Accountant, and, insofar as it relates to or is dependent
upon matters required in this Indenture to be covered by a certificate or
opinion of, or representations by, an Expert, upon the certificate or opinion
of, or representations by, an Expert, unless such counsel has actual knowledge
that the certificate or opinion or representations with respect to the matters
upon which his opinion may be based as aforesaid are erroneous. In addition, any
Opinion of Counsel may be based (without further examination or investigation),
insofar as it relates to or is dependent upon matters covered in an Opinion of
Counsel rendered by other counsel, upon such other Opinion of Counsel, unless
such counsel has actual knowledge that the Opinion of Counsel rendered by such
other counsel with respect to the matters upon which his Opinion of Counsel may
be based as aforesaid are erroneous. Further, any Opinion of Counsel with
respect to the status of title to or the sufficiency of descriptions of
property, and/or the existence of Liens thereon, and/or the recording or filing
of documents, and/or any similar matters, may be based (without further
examination or investigation) upon (i) title insurance policies or commitments
and reports, lien search certificates and other similar documents or (ii)
certificates of, or representations by, officers, employees, agents and/or other
representatives of the Company or (iii) any combination of the documents
referred to in (i) and (ii), unless, in any case, such counsel has actual
knowledge that the document or documents with respect to the matters upon which
his opinion may be based as aforesaid are erroneous. If, in order to render any
Opinion of Counsel provided for herein, the signer thereof shall deem it
necessary that additional facts or matters be stated in any Officer's
Certificate, certificate of an Accountant or Expert's Certificate provided for
herein, then such certificate may state all such additional facts or matters as
the signer of such Opinion of Counsel may request.
(b) In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect to
some matters and one or more other such Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or several
documents. Where 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.
(c) Whenever, subsequent to the receipt by the Trustee of any
Board Resolution, Officer's Certificate, Expert's Certificate, Net Earnings
Certificate, Opinion of Counsel or other document or instrument, a clerical,
typographical or other inadvertent or unintentional error or omission shall be
discovered therein, a new document or instrument may be substituted therefor in
corrected form with the same force and effect as if originally filed in the
corrected form and, irrespective of the date or dates of the actual execution
and/or delivery thereof, such substitute document or instrument shall be deemed
to have been executed and/or delivered as of the date or dates required with
respect to the document or instrument for which it is substituted. Anything in
this Indenture to the contrary notwithstanding, if any such corrective
25
document or instrument indicates that action has been taken by or at the request
of the Company which could not have been taken had the original document or
instrument not contained such error or omission, the action so taken shall not
be invalidated or otherwise rendered ineffective but shall be and remain in full
force and effect, except to the extent that such action was a result of willful
misconduct or bad faith. Without limiting the generality of the foregoing, any
Securities issued under the authority of such defective document or instrument
shall nevertheless be the valid obligations of the Company entitled to the
benefit of the Lien of this Indenture equally and ratably with all other
Outstanding Securities, except as aforesaid.
SECTION 1.06 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 XV, 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 Security, shall
be sufficient for any purpose of this Indenture and (subject to Section 11.01)
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 15.06.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof or may be
proved in any other manner which the Trustee and the Company deem sufficient.
Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority.
(c) The principal amount (except as otherwise contemplated in
clause (y) of the first proviso to the definition of Outstanding) and serial
numbers of Securities held by any Person, and the date of holding the same,
shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice,
consent, election, waiver or other Act of a Holder shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
26
(e) Until such time as written instruments shall have been
delivered to the Trustee with respect to the requisite percentage of principal
amount of Securities for the action contemplated by such instruments, any such
instrument executed and delivered by or on behalf of a Holder may be revoked
with respect to any or all of such Securities by written notice by such Holder
or any subsequent Holder, proven in the manner in which such instrument was
proven.
(f) Securities of any series, or any Tranche thereof,
authenticated and delivered after any Act of Holders may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any action
taken by such Act of Holders. If the Company shall so determine, new Securities
of any series, or any Tranche thereof, so modified as to conform, in the opinion
of the Trustee and the Company, to such action may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series or Tranche.
(g) The Company may, at its option, by Company Order, fix in
advance a record date for the determination of Holders entitled to give any
request, demand, authorization, direction, notice, consent, waiver or other Act
solicited by the Company, but the Company shall have no obligation to do so. In
addition, the Trustee may, at its option, fix in advance a record date for the
determination of Holders entitled to join in the giving or making of any Notice
of Default, any declaration of acceleration referred to in Section 10.02, any
request to institute proceedings referred to in Section 10.11 or any direction
referred to in Section 10.16. If any such record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other Act, or such
notice, declaration, request or direction, may be given before or after such
record date, but only the Holders of record at the close of business on the
record date shall be deemed to be Holders for the purposes of determining (i)
whether Holders of the requisite proportion of the Outstanding Securities have
authorized or agreed or consented to such Act (and for that purpose the
Outstanding Securities shall be computed as of the record date) and/or (ii)
which Holders may revoke any such Act (notwithstanding subsection (e) of this
Section).
SECTION 1.07 Notices, Etc. to Trustee and Company.
Except as otherwise provided herein, 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 expressly provided herein) if the same shall be in
writing and delivered personally to an officer or other responsible employee of
the addressee, or transmitted by facsimile transmission or other direct written
electronic means to such telephone number or other electronic communications
address as the parties hereto shall from time to time designate, or transmitted
by 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
27
101 Barclay Street, Floor 21W
New York, New York 10286
Attention: Corporate Trust Administration
If to the Company, to:
Nevada Power Company
P.O. Box 230
6226 W. Sahara Avenue
Las Vegas, Nevada 89146
Attention: Treasurer
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 registered
mail, on the date of receipt.
SECTION 1.08 Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein, where this
Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given, and shall be deemed given, to Holders if in writing and
mailed, first-class postage prepaid, to each Holder affected by such event, at
the address of such Holder as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice to
Holders by mail, then such notification as shall be made with the approval of
the Trustee shall constitute a sufficient notification for every purpose
hereunder. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders.
Any notice required by this Indenture may be waived in writing
by the Person entitled to receive such notice, either before or after the event
otherwise to be specified therein, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 1.09 Conflict with Trust Indenture Act.
If any provision of this Indenture limits, qualifies or
conflicts with another provision hereof which is required or deemed to be
included in this Indenture by, or is otherwise governed by, any provision of the
Trust Indenture Act, such other provision shall control; and if any provision
hereof otherwise conflicts with the Trust Indenture Act, the Trust Indenture Act
shall control.
28
SECTION 1.10 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 1.11 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 1.12 Separability Clause.
In case any provision in this Indenture or the Securities
shall be held to be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 1.13 Benefits of Indenture.
Nothing in this Indenture or the Securities, 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 1.14 Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the law of the State of New York (including without
limitation Section 5-1401 of the New York General Obligations Law or any
successor to such statute), except to the extent that the Trust Indenture Act
shall be applicable and except to the extent that the law of any jurisdiction
wherein any portion of the Mortgaged Property is located shall mandatorily
govern the creation of a mortgage lien on and security interest in, or
perfection, priority or enforcement of the Lien of this Indenture or exercise of
remedies with respect to, such portion of the Mortgaged Property.
SECTION 1.15 Legal Holidays.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities other than a provision in Securities of any series, or any Tranche
thereof, or in the indenture supplemental hereto, Board Resolution or Officer's
Certificate which establishes the terms of the Securities of such series or
Tranche, which specifically states that such provision shall apply in lieu of
this Section) payment of interest or principal and premium, if any, need not be
made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date 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.
29
SECTION 1.16 Investment of Cash Held by Trustee.
Any cash held by the Trustee or any Paying Agent under any
provision of this Indenture shall, except as otherwise provided in Section 8.06
or in Article IX, at the request of the Company evidenced by Company Order, be
invested or reinvested in Investment Securities designated by the Company (such
Company Order to contain a representation to the effect that the securities
designated therein constitute Investment Securities), and any interest on such
Investment Securities shall be promptly paid over to the Company as received
free and clear of any Lien. Such Investment Securities shall be held subject to
the same provisions hereof as the cash used to purchase the same, but upon a
like request of the Company shall be sold, in whole or in designated part, and
the proceeds of such sale shall be held subject to the same provisions hereof as
the cash used to purchase the Investment Securities so sold. If such sale shall
produce a net sum less than the cost of the Investment Securities so sold, the
Company shall pay to the Trustee or any such Paying Agent, as the case may be,
such amount in cash as, together with the net proceeds from such sale, shall
equal the cost of the Investment Securities so sold, and if such sale shall
produce a net sum greater than the cost of the Investment Securities so sold,
the Trustee or any such Paying Agent, as the case may be, shall promptly pay
over to the Company an amount in cash equal to such excess, free and clear of
any Lien. In no event shall the Trustee be liable for any loss incurred in
connection with the sale of any Investment Security pursuant to this Section.
Notwithstanding the foregoing, if an Event of Default shall
have occurred and be continuing, interest on Investment Securities and any gain
upon the sale thereof shall be held as part of the Mortgaged Property until such
Event of Default shall have been cured or waived, whereupon such interest and
gain shall be promptly paid over to the Company free and clear of any Lien.
ARTICLE II
----------
SECURITY FORMS
--------------
SECTION 2.01 Forms Generally.
The definitive Securities of each series shall be in
substantially the form or forms established in the indenture supplemental hereto
establishing such series, or in a Board Resolution establishing such series, or
in an Officer's Certificate pursuant to such a supplemental indenture or Board
Resolution, in any case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities. If the form or forms of Securities of any series
are established in a Board Resolution or in an Officer's Certificate pursuant to
a supplemental indenture 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 4.01 for the
authentication and delivery of such Securities.
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The Securities of each series shall be issuable in registered
form without coupons. The definitive Securities shall be produced in such manner
as shall be determined by the officers executing such Securities, as evidenced
by their execution thereof.
SECTION 2.02 Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in
substantially the form set forth below:
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
THE BANK OF NEW YORK, as Trustee
By:
-----------------------------
Authorized Signatory
ARTICLE III
-----------
THE SECURITIES
--------------
SECTION 3.01 Amount Unlimited; Issuable in Series.
Subject to the provisions of Article IV, the aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. Subject to
the penultimate paragraph of this Section, prior to the authentication and
delivery of Securities of any series there shall be established by specification
in a supplemental indenture or in a Board Resolution, or in an Officer's
Certificate pursuant to a supplemental indenture or a Board Resolution:
(a) the title of the Securities of such series (which shall
distinguish the Securities of such series from Securities of all other series);
(b) any limit upon the aggregate principal amount of the
Securities of such series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of such
series pursuant to Section 3.04, 3.05, 3.06, 5.06 or 14.06 and except for any
Securities which, pursuant to Section 3.03, are deemed never to have been
authenticated and delivered hereunder);
(c) the Persons (without specific identification) to whom
interest on Securities of such series, or any Tranche thereof, shall be payable
on any Interest Payment Date, if other than the Persons in whose names such
Securities (or one or more Predecessor Securities) are registered at the close
of business on the Regular Record Date for such interest;
31
(d) the date or dates on which the principal of the Securities
of such series, or any Tranche thereof, is payable or any formulary or other
method or other means by which such date or dates shall be determined, by
reference to an index or other fact or event ascertainable outside of this
Indenture or otherwise (without regard to any provisions for redemption,
prepayment, acceleration, purchase or extension);
(e) the rate or rates at which the Securities of such series,
or any Tranche thereof, shall bear interest, if any (including the rate or rates
at which overdue principal shall bear interest, if different from the rate or
rates at which such Securities shall bear interest prior to Maturity, and, if
applicable, the rate or rates at which overdue premium or interest shall bear
interest, if any), or any formulary or other method or other means by which such
rate or rates shall be determined, by reference to an index or other fact or
event ascertainable outside of this Indenture or otherwise; the date or dates
from which such interest shall accrue; the Interest Payment Dates on which such
interest shall be payable and the Regular Record Date, if any, for the interest
payable on such Securities on any Interest Payment Date; and the basis of
computation of interest, if other than as provided in Section 3.10;
(f) the place or places at which and/or the methods (if other
than as provided elsewhere in this Indenture) by which (i) the principal of and
premium, if any, and interest, if any, on Securities of such series, or any
Tranche thereof, shall be payable, (ii) registration of transfer of Securities
of such series, or any Tranche thereof, may be effected, (iii) exchanges of
Securities of such series, or any Tranche thereof, may be effected and (iv)
notices and demands to or upon the Company in respect of the Securities of such
series, or any Tranche thereof, and this Indenture may be served; the Security
Registrar and any Paying Agent or Agents for such series or Tranche; and, if
such is the case, that the principal of such Securities shall be payable without
the presentment or surrender thereof;
(g) the period or periods within which or the date or dates on
which, the price or prices at which and the terms and conditions upon which the
Securities of such series, or any Tranche thereof, may be redeemed, in whole or
in part, at the option of the Company;
(h) the obligation or obligations, if any, of the Company to
redeem or purchase the Securities of such series, or any Tranche thereof,
pursuant to any sinking fund or other mandatory redemption provisions or at the
option of a Holder thereof and the period or periods within which or the date or
dates on which, the price or prices at which and the terms and conditions upon
which such Securities shall be redeemed or purchased, in whole or in part,
pursuant to such obligation, and applicable exceptions to the requirements of
Section 5.04 in the case of mandatory redemption or redemption at the option of
the Holder;
(i) the denominations in which Securities of such series, or
any Tranche thereof, shall be issuable if other than denominations of One
Thousand Dollars ($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 of such series, or any Tranche thereof,
shall be payable (if other than in Dollars); it being understood that, for
purposes of calculations under this Indenture (including calculations of
principal amount
32
under Article IV), any amounts denominated in a currency other than Dollars or
in a composite currency shall be converted to Dollar equivalents by calculating
the amount of Dollars which could have been purchased by the amount of such
other currency based on such quotations or methods of determination as shall be
specified pursuant to this clause (j);
(k) if the principal of or premium, if any, or interest, if
any, on the Securities of such series, or any Tranche thereof, are to be
payable, at the election of the Company or a Holder thereof, in a coin or
currency other than that in which the Securities are stated to be payable, the
coin or currency in which payment of any amount as to which such election is
made will be payable, the period or periods within which, and the terms and
conditions upon which, such election may be made; it being understood that, for
purposes of calculations under this Indenture (including calculations of
principal amount under Article IV), any such election shall be required to be
taken into account, in the manner contemplated in clause (j) of this paragraph,
only after such election shall have been made;
(l) if the principal of or premium, if any, or interest, if
any, on the Securities of such series, or any Tranche thereof, are to be
payable, 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; it being
understood that all calculations under this Indenture (including calculations of
principal amount under Article IV) shall be made on the basis of the fair market
value of such securities or the Fair Value of such other property, in either
case determined as of the most recent practicable date, except that, in the case
of any amount of principal or interest that may be so payable at the election of
the Company or a Holder, if such election shall not yet have been made, such
calculations shall be made on the basis of the amount of principal or interest,
as the case may be, that would be payable if no such election were made;
(m) if the amount payable in respect of principal of or
premium, if any, or interest, if any, on the Securities of such series, or any
Tranche thereof, may be determined with reference to an index or other fact or
event ascertainable outside of this Indenture, the manner in which such amounts
shall be determined (to the extent not established pursuant to clause (e) of
this paragraph); it being understood that all calculations under this Indenture
(including calculations of principal amount under Article IV) shall be made on
the basis of the amount that would be payable as principal if such principal
were due, or on the basis of the interest rates in effect, as the case may be,
on the date next preceding the date of such calculation;
(n) if other than the principal amount thereof, the portion of
the principal amount of Securities of such series, or any Tranche thereof, which
shall be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 10.02;
(o) the terms, if any, pursuant to which the Securities of
such series, or any Tranche thereof, may be converted into or exchanged for
shares of capital stock or other securities of the Company or any other Person;
33
(p) the obligations or instruments, if any, which shall be
considered to be Eligible Obligations in respect of the Securities of such
series, or any Tranche thereof, denominated in a currency other than Dollars or
in a composite currency, and any additional or alternative provisions for the
reinstatement of the Company's indebtedness in respect of such Securities after
the satisfaction and discharge thereof as provided in Section 9.01;
(q) if the Securities of such series, or any Tranche thereof,
are to be issued in global form, (i) any limitations on the rights of the Holder
or Holders of such Securities to transfer or exchange the same or to obtain the
registration of transfer thereof, (ii) any limitations on the rights of the
Holder or Holders thereof to obtain certificates therefor in definitive form in
lieu of temporary form and (iii) any and all other matters incidental to such
Securities;
(r) if the Securities of such series, or any Tranche thereof,
are to be issuable as bearer securities, any and all matters incidental thereto
which are not specifically addressed in a supplemental indenture as contemplated
by clause (f) of Section 14.01;
(s) to the extent not established pursuant to clause (q) of
this paragraph, any limitations on the rights of the Holders of the Securities
of such Series, or any Tranche thereof, to transfer or exchange such Securities
or to obtain the registration of transfer thereof; and if a service charge will
be made for the registration of transfer or exchange of Securities of such
series, or any Tranche thereof, the amount or terms thereof;
(t) any exceptions to Section 1.15, or variation in the
definition of Business Day, with respect to the Securities of such series, or
any Tranche thereof; and
(u) any other terms of the Securities of such series, or any
Tranche thereof.
With respect to Securities of a series subject to a Periodic
Offering, the indenture supplemental hereto or the Board Resolution which
establishes such series, or the Officer's Certificate pursuant to such
supplemental indenture or Board Resolution, as the case may be, may provide
general terms or parameters for Securities of such series and provide either
that the specific terms of Securities of such series, or any Tranche thereof,
shall be specified in a Company Order or that such terms shall be determined by
the Company or its agents in accordance with procedures specified in a Company
Order as contemplated by clause (b) of Section 4.01.
Anything herein to the contrary notwithstanding, the Trustee
shall be under no obligation to authenticate and deliver Securities of any
series the terms of which, established as contemplated by this Section, would
affect the rights, duties, obligations, liabilities or immunities of the Trustee
under this Indenture or otherwise.
SECTION 3.02 Denominations.
Unless otherwise provided as contemplated by Section 3.01 with
respect to any series of Securities, or any Tranche thereof, the Securities of
each series shall be issuable in denominations of One Thousand Dollars ($1,000)
and any integral multiple thereof.
34
SECTION 3.03 Execution, Dating, Certificate of Authentication.
Unless otherwise provided as contemplated by Section 3.01 with
respect to any series of Securities, or any Tranche thereof, the Securities
shall be executed on behalf of the Company by an Authorized Officer, and may
have the corporate seal of the Company affixed thereto or reproduced thereon and
attested by any other Authorized Officer. The signature of any or all of these
officers on the Securities may be manual or facsimile.
Securities 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 Securities or did not hold such offices at the date of such Securities.
Unless otherwise specified as contemplated by Section 3.01
with respect to any series of Securities, or any Tranche thereof, each Security
shall be dated the date of its authentication.
Unless otherwise specified as contemplated by Section 3.01
with respect to any series of Securities, or any Tranche thereof, no Security
shall be entitled to any benefit under this Indenture or be valid or obligatory
for any purpose unless there appears on such Security a certificate of
authentication substantially in the form provided for herein executed by the
Trustee or an Authenticating Agent by manual signature of an authorized officer
thereof, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if (a) any Security shall have been authenticated
and delivered hereunder to the Company, or any Person acting on its behalf, but
shall never have been issued and sold by the Company, (b) the Company shall
deliver such Security to the Security Registrar for cancellation or shall cancel
such Security and deliver evidence of such cancellation to the Trustee, in each
case as provided in Section 3.09, and (c) the Company, at its election, shall
deliver to the Trustee a written statement (which need not comply with Section
1.04 and need not be accompanied by an Officer's Certificate or an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, then, for all purposes of this Indenture, such Security shall be deemed
never to have been authenticated and delivered hereunder and shall never be
entitled to the benefits hereof.
SECTION 3.04 Temporary Securities.
