EXHIBIT 4.4
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PP&L CAPITAL FUNDING, INC.,
ISSUER
AND
PP&L RESOURCES, INC.,
GUARANTOR
TO
THE CHASE MANHATTAN BANK,
TRUSTEE
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SUPPLEMENTAL INDENTURE NO. 3
DATED AS OF _____________________
SUPPLEMENTAL TO THE INDENTURE
DATED AS OF NOVEMBER 1, 1997
ESTABLISHING A SERIES OF SECURITIES DESIGNATED
MEDIUM TERM NOTES, SERIES [_]
LIMITED IN AGGREGATE PRINCIPAL AMOUNT TO $[______________]
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SUPPLEMENTAL INDENTURE NO. 3, dated as of ___________________
among PP&L CAPITAL FUNDING, INC., a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company"), PP&L
RESOURCES, INC., a corporation duly organized and existing under the laws of the
Commonwealth of Pennsylvania (herein called the "Guarantor"), and THE CHASE
MANHATTAN BANK, a New York banking corporation, as Trustee (herein called the
"Trustee), under the Indenture dated as of November 1, 1997 (hereinafter called
the "Original Indenture"), this Supplemental Indenture No. 3 being supplemental
thereto. The Original Indenture and any and all indentures and instruments
supplemental thereto are hereinafter sometimes collectively called the
"Indenture."
RECITALS OF THE COMPANY AND THE GUARANTOR
The Original Indenture was authorized, executed and delivered
by the Company and the Guarantor to provide for the issuance by the Company from
time to time of its Securities (such term and all other capitalized terms used
herein without definition having the meanings assigned to them in the Original
Indenture), to be issued in one or more series as contemplated therein, and for
the Guarantee by the Guarantor of the payment of the principal, premium, if any,
and interest, if any, on such Securities.
As contemplated by Sections 301 and 1201(f) of the Original
Indenture, the Company wishes to establish a series of Securities to be
designated "Medium Term Notes, Series C" to be limited in aggregate principal
amount (except as contemplated in Section 301(b) of the Original Indenture) to
$[____________], such series of Securities to be hereinafter sometimes called
"Series No. 3."
As contemplated by Section 201 and 1402 of the Original
Indenture, the Guarantor wishes to establish the form and terms of the
Guarantees to be endorsed on the Securities of Series No. 3.
The Company has duly authorized the execution and delivery of
this Supplemental Indenture No. 3 to establish the Securities of Series No. 3
and has duly authorized the issuance of such Securities; the Guarantor has duly
authorized the execution and delivery of this Supplemental Indenture No. 3 and
has duly authorized its Guarantees of the Securities of Series No. 3; and all
acts necessary to make this Supplemental Indenture No. 3 a valid agreement of
the Company and the Guarantor, to make the Securities of Series No. 3 valid
obligations of the Company, and to make the Guarantees valid obligations of the
Guarantor, have been performed.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE NO. 3
WITNESSETH:
For and in consideration of the premises and of the purchase
of the Securities by the Holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of the Securities of
Series No. 3, as follows:
ARTICLE ONE
SECOND SERIES OF SECURITIES
SECTION 1. There is hereby created a series of Securities
designated "Medium Term Notes, Series C" and limited in aggregate principal
amount (except as contemplated in Section 301(b) of the Original Indenture) to
$[____________]. The forms and terms of the Securities of Series No. 3 shall be
established in an Officer's Certificate of the Company, as contemplated by
Section 301 of the Original Indenture.
SECTION 2. The Company hereby agrees that, if the Company
shall make any deposit of money and/or Eligible Obligations with respect to any
Securities of Series No. 3, or any portion of the principal amount thereof, as
contemplated by Section 701 of the Indenture, the Company shall not deliver an
Officer's Certificate described in clause (z) in the first paragraph of said
Section 701 unless the Company shall also deliver to the Trustee, together with
such Officer's Certificate, either:
(A) an instrument wherein the Company, notwithstanding the
satisfaction and discharge of its indebtedness in respect of such
Securities, shall assume the obligation (which shall be absolute and
unconditional) to irrevocably deposit with the Trustee or Paying Agent
such additional sums of money, if any, or additional Eligible
Obligations (meeting the requirements of Section 701), if any, or any
combination thereof, at such time or times, as shall be necessary,
together with the money and/or Eligible Obligations theretofore so
deposited, to pay when due the principal of and premium, if any, and
interest due and to become due on such Securities or portions thereof,
all in accordance with and subject to the provisions of said Section
701; provided, however, that such instrument may state that the
obligation of the Company to make additional deposits as aforesaid
shall be subject to the delivery to the Company by the Trustee of a
notice asserting the deficiency accompanied by an opinion of an
independent public accountant of nationally recognized standing,
selected by the Trustee, showing the calculation thereof (which opinion
shall be obtained at the expense of the Company); or
(B) an Opinion of Counsel to the effect that the Holders of
such Securities, or portions of the principal amount thereof, will not
recognize income, gain or loss for United States federal income tax
purposes as a result of the satisfaction and discharge of the Company's
indebtedness in respect thereof and will be subject to United States
federal income tax on the same amounts, at the same times and in the
same manner as if such satisfaction and discharge had not been
effected.
