EXHIBIT 4.4
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PPL ENERGY SUPPLY, LLC,
ISSUER
TO
JPMORGAN CHASE BANK, N.A.,
(FORMERLY KNOWN AS THE CHASE MANHATTAN BANK),
TRUSTEE
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SUPPLEMENTAL INDENTURE NO. [3]
DATED AS OF _____________________
SUPPLEMENTAL TO THE INDENTURE
DATED AS OF OCTOBER 1, 2001
ESTABLISHING A SERIES OF SECURITIES DESIGNATED
SENIOR NOTES [__]% SERIES [__], DUE [__]
LIMITED IN AGGREGATE PRINCIPAL AMOUNT TO $[______________]
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SUPPLEMENTAL INDENTURE NO. [3], dated as of ___________________
between PPL ENERGY SUPPLY, LLC, a limited liability company duly organized and
existing under the laws of the State of Delaware (herein called the "Company"),
and JPMORGAN CHASE BANK, N.A., a national banking association (formerly known as
The Chase Manhattan Bank), as Trustee (herein called the "Trustee"), under the
Indenture dated as of October 1, 2001 (hereinafter called the "Original
Indenture"), this Supplemental Indenture No. [3] being supplemental thereto. The
Original Indenture and any and all indentures and instruments supplemental
thereto are hereinafter sometimes collectively called the "Indenture."
RECITALS OF THE COMPANY
The Original Indenture was authorized, executed and delivered by the
Company to provide for the issuance by the Company from time to time of its
Securities (such term and all other capitalized terms used herein without
definition having the meanings assigned to them in the Original Indenture), to
be issued in one or more series as contemplated therein.
As contemplated by Sections 301 and 1201(f) of the Original
Indenture, the Company wishes to establish a series of Securities to be
designated "Senior Notes, ___% Series __, due [ ]" to be limited in aggregate
principal amount (except as contemplated in Section 301(b) and the last
paragraph of Section 301 of the Original Indenture) to $[____________], such
series of Securities to be hereinafter sometimes called "Series No. __."
The Company has duly authorized the execution and delivery of this
Supplemental Indenture No. [3] to establish the Securities of Series No. __ and
has duly authorized the issuance of such Securities; and all acts necessary to
make this Supplemental Indenture No. [3] a valid agreement of the Company and to
make the Securities of Series No. __ valid obligations of the Company have been
performed.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE NO. [3] WITNESSETH:
For and in consideration of the premises and of the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities of Series No.
__, as follows:
ARTICLE ONE
_____ SERIES OF SECURITIES
SECTION 1. There is hereby created a series of Securities designated
"Senior Notes, ___% Series __" and limited in aggregate principal amount (except
as contemplated in Section 301(b) and the last paragraph of Section 301 of the
Original Indenture) to $[____________]. The form and terms of the Securities of
Series No. __ shall be established in an Officer's Certificate of the Company,
as contemplated by Section 301 of the Original Indenture.
SECTION 2. The Company hereby agrees that, if the Company shall make
any deposit of money and/or Eligible Obligations with respect to any Securities
of Series No. __, or any portion of the principal amount thereof, as
contemplated by Section 701 of the Indenture, the Company shall not deliver an
Officer's Certificate described in clause (z) in the first paragraph of said
Section 701 unless the Company shall also deliver to the Trustee, together with
such Officer's Certificate, either:
(A) an instrument wherein the Company, notwithstanding the
satisfaction and discharge of its indebtedness in respect of such
Securities, shall assume the obligation (which shall be absolute and
unconditional) to irrevocably deposit with the Trustee or Paying Agent
such additional sums of money, if any, or additional Eligible Obligations
(meeting the requirements of Section 701), if any, or any combination
thereof, at such time or times, as shall be necessary, together with the
money and/or Eligible Obligations theretofore so deposited, to pay when
due the principal of and premium, if any, and interest due and to become
due on such Securities or portions thereof, all in accordance with and
subject to the provisions of said Section 701; provided, however, that
such instrument may state that the obligation of the Company to make
additional deposits as aforesaid shall arise only upon the delivery to the
Company by the Trustee of a notice asserting the deficiency and showing
the calculation thereof and shall continue only until the Company shall
have delivered to the Trustee an opinion of an independent public
accountant of nationally recognized standing to the effect that no such
deficiency exists and showing the calculation of the sufficiency of the
deposits then held by the Trustee; or
(B) an Opinion of Counsel to the effect that the Holders of such
Securities, or portions of the principal amount thereof, will not
recognize income, gain or loss for United States federal income tax
purposes as a result of the satisfaction and discharge of the Company's
indebtedness in respect thereof and will be subject to United States
federal income tax on the same amounts, at the same times and in the same
manner as if such satisfaction and discharge had not been effected.
