EXHIBIT 4.1
________________________________________________________________________________
PUGET SOUND ENERGY, INC.
AND
STATE STREET BANK AND TRUST COMPANY
TRUSTEE
____________
INDENTURE
DATED AS OF ____________, 1997
________________________________________________________________________________
CONTENTS
ARTICLE ONE DEFINITIONS................................................. 2
Section 1.01 General...................................................... 2
Section 1.02 Trust Indenture Act.......................................... 2
Section 1.03 Definitions.................................................. 2
ARTICLE TWO FORM, ISSUE, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES... 11
Section 2.01 Form Generally............................................... 11
Section 2.02 Form of Trustee's Certificate of Authentication.............. 12
Section 2.03 Amount Unlimited............................................. 12
Section 2.04 Denominations, Dates, Interest Payment and Record Dates...... 12
Section 2.05 Execution, Authentication, Delivery and Dating............... 14
Section 2.06 Exchange and Registration of Transfer of Notes............... 18
Section 2.07 Mutilated, Destroyed, Lost or Stolen Notes................... 19
Section 2.08 Temporary Notes.............................................. 20
Section 2.09 Cancellation of Notes Paid, etc.............................. 20
Section 2.10 Interest Rights Preserved.................................... 21
Section 2.11 Special Record Date.......................................... 21
Section 2.12 Payment of Notes............................................. 21
Section 2.13 Notes Issuable in the Form of a Global Note.................. 23
ARTICLE THREE REDEMPTION OF NOTES........................................ 25
Section 3.01 Applicability of Article..................................... 25
Section 3.02 Notice of Redemption; Selection of Notes..................... 25
Section 3.03 Payment of Notes on Redemption; Deposit of Redemption Price.. 26
ARTICLE FOUR PLEDGED FIRST MORTGAGE BONDS; PLEDGED SUBSTITUTED
MORTGAGE BONDS.................................................. 28
[Section 4.01 Delivery of Initial Series of Pledged First Mortgage Bonds... 28
[Section 4.02 Receipt...................................................... 28
Section 4.03 Pledged First Mortgage Bonds Held by the Trustee............. 28
Section 4.04 No Transfer of Pledged First Mortgage Bonds; Exception....... 29
Section 4.05 Delivery to the Company of All Pledged First Mortgage Bonds.. 29
Section 4.06 Further Assurances........................................... 29
Section 4.07 Exchange and Surrender of Pledged First Mortgage Bonds....... 29
Section 4.08 Acceptance of Additional Pledged First Mortgage Bonds........ 30
Section 4.09 Terms of Pledged First Mortgage Bonds........................ 30
Section 4.10 Pledged First Mortgage Bonds as Security for Notes........... 31
Section 4.11 Pledged Substituted Mortgage Bonds........................... 31
ARTICLE FIVE SATISFACTION AND DISCHARGE; UNCLAIMED MONEYS................ 32
Section 5.01 Satisfaction and Discharge................................... 32
Section 5.02 Deposited Moneys to Be Held in Trust by Trustee.............. 35
Section 5.03 Paying Agent to Repay Moneys Held............................ 35
Section 5.04 Return of Unclaimed Moneys................................... 35
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ARTICLE SIX PARTICULAR COVENANTS OF THE COMPANY......................... 36
Section 6.01 Payment of Principal Premium and Interest.................... 36
Section 6.02 Office for Notices and Payments, etc......................... 36
Section 6.03 Appointments to Fill Vacancies in Trustee's Office........... 36
Section 6.04 Provision as to Paying Agent................................. 36
Section 6.05 Opinions of Counsel.......................................... 38
Section 6.06 Certificates and Notice to Trustee........................... 38
Section 6.07 Negative Covenants........................................... 39
ARTICLE SEVEN NOTEHOLDER LISTS AND REPORTS BY THE COMPANY AND THE
TRUSTEE........................................................ 41
Section 7.01 Noteholder Lists............................................. 41
Section 7.02 Securities and Exchange Commission Reports................... 42
Section 7.03 Reports by the Trustee....................................... 43
ARTICLE EIGHT REMEDIES OF THE TRUSTEE AND NOTEHOLDERS ON EVENTS OF
DEFAULT........................................................ 44
Section 8.01 Events of Default............................................ 44
Section 8.02 Enforcement by Trustee....................................... 46
Section 8.03 Application of Moneys Collected by Trustee................... 47
Section 8.04 Proceedings by Noteholders................................... 48
Section 8.05 Proceedings by Trustee....................................... 49
Section 8.06 Remedies Cumulative and Continuing........................... 49
Section 8.07 Direction of Proceedings and Waiver of Defaults by Majority
of Noteholders....................................................... 50
Section 8.08 Notice of Default............................................ 50
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Section 8.09 Undertaking to Pay Costs..................................... 51
ARTICLE NINE CONCERNING THE TRUSTEE..................................... 51
Section 9.01 Duties and Responsibilities of Trustee....................... 51
Section 9.02 Reliance on Documents, Opinions, etc......................... 52
Section 9.03 No Responsibility for Recitals, etc.......................... 53
Section 9.04 Trustee, Authenticating Agent, Paying Agent or Registrar
May Own Notes........................................................ 54
Section 9.05 Moneys to Be Held in Trust................................... 54
Section 9.06 Compensation and Expenses of Trustee......................... 54
Section 9.07 Officers' Certificate as Evidence............................ 55
Section 9.08 Conflicting Interest of Trustee.............................. 55
Section 9.09 Existence and Eligibility of Trustee......................... 55
Section 9.10 Resignation or Removal of Trustee............................ 56
Section 9.11 Appointment of Successor Trustee............................. 57
Section 9.12 Acceptance by Successor Trustee.............................. 57
Section 9.13 Succession by Merger, etc.................................... 58
Section 9.14 Limitations on Rights of Trustee as a Creditor............... 58
Section 9.15 Authenticating Agent......................................... 58
ARTICLE TEN CONCERNING THE NOTEHOLDERS.................................. 59
Section 10.01 Action by Noteholders....................................... 59
Section 10.02 Proof of Execution by Noteholders........................... 60
Section 10.03 Who Deemed Absolute Owners.................................. 60
Section 10.04 Company-Owned Notes Disregarded............................. 60
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Section 10.05 Revocation of Consents; Future Holders Bound................ 61
Section 10.06 Record Date for Noteholder Acts............................. 61
ARTICLE ELEVEN NOTEHOLDERS' MEETING..................................... 62
Section 11.01 Purposes of Meetings........................................ 62
Section 11.02 Call of Meetings by Trustee................................. 62
Section 11.03 Call of Meetings by Company or Noteholders.................. 62
Section 11.04 Qualifications for Voting................................... 63
Section 11.05 Regulations................................................. 63
Section 11.06 Voting...................................................... 64
Section 11.07 Rights of Trustee or Noteholders Not Delayed................ 64
ARTICLE TWELVE CONSOLIDATION, MERGER, SALE, TRANSFER OR OTHER
DISPOSITION................................................... 65
Section 12.01 Company May Consolidate, etc. Only on Certain Terms.......... 65
Section 12.02 Successor Corporation Substituted........................... 66
ARTICLE THIRTEEN SUPPLEMENTAL INDENTURES................................ 66
Section 13.01 Supplemental Indentures Without Consent of Noteholders...... 66
Section 13.02 Supplemental Indentures With Consent of Noteholders......... 67
Section 13.03 Compliance With Trust Indenture Act; Effect of Supplemental
Indentures........................................................... 69
Section 13.04 Notation on Notes........................................... 69
Section 13.05 Evidence of Compliance of Supplemental Indenture to Be
Furnished Trustee.................................................... 69
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ARTICLE FOURTEEN IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS AND
DIRECTORS...................................................... 70
Section 14.01 Indenture and Notes Solely Corporate Obligations............ 70
ARTICLE FIFTEEN MISCELLANEOUS PROVISIONS................................ 70
Section 15.01 Provisions Binding on Company's Successors.................. 70
Section 15.02 Official Acts by Successor Corporation...................... 70
Section 15.03 Notices..................................................... 71
Section 15.04 Governing Law............................................... 71
Section 15.05 Evidence of Compliance With Conditions Precedent............ 71
Section 15.06 Business Days............................................... 73
Section 15.07 Trust Indenture Act to Control.............................. 73
Section 15.08 Table of Contents, Headings, Etc............................ 73
Section 15.09 Execution in Counterparts................................... 73
Section 15.10 Manner of Mailing Notice to Noteholders..................... 73
Section 15.11 Approval by Trustee of Counsel.............................. 00
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XXXXX REFERENCE SHEET SHOWING THE LOCATION IN
THE INDENTURE OF THE PROVISIONS INSERTED
PURSUANT TO SECTIONS 310 THROUGH 318(A) INCLUSIVE
OF THE TRUST INDENTURE ACT OF 1939
SECTION OF TRUST
INDENTURE ACT SECTION OF INDENTURE PAGE
------------------- ---------------------------------------------------------- ------------
310(a)(1) 9.09 55
310(a)(2) 9.09 55
310(a)(3) NOT APPLICABLE --
310(a)(4) NOT APPLICABLE --
310(a)(5) 9.09 55
310(b) 9.08 55
310(c) NOT APPLICABLE --
311(a) 9.14 58
311(b) 9.14 58
311(c) NOT APPLICABLE --
312(a) 7.01(a) 41
312(b) 7.01(b) 41-42
312(c) 7.01(c) 42
313(a) 7.03(a) 43
313(b) 7.03(b) 43
313(c) 7.03(d) 43-44
313(d) 7.03(c) and 703(d) 43-44
314(a) 7.02(a), 7.02(b), 7.02(c) and 6.06 38-39,42-43
314(b) 6.05 38
314(c)(1) Definition of Officers' Certificate, 6.06 and 15.05(a) 6,38-39,71
314(c)(2) Definition of Opinion of Counsel and 15.05 6,71-73
314(c)(3) NOT APPLICABLE --
314(d)(1) 4.06 29
314(d)(2) 4.06 29
314(d)(3) 4.06 29
314(e) 15.05(b) 71-72
314(f) NOT APPLICABLE --
315(a) 9.01 and 9.02 51-53
315(b) 8.08 50
315(c) 9.01(a) 51
315(d) 9.01(b) 51
315(e) 8.09 51
316(a) 8.07 50
10.04 60-61
13.02 67-69
316(b) 8.04 48-49
13.02 67-69
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SECTION OF TRUST
INDENTURE ACT SECTION OF INDENTURE PAGE
------------------- ---------------------------------------------------------- ------------
316(c) 10.06 61
317(a)(1) 8.02(b) 47
317(a)(2) 8.02(a) 46-47
317(b) 5.02 35
6.04 36-37
318(a) 15.07 73
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THIS INDENTURE, dated as of ___________, 1997, between PUGET SOUND ENERGY,
INC., a corporation organized and existing under the laws of the State of
Washington (the "Company"), and STATE STREET BANK AND TRUST COMPANY, a
Massachusetts bank and trust company organized and existing under the laws of
the Commonwealth of Massachusetts, as trustee (the "Trustee").
WITNESSETH
WHEREAS, the Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its Senior Notes (the
"Notes"), to be issued as in this Indenture provided;
WHEREAS, subject to the provisions of Section 4.10 hereof, the Company has
issued Pledged First Mortgage Bonds (as hereinafter defined) and has delivered
such Pledged First Mortgage Bonds to the Trustee to hold in trust for the
benefit of the respective Holders (as hereinafter defined) from time to time of
the related issue of Notes, and, pursuant to the terms and provisions hereof,
the Company may deliver additional Pledged First Mortgage Bonds to the Trustee
for such purpose or require the Trustee to deliver to the Company for
cancellation any and all Pledged First Mortgage Bonds held by the Trustee;
AND WHEREAS, all acts and things necessary to make this Indenture a valid
agreement according to its terms have been done and performed, and the execution
of this Indenture and the issue hereunder of the Notes have in all respects been
duly authorized;
NOW THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the Notes are,
and are to be authenticated, issued and delivered and in consideration of the
premises and of the purchase and acceptance of the Notes by the Holders thereof
and of the sum of One Dollar duly paid to it by the Trustee at the execution of
this Indenture, the receipt whereof is hereby acknowledged, the Company
covenants and agrees with the Trustee for the equal and proportionate benefit of
the respective Holders from time to time of the Notes, as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01 GENERAL
The terms defined in this Article One (except as herein otherwise expressly
provided or unless the context otherwise requires) for all purposes of this
Indenture and of any indenture supplemental hereto shall have the respective
meanings specified in this Article One.
SECTION 1.02 TRUST INDENTURE ACT
(a) Whenever this Indenture refers to a provision of the Trust Indenture
Act of 1939, as amended (the "TIA"), such provision is incorporated by reference
in and made a part of this Indenture.
(b) Unless otherwise indicated, all terms used in this Indenture that are
defined by the TIA, by reference to another statute or defined by a rule of the
SEC (as hereinafter defined) under the TIA shall have the meanings assigned to
them in the TIA or such statute or rule as in force on the date of execution of
this Indenture.
SECTION 1.03 DEFINITIONS
For purposes of this Indenture, the following terms shall have the
following meanings.
AUTHENTICATING AGENT:
The term "Authenticating Agent" shall mean any agent of the Trustee which
shall be appointed and acting pursuant to Section 9.15 hereof.
AUTHORIZED AGENT:
The term "Authorized Agent" shall mean any agent of the Company designated
as such by an Officers' Certificate delivered to the Trustee.
BOARD OF DIRECTORS:
The term "Board of Directors" shall mean the Board of Directors of the
Company or any other duly authorized committee of such Board of Directors.
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BOARD RESOLUTION:
The term "Board Resolution" shall mean a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification and delivered to the Trustee.
BONDHOLDERS' CERTIFICATE:
The term "Bondholders' Certificate" shall mean a certificate signed by the
inspectors of votes, or any other party performing such duties, of the
applicable meeting of the holders of the First Mortgage Bonds issued under the
applicable First Mortgage or by the applicable Mortgage Trustee in the case of
consents of such holders that are sought without a meeting.
BUSINESS DAY:
The term "Business Day" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday that is not a day on which banking institutions or trust
companies in the Borough of Manhattan, The City of New York, or in the city
where the corporate trust office of the Trustee is located, are obligated or
authorized by law or executive order to close.
COMPANY:
The term "Company" shall mean the corporation named as the "Company" in the
first paragraph of this Indenture, and its successors and assigns permitted
hereunder.
COMPANY ORDER:
The term "Company Order" shall mean a written order signed in the name of
the Company by one of the Chairman, the President, any Vice President, the
Treasurer or an Assistant Treasurer, and the Secretary or an Assistant Secretary
of the Company, and delivered to the Trustee.
CORPORATE TRUST OFFICE OF THE TRUSTEE:
The term "corporate trust office of the Trustee", or other similar term,
shall mean the corporate trust office of the Trustee, at which at any particular
time its corporate trust business shall be principally administered, which
office is at the date of the execution of this Indenture located at Xxx
Xxxxxxxxxxxxx Xxxxx, 0xx Xxxxx, Xxxxxx, XX 00000.
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DEBT:
The term "Debt" shall mean indebtedness for money borrowed, but shall
exclude indebtedness maturing by its terms in twelve months or less from the
date of determination.
DEPOSITARY:
The term "Depositary" shall mean, unless otherwise specified in a Company
Order pursuant to Section 2.05 hereof, The Depositary Trust Company, New York,
New York, or any successor thereto registered and qualified under the Securities
and Exchange Act of 1934, as amended, or other applicable statute or regulation.
EVENT OF DEFAULT:
The term "Event of Default" shall mean any event specified in Section 8.01
hereof, continued for the period of time, if any, and after the giving of the
notice, if any, therein designated.
FIRST MORTGAGE:
The term "First Mortgage" shall mean, individually, each of the Fortieth
Supplemental Indenture dated as of September 1, 1954 from the Company to State
Street Bank and Trust, as successor trustee to Old Colony Trust Company of
Boston, as supplemented and amended from time to time, and the Indenture of
First Mortgage dated as of April 1, 1957 from Washington Natural Gas Company to
Xxxxxx Trust and Savings Bank, as trustee, as supplemented and amended from time
to time.
FIRST MORTGAGE BONDS:
The term "First Mortgage Bonds" shall mean all first mortgage bonds issued
by the Company and outstanding under each First Mortgage, other than Pledged
First Mortgage Bonds.
GLOBAL NOTE:
The term "Global Note" shall mean a Note that pursuant to Section 2.05
hereof is issued to evidence Notes, that is delivered to the Depositary or
pursuant to the instructions of the Depositary and that shall be registered in
the name of the Depositary or its nominee.
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INDENTURE:
The term "Indenture" shall mean this instrument as originally executed or,
if amended or supplemented as herein provided, as so amended or supplemented.
INITIAL NOTES:
The term "Initial Notes" shall mean Notes in an aggregate principal amount
of $_____________ authenticated and delivered upon the execution of this
Indenture.
INTEREST PAYMENT DATE:
The term "Interest Payment Date" shall mean, unless otherwise specified in
a Company Order pursuant to Section 2.05 hereof, (a) each March 15 and September
15 during the period any Note is outstanding (provided that the first Interest
Payment Date for any Note, the Original Issue Date of which is after a Regular
Record Date but prior to the respective Interest Payment Date, shall be the
Interest Payment Date following the next succeeding Regular Record Date), (b) a
date of maturity of such Note and (c) only with respect to defaulted interest on
such Note, the date established by the Trustee for the payment of such defaulted
interest pursuant to Section 2.11 hereof.
MATURITY:
The term "maturity," when used with respect to any Note, shall mean the
date on which the principal of such Note becomes due and payable as therein or
herein provided, whether at the stated maturity thereof or by declaration of
acceleration, redemption or otherwise.
MORTGAGE:
The term "Mortgage" shall mean and include any mortgage, pledge, lien or
security interest.
MORTGAGE TRUSTEE:
The term "Mortgage Trustee" shall mean the Person serving as trustee at the
time under either First Mortgage or a Substituted Mortgage.
NOTE OR NOTES:
The term "Note" or "Notes" shall mean any Note or Notes, as the case may
be, authenticated and delivered under this Indenture, including any Global Note.
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NOTEHOLDER:
The term "Noteholder," "Holder of Notes" or "Holder" shall mean any Person
in whose name at the time a particular Note is registered on the books of the
Trustee kept for that purpose in accordance with the terms hereof.
OFFICERS' CERTIFICATE:
The term "Officers' Certificate" when used with respect to the Company,
shall mean a certificate signed by one of the Chairman, the President, any Vice
President, the Treasurer or an Assistant Treasurer, and by the Secretary or an
Assistant Secretary of the Company.
OPINION OF COUNSEL:
The term "Opinion of Counsel" shall mean an opinion in writing signed by
legal counsel reasonably acceptable to the Trustee, which legal counsel may be
an employee of the Company, meeting the applicable requirements of Section 15.05
hereof. If the Indenture requires the delivery of an Opinion of Counsel to the
Trustee, the text and substance of which has been previously delivered to the
Trustee, the Company may satisfy such requirement by the delivery by the legal
counsel that delivered such previous Opinion of Counsel of a letter to the
Trustee to the effect that the Trustee may rely on such previous Opinion of
Counsel as if such Opinion of Counsel was dated and delivered the date delivery
of such Opinion of Counsel is required. Any Opinion of Counsel may contain
conditions and qualifications satisfactory to the Trustee.
ORIGINAL ISSUE DATE:
The term "Original Issue Date" shall mean for a Note, or portions thereof,
the date upon which it, or such portion, was issued by the Company pursuant to
this Indenture and authenticated by the Trustee (other than in connection with a
transfer, exchange or substitution).
OUTSTANDING:
The term "outstanding," when used with reference to Notes, shall, subject
to Section 10.04 hereof, mean, as of any particular time, all Notes
authenticated and delivered by the Trustee under this Indenture, except
(a) Notes theretofore canceled by the Trustee or delivered to the Trustee
for cancellation;
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(b) Notes, or portions thereof, for the payment or redemption of which
moneys in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Company), provided that if such
Notes are to be redeemed prior to the maturity thereof notice of such redemption
shall have been given as provided in Article Three, or provisions satisfactory
to the Trustee shall have been made for giving such notice;
(c) Notes, or portions thereof that have been paid and discharged or are
deemed to have been paid and discharged pursuant to the provisions of this
Indenture; and
(d) Notes in lieu of or in substitution for which other Notes shall have
been authenticated and delivered, or which have been paid, pursuant to Section
2.07 hereof.
PERMITTED ENCUMBRANCES:
The term "Permitted Encumbrances" shall mean any of the following:
(a) Liens for taxes, assessments or governmental charges for the then
current year and taxes, assessments or governmental charges not then delinquent;
liens for worker's compensation awards and similar obligations not then
delinquent; mechanics', laborers', materialmen's and similar liens not then
delinquent; and any of such liens, whether or not delinquent, whose validity is
at the time being contested in good faith by the Company;
(b) Liens and charges incidental to construction or current operation which
have not at such time been filed or asserted or the payment of which has been
adequately secured or which are insignificant in amount;
(c) Liens, securing obligations not assumed by the Company and on account
of which it has not paid and does not expect to pay interest directly or
indirectly, existing upon real estate over or in respect of which the Company
has a right of way or other easement for transmission or distribution purposes;
provided that the loss of all such easements would not materially adversely
affect the operations of the Company;
(d) Any right which the United States of America or any municipal or
governmental body or agency may have by virtue of any franchise, license,
contract or statute to recapture or to purchase, or designate a purchaser of or
order the sale of, any property of the Company upon payment of reasonable
compensation therefor, or upon reasonable compensation or conditions to
terminate any franchise, license or other
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rights before the expiration date thereof or to regulate the property and
business of the Company;
(e) Liens of judgments covered by insurance, or upon appeal and covered by
supersedeas bond, or if not so covered not exceeding at any one of time $10
million in aggregate amount;
(f) Easements or reservations in respect of any property of the Company for
the purpose of transmission or distribution lines or other rights-of-way,
including overhead and underground transmission and distribution lines and
pipelines, or similar purposes, zoning ordinances, regulations, reservations,
restrictions, covenants, party wall agreements, conditions of records and other
encumbrances (other than to secure the payment of money), none of which are such
as to interfere with the proper operation and development of the property
affected thereby; and
(g) Any lien reserved as security for rent or for compliance with other
provisions of the lease in case of any leasehold estate.
PERSON:
The term "Person" shall mean any individual, corporation, partnership,
limited partnership, joint venture, limited liability company, limited liability
partnership, association, joint-stock company, trust, unincorporated
organization or government or any agent or political subdivision thereof.
PLEDGED FIRST MORTGAGE BONDS:
The term "Pledged First Mortgage Bonds" shall mean any first mortgage bonds
issued by the Company under either First Mortgage and delivered to the Trustee
pursuant to Section 4.01 or 4.08 hereof.
PLEDGED SUBSTITUTED MORTGAGE BONDS:
The term "Pledged Substituted Mortgage Bonds" shall mean any mortgage bonds
issued by the Company under a Substituted Mortgage and delivered to the Trustee
pursuant to Section 4.11 hereof.
PRINCIPAL EXECUTIVE OFFICE OF THE COMPANY:
The term "principal executive office of the Company" shall mean 000 - 000xx
Xxxxxx X.X., Xxxxxxxx, Xxxxxxxxxx 00000-0000, or such other place where the main
corporate offices of the Company are located as designated in writing to the
Trustee by an Authorized Agent.
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PRINCIPAL PROPERTY:
The term "Principal Property" shall mean (i) any interest in real property
owned by the Company, and (ii) any asset owned by the Company that is
depreciable in accordance with generally accepted accounting principles,
provided that such real property interest or other depreciable asset is Utility
Property.
REGULAR RECORD DATE:
The term "Regular Record Date" shall mean, unless otherwise specified in a
Company Order pursuant to Section 2.05, for an Interest Payment Date for a
particular Note the last day of the calendar month next preceding such Interest
Payment Date unless such Interest Payment Date is the date of maturity of such
Note, in which event, the Regular Record Date shall be the date of maturity of
such Note.
RELATED ISSUE OF NOTES:
The term "related issue of Notes," when used in reference to an issue of
Pledged First Mortgage Bonds, shall mean the issue of Notes in respect of which
such Pledged First Mortgage Bonds were delivered to the Trustee pursuant to
Section 4.08 hereof upon the initial authentication and issuance of such Notes
pursuant to Section 2.05 hereof and when used in reference to an issue of
Pledged Substituted Mortgage Bonds shall mean the issue of Notes in respect of
which such Pledged Substituted Mortgage Bonds were delivered to the Trustee
pursuant to Section 4.11 hereof.
