Exhibit 4.01XX
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NORTHERN STATES POWER COMPANY
(a Minnesota corporation)
AND
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
TRUSTEE
INDENTURE
DATED AS OF _________ __, 199_
______________
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CROSS 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) 9.9 43
310(a)(2) 9.9 43
310(a)(3) NOT APPLICABLE --
310(a)(4) NOT APPLICABLE --
310(a)(5) 9.9 43
310(b) 9.8 43
310(c) NOT APPLICABLE --
311(a) 9.14 46
311(b) 9.14 46
311(c) NOT APPLICABLE --
312(a) 7.1(a) 31
312(b) 7.1(b) 31
312(c) 7.1(c) 32
313(a) 7.3(a) 33
313(b) 7.3(b) 33
313(c) 7.3(d) 33
313(d) 7.3(c) and 7.3(d) 33
314(a) 7.2(a), 7.2(b), 7.2(c) and 6.6 30-32
314(b) 6.5 30
314(c)(1) Definition of Officers' Certificate, 6.6 and 15.5(a) 5;30;56
314(c)(2) Definition of Opinion of Counsel and 15.5 5;56
314(c)(3) NOT APPLICABLE --
314(d)(1) Definition of Expert and 4.6(b) 4;23
314(d)(2) Definition of Expert and 4.6(a) 4;23
314(d)(3) 4.6(a) and 4.6(b) 23
314(e) 15.5(b) 56
314(f) NOT APPLICABLE --
315(a) 9.1 and 9.2 40-42
315(b) 8.8 39
315(c) 9.1(a) 40
315(d) 9.1(b) 40
315(e) 8.9 39
316(a) 8.7 39
10.4 47
13.2 53
316(b) 8.4 38
13.2 53
SECTION OF TRUST
INDENTURE ACT SECTION OF INDENTURE PAGE
---------------- ------------------------------------ ------
316(c) 10.6 48
317(a)(1) 8.2(b) 36
317(a)(2) 8.2(c) 36
317(b) 5.2 27
6.4 29
318(a) 15.7 57
TABLE OF CONTENTS
PAGE
----
Parties......................................................................1
Recitals.....................................................................1
ARTICLE I. DEFINITIONS.......................................................1
Section 1.1. General..............................................1
Section 1.2. Trust Indenture Act..................................1
Section 1.3. Definitions..........................................2
ARTICLE II. FORM, ISSUE, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES.......8
Section 2.1. Form Generally.......................................8
Section 2.2. Form Of Trustee's Certificate Of Authentication......9
Section 2.3. Amount Unlimited.....................................9
Section 2.4. Denominations, Dates, Interest Payment And
Record Dates.......................................9
Section 2.5. Execution, Authentication, Delivery And Dating......10
Section 2.6. Exchange And Registration Of Transfer Of Notes......14
Section 2.7. Mutilated, Destroyed, Lost Or Stolen Notes..........15
Section 2.8. Temporary Notes.....................................16
Section 2.9. Cancellation Of Notes Paid, Etc.....................16
Section 2.10. Interest Rights Preserved...........................16
Section 2.11. Special Record Date.................................16
Section 2.12. Payment Of Notes....................................16
Section 2.13. Notes Issuable In The Form Of A Global Note.........18
ARTICLE III. REDEMPTION OF NOTES............................................20
Section 3.1. Applicability Of Article............................20
Section 3.2. Notice Of Redemption; Selection Of Notes............20
Section 3.3. Payment Of Notes On Redemption; Deposit Of
Redemption Price...................................21
ARTICLE IV. SENIOR NOTE MORTGAGE BONDS......................................22
Section 4.1. Delivery Of Initial Series Of Senior Note
Mortgage Bonds....................................22
Section 4.2. Receipt.............................................22
Section 4.3. Senior Note Mortgage Bonds Held By The Trustee......22
Section 4.4. No Transfer Of Senior Note Mortgage Bonds;
Exception.........................................23
Section 4.5. Delivery To The Company Of All Senior Note
Mortgage Bonds....................................23
Section 4.6. Fair Value Certificate..............................23
Section 4.7. Further Assurances..................................24
Section 4.8. Exchange And Surrender Of Senior Note Mortgage
Bonds............................................24
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Section 4.9. Acceptance Of Additional Senior Note Mortgage
Bonds............................................25
Section 4.10. Terms Of Senior Note Mortgage Bonds................25
Section 4.11. Senior Note Mortgage Bonds As Security For Notes...25
ARTICLE V. SATISFACTION AND DISCHARGE; UNCLAIMED MONEYS....................26
Section 5.1. Satisfaction And Discharge.........................26
Section 5.2. Deposited Moneys To Be Held In Trust By Trustee....28
Section 5.3. Paying Agent To Repay Moneys Held..................28
Section 5.4. Return Of Unclaimed Moneys.........................28
ARTICLE VI. PARTICULAR COVENANTS OF THE COMPANY............................28
Section 6.1. Payment Of Principal, Premium And Interest.........28
Section 6.2. Office For Notices And Payments, Etc. .............28
Section 6.3. Appointments To Fill Vacancies In Trustee's
Office...........................................29
Section 6.4. Provision As To Paying Agent.......................29
Section 6.5. Opinions Of Counsel................................30
Section 6.6. Certificates And Notice To Trustee.................30
ARTICLE VII. NOTEHOLDER LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE...31
Section 7.1. Noteholder Lists...................................31
Section 7.2. Securities And Exchange Commission Reports.........32
Section 7.3. Reports By The Trustee.............................33
ARTICLE VIII. REMEDIES OF THE TRUSTEE AND NOTEHOLDERS ON EVENTS
OF DEFAULT.................................................33
Section 8.1. Events Of Default..................................33
Section 8.2. Payment Of Notes On Default; Suit Therefor.........35
Section 8.3. Application Of Moneys Collected By Trustee.........37
Section 8.4. Proceedings By Noteholders.........................38
Section 8.5. Proceedings By Trustee.............................38
Section 8.6. Remedies Cumulative And Continuing.................38
Section 8.7. Direction Of Proceedings And Waiver Of Defaults
By Majority Of Noteholders.......................39
Section 8.8. Notice Of Default..................................39
Section 8.9. Undertaking To Pay Costs...........................39
ARTICLE IX. CONCERNING THE TRUSTEE.........................................40
Section 9.1. Duties And Responsibilities Of Trustee.............40
Section 9.2. Reliance On Documents, Opinions, Etc. .............41
Section 9.3. No Responsibility For Recitals, Etc. ..............42
Section 9.4. Trustee, Authenticating Agent, Paying Agent
Or Registrar May Own Notes ......................42
Section 9.5. Moneys To Be Held In Trust.........................42
Section 9.6. Compensation And Expenses Of Trustee...............42
iv
Section 9.7. Officers' Certificate As Evidence..................43
Section 9.8. Conflicting Interest Of Trustee....................43
Section 9.9. Existence And Eligibility Of Trustee...............43
Section 9.10. Resignation Or Removal Of Trustee..................43
Section 9.11. Appointment Of Successor Trustee...................44
Section 9.12. Acceptance By Successor Trustee....................45
Section 9.13. Succession By Merger, Etc..........................45
Section 9.14. Limitations On Rights Of Trustee As A Creditor.....46
Section 9.15. Authenticating Agent...............................46
ARTICLE X. CONCERNING THE NOTEHOLDERS......................................47
Section 10.1. Action By Noteholders..............................47
Section 10.2. Proof Of Execution By Noteholders..................47
Section 10.3. Who Deemed Absolute Owners.........................47
Section 10.4. Company-Owned Notes Disregarded....................47
Section 10.5. Revocation Of Consents; Future Holders Bound.......48
Section 10.6. Record Date For Noteholder Acts....................48
ARTICLE XI. NOTEHOLDERS' MEETING...........................................48
Section 11.1. Purposes Of Meetings...............................48
Section 11.2. Call Of Meetings By Trustee........................49
Section 11.3. Call Of Meetings By Company Or Noteholders.........49
Section 11.4. Qualifications For Voting..........................49
Section 11.5. Regulations........................................49
Section 11.6. Voting.............................................50
Section 11.7. Rights Of Trustee Or Noteholders Not Delayed.......50
ARTICLE XII. CONSOLIDATION, MERGER, SALE, TRANSFER OR OTHER DISPOSITION....51
Section 12.1. Company May Consolidate, Etc. Only On Certain
Terms............................................51
Section 12.2. Successor Corporation Substituted..................51
ARTICLE XIII. SUPPLEMENTAL INDENTURES......................................51
Section 13.1. Supplemental Indentures Without Consent Of
Noteholders......................................51
Section 13.2. Supplemental Indentures With Consent Of
Noteholders......................................53
Section 13.3. Compliance With Trust Indenture Act; Effect
Of Supplemental Indentures.......................54
Section 13.4. Notation On Notes..................................54
Section 13.5. Evidence Of Compliance Of Supplemental Indenture
To Be Furnished Trustee..........................54
ARTICLE XIV. IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS...................................................54
Section 14.1. Indenture And Notes Solely Corporate Obligations...54
ARTICLE XV. MISCELLANEOUS PROVISIONS.......................................55
v
Section 15.1. Provisions Binding On Company's Successors.........55
Section 15.2. Official Acts By Successor Corporation.............55
Section 15.3. Notices............................................55
Section 15.4. Governing Law......................................55
Section 15.5. Evidence Of Compliance With Conditions Precedent...55
Section 15.6. Business Days......................................57
Section 15.7. Trust Indenture Act To Control.....................57
Section 15.8. Table Of Contents, Headings, Etc...................57
Section 15.9. Execution In Counterparts..........................57
Section 15.10. Manner Of Mailing Notice To Noteholders............57
Section 15.11. Approval By Trustee Of Expert Or Counsel...........57
EXHIBIT A -- Form of Global Note Prior to Release Date....................A-1
EXHIBIT B -- Form of Note Prior to Release Date...........................B-1
EXHIBIT C -- Form of Global Note Following Release Date...................C-1
EXHIBIT D -- Form of Note Following Release Date..........................D-1
vi
THIS INDENTURE, dated as of ________ __, _____, between NORTHERN
STATES POWER COMPANY, a corporation duly organized and existing under the
laws of the State of Minnesota (the "Company"), and NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, a national banking association organized and existing
under the laws of the United States, as trustee (the "Trustee").