Pending the preparation of definitive Securities of any
series, or any Tranche thereof, the Company may execute, and upon Company Order
the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed, photocopied or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued, with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of such
Securities; provided, however, that temporary Securities need not recite
specific redemption, sinking fund, conversion or exchange provisions.
35
Except as otherwise specified as contemplated by Section 3.01
with respect to the Securities of any series, or any Tranche thereof, after the
preparation of definitive Securities of such series or Tranche, the temporary
Securities of such series or Tranche shall be exchangeable, without charge to
the Holder thereof, for definitive Securities of such series or Tranche upon
surrender of such temporary Securities at the office or agency of the Company
maintained pursuant to Section 6.02 in a Place of Payment for such Securities.
Upon such surrender of temporary Securities, the Company shall, except as
aforesaid, execute and the Trustee shall authenticate and deliver in exchange
therefor definitive Securities 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
Securities shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and Tranche and of like
tenor authenticated and delivered hereunder.
SECTION 3.05 Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept in one of the offices
designated pursuant to Section 6.02, with respect to the Securities of each
series, or any Tranche thereof, a register (the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Securities of such series or Tranche and the
registration of transfer thereof. The Company shall designate one Person to
maintain the Security Register for the Securities of each series, and such
Person is referred to herein, with respect to such series, as the "Security
Registrar". Anything herein to the contrary notwithstanding, the Company may
designate one or more of its offices as an office in which a register with
respect to the Securities of one or more series, or any Tranche or Tranches
thereof, shall be maintained, and the Company may designate itself the Security
Registrar with respect to one or more of such series. The Security Register
shall be open for inspection by the Trustee and the Company at all reasonable
times.
Except as otherwise specified as contemplated by Section 3.01
with respect to the Securities of any series, or any Tranche thereof, upon
surrender for registration of transfer of any Security of such series or Tranche
at the office or agency of the Company maintained pursuant to Section 6.02 in a
Place of Payment for such series or Tranche, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Securities of the same series and Tranche, of
authorized denominations and of like tenor and aggregate principal amount.
Except as otherwise specified as contemplated by Section 3.01
with respect to the Securities of any series, or any Tranche thereof, any
Security of such series or Tranche may be exchanged at the option of the Holder,
for one or more new Securities of the same series and Tranche, of authorized
denominations and of like tenor and aggregate principal amount, upon surrender
of the Securities to be exchanged at any such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
36
All Securities delivered upon any registration of transfer or
exchange of Securities shall be valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the Trustee or
the Security Registrar) be duly endorsed or shall be accompanied by a written
instrument of transfer in form satisfactory to the Company, the Trustee or the
Security 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 3.01
with respect to Securities of any series, or any Tranche thereof, no service
charge shall be made for any registration of transfer or exchange of Securities,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 3.04, 5.06 or 14.06 not involving any transfer.
The Company shall not be required to execute or to provide for
the registration of transfer of or the exchange of (a) Securities of any series,
or any Tranche thereof, during a period of fifteen (15) days immediately
preceding the date notice is to be given identifying the serial numbers of the
Securities of such series or Tranche called for redemption or (b) any Security
so selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
SECTION 3.06 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and Tranche, and of like tenor and
principal amount 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 Security 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 Security
is held by a Person purporting to be the owner of such Security, the Company
shall execute and the Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security, a new Security of the same series and
Tranche, and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
Notwithstanding the foregoing, in case any such mutilated,
destroyed, lost or stolen Security has become or is about to become due and
payable, the Company in its discretion may, but subject to compliance with the
foregoing conditions, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may
37
be imposed in relation thereto and any other reasonable expenses (including the
fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall constitute an
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone other than
the Holder of such new Security, and any such new Security shall be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Securities of such series duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.07 Payment of Interest; Interest Rights Preserved.
Unless otherwise specified as contemplated by Section 3.01
with respect to the Securities of any series, or any Tranche thereof, interest
on any Security which is payable, and is punctually paid or duly provided for,
on any Interest Payment Date shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the related Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, 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 Securities of such series (or their
respective Predecessor Securities) 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 Security 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 thirty (30) days
and not less than ten (10) days prior to the date of the proposed payment and
not less than twenty-five (25) 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, not less than fifteen (15) days prior to such Special Record Date, cause
notice of the proposed payment of such Defaulted Interest and the Special Record
Date therefor to be given to each Holder of Securities of such series. Notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest
38
shall be paid to the Persons in whose names the Securities of such series (or
their respective Predecessor Securities) are registered at the close of business
on such Special Record Date.
(b) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company 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 3.05, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
SECTION 3.08 Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name any Security is registered as the
absolute owner of such Security for the purpose of receiving payment of
principal of and premium, if any, and (subject to Sections 3.05 and 3.07)
interest, if any, on such Security and for all other purposes whatsoever,
whether or not such Security 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 3.09 Cancellation by Security Registrar.
All Securities surrendered for payment, redemption,
registration of transfer or exchange shall, if surrendered to any Person other
than the Security Registrar, be delivered to the Security Registrar and, if not
theretofore canceled, shall be promptly canceled by the Security Registrar. The
Company may at any time deliver to the Security Registrar for cancellation any
Securities 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 Securities so delivered shall be promptly canceled by
the Security Registrar. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section 3.09, except as
expressly permitted by this Indenture. All canceled Securities held by the
Security Registrar shall be disposed of in accordance with the Security
Registrar's then customary practice for disposing of securities, unless
otherwise directed by a Company Order; provided, however, that the Trustee shall
not be required to destroy any canceled Securities.
SECTION 3.10 Computation of Interest.
Except as otherwise specified as contemplated by Section 3.01
for Securities of any series, or any Tranche thereof, interest on the Securities
of each series shall be computed on the basis of a three hundred sixty (360) day
year consisting of twelve (12) thirty (30) day months and, with respect to any
period less than a full calendar month, on the basis of the actual number of
days elapsed during such period.
39
SECTION 3.11 Payment to Be in Proper Currency.
In the case of the Securities 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 Securities as contemplated by Section 3.01, the obligation of the
Company to make any payment of the principal thereof, or the premium, if any, or
interest, if any, 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 3.12 CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" or other
similar numbers (if then generally in use), and, if so, the Trustee or Security
Registrar may use "CUSIP" or such other numbers in notices of redemption as a
convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, in which case none of the Company or, as the case may be, the
Trustee or the Security Registrar, or any agent of any of them, shall have any
liability in respect of any CUSIP number used on any such notice, and any such
redemption shall not be affected by any defect in or omission of such numbers.
The Company will promptly notify the Trustee of any change in the "CUSIP"
numbers.
ARTICLE IV
----------
ISSUANCE OF SECURITIES
----------------------
SECTION 4.01 General.
Subject to the provisions of Section 4.02, 4.03 or 4.04,
whichever may be applicable, the Trustee shall authenticate and deliver
Securities 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 2.01 and 3.01;
(b) a Company Order requesting the authentication and delivery
of such Securities and, to the extent that the terms of such Securities shall
not have been established in an indenture supplemental hereto or in a Board
Resolution, or in an Officer's Certificate pursuant to
40
a supplemental indenture or Board Resolution, all as contemplated by Section
3.01, either (i) establishing such terms or (ii) in the case of Securities of a
series subject to a Periodic Offering, specifying procedures, acceptable to the
Trustee, by which such terms are to be established (which procedures may provide
for authentication and delivery pursuant to oral or electronic instructions from
the Company or any agent or agents thereof, which oral instructions are to be
promptly confirmed electronically or in writing), in either case in accordance
with the instrument or instruments delivered pursuant to clause (a) above;
(c) the Securities of such series, executed on behalf of the
Company by an Authorized Officer;
(d) an Opinion of Counsel to the effect that:
(i) the form or forms of such Securities have been duly
authorized by the Company and have been established in conformity with
the provisions of this Indenture;
(ii) the terms of such Securities have been duly authorized
by the Company and have been established in conformity with the
provisions of this Indenture; and
(iii) when such Securities shall have been authenticated and
delivered by the Trustee and issued and delivered by the Company in the
manner and subject to any conditions specified in such Opinion of
Counsel, such Securities will constitute valid obligations of the
Company, entitled to the benefit of the Lien of this Indenture equally
and ratably with all other Securities then Outstanding;
provided, however, that, with respect to Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel only once at or prior to the time of the first authentication and
delivery of such Securities (provided that such Opinion of Counsel addresses the
authentication and delivery of all such Securities) and that, in lieu of the
opinions described in clauses (ii) and (iii) above, counsel may opine that:
(x) when the terms of such Securities shall have been
established pursuant to a Company Order or Orders or pursuant to such
procedures 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) when such Securities shall have been authenticated and
delivered by the Trustee in accordance with this Indenture and the
Company Order or Orders or the 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, such Securities will constitute valid obligations of the
Company, entitled to the benefit of the Lien of this Indenture equally
and ratably with all other Securities then Outstanding;
41
(e) an Officer's Certificate to the effect that, to the
knowledge of the signer, no Event of Default has occurred and is continuing;
provided, however, that with respect to Securities of a series subject to a
Periodic Offering, either (i) such an Officer's Certificate shall be delivered
at the time of the authentication and delivery of each Security of such series
or (ii) the Officer's Certificate delivered at or prior to the time of the first
authentication and delivery of the Securities of such series shall state that
the statements therein shall be deemed to be made at the time of each, or each
subsequent, authentication and delivery of Securities of such series; and
(f) such other Opinions of Counsel, certificates and other
documents as may be required under Section 4.02, 4.03 or 4.04, whichever may be
applicable to the authentication and delivery of the Securities of such series.
With respect to Securities of a series subject to a Periodic
Offering, the Trustee may conclusively rely, as to the authorization by the
Company of any of such Securities, the forms and terms thereof, the validity
thereof and the compliance of the authentication and delivery thereof with the
terms and conditions of this Indenture, upon the Opinion or Opinions of Counsel
and the certificates and other documents delivered pursuant to this Article IV
at or prior to the time of the first authentication and delivery of Securities
of such series until any of such opinions, certificates or other documents have
been superseded or revoked or expire by their terms. In connection with the
authentication and delivery of Securities of a series subject to a Periodic
Offering, the Trustee shall be entitled to assume that the Company's
instructions to authenticate and deliver such Securities do not violate any
applicable law or any applicable rule, regulation or order of any Governmental
Authority having jurisdiction over the Company.
Anything herein to the contrary notwithstanding, none of the
conditions specified in Sections 4.02, 4.03 and 4.04 shall be required to be
satisfied in connection with the initial authentication and delivery of the
Securities of the Initial Series.
SECTION 4.02 Issuance of Securities on the Basis of Property Additions.
(a) Securities of any one or more series may be authenticated
and delivered on the basis of Property Additions which do not constitute Funded
Property in a principal amount not exceeding seventy percentum (70%) of the
balance of the Cost or the Fair Value to the Company of such Property Additions
(whichever shall be less) after making any deductions and any additions pursuant
to Section 1.03(b), except as otherwise specified in subsection (b) with respect
to the Initial Expert's Certificate.
(b) Securities of any series shall be authenticated and
delivered by the Trustee on the basis of Property Additions upon receipt by the
Trustee of:
(i) the documents with respect to the Securities of such
series specified in Section 4.01;
(ii) an Expert's Certificate dated as of a date not more
than ninety (90) days prior to the date of the Company Order requesting
the authentication and delivery of such Securities,
(A) describing all property constituting Property
Additions and
42
designated by the Company, in its discretion, to be made the
basis of the authentication and delivery of such Securities
(such description of property to be made by reference, at the
election of the Company, either to specified items, units
and/or elements of property or portions thereof, on a
percentage or Dollar basis, or to properties reflected in
specified accounts or subaccounts in the Company's books of
account or portions thereof, on a Dollar basis), and stating
the Cost of such property;
(B) stating that all such property constitutes
Property Additions;
(C) stating that such Property Additions are desirable
for use in the conduct of the business, or one of the
businesses, of the Company;
(D) stating that such Property Additions, to the extent
of the Cost or Fair Value to the Company thereof (whichever is
less) to be made the basis of the authentication and delivery
of such Securities, do not constitute Funded Property;
(E) stating, except as to Property Additions acquired,
made or constructed wholly through the delivery of securities
or other property, that the amount of cash forming all or part
of the Cost thereof was equal to or more than an amount to be
stated therein;
(F) briefly describing, with respect to any Property
Additions acquired, made or constructed in whole or in part
through the delivery of securities or other property, the
securities or other property so delivered and stating the date
of such delivery;
(G) stating what part, if any, of such Property
Additions includes property which within six months prior to
the date of acquisition thereof by the Company had been used
or operated by others than the Company in a business similar
to that in which it has been or is to be used or operated by
the Company and stating whether or not, in the judgment of the
signers, the Fair Value thereof to the Company, as of the date
of such certificate, is less than Twenty-five Thousand Dollars
($25,000) and whether or not such Fair Value is less than one
percentum (1%) of the aggregate principal amount of Securities
then Outstanding;
(H) stating, in the judgment of the signers, the Fair
Value to the Company, as of the date of such certificate, of
such Property Additions, except any thereof with respect to
the Fair Value to the Company of which a statement is to be
made in an Independent Expert's Certificate pursuant to clause
(iii) below;
(I) stating the amount required to be deducted under
Section 1.03(b)(i) and the amounts elected to be added under
Section 1.03(b)(ii) in respect of Funded Property retired of
the Company;
43
(J) if any property included in such Property Additions
is subject to a Lien (other than the lien of the NVP 1953
Mortgage) of the character described (I) in clause (d) of the
definition of Permitted Liens, stating that such Lien does
not, in the judgment of the signers, materially impair the use
by the Company of the Mortgaged Property considered as a
whole, or (II) in clause (g)(ii) of the definition of
Permitted Liens, stating that such Lien does not, in the
judgment of the signers, materially impair the use by the
Company of such property for the purposes for which it is held
by the Company or (III) in clause (n)(ii) of the definition of
Permitted Liens, stating that the enforcement of such Lien
would not, in the judgment of the signers, adversely affect
the interests of the Company in such property in any material
respect;
(K) stating the lower of the Cost or the Fair Value to
the Company of such Property Additions, after the deductions
therefrom and additions thereto specified in such Expert's
Certificate pursuant to clause (I) above;
(L) stating the amount equal to seventy percentum (70%)
of the amount required to be stated pursuant to clause (K)
above; and
(M) stating the aggregate principal amount of the
Securities to be authenticated and delivered on the basis of
such Property Additions (such amount not to exceed the amount
stated pursuant to clause (L) above); provided, however, that
in the Initial Expert's Certificate there shall be stated, in
lieu of such principal amount, the sum of (I) the principal
amount of Securities to be authenticated and delivered on the
basis of Property Additions, (II) the aggregate principal
amount of all Securities then Outstanding and (III) the
aggregate principal amount of all First Mortgage Bonds then
Outstanding (such sum not to exceed the amount stated pursuant
to clause (L) above);
(iii) in case any Property Additions are shown by the
Expert's Certificate provided for in clause (ii) above to include
property which, within six months prior to the date of acquisition
thereof by the Company, had been used or operated by others than the
Company in a business similar to that in which it has been or is to be
used or operated by the Company and such certificate does not show the
Fair Value thereof to the Company, as of the date of such certificate,
to be less than Twenty-five Thousand Dollars ($25,000) or less than one
percentum (1%) of the aggregate principal amount of Securities then
Outstanding, an Independent Expert's Certificate stating, in the
judgment of the signer, the Fair Value to the Company, as of the date
of such Independent Expert's Certificate, of (X) such Property
Additions which have been so used or operated and (at the option of the
Company) as to any other Property Additions included in the Expert's
Certificate provided for in clause (ii) above and (Y) in case such
Independent Expert's Certificate is being delivered in connection with
the authentication and delivery of Securities, any property so used or
operated which has been subjected to the Lien of this Indenture since
the commencement of the then current calendar year as the basis for the
authentication and delivery of Securities and as to which an
Independent Expert's Certificate has not previously been furnished to
the Trustee;
44
(iv) in case any Property Additions are shown by the
Expert's Certificate provided for in clause (ii) above to have been
acquired, made or constructed in whole or in part through the delivery
of securities or other property, an Expert's Certificate stating, in
the judgment of the signers, the fair market value in cash of such
securities or other property at the time of delivery thereof in payment
for or for the acquisition of such Property Additions;
(v) an Opinion of Counsel to the effect that:
(A) this Indenture constitutes, or, upon the delivery
of, and/or the filing and/or recording in the proper places
and manner of, the instruments of conveyance, assignment or
transfer, if any, specified in said opinion, will constitute,
a Lien on all the Property Additions to be made the basis of
the authentication and delivery of such Securities, subject to
no Lien thereon prior to the Lien of this Indenture except
Permitted Liens; and
(B) the Company has corporate authority to operate such
Property Additions; and
(vi) copies of the instruments of conveyance, assignment and
transfer, if any, specified in the Opinion of Counsel provided for in
clause (v) above.
SECTION 4.03 Issuance of Securities on the Basis of Retired Securities.
(a) Subject to the provisions of subsection (c) of this
Section, Securities of any one or more series may be authenticated and delivered
on the basis of, and in an aggregate principal amount not exceeding the
aggregate principal amount of, Retired Securities.
(b) Securities of any series shall be authenticated and
delivered by the Trustee on the basis of Retired Securities upon receipt by the
Trustee of:
(i) the documents with respect to the Securities of such
series specified in Section 4.01; and
(ii) an Officer's Certificate stating that Retired
Securities, specified by series, in an aggregate principal amount not
less than the aggregate principal amount of Securities to be
authenticated and delivered, have theretofore been authenticated and
delivered and, as of the date of such Officer's Certificate, constitute
Retired Securities and are the basis for the authentication and
delivery of such Securities.
SECTION 4.04 Issuance of Securities on the Basis of Deposit of Cash.
(a) Securities of any one or more series may be authenticated
and delivered on the basis of, and in an aggregate principal not exceeding the
amount of, any deposit with the Trustee of cash for such purpose.
45
(b) Securities of any series shall be authenticated and
delivered by the Trustee on the basis of the deposit of cash when the Trustee
shall have received, in addition to such deposit, the documents with respect to
the Securities of such series specified in Section 4.01.
(c) All cash deposited with the Trustee under the provisions
of this Section shall be held by the Trustee as a part of the Mortgaged Property
and may be withdrawn from time to time by the Company, upon application of the
Company to the Trustee, in an amount equal to the aggregate principal amount of
Securities to the authentication and delivery of which the Company shall be
entitled under any of the provisions of this Indenture by virtue of compliance
with all applicable provisions of this Indenture (except as hereinafter in this
subsection (c) otherwise provided).
Upon any such application for withdrawal, the Company shall
comply with all applicable provisions of this Indenture relating to the
authentication and delivery of Securities except that the Company shall not in
any event be required to deliver the documents specified in Section 4.01.
Any withdrawal of cash under this subsection (c) shall operate
as a waiver by the Company of its right to the authentication and delivery of
the Securities on which it is based and such Securities may not thereafter be
authenticated and delivered hereunder. Any Property Additions which have been
made the basis of any such right to the authentication and delivery of
Securities so waived shall be deemed to have been made the basis of the
withdrawal of such cash; and any Retired Securities which have been made the
basis of any such right to the authentication and delivery of Securities so
waived shall be deemed to have been made the basis of the withdrawal of such
cash.
(d) If at any time the Company shall so direct, any sums
deposited with the Trustee under the provisions of this Section may be used or
applied to the purchase, payment or redemption of Securities in the manner and
subject to the conditions provided in clauses (d) and (e) of Section 8.06.
ARTICLE V
---------
REDEMPTION OF SECURITIES
------------------------
SECTION 5.01 Applicability of Article.
Securities of any series, or any Tranche thereof, which are
redeemable before their Stated Maturity shall be redeemable in accordance with
their terms and (except as otherwise specified as contemplated by Section 3.01
for Securities of such series or Tranche) in accordance with this Article.