RELATED ISSUE OF PLEDGED FIRST MORTGAGE BONDS:
The term "related issue of Pledged First Mortgage Bonds," when used in
reference to an issue of Notes, shall mean the issue of Pledged First Mortgage
Bonds delivered to the Trustee pursuant to Section 4.08 hereof in connection
with the initial authentication and issuance of such Notes pursuant to Section
2.05 hereof.
RELATED ISSUE OF PLEDGED SUBSTITUTED MORTGAGE BONDS:
The term "related issue of Pledged Substituted Mortgage Bonds," when used
in reference to an issue of Notes, shall mean the issue of Pledged Substituted
Mortgage Bonds delivered to the Trustee pursuant to Section 4.11 hereof.
RESPONSIBLE OFFICER:
The term "responsible officer" or "responsible officers" when used with
respect to the Trustee shall mean any officer in the Corporate Trust
Administration
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department of the Trustee, or any other officer or assistant officer of the
Trustee customarily performing functions similar to those performed by the
persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his or her knowledge of and
familiarity with the particular subject.
SEC:
The term "SEC" shall mean the United States Securities and Exchange
Commission or, if at any time hereafter the SEC is not existing or performing
the duties now assigned to it under the TIA, then the body performing such
duties.
SPECIAL RECORD DATE:
The term "Special Record Date" shall mean, with respect to any Note, the
date established by the Trustee in connection with the payment of defaulted
interest on such Note pursuant to Section 2.11 hereof.
STATED MATURITY:
The term "stated maturity" shall mean, with respect to any Note, the last
date on which principal on such Note becomes due and payable as therein or
herein provided, other than by declaration of acceleration or by redemption.
SUBSTITUTED MORTGAGE:
The term "Substituted Mortgage" shall mean a mortgage indenture of the
Company designated by the Company to the Trustee as a Substituted Mortgage
pursuant to Section 4.11 hereof.
SUBSTITUTION DATE:
The term "Substitution Date" shall mean the date as of which all First
Mortgage Bonds have been retired through payment, redemption, or otherwise
(including those First Mortgage Bonds the payment for which has been provided
for in accordance with the applicable First Mortgage) at, before or after the
maturity thereof.
TRUSTEE:
The term "Trustee" shall mean State Street Bank and Trust Company and,
subject to Article Nine, shall also include any successor Trustee.
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U.S. GOVERNMENT OBLIGATIONS:
The term "U.S. Government Obligations" shall mean (i) direct non-callable
obligations of, or noncallable obligations guaranteed as to timely payment of
principal and interest by, the United States of America or an agency thereof for
the payment of which obligations or guarantee the full faith and credit of the
United States is pledged or (ii) certificates or receipts representing direct
ownership interests in obligations or specified portions (such as principal or
interest) of obligations described in clause (i) above, which obligations are
held by a custodian in safekeeping in a manner satisfactory to the Trustee.
UTILITY PROPERTY:
The term "Utility Property" shall mean and comprise property of the
Company, located in the State of Washington or in any state contiguous thereto
which (except as provided below) is used by or useful to the Company in the
business of (a) generating, transmitting, distributing, utilizing, purchasing,
furnishing and/or disposing of electricity, for heat, light, power, or
refrigeration or any other uses, or in any business which is incidental thereto,
or (b) furnishing, purchasing, storing, processing, manufacturing, utilizing,
transmitting, supplying, liquefying, distributing and/or disposing of gas,
whether manufactured, natural or liquefied petroleum gases or a mixture of any
thereof, for heat, light, power, or refrigeration or any other uses, or in any
business which is incidental thereto.
ARTICLE TWO
FORM, ISSUE, EXECUTION, REGISTRATION AND
EXCHANGE OF NOTES
SECTION 2.01 FORM GENERALLY
(a) If the Notes are in the form of a Global Note they shall be in
substantially the form set forth in Exhibit A (or, following the Substitution
Date, Exhibit C) to this Indenture, and, if the Notes are not in the form of a
Global Note, they shall be in substantially the form set forth in Exhibit B (or,
following the Substitution Date, Exhibit D) to this Indenture, or, in any case,
in such other form as shall be established by a Board Resolution, or a Company
Order pursuant to a Board Resolution, or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with applicable rules
of any securities exchange or of the Depositary or with
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applicable law or as may, consistently herewith, be determined by the officers
executing such Notes, as evidenced by their execution of such Notes.
(b) The definitive Notes shall be typed, printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Notes, as evidenced by their execution
of such Notes.
SECTION 2.02 FORM OF TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
The Trustee's certificate of authentication on all Notes shall be in
substantially the following form:
Trustee's Certificate of Authentication
This Note is one of the Notes of the series herein designated, described or
provided for in the within-mentioned Indenture.
___________________________________
as Trustee
By:________________________________
Authorized Officer
SECTION 2.03 AMOUNT UNLIMITED
The aggregate principal amount of Notes that may be authenticated and
delivered under this Indenture is unlimited, subject to compliance with the
provisions of this Indenture.
SECTION 2.04 DENOMINATIONS, DATES, INTEREST PAYMENT AND RECORD DATES
(a) The Notes shall be issuable in registered form without coupons in
denominations of $1,000 and integral multiples thereof or such other amount or
amounts as may be authorized by the Board of Directors or a Company Order
pursuant to a Board Resolution or in one or more indentures supplemental hereto.
(b) Each Note shall be dated and issued as of the date of its
authentication by the Trustee and shall bear an Original Issue Date or, as
provided in Section 2.13(e) hereof, two or more Original Issue Dates; each Note
issued upon transfer, exchange or substitution of a Note shall bear the Original
Issue Date or Dates of such transferred, exchanged or substituted Note, subject
to the provisions of Section 2.13(e) hereof.
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(c) Each Note shall bear interest from the later of (1) its Original Issue
Date (or, if pursuant to Section 2.13 hereof, a Global Note has two or more
Original Issue Dates, interest shall, beginning on each such Original Issue
Date, begin to accrue for that part of the principal amount of such Global Note
to which that Original Issue Date is applicable), or (2) the most recent date to
which interest has been paid or duly provided for with respect to such Note
until the principal of such Note is paid or made available for payment, and
interest on each Note shall be payable on each Interest Payment Date after the
Original Issue Date.
(d) Each Note shall mature on a stated maturity specified in the Note. The
principal amount of each outstanding Note shall be payable on the maturity date
or dates specified therein.
(e) Unless otherwise specified in a Company Order pursuant to Section 2.05
hereof, interest on each of the Notes shall be calculated on the basis of a 360-
day year of twelve 30-day months and shall be computed at a fixed rate until the
maturity of such Notes. The method of computing interest on any Notes not
bearing a fixed rate of interest shall be set forth in a Company Order pursuant
to Section 2.05 hereof. Unless otherwise specified in a Company Order pursuant
to Section 2.05 hereof, principal, interest and premium on the Notes shall be
payable in the currency of the United States.
(f) Except as provided in the following sentence, the Person in whose name
any Note is registered at the close of business on any Regular Record Date or
Special Record Date with respect to an Interest Payment Date for such Note shall
be entitled to receive the interest payable on such Interest Payment Date
notwithstanding the cancellation of such Note upon any registration of transfer,
exchange or substitution of such Note subsequent to such Regular Record Date or
Special Record Date and prior to such Interest Payment Date. Any interest
payable at maturity shall be paid to the Person to whom the principal of such
Note is payable.
(g) Promptly after each Regular Record Date that is not a date of maturity,
the Trustee shall furnish to the Company a notice setting forth the total amount
of the interest payments to be made on the applicable Interest Payment Date, and
to the Depositary a notice setting forth the total amount of interest payments
to be made on Global Notes on such Interest Payment Date. The Trustee (or any
duly selected paying agent) shall provide to the Company during each month that
precedes an Interest Payment Date a list of the principal, interest and premium,
if any, to be paid on Notes on such Interest Payment Date and to the Depositary
a list of the principal, interest and premium, if any, to be paid on Global
Notes on such Interest Payment Date. Promptly after the first Business Day of
each month, the Trustee shall furnish to the Company a written notice setting
forth the aggregate principal amount of the
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Global Notes. The Trustee, as long as it is paying agent, shall assume
responsibility for withholding taxes on interest paid as required by law except
with respect to any Global Note.
SECTION 2.05 EXECUTION, AUTHENTICATION, DELIVERY AND DATING
(a) The Notes shall be executed on behalf of the Company by one of the
Chairman, the President, any Vice President, the Treasurer or an Assistant
Treasurer of the Company and attested by the Secretary or an Assistant Secretary
of the Company. The signature of any of these officers on the Notes may be
manual or facsimile.
(b) Notes bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall continue to be valid
obligations of the Company, notwithstanding that such individuals or any of them
have ceased to hold such offices prior to the authentication and delivery of
such Notes or did not hold such offices at the date of such Notes.
(c) At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Notes executed by the Company to the
Trustee for authentication, together with or preceded by one or more Company
Orders for the authentication and delivery of such Notes, and the Trustee in
accordance with any such Company Order shall authenticate and deliver such
Notes. The Notes shall be issued in series. Such Company Order shall specify
the following with respect to each issue of Notes: (i) any limitations on the
aggregate principal amount of the Notes to be issued as part of such series,
(ii) the Original Issue Date or Dates for such Notes, (iii) the stated maturity
of such Notes, (iv) the interest rate or rates, or method of calculation of such
rate or rates, for such Notes, (v) the terms, if any, regarding the optional or
mandatory redemption of such Notes, including the redemption date or dates, if
any, and the price or prices applicable to such redemption (including any
premium), (vi) whether or not such Notes shall be entitled to the benefit of any
sinking fund, and the terms, if any, of such sinking fund, (vii) whether or not
such Notes shall be issued in whole or in part in the form of a Global Note and,
if so, the Depositary for such Global Note, (viii) the designation of such
Notes, (ix) if the form of such Notes is not as described in Exhibit A, Exhibit
B, Exhibit C, or Exhibit D hereto, the form of such Notes, (x) the maximum
annual interest rate, if any, of the Notes permitted for such issue, (xi) any
other information necessary to complete the Notes of such issue, (xii) if prior
to the Substitution Date, the designation of the related issue of Pledged First
Mortgage Bonds being delivered to the Trustee in connection with the issuance of
such Notes, (xiii) if on or after the Substitution Date,
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the designation of the related issue of Pledged Substituted Mortgage Bonds, if
any, (xiv) the establishment of any office or agency pursuant to Section 6.02
hereof and (xv) any other terms of such series not inconsistent with this
Indenture. Prior to authenticating any Notes, and in accepting the additional
responsibilities under this Indenture in relation to such Notes, the Trustee
shall receive from the Company the following at or before the issuance of such
Notes, and (subject to Section 9.01 hereof) shall be fully protected in relying
upon:
(1) A Board Resolution authorizing such Company Order or Orders and, if the
form of Notes is established by a Board Resolution or a Company Order pursuant
to a Board Resolution, a copy of such Board Resolution;
(2) an Opinion of Counsel stating substantially the following, subject to
customary qualifications and exceptions:
(A) if the form of Notes has been established by or pursuant to a Board
Resolution, a Company Order pursuant to a Board Resolution or in a supplemental
indenture as permitted by Section 2.01 hereof, that such form has been
established in conformity with this Indenture;
(B) that this Indenture has been duly authorized, executed and delivered by
the Company and constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except to the
extent that enforcement thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws of general application
relating to or affecting the enforcement of creditors' rights and the
application of general principles of equity (regardless of whether enforcement
is sought in a proceeding at law or in equity) and except as enforcement of
provisions of the Indenture may be limited by state laws affecting the remedies
for the enforcement of the security provided for in the Indenture;
(C) if prior to the Substitution Date, that the related issue of Pledged
First Mortgage Bonds being delivered to the Trustee in connection with the
issuance of such Notes has been duly authorized, executed and delivered, and
that such Pledged First Mortgage Bonds and the applicable First Mortgage are
valid and binding obligations of the Company, enforceable in accordance with
their terms, except to the extent that enforcement thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws of
general application relating to or affecting the enforcement of creditors'
rights and the application of general principles of equity (regardless of
whether enforcement is sought in a proceeding at law or in equity) and except as
enforcement of provisions thereof may be limited by state laws affecting the
remedies for the enforcement of the security provided for in the First
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Mortgage; and that such Pledged First Mortgage Bonds are entitled to the benefit
of the applicable First Mortgage, equally and ratably, with all First Mortgage
Bonds and other Pledged First Mortgage Bonds (if any) outstanding under the
applicable First Mortgage, except as to sinking fund provisions;
(D) that the Indenture and, if any Pledged First Mortgage Bonds are, or are
to be, outstanding, the applicable First Mortgage are qualified to the extent
necessary under the TIA;
(E) if any Pledged Substituted Mortgage Bonds are to be delivered, that the
related issue of Pledged Substituted Mortgage Bonds being delivered to the
Trustee in connection with the issuance of such Notes has been duly authorized,
executed and delivered, and that such Pledged Substituted Mortgage Bonds and the
Substituted Mortgage are valid and binding obligations of the Company,
enforceable in accordance with their terms, except to the extent that
enforcement thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws of general application relating to or
affecting the enforcement of creditors' rights and the application of general
principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity) and except as enforcement of provisions thereof
may be limited by state laws affecting the remedies for the enforcement of the
security provided for in the Substituted Mortgage; and that such Pledged
Substituted Mortgage Bonds are entitled to the benefit of the Substituted
Mortgage, equally and ratably, with all Pledged Substituted Mortgage Bonds (if
any) outstanding thereunder, except as to sinking fund provisions;
(F) that the Indenture and, if any Pledged Substituted Mortgage Bonds are,
or are to be, outstanding, the Substituted Mortgage are qualified to the extent
necessary under the TIA;
(G) that such Notes have been duly authorized and executed by the Company,
and when authenticated by the Trustee and issued by the Company in the manner
and subject to any conditions specified in such Opinion of Counsel, will
constitute valid and binding obligations of the Company, enforceable in
accordance with their terms, except to the extent that enforcement thereof may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws of general application relating to or affecting the enforcement of
creditors' rights and the application of general principles of equity
(regardless of whether enforcement is sought in a proceeding at law or in
equity) and except as enforcement of provisions of this Indenture may be limited
by state laws affecting the remedies for the enforcement of the security
provided for in this Indenture;
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(H) that the issuance of the Notes and, if applicable, the delivery by the
Company of the related issue of Pledged First Mortgage Bonds or Pledged
Substituted Mortgage Bonds in connection therewith will not result in any
default under this Indenture, the First Mortgage or the Substituted Mortgage (if
applicable), or any other contract, indenture, loan agreement or other
instrument to which the Company is a party or by which it or any of its property
is bound;
(I) that all consents or approvals of the Washington Utilities and
Transportation Commission (or any successor agency) and of any other federal or
state regulatory agency required in connection with the Company's execution and
delivery of this Indenture, such Notes and any Pledged First Mortgage Bonds or
Pledged Substituted Mortgage Bonds have been obtained and are not withdrawn
(except that no statement need be made with respect to state securities laws);
and
(J) if applicable, that the First Mortgage or the Substituted Mortgage and
all financing statements have been duly filed and recorded in all places where
such filing or recording is necessary for the perfection or preservation of the
lien of the First Mortgage or the Substituted Mortgage, and the First Mortgage
or the Substituted Mortgage constitutes a valid and perfected first lien upon
the property purported to be covered thereby, subject only to permitted
encumbrances (as defined in the First Mortgage or the Substituted Mortgage).
(3) an Officers' Certificate stating that (i) the Company is not, and upon
the authentication by the Trustee of such Notes will not be, in default under
any of the terms or covenants contained in this Indenture, (ii) all conditions
that must be met by the Company to issue Notes under this Indenture have been
met, and (iii) if applicable, the related issue of Pledged First Mortgage Bonds
or the related issue of Pledged Substituted Mortgage Bonds being delivered to
the Trustee meets the requirements of Section 4.10 or Section 4.11, as
applicable, hereof.
(d) No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by the manual signature of an authorized officer, and
such certificate upon any Note shall be conclusive evidence, and the only
evidence, that such Note has been duly authenticated and delivered hereunder and
is entitled to the benefits of this Indenture.
(e) If all Notes having identical terms (but which may have differing
Original Issue Dates) are not to be authenticated and issued at one time, the
Company shall not be required to deliver the Company Order, Board Resolutions,
Pledged First Mortgage Bonds or Pledged Substituted Mortgage Bonds, if
applicable, Officers' Certificate and Opinion of Counsel (including any such
that would be otherwise
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required pursuant to Section 15.05 hereof) described in Section 2.05(c) hereof
at or prior to the authentication of each such Note, if such items are delivered
at or prior to the time of authentication of the first such Note to be
authenticated and issued. If all of such Notes are not authenticated and issued
at one time, for each issuance of Notes after the initial issuance of Notes, the
Company shall be required only to deliver to the Trustee such Notes and a
written request (executed by one of the Chairman, the President, any Vice
President, the Treasurer, or an Assistant Treasurer, and by the Secretary or an
Assistant Secretary of the Company) to the Trustee to authenticate such Notes
and to deliver such Notes in accordance with the instructions specified by such
request. Any such request shall constitute a representation and warranty by the
Company that the statements made in the Officers' Certificate delivered to the
Trustee prior to the authentication and issuance of the first such Note are true
and correct on the date thereof as if made on and as of the date thereof.
SECTION 2.06 EXCHANGE AND REGISTRATION OF TRANSFER OF NOTES
(a) Subject to Section 2.13 hereof, Notes may be exchanged for one or more
new Notes of any authorized denominations and of a like aggregate principal
amount, series and stated maturity and having the same terms and Original Issue
Date or Dates. Notes to be exchanged shall be surrendered at any of the offices
or agencies to be maintained pursuant to Section 6.02 hereof and the Trustee
shall deliver in exchange therefor the Note or Notes which the Noteholder making
the exchange shall be entitled to receive.
(b) The Company hereby appoints the Trustee registrar for the Notes. The
Trustee shall keep, at one of said offices or agencies, a register or registers
in which, subject to such reasonable regulations as it may prescribe, the
Trustee shall register or cause to be registered Notes and shall register or
cause to be registered the transfer of Notes as in this Article Two provided.
Such register shall be in written form or in any other form capable of being
converted into written form within a reasonable time. At all reasonable times,
such register shall be open for inspection by the Company. Upon due presentment
for registration of transfer of any Note at any such office or agency, the
Company shall execute and the Trustee shall register, authenticate and deliver
in the name of the transferee or transferees one or more new Notes of any
authorized denominations and of a like aggregate principal amount, series and
stated maturity and having the same terms and Original Issue Date or Dates.
(c) All Notes presented for registration of transfer or for exchange,
redemption or payment shall be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company and
the
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Trustee and duly executed by the Holder or the attorney in fact of such Holder
duly authorized in writing.
(d) No service charge shall be made for any exchange or registration of
transfer of Notes, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
therewith.
(e) The Trustee shall not be required to exchange or register a transfer of
any Notes selected, called or being called for redemption (including Notes, if
any, redeemable at the option of the Holder, provided such Notes are then
redeemable at such Holder's option), except, in the case of any Note to be
redeemed in part, the portion thereof not to be so redeemed.
(f) If the principal amount, and applicable premium, if any, of part, but
not all, of a Global Note is paid, then upon surrender to the Trustee of such
Global Note, the Company shall execute, and the Trustee shall authenticate,
deliver and register, a Global Note in an authorized denomination in aggregate
principal amount equal to, and having the same terms, Original Issue Date or
Dates and series as, the unpaid portion of such Global Note.
SECTION 2.07 MUTILATED, DESTROYED, LOST OR STOLEN NOTES
(a) If any temporary or definitive Note shall become mutilated or be
destroyed, lost or stolen, the Company shall execute, and upon its request the
Trustee shall authenticate and deliver, a new Note of like form and principal
amount and having the same terms and Original Issue Date or Dates and bearing a
number not contemporaneously outstanding, in exchange and substitution for the
mutilated Note, or in lieu of and in substitution for the Note so destroyed,
lost or stolen. In every case the applicant for a substituted Note shall
furnish to the Company, the Trustee and any paying agent or Authenticating Agent
such security or indemnity as may be required by them to save each of them
harmless, and, in every case of destruction, loss or theft of a Note, the
applicant shall also furnish to the Company and to the Trustee evidence to their
satisfaction of the destruction, loss or theft of such Note and of the ownership
thereof.
(b) The Trustee shall authenticate any such substituted Note and deliver
the same upon the written request or authorization of any officer of the
Company. Upon the issuance of any substituted Note, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses connected therewith.
If any Note which has matured, is about to mature, has been redeemed or called
for redemption shall become mutilated or be destroyed, lost or stolen, the
Company may, instead of issuing a
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substituted Note, pay or authorize the payment of the same (without surrender
thereof except in the case of a mutilated Note) if the applicant for such
payment shall furnish to the Company, the Trustee and any paying agent or
Authenticating Agent such security or indemnity as may be required by them to
save each of them harmless and, in case of destruction, loss or theft, evidence
satisfactory to the Company and the Trustee of the destruction, loss or theft of
such Note and of the ownership thereof.
(c) Every substituted Note issued pursuant to this Section 2.07 by virtue
of the fact that any Note is mutilated, destroyed, lost or stolen shall
constitute an additional contractual obligation of the Company, whether or not
such destroyed, lost or stolen Note shall be found at any time, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Notes duly issued hereunder. All Notes shall be held and
owned upon the express condition that, to the extent permitted by law, the
foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Notes and shall preclude any and all other
rights or remedies notwithstanding any law or statute existing or hereafter
enacted to the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
SECTION 2.08 TEMPORARY NOTES
Pending the preparation of definitive Notes, the Company may execute and
the Trustee shall authenticate and deliver temporary Notes (printed,
lithographed or otherwise reproduced). Temporary Notes shall be issuable in any
authorized denomination and substantially in the form of the definitive Notes
but with such omissions, insertions and variations as may be appropriate for
temporary Notes, all as may be determined by the Company. Every such temporary
Note shall be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with the same effect, as the definitive
Notes. Without unreasonable delay the Company shall execute and shall deliver
to the Trustee definitive Notes and thereupon any or all temporary Notes shall
be surrendered in exchange therefor at the corporate trust office of the
Trustee, and the Trustee shall authenticate, deliver and register in exchange
for such temporary Notes an equal aggregate principal amount of definitive
Notes. Such exchange shall be made by the Company at its own expense and
without any charge therefor to the Noteholders. Until so exchanged, the
temporary Notes shall in all respects be entitled to the same benefits under
this Indenture as definitive Notes authenticated and delivered hereunder.
SECTION 2.09 CANCELLATION OF NOTES PAID, ETC.
All Notes surrendered for the purpose of payment, redemption, exchange or
registration of transfer shall be surrendered to the Trustee for cancellation
and
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promptly canceled by it and no Notes shall be issued in lieu thereof except as
expressly permitted by this Indenture. The Company's acquisition of any Notes
shall operate as a redemption or satisfaction of the indebtedness represented by
such Notes and such Notes shall be surrendered by the Company to and canceled by
the Trustee.
SECTION 2.10 INTEREST RIGHTS PRESERVED
Each Note delivered under this Indenture upon transfer of or in exchange
for or in lieu of any other Note shall carry all the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Note, and each such
Note shall be so dated that neither gain nor loss of interest shall result from
such transfer, exchange or substitution.
SECTION 2.11 SPECIAL RECORD DATE
If and to the extent that the Company fails to make timely payment or
provision for timely payment of interest on any issue of Notes (other than on an
Interest Payment Date that is a maturity date), that interest shall cease to be
payable to the Persons who were the Noteholders of such issue at the applicable
Regular Record Date. In that event, when moneys become available for payment of
that interest, the Trustee shall (a) establish a date of payment of such
interest and a Special Record Date for the payment of that interest, which
Special Record Date shall be not more than 15 or fewer than 10 days prior to the
date of the proposed payment and (b) mail notice of the date of payment and of
the Special Record Date not fewer than 10 days preceding the Special Record Date
to each Noteholder of such issue at the close of business on the 15th day
preceding the mailing at the address of such Noteholder, as it appears on the
register for the Notes. On the day so established by the Trustee the interest
shall be payable to the Holders of the applicable Notes at the close of business
on the Special Record Date.
SECTION 2.12 PAYMENT OF NOTES
Payment of the principal, interest and premium on all Notes shall be
payable as follows:
(a) On or before 11:00 a.m., New York City time, of the day on which
payment of principal, interest and premium, if any, is due on any Global Note
pursuant to the terms thereof, the Company shall deliver to the Trustee funds
available on such date sufficient to make such payment, by wire transfer of
immediately available funds or by instructing the Trustee to withdraw sufficient
funds from an account maintained by the Company with the Trustee or such other
method as is acceptable to the Trustee and, if applicable, the Depositary. On
or before 2:00 p.m.,
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New York City time, or such other time as shall be agreed upon between the
Trustee and, if applicable, the Depositary, of the day on which any payment of
interest is due on any Global Note (other than at maturity), the Trustee shall
pay to the Depositary such interest in same day funds. On or before 2:00 p.m.,
New York City time or such other time as shall be agreed upon between the
Trustee and the Depositary, of the day on which principal, interest payable at
maturity and premium, if any, is due on any Global Note, the Trustee shall
deposit with the Depositary the amount equal to the principal, interest payable
at maturity and premium, if any, by wire transfer into the account specified by
the Depositary.