WITNESSETH
WHEREAS, for its lawful corporate purposes, 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 4.11 hereof, the Company
has issued a series of Senior Note Mortgage Bonds (as hereinafter defined) and
has delivered such series to the Trustee to hold in trust for the benefit of the
respective Holders from time to time of the Notes, and, pursuant to the terms
and provisions hereof, the Company may deliver additional Senior Note Mortgage
Bonds to the Trustee for such purpose or require the Trustee to deliver to the
Company for cancellation any and all Senior Note 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, 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 I.
DEFINITIONS
Section 1.1. General. The terms defined in this Article I (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 I.
Section 1.2. 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.
1
(b) Unless otherwise indicated, all terms used in this Indenture
that are defined by the TIA, defined by the TIA by reference to another statute
or defined by a rule of the Commission 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 1.3. 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 the Financing Committee of such Board or any other duly authorized
committee of such Board.
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 Mortgage Indenture or by the 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 and State 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.
2
COMMISSION:
The term "Commission" shall mean the United States Securities and Exchange
Commission, or if at any time hereafter the Commission is not existing or
performing the duties now assigned to it under the TIA, then the body
performing such duties.
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 Corporate Trust Services, Sixth and Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxxxx 00000-0000.
DEPOSITORY:
The term "Depository" shall mean, unless otherwise specified in a Company
Order pursuant to Section 2.5 hereof, The Depository Trust Company, New York,
New York, or any successor thereto registered and qualified under the
Securities 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 8.1
hereof, continued for the period of time, if any, and after the giving of the
notice, if any, therein designated.
EXPERT:
The term "Expert" shall mean any officer of the Company familiar with the
terms of the Mortgage Indenture and this Indenture, any law firm, any
investment banking firm, or any other Person, satisfactory in the reasonable
judgment of the Trustee.
FIRST MORTGAGE BONDS:
3
The term "First Mortgage Bonds" shall mean all first mortgage bonds issued by
the Company and outstanding under the Mortgage Indenture.
GLOBAL NOTE:
The term "Global Note" shall mean a Note that pursuant to Section 2.5 hereof
is issued to evidence Notes, that is delivered to the Depository or pursuant
to the instructions of the Depository and that shall be registered in the
name of the Depository or its nominee.
INDENTURE:
The term "Indenture" shall mean this instrument as originally executed or, if
amended or supplemented as herein provided, as so amended or supplemented.
INTEREST PAYMENT DATE:
The term "Interest Payment Date" shall mean, unless otherwise specified
in a Company Order pursuant to Section 2.5 hereof, (a) each [_______ and
_______] 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 INDENTURE:
The term "Mortgage Indenture" shall mean the Trust Indenture, dated as
of February 1, 1937 from the Company to Xxxxxx Trust and Savings Bank, as
trustee, as supplemented and amended from time to time.
MORTGAGE TRUSTEE:
The term "Mortgage Trustee" shall mean the Person serving as trustee at
the time under the Mortgage Indenture.
NOTE OR NOTES:
4
The terms "Note" or "Notes" shall mean any Note or Notes, as the case may be,
authenticated and delivered under this Indenture, including any Global Note.
NOTEHOLDER:
The terms "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, who may be an employee of the Company, meeting the applicable
requirements of Section 15.5 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.
OPINION OF INDEPENDENT COUNSEL:
The term "Opinion of Independent Counsel" shall mean an opinion in writing
signed by legal counsel, who shall not be an employee of the Company, meeting
the applicable requirements of Section 15.5. Any Opinion of Independent
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 10.4 hereof, mean, as of any particular time, all Notes authenticated
and delivered by the Trustee under this Indenture, except
5
(a) Notes theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(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 III, 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 2.7 hereof.
PERSON:
The term "Person" shall mean any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company, trust,
unincorporated organization or government or any agent or political
subdivision thereof.
PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY:
The term "principal executive offices of the Company" shall mean 000 Xxxxxxxx
Xxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, 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.
REGULAR RECORD DATE:
The term "Regular Record Date" shall mean, unless otherwise specified in a
Company Order pursuant to Section 2.5, for an Interest Payment Date for a
particular Note (a) the fifteenth day of the calendar month next preceding
each Interest Payment Date (unless the Interest Payment Date is the date of
maturity of such Note, in which event, the Regular Record Date shall be as
described in clause (b) hereof) and (b) the date of maturity of such Note.
RELATED SERIES OF NOTES:
The term "related series of Notes" shall mean, when used in reference to
First Mortgage Bonds, Senior Notes Series A, the __% Senior Notes, Series due
_____, and, when used in reference to another series of Senior Note Mortgage
Bonds, shall mean the series of Notes in respect of which such series of
Senior Note Mortgage Bonds were delivered to the Trustee pursuant to Section
4.9 hereof upon the initial authentication and issuance of such series of
Notes pursuant to Section 2.5 hereof.
6
RELATED SERIES OF SENIOR NOTE MORTGAGE BONDS:
The term "related series of Senior Note Mortgage Bonds" shall mean, when used
in reference to the __% Senior Notes, Series due _____, the First Mortgage
Bonds, Senior Note Series A, and, when used in reference to any other series
of Notes, shall mean the series of Senior Note Mortgage Bonds delivered to
the Trustee pursuant to Section 4.9 hereof in connection with the initial
authentication and issuance of such series of Notes pursuant to Section 2.5
hereof.
RELEASE DATE:
The term "Release Date" shall mean the effective date of the amendment to
Article V, Section 6a(i) of the Articles of Incorporation of the Company so
that the approval of preferred stockholders of the Company is no longer
required to issue unsecured debt exceeding 20% of the sum of the secured
debt, capital stock and capital surplus of the Company.
RESTATED INDENTURE:
The term "Restated Indenture" shall mean the Supplemental and Restated Trust
Indenture dated as of May 1, 1988 by and between the Company and Xxxxxx Trust
and Savings Bank, as trustee.
RESPONSIBLE OFFICER:
The term "responsible officer" or "responsible officers" when used with
respect to the Trustee shall mean one or more of the following: the chairman of
the board of directors, the vice chairman of the board of directors, the
chairman of the executive committee, the president, any vice president, the
secretary, the treasurer, any trust officer, any assistant trust officer, any
second or assistant vice president, any assistant secretary, any assistant
treasurer, 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.