SECTION 5.02 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution or an Officer's Certificate. The Company shall,
at least forty-five (45) days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory
46
to the Trustee), notify the Trustee in writing of such Redemption Date and of
the principal amount of such Securities to be redeemed. In the case of any
redemption of Securities (a) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture or (b) pursuant to an election of the Company which is subject to a
condition specified in the terms of such Securities, the Company shall furnish
the Trustee with an Officer's Certificate evidencing compliance with such
restriction or condition.
SECTION 5.03 Selection of Securities to Be Redeemed.
If less than all the Securities of any series, or any Tranche
thereof, are to be redeemed, the particular Securities to be redeemed shall be
selected by the Security Registrar from the Outstanding Securities of such
series or Tranche not previously called for redemption, by such method as shall
be provided for any particular series or Tranche, or, in the absence of any such
provision, by such method of random selection as the Security Registrar 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
Securities of such series or Tranche or any integral multiple thereof) of the
principal amount of Securities of such series or Tranche having a denomination
larger than the minimum authorized denomination for Securities of such series or
Tranche; provided, however, that if, as indicated in an Officer's Certificate,
the Company shall have offered to purchase all or any principal amount of the
Securities then Outstanding of any series, or any Tranche thereof, and less than
all of such Securities as to which such offer was made shall have been tendered
to the Company for such purchase, the Security Registrar, if so directed by
Company Order, shall select for redemption all or any principal amount of such
Securities which have not been so tendered.
The Security Registrar shall promptly notify the Company and
the Trustee in writing of the Securities selected for redemption and, in the
case of any Securities selected to be redeemed in part, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
SECTION 5.04 Notice of Redemption.
Notice of redemption shall be given in the manner provided in
Section 1.08 to the Holders of the Securities to be redeemed not less than
thirty (30) nor more than sixty (60) days prior to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
47
(c) if less than all the Securities of any series or Tranche
are to be redeemed, the identification of the particular Securities to be
redeemed and the portion of the principal amount of any Security to be redeemed
in part,
(d) that on the Redemption Date the Redemption Price, together
with accrued interest, if any, to the Redemption Date, will become due and
payable upon each such Security to be redeemed and, if applicable, that interest
thereon will cease to accrue on and after said date,
(e) the place or places where such Securities are to be
surrendered for payment of the Redemption Price and accrued interest, if any,
unless it shall have been specified as contemplated by Section 3.01 with respect
to such Securities that such surrender shall not be required,
(f) that the redemption is for a sinking or other fund, if
such is the case, and
(g) such other matters as the Company shall deem desirable or
appropriate.
With respect to any notice of redemption of Securities at the
election of the Company, unless, upon the giving of such notice, such Securities
shall be deemed to have been paid in accordance with Section 9.01, such notice
may state that such redemption shall be conditional upon the receipt by the
Paying Agent or Agents for such Securities, on or prior to the date fixed for
such redemption, of money sufficient to pay the principal of and premium, if
any, and interest, if any, on such Securities and that if such money shall not
have been so received such notice shall be of no force or effect and the Company
shall not be required to redeem such Securities. In the event that such notice
of redemption contains such a condition and such money is not so received, the
redemption shall not be made and within a reasonable time thereafter notice
shall be given, in the manner in which the notice of redemption was given, that
such money was not so received and such redemption was not required to be made,
and the Paying Agent or Agents for the Securities otherwise to have been
redeemed shall promptly return to the Holders thereof any of such Securities
which had been surrendered for payment upon such redemption.
Notice of redemption of Securities to be redeemed at the
election of the Company, and any notice of non-satisfaction of a condition for
redemption as aforesaid, shall be given by the Company or, at the Company's
request, by the Security Registrar in the name and at the expense of the
Company. Notice of mandatory redemption of Securities shall be given by the
Security Registrar in the name and at the expense of the Company.
SECTION 5.05 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, and the
conditions, if any, set forth in such notice having been satisfied, the
Securities or portions thereof so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein specified, and from and
after such date (unless, in the case of an unconditional notice of redemption,
the Company shall default in the payment of the Redemption Price and accrued
interest, if any) such Securities or portions thereof, if interest-bearing,
shall cease to bear interest. Upon surrender of any such Security for redemption
in accordance with such notice, such Security or portion thereof shall be paid
by the Company at the Redemption Price, together with
48
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 3.01 with respect to such Security; and provided,
further, that, except as otherwise specified as contemplated by Section 3.01
with respect to such Security, any installment of interest on any Security the
Stated Maturity of which installment is on or prior to the Redemption Date shall
be payable to the Holder of such Security, or one or more Predecessor
Securities, registered as such at the close of business on the related Regular
Record Date according to the terms of such Security and subject to the
provisions of Section 3.07.
SECTION 5.06 Securities Redeemed in Part.
Upon the surrender of any Security which is to be redeemed
only in part at a Place of Payment therefor (with, if the Company 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 Security, without
service charge, a new Security or Securities of the same series and Tranche, of
any authorized denomination requested by such Holder and of like tenor and in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
ARTICLE VI
----------
COVENANTS
---------
SECTION 6.01 Payment of Securities; Lawful Possession; Maintenance of Lien.
(a) The Company shall pay the principal of and premium, if
any, and interest, if any, on the Securities of each series in accordance with
the terms of such Securities and this Indenture.
(b) At the date of the execution and delivery of this
Indenture, as originally executed and delivered, the Company is lawfully
possessed of the Mortgaged Property.
(c) The Company shall maintain and preserve the Lien of this
Indenture so long as any Securities shall remain Outstanding, subject, however,
to the provisions of Article VIII and Article XIV.
SECTION 6.02 Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for the
Securities of each series, or any Tranche thereof, an office or agency where
payment of such Securities shall be made, where the registration of transfer or
exchange of such Securities may be effected and where notices and demands to or
upon the Company in respect of such Securities 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 1.08. If at
any time the Company
49
shall fail to maintain any such required office or agency in respect of
Securities of any series, or any Tranche thereof, or shall fail to furnish the
Trustee with the address thereof, payment of such Securities 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 Securities of one or more series,
or any Tranche thereof, for any or all of the foregoing purposes and may from
time to time rescind such designations; provided, however, that, unless
otherwise specified as contemplated by Section 3.01 with respect to the
Securities 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 Securities 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 1.08, of any such designation or rescission and of any change in the
location of any such other office or agency.
Anything herein to the contrary notwithstanding, any office or
agency required by this Section may be maintained at an office of the Company,
in which event the Company shall perform all functions to be performed at such
office or agency.
SECTION 6.03 Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent
with respect to the Securities of any series, or any Tranche thereof, it shall,
on or before each due date of the principal of and premium, if any, and
interest, if any, on any of such Securities, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal
and premium or interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided. The Company shall promptly
notify the Trustee of any failure by the Company (or any other obligor on such
Securities) to make any payment of principal of or premium, if any, or interest,
if any, on such Securities.
Whenever the Company shall have one or more Paying Agents for
the Securities of any series, or any Tranche thereof, it shall, on or before
each due date of the principal of and premium, if any, and interest, if any, on
such Securities, deposit with such Paying Agents sums sufficient (without
duplication) to pay the principal and premium or interest so becoming due, such
sums 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 Securities
of any series, or any Tranche thereof, other than the Company or the Trustee, to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent shall:
50
(a) hold all sums held by it for the payment of the principal
of and premium, if any, or interest, if any, on such Securities 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 Securities) to make any payment of principal of or
premium, if any, or interest, if any, on such Securities; and
(c) at any time during the continuance of any such failure,
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 IX; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of and
premium, if any, or interest, if any, on any Security and remaining unclaimed
for two years after such principal and premium, if any, or interest, if any, 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 Security shall, as an unsecured general
creditor and not as the Holder of an Outstanding Security, 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, shall, upon receipt of a
Company Request and 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 thirty (30) days
from the date of such mailing, any unclaimed balance of such money then
remaining will be paid to the Company.
SECTION 6.04 Corporate Existence.
Subject to the rights of the Company under Article XIII, the
Company shall do or cause to be done all things necessary to preserve and keep
its corporate existence in full force and effect.
SECTION 6.05 Maintenance of Properties.
The Company shall cause (or, with respect to property owned in
common with others, make reasonable effort to cause) the Mortgaged Property,
considered as a whole, to be maintained and kept in good condition, repair and
working order and shall cause (or, with respect
51
to property owned in common with others, make reasonable effort to cause) to be
made such repairs, renewals, replacements, betterments and improvements thereof,
as, in the judgment of the Company, may be necessary in order that the operation
of the Mortgaged Property, considered as a whole, may be conducted in accordance
with common industry practice; provided, however, that nothing in this Section
shall prevent the Company from discontinuing, or causing the discontinuance of,
the operation and maintenance of any portion of the Mortgaged Property; and
provided, further, that nothing in this Section shall prevent the Company from
selling, transferring or otherwise disposing of, or causing the sale, transfer
or other disposition of, any portion of the Mortgaged Property.
SECTION 6.06 Payment of Taxes; Discharge of Liens.
The Company shall pay all taxes and assessments and other
governmental charges lawfully levied or assessed upon the Mortgaged Property, or
upon any part thereof, or upon the interest of the Trustee in the Mortgaged
Property, before the same shall become delinquent, and shall make reasonable
effort to observe and conform in all material respects to all valid requirements
of any Governmental Authority relative to any of the Mortgaged Property and all
covenants, terms and conditions upon or under which any of the Mortgaged
Property is held; and the Company shall not suffer any Lien to be created upon
the Mortgaged Property, or any part thereof, prior to the Lien hereof, other
than Permitted Liens and other than, in the case of property hereafter acquired,
Purchase Money Liens and any other Liens existing or placed thereon at the time
of the acquisition thereof; provided, however, that nothing in this Section
contained shall require the Company (i) to observe or conform to any requirement
of Governmental Authority or to cause to be paid or discharged, or to make
provision for, any such Lien, or to pay any such tax, assessment or governmental
charge so long as the validity thereof shall be contested in good faith and by
appropriate legal proceedings, (ii) to pay, discharge or make provisions for any
tax, assessment or other governmental charge, the validity of which shall not be
so contested if adequate security for the payment of such tax, assessment or
other governmental charge and for any penalties or interest which may reasonably
be anticipated from failure to pay the same shall be given to the Trustee or
(iii) to pay, discharge or make provisions for any Liens existing on the
Mortgaged Property at the date of execution and delivery of this Indenture, as
originally executed and delivered; and provided, further, that nothing in this
Section shall prohibit the issuance or other incurrence of additional
indebtedness, or the refunding of outstanding indebtedness, secured by any Lien
prior to the Lien hereof which is permitted under this Section to continue to
exist.
SECTION 6.07 Insurance.
(a) The Company shall (i) keep or cause to be kept all the
property subject to the Lien of this Indenture insured against loss by fire, to
the extent that property of similar character is usually so insured by companies
similarly situated and operating like properties, to a reasonable amount, by
reputable insurance companies, the proceeds of such insurance (except as to any
loss of Excepted Property and except as to any particular loss less than the
greater of (A) Ten Million Dollars ($10,000,000) and (B) three percentum (3%) of
the sum of (1) the principal amount of Securities Outstanding on the date of
such particular loss and (2) the principal amount of the First Mortgage Bonds
Outstanding on the date of such particular loss) to be made payable, subject to
applicable law, to the Trustee as the interest of the Trustee may
52
appear, to the trustee of the NVP 1953 Mortgage, or to the trustee or other
holder of any other Lien prior hereto upon property subject to the Lien hereof,
if the terms thereof require such payment or (ii) in lieu of or supplementing
such insurance in whole or in part, adopt some other method or plan of
protection against loss by fire at least equal in protection to the method or
plan of protection against loss by fire of companies similarly situated and
operating properties subject to similar fire hazards or properties on which an
equal primary fire insurance rate has been set by reputable insurance companies;
and if the Company shall adopt such other method or plan of protection, it
shall, subject to applicable law (and except as to any loss of Excepted Property
and except as to any particular loss less than the greater of (X) Ten Million
Dollars ($10,000,000) and (Y) three percentum (3%) of the sum of (1) the
principal amount of Securities Outstanding on the date of such particular loss
and (2) the principal amount of the First Mortgage Bonds Outstanding on the date
of such particular loss) pay to the Trustee on account of any loss covered by
such method or plan an amount in cash equal to the amount of such loss less any
amounts otherwise paid to the Trustee in respect of such loss or paid to the
trustee under the NVP 1953 Mortgage or to the trustee or other holder of any
other Lien prior hereto upon property subject to the Lien hereof in respect of
such loss if the terms thereof require such payment. Any cash so required to be
paid by the Company pursuant to any such method or plan shall for the purposes
of this Indenture be deemed to be proceeds of insurance. In case of the adoption
of such other method or plan of protection, the Company shall also furnish to
the Trustee a certificate of an actuary or other qualified person appointed by
the Company with respect to the adequacy of such method or plan.
Anything herein to the contrary notwithstanding, the Company
may have fire insurance policies with (i) a deductible provision in a dollar
amount per occurrence not exceeding the greater of (A) Ten Million Dollars
($10,000,000) and (B) three percentum (3%) of the sum of (1) the principal
amount of the Securities Outstanding on the date such policy goes into effect
and (2) the principal amount of the First Mortgage Bonds Outstanding on the date
such policy goes into effect, and/or (ii) co-insurance or self insurance
provisions with a dollar amount per occurrence not exceeding thirty percentum
(30%) of the loss proceeds otherwise payable; provided, however, that the dollar
amount described in clause (i) above may be exceeded to the extent such dollar
amount per occurrence is below the deductible amount in effect as to fire
insurance (X) on property of similar character insured by companies similarly
situated and operating like property or (Y) on property as to which an equal
primary fire insurance rate has been set by reputable insurance companies.
(b) All moneys paid to the Trustee by the Company in
accordance with this Section or received by the Trustee as proceeds of any
insurance, in either case on account of a loss on or with respect to Funded
Property, shall, subject to the requirements of the NVP 1953 Mortgage or other
Lien prior hereto upon property subject to the Lien hereof, be held by the
Trustee and, subject as aforesaid, shall be paid by it to the Company to
reimburse the Company for an equal amount expended or committed for expenditure
in the rebuilding, renewal and/or replacement of or substitution for the
property destroyed or damaged or lost, upon receipt by the Trustee of:
(i) a Company Request requesting such payment,
(ii) an Expert's Certificate:
53
(A) describing the property so damaged or destroyed or
otherwise lost;
(B) stating the Cost of such property (or, if the Fair
Value to the Company of such property at the time the same
became Funded Property was certified to be an amount less than
the Cost thereof, then such Fair Value, as so certified, in
lieu of Cost) or, if such damage or destruction shall have
affected only a portion of such property, stating the
allocable portion of such Cost or Fair Value;
(C) stating the amounts so expended or committed for
expenditure in the rebuilding, renewal, replacement of and/or
substitution for such property; and
(D) stating the Fair Value to the Company of such
property as rebuilt or renewed or as to be rebuilt or renewed
and/or of the replacement or substituted property, and if
(I) within six months prior to the date of
acquisition thereof by the Company, such property has
been used or operated, by a person or persons other
than the Company, in a business similar to that in
which it has been or is to be used or operated by the
Company, and
(II) the Fair Value to the Company of such
property as set forth in such Expert's Certificate is
not less than Twenty-five Thousand Dollars ($25,000)
and not less than one percentum (1%) of the aggregate
principal amount of the Securities at the time
Outstanding,
the Expert making the statement required by this clause (D)
shall be an Independent Expert, and
(iii) an Opinion of Counsel stating that, in the opinion of
the signer, the property so rebuilt or renewed or to be rebuilt or
renewed, and/or the replacement property, is or will be subject to the
Lien hereof to the same extent as was the property so destroyed or
damaged or otherwise lost.
Any such moneys not so applied within thirty-six (36) months
after its receipt by the Trustee, or in respect of which notice in writing of
intention to apply the same to the work of rebuilding, renewal, replacement or
substitution then in progress and uncompleted shall not have been given to the
Trustee by the Company within such thirty-six (36) months, or which the Company
shall at any time notify the Trustee is not to be so applied, shall thereafter
be withdrawn, used or applied in the manner, to the extent and for the purposes,
and subject to the conditions, provided in Section 8.06; provided, however, that
if the amount of such moneys shall exceed seventy percentum (70%) of the amount
stated pursuant to clause (B) in the Expert's Certificate referred to above, the
amount of such excess shall not be deemed to be Funded Cash,
54
shall not be subject to Section 8.06 and shall be remitted to or upon the order
of the Company upon the withdrawal, use or application of the balance of such
moneys pursuant to Section 8.06.
Anything in this Indenture to the contrary notwithstanding, if
property on or with respect to which a loss occurs constitutes Funded Property
in part only, the Company may, at its election, obtain the reimbursement of
insurance proceeds attributable to the part of such property which constitutes
Funded Property under this subsection (b) and obtain the reimbursement of
insurance proceeds attributable to the part of such property which does not
constitute Funded Property under subsection (c) of this Section 6.07.
(c) All moneys paid to the Trustee by the Company in
accordance with this Section or received by the Trustee as proceeds of any
insurance, in either case on account of a loss on or with respect to property
which does not constitute Funded Property, shall, subject to the requirements of
the NVP 1953 Mortgage or other Lien prior hereto upon property subject to the
Lien hereof, be held by the Trustee and, subject as aforesaid, shall be paid by
it to the Company upon receipt by the Trustee of:
(i) a Company Request requesting such payment;
(ii) an Expert's Certificate stating:
(A) that such moneys were paid to or received by the
Trustee on account of a loss on or with respect to property
which does not constitute Funded Property; and
(B) if true, either (I) that the aggregate amount of
the Cost or Fair Value to the Company (whichever is less) of
all Property Additions which do not constitute Funded Property
(excluding, to the extent of such loss, the property on or
with respect to which such loss was incurred), after making
deductions therefrom and additions thereto of the character
contemplated by Section 1.03, is not less than zero (0) or
(II) that the amount of such loss does not exceed the
aggregate Cost or Fair Value to the Company (whichever is
less) of Property Additions acquired, made or constructed on
or after the ninetieth (90th) day prior to the date of the
Company Request requesting such payment; or
(C) if neither of the statements contemplated in
subclause (B) above can be made, the amount by which zero (0)
exceeds the amount referred to in subclause (B)(I) above
(showing in reasonable detail the calculation thereof); and
(iii) if the Expert's Certificate required by clause (ii)
above contains neither of the statements contemplated in clause (ii)(B)
above, an amount in cash, to be held by the Trustee as part of the
Mortgaged Property, equal to seventy percentum (70%) of the amount
shown in clause (ii)(C) above.
To the extent that the Company shall be entitled to withdraw
proceeds of insurance pursuant to this subsection (c), such proceeds shall be
deemed not to constitute Funded Cash.
55
(d) Whenever under the provisions of this Section the Company
is required to deliver moneys to the Trustee and at the same time shall have
satisfied the conditions set forth herein for payment of moneys by the Trustee
to the Company, there shall be paid to or retained by the Trustee or paid to the
Company, as the case may be, only the net amount.
SECTION 6.08 Recording, Filing, etc.