(b) With respect to any Note that is not a Global Note, principal,
applicable premium and interest due at the maturity of the Note shall be payable
in immediately available funds when due upon presentation and surrender of such
Note at the corporate trust office of the Trustee or at the authorized office of
any paying agent. Interest on any Note that is not a Global Note (other than
interest payable at maturity) shall be paid to the Holder thereof as its name
appears on the register by check or wire transfer payable in clearinghouse
funds; provided that if the Trustee receives a written request from any Holder
of Notes, the aggregate principal amount of which having the same Interest
Payment Date equals or exceeds $10,000,000, on or before the applicable Regular
Record Date for such Interest Payment Date, interest shall be paid by wire
transfer of immediately available funds to a bank designated by such Holder in
its request or by direct deposit into the account of such Holder designated by
such Holder in its request if such account is maintained with the Trustee or any
paying agent.
(c) The Trustee shall receive the Pledged First Mortgage Bonds or Pledged
Substituted Mortgage Bonds from the Company as provided in this Indenture and
shall hold the Pledged First Mortgage Bonds or Pledged Substituted Mortgage
Bonds, and any and all sums payable thereon or with respect thereto or realized
therefrom, in trust for the benefit of the Holders of the Notes, as herein
provided. Subject to Article Eight hereof, the Company's obligations to make
payments with respect to the principal of, premium or interest on Pledged First
Mortgage Bonds or Pledged Substituted Mortgage Bonds will be fully or partially,
as the case may be, satisfied and discharged to the extent that, at the time
that any such payment shall be due, the then due principal of, premium or
interest on the related issue of Notes shall have been fully or partially paid
or there shall have been deposited with the Trustee pursuant to this Section
2.12 sufficient available funds to fully or partially pay the then due principal
of, premium, if any, or interest on such related issue of Notes.
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SECTION 2.13 NOTES ISSUABLE IN THE FORM OF A GLOBAL NOTE
(a) If the Company shall establish pursuant to Section 2.05 hereof that the
Notes of a particular series are to be issued in whole or in part in the form of
one or more Global Notes, then the Company shall execute and the Trustee shall,
in accordance with Section 2.05 hereof and the Company Order delivered to the
Trustee thereunder, authenticate and deliver such Global Note or Notes, which
(i) shall represent, shall be denominated in an amount equal to the aggregate
principal amount of, and shall have the same terms as, the outstanding Notes to
be represented by such Global Note or Notes, (ii) shall be registered in the
name of the Depositary or its nominee, (iii) shall be delivered by the Trustee
to the Depositary or pursuant to the Depositary's instruction and (iv) shall
bear a legend substantially to the following effect: "This Note is a Global Note
registered in the name of the Depositary (referred to herein) or a nominee
thereof and, unless and until it is exchanged in whole or in part for the
individual Notes represented hereby, this Global Note may not be transferred
except as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the Depositary
or by the Depositary or any such nominee to a successor Depositary or a nominee
of such successor Depositary. Unless this Global Note is presented by an
authorized representative of The Depositary Trust Company, to the trustee for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or such other name as requested by an
authorized representative of The Depositary Trust Company and any payment is
made to Cede & Co., any transfer, pledge or other use hereof for value or
otherwise by or to any person is wrongful since the registered owner hereof,
Cede & Co., has an interest herein" or such other legend as may be required by
the rules and regulations of the Depositary.
(b) Notwithstanding any other provision of Section 2.06 hereof or of this
Section 2.13, unless the terms of a Global Note expressly permit such Global
Note to be exchanged in whole or in part for individual Notes, a Global Note may
be transferred, in whole but not in part, only as described in the legend
thereto.
(c) (i) If at any time the Depositary for a Global Note notifies the
Company that it is unwilling or unable to continue as Depositary for such Global
Note or if at any time the Depositary for the Global Note shall no longer be
eligible or in good standing under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or other applicable statute or regulation, the
Company shall appoint a successor Depositary, with respect to such Global Note.
If a successor Depositary for such Global Note is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such
ineligibility, the Company's election pursuant to Section 2.05(c)(vii) hereof
shall no longer be effective with respect to the
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series of Notes evidenced by such Global Note and the Company shall execute, and
the Trustee, upon receipt of a Company Order for the authentication and delivery
of individual Notes of such series in exchange for such Global Note, shall
authenticate and deliver, individual Notes of such series of like tenor and
terms in definitive form in an aggregate principal amount equal to the amount of
the Global Note in exchange for such Global Note. The Trustee shall not be
charged with knowledge or notice of the ineligibility of a Depositary unless a
responsible officer assigned to and working in its corporate trustee
administration department shall have actual knowledge thereof.
(ii) The Company may at any time and in its sole discretion determine
that all (but not less than all) outstanding Notes of a series issued or
issuable in the form of one or more Global Notes shall no longer be represented
by such Global Note or Notes. In such event the Company shall execute, and the
Trustee, upon receipt of a Company Order for the authentication and delivery of
individual Notes in exchange for such Global Note, shall authenticate and
deliver individual Notes of like tenor and terms in definitive form in an
aggregate principal amount equal to the principal amount of such Global Note or
Notes in exchange for such Global Note or Notes.
(iii) In any exchange provided for in any of the preceding two paragraphs,
the Company will execute and the Trustee will authenticate and deliver
individual Notes in definitive registered form in authorized denominations.
Upon the exchange of a Global Note for individual Notes, such Global Note shall
be canceled by the Trustee. Notes issued in exchange for a Global Note pursuant
to this Section shall be registered in such names and in such authorized
denominations as the Depositary for such Global Note, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Notes to the Depositary for delivery to
the persons in whose names such Notes are so registered, or if the Depositary
shall refuse or be unable to deliver such Notes, the Trustee shall deliver such
Notes to the persons in whose names such Notes are registered, unless otherwise
agreed upon between the Trustee and the Company, in which event the Company
shall cause the Notes to be delivered to the persons in whose names such Notes
are registered.
(d) Neither the Company, the Trustee, any Authenticating Agent nor any
paying agent shall have any responsibility or liability for any aspect of the
records relating to, or payments made on account of beneficial ownership
interests of a Global Note or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interest.
(e) Pursuant to the provisions of this subsection, at the option of the
Trustee and upon 30 days' written notice to the Depositary but not prior to the
first Interest Payment Date of the respective Global Notes, the Depositary shall
be required to
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surrender any two or more Global Notes which have identical terms, including,
without limitation, identical maturities, interest rates and redemption
provisions (but which may have differing Original Issue Dates) to the Trustee,
and the Company shall execute, and the Trustee shall authenticate and deliver
to, or at the direction of, the Depositary, a Global Note in principal amount
equal to the aggregate principal amount of, and with all terms identical to, the
Global Notes surrendered thereto and that shall indicate each applicable
Original Issue Date and the principal amount applicable to each such Original
Issue Date. The exchange contemplated in this subsection shall be consummated
at least 30 days prior to any Interest Payment Date applicable to any of the
Global Notes surrendered to the Trustee. Upon any exchange of any Global Note
with two or more Original Issue Dates, whether pursuant to this Section or
pursuant to Section 2.06 or Section 3.03 hereof, the aggregate principal amount
of the Notes with a particular Original Issue Date shall be the same before and
after such exchange, after giving effect to any retirement of Notes and the
Original Issue Dates applicable to such Notes occurring in connection with such
exchange.
ARTICLE THREE
REDEMPTION OF NOTES
SECTION 3.01 APPLICABILITY OF ARTICLE
Such of the Notes as are, by their terms, redeemable prior to their stated
maturity date at the option of the Company, may be redeemed by the Company at
such times, in such amounts and at such prices as may be specified therein and
in accordance with the provisions of this Article Three.
SECTION 3.02 NOTICE OF REDEMPTION; SELECTION OF NOTES
(a) The election of the Company to redeem any Notes shall be evidenced by a
Board Resolution or a Company Order which shall be given with notice of
redemption to the Trustee at least 45 days (or such shorter period acceptable to
the Trustee in its sole discretion) prior to the redemption date specified in
such notice.
(b) Following receipt of the Company's notice pursuant to Section 3.02(a)
hereof, notice of redemption to each Holder of Notes to be redeemed as a whole
or in part shall be given by the Trustee, at the expense of the Company, in the
manner provided in Section 15.10 hereof, no less than 30 or more than 60 days
prior to the date fixed for redemption. Any notice which is given in the manner
herein provided shall be conclusively presumed to have been duly given, whether
or not the Noteholder receives the notice. In any case, failure duly to give
such notice, or any defect in such notice, to the Holder of any Note designated
for redemption as a whole
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or in part shall not affect the validity of the proceedings for the redemption
of any Note.
(c) Each such notice shall specify the date fixed for redemption, the
places of redemption and the redemption price at which such Notes are to be
redeemed, and shall state that payment of the redemption price of such Notes or
portion thereof to be redeemed will be made upon surrender of such Notes at such
places of redemption, that interest accrued to the date fixed for redemption
will be paid as specified in such notice, and that from and after such date
interest thereon shall cease to accrue. If less than all of a series of Notes
having the same terms are to be redeemed, the notice shall specify the Notes or
portions thereof to be redeemed. If any Note is to be redeemed in part only,
the notice which relates to such Note shall state the portion of the principal
amount thereof to be redeemed, and shall state that, upon surrender of such
Note, a new Note or Notes having the same terms in aggregate principal amount
equal to the unredeemed portion thereof will be issued.
(d) Unless otherwise provided by a supplemental indenture or Company Order
under Section 2.05 hereof, if less than all of a series of Notes having the same
terms are to be redeemed, the Trustee shall select pro rata or by lot, or in
such other manner as it shall deem appropriate and fair in its discretion the
particular Notes to be redeemed in whole or in part and shall thereafter
promptly notify the Company in writing of the Notes so to be redeemed. If less
than all of a series of Notes represented by a Global Note are to be redeemed,
the particular Notes or portions thereof of such series to be redeemed shall be
selected by the Depositary for such series of Notes in such manner as the
Depositary shall determine. Notes shall be redeemed only in denominations of
$1,000, provided that any remaining principal amount of a Note redeemed in part
shall be a denomination authorized under this Indenture.
(e) If at the time of the mailing of any notice of redemption the Company
shall not have irrevocably directed the Trustee to apply funds deposited with
the Trustee or held by it and available to be used for the redemption of Notes
to redeem all the Notes called for redemption, such notice, at the election of
the Company, may state that it is subject to the receipt of the redemption
moneys by the Trustee before the date fixed for redemption and that such notice
shall be of no effect unless such moneys are so received before such date.
SECTION 3.03 PAYMENT OF NOTES ON REDEMPTION; DEPOSIT OF REDEMPTION PRICE
(a) If notice of redemption for any Notes shall have been given as provided
in Section 3.02 hereof and such notice shall not contain the language permitted
at the
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Company's option under Section 3.02(e) hereof, such Notes or portions of Notes
called for redemption shall become due and payable on the date and at the places
stated in such notice at the applicable redemption price, together with interest
accrued to the date fixed for redemption of such Notes. Interest on the Notes
or portions thereof so called for redemption shall cease to accrue and such
Notes or portions thereof shall be deemed not to be entitled to any benefit
under this Indenture except to receive payment of the redemption price together
with interest accrued thereon to the date fixed for redemption. Upon
presentation and surrender of such Notes at such a place of payment in such
notice specified, such Notes or the specified portions thereof shall be paid and
redeemed at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption.
(b) If notice of redemption shall have been given as provided in Section
3.02 hereof and such notice shall contain the language permitted at the
Company's option under Section 3.02(e) hereof, such Notes or portions of Notes
called for redemption shall become due and payable on the date and at the places
stated in such notice at the applicable redemption price, together with interest
accrued to the date fixed for redemption of such Notes, and interest on the
Notes or portions thereof so called for redemption shall cease to accrue and
such Notes or portions thereof shall be deemed not to be entitled to any benefit
under this Indenture except to receive payment of the redemption price together
with interest accrued thereon to the date fixed for redemption; provided that,
in each case, the Company shall have deposited with the Trustee or a paying
agent on or prior to such redemption date an amount sufficient to pay the
redemption price together with interest accrued to the date fixed for
redemption. Upon the Company making such deposit and upon presentation and
surrender of such Notes at the place of payment in such notice specified, such
Notes or the specified portions thereof shall be paid and redeemed at the
applicable redemption price, together with interest accrued thereon to the date
fixed for redemption. If the Company shall not make such deposit on or prior to
the redemption date, the notice of redemption shall be of no force and effect
and the principal on such Notes or specified portions thereof shall continue to
bear interest as if the notice of redemption had not been given.
(c) No notice of redemption of Notes shall be mailed during the continuance
of any Event of Default, except (1) that, when notice of redemption of any Notes
has been mailed, the Company shall redeem such Notes but only if funds
sufficient for that purpose have prior to the occurrence of such Event of
Default been deposited with the Trustee or a paying agent for such purpose, and
(2) that notices of redemption of all outstanding Notes may be given during the
continuance of an Event of Default.
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(d) Upon surrender of any Note redeemed in part only, the Company shall
execute, and the Trustee shall authenticate, deliver and register, a new Note or
Notes of authorized denominations in aggregate principal amount equal to, and
having the same terms, Original Issue Date or Dates and series as, the
unredeemed portion of the Note so surrendered.
ARTICLE FOUR
PLEDGED FIRST MORTGAGE BONDS; PLEDGED
SUBSTITUTED MORTGAGE BONDS
[SECTION 4.01 DELIVERY OF INITIAL SERIES OF PLEDGED FIRST
MORTGAGE BONDS
Subject to the provisions of Section 4.10 and Article Five hereof, the
Company hereby delivers to the Trustee, in connection with the initial issuance
of the Initial Notes, Pledged First Mortgage Bonds bearing the designation
"First Mortgage Bonds, Pledged Series A due _________" in the aggregate
principal amount of $_________, fully registered in the name of the Trustee, in
trust for the benefit of the Holders from time to time of the Initial Notes as
security for any and all obligations of the Company under the Initial Notes,
including but not limited to, (1) the full and prompt payment of the principal
of and premium, if any, on the Initial Notes when and as the same shall become
due and payable in accordance with the terms and provisions of this Indenture or
the Initial Notes, either at the stated maturity thereof, upon acceleration of
the maturity thereof or upon redemption, and (2) the full and prompt payment of
any interest on the Initial Notes when and as the same shall become due and
payable in accordance with the terms and provisions of this Indenture or the
Initial Notes.]
[SECTION 4.02 RECEIPT
The Trustee acknowledges receipt of the Pledged First Mortgage Bonds
described in Section 4.01 hereof.]
SECTION 4.03 PLEDGED FIRST MORTGAGE BONDS HELD BY THE
TRUSTEE
The Trustee, as a Holder of Pledged First Mortgage Bonds, shall attend any
meeting of Bondholders under the applicable First Mortgage as to which it
receives due notice, or, at its option, shall deliver its proxy in connection
therewith. Either at such meeting, or otherwise where consent of Holders of
First Mortgage Bonds issued under the applicable First Mortgage is sought
without a meeting, the Trustee shall vote all of the Pledged] First Mortgage
Bonds held by it, or shall consent or withhold its consent with respect thereto,
as directed by the Holders of not less than a majority
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in the aggregate principal amount of the outstanding Notes; provided, however,
that the Trustee shall not be required to vote as such Holder of any particular
issue of Pledged First Mortgage Bonds in favor of, or give its consent to, any
action except upon notification by the Trustee to the Noteholders of the related
issue of Notes of such proposal and consent thereto of the Holders of not less
than a majority in aggregate principal amount of the outstanding Notes of such
issue.
SECTION 4.04 NO TRANSFER OF PLEDGED FIRST MORTGAGE BONDS;
EXCEPTION
Except as required to effect an assignment to a successor trustee under
this Indenture or pursuant to Section 4.05 or Section 4.07 hereof, the Trustee
shall not sell, assign or transfer the Pledged First Mortgage Bonds and the
Company shall issue stop transfer instructions to the Mortgage Trustee and any
transfer agent under the First Mortgage to effect compliance with this Section
4.04.
SECTION 4.05 DELIVERY TO THE COMPANY OF ALL PLEDGED FIRST
MORTGAGE BONDS
When the obligation of the Company to make payment with respect to the
principal of and premium, if any, and interest on the Pledged First Mortgage
Bonds shall be satisfied or deemed satisfied pursuant to Section 4.10 or Section
5.01(a) hereof, the Trustee shall, upon written request of the Company, deliver
to the Company all of the Pledged First Mortgage Bonds, together with such
appropriate instruments of transfer or release as may be reasonably requested by
the Company. All Pledged First Mortgage Bonds delivered to the Company in
accordance with this Section 4.05 shall be delivered by the Company to the
Mortgage Trustee for cancellation.
SECTION 4.06 FURTHER ASSURANCES
The Company, at its own expense, shall do such further lawful acts and
things, and execute and deliver such additional conveyances, assignments,
assurances, agreements and instruments, as may be necessary in order to better
assign, assure and confirm to the Trustee its interest in the Pledged First
Mortgage Bonds and for maintaining, protecting and preserving such interest.
SECTION 4.07 EXCHANGE AND SURRENDER OF PLEDGED FIRST
MORTGAGE BONDS
At any time at the written direction of the Company, the Trustee shall
surrender to the Company all or part of the Pledged First Mortgage Bonds in
exchange
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for Pledged First Mortgage Bonds equal in aggregate outstanding principal
amounts to, in different denominations than, but of the same series and with all
other terms identical to, the Pledged First Mortgage Bonds so surrendered to the
Company. In addition, at any time a Note shall cease to be entitled to any
lien, benefit or security under this Indenture pursuant to Section 5.01(b)
hereof, the Trustee shall surrender an equal principal amount of the related
issue of Pledged First Mortgage Bonds, subject to the limitations of this
Section 4.07, to the Company for cancellation. The Trustee shall, together with
such Pledged First Mortgage Bonds, deliver to the Company such appropriate
instruments of transfer or release as the Company may reasonably request. Prior
to the surrender required by this paragraph, the Trustee shall receive from the
Company, and (subject to Section 9.01 hereof) shall be fully protected in
relying upon, an Officers' Certificate stating (i) the aggregate outstanding
principal amount of the Pledged First Mortgage Bonds of the issue surrendered by
the Trustee, after giving effect to such surrender, (ii) the aggregate
outstanding principal amount of the related issue of Notes, (iii) that the
surrender of the Pledged First Mortgage Bonds will not result in any default
under this Indenture, and (iv) that any Pledged First Mortgage Bonds to be
received in exchange for the Pledged First Mortgage Bonds being surrendered
comply with the provisions of this Section.
The Company shall not be permitted to cause the surrender or exchange of
all or any part of an issue of Pledged First Mortgage Bonds contemplated in this
Section, if after such surrender or exchange, the aggregate outstanding
principal amount of the related issue of Notes would exceed the aggregate
outstanding principal amount of such issue of Pledged First Mortgage Bonds held
by the Trustee. Any Pledged First Mortgage Bonds received by the Company
pursuant to this Section 4.07 shall be delivered to the Mortgage Trustee for
cancellation.
SECTION 4.08 ACCEPTANCE OF ADDITIONAL PLEDGED FIRST
MORTGAGE BONDS
Upon the issuance of Notes hereunder (other than the Initial Notes referred
to in Section 4.01 hereof) at any time prior to the Substitution Date, the
Company shall deliver to the Trustee in trust for the benefit of the Holders of
the Notes as described in Section 4.10 hereof, and the Trustee shall accept
therefor, a related issue of Pledged First Mortgage Bonds registered in the name
of the Trustee conforming to the requirements of Section 4.09 hereof.
SECTION 4.09 TERMS OF PLEDGED FIRST MORTGAGE BONDS
Each issue of Pledged First Mortgage Bonds delivered to the Trustee
pursuant to Section 4.01 or Section 4.08 hereof shall have the same stated rate
or rates of interest (or interest calculated in the same manner), Interest
Payment Dates, stated
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maturity date and redemption provisions, and shall be in the same aggregate
principal amount, as the related issue of Notes.
SECTION 4.10 PLEDGED FIRST MORTGAGE BONDS AS SECURITY FOR
NOTES
Until the Substitution Date and subject to Article Five hereof, Pledged
First Mortgage Bonds delivered to the Trustee, in trust for the benefit of the
Holders of the related issue of Notes, shall serve as security for any and all
obligations of the Company under the related issue of Notes, including, but not
limited to (1) the full and prompt payment of the principal of and premium, if
any, on such related issue of Notes when and as the same shall become due and
payable in accordance with the terms and provisions of this Indenture or such
related issue of Notes, either at the stated maturity thereof upon acceleration
of the maturity thereof or upon redemption, and (2) the full and prompt payment
of any interest on such related issue of Notes when and as the same shall become
due and payable in accordance with the terms and provisions of this Indenture or
such related issue of Notes.
Notwithstanding anything in this Indenture to the contrary, from and after
the Substitution Date, the obligation of the Company to make payment with
respect to the principal of and premium, if any, and interest on the Pledged
First Mortgage Bonds shall be deemed satisfied and discharged as provided in the
supplemental trust indenture or indentures to the First Mortgage creating such
Pledged Mortgage Bonds and the Pledged First Mortgage Bonds shall cease to
secure in any manner Notes theretofore or subsequently issued. From and after
the Substitution Date, any conditions to the issuance of Notes that refer or
relate to Pledged First Mortgage Bonds or the First Mortgage shall be
inapplicable. Following the Substitution Date, the Company shall cause each
First Mortgage to be closed and the Company shall not issue any additional First
Mortgage Bonds or Pledged First Mortgage Bonds under either First Mortgage.
Notice of the occurrence of the Substitution Date shall be given by the Trustee
to the Holders of the Notes in the manner provided in Section 15.10 hereof not
later than 30 days after the Company notifies the Trustee of the occurrence of
the Substitution Date.
SECTION 4.11 PLEDGED SUBSTITUTED MORTGAGE BONDS
(a) The Company shall notify the Trustee not less than 90 days prior to the
Substitution Date that the Company has determined to deliver to the Trustee on
the Substitution Date Pledged Substituted Mortgage Bonds in an aggregate
principal amount equal to the aggregate principal amount of Notes outstanding on
the Substitution Date in trust for the benefit of the Holders from time to time
of the Notes issued under this Indenture as security for any and all obligations
of the Company
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under the Notes, including but not limited to, (1) the full and prompt payment
of the principal of and premium, if any, on the Notes when and as the same shall
become due and payable in accordance with the terms and provisions of this
Indenture or the Notes, either at the stated maturity thereof, upon acceleration
of the maturity thereof or upon redemption, and (2) the full and prompt payment
of any interest on the Notes when and as the same shall become due and payable
in accordance with the terms and provisions of this Indenture or the Notes.
(b) The Pledged Substituted Mortgage Bonds to be delivered pursuant to the
notice described in Section 4.11(a) shall be delivered in separate series and
issues corresponding to the series and issues of Notes outstanding on the
Substitution Date, each issue of Pledged Substituted Mortgage Bonds having the
same stated rate or rates of interest (or interest calculated in the same
manner), Interest Payment Dates, stated maturity date and redemption provisions,
and in the same aggregate principal amount, as the related issue of Notes
outstanding on the Substitution Date.
(c) The notice described in Section 4.11(a), shall also state that on the
Substitution Date the Company shall deliver to the Trustee a supplemental
indenture to this Indenture that will provide, among other things, that upon the
issuance of Notes hereunder on or after the Substitution Date, the Company shall
deliver to the Trustee in trust for the benefit of the Holders as described in
Section 4.11(a) hereof, and the Trustee shall accept therefor, a related issue
of Pledged Substituted Mortgage Bonds registered in the name of the Trustee and
conforming to the requirements therein specified.
(d) The determination whether to deliver Pledged Substituted Mortgage Bonds
shall be made in the Company's sole discretion and without any obligation to do
so.
(e) In the event that the Company does not deliver the notice described in
Section 4.11(a), the Notes outstanding on the Substitution Date shall, as of the
Substitution Date, no longer be entitled to the benefit of the pledge of the
Pledged Mortgage Bonds and shall thereafter be general unsecured obligations of
the Company.