SENIOR NOTE MORTGAGE BONDS:
The term "Senior Note Mortgage Bonds" shall mean the First Mortgage Bonds,
Senior Note Series A issued by the Company pursuant to the Supplemental Trust
Indenture dated as of _______, and any other first mortgage bonds issued by
the Company under the Mortgage Indenture and delivered to the Trustee
pursuant to Section 4.09 hereof to secure the payment of the principal of and
interest on the Senior Notes.
7
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.
TRUSTEE:
The term "Trustee" shall mean Norwest Bank Minnesota, National Association
and, subject to Article IX, shall also include any successor Trustee.
U.S. GOVERNMENT OBLIGATIONS:
The term "U.S. Government Obligations" shall mean (i) direct non-callable
obligations of, or non-callable 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.
ARTICLE II.
FORM, ISSUE, EXECUTION, REGISTRATION AND
EXCHANGE OF NOTES
Section 2.1. 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 Release 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 Release 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 Depository or with applicable law or as
may, consistently
8
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 2.2. 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.
Norwest Bank Minnesota, National Association
--------------------------------------------
, as Trustee
By:
-----------------------------------------
Authorized Officer
Section 2.3. 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 2.4. 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 indenture supplemental hereto;
provided that the principal amount of a Global Note shall not exceed
$200,000,000 unless otherwise permitted by the Depository.
(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.
(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.
9
(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
2.5 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 2.5 hereof. Unless otherwise specified in a Company Order pursuant to
Section 2.5 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 Depository 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 to be paid on Notes on such Interest Payment Date and to
the Depository a list of the principal, interest and premium 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 Global Notes. The Trustee
shall assume responsibility for withholding taxes on interest paid as required
by law except with respect to any Global Note.
Section 2.5. Execution, Authentication, Delivery And Dating.
(a) The Notes shall be executed on behalf of the Company by one of its
Chairman, President, any Vice President, its 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 bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
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(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 series 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 series, (iii) the stated maturity
of such series, (iv) the interest rate or rates, or method of calculation of
such rate or rates, for such series, (v) the terms, if any, regarding the
optional or mandatory redemption of such series, including redemption date or
dates of such series, if any, and the price or prices applicable to such
redemption (including any premium), (vi) whether or not the Notes of such series
shall be issued in whole or in part in the form of a Global Note and, if so, the
Depository for such Global Note, (vii) the designation of such series, (viii) if
the form of the Notes of such series is not as described in Exhibit A, Exhibit
B, Exhibit C or Exhibit D hereto, the form of the Notes of such series, (ix) the
maximum annual interest rate, if any, of the Notes permitted for such series,
(x) any other information necessary to complete the Notes of such series, (xi)
if prior to the Release Date, the designation of the related series of Senior
Note Mortgage Bonds being delivered to the Trustee in connection with the
issuance of such series of Notes, (xii) the establishment of any office or
agency pursuant to Section 6.2 hereof, and (xiii) any other terms of such series
not inconsistent with this Indenture. Prior to authenticating Notes of any
series, 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 the initial Note of such series of Notes, and
(subject to Section 9.1 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 2.1 hereof, that
such form has been established in conformity with this Indenture;
(B) that the 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 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
11
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 Release Date, that the related series of
Senior Note Mortgage Bonds being delivered to the Trustee in connection
with the issuance of such series of Notes have been duly authorized,
executed and delivered, and that such Senior Note Mortgage Bonds and
the Mortgage Indenture 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 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 Mortgage Indenture; and that such Senior
Note Mortgage Bonds are entitled to the benefit of the Mortgage
Indenture, equally and ratably, with all First Mortgage Bonds,
including the Senior Note Mortgage Bonds (if any) outstanding
thereunder, except as to sinking fund provisions;
(D) that the Indenture and, if prior to the Release Date, the
Mortgage Indenture are qualified to the extent necessary under the TIA;
(E) 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 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;
(F) that the issuance of the Notes and, if prior to the
Release Date, the delivery by the Company of the related series of
Senior Note Mortgage Bonds in connection therewith will not result in
any default under this Indenture, the Mortgage Indenture (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;
(G) that all consents or approvals of the Minnesota Public
Utilities 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 series of Notes and any
Senior Note Mortgage Bonds have been obtained and not withdrawn (except
that no statement need be made with respect to state securities laws);
and
12
(H) if prior to the Release Date, that the Mortgage Indenture
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 Mortgage Indenture, and the Mortgage
Indenture constitutes a valid and perfected first lien upon the
property purported to be covered thereby, subject only to permissible
encumbrances (as defined in the Mortgage Indenture).
(3) If prior to the Release Date, the certificate of an Expert meeting
the requirements of Section 4.6(a) hereof and a series of Senior Note Mortgage
Bonds meeting the requirements of Section 4.10 hereof (except that such items
need not be delivered in connection with the issue of the first series of Notes
hereunder, as such items have previously been delivered under Section 4.1
hereof).
(4) an Officer's Certificate stating that (i) the Company is not, and
upon the authentication by the Trustee of the series of Notes, will not be in
default under any of the terms or covenants contained in the Indenture, (ii) all
conditions that must be met by the Company to issue Notes under this Indenture
have been met, and (iii) if prior to the Release Date, the related series of
Senior Note Mortgage Bonds being delivered to the Trustee meets the requirements
of Section 4.10 hereof.
(d) The Trustee shall have the right to decline to authenticate and
deliver any Note:
(1) if the issuance of such Notes pursuant to this Indenture will
affect the Trustee's own rights, duties or immunities under the Notes and this
Indenture or otherwise in a manner that is not reasonably acceptable to the
Trustee;
(2) if the Trustee, being advised by counsel, determines that such
action may not lawfully be taken; or
(3) if the Trustee in good faith by its Board of Directors, executive
officers or a trust committee of directors and/or responsible officers
determines that such action would expose the Trustee to personal liability to
Holders of any outstanding Notes.
(e) 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.
(f) If all Notes of a series are not to be authenticated and issued at
one time, the Company shall not be required to deliver the Company Order, Board
Resolutions, certificate of an Expert, Senior Note Mortgage Bonds, Officers'
Certificate and Opinion of Counsel (including any such that would be otherwise
required pursuant to Section 15.5 hereof) described in Section 2.5(c) hereof at
or prior to the authentication of each Note of such series, if such items are
13
delivered at or prior to the time of authentication of the first Note of such
series to be authenticated and issued. If all of the Notes of a series 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 the Note and a written request (executed 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) to the Trustee to
authenticate such Note and to deliver such Note 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 Note of such series are true and correct on the date
thereof as if made on and as of the date thereof.
Section 2.6. 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 6.2 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 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 II
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 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.
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(f) If the principal amount, and applicable premium, 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 2.7. 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 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 2.7 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.
15
Section 2.8. 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 2.9. 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 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 series 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 series at the applicable Regular Record Date. In
that event, when moneys become available for payment of the 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 series at the close of business on the 15th day preceding
the mailing at the address of such Noteholder, as it appeared 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.
16
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 9:30 a.m., New York City time, of the day on which
payment of principal, interest and premium 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 the Depository. On or before 10:00 a.m., New York
City time, or such other time as shall be agreed upon between the Trustee and
the Depository, 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 Depository such
interest in same day funds. On or before 10:00 a.m., New York City time or such
other time as shall be agreed upon between the Trustee and the Depository, 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 Depository the amount
equal to the principal, interest payable at maturity and premium, if any, by
wire transfer into the account specified by the Depository. As a condition to
the payment, at maturity or upon redemption, of any part of the principal of,
interest on and applicable premium of any Global Note, the Depository shall
surrender, or cause to be surrendered, such Global Note to the Trustee,
whereupon a new Global Note shall be issued to the Depository pursuant to
Section 2.6(f) hereof.
(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 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 within the continental United States 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 Senior Note Mortgage Bonds from the
Company as provided in this Indenture and shall hold the Senior Note 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 VIII hereof, all payments made by or on behalf the
Company to the Trustee on a series of Senior Note Mortgage Bonds shall be deemed
to be a payment by the Company pursuant to this Section 2.12 and shall be
applied by the Trustee to pay, when due, principal of, premium, if any, and
interest on the related series of Notes and, to the extent so applied, shall
satisfy the Company's obligations on such Notes. The Company shall cause payment
to be made to the Trustee of principal of, premium, if any, and interest on a
series of Senior Note Mortgage Bonds in a manner and at a time that will enable
the
17
Trustee to make payments when due, of the principal of, premium, if any, and
interest on the related series of Notes.
Section 2.13. Notes Issuable In The Form Of A Global Note.
