EXHIBIT 4.12
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PP&L CAPITAL FUNDING, INC.,
ISSUER
AND
PP&L RESOURCES, INC.,
GUARANTOR
TO
THE CHASE MANHATTAN BANK,
TRUSTEE
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SUPPLEMENTAL INDENTURE NO. 1
DATED AS OF _____________________
SUPPLEMENTAL TO THE SUBORDINATED INDENTURE
DATED AS OF ______________________
ESTABLISHING A SERIES OF SECURITIES DESIGNATED
__% SUBORDINATED DEBENTURES, SERIES ___
LIMITED IN AGGREGATE PRINCIPAL AMOUNT TO $___________
SUPPLEMENTAL INDENTURE NO. 1, dated as of ___________________ among
PP&L CAPITAL FUNDING, INC., a corporation duly organized and existing under the
laws of the State of Delaware (herein called the "Company"), PP&L RESOURCES,
INC., a corporation duly organized and existing under the laws of the
Commonwealth of Pennsylvania (herein called the "Guarantor"), and THE CHASE
MANHATTAN BANK, a New York banking corporation, as Trustee (herein called the
"Trustee"), under the Subordinated Indenture dated as of ______________
(hereinafter called the "Original Indenture"), this Supplemental Indenture No. 1
being supplemental thereto. The Original Indenture and any and all indentures
and instruments supplemental thereto are hereinafter sometimes collectively
called the "Indenture."
RECITALS OF THE COMPANY AND THE GUARANTOR
The Original Indenture was authorized, executed and delivered by the
Company and the Guarantor to provide for the issuance by the Company from time
to time of its Securities (such term and all other capitalized terms used herein
without definition having the meanings assigned to them in the Original
Indenture), to be issued in one or more series as contemplated therein, and for
the Guarantee by the Guarantor of the payment of the principal, premium, if any,
and interest, if any, on such Securities.
As contemplated by Sections 301 and 1201(f) of the Original Indenture,
the Company wishes to establish a series of Securities to be designated "__%
Subordinated Debentures, Series ___" to be limited in aggregate principal amount
(except as contemplated in Section 301(b) of the Original Indenture) to
$___________, such series of Securities to be hereinafter sometimes called
"Series No. 1."
As contemplated by Section 201 and 1402 of the Original Indenture, the
Guarantor wishes to establish the form and terms of the Guarantees to be
endorsed on the Securities of Series No. 1. [The Company and the Guarantor wish
to issue the Securities to _______ (the "Trust") to evidence loans made to the
Company [and the Guarantor] of the proceeds of Preferred Securities and common
beneficial ownership interests in the assets of the Trust to be issued to the
Guarantor ("Common Securities").]
The Company has duly authorized the execution and delivery of this
Supplemental Indenture No. 1 to establish the Securities of Series No. 1 and has
duly authorized the issuance of such Securities; the Guarantor has duly
authorized the execution and delivery of this Supplemental Indenture No. 1 and
has duly authorized its Guarantees of the Securities of Series No. 1; and all
acts necessary to make this Supplemental Indenture No. 1 a valid agreement of
the Company and the Guarantor, to make the Securities of Series No. 1 valid
obligations of the Company, and to make the Guarantees valid obligations of the
Guarantor, have been performed.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE NO. 1 WITNESSETH:
For and in consideration of the premises and of the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities of Series No.
1, as follows:
ARTICLE ONE
FIRST SERIES OF SECURITIES
SECTION 1. There is hereby created a series of Securities designated
"__% Subordinated Debentures, Series ____" and limited in aggregate principal
amount (except as contemplated in Section 301(b) of the Original Indenture) to
$___________. The forms and terms of the Securities of Series No. 1 shall be
established in an Officer's Certificate of the Company, as contemplated by
Section 301 of the Original Indenture.