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ARTICLE TWO
FORM OF GUARANTEE
Guarantees to be endorsed on the Securities of Series No. 3
shall be in substantially the form set forth below:
[FORM OF GUARANTEE]
PP&L Resources, Inc., a corporation organized under
the laws of the Commonwealth of Pennsylvania (the "Guarantor", which
term includes any successor under the Indenture (the "Indenture")
referred to in the Security upon which this Guarantee is endorsed), for
value received, hereby unconditionally guarantees to the Holder of the
Security upon which this Guarantee is endorsed, the due and punctual
payment of the principal of, and premium, if any, and interest, if any,
on such Security when and as the same shall become due and payable,
whether at the Stated Maturity, by declaration of acceleration, call
for redemption, or otherwise, in accordance with the terms of such
Security and of the Indenture. In case of the failure of PP&L Capital
Funding, Inc., a corporation organized under the laws of the State of
Delaware (the "Company", which term includes any successor under the
Indenture), punctually to make any such payment, the Guarantor hereby
agrees to cause such payment to be made punctually when and as the same
shall become due and payable, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise, and as
if such payment were made by the Company.
The Guarantor hereby agrees that its obligations
hereunder shall be absolute and unconditional irrespective of, and
shall be unaffected by, any invalidity, irregularity or
unenforceability of such Security or the Indenture, any failure to
enforce the provisions of such Security or the Indenture, or any
waiver, modification or indulgence granted to the Company with respect
thereto, by the Holder of such Security or the Trustee or any other
circumstance which may otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor; provided, however, that
notwithstanding the foregoing, no such waiver, modification or
indulgence shall, without the consent of the Guarantor, increase the
principal amount of such Security, or increase the interest rate
thereon, or change any redemption provisions thereof (including any
change to increase any premium payable upon redemption thereof) or
change the Stated Maturity thereof.
The Guarantor hereby waives the benefits of diligence,
presentment, demand for payment, any requirement that the Trustee or
the Holder of such Security exhaust any right or take any action
against the Company or any other Person, filing of claims with a court
in the event of insolvency or bankruptcy of the Company, any right to
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require a proceeding first against the Company, protest or notice with
respect to such Security or the indebtedness evidenced thereby and all
demands whatsoever, and covenants that this Guarantee will not be
discharged in respect of such Security except by complete performance
of the obligations contained in such Security and in this Guarantee.
This Guarantee shall constitute a guaranty of payment and not of
collection. The Guarantor hereby agrees that, in the event of a
default in payment of principal, or premium, if any, or interest, if
any, on such Security, whether at its Stated Maturity, by declaration
of acceleration, call for redemption, or otherwise, legal proceedings
may be instituted by the Trustee on behalf of, or by, the Holder of
such Security, subject to the terms and conditions set forth in the
Indenture, directly against the Guarantor to enforce this Guarantee
without first proceeding against the Company.
The obligations of the Guarantor hereunder with
respect to such Security shall be continuing and irrevocable until the
date upon which the entire principal of, premium, if any, and interest,
if any, on such Security has been, or has been deemed pursuant to the
provisions of Article Seven of the Indenture to have been, paid in full
or otherwise discharged.
The Guarantor shall be subrogated to all rights of
the Holder of such Security upon which this Guarantee is endorsed
against the Company in respect of any amounts paid by the Guarantor on
account of such Security pursuant to the provisions of this Guarantee
or the Indenture; provided, however, that the Guarantor shall not be
entitled to enforce or to receive any payments arising out of, or based
upon, such right of subrogation until the principal of, and premium, if
any, and interest, if any, on all Securities issued under the Indenture
shall have been paid in full.
This Guarantee shall remain in full force and effect
and continue notwithstanding any petition filed by or against the
Company for liquidation or reorganization, the Company becoming
insolvent or making an assignment for the benefit of creditors or a
receiver or trustee being appointed for all or any significant part of
the Company's assets, and shall, to the fullest extent permitted by
law, continue to be effective or reinstated, as the case may be, if at
any time payment of the Security upon which this Guarantee is endorsed,
is, pursuant to applicable law, rescinded or reduced in amount, or must
otherwise be restored or returned by the Holder of such Security,
whether as a "voidable preference," "fraudulent transfer," or
otherwise, all as though such payment or performance had not been made.
In the event that any payment, or any part thereof, is rescinded,
reduced, restored or returned on such Security, such Security shall, to
the fullest extent permitted by law, be reinstated and deemed paid only
by such amount paid and not so rescinded, reduced, restored or
returned.
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This Guarantee shall not be valid or obligatory for
any purpose until the certificate of authentication of the Security
upon which this Guarantee is endorsed shall have been manually executed
by or on behalf of the Trustee under the Indenture.
All terms used in this Guarantee which are defined in
the Indenture shall have the meanings assigned to them in such
Indenture.
This Guarantee shall be deemed to be a contract made
under the laws of the State of New York, and for all purposes shall be
governed by and construed in accordance with the laws of the State of
New York.
IN WITNESS WHEREOF, the Guarantor has caused this
Guarantee to be executed as of the date first written above.
PP&L RESOURCES, INC.
By:
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[END OF FORM]
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 1. This Supplemental Indenture No. 3 is a supplement
to the Original Indenture. As supplemented by this Supplemental Indenture No. 3,
the Indenture is in all respects ratified, approved and confirmed, and the
Original Indenture and this Supplemental Indenture No. 3 shall together
constitute one and the same instrument.
SECTION 2. The recitals contained in this Supplemental
Indenture No. 3 shall be taken as the statements of the Company and the
Guarantor, and the Trustee assumes no responsibility for their correctness and
makes no representations as to the validity or sufficiency of this Supplemental
Indenture No. 3.
SECTION 3. This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture No. 3 to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the day and year first
written above.
PP&L CAPITAL FUNDING, INC.
By:
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Name:
Title:
[SEAL]
ATTEST:
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PP&L RESOURCES, INC.
By:
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Name:
Title:
[SEAL]
ATTEST:
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THE CHASE MANHATTAN BANK,
as Trustee
By:
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Name:
[SEAL] Title:
ATTEST:
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