(a) If the Company shall establish pursuant to Section 2.5 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 2.5 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 of such series to be represented by such Global Note or Notes, (ii) shall
be registered in the name of the Depository or its nominee, (iii) shall be
delivered by the Trustee to the Depository or pursuant to the Depository'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 Depository (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 Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository. Unless this
Global Note is presented by an authorized representative of The Depository 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 Depository 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 Depository.
(b) Notwithstanding any other provision of Section 2.6 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 Depository for a Global Note notifies the
Company that it is unwilling or unable to continue as Depository for such Global
Note or if at any time the Depository for the 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 Depository with respect to such Global Note. If a successor Depository
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 2.5(c)(vi) hereof shall no longer be
effective with respect to the 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
18
amount equal to the principal 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 Depository 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 outstanding (but not less than all) 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 Depository 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 Depository for
delivery to the persons in whose names such Notes are so registered, or
if the Depository 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 Depository but not prior to the
first Interest Payment Date of the respective Global Notes, the Depository shall
be required to 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 Depository 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 2.6 or Section 3.3 hereof, the aggregate principal amount of the Notes
with a particular Original Issue Date shall be the same
19
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 III.
REDEMPTION OF NOTES
Section 3.1. 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 III.
Section 3.2. Notice Of Redemption; Selection Of Notes.
(a) The election of the Company to redeem any Notes shall be evidenced
by a Board Resolution 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) Notice of redemption to each Holder of Notes to be redeemed as a
whole or in part shall be given by the Trustee, 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 or in part shall not affect the validity of the
proceedings for the redemption of any other 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 2.5 hereof, if less than all of a series of Notes is to be
redeemed, the Trustee shall select in such 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 is to
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be redeemed, the particular Notes or portions thereof of such series to be
redeemed shall be selected by the Depository for such series of Notes in such
manner as the Depository 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 3.3. 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 3.2 hereof and such notice shall not contain the language
permitted at the Company's option under Section 3.2(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 3.2 hereof and such notice shall contain the language permitted at the
Company's option under Section 3.2(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 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. 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.
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(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.
(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 IV.
SENIOR NOTE MORTGAGE BONDS
Section 4.1. Delivery Of Initial Series Of Senior Note Mortgage Bonds.
Subject to the provisions of Section 4.11 and Article V hereof, the Company
hereby (a) delivers to the Trustee, in connection with the initial issuance of a
series of Notes hereunder in an aggregate principal amount not to exceed
$_______, Senior Note Mortgage Bonds bearing the designation "First Mortgage
Bonds, Senior Note Series A" 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 Notes issued under this Indenture as security
for any and all obligations of the Company 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 and (b) delivers to the
Trustee the certificate of the Expert required by Section 4.5 hereof.
Section 4.2. Receipt. The Trustee acknowledges receipt of the Senior
Note Mortgage Bonds and Expert certificate described in Section 4.1 hereof.
Section 4.3. Senior Note Mortgage Bonds Held By The Trustee. The
Trustee, as a Holder of Senior Note Mortgage Bonds, shall attend any meeting of
Bondholders under the Mortgage Indenture 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 Mortgage Indenture is sought without a meeting, the Trustee shall vote
all of the Senior Note Mortgage Bonds held by it, or shall consent or withhold
its consent with respect thereto, as directed by the Holders of not less than a
majority in the aggregate principal amount of the outstanding Notes; provided,
however, the Trustee shall not vote as such Holder of any particular series of
Senior Note Mortgage Bonds in favor of, or give its consent to, any
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action which, in the Trustee's opinion, would materially adversely affect
such series of Senior Note Mortgage Bonds in a manner not shared generally by
all other Senior Note Mortgage Bonds, except upon notification by the Trustee
to the Noteholders of the related series 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 series.
Section 4.4. No Transfer Of Senior Note Mortgage Bonds; Exception.
Except as required to effect an assignment to a successor trustee under this
Indenture or pursuant to Section 4.5 or Section 4.8 hereof, the Trustee shall
not sell, assign or transfer the Senior Note Mortgage Bonds and the Company
shall issue stop transfer instructions to the Mortgage Trustee and any transfer
agent under the Mortgage Indenture to effect compliance with this Section 4.4.
Section 4.5. Delivery To The Company Of All Senior Note Mortgage
Bonds. When the obligation of the Company to make payment with respect to the
principal of and premium, if any, and interest on the Senior Note Mortgage Bonds
shall be satisfied or deemed satisfied pursuant to Section 4.11 or Section
5.1(a) hereof, the Trustee shall, upon written request of the Company and
receipt of the certificate of the Expert described in Section 4.6(b) hereof (if
such certificate is then required by Section 4.6(b) hereof), deliver to the
Company without charge therefor all of the Senior Note Mortgage Bonds, together
with such appropriate instruments of transfer or release as may be reasonably
requested by the Company. All Senior Note Mortgage Bonds delivered to the
Company in accordance with this Section 4.5 shall be delivered by the Company to
the Mortgage Trustee for cancellation.
Section 4.6. Fair Value Certificate. (a) Upon the delivery by the
Company to the Trustee of Senior Note Mortgage Bonds pursuant to Section 4.1 or
Section 4.9 hereof, the Company shall simultaneously therewith deliver to the
Trustee a certificate of an Expert (1) stating that it is familiar with the
provisions of such Senior Note Mortgage Bonds and of this Indenture; (2) stating
the principal amount of such Senior Note Mortgage Bonds so delivered, the stated
interest rate (or method of calculation of interest) of such Senior Note
Mortgage Bonds and the stated maturity date of such Senior Note Mortgage Bonds;
(3) identifying the Notes being issued contemporaneously therewith, and (4)
stating the fair value to the Company of such Senior Note Mortgage Bonds. If the
fair value to the Company of the Senior Note Mortgage Bonds so delivered, as
described in the certificate to be delivered pursuant to this Section 4.6(a),
both (l) is equal to or exceeds (A) $25,000 and (B) 1% of the principal amount
of the Notes outstanding at the date of delivery of such Senior Note Mortgage
Bonds and (2) together with the fair value to the Company, as described in the
certificates to be delivered pursuant to this Section 4.6(a), of all other
Senior Note Mortgage Bonds delivered to the Trustee since the commencement of
the then current calendar year, is equal to or exceeds 10% of the principal
amount of the Notes outstanding at the date of delivery of such Senior Note
Mortgage Bonds, then the certificate required by this Section 4.6(a) shall (1)
be delivered by an Expert who shall be independent of the Company and
satisfactory to the Trustee in its reasonable judgment and (2) shall, in
addition to the certifications described above, state the fair value to the
Company of all Senior Note Mortgage Bonds delivered to the Trustee pursuant to
Section 4.9 hereof since the commencement of the then current year as to which a
certificate was not delivered by an Expert independent of the Company.
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(b) If Senior Note Mortgage Bonds are delivered or surrendered to
the Company pursuant to Section 4.5 or 4.8 hereof, the Company shall
simultaneously therewith deliver to the Trustee a certificate of an Expert (1)
stating that it is familiar with the provisions of such Senior Note Mortgage
Bonds and of this Indenture, (2) stating the principal amount of such Senior
Note Mortgage Bonds so delivered, the stated interest rate (or method of
calculation of interest) of such Senior Note Mortgage Bonds and the stated
maturity date of such Senior Note Mortgage Bonds, (3) if applicable, identifying
the Notes, the payment of the interest on and principal of which has been
discharged hereunder, and (4) stating that such delivery and release will not
impair the lien of this Indenture in contravention of the provisions of this
Indenture. If, prior to the Release Date, the fair value of the Senior Note
Mortgage Bonds so delivered and released, as described in the certificate to be
delivered pursuant to this Section 4.6(b), both (l) is equal to or exceeds (A)
$25,000 and (B) 1% of the principal amount of the outstanding Notes at the date
of release of such Senior Note Mortgage Bonds and (2) together with the fair
value, as described in the certificates to be delivered pursuant to this Section
4.6(b), of all other Senior Note Mortgage Bonds released from the lien of this
Indenture since the commencement of the then current calendar year, is equal to
or exceeds 10% of the principal amount of the Notes outstanding at the date of
release of such Senior Note Mortgage Bonds, then the certificate required by
this Section 4.6(b) shall be delivered by an Expert who shall be independent of
the Company and satisfactory to the Trustee in its reasonable judgment.