ARTICLE FIVE
SATISFACTION AND DISCHARGE; UNCLAIMED MONEYS
SECTION 5.01 SATISFACTION AND DISCHARGE
(a) If at any time:
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(1) the Company shall have paid or caused to be paid the principal of and
premium, if any, and interest on all the outstanding Notes, as and when the same
shall have become due and payable,
(2) the Company shall have delivered to the Trustee for cancellation all
outstanding Notes, or
(3) the Company shall have irrevocably deposited or caused to be
irrevocably deposited with the Trustee as trust funds the entire amount in (A)
cash, (B) U.S. Government Obligations maturing as to principal and interest in
such amounts and at such times as will insure the availability of cash, or (C) a
combination of cash and U.S. Government Obligations, in any case sufficient,
without reinvestment, as certified by an independent public accounting firm of
national reputation in a written certification delivered to the Trustee, to pay
at maturity or the applicable redemption date (provided that notice of
redemption shall have been duly given or irrevocable provision satisfactory to
the Trustee shall have been duly made for the giving of any notice of
redemption) all outstanding Notes, including principal and any premium and
interest due or to become due to such date of maturity, as the case may be,
and if, in any such case, the Company shall also pay or cause to be paid all
other sums payable hereunder by the Company, then this Indenture shall cease to
be of further effect (except as to (i) rights of registration of transfer and
exchange of Notes, (ii) substitution of mutilated, defaced, destroyed, lost or
stolen Notes, (iii) rights of Noteholders to receive payments of principal
thereof and any premium and interest thereon, upon the original stated due dates
therefor or upon the applicable redemption date (but not upon acceleration of
maturity) from the moneys and U.S. Government Obligations held by the Trustee
pursuant to Section 5.02 hereof, (iv) the rights and immunities of the Trustee
hereunder, (v) the rights of the Holders of Notes as beneficiaries hereof with
respect to the property so deposited with the Trustee payable to all or any of
them, (vi) the obligations and rights of the Trustee and the Company under
Section 5.04 hereof, and (vii) the duties of the Trustee with respect to any of
the foregoing), and the Company shall be deemed to have paid and discharged the
entire indebtedness represented by, and its obligations under, the Notes, and
the Trustee, on demand of the Company and at the cost and expense of the
Company, shall execute proper instruments acknowledging such satisfaction of and
discharging this Indenture and the Trustee shall at the request of the Company
return to the Company all Pledged First Mortgage Bonds and all Pledged
Substituted Mortgage Bonds and all other property and money held by it under
this Indenture and determined by it from time to time in accordance with the
certification pursuant to this Section 5.01(a)(3) to be in excess of the amount
required to be held under this Section.
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If the Notes are deemed to be paid and discharged pursuant to this Section
5.01(a)(3) within 15 days after those Notes are so deemed to be paid and
discharged, the Trustee shall cause a written notice to be given to each Holder
in the manner provided by Section 15.10 hereof. The notice shall:
(i) state that the Notes are deemed to be paid and discharged;
(ii) set forth a description of any U.S. Government Obligations and cash
held by the Trustee as described above;
(iii) if any Notes will be called for redemption, specify the date or
dates on which those Notes are to be called for redemption.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 9.06 hereof shall
survive.
If the Notes are deemed paid and discharged pursuant to this Section 5.01,
the obligation of the Company to make payment with respect to the principal of
and premium, if any, and interest on the related issue of Pledged First Mortgage
Bonds or the related issue of Pledged Substituted Mortgage Bonds shall be
satisfied and discharged and the related issue of Pledged First Mortgage Bonds
or the related issue of Pledged Substituted Mortgage Bonds shall cease to secure
the Notes in any manner.
(b) If at any time:
(1) the Company shall have paid or caused to be paid the principal of
and premium, if any, and interest on any Note, as and when the same shall have
become due and payable,
(2) the Company shall have delivered to the Trustee for cancellation any
outstanding Note, or
(3) the Company shall have irrevocably deposited or caused to be
irrevocably deposited with the Trustee as trust funds the entire amount in (A)
cash, (B) U.S. Government Obligations maturing as to principal and interest in
such amounts and at such times as will insure the availability of cash, or (C) a
combination of cash and U.S. Government Obligations, in any case sufficient,
without reinvestment, as certified by an independent public accounting firm of
national reputation in a written certification delivered to the Trustee, to pay
at maturity or the applicable redemption date (provided that notice of
redemption shall have been duly given or irrevocable provision satisfactory to
the Trustee shall have been duly made for the giving of any notice of
redemption) any outstanding Note, including principal
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and any premium and interest due or to become due to such date of maturity, as
the case may be,
such Note shall cease to be entitled to any lien, benefit or security under this
Indenture. Upon a Note ceasing to be entitled to any lien, benefit or security
under this Indenture, the obligation of the Company to make payment with respect
to principal of and premium, if any, and interest on a principal amount of the
related issue of Pledged First Mortgage Bonds or the related issue of Pledged
Substituted Mortgage Bonds equal to the principal amount of such Note shall be
satisfied and discharged and such portion of the principal amount of such
Pledged First Mortgage Bonds or Pledged Substituted Mortgage Bonds shall cease
to secure the Notes in any manner.
SECTION 5.02 DEPOSITED MONEYS TO BE HELD IN TRUST BY
TRUSTEE
All moneys and U.S. Government Obligations deposited with the Trustee
pursuant to Section 5.01 hereof shall be held in trust and applied by it to the
payment, either directly or through any paying agent (including the Company if
acting as its own paying agent), to the Holders of the particular Notes for the
payment or redemption of which such moneys and U.S. Government Obligations have
been deposited with the Trustee of all sums due and to become due thereon for
principal and premium, if any, and interest.
SECTION 5.03 PAYING AGENT TO REPAY MONEYS HELD
Upon the satisfaction and discharge of this Indenture all moneys then held
by any paying agent for the Notes (other than the Trustee) shall, upon written
demand by an Authorized Agent, be repaid to the Company or paid to the Trustee,
and thereupon such paying agent shall be released from all further liability
with respect to such moneys.
SECTION 5.04 RETURN OF UNCLAIMED MONEYS
Any moneys deposited with or paid to the Trustee for payment of the
principal of or any premium or interest on any Notes and not applied but
remaining unclaimed by the Holders of such Notes for one year after the date
upon which the principal of or any premium or interest on such Notes, as the
case may be, shall have become due and payable, shall be repaid to the Company
by the Trustee on written demand by an Authorized Agent, and all liability of
the Trustee shall thereupon cease; and any Holder of any of such Notes shall
thereafter look only to the Company for any payment which such Holder may be
entitled to collect.
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ARTICLE SIX
PARTICULAR COVENANTS OF THE COMPANY
SECTION 6.01 PAYMENT OF PRINCIPAL PREMIUM AND INTEREST
The Company covenants and agrees for the benefit of the Holders of the
Notes that it will duly and punctually pay or cause to be paid the principal of
and any premium and interest on each of the Notes at the places, at the
respective times and in the manner provided in such Notes or in this Indenture.
SECTION 6.02 OFFICE FOR NOTICES AND PAYMENTS, ETC.
So long as any of the Notes remain outstanding, the Company at its option
may cause to be maintained in the Borough of Manhattan, The City of New York, or
elsewhere, an office or agency where the Notes may be presented for registration
of transfer and for exchange as in this Indenture provided, and where, at any
time when the Company is obligated to make a payment of principal and premium
upon Notes, the Notes may be surrendered for payment, and may maintain at any
such office or agency and at its principal office an office or agency where
notices and demands to or upon the Company in respect of the Notes or of this
Indenture may be served. The designation of any such office or agency shall be
made by Company Order pursuant to Section 2.05 hereof or at any subsequent time
pursuant to this Section 6.02. The Company will give to the Trustee written
notice of the location of each such office or agency and of any change of
location thereof. If the Company shall fail to give such notice of the location
or of any change in the location of any such office or agency, presentations may
be made and notices and demands may be served at the corporate trust office of
the Trustee.
SECTION 6.03 APPOINTMENTS TO FILL VACANCIES IN TRUSTEE'S
OFFICE
The Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 9.11 hereof, a Trustee
so that there shall at all times be a Trustee hereunder.
SECTION 6.04 PROVISION AS TO PAYING AGENT
The Trustee shall be the paying agent for the Notes and, at the option of
the Company, the Company may appoint additional paying agents (including without
limitation itself). Whenever the Company shall appoint an additional paying
agent, it
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shall cause such paying agent to execute and deliver to the Trustee an
instrument in which such agent shall agree with the Trustee, subject to this
Section 6.04:
(1) that it will hold in trust for the benefit of the Holders and the
Trustee all sums held by it as such agent for the payment of the principal of
and any premium or interest on the Notes (whether such sums have been paid to it
by the Company or by any other obligor on such Notes) in trust for the benefit
of the Holders of such Notes;
(2) that it will give to the Trustee notice of any failure by the Company
(or by any other obligor on such Notes) to make any payment of the principal of
and any premium or interest on such Notes when the same shall be due and
payable; and
(3) that it will 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.
If the Company shall act as its own paying agent with respect to any Notes,
it will, on or before each due date of the principal of and any premium or
interest on such Notes, set aside, segregate and hold in trust for the benefit
of the Holders of such Notes a sum sufficient to pay such principal and any
premium or interest so becoming due and will notify the Trustee of any failure
by it to take such action and of any failure by the Company (or by any other
obligor on such Notes) to make any payment of the principal of and any premium
or interest on such Notes when the same shall become due and payable.
Whenever the Company shall have one or more paying agents, it will, on or
prior to each due date of the principal of (and premium, if any) or interest, if
any, on any Notes, deposit with such paying agent a sum sufficient to pay the
principal (and premium, if any) or interest, if any, so becoming due, such sum
to be held in trust for the benefit of the Persons entitled to such principal,
premium or interest, if any, and (unless such paying agent is the Trustee) the
Company shall promptly notify the Trustee of any failure on its part to so act.
Anything in this Section 6.04 to the contrary notwithstanding, the Company
may, at any time, for the purpose of obtaining a satisfaction and discharge of
this Indenture, or for any other reason, pay or cause to be paid to the Trustee
all sums held in trust by it or any paying agent hereunder, as required by this
Section 6.04, such sums to be held by the Trustee upon the trusts herein
contained.
Anything in this Section 6.04 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 6.04 is subject to
Sections 5.03 and 5.04 hereof.
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SECTION 6.05 OPINIONS OF COUNSEL
The Company will cause this Indenture, any indentures supplemental to this
Indenture, and any financing or continuation statements to be promptly recorded
and filed and rerecorded and refiled in such manner and in such places, as may
be required by law in order fully to preserve, protect and perfect the security
of the Noteholders and all rights of the Trustee, and shall deliver to the
Trustee:
(a) promptly after the execution and delivery of this Indenture and of any
indenture supplemental to this Indenture, an Opinion of Counsel either stating
that, in the opinion of such counsel, this Indenture or such supplemental
indenture and any financing or continuation statements have been properly
recorded and filed so as to make effective and to perfect the interest of the
Trustee intended to be created by this Indenture for the benefit of the Holders
from time to time of the Notes in the Pledged First Mortgage Bonds or the
Pledged Substituted Mortgage Bonds, and reciting the details of such action, or
stating that, in the opinion of such counsel, no such action is necessary to
perfect or make such interest effective and stating what, if any, action of the
foregoing character may reasonably be expected to become necessary prior to the
next succeeding May 1 to maintain, perfect and make such interest effective; and
(b) on or before May 1 of each year, beginning in 1998, and prior to the
Substitution Date, an Opinion of Counsel either stating that in the opinion of
such counsel such action has been taken, since the date of the most recent
Opinion of Counsel furnished pursuant to this Section 6.05(b) or the first
Opinion of Counsel furnished pursuant to Section 6.05(a) hereof, with respect to
the recording, filing, rerecording, or refiling of this Indenture, each
supplemental indenture and any financing or continuation statements, as is
necessary to maintain and perfect the interest of the Trustee intended to be
created by this Indenture for the benefit of the Holders from time to time of
the Notes in the Pledged First Mortgage Bonds or the Pledged Substituted
Mortgage Bonds, and reciting the details of such action, or stating that in the
opinion of such counsel no such action is necessary to maintain and perfect such
interest and stating what, if any, action of the foregoing character may
reasonably be expected to become necessary prior to the next succeeding May 1 to
maintain, perfect and make such security interest effective.
SECTION 6.06 CERTIFICATES AND NOTICE TO TRUSTEE
The Company shall, on or before May 1 of each year, beginning in 1998,
deliver to the Trustee a certificate from its principal executive officer,
principal financial officer or principal accounting officer covering the
preceding calendar year and stating whether or not, to the knowledge of such
party, the Company has complied with all conditions and covenants under this
Indenture, and, if not,
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describing in reasonable detail any failure by the Company to comply with any
such conditions or covenants. For purposes of this Section, compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture.
SECTION 6.07 NEGATIVE COVENANTS
(a) The Company will not issue any additional series of first mortgage
bonds under either First Mortgage, other than Pledged First Mortgage Bonds.
(b) On and after the Substitution Date, if and only if no Pledged
Substituted Mortgage Bonds have been delivered to the Trustee, the Company will
not create, assume, incur or suffer to exist any Mortgage upon any Principal
Property, whether owned or leased on the Substitution Date or thereafter
acquired, to secure any Debt of the Company or any other Person (other than the
Notes), without in any such case making effective provision whereby all of the
Notes outstanding hereunder (other than such Notes, if any, which shall by their
terms be expressly excluded from the operation of this Section 6.07) shall be
directly secured equally and ratably with such Debt, excluding, however, from
the operation of the foregoing provisions:
(i) any Mortgage upon property existing at the time of acquisition
thereof (but excluding any extension thereof or addition thereto unless the
terms of the Mortgage as of the date of the acquisition of such property provide
that such Mortgage shall be secured by such extensions or additions);
(ii) any Mortgage to secure the payment of all or any part of the
purchase price of property or to secure any Debt incurred prior to, at the time
of or within 180 days after the acquisition of such property for the purpose of
financing all or any part of the purchase price thereof;
(iii) any Mortgage secured by property used in the generation of
electricity;
(iv) any Mortgage existing at the date of this Indenture;
(v) any Permitted Encumbrance; and
(vi) any extension, renewal of replacement (or successive
extensions, renewals or replacements) in whole or in part of any Mortgage
referred to in any of the foregoing clauses (i) to (v), inclusive; provided,
--------
however, that the principal amount of Debt secured thereby shall not exceed the
-------
principal amount of Debt (plus any premium or fee payable in connection with
such extension, renewal or replacement) so secured at the time of such
extension, renewal or replacement; and
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provided, further, that such Mortgage shall be limited to all or such part of
-------- -------
the property which was subject to the Mortgage so extended, renewed or replaced
(plus improvements on such property).
Notwithstanding the foregoing provisions of this Section 6.07(b), the
Company may create, assume, incur or suffer to exist any Mortgage upon any
Principal Property which is not excepted by any of clauses (i) through (vi)
above without equally and ratably securing the Notes, provided that the
aggregate amount of all Debt then outstanding secured by such Mortgage and all
similar Mortgages, together with all net sale proceeds from Sale-Leaseback
Transactions (as defined in Section 6.07(c)) which are not permitted pursuant to
clauses (i) or (ii) of Section 6.07(c), does not exceed 15% of the total
consolidated capitalization of the Company as shown on the audited consolidated
balance sheet contained in the latest annual report to shareholders of the
Company. For the purposes of this Section 6.07(b), any Mortgage in favor of the
United States of America or any States thereof, or any other country, or any
political subdivision of any of the foregoing, to secure partial, progress,
advance or other payments pursuant to the provisions of any contract or statute,
or any Mortgage securing industrial development, pollution control or similar
revenue bonds shall not be deemed to create a Mortgage to secure any Debt.
(c) On and after the Substitution Date, if and only if no Pledged
Substituted Mortgage Bonds have been delivered to the Trustee, the Company will
not sell or transfer any Principal Property, with the Company taking back a
lease of such Principal Property (a "Sale-Leaseback Transaction"), unless (i)
such Sale-Leaseback Transaction occurs within 180 days from the date of
acquisition of such Principal Property or the date of the completion of
construction or commencement of full operations on such Principal Property,
whichever is later, or (ii) the Company, within 120 days after such Sale-
Leaseback Transaction, applies or causes to be applied to the retirement of Debt
of the Company (other than Debt of the Company which by its terms or the terms
of the instrument pursuant to which it was issued is subordinate in right of
payment to the Notes) an amount not less than the net proceeds of the sale of
such Principal Property.
Notwithstanding the foregoing provisions of this Section 6.07(c), the
Company may effect any Sale-Leaseback Transaction involving any Principal
Property, provided that the net sale proceeds from such Sale-Leaseback
Transaction, together with all other Sale-Leaseback Transactions which are not
permitted pursuant to clauses (i) or (ii) of the foregoing paragraph and all
Debt secured by Mortgages not specifically excluded pursuant to any of clauses
(i) through (vi) of Section 6.07(b) from the operation of Section 6.07(b), does
not exceed 15% of the total capitalization of the Company as shown on the
audited consolidated balance sheet contained in the
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latest Annual Report on Form 10-K filed with the SEC. The provisions of this
Section 6.07(c) shall also not prevent any Sale-Leaseback Transaction involving
a lease for a period, including renewals, of not more than 36 months.
ARTICLE SEVEN
NOTEHOLDER LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 7.01 NOTEHOLDER LISTS
(a) The Company shall furnish or cause to be furnished to the Trustee
semiannually, not later than 15 days after each Regular Record Date for each
Interest Payment Date that is not a maturity date and at such other times as
such Trustee may request in writing, within 30 days after receipt by the Company
of any such request, a list in such form as the Trustee may reasonably require
containing all the information in the possession or control of the Company, or
any paying agents other than the Trustee, as to the names and addresses of the
Holders of Notes, obtained since the date as of which the next previous list, if
any, was furnished. Any such list may be dated as of a date not more than 15
days prior to the time such information is furnished or caused to be furnished
and need not include information received after such date; provided that as long
as the Trustee is the registrar for the Notes, no such list shall be required to
be furnished. The Trustee shall preserve any list provided to it pursuant to
this Section until such time as the Company or any paying agent, as applicable,
shall provide it with a more recent list.
(b) Within five Business Days after the receipt by the Trustee of a written
application by any three or more Holders stating that the applicants desire to
communicate with other Holders with respect to their rights under the Indenture
or under the Notes, and accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, and by reasonable proof
that each such applicant has owned a Note for a period of at least six months
preceding the date of such application, the Trustee shall, at its election,
either:
(i) afford to such applicants access to all information furnished to or
received by the Trustee pursuant to Section 7.01(a) hereof or, if applicable, in
its capacity as registrar for the Notes; or
(ii) inform such applicants as to the approximate number of Holders
according to the most recent information furnished to or received by the Trustee
under Section 7.01(a) hereof or if applicable in its capacity as registrar for
the Notes, and as
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to the approximate cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder of Notes a copy of the form of proxy or other communication
which is specified in such request, with reasonable promptness after a tender to
the Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of such mailing, unless within five days
after such tender the Trustee shall mail to such applicants and file with the
SEC, together with a copy of the material to be mailed, a written statement to
the effect that, in the opinion of the Trustee, such mailing would be contrary
to the best interests of the Holders or would be in violation of applicable law.
Such written statement shall specify the basis of such opinion. If the SEC,
after opportunity for a hearing upon the objections specified in the written
statement so filed, shall enter an order refusing to sustain any of such
objections or after the entry of an order sustaining one or more of such
objections, the SEC shall find, after notice and opportunity for hearing, that
all the objections so sustained have been met and shall enter an order so
declaring, the Trustee shall mail copies of such material to all Holders with
reasonable promptness after the entry of such order and the renewal of such
tender; otherwise the Trustee shall be relieved of any obligation or duty to
such applicants respecting their application.
(c) Every Holder of a Note, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee nor any
paying agent nor any Authenticating Agent shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
Holders in accordance with this Section, regardless of the source from which
such information was derived, and that the Trustee shall not be held accountable
by reason of mailing any material pursuant to a request made under this Section.
SECTION 7.02 SECURITIES AND EXCHANGE COMMISSION REPORTS
The Company shall:
(a) file with the Trustee, within 15 days after the Company is required to
file the same with the SEC, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the foregoing
as the SEC may from time to time by rules and regulations prescribe) which the
Company may be required to file with the SEC pursuant to Section 13 or Section
15(d) of the Exchange Act; or, if the Company is not required to file
information, documents or reports pursuant to either of said Sections, then it
will file with the Trustee and the
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SEC, in accordance with rules and regulations prescribed from time to time by
the SEC, such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Exchange Act in
respect of a security listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and regulations;
(b) file with the Trustee and the SEC, in accordance with rules and
regulations prescribed from time to time by the SEC, such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations, including, in the case of annual reports,
if required by such rules and regulations, certificates or opinions of
independent public accountants, conforming to the requirements of Section 15.05
hereof, as to compliance with conditions or covenants, compliance with which is
subject to verification by accountants; and
(c) transmit by mail to all Holders, as their names and addresses appear in
the register, within 30 days after the filing thereof with the Trustee, such
summaries of any information, documents and reports required to be filed by the
Company pursuant to paragraphs (a) and (b) of this Section as may be required by
rules and regulations prescribed from time to time by the SEC.
SECTION 7.03 REPORTS BY THE TRUSTEE
(a) Within 60 days after May 15 of each year, beginning with the May 15
after the first issuance of Notes hereunder, the Trustee shall transmit by mail
a brief report dated as of such date that complies with Section 313(a) of the
TIA (to the extent required by such Section).
(b) The Trustee shall from time to time transmit by mail brief reports that
comply, both in content and date of delivery, with Section 313(b) of the TIA (to
the extent required by such Section).
(c) A copy of each such report filed pursuant to this section shall, at the
time of such transmission to such Holders, be filed by the Trustee with each
stock exchange upon which any Notes are listed and also with the SEC. The
Company will notify the Trustee promptly upon the listing of such Notes on any
stock exchange.
(d) Reports pursuant to this Section shall be transmitted
(1) by mail to all Holders of Notes, as their names and addresses appear in
the register for the Notes;
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(2) by mail to such Holders of Notes as have, within the two years
preceding such transmission, filed their names and addresses with the Trustee
for such purpose;
(3) by mail, except in the case of reports pursuant to Section 7.03(b) and
(c) hereof, to all Holders of Notes whose names and addresses have been
furnished to or received by the Trustee pursuant to Section 7.01 hereof; and
(4) at the time such report is transmitted to the Holders of the Notes, to
each exchange on which Notes are listed and also with the SEC.
ARTICLE EIGHT
REMEDIES OF THE TRUSTEE AND
NOTEHOLDERS ON EVENTS OF DEFAULT
SECTION 8.01 EVENTS OF DEFAULT
(a) If one or more of the following Events of Default shall have occurred
and be continuing:
(1) default in the payment of any installment of interest upon any of the
Notes as and when the same shall become due and payable, and continuance of such
default for a period of 30 days;
(2) default in the payment of the principal of or premium, if any, on any
of the Notes as and when the same shall become due and payable and continuance
of such default for five days;
(3) failure on the part of the Company duly to observe or perform any other
of the covenants or agreements on the part of the Company contained in the Notes
or in this Indenture for a period of 90 days after the date on which written
notice of such failure, requiring the same to be remedied and stating that such
notice is a "Notice of Default" hereunder, shall have been given to the Company
by the Trustee by registered mail, or to the Company and the Trustee by the
Holders of at least a majority in aggregate principal amount of the Notes at the
time outstanding;
(4) prior to the Substitution Date, a default (as defined in either of the
First Mortgages under which Pledged First Mortgage Bonds are outstanding) has
occurred and is continuing, and the applicable Mortgage Trustee or Holders of at
least a majority in aggregate principal amount of the Notes at the time
outstanding shall have given written notice thereof to the Trustee;
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(5) if any Pledged Substituted Mortgage Bonds are outstanding, a default
(as defined in the Substituted Mortgage) has occurred and is continuing, and the
Mortgage Trustee or Holders of at least a majority in aggregate principal amount
of the Notes at the time outstanding shall have given written notice thereof to
the Trustee;
(6) the entry of a decree or order by a court having jurisdiction over the
Company for relief in respect of the Company under the United States Bankruptcy
Code, 11 U.S.C. (S)(S) 101-1330, as now constituted or hereafter amended (the
"Bankruptcy Code"), or any other applicable federal or state bankruptcy,
insolvency or other similar law, or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or similar official of the Company or of any
substantial part of its property, or ordering the winding up or liquidation of
its affairs, and the continuance of any such decree or order unstayed and in
effect for a period of 60 consecutive days; or
(7) the filing by the Company with respect to itself or its property of a
petition or answer or consent seeking relief under the Bankruptcy Code, or any
other applicable federal or state bankruptcy, insolvency or other similar law,
or the consent by it to the institution of proceedings thereunder or to the
filing of any such petition or to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Company or of any substantial part of its property, or
the failure of the Company generally to pay its debts as such debts become due,
or the taking of corporate action by the Company to effectuate any such action;
then and in each and every such case, unless the principal of all of the Notes
shall have already become due and payable, either the Trustee or the Holders of
a majority in aggregate principal amount of the Notes then outstanding, by
notice in writing to the Company (and to the Trustee if given by Noteholders),
may declare the principal of all the Notes to be due and payable immediately and
upon any such declaration the same shall become and shall be immediately due and
payable, anything in this Indenture or in the Notes contained to the contrary
notwithstanding and, upon the Notes being declared to be due and payable, the
Trustee shall immediately file with the Mortgage Trustee a written demand for
redemption of all Pledged First Mortgage Bonds pursuant to the applicable
provisions of the First Mortgage or, if applicable, a written demand for
redemption of all Pledged Substituted Mortgage Bonds pursuant to the applicable
provisions of the Substituted Mortgage. This provision, however, is subject to
the condition that if, at any time after the principal of the Notes shall have
been so declared due and payable, and before any judgment or decree for the
payment of the moneys due shall have been obtained or entered as hereinafter
provided and
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prior to the mailing to the Trustee by the Mortgage Trustee of a firm, valid and
unconditional notice to the Trustee of the acceleration of all of the first
mortgage bonds issued and outstanding under the First Mortgage or the
Substituted Mortgage, the Company shall pay or shall deposit with the Trustee a
sum sufficient to pay all matured installments of interest upon all of the Notes
and the principal of and any premium on any and all Notes which shall have
become due otherwise than by acceleration (with interest on overdue installments
of interest, to the extent that payment of such interest is enforceable under
applicable law, and on such principal and applicable premium at the rate borne
by the Notes to the date of such payment or deposit) and all sums paid or
advanced by the Trustee hereunder, the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 9.06 hereof and any and all defaults under
this Indenture, other than the non-payment of principal of and accrued interest
on Notes which shall have become due solely by acceleration of maturity, shall
have been cured or waived (including any defaults under the First Mortgage, as
evidenced by notice thereof from the Mortgage Trustee to the Trustee), then and
in every such case such payment or deposit shall cause an automatic waiver of
the Event of Default and its consequences (including, if given, the written
demand for redemption of all Pledged First Mortgage Bonds or, if applicable, all
Pledged Substituted Mortgage Bonds) and shall cause an automatic rescission and
annulment of the acceleration of the Notes; but no such waiver or rescission and
annulment shall extend to or shall affect any subsequent default, or shall
impair any right consequent thereon.