SECTION 3. The Company agrees that for so long as any Securities of
Series No. __ shall remain Outstanding, without consent of the Holders of a
majority in principal amount of the Outstanding Securities of such series, the
Company shall not create, incur or assume any Lien (other than Permitted Liens)
upon any property of the Company, whether now owned or hereafter acquired, in
order to secure any Debt of the Company. The foregoing agreement shall not
restrict the ability of Subsidiaries or Affiliates of the Company to create,
incur or assume any Lien upon their properties or assets.
SECTION 4. The provisions of Section 3 above shall not prohibit the
creation, issuance, incurrence or assumption of any Lien if either
(A) the Company shall make effective provision whereby all
Securities of Series No. __ then Outstanding shall be secured equally and
ratably with all other Debt then outstanding under such Lien; or
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(B) the Company shall deliver to the Trustee bonds, notes or other
evidences of indebtedness secured by the Lien which secures such Debt
(hereinafter called "Secured Obligations") (I) in an aggregate principal
amount equal to the aggregate principal amount of the Securities of Series
No. __ then Outstanding, (II) maturing (or being subject to mandatory
redemption) on such dates and in such principal amounts that, at each
Stated Maturity of the Outstanding Securities of Series No. __, there
shall mature (or be redeemed) Secured Obligations equal in principal
amount to such Securities then to mature and (III) containing, in addition
to any mandatory redemption provisions applicable to all Secured
Obligations outstanding under such Lien and any mandatory redemption
provisions contained therein pursuant to clause (II) above, mandatory
redemption provisions correlative to the provisions, if any, for the
mandatory redemption (pursuant to a sinking fund or otherwise) of the
Securities of Series No. __ or for the redemption thereof at the option of
the Holder, as well as a provision for mandatory redemption upon an
acceleration of the maturity of all Outstanding Securities of Series No.
__ following an Event of Default (such mandatory redemption to be
rescinded upon the rescission of such acceleration); it being expressly
understood that such Secured Obligations (X) may, but need not, bear
interest, (Y) may, but need not, contain provisions for the redemption
thereof at the option of the issuer, any such redemption to be made at a
redemption price or prices not less than the principal amount thereof and
(Z) shall be held by the Trustee for the benefit of the Holders of all
Securities of Series No. __ from time to time Outstanding subject to such
terms and conditions relating to surrender to the Company, transfer
restrictions, voting, application of payments of principal and interest
and other matters as shall be set forth in an indenture supplemental
hereto specifically providing for the delivery to the Trustee of such
Secured Obligations.
SECTION 5. If the Company shall elect either of the alternatives
described in Section 4 above, the Company shall deliver to the Trustee:
(A) an indenture supplemental to the Original Indenture (I) together
with any appropriate inter-creditor arrangements, whereby such Securities
of Series No. __ then Outstanding shall be secured by the Lien referred to
in Section 4 above equally and ratably with all other indebtedness secured
by such Lien or (II) providing for the delivery to the Trustee of Secured
Obligations; and
(B) an Officer's Certificate (I) stating that, to the knowledge of
the signer, (1) no Event of Default has occurred and is continuing and (2)
no event has occurred and is continuing which entitles the secured party
under such Lien to accelerate the maturity of the indebtedness outstanding
thereunder and (II) stating the aggregate principal amount of indebtedness
issuable, and then proposed to be issued, under and secured by such Lien;
and
(C) an Opinion of Counsel (I) if the Securities of Series No. __
then Outstanding are to be secured by such Lien, to the effect that all
such Securities then Outstanding are entitled to the benefit of such Lien
equally and ratably with all other indebtedness outstanding under such
Lien or (II) if Secured Obligations are to be
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delivered to the Trustee, to the effect that such Secured Obligations have
been duly issued under such Lien and constitute valid obligations,
entitled to the benefit of such Lien equally and ratably with all other
indebtedness then outstanding under such Lien.