If, in connection with a delivery or release of outstanding Senior Note
Mortgage Bonds, the Company provides to the Trustee an Opinion of Counsel
stating that the certificate described by this Section 4.6 is not required by
law, such certificate shall not be required to be delivered hereunder in
connection with such delivery or release.
Section 4.7. 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 Senior Note Mortgage Bonds and for maintaining, protecting
and preserving such interest.
Section 4.8. Exchange And Surrender Of Senior Note Mortgage Bonds. At
any time at the written direction of the Company, the Trustee shall surrender to
the Company all or part of the Senior Note Mortgage Bonds in exchange for Senior
Note 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 Senior Note 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 5.1(b) hereof, the Trustee
shall surrender an equal principal amount of the related series of Senior Note
Mortgage Bonds, subject to the limitations of this Section 4.8, to the Company
for cancellation. The Trustee shall, together with such Senior Note Mortgage
Bonds, deliver to the Company such appropriate instruments of transfer or
release as the Company may reasonably request. Prior to the surrender required
by this paragraph, the Trustee shall receive from the Company the following, and
(subject to Section 9.1 hereof) shall be fully protected in relying upon, (a) an
Officers' Certificate stating (i) the aggregate outstanding principal amount of
the Senior Note Mortgage Bonds of the series surrendered by the Trustee,
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after giving effect to such surrender, (ii) the aggregate outstanding
principal amount of the related series of Notes, (iii) that the surrender of
the Senior Note Mortgage Bonds will not result in any default under this
Indenture, and (iv) that any Senior Note Mortgage Bonds to be received in
exchange for the Senior Note Mortgage Bonds being surrendered comply with the
provisions of this Section.
The Company shall not be permitted to cause the surrender or exchange of all
or any part of a series of Senior Note Mortgage Bonds contemplated in this
Section, if, after such surrender or exchange, the aggregate outstanding
principal amount of the related series of Notes would exceed the aggregate
outstanding principal amount of such series of Senior Note Mortgage Bonds
held by the Trustee. Any Senior Note Mortgage Bonds received by the Company
pursuant to this Section 4.8 shall be delivered to the Mortgage Trustee for
cancellation.
Section 4.9. Acceptance Of Additional Senior Note Mortgage Bonds. Upon the
issuance of a series of Notes hereunder (other than the initial series of
Notes referred to in Section 4.1 hereof) at any time prior to the Release
Date, the Company shall deliver to the Trustee in trust for the benefit of
the Holders of the Notes as described in Section 4.11 hereof, and the Trustee
shall accept therefor, a related series of Senior Note Mortgage Bonds
registered in the name of the Trustee conforming to the requirements of
Section 4.10 hereof.
Section 4.10. Terms Of Senior Note Mortgage Bonds. Each series of
Senior Note Mortgage Bonds delivered to the Trustee pursuant to Section 4.1 or
Section 4.9 hereof shall have 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 shall be in the same aggregate principal
amount, as the related series of Notes being issued.
Section 4.11. Senior Note Mortgage Bonds As Security For Notes. Until
the Release Date and subject to Article V hereof, Senior Note Mortgage Bonds
delivered to the Trustee, for the benefit of the Holders of the Notes, shall
constitute part of the trust estate and for any and all obligations of the
Company under the Notes, including, but not limited to (1) the full and prompt
payment of the principal of and premium, if any, on such Notes when and as the
same shall become due and payable in accordance with the terms and provisions of
this Indenture or 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 such Notes when and as the same shall become
due and payable in accordance with the terms and provisions of this Indenture or
the Notes.
Notwithstanding anything in this Indenture to the contrary, from
and after the Release Date, the obligation of the Company to make payment
with respect to the principal of and premium, if any, and interest on the
Senior Note Mortgage Bonds shall be deemed satisfied and discharged as
provided in the supplemental trust indenture or indentures to the Mortgage
Indenture creating such Senior First Mortgage Bonds and the Senior Note
Mortgage Bonds shall cease to secure in any manner Notes theretofore or
subsequently issued. From and after the Release Date, any conditions to the
issuance of Notes that refer or relate to Senior Note Mortgage Bonds or the
Mortgage Indenture shall be inapplicable. Notice of the occurrence of the
Release
25
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 Release Date.
ARTICLE V.
SATISFACTION AND DISCHARGE; UNCLAIMED MONEYS
Section 5.1. Satisfaction And Discharge.
(a) 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 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, unless all outstanding Notes are to
be due within 90 days of such deposit by redemption or otherwise, shall
also deliver to the Trustee an Opinion of Independent Counsel to the
effect that the Company has received from, or there has been published
by, the Internal Revenue Service a ruling or similar pronouncement by
the Internal Revenue Service or that there has been a change of law, in
either case to the effect that the Holders of the Notes will not
recognize income, gain or loss for federal income tax purposes as a
result of such defeasance or discharge of the Indenture,
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 5.2 hereof, (iv) the rights
26
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 5.4 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
Senior Note 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 5.1(a)(3) to be in excess of the
amount required to be held under this Section.
If the Notes are deemed to be paid and discharged pursuant to Section
5.1(a)(3) hereof, 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; and
(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 9.6 hereof, shall
survive.
If the Notes are deemed paid and discharged pursuant to this Section
5.1, the obligation of the Company to make payment with respect to the principal
of and premium, if any, and interest on the Senior Note Mortgage Bonds shall be
satisfied and discharged and the Senior Note Mortgage Bonds shall cease to
secure the Notes in any manner.
(b) If the Company shall have paid or caused to be paid the principal
of and premium, if any, and interest on any Note, as and when the same shall
have become due and payable or the Company shall have delivered to the Trustee
for cancellation any outstanding Note, such Note shall cease to be entitled to
any lien, benefit or security under this Indenture. Upon a Note of any series
ceasing to be entitled to any lien, benefit or security under this Indenture,
the obligation of the Company to make payment with respect to principal of and
premium, if any, and interest on a principal amount of the related series of
Senior Note Mortgage Bonds equal to the principal amount of such Note shall be
satisfied and discharged and such portion of the principal amount of such Senior
Note Mortgage Bonds shall cease to secure the Notes in any manner.
Section 5.2. Deposited Moneys To Be Held In Trust By Trustee. All moneys
and U.S. Government Obligations deposited with the Trustee pursuant to
Section 5.1 hereof, shall be held
27
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 5.3. 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 5.4. 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 two years 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.
ARTICLE VI.
PARTICULAR COVENANTS OF THE COMPANY
Section 6.1. 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 6.2. 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 and State 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 2.5
hereof or at any subsequent time pursuant to this Section 6.2 hereof. 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.
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Section 6.3. 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 6.4. 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 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 6.4:
(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 6.4 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 6.4, such sums to be held by the Trustee upon the
trusts herein contained.
29
Anything in this Section 6.4 to the contrary notwithstanding,
the agreement to hold sums in trust as provided in this Section 6.4 is subject
to Sections 5.3 and 5.4 hereof.
Section 6.5. 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 a 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 but prior to the Release Date, an
Opinion of Counsel either stating that, in the opinion of such counsel, this
Indenture or such supplemental indenture 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 Senior Note
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 1999, and prior to
the Release Date, an Opinion of Counsel either stating that in the opinion of
such counsel such action has been taken, since the date of the most recent
Opinion of Counsel furnished pursuant to this Section 6.5(b) or the first
Opinion of Counsel furnished pursuant to Section 6.5(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 Senior Note 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 6.6. Certificates And Notice To Trustee. The Company shall, on or
before May 1 of each year, beginning in 1999, 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,
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. Upon the occurrence of a completed default (as
defined in the Mortgage Indenture) prior to the Release Date, the Company
shall promptly notify the Trustee of such event.
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ARTICLE VII.
NOTEHOLDER LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section 7.1. 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 7.1(a) hereof or, if
applicable, in its capacity as registrar to 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 7.1(a) hereof or if applicable in its capacity as
registrar for the Notes, and as 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 Commission, 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 Commission, after opportunity
for a hearing upon the objections specified in the written
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statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, the Commission 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 7.2. 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 Commission, 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 Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934;
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
Commission, in accordance with rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Securities Exchange Act of 1934 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 Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, 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 15.5,
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
Commission.
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Section 7.3. Reports By The Trustee.
(a) Within 60 days after July 15 of each year, beginning with the July
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 Commission. 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;
(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
7.3(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 7.1 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
Commission.
ARTICLE VIII.