(b) If the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the Company and
the Trustee shall be restored respectively to their several positions and rights
hereunder, and all rights, remedies and powers of the Company and the Trustee
shall continue as though no such proceeding had been taken.
SECTION 8.02 ENFORCEMENT BY TRUSTEE
(a) If there shall be pending proceedings for the bankruptcy or for the
reorganization of the Company or any other obligor on the Notes under the
Bankruptcy Code or any other applicable law, or in case a receiver or trustee
shall have been appointed for the property of the Company or such other obligor,
or in the case of any similar judicial proceedings relative to the Company or
other obligor on the Notes, or to the creditors or property of the Company or
such other obligor, the Trustee, irrespective of whether the principal of the
Notes shall then be due and
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payable as therein expressed or by declaration or otherwise, shall be entitled
and empowered, by intervention in such proceedings or otherwise, to file and
prove a claim or claims for the whole amount of principal and any premium and
interest owing and unpaid in respect of the Notes, and, in case of any judicial
proceedings, to file such proofs of claim and other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee (including,
prior to the Substitution Date, any claims of the Trustee as holder of Pledged
First Mortgage Bonds or, if applicable, on and after the Substitution Date, any
claims of the Trustee as holder of Pledged Substituted Mortgage Bonds, and
including any amounts due to the Trustee under Section 9.06 hereof) and of the
Holders of Notes allowed in such judicial proceedings relative to the Company or
any other obligor on the Notes, its or their creditors, or its or their
property, and to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute the same after the deduction
of its charges and expenses.
(b) All claims and rights of action under this Indenture, or under any of
the Notes, may be enforced by the Trustee without the possession of any of the
Notes, or the production thereof in any trial or other proceeding relative
thereto, and any such suit or proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall be for the ratable benefit of the Holders of the Notes in respect
of which such action was taken.
(c) Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or to accept or adopt on behalf of any Noteholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Notes or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Noteholder in any such proceeding.
SECTION 8.03 APPLICATION OF MONEYS COLLECTED BY TRUSTEE
Any moneys collected by the Trustee with respect to any of the Notes
pursuant to this Article shall be applied in the order following, at the date or
dates fixed by the Trustee for the distribution of such moneys, upon
presentation of the several Notes, and stamping thereon the payment, if only
partially paid, and upon surrender thereof if fully paid.
FIRST: To the payment of all amounts due to the Trustee pursuant to
Section 9.06 hereof;
SECOND: If the principal of the outstanding Notes in respect of which such
moneys have been collected shall not have become due and be unpaid, to the
payment of interest on the Notes, in the order of the maturity of the
installments of such
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interest, with interest (to the extent allowed by law and to the extent that
such interest has been collected by the Trustee) upon the overdue installments
of interest at the rate borne by the Notes, such payments to be made ratably to
the persons entitled thereto, and then to the payment to the Holders entitled
thereto of the unpaid principal of and applicable premium on any of the Notes
which shall have become due (other than Notes previously called for redemption
for the payment of which moneys are held pursuant to the provisions of this
Indenture), whether at stated maturity or by redemption, in the order of their
due dates, beginning with the earliest due date, and if the amount available is
not sufficient to pay in full all Notes due on any particular date, then to the
payment thereof ratably, according to the amounts of principal and applicable
premium due on that date, to the Holders entitled thereto, without any
discrimination or privilege;
THIRD: If the principal of the outstanding Notes in respect of which such
moneys have been collected shall have become due, by declaration or otherwise,
to the payment of the whole amount then owing and unpaid upon the Notes for
principal and premium, if any, and interest thereon, with interest on the
overdue principal and any premium and (to the extent allowed by law and to the
extent that such interest has been collected by the Trustee) upon overdue
installments of interest at the rate borne by the Notes; and in case such moneys
shall be insufficient to pay in full the whole amount so due and unpaid upon the
Notes, then to the payment of such principal and any premium and interest
without preference or priority of principal and any premium over interest, or of
interest over principal and any premium or of any installment of interest over
any other installment of interest, or of any Note over any other Note, ratably
to the aggregate of such principal and premium, if any, and accrued and unpaid
interest; and
FOURTH: to the payment of the remainder, if any, to the Company or its
successors or assigns, or to whomsoever may lawfully be entitled to the same, or
as a court of competent jurisdiction may determine.
SECTION 8.04 PROCEEDINGS BY NOTEHOLDERS
(a) No Holder of any Note shall have any right by virtue of or by availing
of any provision of this Indenture to institute any suit, action or proceeding
in equity or at law upon or under or with respect to this Indenture or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
such Holder previously shall have given to the Trustee written notice of an
Event of Default with respect to such Note and of the continuance thereof, as
hereinabove provided, and unless also Noteholders of a majority in aggregate
principal amount of the Notes then outstanding affected by such Event of Default
shall have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as Trustee hereunder and
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shall have offered to the Trustee such reasonable indemnity as it may require
against the costs, expenses and liabilities to be incurred therein or thereby,
and the Trustee for 60 days after its receipt of such notice, request and offer
of indemnity, shall have neglected or refused to institute any such action, suit
or proceeding.
(b) Notwithstanding any other provision in this Indenture, however, the
rights of any Holder of any Note to receive payment of the principal of and any
premium and interest on such Note, on or after the respective due dates
expressed in such Note or on the applicable redemption date, or to institute
suit for the enforcement of any such payment on or after such respective dates
shall not be impaired or affected without the consent of such Holder.
SECTION 8.05 PROCEEDINGS BY TRUSTEE
In case of an Event of Default hereunder the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this Indenture,
including its rights as holder of the Pledged First Mortgage Bonds or the
Pledged Substituted Mortgage Bonds, by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any of such rights,
either by suit in equity or by action at law or by proceeding in bankruptcy or
otherwise, whether for the specific enforcement of any covenant or agreement
contained in this Indenture or in aid of the exercise of any power granted to it
under this Indenture, or to enforce any other legal or equitable right vested in
the Trustee by this Indenture or by law.
SECTION 8.06 REMEDIES CUMULATIVE AND CONTINUING
All powers and remedies given by this Article Eight to the Trustee or to
the Noteholders shall, to the extent permitted by law, be deemed cumulative and
not exclusive of any powers and remedies hereof or of any other powers and
remedies available to the Trustee or the Holders of the Notes, by judicial
proceedings or otherwise, to enforce the performance or observance of the
covenants and agreements contained in this Indenture, and no delay or omission
of the Trustee or of any Holder of any of the Notes in exercising any right or
power accruing upon any default occurring and continuing as aforesaid shall
impair any such right or power, or shall be construed to be a waiver of any such
default or an acquiescence therein; and, subject to Section 8.04 hereof, every
power and remedy given by this Article Eight or by law to the Trustee or to the
Noteholders may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Noteholders.
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SECTION 8.07 DIRECTION OF PROCEEDINGS AND WAIVER OF DEFAULTS BY MAJORITY OF
NOTEHOLDERS
The Holders of a majority in aggregate principal amount of the Notes at the
time 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, that (subject to Section
9.01 hereof) the Trustee shall have the right to decline to follow any such
direction if the Trustee being advised by counsel determines that the action or
proceeding so directed may not lawfully be taken or if the Trustee in good faith
by its board of directors or trustees, executive committee, or a trust committee
of directors or trustees or responsible officers shall determine that the action
or proceeding so directed would involve the Trustee in personal liability or
would be unduly prejudicial to the rights of Noteholders not joining in such
directions. The Holders of a majority in aggregate principal amount of the
Notes at the time outstanding may on behalf of all of the Holders of the Notes
waive any past default or Event of Default hereunder and its consequences except
a default in the payment of principal of or any premium or interest on the
Notes. Upon any such waiver the Company, the Trustee and the Holders of the
Notes shall be restored to their former positions and rights hereunder,
respectively, but no such waiver shall extend to any subsequent or other default
or Event of Default or impair any right consequent thereon. Whenever any
default or Event of Default hereunder shall have been waived as permitted by
this Section 8.07, said default or Event of Default shall for all purposes of
the Notes and this Indenture be deemed to have been cured and to be not
continuing.
SECTION 8.08 NOTICE OF DEFAULT
The Trustee shall within 90 days after the occurrence of a default known to
it, give to all Holders of the Notes, in the manner provided in Section 15.10
hereof, notice of such default, unless such default shall have been cured before
the giving of such notice, the term "default" for the purpose of this Section
8.08 being hereby defined to be any event which is or after notice or lapse of
time or both would become an Event of Default; provided that, except in the case
of default in the payment of the principal of or any premium or interest on any
of the Notes, or in the payment of any sinking or purchase fund installments,
the Trustee shall be protected in withholding such notice if and so long as its
board of directors or trustees, executive committee, or a trust committee of
directors or trustees or responsible officers in good faith determines that the
withholding of such notice is in the interests of the Holders of the Notes. The
Trustee shall not be charged with knowledge of any Event of Default unless a
responsible officer of the Trustee assigned to the corporate trustee department
of the Trustee shall have actual knowledge of such Event of Default.
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SECTION 8.09 UNDERTAKING TO PAY COSTS
All parties to this Indenture agree, and each Holder of any Note by
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 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 this
Section 8.09 shall not apply to any suit instituted by the Trustee, or to any
suit instituted by any Noteholder, or group of Noteholders, holding in the
aggregate more than 10% in principal amount of the Notes outstanding, or to any
suit instituted by any Noteholder for the enforcement of the payment of the
principal of or any premium or interest on any Note on or after the due date
expressed in such Note or the applicable redemption date.
ARTICLE NINE
CONCERNING THE TRUSTEE
SECTION 9.01 DUTIES AND RESPONSIBILITIES OF TRUSTEE
(a) The Trustee, prior to the occurrence of an Event of Default and after
the curing of all Events of Default which may have occurred, undertakes to
perform such duties and only such duties as are specifically set forth in this
Indenture. If an Event of Default has occurred (which has not been cured or
waived), 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.
(b) No provisions 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:
(1) prior to the occurrence of any Event of Default and after the curing
or waiving of all Events of Default which may have occurred
(A) the duties and obligations of the Trustee shall be determined solely
by the express provisions of this Indenture, and the Trustee shall not be liable
except for the performance of such duties and obligations as are specifically
set forth in this
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Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(B) in the absence of bad faith on the part of the Trustee, the Trustee
may conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but, in the
case of any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall be under
a duty to examine the same to determine whether or not they conform to the
requirements of this Indenture as to form;
(2) the Trustee shall not be liable for any error of judgment made in good
faith by a responsible officer or officers of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent facts; and
(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 Section 8.07 hereof
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.
SECTION 9.02 RELIANCE ON DOCUMENTS, OPINIONS, ETC.
Except as otherwise provided in Section 9.01 hereof:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, note or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless other
evidence in respect thereof is herein specifically prescribed); and any Board
Resolution may be evidenced to the Trustee by a copy thereof certified by the
Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel and any advice or 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
accordance with such advice or Opinion of Counsel;
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(d) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request, order or direction of
any of the Noteholders, pursuant to this Indenture, unless such Noteholders
shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which may be incurred by such exercise;
(e) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and after the
curing or waiving of all Events of Default, 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, consent,
order, approval, note or other paper or document, unless requested in writing to
do so by the Holders of at least a majority in principal amount of the then
outstanding Notes; provided that if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by this Indenture, the
Trustee may require reasonable indemnity against such expense or liability as a
condition to so proceeding;
(g) no provision of this Indenture shall require the Trustee to extend 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; and
(h) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or through agents or attorneys;
provided that the Trustee shall not be liable for the conduct or acts of any
such agent or attorney that shall have been appointed in accordance herewith
with due care.
SECTION 9.03 NO RESPONSIBILITY FOR RECITALS, ETC.
The recitals contained herein and in the Notes (except in the certificate
of authentication) shall be taken as the statements of the Company, and the
Trustee assumes no responsibility for the correctness of the same. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Notes. The Trustee shall not be accountable for the use or application
by the Company of any Notes or the proceeds of any Notes authenticated and
delivered by the Trustee in conformity with this Indenture. The Trustee shall
not be responsible for recording or
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filing this Indenture, any supplemental indenture, or any financing or
continuation statement in any public office at any time or times.
SECTION 9.04 TRUSTEE, AUTHENTICATING AGENT, PAYING AGENT OR REGISTRAR MAY OWN
NOTES
The Trustee and any Authenticating Agent, paying agent or registrar, in its
individual or other capacity, may become the owner or pledgee of Notes with the
same rights it would have if it were not Trustee, Authenticating Agent, paying
agent or registrar.
SECTION 9.05 MONEYS TO BE HELD IN TRUST
Subject to Section 5.04 hereof all moneys received by the Trustee shall,
until used or applied as herein provided, be held in trust for the purposes for
which they were received, but need not be segregated from other funds except to
the extent required by law. The Trustee may allow and credit to the Company
interest on any money received hereunder at such rate, if any, as may be agreed
upon by the Company and the Trustee from time to time as may be permitted by
law.
SECTION 9.06 COMPENSATION AND EXPENSES OF TRUSTEE
The Company covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, reasonable compensation (which shall not
be limited by any law in regard to the compensation of a trustee of an express
trust), and the Company shall pay or reimburse the Trustee upon its request for
all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with this Indenture (including the reasonable compensation
and the reasonable expenses and disbursements of its counsel and agents,
including any Authenticating Agents, and of all persons not regularly in its
employ) except any such expense, disbursement or advance as may arise from its
negligence or bad faith. The Company also covenants to indemnify the Trustee
for, and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on the part of the Trustee and arising out of or
in connection with the acceptance or administration of this trust, including the
costs and expenses of defending itself against any claim or liability. The
obligations of the Company under this Section 9.06 to compensate the Trustee and
to pay or reimburse the Trustee for expenses, disbursements and advances shall
constitute additional indebtedness hereunder. Such additional indebtedness
shall be secured by a lien prior to that of the Notes upon all property and
funds held or collected by the Trustee as such, except funds held in trust for
the benefit of the Holders of any particular Notes.
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SECTION 9.07 OFFICERS' CERTIFICATE AS EVIDENCE
Whenever in the administration of this Indenture, the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to the
taking, suffering or omitting of any action hereunder, such matter (unless other
evidence in respect thereof is herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate delivered to the
Trustee, and such Officers' Certificate, in the absence of negligence or bad
faith on the part of the Trustee, shall be full warrant to the Trustee for any
action taken, suffered or omitted by it under this Indenture in reliance
thereon.
SECTION 9.08 CONFLICTING INTEREST OF TRUSTEE
The Trustee shall be subject to and shall comply with the provisions of
Section 310 of the TIA; provided that, to the extent permitted by law, State
Street Bank and Trust Company shall not be deemed to have a conflicting interest
for purposes of Section 310(b) of the TIA because of its capacity as trustee
under the First Mortgage or the Substituted Mortgage. Nothing in this Indenture
shall be deemed to prohibit the Trustee or the Company from making any
application permitted pursuant to such section.
SECTION 9.09 EXISTENCE AND ELIGIBILITY OF TRUSTEE
There shall at all times be a Trustee hereunder which Trustee shall at all
times be a corporation organized and doing business under the laws of the United
States or any State thereof or of the District of Columbia (or a corporation or
other Person permitted to act as trustee by the SEC), subject to supervision or
examination by such bodies and authorized under such laws to exercise corporate
trust powers and having a combined capital and surplus of at least $150,000,000.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid authority, then for the purposes
of this Section 9.09, the combined capital and surplus shall be deemed to be as
set forth in its most recent report of condition so published. No obligor upon
the Notes or Person directly or indirectly controlling, controlled by, or under
common control with such obligor shall serve as Trustee. If at any time the
Trustee shall cease to be eligible in accordance with this Section 9.09, the
Trustee shall resign immediately in the manner and with the effect specified in
Section 9.10 hereof.
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SECTION 9.10 RESIGNATION OR REMOVAL OF TRUSTEE
(a) Pursuant to the provisions of this Article, the Trustee may at any
time resign and be discharged of the trusts created by this Indenture by giving
written notice to the Company specifying the day upon which such resignation
shall take effect, and such resignation shall take effect immediately upon the
later of the appointment of a successor trustee and such day.
(b) Any Trustee may be removed at any time by an instrument or concurrent
instruments in writing filed with such Trustee and signed and acknowledged by
the Holders of a majority in principal amount of the then outstanding Notes or
by their attorneys in fact duly authorized.
(c) If at any time (1) the Trustee shall cease to be eligible in
accordance with Section 9.09 hereof and shall fail to resign after written
request therefor by the Company or by any Holder who has been a bona fide Holder
for at least six months, (2) the Trustee shall fail to comply with Section 9.08
hereof after written request therefor by the Company or any such Holder, or (3)
the Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or 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 the
Trustee may be removed forthwith by an instrument or concurrent instruments in
writing filed with the Trustee and either:
(1) signed by the President, any Vice President, the Treasurer or any
Assistant Treasurer of the Company and attested by the Secretary or an Assistant
Secretary of the Company; or
(2) signed and acknowledged by the Holders of a majority in principal
amount of outstanding Notes or by their attorneys in fact duly authorized.
(d) Any resignation or removal of the Trustee shall not become effective
until acceptance of appointment by the successor Trustee as provided in Section
9.11 hereof.
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SECTION 9.11 APPOINTMENT OF SUCCESSOR TRUSTEE
(a) If at any time the Trustee shall resign or be removed, the Company
shall promptly appoint a successor Trustee.
(b) The successor Trustee shall provide written notice of its appointment
to the Holder of each Note outstanding following any such appointment.
(c) If no appointment of a successor Trustee shall be made pursuant to
Section 9.11(a) hereof within 60 days after appointment shall be required, any
Noteholder or the resigning Trustee may apply to any court of competent
jurisdiction to appoint a successor Trustee. Said court may thereupon after
such notice, if any, as such court may deem proper and prescribe, appoint a
successor Trustee.
(d) Any Trustee appointed under this Section 9.11 as a successor Trustee
shall be a bank or trust company eligible under Section 9.09 hereof and
qualified under Section 9.08 hereof.
SECTION 9.12 ACCEPTANCE BY SUCCESSOR TRUSTEE
(a) Any successor Trustee appointed as provided in Section 9.11 hereof
shall execute, acknowledge and deliver to the Company and to its predecessor
Trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with like effect as if originally named as Trustee
herein; but nevertheless, on the written request of the Company or of the
successor Trustee, the Trustee ceasing to act shall, upon payment of any amounts
then due it pursuant to Section 9.06 hereof execute and deliver an instrument
transferring to such successor Trustee all the rights and powers of the Trustee
so ceasing to act, including all right, title and interest, if any, in the
Pledged First Mortgage Bonds or Pledged Substituted Mortgage Bonds. Upon
request of any such successor Trustee, the Company shall execute any and all
instruments in writing in order more fully and certainly to vest in and confirm
to such successor Trustee all such rights and powers. Any Trustee ceasing to
act shall, nevertheless, retain a lien upon all property or funds held or
collected by such Trustee to secure any amounts then due it pursuant to Section
9.06 hereof.
(b) No successor Trustee shall accept appointment as provided in this
Section 9.12 unless at the time of such acceptance such successor Trustee shall
be qualified under Section 9.08 hereof and eligible under Section 9.09 hereof.
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(c) Upon acceptance of appointment by a successor Trustee as provided in
this Section 9.12, the successor Trustee shall mail notice of its succession
hereunder to all Holders of Notes as the names and addresses of such Holders
appear on the registry books.
SECTION 9.13 SUCCESSION BY MERGER, ETC.
(a) Any corporation into which the Trustee may be merged or with which it
may be consolidated, or any corporation resulting from any merger or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, provided such corporation shall be otherwise qualified and eligible
under this Article.
(b) If at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Notes shall have been authenticated
but not delivered, any such successor to the Trustee may adopt the certificate
of authentication of any predecessor Trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Trustee may authenticate such Notes either
in the name of any predecessor hereunder or in the name of the successor
Trustee; and in all such cases such certificates shall have the full force which
it is anywhere in the Notes or in this Indenture provided that the certificates
of the Trustee shall have; provided that the right to adopt the certificate of
authentication of any predecessor Trustee or authenticate Notes in the name of
any predecessor Trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
SECTION 9.14 LIMITATIONS ON RIGHTS OF TRUSTEE AS A CREDITOR
The Trustee shall be subject to, and shall comply with, the provisions of
Section 311 of the TIA.
SECTION 9.15 AUTHENTICATING AGENT
(a) There may be one or more Authenticating Agents appointed by the
Trustee with the written consent of the Company, with power to act on its behalf
and subject to the direction of the Trustee in the authentication and delivery
of Notes in connection with transfers and exchanges under Sections 2.06, 2.07,
2.08, 2.13, 3.03, and 13.04 hereof as fully to all intents and purposes as
though such Authenticating Agents had been expressly authorized by those
Sections to authenticate and deliver Notes. For all purposes of this Indenture,
the authentication and delivery of Notes by
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any Authenticating Agent pursuant to this Section 9.15 shall be deemed to be the
authentication and delivery of such Notes "by the Trustee." Any such
Authenticating Agent shall be a bank or trust company or other Person of the
character and qualifications set forth in Section 9.09 hereof.
(b) Any corporation into which any 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 any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate trust business
of any Authenticating Agent, shall be the successor of such Authenticating Agent
hereunder, if such successor corporation is otherwise eligible under this
Section 9.15, without the execution or filing of any paper or any further act on
the part of the parties hereto or such Authenticating Agent or such successor
corporation.
(c) Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at any
time terminate the agency of any Authenticating Agent by giving written notice
of termination 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
any Authenticating Agent shall cease to be eligible under this Section 9.15, the
Trustee may, with the written consent of the Company, appoint a successor
Authenticating Agent, and upon so doing shall give written notice of such
appointment to the Company and shall mail, in the manner provided in Section
15.10, notice of such appointment to the Holders of Notes.
(d) The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services.
(e) Sections 9.02, 9.03, 9.06, 9.07 and 9.09 hereof shall be applicable to
any Authenticating Agent.
ARTICLE TEN
CONCERNING THE NOTEHOLDERS
SECTION 10.01 ACTION BY NOTEHOLDERS
Whenever in this Indenture it is provided that the Holders of a specified
percentage in aggregate principal amount of the Notes may take any action, the
fact that at the time of taking any such action the Holders of such specified
percentage have joined therein may be evidenced (a) by any instrument or any
number of instruments of similar tenor executed by such Noteholders in person or
by agent or
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proxy appointed in writing, (b) by the record of such Noteholders voting in
favor thereof at any meeting of Noteholders duly called and held in accordance
with Article Eleven hereof or (c) by a combination of such instrument or
instruments and any such record of such a meeting of Noteholders.