The Company shall cause this Indenture and all indentures and
instruments supplemental hereto (or notices, memoranda or financing statements
as may be recorded or filed to place third parties on notice thereof) to be
promptly recorded and filed and re-recorded and re-filed in such manner and in
such places, as may be required by law in order fully to preserve and protect
the security of the Holders of the Securities and all rights of the Trustee, and
shall furnish to the Trustee:
(a) promptly after the execution and delivery of this
Indenture, as originally executed and delivered, and of each supplemental
indenture, an Opinion of Counsel either stating that in the opinion of such
counsel this Indenture or such supplemental indenture (or any other instrument,
notice, memorandum or financing statement in connection therewith) has been
properly recorded and filed, so as to make effective the Lien intended to be
created hereby or thereby, and reciting the details of such action, or stating
that in the opinion of such counsel no such action is necessary to make such
Lien effective. The Company shall be deemed to be in compliance with this
subsection (a) if (i) the Opinion of Counsel herein required to be delivered to
the Trustee shall state that this Indenture or such supplemental indenture (or
any other instrument, notice, memorandum or financing statement in connection
therewith) has been received for record or filing in each jurisdiction in which
it is required to be recorded or filed and that, in the opinion of such counsel
(if such is the case), such receipt for record or filing makes effective the
Lien intended to be created by this Indenture or such supplemental indenture,
and (ii) such opinion is delivered to the Trustee within such time, following
the date of the execution and delivery of this Indenture, as originally executed
and delivered, or such supplemental indenture, as shall be practicable having
due regard to the number and distance of the jurisdictions in which this
Indenture or such supplemental indenture (or such other instrument, notice,
memorandum or financing statement in connection therewith) is required to be
recorded or filed; and
(b) on or before June 1 of each year, beginning June 1, 2002,
an Opinion of Counsel stating either (i) 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 subsection (b) or the first Opinion of Counsel
furnished pursuant to subsection (a) of this Section, with respect to the
recording, filing, re-recording, and re-filing of this Indenture and of each
indenture supplemental to this Indenture (or any other instrument, notice,
memorandum or financing statement in connection therewith), as is necessary to
maintain the effectiveness of the Lien hereof, and reciting the details of such
action, or (ii) that in the opinion of such counsel no such action is necessary
to maintain the effectiveness of such Lien.
The Company shall execute and deliver such supplemental
indenture or indentures and such further instruments and do such further acts as
may be necessary or proper to carry out the purposes of this Indenture and to
make subject to the Lien hereof any property
56
hereafter acquired, made or constructed and intended to be subject to the Lien
hereof, and to transfer to any new trustee or trustees or co-trustee or
co-trustees, the estate, powers, instruments or funds held in trust hereunder.
SECTION 6.09 Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in
(a) any covenant or restriction specified with respect to the
Securities of any one or more series, or any one or more Tranches thereof, as
contemplated by Section 3.01 if before the time for such compliance the Holders
of at least a majority in aggregate principal amount of the Outstanding
Securities of all series and Tranches with respect to which compliance with such
covenant or restriction is to be omitted, considered as one class, shall, by Act
of such Holders, either waive such compliance in such instance or generally
waive compliance with such term, provision or condition; provided, however, that
no such waiver shall be effective as to any of the matters contemplated in
clause (a), (b), (c) or (d) in Section 14.02 without the consent of the Holders
specified in such Section; and
(b) Section 6.04, 6.05, 6.06 or 6.07 or Article XIII if before
the time for such compliance the Holders of at least a majority in principal
amount of Securities Outstanding under this Indenture shall, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition;
but, in either case, no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
SECTION 6.10 Annual Officer's Certificate as to Compliance.
Not later than June 1 in each year, commencing June 1, 2002,
the Company shall deliver to the Trustee an Officer's Certificate which need not
comply with Section 1.04, executed by the principal executive officer, the
principal financial officer or the principal accounting officer of the Company,
as to such officer's knowledge of the Company's compliance with all conditions
and covenants under this Indenture, such compliance to be determined without
regard to any period of grace or requirement of notice under this Indenture.
ARTICLE VII
-----------
COVENANTS RELATING TO THE NVP 1953 MORTGAGE
-------------------------------------------
SECTION 7.01 Prompt Payment of First Mortgage Bonds.
The Company will pay or cause to be paid, as the same shall
become due and payable, the principal of, premium, if any, and interest on all
First Mortgage Bonds issued under the NVP 1953 Mortgage, and will not extend the
time of payment of any of such principal,
57
premium or interest. The Company will comply with all the terms, covenants and
conditions to be performed by the Company under the NVP 1953 Mortgage.
SECTION 7.02 Closing and Discharge of NVP 1953 Mortgage.
(a) The Company covenants and agrees that, from and after the
date of the initial authentication and delivery of the Securities of the Initial
Series issued under this Indenture, the Company will not issue any additional
First Mortgage Bonds under the NVP 1953 Mortgage, except (i) up to $195,000,000
aggregate principal amount of additional First Mortgage Bonds and (ii) to the
extent necessary to replace any mutilated, lost or destroyed bonds or to effect
exchanges and transfers of bonds.
(b) As soon as practicable after the Company shall be entitled
to the release and discharge of record of the NVP 1953 Mortgage, it shall take
all necessary action to obtain and effect the release and discharge of the lien
of the NVP 1953 Mortgage upon any of the Mortgaged Property and the discharge
and satisfaction of the NVP 1953 Mortgage.
ARTICLE VIII
------------
POSSESSION, USE AND RELEASE OF MORTGAGED PROPERTY
-------------------------------------------------
SECTION 8.01 Quiet Enjoyment.
Unless one or more Events of Default shall have occurred and
be continuing, the Company shall be permitted to possess, use and enjoy the
Mortgaged Property (except, to the extent not herein otherwise provided, such
cash and securities as are expressly required to be deposited with the Trustee).
SECTION 8.02 Dispositions without Release.
Unless an Event of Default shall have occurred and be
continuing, the Company may at any time and from time to time, without any
release or consent by, or report to, the Trustee:
(a) sell or otherwise dispose of, free from the Lien of this
Indenture, any machinery, equipment, apparatus, towers, transformers, poles,
lines, cables, conduits, ducts, conductors, meters, regulators, holders, tanks,
retorts, purifiers, odorizers, scrubbers, compressors, valves, pumps, mains,
pipes, service pipes, fittings, connections, services, tools, implements, or any
other fixtures or personalty, then subject to the Lien hereof, which shall have
become old, inadequate, obsolete, worn out, unfit, unadapted, unserviceable,
undesirable or unnecessary for use in the operations of the Company upon
replacing the same by, or substituting for the same, similar or analogous
property, or other property performing a similar or analogous function or
otherwise obviating the need therefor, having a Fair Value to the Company at
least equal to that of the property sold or otherwise disposed of and subject to
the Lien hereof, subject to no Liens prior hereto except Permitted Liens and any
other Liens to which the property sold or otherwise disposed of was subject;
58
(b) cancel or make changes or alterations in or substitutions
for any and all easements, servitudes, rights-of-way and similar rights and/or
interests; and
(c) grant, free from the Lien of this Indenture, easements,
ground leases or rights-of-way in, upon, over and/or across the property or
rights-of-way of the Company for the purpose of roads, pipe lines, transmission
lines, distribution lines, communication lines, railways, removal of coal or
other minerals or timber, and other like purposes, or for the joint or common
use of real property, rights-of-way, facilities and/or equipment; provided,
however, that such grant shall not materially impair the use of the property or
rights-of-way for the purposes for which such property or rights-of-way are held
by the Company.
SECTION 8.03 Release of Funded Property.
Unless an Event of Default shall have occurred and be
continuing, the Company may obtain the release of any part of the Mortgaged
Property, or any interest therein, which constitutes Funded Property, and the
Trustee shall release all its right, title and interest in and to the same from
the Lien hereof, upon receipt by the Trustee of:
(a) a Company Order requesting the release of such property
and transmitting therewith a form of instrument to effect such release;
(b) an Officer's Certificate stating that, to the knowledge of
the signer, no Event of Default has occurred and is continuing;
(c) an Expert's Certificate made and dated not more than
ninety (90) days prior to the date of such Company Order:
(i) describing the property to be released;
(ii) stating the Fair Value, in the judgment of the
signers, of the property to be released;
(iii) stating the Cost of the property to be released
(or, if the Fair Value to the Company of such property at the time the
same became Funded Property was certified to be an amount less than the
Cost thereof, then such Fair Value, as so certified, in lieu of Cost);
and
(iv) stating that, in the judgment of the signers, such
release will not impair the security under this Indenture in
contravention of the provisions hereof;
(d) an amount in cash to be held by the Trustee as part of the
Mortgaged Property, equal to the amount, if any, by which seventy percentum
(70%) of the amount referred to in clause (c)(iii) above exceeds the aggregate
of the following items:
(i) an amount equal to seventy percentum (70%) of the
aggregate principal amount of any obligations secured by Purchase Money
Lien delivered to the Trustee, to be held as part of the Mortgaged
Property, subject to the limitations hereafter in this Section set
forth;
59
(ii) an amount equal to seventy percentum (70%) of the Cost
or Fair Value to the Company (whichever is less), after making any
deductions and any additions pursuant to Section 1.03, of any Property
Additions not constituting Funded Property described in an Expert's
Certificate, dated not more than ninety (90) days prior to the date of
the Company Order requesting such release and complying with clause
(ii) and, to the extent applicable, clause (iii) in Section 4.02(b),
delivered to the Trustee; provided, however, that the deductions and
additions contemplated by Section 1.03 shall not be required to be made
if such Property Additions were acquired, made or constructed on or
after the ninetieth (90th) day preceding the date of such Company
Order;
(iii) the aggregate principal amount of Securities to the
authentication and delivery of which the Company shall be entitled
under the provisions of Section 4.03, by virtue of compliance with all
applicable provisions of Section 4.03 (except as hereinafter in this
Section otherwise provided); provided, however, that such release shall
operate as a waiver by the Company of the right to the authentication
and delivery of such Securities and, to such extent, no such Securities
may thereafter be authenticated and delivered hereunder; and any
Securities which were the basis of such right to the authentication and
delivery of Securities so waived shall be deemed to have been made the
basis of such release of property;
(iv) any amount in cash and/or an amount equal to seventy
percentum (70%) of the aggregate principal amount of any obligations
secured by Purchase Money Lien that, in either case, is evidenced to
the Trustee by a certificate of the trustee or other holder of a Lien
prior to the Lien of this Indenture to have been received by such
trustee or other holder in accordance with the provisions of such Lien
in consideration for the release of such property or any part thereof
from such Lien, all subject to the limitations hereafter in this
Section set forth;
(v) the aggregate principal amount of any Outstanding
Securities delivered to the Trustee; and
(vi) any taxes and expenses incidental to any sale,
exchange, dedication or other disposition of the property to be
released;
(e) if the release is on the basis of Property Additions or on
the basis of the right to the authentication and delivery of Securities under
Section 4.03, all documents contemplated below in this Section; and
(f) if the release is on the basis of the delivery to the Trustee
or to the trustee or other holder of a prior Lien of obligations secured by
Purchase Money Lien, all documents contemplated below in this Section, to the
extent required.
If and to the extent that the release of property is, in whole
or in part, based upon Property Additions (as permitted under the provisions of
clause (d)(ii) in the first paragraph of this Section), the Company shall,
subject to the provisions of said clause (d)(ii) and except as hereafter in this
paragraph provided, comply with all applicable provisions of this Indenture as
if such Property Additions were to be made the basis of the authentication and
delivery of
60
Securities equal in principal amount to seventy percentum (70%) of the Cost (or,
as to property of which the Fair Value to the Company at the time the same
became Funded Property was certified to be an amount less than the Cost thereof,
such Fair Value, as so certified, in lieu of Cost) of that portion of the
property to be released which is to be released on the basis of such Property
Additions, as shown by the Expert's Certificate required by clause (c) in the
first paragraph of this Section; provided, however, that the Cost of any
Property Additions received or to be received by the Company in whole or in part
as consideration in exchange for the property to be released shall for all
purposes of this Indenture be deemed to be the amount stated in the Expert's
Certificate provided for in clause (c) in the first paragraph of this Section to
be the Fair Value of the property to be released (x) plus the amount of any cash
and the fair market value of any other consideration, further to be stated in
such Expert's Certificate, paid and/or delivered or to be paid and/or delivered
by, and the amount of any obligations assumed or to be assumed by, the Company
in connection with such exchange as additional consideration for such Property
Additions and/or (y) less the amount of any cash and the fair market value of
any other consideration, which shall also be stated in such Expert's
Certificate, received or to be received by the Company in connection with such
exchange in addition to such Property Additions. If and to the extent that the
release of property is in whole or in part based upon the right to the
authentication and delivery of Securities under Section 4.03 (as permitted under
the provisions of clause (d)(iii) in the first paragraph of this Section), the
Company shall, except as hereafter in this paragraph provided, comply with all
applicable provisions of Section 4.03 relating to such authentication and
delivery. Notwithstanding the foregoing provisions of this paragraph, in no
event shall the Company be required to deliver the documents specified in
Section 4.01.
If the release of property is, in whole or in part, based upon
the delivery to the Trustee or the trustee or other holder of a Lien prior to
the Lien of this Indenture of obligations secured by Purchase Money Lien, the
Company shall deliver to the Trustee:
(a) an Officer's Certificate (i) stating that no event has
occurred and is continuing which entitles the holder of such Purchase
Money Lien to accelerate the maturity of the obligations, if any,
outstanding thereunder and (ii) reciting the aggregate principal amount
of obligations, if any, then outstanding thereunder in addition to the
obligations then being delivered in connection with the release of such
property and the terms and conditions, if any, on which additional
obligations secured by such Purchase Money Lien are permitted to be
issued; and
(b) an Opinion of Counsel stating that, in the opinion of the
signer, (i) such obligations are valid obligations, entitled to the
benefit of such Purchase Money Lien equally and ratably with all other
obligations, if any, then outstanding thereunder, (ii) that such
Purchase Money Lien constitutes, or, upon the delivery of, and/or the
filing and/or recording in the proper places and manner of, the
instruments of conveyance, assignment or transfer, if any, specified in
such opinion, will constitute, a Lien upon the property to be released,
subject to no Lien prior thereto except Liens generally of the
character of Permitted Liens and such Liens, if any, as shall have
existed thereon immediately prior to such release as Liens prior to the
Lien of this Indenture, (iii) if any obligations in addition to the
obligations being delivered in connection with such release of property
are then outstanding, or are permitted to be issued, under such
Purchase Money Lien, (A) that such Purchase Money Lien constitutes, or,
upon the delivery of,
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and/or the filing and/or recording in the proper places and manner of,
the instruments of conveyance, assignment or transfer, if any,
specified in such opinion, will constitute, a Lien upon all other
property, if any, purporting to be subject thereto, subject to no Lien
prior thereto except Liens generally of the character of Permitted
Liens and Liens permitted to exist or to be hereafter created under
Section 6.06 and (B) that the terms of such Purchase Money Lien, as
then in effect, do not permit the issuance of obligations thereunder
except on the basis of property generally of the character of Property
Additions, the retirement or deposit of outstanding obligations, the
deposit of prior Lien obligations or the deposit of cash.
Anything herein to the contrary notwithstanding (a) the
aggregate principal amount of obligations secured by Purchase Money Lien which
may be used pursuant to subclause (i) and/or subclause (iv) of clause (d) in the
first paragraph of this Section as the basis for the release of property from
the Lien of this Indenture shall not exceed seventy-five percentum (75%) of the
Fair Value of the property to be released, as certified pursuant to clause
(c)(ii) in the first paragraph of this Section, and (b) no obligations secured
by Purchase Money Lien shall be used as the basis for the release of property
hereunder, if the aggregate principal amount of such obligations to be used by
the Company pursuant to subclause (i) and/or subclause (iv) of such clause (d)
plus the aggregate principal amount used by the Company pursuant to said
subclause (i) and subclause (iv) in connection with all previous releases of
property from the Lien hereof on the basis of obligations secured by Purchase
Money Lien theretofore delivered to and then held by the Trustee or the trustee
or other holder of a Lien prior to the Lien of this Indenture shall, immediately
after the release then being applied for, exceed forty percentum (40%) of the
sum of (1) the aggregate principal amount of Securities then Outstanding and (2)
the aggregate principal amount of First Mortgage Bonds then Outstanding;
provided, however, that the limitation set forth in clause (a) above shall not
be applicable if no additional obligations are then outstanding, or are
permitted to be issued, under the Purchase Money Lien securing such obligations;
and provided, further, that there shall not be taken into account for purposes
of the calculation contemplated in clause (b) above any obligations secured by
Purchase Money Lien with respect to which there shall have been delivered to the
Trustee:
(x) an Officer's Certificate (i) if any obligations shall then
be outstanding under such Purchase Money Lien and/or additional
obligations are permitted to be issued thereunder, either (A) stating
that the terms of such Purchase Money Lien, as then in effect, do not
permit the issuance of obligations thereunder on the basis of property
additions in a principal amount exceeding seventy percentum (70%) of
the balance of the cost or fair value of such property additions to the
issuer thereof (whichever shall be less) after making deductions and
additions similar to those provided for in Section 1.03, or (B) in the
event that the statements contained in clause (A) above cannot be made,
stating that such issuer has irrevocably waived its right to the
authentication and delivery of obligations under such Purchase Money
Lien (1) on any basis, in a principal amount equal to the excess of (I)
the aggregate principal amount of obligations, if any, then outstanding
under such Purchase Money Lien which were issued on the basis of
property additions or on the basis of the retirement of obligations
which were issued (whether directly or indirectly when considered in
light of the successive issuance and retirement of obligations) on the
basis of property additions over (II) an amount equal to seventy
percentum (70%) of the aggregate Dollar amount of property
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additions certified as the basis for the issuance of such obligations
then outstanding and (2) on the basis of property additions, in a
principal amount exceeding seventy percentum (70%) of the balance of
the cost or fair value thereof to such issuer (whichever shall be less)
after making deductions and additions similar to those provided for in
Section 1.03 and (ii) stating either (A) that the obligations secured
by such Purchase Money Lien delivered to the Trustee or to the trustee
or other holder of a Lien prior to the Lien of this Indenture as the
basis for such release of property contain a provision for mandatory
redemption upon the acceleration of the maturity of all Outstanding
Securities following an Event of Default (whether or not such
redemption may be rescinded upon the rescission of such acceleration)
or (B) that so long as such obligations are held by the Trustee or the
trustee or other holder of such a prior Lien, an Event of Default under
this Indenture constitutes a matured event of default under such
Purchase Money Lien (provided, however, that the waiver or cure of such
Event of Default hereunder and the rescission and annulment of the
consequences thereof may constitute a cure of the corresponding event
of default under such Purchase Money Lien and a rescission and
annulment of the consequences thereof); and
(y) an Opinion or Opinions of Counsel to the effect that (i)
if any obligations shall then be outstanding under such Purchase Money
Lien and/or additional obligations are permitted to be issued
thereunder, to the effect either (A) that the terms of such Purchase
Money Lien, as then in effect, do not permit the issuance of
obligations thereunder upon the basis of property additions in a
principal amount exceeding seventy percentum (70%) of the balance of
the cost or the fair value thereof to the issuer of such obligations
(whichever shall be less) after making deductions and additions similar
to those provided for in Section 1.03, or, if such is not the case, (B)
that the waivers contemplated by clause (x)(i)(B) above have been duly
made and (ii) to the effect either (A) that the obligations secured by
such Purchase Money Lien delivered to the Trustee or to the trustee or
other holder of a Lien prior to the Lien of this Indenture as the basis
for such release of property contain a provision for mandatory
redemption upon an acceleration) of the maturity of all Outstanding
Securities following an Event of Default (whether or not such
redemption may be rescinded upon the rescission of such acceleration)
or (B) that, so long as such obligations are held by the Trustee or the
trustee or other holder of such a prior Lien, an Event of Default under
this Indenture constitutes a matured event of default under such
Purchase Money Lien (provided, however, that the waiver or cure of such
Event of Default hereunder and the rescission and annulment of the
consequences thereof may constitute a cure of the corresponding event
of default under such Purchase Money Lien and a rescission and
annulment of the consequences thereof).
If (a) any property to be released from the Lien of this
Indenture under any provision of this Article (other than Section 8.07) is
subject to a Lien prior to the Lien hereof and is to be sold, exchanged,
dedicated or otherwise disposed of subject to such prior Lien and (b) after such
release, such prior Lien will not be a Lien on any property subject to the Lien
hereof, then the Fair Value of such property to be released shall be deemed, for
all purposes of this Indenture, to be the value thereof unencumbered by such
prior Lien less the principal amount of the indebtedness secured by such prior
Lien.
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Any Outstanding Securities delivered to the Trustee pursuant
to clause (d) in the first paragraph of this Section shall forthwith be canceled
by the Trustee. Any cash and/or obligations so deposited with the Trustee, and
the proceeds of any such obligations, shall be held as part of the Mortgaged
Property and shall be withdrawn, released, used or applied in the manner, to the
extent and for the purposes, and subject to the conditions, provided in Section
8.06.