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS ON EVENTS OF DEFAULT
Section 8.1 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;
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(2) default in the payment of the principal of or any premium
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 25% in aggregate principal amount of the Notes at the time
outstanding;
(4) prior to the Release Date, a completed default (as defined
in the Mortgage Indenture) has occurred and is continuing, and the
Mortgage Trustee, the Company or Holders of at least 25% in aggregate
principal amount of the Notes at the time outstanding shall have given
written notice thereof to the Trustee;
(5) the entry of a decree or order by a court having
jurisdiction over the Company for relief in respect of the Company
under Title 11 of the United States Code, as now constituted or
hereafter amended, 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
(6) the filing by the Company with respect to itself or its
property of a petition or answer or consent seeking relief under Title
11 of the United States Code, as now constituted or hereafter amended,
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 can immediately file with the
Mortgage Trustee a written demand for redemption of all Senior Note Mortgage
Bonds pursuant to the applicable provisions of the supplemental indentures to
the Mortgage Indenture.
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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 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 Mortgage Indenture, 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 9.6 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 Mortgage
Indenture, 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 Senior Note 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 8.2 Payment Of Notes On Default; Suit Therefor.
(a) The Company covenants that in case of:
(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; or
(2) default in the payment of the principal of or any premium
on any of the Notes as and when the same shall have become due and
payable whether at the stated maturity thereof, upon redemption thereof
(provided that such redemption is not conditioned upon the deposit of
sufficient moneys for such redemption), upon declaration of
acceleration or otherwise.
35
then, upon demand of the Trustee, the Company shall pay to the Trustee, for the
benefit of the Holders of the Notes, the whole amount that then shall have so
become due and payable on all such Notes for principal and any premium or
interest, or both, as the case may be, with interest upon the overdue principal
and any premium and (to the extent that payment of such interest is enforceable
under applicable law) upon the overdue installments of interest at the rate
borne by the Notes; and, in addition thereto, such further amounts as shall be
sufficient to cover the costs and expenses of collection, including reasonable
compensation to the Trustee, its agents, attorneys and counsel, any expenses or
liabilities incurred by the Trustee hereunder other than through its negligence
or bad faith, and any other amounts due the Trustee under Section 9.6 hereof.
(b) If the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, including, prior to the
Release Date, to exercise any rights to that end it may have as a holder of
Senior Note Mortgage Bonds, and may enforce any such judgment or final decree
against the Company or any other obligor on the Notes and collect in the manner
provided by law out of the property of the Company or any other obligor on such
series of Notes wherever situated, the moneys adjudged or decreed to be payable.
(c) 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 United
States 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 upon 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 payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made
any demand pursuant to this Section 8.2, 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
Release Date, any claims of the Trustee as holder of Senior Note Mortgage Bonds
and including any amounts due to the Trustee under Section 9.6 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.
(d) 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.
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(e) Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent 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 8.3. 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
9.6 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 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 any premium 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 any premium 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.
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Section 8.4. 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 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 8.5. 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, prior to the Release Date, its
rights as holder of the Senior Note 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 8.6. Remedies Cumulative And Continuing. All powers and remedies
given by this Article VIII 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 8.4 hereof, every power and
remedy given by this Article VIII 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.
Section 8.7. 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
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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 9.1 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 8.7,
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 8.8. Notice Of Default. The Trustee shall, within 90 days after the
occurrence of a default, give to all Holders of the Notes, in the manner
provided in Section 15.10, 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 8.8 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.
Section 8.9. 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 8.9 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
39
interest on any Note on or after the due date expressed in such
Note or the applicable redemption date.
ARTICLE IX.
CONCERNING THE TRUSTEE
Section 9.1. 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 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;
(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 8.7 hereof relating to the time,
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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 9.2. Reliance On Documents, Opinions, Etc. Except as otherwise
provided in Section 9.1 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;
(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
41
(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 9.3. 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 filing this Indenture, any supplemental
indenture, or any financing or continuation statement in any public office at
any time or times.
Section 9.4. Trustee, Authenticating Agent, Paying Agent Or Registrar May Own
Notes. The Trustee and any Authenticating Agent or paying agent 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 or
paying agent.
Section 9.5. Moneys To Be Held In Trust. Subject to Section 5.4 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 9.6. 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 9.6 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.
42
Section 9.7. 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 9.8. 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, Norwest Bank Minnesota, National
Association 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
Company's pollution control and resource recovery bonds. Nothing in this
Indenture shall be deemed to prohibit the Trustee or the Company from making
any application permitted pursuant to such section.
Section 9.9. 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 Commission), 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 9.9, 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 9.9, the Trustee shall resign immediately in the
manner and with the effect specified in Section 9.10 hereof.
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) So long as no Event of Default has occurred and is continuing, and
no event has occurred and is continuing that, with the giving of notice or the
lapse of time or both, would
43
become an Event of Default, the Company may remove any Trustee upon written
notice to the Holder of each Note outstanding and the Trustee.
(d) If at any time (1) the Trustee shall cease to be eligible in
accordance with Section 9.9 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 9.8
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 or any Vice President 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.
(e) 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.
Section 9.11. Appointment Of Successor Trustee.
(a) If at any time the Trustee shall resign or be removed, the Company,
by a Board Resolution, shall promptly appoint a successor Trustee.
(b) The Company shall provide written notice of its appointment of a
Successor Trustee 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 9.9 hereof and
qualified under Section 9.8 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,
44
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 9.6 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 in
the Senior Note 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 9.6 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 9.8 hereof and eligible under Section 9.9 hereof.
(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 converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all 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.
45
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 2.6, 2.7,
2.8, 2.13, 3.3, and 13.4 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 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
9.9 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 Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services, and the Trustee shall be entitled
to be reimbursed for such payments, in accordance with Section 9.6 hereof.
(e) Sections 9.2, 9.3, 9.6, 9.7 and 9.9 hereof shall be applicable to
any Authenticating Agent.
ARTICLE X.
CONCERNING THE NOTEHOLDERS
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Section 10.1. 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 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 XI hereof, or (c) by a combination of such instrument or instruments
and any such record of such a meeting of Noteholders.
Section 10.2. Proof Of Execution By Noteholders.
(a) Subject to Sections 9.1, 9.2 and 11.5 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 11.6 hereof.
Section 10.3. Who Deemed Absolute Owners. Subject to Sections 2.4(f) and 10.1
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 10.4. 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 for the purposes of this Section 10.4
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
47
as to such right, any decision by the Trustee taken upon the advice of
counsel shall be full protection to the Trustee.
Section 10.5. 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 Depository, 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 10.2(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 10.6. 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.
ARTICLE XI.
NOTEHOLDERS' MEETING
Section 11.1. Purposes Of Meetings. A meeting of Noteholders may be called at
any time and from time to time pursuant to this Article XI 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 VIII;
(b) to remove the Trustee pursuant to Article IX;
48
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to Section 13.2 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 11.2. 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 11.1
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 11.3. 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 for such meeting and may
call such meeting to take any action authorized in Section 11.1 hereof, by
giving notice thereof as provided in Section 11.2 hereof.
Section 11.4. 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 11.5. 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
49
provided in Section 11.3 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 10.4 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 11.2 or 11.3 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 11.2 or 11.3 hereof
may be adjourned from time to time by the 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 11.6. 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 11.2 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 11.7. Rights Of Trustee Or Noteholders Not Delayed. Nothing in this
Article XI 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.
ARTICLE XII.
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CONSOLIDATION, MERGER, SALE, TRANSFER OR OTHER DISPOSITION
Section 12.1. Company May Consolidate, Etc. Only On Certain Terms. The
Company shall not consolidate with or merge into any other corporation or
sell, or otherwise 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 and (b) if such consolidation, merger, sale, transfer or other
disposition occurs prior to the Release Date, shall expressly assume, by an
indenture supplemental to the Mortgage Indenture, executed and delivered to
the Trustee and the Mortgage Trustee, in form satisfactory to the Trustee and
the Mortgage Trustee, the due and punctual payment of the principal of and
premium and interest on all of the Senior Note Mortgage Bonds and the
performance of every covenant of the Mortgage Indenture on the part of the
Company to be performed or observed. For purposes of this Article XII 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.
Section 12.2. 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 12.1 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 XIII.
SUPPLEMENTAL INDENTURES
Section 13.1. Supplemental Indentures Without Consent Of Noteholders.