SECTION 2. The Company hereby agrees that, if the Company shall make
any deposit of money and/or Eligible Obligations with respect to any Securities
of Series No. 1, or any portion of the principal amount thereof, as contemplated
by Section 701 of the Indenture, the Company shall not deliver an Officer's
Certificate described in clause (z) in the first paragraph of said Section 701
unless the Company shall also deliver to the Trustee, together with such
Officer's Certificate, either:
(A) an instrument wherein the Company, notwithstanding the
satisfaction and discharge of its indebtedness in respect of such
Securities, shall assume the obligation (which shall be absolute and
unconditional) to irrevocably deposit with the Trustee or Paying Agent such
additional sums of money, if any, or additional Eligible Obligations
(meeting the requirements of Section 701), if any, or any combination
thereof, at such time or times, as shall be necessary, together with the
money and/or Eligible Obligations theretofore so deposited, to pay when due
the principal of and premium, if any, and interest due and to become due on
such Securities or portions thereof, all in accordance with and subject to
the provisions of said Section 701; provided, however, that such instrument
may state that the obligation of the Company to make additional deposits as
aforesaid shall be subject to the delivery to the Company by the Trustee of
a notice asserting the deficiency accompanied by an opinion of an
independent public accountant of nationally recognized standing, selected
by the Trustee, showing the calculation thereof (which opinion shall be
obtained at the expense of the Company); or
(B) an Opinion of Counsel to the effect that the Holders of such
Securities, or portions of the principal amount thereof, will not recognize
income, gain or loss for United States federal income tax purposes as a
result of the satisfaction and discharge of the Company's indebtedness in
respect thereof and will be subject to United States federal income tax on
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the same amounts, at the same times and in the same manner as if such
satisfaction and discharge had not been effected.
ARTICLE TWO
FORM OF GUARANTEE
Guarantees to be endorsed on the Securities of Series No. 1 shall be
in substantially the form set forth below:
[FORM OF GUARANTEE]
PP&L Resources, Inc., a corporation organized under the laws
of the Commonwealth of Pennsylvania (the "Guarantor", which term
includes any successor under the Indenture (the "Indenture") referred
to in the Security upon which this Guarantee is endorsed), for value
received, hereby unconditionally guarantees to the Holder of the
Security upon which this Guarantee is endorsed, the due and punctual
payment of the principal of, and premium, if any, and interest, if
any, on such Security when and as the same shall become due and
payable, whether at the Stated Maturity, by declaration of
acceleration, call for redemption, or otherwise, in accordance with
the terms of such Security and of the Indenture. In case of the
failure of PP&L Capital Funding, Inc., a corporation organized under
the laws of the State of Delaware (the "Company", which term includes
any successor under the Indenture), punctually to make any such
payment, the Guarantor hereby agrees to cause such payment to be made
punctually when and as the same shall become due and payable, whether
at the Stated Maturity or by declaration of acceleration, call for
redemption or otherwise, and as if such payment were made by the
Company.
The Guarantor hereby agrees that its obligations hereunder
shall be absolute and unconditional irrespective of, and shall be
unaffected by, any invalidity, irregularity or unenforceability of
such Security or the Indenture, any failure to enforce the provisions
of such Security or the Indenture, or any waiver, modification or
indulgence granted to the Company with respect thereto, by the Holder
of such Security or the Trustee or any other circumstance which may
otherwise constitute a legal or equitable discharge or defense of a
surety or guarantor; provided, however, that notwithstanding the
foregoing, no such waiver, modification or indulgence shall, without
the consent of the Guarantor, increase the principal amount of such
Security, or increase the interest rate thereon, or change any
redemption provisions thereof (including any change to increase any
premium payable upon redemption thereof) or change the Stated Maturity
thereof.
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The Guarantor hereby waives the benefits of diligence,
presentment, demand for payment, any requirement that the Trustee or
the Holder of such Security exhaust any right or take any action
against the Company or any other Person, filing of claims with a court
in the event of insolvency or bankruptcy of the Company, any right to
require a proceeding first against the Company, protest or notice with
respect to such Security or the indebtedness evidenced thereby and all
demands whatsoever, and covenants that this Guarantee will not be
discharged in respect of such Security except by complete performance
of the obligations contained in such Security and in this Guarantee.
This Guarantee shall constitute a guaranty of payment and not of
collection. The Guarantor hereby agrees that, in the event of a
default in payment of principal, or premium, if any, or interest, if
any, on such Security, whether at its Stated Maturity, by declaration
of acceleration, call for redemption, or otherwise, legal proceedings
may be instituted by the Trustee on behalf of, or by, the Holder of
such Security, subject to the terms and conditions set forth in the
Indenture, directly against the Guarantor to enforce this Guarantee
without first proceeding against the Company.
The obligations of the Guarantor hereunder with respect to
such Security shall be continuing and irrevocable until the date upon
which the entire principal of, premium, if any, and interest, if any,
on such Security has been, or has been deemed pursuant to the
provisions of Article Seven of the Indenture to have been, paid in
full or otherwise discharged.