Anything in this Indenture to the contrary notwithstanding, if
property to be released constitutes Funded Property in part only, the Company
shall obtain the release of the part of such property which constitutes Funded
Property under this Section 8.03 and obtain the release of the part of such
property which does not constitute Funded Property under Section 8.04. In such
event, (a) the application of Property Additions in the release under this
Section 8.03 as contemplated in clause (d)(ii) in the first paragraph thereof
shall be taken into account in clause (v) or clause (vi), whichever may be
applicable, of the Expert's Certificate described in clause (c) in Section 8.04
and (b) the Trustee shall, at the election of the Company, execute and deliver a
separate instrument of release with respect to the property released under each
of such Sections or a consolidated instrument of release with respect to the
property released under both of such Sections considered as a whole.
SECTION 8.04 Release of Property Not Constituting Funded Property.
Unless an Event of Default shall have occurred and be
continuing, the Company may obtain the release of any part of the Mortgaged
Property, or any interest therein, which does not constitute Funded Property,
and the Trustee shall release all its right, title and interest in and to the
same from the Lien hereof, upon receipt by the Trustee of:
(a) a Company Order requesting the release of such property
and transmitting therewith a form of instrument to effect such release;
(b) an Officer's Certificate stating that, to the knowledge of
the signer, no Event of Default has occurred and is continuing;
(c) an Expert's Certificate, made and dated not more than
ninety (90) days prior to the date of such Company Order:
(i) describing the property to be released;
(ii) stating the Fair Value, in the judgment of the
signers, of the property to be released;
(iii) stating the Cost of the property to be released;
(iv) stating that the property to be released does not
constitute Funded Property;
(v) if true, stating either (A) that the aggregate
amount of the Cost or Fair Value to the Company (whichever is less) of
all Property Additions which do not constitute Funded Property
(excluding the property to be released), after making
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deductions therefrom and additions thereto of the character
contemplated by Section 1.03, is not less than zero (0) or (B) that the
Cost or Fair Value (whichever is less) of the property to be released
does not exceed the aggregate Cost or Fair Value to the Company
(whichever is less) of Property Additions acquired, made or constructed
on or after the ninetieth (90th) day prior to the date of the Company
Order requesting such release;
(vi) if neither of the statements contemplated in subclause
(v) above can be made, stating the amount by which zero (0) exceeds the
amount referred to in subclause (v)(A) above (showing in reasonable
detail the calculation thereof); and
(vii) stating that, in the judgment of the signers, such
release will not impair the security under this Indenture in
contravention of the provisions hereof; and
(d) if the Expert's Certificate required by clause (c) above
contains neither of the statements contemplated in clause (c)(v) above, an
amount in cash, to be held by the Trustee as part of the Mortgaged Property,
equal to the amount, if any, by which seventy percentum (70%) of the lower of
(i) the Cost or Fair Value (whichever shall be less) of the property to be
released and (ii) the amount shown in clause (c)(vi) above exceeds the aggregate
of items of the character described in subclauses (iii) and (v) of clause (d) in
the first paragraph of Section 8.03 then to be used as a credit under this
Section 8.04 (subject, however, to the same limitations and conditions with
respect to such items as are set forth in Section 8.03).
Anything herein to the contrary notwithstanding, if any part
of the Mortgaged Property is to be released prior to the delivery of the Initial
Expert's Certificate pursuant to Section 4.02(b)(ii), the Company shall deliver
to the Trustee an Initial Expert's Certificate complying with the provisions of
Section 4.02(b)(ii), except that there shall be stated in clause (M) the sum of
(x) the aggregate principal amount of Securities then Outstanding and (y) the
aggregate principal amount of First Mortgage Bonds then Outstanding. Such
Initial Expert's Certificate shall be accompanied by the documents specified in
clauses (iii), (iv) and (v) of Section 4.02(b). Thereupon, the part of the
Mortgaged Property to be released shall be released pursuant to Section 8.03, to
the extent the same shall constitute Funded Property, and/or pursuant to Section
8.04, to the extent the same shall not constitute Funded Property.
SECTION 8.05 Release of Minor Properties.
Notwithstanding the provisions of Sections 8.03 and 8.04,
unless an Event of Default shall have occurred and be continuing, the Company
may obtain the release from the Lien hereof of any part of the Mortgaged
Property, or any interest therein, and the Trustee shall whenever from time to
time requested by the Company in a Company Order transmitting therewith a form
of instrument to effect such release, and without requiring compliance with any
of the provisions of Section 8.03 or 8.04, release from the Lien hereof all the
right, title and interest of the Trustee in and to the same provided that the
aggregate Fair Value of the property to be so released on any date in a given
calendar year, together with all other property released pursuant to this
Section 8.05 in such calendar year, shall not exceed the greater of (a) Ten
Million Dollars ($10,000,000) and (b) three percentum (3%) of the sum of (i) the
aggregate principal amount of Securities then Outstanding and (ii) the aggregate
principal amount of First Mortgage Bonds then Outstanding. Prior to the granting
of any such release, there shall be
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delivered to the Trustee (x) an Officer's Certificate stating that, to the
knowledge of the signer, no Event of Default has occurred and is continuing and
(y) an Expert's Certificate stating, in the judgment of the signers, the Fair
Value of the property to be released, the aggregate Fair Value of all other
property theretofore released pursuant to this Section in such calendar year
and, as to Funded Property, the Cost thereof (or, if the Fair Value to the
Company of such property at the time the same became Funded Property was
certified to be an amount less than the Cost thereof, then such Fair Value, as
so certified, in lieu of Cost), and that, in the judgment of the signers, the
release thereof will not impair the security under this Indenture in
contravention of the provisions hereof. On or before December 31st of each
calendar year, the Company shall deposit with the Trustee an amount in cash
equal to seventy percentum (70%) of the aggregate Cost of the properties
constituting Funded Property so released during such year (or, if the Fair Value
to the Company of any particular property at the time the same became Funded
Property was certified to be an amount less than the Cost thereof, then such
Fair Value, as so certified, in lieu of Cost); provided, however, that no such
deposit shall be required to be made hereunder to the extent that cash or other
consideration shall, as indicated in an Officer's Certificate delivered to the
Trustee, have been deposited with the trustee or other holder of the NVP 1953
Mortgage or other Lien prior to the Lien of this Indenture in accordance with
the provisions thereof; and provided, further, that the amount of cash so
required to be deposited may be reduced, at the election of the Company, by the
items specified in clause (d) in the first paragraph of Section 8.03, subject to
all of the limitations and conditions specified in such Section, to the same
extent as if such property were being released pursuant to Section 8.03. Any
cash deposited with the Trustee under this Section may thereafter be withdrawn,
used or applied in the manner, to the extent and for the purposes, and subject
to the conditions, provided in Section 8.06.
SECTION 8.06 Withdrawal or Other Application of Funded Cash; Purchase Money
Obligations.
Subject to the provisions of Section 4.04 and except as
hereafter in this Section provided, unless an Event of Default shall have
occurred and be continuing, any Funded Cash held by the Trustee, and any other
cash which is required to be withdrawn, used or applied as provided in this
Section,
(a) may be withdrawn from time to time by the Company to the
extent of an amount equal to seventy percentum (70%) of the Cost or the Fair
Value to the Company (whichever is less) of Property Additions not constituting
Funded Property, after making any deductions and additions pursuant to Section
1.03, described in an Expert's Certificate, dated not more than ninety (90) days
prior to the date of the Company Order requesting such withdrawal and complying
with clause (ii) and, to the extent applicable, clause (iii) in Section 4.02(b),
delivered to the Trustee; provided, however, that the deductions and additions
contemplated by Section 1.03 shall not be required to be made if such Property
Additions were acquired, made or constructed on or after the ninetieth (90th)
day preceding the date of such Company Order;
(b) may be withdrawn from time to time by the Company in an
amount equal to the aggregate principal amount of Securities to the
authentication and delivery of which the Company shall be entitled under the
provisions of Section 4.03 hereof, by virtue of compliance with all applicable
provisions of Section 4.03 (except as hereinafter in this Section otherwise
provided); provided, however, that such withdrawal of cash shall operate as a
waiver by the
66
Company of the right to the authentication and delivery of such Securities and,
to such extent, no such Securities may thereafter be authenticated and delivered
hereunder; and any such Securities which were the basis of such right to the
authentication and delivery of Securities so waived shall be deemed to have been
made the basis of such withdrawal of cash;
(c) may be withdrawn from time to time by the Company in an
amount equal to the aggregate principal amount of any Outstanding Securities
delivered to the Trustee;
(d) may, upon the request of the Company, be used by the
Trustee for the purchase of Securities in the manner, at the time or times, in
the amount or amounts, at the price or prices and otherwise as directed or
approved by the Company, all subject to the limitations hereafter in this
Section set forth; or
(e) may, upon the request of the Company, be applied by the
Trustee to the payment (or provision therefor pursuant to Article IX) at Stated
Maturity of any Securities or to the redemption (or similar provision therefor)
of any Securities which are, by their terms, redeemable, in each case of such
series as may be designated by the Company, any such redemption to be in the
manner and as provided in Article V, all subject to the limitations hereafter in
this Section set forth.
Such moneys shall, from time to time, be paid or used or
applied by the Trustee, as aforesaid, upon the request of the Company in a
Company Order, and upon receipt by the Trustee of an Officer's Certificate
stating that, to the knowledge of the signer, no Event of Default has occurred
and is continuing. If and to the extent that the withdrawal of cash is based
upon Property Additions (as permitted under the provisions of clause (a) above),
the Company shall, subject to the provisions of said clause (a) and except as
hereafter in this paragraph provided, comply with all applicable provisions of
this Indenture as if such Property Additions were made the basis for the
authentication and delivery of Securities equal in principal amount to the cash
so to be withdrawn. If and to the extent that the withdrawal of cash is based
upon the right to the authentication and delivery of Securities (as permitted
under the provisions of clause (b) above), the Company shall, except as
hereafter in this paragraph provided, comply with all applicable provisions of
Section 4.03 relating to such authentication and delivery. Notwithstanding the
foregoing provisions of this paragraph, in no event shall the Company be
required to deliver the documents specified in Section 4.01.
Notwithstanding the generality of clauses (d) and (e) above,
no cash to be applied pursuant to such clauses shall be applied to the payment
of an amount in excess of the principal amount of any Securities to be
purchased, paid or redeemed except to the extent that the aggregate principal
amount of all Securities theretofore, and of all Securities then to be,
purchased, paid or redeemed pursuant to such clauses is not less than the
aggregate cost for principal of, premium, if any, and accrued interest, if any,
on and brokerage commissions, if any, with respect to, such Securities.
Any Outstanding Securities delivered to the Trustee pursuant
to clause (c) in the first paragraph of this Section shall forthwith be canceled
by the Trustee.
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Any obligations secured by Purchase Money Lien delivered to
the Trustee in consideration of the release of property from the Lien of this
Indenture, together with any evidence of such Purchase Money Lien held by the
Trustee, shall be released from the Lien of this Indenture and delivered to or
upon the order of the Company upon payment by the Company to the Trustee of an
amount in cash equal to the aggregate principal amount of such obligations less
the aggregate amount theretofore paid to the Trustee (by the Company, the
obligor or otherwise) in respect of the principal of such obligations.
The principal of and interest on any such obligations secured
by Purchase Money Lien held by the Trustee shall be held by the Trustee as and
when the same are received by the Trustee. The interest received by the Trustee
on any such obligations shall be deemed not to constitute Funded Cash and shall
be remitted to the Company; provided, however, that if an Event of Default shall
have occurred and be continuing, such proceeds shall be held as part of the
Mortgaged Property until such Event of Default shall have been cured or waived.
The Trustee shall have and may exercise all the rights and
powers of any owner of such obligations and of all substitutions therefor and,
without limiting the generality of the foregoing, may collect and receive all
insurance moneys payable to it under any of the provisions thereof and apply the
same in accordance with the provisions thereof, may consent to extensions
thereof at a higher or lower rate of interest, may join in any plan or plans of
voluntary or involuntary reorganization or readjustment or rearrangement and may
accept and hold hereunder new obligations, stocks or other securities issued in
exchange therefor under any such plan. Any discretionary action which the
Trustee may be entitled to take in connection with any such obligations or
substitutions therefor shall be taken, so long as no Event of Default shall have
occurred and be continuing, in accordance with a Company Order, and, during the
continuance of an Event of Default, in its own discretion.
Anything herein to the contrary notwithstanding, the Company
may irrevocably waive all right to the withdrawal pursuant to this Section of,
and any other rights with respect to, any obligations secured by Purchase Money
Lien held by the Trustee, and the proceeds of any such obligations, by delivery
to the Trustee of a Company Order:
(a) specifying such obligations and stating that the Company
thereby waives all rights to the withdrawal thereof and of the proceeds
thereof pursuant to this Section, and any other rights with respect
thereto; and
(b) directing that the principal of such obligations be
applied as provided in clause (e) in the first paragraph of this
Section, specifying the Securities to be paid or redeemed or for the
payment or redemption of which payment is to be made.
Following any such waiver, the interest on any such obligations shall be applied
to the payment of interest, if any, on the Securities to be paid or redeemed or
for the payment or redemption of which provision is to be made, as specified in
the aforesaid Company Order, as and when such interest shall become due from
time to time, and any excess funds remaining from time to time after such
application shall be applied to the payment of interest on any other Securities
as and when the same shall become due. Pending any such application, the
interest on such obligations shall be invested in Investment Securities. The
principal of any such obligations shall be applied
68
solely to the payment of principal of the Securities to be paid or redeemed or
for the payment or redemption of which provision is to be made, as specified in
the aforesaid Company Order. Pending such application, the principal of such
obligations shall be invested in Eligible Obligations. The obligation of the
Company to pay the principal of such Securities when the same shall become due
at maturity, shall be offset and reduced by the amount of the proceeds of such
obligations then held, and to be applied, by the Trustee in accordance with this
paragraph.
SECTION 8.07 Release of Property Taken by Eminent Domain, etc.
Should any of the Mortgaged Property, or any interest therein,
be taken by exercise of the power of eminent domain or be sold to an entity
possessing the power of eminent domain under a threat to exercise the same, and
should the Company elect not to obtain the release of such property pursuant to
other provisions of this Article, the Trustee shall, upon request of the Company
evidenced by a Company Order transmitting therewith a form of instrument to
effect such release, release from the Lien hereof all its right, title and
interest in and to the property so taken or sold (or with respect to an interest
in property, subordinate the Lien hereof to such interest), upon receiving (a)
an Opinion of Counsel to the effect that such property has been taken by
exercise of the power of eminent domain or has been sold to an entity possessing
the power of eminent domain under threat of an exercise of such power, (b) an
Officer's Certificate stating the amount of net proceeds received or to be
received for such property so taken or sold, and the amount so stated shall be
deemed to be the Fair Value of such property for the purpose of any notice to
the Holders of Securities, (c) if any portion of such property constitutes
Funded Property, an Expert's Certificate stating the Cost thereof (or, if the
Fair Value to the Company of such portion of such property at the time the same
became Funded Property was certified to be an amount less than the Cost thereof,
then such Fair Value, as so certified, in lieu of Cost) and (d) if any portion
of such property constitutes Funded Property, a deposit by the Company of an
amount in cash equal to seventy percentum (70%) of the Cost or Fair Value stated
in the Expert's Certificate delivered pursuant to clause (c) above; provided,
however, that the amount required to be so deposited shall not exceed the
portion of the net proceeds received or to be received for such property so
taken or sold which is allocable on a pro-rata or other reasonable basis to the
portion of such property constituting Funded Property; and provided, further,
that no such deposit shall be required to be made hereunder if the proceeds of
such taking or sale shall, as indicated in an Officer's Certificate delivered to
the Trustee, have been deposited with the trustee or other holder of the NVP
1953 Mortgage or other Lien prior to the Lien of this Indenture. Any cash
deposited with the Trustee under this Section may thereafter be withdrawn, used
or applied in the manner, to the extent and for the purposes, and subject to the
conditions, provided in Section 8.06.
SECTION 8.08 Disclaimer or Quitclaim.
In case the Company has sold, exchanged, dedicated or
otherwise disposed of, or has agreed or intends to sell, exchange, dedicate or
otherwise dispose of, or a Governmental Authority has ordered the Company to
divest itself of, any Excepted Property or any other property not subject to the
Lien hereof, or the Company desires to disclaim or quitclaim title to property
to which the Company does not purport to have title, the Trustee shall, from
time to time, disclaim or quitclaim such property upon receipt by the Trustee of
the following:
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(a) a Company Order requesting such disclaimer or quitclaim
and transmitting therewith a form of instrument to effect such disclaimer or
quitclaim;
(b) an Officer's Certificate describing the property to be
disclaimed or quitclaimed; and
(c) an Opinion of Counsel stating the signer's opinion that
such property is not subject to the Lien hereof or required to be subject
thereto by any of the provisions hereof.
SECTION 8.09 Miscellaneous.
(a) The Expert's Certificate as to the Fair Value of property
to be released from the Lien of this Indenture in accordance with any provision
of this Article, and as to the nonimpairment, by reason of such release, of the
security under this Indenture in contravention of the provisions hereof, shall
be made by an Independent Expert if the Fair Value of such property and of all
other property released since the commencement of the then current calendar
year, as set forth in the certificates required by this Indenture, is ten
percentum (10%) or more of the aggregate principal amount of the Securities at
the time Outstanding; but such Expert's Certificate shall not be required to be
made by an Independent Expert in the case of any release of property if the Fair
Value thereof, as set forth in the certificates required by this Indenture, is
less than Twenty-five Thousand Dollars ($25,000) or less than one percentum (1%)
of the aggregate principal amount of the Securities at the time Outstanding. To
the extent that the Fair Value of any property to be released from the Lien of
this Indenture shall be stated in an Independent Expert's Certificate, such Fair
Value shall not be required to be stated in any other Expert's Certificate
delivered in connection with such release.
(b) No release of property from the Lien of this Indenture
effected in accordance with the provisions, and in compliance with the
conditions, set forth in this Article and in Sections 1.04 and 1.05 shall be
deemed to impair the security of this Indenture in contravention of any
provision hereof.
(c) If the Mortgaged Property shall be in the possession of a
receiver or trustee, lawfully appointed, the powers hereinbefore conferred upon
the Company with respect to the release of any part of the Mortgaged Property or
any interest therein or the withdrawal of cash may be exercised, with the
approval of the Trustee, by such receiver or trustee, notwithstanding that an
Event of Default may have occurred and be continuing, and any request,
certificate, appointment or approval made or signed by such receiver or trustee
for such purposes shall be as effective as if made by the Company or any of its
officers or appointees in the manner herein provided; and if the Trustee shall
be in possession of the Mortgaged Property under any provision of this
Indenture, then such powers may be exercised by the Trustee in its discretion
notwithstanding that an Event of Default may have occurred and be continuing.
(d) If the Company shall retain any interest in any property
released from the Lien of this Indenture as provided in Section 8.03, 8.04 or
8.05, this Indenture shall not become or be, or be required to become or be, a
Lien upon such property or such interest therein or any improvements, extensions
or additions to such property or renewals, replacements or substitutions of or
for such property or any part or parts thereof unless the Company shall
70
execute and deliver to the Trustee an indenture supplemental hereto, in
recordable form, containing a grant, conveyance, transfer and mortgage thereof.
As used in this subsection, the terms "improvements", "extensions" and
"additions" shall be limited as set forth in Section 13.01.
(e) Notwithstanding the occurrence and continuance of an Event
of Default, the Trustee, in its discretion, may release from the Lien hereof any
part of the Mortgaged Property or permit the withdrawal of cash, upon compliance
with the other conditions specified in this Article in respect thereof.
(f) No purchaser or grantee of property purporting to have
been released hereunder shall be bound to ascertain the authority of the Trustee
to execute the release, or to inquire as to any facts required by the provisions
hereof for the exercise of such authority; nor shall any purchaser or grantee of
any property or rights permitted by this Article to be sold, granted, exchanged,
dedicated or otherwise disposed of, be under obligation to ascertain or inquire
into the authority of the Company to make any such sale, grant, exchange,
dedication or other disposition.