(a) 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 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
51
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 2.1
hereof or to establish or reflect any terms of any Note determined
pursuant to Section 2.5 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;
(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
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
(c) Any supplemental indenture authorized by this Section 13.1 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 13.2 hereof.
Section 13.2. Supplemental Indentures With Consent Of Noteholders.
52
(a) With the consent (evidenced as provided in Section 10.1 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 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 repaid at the option of the holder thereof 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
Senior Note Mortgage Bonds, or prior to the Release Date, reduce the
principal amount of any series of Senior Note Mortgage Bonds to an
amount less than the principal amount of the related series of Notes or
alter the payment provisions of such Senior Note 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 13.2(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 13.2 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 13.2, 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
53
defect therein shall not, however, in any way impair or affect the validity
of any such supplemental indenture.
Section 13.3. Compliance With Trust Indenture Act; Effect Of Supplemental
Indentures. Any supplemental indenture executed pursuant to this Article XIII
shall comply with the TIA. Upon the execution of any supplemental indenture
pursuant to this Article XIII, 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 13.4. Notation On Notes. Notes authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article XIII 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 13.5. Evidence Of Compliance Of Supplemental Indenture To Be
Furnished Trustee. The Trustee, subject to Sections 9.1 and 9.2 hereof, may
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant hereto complies
with the requirements of this Article XIII.
ARTICLE XIV.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 14.1. Indenture And Notes Solely Corporate Obligations. No recourse
for the payment of the principal of or any premium or interest on any Note or
any Senior Note 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 Mortgage Indenture
or in any supplemental indenture, or in any Note or in any Senior Note
Mortgage Bond, or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, stockholder, 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.
54
ARTICLE XV.
MISCELLANEOUS PROVISIONS
Section 15.1. 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 15.2. 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.
Section 15.3. 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 being deposited postage prepaid in a
post office letter box addressed (until another address is filed by the Company
with the Trustee) at the principal executive offices of the Company, to the
attention of the Secretary. 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 at the corporate trust office of the Trustee, Attention: Vice
President, 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 Commission or any securities exchange upon
which any series of Notes is listed.
Section 15.4. Governing Law. This Indenture and each Note shall be deemed
to be a contract made under the laws of the State of Minnesota, and for all
purposes shall be construed in accordance with the laws of said State.
Section 15.5. 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.
55
(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 6.6 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 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.
(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.
56
Section 15.6. Business Days. Unless otherwise provided pursuant to Section
2.5(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 affect 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 15.7. 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 15.8. 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 15.9. 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 first-class mail, postage prepaid,
addressed to the Holders of such Notes at their last addresses as the same
appear on the register for the Notes referred to in Section 2.6, and any such
notice shall be deemed to be given or served by being deposited in a post
office letter box 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 Expert Or Counsel. Wherever the Trustee
is required to approve an Expert or 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 Expert or counsel.
57
IN WITNESS WHEREOF, NORTHERN STATES POWER COMPANY has caused this
Indenture to be signed and acknowledged by one of its Vice Presidents, and
attested by its Secretary, and Norwest Bank Minnesota, National Association
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.
NORTHERN STATES POWER COMPANY
By
---------------------------------
ATTEST: X.X. XxXxxxxx, Vice President and
Chief Financial Officer
Xxxx X. Xxxxx, Xx., Corporate Secretary
Norwest Bank Minnesota, National
Association, as Trustee
By___________________________________
ATTEST:
________________________
58
EXHIBIT A
FORM OF GLOBAL NOTE
PRIOR TO RELEASE DATE
REGISTERED REGISTERED
THIS NOTE IS A GLOBAL NOTE REGISTERED IN THE NAME OF THE DEPOSITORY (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 DEPOSITORY TO A NOMINEE
OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR
ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO
A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS
GLOBAL NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
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 DEPOSITORY 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.
NORTHERN STATES POWER COMPANY
(Incorporated under the laws of the State of Minnesota)
SENIOR NOTE, SERIES
CUSIP: NUMBER:
ORIGINAL ISSUE DATE(S): PRINCIPAL AMOUNT(S):
INTEREST RATE: MATURITY DATE:
NORTHERN STATES POWER COMPANY, a corporation of the State of Minnesota (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, 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
10:00 a.m., New York City time, or such other time as shall be agreed upon
between the Trustee and the Depository, of the day on which such payment of
interest is due on this Global Note (other than maturity), the Trustee shall
pay to the Depository such interest in same day funds. On or before 10:00
a.m., New York City time, or such other time as shall be agreed upon between
the Trustee and the Depository, 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 Depository the amount equal to the principal,
interest payable at maturity and premium, if any, by wire transfer into the
account specified by the Depository. 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 Depository shall
surrender, or cause to be surrendered, this Global Note to the Trustee,
whereupon a new Global Note shall be issued to the Depository.
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 ______, 199_ between
the Company and Norwest Bank Minnesota, National Association, 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
A-2
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 Release Date (as hereinafter defined), the Notes will be
secured by First Mortgage Bonds (the "Senior Note Mortgage Bonds") delivered by
the Company to the Trustee for the benefit of the Holders of the Notes, issued
under the Trust Indenture, dated as of February 1, 1937, from the Company to
Xxxxxx Trust and Savings Bank, as trustee (the "Mortgage Trustee"), as
supplemented and modified by supplemental indentures and a Restated Indenture
dated May 1, 1988 (collectively, the "Mortgage Indenture"). Reference is made to
the Mortgage Indenture and the Indenture for a description of the rights of the
Trustee as holder of the Senior Note Mortgage Bonds, the property mortgaged and
pledged, under the Mortgage Indenture and the rights of the Company and of the
Mortgage Trustee in respect thereof, the duties and immunities of the Mortgage
Trustee and the terms and conditions upon which the Senior Note Mortgage Bonds
are secured and the circumstances under which additional First Mortgage Bonds
may be issued.
From and after the release date referred to in the immediately
preceding paragraph, which is the date that the shareholders of the Company
approve the amendment of Article V, Section 6a(i) of the Articles of
Incorporation of the Company so that the approval of preferred stockholders of
the Company is no longer required to issue unsecured debt exceeding 20% of the
sum of the secured debt, capital stock and capital surplus of the Company (the
"Release Date"), the Senior Note Mortgage Bonds shall cease to secure the Notes
in any manner. In certain circumstances prior to the Release Date as provided in
the Indenture, the Company is permitted to reduce the aggregate principal amount
of a series of Senior Note Mortgage Bonds held by the Trustee, but in no event
prior to the Release Date to an amount less than the aggregate outstanding
principal amount of the series of Notes initially issued contemporaneously with
such Senior Note Mortgage Bonds.
Each Note of this Series 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.
[As 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
------------------ -----------------
A-3
Notice of redemption will be given by mail to Holders of Notes of this Series
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 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 including obligations to
register the transfer or exchange of Notes, replace stolen, lost or mutilated
Notes, maintain paying agencies and hold monies for payment in trust, all 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, to pay all the principal of and any premium
and interest on the Notes on the dates such payments are due in accordance with
the terms of the Notes.
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 Senior Note 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. 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
A-4
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 here.
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 Depository for this Global Note notifies the Company
that it is unwilling or unable to continue as Depository for this Global Note or
if at any time the Depository 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
Depository with respect to this Global Note. If a successor Depository 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 of this Series in exchange for this Global Note, will authenticate and
deliver individual Notes of this Series 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 of this Series in exchange for such Global Note, shall authenticate and
deliver, individual Notes of this Series 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 Depository
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 Depository 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 all Original Issue Dates and
the principal amount applicable to each such Original Issue Date.
A-5
The Indenture and the Notes shall be governed by, and construed in
accordance with, the laws of the State of Minnesota.
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 terms used in this Global Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture unless otherwise
indicated herein.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
NORTHERN STATES POWER COMPANY
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.
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, as Trustee
By:_________________________________________________________
Authorized Officer
A-6
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 typewrite 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:_________________________
_______________________________________
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-7
EXHIBIT B
FORM OF NOTE
PRIOR TO RELEASE DATE
REGISTERED REGISTERED
NORTHERN STATES POWER COMPANY
(Incorporated under the laws of State of Minnesota)
SENIOR NOTE, SERIES
CUSIP: PRINCIPAL AMOUNT:
ORIGINAL ISSUE DATE: MATURITY DATE:
INTEREST RATE: NUMBER:
NORTHERN STATES POWER COMPANY, a corporation of the State of
Minnesota (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, 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 of
this Series, 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 hereof), any such interest not so
punctually paid or duly provided for
B-1
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 fifteen days nor fewer than ten 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 in the
Borough of Manhattan, the City and State of New York. Interest on this Note
(other than interest payable at maturity) shall be paid by check 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 (as defined below), the aggregate principal amount of all of which
having the same Interest Payment Date as this Note equals or exceeds
$10,000,000, on or prior to the applicable Regular Record Date, interest on
this Note shall be paid by wire transfer of immediately available funds to a
bank within the continental United States 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.