The obligations evidenced by this Guarantee are, to the
extent provided in the Indenture, subordinated and subject in right of
payment to the prior payment in full of all Senior Indebtedness (as
defined in the Indenture) of the Guarantor, and this Guarantee is
issued subject to the provisions of the Indenture with respect
thereto. Each Holder of a Security upon which this Guarantee is
endorsed, by accepting the same, (a) agrees to and shall be bound by
such provisions, (b) authorizes and directs the Trustee on his behalf
to take such action as may be necessary or appropriate to acknowledge
or effectuate the subordination so provided and (c) appoints the
Trustee his attorney-in fact for any and all such purposes. Each
Holder hereof, by his acceptance hereof, hereby waives all notice of
the acceptance of the subordination provisions contained herein and in
the Indenture by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such
Holder upon said provisions.
The Guarantor shall be subrogated to all rights of the
Holder of such Security upon which this Guarantee is endorsed against
the Company in respect of any amounts paid by the Guarantor on account
of such Security pursuant to the provisions of this Guarantee or the
Indenture; provided, however, that the Guarantor shall not be entitled
to enforce or to receive any payments arising out of, or based upon,
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such right of subrogation until the principal of, and premium, if any,
and interest, if any, on all Securities issued under the Indenture
shall have been paid in full.
This Guarantee shall remain in full force and effect and
continue notwithstanding any petition filed by or against the Company
for liquidation or reorganization, the Company becoming insolvent or
making an assignment for the benefit of creditors or a receiver or
trustee being appointed for all or any significant part of the
Company's assets, and shall, to the fullest extent permitted by law,
continue to be effective or reinstated, as the case may be, if at any
time payment of the Security upon which this Guarantee is endorsed,
is, pursuant to applicable law, rescinded or reduced in amount, or
must otherwise be restored or returned by the Holder of such Security,
whether as a "voidable preference," "fraudulent transfer," or
otherwise, all as though such payment or performance had not been
made. In the event that any payment, or any part thereof, is
rescinded, reduced, restored or returned on such Security, such
Security shall, to the fullest extent permitted by law, be reinstated
and deemed paid only by such amount paid and not so rescinded,
reduced, restored or returned.
This Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication of the Security upon
which this Guarantee is endorsed shall have been manually executed by
or on behalf of the Trustee under the Indenture.
All terms used in this Guarantee which are defined in the
Indenture shall have the meanings assigned to them in such Indenture.
This Guarantee shall be deemed to be a contract made under
the laws of the State of New York, and for all purposes shall be
governed by and construed in accordance with the laws of the State of
New York.
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee
to be executed as of the date first written above.
PP&L RESOURCES, INC.
By:
[END OF FORM]
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ARTICLE THREE
PAYMENT OF TRUST COSTS AND EXPENSES
SECTION 1. In connection with the issuance of the Securities
to the Trust, and the loan of the proceeds of the Preferred Securities
and Common Securities to the Company and the Guarantor, the Guarantor
hereby covenants to pay to the Trust, and reimburse the Trust for,
the full amount of any costs, expenses or liabilities of the Trust
(other than obligations of the Trust to pay the Holders of any
Preferred Securities or Common Securities) including, without
limitation, any taxes, duties or other governmental charges of
whatever nature (other than withholding taxes) imposed on the Trust
by the United States or any taxing authority. Such payment obligation
includes any such costs, expenses or liabilities of the Trust that
are required by applicable law to be satisfied in connection with a
termination of the Trust. The obligations of the Guarantor to pay
all debts, obligations, costs and expenses of the Trust (other than
with respect to amounts owing under the Common Securities and the
Preferred Securities) shall survive the satisfaction and discharge
of the Indenture.]
ARTICLE FOURTH
MISCELLANEOUS PROVISIONS
SECTION 1. This Supplemental Indenture No. 1 is a supplement to
the Original Indenture. As supplemented by this Supplemental Indenture No. 1,
the Indenture is in all respects ratified, approved and confirmed, and the
Original Indenture and this Supplemental Indenture No. 1 shall together
constitute one and the same instrument.
SECTION 2. The recitals contained in this Supplemental Indenture
No. 1 shall be taken as the statements of the Company and the Guarantor, and the
Trustee assumes no responsibility for their correctness and makes no
representations as to the validity or sufficiency of this Supplemental Indenture
No. 1.
SECTION 3. This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture No. 1 to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the day and year first
written above.
PP&L CAPITAL FUNDING, INC.
By:
Name:
Title:
[SEAL]
ATTEST:
PP&L RESOURCES, INC.
By:
Name:
Title:
[SEAL]
ATTEST:
THE CHASE MANHATTAN BANK,
as Trustee
By:
Name:
[SEAL] Title:
ATTEST:
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