ARTICLE IX
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SATISFACTION AND DISCHARGE
--------------------------
SECTION 9.01 Satisfaction and Discharge of Securities.
Any Security or Securities, or any portion of the principal
amount thereof, shall be deemed to have been paid for all purposes of this
Indenture, and the entire indebtedness of the Company in respect thereof shall
be satisfied and discharged, if there shall have been irrevocably deposited with
the Trustee or any Paying Agent (other than the Company), in trust:
(a) money (including Funded Cash not otherwise applied
pursuant to Section 8.06) in an amount which shall be sufficient, or
(b) in the case of a deposit made prior to the Maturity of
such Securities or portions thereof, Eligible Obligations, which shall not
contain provisions permitting the redemption or other prepayment thereof at the
option of the issuer thereof, the principal of and the interest on which when
due, without any regard to reinvestment thereof, will provide moneys which,
together with the money, if any, deposited with or held by the Trustee or such
Paying Agent, shall be sufficient, or
(c) a combination of (a) or (b) which shall be sufficient,
to pay when due the principal of and premium, if any, and interest, if any, due
and to become due on such Securities or portions thereof; provided, however,
that in the case of the provision for payment or redemption of less than all the
Securities of any series or Tranche, such Securities or portions thereof shall
have been selected by the Security Registrar 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
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notice, under arrangements satisfactory to the Trustee; and provided, further,
that the Company shall have delivered to the Trustee and such Paying Agent:
(x) if such deposit shall have been made prior to the Maturity
of such Securities, a Company Order stating that the money and Eligible
Obligations deposited in accordance with this Section shall be held in
trust, as provided in Section 9.03;
(y) if Eligible Obligations shall have been deposited, an
Opinion of Counsel to the effect that such obligations constitute
Eligible Obligations and do not contain provisions permitting the
redemption or other prepayment thereof at the option of the issuer
thereof, and an opinion of an Independent public Accountant of
nationally recognized standing, selected by the Company, to the effect
that the other requirements set forth in clause (b) above have been
satisfied; and
(z) if such deposit shall have been made prior to the Maturity
of such Securities, an Officer's Certificate stating the Company's
intention that, upon delivery of such Officer's Certificate, its
indebtedness in respect of such Securities or portions thereof will
have been satisfied and discharged as contemplated in this Section.
Upon the deposit of money or Eligible Obligations, or both, in
accordance with this Section, together with the documents required by clauses
(x), (y) and (z) above, the Trustee shall, upon Company Request, acknowledge in
writing that such Securities or portions thereof are deemed to have been paid
for all purposes of this Indenture and that the entire indebtedness of the
Company in respect thereof has been satisfied and discharged as contemplated in
this Section. In the event that all of the conditions set forth in the preceding
paragraph shall have been satisfied in respect of any Securities or portions
thereof except that, for any reason, the Officer's Certificate specified in
clause (z) (if otherwise required) shall not have been delivered, such
Securities or portions thereof shall nevertheless be deemed to have been paid
for all purposes of this Indenture, and the Holders of such Securities or
portions thereof shall nevertheless be no longer entitled to the benefit of the
Lien of this Indenture or of any of the covenants of the Company under Article
VI (except the covenants contained in Sections 6.02 and 6.03) or any other
covenants made in respect of such Securities or portions thereof as contemplated
by Section 3.01, but the indebtedness of the Company in respect of such
Securities or portions thereof shall not be deemed to have been satisfied and
discharged prior to Maturity for any other purpose; and, upon Company Request,
the Trustee shall acknowledge in writing that such Securities or portions
thereof are deemed to have been paid for all purposes of this Indenture.
If payment at Stated Maturity of less than all of the
Securities of any series, or any Tranche thereof, is to be provided for in the
manner and with the effect provided in this Section, the Security Registrar
shall select such Securities, or portions of principal amount thereof, in the
manner specified by Section 5.03 for selection for redemption of less than all
the Securities of a series or Tranche.
In the event that Securities which shall be deemed to have
been paid for purposes of this Indenture, and, if such is the case, in respect
of which the Company's indebtedness shall have been satisfied and discharged,
all as provided in this Section, do not mature and are not to
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be redeemed within the sixty (60) day period commencing with the date of the
deposit of moneys or Eligible Obligations, as aforesaid, the Company shall, as
promptly as practicable, give a notice, in the same manner as a notice of
redemption with respect to such Securities, to the Holders of such Securities to
the effect that such deposit has been made and the effect thereof.
Notwithstanding that any Securities shall be deemed to have
been paid for purposes of this Indenture, as aforesaid, the obligations of the
Company and the Trustee in respect of such Securities under Sections 3.04, 3.05,
3.06, 5.04, 6.02, 6.03, 11.07 and 11.15 and this Article shall survive.
The Company shall pay, and shall indemnify the Trustee or any
Paying Agent with which Eligible Obligations shall have been deposited as
provided in this Section against, any tax, fee or other charge imposed on or
assessed against such Eligible Obligations or the principal or interest received
in respect of such Eligible Obligations, including, but not limited to, any such
tax payable by any entity deemed, for tax purposes, to have been created as a
result of such deposit.
Anything herein to the contrary notwithstanding, (a) if, at
any time after a Security would be deemed to have been paid for purposes of this
Indenture, and, if such is the case, the Company's indebtedness in respect
thereof would be deemed to have been satisfied and discharged, pursuant to this
Section (without regard to the provisions of this paragraph), the Trustee or any
Paying Agent, as the case may be, 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 Security shall thereupon be
deemed retroactively not to have been paid and any satisfaction and discharge of
the Company's indebtedness in respect thereof shall retroactively be deemed not
to have been effected, and such Security shall be deemed to remain Outstanding
and (b) any satisfaction and discharge of the Company's indebtedness in respect
of any Security shall be subject to the provisions of the last paragraph of
Section 6.03.
SECTION 9.02 Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of
further effect (except as hereinafter expressly provided), and the Trustee, at
the expense of the Company, shall execute such instruments as the Company shall
reasonably request to evidence and acknowledge the satisfaction and discharge of
this Indenture, when:
(a) no Securities remain Outstanding hereunder; and
(b) the Company 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
9.01, any Security, previously deemed to have been paid for purposes of this
Indenture, shall be deemed retroactively not to have been so paid, this
Indenture shall thereupon be deemed retroactively not to have been satisfied and
discharged, as aforesaid, and to remain in full force and effect, and the
Company shall execute and deliver such instruments as the Trustee shall
reasonably request to evidence and acknowledge the same.
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Notwithstanding the satisfaction and discharge of this
Indenture as aforesaid, the obligations of the Company and the Trustee under
Sections 3.04, 3.05, 3.06, 5.04, 6.02, 6.03, 11.07 and 11.15 and this Article
shall survive.
Upon satisfaction and discharge of this Indenture as provided
in this Section, the Trustee shall release, quit claim and otherwise turn over
to the Company the Mortgaged Property (other than money and Eligible Obligations
held by the Trustee pursuant to Section 9.03) and shall execute and deliver to
the Company such deeds and other instruments as, in the judgment of the Company,
shall be necessary, desirable or appropriate to effect or evidence such release
and quitclaim and the satisfaction and discharge of this Indenture.
SECTION 9.03 Application of Trust Money.
Neither the Eligible Obligations nor the money deposited
pursuant to Section 9.01, nor the principal or interest payments on any such
Eligible Obligations, shall be withdrawn or used for any purpose other than, and
shall be held in trust for, the payment of the principal of and premium, if any,
and interest, if any, on the Securities or portions of principal amount thereof
in respect of which such deposit was made, all subject, however, to the
provisions of Section 6.03; provided, however, that any cash received from such
principal or interest payments on such Eligible Obligations, if not then needed
for such purpose, shall, to the extent practicable and upon Company Request and
delivery to the Trustee of the documents referred to in clause (y) in the first
paragraph of Section 9.01, be invested in Eligible Obligations of the type
described in clause (b) in the first paragraph of Section 9.01 maturing at such
times and in such amounts as shall be sufficient, together with any other moneys
and the proceeds of any other Eligible Obligations then held by the Trustee, to
pay when due the principal of and premium, if any, and interest, if any, due and
to become due on such Securities or portions thereof on and prior to the
Maturity thereof, and interest earned from such reinvestment shall be paid over
to the Company as received, free and clear of the Lien of this Indenture, except
the Lien provided by Section 11.07; and provided, further, that any moneys held
in accordance with this Section on the Maturity of all such Securities in excess
of the amount required to pay the principal of and premium, if any, and
interest, if any, then due on such Securities shall be paid over to the Company
free and clear of the Lien of this Indenture, except the Lien provided by
Section 11.07; and provided, further, that if an Event of Default shall have
occurred and be continuing, moneys to be paid over to the Company pursuant to
this Section shall be held as part of the Mortgaged Property until such Event of
Default shall have been waived or cured.
ARTICLE X
---------
EVENTS OF DEFAULT; REMEDIES
---------------------------
SECTION 10.01 Events of Default.
"Event of Default", wherever used herein with respect to the
Securities, means any of the following events which shall have occurred and be
continuing:
(a) failure to pay interest, if any, on any Security within
sixty (60) days after the same becomes due and payable; or
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(b) failure to pay the principal of or premium, if any, on any
Security within three (3) Business Days after its Maturity; 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) for a period of ninety (90) 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 thirty-three percentum (33%)
in principal amount of the Securities then Outstanding, a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder, unless the Trustee, or the
Trustee and the Holders of a principal amount of Securities not less than the
principal amount of Securities the Holders of which gave such notice, as the
case may be, shall agree in writing to an extension of such period prior to its
expiration; provided, however, that the Trustee, or the Trustee and the Holders
of such principal amount of Securities, as the case may be, shall be deemed to
have agreed to an extension of such period if corrective action is initiated by
the Company within such period and is being diligently pursued; or
(d) the entry by a court having jurisdiction in the premises
of (i) 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 (ii) 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 ninety (90)
consecutive days; or
(e) 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 a case or proceeding
under any applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any bankruptcy or insolvency case or
proceeding against 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
(f) the occurrence of a matured event of default under the NVP
1953 Mortgage (other than any such matured event of default which (i) is of
similar kind or character to the Event of Default described in clause (c) above
and (ii) has not resulted in the acceleration of the First Mortgage Bonds
Outstanding under the NVP 1953 Mortgage); provided, however,
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that, anything in this Indenture to the contrary notwithstanding, the waiver or
cure of such event of default under the NVP 1953 Mortgage and the rescission and
annulment of the consequences thereof under the NVP 1953 Mortgage shall
constitute a cure of the corresponding Event of Default hereunder and a
rescission and annulment of the consequences thereof.
SECTION 10.02 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default shall have occurred and be continuing,
then in every such case the Trustee or the Holders of not less than thirty-three
percentum (33%) in principal amount of the Securities then Outstanding may
declare the principal amount (or, if any of the Securities are Discount
Securities, such portion of the principal amount of such Securities as may be
specified in the terms thereof as contemplated by Section 3.01) of all
Securities then Outstanding to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), and upon such
declaration such principal amount (or specified amount), together with premium,
if any, and accrued interest, if any, thereon, shall become immediately due and
payable, all subject, however, in the case of an Event of Default described in
clause (f) of Section 10.01, to the proviso contained in such clause (f).
At any time after such a declaration of acceleration of the
maturity of the Securities then Outstanding shall have been made, but before any
sale of any of the Mortgaged Property has been made and before a judgment or
decree for payment of the money due shall have been obtained by the Trustee as
provided in this Article, the Event or Events of Default giving rise to such
declaration of acceleration shall, without further act, be deemed to have been
cured, 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
(i) all overdue interest, if any, on all Securities then
Outstanding;
(ii) the principal of and premium, if any, on any Securities
then Outstanding which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or rates
prescribed therefor in such Securities; and
(iii) all amounts due to the Trustee under Section 11.07;
and
(b) any other Event or Events of Default, other than the
non-payment of the principal of Securities which shall have become due solely by
such declaration of acceleration, shall have been cured or waived as provided in
Section 10.17.
No such rescission shall affect any subsequent Event of Default or impair any
right consequent thereon.
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SECTION 10.03 Entry upon Mortgaged Property.
If an Event of Default shall have occurred and be continuing,
the Company, upon demand of the Trustee and if and to the extent permitted by
law, shall forthwith surrender to the Trustee the actual possession of, and the
Trustee, by such officers or agents as it may appoint, may enter upon and take
possession of, the Mortgaged Property; and the Trustee may hold, operate and
manage the Mortgaged Property and make all needful repairs and such renewals,
replacements, betterments and improvements as to the Trustee shall seem prudent;
and the Trustee may receive the rents, issues, profits, revenues and other
income of the Mortgaged Property, to the extent, if any, that the same shall not
then constitute Excepted Property; and, after deducting the costs and expenses
of entering, taking possession, holding, operating and managing the Mortgaged
Property, as well as payments for insurance and taxes and other proper charges
upon the Mortgaged Property prior to the Lien of this Indenture and reasonable
compensation to itself, its agents and counsel, the Trustee may apply the same
as provided in Section 10.07. Whenever all that is then due in respect of the
principal of and premium, if any, and interest, if any, on the Securities and
under any of the terms of this Indenture shall have been paid and all defaults
hereunder shall have been cured or shall have been waived as provided in Section
10.17, the Trustee shall surrender possession of the Mortgaged Property to the
Company.
SECTION 10.04 Power of Sale; Suits for Enforcement.
If an Event of Default shall have occurred and be continuing,
the Trustee, by such officers or agents as it shall appoint, with or without
entry, in its discretion may, subject to the provisions of Section 10.16 and if
and to the extent permitted by law:
(a) sell, subject to any mandatory requirements of applicable
law, the Mortgaged Property as an entirety, or in such parcels as the Holders of
a majority in principal amount of the Securities then Outstanding shall in
writing request, or in the absence of such request, as the Trustee may
determine, to the highest bidder at public auction at such place and at such
time (which sale may be adjourned by the Trustee from time to time in its
discretion by announcement at the time and place fixed for such sale, without
further notice) and upon such terms as the Trustee may fix and briefly specify
in a notice of sale to be published once in each week for four successive weeks
prior to such sale in an Authorized Publication in each Place of Payment for the
Securities of each series; or
(b) proceed to protect and enforce its rights and the rights
of the Holders of Securities under this Indenture by sale pursuant to judicial
proceedings or by a suit, action or proceeding in equity or at law or otherwise,
whether for the specific performance of any covenant or agreement contained in
this Indenture or in aid of the execution of any power granted in this Indenture
or for the foreclosure of this Indenture or for the enforcement of any other
legal, equitable or other remedy, as the Trustee, being advised by counsel,
shall deem most effectual to protect and enforce any of the rights of the
Trustee or the Holders of Securities.
SECTION 10.05 Incidents of Sale.
Upon any sale of any of the Mortgaged Property, whether made
under the power of sale hereby given or pursuant to judicial proceedings, to the
extent permitted by law:
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(a) the principal amount (or, if any of the Securities are
Discount Securities, such portion of the principal amount of such Securities as
may be specified in the terms thereof as contemplated by Section 3.01) of all
Outstanding Securities, if not previously due, shall at once become and be
immediately due and payable, together with premium, if any, and accrued
interest, if any, thereon;
(b) any Holder or Holders of Securities or the Trustee may bid
for and purchase the property offered for sale, and upon compliance with the
terms of sale may hold, retain and possess and dispose of such property, without
further accountability, and may, in paying the purchase money therefor, deliver
any Outstanding Securities or claims for interest thereon in lieu of cash to the
amount which shall, upon distribution of the net proceeds of such sale, be
payable thereon, and such Securities, in case the amounts so payable thereon
shall be less than the amount due thereon, shall be returned to the Holders
thereof after being appropriately stamped to show partial payment;
(c) the Trustee may make and deliver to the purchaser or
purchasers a good and sufficient deed, bill of sale and instrument of assignment
and transfer of the property sold;
(d) the Trustee is hereby irrevocably appointed the true and
lawful attorney of the Company, in its name and stead, to make all necessary
deeds, bills of sale and instruments of assignment and transfer of the property
so sold; and for that purpose it may execute all necessary deeds, bills of sale
and instruments of assignment and transfer, and may substitute one or more
persons, firms or corporations with like power, the Company hereby ratifying and
confirming all that its said attorney or such substitute or substitutes shall
lawfully do by virtue hereof; but, if so requested by the Trustee or by any
purchaser, the Company shall ratify and confirm any such sale or transfer by
executing and delivering to the Trustee or to such purchaser or purchasers all
proper deeds, bills of sale, instruments of assignment and transfer and releases
as may be designated in any such request;
(e) all right, title, interest, claim and demand whatsoever,
either at law or in equity or otherwise, of the Company of, in and to the
property so sold shall be divested and such sale shall be a perpetual bar both
at law and in equity against the Company, its successors and assigns, and
against any and all persons claiming or who may claim the property sold or any
part thereof from, through or under the Company; and
(f) the receipt of the Trustee or of the officer making such
sale shall be a sufficient discharge to the purchaser or purchasers at such sale
for his or their purchase money and such purchaser or purchasers and his or
their assigns or personal representatives shall not, after paying such purchase
money and receiving such receipt, be obliged to see to the application of such
purchase money, or be in anywise answerable for any loss, misapplication or
non-application thereof.
SECTION 10.06 Collection of Indebtedness and Suits for Enforcement by Trustee.
If an Event of Default described in clause (a) or (b) of
Section 10.01 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
Securities with respect to which such Event of Default shall have
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occurred, the whole amount then due and payable on such Securities for principal
and premium, if any, and interest, if any, and, in addition thereto, such
further amount as shall be sufficient to cover any amounts due to the Trustee
under Section 11.07.
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 Securities
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
Securities, wherever situated.
The Trustee shall, to the extent permitted by law, be entitled
to sue and recover judgment as aforesaid either before, during or after the
pendency of any proceedings for the enforcement of the Lien of this Indenture,
and in case of a sale of the Mortgaged Property or any part thereof and the
application of the proceeds of sale as aforesaid, the Trustee, in its own name
and as trustee of an express trust, shall be entitled to enforce payment of, and
to receive, all amounts then remaining due and unpaid upon the Securities then
Outstanding for principal, premium, if any, and interest, if any, for the
benefit of the Holders thereof, and shall be entitled to recover judgment for
any portion of the same remaining unpaid, with interest as aforesaid. No
recovery of any such judgment by the Trustee and no levy of any execution upon
any such judgment upon any of the Mortgaged Property or any other property of
the Company shall affect or impair the Lien of this Indenture upon the Mortgaged
Property or any part thereof or any rights, powers or remedies of the Trustee
hereunder, or any rights, powers or remedies of the Holders of the Securities.
SECTION 10.07 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article,
including any rents, issues, profits, revenues and other income collected
pursuant to Section 10.03 (after the deductions therein provided) and any
proceeds of any sale (after deducting the costs and expenses of such sale,
including a reasonable compensation to the Trustee, its agents and counsel, and
any taxes, assessments or Liens prior to the Lien of this Indenture, except any
thereof subject to which such sale shall have been made), whether made under any
power of sale herein granted or pursuant to judicial proceedings, and any money
collected by the Trustee under Section 8.06, together with, in the case of an
entry or sale or as otherwise provided herein, any other sums then held by the
Trustee as part of the Mortgaged Property, shall be applied in the following
order, to the extent permitted by law, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal or
premium, if any, or interest, if any, upon presentation of the Securities 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 11.07;
Second: To the payment of the whole amount then due and unpaid
upon the Outstanding Securities for principal and premium, if any, and
interest, if any, in respect of which or for the benefit of which such
money has been collected; and in case such
79
proceeds shall be insufficient to pay in full the whole amount so due
and unpaid upon such Securities, then to the payment of such principal
and interest, if any, thereon without any preference or priority,
ratably according to the aggregate amount so due and unpaid, with any
balance then remaining to the payment of premium, if any, and, if so
specified as contemplated by Section 3.01 with respect to the
Securities of any series, or any Tranche thereof, interest, if any, on
overdue premium, if any, and overdue interest, if any, ratably as
aforesaid, all to the extent permitted by applicable law; provided,
however, that any money collected by the Trustee pursuant to Section
8.06 in respect of interest or pursuant to Section 10.03 shall first be
applied to the payment of interest accrued on the principal of
Outstanding Securities; 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 10.08 Receiver.