SECTION 6. [The Company agrees that for so long as any Securities of
Series No. __ shall remain Outstanding, and except for the sale of the
properties and assets of the Company substantially as an entirety pursuant to
Article Eleven of the Original Indenture, and other than assets required to be
sold to conform with governmental requirements, the Company shall not, and shall
not permit any of its Subsidiaries to, consummate any Asset Sale, if the
aggregate net book value of all such Asset Sales consummated during the four
calendar quarters immediately preceding any date of determination would exceed
15% of the consolidated assets of the Company and its consolidated Subsidiaries
as of the beginning of the Company's most recently ended full fiscal quarter;
provided, however, that any such Asset Sale will be disregarded for purposes of
the 15% limitation specified above (i) if any such Asset Sale is in the ordinary
course of business, (ii) to the extent that such assets are worn out or are no
longer useful or necessary in connection with the operation of the business of
the Company or its Subsidiaries, (iii) to the extent such assets are being
transferred to a wholly-owned Subsidiary of the Company, (iv) to the extent any
such assets subject to any such Asset Sale involve transfers of assets of or
equity interests in connection with (a) the formation of any joint venture
between the Company or any of its Subsidiaries and any other entity, or (b) any
project development and acquisition activities, and (v) if the proceeds thereof
(a) are, within 12 months of such Asset Sale, invested or reinvested by the
Company or any Subsidiary in a Permitted Business, (b) are used by the Company
or a Subsidiary to repay Debt of the Company or such Subsidiary, or (c) are
retained by the Company or its Subsidiaries. Additionally, if prior to any Asset
Sale that otherwise would cause the 15% limitation to be exceeded, Moody's and
S&P confirm the then current long term debt rating of such Securities of Series
No. __ after giving effect to such Asset Sale, such Asset Sale shall also be
disregarded for purposes of the foregoing limitations.]
SECTION 7. So long as any Securities of Series No. __ shall remain
Outstanding, the following event shall be an Event of Default with respect to
the Securities of Series No. __: the occurrence of a matured event of default,
as defined in any instrument of the Company under which there may be issued or
evidenced any Debt of the Company, that has resulted in the acceleration of such
Debt in excess of $25,000,000, or any default in payment of Debt in excess of
$25,000,000 at final maturity, after the expiration of any applicable grace or
cure periods; provided, however, that the waiver or cure of any such default
under any such instrument or Debt shall constitute a waiver and cure of the
corresponding Event of Default under the Indenture and the rescission and
annulment of the consequences thereof shall constitute a rescission and
annulment of the corresponding consequences under the Indenture.
SECTION 8. So long as any Securities of Series No. __ shall remain
Outstanding, for purposes of Section 1101(a) of the Indenture, "corporation"
shall be deemed to refer to a corporation or limited liability company. For all
other purposes, the definition of "corporation" in Section 101 of the Original
Indenture shall govern.
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SECTION 9. For the purposes of this Article One, except as otherwise
expressly provided or unless the context otherwise requires:
(A) "Asset Sale" shall mean any sale of any assets of the Company or
its Subsidiaries including by way of the sale by the Company or any of its
Subsidiaries of equity interests in such Subsidiaries.
(B) "Debt", with respect to any Person, means (A) indebtedness of
such Person for borrowed money evidenced by a bond, debenture, note or
other similar written instrument or agreement by which such Person is
obligated to repay such borrowed money and (B) any guaranty by such Person
of any such indebtedness of another Person. "Debt" does not include, among
other things, (W) indebtedness of such Person under any installment sale
or conditional sale agreement or any other agreement relating to
indebtedness for the deferred purchase price of property or services, (X)
any trade obligations (including obligations under agreements relating to
the purchase and sale of any commodity, including power purchase or sale
agreements, and any commodity ▇▇▇▇▇▇ or derivatives regardless or whether
such transaction is a "financial" or physical transaction) or other
obligations of such Person in the ordinary course of business, (Y)
obligations of such Person under any lease agreement (including any lease
intended as security), whether or not such obligations are required to be
capitalized on the balance sheet of such Person under generally accepted
accounting principles, or (Z) liabilities secured by any Lien on any
property owned by such Person if and to the extent that such Person has
not assumed or otherwise become liable for the payment thereof.
(C) "Lien" means any lien, mortgage, deed of trust, pledge or
security interest, in each case, intended to secure the repayment of Debt,
except for any Permitted Lien.
(D) "Material Subsidiary" means PPL Global, LLC, a Delaware limited
liability company, PPL EnergyPlus, LLC, a Delaware limited liability
company, or PPL Generation, LLC, a Delaware limited liability company.
(E) "Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and its
successors and assigns, or absent a successor, or if such entity ceases to
rate the Securities of Series No. __, such other nationally recognized
statistical rating organization as the Company may designate by notice to
the Trustee.
(F) "Permitted Business" means a business that is the same or
similar to the business of the Company or any Subsidiary as of the date
that Securities of Series No. __ are first authenticated hereunder, or any
business reasonably related thereto.