SECTION 10.02 PROOF OF EXECUTION BY NOTEHOLDERS
(a) Subject to Sections 9.01, 9.02 and 11.05 hereof, proof of the execution
of any instruments by a Noteholder or the agent or proxy for such Noteholder
shall be sufficient if made in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee. The ownership of Notes shall be proved by the
register for the Notes maintained by the Trustee.
(b) The record of any Noteholders' meeting shall be proven in the manner
provided in Section 11.06 hereof.
SECTION 10.03 WHO DEEMED ABSOLUTE OWNERS
Subject to Sections 2.04(f) and 10.01 hereof, the Company, the Trustee, any
paying agent and any Authenticating Agent shall deem the person in whose name
any Note shall be registered upon the register for the Notes to be, and shall
treat such person as, the absolute owner of such Note (whether or not such Note
shall be overdue) for the purpose of receiving payment of or on account of the
principal and premium, if any, and interest on such Note, and for all other
purposes; and neither the Company nor the Trustee nor any paying agent nor any
Authenticating Agent shall be affected by any notice to the contrary. All such
payments shall be valid and effectual to satisfy and discharge the liability
upon any such Note to the extent of the sum or sums so paid.
SECTION 10.04 COMPANY-OWNED NOTES DISREGARDED
In determining whether the Holders of the requisite aggregate principal
amount of outstanding Notes have concurred in any direction, consent or waiver
under this Indenture, Notes which are owned by the Company or any other obligor
on the Notes or by any person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Company or any other
obligor on the Notes shall be disregarded and deemed not to be outstanding for
the purpose of any such determination; provided that, for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, consent or waiver, only Notes which the Trustee knows are so owned
shall be so disregarded. Notes so owned which have been pledged in good faith
to third parties may be regarded as outstanding
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for the purposes of this Section 10.04 if the pledgee shall establish to the
satisfaction of the Trustee the pledgee's right to take action with respect to
such Notes and that the pledgee is not a person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company or any such other obligor. In the case of a dispute as to such right,
any decision by the Trustee taken upon the advice of counsel shall be full
protection to the Trustee.
SECTION 10.05 REVOCATION OF CONSENTS; FUTURE HOLDERS BOUND
Except as may be otherwise required in the case of a Global Note by the
applicable rules and regulations of the Depositary, at any time prior to the
taking of any action by the Holders of the percentage in aggregate principal
amount of the Notes specified in this Indenture in connection with such action,
any Holder of a Note, which has been included in the Notes the Holders of which
have consented to such action may, by filing written notice with the Trustee at
the corporate trust office of the Trustee and upon proof of ownership as
provided in Section 10.02(a) hereof, revoke such action so far as it concerns
such Note. Except as aforesaid any such action taken by the Holder of any Note
shall be conclusive and binding upon such Holder and upon all future Holders and
owners of such Note and of any Notes issued in exchange, substitution or upon
registration of transfer therefor, irrespective of whether or not any notation
thereof is made upon such Note or such other Notes.
SECTION 10.06 RECORD DATE FOR NOTEHOLDER ACTS
If the Company shall solicit from the Noteholders any request, demand,
authorization, direction, notice, consent, waiver or other act, the Company may,
at its option, by Board Resolution, fix in advance a record date for the
determination of Noteholders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other act, but the Company
shall have no obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or other act
may be given before or after the record date, but only the Noteholders of record
at the close of business on the record date shall be deemed to be Noteholders
for the purpose of determining whether Holders of the requisite aggregate
principal amount of outstanding Notes have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other
act, and for that purpose the outstanding Notes shall be computed as of the
record date; provided that no such request, demand, authorization, direction,
notice, consent, waiver or other act by the Noteholders on the record date shall
be deemed effective unless it shall become effective pursuant to this Indenture
not later than six months after the record date. Any such record date shall be
at least 30 days prior to the date of the solicitation to the Noteholders by the
Company.
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ARTICLE ELEVEN
NOTEHOLDERS' MEETING
SECTION 11.01 PURPOSES OF MEETINGS
A meeting of Noteholders may be called at any time and from time to time
pursuant to this Article Eleven for any of the following purposes:
(a) to give any notice to the Company or to the Trustee, or to give any
directions to the Trustee, or to consent to the waiving of any Event of Default
hereunder and its consequences, or to take any other action authorized to be
taken by Noteholders pursuant to Article Eight;
(b) to remove the Trustee pursuant to Article Nine;
(c) to consent to the execution of an indenture or indentures supplemental
hereto pursuant to Section 13.02 hereof; or
(d) to take any other action authorized to be taken by or on behalf of the
Holders of any specified aggregate principal amount of the Notes, as the case
may be, under any other provision of this Indenture or under applicable law.
SECTION 11.02 CALL OF MEETINGS BY TRUSTEE
The Trustee may at any time call a meeting of Holders of Notes to take any
action specified in Section 11.01 hereof, to be held at such time and at such
place as the Trustee shall determine. Notice of every such meeting of
Noteholders, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given to Holders
of the Notes that may be affected by the action proposed to be taken at such
meeting in the manner provided in Section 15.10 hereof. Such notice shall be
given not less than 20 nor more than 90 days prior to the date fixed for such
meeting.
SECTION 11.03 CALL OF MEETINGS BY COMPANY OR NOTEHOLDERS
If at any time the Company, pursuant to a Board Resolution, or the Holders
of at least 10% in aggregate principal amount of the Notes then outstanding,
shall have requested the Trustee to call a meeting of Noteholders, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have mailed the notice of such meeting
within 20 days after receipt of such request, then the Company or such
Noteholders may determine the time and the place
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for such meeting and may call such meeting to take any action authorized in
Section 11.01 hereof by giving notice thereof as provided in Section 11.02
hereof.
SECTION 11.04 QUALIFICATIONS FOR VOTING
To be entitled to vote at any meetings of Noteholders a Person shall (a) be
a Holder of one or more Notes affected by the action proposed to be taken or (b)
be a Person appointed by an instrument in writing as proxy by a Holder of one or
more such Notes. The only Persons who shall be entitled to be present or to
speak at any meeting of Noteholders shall be the Persons entitled to vote at
such meeting and their counsel and any representatives (including employees) of
the Trustee and its counsel and any representatives (including employees) of the
Company and its counsel.
SECTION 11.05 REGULATIONS
(a) Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Noteholders in regard to proof of the holding of Notes and of the appointment of
proxies, and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as
it shall think fit.
(b) 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 the Noteholders as provided in Section 11.03 hereof in which case
the Company or Noteholders 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 the Holders of a majority in
aggregate principal amount of the Notes present in person or by proxy at the
meeting.
(c) Subject to Section 10.04 hereof, at any meeting each Noteholder or
proxy shall be entitled to one vote for each $1,000 principal amount of Notes
held or represented by such Noteholder; provided that no vote shall be cast or
counted at any meeting in respect of any Note ruled by the chairman of the
meeting to be not outstanding. The chairman of the meeting shall have no right
to vote other than by virtue of Notes held by such chairman or instruments in
writing as aforesaid duly designating such chairman as the person to vote on
behalf of other Noteholders. At any meeting of Noteholders duly called pursuant
to Section 11.02 or 11.03 hereof, the presence of persons holding or
representing Notes in an aggregate principal amount sufficient to take action on
any business for the transaction for which such meeting was called shall
constitute a quorum. Any meeting of Noteholders duly called pursuant to Section
11.02 or 11.03 hereof may be adjourned from time to time by the
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Holders of a majority in aggregate principal amount of the Notes present in
person or by proxy at the meeting, whether or not constituting a quorum, and the
meeting may be held as so adjourned without further notice.
SECTION 11.06 VOTING
The vote upon any resolution submitted to any meeting of Noteholders shall
be by written ballots on which shall be subscribed the signatures of the Holders
of Notes or of their representatives by proxy and the principal amount of Notes
held or represented by them. The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at the meeting
for or against any resolution and who shall make and file with the secretary of
the meeting their verified written reports in duplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of such meeting of
Noteholders shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 11.02 hereof. The
record shall show the aggregate principal amount of the Notes voting in favor of
or against any resolution. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the Trustee to be
preserved by the Trustee and the Trustee shall have the ballots taken at the
meeting attached to such duplicate. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
SECTION 11.07 RIGHTS OF TRUSTEE OR NOTEHOLDERS NOT DELAYED
Nothing in this Article Eleven shall be deemed or construed to authorize or
permit, by reason of any call of a meeting of Noteholders or any rights
expressly or impliedly conferred hereunder to make such call, any hindrance or
delay in the exercise of any right or rights conferred upon or reserved to the
Trustee or to the Holders of Notes under any of the provisions of this Indenture
or of the Notes.
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ARTICLE TWELVE
CONSOLIDATION, MERGER, SALE, TRANSFER OR OTHER DISPOSITION
SECTION 12.01 COMPANY MAY CONSOLIDATE, ETC. ONLY ON CERTAIN TERMS
The Company shall not consolidate with or merge into any other corporation
or sell, or otherwise of dispose all or substantially all of its assets unless
the corporation formed by such consolidation or into which the Company is merged
or the Person which receives all or substantially all of the assets pursuant to
such sale, transfer or other disposition (a) shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal of
and premium and interest on all of the Notes and the performance of every
covenant of this Indenture on the part of the Company to be performed or
observed, (b) if such consolidation, merger, sale, transfer or other disposition
occurs prior to the Substitution Date, shall expressly assume, by an indenture
supplemental to the First Mortgage, executed and delivered to the Trustee and
the Mortgage Trustee, in form satisfactory to the Trustee and the Mortgage
Trustee, the due and punctual payment of the principal of, premium, if any, and
interest on all of the Pledged First Mortgage Bonds and the performance of every
covenant of the First Mortgage on the part of the Company to be performed or
observed and (c) if such consolidation, merger, sale, transfer or other
disposition occurs on and after the Substitution Date and Pledged Substituted
Mortgage Bonds are outstanding, shall expressly assume, by an indenture
supplemental to the Substituted Mortgage, executed and delivered to the Trustee
and the Mortgage Trustee, the due and punctual payment of the principal of,
premium, if any, and interest on all of the Pledged Substituted Mortgage Bonds
and the performance of every covenant of the Substituted Mortgage on the part of
the Company to be performed or observed. For purposes of this Article Twelve,
the phrase "all or substantially all of its assets" shall mean 50% or more of
the total assets of the Company as shown on the balance sheet of the Company as
of the end of the calendar year immediately preceding the day of the year in
which such determination is made and nothing in this Indenture shall prevent or
hinder the Company from selling, transferring or otherwise disposing during any
calendar year (in one transaction or a series of transactions) less than 50% of
the amount of its total assets as shown on the balance sheet of the Company as
of the end of the immediately preceding calendar year.
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SECTION 12.02 SUCCESSOR CORPORATION SUBSTITUTED
Upon any consolidation or merger, or any sale, transfer or other
disposition of all or substantially all of the assets of the Company in
accordance with Section 12.01 hereof, the successor corporation formed by such
consolidation or into which the Company is merged or to which such sale,
transfer or other disposition is made shall succeed to, and be substituted for
and may exercise every right and power of, the Company under this Indenture with
the same effect as if such successor corporation had been named as the Company
herein and the Company shall be released from all obligations hereunder.
ARTICLE THIRTEEN
SUPPLEMENTAL INDENTURES
SECTION 13.01 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF NOTEHOLDERS
(a) The Company and the Trustee may from time to time and at any time
enter into an indenture or indentures supplemental hereto without the consent of
any Noteholder for one or more of the following purposes:
(1) to make such provision in regard to matters or questions arising
under this Indenture as may be necessary or desirable, and not inconsistent with
this Indenture or prejudicial to the interests of the Holders, for the purpose
of supplying any omission, curing any ambiguity, or curing, correcting or
supplementing any defective or inconsistent provision;
(2) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only when
there is no Note outstanding created prior to the execution of such supplemental
indenture which is entitled to the benefit of such provision or such change or
elimination is applicable only to Notes issued after the effective date of such
change or elimination;
(3) to establish the form of Notes as permitted by Section 2.01 hereof
or to establish or reflect any terms of any Note determined pursuant to Section
2.05 hereof;
(4) to evidence the succession of another corporation to the Company,
and the assumption by any such successor of the covenants of the Company herein
and in the Notes;
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(5) to grant to or confer upon the Trustee for the benefit of the
Holders any additional rights, remedies, powers or authority;
(6) to permit the Trustee to comply with any duties imposed upon it by
law;
(7) to specify further the duties and responsibilities of and to
define further the relationships among the Trustee, any Authenticating Agent and
any paying agent;
(8) to add to the covenants of the Company for the benefit of the
Holders, to add to the security for the Notes or to surrender a right or power
conferred on the Company herein; and
(9) to make any other change that is not prejudicial to the Trustee or
the Holders.
(b) The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer and assignment of any property thereunder, but the Trustee
shall not be obligated to enter into any such supplemental indenture which
adversely affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
(c) Any supplemental indenture authorized by this Section 13.01 may be
executed by the Company and the Trustee without the consent of the Holders of
any of the Notes at the time outstanding, notwithstanding any of the provisions
of Section 13.02 hereof.
SECTION 13.02 SUPPLEMENTAL INDENTURES WITH CONSENT OF NOTEHOLDERS
(a) With the consent (evidenced as provided in Section 10.01 hereof) of
the Holders of a majority in aggregate principal amount of the Notes at the time
outstanding, the Company, when authorized by Board Resolution, and the Trustee
may from time to time and at any time 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 or of any
supplemental indenture or of modifying in any manner the rights of the
Noteholders; provided that no such supplemental indenture shall:
(1) change the maturity date of any Note, or reduce the rate or extend
the time of payment of interest thereon, or reduce the principal amount thereof
or any
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premium thereon, or change the coin or currency in which the principal of any
Note or any premium or interest thereon is payable, or change the date on which
any Note may be redeemed or adversely affect the rights of the Noteholders to
institute suit for the enforcement of any payment of principal of or any premium
or interest on any Note, or impair the interest hereunder of the Trustee in the
Pledged First Mortgage Bonds or Pledged Substituted Mortgage Bonds, or reduce
the principal amount of any issue of Pledged First Mortgage Bonds (except, as
provided in this Indenture, upon the Substitution Date) or Pledged Substituted
Mortgage Bonds to an amount less than the principal amount of the related issue
of Notes or alter the payment provisions of such Pledged First Mortgage Bonds or
Pledged Substituted Mortgage Bonds in a manner adverse to the Holders of the
Notes, in each case without the consent of the Holder of each Note so affected;
or
(2) modify this Section 13.02(a) or reduce the aforesaid percentage of
Notes, the Holders of which are required to consent to any such supplemental
indenture or to reduce the percentage of Notes, the Holders of which are
required to waive Events of Default, in each case, without the consent of the
Holders of all of the Notes then outstanding.
(b) Upon the request of the Company, accompanied by a copy of the Board
Resolution authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Noteholders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
(c) It shall not be necessary for the consent of the Holders of Notes
under this Section 13.02 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall approve
the substance thereof.
(d) Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to this Section 13.02, the Trustee shall give
notice in the manner provided in Section 15.10 hereof, setting forth in general
terms the substance of such supplemental indenture, to all Noteholders. Any
failure of the Trustee to give such notice or any defect therein shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
(e) Notwithstanding anything to the contrary in this Section 13.02, if any
proposed supplemental indenture would affect only a limited number of series or
issues of Notes, only the Holders of the Notes so affected shall be entitled to
consent to such supplemental indenture, and, subject to Sections 13.02(a)(1) and
(2), such
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supplemental indenture may be approved with the consent of the Holders of a
majority in aggregate principal amount of the Notes so affected.
SECTION 13.03 COMPLIANCE WITH TRUST INDENTURE ACT; EFFECT OF SUPPLEMENTAL
INDENTURES
Any supplemental indenture executed pursuant to this Article Thirteen shall
comply with the TIA. Upon the execution of any supplemental indenture pursuant
to this Article Thirteen, the Indenture shall be and be deemed to be modified
and amended in accordance therewith and the respective rights, limitations of
rights, obligations, duties and immunities under this Indenture of the Trustee,
the Company and the Noteholders shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
SECTION 13.04 NOTATION ON NOTES
Notes authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article Thirteen may bear a notation in form approved
by the Trustee as to any matter provided for in such supplemental indenture. If
the Company shall so determine, new Notes so modified as approved by the Trustee
and the Board of Directors with respect to any modification of this Indenture
contained in any such supplemental indenture may be prepared and executed by the
Company, authenticated by the Trustee and delivered in exchange for the Notes
then outstanding.
SECTION 13.05 EVIDENCE OF COMPLIANCE OF SUPPLEMENTAL INDENTURE TO BE FURNISHED
TRUSTEE
The Trustee, subject to Sections 9.01 and 9.02 hereof, shall receive an
Officers' Certificate and an Opinion of Counsel pursuant to Section 15.05 hereof
as conclusive evidence that any supplemental indenture executed pursuant hereto
complies with the requirements of this Article Thirteen.
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ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS
SECTION 14.01 INDENTURE AND NOTES SOLELY CORPORATE OBLIGATIONS
No recourse for the payment of the principal of or any premium or interest
on any Note, any Pledged First Mortgage Bond or any Pledged Substituted Mortgage
Bond, or for any claim based thereon or otherwise in respect thereof, and no
recourse under or upon any obligation, covenant or agreement of the Company,
contained in this Indenture, the First Mortgage, the Substituted Mortgage or in
any supplemental indenture, or in any Note or in any Pledged First Mortgage Bond
or any Pledged Substituted Mortgage Bond, or because of the creation of any
indebtedness represented thereby, shall be had against any incorporator,
shareholder, officer or director, as such, past, present or future, of the
Company or any successor corporation, either directly or through the Company or
any successor corporation, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty or otherwise; it
being expressly understood that all such liability is hereby expressly waived
and released as a condition of, and as a consideration for, the execution of
this Indenture and the issuance of the Notes.
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
SECTION 15.01 PROVISIONS BINDING ON COMPANY'S SUCCESSORS
All the covenants, stipulations, promises and agreements made by the
Company in this Indenture shall bind its successors and assigns whether so
expressed or not.
SECTION 15.02 OFFICIAL ACTS BY SUCCESSOR CORPORATION
Any act or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer of the
Company shall and may be done and performed with like force and effect by the
like board, committee or officer of any corporation that shall at the time be
the lawful successor of the Company.
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SECTION 15.03 NOTICES
(a) Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the Noteholders
on the Company may be given or served by confirmed facsimile transmission, by
delivery to an overnight courier providing evidence of receipt or by being
deposited postage prepaid in a post office letter box, in each case sent or
transmitted to the facsimile number or address (until another facsimile number
or address is filed by the Company with the Trustee) of the principal executive
offices of the Company, to the attention of the Secretary or Treasurer. Any
notice, direction, request or demand by any Noteholder, the Company or the
Mortgage Trustee to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or made in writing, by
any type of delivery described above, at the corporate trust office of the
Trustee, Attention: Manager, Corporate Trust Department.
(b) The Company shall provide any notices required under this Indenture by
publication, but only to the extent that such publication is required by the
TIA, the rules and regulations of the SEC or any securities exchange upon which
any of the Notes are listed.
SECTION 15.04 GOVERNING LAW
This Indenture and each Note shall be deemed to be a contract made under
the laws of the State of Washington, and for all purposes shall be construed in
accordance with the laws of said State.
SECTION 15.05 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT
(a) Upon any application or demand by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture (including any covenants compliance with which constitutes
a condition precedent) 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 have been complied with.
(b) Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture (other than the certificates delivered pursuant
to Section 6.06 hereof) shall include (1) a statement that each Person making
such certificate or opinion has read such covenant or condition and the
definitions relating thereto; (2) a brief
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statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based; (3) a statement that, in the opinion of each such 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 (4) a statement as to whether or not, in the opinion of
each such Person, such condition or covenant has been complied with.
(c) 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.
(d) Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which such certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel delivered under the
Indenture may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information with respect to such factual matters is in
the possession of the Company, unless such person knows, or in the exercise of
reasonable care should know, that the certificate or opinion of representations
with respect to such matters are erroneous. Any opinion of counsel delivered
hereunder may contain standard exceptions and qualifications satisfactory to the
Trustee.
(e) Any certificate, statement or opinion of any officer of the Company, or
of counsel, may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an independent public accountant
or firm of accountants, unless such officer or counsel, as the case may be,
knows that the certificate or opinions or representations with respect to the
accounting matters upon which the certificate, statement or opinion of such
officer or counsel may be based as aforesaid are erroneous, or in the exercise
of reasonable care should know that the same are erroneous. Any certificate or
opinion of any firm of independent public accountants filed with the Trustee
shall contain a statement that such firm is independent.
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(f) 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.
SECTION 15.06 BUSINESS DAYS
Unless otherwise provided pursuant to Section 2.05(c) hereof, in any case
where the date of maturity of the principal of or any premium or interest on any
Note or the date fixed for redemption of any Note is not a Business Day, then
payment of such principal or any premium or interest need not be made on such
date but may be made on the next succeeding Business Day with the same force and
effect as if made on the date of maturity or the date fixed for redemption, and,
in the case of timely payment thereof, no interest shall accrue for the period
from and after such Interest Payment Date or the date on which the principal of
the Note is required to be paid.
SECTION 15.07 TRUST INDENTURE ACT TO CONTROL
If and to the extent that any provision of this Indenture limits, qualifies
or conflicts with the duties imposed by any of Sections 310 to 317, inclusive,
of the TIA, such required provision of the TIA shall govern.
SECTION 15.08 TABLE OF CONTENTS, HEADINGS, ETC.
The table of contents and the titles and headings of the articles and
sections of this Indenture have been inserted for convenience of reference only,
are not to be considered a part hereof, and shall in no way modify or restrict
any of the terms or provisions hereof.
SECTION 15.09 EXECUTION IN COUNTERPARTS
This Indenture may be executed in any number of counterparts, each of which
shall be an original, but such counterparts shall together constitute but one
and the same instrument.
SECTION 15.10 MANNER OF MAILING NOTICE TO NOTEHOLDERS
Any notice or demand which by any provision of this Indenture is required
or permitted to be given or served by the Trustee or the Company to or on the
Holders of Notes, as the case may be, shall be given or served by confirmed
facsimile transmission, by delivery to an overnight courier providing evidence
of receipt or by first-class mail, postage prepaid, in each case sent or
transmitted to the Holders of such Notes at their last facsimile numbers or
addresses as the same appear on the
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register for the Notes referred to in Section 2.06, and any such notice shall be
deemed to be given or served by being deposited in a post office letter box (or
by any other form of delivery described above) in the form and manner provided
in this Section 15.10. In case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable to give notice
to any Holder by mail, then such notification to such Holder as shall be made
with the approval of the Trustee shall constitute a sufficient notification for
every purpose hereunder.
SECTION 15.11 APPROVAL BY TRUSTEE OF COUNSEL
Whenever the Trustee is required to approve counsel who is to furnish
evidence of compliance with conditions precedent in this Indenture, such
approval by the Trustee shall be deemed to have been given upon the taking of
any action by the Trustee pursuant to and in accordance with the certificate or
opinion so furnished by such counsel.
IN WITNESS WHEREOF, PUGET SOUND ENERGY, INC. has caused this Indenture to
be signed and acknowledged by one of its Vice Presidents, and attested by its
Secretary, and STATE STREET BANK AND TRUST COMPANY has caused this Indenture to
be signed and acknowledged by one of its Vice Presidents, and attested by one of
its Vice Presidents, as of the day and year first written above.
PUGET SOUND ENERGY, INC.
By______________________________________
ATTEST:
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By______________________________________
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ATTEST:
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EXHIBIT A
FORM OF GLOBAL NOTE
PRIOR TO SUBSTITUTION DATE
REGISTERED REGISTERED
THIS NOTE IS A GLOBAL NOTE REGISTERED IN THE NAME OF THE DEPOSITARY
(REFERRED TO HEREIN) OR A NOMINEE THEREOF AND, UNLESS AND UNTIL IT IS EXCHANGED
IN WHOLE OR IN PART FOR THE INDIVIDUAL NOTES REPRESENTED HEREBY, THIS GLOBAL
NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF
THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY UNLESS THIS
GLOBAL NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TRUST
COMPANY (55 XXXXX XXXXXX XXX XXXX, XXX XXXX), TO THE TRUSTEE FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO. ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
PUGET SOUND ENERGY, INC.