If an Event of Default shall have occurred and, during the
continuance thereof, the Trustee shall have commenced judicial proceedings to
enforce any right under this Indenture, the Trustee shall, to the extent
permitted by law, be entitled, as against the Company, without notice or demand
and without regard to the adequacy of the security for the Securities or the
solvency of the Company, to the appointment of a receiver of the Mortgaged
Property.
SECTION 10.09 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
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of
principal, premium, if any, and interest, if any, owing and unpaid in respect of
the Securities and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
amounts due to the Trustee under Section 11.07) 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 11.07.
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Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 10.10 Trustee May Enforce Claims without Possession of Securities.
All rights of action and claims under this Indenture or on the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders in respect of which such judgment has been
recovered.
SECTION 10.11 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;
(b) the Holders of not less than a majority in aggregate
principal amount of the Securities then Outstanding 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 sixty (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 sixty (60) day period by the Holders
of a majority in aggregate principal amount of the Securities then Outstanding;
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 Lien of this Indenture or
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.
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SECTION 10.12 Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of and premium, if any, and
(subject to Section 3.07) interest, if any, on such Security on the Stated
Maturity or Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement of
any such payment, and such rights shall not be impaired without the consent of
such Holder.
SECTION 10.13 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding shall have
been discontinued or abandoned for any reason, or shall have been determined
adversely to the Trustee or to such Holder, then and in every such case, subject
to any determination in such proceeding, the Company, the 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 10.14 Rights and Remedies Cumulative.
Except as otherwise provided in the last paragraph of Section
3.06, 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.
Anything in this Article to the contrary notwithstanding, the
availability of the remedies set forth herein (on an individual or cumulative
basis) and the procedures set forth herein relating to the exercise thereof
shall be subject to (a) the law (including, for purposes of this paragraph,
general principles of equity) of any jurisdiction wherein the Mortgaged Property
or any part thereof is located to the extent that such law is mandatorily
applicable and (b) the rights of the holder of any Lien prior to the Lien of
this Indenture, and, if and to the extent that any provision of this Article
conflicts with any provision of such applicable law and/or with the rights of
the holder of any such prior Lien, such provision of law and/or the rights of
such holder shall control.
SECTION 10.15 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.
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SECTION 10.16 Control by Holders of Securities.
If an Event of Default shall have occurred and be continuing,
the Holders of a majority in principal amount of the Securities then Outstanding
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; provided, however, that
(a) such direction shall not be in conflict with any rule of
law or with this Indenture, and could not involve the Trustee in personal
liability in circumstances where indemnity would not, in the Trustee's sole
discretion, be adequate, and
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 10.17 Waiver of Past Defaults.
Before any sale of any of the Mortgaged Property and before a
judgment or decree for payment of the money due shall have been obtained by the
Trustee as in this Article provided, the Holders of not less than a majority in
principal amount of the Securities then Outstanding may on behalf of the Holders
of all the Securities then Outstanding waive any past default hereunder and its
consequences, except a default
(a) in the payment of the principal of or premium, if any, or
interest, if any, on any Security Outstanding, or
(b) in respect of a covenant or provision hereof which under
Section 14.02 cannot be modified or amended without the consent of the Holder of
each Outstanding Security of any series or Tranche 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 10.18 Undertaking for Costs.
The Company and the Trustee agree, and each Holder of
Securities by its 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 ten percentum
(10%) in aggregate principal amount of the Securities then Outstanding, 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 Security on or
after
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the Stated Maturity or Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
SECTION 10.19 Waiver of Appraisement and Other Laws.
To the full extent that it may lawfully so agree, the Company
shall not at any time set up, claim or otherwise seek to take the benefit or
advantage of any appraisement, valuation, stay, extension or redemption law, now
or hereafter in effect, in order to prevent or hinder the enforcement of this
Indenture or the absolute sale of the Mortgaged Property, or any part thereof,
or the possession thereof, or any part thereof, by any purchaser at any sale
under this Article; and the Company, for itself and all who may claim under it,
so far as it or they now or hereafter may lawfully do so, hereby waives the
benefit of all such laws. The Company, for itself and all who may claim under
it, waives, to the extent that it may lawfully do so, all right to have the
Mortgaged Property marshalled upon any foreclosure of the Lien hereof, and
agrees that any court having jurisdiction to foreclose the Lien of this
Indenture may order the sale of the Mortgaged Property as an entirety.
ARTICLE XI
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THE TRUSTEE
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SECTION 11.01 Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificates or opinions which by
any provisions hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to
the requirements of this Indenture.
(b) In case an Event of Default shall have occurred and be
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
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(1) this subsection shall not be construed to limit
the effect of subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities, as provided
herein, relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee,
under this Indenture; and
(4) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers,
if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 11.02 Notice of Defaults.
The Trustee shall give the Holders notice of any default
hereunder 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
10.01(c), no such notice to Holders shall be given until at least seventy-five
(75) days after the occurrence thereof. For the purpose of this Section, the
term "default" means any event which is, or after notice or lapse of time, or
both, would become, an Event of Default.
The Trustee shall give to the trustee under the NVP 1953
Mortgage a copy of each notice of default given to the Holders pursuant to this
Section.
SECTION 11.03 Certain Rights of Trustee.
Subject to the provisions of Section 11.01 and to the
applicable provisions of the Trust Indenture Act:
(a) the Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
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(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 is specifically prescribed herein) may, in the absence of bad faith on
its part, conclusively rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any Holder pursuant to this Indenture, unless such Holder shall
have offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall (subject to
applicable legal requirements) be entitled to examine, during normal business
hours, the books, records and premises of the Company, personally or by agent or
attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(h) the Trustee shall not be charged with knowledge of any
default or Event of Default, as the case may be, unless either (i) a Responsible
Officer of the Trustee shall have actual knowledge of the default or Event of
Default, as the case may be, or (ii) written notice of such default or Event of
Default, as the case may be, shall have been received by the Trustee at the
Corporate Trust Office of the Trustee from the Company, any other obligor on the
Securities or from any Holder of such Securities or, in the case of an Event of
Default described in Section 10.01(f), from the trustee under the NVP 1953
Mortgage and any such notice references the Securities or this Indenture;
(i) the rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder;
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(j) the Trustee shall not be liable for any action taken,
suffered or omitted to be taken by it in good faith and reasonably believed by
it to be authorized or within the discretion or rights or powers conferred upon
it by this Indenture; and
(k) the Trustee shall not be personally liable, in case of
entry by it upon the Mortgaged Property, for debts contracted or liabilities or
damages incurred in the management or operation of the Mortgaged Property.
SECTION 11.04 Not Responsible for Recitals or Issuance of Securities or
Application of Proceeds.
The recitals contained herein and in the Securities (except
the Trustee's certificate of authentication on the Securities) shall be taken as
the statements of the Company, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the value or condition of the Mortgaged Property or any
part thereof, or as to the title of the Company thereto or as to the security
afforded thereby or hereby, or as to the validity or genuineness of any
securities at any time pledged and deposited with the Trustee hereunder, or as
to the validity or sufficiency of this Indenture or of the Securities. The
Trustee shall not be accountable for the use or application by the Company of
the Securities or the proceeds thereof or of any money paid to the Company or
upon Company Order under any provision hereof. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof. The Trustee shall have no
responsibility to make or to see to the making of any recording, filing or
registration of any instrument or notice (including any financing or
continuation statement or any tax or securities form) (or any rerecording,
refiling or reregistration of any thereof); at any time in any public office or
elsewhere for the purpose of perfecting, maintaining the perfection of or
otherwise making effective the Lien of this Indenture or for any other purpose
and shall have no responsibility for seeing to the insurance on the Mortgaged
Property or for paying any taxes relating to the Mortgaged Property or for
otherwise maintaining the Mortgaged Property, including, but not limited to,
attending to any environmental matters in respect thereof or disposing of any
hazardous or other wastes located thereon.
SECTION 11.05 May Hold Securities.
Each of the Trustee, any Authenticating Agent, any Paying
Agent, any Security Registrar or any other agent of the Company or the Trustee,
in its individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 11.08 and 11.13, may otherwise deal with the
Company with the same rights it would have if it were not such Trustee,
Authenticating Agent, Paying Agent, Security Registrar or other agent.
SECTION 11.06 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds, except to the extent required by law. The Trustee
shall be under no liability for interest on or investment of any money received
by it hereunder except as expressly provided herein or otherwise agreed with,
and for the sole benefit of, the Company.
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SECTION 11.07 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 incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except 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 incurred without negligence, willful
misconduct 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 exercise or
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 secured by this
Indenture prior to the Securities upon the Mortgaged Property and upon all other
property and funds held or collected by the Trustee as such, other than property
and funds held in trust under Section 9.03 (except moneys payable to the Company
as provided in Section 9.03). "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.
In addition and without prejudice to the rights provided to
the Trustee under any of the provisions of this Indenture, when the Trustee
incurs expenses or renders services in connection with an Event of Default
specified in Section 10.01(e) or Section 10.01(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 11.07 shall survive the
termination of this Indenture and the resignation or removal of the Trustee.
SECTION 11.08 Disqualification; Conflicting Interests.
If the Trustee shall have or acquire any conflicting interest
within the meaning of the Trust Indenture Act, it shall either eliminate such
conflicting interest or resign to the extent, in the manner and with the effect,
and subject to the conditions, provided in the Trust Indenture Act and this
Indenture. For purposes of Section 310(b)(1) of the Trust Indenture Act and to
the extent permitted thereby, the Trustee, in its capacity as trustee in respect
of the Securities of any
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series, shall not be deemed to have a conflicting interest arising from its
capacity as trustee in respect of the Securities of any other series.
SECTION 11.09 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 Fifty Million Dollars ($50,000,000) 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 Fifty Million Dollars ($50,000,000) or the Dollar
equivalent of the applicable foreign currency and subject to
supervision or examination by authority of such foreign
government or a political subdivision thereof substantially
equivalent to supervision or examination applicable to United
States institutional trustees,
and, in either case, qualified and eligible under this Article and the Trust
Indenture Act. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of such supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 11.10 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 11.11.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company. If the instrument of acceptance by a successor
Trustee required by Section 11.11 shall not have been delivered to the Trustee
within thirty (30) days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the
Holders of a majority in principal amount of the Securities then Outstanding
delivered to the Trustee and to the Company.
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(d) If at any time:
(i) the Trustee shall fail to comply with Section 11.08
after written request therefor by the Company or by any Holder who has
been a bona fide Holder for at least six months, or
(ii) the Trustee shall cease to be eligible under Section
11.09 and shall fail to resign after written request therefor by the
Company or by any such Holder, or
(iii) 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 or (y) subject to Section 10.18, any Holder who has been a bona fide
Holder for at least six (6) months may, on behalf of itself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee 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), the Company, by a Board Resolution, shall take prompt steps to appoint
a successor Trustee or Trustees and shall comply with the applicable
requirements of Section 11.11. If, within one (1) year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
shall be appointed by Act of the Holders of a majority in principal amount of
the Securities then Outstanding 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
11.11, become the successor Trustee and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee shall have been so
appointed by the Company or the Holders and accepted appointment in the manner
required by Section 11.11, any Holder who has been a bona fide Holder of a
Security for at least six (6) months may, on behalf of itself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(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, 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 11.11, 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
pursuant to subsection (e) of this Section and such appointment shall be deemed
to have been accepted as contemplated in Section 11.11, all as of such date, and
all other provisions of this Section and Section 11.11 shall be applicable to
such resignation, appointment and acceptance except to the extent inconsistent
with this subsection (f).
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(g) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee by mailing
written notice of such event by first-class mail, postage prepaid, to all
Holders as their names and addresses appear in the Security Register. Each
notice shall include the name of the successor Trustee and the address of its
corporate trust office.
SECTION 11.11 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee, 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; 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, subject nevertheless to its Lien provided for
in Section 11.07.
(b) Upon request of any such successor Trustee, the Company
shall execute any instruments which fully vest in and confirm to such successor
Trustee all rights, powers and trusts referred to in subsection (a) of this
Section.
(c) 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 11.12 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 11.13 Preferential Collection of Claims against Company.
If the Trustee shall be or become a creditor of the Company or
any other obligor upon the Securities (other than by reason of a relationship
described in Section 311(b) of the Trust Indenture Act), the Trustee shall be
subject to any and all applicable provisions of the Trust Indenture Act
regarding the collection of claims against the Company or such other obligor.
For purposes of Section 3.11(b) of the Trust Indenture Act:
(A) the term "cash transaction" means any transaction
in
91
which full payment for goods or securities sold is made within
seven days after delivery of the goods or securities in
currency or in checks or other orders drawn upon banks or
bankers and payable upon demand; and
(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 or such
obligor 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 or such obligor arising
from the making, drawing, negotiating or incurring of the
draft, bill of exchange, acceptance or obligation.
SECTION 11.14 Co-trustees and Separate Trustees.
At any time or times, for the purpose of meeting the legal
requirements of any jurisdiction in which any of the Mortgaged Property may at
the time be located, 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 percentum (33%) in principal amount of the Securities 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 and, if no Event of Default
shall have occurred and be continuing, by the Company either to act as
co-trustee, jointly with the Trustee, of all or any part of the Mortgaged
Property, or to act as separate trustee of any such property, in either case
with such powers as may be provided in the instrument of 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 fifteen
(15) days after the receipt by it of a request so to do, or if an Event of
Default shall have occurred and be continuing, the Trustee alone shall have
power to make such appointment.
Should any written instrument or instruments from the Company
be required by any co-trustee or separate trustee so appointed to more fully
confirm to such co-trustee or separate trustee such property, title, right or
power, any and all such instruments shall, on request, be executed, acknowledged
and delivered by the Company.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the following
conditions:
(A) the Securities shall be authenticated and
delivered, and all rights, powers, duties and obligations
hereunder in respect of the custody of securities, cash and
other personal property held by, or required to be deposited
or pledged with, the Trustee hereunder, shall be exercised
solely, by the Trustee;
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(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) neither the Trustee nor any co-trustee or
separate trustee hereunder shall be personally liable by
reason of any act or omission of any other 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 11.15 Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with
respect to the Securities of one or more series, or any Tranche thereof, which
shall be authorized to act on behalf of the Trustee to authenticate Securities
of such series or Tranche issued upon original issuance, exchange, registration
of transfer or partial redemption thereof or pursuant to Section 3.06, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States, any State or Territory thereof or the
District of Columbia or the Commonwealth of Puerto Rico, authorized under such
laws to act as Authenticating Agent, having a combined capital and surplus of
not less than Fifty Million Dollars ($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
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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 all or
substantially all of the corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating Agent, provided
such corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee 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 3.08, 11.04 and 11.05 shall be
applicable to each Authenticating Agent.
If an appointment with respect to the Securities of one or
more series, or any Tranche thereof, shall be made pursuant to this Section, the
Securities of such series or Tranche may have endorsed thereon, in addition to
the Trustee's certificate of authentication, an alternate certificate of
authentication substantially in the following form:
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This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By
--------------------------
As Authenticating Agent
By
--------------------------
Authorized Officer
If all of the Securities of a series may not be originally
issued at one time, and if the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place of Payment
where the Company wishes to have Securities of such series authenticated upon
original issuance, the Trustee, if so requested by the Company in writing (which
writing need not comply with Section 1.04 and need not be accompanied by an
Opinion of Counsel), shall appoint, in accordance with this Section and in
accordance with such procedures as shall be acceptable to the Trustee, an
Authenticating Agent having an office in a Place of Payment designated by the
Company with respect to such series of Securities.
ARTICLE XII
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LISTS OF HOLDERS; REPORTS BY TRUSTEE AND COMPANY
------------------------------------------------
SECTION 12.01 Lists of Holders.
Semiannually, not later than June 30 and December 31 in each
year, commencing December 31, 2001, 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 as of a date no
more than fifteen (15) days prior to the date such information is so furnished,
and the Trustee shall preserve such information and similar information received
by it in any other capacity and afford to the Holders access to information so
preserved by it, all to such extent, if any, and in such manner as shall be
required by the Trust Indenture Act; provided, however, that no such list need
be furnished so long as the Trustee shall be the Security Registrar.
SECTION 12.02 Reports by Trustee and Company.
Not later than July 15 in each year, commencing July 15, 2002,
the Trustee shall transmit to the Holders, the Commission and each securities
exchange upon which any Securities are listed a report, dated as of the next
preceding May 15, with respect to any events and other matters described in
Section 313(a) of the Trust Indenture Act, in such manner and to the extent
required by the Trust Indenture Act. The Trustee shall transmit to the Holders,
the Commission and each securities exchange upon which any Securities are
listed, and the Company shall file with the Trustee (within thirty (30) days
after filing with the Commission in the case of reports
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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. Delivery of such reports, information
and documents 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 Officers'
Certificates). The Company shall notify the Trustee of the listing of any
Securities on any securities exchange.
ARTICLE XIII
------------
CONSOLIDATION, MERGER, CONVEYANCE
---------------------------------
OR OTHER TRANSFER
-----------------
SECTION 13.01 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, subject to the Lien of
this Indenture, all of the Mortgaged Property as or 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 other
transfer, or which leases, the Mortgaged Property as or substantially as an
entirety shall be a corporation organized and existing under the laws of the
United States, any State or Territory thereof or the District of Columbia (such
corporation being hereinafter sometimes called the "Successor Corporation") and
shall execute and deliver to the Trustee an indenture supplemental hereto, in
form recordable and reasonably satisfactory to the Trustee, which:
(i) in the case of a consolidation, merger, conveyance or
other transfer, or in the case of a lease if the term thereof extends
beyond the last Stated Maturity of the Securities then Outstanding,
contains an assumption by the Successor Corporation of the due and
punctual payment of the principal of and premium, if any, and interest,
if any, on all the Securities then Outstanding and the performance and
observance of every covenant and condition of this Indenture to be
performed or observed by the Company, and
(ii) in the case of a consolidation, merger, conveyance or
other transfer, contains a grant, conveyance, transfer and mortgage by
the Successor Corporation, of the same tenor of the Granting Clauses
herein,
(A) confirming the Lien of this Indenture on the
Mortgaged Property (as constituted immediately prior to the
time such transaction became effective) and subjecting to the
Lien of this Indenture all property, real, personal and mixed,
thereafter acquired by the Successor Corporation which shall
constitute an improvement, extension or addition to the
Mortgaged Property (as so constituted) or a renewal,
replacement or substitution of or for any part thereof,
96
and, at the election of the Successor Corporation,
(B) subjecting to the Lien of this Indenture such
property, real, personal or mixed, in addition to the property
described in subclause (A) above, then owned or thereafter
acquired by the Successor Corporation as the Successor
Corporation shall, in its sole discretion, specify or describe
therein,
and the Lien confirmed or created by such grant, conveyance, transfer
and mortgage shall have force, effect and standing similar to those
which the Lien of this Indenture would have had if the Company had not
been a party to such consolidation, merger, conveyance or other
transfer and had itself, after the time such transaction became
effective, purchased, constructed or otherwise acquired the property
subject to such grant, conveyance, transfer and mortgage;
(b) in the case of a lease, such lease shall be made expressly
subject to termination by the Company or by the Trustee at any time during the
continuance of an Event of Default, and also by the purchaser of the property so
leased at any sale thereof hereunder, whether such sale be made under the power
of sale hereby conferred or pursuant to judicial proceedings; and
(c) the Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel each of which shall state 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 transaction have been complied
with.