B-2
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.
NORTHERN STATES POWER COMPANY
By:_____________________________________
Dated:
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.
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, as Trustee
By:_________________________________________________________
Authorized Officer
B-3
[FORM OF REVERSE OF NOTE]
NORTHERN STATES POWER COMPANY
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 _______ __, 199_ between the Company and
Norwest Bank Minnesota, National Association, 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 Release Date (as hereinafter defined), the Notes
will be secured by First Mortgage Bonds (the "Senior First Mortgage Bonds")
delivered by the Company to the Trustee for the benefit of the Holders of the
Notes, issued under the Trust Indenture, dated as of February 1, 1937, from the
Company to Xxxxxx Trust and Savings Bank, as trustee (the "Mortgage Trustee"),
as supplemented and modified by supplemental indentures and a Restated Indenture
dated May 1, 1988 (collectively, the "Mortgage Indenture"). Reference is made to
the Mortgage Indenture and the Indenture for a description of the rights of the
Trustee as holder of the Senior Note Mortgage Bonds, the property mortgaged and
pledged under the Mortgage Indenture and the rights of the Company and of the
Mortgage Trustee in respect thereof, the duties and immunities of the Mortgage
Trustee and the terms and conditions upon which the Senior Note Mortgage Bonds
are secured and the circumstances under which additional First Mortgage Bonds
may be issued.
From and after the release date referred to in the immediately
preceding paragraph, which is the date that the shareholders of the Company
approve the amendment of Article V, Section 6a(i) of the Articles of
Incorporation of the Company so that the approval of preferred stockholders
of the Company is no longer required to issue unsecured debt exceeding 20% of
the sum of the secured debt, capital stock and capital surplus of the Company
(the "Release Date"), the Senior Note Mortgage Bonds shall cease to secure
the Notes in any manner. In certain circumstances prior to the Release Date
as provided in the Indenture, the Company is permitted to reduce the
aggregate principal amount of a series of Senior Note Mortgage Bonds held by
the Trustee, but in no event prior to the Release Date to an amount less than
the aggregate outstanding principal amount of the series of Notes initially
issued contemporaneously with such Senior Note Mortgage Bonds.
[As 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
B-4
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 Series
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 this Series 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 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 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 including
obligations to register the transfer or exchange of Notes, replace stolen, lost
or mutilated Notes, maintain paying agencies and hold monies for payment in
trust, all 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, to pay all the principal of and any
premium and interest on the Notes on the dates such payments are due in
accordance with the terms of the Notes.
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 Senior Note 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
B-5
the Holders of not less than a majority in principal amount of the
outstanding Notes. 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 here.
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 this Series 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 of this Series are exchangeable for a like aggregate principal
amount of Notes of this Series 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
B-6
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 Minnesota.
All terms used in this Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
B-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 typewrite 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:_________________________
________________________________________
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-8
EXHIBIT C
FORM OF GLOBAL NOTE FOLLOWING RELEASE DATE
REGISTERED REGISTERED
THIS NOTE IS A GLOBAL NOTE REGISTERED IN THE NAME OF THE
DEPOSITORY (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 DEPOSITORY TO A
NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR
ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS
GLOBAL NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY 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 DEPOSITORY 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.
NORTHERN STATES POWER COMPANY
(Incorporated under the laws of the State of Minnesota)
SENIOR NOTE, SERIES
CUSIP: NUMBER:
ORIGINAL ISSUE DATE(S): PRINCIPAL AMOUNT(S):
INTEREST RATE: MATURITY DATE:
NORTHERN STATES POWER COMPANY, a corporation of the State of
Minnesota (the "Company"), for value received hereby promises to pay to Cede &
Co. 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 (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
C-1
interest has been paid or duly provided for, semiannually in arrears on the
___ and ___ in each year, 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 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 fifteen days or fewer than ten days prior to such Special Record
Date. On or before 10:00 a.m., New York City time, or such other time as
shall be agreed upon between the Trustee and the Depository, of the day on
which such payment of interest is due on this Global Note (other than
maturity), the Trustee shall pay to the Depository such interest in same day
funds. On or before 10:00 a.m., New York City time, or such other time as
shall be agreed upon between the Trustee and the Depository, 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 Depository the amount
equal to the principal, interest payable at maturity and premium, if any, by
wire transfer into the account specified by the Depository. 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
Depository shall surrender, or cause to be surrendered, this Global Note to
the Trustee, whereupon a new Global Note shall be issued to the Depository.
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 ________ __, 199_ between the
Company and Norwest Bank Minnesota, National Association, 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 Global Note has been issued in respect of
the series designated on the first page hereof, limited in aggregate
principal amount to $ .
Each Note of this Series 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
C-2
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.
[As 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
Series 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. In any case where
any Interest Payment Date or 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 including
obligations to register the transfer or exchange of Notes, replace stolen, lost
or mutilated Notes, maintain paying agencies and hold monies for payment in
trust, all 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, to pay all the principal of and any
premium and interest on the Notes on the dates such payments are due in
accordance with the terms of the Notes.
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-3
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. 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,
however, 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 here.
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 Depository for this Global Note notifies
the Company that it is unwilling or unable to continue as Depository for this
Global Note or if at any time the Depository 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 Depository with respect to this Global Note. If a successor
Depository 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 of this Series in exchange for this Global Note, will
authenticate and deliver individual Notes of this Series 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 of this Series in exchange for such Global Note, shall
authenticate and deliver, individual Notes of this Series of like tenor and
terms in definitive form in an aggregate principal
C-4
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
Depository 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 Depository 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 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 Minnesota.
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 terms used in this Global Note which are defined in the
Indenture shall have the meanings assigned to them in the Indenture unless
otherwise indicated herein.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
NORTHERN STATES POWER COMPANY
By:______________________________________
Dated:
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.
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
as Trustee
By:___________________________
Authorized Officer
C-5
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 typewrite 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:_________________________
________________________________
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-6
EXHIBIT D
FORM OF NOTE FOLLOWING RELEASE DATE
REGISTERED REGISTERED
NORTHERN STATES POWER COMPANY
(Incorporated under the laws of the State of Minnesota)
SENIOR NOTE, SERIES
CUSIP: PRINCIPAL AMOUNT:
ORIGINAL ISSUE DATE: MATURITY DATE:
INTEREST RATE: NUMBER:
NORTHERN STATES POWER COMPANY, a corporation of the State of
Minnesota (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, 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, 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 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 fifteen days nor fewer than ten 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
in the Borough of Manhattan, the City and State of New York. Interest on this
Note (other than interest payable at maturity) shall be paid by check 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 (as defined below), the aggregate principal amount of all of which
having the same Interest Payment Date as this Note equals or exceeds
$10,000,000, on or prior to the applicable Regular Record Date, interest on
the Note shall be paid by wire transfer of immediately available funds to a
bank within the continental United States 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.
NORTHERN STATES POWER COMPANY
By:______________________________________
Dated:
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.
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
as Trustee
By:____________________________
Authorized Officer
D-2
[FORM OF REVERSE OF NOTE]
NORTHERN STATES POWER COMPANY
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 ________ __, 199_, between the Company and
Norwest Bank Minnesota, National Association, 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 $ .
[As 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 Series
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 this Series 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. In any case where any
Interest Payment Date or the date on which the principal of this 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 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 including
obligations to register the transfer or exchange of Notes, replace stolen, lost
or mutilated Notes, maintain paying agencies and hold monies for payment in
trust, all as set forth in the Indenture) if the Company deposits with the
Trustee money, U.S.
D-3
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, to pay all the principal of and any
premium and interest on the Notes on the dates such payments are due in
accordance with the terms of the Notes.
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.
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. 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,
however, 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 here.
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 this Series 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 of this Series are exchangeable for a like
D-4
aggregate principal amount of Notes of this Series 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 Minnesota.
All terms used in this Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
D-5
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 typewrite 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:________________________
____________________________________
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-6