SENIOR NOTE, SERIES
CUSIP: NUMBER:
ORIGINAL ISSUE DATE(S): PRINCIPAL AMOUNT(S):
INTEREST RATE: MATURITY DATE:
PUGET SOUND ENERGY, INC., a corporation of the state of Washington (the
"Company"), for value received hereby promises to pay to Cede & Co. or
registered assigns, the principal sum of
DOLLARS
A-1
on the Maturity Date set forth above, and to pay interest thereon from the
Original Issue Date (or if this Global Note has two or more Original Issue
Dates, interest shall, beginning on each such Original Issue Date, begin to
accrue for that part of the principal amount to which that Original Issue Date
is applicable) set forth above or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semiannually in arrears on
the ____________ and ____________ in each year (each, an "Interest Payment
Date"), commencing on the first such Interest Payment Date succeeding the
applicable Original Issue Date set forth above, at the per annum Interest Rate
set forth above, until the principal hereof is paid or made available for
payment. No interest shall accrue on the Maturity Date, so long as the
principal amount of this Global Note is paid on the Maturity Date. The interest
so payable and punctually paid or duly provided for on any such Interest Payment
Date will, as provided in the Indenture, be paid to the Person in whose name
this Note is registered at the close of business on the Regular Record Date for
such interest, which shall be the ___________ or ____________, as the case may
be, next preceding such Interest Payment Date; provided that the first Interest
Payment Date for any part of this Note, the Original Issue Date of which is
after a Regular Record Date but prior to the applicable Interest Payment Date,
shall be the Interest Payment Date following the next succeeding Regular Record
Date; and provided that interest payable on the Maturity Date set forth above
or, if applicable, upon redemption or acceleration, shall be payable to the
Person to whom principal shall be payable. Except as otherwise provided in the
Indenture (as defined below), any such interest not so punctually paid or duly
provided for shall forthwith cease to be payable to the Holder on such Regular
Record Date and shall be paid to the Person in whose name this Note is
registered at the close of business on a Special Record Date for the payment of
such defaulted interest to be fixed by the Trustee, notice whereof shall be
given to Noteholders not more than 15 days or fewer than 10 days prior to such
Special Record Date. On or before __________, New York City time, or such other
time as shall be agreed upon between the Trustee and the Depositary, of the day
on which such payment of interest is due on this Global Note (other than
maturity), the Trustee shall pay to the Depositary such interest in same day
funds. On or before _________, New York City time, or such other time as shall
be agreed upon between the Trustee and the Depositary, of the day on which
principal, interest payable at maturity and premium, if any, is due on this
Global Note, the Trustee shall deposit with the Depositary the amount equal to
the principal, interest payable at maturity and premium, if any, by wire
transfer into the account specified by the Depositary. As a condition to the
payment, on the Maturity Date or upon redemption or acceleration, of any part of
the principal and applicable premium of this Global Note, the Depositary shall
surrender, or cause to be surrendered, this Global Note to the Trustee,
whereupon a new Global Note shall be issued to the Depositary.
A-2
This Global Note is a global security in respect of a duly authorized issue
of Senior Notes, Series ____ (the "Notes of this Series," which term includes
any Global Notes representing such Notes) of the Company issued and to be issued
under an Indenture dated as of _____________, 1997 between the Company and State
Street Bank and Trust, Boston, Massachusetts, as trustee (the "Trustee," which
term includes any successor Trustee under the Indenture) and indentures
supplemental thereto (collectively, the "Indenture"). Under the Indenture, one
or more series of notes may be issued and, as used herein, the term "Notes"
refers to the Notes of this series and any other outstanding series of Notes.
Reference is hereby made to the Indenture for a more complete statement of the
respective rights, limitations of rights, duties and immunities under the
Indenture of the Company, the Trustee and the Noteholders and of the terms upon
which the Notes are and are to be authenticated and delivered. This Global Note
has been issued in respect of the series designated on the first page hereof
limited in aggregate principal amount to $__________.
Prior to the Substitution Date (as hereinafter defined), the Notes will be
secured by first mortgage bonds (the "Pledged First Mortgage Bonds") delivered
by the Company to the Trustee for the benefit of the Holders of the Notes,
issued under either (a) the Fortieth Supplemental Indenture, dated September 1,
1954, from the Company to State Street Bank and Trust, Boston, Massachusetts, as
successor trustee (the "Electric Mortgage Trustee"), as supplemented and amended
(the "Electric Mortgage"), or (b) the Indenture of First Mortgage, dated April
1, 1957, from the Company, as successor to Washington Natural Gas Company, to
Xxxxxx Trust and Savings Bank, Chicago, Illinois, as trustee (the "Gas Mortgage
Trustee" and, together with the Electric Mortgage Trustee, the "Mortgage
Trustee"), as supplemented and amended (the "Gas Mortgage" and, together with
the Electric Mortgage, the "First Mortgages"). Reference is made to the First
Mortgages and the Indenture for a description of the rights of the Trustee as
holder of the Pledged First Mortgage Bonds, the property mortgaged and pledged
under each of the First Mortgages, the rights of the Company and of the
applicable Mortgage Trustee in respect thereof, the duties and immunities of the
applicable Mortgage Trustee, the terms and conditions upon which the Pledged
First Mortgage Bonds are secured and the circumstances under which additional
first mortgage bonds may be issued.
FROM AND AFTER SUCH TIME AS ALL FIRST MORTGAGE BONDS (OTHER THAN PLEDGED
FIRST MORTGAGE BONDS) ISSUED UNDER EITHER OF THE FIRST MORTGAGES HAVE BEEN
RETIRED THROUGH PAYMENT, REDEMPTION OR OTHERWISE (INCLUDING THOSE FIRST MORTGAGE
BONDS THE PAYMENT FOR WHICH HAS BEEN PROVIDED FOR IN ACCORDANCE WITH THE
APPLICABLE FIRST MORTGAGE) AT, BEFORE OR AFTER THE MATURITY THEREOF (THE
"SUBSTITUTION DATE"), THE PLEDGED FIRST MORTGAGE BONDS SHALL CEASE TO SECURE THE
NOTES IN ANY MANNER, AND, AT THE OPTION OF THE COMPANY, THE NOTES EITHER (A)
WILL
A-3
BECOME UNSECURED GENERAL OBLIGATIONS OF THE COMPANY OR (B) WILL BE SECURED BY
FIRST MORTGAGE BONDS ISSUED UNDER AN INDENTURE OTHER THAN THE FIRST MORTGAGES.
IN CERTAIN CIRCUMSTANCES PRIOR TO THE SUBSTITUTION DATE AS PROVIDED IN THE
INDENTURE, THE COMPANY IS PERMITTED TO REDUCE THE AGGREGATE PRINCIPAL AMOUNT OF
AN ISSUE OF PLEDGED FIRST MORTGAGE BONDS HELD BY THE TRUSTEE, BUT IN NO EVENT
PRIOR TO THE SUBSTITUTION DATE TO AN AMOUNT LESS THAN THE AGGREGATE PRINCIPAL
AMOUNT OF THE RELATED ISSUE OF NOTES INITIALLY ISSUED CONTEMPORANEOUSLY WITH
SUCH PLEDGED FIRST MORTGAGE BONDS.
Each Note shall be dated and issued as of the date of its authentication by
the Trustee and shall bear an Original Issue Date or Dates. Each Note or Global
Note issued upon transfer, exchange or substitution of such Note or Global Note
shall bear the Original Issue Date or Dates of such transferred, exchanged or
substituted Note or Global Note, as the case may be.
[If applicable, one of the following two sentences: This Global Note may
not be redeemed prior to ____________, _____. This Global Note is not
redeemable prior to the Maturity Date set forth on the first page hereof.] [If
applicable: On or after _______________, ____, this Global Note is redeemable
in whole or in part in increments of $1,000 (provided that any remaining
principal amount of this Global Note shall be at least $100,000) at the option
of the Company at the following redemption prices (expressed as a percentage of
the principal amount to be redeemed) plus accrued interest to the redemption
date:
Redemption Periods Redemption Prices
------------------------------------- ------------------------------------------
Notice of redemption will be given by mail to Holders of Notes of this
issue not less than 30 or more than 60 days prior to the date fixed for
redemption, all as provided in the Indenture. In the event of redemption of
this Global Note in part only, a new Global Note or Notes of like tenor and
series for the unredeemed portion hereof will be issued in the name of the
Noteholder hereof upon the surrender hereof.]
Interest payments for this Global Note shall be computed and paid on the
basis of a 360-day year of twelve 30-day months. If any Interest Payment Date
or the date on which the principal of this Global Note is required to be paid is
not a Business Day, then payment of principal, premium or interest need not be
made on such date
A-4
but may be made on the next succeeding Business Day with the same force and
effect as if made on such Interest Payment Date or date on which the principal
of this Global Note is required to be paid and, in the case of timely payment
thereof no interest shall accrue for the period from and after such Interest
Payment Date or the date on which the principal of this Global Note is required
to be paid.
The Company, at its option, and subject to the terms and conditions
provided in the Indenture, will be discharged from any and all obligations in
respect of the Notes (except for certain obligations as specifically set forth
in the Indenture) if the Company deposits with the Trustee money, U.S.
Government Obligations which through the payment of interest thereon and
principal thereof in accordance with their terms will provide money, or a
combination of money and U.S. Government Obligations, in any event in an amount
sufficient, without reinvestment, as certified by an independent public
accounting firm of national reputation in a written certification delivered to
the Trustee, to pay at maturity or the applicable redemption date (provided that
notice of redemption shall have been duly given or irrevocable provision
satisfactory to the Trustee shall have been duly made for the giving of any
notice of redemption) all outstanding Notes, including principal and any premium
and interest due or to become due to such date of maturity, as the case may be.
If an Event of Default shall occur and be continuing, the principal of the
Notes may be declared due and payable in the manner and with the effect provided
in the Indenture and, upon such declaration, the Trustee can demand the
redemption of the Pledged First Mortgage Bonds as provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modifications of the rights and obligations of the
Company and the rights of the Noteholders under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of not less than a
majority in principal amount of the outstanding Notes affected by such amendment
or modifications. Any such consent or waiver by the Holder of this Global Note
shall be conclusive and binding upon such Holder and upon all future Holders of
this Global Note and of any Note issued upon the registration of transfer hereof
or in exchange therefor or in lieu thereof whether or not notation of such
consent or waiver is made upon the Note.
As set forth in and subject to the provisions of the Indenture, no Holder
of any Notes will have any right to institute any proceeding with respect to the
Indenture or for any remedy thereunder unless such Holder shall have previously
given to the Trustee written notice of a continuing Event of Default with
respect to such Notes, the Holders of not less than a majority in principal
amount of the outstanding Notes affected by such Event of Default shall have
made written request and offered
A-5
reasonable indemnity to the Trustee to institute such proceeding as Trustee and
the Trustee shall have failed to institute such proceeding within 60 days;
provided that such limitations do not apply to a suit instituted by the Holder
hereof for the enforcement of payment of the principal of and any premium or
interest on this Note on or after the respective due dates expressed herein.
No reference herein to the Indenture and to provisions of this Global Note
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Global Note at the times, places and rates and the coin or
currency prescribed in the Indenture.
As provided in the Indenture and subject to certain limitations therein set
forth, this Global Note may be transferred only as permitted by the legend
hereto.
If at any time the Depositary for this Global Note notifies the Company
that it is unwilling or unable to continue as Depositary for this Global Note or
if at any time the Depositary for this Global Note shall no longer be eligible
or in good standing under the Securities Exchange Act of 1934, as amended, or
other applicable statute or regulation, the Company shall appoint a successor
Depositary with respect to this Global Note. If a successor Depositary for this
Global Note is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company's
election to issue this Note in global form shall no longer be effective with
respect to this Global Note and the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of individual
Notes in exchange for this Global Note, will authenticate and deliver individual
Notes of like tenor and terms in definitive form in an aggregate principal
amount equal to the principal amount of this Global Note.
The Company may at any time and in its sole discretion determine that all
Notes of this series (but not less than all) issued or issuable in the form of
one or more Global Notes shall no longer be represented by such Global Note or
Notes. In such event, the Company shall execute, and the Trustee, upon receipt
of a Company Order for the authentication and delivery of individual Notes in
exchange for such Global Note, shall authenticate and deliver, individual Notes
of like tenor and terms in definitive form in an aggregate principal amount
equal to the principal amount of such Global Note or Notes in exchange for such
Global Note or Notes.
Under certain circumstances specified in the Indenture, the Depositary may
be required to surrender any two or more Global Notes which have identical terms
(but which may have differing Original Issue Dates) to the Trustee, and the
Company shall execute and the Trustee shall authenticate and deliver to, or at
the direction of, the
A-6
Depositary a Global Note in principal or amount equal to the aggregate principal
amount of, and with all terms identical to, the Global Notes surrendered thereto
and that shall indicate all Original Issue Dates and the principal amount
applicable to each such Original Issue Date.
The Indenture and the Notes shall be governed by, and construed in
accordance with, the laws of the state of Washington.
Unless the certificate of authentication hereon has been executed by the
Trustee, directly or through an Authenticating Agent by manual signature of an
authorized officer, this Global Note shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
All capitalized terms used but not otherwise defined in this Global Note
shall have the respective meanings assigned to them in the Indenture unless
otherwise indicated herein.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
PUGET SOUND ENERGY, INC.
Dated:
By:______________________________________
Title:___________________________________
Attest:__________________________________
Title:___________________________________
A-7
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This Note is one of the Notes of the series
herein designated, described or provided
for in the within-mentioned Indenture.
XXXXX XXXXXX XXXX XXX XXXXX,
XXXXXX, XXXXXXXXXXXXX, as
Trustee
By:_________________________________
Authorized Officer
A-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT
MIN ACT - _____ Custodian _________
(Cust) (Minor)
TEN ENT - as tenants by the entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with right of
survivorship and not as tenants in
common ------------------------------------
State
Additional abbreviations may also be used
though not in the above list.
____________
FOR VALUE RECEIVED the undersigned hereby sell(s),
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
_________________________________________________________
_________________________________________________________
_________________________________________________________
Please print or type name and address
including postal zip code of assignee
the within note and all rights
thereunder, hereby irrevocably
constituting and appointing attorney to
transfer said note on the books of the
Company, with full power of
substitution in the premises.
Dated:________________________
A-9
___________________________________
NOTICE: The signature to this
assignment must correspond with
the name as written upon the
face of the within instrument in
every particular, without
alteration or enlargement or any
change whatever.
A-10
EXHIBIT B
FORM OF NOTE
PRIOR TO SUBSTITUTION DATE
REGISTERED REGISTERED
PUGET SOUND ENERGY, INC.
SENIOR NOTE, SERIES
CUSIP: PRINCIPAL AMOUNT:
ORIGINAL ISSUE DATE: MATURITY DATE:
INTEREST RATE: NUMBER:
PUGET SOUND ENERGY, INC., a corporation of the state of Washington (the
"Company"), for value received hereby promises to pay to
DOLLARS
or registered assigns, the principal sum of
on the Maturity Date set forth above, and to pay interest thereon from the
Original Issue Date set forth above or from the most recent date to which
interest has been paid or duly provided for, semiannually in arrears on
__________ and __________ in each year (each, an "Interest Payment Date"),
commencing on the first such Interest Payment Date succeeding the Original Issue
Date set forth above, at the per annum Interest Rate set forth above, until the
principal hereof is paid or made available for payment. No interest shall
accrue on the Maturity Date, so long as the principal amount of this Note is
paid in full on the Maturity Date. The interest so payable and punctually paid
or duly provided for on any such Interest Payment Date will, as provided in the
Indenture (as defined below), be paid to the Person in whose name this Note is
registered at the close of business on the Regular Record Date for such
interest, which shall be the ___________ or ___________, as the case may be,
next preceding such Interest Payment Date; provided that the first Interest
Payment Date for any Note, the Original Issue Date of which is after a Regular
Record Date but prior to the applicable Interest Payment Date, shall be the
Interest Payment Date following the next succeeding Regular Record Date; and
provided, further, that interest payable on the Maturity Date set forth above
or, if applicable, upon redemption or acceleration, shall be payable to the
Person to whom principal shall be payable. Except as otherwise provided in the
Indenture (referred to on the reverse
B-1
hereof), any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date and
shall be paid to the Person in whose name this Note is registered at the close
of business on a Special Record Date for the payment of such defaulted interest
to be fixed by the Trustee, notice whereof shall be given to Noteholders not
more than 15 days nor fewer than 10 days prior to such Special Record Date.
Principal, applicable premium and interest due at the maturity of this Note
shall be payable in immediately available funds when due upon presentation and
surrender of this Note at the corporate trust office of the Trustee or at the
authorized office of any paying agent. Interest on this Note (other than
interest payable at maturity) shall be paid by check or wire transfer payable in
clearinghouse funds to the Holder as its name appears on the register; provided
that if the Trustee receives a written request from any Holder of Notes, the
aggregate principal amount of which having the same Interest Payment Date as
this Note equals or exceeds $10,000,000, on or before the applicable Regular
Record Date, interest on this Note shall be paid by wire transfer of immediately
available funds to a bank designated by such Holder in its request or by direct
deposit into the account of such Holder designated by such Holder in its request
if such account is maintained with the Trustee or any paying agent.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH
IN FULL ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH IN FULL AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof directly or through an Authenticating
Agent by manual signature of an authorized officer, this Note shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
PUGET SOUND ENERGY, INC.
By:_______________________________________________
Title:____________________________________________
B-2
Attest:___________________________________________
Title:____________________________________________
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This Note is one of the Notes of the
series herein designated, described or
provided for in the within-mentioned
Indenture.
XXXXX XXXXXX XXXX XXX XXXXX, XXXXXX,
XXXXXXXXXXXXX, as Trustee
By:______________________________
Authorized Officer
B-3
[FORM OF REVERSE OF NOTE]
PUGET SOUND ENERGY, INC.
SENIOR NOTES SERIES
This Note is one of a duly authorized issue of Senior Notes, Series ____
(the "Notes of this Series") of the Company issued and to be issued under an
Indenture dated as of _____________, 1997 between the Company and State Street
Bank and Trust, Boston, Massachusetts, as trustee (the "Trustee", which term
includes any successor Trustee under the Indenture) and indentures supplemental
thereto (collectively, the "Indenture"). Under the Indenture, one or more
series of notes may be issued and, as used herein, the term "Notes" refers to
the Notes of this series and any other outstanding series of Notes. Reference is
hereby made for a more complete statement of the respective rights, limitations
of rights, duties and immunities under the Indenture of the Company, the Trustee
and the Noteholders and of the terms upon which the Notes are and are to be
authenticated and delivered. This Note is one of the series designated on the
face hereof limited in aggregate principal amount to $___________.
Prior to the Substitution Date (as hereinafter defined), the Notes will be
secured by first mortgage bonds (the "Pledged First Mortgage Bonds" delivered by
the Company to the Trustee for the benefit of the Holders of the Notes, issued
under either (a) the Fortieth Supplemental Indenture, dated September 1, 1954,
from the Company to State Street Bank and Trust, Boston, Massachusetts, as
successor trustee (the "Electric Mortgage Trustee"), as supplemented and amended
(the "Electric Mortgage"), or (b) the Indenture of First Mortgage, dated April
1, 1957, from the Company, as successor to Washington Natural Gas Company, to
Xxxxxx Trust and Savings Bank, Chicago, Illinois, as trustee (the "Gas Mortgage
Trustee" and, together with the Electric Mortgage Trustee, the "Mortgage
Trustee"), as supplemented and amended (the "Gas Mortgage" and, together with
the Electric Mortgage, the "First Mortgages"). Reference is made to the First
Mortgages and the Indenture for a description of the rights of the Trustee as
holder of the Pledged First Mortgage Bonds, the property mortgaged and pledged
under each of the First Mortgages, the rights of the Company and of the
applicable Mortgage Trustee in respect thereof, the duties and immunities of the
applicable Mortgage Trustee, the terms and conditions upon which the Pledged
First Mortgage Bonds are secured and the circumstances under which additional
first mortgage bonds may be issued.
FROM AND AFTER SUCH TIME AS ALL FIRST MORTGAGE BONDS (OTHER THAN PLEDGED
FIRST MORTGAGE BONDS) ISSUED UNDER EITHER OF THE FIRST MORTGAGES HAVE BEEN
RETIRED THROUGH PAYMENT, REDEMPTION OR OTHERWISE (INCLUDING THOSE FIRST MORTGAGE
B-4
BONDS THE PAYMENT FOR WHICH HAS BEEN PROVIDED FOR IN ACCORDANCE WITH THE
APPLICABLE FIRST MORTGAGE) AT, BEFORE OR AFTER THE MATURITY THEREOF (THE
"SUBSTITUTION DATE"), THE PLEDGED FIRST MORTGAGE BONDS SHALL CEASE TO SECURE THE
NOTES IN ANY MANNER, AND, AT THE OPTION OF THE COMPANY, THE NOTES EITHER (A)
WILL BECOME UNSECURED GENERAL OBLIGATIONS OF THE COMPANY OR (B) WILL BE SECURED
BY FIRST MORTGAGE BONDS ISSUED UNDER AN INDENTURE OTHER THAN THE FIRST
MORTGAGES. IN CERTAIN CIRCUMSTANCES PRIOR TO THE SUBSTITUTION DATE AS PROVIDED
IN THE INDENTURE, THE COMPANY IS PERMITTED TO REDUCE THE AGGREGATE PRINCIPAL
AMOUNT OF A SERIES OF PLEDGED FIRST MORTGAGE BONDS HELD BY THE TRUSTEE, BUT IN
NO EVENT PRIOR TO THE SUBSTITUTION DATE TO AN AMOUNT LESS THAN THE AGGREGATE
OUTSTANDING PRINCIPAL AMOUNT OF THE RELATED ISSUE OF NOTES INITIALLY ISSUED
CONTEMPORANEOUSLY WITH SUCH PLEDGED FIRST MORTGAGE BONDS.
[If applicable, one of the following two sentences: This Note may not be
redeemed prior to ____________, _____. This Note is not redeemable prior to the
Maturity Date set forth on the face hereof] [If applicable: On or after
__________, _____________, this Note is redeemable in whole or in part in
increments of $1,000 (provided that any remaining principal amount of this Note
shall be at least $1,000) at the option of the Company at the following
redemption prices (expressed as a percentage of the principal amount to be
redeemed) plus accrued interest to the redemption date:
Redemption Periods Redemption Prices
------------------------------------- ------------------------------------------
Notice of redemption will be given by mail to Holders of Notes of this
issue not less than 30 or more than 60 days prior to the date fixed for
redemption, all as provided in the Indenture. In the event of redemption of
this Note in part only, a new Note or Notes of like tenor for the unredeemed
portion hereof will be issued in the name of the Noteholder hereof upon the
surrender hereof.]
Interest payments for this Note shall be computed and paid on the basis of
a 360-day year of twelve 30-day months. If any Interest Payment Date or the
date on which the principal of this Note is required to paid is not a Business
Day, then payment of principal, premium or interest need not be made on such
date but may be made on the next succeeding Business Day with the same force and
effect as if made on such Interest Payment Date or the date on which the
principal of this Note is
B-5
required to be paid, and, in the case of timely payment thereof, no interest
shall accrue for the period from and after such Interest Payment Date or the
date on which the principal of this Note is required to be paid.
The Company, at its option, and subject to the terms and conditions
provided in the Indenture, will be discharged from any and all obligations in
respect of the Notes (except for certain obligations as specifically set forth
in the Indenture) if the Company deposits with the Trustee money, U.S.
Government Obligations which through the payment of interest thereon and
principal thereof in accordance with their terms will provide money, or a
combination of money and U.S. Government Obligations, in any event in an amount
sufficient, without reinvestment, as certified by an independent public
accounting firm of national reputation in a written certification delivered to
the Trustee, to pay at maturity or the applicable redemption date (provided that
notice of redemption shall have been duly given or irrevocable provision
satisfactory to the Trustee shall have been duly made for the giving of any
notice of redemption) all outstanding Notes, including principal and any premium
and interest due or to become due to such date of maturity, as the case may be.
If an Event of Default shall occur and be continuing, the principal of the
Notes may be declared due and payable in the manner and with the effect provided
in the Indenture and, upon such declaration, the Trustee can demand the
redemption of the Pledged First Mortgage Bonds as provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modifications of the rights and obligations of the
Company and the rights of the Noteholders under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of not less than a
majority in principal amount of the outstanding Notes affected by such amendment
or modifications. Any such consent or waiver by the Holder of this Note shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange therefor in lieu thereof whether or not notation of such consent or
waiver is made upon the Note.
As set forth in and subject to the provisions of the Indenture, no Holder
of any Notes will have any right to institute any proceeding with respect to the
Indenture or for any remedy thereunder unless such Holder shall have previously
given to the Trustee written notice of a continuing Event of Default with
respect to such Notes, the Holders of not less than a majority in principal
amount of the outstanding Notes affected by such Event of Default shall have
made written request and offered reasonable indemnity to the Trustee to
institute such proceeding as Trustee and the Trustee shall have failed to
institute such proceeding within 60 days; provided that such limitations do not
apply to a suit instituted by the Holder hereof for the
B-6
enforcement of payment of the principal of and any premium or interest on this
Note on or after the respective due dates expressed herein.