As used in this Article and in Section 8.09(d), the terms
"improvement", "extension" and "addition" shall be limited to (a) with respect
to real property subject to the Lien of this Indenture, any item of personal
property which has been so affixed or attached to such real property as to be
regarded a part of such real property under applicable law and (b) with respect
to personal property subject to the Lien of this Indenture, any improvement,
extension or addition to such personal property which (i) is made to maintain,
renew, repair or improve the function of such personal property and (ii) is
physically installed in or affixed to such personal property.
SECTION 13.02 Successor Corporation Substituted.
Upon any consolidation or merger or any conveyance or other
transfer, subject to the Lien of this Indenture, of all of the Mortgaged
Property as or substantially as an entirety in accordance with Section 13.01,
the Successor Corporation shall succeed to, and be substituted for, and may
exercise every power and right of, the Company under this Indenture with the
same effect as if such Successor Corporation had been named as the "Company"
herein. Without limiting the generality of the foregoing:
(a) all property of the Successor Corporation then subject to
the Lien of this Indenture, of the character described in Section 1.03, shall
constitute Property Additions;
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(b) the Successor Corporation may execute and deliver to the
Trustee, and thereupon the Trustee shall, subject to the provisions of Article
IV, authenticate and deliver, Securities upon any basis provided in Article IV;
and
(c) the Successor Corporation may, subject to the applicable
provisions of this Indenture, cause Property Additions to be applied to any
other Authorized Purpose.
All Securities so executed by the Successor Corporation, and authenticated and
delivered by the Trustee, shall in all respects be entitled to the benefit of
the Lien of this Indenture equally and ratably with all Securities executed,
authenticated and delivered prior to the time such consolidation, merger,
conveyance or other transfer became effective.
SECTION 13.03 Extent of Lien Hereof on Property of Successor Corporation.
Unless, in the case of a consolidation, merger, conveyance or
other transfer contemplated by Section 13.01, the indenture supplemental hereto
contemplated in clause (b)(ii) in Section 13.01, or any other indenture,
contains a grant, conveyance, transfer and mortgage by the Successor Corporation
as described in subclause (B) thereof, neither this Indenture nor such
supplemental indenture shall become or be, or be required to become or be, a
Lien upon any of the properties:
(a) owned by the Successor Corporation or any other party to
such transaction (other than the Company) immediately prior to the time of
effectiveness of such transaction or
(b) acquired by the Successor Corporation at or after the time
of effectiveness of such transaction,
except, in either case, properties acquired from the Company in or as a result
of such transaction and improvements, extensions and additions to such
properties and renewals, replacements and substitutions of or for any part or
parts thereof.
SECTION 13.04 Release of Company upon Conveyance or Other Transfer.
In the case of a conveyance or other transfer to any Person or
Persons as contemplated in Section 13.01, upon the satisfaction of all the
conditions specified in Section 13.01, the Company (such term being used in this
Section without giving effect to such transaction) shall be released and
discharged from all obligations and covenants under this Indenture and on and
under all Securities then Outstanding (unless the Company shall have delivered
to the Trustee an instrument in which it shall waive such release and discharge)
and the Trustee shall acknowledge in writing that the Company has been so
released and discharged.
SECTION 13.05 Merger into Company; Extent of Lien Hereof.
(a) Nothing in this Indenture shall be deemed to prevent or
restrict any consolidation or merger after the consummation of which the Company
would be the surviving or resulting corporation or any conveyance or other
transfer, or lease, subject to the Lien of this Indenture, of any part of the
Mortgaged Property which does not constitute the entirety, or substantially the
entirety, thereof.
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(b) Unless, in the case of a consolidation or merger described
in subsection (a) of this Section, an indenture supplemental hereto shall
otherwise provide, this Indenture shall not become or be, or be required to
become or be, a Lien upon any of the properties acquired by the Company in or as
a result of such transaction or any improvements, extensions or additions to
such properties or any renewals, replacements or substitutions of or for any
part or parts thereof.
ARTICLE XIV
-----------
SUPPLEMENTAL INDENTURES
-----------------------
SECTION 14.01 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 reasonably 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 Securities, all as provided in Article XIII; 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, Securities 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 correct or amplify the description of any property at
any time subject to the Lien of this Indenture; or better to assure, convey and
confirm unto the Trustee any property subject or required to be subjected to the
Lien of this Indenture; or to subject to the Lien of this Indenture additional
property (including property of Persons other than the Company), to specify any
additional Permitted Liens with respect to such additional property and to
modify Section 8.02 in order to specify therein any additional items with
respect to such additional property; or
(d) to change or eliminate any provision of this Indenture or
to add any new provision to this Indenture; provided, however, that if such
change, elimination or addition shall adversely affect the interests of the
Holders of Securities of any series or Tranche in any material respect, such
change, elimination or addition shall become effective with respect to such
series or Tranche only when no Security of such series or Tranche remains
Outstanding; or
(e) to establish the form or terms of Securities of any series
or Tranche as contemplated by Sections 2.01 and 3.01; or
(f) to provide for the authentication and delivery of bearer
Securities and coupons appertaining thereto representing interest, if any,
thereon and for the procedures for the registration, exchange and replacement
thereof and for the giving of notice to, and the solicitation of the vote or
consent of, the holders thereof, and for any and all other matters incidental
thereto; or
99
(g) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee or by a co-trustee or separate trustee; or
(h) to provide for the procedures required to permit the
Company to utilize, at its option, a non-certificated system of registration for
all, or any series or Tranche of, the Securities; or
(i) to change any place or places where (1) the principal of
and premium, if any, and interest, if any, on all or any series of Securities,
or any Tranche thereof, shall be payable, (2) all or any series of Securities,
or any Tranche thereof, may be surrendered for registration of transfer, (3) all
or any series of Securities, or any Tranche thereof, may be surrendered for
exchange and (4) notices and demands to or upon the Company in respect of all or
any series of Securities, or any Tranche thereof, and this Indenture may be
served; or
(j) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other provision
herein; or to make any other additions to, deletions from or other changes to
the provisions under this Indenture, provided that such additions, deletions
and/or other changes shall not adversely affect the interests of the Holders of
Securities of any series or Tranche in any material respect; or
(k) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the qualification of
this Indenture under the Trust Indenture Act, or under any similar federal
statute hereafter enacted, and to add to this Indenture such other provisions as
may be expressly permitted by the Trust Indenture Act, excluding, however the
provisions referred to in Section 316(a)(2) of the Trust Indenture Act as in
effect at the date as of which this instrument was executed or any corresponding
provision in any similar federal statute hereafter enacted.
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, as originally executed and delivered, 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 evidence such amendment hereof; or
(y) if any such amendment shall permit one or more changes to,
or the elimination of, any provisions hereof which, at the date of the
execution and delivery hereof or at any time thereafter, are required
by the Trust Indenture Act to be contained herein or are contained
herein to reflect any provisions of the Trust Indenture Act as in
effect at such date, this Indenture shall be deemed to have been
amended to effect such changes or elimination, and the Company and the
Trustee may, without the consent of
100
any Holders, enter into an indenture supplemental hereto to amend this
Indenture to effect such changes or elimination.
SECTION 14.02 Supplemental Indentures with Consent of Holders.
Subject to the provisions of Section 14.01, with the consent
of the Holders of not less than a majority in aggregate principal amount of the
Securities of all series then Outstanding under this Indenture, considered as
one class, by Act of said Holders delivered to the Company and the Trustee, the
Company and the Trustee may enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, this Indenture; provided, however, that if
there shall be Securities of more than one series Outstanding hereunder and if a
proposed supplemental indenture shall directly affect the rights of the Holders
of Securities of one or more, but less than all, of such series, then the
consent only of the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series so directly affected, considered as one
class, shall be required; and provided, further, that if the Securities of any
series shall have been issued in more than one Tranche and if a proposed
supplemental indenture shall directly affect the rights of the Holders of
Securities of one or more, but less than all, of such Tranches, then the consent
only of the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all Tranches so directly affected, considered as one
class, shall be required; and provided, further, that no such supplemental
indenture shall:
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, 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 thereon, or reduce the amount of the principal of
any Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 10.02, or change the
coin or currency (or other property), in which any Security or premium, if any,
or interest, if any, thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the Maturity of any
Security, without, in any such case, the consent of the Holder of such Security;
or
(b) permit the creation of any Lien (not otherwise permitted
hereby) ranking prior to the Lien of this Indenture with respect to all or
substantially all of the Mortgaged Property, or (except by virtue of a
supplemental indenture described in clause (j) in Section 14.01) terminate the
Lien of this Indenture on all or substantially all of the Mortgaged Property or
deprive the Holders of the benefit of the Lien of this Indenture, without, in
any such case, the consent of the Holders of all Securities then Outstanding; or
(c) reduce the percentage in principal amount of the
Outstanding Securities of any series, or any Tranche thereof, the consent of the
Holders of which is required for any such supplemental indenture, or the consent
of the Holders of which is required for any waiver of compliance with any
provision of this Indenture or of any default hereunder and its consequences, or
reduce the requirements of Section 15.04 for quorum or voting, without, in any
such case, the consent of the Holder of each Outstanding Security of such series
or Tranche; or
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(d) modify any of the provisions of this Section, Section 6.09
or Section 10.17 with respect to the Securities of any series or any Tranche
thereof (except to increase the percentages in principal amount referred to in
this Section or such other Sections or to provide that other provisions of this
Indenture cannot be modified or waived without the consent of the Holders of all
Securities of such series or Tranche) without, in any such case, the consent of
the Holder of each Outstanding Security of such series or Tranche; 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 Section 14.01(g).
A supplemental indenture which (x) changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of the Holders of, or which is to remain in effect only so long as there
shall be Outstanding, Securities of one or more specified series, or one or more
Tranches thereof, or (y) modifies the rights of the Holders of Securities of
such series or Tranches with respect to such covenant or other provision, shall
be deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series or Tranche.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 14.03 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 11.01) 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 14.04 Effect of Supplemental Indentures.
Upon the execution and delivery of any supplemental indenture
under this Article, this Indenture shall be modified in accordance therewith,
and such supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby. Any supplemental indenture
permitted by this Article may restate this Indenture in its entirety, and, upon
the execution and delivery thereof, any such restatement shall supersede this
Indenture as theretofore in effect for all purposes.
SECTION 14.05 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
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SECTION 14.06 Reference in Securities to Supplemental Indentures.
Securities of any series, or any Tranche thereof,
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities of any
series, or any Tranche thereof, so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series or Tranche.
SECTION 14.07 Modification Without Supplemental Indenture.
To the extent, if any, that the terms of any particular series
of Securities shall have been established in or pursuant to a Board Resolution
or an Officer's Certificate pursuant to a supplemental indenture or a Board
Resolution as contemplated by Section 3.01, and not in a supplemental indenture,
additions to, changes in or the elimination of any of such terms may be effected
by means of a supplemental Board Resolution or a supplemental Officer's
Certificate, as the case may be, delivered to, and accepted by, the Trustee;
provided, however, that such supplemental Board Resolution or supplemental
Officer's Certificate shall not be accepted by the Trustee or otherwise be
effective unless all conditions set forth in this Indenture which would be
required to be satisfied if such additions, changes or elimination were
contained in a supplemental indenture shall have been appropriately satisfied.
Upon the acceptance thereof by the Trustee, any such supplemental Board
Resolution or supplemental Officer's Certificate shall be deemed to be a
"supplemental indenture" for purposes of Section 14.04 and 14.06 and a
"supplemental indenture", "indenture supplemental" to this Indenture or
"instrument" supplemental to this Indenture for purposes of Section 6.08.
ARTICLE XV
----------
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
-------------------------------------------
SECTION 15.01 Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of one or more, or all,
series, or any Tranche or Tranches thereof, may be called at any time and from
time to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series or Tranches.
SECTION 15.02 Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of one or more, or all, series, or any Tranche or Tranches thereof,
for any purpose specified in Section 15.01, to be held at such time and (except
as provided in subsection (b) of this Section) 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
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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 1.08, not less than twenty-one (21) nor more than one hundred eighty
(180) days prior to the date fixed for the meeting.
(b) The Trustee may be asked to call a meeting of the Holders
of Securities of one or more, or all, series, or any Tranche or Tranches
thereof, by the Company or by the Holders of thirty-three percentum (33%) in
aggregate principal amount of all of such series and Tranches, considered as one
class, for any purpose specified in Section 15.01, by written request setting
forth in reasonable detail the action proposed to be taken at the meeting. If
the Trustee shall have been asked by the Company to call such a meeting, the
Company shall determine the time and place for such meeting and may call such
meeting by giving notice thereof in the manner provided in subsection (a) of
this Section, or shall direct the Trustee, in the name and at the expense of the
Company, to give such notice. If the Trustee shall have been asked to call such
a meeting by Holders in accordance with this subsection (b), and the Trustee
shall not have given the notice of such meeting within twenty-one (21) days
after receipt of such request or shall not thereafter proceed to cause the
meeting to be held as provided herein, then the Holders of Securities of such
series and Tranches, in the principal amount above specified, 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 Securities of one or more, or
all, series, or any Tranche or Tranches thereof, shall be valid without notice
if the Holders of all Outstanding Securities of such series or Tranches are
present in person or by proxy and if representatives of the Company and the
Trustee are present, or if notice is waived in writing before or after the
meeting by the Holders of all Outstanding Securities of such series, or any
Tranche or Tranches thereof, 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 15.03 Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities
of one or more, or all, series, or any Tranche or Tranches thereof, a Person
shall be (a) a Holder of one or more Outstanding Securities of such series or
Tranches or (b) a Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of such series or
Tranches by such Holder or Holders. The only Persons who shall be entitled to
attend any meeting of Holders of Securities of any series or Tranche shall be
the Persons entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 15.04 Quorum; Action.
The Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of the series and Tranches with respect to
which a meeting shall have been called as hereinbefore provided, considered as
one class, shall constitute a quorum for a meeting of Holders of Securities of
such series and Tranches; provided, however, that if any
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action is to be taken at such meeting which this Indenture expressly provides
may be taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of such series and
Tranches, considered as one class, the Persons entitled to vote such specified
percentage in principal amount of the Outstanding Securities of such series and
Tranches, considered as one class, shall constitute a quorum. In the absence of
a quorum within one hour of the time appointed for any such meeting, the meeting
shall, if convened at the request of Holders of Securities of such series and
Tranches, be dissolved. In any other case the meeting may be adjourned for such
period as may be determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for such period as may
be determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Except as provided by Section 15.05(e), notice of the
reconvening of any meeting adjourned for more than thirty (30) days shall be
given as provided in Section 1.08 not less than ten (10) days prior to the date
on which the meeting is scheduled to be reconvened. Notice of the reconvening of
an adjourned meeting shall state expressly the percentage, as provided above, of
the principal amount of the Outstanding Securities of such series and Tranches
which shall constitute a quorum.
Except as limited by Section 14.02, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in aggregate principal amount of the Outstanding Securities of the
series and Tranches with respect to which such meeting shall have been called,
considered as one class; provided, however, that, except as so limited, any
resolution with respect to any action which this Indenture expressly provides
may be taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of such series and
Tranches, considered as one class, may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal amount
of the Outstanding Securities of such series and Tranches, considered as one
class.
Any resolution passed or decision taken at any meeting of
Holders of Securities duly held in accordance with this Section shall be binding
on all the Holders of Securities of the series and Tranches with respect to
which such meeting shall have been held, whether or not present or represented
at the meeting.
SECTION 15.05 Attendance at Meetings; Determination of Voting Rights; Conduct
and Adjournment of Meetings.
(a) Attendance at meetings of Holders of Securities may be in
person or by proxy; and, to the extent permitted by law, any such proxy shall
remain in effect and be binding upon any future Holder of the Securities with
respect to which it was given unless and until specifically revoked by the
Holder or future Holder (except as provided in Section 1.06(g)) of such
Securities before being voted.
(b) Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Securities in regard to proof of the holding of such
Securities and of the appointment of proxies
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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 and approved by the Company, the holding of Securities shall be
proved in the manner specified in Section 1.06 and the appointment of any proxy
shall be proved in the manner specified in Section 1.06. 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 1.06 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 15.02(b), in which case the
Company or the Holders of Securities of the series and Tranches calling the
meeting, as the case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting shall be elected
by vote of the Persons entitled to vote a majority in aggregate principal amount
of the Outstanding Securities of all series and Tranches represented at the
meeting, considered as one class.
(d) At any meeting each Holder or proxy shall be entitled to
one vote for each One Thousand Dollars ($1,000) principal amount of Outstanding
Securities held or represented by such Holder; provided, however, that no vote
shall be cast or counted at any meeting in respect of any Security challenged as
not Outstanding and ruled by the chairman of the meeting to be not Outstanding.
The chairman of the meeting shall have no right to vote, except as a Holder of a
Security or proxy.
(e) Any meeting duly called pursuant to Section 15.02 at which
a quorum is present may be adjourned from time to time by Persons entitled to
vote a majority in aggregate principal amount of the Outstanding Securities of
all series and Tranches represented at the meeting, considered as one class; and
the meeting may be held as so adjourned without further notice.
SECTION 15.06 Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of
Holders shall be by written ballots on which shall be subscribed the signatures
of the Holders or of their representatives by proxy and the principal amounts
and serial numbers of the Outstanding Securities, of the series and Tranches
with respect to which the meeting shall have been called, held or represented by
them. The permanent chairman of the meeting shall appoint two (2) inspectors of
votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their
verified written reports of all votes cast at the meeting. A record in duplicate
of the proceedings of each meeting of Holders shall be prepared by the secretary
of the meeting and there shall be attached to such 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 such notice was given as provided in
Section 15.02 and, if applicable, Section 15.04. 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
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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 15.07 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 one or more written instruments as provided in Section 1.05.
ARTICLE XVI
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IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
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AND DIRECTORS
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SECTION 16.01 Liability Solely Corporate.
No recourse shall be had for the payment of the principal of
or premium, if any, or interest, if any, on any Securities, 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 the Securities 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 Securities or to be implied herefrom or therefrom; and such personal
liability, if any, is hereby expressly waived and released as a condition of,
and as part of the consideration for, the execution and delivery of this
Indenture, as originally executed and delivered, and the issuance of the
Securities.
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This Indenture 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 Indenture. Any such
counterpart, as recorded or filed in any jurisdiction, may omit such portions of
Exhibits A and B hereto as shall not describe or refer to properties located in
- -------- - -
such jurisdiction.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
NEVADA POWER COMPANY
By:
-------------------------------------
Name:
Title:
THE BANK OF NEW YORK, as Trustee
By:
-------------------------------------
Name:
Title:
108
STATE OF NEVADA )
) ss.:
COUNTY OF _____________ )
On this ________ day of ________ 2001, before me personally appeared
__________________, to me known to be _______________________ of NEVADA POWER
COMPANY, one of the corporations that executed the within and foregoing
instrument, and acknowledged said instrument to be the free and voluntary act
and deed of said Corporation, for the uses and purposes therein mentioned, and
on oath stated that he was authorized to execute said instrument and that the
seal affixed, if any, is the corporate seal of said Corporation.
On the ____ day of ________ in the year ____ before me personally came
__________________ to me known, who, being by me duly sworn, did depose and say
that he resides at _______________________________; that he is
_____________________________ of NEVADA POWER COMPANY, the corporation described
in and which executed the above instrument; and that he signed his name thereto
by authority of the board of directors of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year first above written.
- -------------------------
Print Name
Notary Public in and for the State
of Nevada, residing at ___________________
Commission expires:_______________________
109
STATE OF NEW YORK )
) ss.:
COUNTY OF _____________ )
On the ____ day of May in the year 2001 before me, the undersigned,
personally appeared ______________________________________, personally known to
me or proved to me on the basis of satisfactory evidence to be the individual
whose name is subscribed to the within instrument and acknowledged to me that
[he/she] executed the same in [his/her] capacity, and that by [his/her]
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.
- -------------------------------------
Print Name:
Notary Public in and for the State of New York
Commission expires:_______________________
110
Exhibit A
REAL PROPERTY
State of Nevada
---------------
A-1
Exhibit B
LICENSES, PERMITS, ETC.
State of Nevada
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B-1
Exhibit C
RECORDING INFORMATION
C-1