(G) "Permitted Liens" means
(i) any Liens existing at [date of execution and delivery of this
Supplemental Indenture];
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(ii) any vendors' Liens, purchase money Liens and other Liens on
property at the time of acquisition thereof by the Company and Liens
to secure or provide for the construction or improvement of property
provided that no such Lien shall extend to or cover any other
property of the Company;
(iii) any Liens on cash or securities (other than limited
liability company interests issued by any Material Subsidiary) on
hand or in banks or other financial institutions, deposit accounts
and interests in general or limited partnerships;
(iv) any Liens on the equity interest of any Subsidiary that is
not a Material Subsidiary;
(v) any Liens on property or shares of capital stock, or arising
out of any Debt of any corporation existing at the time the
corporation becomes or is merged or consolidated into the Company;
(vi) any Liens in connection with the issuance of tax-exempt
industrial development or pollution control bonds or other similar
bonds issued pursuant to Section 103(b) of the Internal Revenue Code
of 1986, as amended (or any successor provision), to finance all or
any part of the purchase price of or the cost of constructing,
equipping or improving property, provided that such Liens are
limited to the property acquired or constructed or improved and to
substantially unimproved real property on which such construction or
improvement is located; provided, further, that the Company may
further secure all or any part of such purchase price or the cost of
construction or improvement by an interest on additional property of
the Company only to the extent necessary for the construction,
maintenance and operation of, and access to, such property so
acquired or constructed or such improvement;
(vii) any Liens on contracts, leases and other agreements of
whatsoever kind and nature; any Liens on contract rights, bills,
notes and other instruments; any Liens on revenues, income and
earnings, accounts, accounts receivable and unbilled revenues,
claims, credits, demands and judgments; any Liens on governmental
and other licenses, permits, franchises, consents and allowances;
and any Liens on patents, patent licenses and other patent rights,
patent applications, trade names, trademarks, copyrights, claims,
credits, choses in action and other intangible property and general
intangibles including, but not limited to, computer software;
(viii) any Liens securing Debt which matures less than one year
from the date of issuance or incurrence thereof and is not
extendible at the option of the issuer, and any refundings,
refinancings and/or replacements of any such Debt by or with similar
secured Debt;
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(ix) any Liens on automobiles, buses, trucks and other similar
vehicles and movable equipment; vessels, boats, barges and other
marine equipment; airplanes, helicopters, aircraft engines and other
flight equipment; parts, accessories and supplies used in connection
with any of the foregoing;
(x) any Liens on furniture and furnishings, and computers, data
processing, data storage, data transmission, telecommunications and
other equipment and facilities, equipment and apparatus, which, in
any case, are used primarily for administrative or clerical
purposes;
(xi) any Liens on property which is the subject of a lease
agreement designating the Company as lessee and all right, title and
interest of the Company in and to such property and in, to and under
such lease agreement, whether or not such lease agreement is
intended as security;
(xii) other Liens securing Debt the principal amount of which
does not exceed 10% of the total assets of the Company and its
consolidated Subsidiaries as shown on the Company's most recent
audited consolidated balance sheet; and
(xiii) any Liens granted in connection with extending, renewing,
replacing or refinancing, in whole or in part, the Debt secured by
liens described in the foregoing clauses (i) through (xii), to the
extent of such Debt so extended, renewed, replaced or refinanced.
(H) "S&P" means Standard & Poor's Ratings Services, a division of
The McGraw Hill Companies, Inc. and its successors and assigns, or absent
a successor, or if such entity ceases to rate the Securities of Series No.
__, such other nationally recognized statistical rating organization as
the Company may designate by notice to the Trustee.
(I) "Subsidiary" means any corporation a majority of the outstanding
Voting Stock of which is owned, directly or indirectly, by the Company or
by one or more other Subsidiaries of the Company.
(J) "Voting Stock" means stock (or other interests) of a corporation
having voting power for the election of directors, managers or trustees
thereof, whether at all times or only so long as no senior class of stock
has such voting power by reason of any contingency.
ARTICLE TWO
MISCELLANEOUS PROVISIONS
SECTION 1. This Supplemental Indenture No. [3] is a supplement to
the Original Indenture. As supplemented by this Supplemental Indenture No. [3],
the Indenture is in
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all respects ratified, approved and confirmed, and the Original Indenture and
this Supplemental Indenture No. [3] shall together constitute one and the same
instrument.
SECTION 2. The recitals contained in this Supplemental Indenture No.
[3] shall be taken as the statements of the Company and the Trustee assumes no
responsibility for their correctness and makes no representations as to the
validity or sufficiency of this Supplemental Indenture No. [3].
SECTION 3. This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture No. [3] to be duly executed, and their respective seals to be hereunto
affixed and attested, all as of the day and year first written above.
PPL ENERGY SUPPLY, LLC
By: ________________________________
Name:
Title:
[SEAL]
ATTEST:
___________________________
JPMORGAN CHASE BANK, N.A.,
as Trustee
By: ________________________________
Name:
Title:
[SEAL]
ATTEST:
___________________________
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