No reference herein to the Indenture and to provisions of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Note at the times, places and rates and the coin or currency prescribed
in the Indenture.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note is registrable in the Note register. Upon
surrender of this Note for registration or transfer at the corporate trust
office of the Trustee or such other office or agency as may be designated by the
Company in the Borough of Manhattan, the City and State of New York, endorsed by
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Note registrar, duly executed by the Holder hereof or the
attorney in fact of such Holder duly authorized in writing, one or more new
Notes of like tenor and of authorized denominations and for the same aggregate
principal amount will be issued to the designated transferee or transferees.
The Notes of this series are issuable only in registered form, without
coupons, in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Notes are exchangeable for a like aggregate principal amount of Notes of like
tenor and of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner thereof for all
purposes, whether or not this Note is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Notes shall be governed by, and construed in
accordance with, the laws of the state of Washington.
All capitalized terms used but not otherwise defined in this Note shall
have the respective meanings assigned to them in the Indenture.
B-7
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT
MIN ACT - _____ Custodian _________
(Cust) (Minor)
TEN ENT - as tenants by the entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with right of
survivorship and not as tenants in
common -------------------------------------
State
Additional abbreviations may also be used
though not in the above list.
____________
FOR VALUE RECEIVED the undersigned hereby sell(s),
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
Please print or type name and address
including postal zip code of assignee
the within note and all rights
thereunder, hereby irrevocably
constituting and appointing attorney to
transfer said note on the books of the
Company, with full power of
substitution in the premises.
Dated:__________________________
B-8
__________________________________
NOTICE: The signature to this
assignment must correspond with
the name as written upon the
face of the within instrument in
every particular, without
alteration or enlargement or any
change whatever.
B-9
EXHIBIT C
FORM OF GLOBAL NOTE FOLLOWING SUBSTITUTION DATE
REGISTERED REGISTERED
THIS NOTE IS A GLOBAL NOTE REGISTERED IN THE NAME OF THE DEPOSITARY
(REFERRED TO HEREIN) OR A NOMINEE THEREOF AND, UNLESS AND UNTIL IT IS EXCHANGED
IN WHOLE OR IN PART FOR THE INDIVIDUAL NOTES REPRESENTED HEREBY, THIS GLOBAL
NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF
THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY UNLESS THIS
GLOBAL NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TRUST
COMPANY (55 XXXXX XXXXXX XXX XXXX, XXX XXXX), TO THE TRUSTEE FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO. ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
PUGET SOUND ENERGY, INC.
SENIOR NOTE, SERIES
CUSIP: NUMBER:
ORIGINAL ISSUE DATE(S): PRINCIPAL AMOUNT(S):
INTEREST RATE: MATURITY DATE:
PUGET SOUND ENERGY, INC., a corporation of the state of Washington (the
"Company"), for value received hereby promises to pay to Cede & Co. or
registered assigns, the principal sum of
DOLLARS
C-1
on the Maturity Date set forth above, and to pay interest thereon from the
Original Issue Date (or if this Global Note has two or more Original Issue
Dates, interest shall, beginning on each such Original Issue Date, begin to
accrue for that part of the principal amount to which that Original Issue Date
is applicable) set forth above or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semiannually in arrears on
the __________ and __________ in each year (each, an "Interest Payment Date"),
commencing on the first such Interest Payment Date succeeding the applicable
Original Issue Date set forth above, at the per annum Interest Rate set forth
above, until the principal hereof is paid or made available for payment. No
interest shall accrue on the Maturity Date, so long as the principal amount of
this Global Note is paid on the Maturity Date. The interest so payable and
punctually paid or duly provided for on any such Interest Payment Date will, as
provided in the Indenture, be paid to the Person in whose name this Note is
registered at the close of business on the Regular Record Date for such
interest, which shall be the ___________ or ____________, as the case may be,
next preceding such Interest Payment Date; provided that the first Interest
Payment Date for any part of this Note, the Original Issue Date of which is
after a Regular Record Date but prior to the applicable Interest Payment Date,
shall be the Interest Payment Date following the next succeeding Regular Record
Date; and provided that interest payable on the Maturity Date set forth above
or, if applicable, upon redemption or acceleration, shall be payable to the
Person to whom principal shall be payable. Except as otherwise provided in the
Indenture (as defined below), any such interest not so punctually paid or duly
provided for shall forthwith cease to be payable to the Holder on such Regular
Record Date and shall be paid to the Person in whose name this Note is
registered at the close of business on a Special Record Date for the payment of
such defaulted interest to be fixed by the Trustee, notice whereof shall be
given to Noteholders not more than fifteen days or fewer than ten days prior to
such Special Record Date. On or before ______, New York City time, or such
other time as shall be agreed upon between the Trustee and the Depositary, of
the day on which such payment of interest is due on this Global Note (other than
maturity), the Trustee shall pay to the Depositary such interest in same day
funds. On or before _______, New York City time, or such other time as shall be
agreed upon between the Trustee and the Depositary, of the day on which
principal, interest payable at maturity and premium, if any, is due on this
Global Note, the Trustee shall deposit with the Depositary the amount equal to
the principal, interest payable at maturity and premium, if any, by wire
transfer into the account specified by the Depositary. As a condition to the
payment, on the Maturity Date or upon redemption or acceleration, of any part of
the principal and applicable premium of this Global Note, the Depositary shall
surrender, or cause to be surrendered, this Global Note to the Trustee,
whereupon a new Global Note shall be issued to the Depositary.
C-2
This Global Note is a global security in respect of a duly authorized issue
of Senior Notes, Series ___ (the "Notes of this Series," which term includes any
Global Notes representing such Notes) of the Company issued and to be issued
under an Indenture dated as of ________, 1997 between the Company and State
Street Bank and Trust, Boston, Massachusetts, as trustee (the "Trustee," which
term includes any successor Trustee under the Indenture) and indentures
supplemental thereto (collectively, the "Indenture"). Under the Indenture, one
or more series of notes may be issued and, as used herein, the term "Notes"
refers to the Notes of this series and any other outstanding series of Notes.
Reference is hereby made to the Indenture for a more complete statement of the
respective rights, limitations of rights, duties and immunities under the
Indenture of the Company, the Trustee and the Noteholders and of the terms upon
which the Notes are and are to be authenticated and delivered. This Global Note
has been issued in respect of the series designated on the first page hereof
limited in aggregate principal amount to $__________.
[Include the following paragraph if the Company elects to issue Pledged
Substituted Mortgage Bonds (as defined in the Indenture): The Notes will be
secured by first mortgage bonds (the "Pledged First Mortgage Bonds") delivered
by the Company to the Trustee for the benefit of the Holders of the Notes,
issued under [the Substituted Mortgage (as defined in the Indenture)] from the
Company to ________________, as trustee (the "Mortgage Trustee"), as
supplemented and amended (the "First Mortgage"). Reference is made to the First
Mortgage and the Indenture for a description of the rights of the Trustee as
holder of the Pledged First Mortgage Bonds, the property mortgaged and pledged
under the First Mortgage, the rights of the Company and of the Mortgage Trustee
in respect thereof, the duties and immunities of the Mortgage Trustee, the terms
and conditions upon which the Pledged First Mortgage Bonds are secured and the
circumstances under which additional first mortgage bonds may be issued.]
Each Note shall be dated and issued as of the date of its authentication by
the Trustee and shall bear an Original Issue Date or Dates. Each Note or Global
Note issued upon transfer, exchange or substitution of such Note or Global Note
shall bear the Original Issue Date or Dates of such transferred, exchanged or
substituted Note or Global Note, as the case may be.
[If applicable, one of the following two sentences: This Global Note may
not be redeemed prior to ____________, ____. This Global Note is not redeemable
prior to the Maturity Date set forth on the first page hereof.] [If applicable:
On or after _______________, ____, this Global Note is redeemable in whole or in
part in increments of $1,000 (provided that any remaining principal amount of
this Global Note shall be at least $100,000) at the option of the Company at the
following
C-3
redemption prices (expressed as a percentage of the principal amount to be
redeemed) plus accrued interest to the redemption date:
Redemption Periods Redemption Prices
---------------------------------------- --------------------------------------
Notice of redemption will be given by mail to Holders of Notes of this issue not
less than 30 or more than 60 days prior to the date fixed for redemption, all as
provided in the Indenture. In the event of redemption of this Global Note in
part only, a new Global Note or Notes of like tenor and series for the
unredeemed portion hereof will be issued in the name of the Noteholder hereof
upon the surrender hereof.]
Interest payments for this Global Note shall be computed and paid on the
basis of a 360-day year of twelve 30-day months. If any Interest Payment Date
or the date on which the principal of this Global Note is required to be paid is
not a Business Day, then payment of principal, premium or interest need not be
made on such date but may be made on the next succeeding Business Day with the
same force and effect as if made on such Interest Payment Date or date on which
the principal of this Global Note is required to be paid and, in the case of
timely payment thereof no interest shall accrue for the period from and after
such Interest Payment Date or the date on which the principal of this Global
Note is required to be paid.
The Company, at its option, and subject to the terms and conditions
provided in the Indenture, will be discharged from any and all obligations in
respect of the Notes (except for certain obligations specifically as set forth
in the Indenture) if the Company deposits with the Trustee money, U.S.
Government Obligations which through the payment of interest thereon and
principal thereof in accordance with their terms will provide money, or a
combination of money and U.S. Government Obligations, in any event in an amount
sufficient, without reinvestment, as certified by an independent public
accounting firm of national reputation in a written certification delivered to
the Trustee, to pay at maturity or the applicable redemption date (provided that
notice of redemption shall have been duly given or irrevocable provision
satisfactory to the Trustee shall have been duly made for the giving of any
notice of redemption) all outstanding Notes, including principal and any premium
and interest due or to become due to such date of maturity, as the case may be.
If an Event of Default shall occur and be continuing, the principal of the
Notes may be declared due and payable in the manner and with the effect provided
in the Indenture.
C-4
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modifications of the rights and obligations of the
Company and the rights of the Noteholders under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of not less than a
majority in principal amount of the outstanding Notes affected by such amendment
or modifications. Any such consent or waiver by the Holder of this Global Note
shall be conclusive and binding upon such Holder and upon all future Holders of
this Global Note and of any Note issued upon the registration of transfer hereof
or in exchange therefor or in lieu thereof whether or not notation of such
consent or waiver is made upon the Note.
As set forth in and subject to the provisions of the Indenture, no Holder
of any Notes will have any right to institute any proceeding with respect to the
Indenture or for any remedy thereunder unless such Holder shall have previously
given to the Trustee written notice of a continuing Event of Default with
respect to such Notes, the Holders of not less than a majority in principal
amount of the outstanding Notes affected by such Event of Default shall have
made written request and offered reasonable indemnity to the Trustee to
institute such proceeding as Trustee and the Trustee shall have failed to
institute such proceeding within 60 days; provided that such limitations do not
apply to a suit instituted by the Holder hereof for the enforcement of payment
of the principal of and any premium or interest on this Note on or after the
respective due dates expressed herein.
No reference herein to the Indenture and to provisions of this Global Note
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Global Note at the times, places and rates and the coin or
currency prescribed in the Indenture.
As provided in the Indenture and subject to certain limitations therein set
forth, this Global Note may be transferred only as permitted by the legend
hereto.
If at any time the Depositary for this Global Note notifies the Company
that it is unwilling or unable to continue as Depositary for this Global Note or
if at any time the Depositary for this Global Note shall no longer be eligible
or in good standing under the Securities Exchange Act of 1934, as amended, or
other applicable statute or regulation, the Company shall appoint a successor
Depositary with respect to this Global Note. If a successor Depositary for this
Global Note is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company's
election to issue this Note in global form shall no longer be effective with
respect to this Global Note and the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery
C-5
of individual Notes in exchange for this Global Note, will authenticate and
deliver individual Notes of like tenor and terms in definitive form in an
aggregate principal amount equal to the principal amount of this Global Note.
The Company may at any time and in its sole discretion determine that all
Notes (but not less than all) issued or issuable in the form of one or more
Global Notes shall no longer be represented by such Global Note or Notes. In
such event, the Company shall execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of individual Notes in
exchange for such Global Note, shall authenticate and deliver, individual Notes
of like tenor and terms in definitive form in an aggregate principal amount
equal to the principal amount of such Global Note or Notes in exchange for such
Global Note or Notes.
Under certain circumstances specified in the Indenture, the Depositary may
be required to surrender any two or more Global Notes which have identical terms
(but which may have differing Original Issue Dates) to the Trustee, and the
Company shall execute and the Trustee shall authenticate and deliver to, or at
the direction of, the Depositary a Global Note in principal or amount equal to
the aggregate principal amount of, and with all terms identical to, the Global
Notes surrendered thereto and that shall indicate all Original Issue Dates and
the principal amount applicable to each such Original Issue Date.
The Indenture and the Notes shall be governed by, and construed in
accordance with, the laws of the state of Washington.
Unless the certificate of authentication hereon has been executed by the
Trustee, directly or through an Authenticating Agent by manual signature of an
authorized officer, this Global Note shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
All capitalized terms used but not otherwise defined in this Global Note
shall have the respective meanings assigned to them in the Indenture unless
otherwise indicated herein.
C-6
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
PUGET SOUND ENERGY, INC.
Dated:
By:____________________________
Title:_________________________
Attest:________________________
Title:_________________________
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This Note is one of the Notes of the
series herein designated, described or
provided for in the within-mentioned
Indenture.
XXXXX XXXXXX XXXX XXX XXXXX,
XXXXXX, XXXXXXXXXXXXX, as
Trustee
By:____________________________
Authorized Officer
C-7
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT
MIN ACT - _____ Custodian _______
(Cust) (Minor)
TEN ENT - as tenants by the entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with right of
survivorship and not as tenants in
common ---------------------------------
State
Additional abbreviations may also be used
though not in the above list.
____________
FOR VALUE RECEIVED the undersigned hereby sell(s),
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
Please print or type name and address
including postal zip code of assignee
the within note and all rights thereunder,
hereby irrevocably constituting and
appointing attorney to transfer said note
on the books of the Company, with full
power of substitution in the premises.
Dated:_______________________________
C-8
_____________________________________
NOTICE: The signature to this
assignment must correspond with
the name as written upon the
face of the within instrument in
every particular, without
alteration or enlargement or any
change whatever.
C-9
EXHIBIT D
FORM OF NOTE FOLLOWING SUBSTITUTION DATE
REGISTERED REGISTERED
PUGET SOUND ENERGY, INC.
SENIOR NOTE, SERIES
CUSIP: PRINCIPAL AMOUNT:
ORIGINAL ISSUE DATE(S): MATURITY DATE:
INTEREST RATE: NUMBER:
PUGET SOUND ENERGY, INC., a corporation of the state of Washington (the
"Company"), for value received hereby promises to pay to or registered assigns,
the principal sum of
DOLLARS
on the Maturity Date set forth above, and to pay interest thereon from the
Original Issue Date set forth above or from the most recent date to which
interest has been paid or duly provided for, semiannually in arrears on
__________ and __________ in each year (each, an "Interest Payment Date"),
commencing on the first such Interest Payment Date succeeding the Original Issue
Date set forth above, at the per annum Interest Rate set forth above, until the
principal hereof is paid or made available for payment. No interest shall
accrue on the Maturity Date, so long as the principal amount of this Note is
paid in full on the Maturity Date. The interest so payable and punctually paid
or duly provided, further, for on any such Interest Payment Date will, as
provided in the Indenture (as defined below), be paid to the Person in whose
name this Note is registered at the close of business on the Regular Record Date
for such interest, which shall be the __________ or __________ , as the case may
be, next preceding such Interest Payment Date; provided that the first Interest
Payment Date for any Note, the Original Issue Date of which is after a Regular
Record Date but prior to the applicable Interest Payment Date, shall be the
Interest Payment Date following the next succeeding Regular Record Date; and
provided, further, that interest payable on the Maturity Date set forth above
or, if applicable, upon redemption or acceleration, shall be payable to the
Person to whom principal shall be payable. Except as otherwise provided in the
Indenture (referred to on the reverse
D-1
hereof), any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date and
shall be paid to the Person in whose name this Note is registered at the close
of business on a Special Record Date for the payment of such defaulted interest
to be fixed by the Trustee, notice whereof shall be given to Noteholders not
more than 15 days nor fewer than 10 days prior to such Special Record Date.
Principal, applicable premium and interest due at the maturity of this Note
shall be payable in immediately available funds when due upon presentation and
surrender of this Note at the corporate trust office of the Trustee or at the
authorized office of any paying agent. Interest on this Note (other than
interest payable at maturity) shall be paid by check or wire transfer payable in
clearinghouse funds to the Holder as its name appears on the register; provided,
that if the Trustee receives a written request from any Holder of Notes, the
aggregate principal amount of which having the same Interest Payment Date as
this Note equals or exceeds $10,000,000, on or before the applicable Regular
Record Date, interest on the Note shall be paid by wire transfer of immediately
available funds to a bank designated by such Holder in its request or by direct
deposit into the account of such Holder designated by such Holder in its request
if such account is maintained with the Trustee or any Paying agent.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH
IN FULL ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH IN FULL AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof directly or through an Authenticating
Agent by manual signature of an authorized officer, this Note shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
PUGET SOUND ENERGY, INC.
Dated:
By:______________________________________
Title:___________________________________
Attest:__________________________________
Title:___________________________________
D-2
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This Note is one of the Notes of the
series herein designated, described or
provided for in the within-mentioned
Indenture.
XXXXX XXXXXX XXXX XXX XXXXX, XXXXXX,
XXXXXXXXXXXXX, as Trustee
By:______________________________________
Authorized Officer
D-3
[FORM OF REVERSE OF NOTE]
PUGET SOUND ENERGY, INC.
SENIOR NOTE, SERIES
This Note is one of a duly authorized issue of Senior Notes, Series ___
(the "Notes of this Series") of the Company issued and to be issued under an
Indenture dated as of ________, 1997, between the Company and State Street Bank
and Trust, Boston, Massachusetts, as trustee (herein called the "Trustee"),
which term includes any successor Trustee under the Indenture) and indentures
supplemental thereto (collectively, the "Indenture"). Under the Indenture, one
or more series of notes may be issued and, as used herein, the term "Notes"
refers to the Notes of this series and any other outstanding series of Notes.
Reference is hereby made for a more complete statement of the respective rights,
limitations of rights, duties and immunities under the Indenture of the Company,
the Trustee and the Noteholders and of the terms upon which the Notes are and
are to be authenticated and delivered. This Note is one of the series
designated on the face hereof limited in aggregate principal amount to
$__________.
[Include the following paragraph if the Company elects to issue Pledged
Substituted Mortgage Bonds (as defined in the Indenture): The Notes will be
secured by first mortgage bonds (the "Pledged First Mortgage Bonds") delivered
by the Company to the Trustee for the benefit of the Holders of the Notes,
issued under [the Substituted Mortgage (as defined in the Indenture)] from the
Company to ________________, as trustee (the "Mortgage Trustee"), as
supplemented and amended (the "First Mortgage"). Reference is made to the First
Mortgage and the Indenture for a description of the rights of the Trustee as
holder of the Pledged First Mortgage Bonds, the property mortgaged and pledged
under the First Mortgage, the rights of the Company and of the Mortgage Trustee
in respect thereof, the duties and immunities of the Mortgage Trustee, the terms
and conditions upon which the Pledged First Mortgage Bonds are secured and the
circumstances under which additional first mortgage bonds may be issued.]
[If applicable, one of the following two sentences: This Note may not be
redeemed prior to __________, ____. This Note is not redeemable prior to the
Maturity Date set forth on the face hereof.] [If applicable: On or after
________, ____, this Note is redeemable in whole or in part in increments of
$1,000 (provided that any remaining principal amount of this Note shall be at
least $1,000) at the option of the Company at the following redemption prices
(expressed as a percentage of the principal amount to be redeemed) plus accrued
interest to the redemption date:
D-4
Redemption Periods Redemption Prices
------------------------------------- ------------------------------------------
Notice of redemption will be given by mail to Holders of Notes of this
issue not less than 30 or more than 60 days prior to the date fixed for
redemption, all as provided in the Indenture. In the event of redemption of
this Note in part only, a new Note or Notes of like tenor for the unredeemed
portion hereof will be issued in the name of the Noteholder hereof upon the
surrender hereof.]
Interest payments for this Note shall be computed and paid on the basis of
a 360-day year of twelve 30-day months. If any Interest Payment Date or the
date on which the principal of this Note is required to paid is not a Business
Day, then payment of principal, premium or interest need not be made on such
date but may be made on the next succeeding Business Day with the same force and
effect as if made on such Interest Payment Date or the date on which the
principal of this Note is required to be paid, and, in the case of timely
payment thereof, no interest shall accrue for the period from and after such
Interest Payment Date or the date on which the principal of this Note is
required to be paid.
The Company, at its option, and subject to the terms and conditions
provided in the Indenture, will be discharged from any and all obligations in
respect of the Notes (except for certain obligations as specifically set forth
in the Indenture) if the Company deposits with the Trustee money, U.S.
Government Obligations which through the payment of interest thereon and
principal thereof in accordance with their terms will provide money, or a
combination of money and U.S. Government Obligations, in any event in an amount
sufficient, without reinvestment, as certified by an independent public
accounting firm of national reputation in a written certification delivered to
the Trustee, to pay at maturity or the applicable redemption date (provided that
notice of redemption shall have been duly given or irrevocable provision
satisfactory to the Trustee shall have been duly made for the giving of any
notice of redemption) all outstanding Notes, including principal and any premium
and interest due or to become due to such date of maturity, as the case may be.
If an Event of Default shall occur and be continuing, the principal of the
Notes may be declared due and payable in the manner and with the effect provided
in the
D-5
Indenture and, upon such declaration, the Trustee can demand the redemption of
the Pledged First Mortgage Bonds as provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modifications of the rights and obligations of the
Company and the rights of the Noteholders under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of not less than a
majority in principal amount of the outstanding Notes affected by such amendment
or modification. Any such consent or waiver by the Holder of this Note shall be
conclusive and binding upon such Holder and upon all future Holders of this Note
and of any Note issued upon the registration of transfer hereof or in exchange
therefor in lieu thereof whether or not notation of such consent or waiver is
made upon the Note.
As set forth in and subject to the provisions of the Indenture, no Holder
of any Notes will have any right to institute any proceeding with respect to the
Indenture or for any remedy thereunder unless such Holder shall have previously
given to the Trustee written notice of a continuing Event of Default with
respect to such Notes, the Holders of not less than a majority in principal
amount of the outstanding Notes affected by such Event of Default shall have
made written request and offered reasonable indemnity to the Trustee to
institute such proceeding as Trustee and the Trustee shall have failed to
institute such proceeding within 60 days; provided that such limitations do not
apply to a suit instituted by the Holder hereof for the enforcement of payment
of the principal of and any premium or interest on this Note on or after the
respective due dates expressed herein.
No reference herein to the Indenture and to provisions of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Note at the times, places and rates and the coin or currency prescribed
in the Indenture.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note is registrable in the Note register. Upon
surrender of this Note for registration or transfer at the corporate trust
office of the Trustee or such other office or agency as may be designated by the
Company in the Borough of Manhattan, the City and State of New York, endorsed by
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Note registrar, duly executed by the Holder hereof or the
attorney in fact of such Holder duly authorized in writing, one or more new
Notes of like tenor and of authorized denominations and for the same aggregate
principal amount will be issued to the designated transferee or transferees.
D-6
The Notes of this series are issuable only in registered form, without
coupons, in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Notes are exchangeable for a like aggregate principal amount of Notes of like
tenor and of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner thereof for all
purposes, whether or not this Note is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Notes shall be governed by, and construed in
accordance with, the laws of the state of Washington.
All capitalized terms used but not otherwise defined in this Note shall
have the respective meanings assigned to them in the Indenture.
D-7
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT
MIN ACT - _____ Custodian _________
(Cust) (Minor)
TEN ENT - as tenants by the entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with right of
survivorship and not as tenants in
common -------------------------------------
State
Additional abbreviations may also be used
though not in the above list.
____________
FOR VALUE RECEIVED the undersigned hereby sell(s),
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
Please print or type name and address
including postal zip code of assignee
the within note and all rights
thereunder, hereby irrevocably
constituting and appointing attorney to
transfer said note on the books of the
Company, with full power of
substitution in the premises.
Dated:____________________________
D-8
________________________________________
NOTICE: The signature to this
assignment must correspond with
the name as written upon the
face of the within instrument in
every particular, without
alteration or enlargement or any
change whatever.
D-9
